Implementation of the posting of workers directive following the judgments of the Court of Justice (debate) 
President
The next item is the Commission statement on the implementation of the posting of workers directive following the judgments of the Court of Justice. This is an important matter, which has given rise to a series of misunderstandings and, above all, various rumours and concerns in some of our countries, and therefore we are going to follow this debate with a great deal of interest, and in particular the statement that Mr Spidla is to make on behalf of the Commission.
Vladimír Špidla
Member of the Commission. - (CS) Mr President, ladies and gentlemen, in its June 2007 communication entitled 'Posting of workers in the framework of the provision of services: Maximising its benefits and potential while guaranteeing the protection of workers', the Commission highlighted some shortcomings in the implementation and cross-border enforcement of the Posting of Workers Directive.
At that time we came to the conclusion that these problems could be solved only if the Member States stepped up their mutual cooperation and, in particular, if they discharged their obligations concerning administrative cooperation and accessibility of information, as stipulated in the Directive.
Correct and effective implementation and enforcement are the key elements in the protection of the rights of posted workers, while insufficient enforcement weakens the effectiveness of the Community Directives in force in this area.
Consequently, on 3 April this year the Commission adopted a Recommendation on better cooperation in order to remedy the shortcomings in the implementation, application and enforcement of the existing Directive. The Recommendation focuses in particular on better exchange of information, improving access to information and exchange of best practices.
Better administrative cooperation should therefore lead to greater protection of working conditions in practice, lower administrative burdens for companies, more effective monitoring of the discharge of existing obligations to observe working conditions, and provision of effective controls.
The Recommendation also proposes the creation of a High-Level Committee that should directly involve the social partners, who are closest to the problems on the ground, and lay the basis for closer cooperation between labour inspectorates. This Committee could be the appropriate forum to discuss a wide range of issues stemming from the implementation of the Posting of Workers Directive.
The Commission is convinced that this Recommendation lays the basis for a more intensive fight against infringements of workers' rights and undeclared work, and that it improves working conditions for migrant workers throughout the European Union.
It is up to the Member States now to take the necessary steps to improve the implementation of the Posting of Workers Directive. The Recommendation is expected to be approved by the next Employment and Social Affairs Council on 9 June.
The Commission then intends to evaluate the implementation of the Directive in the light of the latest European Court of Justice decisions, while cooperating closely with the European Parliament on the preparation of its own-initiative report.
The Commission is fully committed to ensuring effective protection of workers' rights and will continue to combat all forms of social dumping and infringements of workers' rights.
It should be stressed that there is no conflict between consistent support for workers' rights and support for a competitive internal market, which gives us the means to preserve Europe's social well-being. If our society and our economy are to continue to flourish, we have to give equal priority to social aspects and to competitiveness.
Gunnar Hökmark
(on behalf of the PPE-DE Group). - (SV) Mr President, I would like to thank the Commissioner for his presentation, and I welcome the fact that he emphasises the importance of greater cooperation between the Member States and the responsibility Member States have for implementing the Posting of Workers Directive correctly.
I think it may be justified in this debate to emphasise one thing, and that is that since 2004 we have seen rapid change in the European labour market. We have gained increased mobility. It is important to say that the various horror scenarios which were spread at the time regarding the consequences of increased mobility have proved to be false. There was talk of welfare tourism and countless other problems.
In fact today there are one million Europeans posted in different countries. Also it is the Member States where we have seen the greatest openness which have also seen the best labour market development and pay setting. The Posting of Workers Directive has helped to ensure better opportunities for individuals and has also contributed towards the European economy and a European labour market. One million people!
We must remember this when discussing the three different court cases. This is because once the court has issued its judgment, we see that it is a question of different situations in different cases. What is also important, however, is that there is nothing in this to say that there are no barriers to different kinds of industrial action in the different Member States. There is nothing in the court judgments which means that they conflict with different types of collective agreements or other pay-setting arrangements. On the other hand, the Member State must have legislation and society must function, in order to permit and encourage mobility. It is in this context that I also think it is important that we now develop better cooperation, and that the different Member States make sure that they implement and evaluate this so as to combine mobility with social security and stability for everyone in Europe. We must not blame the EU for the problems which exist. Instead we must take responsibility in the different Member States, and we must welcome the increased mobility and the wellbeing which can be seen as an opportunity provided by the Posting of Workers Directive.
Anne Van Lancker
on behalf of the PSE Group. - (NL) Mr President, I would like to thank the Commissioner for the recommendation for improved administrative cooperation and better options for the labour inspectorates. However, Commissioner, you are aware of the fact that our delight about this has been negated by the Laval and Rüffert rulings? These caused a great commotion, not only in the Socialist Group in the European Parliament, but also among the trade unions outside Parliament and among the countries that are currently ratifying the Lisbon Treaty.
We have long thought that the Posting of Workers Directive was an excellent directive with a clear principle. In view of the fact that we cannot ensure that wages and working conditions are equal throughout Europe, it is not unreasonable for employees to be able to expect equal treatment in the place where they work, regardless of their nationality. It is right that the Posting of Workers Directive does not employ a comprehensive State of employment principle, but simply imposes a number of binding conditions. Yet the directive also allows the Member States the space to impose more generous provisions for the protection of workers, in accordance with their own social traditions and in keeping with collective agreements or generally binding collective agreements.
The rulings took away the ground of equal treatment from under our feet. The minimum protection provided by the directive is gradually becoming a maximum. For a long time now, it has no longer been a problem of poor transposition in certain Member States. Our awareness is growing, however, that the basic philosophy of the directive is wrong and that is: workers should be protected, but in moderation. Social rights to negotiate and strike exist, but on the condition that they do not interfere with the free movement of services. This is not a question of xenophobic remarks; on the contrary. Foreign employees are more than welcome. Indeed, the free movement of workers guarantees equal treatment from day one and that is also what we want to achieve with regard to the free movement of services.
