(THIS ARTICLE IS MACHINE TRANSLATED by Google from Norwegian)
In January, the European Commission presented a proposal for a services directive with frightening content. The only consolation is that it can hardly be adopted – if the trade union movement in Europe puts all its political weight behind the protests that are now pouring in.
The aim of the directive is that there must be more competition in providing services across borders in the EU and EEA. National regulations that prevent this competition must go away.
Reinforces downward spirals
The competition will make the services cheaper. This is best done if wage dumping can be provided.
This is exactly what the Services Directive provides for allowing services provided legally and by standards that are legal in one EU / EEA country to be offered anywhere in the EU and EEA by the country's standards for payroll. and working conditions.
If this directive is adopted, it will contribute to strong downward spirals in much of Europe's working life. In many countries, wages and working conditions in service industries must be weakened to cope with competition with companies based on lower wages and poorer working conditions.
This will be extra fatal since prolonged mass unemployment and increasingly extensive deregulation have long opened the locks for such downward spirals.
Two main principles
The proposal for a Services Directive is based on two main principles, the principles of mutual approval and of the country of origin.
This means that services that are legal in one EU or EEA country must be able to be offered in all other EU and EEA countries. And that means that the responsibility for controlling companies that provide services in other countries should be placed with the country where the company is registered – and not in the country where the services are performed.
There is a lot of unclear law around the text of the directive. As usual in such cases, we will therefore not receive a clear answer as to what the directive means in practice until disputed cases have been tried before the European Court of Justice. This in itself is not reassuring – since the European Court of Justice usually uses fairly broad interpretations of the EU's four market freedoms when such cases are to be clarified.
Important exceptions
Exempted from the directive are services that are of "public interest", in particular public safety, tax collection, the judiciary, public planning, the public part of the school system, public healthcare and public broadcasting (radio and TV).
The principle of country of origin does not apply to mail, energy and water supply. It does, however, make the principle of mutual approval.
On the other hand, the principle of mutual recognition shall not apply to services which a Member State has prohibited for reasons of public order, public security and public health.
It is therefore unlikely that companies in the Netherlands, which conduct legal pimping there, can expand their activities – legally – to other countries with the Services Directive as a backbone.
Frontal collision?
An exception is also made for the EU Posting of Workers Directive. This directive concerns services provided by a company bringing its own employees to carry out assignments in other EU or EEA countries.
Apparently, the Posting of Workers Directive is in direct conflict with the Services Directive. The first directive has as a general rule that posted workers must have pay and working conditions that correspond to the standards in the country where they are posted. The Services Directive allows for the opposite; that it is the standards in the country of origin that shall apply.
The boundary between the directives
If both directives are to apply – and collisions are avoided – the Services Directive must be understood in such a way that it only regulates the conditions for employees who work in other countries, but who are not posted to this country.
This means that they must be employed directly in a company in a country other than the country in which they work.
A posted worker, on the other hand, is one who performs work for his or her regular employer in another EU or EEA country for a limited period of time.
The subtle difference
A Polish company that brings in employees from Poland to carry out an assignment in Norway is subject to the Posting of Workers Directive.
The company must therefore adhere to the standards for pay and working conditions that follow from Norwegian law and Norwegian collective agreements. The company's operations in Norway will be subject to control by the Norwegian authorities.
A Polish company that provides services in Norway, but which employs people specifically to provide these services in Norway, is, on the other hand, subject to the Services Directive.
This means that the company has no obligation to offer pay and working conditions in accordance with Norwegian law and Norwegian collective agreements. And the control of compliance with Polish rules has been placed with the Polish authorities.
But to control what is what, who does it?
