Posting of workers (debate) 
President
The next item is the oral question to the Commission on the secondment of employees. (0-0041/2007-B6-0312/2007) by Mr Andersson on behalf of the Committee on Employment and Social Affairs.
Jan Andersson 
rapporteur. - (SV) I believe it was Jacques Delors who said that the internal market for goods and services would never succeed without a strong social dimension. Why did he say that? What he meant was that we must not use poor working conditions, low wages and so on to compete with each other in the internal market. Why not? Because European workers would never accept such a policy. The flexicurity debate also shows that we cannot use low wages and poor working conditions to compete with countries outside the EU. Nor, then, can we adopt a similar approach within the EU.
It is in that perspective that we should view the Posting of Workers Directive. The Posting of Workers Directive has come about with a view to guaranteeing fair and decent working conditions for employees: wage conditions, working times and other working conditions. Minimum rules have been talked about, but if we are to proceed on the basis of the Advocate General's opinion in the Laval case it is not minimum rules but, rather, normal rules that should apply. That is what the Advocate General goes so far as to say in his opinion. That is important for employees. It is important if they are to have decent conditions, and it is also important for companies. If we had not had these regulations, we should have benefited those companies that pay poor wages and those that have rotten working conditions. There would have been no competition-neutrality - something that is important for both employees and companies.
The Commission has produced an interpretation. I can say that there are parts of it with which we agree, but that there are also parts with which we disagree. Allow me to begin with those parts with which we agree. A better exchange of information is needed between the authorities in the various Member States. Those companies that happen to operate in another country need to be significantly better informed of the conditions in that country. This is an area in which we can do a lot in the future.
The Commission has looked at case law and has sometimes come up with over-interpretations, but sometimes also with correct interpretations. When it comes to third-country citizens, we have no views on the interpretation produced by the Commission, but when it comes to a number of other matters we do not share the Commission's approach.
Allow me to give two examples. The first concerns the requirement for a representative. In this area the Commission has produced an over-interpretation of the existing conception of justice. The case that exists is about the need to force the representative to be resident in the country in which the activity is taking place. We are not laying down that requirement. That being said, it is important that countries be able to make demands of a representative who is not just anyone but who has a genuine mandate to represent the company. That is important in my country, where we have collective agreements, and it is also important in other countries from the perspective of the authorities and in terms, for example, of the conditions of the working environment. It must be possible to make demands of a representative who has a mandate to speak on behalf of the company.
The next issue is that of social documentation. There are legal cases to which the Commission refers. We are concerned here with Belgium and with the issue of whether documentation should be kept for five years. That is an unreasonable length of time; I can agree about that. However, documentation is needed to show who is employed and working and what wages and working hours they have. Such information is undoubtedly needed during the period that the work is being carried out and also for a reasonable period thereafter. We are, of course, aware that a certain amount of cheating goes on in these matters, so a reasonable period after the work has been carried out is needed.
The mistake made by the Commission is to have over-interpreted in its communication. It has over-interpreted the case law. The requirement for a representative is important, as is the demand for social documentation. The Commission states that we must not challenge any labour market model within Europe. That is an important statement, but that is precisely what is being done when criticism is directed at those Member States that lay down requirements in terms of representatives and social documentation. If it is not permitted to lay down such requirements, it is of course impossible to have a regulated labour market and impossible to maintain our labour market model. It is, then, another model that we are speaking of, and that is something that the Commission should take on board. Germany has put forward precisely the same criticism as the Nordic countries have done.
Finally, I should just like to address the issue of balance. Those countries that do not exercise any control at all should also be criticised. There are countries that do not have sufficient controls in place, which means that employees perhaps work in conditions that do not comply with the requirements of the Posting of Workers Directive. These countries should come in for criticism.
Vladimír Špidla
Member of the Commission. - (CS) Madam President, honourable Members, on 13 June 2007 the Commission adopted the final communication relating to the 2006 communication, in which it expressed its full support for the Member States' objective of stamping out illegal practices in the labour market. The Commission acknowledges that national bodies must carry out appropriate checks in order to ensure that service providers comply with national working conditions.
Nevertheless, assessments of the progress made since 2006, which the Commission carried out on the basis of information from the Member States and the social partners at EU level, indicate that some measures implemented in some Member States are disproportionate and overstep the mark in terms of what is needed in order to guarantee effective protection for posted workers. As the June 2007 communication pointed out, it appears that this situation has arisen from ineffective cooperation between the relevant bodies in the Member States and from inadequate access to information.