My group therefore requests a revision of the Posting of Workers Directive for three reasons: firstly, to ensure that the equal treatment of native and foreign workers is guaranteed; secondly, to guarantee that national systems for social dialogue are fully respected; and thirdly, to ensure that fundamental social rights are safeguarded for everyone. We are relying on your support, Commissioner.
Anne E. Jensen
on behalf of the ALDE Group. - (DA) Mr President, I would like to thank the Commissioner for his statement. There have certainly been many strong reactions to numerous judgements by the Court of Justice in recent times. Some observers feel that, on account of the Laval judgement, among others, the Treaty of Lisbon should be amended and that the Court of Justice should be restrained. I would like to say that this is overshooting the mark and is due to the fact that people on certain sides would like to put a spanner in the works and make people believe that the Treaty of Lisbon could represent a problem for the legal security of employees. On the contrary, the Treaty of Lisbon will mean more rights for employees.
Other observers such as Mrs Van Lancker believe that the Posting of Workers Directive should be amended. Again, I would say no. I do not think that this should be done in the first instance. I believe, like the Commissioner who proposed it, that we should first do some thorough work to see how the Posting of Workers Directive is implemented in practice, and assess the possibilities for safeguarding against social dumping within the framework of the applicable legislation.
I also think that we should await the reaction of the Member States. In this connection I am perhaps particularly thinking about the Laval case. The final judgement has not been reached in the Laval case in Sweden, and there are many aspects to this judgement - both the obvious discrimination against foreign enterprises, which we cannot support, and also the unclear information given to the enterprise. In Denmark a working committee has been set up by the government, consisting of social experts - both legal experts and social partners - to assess how the latest judgement harmonises with the Danish model, which is agreement-based and governed by legislation only to a very limited extent. I think that it would be useful to await the outcome of this committee's work. It is a fast-working committee and will complete its work by June.
As is often the case in politics, the devil is in the detail, and it is therefore important that we retain a balanced attitude towards these questions. It is only a year and a half since we had a thorough discussion in Parliament of the Posting of Workers Directive and carried out a consultation process with social partners. Everyone said that the Directive was good, but difficult to implement in practice. Employees do not know their rights and employers do not know their obligations well enough. Therefore, our conclusion is that there is a need for better information and better cooperation; this is something that you, Commissioner, are now also proposing. We have, for example, also proposed that the Dublin agency be used, which represents both governments and social partners in order to develop good practice in this area. I would very much like to hear what is happening in this area. I can well understand the fear of social dumping; however, I feel that we must deal with this issue wisely. It will take a long time if the Posting of Workers Directive is to be amended, and it is therefore important that we investigate all the possibilities in order to secure the basis for flexible labour markets such as the Danish labour market under the applicable rules. It is a question of ensuring that we can actually have flexible labour markets.
The right to take industrial action will not be threatened by the judgement; however, there should be a balance regarding matters connected with conflicts. I think that it is important to emphasise that the rights of employees will be strengthened by the Treaty of Lisbon and that both social partners and governments must work together irrespective of boundaries in order to make the legislation work better and to operate without friction. This is the way forward!
Roberts Zīle
on behalf of the UEN Group. - (LV) Thank you, Mr President, Commissioner. The verdict in this case truly offers hope that the European Court of Justice understands the European Union's four basic freedoms in real terms. On this occasion the term 'social dumping', which is so popular in this Parliament too, did not work in a case where the objective was to ban a business from another Member State from providing services in the EU internal market. In this discussion, I would like to single out one political aspect: EU Member States, and among them, largely, states such as Sweden, have in recent years made enormous profits in the Baltic states through the provision of 'aggressive' financial services, particularly loans for immovable property. We have never restricted the flow of this capital, even when the profits were exceptionally high and were partly obtained through the singular social dumping of exports - that is, Latvians who worked in these banks received salaries that were nowhere near the pay received by Swedes for the same work in Sweden. Now, during the financial crisis, many Latvian families will be paying through the nose for a long time for the money they have borrowed, but our people and our businesses will not be able to compete in the EU market, and so they will not be able to pay back these debts. As a result, it will in reality be the Swedish pension funds and other bank shareholders themselves that will lose out. Ladies and gentlemen, we are all in the same European boat: let us allow Europe's basic freedoms to be truly free, as we will all gain! Thank you.
Elisabeth Schroedter
on behalf of the Greens/ALE Group. - (DE) Mr President, ladies and gentlemen, all the court judgments concern cases in which the trade unions have taken internationally recognised collective measures for action against social dumping. In all three judgments the European Court of Justice recognised that the trade unions had a legitimate right to take these measures. The Court of Justice, however, challenged this right in relation to the internal market.
In the Laval and Rüffert cases, the legal minimum standard was interpreted as the only maximum standard valid on the internal market. The European Court of Justice therefore interpreted the Posting of Workers Directive in a very specific way. The legislator did not, however, intend it that way. In considering the Directive, the free trade in services must be promoted in fair competition and employees' rights must be guaranteed. The Posting of Workers Directive also contains a most-favoured nation clause for employees and this was not taken into account in the court judgments.
The Court of Justice is now creating a situation in the European Union in which the Posting of Workers Directive has been changed from a minimum directive to a maximum directive and in which it is legitimate to assert a competitive advantage over social dumping. International social law should now be subject to charges for enterprises on the free internal market. It may be that I am thereby criticising the court judgments. However, a Union without equivalent elements of a social Europe, such as collective bargaining agreements, collective measures and combating social dumping, is doomed to failure and will no longer have the citizens' support. Our group's response therefore at this point is: the principle of 'equal pay for equal work in the same establishment' must occupy an equivalent position in the internal market with regard to the criteria of freedom.
