New directive on posted workers ignores member states’ objections

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV.COM Ltd.

Florence Dupont-Fargeaud & Camilla Spira, of De Pardieu Brocas Maffei

Florence Dupont-Fargeaud & Camilla Spira, of De Pardieu Brocas Maffei.

Social dumping issues have pushed France to already denounce a new EU directive on posted workers, arguing it does not go far enough to prevent abuses and to protect workers’ rights, write Florence Dupont-Fargeaud and Camilla Spira.

Florence Dupont-Fargeaud and Camilla Spira are partner and associate at the French business law firm, De Pardieu Brocas Maffei.

The number of posted workers in France is estimated at 145,000, as compared to 1.2 million in Europe. In 2012, László Andor, EU Commissioner for Employment, Social Affairs and Inclusion said regarding posting of workers: “Temporarily posting workers should be a win-win for EU labour markets and for businesses, but it cannot be used as a way to sidestep minimum social standards”.

Two years later, negotiations resulted in a new implementing directive to better enforce the 1996 Directive, with a view to striking a balance between freedom to provide services and protection of workers’ rights.

Article 56 of the Treaty on the Functioning of the European Union provides for the freedom to provide services. As a result, workers are sent by their employer to work within Member States of the Union. The status of posted workers is governed by the 1996 Directive, which was the result of case law developed over the years by the European Court of Justice. Its aim was to provide for the enforcement and extension of the host Member States’ minimum terms and conditions of employment to workers posted to their territory.

Raising critics over the Directive

Although the vote takes place during last plenary session before the European Parliament elections in May 2014, the new directive will not be enforceable in Member States before 2016.

This new text is already being criticized by several EU member states, including France. One of the main criticisms concerns the absence of provisions governing the social security treatment of posted workers, both in the 1996 Directive, and the new directive.

Indeed, the posted worker remains affiliated to the regime of the posting company’s home country by virtue of European regulations.

Some of the measures provided in the new Directive intend, however, to avoid fraud resulting from the location of the posting company in a country with low social security charges.

The implementing directive thus intends to clarify the rules used to determine whether or not a posting is genuine and temporary.

For that purpose, the implementing directive provides for definitions to ascertain, in particular, whether the company posting workers really operates in the country where it is established, and that there is no use of “false” posted workers without application of minimum labour protection of the host Member State.

France to implement a new bill

The new directive also reinforces the obligations for both Member States and posting companies. New declarations of posted workers are accordingly required. In addition, the text defines a list -unfortunately limited – of documents to be kept available by the companies to the labour authorities.

More importantly, the new Directive provides for the joint and several liabilities of companies involved in the posting of workers in the event of breaches of the 1996 Directive. This rule is, however, mandatory only in the construction industry.

Favorable to the reinforcement of posted workers’ social rights, France is nevertheless already anticipating the content of this new directive, as the French Parliament is debating on a new bill intended to fight social dumping and unfair competition.

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