The European Union’s two-faced social policy
and the situation of posted workers
An analysis of EU social policy through the perspective of the Posting
of Workers Directive
David Groot
Studentno: 5874238
Date: 16 August 2013
Thesis supervisor: Ms. C. Leone
University of Amsterdam
Faculty of Law
Master European Private Law
1
Table of contents
Introduction
p. 3
Chapter 1. EU social policy
p. 5
1.1 Definition
p. 5
1.2 Subsidiarity
p. 7
1.3 Market-making
p. 8
1.4 Separate social dimension
p. 11
1.5 EU Social policy acquis
p. 15
1.6 Conclusion
p. 23
Chapter 2. The Laval-case and its implications for EU social policy
p. 24
2.1 Laval-case: legal context
p. 25
2.2 Facts
p. 25
2.3 European Court of Justice
p. 26
2.4 Analysis
p. 27
2.5 Laval-line continues
p. 29
2.6 Conclusion
p. 30
Chapter 3. The Enforcement Directive proposal and EU social policy
p. 31
3.1 Social partners
p. 31
3.2 Impact assessments Commission
p. 32
3.3 Proposal on the Enforcement Directive
p. 34
3.4 Conclusion
p. 39
Conclusion
p. 40
Bibliography
p. 42
2
Introduction
Following the Laval-case, 1 the situation of posted workers 2 in Europe has become the
platform for a bigger debate on tensions in EU social policy. These tensions are visible in the
analytical framework of EU social policy I will create in this thesis, which basically consists
of three components: (1) subsidiarity, (2) a market-making function and (3) a separate social
dimension. Component (1) acts as the minimum threshold for EU social policy action.
Components (2) and (3) provide for the tensions within the policy; component (2) conditions
EU social policy to be legitimized from a market-making perspective, whereas component (3)
is free from these market-making ‘shackles’ and thus possibly contradicts it.
When workers are posted abroad, they, their employers and the businesses established
abroad, are confronted with a number of issues. The workers experience more trouble
obtaining proper representation and don’t know the local laws, institutions and language.
Moreover, they are treated unequally towards local workers doing the same job, as they are to an extent - subject to different laws. For the businesses that send their workers abroad,
having to know the foreign laws and institutions is a (financial) problem. Therefore, they
want to apply their own law (‘home state’ law) as much as possible. Contrarily, the
competing businesses established in the Member State making use of the posted workers
(‘host state’) might be put at a competitive disadvantage if the laws differ in degree of worker
protection (i.e. when the home state has lower labour standards than the host state), especially
when home state businesses post their workers for longer periods of time and in a repeated
fashion. Member States are then forced to lower their worker protection to stay competitive,
leading to a ‘race to the bottom’. They would thus want to apply their own law to posted
workers to counter that risk, called ‘social dumping’. 3 The Rome I Regulation 4 (‘Rome I’)
and the Posting of Workers Directive 5 (‘PWD’) regulate this situation. The (national) law to
which a worker in the EU is subject is primarily dealt with by Rome I, which uses the
1
Case C-341/05, Laval un Partneri Ltd v. Svenska Byggnadsarbetareförbundet, Judgment of 18 December 2007
[2007] ECR I-11767 (‘Laval’)
2
A worker who, for a limited period, carries out his work in the territory of a Member State other than the
State in which he normally works (article 2(1) of 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)
3
Leibfried 2010, p. 275
4
Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law
applicable to contractual obligations (Rome I)
5
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
3
habitual workplace of the worker as the connecting factor. Even if the parties decide to
choose another law than the habitual workplace, they are still subject to mandatory provisions
of the habitual workplace law. 6 For posted workers, their habitual workplace (usually the
home state) doesn’t change when they are temporarily posted in a different Member State. 7
That makes it easier for businesses to send their workers temporarily abroad since they can
keep applying their own laws, which ultimately facilitates the free movement of services, 8
one of the four market freedoms of the EU. However, as a side-effect, the possibility of social
dumping increases. Rome I counters this – to an extent - by equipping the host state with the
possibility of applying certain national social provisions to posted workers on its territory.
These are called overriding mandatory provisions (‘OMPs’). That is where the PWD comes
in: the PWD clarifies which national social provisions are considered OMPs in the sense of
Rome I, what shape they may have and how they are to be enforced.
From the PWD and its Preamble, you can distil the tensions existing in EU social
policy. Component 2, the market-making social policy, is reflected in the objective of the
PWD to facilitate free movement of service within the confines of a climate of fair
competition. Component 3 is reflected in the objectives of worker protection and equal
treatment. The PWD has to satisfy these two conflicting objectives. As the extent of the
OMPs (as clarified in the PWD) as well as the way these OMPs are to be implemented and
enforced in the national systems, show which ‘side’ of the objectives the EU chooses, it is
also key in indicating where the EU stands on the tensions in EU social policy.
The Laval-case and its follow-up decisions have recently stirred up the debate on EU
social policy. The European Court of Justice’s (‘ECJ’) interpretation of the extent of the
OMPs as well as its view on the Member States’ methods of applying them, have been
criticized by part of the literature, stating that the ECJ has “liberalized” the PWD beyond its
original ambitions, 9 thus reflecting a different kind of EU social policy. Now, in the pending
EU Commission proposal on the creation of a directive facilitating the correct enforcement
and implementation of the PWD (‘the Enforcement Directive’), 10 the Commission has had a
6
Art. 8 Rome I
Art. 8 (2) Rome I
8
Art. 56 TFEU
9
Scharpf 2009, pp. 18-19
10
Commission Proposal for a Directive of the European Parliament and the Council on the enforcement of
Directive 96/71/EC concerning the posting of workers in the framework of the provision of services, COM
(2012) 131 final
7
4
chance to clarify where it stands in this EU social policy debate. Consequently, the following
question arises:
“What kind of social policy does the Enforcement Directive reflect?”
To answer that question, I will start off by analysing EU social policy in chapter 1, in order to
justify the three components I have identified as being characteristic for EU social policy.
Additionally, I will also address the special position of the PWD in social policy. I will then
discuss the liberalization of the PWD by the ECJ in the Laval-case and its follow-up
decisions in chapter 2, due to its implications for the existing tensions in EU social policy.
Finally, I will use the framework of European social policy to analyse what kind of social
policy the proposal on the Enforcement Directive reflects. I will do this in chapter 3.
Chapter 1. EU social policy.
As mentioned in the introduction, I will start off with providing an analysis of EU social
policy. In order to do so, I identified three main ‘pillars’ which I think are best suited to
describe the main features of EU social policy (subsidiarity, market-making and a separate
social dimension). By doing this, I will have built an analytical framework essential for
analysing the proposal on the Enforcement Directive. In the paragraphs that follow I will
explain the main features of EU social policy, how they relate to each other and then justify
them by analysing policy documents, the Treaty and legislation.
1.1 Definition
“The Union… shall work for… a highly competitive social market economy, aiming at
full employment and social progress, and a high level of protection and improvement of
the quality of the environment… It shall combat social exclusion and discrimination and
shall promote social justice and protection, equality between women and men, solidarity
between generations and protection of the rights of the child.” 11
11
Article 3 (3) TEU
5
As this article in the Treaty of the European Union (‘TEU’) shows, EU social policy is a
broad notion and can mean different things. I will therefore specify what this thesis means by
European social policy. Also, rather than adopting a definition of EU social policy I have
chosen to unpack the notion, identifying three main components.
Firstly, EU social policy is considered a ‘multi-tiered’ governance system, in the sense
that it consists of both social policy at national level and of social policy at EU level. Both
influence the formation of each other. 12 I will restrict my research to the EU-level of social
policy. Secondly, social policy generally encompasses all government action on the
promotion of welfare for the benefit of its citizens (social security, health care, welfare
services and social work, housing, community services and education). 13 I will restrict this to
the EU’s social policy on workers, since that is closely connected to the subject of this thesis.
Social policy on workers encompasses the issues of facilitating worker mobility, coordinating
social security, guaranteeing minimum welfare (minimum wage) and equal treatment of
workers. 14 Thirdly, EU social policy is divided in three processes, positive integration
(through the legislative body of the EU and as interpreted by the ECJ), negative integration
(through the ECJ removing barriers to free movement) and indirect de facto pressures on
Member States. 15 My focus will be on positive integration. 16 Fourthly, it’s important to
elaborate on the components of social policy identified in the introduction. For the analysis of
the Enforcement Directive proposal, I have chosen to unpack the notion of EU social policy
in three components. In my opinion, this reflects the social policy acquis the best:
1. The EU is only competent to deal with social issues if it is the most effective in
dealing with it (subsidiarity); 17
2. EU social policy is an integral part of the market-building process of the EU (marketmaking); 18 and
12
Hervey 1998, p. 2
Marshall 1975, p. 7
14
Leibfried 2010, p. 270
15
Leibfried, 2010, pp. 255-256
16
It must be noted that I include the European Court of Justice’s interpretation of art. 3 (10) of the Posting of
Workers Directive, which can be considered negative integration.
17
Daly 2006; Carter 1997.
18
Leibfried 2010, p. 279
13
6
3. Lastly, there are also signs of a social dimension separate from market-making
(separate social dimension). 19
Component 1 acts as the minimum threshold for EU action (and will be of lesser importance
in this thesis) whereas the other two components illustrate the tensions in European social
policy, as they can contradict each other to a certain extent. The three components and the
way they relate to each other, will be leading in my analysis of European social policy in this
chapter.
1.2 Subsidiarity
As stipulated in the Treaty on the Functioning of the European Union (‘TFEU’), the EU has
three different types of competences. 20 Art. 4 (2) (b) TFEU shows that social policy is a
shared competence, meaning that both the EU and Member States are able to legislate in
those fields. Member States can only exercise these competences if the EU does not exercise
them. Shared competences beg the question how the EU determines whether it can exercise
its competence in this field. That is where the principle of subsidiarity comes in. 21 The
principle of subsidiarity consists of the idea that decisions should be made on the level most
effective in dealing with the situation and as close to the citizens of the EU as possible. Thus,
intervention at the EU level is only necessary if Member States cannot sufficiently achieve
the objectives of the proposed action or if it has clear advantages over such intervention. 22 By
that, power resides at the most effective level of competence and is as close to the citizen as
possible (bottom-up approach of power). 23 Furthermore, the Protocol on the application of
the principles of subsidiarity and proportionality24 specifies three concrete requirements for
the EU when deciding whether to intervene or not:
1. Is the issue transnational and can’t it be solved at national level?
2. Is national action or no action contrary to the requirements of the Treaty?
3. Does EU level action have clear advantages?
19
Leibfried 2010, p. 270; Szyszczak 2001, p. 1157
Exclusive competences, shared competences and supporting competences (arts. 3-5 TFEU).
21
Art. 5 (3) TEU
22
Protocol on the application of the principles of subsidiarity and proportionality, Official Journal of the
European Union, C83, Vol. 53 (March 2010)
23
Critchley 1995, p. 4
24
Supra n. 22
20
7
Applying these requirements to social policy, subsidiarity restricts social policy to an extent.
However, these requirements, together with the ECJ’s interpretation, 25 indicate a centralized
top-down approach to subsidiarity26 which still leaves room for EU social policy to go in
multiple directions. Therefore, the EU appears to have discretion in the exercise of its social
policy competence. This discretion is only kept in line by a non-binding preliminary (‘ex
ante’) test from national parliaments 27 and the ‘ex post’ duty of the ECJ to scrutinize EU acts
on their compatibility with subsidiarity. 28 However, as the ‘ex ante’ test is non-binding and
the ECJ hasn’t yet considered the principle of subsidiarity an obstacle in any EU act in its
(limited amount of) case law on the matter, subsidiarity is only of little value. 29 Subsidiarity
does require another level of decision-making to be taken into account: social partners can be
considered the most effective level of dealing with the problem as well. This has led to the
Treaty granting them consultation and negotiation rights. 30
The question what reach EU social policy should have, still remains subject to
interpretation. The tensions between components 2 and 3 of EU social policy are thus not
removed by the principle of subsidiarity. Subsidiarity doesn’t provide for a clear demarcation
between national and EU policy 31 but acts more as a minimum threshold for EU action.
Therefore, the emphasis of the following chapters will lie on the components 2 and 3.
1.3 Market-making
I will now analyse the role of component 2 of EU social policy, the market-making function.
