WIREDGOV

Posting proposal does not breach the subsidiarity principle

The College adopted yesterday a Communication re-examining its proposal for a revision of the Posting of Workers Directive in the context of the subsidiarity control mechanism that several national parliaments triggered in May. After careful consideration of their views, the Commission concludes that the proposal for a revision of the Directive does not constitute a breach of the subsidiarity principle.

The Commissioner for Employment, Social Affairs, Skills and Labour Mobility, Marianne Thyssen, said: "The voices of national Parliaments have a strong political relevance for the Commission and I am very grateful for their active involvement. We have carefully analysed all arguments put forward by national Parliaments and discussed their concerns with them. All things considered, we have concluded that our proposal fully complies with the principle of subsidiarity and we will therefore maintain it. Posting of workers is a cross-border issue by nature. The Juncker Commission remains firmly committed to the free movement of people on the basis of rules that are clear, fair for everybody and enforced on the ground."

The reform of the Posting of Workers Directive translates a clear commitment of this Commission to promote a deeper and fairer internal market, set out in its Political Guidelines. The revision introduces changes in three main areas: remuneration of posted workers, rules on temporary agency workers, and long-term posting. The proposal sets out that posted workers will generally benefit from the same rules governing pay and working conditions as local workers.

The Commission carefully analysed the subsidiarity concerns voiced by the national Parliaments and discussed all issues raised in an open political dialogue with them before drawing its conclusions. The purpose of the review of the arguments raised was to determine whether the objective of the proposed amending Directive can indeed be better achieved at Union level. Yesterday, the Commission reaffirms that it is appropriate to define at EU level the rules applicable to the posting of workers, as it has been the case since 1996. The proposal seeks to ensure that workers carrying out work at the same location are protected by the same mandatory rules, irrespective of whether they are local workers or posted workers. The obligation for all Member States to apply the rules in all sectors of the economy cannot be established at national level but must be laid down at Union level. The proposal furthermore fully and explicitly respects the competence of Member States to set wages in accordance with national practices.

While, according to the subsidiarity control mechanism, the Commission's review of arguments was confined to the question of subsidiarity, it is also sending individual replies to the national Parliaments addressing their specific remarks and concerns which are not strictly related to subsidiarity. These letters will be made public here over the coming days. Given their political relevance, the Commission will continue its political dialogue with the Parliaments on this file in the coming months throughout the legislative process. The decision yesterday should open the way for further progress on the file in Council and in the European Parliament.

Background

On 8 March 2016, the Commission presented a proposal (COM(2016) 128 final) for a targeted revision of the Posting of Workers Directive (Directive 96/71/EC), defining a set of mandatory rules regarding the terms and conditions of employment to be applied to posted workers. It provides that the principle of equal treatment with local workers will also cover posted temporary agency workers, thereby aligning the current legislation on temporary agency work.

In each Member State, due to two-chamber systems in a number of countries, the Parliament has two votes in the framework of the subsidiarity control mechanism. 14 chambers of national Parliaments from 11 Member States (Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Hungary, Latvia, Lithuania, Poland, Romania and Slovakia) sent reasoned opinions claiming that the proposal was in breach of the principle of subsidiarity. This triggered the subsidiarity control mechanism (the so-called 'yellow card' procedure). In addition, national parliaments from five Member States (France, Italy, Portugal, Spain and United Kingdom) submitted opinions that the Commission's proposal was indeed compatible with the principle of subsidiarity.

In accordance with the subsidiarity control mechanism, the Commission re-examined its proposal in order to decide whether to withdraw, amend or maintain it. Before taking its decision, the Commission engaged in political dialogue with national Parliaments, through meetings of First Vice-President Timmermans and Commissioner Thyssen with the Conference of Parliamentary Committees for Union Affairs of Parliaments of the EU (COSAC).

The subsidiarity control mechanism applies in areas which do not fall within the exclusive competence of the Union. Parliaments have 8 weeks to issue a 'reasoned opinion' if they consider that a draft legislative act does not comply with the principle of subsidiarity. The threshold to trigger the 'yellow card' is one third of the votes attributed to the national Parliaments, which obliges the Commission to re-examine a proposal and decide whether to maintain, amend or withdraw the proposal, and it must give reasons for its decision.

For more information

IP/16/466: Revision of the Posting of Workers Directive – press release

MEMO/16/467: Revision of the Posting of Workers Directive – frequently asked questions

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