After no small effort, the member states' employment and social affairs ministers succeeded, on 9 December 2013, in adopting a general approach on provisions for implementing the directive on the posting of workers. They succeeded despite the negative votes by the United Kingdom, Hungary, the Czech Republic, Latvia, Estonia, Slovakia and Malta.
The regulatory measures under discussion aim to improve implementation, monitoring and enforcement of minimum working conditions for posted workers (set out in Directive 96/71/EC) and to halt abuse. They provide a framework for the situations where a worker provides a service, on behalf of his employer and for a limited period, in a member state other than the one in which he usually works. In 2011, the countries that hosted the largest number of posted workers were Germany (311,361), France (161,954) and Belgium (125,107). Those posting the most workers were Poland (227,930), Germany (226,850) and France (144,256).
The final text, negotiated for more than seven hours, is built on a Franco-German compromise. With respect to the monitoring measures that states can impose (Article 9), it provides for an open list that can be completed by member states, after being notified to the European Commission. On the principle of joint and several liability (Article 12), the other stumbling block, the text gives member states more flexibility than what was proposed in the Franco-German compromise. The agreement imposes in the construction and public works sector a system of mandatory joint liability on the main contractor with its subcontractors, with no application threshold. To ensure the backing of a qualified majority, however, the compromise offers an alternative: in the absence of a system of mandatory liability, member states may take "appropriate implementing measures, in line with national legislation and/or practices, authorising within a direct subcontracting relationship effective and proportionate sanctions against the contractor in order to combat fraud and abuse". In both cases, member states may adopt more stringent rules.
It was the change of position by Poland - initially in favour of a closed list of monitoring measures and voluntary joint liability - that scuppered the blocking minority. "We are not completely pleased with this text, but it was the least objectionable scenario," explained a Polish diplomat. He noted that Poland - the country with the largest number of posted workers -...