Social policy in this sense does not correct the market, but instead furthers integration of the
market. The development of social policy then depends entirely upon its possibility of being
legitimized in both economic policy terms as social policy terms. 32 This component of EU
25
Case C-84/94 UK v. Council, Judgment of 12 November 1996 [1996] ECR I-5755 (‘Working Time Case’)
Barnard 2000, p. 78
27
Art. 6 of the Protocol as referred to in Supra n. 22. See for example the process of the so-called ‘Monti II’
Regulation, which has now been withdrawn:
http://ec.europa.eu/dgs/secretariat_general/relations/relations_other/npo/letter_to_nal_parl_en.htm Retrieved on 15 September 2013
28
Art. 8 of the Protocol as referred to in Supra n. 22
29
Ritzer et al 2006, p. 760
30
Carter 2002, p. 191
31
Constantin 2008, p. 177
32
Freedland 1997, p. 287
26
8
social policy has thus been considerably shackled by its need to function both within an
economic and social framework.
The EU took its engagement in social policy up a notch in the early 1990’s, 33 during the
process of the amendments of the Treaty of Rome, which were given expression in the Treaty
of Maastricht of 1993. 34 Before that, EU social action had remained restricted to narrow
market-related openings in social legislation (equal pay for men and women, social security
and a European Social Fund). At the time it had been the consensus that re-distributive
benefits in the sense of social policy were a matter entirely left to the Member States. 35
In the policy documents accompanying the Treaty of Maastricht, the need for a
‘European social model’ was stressed.
36
In the 1993 White Paper on Growth,
Competitiveness and Employment, 37 the political context of that need became clear. Europe
faced the challenge of increasing unemployment and needed social policy to counter this
development. In the Preamble, the Commission stated that “we are faced with the immense
responsibility…of eroding a new synthesis of the aims pursued by society (work as a factor
of social integration, equality of opportunity) and the requirements of the economy
(competitiveness and job creation).” The previous focus on economic policy of the EU had
led to technical progress in production (manufacturing processes and work organization),
which – as a side-effect – had led to job reductions. 38 Also, creating a common currency and
joining in a single market together deprived Member States of the possibility to create jobs
through monetary policy.
39
The Commission realized that focusing solely on further
improving the economy was not the way to effectively combat unemployment. It needed
something else: social policy. It pointed to the inflexibility of labour systems, determined by
several social factors (education, labour laws, work contracts and social security). 40 By
regarding both economic and social policy as consistent with each other, the Commission
33
Daly 2012, p. 10
The Maastricht Treaty: Provisions Amending the Treaty Establishing the European Economic Community
with a View to Establishing the European Community, 7 February 1992, Maastricht
35
Collins 1975, p. 9
36
Commission White Paper 1993, Preamble
37
Ibid
38
Ibid, p. 11
39
Trubek 2005, p. 345
40
Commission White Paper 1993, pp. 15-16
34
9
hoped to lay the foundations for both a lasting macroeconomic growth as an active
employment policy, eliminating factors which contributed to the unemployment numbers. 41
The 1994 White Paper on Social Policy42 built on the previous document and further
conceptualised the idea of a European social model, combining the opinions of Union
institutions, trade unions, employers, Member States and other stakeholders. The White Paper
on Social Policy showed how the Commission saw competitiveness and social progress as
“two sides of the same coin”. 43 For the EU to reconcile high social standards with
competitiveness, employment was the key. Economic progress had to be founded on the
efficiency of society as a whole and not just the high capability of competing. 44 The
Commission acknowledged that for achieving that, harmonization should not be an objective,
since the diversity of national systems is to be respected. Instead, the Commission wanted to
facilitate convergence of national policies by fixing common objectives, ultimately leading to
co-existence of the national systems. 45 It thus “began a process of persuading member states
to consider a radical and coordinated rethinking of their national social policies.” 46 The
objectives and findings laid down in these White Papers were finalized into a Social Policy
Protocol, which was ultimately signed by every Member State in 1997 and then renamed to
the Social Policy Agreement. This agreement has been incorporated into art. 151 TFEU 47 and
will be further discussed in paragraph 1.5.1.
In the Commission’s Social Policy Agenda of 2000, 48 the market-making function
was again emphasized by the statement of the Commission that the EU’s guiding principle on
social policy is the role of social policy “as a productive factor”. 49 The economic advantages
of social policy were again stressed, condemning the European social model to remain a
mixture of retaining social values and improving economic performance at the same time. It
did offer some change in the way the coordination of national social system convergence was
to be enhanced and modernized. For that purpose, the EU introduced the ‘open method of
41
Ibid, p. 21
Commission White Paper 1994
43
Ibid, p. 4
44
Ibid, p. 5
45
Ibid
46
Szyszczak 2000, p. 201
47
Social Policy Agreement: http://europa.eu/legislation_summaries/glossary/social_policy_agreement_en.htm
- Retrieved on 15 September 2013
48
Commission Social Policy Agenda 2000
49
Ibid, p. 5
42
10
coordination’ (‘OMC’) 50 at the Lisbon Summit, 51 which was derived from the ‘Luxembourg
Process’. 52 This OMC lays down certain benchmarks for both EU institutions and Member
States, shaped as soft law of which the compliance is solely based on Member States’ selfinterest. 53 As to which benchmarks these are, the Lisbon Summit laid down the priorities of
the EU for OMC, resulting in among others the Employment Guidelines. The first version of
the Employment Guidelines consisted of the four pillars of improving employability,
developing entrepreneurship and job creation, encouraging adaptability of businesses and
their employees and strengthening equal opportunities for men and women.
54
Full
employment was considered to be the overarching objective of social policy, referencing the
ambition of the Lisbon Summit to become the most competitive economy in the world. 55 This
shows how social policy still remained connected to the goal of economic integration.
Furthermore, the non-compliant nature of OMC indicates a more limited role for EU
legislative social action than before. The question thus rises whether such a soft law-approach
would be able to effectively keep hard economic law in line. However, EU legislation can
still be used if chosen for. It is one of the many ways of achieving the benchmarks. Member
States and Union institutions can decide how they wish to do so themselves. 56
In sum, the focus of the EU on social policy is mostly a misleading one. Economic and social
objectives of the EU are to be reconcilable. This sounds ambitious but – in practice – it just
resembles the insight of the EU that economic integration sometimes requires social
objectives on a supranational level in order to function properly (particularly in the combat
against unemployment). It’s therefore to a large extent 57 a social camouflage for the real
politics of the EU: the facilitation and sustainability of the Internal Market.
1.4 Separate social dimension
50
Art. 148 TFEU
Presidency Conclusions, Lisbon, European Council, 23 and 24 March 2000 (‘Lisbon Summit’)
52
The Luxembourg European Council of 20-21 November 1997, (´Luxembourg Process´)
53
C. Carter 2002, p. 194
54
Council Decision of 19 January 2001 on Guidelines for Member States' employment policies for the year
2001 (2001/63/EC)
55
Lisbon Summit, p. 3
56
Carter 2002, p. 194
57
In the next paragraph I will show that there is however a separate social dimension.
51
11
Contrarily to the market-making function, there are signs of a separate social dimension.
Policy documents illustrate this, as well as the Nice Charter of Fundamental Rights, which is
probably the biggest development in this area.
First off, the objectives agreed upon in the Nice Council Meeting of 2000 concerning the
combat against poverty and social exclusion, 58 which were intended to provide a frame of
reference for the social inclusion-objective of the EU, 59 show signals of a separate social
dimension. It encompasses the following objectives:
1. to facilitate participation in employment and access by all to resources, rights, goods
and services;
2. to prevent the risks of exclusion;
3. to help the most vulnerable; and
4. to mobilize all relevant bodies. 60
These objectives do not show an overarching economic orientation, apart from the first one
which is partly about ‘employment’. Also, the wording of the objectives points to a broader
notion of workers, referring to them as ‘people’ rather than as productive factors. With regard
to social policy, the objectives – although not specifying how they are achieved – leave room
for more than just minimum social standards. 61 And in general, the combat of poverty and
social exclusion is hard to reconcile with a market-making function, since markets can
function at the current level of property and only need social inclusion when the cost of
maintaining socially excluded people rises to an unacceptable level. 62 This thus shows that
there is something beyond market-making. However, this separate social dimension has been
somewhat downsized by later policy documents. 63
The combat against social exclusion isn’t directly linked to the combat against social
dumping, which the PWD is concerned with, but indirectly it shows that the EU looks beyond
58
Council, ‘Fight against poverty and social exclusion – Definition of appropriate objectives’, November 2000
This is part of the bigger four-pillar objective set out in the Commission Communication ‘A concerted
strategy for modernising social protection’, COM (99) 347 final, 1999, aiming at concerted improvement in all
Member States in the areas of employment (to make work pay), poverty and social exclusion, pensions and
health care.
60
Supra n. 58
61
Daly 2006, p. 471
62
Ibid
63
Commission Communication 2003; Commission Communication 2005a
59
12
market-making social policy. From that point of view, it’s interesting to see that the EU has
given the Charter of Fundamental Rights the same legal value 64 as the Treaty, and has also
included social principles and rights in it.
The Charter of Fundamental Rights (“The Nice Charter”) was first adopted in Nice in
December 2000. Fundamental rights had already been considered an EU-issue in the
aftermath of the Costa/ENEL-case in 1964, 65 which for the first time stated that EU law has
supremacy over national law. Thus, some kind of human rights-safeguard had to be provided
in the supervision of EU law. 66
Social rights have been included in the Charter of Fundamental Social Rights of
Workers in 1989 (“Social Charter”). 67 The Nice Charter refers to that Social Charter and
incorporates it in its content. Furthermore, the Nice Charter is inspired by the constitutional
traditions of the Member States and the European Convention of Human Rights. 68 The
Charter lists its fundamental rights and principles under six major chapters: Dignity, Freedom,
Equality, Solidarity, Citizenship and Justice. Among the social rights and principles are the
right to non-discrimination (art. 21), right to information and consultation (art. 27), protection
from unjust dismissal (art. 30), fair and just working conditions, paid annual leave (both art.
31) and social security (art. 34). It thus appears that the Charter has the potential for the EU to
provide considerable social protection, even beyond the market-making function. However,
the Charter’s impact is restricted in two ways. Firstly, the Commission Strategy on the
Charter of Fundamental Rights 69 shows that the EU commits itself to strengthening the
fundamental rights culture “at all stages of the procedure, from the initial drafting of a
proposal within the Commission to the impact analysis, and right up to the checks on the
legality of the final text.” 70 The Charter is thus used as a preliminary test of compatibility71
for legislation and decision-making. It doesn’t add to the EU’s competence in legislating in
the social field. 72 Secondly, the Charter only applies to Member States when they are
implementing Union law (art. 51), making it especially relevant for secondary EU legislation.
64
Art. 6 TEU
Case 6/64 Costa v. ENEL, Judgment of 15 July 1964 [1964] ECR 585
66
Meehan 2002, p. 244
67
Community Charter of the Fundamental Social Rights of Workers http://europa.eu/legislation_summaries/glossary/social_charter_en.htm - Retrieved on 15 September 2013
68
Art. 6 (3) TEU
69
Commission Charter Strategy 2010
70
Ibid, p. 5
71
Fundamental Rights Checklist, included in the Commission Charter Strategy
72
As is made clear in art. 51 (2) of the Nice Charter of Fundamental Rights
65
13
That also implies that the provisions of the Charter don’t have direct effect 73 when an
individual is up against a Member State, let alone an individual against another individual.
This was confirmed by the Advocate-General Trstenjak in the Dominguez-case, which
discussed the (im)possibility of direct horizontal effect of the Charter. 74
In sum, the Charter ensures - to some extent - that the EU takes into account social
rights and principles when legislating. Union institutions will have to make sure they don’t
infringe the social rights and principles as enshrined in the Charter when drafting and
finalizing laws, even when it sets out to facilitate and sustain the internal market. The Charter
thus functions as a fundamental (social) rights-compass in the legislative and decisionmaking procedures of the EU (and partly the Member States when they are implementing
Union law), necessary for the EU to remain exemplary and be credible. 75 For social policy,
this can stimulate Union institutions to act and think in a multifaceted way, rather than only
focusing on market-making social policy. Furthermore, it provides clarity as to which rights
citizens have, which can have an educative and empowering effect. 76
In practice, the Commission had already made an effort to systematize this
compatibility test before the Charter had legal force. 77 As a result, explicit references to the
Charter have been made in the Preambles of secondary legislation. 78 With regard to social
policy, the Equal Treatment Framework Directive 79 is a good example, with the first six
Recitals of the Preamble referring to fundamental rights. The Directives concerning health
and safety, information and consultation and working time do not contain such a reference.
