kom (2016) 0128 - Bilag 9: Besked fra Generalsekretariatet for Rådet om modtagelse af 'det gule kort' vedr. revision af udstationeringsdirektivet

Beskæftigelsesudvalget 2015-16
KOM (2016) 0128 Bilag 9
Offentligt

Council of the

European Union

Brussels, 8 June 2016

(OR. en)

9970/16

Interinstitutional File:

2016/0070 (COD)

LIMITE

SOC 395

EMPL 262

MI 431

COMPET 363

CODEC 840

INST 253

PARLNAT 180

PE 65

NOTE

From:

To:

No. Cion doc.:

Subject:

General Secretariat of the Council

Delegations

6987/16 SOC 144 EMPL 97 MI 142 COMPET 118 CODEC 279 -

COM(2016) 128 final + ADD 1 - ADD 2

Proposal for a Directive of the European Parliament and of the Council on

the enforcement of Directive 96/71/EC concerning the posting of workers in

the framework of the provision of services

Yellow card

INTRODUCTION

For the third time, a yellow card has been delivered on a legislative proposal and for the first time

on a file under the Ordinary Legislative Procedure (co-decision)

. The threshold of 1/3 required in

Protocol no. 2 to the Treaties has been reached as 14 chambers of national parliaments from 11

Member States, representing 22 votes out of 56 in total, have given reasoned opinions.

Following the yellow card, the Commission is now obliged to review its proposal, which may take

some time.

The two previous cases were both proposals for Council regulations: "Monti II" (proposal on the exercise of

the right to take collective action within the context of the freedom of establishment and the freedom to

provide services) and "EPPO" (proposal on the establishment of the European Public Prosecutor's Office).

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II.

THE COMMISSION PROPOSAL

The Commission refers to the proposal as a "targeted revision" of the Posting of workers directive

from 1996

, in order to "address unfair practices and promote the principle that the same work at

the same place should be remunerated in the same manner". The 1996 directive aims "to establish a

balance between the objectives of promoting and facilitating the cross-border provision of services,

providing protection to posted workers and ensuring a level-playing field between foreign and local

competitors". It sets out a "core set" of terms and conditions of employment of workers that are

posted to another Member State for a limited period. These include guarantees of the "minimum

rates of pay" applicable in the host Member State to the posted workers.

The revision was foreseen in the Commission Work Programme to be part of a "Labour Mobility

Package" together with notably a revision of Regulation 883/2004 (co-ordination of social security

systems).

In its explanatory memorandum under the heading

Subsidiarity,

the Commission states:

"An amendment to an existing Directive can only be achieved by adopting a new Directive."

Proportionality,

it is stated:

"The present proposal complies with this requirement since it does not harmonise the labour costs

in Europe and is limited to what is necessary to guarantee conditions adapted to living costs and

standards of the host Member State for the duration of the assignment of the posted workers.

In a highly competitive internal market, competition is based on quality of the service, productivity,

costs (of which labour costs are but one part) and innovation. The present proposal does not

therefore go beyond what is necessary to achieve its objective."

III. THE SUBSIDIARITY PRINCIPLE AND PROTOCOL NO. 2

Article 5 (3) TEU sets out the subsidiarity principle:

"3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence,

the Union shall act only if and in so far as the objectives of the proposed action cannot be

sufficiently achieved by the Member States, either at central level or at regional and local level, but

can rather, by reason of the scale or effects of the proposed action, be better achieved at Union

level."

Document 6987/16.

Directive 96/71/EC concerning the posting of workers in the framework of the provision of services (OJ L

018, 21.01.1997).

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Protocol no. 2 on the application of the principles of subsidiarity and proportionality sets out the

Commission's obligations in relation to subsidiarity. The Commission should inter alia:

•

carry out wide consultations, where appropriate taking into account the regional and local

dimension;

justify its proposal with the regard to the principle of subsidiarity (and proportionality). A

proposal must be accompanied by a detailed statement enabling an assessment of compliance

with the subsidiarity and proportionality principles, including some assessment of the

financial impact and impact on national legislation in case of directives. The justification must

be substantiated by qualitative and, wherever possible, quantitative indicators.

IV.

OVERVIEW OF THE REASONED OPINIONS

The 14 reasoned opinions come from the parliaments of 11 Member States (BG, HR, CZ (Senate

and Chamber of Deputies), DK, EE, HU, LV, LT, PL (Senate and "Sejm"), RO (Senate and

Chamber of Deputies) and SK). The Annexed table lists the reasoned opinions received

The reasoned opinions put forward a number of arguments of both procedural and substantial

nature. The following arguments are the most reoccurring:

•

the Commission has not, as required, provided a

detailed statement on subsidiarity.

Basing

itself, as the Commission does, on the purely formal argument that the subsidiarity principle is

respected because amendments to an existing EU directive can only be made through an

amending directive, is not sufficient justification in accordance with the requirements laid

down in Protocol no. 2;

•

linked to the above, the Commission has

not consulted widely enough all stakeholders,

such as social partners,

including at local and regional levels, to demonstrate that the issue

cannot be better solved at the national level;

•

further - and mostly referring to specific aspects where provisions are made obligatory instead

of as currently optional, e.g. application of collective agreements in the host state - the

necessity of this proposal and the scale of the problem is not sufficiently backed up

impact studies and data (e.g. arguing that the envisaged legislation will only affect a small

percentage of workers and few Member States). A concrete example of this, according to the

Four chambers have also sent opinions in the "political dialogue" framework but these have no status within

the framework of Protocols no. 1 and 2 to the Treaties.

