COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE NATIONAL PARLIAMENTS on the proposal for a Directive amending the Posting of Workers Directive, with regard to the principle of subsidiarity, in accordance with Protocol No 2
Date: 2016-07-20
Institutions: Directorate-General for Employment, Social Affairs and Inclusion, European Commission
Subjects: EU Member State, expatriate worker, freedom to provide services, frontier worker, national parliament, principle of subsidiarity, provision of services, remuneration of work, single market, working conditions

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 20.7.2016  COM(2016) 505 final   COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE NATIONAL PARLIAMENTS  on the proposal for a Directive amending the Posting of Workers Directive, with regard to the principle of subsidiarity, in accordance with Protocol No 2  
 
 
1. 

INTRODUCTION 

In  its  Political  Guidelines1,  the  Commission  undertook  to  promote  a  deeper  and  fairer 
Internal  Market.  The  Union  has  established  and  ensures  the  functioning  of  an  Internal 
Market  which  is  based  on  a  highly  competitive  social  market  economy,  aiming  at  full 
employment and social progress. 

Within  this  context  and  consistent  with  the  Commission  Work  Programme  2016,  the 
Commission  adopted  on  8  March  2016  a  proposal2  for  a  targeted  revision  of  Directive 
96/71/EC on Posting of Workers.3 The reasons for action and for the policy choices made 
in  the  proposal  are  developed  in  the  explanatory  memorandum,  the  recitals  of  the 
proposed Directive and the Impact Assessment Report4 accompanying the proposal. 

In  essence,  the  objective  of  the  proposal  is  to  ensure  that  the  implementation  of  the 
freedom  to  provide  services  in  the Union  takes  place  under  conditions that  guarantee  a 
level playing field for businesses and respect for the rights of workers. 20 years after its 
adoption,  the  Commission  found  that  Directive  96/71/EC  no  longer  ensures  such 
conditions  against  the  background  of  the  current  economic  and  social  conditions  in  the 
Member  States.  Therefore,  it  tabled  a  proposal  for  legislative  action.  The  Commission 
proposal aims to remedy the specific problems identified by a limited number of targeted 
amendments to Directive 96/71/EC. 

Protocol  No  2  to  the  Treaties  on  the  application  of  the  principles  of  subsidiarity  and 
proportionality  allows  national  Parliaments  to  issue  reasoned  opinions  when  they 
consider that  a  legislative  proposal  does  not  comply  with  the  principle  of  subsidiarity.5 
Where reasoned opinions issued by national Parliaments represent at least one third of all 
the votes allocated to them,6 the proposal must be reviewed by the Commission. On the 
basis  of  that  review,  the  Commission  may  decide  to  maintain,  amend  or  withdraw  the 
proposal, and it must give reasons for its decision. 

Within  the  deadline  laid  down  in  Article  6  of  Protocol  No  2,  fourteen  chambers  of 
national  Parliaments  sent  reasoned  opinions  to  the  Commission  stating  that  the 
Commission proposal presented on 8 March 2016 does not comply with the principle of 
subsidiarity,  thus  triggering  the  procedure  provided  for  in  Article  7(2)  of  the 
aforementioned  Protocol.  The  purpose  of  this  Communication  is  to  respond  to  these 
concerns as far as they relate to the principle of subsidiarity. 

In  this  connection,  the  Commission  would  like  to  recall  that  strengthening  ties  and 
forging  a  new  partnership  with  national  Parliaments  as  a  way  of  bringing  the  Union 

1   http://ec.europa.eu/priorities/docs/pg_en.pdf   

2   Document COM(2016) 128 final, http://eur-lex.europa.eu/legal-

content/EN/TXT/PDF/?uri=CELEX:52016PC0128&qid=1459769597959&from=EN.  

3   Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning 

the posting of workers in the framework of the provision of services, OJ L 18, 21.01.97, p. 1. 

4   Document SWD(2016) 52 final. 
5   National Parliaments have eight weeks within which to issue a reasoned opinion on a draft legislative 

act from the date of its transmission in the official languages of the Union. 