Francis Wurtz
on behalf of the GUE/NGL Group. - (FR) Commissioner, first of all, I would like to note for the record that my colleagues from the Conference of Presidents, who decided on a late-night debate against my wishes, are all absent this evening. Were it not for this being a late-night debate, I would be pleased to have finally initiated a discussion of this serious matter, which is the recognition by the Court of Justice of wage dumping, a matter that you just spent 20 seconds on, Commissioner, in a remarkably offhand manner.
Therefore, I will briefly outline the three stages of this new dimension of European law. 11 December 2007: the Court quashed a trade union action claiming that the Finnish shipping company Viking Line should not be allowed to register its ferry in Estonia to reduce workers' wages. 18 December 2007: the Court again found against the unions, this time in Vaxholm, Sweden, for blockading a building against a Latvian company which was refusing to observe the collective agreement applicable to the building sector. 3 April 2008: the Court found Lower Saxony in Germany guilty of imposing a minimum salary on any construction company awarded a procurement contract. The Court then found in favour of a Polish subcontractor of a German company, which was paying its workers less than half the prescribed minimum wage. This was the Rüffert ruling.
In all three cases, the fundamental reason invoked by the Court to justify its decision to encourage wage dumping was that Community law prohibits any measure - take note - likely to 'make less attractive' the conditions of a company from another Member State because this is - and I quote - a 'restriction on the freedom to provide services' or the freedom of establishment, which are among the fundamental freedoms guaranteed by the Treaty. This is quite simply unacceptable. Where is the social aspect of this liberal reasoning?
Effectively, any social progress in a country will make a market less attractive - to use the Court's expression - for competing companies. I should add that, in all three cases, the famous Posting of Workers Directive has not offered the slightest protection to the workers concerned. Incidentally, the Court explained that, and I quote, the 'directive seeks in particular to bring about the freedom to provide services'. It did not mention the protection of workers.
Finally, in all three cases, the Court reached its decision in the light of specific articles of the Treaty and not just the directive. These were Article 43, in the first case, and Article 49, in the two others, both being reproduced word for word in the draft Treaty of Lisbon currently in the process of ratification.
My conclusion is therefore clear. Amending a directive to solve the problem posed by these rulings is not sufficient. Anyone who wants to re-establish the primacy of social rights over free trade must insist on a revision of the treaties, and specifically the articles relied on by the Court to justify its recent decisions. This is difficult, but I think that it is necessary, because otherwise we can expect a real crisis over the legitimacy of the current European economic and social model.
Kathy Sinnott
on behalf of the IND/DEM Group. - Mr President, recently, in the Rüffert case, a Polish company paid 53 workers only 46% of the agreed wage for the trade in Germany. The Polish contractor was prosecuted; they responded by taking the case to court, and the ECJ recently voted in favour of the Polish subcontractor.
Not long ago, Mr John Monks, the President of the European Trade Union Confederation, speaking in a hearing in the Committee on Employment and Social Affairs about an earlier case - the Laval case - and warning of future cases, said that 'we have been told that our right to strike is fundamental, but not as fundamental as the free movement of services'.
The trade union movement is rendered powerless by these rulings. The Services Directive and the Posting of Workers Directive represent a direct threat to everything that has been gained in workers' rights in the last 30 years.
There have been three cases - Laval, Viking and now Rüffert - and a body of judicial interpretation is building that renders contracts meaningless, unions impotent and fairness of wages an empty term. As Mr Monk stated in the hearing on Laval, we need a protective protocol in the Lisbon Treaty or face social dumping in the future.
Philip Bushill-Matthews
Mr President, I believe that the Commission first published a guidance document on the implementation of the Posting of Workers Directive back in 2006, and at the time the Socialist Group - in response - led a call in Parliament for a toughening up of the Directive. The Commission did not feel this was necessary then and clearly does not feel it is necessary now, and for the record I agree with it.
The problem lies, as the Commission has so clearly defined, in weaknesses in national implementation, in insufficient cooperation between Member States and in poor supply of information. Toughening up EU legislation would not address these weaknesses. In fact it would make them even more difficult to address.
Finally, I would observe that the Commissioner confirms full commitment to protect workers' rights and to fight against social dumping. We should all agree with that on all sides of the House, but we should also agree that there is another right to be protected: the right of all workers to be mobile, to be posted and to provide services across borders.
The rights of social protection must go hand in hand with the right to provide services, and there need be no contradiction. It is, of course, a major challenge to get the right balance. However, the challenge is for Member States to resolve, not by the EU proposing tougher laws. I suggest that the Commissioner has pointed the way and invite him to agree with me that our role as MEPs should be to get each of our own countries to follow.
Jan Andersson
(SV) Mr President, Commissioner, I welcome the recommendation, and I welcome even more the fact that the Commissioner seeks to combat social dumping and that Mr Barroso and Mr Špidla say that the right to strike does not subordinate free movement. However, your proposal does not go far enough. It does not go far enough to prevent social dumping.
Let us first look at what the court said in the Rüffert and Laval cases. It said that it is the minimum wage in the country of origin which counts, in other words a Polish worker must work in the same workplace as a German worker for 46% of the pay the German worker works for. If you had said that women had to work for 46% of what a man earns, we would have said that this was discrimination. In this case it is discrimination against Polish workers who do not receive the same pay as German workers. This is unacceptable.
Secondly, different social models are not judged in the same way. In the Rüffert case it is pointed out that collective agreements must be universally applicable, and not the model which was chosen in Lower Saxony. The same thing is done in the Laval case. Certain labour market models take precedence over others. This too is unacceptable.
Thirdly, it is said that the right to strike is fundamental, but when it is then weighed against free movement, it does not weigh very heavily, not very heavily at all. Instead it is free movement which takes precedence over it.
Some speakers have said 'yes, but we must have free movement'. Of course we must, but how do we encourage free movement if we dump the conditions in countries? Do you believe that the people living in these countries will say 'we welcome people'? No, they will be demanding closed borders. I am in favour of open borders between new and old Member States, but I am also in favour of equal terms for equal work, and that too must be fundamental. Therefore the Commission must take stronger action regarding amendments to the Posting of Workers Directive.
