Activities of Alejandro CERCAS related to 2012/0061(COD)
Plenary speeches (2)
Posting of workers in the framework of the provision of services (debate)
Posting of workers in the framework of the provision of services (debate)
Amendments (130)
Amendment 60 #
Proposal for a directive
Citation 1
Citation 1
Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 53(1), 62, 151 and 62153 thereof,
Amendment 62 #
Proposal for a directive
Citation 1 a (new)
Citation 1 a (new)
Having regard to the Charter of Fundamental Rights of the European Union, and in particular Articles 15, 21 and 28 thereof,
Amendment 65 #
Proposal for a directive
Recital 1
Recital 1
(1) Pursuant to Article 3(3) TEU, the internal market is not an end in itself, but a means to achieve social progress. The free movement of workers, the freedom of establishment and the freedom to provide services are fundamental principles of the internal market in the Union enshrined in the Treaty. The implementation of these principles is further developed by Union aimed at guaranteeing a level playing field for businesses and respect for the rights of workerlegislation and measures aimed at guaranteeing the rights of workers and a level playing field for businesses.
Amendment 74 #
Proposal for a directive
Recital 3
Recital 3
(3) With respect to workers temporarily posted to carry out work in order to provide services in another Member State than the one in which they habitually carry out their work, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services establishes a core set of clearly defined terms and conditions of work and employment which must at least be complied with by the service provider in the Member State to which the posting takes place to ensure the minimum protection of the posted workers concerned.
Amendment 75 #
Proposal for a directive
Recital 3 a (new)
Recital 3 a (new)
(3a) This directive aims at better enforcement of Directive 96/71/EC. Therefore, the provision laid down in this directive shall be applicable without prejudice to Articles 4 and 5 of Directive 96/71/EC.
Amendment 78 #
Proposal for a directive
Recital 3 b (new)
Recital 3 b (new)
Amendment 79 #
Proposal for a directive
Recital 3 c (new)
Recital 3 c (new)
(3c) In case of non-compliance, such as when a worker is found not to be genuinely posted, an undertaking should be subject to the relevant legislation applicable in the Member State to which the posting takes place, and all persons posted by the undertaking concerned shall be deemed workers exercising their freedom of movement within the Union.
Amendment 83 #
Proposal for a directive
Recital 4
Recital 4
(4) In order to prevent, avoid and combat circumvention and/or abuse of the applicable rules by companies taking improper or fraudulent advantage of the freedom to provide services enshrined in the Treaty and/or the application of Directive 96/71/EC the implementation and monitoring of the notion of posting should be improved and the risk of contradictions in the application of EU law reduced.
Amendment 88 #
Proposal for a directive
Recital 6
Recital 6
(6) As is the case with Directive 96/71/EC, this Directive should not prejudice the application of the law which, under Article 8 of the Rome I Regulation, applies to individual employment contracts, or the application of Regulation No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems and, Regulation No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems, Regulation (EU) No 465/2012 of the European Parliament and of the Council of 22 May 2012 or Article 45 and 46 TFEU. The provisions of this Directive should be without prejudice to Member States providing for more favourable conditions for posted workers.
Amendment 94 #
Proposal for a directive
Recital 8
Recital 8
(8) Trade unions play an important role in the context of the posting of workers for the provision of services since social partners may, in accordance with national law and/or practice, determine the different levels (alternatively or simultaneously) of the applicable minimum rates of payhis Directive and Directive 96/71/EC should not interfere with different national industrial relations and collective bargaining systems.
Amendment 99 #
Proposal for a directive
Recital 9
Recital 9
(9) For the purpose of ensuring that a posted worker receives the correct pay and provided allowances specific to posting can be considered part of minimum rates of pay, such allowances should only be deducted from wages if national law, collective agreements and/or practiceas provided for by national law, collective agreements and/or practice of the Member State in which the posting takes place. Allowances specific to posting should be taken into account provided they are paid by the hour and regardless of the circumstances of the work performed. Allowances paid in reimbursement of expenditure actually incurred on account of the hpost Member State provide for thising, such as expenditure on travel, board and lodging should not be taken into account, as the reimbursement of such expenditure is an obligation on the employer.
Amendment 101 #
Proposal for a directive
Recital 9 a (new)
Recital 9 a (new)
(9a) This Directive, Directive 96/71/EC and Directive 2008/104/EC should guarantee that temporary agency workers who are also posted workers benefit from the most advantageous terms and conditions of employment.
Amendment 105 #
Proposal for a directive
Recital 10
Recital 10
(10) Adequate and effective implementation and enforcement are key elements in protecting the rights of posted workers, whereas poor enforcement undermines the effectiveness of the Union rules applicable in this area. Close cooperation between the Commission and the Member States is therefore essential, without neglecthile underlining the important role of labour inspectorates and the social partners in this respect.
Amendment 109 #
Proposal for a directive
Recital 10 a (new)
Recital 10 a (new)
(10a) Effective, regular and flexible labour inspections are essential and adequate funding should be provided in order for the competent authorities to detect and combat misuse and circumvention. Member States should be entitled to perform any controls needed in order to fully comply with Article 5 in 96/71/EC and the provisions in this Directive.