In its communications, the Commission points out that as regards the free movement of services, which is enshrined in the EC Treaty, rules can be restricted only on grounds of overriding public interest, for example the protection of workers, and these reasons must be appropriate. We should assess on a case-by-case basis whether particular national measures can be viewed as justified and appropriate - for example the requirement to have a representative who is resident in the host country or the obligation to hold certain documents relating to social and labour conditions in the host territory for monitoring purposes.
The Commission is looking very carefully at the situation in every Member State so that it can determine which control measures might be deemed unjustified and inappropriate. Where necessary, the Commission will initiate proceedings on grounds of non-compliance with obligations, so that Community law can be enforced.
Let me stress that the Commission is also examining the possibility of whether measures adopted by individual Member States are adequate and effective. If not, they will proceed in the same way, because the objective is to protect workers effectively without hindering the internal market.
The Commission does not currently intend to publish any further guidelines. The final decision on compliance with national measures rests with the Court of Justice, which has already issued a number of rulings, and not with either the Commission or Parliament.
As regards cooperation on information, checks carried out by the Commission demonstrate that there has been an encouraging improvement. Yet further improvement is essential. The Commission is therefore proposing to enhance and strengthen administrative cooperation with the Member States, above all to bring together other interested parties - in particular the social partners - that play an important role in monitoring compliance with the rules.
Assessment of enforcement measures indicates that although the implementation of the directive has not led to many formal complaints or legal proceedings, there are some problems that require further consideration, such as the effectiveness of cross-border enforcement of sanctions or the protection of workers in the case of multiple subcontracting. The Commission would like to involve the social partners and the Member States in that work.
Lastly, I should like to stress that the June 2007 communication demonstrates that, as a matter of principle, the Commission does not in any way wish to undermine the various social models of the Member States nor the way in which Member States organise their systems of labour law relations and collective bargaining. It is of course the Commission's job to guarantee that European Community law is strictly complied with, and in cases where inappropriate measures have been adopted, leading not to the protection of workers but rather to restrictions on the freedom to provide services in the internal market, the Commission has to take action, as enshrined in the Treaty.
Philip Bushill-Matthews
on behalf of the PPE-DE Group. - Madam President, one of the challenges of trying to produce an oral question followed by an immediate resolution in a very short space of time is to get it to reflect fully everything we want it to say. I think on this occasion, as in maybe some others, the very rush has meant that not all of us agree with the wording of every detail of the resolution. That is not meant to be a criticism of political opponents on the other side of the House. It is just meant to be a comment, a statement of where it is.
I would like to add - unofficially in any response and consideration the Commission gives to this - the following question. If the current directive is not being implemented satisfactorily in all Member States, could the Commission please consider taking a bit more time out to understand why? Are there some intrinsic problems with the directive? Are there some issues that certain Member States still have with it? So rather than us just forcibly saying 'the directive is the directive is the directive, thou shalt implement it without delay', please can we look at listening a little bit more, because I am sure there is something we can learn. In principle, we are all for having a directive in this area so that there is clarity.
The final thing I would just say is certainly from this side of the House. We are interested in helping workers being posted. We are interested of course in their security of work conditions, but we are interested in promoting their mobility. We are not interested in using this as a device for protectionism to prevent workers being posted.
Anne Van Lancker
on behalf of the PSE Group. - (NL) Mr President, Commissioner, I can tell you that my group has very mixed feelings about this new communication by the Commission. On the one hand, it is, of course, good that the Commission wishes to continue to focus on the implementation of the Posting of Workers Directive, because, almost weekly, we get to hear about new cases of social exploitation of employees posted elsewhere, a situation which, moreover, has placed a considerable strain on our working conditions in our countries. On the other hand, we have the distinct impression that the Commission still has not managed to strike the right balance between guaranteeing the freedom of provision of services on the one hand and protecting employees on the other.
It should be clear to you, Commissioner, that a number of control measures which Member States have taken, including the requirement to keep documents in the workplace, imposing posting of workers declarations or the presence of an authorised representative, are essential in order to be able to protect the working conditions of workers posted elsewhere.
