Communication on the Posting of Workers in the framework of the provision of services
14 June 2007by eub2 -- last modified 14 June 2007
The European Commission on 13 June 2007 presented its assessment of national measures applied by Member States in the context of supervising the posting of workers, as well as the situation in terms of administrative cooperation. The aim is to remove unnecessary obstacles to the free provision of services within the internal market while continuing to ensure adequate protection for posted workers. This balanced approach is to be supported amongst others by a high level Committee of government experts, involving social partners, to facilitate the exchange of good practices. The Commission also proposes to reinforce administrative co-operation through the use of the Internal Market Information system (IMI). Furthermore, the Commission will launch, if necessary, infringement procedures to ensure conformity with Community law.
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What is the 1996 Directive on the Posting of Workers about?
The Posting of Workers Directive was adopted in 1996 in connection with the provision of services and has been in force since December 1999 (Directive 96/71/EC). It requires that, where a Member State has certain minimum terms and conditions of employment in force, these must also apply to workers posted temporarily by their employer to work in that Member State. Its aim is to balance the economic freedoms enshrined in the EC Treaty and the rights of employees during posting.
The Directive applies to enterprises that post a worker to perform work on a temporary basis in a Member State other than the one whose law governs the employment relationship.
What is a 'posted worker'?
A posted worker is a person who, for a limited period, carries out his or her work in the territory of an EU Member State other than the State in which he or she normally works. The number of posted workers in the EU is estimated to be 1 million (about 0.4% of the EU working age population – 2005). The Directive on the Posting of Workers applies to companies providing a cross-border service that:
post workers to another Member State under a contract between them and a party in another Member State for whom the services are intended;
make intra-company postings;
are temporary agencies who post workers.
At all times, employers and workers must maintain an employment relationship during the posting.
What terms and conditions of employment are covered by the Posting of Workers Directive?
The Directive aims to guarantee that posted workers enjoy during their work abroad minimum standards that are in force, as well as minimum standards that have been achieved through universally applicable collective agreements, in the Member State to which they are posted. These include:
maximum work periods and minimum rest periods;
minimum paid annual holidays;
minimum rates of pay, including overtime rates;
conditions of hiring out workers, in particular the supply of workers by temporary employment undertakings;
health, safety and hygiene at work;
protective measures in the terms and conditions of employment of pregnant women or those who have recently given birth, of children and of young people;
equal treatment between men and women and other provisions on non-discrimination.
Are all areas of employment covered by the Posting of Workers Directive?
The Posting of Workers Directive covers all areas of employment except seagoing personnel working for merchant navy companies. The rules must be laid down by the legislation of the host country and/or, for activities in the construction sector, by collective agreements or arbitration rulings that are declared to be generally applicable. For activities in sectors other than construction, Member States may choose to impose the rules laid down by collective agreement. Most have done so.
What are the problem areas in terms of implementation of the Posting of Workers Directive?
The implementation of the Posting of Workers Directive has given rise to three major types of problem:
- The insufficient access of workers and companies to information and the poor quality of some of this information as made available by national authorities, as well as insufficient administrative co-operation between national authorities;
- The use by national authorities of control measures that in some cases go beyond what is strictly necessary and justifiable to verify compliance with the Directive and ensure protection of posted workers. As a result concerns have been raised about the hindrance that such measures may pose to the free provision of services;
- Problems of interpretation of specific provisions of the Directive, such as the nature of public policy provisions, the temporary nature of posting, the distinction between self-employed workers and employees, the rules to be followed when collective agreements are not universally applicable, etc. which have given rise to a number of cases brought before national tribunals and the European Court of Justice.
The 2007 communication, which is based on an objective examination of the situation, as presented in an attached report, aims to assess whether any progress has been made since 2006 in line with the guidance issued by the Commission.
The main problem still is that many Member States tend to rely solely on their own national measures and instruments to control compliance with the Directive, disregarding the possibilities given by administrative cooperation or lighter forms of control. A number of Member States still require a work permit or impose access-to-the-labour-market related visa requirements for posted third country nationals who are legally staying and are legally employed in another Member State. Others impose strict conditions on the need to have a legal representative domiciled in the territory of the host country or the availability of all social documents under the form normally required for domestic undertakings.
What can Member States do to improve the application of the Posting of Workers directive?
The 2006 communication set out the jurisprudence of the Court as regards the measures Member States can not use when monitoring compliance. It also set out the obligations of Member States as regards cooperation on information and monitoring of compliance with the directive and measures in the event of failure to comply. The present communication assesses the situation in the Member States as regards these issues. In terms of improvements, good examples include
- Spain, where authorities have established a single liaison office and monitoring office where requests for information and cooperation can be directed, irrespective of where the services are being provided.
- A number of countries (Belgium, Czech Republic, Estonia, Lithuania, Austria) where the websites dedicated to the posting of workers have been visibly improved.
- Awareness raising campaigns have been launched in a few cases (e.g. Luxembourg)
- Bilateral agreements established in order to ensure improved cooperation between labour inspectorates (as those established between Spain and Portugal, or by Belgium, France and Netherlands with neighbouring countries)
What are the next steps?
- The Commission will facilitate administrative cooperation between Member States through the promotion of the Internal Market Information System which would allow for a secure and fast data exchange enabling Member States to work together despite language, administrative and structural barriers.
- The Commission will prepare a decision to provide the necessary basis for the creation of a high level group to support the exchange of best practice. This will give a further, more formal impetus to the existing, rather informal framework, and provide existing administrative cooperation with more guarantees to function better and operate more effectively. It would also allow indicating more clearly the involvement of Social Partners, who have an important role to play in the context of control and the monitoring of compliance.
- The Commission will be taking appropriate action against certain Member States that do not apply Community law in this area as interpreted by the European Court of Justice. Any question on whether or not the national requirements are compatible with prevailing Community law, will be analysed on a case by case basis, taking also into consideration the specificities of the respective social model in that Member State. The Commission does not intend to question the different social models nor the way Member States organise their collective bargaining
