Opinion by JURI Committee (Legal Affairs) – a way to extend legal basis of the Posting of workers Directive

​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.

Current situation… 

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

Photos: http://audiovisual.europarl.europa.eu 

Labour Mobility Initiative 

Labour Mobility Initiative is Europe’s largest think tank dealing with work mobility and posting of workers. Since 2013 it has been bringing together scholars, enterpreneurs, trade unions and public administration to create the only Polish and the largest European substantive forum for exchanging knowledge on the posting of workers in the framework of freedom to provide services. More >>>