Pierre Jonckheer
(FR) Mr President, Commissioner, I share the opinion of my colleagues Mrs Van Lancker and Mr Wurtz for the most part. Ultimately the question is how many more poor workers do we want there to be in the European Union? That is the fundamental question.
Without repeating the Court rulings, I see that we have reached a point where the Posting of Workers Directive is being used against national or regional provisions that are designed to ensure a 'level playing field' for all workers, to guarantee a minimum wage for all workers.
We have therefore reached a situation in which this directive undermines the territoriality of the right to work. We can guarantee the mobility of workers, while ensuring the territoriality of the right to work, and that is what is under discussion. Leaving the Posting of Workers Directive behind for a second, I would like to draw your attention to another related subject, to the complaint that the company TNT has filed with the Commission following a judgment by an administrative tribunal in Berlin, claiming that the German government, by imposing a minimum wage in the postal sector, has failed to take into account the economic impact of the minimum wage - we are talking about a minimum wage of EUR 9.80 an hour - on its competitors. We find ourselves in a situation where the minimum wage, which is a national competence, in reality is discouraging competition. This is TNT's interpretation.
The Commission is currently examining this petition. If you or your colleagues and the College, find in TNT's favour in this case, I believe, Mr Špidla, that you will lose all credibility, in this and in other cases, and that it will take more than a recommendation from the Commission on the best information and administrative cooperation between Member States to truly guarantee the dignity of workers in the European Union.
Eva-Britt Svensson
(SV) Mr President, it is the task of the European Court of Justice to issue judgments in line with the Treaties. Therefore the Treaties must be amended in order to protect workers' interests. The conclusion from the Court's rulings in the Laval, Viking Line and Rüffert cases is that the Lisbon Treaty cannot be approved by the wage-earners of Europe unless a clause on workers' rights is added to the Treaty - the right to defend collective agreements, the right to take industrial action to improve pay and employment conditions.
Demanding pay higher than the minimum wage is now a trade barrier according to the Court, and the unions will not be able to prevent wage dumping. On 17 April this year Commissioner McCreevy answered in writing a question I asked on union rights as follows: 'Trade unions can continue to take industrial action provided that this is motivated by legitimate aims which are compatible with EC law.' You cannot put it more clearly than that. EC law must therefore be changed. Free movement, yes, but without discriminating against workers from other countries.
Hélène Goudin
(SV) Mr President, time and time again the European Court of Justice has made it clear to the Member States that they cannot consider themselves independent when it comes to fundamental policy areas such as health policy, gambling policy, alcohol advertising and now, most recently, labour market policy. This is what is known as legal activism, and it must be seen as a direct threat to democracy and the principle of subsidiarity. Owing to its arrogant attitude to the democratically elected governments of Member States, the European Court of Justice is in fact a self-appointed power in Europe.
When it comes to the Laval judgment, it means that Swedish and foreign companies will operate on completely different terms in Swedish territory. This is completely unacceptable. I urge members to think again the next time they decide to grant more power to the EU's unelected institutions. As for today, it seems as though we are waking up at last.
Jacek Protasiewicz
- (PL) Mr President, the Posting of Workers Directive is one of the foundations on which the practical implementation of one of the four basic Community freedoms, which are European freedoms, is based and which has accompanied treaties and the European Community right from the start.
Article 49 of the Treaty is one of the most clearly formulated regulations governing the internal affairs of the European Union, and it states unambiguously that restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended. The persistent practices found in many Member States aimed at administrative restriction of this freedom, which is guaranteed in the Treaty, are therefore surprising.
Since being elected to this Parliament, I have received a flow of complaints from businesspeople originating mainly from the new Member States that acceded to the EU after 2004, against the activities of local and regional authorities that wilfully impose on these businesspeople additional requirements that are not justified in the least by any EU legal act. I have raised this issue on many occasions in this House, demanding an unambiguous statement from the European Commission on behalf of EU law, and consequently in defence of the freedom to provide services.
I am pleased that my efforts have received such a clear confirmation in the ruling of the European Court of Justice that we are discussing today. I am convinced that in the light of recent Court verdicts we - that is, Parliament and the European Commission together - will be able to draw up a formula for the organisation of an internal services market that, while ensuring the fundamental rights of employees, ensuring those rights - those fundamental rights - will not impose extra burdens on EU businesspeople that will hamper their activities and that are by definition - as the Court's rulings state - in breach of European law.
A free market for services and employee mobility should be supported, not fought. These are the challenges of the 21st century.
Magda Kósáné Kovács
(HU) Thank you, Mr President, Commissioner. After several European Court of Justice rulings, the Posting of Workers Directive (96/71/EC) has become a focus of attention in the Union. The Court has spoken. What it actually said might be debated, but that would not be worthwhile as its decision will remain valid, and anyway the Court did not establish a scale of values.
We can see that in Parliament these rulings have given rise to mutually exclusive opinions, but it is good that the Commission has considered what has to be done and has asked the Member States. This is even more important as they are trying to pour oil on troubled waters. It is pertinent that an earlier omission by the Commission unfortunately contributed to the heightened atmosphere, as they still had not thought through the transposition of the Posting of Workers Directive into national systems, although two years before it had been emphatically requested in a European Parliament resolution. So there is no answer as to whether the Member State measures protecting workers conform to the Posting of Workers Directive and, for want of this, we are unable to state whether the Posting of Workers Directive is really working well or if it needs to be amended in the light of the laws of the service market. There are no lessons on implementation, at most there are violently clashing statements. We are moved by the question of whether this uncertain situation gives some scope to populism and demagogy. And are we not creating a political problem from accidental legal shortcomings? It may be that we have produced political tension where there should only be sober-minded regulation.
