Inter-institutional negotiations (Council of the European Union, European Parliament and European Commission) regarding the “posting of workers” directive have been beset by discord since they began on January 15, 2014. Negotiators struggle to seek compromises on the directive’s key provisions, particularly national control measures and administrative requirements, as well as the principle of joint and several liability.

Originally scheduled to last three weeks, negotiations on the proposal concerning execution of the “posting” directive are moving ahead more slowly than expected. The agenda of the latest meeting, held on February 6, included the provisions of articles 9 (national control measures and administrative requirements) and 12 (subcontracting and joint and several liability), but discussions ultimately focused exclusively on article 9 in the vain hope of arriving at a compromise.

Parliament did indeed propose a compromise to the Council: an open list of national control measures and administrative requirements comprising a common set of compulsory provisions (obligation for European service providers to make a prior declaration of posting to the competent national authorities and obligation to maintain or ensure the availability of administrative documents throughout the posting period).

Furthermore, with regard to national control measures and administrative requirements imposed by Member States, the Parliament proposes eliminating two obligations set out in the Council agreement of December 9, 2103, namely the obligation to notify the Commission, as well as the requirement that such measures be “justified and proportionate.”

Points of consensus, with three articles still pending

The very first negotiating session on January 15 dealt with consensual articles regarding the purpose of the directive (art. 1), definitions (art. 2), liaison offices (art. 4) and access to information (art. 5). A consensus was also reached with regard to the creation of a single official national website.

Negotiations on January 23 and 30 focused mainly on article 3, which sets out the scope of the directive, without achieving consensus for the provision as a whole. Negotiators particularly discussed the “bogus self-employment” status. This issue is especially important to Parliament, which hopes to broaden the scope of the legislation to all workers and not simply salaried employees, in spite of Member States’ reluctance to accept such an expansion.  

Both the Council and Parliament rejected the proposal introduced by the Commission and the Parliamentary rapporteur (Polish MEP Danuta Jazlowiecka – EPP) that there be a common set of factors to characterize posting.

The next meeting, scheduled for February, will deal with the thorny issues of subcontracting and joint and several liability (art.12), while also refocusing attention on provisions that have yet to be finalized (art. 3 and 9). In the hope of arriving at a compromise before the end of the month, negotiators have advanced the time line of future meetings (February 17, 18 and 19).