6   Each  national  Parliament  has  two  votes.  In  the  case  of  a  bicameral  parliamentary  system,  each 

chamber has one vote. 

2 

 
 
                                                 
closer to its citizens is one of its priorities.7 The Commission attaches great importance to 
deepening  country-specific  knowledge  within  the  institution  and  building  mutual 
understanding  and  effective  channels  of  communication  between  the  national  and  the 
European level.8  

2.  PROCEDURE 

The procedure of Article 7(2) of Protocol No 2 is exclusively focused on the principle of 
subsidiarity as defined in Article 5(3) of the Treaty on the European Union (TEU).9 Thus, 
in  reasoned  opinions  within  the  meaning  of  Article  6  of  Protocol  No  2,  national 
Parliaments need to state why they consider that a draft legislative act does not comply 
with that principle.  

Within  the  time  limit  laid  down  in  Article  6  of  Protocol  No  2,  fourteen  chambers  of 
eleven Member States issued reasoned opinions, thus triggering the procedure laid down 
in  Article  7(2)  of  Protocol  No  2.  The  chambers  are  the  following  (number  of  votes  in 
brackets): Romanian Chamber of Deputies (1), Romanian Senate (1), Czech Chamber of 
Deputies  (1),  Czech  Senate  (1),  Polish  Sejm  (1),  Polish  Senate  (1),  Seimas  of  the 
Republic  of  Lithuania  (2),  Danish  Parliament  (2),  Croatian  Parliament  (2),  Latvian 
Saeima  (2)  Bulgarian  National  Assembly  (2),  Hungarian  National  Assembly  (2), 
Estonian  Parliament  (2)  and  the  National  Council  of  the  Slovak  Republic  (2).  These 
reasoned opinions represent 22 votes.10  

In  addition,  six  national  Parliaments  (the  Spanish  Cortes  Generales,  the  Italian  Camera 
dei  Deputati,  the  Portuguese  Assembleia  da  República,  the  House  of  Commons  of  the 
United Kingdom, the French Sénat and the Italian Senato della Repubblica) sent opinions 
in the framework of the political dialogue mainly considering the proposal as compatible 
with the principle of subsidiarity. 

The Commission publicly confirmed the triggering of the procedure laid down in Article 
7(2) of Protocol No 2 on 11 May 2016, the day following the expiry of the time limit laid 
down in Article 6 of Protocol No 2. 

In  line  with  its  commitment  to  ensure  that  national  Parliaments  have  a  strong  voice  in 
European  decision-making,  the  Commission  carefully  analysed  the  reasoned  opinions. 

7   Political  Guidelines  of  the  Commission,  point  10  "A  Union  of  Democratic  Change",  last  paragraph: 
"The  relationship  with  national  Parliaments  is  of  great  importance  to  me,  notably  when  it  comes  to 
enforcing  the  principle  of  subsidiarity.  I  will  explore  ways  to  improve  the  interaction  with  national 
Parliaments as a way of bringing the European Union closer to citizens." 

8  

In  the  Mission  Letters  to  all  the  Members  of  the  Commission,  the  President  of  the  Commission 
indicated that "I want all Commissioners to commit to a new partnership with national Parliaments: 
they deserve particular attention and I want (…) important proposals or initiatives to be presented and 
explained in national Parliaments by Members of the Commission. This should also allow us to deepen 
country-specific  knowledge  within  our  institution  and  to  build  mutual  understanding  and  effective 
channels of communication between the national and the European level."  

9   Article 5(3) TEU: "Under the principle of subsidiarity, in areas which do not fall within its exclusive 
competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be 
sufficiently achieved by the Member States, either at central level or at regional and local level, but 
can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level". 