It is, moreover, abundantly clear, Commissioner, that Member States can only rely on their own national measures, because the desperately needed transnational cooperation between administrations and access to the necessary information is virtually non-existent, and international force mechanisms simply do not work. Nevertheless, the communication suggests that a host of these measures are incompatible with Community legislation, and you even threaten to institute infringement procedures, even before the desperately needed steps have been taken to guarantee the flow of information, to allow cooperation between the Member States to really function and to put an effective system of penalties in place.
Needless to say, my group welcomes the Commission's intention to set up a permanent high-level committee to help the Member States enhance their cooperation. Administrative cooperation is not enough, though, Commissioner. What we also ask for is a European platform for cross-border cooperation between the competent inspectorates of the Member States. Until this aspect has been addressed, a crucial instrument to enforce compliance with the Posting of Workers Directive will be lacking.
Anne E. Jensen
on behalf of the ALDE Group. - (DA) Madam President, Commissioner, I wish, on behalf of my group, to support the approach chosen by the Commission in connection with this directive, namely that of putting its faith in the provision of better information and in enhanced cooperation between Member States and, in cases of serious infringement, in taking Member States to the European Court of Justice.
Unfortunately, we do, of course, have to recognise that, in an enlarged EU with large differences in income, there is a lot of insecurity, including insecurity associated with this subject. On the one hand, there is the fear that employees posted to another Member State will work under poorer social conditions than normal in the host country and that this situation will create a threat to security of employment. On the other hand, there are still many bureaucratic obstacles to the free exchange of services in the EU. These factors impede competition and mean that people receive poorer services. What, of course, the Posting of Workers Directive is precisely designed to bring about is a proper balance between the freedom to provide cross-border services and the simultaneous maintenance of labour market protection in the host country. At consultations in the Committee on Employment and Social Affairs, we have previously been told by employers' representatives and unions that the Posting of Workers Directive is, in actual fact, good enough, but it is very complicated. Employers and employees do not, therefore, have a good enough knowledge of their duties and rights, and that is a situation that we must do something about. It needs to be simple and straightforward to do things in a law-abiding way, and such a state of affairs needs to be brought about through the provision of information - understandable information, mind you - in people's own language. People also need easy access to help in solving problems.
The Commission has observed that the Member States do not always have confidence in the information exchanged between countries, and I therefore think it a good idea now to strengthen the ongoing cooperation between the Member States in this area. Moreover, the Dublin Agency on Living and Working Conditions should take it upon itself to exchange good practice and, in that way, involve both the labour market partners and the Member States in a positive process.
On the issue, mentioned by Mr Andersson, of the host country requiring there to be a representative and on the issue of documentation at the workplace, I too think it important that we maintain the right balance, and I really do basically think that this balance is what the Commission has found. That is the background to our amendments to the report. The representative need not necessarily be physically present in the host country. That is something on which we agree, and I should like to see it made clear.
Regarding the reference to the Laval or Waxholm case, I think we must await the final decision before using the matter as guidance as to the state of the law.
That concludes my observations.
Elisabeth Schroedter
on behalf of the Verts/ALE Group. - (DE) Madam President, Commissioner, the present debate is also a warning: if this communication is yet another attempt to smuggle the deleted Articles 24 and 25 of the original Services Directive through the back door, then this House will unambiguously reject it. The Posting of Workers Directive is there to protect workers, and this protective function must remain sacrosanct.
In the Posting of Workers Directive the local principle prevails, which means, amongst other things, that all measures by Member States that serve to protect posted workers and protect their interests are legitimate and desirable. The Directive is a law for a free internal market for services. But this freedom cannot come at any cost. It is not the go-ahead for social dumping.
I am tired of having to make armchair decisions about the theoretical possibility of providing evidence of fair pay in the worker's country of origin within two or four weeks. The situation on big and small building sites all over Europe tells a different tale. The lack of possibilities for checking payslips on site gives additional opportunity to criminal machinations.
Surely that is not something you want to take the responsibility for? Go and see the building sites for yourselves before proceeding any further. See how workers are deprived of fair wages, and how social dumping distorts fair competition on those sites. Equal pay for equal work in the same place must be the overriding principle.
Mary Lou McDonald
on behalf of the GUE/NGL Group. - Madam President, first of all we need to remember that the Posting of Workers Directive is about workers' rights, and it just lays down minimum standards in terms of pay rates, holidays, working hours and so on. Without the Directive, workers are open to all sorts of abuses through post-box companies and bogus self-employment, a fact which some employers have not been slow to exploit.
