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European Commission will propose a recast of the Posting Directive and a “Monti II Regulation” during the 4th quarter of 2011
In a follow-up Communication on the Single Market Act “Twelve levers to boost growth and strengthen confidence” (SEC(2011)467), the European Commission puts forward twelve legislative proposals to be presented this year. These proposals are in their turn chosen among the 50 proposals presented in a Communication in the autumn of 2010. One of these 12 proposals is in the area of Social cohesion and addresses demands expressed by the EFBWW related to posting of workers and fundamental rights. The proposals contains firstly, a legislation “aimed at improving and reinforcing the transposition, implementation and enforcement in practice of the Posting of Workers Directive, which will include measures to prevent and sanction any abuse and circumvention of the applicable rules”; secondly a legislation “aimed at clarifying the exercise of freedom of establishment and the freedom to provide services alongside fundamental social rights.” The latter proposal is explained further in the text in the following way: The Commission will propose “legislation applicable to all sectors which will clarify the exercise of freedom of establishment and the freedom to provide services, including the right to take collective action, in accordance with national law and practices and in compliance with EU law. {footnote: The initiative could use the solutions in Regulation (EC) No 2679/98 of 7 December 1998 on the functioning of the internal market in relation to the free movement of goods among the Member States as a starting-point.] The clause referred to in the footnote is popularly called the “Monti clause” and has the following wording: “This Regulation may not be interpreted as affecting in any way the exercise of fundamental rights as recognised in Member States, including the right or freedom to strike. These rights may also include the right or freedom to take other actions covered by the specific industrial relations systems in Member States”.

The full text of the proposal in the Communication is the following:

“In a social market economy, a more unified European market in services means being able to ensure, with no race to the bottom, that businesses are able to provide their services more
easily throughout the European Union (in particular by posting their workers on secondment), whilst at the same time providing more high quality jobs and a high level of protection for workers and their social rights.
In this regard, the legal framework relating to the posting of workers needs to be implemented more effectively to facilitate the flow of information between businesses and Member State authorities, to enable more stringent checks to be carried out and to combat abuse, with particular regard to workers' rights.
The legislation on the single market must take due account of Articles 8 and 9 of the Treaty on the Functioning of the European Union and the Charter of Fundamental Rights of the European Union, which now has the same legal value as the Treaty. Accordingly, the Commission will propose legislation applicable to all sectors which will clarify the exercise of freedom of establishment and the freedom to provide services alongside fundamental social rights, including the right to take collective action, in accordance with national law and practices and in compliance with EU law. [Footnote: The initiative could use the solutions in Regulation (EC) No 2679/98 of 7 December 1998 on the functioning of the internal market in relation to the free movement of goods among the Member States as a starting-point.]


 
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