Amendment 113 #
Proposal for a directive
Recital 10 b (new)
Recital 10 b (new)
(10b) Posted workers should not be used to replace workers on strike.
Amendment 117 #
Proposal for a directive
Recital 11 a (new)
Recital 11 a (new)
(11a) Member States should take appropriate measures in order to prevent the misuse and/or circumvention of Directive 96/71/EC and this Directive by undertakings for the purpose of depriving posted workers of their rights or the withholding of such rights. In particular, posted workers sent to replace workers on strike, successive assignments to the same post and bogus self employment should be prevented.
Amendment 118 #
Proposal for a directive
Recital 11 b (new)
Recital 11 b (new)
(11b) Competent authorities should make an overall assessment of all factual elements in order to determine if an undertaking is genuinely established in a Member State other than the one to which it directs its services. Member States should ensure that the undertakings provide the necessary evidence. If it cannot be established that genuine substantial activity are carried out in the Member State of establishment, the undertaking should, for the purpose of this Directive and Directive 96/71/EC, be considered as established in the Member State to which the posting takes place.
Amendment 119 #
Proposal for a directive
Recital 11 c (new)
Recital 11 c (new)
(11c) In order to assess whether a posted worker is temporarily carrying out his or her work in a Member State other than the one in which he or she normally works, all elements characterizing such work and the situation of the worker should be examined. Member States should ensure that undertakings provide the necessary evidence. If it cannot be established that a worker is a posted worker within the meaning of this Directive and Directive 96/71/EC, he/she should be considered as habitually employed in the Member State to which the posting takes place, within the meaning of Regulation No 593/2008.
Amendment 120 #
Proposal for a directive
Recital 11 d (new)
Recital 11 d (new)
(11d) In case terms and conditions of employment in the Member State of establishment and/or the Member State to which the posting takes place are more favourable to posted workers than this Directive and/or Directive 96/71/EC, the more favourable terms and conditions should apply.
Amendment 131 #
Proposal for a directive
Recital 14
Recital 14
(14) Member States obligations to make information on terms and conditions of employment generally available and to provide effective access free of charge to it, not only to service providers from other Member States, but also to the posted workers concerned, should be further concretised.
Amendment 133 #
Proposal for a directive
Recital 14 a (new)
Recital 14 a (new)
(14a) Posted workers have an individual right to information and advice on the applicable terms and conditions of work and employment. It is the responsibility of the Member States to set up appropriate bodies to which posted workers can turn in this respect.
Amendment 144 #
Proposal for a directive
Recital 16
Recital 16
(16) In order to ensure the correct application of, and to monitor compliance with, the substantive rules on the terms and conditions of employment to be respected with regard to posted workers, Member States should apply only certainthe necessary control measures orand administrative formalities to undertakings posting workers for the provision of services. Such measures and requirements may only be imposed provided that the competent authorities cannot carry out their supervisory task effectively without the requested information and the necessary information cannot be obtained easily from the employer of posted workers or the authorities in the Member State of establishment of the service provider within a reasonable delay and/or less restrictive measures would not ensure that the objectives of the national controls measures deemed necessary are attained in order to effectively combat fraud and unfair competition.
Amendment 152 #
Proposal for a directive
Recital 17
Recital 17
(17) A comprehensive and effective system of preventive and control measures, together with deterrent penalties to identify and prevent individual instances of bogus self- employed, should contribute to combat concealed employment effectively. In this context it is essential that competent authorities in the member states have the means to check if there is a situation of dependency between the allegedly self- employed individual and his or her employer.
Amendment 154 #
Proposal for a directive
Recital 17 a (new)
Recital 17 a (new)
(17a) In order to combat bogus self- employment and other violations of existing legislation, a European register should be set up for companies that have repeatedly violated the rules laid down in this Directive and Directive 96/71/EC. The purpose of the register should also be to ensure a level playing field and fair competition among companies.
Amendment 156 #
Proposal for a directive
Recital 18
Recital 18
(18) To ensure better and more uniform application of Directive 96/71/EC as well as its enforcement in practice, and to reduce, as far as possible, differences in the level of application and enforcement across the Union, Member States should ensure that effective and adequate inspections are carried out on their territory.
Amendment 159 #
Proposal for a directive
Recital 20
Recital 20
Amendment 164 #
Proposal for a directive
Recital 23
Recital 23
(23) To facilitate the enforcement of Directive 96/71/EC and ensure more effective application of it, effective complaint mechanisms should exist through which posted workers may lodge complaints or engage in proceedings either directly or through relevant designated third parties, such as trade unions or other associations as well as common institutions of social partners. This should be without prejudice to national rules of procedure concerning representation and defence before the courts. Trade unions should have a right of collective action and the possibility of representative action.
