On 16 June the European Commission published its monthly infringements document, which this time sees France under fire for requiring foreign transportation operators to pay their workers France’s minimum wage level when the workers are carrying out their activities within French borders. German legislation, which also provides for minimum salaries to apply under these circumstances, has also come under fire. Both disputes indicate how difficult the conflict can actually be between rules over the right to work and fundamental EU rights, notably in this case the freedom to supply services.
For the Commission “the systematic application of the minimum wage legislation by France and Germany to all transport operations touching their respective territories restricts in a disproportionate manner the freedom to provide services and the free movement of goods”.
In 2015 France adopted a law that imposes payment of the French minimum wage from 01 July 2016 for all foreign transporter workers carrying out deliveries within France’s borders. The SMIC is €9.67 per hour before tax and is approximately three times Poland’s hourly wage. Germany’s law dates further back and its hourly rate is €8.50 before tax. Both France and Germany also require certain administrative procedures to be fulfilled which they argue are necessary to enable adequate controls. France requires there be a representative available in France that is tasked with keeping all the documents relating to the periods of time worked for each posted worker as well as their salary slips for a full eighteen months after the worker’s final period of posted work, so that they can be examined during any future potential audit. In Germany, employers in certain sectors of activity have to notify the customs authorities by means of specific documents. Infringements of the notification obligations can result in penalties of up to a maximum of €30,000, and penalties for remuneration non-compliance can reach €50,000.
Several central and east European Member States fiercely criticized France’s legislation as they had that of Germany. The governments in question expressed their discontent during a Council of Transport Ministers meeting at the start of June. Poland’s Transport Minister called on the European Commission to take urgent measures to ensure ‘the European market operates effectively’ and the call was taken up by representatives from Lithuania, Latvia, Estonia, the Czech Republic, Hungary, Bulgaria, Romania, as well as Spain and Ireland.
In both situations, the European Commission ‘considers that the application of the minimum wage to certain international transport operations having only a marginal link to the territory of the host Member State cannot be justified’. More proportionate measures should be taken to guarantee workers’ social protection and to avoid distorting competition without affecting the free circulation of goods and services.
Both France and Germany now have two months to respond to the European Commission’s arguments. The infringement procedure against France has only just started as the European Commission has just sent a formal notice. As for Germany, however, its infringement procedure has progressed to the second stage with a supplementary formal notice having been sent. If the European Commission finds both countries’ explanations wanting it can then turn to the CJEU for ‘failure’.