10   The threshold required to trigger the procedure laid down in Article 7(2) of Protocol No 2 is 19 votes. 

3 

 
                                                 
Before  drawing  its  conclusions,  it  engaged  directly  with  national  Parliaments  on  the 
issues  raised,  in  particular  at  the  Conference  of  Parliamentary  Committees  for  Union 
Affairs  of  Parliaments  of  the  EU  (COSAC)  meetings  of  13  June  2016,  where  a 
preliminary  exchange  focused  on  procedural  aspects  took  place,  and  of  11  July  2016, 
where a substantive discussion took place in the context of a broader debate on the social 
dimension of the EU. 

3.  COMMISSION PROPOSAL FOR A DIRECTIVE AMENDING THE POSTING OF WORKERS 

DIRECTIVE 

The Commission proposal of 8 March 2016 for a Directive amending the 1996 Directive 
on Posting of Workers is based on an Internal Market legal basis, namely Articles 53(1) 
and  62  of  the  Treaty  on  the  Functioning  of  the  European  Union  (TFEU).  Posting,  by 
definition,  is  of  a  cross-border  nature.  Any  posting  activity  has  effects  in  at  least  two 
Member  States.  The  rules  on  posting  necessarily  create  rights  and  obligations  between 
persons in different Member States – that is to say between an employer in the Member 
State  of  origin  and  a  worker  who  temporarily  resides  in  another  Member  State.  Under 
specific circumstances, the service recipient in the latter Member State may moreover be 
held jointly liable.  

The  posting  of  workers  plays  therefore  an  essential  role  in  the  Internal  Market, 
particularly in  the  cross-border  provision  of  services.  The  Commission  is  committed  to 
strengthening  the  Internal  Market,  which  means  inter  alia  that  the  freedom  to  provide 
services in general and the freedom to provide services of undertakings posting workers 
in particular must be facilitated. This is only possible if the legislative framework within 
which posting takes place provides rules which are clear, fair and enforceable.  

The Commission proposal introduces three main changes to the 1996 Directive:  

- First, the proposal sets out that all mandatory rules on remuneration in the host Member 
State  apply  to  workers  posted  to  that  Member  State.  Rules  set  by  law  or  universally 
applicable collective agreements become mandatory for posted workers in all economic 
sectors.  Where  Member  States  in  accordance  with  their  national  rules  and  practices 
require undertakings to subcontract only with undertakings that grant workers the same 
conditions  on  remuneration  as  those  applicable  to  the  contractor,  the  proposal  allows 
Member  States  to  apply  such  rules  equally  to  undertakings  posting  workers  to  their 
territory.  

-  Secondly,  the  proposal  provides  that  the  conditions  to  be  applied  to  cross-border 
agencies  hiring  out  workers  must  be  those  that  are,  pursuant  to  Article  5  of  Directive 
2008/104/EC, applied to national agencies hiring out workers.  

- Thirdly, the proposal provides that, whenever the anticipated duration of posting will be 
superior  to  24  months  or  the  effective  duration  of  posting  exceeds  24  months,  the  host 
Member State is deemed to be the country in which the work is habitually carried out. In 
application of the rules of the Rome I Regulation11, the labour law of the host Member 
State will therefore apply to the employment contract of such posted workers if no other 
choice of law was made by the parties. 

11   Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the 

law applicable to contractual obligations (Rome I), OJ L 177, 4.7.2008, p. 6. 

4 

 
 
                                                 
The  proposal  does  not  address  any  issue  touched  upon  by  the  2014  Enforcement 
Directive  aimed  at  strengthening  instruments  to  fight  and  sanction  circumventions  and 
fraud  related  to  posting  of  workers.  Instead,  it  focuses  on  issues  which  pertain  to  the 
Union regulatory framework set by the original 1996 Directive. Therefore, the proposal 
for  a  targeted  revision  of  the  1996  Directive  and  the  Enforcement  Directive  are 
complementary to each other and mutually reinforcing.  

4.  SUBSIDIARITY REVIEW 

4.1. The principle of subsidiarity and Protocol No 2 

In  accordance  with  the  case  law  of  the  Court  of  Justice  of  the  European  Union,12  the 
judicial review of compliance with the principle of subsidiarity requires a determination 
of  whether  the  Union  legislature  was  entitled  to  consider,  on  the  basis  of  a  detailed 
statement,  that  the  objective  of  the  proposed  action  could  be  better  achieved  at  Union 
level. The Court thus recognises a certain margin of discretion to the Union institutions 
in assessing compliance with the principle of subsidiarity. The same legal determination 
is required when reviewing Commission legislative proposals under Protocol No 2. 

