Posting of Workers : Commission Withdraws Monti II Proposal

Article excerpt

Since 12 national parliaments have given the yellow card' to the proposed Monti II regulation, which would clarify the right to take collective action in the context of economic freedom, the European Commission has decided to abandon its plan and keep the status quo.

"Contrary to what the different reasoned opinions say, the regulation does not create any problems of subsidiarity. Nonetheless, we have decided to implement the withdrawal procedure, in the light of the lack of support expressed for this proposal," explained the spokesman for Employment and Social Affairs Commissioner Laszlo Andor, highlighting at the same time the commissioner's "pragmatism and realism".

In corollary, the case law of the EU Court of Justice will still apply in cases of conflict between economic freedoms (the right of establishment and free provision of services) and fundamental rights (such as the right to collective negotiation and the right to trade union action).


Every year, almost a million workers are posted to another European country by their employers in order to provide temporary service there. This practice currently falls under Directive 96/71/EC, which lays out the working and employment conditions that must be respected in such cases.

On 21 March, the Commission nonetheless undertook to clarify the rules in force by proposing two draft texts: firstly, an implementing directive clarifying the implementation of the 1996 rules, and secondly a regulation concerning the right to take collective action in cross-border situations. The aim of the latter text was to respond to fears over the EU court's judgements, according to which, in the single market, economic freedoms would take precedence over fundamental rights. The new proposal reaffirmed that the restriction of one by the other should not go beyond what was "appropriate, necessary and moderate". It also established a rapid alert system for social conflicts with serious consequences, and the principle of equality of access to insitutions for the extrajudicial resolution of disputes.


The proposed regulation immediately provoked strong opposition among trade unions and employers, and even more so between the left and the right. During the eight weeks following publication, 12 national parliaments (the Danish, Finnish, Swedish, Lithuanian, Portuguese, Luxembourgisch and Maltese parliaments as well as the Polish Assembly, the French Senate, the Belgian House of Representatives and the States-General of the Netherlands), representing 19 votes, wrote reasoned opinions to the Commission denouncing the non-comformity of the text with the subsidiarity principle. Such widespread opposition activated for the first time the yellow card' procedure which, by virtue of the protocol on the application of the subsidiarity and proportionality principles annexed to the Lisbon Treaty, obliged the Commission to review the text. …