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1.
We share the widespread view concerning the need for effective mechanisms to monitor the enforcement of Directive 96/71 on posted workers.
There are three types of enforcement:
- The enforcement usually carried out by the two sides of industry via negotiation, agreement, complaints and disputes (civil enforcement),
- By the public administration (works inspectorates) responsible for ensuring compliance with legal standards (administrative enforcement),
- And the work of judges and the courts (judicial enforcement), which usually takes place only as a consequence of the use of the two types above and is therefore subsidiary: it is the final resort.
The most common type for non-posted workers is civil enforcement: workers and their trade unions defend themselves through forms of collective action or through complaints or claims lodged with the administration or the courts.
The most common type for posted workers, on the other hand, is administrative enforcement, i.e. supervision by works inspectorates of the working conditions of these workers - it is rare for them to carry out industrial action (including strikes) or to decide to complain or appeal to the works inspectorate or courts for infringement of labour legislation in the host country (a Eurofound study calculated such cases to represent only 1% of disputes).
The first thing to point out therefore is that in practice the regulation of collective actions (including strikes) has little relevance, since these very rarely arise and if they did, there should be no real difficulty in exercising them since they involve fundamental rights that can be invoked by all European citizens under the same conditions as nationals in keeping with the general principle of equality enshrined in the EU Treaties.
The instruments proposed by the European Commission include a directive implementing all forms of control and enforcement, including civil enforcement, in Article 11. There is also however a regulation which also deals with this form of enforcement specifically for collective action, including strikes.
The reasons given for preferring a regulation to a directive are the greater certainty and clarity for citizens and SMEs offered by the former. These same reasons could however be applied to any other of the measures set out in the Enforcement Directive. The decision to regulate this matter by regulation instead of directive, but not other subjects of comparable or even greater importance, is not proportionate.
Moreover, the very brief content of the regulation could easily have been incorporated into Article 11 of the directive. Rather than talking about a violation of the subsidiarity principle (an issue that could form part of a broader argument potentially affecting all legislation, and which in our opinion would be counterproductive for the reasons set out below), in this case it would be better to point out (i) that a regulation is not a crucial tool for tackling the problem of monitoring the application of Directive 96/71 and (ii) that its content could be absorbed into Article 11 of the proposal for a directive, with no need to create two parallel instruments to govern a single matter with different legislative parameters.
It is not therefore a matter of "subsidiarity" but rather a practical and operational question.
2.
Everywhere in Spain, labour legislation is enforced by the autonomous regions. This competency covers forms of civil enforcement such as the management of conciliation, mediation and arbitration systems in labour disputes and the determination of minimum service in businesses and public administrations, which are the most important functions in this area, and forms of administrative enforcement such as infringements and the penalties imposed by the Labour and Social Security Inspectorate, which in this case come under the autonomous region of the Basque Country both organisationally (in part) and functionally (always).
This makes the autonomous regions a necessary actor in enforcement procedures since they will, in part, be responsible for implementing the provisions of the future directive. For this reason, the autonomous regions must participate directly in the mutual assistance mechanisms under the future directive by means of the IMI or any other mechanisms that may be set up.
The regions in other Member States (Italy, Germany, etc.) are also partially empowered to enforce labour legislation, so direct communication between regional officials with competencies in this field is necessary.
3.
The Department for Employment and Social Affairs was consulted by the Basque Parliament, which in turn was consulted by the Spanish Parliament.
4.
In our view it does not contain a risk, and we believe that this article should be left as it is. We do not think it would be a good idea to limit the powers of the European Commission to adopt the right measures in the general interest of the people of Europe: quite the opposite.
5.
Brandishing the subsidiarity principle as a yellow card, and using it to attack the proposal or other similar ones, is not a positive step. Moreover, this very principle should be deployed to the opposite effect, to bolster the EU's common structures, an approach with which we will always be in greater agreement.
6.
As pointed out earlier, the proposal for a regulation is in essence harmless, and its content would be better placed within the proposal for a directive.
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