Amendment 172 #
Proposal for a directive
Recital 24
Recital 24
(24) In view of the prevalence of subcontracting in the construction sector,With a view to reducing abuses in subcontracting situations and in order to protect posted workers‘' rights, it is necessary to ensure that in such sector at least the contractor of which the employer is a direct subcontractor can be held liable to pay to posted workers the net minimum rates of pay due, any back- payments of outstanding remuneration and/or contributions due to common funds or institutions of social partners regulated by law or collective agreement in so far as these are covered by Article 3 (1) of Directive 96/71/EC in addition to or in place of the employer. The contractor shall not be held liable if he/she has undertaken due diligence. The latter may imply preventive measures concerning proof provided by the subcontractor, including where relevant based upon information emanating from national authoritiesall contractors up the chain can be held liable to pay to posted workers all entitlements due to him/her.
Amendment 181 #
Proposal for a directive
Recital 25
Recital 25
Amendment 192 #
Proposal for a directive
Recital 26
Recital 26
Amendment 199 #
Proposal for a directive
Recital 26 a (new)
Recital 26 a (new)
(26a) This Directive and Directive 96/71/EC apply also to transport undertakings other than those engaged in maritime transport, which post workers to other Member States, including air and freight transport as well as cabotage operations as recognised in recital 17 of Regulation No 1072/2009/EC of the European Parliament and of the Council on common rules for access to the international road haulage market.
Amendment 208 #
Proposal for a directive
Recital 32
Recital 32
(32) Member States should take appropriate measures in the event of failure to comply with the obligations laid down in this Directive, including administrative and judicial procedures, and should provide for effective, dissuasive and proportionate penalties for any breaches of the obligations under this Directive. Insufficient cooperation between Member States remains a problem in enforcing Directive 96/71/EC. This hinders the creation of a level playing field for companies and the protection of workers. In the case of Member States failing to live up to the provisions laid down in this Directive and Directive 96/71/EC, the Commission should, in accordance with the Treaty of the European Union, take legal action.
Amendment 213 #
Proposal for a directive
Recital 33
Recital 33
(33) This Directive and Directive 96/71/EC respects the fundamental rights and observes the principles recognised in the European Convention on Human Rights, ILO Conventions and the Charter of Fundamental Rights of the European Union, notably protection of personal data (Article 8), the freedom to choose an occupation and right to engage in work (Article 15), the freedom to conduct a business (Article 16), the right to equality (Article 20), non-discrimination (Article 21), the right to collective bargaining and action (Article 28), fair and just working conditions (Article 31), and the right to an effective remedy and to a fair trial (Article 47) and has to be implemented in accordance with those rights and principles.
Amendment 215 #
Proposal for a directive
Recital 33 a (new)
Recital 33 a (new)
(33a) Fundamental social rights should not be called into question on grounds of economic freedoms. Therefore this Directive should strengthen the enforcement of Directive 96/71/EC in particular in light of legal uncertainties resulting from the judgments of the European Court of Justice notably Viking (C-438/05), Laval (C-341/05), Rüffert (C- 346/06) and Luxembourg (C-319/06).
Amendment 217 #
Proposal for a directive
Article 1 – paragraph 1 – subparagraph 1
Article 1 – paragraph 1 – subparagraph 1
1. This Directive establishes a general common framework of appropriateset of provisions, measures and control mechanisms necessary forenabling Member States to ensure better and more uniform implementation, application and enforcement in practice of Directive 96/71/EC, including measures to prevent and sanction any abuse and circumvention of the applicable rulesterms and conditions of employment that apply in the place where the service is to be performed, without prejudice to more favourable treatment of the worker.
Amendment 220 #
Proposal for a directive
Article 1 – paragraph 1 – subparagraph 1 a (new)
Article 1 – paragraph 1 – subparagraph 1 a (new)
This Directive clarifies which measures fall under the public policy provisions, which are provisions covering those mandatory rules from which there can be no derogation and which, by their nature and objective, meet the imperative requirements of the public interest.
Amendment 223 #
Proposal for a directive
Article 1 – paragraph 1 – subparagraph 2
Article 1 – paragraph 1 – subparagraph 2
This Directive aims to guarantee respect for an appropriate level of minimum protection of the rights of posted workers for the cross- border provision of services, while facilitating the exercise of the freedom to provide services for service providers and promoting fair competition between service providers.
Amendment 226 #
Proposal for a directive
Article 1 – paragraph 1 – subparagraph 2 a (new)
Article 1 – paragraph 1 – subparagraph 2 a (new)
This Directive does not affect in any way the competences of the Member States to define mandatory labour standards and working conditions for all workers pursuing labour on their territory as stated in Article 3 (10) of Directive 96/71 as long as these standards are not protectionist or discriminatory.
Amendment 230 #
Proposal for a directive
Article 1 – paragraph 2
Article 1 – paragraph 2
2. This Directive shall not affect in any way the exercise of fundamental rights as recognised in Member States and by Union laws well as at Union and international level, including the right or freedom to strike or to take other action covered by the specific industrial relations systems in Member States, in accordance with national law and practices. Nor does it affect the right to negotiate, conclude and enforce collective agreements and to take collective action in accordance with national law and practices.
