15 Implementation of the Directive on
the posting of workers
| (24800)
11898/03
COM(03) 438
| Commission Communication on the implementation of Directive 96/71/EC (Posting of Workers) in the Member States.
|
| Legal base | — |
| Document originated | 25 July 2003
|
| Deposited in Parliament | 4 August 2003
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| Department | Trade and Industry
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| Basis of consideration | EM of 8 September 2003
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| Previous Committee Report | None
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| To be discussed in Council | None planned
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| Committee's assessment | Legally and politically important
|
| Committee's decision | Not cleared; further information requested
|
Background
15.1 The Directive on the Posting of Workers requires that a Member
State's minimum terms and conditions of service should apply equally
to workers temporarily posted to that country by an employer based
in another Member State. Article 8 requires the Commission to
review the implementation of the Directive by the Member States.
The document
15.2 The document reports in detail the Commission's findings
on the way each Member State has implemented the Directive. The
Commission finds that only the UK and Ireland have not introduced
legislation specifically to transpose the Directive into their
domestic law. Instead, they have amended existing legislation.
In the UK, territorial limits have been removed from the Employment
Rights Act 1996 and the Employment Rights (Northern Ireland) Order
1996 so that the rights apply to all employees in the UK, including
workers temporarily posted here; and legislation to counter discrimination
on the grounds of sex, race and disability and, in Northern Ireland,
on the grounds of religious belief or political opinion, has been
amended so that those employed outside the UK are no longer excluded
from its scope.
15.3 In the Commission's view, the UK's transposition
of the Directive needs to be reassessed in the light of two European
Court of Justice cases (Commission v Greece (Case C-365/93) and
Commission v Netherlands (Case C-144/99)). In the light of those
cases, the Commission considers that the posting situations covered
and the rights derived from the Directive are not clearly defined
in the UK and that the jurisdiction clause in Article 6 of the
Directive has not been implemented. The Commission will contact
the UK Government to seek to resolve this.
The Government's view
15.4 The Minister for Small Business and Enterprise
at the Department of Trade and Industry (Nigel Griffiths) tells
us that the Government believes that it has correctly transposed
the Directive and that any additional legislative intervention
would have been superfluous.
15.5 The Minister comments that a general principle
established by the European Court of Justice is that transposition
of a Directive need not require a separate legislative instrument,
provided that:
· national
law guarantees that national authorities will effectively apply
the Directive in full;
· the
legal position is sufficiently clear and precise; and
· individuals
are made fully aware of their rights and, where appropriate, may
rely upon them before the national courts.
In the Minister's view, the UK has met these criteria
for the correct transposition of the Directive and he gives his
detailed reasons for reaching that view.
15.6 The Minister also says that the Government has
examined the two European Court of Justice cases which lead the
Commission to the opinion that the UK should review its transposition
of the Directive. He explains why, in the Government's view, the
circumstances of those cases are very different from those relating
to the UK's transposition of the Directive and do not make a clear
case for its reassessment.
Conclusion
15.7 We consider that the difference of opinion
between the Commission and the Government about the adequacy
of the UK's transposition of the Posting of Workers Directive
is legally and politically important. Accordingly, we ask the
Minister to tell us the outcome of the Government's contacts with
the Commission about this and, meanwhile, we shall keep the document
under review.
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