EU Magistrate OKs Stricter Rules for Cross-Border Workers

A woman walks by the entrance to the European Court of Justice in Luxembourg on Oct. 5, 2015. (Geert Vanden Wijngaert, File)

LUXEMBOURG (CN) — The European Union can tighten rules governing workers sent outside their home countries despite protests from Hungary and Poland, an adviser to the bloc’s highest court said Thursday. 

Advocate General Manuel Campos Sánchez-Bordona wrote in two nearly identical nonbinding advisory opinions that a 2018 update to the Posted Workers Directive –regulations covering employment conditions for workers sent from one country to another – was legal and didn’t violate the EU’s free market. The opinions are not available in English.

Hungary and Poland brought the complaint to the Luxembourg-based European Court of Justice, alleging the legislation restricts the freedom to provide services across borders, a fundamental component of the 27-member political and economic union. Under the amended rules, posted workers have to be treated the same as local workers with regards to salary, leave and other conditions. 

The new directive “does not serve the protection of posted workers but in fact … is a tool for protectionism,” the Hungarian government said in a statement when it filed the complaint. Poland filed its own complaint on the same day. 

But Sánchez-Bordona said in his advisory opinions for the Court of Justice that the updated regulation is reasonable “since it is adapted to the situation of workers who will be staying in the host country for an extended period of time, thereby increasing their participation in the labor market in that country.” 

Posted workers make up less than 1% of the EU’s overall workforce, though in some sectors, such as construction and trucking, the numbers are much higher. Some 35% of workers in the construction industry, for example, are posted across borders. And the numbers have been on the rise. Since 2010, the number of such workers has increased by 41% percent. 

EU legislation sets a floor for working conditions, such as vacation days and rest periods, but countries determine their own minimum wages and can legislate more generous conditions.

In 2007, the Court of Justice ruled that posted workers could be paid in line with the conditions of their home country, rather than the one where they were working. Employment law experts say this gave an incentive for companies in high-wage countries to hire workers from lower-wage locations. 

The update was pushed for by France, who had long complained that eastern European countries were “dumping” cheaper workers in their labor market by posting them abroad but paying wages similar to what they would have earned at home.

The French minimum wage amounts to 1,540 euros per month ($1,700) while Hungary’s is 640 euros ($705) and Poland’s is 611 euros ($675.)  The French also give their workers 10 more vacation days than either Hungary or Poland. 

Poland and Hungary argued before the court that the changes hurt the competitiveness of their nations’ companies, but Sánchez-Bordona rejected this claim. He said the changes were made to protect the rights of workers.

“In some cases, this may be accompanied by a corresponding decline in the competitiveness of companies to provide services in other member states, but that is the (legitimate) choice made by the European legislator,” he wrote. 

The Court of Justice is not obligated to follow the legal reasoning in Sánchez-Bordona’s opinion but it usually accepts the recommendations of its magistrates. It is expected to rule on the case later this year. 

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