Amendment 237 #
Proposal for a directive
Article 1 a (new)
Article 1 a (new)
Article 1 a Relationship with Union law 1. This Directive and Directive 96/71/EC apply without prejudice to more favourable treatment of workers provided for in other Union law instruments. 2. In case of conflict between this Directive and Directive 96/71/EC on the one hand and Directive 2008/14/EC on temporary agency work on the other hand, priority shall be given to the instrument which guarantees the worker the most favourable treatment with regard to terms and conditions of employment.
Amendment 239 #
Proposal for a directive
Article 2 – paragraph 1 – point a
Article 2 – paragraph 1 – point a
(a) ‘'competent authority’' means an authority body designated by a Member State to perform functions under this Directive, including social partners;
Amendment 250 #
Proposal for a directive
Article 3 – title
Article 3 – title
Amendment 255 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – introductory part
Article 3 – paragraph 1 – subparagraph 1 – introductory part
1. For the purpose of implementing, applying and enforcing Directive 96/71/EC the competent authorities shall tmake into accountan overall assessment of all factual elements characterising the activities carried out by an undertaking in the Member State in which it is established and, where necessary, in the Member State to which the posting takes place in order to determine whether it genuinely performs substantial activities, other than purely internal management and/or administrative activities. Such elements may include in the Member State of establishment or the employment of staff only in the Member State to which the posting takes place. In particular, the following elements shall be taken into consideration:
Amendment 268 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point a
Article 3 – paragraph 1 – subparagraph 1 – point a
(a) the place where the undertaking has its registered office and administration, uses office space, pays taxes, has a professional licence or is registered with the chambers of commerce or professional bodiesperforms its substantial business activity in the sector where the posted worker is employed,
Amendment 275 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point a a (new)
Article 3 – paragraph 1 – subparagraph 1 – point a a (new)
(a a) the place where the undertaking pays taxes and social security contributions,
Amendment 276 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point a b (new)
Article 3 – paragraph 1 – subparagraph 1 – point a b (new)
(a b) the generation of more than 25% turnover in the Member State of establishment,
Amendment 279 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point b
Article 3 – paragraph 1 – subparagraph 1 – point b
(b) the place where posted workers are recruited and usually employed,
Amendment 283 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point c
Article 3 – paragraph 1 – subparagraph 1 – point c
(c) the law applicable to the contracts concluded by the undertaking with its workers, on the one hand, and with its clientsproportion of staff working in the Member State of establishment, on the one hand, and the place where the majority of contracts with clients are carried out, on the other hand,
Amendment 312 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 2 a (new)
Article 3 – paragraph 1 – subparagraph 2 a (new)
If a subcontractor fails to prove that it performs genuine substantial activities within the meaning of this article in its Member State of establishment, its posted workers shall be presumed to be employed by the contracting undertaking with application of all statutory and collectively agreed rights and obligations in the host Member State.
Amendment 318 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 2 – introductory part
Article 3 – paragraph 2 – subparagraph 2 – introductory part
Amendment 333 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 2 – point a
Article 3 – paragraph 2 – subparagraph 2 – point a
(a) the work is carried out for a limited period of time in another Member State; of a maximum of six months in another Member State; with the agreement of the social partners of the Member States to which the posting takes place, the posting period can be longer, but cannot in any case exceed one year; particular attention shall be paid to the time spent by the worker on posting compared to the length of employment in the habitual place of work;
Amendment 338 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 2 – point b
Article 3 – paragraph 2 – subparagraph 2 – point b
(b) the posting takes place to a Member State other than the one in or from which the posted worker habitually carries out his or her work according to Regulation (EC) No 593/2008 and/or the Rome Convention;
Amendment 341 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 2 – point b a (new)
Article 3 – paragraph 2 – subparagraph 2 – point b a (new)
(b a) an employment relationship exists with the worker in accordance with the legislation of the Member State of establishment for at least three months prior to the posting;
Amendment 342 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 2 – point b b (new)
Article 3 – paragraph 2 – subparagraph 2 – point b b (new)
(b b) the posting takes place from the Member State in which the worker habitually carries out his or her work and the employment relationship has not just been entered into for the posting;
Amendment 346 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 2 – point c
Article 3 – paragraph 2 – subparagraph 2 – point c
(c) the posted worker returns or is expected to resume working tofor the Member State from which he/she issame employer in his habitual place of employment outside the Member State of posteding after completion of the work or the provision of services for which he or she was posted;
Amendment 358 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 2 – point d
Article 3 – paragraph 2 – subparagraph 2 – point d
(d) travel, board and lodging/accommodation is provided or reimbursed by the employer who posts the worker, and if so, how this is done, as well as;
Amendment 361 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 2 – point e
Article 3 – paragraph 2 – subparagraph 2 – point e
Amendment 379 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 3
Article 3 – paragraph 2 – subparagraph 3
All the factual elements enumerated above are indicative factorsshall be included in the overall assessment to be made and mayshall not therefore be considered in isolation. The criteria shall be adapted to each specific case and take account of the specificities of the situation.
