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Revision of the Posted Workers Directive: A Europeanisation Perspective

Published online by Cambridge University Press:  09 August 2017

Rebecca ZAHN
Rebecca ZAHN*
Affiliation:
University of Strathclyde
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Abstract

This article places the current legal framework governing posted work within the debate on ‘Europeanisation’ in order to assess to what extent the Posted Workers Directive may be seen as a successful tool to ‘Europeanise’ national labour law systems as assessed against its dual objectives of promoting the transnational provision of services while also guaranteeing respect for the rights of workers. In doing so, the article contextualises and analyses the Posted Workers Directive which allows for the identification of remaining gaps in protection. The article concludes with an assessment of the European Commission’s most recent proposal to amend the Directive.

Keywords

posted workerssocial dumpingLavaleuropeanisationfree movement of servicesworkers’ rights
Type
Articles
Information
Cambridge Yearbook of European Legal Studies , Volume 19 , December 2017 , pp. 187 - 210
Copyright
© Centre for European Legal Studies, Faculty of Law, University of Cambridge 

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Footnotes

*

The author would like to thank Nicole Busby, Sylvie da Lomba, Dagmar Schiek and the anonymous reviewer for helpful comments on earlier drafts. The usual disclaimers apply. An earlier version of this paper was published by Queen’s University Belfast’s Centre of European and Transnational Legal Studies as part of its European (Legal) Studies online papers under the title ‘Revision of the Posted Workers’ Directive: Equality at Last?’

References

1 The statistics in this paragraph are drawn from European Commission, Impact Assessment accompanying the document Proposal for a Directive of the European Parliament and the Council amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services SWD (2016) 52 final, pp 6–8.

2 See Posted workers in the European Union (Eurofound, 2010) https://www.eurofound.europa.eu/observatories/eurwork/comparative-information/posted-workers-in-the-european-union.

3 Based on Council Regulation (EU) 987/2009 [2009] OJ L284/1. See further Dheret, C and Ghimis, A, The Revision of the Posted Workers Directive: Towards a Sufficient Policy Adjustment? (European Policy Centre, 20 April 2016)Google Scholar Discussion Paper, p 4.

4 See note 1 above.

5 Ibid.

6 Directive 96/71/EC concerning the posting of workers in the framework of the provision of services [1996] OJ L18/1.

7 Recital 5 of the Preamble to the Directive.

8 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets avd 1, Byggettan, Svenska Elektrikerförbundet, C-341/05, EU:C:2007:809.

9 Numerous articles have appeared in the Cambridge Yearbook of European Legal Studies over the years analysing the Court’s decision in the so-called Laval Quartet including a special section in Vol 10 (2008) which included contributions by M Rönnmar, A Dashwood, T Novitz, S Sciarra and S Deakin. There have also been a number of contributions analysing the Posted Workers Directive which are cited throughout this article.

10 COM(2016) 128 final, Proposal for a Directive of the European Parliament and of the Council amending Directive 96/71/EC of the European Parliament and the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services.

11 Ladrech, R, ‘Europeanization of Domestic Politics and Institutions: The Case of France’ (1994) 32(1) Journal of Common Market Studies 69, p 69 Google Scholar.

12 See Börzel, TA and Risse, T, ‘When Europe Hits Home: Europeanization and Domestic Change’ (2000) 4 (15) European Integration Online Papers Google Scholar; Olsen, JP, ‘The Many Faces of Europeanization’ (2002) 40(5) Journal of Common Market Studies 921 Google Scholar; and, the contributions in Featherstone, K and Radaelli, CM (eds), The Politics of Europeanization (Oxford University Press, 2003)Google Scholar. Quotation from Kohler-Koch, B, ‘Europäisierung: Plädoyer für eine Horizonterweiterung’ in M Knodt and B Kohler-Koch (eds), Deutschland zwischen Europäisierung und Selbstbehauptung (Campus, 2000)Google Scholar.

