One of the issues raised up during works on revision of Directive on the Posting of Workers was Directive’s legal basis (which is also the legal basis of the proposed revision). Committee JURI (Legal Affairs) of EP voted an opinion, stated that existing legal basis is appropriate. However, Committee suggested that additional legal basis, including social rights, should be taken into consideration. Such enlargement may have a negative impact on posting of workers in the European Union.
So far, both Basic Directive(96/71/EC) and Enforcement Directive (2014/67/EU), as well as Committee’s proposals are based on regulations concerning freedoms of the EU internal market (including freedom to provide services) – art. 53.1 and 62 TFEU.
It is consistent with constant jurisprudence of ECJ. ECJ stated, that if legal act has two aims or two elements and one of those aspects may be indetified as main and second one as auxilary, than this legal act supposed to have one legal basis (namely by the main or predominant purpose). The act should have few legal basis only when has parallel objectives or parallel elements, which are inextricably linked and none of them is secondary.
So far, it was considered that Directive on Posting of Workers fulfills mainly freedom to provide services which explains the existing legal basis. European Parliment Legal Service agreed to this point of view, recognising this as a sufficient.
… and this are proposed changes by Committee JURI
Committee JURI (Legal Affairs) on their extraordinary meeting voted on the opinion (13 votes support, 11 against and 1 abstention) stated that existing legal basis is adequate. However, Committee has added that art. 153.2 TFEU should be taken into consideration as an additional legal basis, especially if EP will put more emphasis on protection of posted workers’ rights. This provision provides for possibility to adpopt specific labour law rules setting out minimum requirements concerning i.a. improvement of the working environment and work conditions.
Consequences of the possible extension of legal basis
JURI’s opinion has non-binding, advisory character, however there is a risk that Commitee on Employment and Social Affairs will follow this suggestions. At the first sight, above aims seem to be acceptable in light of Directive’s character. The problem is that art. 153.1 TFEU provides to a Member States a full freedom in shaping the working conditions – directive based on this article are “minimal measures”, state can provide better worker’s protection. However, art. 53.1 and 62 TFEU – current legal basis – do not provide for such procedure explicitly. So that, there is a threat that extanding basis might lead to favouring and legitimising i.a. local authorities, motivated i.a (real or not real) willingness to protect posted workers, creating barriers to undertakings who post workers. Furthermore, extension can lead to giving “in advance” priority to social rights over freedom of internal markets (including providing services) in the future jurisprudence of ECJ.
Prepared by dr Marcin Kiełbasa, legal advisor at LMI
Labour Mobility Initiative