9.6.2017   

EN

Official Journal of the European Union

C 185/75

1.

notes that the freedom to provide services across borders within the EU is guaranteed by Articles 56 to 62 TFEU. The proper functioning of the single market for services not only brings direct advantages for service providers and consumers within the EU but is also an important condition for economic growth, which can be expected to benefit all EU citizens in the form of greater prosperity and a higher level of social protection;

2.

considers a well-functioning single market for services to be particularly important for service providers in regions immediately bordering other Member States;

3.

points out that one important starting point for the free movement of services is that service providers established in one Member State must be able to provide services in other Member States under the same conditions as in their country of establishment. At the same time, one of the prerequisites for a well-functioning single market for services is for competition — including cross-border competition — not to be primarily based on labour costs but on factors such as the quality of the service provided and the efficiency of the service provider’s work;

4.

notes that the differences between Member States, particularly in terms of wage costs, mean that the posting of workers in the context of the free movement of services is liable to put downward pressure on remuneration in the country to which the workers are posted. Where competition with regard to terms and conditions of employment is unfair, there is a risk that this could lead to social dumping in the host country. This social dumping puts downward pressure on prices, endangering businesses which do not use posting;

5.

considers it essential to strike a reasonable balance between the free movement of services, on the one hand, and protection for posted workers and against wage and social dumping, on the other, in order to achieve public acceptance for the functioning of the internal market in the EU, particularly among people working in service sectors where posting is and can be expected to be common practice. Underlines, however, that in order to effectively fight social dumping, there is a need for measures to also protect the self-employed as well as those carrying out work intermediated by digital platforms;

6.

also considers a reasonable balance between the interests that the Posting of Workers Directive aims to serve to be a prerequisite for healthy and fair competition within the service sector in cross-border situations;

7.

in this context, can, as a point of departure, endorse the principle on which the Commission’s proposal is based, i.e. that the same work at the same place should be remunerated in the same manner;

8.

considers that not knowing the administrative requirements relating to the hiring of workers imposed by the host Member States and the difficulty that some businesses (especially SMEs) have in complying with them may hinder the free provision of cross-border services within the EU and jeopardise the protection of posted workers. These problems could be alleviated if the Commission and Member States were to draw up clear and easily accessible information and assessment mechanisms dealing with these aspects;

9.

shares the Commission’s view that there should be a time limit beyond which the law of the host country must apply in full to a posted worker, but sees no overriding reason why the rules in Regulation (EC) No 883/2004 should be used as the basis for setting the time limit beyond which the law of the host country applies in full to employment relationships in posting situations. In the Committee’s view, the time limit in the Posting of Workers Directive should be 12 months;

10.

also takes the view that the circumstances in which the law of the host country is fully applicable to the employment relationship must not result in the posted worker being put into a less favourable position in practice;

11.

observes that the Commission’s proposal to replace the term ‘minimum rates of pay’ with ‘remuneration’ fits in well with the European Court of Justice’s judgment in, for example, Sähköalojen ammattiliitto ry (C-396/13) and its interpretation of the term ‘minimum rates of pay’ in that case;

12.

points out that, if only the mandatory elements of remuneration and calculation bases in the host country can and should be used when calculating pay within the meaning of the directive in the relevant Member State, it will still not be possible for the host country to require employers to pay posted workers what would be regarded as a ‘normal’ or average wage for the work in question in the host country;

13.

welcomes the proposal that the constituent elements of remuneration applicable to workers posted to the host country should be published on the official national website that each Member State has to set up pursuant to Article 5 of the Enforcement Directive in order to improve access to information prior to posting;

14.

considers that, overall, the Commission’s proposal to use the term ‘remuneration’ instead of ‘minimum rates of pay’ and its other proposed changes to that part of the text mean that the Posting of Workers Directive will strike a reasonable balance between ensuring that service providers can provide cross-border services within the EU without undue barriers, on the one hand, and protecting posted workers and preventing unfair competition, on the other;