Amendment 392 #
Proposal for a directive
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
2a. When verifying a self-employment status in the host Member State the following criteria shall be taken into consideration in particular: (a) Remuneration and the existence of a link of subordination between a worker and an undertaking; (b) Employment activities before moving to the host Member State; (c) Fulfilment of business requirements in the Member State of establishment and means to continue the business after the return to the Member State of establishment. (d) Maintenance of an office in the Member State of establishment; (e) Payment of taxes in the Member State of establishment; (f) Possession of a VAT number in the Member State of establishment; (g) Registration with chambers of commerce or professional bodies in the Member State of establishment; (h) Entrepreneurial skills.
Amendment 397 #
Proposal for a directive
Article 3 – paragraph 2 b (new)
Article 3 – paragraph 2 b (new)
2b. Member States shall ensure that travel, board and lodging/accommodation are organized and paid for by the employer or that the reimbursement of these costs is guaranteed. In the latter case the employer shall clearly state in the contract with the posted worker how this will take place. Wages shall be paid by the employer via bank transfer to an account in the name of the posted worker. The posted worker shall benefit from adequate accommodation, pursuant to national legislation and practice that ensures a decent standard of living for the duration of posting. These provisions shall be without prejudice to the possibility for posted workers to freely choose their own accommodation. The posted worker shall be given a rental contract or equivalent document in which the conditions and cost of the accommodation are clearly stated for the duration of posting. If the posted worker is required to pay rent for such accommodation, its cost shall not be excessive in relation to their net remuneration nor to the quality of the accommodation and it shall not be automatically deducted from their wage.
Amendment 403 #
Proposal for a directive
Article 3 a (new)
Article 3 a (new)
Amendment 406 #
Proposal for a directive
Article 3 b (new)
Article 3 b (new)
Article 3b Applicable law 1. Where it is not established that an undertaking performs genuine substantial activity in the Member State of establishment in accordance with Article 3.1, the undertaking shall be considered to be established in the Member State where it provides the service. 2. Where it is not established that a posted worker is temporarily carrying out work in a Member State other than the one in which he normally works in accordance with Article 3.2, the habitual place of employment, and thus the applicable terms and conditions of employment, shall be those of the Member State where the service is provided. 3. Terms and conditions of employment, as provided for in the national laws and collective agreements of the Member State of establishment and/or the Member State where the service is provided, which are more favourable to workers shall apply. 4. In the event of absence, lack or incompletion of documents such as the ones referred to in Article 3 of Directive 91/533 or the A1 certificate concerning the social security legislation, as stipulated for posted workers by Regulation 883/2004 and implementing Regulation 987/2009, the situation should not be characterised as one of 'temporarily posting' to another Member State, and thus the applicable terms and conditions of employment, shall be those of the Member State where the service is provided.
Amendment 413 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Member States shall take the appropriate measures to ensure that the information on the terms and conditions of employment referred to in Article 3 of Directive 96/71/EC which are to be applied and complied with by service providers are made generally available in a clearfree of charge in a clear, transparent, comprehensive and easily accessible way at a distance and by electronic means, in formats and by web standards that ensure access to persons with disabilities and to ensure that the liaison offices or the other competent national bodies referred to in Article 4 of Directive 96/71/EC are in a position to carry out their tasks effectively.
Amendment 421 #
Proposal for a directive
Article 5 – paragraph 2 – point a
Article 5 – paragraph 2 – point a
(a) indicate clearly, in a detailed and user friendly manner and accessible format on national websites and other means which terms and conditions of employment and/or which parts of their (national and/or regional) legislation have to be applied to workers posted to their territory;
Amendment 424 #
Proposal for a directive
Article 5 – paragraph 2 – point b
Article 5 – paragraph 2 – point b
(b) take the necessary measures to make generally available on internet sitewebsites and by other means information on which collective agreements are applicable (and to whom), and which terms and conditions of employment have to be applied by service providers from other Member States in accordance with Directive 96/71/EC, whereby, where possible, links to existing internet sites and other contact points, in particular the relevant social partners, shall be provided;
Amendment 429 #
Proposal for a directive
Article 5 – paragraph 2 – point c
Article 5 – paragraph 2 – point c
(c) make the information available to workers and service providers in languages other than the national language(s) of the country in which the services are providedthe requested official EU language, if possible in summarised leaflet form indicating the main labour conditions applicable and upon requests in formats accessible to persons with disabilities; further detailed information on labour and social conditions including occupational health and safety shall be easily made available by different means of communication including contact points;
Amendment 443 #
Proposal for a directive
Article 5 – paragraph 2 – point e
Article 5 – paragraph 2 – point e
(e) indicate, if possible, a contact person at the liaison office in charge of dealing with requests for information;
Amendment 448 #
Proposal for a directive
Article 5 – paragraph 4
Article 5 – paragraph 4
4. Where, in accordance with national law, traditions and practices and with full respect for the autonomy of the social partners, the terms and conditions of employment referred to in Article 3 of Directive 96/71/EC are laid down in collective agreements in accordance with aArticle 3 paragraph 1 and 8 of that Directive, Member States should ensure that the social partners shall identify these and make available the relevant information, in particular concerning the different minimum rates of pay and their constituent elements, the method used to calculate the remuneration due and the qualifying criteria for classification in the different wage categories, , available in an accessible and transparent way for service providers from other Member States and posted workers. Terms and conditions of employment should be available in an accessible and transparent way.