13 Ladrech, R, Europeanization and National Politics (Palgrave, 2010), p 15 Google Scholar.

14 Börzel, TA and Risse, T, ‘Europeanization: The Domestic Impact of European Union Politics’ in KE Jørgensen et al (eds) Handbook of European Union Politics (Sage, 2007)Google Scholar. See note 13 above, p 22, citing Börzel and Risse, p 485.

15 See further Weatherill, S ‘The Constitutional Context of (Ever-Wider) Policy-Making’ in E Jones et al, The Oxford Handbook of the European Union (Oxford University Press, 2012), p 573 Google Scholar and Syrpis, P, ‘Should the EU Be Attempting to Harmonise National Systems of Labour Law?’ in M Andenas and C Baasch Andersen (eds), Theory and Practice of Harmonisation (Elgar, 2012)Google Scholar.

16 For example, the Open Method of Coordination does not seek to eliminate differences between labour law systems but instead to coordinate Member State employment policies. See further Armstrong, KA, Governing Social Inclusion – Europeanization Through Policy Coordination (Oxford University Press, 2010)Google Scholar; Sabel, C and Zeitlin, J (eds), Experimentalist Governance in the European Union: Towards a New Architecture (Oxford University Press, 2010)Google Scholar; and, Dawson, M, New Governance and the Transformation of European Law: Coordinating EU Social Law and Policy (Cambridge University Press, 2011)Google Scholar. For an excellent overview of the transformation of European Social Policy governance see Goetschy, J, ‘EU Social Policy Content and Governance: A Complex Relationship with EU Economic Integration Over Time’ in MJ Rodrigues and E Xiarchogiannopoulou (eds), The Eurozone Crisis and the Transformation of EU Governance (Globalisation, Europe, 2014)Google Scholar.

17 C Barnard and S Deakin, ‘Social Policy and Labour Market Regulation’ in Jones et al, see note 15 above, from p 546 ff.

18 Ibid, p 547.

19 For example, the various directives guaranteeing equality rights or individual labour rights including the Pregnant Workers Directive 92/85/EEC, [1992] OJ L 348 or the Fixed-Term Workers’ Directive 99/70/EC, [1999] OJ L175. Some of these directives were negotiated by the social partners as framework directives (for example Directive 99/70/EC).

20 For up to date information see http://ec.europa.eu/employment_social/social_dialogue/index_en.htm.

21 For an overview see Fentiman, R, ‘Choice of Law in Europe: Uniformity and Integration’ (2008) 82 Tulane Law Review 2021 Google Scholar; Twigg-Flesner, C, The Europeanisation of Contract Law (Routledge, 2008)Google Scholar; Dickinson, A, ‘European Private International Law: Embracing New Horizons or Mourning the Past?’ (2005) 1(2) Journal of Private International Law 197 Google Scholar. Quotation from Gillies, L, ‘Creation of Subsidiary Jurisdiction Rules in the Recast of Brussels I: Back to the Drawing Board?’ (2012) 8(3) Journal of Private International Law 489 Google Scholar, p 493.

22 Evju, S, ‘Cross-Border Services, Posting of Workers, and Jurisdictional Alternation’ (2010) 1(1) European Labour Law Journal 89 Google Scholar, p 89.

23 Cremers, J et al, ‘Posting of Workers in the Single Market: Attempts to Prevent Social Dumping and Regime Competition in the EU’ (2007) 38(6) Industrial Relations Journal 524 Google Scholar, p 526. See also COM(91) 230 final, Proposal for a Council Directive concerning the posting of workers in the framework of the provision of services.

24 Rush Portuguesa Lda v Office national d’immigration, C-113/89, EU:C:1990:142. The decision in Rush Portugesa is widely regarded as instrumental in the adoption of the PWD. See eg Dølvik, J and Visser, J, ‘Free Movement, Equal Treatment and Workers’ Rights: Can the European Union Solve its Trilemma of Fundamental Principles?’ (2009) 40(6) Industrial Relations Journal 491 Google Scholar. However, Evju traces a much longer and more complex background to the Directive in Evju, S, ‘Revisiting the Posted Workers Directive: Conflict of Laws and Laws in Contrast’ (2010) 12 Cambridge Yearbook of European Legal Studies 151 Google Scholar.

