ECJ –  dismisses Hungary and Poland annulment of the directive strengthening the rights of posted workers

ECJ – dismisses Hungary and Poland annulment of the directive strengthening the rights of posted workers

On 8 December 2020 the European Court of Justice dismissed the actions brought by Hungary and Poland seeking the annulment of the directive strengthening the rights of posted workers.

Given, in particular, the changes in the internal market following the successive enlargements of the European Union, the EU legislature could undertake a reassessment of the interests of undertakings taking advantage of the freedom to provide services and the interests of their workers posted to a host Member State, in order to ensure that the freedom to provide services is exercised by those undertakings and undertakings established in the host Member State on a level playing field.

Directive 96/71/EC concerning the posting of workers in the framework of the provision of

12 services, has been partially amended by Directive (EU) 2018/957. The EU legislature

endeavoured, when adopting Directive 2018/957, to ensure the freedom to provide services on a fair basis, by guaranteeing competition that would not be based on the application, in one and the same Member State, of terms and conditions of employment at a level that is substantially different depending on whether or not the employer is established in that Member State, while offering greater protection to posted workers. To that end, Directive 2018/957 seeks to ensure that the terms and conditions of employment of posted workers are as close as possible to those of workers employed by undertakings established in the host Member State.

Following that logic, Directive 2018/957 made, inter alia, amendments to Article 3(1) of Directive 96/71, in relation to the terms and conditions of employment of posted workers. The effect of those amendments, guided by the principle of equal treatment, is, in particular, that those workers are no longer subject to the ‘minimum rates of pay’ fixed by the legislation of the host Member State, but to the ‘remuneration’ provided for by that legislation, the latter concept being wider than that of the minimum wage. Further, where the effective duration of a posting exceeds 12 months or, exceptionally, 18 months, Directive 2018/957 required, by means of the insertion of Article 3(1a) into Directive 96/71, the application of almost all the terms and conditions of employment of the host Member State.

Hungary (Case C-620/18) and Poland (Case C-626/18) each brought an action seeking the

annulment of Directive 2018/957. Those Member States relied on, inter alia, pleas in law claiming

the choice of an incorrect legal basis for the adoption of that directive, an infringement of Article 56

The full Court decision is available : https://curia.europa.eu/jcms/upload/docs/application/pdf/2020-12/cp200155en.pdf

Photo Credit : https://pixabay.com/photos/eu-court-of-justice-kirchberg-213379/

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