by Cary Gee

THE European Court of Justice has ruled against the European Trade Union Congress in a case brought by the European Commission. The court upheld a complaint that the manner in which Luxembourg has implemented the posting directive is an obstacle to the free provision of cross border services.

The posting of a workers directive was implemented in 1996 to ensure that workers posted to different EU countries by their employers could enjoy benefits equivalent to those at home.

The ETUC has greeted the ruling with anger, claiming that the European Commission, with the implicit backing of the European Court of Justice, is consistently trying to narrow the scope for member states and their social partners to ensure the correct functioning of their labour markets when foreign service providers post workers to their territory.

In line with previous cases, the latest ruling allows only for a limited number of host country employment regulations to apply.

The judgement in Luxembourg did not recognise that country’s autonomous right to decide which national policy provisions were sufficiently important that they should apply equally to national and foreign workers, which would counter unfair competition on wages and working conditions by cross border employers.

The ruling is likely to have an enormous impact as it challenges the ability of member states to secure wages and working conditions for all workers in their country .

John Monks, general secretary of the ETUC, called the ruling “hugely problematic” saying that the court had “asserted the primacy of economic freedoms over fundamental rights and respect for national labour law and collective agreements”.