The government contested the amendment of the Posted Workers Directive promulgated on 9 July 2018 with its action for annulment submitted to the Court of Justice of the European Union.
Ever since the publication of the European Commission’s relevant proposal in March 2016, Hungary has consistently opposed the amendment of Directive 96/71/EC of the European Parliament and of the Council concerning the posting of workers in the framework of the provision of services because the extension of the principle of equal pay for equal work at the same workplace to the freedom of the provision of services does not, in actual fact, seek to protect posted workers; it forces them out of the labour markets of other Member States as a means of protectionism.
During the talks that carried on for two years in the crossfire of political disputes, the government held the position that the new regulations restrict the freedom of the provision of services disproportionately, thereby upsetting the precarious balance that previously existed by virtue of earlier regulations between the protection of workers and the promotion of the mentioned freedom, and additionally reducing the entire EU’s competitiveness. The government also found it objectionable that the European Commission upheld its original proposal unchanged despite the fact that fourteen chambers of the national parliaments of eleven Member States, including the Parliament of Hungary, raised objections to the proposal by launching a so-called yellow card procedure.
Hungary found the extension of the posted workers regulations to international road transport activities particularly unacceptable as these are – by virtue of their nature – characterised by a high degree of mobility. In the Council of the European Union, raising objections to the adoption of the directive, Hungary and Poland also argued in a common declaration that the regulations adopted cannot in any way be regarded as balanced in light of the fact that the special rules of posting applicable to road transport are still being negotiated as part of a keen debate.
During the talks Hungary made every effort to reach a reasonable compromise that is acceptable for all Member States. As this approach was rejected, and additionally as the final wording of the directive is even more detrimental to the region’s businesses than suggested in the European Commission’s original proposal, the government contested the EU directive before the Court of Justice of the European Union within the time limit extending to 3 October 2018 available for bringing an action.
In its statement of action, the government cites a number of legal arguments to support the claim that the contested legal act violates the freedom of the provision of services laid down in the Treaties of the EU. On the one hand, it is contrary to the principles of necessity and proportionality, and on the other it introduces obligations and restrictions which violate the requirement of non-discrimination. The government further argues that the extension of the rules of posting to the transport sector, too, is contrary to the Treaties.
The government also highlights that some provisions of the contested directive violate the principles of legal security and norm clarity which will pose major challenges to the Member States upon the transposition of the directive into their respective national laws, an obligation which they are required to meet by 30 July 2020. Until the same date Member States may not apply these provisions. The government sincerely hopes that the Court of Justice of the European Union will annul the contested directive before that date.
Hungary takes the view that the outcome of the court procedure is crucial as the restriction of any fundamental freedom may lead to the disintegration of the unity of the internal market which constitutes the basis of European integration.
According to information at our disposal, Poland will also bring an action before the Court of Justice of the European Union seeking the annulment of the directive.