25 Rush Portuguesa Lda v Office national d’immigration, EU:C:1990:142, para 12.

26 See Houwerzijl, M, ‘“Regime shopping” across (blurring) boundaries’ in S Evju (ed), Regulating Transnational Labour in Europe: The Quandaries of Multilevel Governance (Institutt for privatrett, 2014)Google Scholar Skriftserie 196.

27 Davies, P, ‘Posted Workers: Single Market or Protection of National Labour Law Systems?’ (1997) 34(3) Common Market Law Review 571 Google Scholar.

28 COM(91) 230 final and see Evju, note 24 above.

29 See Evju, ibid p 166. Of particular concern were provisions on the way in which a host country’s labour laws were to be laid down. Denmark and Italy also tabled amendments to make provision for the regulation of posted workers’ rights by collective agreements of ‘general applicability’ and by those agreements concluded by the most representative organisations.

30 See note 27 above, pp 572–573. See also Evju, note 24 above, p 169.

31 See further Art 3(8).

32 This also follows from van Hoek, A and Houwerzijl’s, M analysis in ‘“Posting” and “Posted Workers”: The Need for Clear Definitions of Two Key Concepts of the Posting of Workers Directive’ (2012) 14 Cambridge Yearbook of European Legal Studies 419, pp 437–443 Google Scholar.

33 For a thorough overview of the differences between the PWD and Rome I see van Hoek, A, ‘Private International Law Rules for Transnational Employment: Reflections from the European Union’ in A Blackett and A Trebilcock, Research Handbook on Transnational Labour Law (Edward Elgar, 2015)Google Scholar; Evju, note 22 above; Merrett, L, ‘Posted Workers in Europe from a Private International Law Perspective’ (2011) 13 Cambridge Yearbook of European Legal Studies 219 Google Scholar; van Hoek and Houwerzijl, note 32 above; and, Houwerzijl, note 26 above.

34 For a thorough analysis see Merrett ibid; van Hoek and Houwerzijl, note 32 above; and, Evju, note 24 above.

35 See note 23 above.

36 COM(2003) 458, Report from the European Commission on the Implementation of Directive 97/71/EC concerning the Posting of Workers in the Framework of the Provision of Services.

37 For a detailed analysis of the proposal and the objections thereto from a labour law perspective see Barnard, C, ‘The Services Directive 2006/123 and Employment Law’ in M Rönnmar (ed), EU Industrial Relations vs National Industrial Relations (Kluwer, 2008)Google Scholar.

38 For an analysis of the impact of the enlargements on ‘old’ Member States’ labour law systems see Zahn, R, New Labour Laws in Old Member States (Cambridge University Press, 2017)Google Scholar.

39 For examples see Krings, T, ‘A Race to the Bottom? Trade Unions, EU Enlargement and the Free Movement of Labour’ (2009) 15(1) European Journal of Industrial Relations 49 Google Scholar.

40 COM(2007) 304, Communication on the Posting of Workers in the framework of the provision of services.

41 ETUC, ETUC position on the implementation of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services, 14–15 March 2006, http://www.etuc.org/a/2222.

42 Although the text is at many points unclear. See Houwerzijl, M and van Hoek, A, Comparative Study on the Legal Aspects of the Posting of Workers in the Framework of the Provision of Services in the European Union, (Radboud University, 2011)Google Scholar. Critics writing at the time of the adoption of the Directive questioned how the Court would interpret its provisions. See note 27 above. The Court was not asked to rule on many of the key aspects of the Directive prior to 2007. Most cases were decided before the deadline for the implementation of the Directive had passed.

43 The extent to which Member States have discretion in including certain provisions within the ‘public policy’ exception of the Directive (Art 3(10)) was limited by the Court in Commission v Luxembourg, C-319/06, EU:C:2008:350.