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Commission's own information is that, a large number of Member States have used the option

in the current directive to extend the scope of collective agreements to more sectors than

construction) and therefore the changes will only affect a small number of Member States.

Further, as concerns collective agreements, some also argue that the proposal will unduly

interfere in the autonomy of the parties (e.g. social partners)/Member States to choose

whether to use such agreements;

•

the proposal (de facto) aims at

equalising pay between local and posted workers,

without

taking into account the additional costs related to posting, thereby removing the competitive

advantage of service providers in

contravention with the principles of the Single Market

and to the disadvantage of less developed European economies (almost all parliaments argue

along these lines). Equalising pay should/can not be done through EU legislation but through

progressive convergence of economies;

•

this

legislation is premature

and not proven to be necessary in a situation where the

transposition deadline of the so called Enforcement directive

has not yet expired. That

directive specifically aims at fighting unfair practices in the area. One should await and see

the effects of this directive.

One parliament, while welcoming the efforts to fight "social dumping", specifically finds that the

deletion of two existing provisions, that spell out the Member States' competence in the area cause

problems in relation to subsidiarity and more specifically raises doubts about the division of

competences between the EU and Member States (pay is defined by national practice and that

Member States may ensure that posted temporary workers are guaranteed the same terms and

conditions as national temporary workers).

THE YELLOW CARD PROCEDURE

Commission (originator of the proposal)

According to Protocol no. 2, the originator of the proposal, in this case the Commission, is obliged

to review its proposal, when the reasoned opinions represent at least one third of the votes allocated

Directive 2014/67/EU on the enforcement of Directive 96/71/EC concerning the posting of workers in the

framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative

cooperation through the Internal Market Information System ("the IMI Regulation"), OJ L 159, 28.5.2014.

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to national parliaments. As a result of this review, the Commission may decide to maintain, amend

or withdraw the proposal.

It is recalled that the Monti II proposal was withdrawn, whereas the Commission decided to

maintain the EPPO proposal.

There are no time limits for this review. In Monti II, the Commission responded after three months

(June - September 2012) and in the case of EPPO after one month (end October - end November

2013).

The European Parliament and the Council

Protocol no. 2 contains a general obligation to take into account reasoned opinions from national

parliaments, regardless of whether the threshold for a yellow card has been reached. It is silent on

how the legislator(s) should proceed while the Commission is reviewing its proposal.

VI.

EXAMINATION OF THE PROPOSAL IN THE COUNCIL AND THE EUROPEAN

PARLIAMENT

Following the yellow card, discussions within the Council at technical level have been limited to

finishing ongoing business and to further clarify issues

According to its rules of procedure (rule 42), the Parliament shall not take a decision until the

Commission has reviewed its proposal. The Parliament is at the very early stages of its examination

of the proposal. Rapporteurs were only appointed on 10 May 2016 (Morin-Chartier (EPP, FR) and

Jongerius (S&D, NL)). The proposal itself has not yet been discussed in substance by the

responsible Committee (Employment and Social Affairs, EMPL).

On 24 May 2016, the Legal Affairs Committee (JURI), that is responsible for respect of the

subsidiarity principle in the Parliament, held a first exchange of views on the yellow card. The JURI

Committee may decide to make recommendations to the responsible Committee.

______________

See also progress report (document 9309/16).

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kom (2016) 0128 - Bilag 9: Besked fra Generalsekretariatet for Rådet om modtagelse af 'det gule kort' vedr. revision af udstationeringsdirektivet

ANNEX

Overview on national Parliaments opinions on 2016/0070 COD

Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending

Directive 96/71/EC of The European Parliament and of the Council of 16 December 1996 concerning the

posting of workers in the framework of the provision of services

Subsidiarity deadline: Tuesday, 10 May 2016

Reasoned opinions

National Parliaments

opinions

Bulgarian Parliament

Czech Chamber of

Deputies

Czech Senate

Danish Parliament

Estonian Parliament

Hungarian Parliament

Croatian Parliament

Latvian Parliament

Lithuanian Parliament

Polish Sejm

Polish Senate

Romanian Chamber of

Deputies

Romanian Senate

Slovakian Parliament

TOTAL

Country

Council doc.

8884/16

8392/16

8612/16

8760/16

8798/16

8837/16

8761/16

8759/16

8762/16

8277/16

8763/16

7994/16

8756/16

8797/16

votes

YELLOW CARD PROCEDURE

Total of votes allocated to National

Parliaments: 56

Threshold required to trigger the

procedure: 19 votes

Opinions received within the political dialogue (non-reasoned opinions)

Country National Parliaments

opinions

Spanish Parliament

Italian Senate

Italian Chamber of

Deputies

Portuguese Parliament

TOTAL

Total number of opinions received: 18

Council doc.

8555/16

8757/16

9600/16

8758/16

votes

COM(2016)128

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