Practically in the last minute, eleven Member States have made use of the option to issue a “yellow card” against the new proposal in respect of the Posting of Workers Directive and in doing so blocked it. Almost in unity, they oppose the principle of equal pay for equal work at the same workplace and demand that the EU Commission withdraws its proposal. It is little surprising that ten out of the eleven Member States are from Eastern Europe. The ball is now in the corner of the EU Commission, which has to review its own proposal and based on this review has to decide whether to stick to the draft, to modify it or to withdraw it.

Yellow card throws a spanner into the legislative process

The EU Commission presented its new draft of the Posting of Workers Directive at the beginning of March. One of the objectives was to achieve that the principle of equal pay for equal work at the same workplace would become reality at last. However, taking a closer look at the proposal soon made clear that the principle had only been “promoted” but not established. But even that was a step too far for some Member States. Hence, there was massive resistance from Poland and Rumania, who did not want to give up their different pay levels and thereby their competitive advantage, as these were exactly the issues their businesses had benefited from over recent years. Thus it was their declared target to throw a spanner into the legislative process. An initial option is the mechanism of the “yellow card”, which the Member States can brandish. To do this, the national parliaments have to present a reasoned statement within 8 weeks of the proposal's presentation, if they believe that the draft of an EU legislative act is not compatible with the subsidiarity principle in their opinion. In other words, whether in view of national, regional or local opportunities for action an approach at EU level is really justified. The deadline expired on 10th May and practically in the very last minute three of the eleven Member States made use of their “yellow card” and expressed their opinion that the rules proposed by the EU Commission, would be better applied “at home”. Now, that the process of the “yellow card” card has been triggered, the Commission has to review its own proposal. Based on this review it is then able to decide to stick to the review to moderate or to withdraw it. The outcome is completely open.

11 Member States are not enough to block the proposal in the Council

There are already first reactions from the EU Parliament. Hence, Thomas Händel, chair of the Committee on Employment and Social Affairs not only came clearly out in favour of retaining the proposal, but he even wants to expand it by some elements, for example with regard to combatting malpractice and by the clear commitment to the principle of equal pay for equal work at the same workplace for all employees. However, interesting is the fact that the eleven Member States (Bulgaria, Croatia, Czechia, Denmark, Latvia, Lithuania, Poland, Rumania, Hungary, Poland and Slovakia) are not enough to block the proposal at Council level if necessary. However, this yields hope that the proposal, which from the point of the Chamber of Labour has room for improvement, will after all be amended to accommodate workers to ensure that a stop will be put to the still existing competitive distortions.