Amendment 454 #
Proposal for a directive
Article 5 – paragraph 4 a (new)
Article 5 – paragraph 4 a (new)
4a. Commission and Member States shall ensure adequate support for joint initiatives of the relevant social partners at the European and national level aimed to inform undertakings and workers on the applicable terms and conditions laid down in this Directive and Directive 96/71/EC.
Amendment 458 #
Proposal for a directive
Article 5 a (new)
Article 5 a (new)
Article 5a Workers' access to information and advice 1. Posted workers shall have an independent right to information and advice on the applicable terms and conditions of work and employment provided by the receiving Member State in the desired official EU language. 2. Member States shall ensure that suitable contact points and bodies are available to which workers can turn for information, advice and support concerning their rights. This applies both to the receiving Member States and the sending Member States. 3. In case a Member State gives this task to a third party adequate funding must be ensured.
Amendment 461 #
Proposal for a directive
Article 5 b (new)
Article 5 b (new)
Amendment 465 #
Proposal for a directive
Article 6 – paragraph 2
Article 6 – paragraph 2
2. The cooperation of the Member States shall in particular consist in replying to reasoned requests for information without delay and to carry out checks, inspections and investigations from competent authorities with respect to the situations of posting referred to in Article 1 (3) of Directive 96/71/EC and relevant articles in this Directive, including investigation of any abuses of applicable rules on the posting of workers or possible cases of unlawful transnational activities.
Amendment 474 #
Proposal for a directive
Article 6 – paragraph 4
Article 6 – paragraph 4
4. In the event of difficulty in meeting a request for information or in carrying out checks, inspections or investigations, the Member State in question shall rapidly inform the requesting Member State with a view to finding a solution as quickly as possible. Any permanent refusal to provide the requested data shall be considered an infringement to the EU law, as defined in TFEU Articles 258 and following.
Amendment 480 #
Proposal for a directive
Article 6 – paragraph 5 – subparagraph 1 a (new)
Article 6 – paragraph 5 – subparagraph 1 a (new)
Cases in which Member States refuse to provide requested information shall be recorded by the Commission, including the responsible authorities involved.
Amendment 482 #
Proposal for a directive
Article 6 – paragraph 5 – subparagraph 2
Article 6 – paragraph 5 – subparagraph 2
A specific urgency mechanism shall be used for special situations where a Member State becomes aware of particular circumstances requiring urgent action. In such circumstances, the information shall be submitted within 24 hours. This urgency mechanism shall be used where it is suspected that an undertaking does not genuinely perform substantial activities in the Member State of establishment in accordance with Article 3 of this Directive.
Amendment 485 #
Proposal for a directive
Article 6 – paragraph 5 – subparagraph 2 a (new)
Article 6 – paragraph 5 – subparagraph 2 a (new)
This Article shall not preclude competent authorities in the host Member State from taking immediate measures to investigate, prevent and sanction social fraud.
Amendment 488 #
Proposal for a directive
Article 6 – paragraph 7
Article 6 – paragraph 7
7. Member States shall ensure the confidentiality of the information which they exchange. Information exchanged shall be used only in respect of the matter(s) for which it was requested in accordance with national law and practice.
Amendment 491 #
Proposal for a directive
Article 6 – paragraph 9
Article 6 – paragraph 9
Amendment 496 #
Proposal for a directive
Article 7 – title
Article 7 – title
Role of the Member State of establishments
Amendment 499 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
Amendment 502 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
Amendment 504 #
Proposal for a directive
Article 7 – paragraph 3
Article 7 – paragraph 3
Amendment 507 #
Proposal for a directive
Article 7 – paragraph 4
Article 7 – paragraph 4
Amendment 513 #
Proposal for a directive
Article 7 a (new)
Article 7 a (new)
Amendment 518 #
Proposal for a directive
Article 8 – paragraph 1 a (new)
Article 8 – paragraph 1 a (new)
1a. The competent authorities in the host Member State shall record the relevant data with regard to Article 9, paragraph 1 (a). The competent authorities in the Member State of establishment shall record the relevant data with regard to Article 3, paragraph 1 and with regard to the payment of social security contributions and taxes by the service provider. The competent authorities in the host Member State and in the Member State of establishment shall both forward their data to the European Commission (Eurostat) for summaries and regular public reporting.