This could be explained because of the hesitance of Member States towards an extensive
interpretation of social rights. 80
In conclusion, there are indeed some signals of social policy going beyond the marketmaking function. However, there are not many of them. On top of that, they are mostly found
73
Meaning that the provisions are not immediately invocable for individuals before a national or European
court.
74
Opinion of A-G Trstenjak in Case C-282/10, Dominguez, delivered on 8 september 2011 [2011], pts. 80-87
75
Commission Charter Strategy 2010
76
Meehan 2002, p. 251
77
Commission Communication 2005b
78
Directive 2002/73/EC and Directive 76/207/EEC on the implementation of the principle of equal treatment
for men and women as regards access to employment, vocational training and promotion, and
working conditions; Directive 2003/86/EC on the right to family reunification; Directive 2003/109 CE
concerning the status of third-country nationals who are long-term residents
79
Council Directive 2000/78/EG establishing a general framework for equal treatment in employment and
occupation, 27 November 2000
80
Dutheil 2008, p. 161
14
in policy documents of the EU which now favour a focus on soft law-measures. 81 These soft
law measures can’t effectively counter hard law. The biggest development as concerned the
social dimension of the EU has been the recognition of the Charter of Fundamental Rights’
legal force as the equivalent of the Treaties. As my research points out however, this Charter
only functions as a social rights-compass for the EU institutions in the legislative procedure.
This does raise awareness and may stimulate social rights-discussions, but doesn’t add to the
competence of the EU.
There is a separate social chapter which functions as a legal basis, as I have
mentioned before. This chapter is found under Title X of the TFEU, called ‘Social Policy’.
Art. 151 TFEU shows the EU’s objectives in this field: the promotion of employment,
improved living and working conditions, proper social protection, dialogue between
management and labour, the development of human resources with a view to lasting high
employment and the combating of exclusion. I will address this legal basis and how it
compares to the economic legal basis, in the following paragraph.
1.5 EU Social policy acquis
The tensions between the components of EU social policy are illustrated by some of the
legislation adopted. Because the scope and limited space of this thesis preclude me from
exhaustively reviewing the social policy acquis, 82 I have selected some representative
examples for the three components. Firstly, I will discuss the Treaty provisions art. 45 TFEU
and art. 157 TFEU, as they – together with the ECJ’s interpretation – show the
interdependency of economic and social objectives. Secondly, I will discuss the Social
Security Regulation, as it illustrates when and how economic policy requires social policy.
Thirdly the Working Time Directive, as it is adopted under the social policy chapter of the
81
Lisbon Summit, pt. 37
The social policy acquis consists of inter alia: Legal basis art. 48 TFEU: Regulation 883/2004 concerning the
coordination of social security. Legal basis art. 115 TFEU: Directive 98/59/EC concerning collective dismissal;
Directive 2001/23/EC concerning the safeguarding of employees' rights in the event of transfers of
undertakings, businesses or parts of undertakings or businesses; Directive 2008/94/EC concerning the
protection of employees in the event of the insolvency of their employer. Legal basis art. 19 TFEU: equal
treatment Directives 2000/43 and 2000/78. Legal basis art. 157 (3) TFEU: Directive 2006/54 concerning equal
pay for men and women. Legal basis art. 153 TFEU: Directive 89/391/EEC on the introduction of measures to
encourage improvements in the safety and health of workers at work and its subsidiary Directives; Directive
2008/104/EC concerning temporary agency work; Directive 2003/88/EC concerning certain aspects of the
organisation of working time. Legal basis art. 155 TFEU: Directive 1999/70/EC concerning the framework
agreement of fixed-time work.
82
15
Treaty and thus resembles social policy which is somewhat autonomous from economic
policy. Finally, I will analyse how the PWD - as it was first adopted - fits into EU social
policy. Before taking a closer look at the examples however, I will start off with explaining
the unequal status of economic and social policy in the Treaty, which constitutes the
foundation of all EU social legislation.
1.5.1
Constitutional inequality
The European Union has been founded on an economical basis. With regard to social policy,
a ‘bargain’ 83 was made with the Member States. The EU deals with the completion of the
Internal Market, the Member States with the (social) correction of the market. As a result, the
EU has always had a constitutional inequality regarding economic and social policy, whereas
in Member States these are considered equal. 84 The EU legislates in conformity with the
principle of conferral, 85 meaning that it is only competent in areas where the Member States
have conferred powers on it. These conferred powers are enshrined in the Treaty. Legislation
concerning the sustainability and completion of the Internal Market (economic policy, art. 26
TFEU) by harmonization is to be adopted on the legal bases of art. 114 or 115 TFEU. The
legislative procedure to be followed for art. 114-measures (which encompass measures
facilitating the four market freedoms) is the ordinary one. According to this ordinary
legislative procedure, the Council and the European Parliament jointly decide for the
approval of a legislative act proposed by the Commission (Art. 289 TFEU). The Council acts
with qualified majority whereas the Parliament acts on regular majority of votes (art. 294 pt.
13 TFEU). A legislative measure to be taken on the basis of art. 114 must have as its object
the facilitation or completion of the market. One can interpret from that, that supplementing
‘social side-effects’ are also possible under this legal basis. It is not possible however to have
a social policy measure adopted on this legal basis which has only ancillary internal marketeffects and as its aim social policy. 86 Additionally, art. 114 (2) TFEU narrows down the
possibility of harmonization in the social sphere, excluding fiscal provisions and provisions
concerning the free movement of persons and rights and interests of workers from art. 114’s
83
Carter 1997, pp. 3-4
Scharpf 2002, p. 4
85
Art. 4 (b) TFEU
86
Case C-380/03, Tobacco Advertising, Judgment of 12 December 2006, [2006] ECR I-11573, par. 80; Case C139/01 Österreichischer Rundfunk and Others, Judgment of 20 May 2003 [2003] ECR I-4989, pars. 41-42
84
16
scope. Art. 115 TFEU does allow for such harmonization, albeit in a limited fashion: such
harmonization must be in accordance with a special legislative procedure which requires
unanimous voting. Hence, the market-making objective of the EU is reflected here. It is
interesting in that light to see that there is a separate social policy legal basis, which I
previously mentioned in paragraph 1.4. As said then, art. 151 TFEU lays down the social
policy objectives with art. 153 TFEU as the social policy legal basis, in the following fields:
(a) workers’ health and safety;
(b) working conditions;
(c) social security and social protection of workers;
(d) protection of workers where their employment contract is terminated;
(e) information and consultation;
(f) representation of the interests of worker and employers, including co-determination;
(g) conditions of employment for third-country nationals legally residing in Union territory;
(h) the integration of persons excluded from the labour market, without prejudice to Article 166;
(i) equality between men and women with regard to labour market opportunities and treatment at work;
(j) combat of social exclusion;
(k) modernisation of social protection systems without prejudice to (c)
The European Parliament and Council are allowed to adopt measures coordinating these
fields or to lay down minimum requirements for the fields referred to in (a) to (i). For the
fields (c), (d), (f) and (g) the Council has to act unanimously and in accordance with a special
legislative procedure. For the other fields, the ordinary legislative procedure applies unless
that procedure is rendered inapplicable by the Council. Also, the role of social partners is
clarified in articles 152 and 154 TFEU.
Two additional social legal bases are found in arts. 19 and 157 (3) TFEU. Art. 19
provides for a supplementary legal basis for the principle of equal treatment and requires a
special legislative procedure to be followed. Art. 157 (3) TFEU allows for an ordinary
legislative procedure for measures concerning the equal pay between men and women.
In sum, we are presented with a situation where social and economic measures do not
enjoy equal status. The economic legal basis requires qualified majority from the Council
(and regular for the Parliament) in order for legislation to pass whereas the social legal basis
is firstly limited to measures which coordinate or lay down minimum requirements and
secondly sometimes requires unanimous voting of the Council. The economic legal basis
does allow for social side-effects, effectively placing some social policy under the ordinary
17
procedure, as long as it has a principal aim of improving the internal market in an economic
sense (thus reflecting the market-making function).
1.5.2
Treaty provisions and their interpretation by the ECJ
The Treaty on the Functioning of the European Union contains two provisions illustrating the
market making-component. The first one concerns article 157 TFEU, which encompasses the
principle of equal pay for male and female workers for equal work. In the Defrenne-cases, 87
the concerns of France for their loss of competitiveness in the EU (due to its implementation
of the principle of equal pay whereas other Member State didn’t have this) were taken away
by granting direct horizontal effect 88 to art. 157 TFEU, making employers bound to it. The
Advocate-General Dutheillet de Lamothe stated that this article didn’t only have a social
objective but also an economic objective, given the fact that it attempts to take away market
distortions in the sense of social dumping (regulatory competition). Therefore, it was justified
to grant direct horizontal effect. The ECJ reaffirmed this in the second Defrenne-case, which
stressed the economic purpose of the article due to the competitive disadvantage it provides –
if stripped of its direct horizontal effect - for companies established in Member States who
have equal pay. 89 Secondly, in Angonese, 90 the ECJ granted direct horizontal effect to the
prohibition of discrimination as entailed in the free movement of persons (art. 45 TFEU).
Because the article would be deprived of its economic internal market effectiveness if not
given horizontal effect and it concerned the specific application of the social principle of
equal treatment, direct horizontal effect was needed. 91
Contrarily, this doctrine of horizontal effect is limited (but not non-existent) when it
comes to social rights without clear economic advantages. As mentioned before, Nice Charter
social rights and principles don’t have direct horizontal effect, whereas arts. 157 TFEU and
45 TFEU do. Indirectly though, the Nice Charter rights can have direct horizontal effect, as
the Charter’s content provides a “sound legal basis for the establishment of general principles
of EU law.” 92 These general principles are an autonomous source of EU law 93 and are
87
Case 80/70, Defrenne vs. Belgium, Judgment of 25 May 1971 [1971] ECR 445 (Defrenne I); Case 43/75,
Defrenne vs. Sabena, Judgment of 8 April 1976 [1976] ECR 455 (Defrenne II)
88
Horizontal direct effect means that the provision is directly invocable by citizens against other citizens.
89
Defrenne II, pars. 10-12
90
Case C-281/98, Angonese, Judgment of the Court of 6 June 2000, [2000] ECR I-04139
91
Ibid, pars. 30-34
92
Lenaerts & Gutiérrez-Fons 2010, pp. 1655-1656
18
sometimes directly invocable by employees against their employers. Such was the case in the
Mangold 94 and Kücükdeveci 95 cases. This direct effect has – until now - remained limited in
two ways. Firstly, the direct effect of the principle is partial as it only addresses Member
State legislation (it can only remove incompatible legislation) and therefore doesn’t address
the actual employee – employer relationship. Secondly, it has remained limited to the social
principle of equal treatment. 96
1.5.3 Social Security Regulation
The social security regulation 97 reflects component 2, seeing as it is adopted under an internal
market-legal basis (art. 48 TFEU). The Regulation does not constitute a single coherent social
security policy with support for individuals, but has a main focus on facilitating the free
movement of labour. It coordinates social security, which is in line with the EU’s vision on
social policy which doesn’t see harmonization as an objective. Though sometimes, from the
perspective of free movement of labour, it has indeed been required to adopt some Europeanlevel social security rules, as has happened in the past. 98 It’s also interesting to note that this
Regulation contains an explicit time limit (twenty-four months) for posted workers within
which they remain subject to their ‘home state’ social security law when they are working
abroad. The PWD doesn’t contain such a provision.