Within the meaning of Article 6 of Protocol No 2, national Parliaments need to state in 
their  reasoned  opinions  why  they  consider  that  a  draft  legislative  act  does  not  comply 
with the principle of subsidiarity. The present review is therefore limited to determining 
whether  the  objective  of  the  proposed  amending  Directive  can  be  better  achieved  at 
Union level. 

Considering  that  all  arguments  raised  by  national  Parliaments  will  play  a  role  in  the 
context of the legislative process, the Commission intends to address them in detail and 
separately by way of letters to the Parliaments concerned, under the “political dialogue”.  

4.2. Subsidiarity concerns raised by the national Parliaments 

The  subsidiarity  arguments  raised  in  the  reasoned  opinions  of  national  Parliaments  are 
the following: 

 
 
 

 

the existing rules are sufficient and adequate (point 4.2.1.) 
the Union is not the adequate level of the action (point 4.2.2.) 
the  proposal  fails  to  recognise  explicitly  Member  States'  competences  on 
remuneration and conditions of employment (point 4.2.3.) 
the justification contained in the proposal with regard to the subsidiarity principle 
is too succinct (point 4.2.4.). 

4.2.1. Existing rules are sufficient and adequate 

Several national Parliaments argue that the rules currently in place are adequate at least 
whenever  the  current  Directive  gives  Member  States  the  possibility  to  go  beyond  the 
general  rules  (extension  of  collective  agreements  beyond  the  construction  sector, 
temporary agency workers). The Estonian Parliament makes a similar argument as far as 
the working conditions of posted workers are concerned. 

12   Case C-547/14, Philip Morris, EU:C:2016:325, paragraph 218.  

5 

 
                                                 
The objective of the proposal is to provide a more level playing field between national 
and  cross-border  service  providers  and  to  ensure  that  workers  carrying  out  work  at  the 
same location are protected by the same mandatory rules, irrespective of whether they are 
local worker or posted workers, in all sectors of the economy. Member States having the 
option, but not the obligation, to apply such rules in sectors other than the construction 
sector  does  not  fully  achieve  this  objective.  Indeed,  Member  States  can  under  such 
circumstances choose not to do so, hence failing to provide a level playing field and an 
adequate  protection  of  posted  workers  in  such  other  sectors.  The  obligation  for  all 
Member States to apply the rules in all sectors of the economy cannot be established at 
national level but must be laid down at Union level. Therefore the Commission considers 
that the objective of the proposal on this point can be better achieved at Union level. 

The same holds true for the obligation on Member States to apply the same conditions to 
cross-border temporary agency workers and national temporary agency workers. 

The  National  Assembly  of  the  Republic  of  Bulgaria,  the  Czech  Senate,  the  Estonian 
Parliament, the Hungarian National Assembly, the Seimas of the Republic of Lithuania, 
the Latvian Saeima, the Romanian Chamber of Deputies and the National Council of the 
Slovak Republic argue that the alignment of wages across Member States should come as 
a  consequence  of  further  economic  development  and  not  from  the  Union's  legislative 
action. In this regard, it should be noted that the proposal does not have the objective of 
aligning wages across Member States. The proposal merely ensures that mandatory rules 
on remuneration in the host Member State are applicable also to workers posted to that 
Member  State.  Moreover,  the  fact  that  economic  development  may  bring  more 
convergence  in  the  wages  over  time  does  not  exclude  the  need  to  ensure  -  also  in  the 
interim  -  a  level  playing  field  for  companies  and  an  appropriate  protection  for  posted 
workers. 