44 There is a vast amount of literature on the case and its aftermath. For a small selection of literature see the website of the European Trade Union Institute (http://www.etui.org/Topics/Social-dialogue-collective-bargaining/Social-legislation/The-interpretation-by-the-European-Court-of-Justice/Reaction-to-the-judgements/Articles-in-academic-literature-on-the-judgements). Laval forms part of a ‘Quartet’ of cases decided at a similar time which included The International Transport Workers’ Federation and The Finnish Seamen’s Union v Viking Line, C-438/05, EU:C:2007:772; Rüffert v Land Niedersachsen, C-346/06, EU:C:2008:189; and, Commission v Luxemburg, EU:C:2008:350.

45 Laval un Partneri Ltd, EU:C:2007:809, para 56.

46 Ibid, paras 58–60.

47 Ibid, paras 71, 80, 81.

48 Ibid, para 80.

49 There is a substantial amount of literature discussing the judgments, not all of which can be mentioned here. For different views on the judgments see, eg Freedland, M and Prassl, J, Viking, Laval and Beyond (Hart, 2004)Google Scholar; Rönmar, M (ed), EU Industrial Relations vs National Industrial Relations: Comparative and Interdisciplinary Perspectives (Kluwer, 2008); Blanpain, R and Swiatkowski, AM (eds), The Laval and Viking Cases: Freedom of Services and Establishment v Industrial Conflict in the European Economic Area and Russia (Kluwer, 2009)Google Scholar; and articles by Dashwood, A, Novitz, T, Rönnmar, M, Deakin, S and Sciarra, S in Vol 10 Cambridge Yearbook of European Legal Studies, (2008)Google Scholar.

50 See note 24 above, p 169.

51 This comment refers to the definition of ‘minimum rates of pay’ discussed below but also more generally in relation to the interpretation of Art 3(10) PWD which is discussed in more detail in Merrett, note 33 above.

52 Report on joint work of the European social partners on the ECJ rulings in the Viking, Laval, Rüffert and Luxembourg cases, (ETUC, 19 March 2010) http://www.etuc.org/sites/www.etuc.org/files/Joint_report_ECJ_rulings_FINAL_logos_19.03.10_1.pdf.

53 The idea of a Social Progress Protocol is not new. For an overview of the discussion see Bücker, A, ‘A Comprehensive Social Progress Protocol is Needed More Than Ever’ (2013) 4(1) European Labour Law Journal 4 Google Scholar. The Posting of Workers Directive: proposals for revision, (ETUC), 9–10 March 2010) http://www.etuc.org/documents/posting-workers-directive-proposals-revision#.VBwN8hb9mMk.

54 COM(2012) 131 final, Proposal for a Directive of the European Parliament and of the Council on the enforcement of Directive 97/71/EC concerning the posting of workers in the framework of the provision of services. COM(2012) 130 final, 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.

55 For an overview of the difficulties encountered by the Regulation see The Adoptive Parents, ‘The Life of a Death Foretold: The Proposal for a Monti II Regulation’ in Freedland, M and Prassl, J, Viking, Laval and Beyond (Hart, 2015)Google Scholar and Fabbrini, F and Granat, K, ‘“Yellow Card but no Foul”: the Role of the National Parliaments under the Subsidiarity Protocol and the Commission Proposal for an EU Regulation on the Right to Strike’ (2013) 50(1) Common Market Law Review 115 Google Scholar. Directive 2014/67/EU [2014] OJ L159. Member States had until 18 June 2016 to transpose the Directive. For an analysis of the Directive see Cremers, J, ‘Economic freedoms and labour standards in the European Union’ (2016) 22(2) Transfer 149 Google Scholar.

56 For a discussion of the need for clarify on the definition of posting see note 32 above.

57 Provisional deal on posting of workers will not put an end to social dumping, (ETUC, 5 March 2014) http://www.etuc.org/press/provisional-deal-posting-workers-will-not-put-end-social-dumping#.VBwW4xb9mMk.

