Verbatim report of proceedings

Wednesday, 25 October 2006 - Strasbourg

18. Posting of workers (debate)

  President. The next item is the report (A6-0308/2006) by Elisabeth Schroedter, on behalf of the Committee on Employment and Social Affairs, on the application of Directive 96/71/EC on the posting of workers (2006/2038(INI)).

  Elisabeth Schroedter (Verts/ALE), rapporteur. – (DE) Mr President, Commissioner, ladies and gentlemen, the Services Directive is one of the most important directives in terms of the freedom to provide services, making possible, on the one hand, fair competition among service-providing enterprises right across Europe, while also, on the other, containing unambiguous rules for the protection of the posted workers, and also setting down minimum standards applicable to all, while nevertheless providing sufficient flexibility to enable these standards to be enforced by the various national systems. At its heart is the principle of the same minimum wage or the same minimum conditions for the same work in the same place, which enables it to establish fair competition conditions for businesses on the ground. If, though, the Posting of Workers Directive is to be successfully transposed, it demands committed effort by all – on every side and at every level.

I would like, at this juncture, to thank those Members who worked with me on this report for their dedication, and, above all, for their inexhaustible patience with the negotiating process, as well as the staff of the committee’s secretariat, in the Tabling Office, of the groups and Members’ private offices, for their dedication and the innumerable extra hours they were required to work.

This report is a joint effort. It enjoys support right across the groups, and the reason why that is so is that all concerned have met others halfway and arrived at compromises for the sake of the matter in hand. It is out of its commitment to the Posting of Workers Directive that this House repudiates the Commission’s attempts at guidelines limiting the Member States’ opportunities to exercise control, for the Member States have the particular function of ensuring, by means of their control measures, that the minimum working conditions for the posted workers are actually complied with, and they must be able to continue to do so in future, and without exceptions being made.

Our criticisms of the guidelines will come as no surprise to the Commission, for it is using them for no other purpose than to reintroduce through the back door the substance of Articles 24 and 25 of its original draft of the services directive, which this House had, by a large majority, deleted, and to that deletion the Council consented, for neither employers’ nor employees’ associations, neither governments nor members of parliament, want the freedom to provide services at the price of workers’ fundamental rights. The reverse is true: there is a broad alliance of people who are convinced that this European Union of ours can succeed in combining the two, and that doing so will bring into being what we call the social Europe.

Our expectation of the Commission is that it should take seriously February’s unambiguous vote on this report as a guide to how it should proceed. That also means that we expect it to take into account this House’s views when evaluating the questionnaires that it sent yesterday to the Member States. It is unacceptable that the Commission should make demands of the Member States with the ultimate object of jeopardising compliance with minimum labour standards.

I might also add that the ECJ has made it clear that requirements needed in order to secure minimum labour conditions do not run counter to the freedom to provide services, and that, precisely, is what is made clear in this report. So it is, for example, that it has been demonstrated in practice that, contrary to the Commission’s interpretation, wages documents can also be needed in addition to certificates of time worked in order to secure workers’ right to their minimum wage, and the consequence of that is that, in future, legal counsel will be indispensable as parties in the wages negotiations described in Article 3(8) of the Posting of Workers Directive, or as representatives to make such negotiations possible by being available for the effective delivery of official documents. If the directive is to be implemented, then action will need to be taken to clarify matters in advance and to provide information on compliance with minimum employment standards.

It is with that in mind that I hope that the commitment of so many to this report will pay off and that the Commission will now, without any reservations, allow ‘the same pay for the same work in the same place’ to be established securely throughout the European Union.

  Vladimír Špidla, Member of the Commission. (CS) Ladies and gentlemen, the purpose of the Posted Workers Directive is to reconcile the right of firms to provide cross-border services with the rights of workers who are on temporary postings. The objective is to ensure that basic freedom of movement is upheld for both workers and services, and that the social legislation aimed at protecting employees is complied with.

Ten years on from the adoption of this directive difficulties remain in applying it. First and foremost, workers and employees are insufficiently informed about their rights and obligations. A further problem is the lack of administrative cooperation between countries of origin and host countries, which in turn could be viewed as something of a lack of mutual trust. Lastly, the inspection measures imposed by some Member States have led to fears of protectionism.

The authorities in the host countries have been granted some right of inspection, although this too has its limits. These inspections must be carried out appropriately, without discrimination, and without obstructing the freedom to provide services within the framework of the internal market. In clarifying this point, the Commission deemed it appropriate to adopt the main principles on 4 April.

National bodies must provide posted workers and service providers with effective ways of obtaining information on the work conditions applying in the host country. They must also work together in a fair way. In this regard, the Commission feels it must remind the Member States of their obligations, and calls on them to implement more effective resources.

I am aware that the debate in Parliament on the posting of workers has been a complex one, and that a wide range of opinions has been expressed. This demonstrates the difficulty of striking a balance between safeguarding the protection of workers on the one hand and the freedom to provide services on the other.