1.5.4 Working Time Directive
The Working Time Directive, 99 established under the social chapter, shows what the EU is
capable of doing within the confines of the separate social dimension. The Directive aims to
protect workers’ health and safety by laying down minimum requirements for Member States
as to the organisation of working time. 100 In the Working Time Case, 101 where the UK
contested the legal basis of Working Time Directive 93/104/EC (now 2003/88/EC), it was
93
Van Peijpe 2012, pp. 15-18
Case C-144/04, Mangold v. Helm, Judgment of 22 November 2005 [2005] ECR I-9981
95
Case C-555/07, Seda Kücükdeveci v. Swedex GmbH. & Co. KG. Judgment of 19 January 2010 [2010] IRLR 346
96
Case C-147/08, Jürgen Römer v. Freie und Hansestadt Hamburg, Judgment of 10 May 2011, [2011] ECR I-000;
Case C-282/10, Maribel Dominguez v. Centre Informatique du Centre Ouest Atlantique and Prefet de la region
Centre, Judgment of 24 January 2012 [2012]
97
Regulation (EC) No. 883/2004 of the European Parliament and of the Council of 29 April 2004 concerning the
coordination of social security systems
98
Hervey 1998, p. 105
99
Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain
aspects of the organisation of working time
100
Recital 1 of the Preamble of the Working Time Directive
101
Case C-84/94 UK v. Council, Judgment of 12 November 1996 [1996] ECR I-5755
94
19
reaffirmed that this is indeed a social policy measure and not a general measure relating to
job creation and unemployment reduction. Also, the meaning of ‘minimum requirements’
was clarified by the ECJ. It means that Member States can impose more protective measures
if they wish so, instead of – which the UK believed it to be – limiting EU action to the lowest
level of protection in the Member States. 102
1.5.5 Posting of Workers Directive
The context in which the Posting of Workers Directive was first adopted, is an interesting one
and sheds further light on the tensions between components 2 and 3 of EU social policy. The
PWD was adopted in the full blossom of the ‘market-making’ function of social policy
(1995). Accordingly, the PWD’s legal basis is found in art. 57 in conjunction with art. 66 and
114 TFEU, in the chapter of free movement of services. From that perspective, it does seem
problematic that the Directive counters the free movement of services to an extent (for social
purposes) by equipping Member States with the possibility of applying their own (host state)
rules to posted workers. Here the social and economic objectives don’t seem reconcilable,
whereas reconcilability was the underlying rationale for giving social policy a more
prominent position in the EU in the first place. Instead, the PWD resembles more of a
compromise than a connection, as the 1991 Explanatory Memorandum of the PWD
confirms. 103 The Preamble also illustrates this. The first Recital addresses the abolition of
obstacles to the free movement of services; the fifth Recital states that “any such promotion
of the transnational provision of services requires a climate of fair competition and measures
guaranteeing respect for the rights of workers”; the twelfth Recital states that Community law
(Union law) does not preclude host states from applying their law to workers with employers
established in another Member State, even if they are only temporarily active in the host state;
and the thirteenth Recital stipulates the nucleus of mandatory rules for minimum protection
which should be observed in the host state and by employers established in another Member
State, posting their workers abroad. The duality104 and interplay of these notions, especially
the ones in the fifth Recital, will be discussed in the following paragraphs and will be
translated to the PWD.
102
Ibid, par. 56
“The question is therefore one of finding a balance between two principles which find themselves into
contradiction.” - Commission Proposal for a Council Directive concerning the posting of workers in the
framework of the provision of services, 1991, COM (91) 230 final, p. 4
104
Cremers 2007, p. 536
103
20
1.5.5.1 Fair competition in the PWD
The objective of fair competition reflects the economic part of the PWD, 105 as it aims to keep
the cross-border provision of services within the confines of a fair climate of competition.
The question then arises when competition exceeds those confines. For that, preventing social
dumping appears to be the guiding principle. ‘Social dumping’ has negative economic effects
because it leads to trade distortions in the free functioning of the market and to price wars,
which would restrain growth of wages and other social changes and – consequently - would
lead to more unemployment. 106 As social dumping hasn’t been conceptualised clearly in the
literature or by the EU, 107 the question as to how to deal with it remains open. Although this
thesis does not strive to solve that problem, I will have to formulate an approach to social
dumping from the perspectives of both fair competition and worker protection in order to
clarify the duality of the PWD.
The mere fact that a service-provider posts its workers temporarily from one state
with low labour standards to another with high labour standards, is not in itself enough to
constitute ‘unfair’ competition, as differences in labour standards are deemed to be natural
because of different value judgments in Member States of what is ‘social’. 108 Furthermore,
arguments for limited action against social dumping can be found in evidence indicating that
infrastructure and worker productivity are more relevant factors than the amount of protection
a worker has when businesses assess whether to invest in temporary foreign workers. 109
Moreover, there is a link between productivity and worker protection (meaning that Member
States with higher worker protection have more productive workers). 110 The low labour
standards are basically a side-effect of having low productivity, being a more relevant factor
in deciding to invest in workers abroad. Therefore, the feared ‘unfair’ advantage which
supposedly follows from labour standard differences is not backed by proof. AdvocateGeneral Maduro in the Viking-case 111 even denies any economic or social benefits ensuing
from the combat of social dumping. Consequently, Maduro advocates the complete
facilitation of the free movement of services. 112 This is confirmed in some of the literature, as
105
Hellsten 2006, p. 6
Teague 1989, pp. 78-79
107
Bernaciak 2012, p. 5
108
Bhagwati 1995, p. 753-755
109
Hauser 1996
110
Maslauskaité 2013, p. 25
111
Case C-438/05, Viking, Judgment of 11 December 2007 [2007] ECR I-10779
112
Opinion of A-G Maduro Case C-438/05, Viking, delivered on 23 May 2007, pt. 25
106
21
it has been argued that social dumping is advantageous to poorer Member States on the basis
of their cheaper workforce. Depriving them of that advantage would deter them from
developing (‘killing them with kindness’). 113
Additional qualifications to ‘social dumping’ are thus necessary to be added from an
economic perspective. Bernaciak formulates social dumping as “the strategy geared towards
the lowering of social standards for the sake of enhanced competitiveness. It is prompted by
companies but indirectly involves their employees and/or home and host country
governments, and has negative implications in the social sphere.” 114 Market distortions are
thus found in the consciousness of companies and Member States to keep labour standards
low. Hellsten adds to that by stating that excessive profit-making by exploiting cheap labour
is economically unacceptable (“unfair competition”) as well as socially unethical. 115
For the PWD, this means that companies and Member States must be prevented from
taking abuse of posted workers 116 by enhancing enforcement and implementation of the
PWD. 117 Also, a minimum core of rules should be laid down within the EU to prevent
excessive exploit of labour standards. Competition would thus be in that sense economically
‘fair’: every home state business would abide by the same, predictable core of host state rules,
decreasing disparities in implementation and enforcement and decreasing excessive labour
law differences.
1.5.5.2 Worker protection in the PWD
The Social Charter of 1989 laid down the major principles of EU labour law, inter alia the
principle of equal treatment, which acted as the basis for the adoption of the PWD. 118
Workers who are (temporarily) working abroad are treated unequally in comparison to
domestic workers doing the same job in the same place. The free movement of workers (art.
45 (2) TFEU) solves this issue as for migrant workers, guaranteeing equal treatment. The
question is then to what extent that applies to posted workers. The ECJ has ruled in Rush
Portuguesa 119 that posted workers are not subject to the free movement of workers but to the
free movement of services, as they are expected to return to their country of origin without
gaining access to the host’s labour market. However, Member States must look carefully if
113
Barnard 2000, p. 26
Bernaciak 2012, p. 25
115
Hellsten 2006, p. 22
116
European Parliament 2003, pts. 5-6
117
Cremers 2007, p. 538
118
Ibid, p. 525
119
Case C-112/89, Rush Portuguesa, Judgment of 27 March 1990, [1990] ECR I-1417, pars. 13-15
114
22
businesses aren’t using “a cloak of provision of services” to circumvent law. 120 As the
temporary nature of posting is not clearly defined in the PWD, it allows for businesses to post
workers in a repeated fashion and for long periods of time, thus de facto migrating workers
under such a cloak. That is a problem which, from a social point of view, must be dealt with.
This would also contribute to fair competition, as it diminishes the abuse of the posted
workers’ status and by that, market distortions.
Together with the fifth and twelfth Recital in the Preamble of the PWD, which
guarantee worker protection and enable host states to apply more laws to posted workers,
there is though room for host states to choose to grant better protection than the PWD-core.
The seventeenth Recital confirms this. The upward convergence of social standards is also
hampered 121 by blocking this choice for host states, justifying a more worker protective
approach to the combat of social dumping. By making ‘the core’ a minimum that lays down a
floor of protection rather than a ceiling, equal treatment would be better ensured throughout
the EU and upward convergence of social standards would be facilitated.
Elaboration on these distinct notions has shown how they can contradict each other to an
extent. Due to these notions, the PWD justifies both an economic approach as well as a
separate social (component 3) approach, making it a compromise instead of a connection
(component 2). Consequently, the PWD has manifestations of both component 2 and 3. There
is though a connection between the two. As shown, protecting workers provides for economic
fair competition when abuse of the posted workers’ status is prevented and implementation
and enforcement is enhanced. Also, a clear, predictable core of worker protection is needed
from both perspectives, in order to prevent excessive exploit of cheap labour and provide
clarity. Chapter 2 will show how the ECJ has interpreted these notions and chapter 3 will
shed light on the EU Commission’s current interpretation of these notions.
1.6 Conclusion
In this chapter I have shown how the three components of social policy are reflected in the
social policy acquis of the EU.
120
121
Ibid, summary
Bernaciak 2012, p. 14
23
I have firstly analysed how the principle of subsidiarity restricts the reach of EU social
policy. Competence must be in the hands of the most effective layer of decision-making
which is as close as possible to the citizens. Also, the principle of subsidiarity has led to the
introduction of social partners in the decision-making in social policy, thus confining the
legal competence of the EU itself. However, the principle of subsidiarity still leaves room for
either component 2 or component 3. Component 2 conditions social policy to be legitimised
both in economic and social terms. It differs from national social policy in this sense, because
national policy is usually considered as market-correcting. This market-making idea of social
policy derives from the problem of unemployment, which had to be dealt with from an
economic integration point of view. Thus, EU social policy is a social camouflage for the
EU’s real politics: the sustainability and completion of the internal market. Component 3
shows some signals towards social policy beyond market-making. The policy documents of
the EU concerning its combat of social exclusion illustrate this. With that in mind, the
recently conferred constitutional value on the Charter of Fundamental Rights (containing
social rights) is an interesting development. However, it turns out that the Charter merely
functions as a ‘fundamental social rights-compass’ for the EU in its legislative procedure to
remain credible and exemplary, instead of actually adding to its competence in that field.
Lastly, I have examined the PWD’s special status in social policy. It appears to be a
compromise between economic and social objectives, consisting of both components 2 and 3
rather than one or the other. The Explanatory Memorandum, Preamble with its notions of fair
competition and worker protection, confirm that. Fair competition requires the PWD to
enhance implementation and enforcement and lay down a core of worker protection. Worker
protection requires the PWD to ensure equal treatment, making it possible for host states to
apply more than the core to posted workers. Chapters 2 and – in particular - 3 will clarify
what the EU’s interpretation of these notions is.
Chapter 2. The Laval-case and its implications for EU social policy.
The Laval-case 122 and its follow-up decisions show where the ECJ stands on EU social policy
and posted workers. I will restrict myself to the parts of the cases which are relevant to the
thesis, namely the way the ECJ deems that the PWD is to be implemented and enforced and
the extent to which the ECJ deems host states should be able to apply their rules to workers.
122
Case C-341/05, Laval un Partneri Ltd v. Svenska Byggnadsarbetareförbundet, Judgment of 18 December
2007 [2007] ECR I-11767 (‘Laval’)
24
2.1 Laval-case: legal context
Firstly, article 3 (1) of the PWD prescribes which terms and conditions host states are
allowed to apply to posted workers on their territory (the aforementioned ‘core of protection’).
These provisions must be either laid down by law, regulation or administrative provision
(first indent of art. 3 (1)), or by collective labour agreements or arbitration awards which have
been declared universally applicable (second indent). For collective labour agreements and
arbitration awards which aren’t universally applicable, art. 3 (8) encompasses a possibility of
applying those agreements to posted workers. Member States can base themselves on
agreements which are generally applicable to all similar undertakings in the specific industry.
Member States must explicitly decide to do so and must guarantee equal treatment between
national and foreign undertakings. Furthermore, art. 3 (7) provides the possibility of applying
more favourable conditions to the workers. Also, additional provisions can be applied if they
are part of public policy and guarantee equal treatment (art. 3 (10)).
I will have to briefly outline the Swedish system as well. Although Swedish
legislation does provide for the terms and conditions as laid down in the list of art. 3 (1) PWD,
the minimum rates of pay (art. 3 (1) (c)) are left out. Those are left in the hands of
management and labour. Employers are forced to enter into negotiations with trade unions
concerning a collective agreement which will ultimately decide the rates of pay. Swedish
legislation does provide for an exception of this obligation when the employer has already
signed another collective agreement. However, foreign collective labour agreements are not
recognized by that provision.
