On 8 March 2016, the Commission proposed a revision of Directive 96/71/EC on the posting of workers in order to encourage labour mobility within Europe. The aim is to ensure fair competition for service providers and, at the same time, to better protect posted workers. The core of the proposal is that local and posted workers in the same location have equal conditions. The Directive is now 20 years old and, according to the Commission, is no longer suitable for dealing with developments since 1996 and the current situation in the labour markets such as significantly larger pay gaps between posting and local countries.
Eleven national parliaments who are against the proposal have initiated a review process based on an infringement of the principle of subsidiarity. Their main argument is that the proposal undermines the Single Market and, in particular, the free provision of services. The principle of subsidiarity determines the appropriate level of action in the area of shared competences between the EU and the EU countries. The European Union may only intervene if it is able to act more efficiently than the EU countries. One criteria which can be used to determine if intervention at EU level is prudent or not concerns cross-border aspects which the EU countries are unable to regulate.
On 20 July 2016, the EU Commission published a press release following an examination of the concerns raised by the national parliaments. The Commission stated that the proposed reform of the Posting of Workers Directive 96/71/EC does not breach the principle of subsidiarity. The reason for this is that the posting of workers is a cross-border issue and thus cannot represent a breach of the subsidiarity principle. The proposal takes into consideration fully and explicitly the competence of the Member States to set wages.
The commission remains committed to its revision of the Posting of Workers Directive. The path for the ordinary legislative process is now clear.