Ladies and gentlemen, the freedom of the service market operates, with very few exceptions, within the provisions of legislation. On the other hand, specific measures are required to make good the law. We hope for these specific steps from the Commission, since a comprehensive examination of the legal material cannot be undertaken by the Court. That is for the Commission to do. And it is the Commission's job to initiate proceedings against violations of the law, where necessary. This could reinforce Mr Spindla's words, that we have to act simultaneously and together, in the interests of the legal rights of employees and in the interests of the social market. Thank you.
Gabriele Zimmer
(DE) Mr President, Commissioner, I disagree with you in that there would be no discrepancy between strong social protection of employees and a strong internal market. An EU internal market that complies with the system of global competition is ultimately the incarnation of this kind of opposition. I do agree with you, however, that Member States bear responsibility for the transposition of EU law into national law. At least in the Rüffert case, the rulers in Berlin and Lower Saxony do not simply point the finger at the European Court of Justice.
They have failed in general to explain the law on collective bargaining authoritatively and to demand the legal minimum wage. Commissioner, I demand that you discharge your responsibility and openly demand the necessary requirement to amend the EU legal bases. This concerns Article 50 and Article 56, for example, of the consolidated version of the Lisbon Treaty of 15 April, the sharpening of the Posting of Workers Directive, the granting of the right to take industrial action and the cross-border right to take industrial action. I also refer to the fact that the review of the political problems should not simply be left to the ECJ, but that here both the EU Institutions - the Council, the Commission and the European Parliament - and the nation states bear responsibility for this through their legislation.
Elmar Brok
(DE) Mr President, Commissioner, ladies and gentlemen, the Treaty of Lisbon will mean a considerable improvement for employees - Mr Wurtz, I have to contradict you here. We therefore have to accept it because social policy is becoming a duty across the board. Everything in future has to be checked by legislative means from the viewpoint of social policy and the definition of the social market economy as provided for in the Treaty represents substantial progress.
We need competitiveness, we need more productivity - and this must certainly be a headline in a global order - but in all three cases we note that it is not a matter of competition in a global order here, but rather whether work was carried out in certain sectors in the European Union between its Member States as part of a common internal market.
We must not get into a situation in which global order is used here to set employees from different Member States up against one another on the basis of international competitiveness. If employee solidarity is destroyed, the European Union, the cohesion of our societies, will also be destroyed.
For this reason it is important that we are not now taken to task by the courts, but that we make it clear that we have to examine the legislation. The Posting of Workers Directive dates from the beginning of the 1990s. It no longer applies today. We have to find out what is wrong with it. I do not know in detail. Collective bargaining partners must check that they are concluding their collective bargaining agreements in accordance with the internal market. National legislation must be adapted to it. We have to check all this. At the same time this must not lead to partitioning and protectionism because mobility should be guaranteed.
When we address the four basic freedoms, we mean the four basic freedoms of the market. However, my definition of a social market economy means that market can take place only within the framework permitted by the legislator so that we have a fair distribution of the benefits of this economic order and do not leave them to the free play of market forces. If this happens, the market will devour even itself. We therefore need this kind of framework condition of a social market economy.
Mr President, allow me in conclusion to read out a quotation. 'Not the free market economy of the laissez-faire plundering of a past era, nor the free play of market forces' - and similar phrases - 'but the socially responsible market economy, in which the individual comes into his own again, which places a high value on the person and subsequently also provides a fair return for work carried out; this is the market economy of a modern type'. This is a quotation by Ludwig Erhard, of whom it definitely cannot be said that he was against a market economy.
Stephen Hughes
Mr President, let me say how much I agree with Mr Brok and how much I disagree with Mr Bushill-Matthews, but I will come to that in a moment. I would like to thank the Commissioner for the recommendation adopted on 3 April. It is an important step in the right direction. I believe that the more effective exchange and access to information and the exchange of best practice will certainly help, but it was one of those strange quirks of timing that the recommendation was adopted on the same day that the Rüffert judgment was handed down. I think the Laval and Rüffert cases in particular require us to go much further than that recommendation now.
Those cases raise the prospect that the economic freedoms can be interpreted as granting undertakings the right to evade or circumvent national, social and employment laws and practices. The only protection, it seems, are the provisions of the posted workers directive. If that is the case, then it is clear that we need to revisit the directive. In particular, we need to clarify the scope for collective agreements, to set mandatory standards, and for collective action to enforce those standards.
I think we need to do a number of things. We need to ensure that host country collective agreements can provide for higher than minimum standards. We need to make mandatory what are currently only options for Member States, such as applying all generally binding collective agreements to posted workers. I think we also need a clear time limit for the definition of a posted worker, so that there is a clear idea of when a posted worker ceases to be a posted worker.
Finally, for now, I think we need to broaden the legal base of the directive to include freedom of movement of workers, as well as the freedom to provide services. That was a proposal which was rejected back in 1996, but I hope we can see now how important it is.
It is the Court that has said that the right to strike and the right of association are fundamental rights, but not as fundamental as the economic freedoms. Trade unions might be forgiven for thinking that they are suddenly living on Animal Farm. We owe it to them to restore a proper balance. I think these modest proposed changes to the posting of workers directive would be a start.
Søren Bo Søndergaard
(DA) Mr President, when we considered the Treaty of Lisbon in February, both my fellow Members and I proposed that the right to take collective industrial action should belong within the competence of the Member States. Unfortunately, the majority of you voted against this and now the following question must be raised: why did you do it? The only logical explanation and the logical consequence is that the cross-border pursuit of the biggest profits possible by employers will ultimately take precedence over the right of employees to defend themselves against social dumping. You might of course believe this, but you must then stop talking about a social Europe.