4.2.2. Adequate level of action 

All reasoned opinions, with the exception of that of the Danish Parliament, argue that the 
objective  of  the  action  could  be  better  achieved  at  Member  State  level  or  that  the 
Commission  has  not  sufficiently  proved  that  the  action  should  be  achieved  at  Union 
level. 

Some  of  the  national  Parliaments  submitting  reasoned  opinions  argue  that  this  is 
particularly  the  case  with  some  of  the  proposed  rules:  the  extension  of  applicability  of 
generally  binding  collective  agreements  outside  the  construction  sector  (Bulgarian 
National  Assembly,  Czech  Chamber  of  Deputies  and  Senate)  and  the  rules  on 
subcontracting chains and on temporary agency workers (Polish Sejm and Senate). The 
Hungarian  National  Assembly  considers 
the  concept  of 
"remuneration"  instead  of  the  current  concept  of  "minimum  rates  of  pay",  the  proposal 
does not provide any added value, because of the alleged lack of clarity of the notion of 
remuneration. 

introducing 

that,  by 

As  recalled  in  section  3,  the  objectives  of  the  proposal  are  to  facilitate  the  correct 
functioning  of  the  Internal  Market,  in  particular  to  facilitate  the  freedom  to  provide 
services,  while  ensuring  a  better  level-playing  field  between  national  and  cross-border 
service providers, an adequate protection of posted workers and clarity and predictability 
in  the  legal  framework  applicable  to  posted  workers.  The  Commission  considers  that 
these  objectives  are  interdependent  and  can  be  better  achieved  at  Union  level.  If  the 
Member States acted unilaterally, at State level, on the targeted changes proposed by the 

6 

 
draft legislative act, their action could lead to a fragmentation of the Internal Market as 
regards the freedom to provide services.  

Already  by  adopting  the  1996  Directive  and,  once  again,  in  2014,  by  adopting  the 
Enforcement  Directive,  the  Union  legislature  decided  that  facilitating  the  freedom  to 
provide services, while ensuring a better level-playing field between national and cross-
border  service  providers  and  an  adequate  protection  of  posted  workers,  was  better 
achieved at Union level. It established a regulatory framework for the posting of workers 
at  Union  level,  taking  into  account  the  inherent  cross-border  nature  of  the  posting  of 
workers  and  taking  into  account  that,  if  the  Member  States  acted  unilaterally,  at  State 
level,  their  action  could  lead  to  a  fragmentation  of  the  Internal  Market  as  regards  the 
freedom to provide services.  

By making its proposal, the Commission facilitates the exercise of the rights enshrined in 
Article 57 TFEU, according to which any person providing a service may, in order to do 
so,  temporarily  pursue  his  or  her  activity  in  the  Member  State  where  the  service  is 
provided, under the same conditions as are imposed by that State on its own nationals. 

Individual action by the Member States could not achieve another important objective of 
the measures: bringing legal consistency throughout the Internal Market and clarity to the 
legal  framework  applicable  to  posted  workers  since  the  protection  afforded  to  them 
would  vary  depending  on  the  host  Member  State's  approach.  Indeed,  the  fact  that  the 
legal  framework  at  Union  level  is  not  sufficiently  harmonised  contributes  to  a  lack  of 
knowledge of the rights both by workers, user undertakings and temporary agencies. 

For the aforementioned reasons, the Commission takes the view that the objectives of its 
proposal can best be achieved at Union level. 

4.2.3. Lack of express recognition of Member States' competences 

For the Danish Parliament, the subsidiarity concern is due to the fact that the proposal, 
contrary to Directive 96/71/EC, would not make explicit reference to the competence of 
Member States as far as the definitions of pay and terms and conditions of employment 
are concerned.  