However, it seems to me that, in its emphasis, the Commission gives primacy to removing obstacles to the provision of services and the orderly functioning of the internal market. I believe the resolution associated with this oral question represents a step back from existing Parliament positions, most recently expressed in the Schroedter report. The fact is that the Commission has not enforced the Directive, and many Member States ignore its provisions. These failures should not be sidestepped in arguments about proportionality or protectionism. When Parliament adopted the Services Directive, those of us who were concerned about its impact on workers' rights were assured that the proper enforcement of the Posting of Workers Directive would deal with our concerns. That has not happened, and the Commission has failed to enforce this Directive properly. This leaves many workers exposed, without the minimum standards necessary to avoid exploitation and abuse.
Thomas Mann
(DE) Madam President, On 13 June the DG Employment notified the Commission that some Member States are not implementing the Posting of Workers Directive conscientiously, Germany included. My country is accused of exercising excessively stringent controls, and thereby driving workers from other Member States away. How provocative can you get? I expected a different position from a Commissioner whose fairness I otherwise greatly value.
Although cooperation between sending countries and recipient countries is important, it cannot replace effective controls. Our common aim must be to secure worker protection, to prevent social dumping and to uncover and punish illegal working. But this can only be done if we have valid documents, which should be in the language of the host country. The following should be ready for presentation: work contracts, pay calculations, timesheets. The General Prosecutor at the European Court of Justice supports this view, because inspectors will obviously have considerable problems with documents that have not been drawn up in the language of the respective country.
Secondly, in order to allow notices to be properly sent, the recipient must prove an address in Germany, and not just a mail-drop abroad that has been specially chosen for anonymity and everyone is obliged to appoint as an official representative anyone they consider appropriate. The place of work could also be an address. This I consider to be a fair solution.
Threatening infringement proceedings are an insult. In Europe, Commissioner, things must be fair, not least as regards controls. Mr Špidla, I ask you, please keep the sense of scale and balance we are used to seeing from you.
Jean Louis Cottigny
(FR) Madam President, Commissioner, ladies and gentlemen, I am one of those who thinks that posting of workers is an opportunity for the European Union and its citizens. An opportunity both in economic terms and in terms of contributing to strengthening the European idea. Workers who are posted on European territory are first of all Europeans and they must be treated as such, which, to my mind, means that for the same job in the same territory, no inequality should be allowed.
One of the problems raised today by the Directive 96/71/EC is that, on account of the lack of harmonisation of national systems in relation to labour law and the disparities existing between new and old Member States in this field, a fear arises that this directive will allow arbitration between Member States and be linked with 'social dumping'. I repeat once more: it is from the top that social Europe must be built, and not by smashing to bits its social acquis, as some here would like. I cite as evidence certain amendments tabled on this report in relation to modernising labour law.
In this field, I advise them not to play at alchemy, at the risk of finding themselves confronted with uncontrollable social conflicts. To my mind, in order to avoid these pitfalls, Member States must be able to continue to retain some restrictions but also, when they receive workers on secondment, they must be able to impose certain conditions. I think in particular that workers on secondment must have authorised representatives who must be independent. They must be able to supply relevant information regarding working hours and health and safety in relation to this work, so that they can be guaranteed protection. Employees on secondment must make a prior declaration, so that the social partners in the host countries, where wages are fixed by collective bargaining, can come into play to negotiate directly with the home company of the seconded workers.
We must, however, go further still in this field by giving further thought, for example, to establishing a minimum European wage. We must have a political commitment to convergence towards a floor of social rights common to all the European Union. It is with such practices that we put ourselves on the road towards a social Europe, a united Europe, a Europe of workers that we all wish for.
Evelyne Gebhardt
(DE) Madam President, Commissioner, when we were discussing the services directive, we stated quite clearly and definitely that it should in no way affect social rights in Member States. That is why we removed the infamous Articles 24 and 25 from the directive, because it should not be possible to override these rights by exploiting loopholes.
We also agreed that, to clear up any ambiguities, the Posting of Workers Directive should be amended if any problems arise. I would like to remind you of this compromise, which the European Commission also agreed to, and would like to demand this agreement again.