2.2 Facts
Laval is a company which is incorporated under Latvian law and, in 2004, had posted 35
workers to Sweden to work for its subsidiary Baltic, incorporated under Swedish law. Laval
was already bound to a collective labour agreement in Latvia, as were 65 % of its employees
at the time. 123 After the posting of the workers to Sweden, three Swedish trade unions
approached Laval to sign the collective agreement for the building sector. Negotiations
between the parties ultimately broke down due to disagreement on the rates of pay. As a
123
Laval, pts. 27-28
25
result, Laval refused to sign the agreement and refused to apply the rates of pay. The Swedish
trade unions then decided to start collective action against Laval, 124 which ultimately led to
bankruptcy of Baltic. The preliminary question submitted (relevant to my thesis) before the
ECJ was whether the use of collective action to force Laval to sign the agreement was
incompatible with free movement of services (art. 56 TFEU), since the (minimum) rates of
pay weren’t laid down in express provisions in the legislation implementing the PWD?
2.3 European Court of Justice
Firstly, the ECJ establishes that the actions of the Swedish trade unions are indeed within the
domain of the free movement of services. The ECJ states that certain national provisions can
be applied to posted workers in the host state and for that purpose, it points to the PWD. 125
The ECJ also explicitly rules out that the PWD was meant to harmonize rules, by referring to
Recital 13 of the Preamble. This means that, within the framework the PWD provides, the
Member States have their own freedom to define the content of the PWD. 126 The ECJ then
rules that minimum rates of pay in Sweden are not laid down in accordance with the means of
art. 3 (1) of the PWD. The collective agreement at stake is not universally applicable and
Sweden has not decided to make it applicable in the sense of art. 3 (8). 127 However, as
harmonization was not an objective, Member States can still apply their rates of pay as long
as this doesn’t hinder the free movement of services. 128
Then, the ECJ elaborates on the rationale behind the PWD. It shows how art. 3 (1) is
meant to “ensure a climate of fair competition” 129 by establishing minimum protection for
workers. Consequently, if the home state’s nucleus of protection is lower than the host state’s
nucleus, the workers are afforded the host state’s better terms and conditions of
employment. 130 That is generally the only way the posted workers can enjoy better protection,
as becomes clear in the next paragraphs of the decision. The ECJ points to art. 3 (7), ruling
that it “cannot be interpreted as allowing the host Member State to make the provision of
services conditional on the observance of terms and conditions of employment which go
124
Ibid, pt. 33
Ibid, pts. 56-58
126
Ibid, pt. 60
127
Ibid, pt. 67
128
Ibid, pt. 68
129
Ibid, pt. 74
130
Ibid, pt. 77
125
26
beyond the mandatory rules for minimum protection.” 131 The ECJ finds that a different
interpretation would deprive the PWD of its effectiveness. This means that art. 3 (7) is
limited to a comparison between the nucleus of the home state and the host state, rather than
favourable conditions altogether. For Sweden, this means that, now that certain matters in the
collective agreement have more favourable conditions than the Swedish legislative provisions,
those matters fall outside its scope. Its protection exceeds the mandatory minimum level of
protection. 132 Furthermore, the ECJ shows how the public policy-exception of art. 3 (10)
doesn’t offer any solace for the collective agreement at stake either. As the rates of pay are in
the hands of private bodies and no recourse is made to public bodies, it can’t be considered
part of public policy. 133 Finally, with regard to the relationship of free movement of services
to the right of collective action, the ECJ acknowledges that the right of collective action is
part of Community law. However, it also rules that it can be subject to restrictions, since it “is
to be protected in accordance with Community law and national law and practices”. 134
Therefore, it must be examined whether the exercise of collective action in the case at hand
constituted a (justifiable) restriction on the free movement of services. The ECJ also rules
that the fact that trade unions aren’t public in nature is irrelevant for the application of art. 56
TFEU, as the trade unions collectively regulate the provision of services. 135 The collective
action at stake is part of a national context characterised by the lack of provisions which
provide for preciseness, accessibility and which do not render it impossible for foreign
businesses to determine which minimum rates of pay they have to comply with. 136 This
makes the Swedish trade unions’ strike action incompatible with free movement of services.
2.4 Analysis
As said in the introduction, the ECJ has “liberalized” the PWD, resembling a different kind of
social policy than it was initially thought to be. I will now illustrate this by analysing the way
the ECJ deems the PWD should be implemented and enforced and to what extent it finds that
host states can apply their rules to posted workers.
131
Ibid, pt. 80
Ibid, pt. 81
133
Ibid, pt. 84
134
Ibid, pt. 91, for that they point to art. 28 of the Charter of Fundamental Rights.
135
Ibid, pt. 98
136
Ibid, pt. 110
132
27
Firstly, the way the ECJ allows for Member States to implement and enforce the PWD
illustrates the prevalence of economic over social objectives. The ECJ allows Member States
to implement the PWD in a way which doesn’t necessarily have to be expressly prescribed by
art. 3 (1) of the PWD. That way is constrained by one requirement: it can’t hinder the free
movement of services. Consequently, the reason for not allowing the collective agreement in
the case at hand was the Swedish negotiation system’s lack of clarity and predictability,
which deters foreign businesses from participating in the host state. Interestingly, AdvocateGeneral Mengozzi took a different stand here. Mengozzi acknowledged the lack of clarity in
the negotiation system, but respected that because such is inherent in a national system that is
based on contractual freedom instead of state intervention. The EU should, at its present stage
of development, steer clear of disallowing such approaches to employment by applying the
fundamental freedoms. 137 Moreover, the ECJ puts the right to collective action in a defensive
spot when it formulates the fundamental right as a (justifiable) restriction on the free
movement of services. As collective action is an important instrument for trade unions to
enforce labour standards, stressing that importance would increase trade union involvement
and would be in line with the new (softer) view on social policy, through OMC. 138
Secondly, the interpretation of arts. 3 (7) and (10) shows the ECJ’s view on the social
objective of the PWD. As the ECJ interprets the core of protection of the Directive as a
ceiling rather than a floor, there is no room for the host state to grant a higher degree of
protection to posted workers. By this, the ECJ restricts the reach of the Directive and chooses
for maximum protection instead of minimum. 139 Choosing for maximum is choosing to
connect the objectives of fair competition and worker protection (equal treatment) with each
other: it provides for a (limited) core of protection which is clear and predictable for both the
businesses and the workers. With regard to art. 3 (10), the ECJ even seems to contradict itself
to keep the worker protection down-sized. On the one hand, the rates of pay in Sweden
cannot be considered a part of public policy in the sense of art. 3 (10) because the trade
unions are privately incorporated, and on the other hand it is possible for the trade unions’
actions to fall within the public domain of art. 56 TFEU, even though they are privately
incorporated.
137
Opinion A-G Mengozzi, Case C-341/05 Laval, delivered on 23 May 2007, par. 260
Davies 2008, p. 148
139
Bruun 2006, p. 25; Hellsten 2006; the PWD was previously thought to be a minimum directive, guaranteeing
equal treatment.
138
28
In sum, the ECJ seems to base its interpretation of the PWD entirely (at the time already 10year old) on its legal basis (found in art. 57 in conjunction with art. 66 and 114 TFEU) which
prescribes that the legal measure must have as its object the facilitation of the internal market.
That is understandable, but the ECJ is not required by any legislation to do so. 140 The ECJ
can also take into account the Preamble and the Explanatory Memorandum of the PWD,
which reflect the Directive’s social part. Moreover, especially when looking at the Nice
Charter, the ECJ can take into account developments regarding the separate social dimension
in its interpretation, even when there is no social legal basis. As it is now however, the ECJ
firstly restricts enforcement and implementation by subjecting Member State methods to the
free movement of services and secondly, interprets the social objective of the PWD in an
economic way by treating the core of protection as a maximum. Its ‘compromise’ (as the
PWD originally was thought to be formulated) only exists in the maintenance of a core of
protection, which is exempted from providing any uncertain or unpredictable (more
protective) results. This is convenient for businesses and workers, since they both thrive by
clarity. In other words, the ECJ provides for worker protection in a way that it is reconcilable
with the objective of fair (though it ensures only partially fair competition) and free serviceprovision, resembling component 2 of EU social policy.
2.5 Laval-line continues
Rüffert, 141 a case decided on not long after Laval, showed that the internal market-oriented
way the ECJ had interpreted the PWD wasn’t incidental. The ECJ reiterated the Lavalrationale behind the limited interpretation of art. 3 (7) of the Directive 142 and it also
reaffirmed that the PWD “seeks in particular to bring about the freedom to provide
services,” 143 without at the same time mentioning the social objective. Besides that, the case
offered something new: the ECJ added to the interpretation of art. 3 (8). The ECJ ruled that
national systems which allow for the declaration of collective agreements to be universally
applicable but haven’t made use of that for the particular agreement, are not allowed to makes
use of the exception of art. 3 (8). 144
140
Itzcovich 2011, p. 539
Case C-346/06, Rüffert, Judgment 3 April 2008 [2008] ECR I-1989 (‘Ruffert’)
142
Rüffert, par. 33
143
Ibid, par. 36
144
Ibid, pars. 27-28
141
29
The seriousness of the ECJ as regards the internal market-interpretation of the PWD
was further reinforced by Commission v. Luxembourg. 145 It concerned the relationship of the
public policy-exception of art. 3 (10) with art. 9 (2) of Rome I. The ECJ had interpreted the
latter to be very strict in the Arblade-case. 146 In Commission v. Luxembourg, the ECJ showed
that the public policy-exception of art. 3 (10) should be interpreted strictly, as the ECJ stated
it is only open to national provisions of which compliance is so crucial for the political,
economic and social order that compliance is required with everyone present on the territory.
For that, it referred to Arblade. 147 Thus, the host state again has limited possibilities of
applying provisions to posted workers. Catherine Barnard even argues that the effect of the
ECJ referring to Arblade for art. 3 (10) is interpreting it “out of existence”, since art. 9 (2)
Rome I has only applied to circumstances which are so exceptional that they may never arise
at all. 148
2.6 Conclusion
This case law-analysis has shown where the ECJ stands on EU social policy. Component 2
has a more prominent place in the ECJ’s vision than it seemed when the PWD was first
adopted. The PWD is, according to the ECJ, first and foremost a tool for facilitating the free
and fair movement of services. The PWD’s social objective is to be interpreted as a
maximum core of protection for workers and by that, an instrument of clarity to businesses
and workers. That is enough to ensure competition is ‘fair’ while simultaneously granting
(some) worker protection. However, it does not satisfy the objective of better worker
protection (component 3). Also, as the ECJ makes it more difficult for Member States to
implement and enforce the PWD, abuse and circumvention of law is still possible as unfair
competition. The ECJ connects the economic and social objectives, reflecting the reconciling
nature of component 2, but also does so incompletely. Subsequent case law has followed the
Laval-line by further downsizing the social objective.
This internal market-interpretation is understandable to an extent, as the PWD has an
internal market-legal basis. However, the ECJ is not bound to interpreting the legal basis of
the PWD literally and has the possibility to take into account the Explanatory Memorandum
145
Case C-319/06 Commission v Luxembourg Judgment of 19 June 2008 [2008] ECR I-4323
Joined Cases C-369/69 and C-376/96 Arblade & Leloup, Judgment of 23 November 1999 [1999] ECR I-8453
147
Commission v. Luxembourg, pars. 29-31
148
Barnard 2009, p. 129
146
30
and Preamble. Moreover, currently it even has the obligation to take social interests into
account (art. 51 of the Nice Charter). The ECJ disregards that and down-sizes the
compromise between component 2 and component 3 in the original PWD, making the PWD
more of a component 2-measure. Chapter 3 will show how the various stakeholders have
responded to this and whether the EU Commission is going to deal with it.
Chapter 3. The Enforcement Directive proposal and EU social policy.
As mentioned in the introduction, the proposal for a Directive concerning the enforcement of
the Posting of Workers Directive (‘Enforcement Directive’) is a good way of seeing where
the EU currently stands on EU social policy. Does it reflect the way I have outlined it in
chapter 1 and does it rectify the internal market-focus of the ECJ as shown in chapter 2, or
does it follow the latter line of reasoning? I will now go through the process of the
Enforcement Directive, including opinions of stakeholders, and see how it reflects EU social
policy.
3.1 Social partners
The opinions of the social partners are relevant because the EU incorporates them in their
proposal and tries to find a compromise between their interests (also if their consultation isn’t
legally prescribed by the Treaty). Therefore, their opinions shape the basis of the proposal.
