Meeting in Luxembourg, on the evening of 23 October, and after twelve long hours of discussions, Europe’s Employment and Social Affairs Ministers finally came to a compromise agreement on reform to the 1996 posted workers Directive. As such the Council can get started on negotiations with the European Parliament, most probably in November.

After last week’s Parliamentary support for revisions to the directive, it was the turn of the EU Member States on the evening of 23 October to agree on their directive reform negotiating position. Poland, Hungary, Lithuania, and Estonia voted against the agreement while the UK, Ireland, and Croatia abstained. Unsurprisingly, the almost twelve hours discussions struggled over issues related to the transport sector, the duration of posting periods, and the transposition period for the new rules.

The Ministers for Employment and Social Affairs support the core reform principle of the same pay for the same work in the same place. They believe that posted workers should have access to the same pay as local workers, including bonuses and costs elements and not only minimum wages.

Following intense negotiations the Ministers agreed to, what was one of France’s red-line issues, namely a 12-month period after which time the host Member State’s employment conditions must apply, although a six-month extension to this was allowed as a sop to those Member States that had been seeking longer duration periods (including Denmark, Romania, the Czech Republic, Spain, Slovakia, and Slovenia). In addition they decided that the forthcoming legislation would not apply to the sensitive transport sector. However current 1996 Directive regulations will continue to apply until the date of entry into force of upcoming transport sector-specific legislation. As a reminder, several Eastern European member States have been calling for exemptions for the transport sector due to the very mobile nature of the activity. Thirdly and finally, the Member States agreed a compromise whereby a three-year transposition period will apply plus one more year before the application of the directive (making a total of four years).

The main differences between the two bodies – Council and Parliament – concern the legal basis; the European Parliament has chosen to extend the legal basis of the new framework to social policy (article 153) rather than extending it only to the internal market (freedom of services) (articles 53§1 and 62). In a press conference on 23 October European Commissioner, Marianne Thyssen explained that the Commission (the ‘facilitator’ in these negotiations) was not backing this change, saying “It is a question of internal markets legislation. The new articles concern minimum rules and will be tough to reconcile.”