Commissioner, I share your view that lack of, or poor, cooperation among the authorities is one of the main reasons why we are having such problems with the Posting of Workers Directive, but do you really believe that by removing opportunities for control, documentation and everything else that is needed for control, will improve poor collaboration? On the contrary, lack of documentation and poor cooperation among authorities equals social dumping pure and simple. I cannot believe that that is what you really want.
So let us work together towards improving administrative cooperation, and to open the market for services and the markets for workers at the highest level of social protection. Then we will be doing something positive for Europe, and, instead of a destructive approach to the Member States, strive positively for solutions that really will help things to progress. That is the direction we should take. Otherwise we will end up not achieving what we set out to do.
Proinsias De Rossa
Madam President, I am disappointed that Commissioner Špidla has told us today that he does not propose a new communication on this issue.
If European workers are to move from Member State to Member State without triggering a race to the bottom, we must ensure that the law is clear, that there are standards applied commonly across the European Union and that they are fully implemented. The Posting of Workers Directive, as it stands, does not meet those criteria, nor do the guidelines which the Commission published only a year ago. Right now, we need the Commission to insist on the retention of documents in the Member States where a worker is posted and we need to insist on an identifiable employer who carries legal responsibility for compliance. Even that will not be enough unless all Member States put in place compliance mechanisms and severe penalties for breaches of the law.
There is no possibility of progress on issues like flexicurity and reform of labour law unless we deal with issues such as workers' security in this area. Workers in Europe will not stand for a diminution of their rights or a race to the bottom. We will not get any legislation through this House which weakens their rights in any way unless they can see that there are advantages for them in preventing a race to the bottom. I believe the short-sightedness of the Council and the Commission in this area is unbelievable, and it is simply inexplicable if they are serious about creating a European social union.
Vladimír Špidla
Member of the Commission. - (CS) Honourable Members I should like to make it clear that the correct implementation of the posted workers directive is not, under any circumstances, a back door through which we are seeking to weaken and compromise the protection of workers in the European labour market. Quite the opposite, correct implementation of the directive will lead to the effective protection of workers, and this is of vital importance. It is not true at all that the Commission is placing restrictions on monitoring powers: let me state categorically that any measures that a Member State deems necessary, and which are proportionate to the objective, will of course be correct and applicable.
I must also point out that the decision on this directive, did not take place in some ivory tower any more than the decision on the communication did - it has been discussed on countless occasions on the ground with the social partners. I feel that when it comes to implementing laws, we all know where to draw the line between instances when the law becomes a matter of mere bureaucracy, and fails to achieve its objectives, and on the other hand instances when it achieves different and incorrect objectives. Checks must therefore be thorough and effective, but within the framework of an applied method, as the directive and the law in general do not allow everything. In other words, not everything will be acceptable - only that which falls within the framework of the law, and which is effective and is proportionate.
As regards amending the directive, which has been suggested, I should like to say that Parliament has itself addressed this issue at least twice or three times before, as have the social partners, and no overriding position was formulated whereby the directive could be recast in a substantive way. On the contrary, the positions formulated were always in favour of improving cooperation and implementation. I should also like to point out that the implementation is a matter for the Member States, and the Commission is responsible for ensuring that implementation is carried out within the framework of European law. It also has an obligation to use the legal resources at its disposal. In this regard, the Commission of course checks what the situation is in labour markets in the individual Member States and proceeds in a considered way, as is laid down in the law.
It is of course extremely important to improve administrative cooperation. It is also important to improve cooperation between individual monitoring bodies in the Member States, and the Commission will proceed and channel its efforts in this direction. If it is shown in subsequent debates that there are grounds for extending the law, this point will certainly be opened up, and fervently debated. At the moment, neither the preliminary political debate in Parliament nor the debate with the social partners suggests that it would be right to take any new legislative action in this field.
Honourable Members, I must stress once again that the objective of this directive is the effective protection of workers, and any monitoring measures that contribute to effective protection will be appropriate. Member States that do not carry out effective monitoring are in breach of the directive. It is clear that monitoring in any area must be pursued in a manner which is proportionate, in the legal sense of the term, and we are often in dispute over what is proportionate. The Court of Justice in Luxembourg has the authority to settle such disputes between European institutions.
President
To wind up the debate, a motion for resolution has been tabled under Rule 108(5) of the Rules of Procedure.
The debate is closed.
The vote will take place tomorrow, 11 July 2007.