15.

feels, however, that it needs to be made clear that the Posting of Workers Directive itself does not in any way affect the Member States’ exclusive competence when it comes to decisions on pay issues within the framework of their respective labour market models;

16.

agrees with the Commission that the obligation to apply the host country’s conditions in the fields set out in Article 3(1) of the Posting of Workers Directive in the construction sector should be equally applicable whether the remuneration is set by law, in a collective agreement that has been declared universally applicable or in another collective agreement as referred to in the first or second indent of Article 3(8);

17.

draws the Commission’s attention to posting situations arising with cascade subcontracting practices, which lead to the dilution of the responsibility of the employer and sometimes to posted workers being abandoned, with no access to assistance or support. A European support fund would allow swift intervention, ensuring that these employees can return to their countries of origin under the best possible conditions. Also suggests setting up a European register placing undertakings that post workers under an obligation in all Member States to declare the posted worker at the latest upon commencement of the provision of services;

18.

notes that the skills of posted workers are very often deliberately underestimated by the employer so as to justify a lower level of remuneration. This practice is likely to persist as a way of circumventing the equal treatment obligation with regard to pay. The Commission should investigate the establishment of a European directory of occupations and vocational skills in order to remedy this situation and protect the interests of employees without recognised qualifications;

19.

notes that the deadline for implementing Directive 2008/104/EC on temporary agency work was 5 December 2011. One of the objectives of that directive is to protect temporary agency workers, and it sets out, among other things, the principle of equal treatment with regard to conditions such as pay, leave and working hours (Article 5);

20.

shares the Commission’s view that application of the Temporary Agency Work Directive’s principle of equal treatment should also be mandatory in cases where the temporary agency is established in another Member State and the work is a posting within the meaning of the Posting of Workers Directive;

21.

notes that 14 national parliaments/chambers in 11 Member States (Bulgaria, the Czech Republic, Croatia, Denmark, Estonia, Hungary, Latvia, Lithuania, Poland, Romania and Slovakia) have submitted reasoned opinions on the basis of a subsidiarity assessment, which means that the proposal has received a ‘yellow card’;

22.

notes that the Posting of Workers Directive governs which of a host country’s terms and conditions of employment a service provider established in another Member State is required to apply to workers posted in that host country. Neither the current directive or the directive amending it aims to harmonise conditions between the Member States;

23.

points out that the changes in the directive can only be made at EU level — it is not possible, under the Treaty rules on the freedom to provide services across borders within the EU and the Rome I Regulation, to regulate at Member State level which employment law conditions are applicable in a posting situation;

24.

points out that the Enforcement Directive, which had to be transposed by the Member States into national law by 18 June 2016, contains tools to enable the Member States to limit abuse and social dumping as a result of posting (namely fraud, circumvention of rules and exchange of information between the Member States). The Committee takes note of the fact that the revised Posting of Workers Directive and the Enforcement Directive are to a great extent mutually reinforcing legal instruments and therefore keenly awaits a full assessment of the impact and consequences upon the posting of workers of the Member States’ implementation of the Enforcement Directive;

25.

further stresses that there are still problems with ensuring consistency in the implementation of checks on posted workers in the various Member States, the Enforcement Directive merely providing for bilateral cooperation between Member States; agrees therefore that the objective of the proposed revised Directive, that is, a common definition of the rules applicable to the posting of workers, can be better achieved at EU level;

26.

considers it necessary to promote the exchange of data between reporting bodies or social insurance institutions in the posting and host Member State, as well as to introduce reporting requirements for social insurance institutions in the host Member State as effective measures against bogus posting and the establishment of companies for the express purpose of bogus posting, and against unfair competition on the basis of lower social security contributions. If a tendency should arise for companies to be set up with the express purpose of bogus posting, the possibility of requiring a minimum period of employment of a worker in the posting Member State before he or she can be posted would have to be considered.