I am pleased that in the report on which Parliament has voted, I found many points of convergence with the position expressed by the Commission in its 4 April communication. There are a number of points, however, to which I should like to pay special attention and on which a clear position should be adopted.

I cannot agree with the view that the Commission will try to include deleted Articles 24 and 25 of the original services directive by means of its communication. That is not the case here. In its communication, the Commission interprets the law in question, but does not introduce new laws, because communications from the Commission cannot do such a thing, not even formally, as this is a matter of legislative process. This assertion does not correspond to the reality of the Commission’s interpretation. I wish to stress again that in its communication the Commission is not establishing a new law on which to base these articles, but is interpreting current law, which includes significant rulings of the Court in Luxembourg.

The rulings of the court referred to in the Commission communication prohibit the national bodies from requiring that service providers posted in other Member States have an office or a representative in their country. According to case law, a Member State that is hosting foreign service providers may, in order to comply with the principle of solidarity, stipulate that there must be documentation available at the workplace relating directly to the work concerned, and especially work reports or documents relating to health, safety and work protection in the workplace.

In its interpretation, the Commission in no way restricts the Member States’ capacity to carry out effective inspections, and none of the aforementioned articles have that intention. It is my view that the Commission tried very hard in its interpretation to find and understand the true substance and spirit of individual court rulings. The Commission attaches great importance to the proper implementation of the directive and has broadened its scope beyond this implementation. It has already started work on a report assessing the situation a year after publishing its guidelines. To this end the Commission has sent a questionnaire out to the national bodies and the social partners. It has also created a website dealing with legal and practical issues relating to the posting of workers, on which it recently created a forum where every European citizen can offer suggestions and comments.

Moreover, under the aegis of the Commission, a group of national experts has developed principles of best practice, establishing a number of rules in the area of administrative cooperation and a single form enabling us to simplify the exchange of information between contact points. The Commission takes account, of course, of all of Parliament's opinions and the report before us is an important document for the Commission.

  Małgorzata Handzlik (PPE-DE), draftsman of the opinion of the Committee on Internal Market and Consumer Protection. – (PL) Mr President, I should like to thank Mrs Schroedter for her report. I am sorry to have to say, however, that unfortunately the Committee on Employment and Social Affairs did not take account of what I believe were the main findings which were voted through in my opinion on behalf of the Committee on Internal Market and Consumer Protection. In addition to this, in Group B, we had no opportunity to exchange information on important issues or to discuss them.

In her report, the rapporteur included many worrying and often contradictory elements. Today, I shall focus on the most significant problems. They are not new problems, and had already been widely discussed during work on the Services Directive. Regrettably, it was decided that the solutions to these problems would not be contained in the Directive, only in the Commission’s Guidance on the Posting of Workers. I believe these guidelines are useful, because they deal with the problems thousands of entrepreneurs encounter daily as they post their workers.

One of these problems is the requirement imposed by the host country to set up legal representation, instead of simply posting a worker who could act as the employer’s representative. This requirement has far-reaching implications, because setting up legal representation falls under the principle of freedom to establish an enterprise, and not that of freedom to provide services. In addition, it represents a considerable financial outlay for employers.

The fact that the host country requires the provision of various quantities of documents is also a problem. In practice, entrepreneurs complain that the host country’s authorities abuse this requirement, insisting on documents that are not relevant to the work undertaken.

The requirement pertaining to the supply of information declarations on the posting of workers represents yet another problem. Some countries insist on receiving this information many months before the start of the posting period, and it is often the case that these declarations are treated as authorisations. Such practices are very burdensome for the service providers.

The final important issue I should like to draw attention to, and which is often highlighted by entrepreneurs, is the very strict control of Polish enterprises …

(The President cut off the speaker)

  Raymond Langendries, on behalf of the PPE-DE Group. – (FR) Mr President, allow me first of all to thank Mrs Schroedter for the extensive and excellent work she has done in drafting this report, and especially for her efforts to secure the broadest possible consensus on a text that is important for a variety of reasons.

She has also pointed out the useful work done by a large majority of Members of this Parliament during the debate and the vote on the Draft Services Directive. It was useful because, in voting in favour of crucial amendments guaranteeing absolute respect for the competences and subjects covered by the Posted Workers Directive, Parliament safeguarded the vital role that this directive must play at a time when we, in the Union of 25, are witnessing and are going to witness a large increase in the provision of services, as well as a rise in worker mobility. The text also safeguarded – and I believe that this was the unanimous opinion of the members of the Committee on Employment and Social Affairs – our powers over the subjects that are rightfully ours.

A directive that has been understood properly, applied properly and that has properly controlled effects should ensure that the right balance is struck between fair competition and guaranteed respect for workers’ rights. The ground rules must be strict and fair regarding this issue. They must also guarantee transparency and security for workers, in terms of both service provision and freedom of movement.