58 See Schiek, D, EU Social and Labour Rights and EU Internal Market Law: Study for the EMPL Committee (European Parliament, 2015), p 62 Google Scholar, which found that problems relating to fair working conditions for posted workers were the most prevalent. Respondents from trade unions and labour inspectorates from the Member States analysed expressed concern that posted workers were paid significantly lower wages than other workers in the host States.

59 It has also been concerned with the use of public procurement legislation to enforce labour standards. See Bundesdruckerei v Stadt Dortmund, C-549/13, EU:C:2014:2235 and Regio Post v Stadt Landau, C-115/14, EU:C:2015:760.

60 Sähköalojen ammattiliitto ry v Elektrobudowa, C-396/13, EU:C:2015:86. Opinion of Advocate General Wahl in Sähköalojen ammattiliitto ry, EU:C:2015:86, paras 33, 34, 67.

61 The Court was also asked to rule on the division of competences between the Finnish and Polish trade unions.

62 See also Tevfik Isbir v DB Services GmbH, C-522/12, EU:C:2013:711.

63 Sähköalojen ammattiliitto ry, EU:C:2015:86, paras 42, 44.

64 The reasoning justifying such exclusions based itself on an interpretation of Art 3(7) of the PWD. See Sähköalojen ammattiliitto ry, EU:C:2015:86, paras 58–63. See also Opinion of Advocate General Wahl, paras 110–114 where he distinguishes between allowances specific to the posting which are considered to be part of the minimum wage and allowances paid in reimbursement of expenditure actually incurred on account of the posting, such as expenditure on travel, board and lodging. The latter cannot be classified as being part of the minimum wage. For a more differentiated analysis see Houwerzijl, M and van Hoek, A, ‘Where do EU Mobile Workers Belong, According to Rome I and the (E)PWD’ in H Verschueren (ed), Residence, Employment and Social Rights of Mobile Persons: On How EU Law Defines Where They Belong (Intersentia, 2016)Google Scholar.

65 Sähköalojen ammattiliitto ry, EU:C:2015:86, para 30.

66 See further, Cremers, J, In Search of Cheap Labour in Europe: Working and Living Conditions of Posted Workers (European Institute for Construction Labour Research, 2011)Google Scholar CLR Studies 6.

67 Ibid, p 26.

68 Ibid.

69 Ibid. Although so-called ‘letterbox’ companies occur in all three types of posting. For more information and case studies see McGauran, K, The Impact of Letterbox-Type Practices on Labour Rights and Public Revenue (ETUC, 2016)Google Scholar.

70 All figures are drawn from the Commission’s Impact Assessment, see note 1 above. It should be noted that strong data limitations on posting of workers remain an on-going problem. There have been a number of studies which have sought to look in more detail at the problems surrounding the interaction between posting and temporary work and this is not discussed in more detail here. See further notes 66 and 42 above.

71 See note 1 above, p 13.

72 Preamble to the Directive, para 14.

73 Art 3(8) PWD.

74 The effect of the crisis on national labour law systems is explained by the ETUI in individual country reports here: https://www.etui.org/Publications2/Working-Papers/The-crisis-and-national-labour-law-reforms-a-mapping-exercise. See also Koukiadaki, A et al, Joint Regulation and Labour Market Policy in Europe during the Crisis (ETUI, 2016)Google Scholar.

75 See note 1 above.

76 Woolfson, C et al, ‘Migrant precarity and future challenges to labour standards in Sweden’ (2014) 35(4) Economic and Industrial Democracy 695 Google Scholar, p 699.

77 Ibid, p 709.

78 Jonsson, C-M et al, När arbetskraftskostnaderna presser priset – en genomlysning av offentliga investeringar i infrastruktur (LO-rapporten, 2010)Google Scholar. See also Thörnqvist, C and Bernhardsson, S, ‘Their own stories? How Polish construction workers posted to Sweden experience their job situation, or resistance versus life projects’ (2015) 21(1) Transfer 11 Google Scholar.