Employees in every country must have the unconditional right to take industrial action in order to ensure that migrant workers receive at least the same salaries as themselves. This is not discrimination. We do not believe that migrant workers should have lower salaries than workers who already live in the country. We are against discrimination and action must therefore be taken. The alternative is social dumping. This is a downward spiral. Therefore, using whatever means necessary, we must at least secure the free and unrestricted right to take industrial action through a legally binding protocol in the Treaty of Lisbon.
Jacques Toubon
(FR) Commissioner, it is true that we are extremely disappointed to see how the freedom of provision of services is being applied in case law. One might be forgiven for thinking that, in some interpretations, the ECJ has sought to establish the pre-eminence of articles 43 and 49 over every other consideration. However, I am wary of Manichean analyses of these case-law decisions, which, as you all know, are first and foremost test cases.
I believe that the question we need to ask ourselves is how to guarantee the social acquis. More specifically, we need to answer two questions. Firstly, what wage level must companies be subjected to under the national laws of the host country? Secondly, to what extent can we restrict the collective action of trade unions intended to ensure equal treatment of national and posted workers?
In answer to these questions, I do not believe in a change in the Posting of Workers Directive. I even think that we would be taking a huge risk in attempting this. Conversely, I find the European Trade Union Confederation's proposal for a social clause more interesting. I think that this is quite simply, as Mr Brok said, a case of applying the treaties, both old and new: Article 3.3, Article 6.1 and the Charter of Fundamental Rights, which is now substantive law.
We also need to enforce - and the national parliaments could supervise this - the principle of subsidiarity in all that concerns the right to work, workers' rights and the right to strike in particular.
In the more immediate future, the French Presidency is about to launch the Social Agenda. For you, Commissioner, the Commission must go further than the point that you made and the minimum administrative recommendation for a more political text, taking full account of the uncertainties arising from case law.
Karin Jöns
(DE) Mr President, Commissioner, ladies and gentlemen, closer cooperation between national administrations is, of course, right and proper. I welcome this. It is even essential.
However, if we all genuinely want to avert a race for the lowest minimum wage in Europe, we need more, and you know that, too, Commissioner. According to the Rüffert judgment, there is only one solution in my opinion. We have to improve the Posting of Workers Directive. The Commission is also required to do this.
We have to draw legislative consequences from this judgment because it reverses the intention of the Posting of Workers Directive. The freedom to provide services is placed higher than the protection of employees here. Even the planned change from minimum to maximum protection is explained. In my country, Germany, 8 out of 16 federal states are directly affected by this judgment. The regional governments just wanted to serve as models here on wage dumping matters.
Based on the Posting of Workers Directive as well as on the procurement directives, they wanted to ensure compliance with certain social criteria, at least when awarding public contracts. They have therefore demanded compliance with local standard wage rates as a social criterion, since these are above the minimum wage.
It is difficult for me to understand the decision of the Court of Justice. If we really want social criteria - and I think we all want this - then it must be possible to achieve even more than a minimum wage. The judgment should not entrap us into continuing to authorise minimum standards alone in future for posted workers. This is not the social Europe that my group wants. To be on the safe side, we also need to examine the procurement directives carefully.
Back in Germany, the judgments of the European Court of Justice on employment addressed this evening have created a back flash in Europe's acceptance. We are all now being asked to change tack again here.
Alejandro Cercas
(ES) Mr President, Commissioner, if we were dealing with a minor problem I would understand that a simple recommendation dealing with exchanging good practice and incorporating more efficient information could resolve the problem. However, Commissioner, the problem is that we are dealing with a major problem, which I regret very much was not even mentioned in your speech.
The problem, Commissioner, is that currently we have consistent case law from the Court of Justice that states that workers from one country may work in another country for less than 50% of the salary, under a directive which, it has to be said, was created precisely to prevent this.
Therefore, if it is possible to have legislation in force that allows this situation, we clearly have a fundamental problem that cannot be solved purely by solving information problems.
Secondly, Commissioner, we have a problem in that the various national union practices on setting salaries and collective agreements are left out. Finland, Sweden, Denmark and Germany have been left out. This is therefore a massive problem, not for those countries, but for the whole of Europe, which is seeing how its national laws are being undermined, and how Europe is not only failing to guarantee better protection for its workers but is breaking the systems of national protection.
In view of this situation, Commissioner, I do not think that we can look the other way. I do not think that we can prescribe aspirin when what is needed is major surgery, and I think that we need to restore a balance between the principles of workers' rights and the rights of the market, because otherwise not only social Europe but the whole of Europe will go this way.
Dariusz Rosati
(PL) Mr President, Commissioner, the aim of the Posting of Workers Directive is to ensure the freedom to provide services while at the same time guaranteeing employee's rights. In my view this Directive has benefited of the European Union, and the criticism I am hearing today here in this House is to a large extent unjustified.
I would point out that in the Rüffert case, which we are discussing, violation of social standards and the setting of wages at the scandalously low level of 46% took place not as a result of any defects in the Posting of Workers Directive, but simply as a result of the failure to implement part of the relevant legislation of Lower Saxony in the manner envisaged in the Posting of Workers Directive. We are consequently dealing here with a problem implementing legislation within Germany, not with defects in the Posting of Workers Directive. We have a similar situation in the Laval case, where there is in turn a situation in Sweden where minimum pay is not prescribed either by statute or in a collective agreement in the manner envisaged in the Posting of Workers Directive. It is my view, therefore, that the way out of this situation is primarily through the adaptation of national legislation to the provisions of the current Directive, although I concede that there are many matters that could still be improved in the Directive, and in these matters I support the Commission's opinion.
I would also like to take this opportunity to speak about the concept of social dumping, which has been very frequently mentioned here. I note that the concept of social dumping does not exist either in international law or in economic theory. It is purely a propaganda term. One cannot speak of dumping in a situation where posted workers - Poles in Germany or Latvians in Sweden - receive a remuneration that is higher than what they would get in their own country. Nor can one speak of social dumping in a situation where there are no binding social or wage standards for all countries, and the reason there are no such standards is that the level of development of our Member States is different, and in addition, policy differs from state to state.