For a directive to be understood properly there needs to be a major effort in terms of providing explanations and information and of simplifying administrative matters. A directive that has been applied properly must clearly ensure that the right to free movement and the principles of equal treatment are respected and must pursue objectives relating to the harmonisation of working conditions and of social systems. A directive with properly controlled effects is a major tool in the fight against the anti-European feelings that may be stirred up by the presence in the population of workers who are treated as mere commodities moved about at will and exploited under the most abject conditions.

  Anne Van Lancker, on behalf of the PSE Group. – (NL) Mr President, Commissioner, ladies and gentlemen, first of all, I should like to thank our rapporteur for all the work she has done and for her willingness to listen. I can tell you at this stage that my group considers this to be a balanced report. Commissioner, with this report, my group would, above all, like to encourage you to take action to get the Posting of Workers Directive complied with on the ground. We do not ask you to review the directive, because the legislation itself is fairly sound, but we all know that in practice, employees who temporarily work in other countries are often brutally exploited, and we think that this exploitation should stop.

That is why the different Member States’ inspectorates should collaborate more. We would, accordingly, ask the Commission to form them into a well-organised network. The passing on of information about rights and duties to employees and to companies, Commissioner, should also improve, and our group is delighted with your pledge to develop a well-documented website, launch uniform forms and exchange good working practices.

I should also like to raise the subject of the guidelines that the Commission has launched in response to this House successfully preventing the Services Directive from eroding the Posting of Workers Directive. I should like to urge the Commissioner not to create any confusion between, on the one hand, attempts to simplify administration, which receives our wholehearted support, and, on the other hand, question demands that are necessary for monitoring and control; that is why we maintain, Commissioner, that Member States must retain the right to demand that representatives be appointed by the firms in question, but also to place demands in connection with documents and registration systems. We must join forces in order to call a halt to bureaucracy and exploitation.

  Ona Juknevičienė, on behalf of the ALDE Group. – (LT) A spirit of protectionism and economic nationalism is becoming entrenched in certain countries of the Community. This hinders international trade and the free movement of capital and labour. Protectionists have a negative attitude not only towards competition from Asia but also towards any source of foreign competition. This is a short-sighted attitude. We all know that competition is an engine of economic progress, whereas exclusion leads to economic and social decline.

Putting artificial bureaucratic obstacles in the way of implementation and application of the Posting of Workers Directive is one of the manifestations of protectionism.

This situation harms not only our own interests, but also those of the entire Community and infringes its citizens’ fundamental rights; first and foremost, the freedom to provide services and freedom of establishment. These rights are embodied in the EC Treaty and in the Posting of Workers Directive, but are being ignored by the Member States. Such behaviour undermines our Community.

I will be voting for the elimination of bureaucratic obstacles so that national borders do not hinder business development in the Community and people are free to choose where they wish to work. They must also be sure of not being exploited or discriminated against when working abroad.

  Ilda Figueiredo, on behalf of the GUE/NGL Group. – (PT) It is well known that many workers from EU Member States, such as Portugal, continue to suffer discrimination when they go to work in other countries that are also EU Member States, but where people earn higher salaries. According to the directive on the posting of workers, the host country is solely responsible for ensuring the protection and the rights of posted workers. To this end, the country concerned is required to adopt measures to prevent minimum standards from being circumvented. This gives rise to genuine discrimination affecting all workers, both the posted workers and those from the host country.

Reality has shown us that this directive is ignored on many sides, despite countless complaints, either by Parliament, or in reports of specific cases, such as we have issued on a number of occasions. There are still examples of non-compliance that need to be resolved, and we accordingly do not accept the Commission’s proposal to restrict in certain important areas the minimum requirements imposed by the Member States on businesses, which followed on from the proposed directive on the creation of an internal market for services.

Consequently, whilst we support the report, we must express our disappointment at the pressure exerted, and the proposals put forward, by the Group of the European People’s Party (Christian Democrats) and European Democrats, following their attempts to block clarification of important aspects of the implementation of the directive. They tabled various amendments, for example, aimed at removing points in the report before us, with the attempts at removing Amendment 13 and parts of Amendments 26 and 29 from the report being of particular concern. As far as we are concerned, we want the rapporteur’s work to stand and would urge the Chamber to adopt a number of other proposals aimed at enforcing the directive.

  Konrad Szymański, on behalf of the UEN Group. – (PL) Mr President, when the feeble compromise on the Services Directive was reached, it was obvious that it had been achieved at the expense of the new Member States of the European Union, whose main competitive advantage on the Union market is precisely in the services sector. This compromise sounded the death-knell for all hope of equal opportunities on the common market as outlined in the initial draft of the Directive. The European Commission’s Guidance on the Posting of Workers was one element of the deal that might have inspired some hope in the new countries. In presenting today’s report to us, the Committee on Employment and Social Affairs is aiming to completely do away with even that small and non-binding opportunity. With this report, the Committee on Employment and Social Affairs is aiming to preserve the complete status quo concerning the services market, even though protectionism and plain chauvinism are rampant throughout that market.