79 Ibid, pp 34–7.

80 Prop 2009/10:48.

81 See Complaint 85/2012 Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v Sweden, 12 July 2012 and ECSR, Decision on Admissibility and the Merits Complaint No. 85/2012 Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v Sweden, 3 July 2013. For a discussion of the ECSR’s decision see Barnard, C, ‘More Posting’ (2014) 43(2) Industrial Law Journal 194 Google Scholar.

82 See note 58 above, p 66.

83 See Kommittédirektiv Dir 2012:92. This Committee reported its findings on 26 October 2015. See Översyn av lex Laval, SOU 2015:83, available at http://www.regeringen.se/contentassets/d90af7051ee54a499950155582431922/oversyn-av-lex-laval-sou-201583. The Committee made a number of suggestions for reform which at the time of writing were passing through the Swedish Parliamentary process.

84 http://ec.europa.eu/eurostat/statistics-explained/index.php/Hourly_labour_costs.

85 See note 1 above, p 13.

86 The figures in this paragraph all stem from the Commission’s Impact Assessment, see note 1 above. See also Fondazione Giacomo Brodolini (FGB), Study on wage setting systems and minimum rates of pay applicable to posted workers in accordance with Directive 96/71/EC in a selected number of Member States and sectors, Final report, November 2015 and note 58 above.

87 See note 1 above, pp 13, 14.

88 Ibid, p 14.

89 See Lillie, N and Wagner, I, Subcontracting, Insecurity and Posted Work: Evidence from Construction, Meat Processing and Ship Building (ETUI, 2015)Google Scholar.

90 For evidence of this in the UK see M Sumption and W Somerville, The UK’s New Europeans: Progress and Challenges Five Years After Accession, Equality and Human Rights Commission Policy Report, together with the Migration Policy Institute, January 2010.

91 See note 3 above, p 7.

92 See note 1 above, p 14.

93 Ibid, p 13.

94 See Art 3(1)(g) PWD. It is beyond the scope of this paper to examine the differing theories which justify discrimination legislation. An overview of this can be found in Fredman, S, Discrimination Law (Oxford University Press, 2002), ch 1 Google Scholar, and Bamforth, N, ‘Conceptions of Anti-Discrimination Law’ (2004) 24(4) Oxford Journal of Legal Studies 693 Google Scholar.

95 See Closing the Gender Gap: Act Now (OECD Publishing, 2012), pp 199 ff and W Patton, Conceptualising Women’s Working Lives: Moving the Boundaries of Discourse (Sense Publishers, 2013), pp 5, 6.

96 See further Jacobs, L, Pursuing Equal Opportunities (Cambridge University Press, 2004), ch 5 Google Scholar, and Fredman, note 94 above, chs 1, 4.

97 For an overview of the average costs see note 84 above.

98 See note 1 above, pp 13, 14.

99 The feminisation of care is not restricted to the family sphere, but has also been reflected in paid care work. As the sector has grown, women have formed an ever larger majority of paid care workers. See further Daly, M and Rake, K, Gender and the Welfare State: Care, Work and Welfare in Europe and in the USA (Polity Press, 2003)Google Scholar. In keeping with the low value assigned to caregiving in the private sphere, this sector is characterised by low pay and poor working conditions, devaluing the value of care in economic and employment terms. As the Migration Observatory points out, in the UK, social care, which includes a range of care-related occupations, eg care assistants in residential care homes and in-home care services, is one of the lowest paid sectors of the labour market. The sector has historically been reliant on women, who have combined low paid part-time work in social care with unpaid caring responsibilities for families. Although the introduction of the National Minimum Wage in 1999 brought about an increase in average pay levels for social care workers, particularly in care homes, most pay has since stayed on or near the National Minimum Wage. See further http://www.migrationobservatory.ox.ac.uk/policy-primers/social-care-older-people-and-demand-migrant-workers. There have however been incidences of unequal treatment in relation to terms and conditions of work (not pay). For examples see Böning, M, Migrantinnen aus Osteuropa in Privathaushalten (ver.di, 2014)Google Scholar and Colombo, F et al, Help Wanted? Providing and Paying for Long-Term Care, (OECD Health and Policy Studies, 2011)Google Scholar.