Manuel Medina Ortega
(ES) Mr President, I think that it is clear that the judgment of the Court of Justice threatens the very foundations of the European Union. It is clear that the Court of Justice is the highest body for interpreting European Union law, and there is no one right now who wants to weaken that institution. This case law, however, as Mr Cercas pointed out, threatens the principle of social cohesion. For many people in Europe, a European Union that does not guarantee minimum social rights does not deserve to exist and therefore we are threatening the very existence of the European Union.
As we cannot go against the judgments of the Court and we have to comply with them, the time has clearly come for the institutions with legislative power - the Commission, Parliament and the Council - to adopt measures to ensure that this case law does not become permanent, because it is case law attached to specific legal texts that can be changed.
It appears that the Court itself is inviting us to make this legislative change, and I think that it is now the responsibility of the Commission, first of all, but also of Parliament and the Council, to change the legislative texts in order to prevent this case law from becoming permanent.
Monica Maria Iacob-Ridzi
(RO) The legislative provisions we are discussing today could improve the lives of more than one million European citizens working in another Member State as suppliers of services or posted workers.
In particular the provisions of Article 3 of the Directive are not implemented entirely in every European Union Member State. Work health and safety standards, the maximum number of working hours and the minimum period of leave or maternity benefits are not implemented when it comes to posted workers.
Moreover, the minimum wage provided by the host country legislation should be guaranteed. Nevertheless, this last issue makes very many companies resort to alternative labour contracts, which automatically prevent the payment of lower wages.
Moreover, it has become a practice for many European companies to hire workers from new Member States and send them abroad as posted workers for a period that can be extended up to 24 months, thus taking advantage of the differences existing as to the payment of contributions to social insurance.
I end by saying that this type of social dumping must be stopped by implementing all the provisions of the Directive on the posting of workers.
Genowefa Grabowska
(PL) Mr President, a lot of remarks have been heard in this House, as well as some very critical evaluations, of judgments - judgments by the European Court of Justice. I would appeal for calm.
Judgments by the European Court of Justice are not, after all, political in nature; they are based on a penetrating analysis of actual states of affairs and law in the Member States. This is the role of this agency, and let us respect it. Let us take a calm approach to this. Let us not react badly to these judgments when they do not suit us and well to them when they please us. Such à la carte justice should not motivate us, and we should not accept it.
The second matter to which I wish to draw attention is this: let us not allow confrontation to arise between employees in the old and the new Member States. It would be the worst thing if we brought trades unionists from the old Member States into confrontation with trades unionists from the new Member States. This is not what justice in the European Union is supposed to be based on. I am warning against this.
Marian Harkin
Mr President, at the moment in Ireland we are debating the pros and cons of the Lisbon Treaty and there are conflicting interpretations of the recent rulings from the Court of Justice and their implications for the protection of workers and workers' rights.
While I know we do not have a final ruling on the Laval case, I would ask the Commissioner to briefly outline his reaction to the situation and his views as to how the transposition and implementation of the Posting of Workers Directive in Sweden in particular has impacted on the judgment on the Laval case.
A previous speaker, Mr Andersson, made the very valid point that, if a woman was paid 46% of what a man was paid for doing the same work in the same country, it would be considered as discrimination. Yet this seems to be sanctioned by the courts when it comes to workers from different countries doing the same work in the same country. Again, I would like the Commissioner's comments as to how the transposition and implementation of the Directive impacted on this situation.
Finally, I listened very carefully to what the Commissioner said when he spoke about guaranteeing the rights of workers and combating social dumping, but I am not entirely satisfied that his proposals and suggestions will accomplish that aim, and I look forward to hearing more robust proposals from the Commission.
Georgios Toussas
(EL) Mr President, the European Court of Justice's three judgements on Viking Lines, Laval and Rüffert are based a single premise. That premise stems from the four freedoms of movement of capital enshrined in the Treaty of Maastricht, the Directives on the internal market and on the posting of workers, as confirmed by Articles 43 and 49 in the renamed European Constitution, which is the Treaty of Lisbon.
The judgements of the European Court of Justice are political and deeply reactionary: big business groups impose mediaeval terms of employment to increase their profits.
Not only are the rights to strike and to collective bargaining being called into question, but there is a third important factor that I should like to add. International labour conventions, which have been signed and ratified through the International Labour Organisation (ILO), are being called into question. For this reason, equal pay and equal work for all workers must be guaranteed.
Workers from the countries joining the EU after 1 May 2004 owe nothing to anyone. Together with all the other workers of Europe, they should fight to improve working conditions and pay. There should be equal pay for equal work.
Małgorzata Handzlik
(PL) Mr President, the posting of workers is indissolubly linked to the freedom to provide services. By its decision, the Court of Justice supported this, in my view, supremely important principle of the common market.
I would, however, like to express my disenchantment with the fact that regulations still exist in the Community market that are out of line with the Posting of Workers Directive. Let us not forget that the Directive is aimed at helping both workers and contractors. Situations in which key provisions of the Directive are interpreted differently in the different Member States are also inadmissible. Workers are not aware of their rights, and Member States do not monitor whether the provisions of the Directive are being correctly applied. Proper implementation and execution of these provisions is, after all, key to the efficient functioning of the internal market.
This is why all measures, whether in the form of administrative cooperation or of pointers to the proper application of the Directive, are essential actions. I do hope, however, that the result of such initiatives will be an improvement in the interpretation of the provisions, and not yet more complaints about non-existent social dumping.
Katrin Saks
(ET) Mr President, colleagues. I too am a big fan of equal treatment as a principle and can honestly say that sometimes I find it very difficult to understand why, for the work I do in this House, I receive a much lower salary than my western colleagues (ten times less than the Italians). However, I understand that it will take some time for salaries in Europe to equalise.