According to the European Trade Union Confederation, for example, the benefit of this chauvinism, is that it is worker-related and has been established under the aegis of the unions. Personally, I doubt it has anything at all to do with the genuine good of working people. Essentially, strict administrative and social requirements only serve to deprive people of jobs. That was what happened in the Vaxholm case and also in the case of the Polish company Zojax. Both companies were forced to withdraw from the implementation of projects, and this resulted in losses and redundancies. Swedish trade unionists were very complacent, however, because those made redundant were foreign workers, namely Latvians and Poles. I would remind Swedish trade unionists, and the Committee on Employment and Social Affairs, that the said foreigners are citizens and companies entitled to their full rights, who had been promised equal rights within the common market when accession took place.

It is true that the requirements laid down in Article 3 of the Directive are minimal, but does the Committee on Employment and Social Affairs not feel that it is high time to set upper limits for such requirements, both for cases of requirements based on law and for those based on collective agreements? Does the committee not feel that these requirements are usually mere smokescreens for plain and simple protectionism? The requirement to register, to set up legal representation in the host country and to make social documentation available in situ are all used by the authorities as a pretext for making things difficult. They all serve one single purpose, namely to protect the national market against bricklayers, bakers, wood polishers, and many other kinds of workers who are now, quite rightly, feeling let down. Their expectations concerning equal rights within the Union’s market are being shattered by harsh reality.

Adopting the report by the Committee on Employment and Social Affairs as it stands will send out a clear signal to the Member States, namely that they take whatever action they like on the common services market. It will also amount to going back on the delicate compromise reached on the Services Directive. That is why I am appealing for support for the amendments tabled by a group of Members from the Group of the European People’s Party (Christian Democrats) and European Democrats, and from the Union for Europe of the Nations Group, because the report does not deserve our support without these amendments.

  Derek Roland Clark, on behalf of the IND/DEM Group. – Mr President, when people work on short-term contracts in countries other than their own, there are obvious advantages for all sides. So I am all in favour of posted workers – but not this way. The report says in paragraph 19 that this will not be achieved by huge bureaucracy, but some 35 out of 49 paragraphs include references to laws, rules, infringement procedures, ECJ cases, enforcement by penalties.

If this proposal is anything to go by, I am not surprised that the Enterprise Commissioner is behind schedule in his drive to simplify EU laws! For yet again we have a proposal carrying a raft of rules and regulations, backed up with so many references to penalties and infringement procedures that the rapporteur must be at her wits’ end trying to make a proposal which is easy to operate, fair to all, but effective.

When this was debated a while ago in the Committee on Employment and Social Affairs, Members were horrified to hear cases of blatant exploitation of posted workers. This must be stopped, but what were the Member States doing? What were the trade unions doing? After all, it is highly likely that local workers were also being abused. Were posted workers employed because local workers refused to accept the conditions on offer?

The key lies in recital L on page 5 of the report, which talks about preventing the circumvention of national standards. Since national standards are emphasised this way, why do we need an EU directive at all? Why is it not left to Member States, if it is their rules that control the situation? An EU directive will be a burden on all sides and produce delays, when all we want is people in work. After all, this is not a new situation. Posted workers did not come about because of the EU. They existed before there was an EU. My own brother, English like myself, was an engineering draughtsman. He became self-employed, took up a contract with Volkswagen and worked in Germany for several years. He had no problems at all, but that was before the UK joined the then EC.

So I repeat, we do not need this directive. Member States are perfectly capable of managing their affairs within the existing regulations of the European Union – in short, subsidiarity. Do you remember that?

  Milan Cabrnoch (PPE-DE). – (CS) Commissioner, ladies and gentlemen, I should like to thank all those who contributed to this report. The posting of workers is one of the important issues that the EU must resolve if it is to meet its target of completing the internal market with the free movement of persons and the freedom to provide services on a cross-border basis. I feel honoured to take the floor in front of hundreds of my fellow MEPs at this significant time.

The Commission communication is aimed at liberalising the provision of services and the posting of workers, and removing the unnecessary restrictions and protectionism prevalent in some Member States. Mrs Schroedter’s report, however, takes the opposite approach. The rapporteur places undue emphasis on protecting workers and in turn establishes protectionist measures that work against the freedom to post workers. The current practice places workers from the new Member States at a distinct disadvantage. Businesses from the old Member States are permitted to provide services anywhere in the EU market, as well as in their country of origin. Businesses from the new Member States, on the other hand, are not allowed such access or are subject to time restrictions and a series of administrative barriers and protectionist measures that in reality prevent their posted workers from being competitive and from providing services freely on the market under the same conditions as workers from the host country. In this Chamber we still hear fears expressed about the Polish plumber and all he symbolises.

