The European Trade Union Confederation (ETUC) finds that the judgement confirms the ECJ’s narrow interpretation of the Posting Directive in the Laval case and ignores the Public Procurement Directive 2004 which explicitly allows for social clauses. It does not recognise the rights of Member States and public authorities to use public procurement instruments to counter unfair competition on wages and working conditions of workers by cross-border service providers, as these would not be compatible with the Posting Directive. Nor does it recognise the rights of trade unions to demand equal wages and working conditions and the observance of collective agreed standards applying to the place of work for migrant workers regardless of nationality beyond the minimum standards recognised by the Posting Directive.
The ECJ denies that such policies could be justified by the objective of ensuring the protection of workers. Moreover, the ECJ gives a highly questionable interpretation of the main objective of the Posting Directive which in its view “'seeks in particular to bring about the freedom to provide services”, thereby ignoring its stated raison-d'être, being that “the promotion of the transnational provision of services requires a climate of fair competition and measures guaranteeing respect for the rights of workers”.
The ECJ judgement in effect is an open invitation for social dumping, which will not only threaten workers’ rights and working conditions, but also the capacity of local (small and medium) enterprises to compete on a level playing field with foreign (sub)contractors. This may well feed into increasing sentiments against open borders, which are a much stronger obstacle to the development of the single market and free movement than the ECJ and some EU politicians seem to be aware of.
John Monks, General Secretary of the ETUC said: “This is another destructive and damaging judgement after the recent Laval ruling by the ECJ. They both assert the primacy of the free movement of services over existing labour regulations which apply to the place where the service is provided ".
“This judgement underlines the need for urgent action by the European authorities to confirm that the EU is not just an economic project but has as its main objective the improvement of living and working conditions of its populations, and that the concept of social progress is of fundamental importance for keeping the support of Europe’s citizens and workers for the European project ".
“The ETUC is pressing the case for a social progress clause to make this clear and to avoid repetitions of the Rüffert and Laval cases .”