100 The concept of equal pay for work of equal value is enshrined in EU law. See the Recast Equal Treatment Directive 2006/54/EC [2006] OJ L204/23 which consolidated inter alia previous directives on equal treatment and equal pay, and incorporated principles derived from Court case law. See also Enderby v Frenchay Health Authority, C-127/92, EU:C:1993:859 and Susanna Brunnhofer v Bank der österreichischen Postsparkasse AG, C-381/99, EU:C:2001:358.

101 http://ec.europa.eu/social/main.jsp?langId=en&catId=471&newsId=2488&furtherNews=yes.

102 The proposal introduces the principle of equal treatment between posted and local temporary agency workers. It also aligns the definition of a posting period (24 months) with that of the relevant social security provisions. The current PWD does not define when a posting ceases to be ‘temporary’. Under the Commission’s proposal, long-term posted workers will be covered by the mandatory rules of the host country’s labour law system following a period of 24 months of posting.

103 https://www.etuc.org/press/posted-workers-revision-%E2%80%93-equal-pay-some#.V3PVEaIYF2A.

104 T Novitz, ‘The Scope for Collective Bargaining in Posting and Procurement––What Might Come From Recent Court of Justice Case Law and the Proposed Reform of the Posting of Workers Directive?’ (University of Bristol Law School Blog, 6 April 2016) http://legalresearch.blogs.bris.ac.uk/2016/04/the-scope-for-collective-bargaining-in-posting-and-procurement/.

105 The Commission anticipates that it will only have an effect in a limited number of Member States including Ireland and Luxembourg. See note 1 above, p 24.

106 See Art 1(2)(b) COM(2016) 128 final, which deals with the situations of subcontracting chains and gives Member States the ability to oblige undertakings to subcontract only to undertakings that grant workers certain conditions on remuneration applicable to the contractor, including those resulting from non-universally applicable agreements. However, this is only possible on a proportionate and non-discriminatory basis and requires that the same obligations are imposed on all national sub-contractors.

107 See note 3 above, p 10.

108 See note 1 above.

109 See note 103 above.

110 Although these concerns are partly addressed in Art 1(2) COM(2006) 128 final in relation to pay and temporary agency workers.

111 Individual Member State opinions are available here: http://ec.europa.eu/dgs/secretariat_general/relations/relations_other/npo/index_en.htm.

112 See G Gotev, ‘National parliaments invoke ‘yellow card’ in response to revised Posted Workers Directive’ (Euractiv, 10 May 2016) http://www.euractiv.com/. This is only the third time that such a procedure has been triggered.

113 V Kreilinger, ‘National parliaments’ 3rd yellow card – a preliminary assessment’ (Euroactive, 12 May 2016) http://www.euractiv.com/.

114 COM(2016) 55 final, Communication from the Commission to the European Parliament, the Council and the National Parliaments on the proposal for a Directive amending the Posting of Workers Directive, with regard to the principle of subsidiarity, in accordance with Protocol No 2.

115 ‘Posting of Workers: Commission discusses concerns of national Parliaments’ Press Release IP/16/2546, http://europa.eu/rapid/press-release_IP-16-2546_en.htm.

116 ‘The State of the Union 2016: Towards a better Europe – A Europe that Protects, Empowers and Defends’ Press Release IP/16/3042, http://europa.eu/rapid/press-release_IP-16-3042_en.htm.

117 The Economist, Going posted, 9 July 2016.

118 Adnett, N and Hardy, S, The European Social Model – Modernisation or Evolution? (Elgar, 2005), p 201 Google Scholar.

119 See note 3 above, p 4.

120 See Cremers, note 55 above, p 157.

121 Ibid.

122 Ibid.