Mrs Schroedter’s report rides roughshod over the fundamental values on which the EU was founded, and in no way leads to the achievement of our shared aim, which is to complete the single internal market. I should therefore like to call on you, ladies and gentlemen, to vote against this report.

  Jan Andersson (PSE). – (SV) Mr President, Commissioner, I wish to begin by thanking the rapporteur for her very constructive work.

As many others have said, this is an important directive not only for freedom of movement but also for the protection of workers. There are quite a number of deficiencies – we know this from the surveys - when it comes to information, cooperation between Member States and the ability to carry out checks.

Allow me to state that we are in favour not of protectionism but of open borders. We are in favour of competition on equal terms between companies, but we are also in favour of the equal treatment of workers. That is what we are concerned with here – equal treatment. Some of the Members who referred to the Vaxholm case have left now. That precise case was about the need for Latvian workers not to be treated worse than Swedish workers. They were to enjoy precisely the same treatment – not worse, but precisely the same, treatment.

One issue on which there has been disagreement between ourselves and the Commission is that of the importance of having a representative. You propose that it would be enough to have a link with someone in the other country with whom to negotiate. That would be incredibly bureaucratic and enormously difficult. A representative must be able to act as a channel of communication in those countries that take care of the negotiations, so it would be necessary to have someone with a negotiating mandate. He or she would also have to be able to communicate with, for example, authorities responsible for occupational health and safety. Anything else would be quite impossible. There is no case law that contradicts what I am saying. The Arblade case was about something else. It was about documents that had to be kept for five years under Belgian law and is therefore irrelevant to what the Commission is saying.

I nonetheless hope that we shall get this Posting of Workers Directive operating successfully in society. In that case, it will, however, have to include the parts to which I have referred.

  Marian Harkin (ALDE). – Mr President, I should like to congratulate the rapporteur on this report. Because of time constraints, I shall concentrate on the Irish experience only, but it is certainly relevant to this debate.

The Commissioner stated that Ireland has not adopted specific transposition measures and was not conforming to the criteria established by the case law of the Court of Justice. So, apart from all the other difficulties highlighted by the rapporteur – and I do not have time to list them – it seems that we in Ireland do not have the legal certainty to comprehensively enforce this directive.

Recent events in Ireland have shown how much we need full implementation of this directive: with GAMA, a Turkish construction company, ripping off some of its foreign workers; the Irish ferry scandal, where existing workers were simply replaced by mainly foreign workers on half the wages and with inferior working conditions – I might add that this is one of the reasons I support a directive on ferries; and today in Ireland the mushroom industry admitting that some of its members are paying half the minimum wage to their foreign workers.

My final point is that it is not just posted workers who suffer: it is all workers, including Irish workers, who will pay a price down the line, as minimum wages will be undercut and suspicion and distrust will replace solidarity between workers. The Commissioner said earlier that it is difficult to protect workers while ensuring free movement of services; but, regardless of how difficult it is, we must do so.

  Gabriele Zimmer (GUE/NGL). – (DE) Mr President, I, too, will begin by expressing my appreciation for the work the rapporteur has done. The Posting of Workers Directive was a cause of constant controversy in the past, and has remained one to this day. The country from which I come was not the only one to be unwilling to extend the directive’s scope to cover the economy as a whole, and, in Germany, it still applies only in the building industry and to occupations associated with it.

I would like to steer the debate on this report towards three aspects of it. One is the emphasis that the rapporteur puts on the need for the social partners to be strengthened if the standards laid down in wage agreements are not to be undermined. That should not, however, be taken to mean that these agreements, reached between the Member States and the two sides of industry, actually do guarantee living wages. There needs to be examination of the degree to which minimum standards actually do meet the need for ‘decent work’ in the individual Member States.

Mrs Schroedter, with some justification, also points out that it is difficult to distinguish between the employed and the self-employed, but, necessary though it is to define them and clarify the status of those who are termed the ‘putative self-employed’, we should not forget that we are talking here about the people who are most on the margins and earn less than anyone else, that they must be accorded a status that secures them rights, including the right to a fair and living wage.

The use of the relevant directives to enforce the freedom to provide services is always justified by reference to – among others – the argument that, at the end of the day, there has to be something in it for the consumer. At first sight, the Posting of Workers Directive would appear to have little to do with the protection of consumers, but I am sure that just how much the two are connected will become clear when we gain a sense of perspective, for the consumer’s interest is no longer only in the quality of the goods themselves, and that is why, today, consumers are protected against imported goods produced using child labour.

The exchange of goods and services is meant to have a social dimension to it, and those who participate in it must be entitled to minimum standards that guarantee them a living, appropriate working conditions and the protection of their livelihood.

  Thomas Mann (PPE-DE). – (DE) Mr President, in February, this House, together with the Council and the Commission, arrived at a compromise on the Services Directive, Articles 24 and 25 of which were thereby deleted on the grounds that they provided for only superficial scrutiny of the delegating firms and their workers. We were thereby able to ensure the more effective combating not only of illicit labour but also of wage dumping.

