Negotiators avoided the worst on the issue of social dumping: a long day of meetings, on 27 February, ended with a tentative agreement on the directive on enforcement of legislation on the posting of workers. They resolved the tough issue of control measures and administrative requirements - which had paralysed the talks - with an open list of measures to be "communicated" to the European Commission.
The text under discussion, presented in March 2012, is meant to improve implementation, monitoring and enforcement of the core working conditions for posted workers laid down in Directive 96/71/EC, without modifying its provisions. Numerous cases of fraud brought to light in recent years attest to recurring problems in regulating situations where workers are sent temporarily to a member state other than the one where they habitually carry out their work to provide clearly defined services.
The tentative deal now has to be validated by the two co-legislators to be deemed adopted: the Committee of Permanent Representatives (Coreper) will adopt its position on 5 March (after an information session on 28 February) and the European Parliament's Committee on Employment and Social Affairs (EMPL) will act on 18 March. If adopted, the new rules will apply from 2016 (in two years) and can be reviewed in 2019 (three years after transposition).
OVERVIEW OF NEW RULES
The new directive aims to improve cooperation between member states on both monitoring and enforcement. It starts by establishing an indicative and non-exhaustive list of criteria permitting the host state, with aid from the member state of establishment if necessary, to identify a real posting situation (and to uncover bogus self-employment at the same time). A recital states that the absence of a document on applicable social legislation may be an indication of a bogus posting situation. The text notes that not every element must necessarily be satisfied, but that "situations presenting the same factual elements should not result in a different evaluation". When a bogus posting situation is found to exist, special attention should be given to the provisions of the Rome I regulation aimed at assuring that employees are not deprived of protection.
The implementing directive also improves access to information, both for member states and those providing services. It requires member states to designate one or more competent authorities on their territory (this can include contact points) and to...