Today I am left with the impression of great hypocrisy here. Many people take the floor and speak on behalf of the one million posted workers, fighting for their rights. But let's be honest - most speakers are not in fact representing those one million posted workers here, but are instead protecting their own labour market. Because of this I am very pleased that the Commissioner has promised to establish a committee to examine this matter. A very unfair impression has been left here by these three cases. It was, however, necessary in order to report on areas where there is exploitation, where there is social dumping, where there is insecurity. Fortunately, in these three cases there was none.
The free movement of services is in all our interests. I have been waiting for a plumber to come to my flat in Brussels for three weeks - the drains are blocked. At night, I can promise you, the legendary Polish plumber haunts my dreams.
Vladimír Špidla
member of the Commission. - (FR) Mr President, ladies and gentlemen, thank you for all your contributions. It has been very interesting hearing them. I think that we have had a rich and lively debate here today. I have also taken note of the various opinions expressed. These differences of interpretation and points of view have led me to treat this subject with caution.
The debate has also revealed the enormous complexity of the subject and the difficult legal issues that arise here. The three Court of Justice rulings are all specific. It would be wrong to draw general conclusions from them. First of all, it is up to the Member States concerned to assess what they need to do in a national context to comply with the Court rulings. I would also like to endorse the constructive approach taken in Sweden and Denmark to bring about this compliance.
However, today has shown that it is important to have an in-depth discussion so that we can give the appropriate response to the problems raised. This is precisely one of the priorities of the Commission at this time. We have effectively decided to continue this discussion as we prepare for a new Social Agenda. This Agenda, which I will unveil next June before the College, will of course include the results of a wide-ranging consultation launched on the new social realities. It also follows on from the Commission Communication on 'Opportunities, access and solidarity: towards a new social vision for 21st century Europe'. This is a real opportunity to promote new solutions to respond to the challenges faced by our European societies.
Among these challenges are, of course, demographic change and the increasing pace of technological progress, but also the social impact of globalisation. The diverse forms of mobility among workers and the rise in migration, which is probably inevitable, pose new challenges to which we must respond. These are questions that we must address in order to preserve and strengthen our European social model.
I am convinced that the Social Agenda is the right vehicle to propose an initial response designed and tailored for the challenges of mobility to ensure protection for workers. The debate that the European Parliament is about to have in the context of its own initiative report will also be a step in the right direction. The Commission is also committed to playing an active role in this and to facilitating discussions and the search for solutions.
I want to work with an open mind, setting high standards that are in tune with social and economic realities. I want us to progress constructively and confidently. The complexity of social realities makes it harder to formulate 'turnkey' solutions. We need to spend more time discussing the Social Agenda. By doing this, a more protective and global approach will emerge for the Community's workers.
President
The Commissioner's speech brings the debate to a close.
I must acknowledge that, although it is not typical of the Presidency to say so, I am closing it with a degree of perplexity. This must be because for 30 years of my life I have been fighting to ensure that a Spanish worker in Sweden or Germany does not earn less than a German or Swedish worker, and because for 20 more years I have been fighting to ensure that a Polish, Romanian or Moroccan worker does not earn less in Spain than a Spanish worker.
(Applause)
Written statements (Rule 142)
Pedro Guerreiro  
The recent judgments of the Court of Justice in the Laval-Vaxholm case in Sweden, the Viking Line case in Finland and now the Rüffert case in Germany simply serve to clarify the real objectives and priorities of this European Union.
To be more specific, the 'primacy' of the principle of 'freedom of establishment', as laid down in Articles 43 and 46 of the Treaty, which prohibits any 'restrictions on the freedom of establishment'.
The Court of Justice considers as a 'restriction', and therefore 'unlawful' under Community law, the freedom of workers and their representative bodies to defend their rights and interests, namely respect for what has been agreed in collective bargaining.
This legitimises social dumping and attacks on collective negotiation and bargaining in the EU and encourages 'competition' between workers, in practice imposing the prevalence of the 'country of origin' principle, that is to say, paying lower salaries and downgrading protection of workers' rights in contractual relations with employers.
These judgments uncover the EU's class nature and who its neoliberal policies really benefit (and who they are driven by), dispelling all the speechifying about the much proclaimed 'social Europe' and showing how EU policies are an affront to workers' hard-won rights.
Mary Lou McDonald  
in writing. - The way in which the existing treaties are being used to undermine workers' rights is a scandal. The European Court of Justice stated that its judgment on the Rüffert case is in keeping with the provisions of the existing Treaties. The Lisbon Treaty will do nothing to improve this situation.
Protection of vulnerable workers throughout the European Union should have been secured in the negotiations on the Treaty. It was not. The direction in which the Treaty wants to take Europe is one which fundamentally undermines Europe's social model.
In Ireland we have known since Irish Ferries and before that the pre-eminence of the internal market was leading to situations where workers' rights are being undermined.
I support the spirit of the ETUC call for a social progress clause to be inserted into the Treaty I believe that the only way to secure workers' rights into the future is to reject this Treaty and send Member States back to the negotiating table.
A new Treaty could firmly establish that fundamental rights, the right to strike and the right of workers to take collective action to improve their working and living conditions beyond minimum standards, would take precedence over the internal market.
Esko Seppänen  
in writing. - (FI) The Court of Justice of the European Communities has delivered three judgments against the trade union movement, and we can therefore expect more court decisions on cases in the same series. The cases concern Viking Line, Vaxholm (Laval) and Rüffert, and in all of them the Court has interpreted the Treaties from just one point of view, i.e. freedom of competition, ignoring Parliament's will. The proposal to comply with the working conditions of the country of origin in the case of posted workers, as in the 'Bolkestein Directive', was dismissed. Unfortunately, the Court has, with the decisions it has taken in these individual cases, taken on the role of legislator and ignored the interpretation of the will of a genuine legislator, in this case the European Parliament. The Commission should not defend such a breach of competence on the part of this institution.