However, the Commission proposal fully and unequivocally respects the competence of 
the  Member  States  to  set  the  remuneration  and  other  terms  and  conditions  of 
employment,  in  accordance  with  their  national  law  and  practice  and  it  states  this 
explicitly.  Recital  No  12  confirms  that  "it  is  within  Member  States'  competence  to  set 
rules on remuneration in accordance with their law and practice". In addition, the text 
proposed  to  amend  Article  3(1),  in  its  first  paragraph,  makes  clear  that  the  terms  and 
conditions  of  employment  to  be  applied  to  posted  workers  are  those  which  are,  in  the 
Member State where the work is carried out, laid down by law or universally applicable 
collective agreements. The proposed change defines remuneration as referring to "all the 
elements  of  remuneration  rendered  mandatory  by  national  law,  regulation  or 
administrative  provision,  collective  agreements  or  arbitration  awards  which  have  been 
declared  universally  applicable  and/or,  in  the  absence  of  a  system  for  declaring 
collective  agreements  or  arbitration  awards  to  be  of  universal  application,  other 
collective agreements or arbitration awards within the meaning of paragraph 8 second 
subparagraph, in the Member State to whose territory the worker is posted". 

The  proposal  hence  does  not  regulate  remuneration,  nor  does  it  define remuneration  or 
the  constituent  elements  of  remuneration  at  Union  level.  It  merely  provides  that 

7 

 
mandatory  rules  on  remuneration,  as  set  by  the  Member  States,  should  apply  in  a non-
discriminatory manner to local and cross-border service providers and to local and posted 
workers. 

The Danish Parliament also argues that the proposal raises doubts on the competence of 
the Member States to determine the terms and conditions that apply to temporary agency 
workers. The Danish Parliament does not contest the possibility for the Union to act in 
this  matter  or  the  fact  that  the  option  currently  given  by  the  1996  Directive  is  made 
mandatory in the proposal. It is the approach consisting in making an express reference to 
Article  5  of  Directive  2008/104/EC  that  according  to  the  Danish  Parliament  could 
undermine national competence.  

To facilitate cross-border service provision by temporary work agencies, whilst ensuring 
a level playing field and adequate protection of agency workers, it is adequate to provide 
that cross-border temporary agency workers are given the same rights as those provided 
for  by  Directive  2008/104/EC  for  national  temporary  agency  workers.  That  principle 
leaves intact the competence of each Member State to determine those rights. 

4.2.4. Lack of justification 

Several  national  Parliaments  argue  that  the  Commission  has  failed  to  comply  with  the 
requirement  of  Article  5  of  Protocol  No  2  to  the  Treaty,13  which  provides  that  drafts 
legislative  acts  shall  be  justified  with  regards  to  the  principles  of  subsidiarity  and 
proportionality, considering that the justification in the explanatory memorandum of the 
proposal is too succinct. 

This  point  has  been  made  by  the  Bulgarian  National  Assembly,  the  Czech  Chamber  of 
Deputies, the Czech Senate, the Croatian Parliament, the Hungarian National Assembly, 
the Latvian Saeima, the Polish Sejm, the Romanian Senate and the National Council of 
the Slovak Republic. 

According  to  the  case  law  of  the  Court  of  Justice,14  the  obligation  under  Article  296, 
second  subparagraph,  TFEU  to  give  reasons  underpinning  legal  acts  requires  that  the 
measures concerned should contain a statement of the reasons that led the institution to 
adopt them, so that the Court can exercise its power of review and so that the Member 
States  and  the  nationals  concerned  may  learn  of  the  conditions  under  which  the  Union 
institutions have applied the Treaty. In the same judgment, the Court accepted an implicit 
and  rather  limited  reasoning  as  sufficient  to  justify  compliance  with  the  principle  of 
subsidiarity. In a more recent judgment, the Court has made clear that compliance with 
the obligation to state reasons as regards respect for the principle of subsidiarity must be 
evaluated not only by reference to the wording of the contested act, but also by reference 
to  its  context  and  the  circumstances  of  the  individual  case.15  The  Court  examines,  in 

13   Article  5  of  Protocol  No  2  provides  that  "draft  legislative  acts  shall  be  justified  with  regard  to  the 
principles  of  subsidiarity  and  proportionality.  Any  draft  legislative  act  should  contain  a  detailed 
statement  making  it  possible  to  appraise  compliance  with  the  principles  of  subsidiarity  and 
proportionality. This statement should contain some assessment of the proposal's financial impact and, 
in  the  case  of  a  directive,  of  its  implications  for  the  rules  to  be  put  in  place  by  Member  States, 
including, where necessary, the regional legislation". 