Over the past few months, the Commission has sustained losses, and now it is trying to use the Posting of Workers Directive as a back door through which to resubmit the rejected positions, in certain cases – by way of guidelines on which we are allowed to do no more than state an opinion – going beyond what the ECJ has stipulated, and it is doing so by means of guidelines on which we can do no more than give an opinion. That is deceitful and amounts to robbing the people’s representatives of their powers. Guidelines will no doubt be drawn on by the ECJ when arriving at judgments, and they will thereby be made binding in law.

The German Federal Government, our political parties, social partners, employers’ and workers' associations, will not tolerate the planned restrictions on our posting of workers legislation, and other European countries have similar misgivings. In Poland, for example, there are hardly any Poles to be found on building sites, but instead loads of manpower from non-EU states. Necessary though it is that mobility within the European internal market should be permitted, it is above all necessary that justice and fairness should prevail, and that is what effective controls make possible.

Every host country must be entitled to demand documents and check employment conditions – such things as income, working time, rest periods, safety and health protection. Those who claim that fewer forms and documents are needed, and that bureaucracy is to be avoided, do not in fact want there to be any controls and are making illegality possible; it must also be possible to serve notices on those who have broken the law, and so the posting enterprises must be represented by persons who are fully authorised under the law of the host country.

I welcome Mrs Schroedter’s report; she has included my proposed amendments in compromises. On one point, though, I do not agree with her, and that is with regard to the definition of ‘workers’ which is adapted in such a way that the economically dependent self-employed are categorised as fictitiously self-employed. I hope this position will gain majority support tomorrow.

  Ieke van den Burg (PSE). – (NL) Mr President, on behalf of the Socialist Group in the European Parliament, I have discussed this dossier with Mrs Handzlik in the Committee on the Internal Market and Consumer Protection – she, unfortunately, is no longer taking an active part in the debate. What I should like to underline is that we very much considered the problems mentioned by her and by many group colleagues which the new Member States are facing and that we obviously recognise that unnecessary bureaucratic barriers to the free movement of services and the free movement of employees should be removed. I also have sufficient experience, however, of what is happening within the labour market legally, illegally or partly-legally to know that people are indeed exploited and that it is the scope for posting workers across the border that is used to circumvent the rules.

That is why I should like to spell out once again that we must not throw out the baby with the bathwater, but that we must strike a good balance instead; I should once again like to impress on Mr Clark, who is apparently oblivious to how these rules work, that there is such a thing as the principle of subsidiarity, that it is the rules of the working country that apply in labour law, that Member States have complete autonomy in this and that this Posting of Workers Directive is only intended as an exception to this rule in order to cover the situations where employees are posted across the border and are allowed to work under their own conditions temporarily, provided there are a number of minimum protective provisions in place.

It is precisely because of the control procedures in this respect, and because they are so complex, that rules are needed in order to create scope for monitoring, better scope for labour inspectorates to collaborate, which means that this balance is needed. Also in the framework of the Services Directive, I should like to underline once again that there is no hierarchy of rules for this labour legislation, that Member States are autonomous in this respect and that this is not overruled by the rules for the free movement of services.

  Jacek Protasiewicz (PPE-DE). – (PL) Mr President, the possibility of posting workers is intrinsically linked to the fundamental freedoms of the European Union. The most important of these are the free movement of people, services and capital. The Posting of Workers Directive is therefore a logical consequence of the functioning of the European Union's internal market. There is no doubt that the state of the Union's economy is measured in terms of the state of its enterprises, particularly its small and medium-sized enterprises. The 1996 Directive was mainly intended for SMEs, and aimed to simplify the principles allowing them to compete and carry out their economic activity outside their country of origin. Internal competition is essential if the Union is to cope successfully with competition at global level, where it faces competition from the economies of the United States, China and Japan.

I would like to thank Mrs Schroedter for venturing to tackle an issue of such importance for the future of Europe. I have studied her report carefully. Unfortunately, I am bound to say that I fear the document is not quite in line with my vision of freedom to provide services on the internal market, which is so dear to my heart. Having read Mrs Schroedter's draft report, I have come to suspect that its de facto aim is to make it difficult for companies to post workers in order to undertake a specific task and, accordingly, it sets out to sanction the protectionist practices Member State governments put in place to protect themselves from the effects of competition. I should like to state clearly that I am referring to the positive effects of competition. At the same time, I support the efforts by the European Commission, and the Commissioner's own personal efforts, aimed at ensuring better implementation of the Directive in practice. I hope that there is no reason to change it, or replace it with a new legal act. I trust Commissioner Špidla is of the same opinion.

  Proinsias De Rossa (PSE). – Mr President, I should like to thank Mrs Schroedter for a very good report.

