WRITTEN QUESTION E-3809/98

by Barbara Weiler (PSE) to the Commission

(22 December 1998)

Subject: Cases C-2/97 and C-49/98 (minimum social standards) referred for preliminary rulings

The European social model guarantees a certain minimum level of social rights. European provisions do not, however, prevent individual Member States from taking steps to maintain or introduce a higher level of protection in respect of working conditions.

Several cases referred to the European Court of Justice and relating to minimum provisions based on Article 118a (new Article 138) of the EC Treaty give cause for concern. Case C-2/97 ('società italiana petroli SpA') involves the admissibility of stricter Italian limit values for carcinogenic substances in benzene; in case C-49/98, by decision of 10 February 1998 the Wiesbaden industrial tribunal referred to the European Court of Justice the question of the application of more favourable German holiday entitlements to workers posted abroad. In both instances the referring courts - and, in the 'società italiana petroli SpA' case, the Advocate-General - took the view that the Community's minimum provisions prevent or make it more difficult for the Member States to adopt stricter protective measures for employees or goods from abroad, than provided for by EC legislation.

Is the Commission aware of this threat to higher levels of protection? If the European Court of Justice were to confirm this trend in its case law, how would it affect the Commission's policy on legislative initiatives on minimum social standards?

Answer given by Mr Flynn on behalf of the Commission

(23 February 1999)

The Court of Justice delivered its judgment in case C-2/97 on 17 December 1998. In line with the Commission's position expressed in its observations presented under the procedure, the Court ruled that a national provision which requires the employer to reduce workers' exposure to a carcinogen irrespective of the assessment of risks is not contrary to Council Directive 90/394/EEC of 28 June 1990 on the protection of workers from the risks related to exposure to carcinogens at work(1), in that it constitutes a more stringent measure for the protection of working conditions as authorised by Article 118a (3) of the EC Treaty and Directive 90/394/EEC.

The Honourable Member's question refers to the Community's minimum provisions contained in Directive 93/104/EC(2) concerning the organisation of working time, which is the subject of one of the questions in referral for preliminary ruling C-49/98. The Commission is able to confirm that this Directive, in accordance with Article 118a of the EC Treaty, is without prejudice to the maintaining or introduction by a Member State of more stringent measures to ensure safe working conditions, as long as they are compatible with the Treaty. This is specifically confirmed by Article 15 of Directive 93/104/EEC.

As this case concerns the transnational posting of workers, the Commission reminds the Honourable Member that European Parliament and Council Directive 96/71/EC of 16 December 1996 concerning the posting of workers in the framework of the provision of services(3) contains a hard core of mandatory rules providing minimum protection, which must be observed in the host Member State by employers posting workers to another Member State as part of the provision of services. These mandatory rules include provisions on a minimum period of paid annual leave.

Under these circumstances, the minimum provisions in force in the host Member State which must be applied to posted workers may stipulate a period of annual leave which is longer than that provided for by Directive 93/104/EC, to the extent that this minimum period is fixed either by legislation or by generally applicable collective agreements. The provisions of the Directive on the posting of workers must be implemented by the Member States by 16 December 1999.

(1) OJ L 196, 26.7.1990.

(2) OJ L 307, 13.12.1993.

(3) OJ L 18, 21.1.1997.