European Union law and the protection of posted workers: a question of competence

The mobility of workers across the European Union is one of the main priorities of the Commission. On 8 March 2016 it presented a proposal amending the Directive 96/71 concerning the posting of workers in the framework of the provision of services with the aim of enhancing their rights’ protection in light of the principle ‘same pay for the same work in the same place’. However, national Parliaments reached the required threshold to issue a yellow card for that proposal within the subsidiarity control mechanism. The European Parliament could not therefore take a decision until the Commission has stated how it intended to proceed. In its Communication of 20 July 2016 the Commission declared to maintain the proposal. It claimed the compatibility of the draft legislative act with the subsidiarity principle and argued that the objective of the proposed amending Directive can be better achieved at Union level, also because it deals with cross-border situations. Considering the national Parliaments’ opinions and the Commission’s reply, the question of subsidiarity will be examined in order to evaluate possible observations that may be pointed out by the European Parliament, and specifically by the responsible Committee on Legal Affairs. Against this background, some remarks will refer to the other withdrawn legislative initiative on the right to take collective action, the so called ‘Monti II Regulation’. The topic ‘protection of posted workers’ is part of my PhD research project concerning the cross-border collective redress in employment contexts within the EU private international law framework.