We need an effective directive to protect workers posted temporarily to an EU state. This is essential to prevent a race to the bottom. However, we have a directive that is full of legal black holes and is not applied at all in some states.

Despite the best efforts of Commissioner Špidla, I do not believe that guidelines will solve these failings. Many of our states are resisting the necessary legislative changes. The consequences are scandals of the kind already mentioned, such as the Irish ferries debacle. While ships’ crews are excluded from the posting of workers directive, the Irish Government also resists the implementation of a ferries directive, which would protect those workers.

We urgently need a legal framework to effectively prevent a race to the bottom, unfair competition and, indeed, the ugly emergence of xenophobia. We need clarity and certainty on definitions of workers and an end to false self-employment. We need the right to apply clearly established higher minimum standards, sufficient inspectors to ensure compliance and enforceable penalties for failure to comply with EU legislation. I believe, also, that we need protection for whistle-blowers, for those who reveal the abuses that take place under the existing regime.

I should like to remind those who would criticise the Committee on Employment and Social Affairs and myself over this issue that I represent a state that opened its borders to all ten new Member States, fully and freely. We have now been forced to close our borders to Bulgaria and Romania because of the abuse of migrant workers and the consequent effect upon Irish-based workers. This is not an easy question to resolve and it is certainly not an attempt to create protectionism in the 15 ‘old’ Member States.

  José Albino Silva Peneda (PPE-DE). – (PT) Mr President, Commissioner, the dynamic nature of the internal market has offered increased mobility for workers and has helped European businesses to develop their activities beyond national borders.

The ability of businesses to post some of their workers to other EU Member States for the purpose of temporary work has made a further contribution to this increased mobility. The experience until now, however, has left much to be desired. In the case of Portugal, the posting of workers has not gone well, especially in the building industry. A number of cases have come to light of Portuguese workers being exploited in Spain, France, the United Kingdom and the Netherlands. This has happened because there is a yawning chasm between the 1999 directive, which strikes a balance between the freedom to provide services and the guarantee of the labour rights of posted workers, and the implementation of that directive on the ground.

In addition to the fact that Member States have differed in their interpretations of the directive, there have also been differences in its practical implementation, and this has led to more barriers and more bureaucracy, and has slowed down the process. It is abundantly clear that there is no monitoring of the implementation of this directive. Subcontracting is a terrible example of situations that are very common but are not covered by the directive. This has led to an unacceptable watering down of responsibilities, which always – I repeat, always – works to the detriment of the posted workers.

I support Mrs Schroedter’s report because I believe it is up to the host Member State, in close cooperation with the authorities of the country of origin, to ensure that the employment conditions laid down in the directive are rigorously complied with, for the purposes of increasing the effectiveness of monitoring and of combating illegal practices.

What is needed, therefore is greater transparency and more information on the rights and obligations to be complied with when businesses become involved in the posting of workers. I also endorse Mrs Schroedter’s report because it has become necessary to adopt corrections in order to ensure that this directive is supported, monitored and carried out better and more systematically.

  Françoise Castex (PSE). – (FR) Mr President, Commissioner, ladies and gentlemen, we must acknowledge the fact that a European labour market does genuinely exist, especially in the field of services which, more than any other field, involves the posting of workers. We are in favour of this, but not under just any circumstances and not at the risk of social dumping. Human labour is not a commodity and cannot be subjected to the rules of free competition. We voiced this concern during the debate on the ‘Services’ Directive, and – as you pointed out – Parliament rejected Articles 24 and 25 of this directive, which deal precisely with the easing of the conditions on the posting of workers. The fact is that it is unacceptable for the Commission to undermine this position and to ignore the criticisms voiced by Parliament.

The Directive on the posting of workers has been poorly applied in the Member States and is not meeting its objectives. That may be the case, but should the legislation be relaxed as a consequence or, on the contrary, should more be done to encourage the Member States to apply it? I do not believe that the obligations for declarations and effective controls and the retention of documents lead to pointless red tape when what is at stake is the protection of the social rights of posted or local workers. A lax attitude on the matter only benefits fraudsters. Furthermore, enhanced restrictions and the very threat of financial penalties should act as a deterrent.

That is why I endorse this report and urgently call on the Commission and the Member States to overcome the difficulties in applying the directive, which we do not want to have amended at this stage.

  Csaba Őry (PPE-DE). – (HU) Several people have pointed out that the Posting of Workers Directive and the Services Directive are closely interconnected. Therefore, I regret that we will not deal with both together in November, although that would have been logical and sensible.

As for our standpoint, there is an important philosophical difference between the approach expressed by socialist and Group of the Greens/European Free Alliance fellow Members. We put the focus on strengthening and speeding up the economy, because without accelerating development we cannot create new jobs and we cannot secure long-term financing for the major social welfare systems or safeguard European social values. It will be impossible to make progress towards trying to balance work and family life or towards improving the competitiveness of small and medium-sized enterprises. Consequently, we will not have adequate resources to deal on a European level with the massive downsizing caused by company relocations.

