2009 - 2014 EUROPEAN PARLIAMENT Plenary sitting A7-9999/2013 3.7.2013 ***I REPORT 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 (COM(2012)0131 – C7-0086/2012 – 2012/0061(COD)) Committee on Employment and Social Affairs Rapporteur: Danuta Jazłowiecka RR\498030EN.doc PE498.030v02-00 EN United in diversity EN PR_COD_1amCom Symbols for procedures * Consultation procedure *** Consent procedure ***I Ordinary legislative procedure (first reading) ***II Ordinary legislative procedure (second reading) ***III Ordinary legislative procedure (third reading) (The type of procedure depends on the legal basis proposed by the draft act.) Amendments to a draft act In amendments by Parliament, amendments to draft acts are highlighted in bold italics. Highlighting in normal italics is an indication for the relevant departments showing parts of the draft act which may require correction when the final text is prepared – for instance, obvious errors or omissions in a language version. Suggested corrections of this kind are subject to the agreement of the departments concerned. The heading for any amendment to an existing act that the draft act seeks to amend includes a third line identifying the existing act and a fourth line identifying the provision in that act that Parliament wishes to amend. Passages in an existing act that Parliament wishes to amend, but that the draft act has left unchanged, are highlighted in bold. Any deletions that Parliament wishes to make in such passages are indicated thus: [...]. PE498.030v02-00 2/120 RR\498030EN.doc EN CONTENTS Page DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION ................................. 5 EXPLANATORY STATEMENT ............................................................................................ 56 OPINION OF THE COMMITTEE ON THE INTERNAL MARKET AND CONSUMER PROTECTION ......................................................................................................................... 59 OPINION OF THE COMMITTEE ON LEGAL AFFAIRS ................................................. 100 PROCEDURE ........................................................................................................................ 122 RR\498030EN.doc 3/120 PE498.030v02-00 EN PE498.030v02-00 4/120 RR\498030EN.doc EN DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION 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 (COM(2012)0131 – C7-0086/2012 – 2012/0061(COD)) (Ordinary legislative procedure: first reading) The European Parliament, – having regard to the Commission proposal to Parliament and the Council (COM(2012)0131), – having regard to Article 294(2) and Articles 53(1) and 62 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7-0086/2012), – having regard to Article 294(3) of the Treaty on the Functioning of the European Union, – having regard to the opinion of the European Economic and Social Committee of 19 September 20121, – having regard to Rule 55 of its Rules of Procedure, – having regard to the report of the Committee on Employment and Social Affairs and the opinions of the Committee on Internal Market and Consumer Protection (A7-0000/2013) and of the Committee on Legal Affairs (A7-0000/2013), 1. Adopts its position at first reading hereinafter set out; 2. Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text; 3. Instructs its President to forward its position to the Council, the Commission and the national parliaments. 1 OJ C351, 15.11.2012, p. 61. RR\498030EN.doc 5/120 PE498.030v02-00 EN Amendment 1 Proposal for a directive Citation 1 a (new) Text proposed by the Commission Amendment Having regard to the Charter of Fundamental Rights of the European Union, Amendment 2 Proposal for a directive Recital 2 Text proposed by the Commission Amendment (2) The free movement of workers gives (2) The freedom to provide services every citizen the right to move freely to includes the right of undertakings to another Member State to work and reside provide services in another Member State, there for that purpose and protects them to which they may send ('post') their own against discrimination as regards workers temporarily to carry out the work employment, remuneration and other necessary to provide these services there. working conditions in comparison to It is necessary for the purpose of the nationals of that Member State. It needs posting of workers to distinguish this to be distinguished from the freedom to freedom from the free movement of provide services, which includes the right workers, which gives every citizen the right of undertakings to provide services in to move freely to another Member State to another Member State, for which they may work and reside there for that purpose send (‘post’) their own workers and protects them against discrimination temporarily to carry out the work as regards employment, remuneration and necessary to provide these services there. other working conditions in comparison to nationals of that Member State. Amendment 3 Proposal for a directive Recital 3b (new) PE498.030v02-00 6/120 RR\498030EN.doc EN Text proposed by the Commission Amendment (3b) In order to ensure compliance with Directive 96/71/EC, whilst not putting an unnecessary administrative burden on the service providers, it is essential that the factual elements referred to in the provisions on preventing abuse and circumvention in this Directive are considered to be indicative and non- exhaustive. In particular, there should be no requirement that each element is to be satisfied in every posting case. Amendment 4 Proposal for a directive Recital 4 Text proposed by the Commission Amendment (4) In order to prevent, avoid and combat (4) In order to prevent, avoid and combat circumvention and/or abuse of the circumvention and/or abuse of the applicable rules by companies taking applicable rules by companies taking improper or fraudulent advantage of the improper or fraudulent advantage of the freedom to provide services enshrined in freedom to provide services enshrined in the Treaty and/or the application of the Treaty and/or the application of Directive 96/71/EC the implementation Directive 96/71/EC the implementation and monitoring of the notion of posting and monitoring of the notion of posting should be improved. should be improved and more uniform elements, facilitating a common interpretation, should be introduced at Union level. In this context, it is important to underline the importance of monitoring tools to ensure compliance with applicable rules, especially minimum terms and conditions of employment, as well as penalising those who circumvent those rules. Amendment 5 Proposal for a directive Recital 4 a (new) RR\498030EN.doc 7/120 PE498.030v02-00 EN Text proposed by the Commission Amendment (4a) In the event of non-compliance, for example the bogus posting of a worker, the rules of Regulation (EC) no 593/2008 on the law applicable to contractual obligations (Rome I Regulation) apply. When determining which law is applicable under Rome I, account should be taken of those provisions which are most favourable to the worker. Amendment 6 Proposal for a directive Recital 4 b (new) Text proposed by the Commission Amendment (4b) All measures introduced by this Directive should be justified, proportionate and non-discriminatory, so as not to create administrative burdens or to limit the potential that companies, in particular small and medium enterprises, have to create new jobs, while protecting posted workers. Amendment 7 Proposal for a directive Recital 5 Text proposed by the Commission Amendment (5) Therefore, the constituent factual (5) Therefore, the constituent factual elements characterising the temporary elements characterising the temporary nature inherent to the notion of posting, nature inherent to the notion of posting, which implies that the employer should be which implies that the employer should be genuinely established in the Member State genuinely established in the Member State from which the posting takes place, as well from which the posting takes place, as well as the relationship between Directive as the relationship between Directive 96/71/EC and Regulation (EC) No 96/71/EC and Regulation (EC) No 593/2008 on the law applicable to 593/2008 on the law applicable to contractual obligations (hereinafter the contractual obligations (hereinafter the PE498.030v02-00 8/120 RR\498030EN.doc EN ‘Rome I Regulation’) need to be further ‘Rome I Regulation’) need to be further clarified. clarified in order to ensure the widest possible implementation of that Directive Amendment 8 Proposal for a directive Recital 5 a (new) Text proposed by the Commission Amendment (5a) The European Parliament and the Council should provide the Commission, as necessary, with support, oversight and feedback concerning the implementation of this Directive. Amendment 9 Proposal for a directive Recital 6 Text proposed by the Commission Amendment (6) As is the case with Directive 96/71/EC, (6) As is the case with Directive 96/71/EC, this Directive should not prejudice the this Directive should not prejudice the application of the law which, under