One of the highlights of the first day of the IV ELMC was the debate held between the influential academics, specialized in the issues of posting of workers. Among them, there was Prof. Catherine Barnard of the University of Cambridge who delivered a short, yet a very clear speech. 

She first pointed out to interface between the Posted Workers Directive [96/71/CE] and the Treaty and the Rome I Regulation [593/2008] on the choice of law. She presented the interplay between those legal acts in detail and concluded that in the case of posted workers, their applicable law will be the law of the country from which they come, however, they will still be subject to so-called ‘overriding mandatory provisions’ [OMPs].

 These OMPs are laid down in art. 9.1 of the Rome I Regulation. So, e.g. in the case of a Polish worker temporarily posted to the UK, it will be Polish law that applies, subject to overriding mandatory provisions of UK law. 

The EU identified those OMPs in the Posting of Workers Directive [PWD]. Indeed, the PWD has said that in the case of workers posted to a host state, home state law will generally apply, but the PWD lists a series of rules in articles 3.1. a)-g) and those rules (on minimum rates of pay, health and safety, equal treatment etc.) will be applied to the posted workers. So a Polish posted worker will be subject to UK law in the areas listed in articles 3.1. a-g PWD. 

 It was the crucial point to know that thisdoes not mean full equal treatment of the posted workers [in a host state]. It’s only those rules in those areas designated in art. 3.1. a-g) PWD that apply to a posted worker, but it is not the comprehensive application of host state law. 

The extra layer needs to be put on top, which are the Treaty [TFEU] provisions. The Treaty distinguishes between migrant workers under its article 45 and posted workers under article 56.  And in the case of migrant workers, so the people who are migrating on a permanent basis, they will be subject to the rules of the host state and they will enjoy full equal treatment. Posted workers on the other hand, are governed by the law of the home state, but when they’re temporarily in the host state they will also get some of those rights under the PWD, but NOT full equal treatment.And that is crucial, and that’s why it makes a difference whether an individual is moving under article 45 or under article 56 of the Treaty. 

 Moreover, we need to add in what is being proposed by the new draft Directive, which is the idea that if the anticipated or effective duration of a contract in the host Member State is 2 years or more, one will enjoy the full range of rights in the host state – in other words – equal treatment. 

 However, as Prof. Barnard observed, this new category which is being proposed by the draft Directive essentially DELETES THE DISTINCTION BETWEEN MIGRANT WORKERS under article 45 and POSTED WORKERS under article 56 TFEU. It is basically making a posted worker who is there with an anticipated duration of 2 years or more just like a migrant worker.  However, there is a legal problemassociated with that, namely that the legal basis of the Directive is not in the social provisions of the Treaty, it’s not in the provisions on free movement of workers, but it’s in the provisions on services. And the basic idea with services is that it is HOME state law that applies, NOT HOST STATE law. Yet the effect of this change will be in respect of workers who are anticipated from day one that they will be there for longer than two years. This sits very uncomfortably and the recitals [of the draft Directive proposed by the Commission] make it even more uncomfortable, because the recitals seem to want to have a cake and eat it. So on the one hand it will be equal treatment from day one, but on the other hand, they say that they fully respect the rules of the article 56. And this is not what the Treaty provisions envisage. 

Prof. Barnard’s speech therefore clearly showed that the Commission’s proposal on the targeted revision of the PWD does not comply with the EU law. To make it compliant with that body of law, it would be necessary to make use of the Treaty amendment procedure and NOT amending the Treaty law (primary law) using the directive (secondary law).