In a response to the Laval-case, the European Trade Union Confederation (‘ETUC’) observed
it had to be “revised with a view to restoring its primary objective: ensuring a climate of fair
competition and respecting workers' rights.” 149 The ETUC stressed the importance of the
PWD in battling social dumping when it was first adopted. And observed how, by Laval and
subsequent cases, this part had been neglected. 150 Its proposed revisions encompassed inter
alia the inclusion of the fair-competition-objective in the body of the Directive, a broader
legal (social) basis (art. 153 TFEU), clarification of the temporary nature of posting,
restoration of the minimum-character of the Directive and allowing Member States to use
effective monitoring and compliance mechanisms. 151
149
ETUC 2009
ETUC 2010, p. 5
151
Ibid, pp. 19-43
150
31
BusinessEurope, representing businesses on EU-level, took a different position.
BusinessEurope endorsed the Laval-reasoning and didn’t see the need for revisions. It
acknowledged the required climate of fair competition and argued that the PWD achieves this
climate as it is, since it lays down a core of protection for workers. Applying the entire body
of labour law would be unnecessary. BusinessEurope also stressed that implementation and
enforcement methods should only be improved in a sense that they do not hinder the
fundamental freedoms. 152
Applying these views to EU social policy, the tensions are visible. ETUC is
advocating for a larger part of component 3 and BusinessEurope is advocating for the ECJ’s
interpretation of the PWD, representing component 2. Both agree on the objective of a
climate of fair competition, but disagree on whether the PWD satisfies this objective or not.
For the ETUC, fair competition should be achieved by preventing abuse and circumventionpractices. On top of that, the core of protection needs to be a floor (laying down minimum
standards, facilitating upward convergence of social standards), instead of a ceiling (setting a
maximum, facilitating cross-border provision of services), providing workers with more
substantive protection if host states wish to do so (component 3). Contrarily, BusinessEurope
considers the climate of fair competition sufficiently ensured by the core of protection. The
core should remain a maximum due to the clarity it provides. This clear core of protection
connects the goals of worker protection and free provision of services (component 2).
BusinessEurope only stresses the importance of preventing abuse-problems which follow
from incorrect implementation and enforcement (unfair competition), when this doesn’t
affect the free movement of services.
3.2 Impact assessments Commission
The problems with the situation of posted workers ascertained in the impact assessments of
the Commission, 153 are divided in four categories: problems relating to implementation,
monitoring and enforcement of the Directive (i), problems concerning the abuse of the posted
worker’s status (ii), problems concerning the unclear interpretation of the nucleus of
protection (iii) and problems concerning the tensions between freedom of services and
152
153
Joint work report 2010, pp. 4-10
Commission Staff Working Document 2012
32
national industrial relation systems (iv). 154 The objectives of the proposal should be: the
enhancement of protection of workers’ rights (1), the facilitation of cross-border provision of
services and improvement of the climate of fair competition (2) and improving legal certainty
as regards the balance between social rights and economic freedoms (3).
The first objective is to be achieved by providing clarity to the workers. 155 This
already shows the Commission’s unwillingness to provide substantively better protection for
workers. It wants to clarify uncertainties and reduce non-respect of the existing protection,
regarding problems I and III.
The second objective, free movement of services and fair competition, is to be
improved by providing more clarity, improving enforcement and preventing abuse of the
posted workers status (problem II). As the commission-funded Study on Legal Aspects on
PWD shows, 156 there is no clear definition of what ‘temporary work’ is in the PWD. 157 As I
have explained in paragraph 1.5.5.2, this unclear definition allows businesses to use a ‘cloak
of provision of services’ to move their workers who de facto qualify as migrant workers. Also,
the employer has to be ‘established’ in a Member State in order for it to qualify as residing in
that state in the sense of the PWD. No genuine link between the employer and the home state
is required, opening the gate for the use of letterbox-companies to circumvent regulations.158
That might facilitate regulatory competition. It is though questionable whether the EU is even
competent to judge over the incorporation of a company, as this is considered a matter for
national law. 159 This thus raises the question how the Commission is going to tackle that
problem.
As for the objectives of fair competition and worker protection, the Commission
showed in its second objective how it strives to achieve fair competition by preventing abuse
and enhancing enforcement and implementation. 160 The Commission does not intend to grant
Member States the choice to impose more rules than the core stipulates. It legitimizes that by
pointing to the economic disadvantages such would imply as “equal treatment of posted
workers as regards wages would suppress the wage cost difference that is an incentive for
154
Ibid, pp. 5-8
Ibid, p. 9
156
Van Hoek & Houwerzijl 2011
157
Ibid, pp. 46-48
158
Commission Staff Working Document 2012, p. 7
159
Case C-210/06, Cartesio Oktató és Szolgáltató bt, Judgment of 16 December 2008 [2008] ECR I-9641, par.
108 (Cartesio)
160
Commission Staff Working Document 2012, p. 13
155
33
posting.” 161 On top of that, extending the core of protection may incentivize businesses to
abuse and evade law. 162
In conclusion, the Commission opts for a separate enforcement Directive, regulating
problems I and II under the same legal basis as the PWD, and regulating problem IV in a
separate Regulation. 163Thus, the interpretation of the core of protection remains unchanged.
The Commission endorses the ECJ’s line of reasoning in that sense, but does put more
emphasis on the importance of better implementation and enforcement, making competition
fairer.
3.3 Proposal on the Enforcement Directive
The opinions of the stakeholders and the impact assessments of the Commission ultimately
led to the proposal as submitted on 21 March 2012. 164 The speeches of EU Commission
President Baroso 165 and EU Commissioner László Andor 166 showed signs of a worker
protective approach to the PWD, using phrases as “protection of social rights” and “full
social protection everywhere in Europe.” The Explanatory Memorandum seems – at first
sight - to build on those speeches, as I will show now.
3.3.1
Explanatory Memorandum
In the Explanatory Memorandum, the Commission firstly lays down the general objective of
the PWD: reconciling the freedom to provide services with appropriate protection of the
rights of posted workers. The Commission also stresses the key role the PWD plays in
promoting a climate of fair competition, by guaranteeing both a level playing field and legal
certainty. The mentioning of the objective of a level playing field in combination with the in
161
Ibid
Ibid, p. 14
163
The so-called Monti II Regulation, which has now been withdrawn:
http://ec.europa.eu/dgs/secretariat_general/relations/relations_other/npo/letter_to_nal_parl_en.htm Retrieved on 15 September 2013
164
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, COM (2012) 131
final, 2012
165
“Today, the European Commission is taking concrete steps to put an end to unacceptable practices. We
want to guarantee that posted workers enjoy their full social rights everywhere in Europe.” – Speech given by
EU Commission President Baroso at the presentation of the proposal, 21 March 2012
166
“Fair competition and the protection of social rights are the bedrock of the EU’s single market” - Speech
given by European Commissioner for Employment, Social Affairs and Inclusion László Andor at the presentation
of the proposal, 21 March 2012
162
34
the Memorandum highly emphasized objective of legal certainty for foreign providers, seems
contradictory. Although the notion of a level playing field isn’t necessarily inconsistent with
legal certainty, the Commission identifies legal uncertainty as having to comply with many
(foreign) host state regulations. Creating a level playing field in this context implies
businesses having to comply with such regulations. The statements, however, don’t seem to
have a follow-up in the concrete proposals. I will show this in the coming paragraphs.
Then, the Commission outlines the developments since the adoption of the PWD in
1996 and the need for the PWD to be adapted to those. Firstly, several deficiencies in the
implementation and application of the PWD have emerged, as well as problems concerning
administrative cooperation and access to information.
167
And secondly, the ECJ’s
interpretation of the PWD in Laval and subsequent cases have caused for a major debate on
EU social policy.
The Commission further points to the Council’s Conclusions on the priorities for
relaunching the Single Market 168 and to the Krakow Declaration, 169 which both reflect
component 2 of EU social policy. According to those two policy documents and the
Memorandum, free cross-border provision of services “should go hand in hand with
guaranteeing an adequate and appropriate level of protection” for posted workers. 170 The
Commission doesn’t clarify what it means by adequate and appropriate. Adequate and
appropriate for workers or adequate and appropriate for businesses?
Further on, the Commission reiterates the preferred option from the Impact Assessment,
which considers regulation of the implementation and enforcement of the Directive together
with the prevention of abuse and circumvention of the posted worker’s status, the most
effective solution to achieve the stated objectives. 171 These regulatory measures are thus
meant to - at the same time - guarantee protection for posted workers’ rights as well as to
remove barriers to fair provision of services and to level the playing field. For this, the
Commission refers to the Strategy for the Charter of Fundamental Rights, acknowledging that
167
Commission Services Report 2003 and Muller 2010
“Proper implementation and enforcement of the Posting of Workers Directive can contribute to a better
protection of posted workers’ rights and ensure more clarity regarding the rights and obligations of service
providing businesses” – Council Conclusions on the Priorities for Relaunching the Single Market, 3094th
Competitiveness (Internal Market, Industry, Research and Space) Council meeting, Brussels, 30 May 2011
169
“Facilitating the temporary provision of services should go hand in hand with guaranteeing an adequate and
appropriate level of protection for any workers posted to another Member State”. - Single Market Forum,
Krakow, 3-4 October 2011, par. 5 of the Declaration
170
Explanatory Memorandum, p. 9
171
Ibid, p. 10
168
35
people must be able to effectively enjoy their rights as enshrined in the Charter. 172
Furthermore, the Commission uses the same legal basis for the Directive as the PWD has
(arts. 57 and 66 TFEU).
As for the question of inconsistency between the stated objectives of ‘level playing field’
on the one hand and ‘legal certainty’ on the other, the part on subsidiarity sheds light on that:
“Differences and disparities in the way Directive 96/71 EC is implemented, applied and
enforced in the different Member States are detrimental to the proper functioning of the
Directive. It thus risks making it very difficult, if not impossible, to create the required
level playing field for service providers and ensure that workers posted for the provision
of services enjoy the same level of protection guaranteed by the Directive throughout the
EU. Under these circumstances, the required legal clarity and certainty can only be
achieved at EU level.” 173
This shows a number of things: (1) how a level playing field is created while simultaneously
guaranteeing legal certainty, (2) that a level playing field is now used to grant equal treatment
to foreign providers rather than to domestic businesses and (3) that the PWD is seen as a
maximum harmonization measure. The Enforcement Directive only aims to decrease
disparities in the implementation and enforcement of the PWD. Consequently, the playing
field is indeed levelled to an extent, but in a restricted way. A way which also facilitates fair
cross-border provision of services, since businesses who are looking to provide services
abroad thrive by certainty. The objective of worker protection is (according to the
Commission) also satisfied, as the problems posted workers encounter are in the
Commission’s eyes based on a lack of clarity. Posted workers are in a foreign country, have
trouble obtaining proper representation and don’t know the local laws, institutions and
language. 174
Furthermore, this citation answers the question what the EU thinks an adequate and
appropriate protection is: one that doesn’t hamper economic integration and which remains a
ceiling instead of a floor (maximum instead of minimum). Adequate and appropriate for the
freedom to provide services rather than for the workers. Precluding host states of the choice
172
Ibid, p. 11
Explanatory Memorandum, p. 12
174
Ibid, p. 2
173
36
to impose more protection than the core doesn’t satisfy the objective of worker protection as
found in the fifth, thirteenth and fourteenth Recital of the Preamble of the PWD. As some
Member States currently apply the entire body of labour law to posted workers, 175 one could
say that workers are even deprived of protection by a stricter enforcement of the nucleus of
protection. The ‘social’ rhetoric used by Commissioners Baroso and Andor, together with the
stated objectives, are thus somewhat removed of their value when looking at the way the
objectives are to be achieved. However, the Commission does address the Charter of
Fundamental Rights and takes it into account. 176 Together with the existing nucleus of
protection, this shows some signals of component 3 (and also an improvement towards the
ECJ’s reasoning). But the PWD is (according to the Commission) first and foremost aimed at
improving the internal market while keeping the social part downsized by reconciling it with
the economic part (component 2). A more worker-protective approach would, as I showed in
chapter 1, entail the facilitation of upward convergence of social standards, rather than (partly)
eroding the richer countries’ labour laws in favour of the poorer countries’ labour law.
Worker protection would require the PWD to lay down minimum standards instead of setting
a maximum. Merely focusing on tackling implementation, enforcement and abuse problems
(‘clarity’) is incomplete from that perspective (component 3).
In the next paragraph I will show that even within the paradigm of ‘providing clarity’
tensions can arise between economic and social interests. I will also dig deeper into the
Commission’s objective to tackle abuse and letter-box companies.
