The European Parliament and Commission both regretted the failure of the Council's negotiations on the draft directive on the posting of workers. On 15 October, the employment and social affairs ministers stumbled on the question of joint liability in the subcontracting chain, whereby a direct subcontractor can be held liable for non-payment of the salary of a posted worker. As a result, the EP rapporteur, Danuta Jazlowiecka (EPP, Poland), who has had a negotiating mandate since June, asked the heads of state and government to settle this highly political matter at their European Council, on 24-25 October.
A posted worker is one sent to a member state other than the state where he usually works, for a limited period and in connection with the provision of services. Under a directive adopted 17 years ago, such workers are subject to the working conditions (working time, holidays, well-being at the workplace, etc) and pay conditions in force in the host state. In the wake of several cases of fraud, the Commission proposed, in March 2013, to revise its rules in order to clarify implementation. Two camps immediately formed in the Council: the Western states on one side (apart from the UK) defend a prescriptive approach, while the Eastern states, concerned about arbitrary obstacles to free movement, prefer to keep a fair degree of leeway to keep from creating additional red tape. This split is particularly obvious on the question of administrative requirements and control measures (Article 9) and that of joint and several liability in the subcontracting chain (Article 12).
THREE ROUNDS OF DISCUSSION
The Council discussions got under way in the morning based on a compromise proposal presented by the Lithuanian Presidency, which set out an indicative but non-exhaustive list of control measures to be overseen by the Commission. It also authorised (but did not impose) the principle of joint and several liability in the subcontracting chain, whereby a direct subcontractor can be held liable for non-payment of a posted worker's salary. After the first airing of views, the Lithuanian Presidency presented a new compromise proposal requested by 11 states (the UK, Poland, Hungary, Romania, Latvia, Estonia, the Czech Republic, Slovenia, Ireland, Slovakia and Croatia). This time it proposed an indicative but non-exhaustive list of "justified, proportionate and non-discriminatory" control measures to be "notified" to the Commission for verification of their...