Monti II Regulation and Enforcement Directive on

Monti II Regulation
Enforcement Directive on
Posting of Workers
CBSP Committee
7 November 2012
Jorma Rusanen
The issues
1. Monti II Regulation
2. Enforcement Directive on Posting of
1. Monti II Regulation
• The European Commission gave its proposals on Monti II
Regulation and enforcement Directive on posting on 21
Mars 2012
– The two proposals were considered as a package by the Commission
– A Regulation ”on the exercise of the right to take collective action
within the context of the freedom of establishment and the freedom
to provide services”
– A Directive ”on enforcement of Directive 96/71/EC concerning the
posting of workers in the framework of the provision of services”
• The Commission withdraw its proposal for a Regulation on
12 September 2012
• What happened and why?
Monti II Regulation (2)
• The European trade unions said NO to the Monti II
Regulation proposal because it undermined the right
to strike
– The overall impact of the Regulation in the proposed form was
damaging for the fundamental right to take collective action
• The ETUC warned the Commission, that it would not be able to
support Monti II if a solution were not found to key issues
• Till June 12 national Parliaments issued a ”yellow card” on the
Commission proposal for a Regulation
• The European Parliament and some Governments supported
the trade unions opinion
=> So, the Commission had to recognise that its proposal did
not get the political support within the EP and Council to
enable its adoption
Monti II Regulation (3)
• ETUC and ETUF’s were particularly concerned about
the following three points in Monti II proposal:
– Proportionality test
– Fundamental rights do not take precedence over
economic freedoms
– The alert mechanism was likely to cause further obstacles
to the exercise of the right to strike
• Legal base of the proposal
– The EP’s role: only to approve or reject, no amendments
Monti II Regulation (4)
What should happen next?
• The trade unions welcomed the Commission’s decision to
withdraw its proposal for a Monti II Regulation
• But the withdrawal of the proposal did not solve the problems
created by the European Court of Justice in the Viking and
Laval judgments
• The ETUC threrefore continues to call on the Commission to
put forward a proposal for a social protocol to be attached to
the European Treaties
– The protocol should clarify the relationship between fundamental
social rights and economic freedoms
2. Enforcement Directive on Posting
• Enforcement Directive on Posting [COM(2012) 131 final]
– The proposal falls short of European trade union demands for a revision of
the Posting of Workers Directive
– However Commissioner Andor assured that the Enforcement Directive
would not exclude further action for a revision
– So, the proposal is a step in the right direction to prevent abuses
• Content of the draft Directive
– Proposal contains innovations for better control and enforcement but is weak and
also too restrictive
– In order to avoid ”forum shopping” the relationship with the Rome I Regulation
needs to be clarified
– Definition of posted worker; the criteria should be more precise
– Introduction of a joint and several liability mechanism; but proposal needs
strengthening  BusinessEurope’s attacks
– Commission tries to restrict the national control measures
– Directive: normal co-decision making process in the EU institutions =>
cooperation with the EP necessary
Enforcement Directive (2)
• Reality: extremely complex networks of subcontractors
– A contractor can evade regulations and collective agreed labour
• => Joint and several liability is indispensable to protect
workers from abuses
– Liability must apply to any sector of liability (Commission: only
construction sector)
– Mandatory chain liability is indispensable (Commission: direct
subcontractor situations)
– No ”due diligence” loophole (Commission: a contractor
due diligence check cannot be held liable)
that has taken
Enforcement Directive (3)
• What next?
• The ETUC’s and ETUF’s suggestions for
amendments for the European Parliament
• The EP Committees: EMPL and IMCO
• Timetable in IMCO:
– Deadline for amendments 6 Nov, vote 18 Dec
• Timetable in EMPL:
– Deadline for amendments 13 Dec, vote 21 Feb
• The European Parliament plenary April/May
Enforcement Directive (4)
The ETUC Resolution (December 2011):
Firm and fair ‘rules of the game’ in the single market
Trade unions’ demand for a Social Progress Clause is more relevant than ever
Posting: finding the right response to the challenges caused by the ECJ cases
– The social objectives of the PWD must be restated
– The fundamental right to collective bargaining and to take collective action must be
– The PWD must only cover situations of temporary postings
– The minimum character of the PWD must be restored
– The different industrial relations models must be more clearly respected
– Public authorities should be allowed via social clauses in the procurement contract
to demand observance of locally applicable collective agreements
– The very restrictive interpretation of public policy provisions must be revised
(Article 3.10 PWD)
– Effective monitoring and enforcement mechanisms must be put in place
Thank you for listening!
[email protected]

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