3.3.2
Provisions reflecting tensions
Art. 3 Preventing abuse of posted worker’s status and letter-box companies
With regard to preventing abuse of the posted worker’s status, the Enforcement Directive
proposal lays down indicative 177 criteria as the constituents of the concept of posting and the
genuine establishment of the employer in the home state. BusinessEurope has argued that the
list is currently unclear, since the consequences of not-qualifying for it are unknown. 178 With
175
BusinessEurope Position Paper 2012, p. 8. For an example of such a country see Cremers 2007, p. 533
Recital 33 of the Preamble
177
Though the EESC appears to disagree on its indicative nature, stating that the list must not be exhaustive,
EESC Position Paper 2012, pt. 4.4
178
BusinessEurope Position Paper 2012, pt. 17
176
37
regard to that, the relationship with Rome I has also been addressed. 179 In the Progress Report
of the European Council, 180 the Council stated that some delegations wish to modify the fifth
Recital of the Enforcement Directive so that it applies host state law to workers who don’t
fulfil the requirements of the list. Others have acknowledged that Rome I then is neglected,
since it uses the habitual workplace as the connecting factor. They would want the inclusion
of an equal treatment-provision in Rome I. 181 From a fair competition point of view, the list
of criteria for a posted worker allows for case-by-case decisions and thus a more accurate
assessment, reducing the risk of abuse. The ETUC has acknowledged this, but fears the
possibility of Member States using the least cumbersome criteria. 182 Also, the ETUC’s of the
opinion that the provisions should prevent repeated posting and prohibit letter-box companies,
which they don’t at the moment. As concerns the action against letter-box companies, this is
though not a realistic option, due to the lack of competence of the EU in that area. 183
Art. 12 Joint and several liability – Effective protection against too many
administrative costs
This article has been the most contested. It introduces a system - for the construction sector that shifts the responsibility for protection of worker rights from the Member State to
companies themselves. It allows for the contractor of which the employer is a direct
subcontractor to be held liable by the posted worker. BusinessEurope heavily opposes this
provision. The decision to introduce a joint and several liability system should in their
opinion remain at the discretion of Member States rather than be imposed by the EU.
Blurring the lines between private and public would also lead to confusion for the workers. 184
Furthermore, BusinessEurope argues that this provision has adverse effects as companies will
be more reluctant to report non-enforcement due to fear of liability. Contrarily, the ETUC
considers this system “indispensable in protecting workers from abuses.” 185 It even advocates
for expansion of the system towards all sectors, rather than just the construction sector. 186
179
The legal study on posted workers from Van Hoek & Houwerzijl 2011 also stated that this part of the PWD is
neglected, its actual origin is a private international law-instrument not just internal market (=closest
connection principle), see p. 12
180
Council Progress Report 2012, p. 7
181
Ibid
182
ETUC Position Paper 2012, p. 1
183
See Cartesio case
184
BusinessEurope Position Paper 2012, pt. 30
185
ETUC Position 2012, p. 2
186
Ibid
38
3.4 Conclusion
The Enforcement Directive proposal endorses the ECJ’s line of reasoning in Laval to an
extent. Although the impact assessments, the Explanatory Memorandum and speeches of
Commissioners hinted towards a bigger role for worker protection in the PWD, the ECJ’s
interpretation of the core protection has been maintained. Consequently, the core protection
the PWD provides for remains a ceiling, not a floor. The way to ensure fair competition is by
improving implementation and enforcement of the current core and clarifying the definition
of a posted worker. In that sense, the Enforcement Directive corrects and adds to the ECJ’s
reasoning, as the ECJ made implementation and enforcement subject to free movement of
services.
Whereas the objective of fair competition appears to be satisfied, the objective of
worker protection has a limited place in the proposal. The Commission chooses to reconcile
the PWD’s economic objective with the protection of workers, resulting in an interpretation
of the latter which is constrained by its necessity to be legitimized in economic terms. The
possibility for host states to impose better protection than just the core, has remained
downsized, making the proposal incomplete from a worker protection-perspective. On top of
that, a closer look at the provisions of the Enforcement Directive has left me unconvinced as
to the action against letter-box companies, as they don’t prohibit the use of letter-box
companies (which is not possible regardless) or repeated posting. The ‘economic’
interpretation of the notions of ‘a level playing field’ and ‘the protection of social rights’
might be either because of the lack of consensus on what is social, 187 (however, a more
worker protective approach seems possible within the current EU social policy paradigm, as I
have shown in chapter 1) or is just the result of the use of social policy rhetoric to camouflage
actual economic objectives (component 2).
As for component 3, both the Explanatory Memorandum as the Preamble refer to the
Charter of Fundamental Rights and state that the Proposal satisfies the rights enshrined in it.
A look at the provisions shows that clarity is to be achieved by shifting liability to companies
instead of Member States, which can improve enforcement and implementation of the PWD
considerably. Even to a point where it’s not economically justified, as BusinessEurope’s
objections illustrate. With regard to the ECJ’s reasoning, this is a step in the right direction.
187
The definition of what is social differs per region, Kukovec 2012
39
But this doesn’t take away the fact that the Commission doesn’t deviate from the ECJ’s line
of reasoning as for the maximum core protection. The social objective’s pre-existing place in
the PWD as the opposing factor of free and fair movement of services seems to have been
interpreted as more of a boosting factor, more resembling component 2.
Conclusion
In this thesis, I have provided a framework of EU social policy consisting of three
(conflicting) components, in order to finally analyse the recent proposal of the Commission
on the Enforcement Directive concerning the PWD. The PWD has been the platform for a
clash between these two tensions. Workers remain subject to the law of their habitual
workplace when they are posted to another country, with the exception of host state OMPs.
The PWD clarifies to what extent these host state rules apply, what shape they may have and
how they are enforced, thus playing a key role in the tensions: on the one hand it has to
facilitate cross-border service provision within a climate of fair competition and on the other
hand it has to protect the workers.
In chapter 1 I have elaborated on the three components of EU social policy. First, I
researched the principle of subsidiarity. As the protocol on the application of subsidiarity
shows, subsidiarity has some influence on social policy but leaves plenty of room for the
other components to clash. Then, I investigated the market-making function of EU social
policy. The EU’s increased interest in social policy stems from the early 90’s, where the EU
decided that economic and social objectives are meant to be two sides of the same coin. They
need to be reconciled with each other. This is a social camouflage for the real politics of the
EU: facilitation and sustainability of the Internal Market. Thirdly, I looked at the separate
social dimension. From the policy documents of the EU it shows that there are indeed signs
of EU social objectives which transcend ‘market-making’. It is interesting from that point of
view to see the recently conferred constitutional value of the Charter of Fundamental Rights.
The impact of this Charter is however limited to serving as a ‘fundamental social rightscompass’ for the EU in its preparatory stage of policy-making. Finally, I took a closer look at
the PWD and its place in EU social policy. It appears a compromise of components 2 and 3,
rather than a reconciliation of economic and social objectives (as component 2). However,
this depends on the way the EU aims to achieve a climate of fair competition as well as
respecting workers’ rights.
40
In chapter 2, I have researched what the ECJ’s take is on these tensions in EU social
policy through its interpretation of the PWD. The Laval-case and its follow-up decisions
illustrate an internal market-oriented approach to the PWD. According to the ECJ, the PWD
should be implemented in a way that doesn’t hinder free movement of services, with a limited
role for fundamental social rights in the enforcement of the PWD. Furthermore, the core of
protection should remain a ceiling (maximum), not a floor (minimum). It leaves little room
for more rules to apply to posted workers. Making it a ceiling favours free movement of
services: businesses know what to expect when going cross-border and as a side-effect,
workers thrive by such clarity as well. A climate of fair competition is thus (partly) ensured
while also granting workers a clear, predictable core of protection. However, the internal
market-approach to implementation and enforcement is from both a fair competition as
worker protection-perspective insufficient. The ECJ chooses reconciliation over compromise
and makes free movement of services prevalent over social rights. That is understandable due
to the PWD’s legal basis, but the ECJ is not required to interpret the PWD literally and can
(currently must, see Nice Charter) take social developments and the Preamble and
Explanatory Memorandum into account.
Finally, in chapter 3 I have analysed the Commission proposal on the Enforcement
Directive. As I have shown, the social partners disagree on the concept of the social objective.
The ETUC considers fair competition to be ensured by reducing abuse, improving
enforcement and giving host states a choice to impose better protection, whereas
BusinessEurope endorses the ECJ’s line of reasoning and deems the current core of
protection sufficient. The Commission leans towards the latter and endorses the ECJ’s line of
reasoning to an extent. It improves the ECJ’s reasoning with regard to the objective of fair
competition, as the importance of preventing the abuse of law and enhancing implementation
and enforcement is acknowledged. This is also the way to reconcile both interests of
businesses and workers. Better implementation and enforcement will decrease disparities
between Member States, will increase equal protection and level the playing field to an extent.
It will provide both parties with clarity. However, this doesn’t satisfy the worker-protective
part of the PWD completely, which requires that host states have the option to apply more
rules. Furthermore, a closer look at the provisions of the proposal shows that the problem of
abuse and letter-box companies is not tackled convincingly, but also shows that the
Commission is willing to use social enforcement mechanisms as art. 12 on thejoint and
several liability system shows.
41
In conclusion, the Commission has built on the component 2- approach of the ECJ to
the PWD but does facilitate better implementation and enforcement and reduce of abuse.
Whereas the PWD was previously thought to be a minimum Directive which compromises
economic and social objectives rather than reconciles them, the Commission has rectified this
misconception in its Enforcement Directive proposal. By that, component 3 has been
downsized. Restoring it could in my opinion be best solved by adding a second (social) legal
basis. This would reflect the original compromising nature of the PWD and put an end to
confusions. The question remains whether the EU actually wants to do so or that it feels it
isn’t ready for the construction of a social interpretation of the PWD.
Bibliography
Case law
European Court of Justice
-
Case 6/64 Costa v. ENEL Judgment of 15 July 1964 [1964] ECR 585,
-
Case 80/70, Defrenne vs. Belgium, Judgment of 25 May 1971 [1971] ECR 445
(Defrenne I)
-
Case 43/75, Defrenne vs. Sabena, Judgment of 8 April 1976 [1976] ECR 455
(Defrenne II)
-
Case C-112/89, Rush Portuguesa, Judgment of 27 March 1990 [1990] ECR I-1417
-
Case C-84/94 UK v. Council, Judgment of 12 November 1996 [1996] ECR I-5755,
(‘Working Time Case’)
-
Joined Cases C-369/69 and C-376/96 Arblade & Leloup, Judgment of 23 November
1999 [1999] ECR I-8453
-
Case C-281/98, Angonese, Judgment of the Court of 6 June 2000, [2000] ECR I04139
-
Case C-139/01 Österreichischer Rundfunk and Others, Judgment of 20 May 2003
[2003] ECR I-4989
-
Case C-380/03, Tobacco Advertising, Judgment of 12 December 2006, [2006] ECR I11573
-
Opinion of A-G Maduro, Case C-438/05, Viking, delivered on 23 May 2007
42
-
Opinion of
A-G Mengozzi, Case C-341/05 Laval un Partneri Ltd v. Svenska
Byggnadsarbetareförbundet, delivered on 23 May 2007
-
Case C-438/05, Viking, Judgment of 11 December 2007 [2007] ECR I-10779
(‘Viking’)
-
Case C-341/05, Laval un Partneri Ltd v. Svenska Byggnadsarbetareförbundet,
Judgment of 18 December 2007 [2007] ECR I-11767 (‘Laval’)
-
Case C-346/06, Rüffert, Judgment of 3 April 2008 [2008] ECR I-1989
-
Case C-319/06 Commission v Luxembourg, Judgment of 19 June 2008 [2008] ECR I4323
-
Case C-210/06, Cartesio Oktató és Szolgáltató bt, Judgment of 16 December 2008
[2008] ECR I-9641
-
Case C-144/04, Mangold v. Helm, Judgment of 22 November 2005, [2005] ECR I9981
-
Case C-555/07, Seda Kücükdeveci v. Swedex GmbH. & Co. KG. Judgment of 19
January 2010 [2010] IRLR 346
-
Case C-147/08, Jürgen Römer v. Freie und Hansestadt Hamburg, Judgment of 10
May 2011 [2011] ECR I-000
-
Opinion of A-G Trstenjak, Case C-282/10, Maribel Dominguez v. Centre
Informatique du Centre Ouest Atlantique and Prefet de la region Centre, delivered on
8 September 2011
-
Case C-282/10, Maribel Dominguez v. Centre Informatique du Centre Ouest
Atlantique and Prefet de la region Centre, Judgment of 24 January 2012
Literature
Books
-
Barnard 2000
C. Barnard, EC Employment Law, 2nd Ed., New York: Oxford University Press (2000)
-
Hellsten 2006
J. Hellsten, On the Social Dimension in Posting of Workers, Helsinki: Hanken School
of Economics (2006)
-
Hervey 1998
T. Hervey, European Social Law and Policy, London: Longman (1998)
-
Marshall 1975
43
T.H. Marshall, Social Policy in the Twentieth Century, London: Hutchinson (1975)
-
Teague 1989
P. Teague, The European Community: The Social Dimension, London: Kogan Page,
(1989)
Articles
-
Barnard 2009
C. Barnard, ‘The UK and Posted Workers: The Effect of Commission v Luxembourg
on the Territorial Application of British Labour Law’, Industrial Law Journal, Vol. 38
(1), (2009), pp. 122-132
-
Bernaciak 2012
M. Bernaciak, ‘Social dumping: political catchphrase or threat to labour standards?’
Working Paper 2012.06 (2012)
-
Bhagwati 1995
J. Bhagwati, ‘Trade Liberalisation and Fair Trade Demands: Addressing the
Environmental and Labour Standards Issues’, The World Economy 18(6) (1995) pp.
