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The EU executive is preparing to frame two highly contentious ideas before the end of this year that would have the effect of introducing fundamental social rights into the ambit of the Single Market Act.
One proposal will be a regulation or new directive designed to reframe the Posted Workers' Directive to prevent perceived abuses which have been the subject of controversial ECJ rulings (see 'Background').
A second would see the insertion of a new regulation which would apply fundamental social rights horizontally across the Single Market Act, giving cross-border services more social protection. This latter clause is dubbed 'Monti II', since it reflects a similar clause introduced in 1997 by Mario Monti during his tenure as internal market commissioner, to remove obstacles to the free movement of goods.
Commission warned to take pragmatic approach
Stakeholders from the labour and employment camps revealed the difficulties that lie ahead at a special Commission-sponsored conference designed to 'test the waters' last week in Brussels.
Warnings over the two proposals came from several sides, including employers' groups, the centre-right European People's Party (EPP) and a minister from the Danish government, which will take over the EU presidency just after the Commission tables its draft plans later this year.
Inger Støjberg, the Danish minister of employment, said: "This is likely to be a sensitive issue so the appeal will have a pragmatic approach […] but we would encourage the Commission to be careful."
Edith Bauer, a Hungarian Christian Democrat MEP who sits on the Parliament's employment committee, said there was no need to revisit the Posted Workers' Directive. She warned that a wide-ranging review of the directive would end up in legislative stalemate, like the Maternity Rights Directive.
Social Europe was 'price for Barroso's re-appointment'
Labour representatives were adamant that the reform of the directive and the substance of a Monti clause should be far-reaching however.
MEP Pervenche Berès (France; Socialists & Democrats), chair of the Parliament's committee on employment and social affairs, said: "The Commission wants to re-interpret the directive but we need to re-issue it. We reject the amending approach: a fundamental review of the [Posted Workers] directive is necessary."
Berès said that José Manuel Barroso gave the S&D group an undertaking to support the issue when the party endorsed his re-appointment as Commission president in 2009.
The deputy secretary-general of the European Trade Union Congress (ETUC), Patrick Itschert, told the conference that Monti II clause should be broadly applicable and have a horizontal effect across the Single Market Act, rather than applying narrowly to strike actions.
Member states are watching keenly to see how such a clause is drafted since even those working within the Commission acknowledge that its effects could be hard to predict.
Addressing the conference, Internal Market Commisioner Michel Barnier said he would not shy away from making a strong political commitment in the proposals.
Referring to the ECJ rulings, he said: "I have come to this problem as a political man. You cannot rely on the judges to respond effectively. As the guarantors of the treaty we have to find the answers, and we have to give strength to the social market economy."