The question, then, is whether we want to hamper or strengthen the performance of the economy. In the course of the debate on the Posting of Workers Directive, it seemed to me that we want to hamper it, which is not a good sign for the future. To mention only the most striking problem, the requirement concerning company representatives runs completely counter to the free provision of services. In practice, this represents a serious competitive disadvantage. It would require setting up a local framework, which is an expensive, pointless and impractical exercise. This is why I would like to bring to your attention the fact that we consider Amendment 7 to be crucial. Should it not be accepted, we will not support adoption of the directive. Please, take that into consideration when voting.

  Harald Ettl (PSE). – (DE) Mr President, I wish the Posting of Workers Directive were no longer needed, and I am sure that the Commissioner is thinking along similar lines. Nor am I sure that this law actually can adequately protect workers from exploitation, but there is no other means available to us – or none that is adequate – to prevent problems on the European labour market.

What is clear is that the most important features of the Posting of Workers Directive function only to a limited extent – I am talking here not only about the imposition of administrative penalties across borders, but also about the cooperation between authorities. Moreover, the failure to take account of bonuses as an often essential component of wages leads to more wage dumping.

No doubt the minimum requirement for the Posting of Workers Directive to function will be the availability of a person who can act as the representative of the delegating enterprise and ensure that the directive is applied.

  Vladimír Špidla, Member of the Commission. (CS) Ladies and gentlemen, I shall be very brief indeed, because it is already five past midnight and I feel we must adhere very strictly to regulations such as the working time directive, and others in force in the EU.

Very briefly, then. One key question, raised twice in this debate, is that in its communication the Commission tried to reintroduce Articles 24 and 25, which had been removed from the services directive. I wish to point out that this is a mistaken view, because Articles 24 and 25 are based on the country of origin principle, which is the principle that the country of origin is responsible for inspections. This is not in the communication because the communication is duly based on the current legal situation, according to which the responsibility for inspection lies with the countries to which workers are posted, that is to say, the countries hosting the workers.

I should also like to say that I have noticed in the debate that we agree on the idea that the directive is capable of working at any given time, but it is vital that we step up efforts to ensure its consistent application. The main problem at present is that it is being applied inconsistently, especially in cross-border cooperation between individual Member States. The Commission has taken steps in its communication to address this issue – and I feel that it is our duty to do this as thoroughly and as quickly as possible. I do not wish to issue an opinion on individual cases that have been cited by way of criticism of the directive or the Commission, not because this is impossible but rather because I respect the working time of the interpreters.

I should like to make a final general remark. In its communication, the Commission firstly interpreted the court ruling in Luxembourg, and it did so correctly. Then on the basis of its obligations as Guardian of the Treaties it formulated a position on a series of issues. Thirdly it proposed, and continues to propose, steps that must be taken to improve the implementation of this directive.

I should now like to make one last remark. It is a basic principle of due process under the rule of law that any law – in this case the directive – can be used only for the purpose for which it was drawn up. The purpose of this directive is to protect posted workers, not to restrict the freedom to provide services. Consequently, in terms of this general structure and from the standpoint of proportionality, the communication does not restrict the Member States’ ability to carry out their own inspections; nor does it restrict their ability to perform their duties. The fundamental rule of proportionality naturally applies, whereby the obligations laid down must be appropriate to the objective, and cases must be dealt with on a case-by-case basis, as in fact the communication indicates.

Ladies and gentlemen, I should like to thank you for the attention given to this issue by Parliament. I am convinced that this is one of the most important directives concerning the EU labour market. It is our duty to interpret it correctly and accurately and to put it into practice as quickly and effectively as possible. I should like to thank Mrs Schroedter for her report, because it undoubtedly marks a step forward in the process I mentioned earlier, namely the full implementation of the directive in such a way that it can meet its objective. Honourable Members, thank you very much.

  President. The debate is closed.

The vote will take place on Thursday at 11.30 a.m.

Written statement (Rule 142)

  John Attard-Montalto (PSE). – Tonight we are debating the report on the application of a directive relating to posting of workers, as we are aware the posting of workers directive refers firstly to the guarantee of the free movement of persons and services, secondly, that posted employees enjoy terms and conditions related to minimum rates of pay, working conditions, health and safety of the host Member states.

The main problem of the directive is its enforcement. One of the main obstacles is the need to adjust the definition of ‘employees’ so that a clear distinction is made with the status of ‘self employed persons’ for the purpose of national employment law. Another difficulty is that this directive has not been transposed by all the Member States, nor is it enforced in practice in a number of Member States. Also it is apparent that such workers do not even know their rights and therefore the aim of the directive is not being achieved. I have come across numerous Maltese who were working in other Member States and who have no idea of their rights under this directive. So as to make the directive meaningful, we must not be ambiguous.