Amendment 520 #
Proposal for a directive
Article 8 – paragraph 2
Article 8 – paragraph 2
2. The Commission shall assess the necessity forensure adequate financial support in order to further improve administrative cooperation and increase mutual trust through projects, including promoting exchanges of relevant officials and training, as well as developing, facilitating and promoting best practice initiatives, including those of social partners at Union level, such as the development and updating of databases or joint websites containing general or sector- specific information concerning terms and conditions of employment to be respected.
Amendment 533 #
Proposal for a directive
Article 9 – paragraph 1 – introductory part
Article 9 – paragraph 1 – introductory part
1. Member States may only impose the followingshall impose administrative requirements and effective control measures. These measures shall include in particular:
Amendment 542 #
Proposal for a directive
Article 9 – paragraph 1 – point a
Article 9 – paragraph 1 – point a
(a) an obligation for a service provider established in another Member State to make a simple declaration to the responsible national competent authorities at the latest at the commencementone month in advance of the service provision, whereby the declaration may only covershall cover in particular: - the identity of the service provider,; - the presence of one or more clearly identifiable posted workers, their anticipated number, the anticipated duration and location of their presence, andanticipated number and the individual identification data of the posted workers; - the anticipated duration of posting; - the place where the service is to be provided; - the services justifying the posting;
Amendment 553 #
Proposal for a directive
Article 9 – paragraph 1 – point a a (new)
Article 9 – paragraph 1 – point a a (new)
(aa) an obligation for the service provider to inform the responsible national competent authorities without delay: - in case the posting does not or has not taken place or was terminated ahead of schedule; - in case the service justifying the posting is interrupted; - in case the posted worker has been assigned by his employer to another undertaking, in particular in the event of a merger or a transfer of undertaking; - in case of any other changes related to the information provided according to Article 9.1 (a);
Amendment 555 #
Proposal for a directive
Article 9 – paragraph 1 – point b
Article 9 – paragraph 1 – point b
(b) an obligation to keep or make available documents and/or retain copies in paper or electronic form for the competent authorities and the trade unions, at the place where the service is provided, during the period of service provision and up to two years after the period of service provision. This obligation concerns the following documents in particular: - a copy of the A1 form as proof of social security coverage in the home member state, - of the employment contract (or an equivalent document within the meaning of Directive 91/533, including, where appropriate or relevant, the additional information referred to in Article 4 of that Directive), - payslips, - time-sheets and, - proof of payment of wages or copies of equivalent documents during the period of posting, - an assessment of the risks to safety and health at work, including protective measures to be taken, in accordance with Directive 89/391/EC, - where the posted worker is a third country national, copies of the work permit and of the residence permit. The documents shall be kept in an accessible and clearly identified place in itsthe territory of the host Member State, such as the workplace or the building site, or for mobile workers in the transport sector the operations base or the vehicle with which the service is provided;
Amendment 568 #
Proposal for a directive
Article 9 – paragraph 1 – point c
Article 9 – paragraph 1 – point c
(c) a translation ofin the documents referred to under (b), may be justified providedrequested official EU languages of these documents are not excessively long and standardised forms are generally used for such documentsferred to under (b);
Amendment 578 #
Proposal for a directive
Article 9 – paragraph 1 – point c a (new)
Article 9 – paragraph 1 – point c a (new)
(ca) The Member State to which the posting takes place may require that the documents referred to under (b) and any additional mandatory documents are made available without delay to the competent national authorities.
Amendment 587 #
Proposal for a directive
Article 9 – paragraph 1 – point d
Article 9 – paragraph 1 – point d
(d) an obligation to designate a contact personlegal representative with a residence in the Member State to which the posting takes place, during the period of posting and up to one year after the service provision to deal with administrative and judicial proceedings and to negotiate, if necessary, on behalf of the employer with the relevant social partners in the Member State to which the posting takes place, in accordance with national legislation and practice, during the period in which the services are provided.
Amendment 597 #
Proposal for a directive
Article 9 – paragraph 1 – point d a (new)
Article 9 – paragraph 1 – point d a (new)
(da) other administrative requirements and control measures without which competent authorities cannot carry out their supervisory tasks effectively. These requirements shall be made publicly available.
Amendment 604 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
2. Member States shall ensure that the procedures and formalities relating to the posting of workers can be completed easily by undertakings, at a distance and by electronic means as far as possible.
Amendment 612 #
Proposal for a directive
Article 9 – paragraph 3
Article 9 – paragraph 3
3. Within three years after the date referred to in Article 20, the necessityeffectiveness and appropriateness of the application of national control measures shall be reviewed in the light of the experiences with and effectiveness of the system for cooperation and exchange of information, the development of more uniform, standardised documents, the establishment of common principles or standards for inspections in the field of the posting of workers as well as technological developments, with a view to proposing, where appropriate, any necessary amendments or modifications.
Amendment 615 #
Proposal for a directive
Article 9 – paragraph 3 a (new)
Article 9 – paragraph 3 a (new)
3a. The Member State of establishment and the Member State to which the posting takes place have both the competence to check the regularity of labour relations and working conditions. In cases of conflicting interpretations the law of the Member State to which the posting takes place prevails.