14   Case C-233/94, Germany v Parliament and Council, EU:C:1997:231, paragraph 25. 
15   Case  C-547/14,  Philip  Morris,  EU:C:2016:325,  paragraph  225.  See  also  the  judgment  in  Estonia  v 

Parliament and Council, C 508/13, EU:C:2015:403, paragraph 61. 

8 

 
                                                 
particular,  whether  the  Commission’s  proposal  and  its  impact  assessment  include 
sufficient information showing clearly and unequivocally the advantages of taking action 
at Union level rather than at Member State level.16 

In  the  present  case,  as  regards  subsidiarity,  the  explanatory  memorandum  stated:  “An 
amendment to an existing Directive can only be achieved by adopting a new Directive.” 
While this statement is succinct, it is completed by the recitals of the draft Directive and 
by the Impact Assessment Report accompanying it. 

The  recitals  of  the  draft  Directive  make  clear  why  action  at  Union  level  is  required  to 
improve  the  Union  regulatory  framework  concerning  the  posting  of  workers  in  some 
regards.  

As  already  stated,  recital  No  12  clarifies  that  it  remains  “within  Member  States’ 
competence to set rules on remuneration in accordance with their law and practice”. 

Moreover, the Impact Assessment Report, which accompanies the proposal, gives a more 
detailed assessment of respect for the principle of the subsidiarity and proportionality of 
the proposal.17  

The  Commission  considers  that  that  information  is  sufficient  to  allow  both  the  Union 
legislature and national Parliaments to determine whether the draft legislative act at issue 
complies with the principle of subsidiarity. 

5.  CONCLUSION 

In the light of the above, the Commission concludes that its proposal of 8 March 2016 for 
a  targeted  revision  of  Directive  96/71/EC  on  the  posting  of  workers  complies  with  the 
principle  of  subsidiarity  enshrined  in  Article  5(3)  TEU  and  that  a  withdrawal  or  an 
amendment of that proposal is not required. The Commission therefore maintains it.  

The  Commission  will  pursue  its  political  dialogue  with  all  national  Parliaments  on 
arguments  going  beyond  compliance  with  the  subsidiarity  principle  and  is  ready  to 

16   Case C-547/14, Philip Morris, EU:C:2016:325, paragraph 226 
17   Point  2.6  of  that  Report  reads  as  follows:  "A  regulative  framework  for  posting  of  workers  between 
Member  States  can  only  be  established  at  EU  level.  The  aims  are  to  facilitate  the  cross-border 
provision  of  services  through  posting  of  workers  by  improving  the  clarity  and  transparency  of 
applicable  labour  market  rules  in  the  host  Member  State(s)  of  posted  workers;  to  ensure  a  level 
playing  field  for  competition  in  the  provision  of  services  between  posting  companies  and  local 
companies  in  the  host  Member  State,  while  ensuring  that  posted  workers  have  an  adequate  level  of 
protection while working in the host Member State. EU action in the form of a Directive is warranted 
to encourage the freedom to provide services across borders on the basis of Article 56 of the Treaty on 
the Functioning of the European Union (TFEU). The Directive currently provides for a uniform and 
EU-wide regulative framework setting a hard core of protective rules of the host Member State which 
need to be applied to posted workers, irrespective of their substance. Therefore, in full respect of the 
principle  of  subsidiarity,  the  Member  States  and  the  social  partners  at  the  appropriate  level  remain 
responsible for establishing their labour legislation, organising wage-setting systems and determining 
the level of remuneration and its constituent elements, in accordance with national law and practices. 
The envisaged initiative does not change this approach. It thus respects the principles of subsidiarity 
and  proportionality  and  does  not  interfere  with  the  competence  of  national  authorities  and  social 
partners". 

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engage in discussions with the European Parliament and the Council on these concerns in 
order to adopt the proposed directive. 

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