745-759.
-
Bruun 2006
-
N. Bruun: ‘The Proposed Directive on Services and Labour Law,’ in: R. Blanpain,
Freedom of Services in the European Union, Labour and Social Security Law: the
Bolkestein Initiative. The Hague: Kluwer Law International (2006), pp. 19–35
-
Carter 1997
C. Carter, ‘The `European Social Model': A Framework for Analysis’, paper delivered
in Leeds, November 6 1997 (1997)
-
Carter 2002
C. Carter, ‘Debates on Social Policy’ in: J. Gower, The European Union: handbook,
2nd ed., London: Fitzroy Dearborn Publishers (2002)
-
Collins 1975
D. Collins, 'The European Communities: The Social Policy of the First Phase’ Journal
of Social Policy, 6 (1975)
-
Constantin 2008
44
S. Constantin, ‘Rethinking Subsidiarity and the Balance of Powers in the EU in light
of the Lisbon Treaty and Beyond’ Croatian Yearbook of European Law and Policy,
Vol. 4 (2008) pp. 151 – 177
-
Cremers et al 2007
J. Cremers et al., ‘Posting of workers in the single market: attempts to prevent social
dumping and regime competition in the EU’, Industrial Relations Journal Vol. 38
Issue 6 (2007), pp. 524 - 541
-
Critchley 1995
P. Critchley, ‘The European Union and the Principle of Subsidiarity’, In: P. Critchley,
Europe and Industry Vol. 1: The Integration of the European Union (1995) pp. 1 - 19
-
Daly 2006
M. Daly, ‘EU Social Policy after Lisbon’, Journal of Common Market Studies,
Vol.44(3), (2006), pp. 461-481
-
Davies 2008
A.C.L. Davies, ‘One Step Forward, Two Steps Back? The Viking and Laval Cases in
the ECJ’, Industrial Law Journal Volume 37, Issue 2 (2008) pp. 126-148
-
Daly 2012
M. Daly, ‘EU Social Policy: Developments in the Field and Insights for the Study of
Social Policy’ ACES Cases, No. 2012.1 (2012)
-
Deakin and Wilkinson 1995
S. Deakin and F. Wilkinson, ‘Rights vs Efficiency? The Economic Case for
Transnational Labour Standards’ International Law Journal 23 4 (1995) pp. 289 - 310
-
Dutheil 2008
J. Dutheil de la Rochère, ‘The EU Charter of Fundamental Rights, Not Binding but
Influential: the Example of Good Administration’ in: A. Arnull et al. Continuity and
Change in EU Law: Essays in Honour of Sir Francis Jacobs, Oxford: Oxford
University Press (2008)
-
Freedland 1997
M. Freedland, ‘Employment Policy’, in: P. Davies et al. European Community Labour
Law: Principles and Perspectives, Oxford: Clarendon Press (1997)
-
Hauser 1996
R. Hauser, ‘Sozialpolitische Optionen in der Europäischen Union’ in: W. Fricke,
Jahrbuch für Arbeit und technik, Bonn: Dietz (1996) pp. 232 – 244
45
-
Van Hoek & Houwerzijl 2011
A. van Hoek, M. Houwerzijl, ‘Comparative study on the legal aspects of the posting
of workers in the framework of the provision of services in the European Union, to
the European Commission’, Commission-funded report (21 March 2011)
-
Itzcovich 2011
G. Itzcovich, ‘The Interpretation of Community Law by the European Court of
Justice’, German Law Journal, Vol. 10, No. 5, (2011) pp. 537-560
-
Kukovec 2012
D. Kukovec, ‘A Critique of the Rhetoric of Common Interest in the EU Legal
Discourse’, Harvard Law Paper (2012)
-
Leibfried 2010
S. Leibfried, ‘Social Policy: Left to Judges and the Markets?’ in: H. Wallace et al.
Policy-Making in the European Union, New York: Oxford University Press (2010) pp.
253-281
-
Lenaerts & Gutierrez-Fons 2010
K. Lenaerts, J. Gutiérrez-Fons, ‘Constitutional Allocation of Powers and General
Principles of EU Law’, Common Market Law Review, Vol. 48, Issue 6 (2010), pp.
1629-1669
-
Maslauskaité 2013
K. Maslauskaité, ‘Social competition in the EU: myths and realities’, Studies &
Reports No 97, Notre Europe – Jacques Delors Institute (June 2013)
-
Meehan 2002
M. Meehan, ‘EU Charter of Fundamental Rights’ in: J. Gower, The European Union:
handbook, 2nd ed. London: Fitzroy Dearborn Publishers (2002)
-
Muller 2010
F. Muller, Study ‘Information provided on the posting of workers’, Commissionfunded study, Strasbourg (September 2010)
-
Van Peijpe 2012
T. van Peijpe, ‘Toepassing van EU-grondrechten in nationaal arbeidsrecht’,
Tijdschrift voor Recht en Arbeid 2012/76 (2012), pp. 15-18
-
Ritzer et al 2006
Ritzer et al., ‘How to Sharpen a Dull Sword – The Principle of Subsidiarity and its
Control’ German Law Journal 7 (2006) pp. 733-760
46
-
Scharpf 2002
F. Scharpf, ‘The European Social Model: Coping with the Challenges of Diversity’,
MPIfG Working Paper 02/8, (2002)
-
Scharpf 2009
F. Scharpf, ‘The Double Asymmetry of European Integration’, MPIfG Working Paper
09/21 (2009)
-
Szyszczak 2000
E. Szyszczak, ‘The Evolving European Employment Strategy’ in J. Shaw, Social Law
and Policy in an Evolving European Union, Oxford and Portland: Hart Publishing,
(2000) pp. 197-222
-
Szyszczak 2001
E. Szyszczak, ‘The New Paradigm for Social Policy: A Virtuous Circle?’ Common
Market Law Review 38, Kluwer Law International Netherlands (2001) pp. 1125-1170
-
Trubek 2005
D.M. Trubek, L.G. Trubek, ‘Hard and Soft Law in the Construction of Social Europe:
the Role of the Open Method of Co-ordination’, European Law Journal, Vol. 11, No.
3 (2005), pp. 343–364
Policy documents
-
BusinessEurope Position Paper 2012
BusinessEurope, Position Paper on ‘Enforcement of the Posting of Workers
Directive’ (25 May 2012)
-
Commission Proposal 1991
Commission Proposal for a Council Directive concerning the posting of workers in
the framework of the provision of services, COM (91) 230 final (1991)
-
Commission White Paper 1993
Commission White Paper on ‘Growth, Competitiveness and Employment: the
Challenges and Ways Forward into the 21st Century’, COM (93) 700 (1993)
-
Commission White Paper 1994
Commission White Paper on ‘Social Policy: European Social Policy, A Way Forward
for the Union’, COM (94) 333 final (1994)
-
Commission Communication 1999
47
Commission Communication ‘A concerted strategy for modernising social protection’,
COM (99) 347 final (1999)
-
Commission Social Policy Agenda 2000
Commission Communication, ‘Social Policy Agenda’, COM (2000) 379 final (2000)
-
Commission Services Report 2003
Report from the Commission Services on the implementation of 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 (2003)
-
Commission Communication 2003
Commission Communication, ‘Modernising social protection for more and better jobs
– A Comprehensive Approach contributing to Making Work Pay’, COM (2003) 842
final (2003)
-
Commission Communication 2005a
Commission Communication, ‘Working Together, Working Better: A new framework
for the open co-ordination of social protection and inclusion policies the European
Union’, COM (2005) 706 final (2005)
-
Commission Communication 2005b
Commission Communication – 'Compliance with the Charter of Fundamental Rights
in Commission legislative proposals - Methodology for systematic and rigorous
monitoring', COM(2005) 172 final (27.4.2005)
-
Commission Charter Strategy 2010
Commission Communication - Strategy for the Effective Implementation of the
Charter of Fundamental Rights by the European Union, COM (2010) 573/4, 2010
-
Commission Staff Working Document 2012
Commission Staff Working Document, Executive Summary of the Impact
Assessment accompanying the document of the Enforcement Directive, SWD (2012)
64 final
-
Commission Proposal on Enforcement Directive 2012
Commission 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, COM (2012) 131 final (2012)
-
Council 2000
48
Council Meeting on ‘Fight against poverty and social exclusion – Definition of
appropriate objectives’ (November 2000)
< http://ec.europa.eu/employment_social/social_inclusion/docs/approb_en.pdf>
-
Council Decision 2001
Council Decision of 19 January 2001 on Guidelines for Member States' employment
policies for the year 2001 (2001/63/EC)
-
Council Conclusions 2011
Council Conclusions on the Priorities for Relaunching the Single Market, 3094th
Competitiveness (Internal Market, Industry, Research and Space) Council meeting,
Brussels (30 May 2011)
-
Council Progress Report 2012
Council of the European Union, 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, Progress Report, 29
November 2012, 2012/0061 (COD)
-
EESC Opinion 2012
Opinion of the European Economic and Social Committee on the ‘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’ (2012)
-
ETUC 2009
ETUC Resolution on conditions for free movement: more protection of workers and
fair competition, adopted at ETUC Steering Committee of 28 April 2009 (2009)
-
ETUC 2010
ETUC: Revision of the Posting of Workers Directive: Eight proposals for
improvement, Final report from the ETUC Expert Group on Posting, Brussels, 31
May 2010 (2010)
-
ETUC Position Paper 2012
ETUC Position on the Enforcement Directive of the Posting of Workers Directive,
adopted at the Executive Committee on 5-6 June 2012 (2012)
-
European Parliament 2003
European Parliament, ‘Report on the Implementation of Directive 96/71/EC in the
Member States,’ Document A5 0448/2003 final. Rapporteur: Anne-Karin Glase (2003)
49
-
Joint work report 2010
Report on joint work of the European social partners on the ECJ rulings in the Viking,
Laval,
Rüffert
and
Luxembourg
cases,
19
March
2010
(2010)
see
http://www.etuc.org/IMG/pdf_Joint_report_ECJ_rulings_FINAL_logos_19.03.10.pdf
-
Krakow Declarations 2011
Single Market Forum, Krakow, Poland, 3-4 October 2011 (2011)
-
Lisbon Summit 2000
Presidency Conclusions, Lisbon, European Council, 23 and 24 March 2000 (‘Lisbon
Summit’)
-
Luxembourg Process 1997
Presidency Conclusions, Luxembourg, Extraordinary European Council Meeting on
Employment, European Council of 20-21 November 1997, ´Luxembourg Process´
(1997)
Websites
-
Withdrawal Monti II Regulation
Commission decision to withdraw the Proposal for a Council 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 - COM(2012) 130 <available at
http://ec.europa.eu/dgs/secretariat_general/relations/relations_other/npo/letter_to_nal_
parl_en.htm >- Retrieved on 15 September 2013
-
Social Policy Agreement
Social Policy Agreement <available at
http://europa.eu/legislation_summaries/glossary/social_policy_agreement_en.htm
>-
Retrieved on 15 September 2013
-
Social Charter 1989
Community Charter of the Fundamental Social Rights of Workers <available at
http://europa.eu/legislation_summaries/glossary/social_charter_en.htm > - Retrieved
on 15 September 2013
50