Amendment 616 #
Proposal for a directive
Article 9 – paragraph 3 b (new)
Article 9 – paragraph 3 b (new)
3b. During the period of posting of a worker, inspection of the working conditions shall lie within the responsibility of the authorities or competent body of the Member State to which the posting takes place. They can carry out factual checks and controls on their own initiative and are not bound to any results of checks or controls carried out by the Member State of establishment.
Amendment 619 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
1. Member States shall ensure that appropriateffective checks and monitoring mechanisms are put in place and that effective and adequate inspections are carried out on their territory in order to control and monitor compliance with the provisions and rules laid down in this Directive and Directive 96/71/EC and to guarantee its proper application and enforcement. Such inspections shall be based primarily on a risk assessment to be drawn up regularly by the competent authorities. The risk assessment shall identify the sectors of activity in which the employment of workers posted for the provision of services is concentrated on their territory. When making such risk assessment the realisation of big infrastructural projects, the special problems and needs of specific sectors, the past record of infringement, as well as the vulnerability of certain groups of workers shall be taken into account.
Amendment 637 #
Proposal for a directive
Article 10 – paragraph 2
Article 10 – paragraph 2
2. Member States shall ensure that inspections and controls of compliance with this Directive and Directive 96/71/EC are not discriminatory and/or disproportionate shall allocate the necessary resources for such inspections and controls.
Amendment 644 #
Proposal for a directive
Article 10 – paragraph 2 a (new)
Article 10 – paragraph 2 a (new)
2a. Measures to control the application of Directive 96/71 and to detect abuses in relation to the posting of workers are to be considered public policy provisions in the meaning of Declaration No 10 on Article 3 (10) of Directive 96/71, recorded in the minutes of the Council of the European Union when Directive 96/71 was adopted. Provisions of Member States to fight undeclared labour and to prevent social dumping cannot be restricted on grounds of potentially hampering the freedom to provide services as long as they are not protectionist or discriminatory.
Amendment 652 #
Proposal for a directive
Article 10 – paragraph 4
Article 10 – paragraph 4
4. In Member States where, in accordance with national law and practice, the setting of the terms and conditions of employment of posted workers referred to in Article 3 of Directive 96/71/EC, and in particular the minimum rates of pay, including working time, is left to management and labour they may, at the appropriate level and subject to the conditions laid down by the Member States, also the monitor the application of the relevant terms and conditions of employment of posted workers, provided that an adequate level of protection equivalent to that resulting from Directive 96/71/EC and this Directive is guaranteed.
Amendment 662 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
1. For the enforcement of the obligations under Article 6 of Directive 96/71/EC and this Directivethis Directive and Directive 96/71/EC, Member States shall ensure that there are effective mechanisms for posted workers to lodge complaints against their employers directly, as well as the right to institute judicial or administrative proceedings, also in the Member State in whose territory the workers are or were posted, where such workers consider they have sustained loss or damage as a result of a failure to apply the applicable rules, even after the relationship in which the failure is alleged to have occurred has ended.
Amendment 664 #
Proposal for a directive
Article 11 – paragraph 3
Article 11 – paragraph 3
3. Member States shall ensure that trade unions and other third parties, such as associations, organisations and other legal entities which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive and Directive 96/71/EC are complied with, may engage, on behalf or in support of the posted workers or their employer, with their approval in any judicial or administrative proceedings provided for with the objective of implementing this Directive and Directive 96/71/EC and/or enforcing the obligations under this Directive and Directive 96/71/EC. Trade unions shall have the right of collective action in order to ensure compliance with the requirements of this Directive and Directive 96/71/EC and the possibility of taking representative action on behalf of posted workers.
Amendment 675 #
Proposal for a directive
Article 11 – paragraph 4
Article 11 – paragraph 4
4. Paragraphs 1 and 3 shall apply without prejudice to national rules on prescription deadlines or time limits for bringing similar actions and to national rules of procedure concerning representation and defence before the courts. However, a minimum period of at least six months for filing a claim shall be provided for under national rules of procedure.
Amendment 677 #
Proposal for a directive
Article 11 – paragraph 5 – subparagraph 1 – introductory part
Article 11 – paragraph 5 – subparagraph 1 – introductory part
Member States shall ensure that the necessary mechanisms are in place to ensure that posted workers are able to receiveor bodies acting on their behalf are able to claim and receive any due entitlements.
Amendment 680 #
Proposal for a directive
Article 11 – paragraph 5 – subparagraph 1 – point a
Article 11 – paragraph 5 – subparagraph 1 – point a
Amendment 686 #
Proposal for a directive
Article 11 – paragraph 5 – subparagraph 1 – point b
Article 11 – paragraph 5 – subparagraph 1 – point b
Amendment 692 #
Proposal for a directive
Article 11 – paragraph 5 – subparagraph 2
Article 11 – paragraph 5 – subparagraph 2
This paragraph shall also apply in cases where the posted workers have returned from the Member State to which the posting took place and also in the case of bogus self-employment.
Amendment 697 #
Proposal for a directive
Article 12
Article 12
Amendment 700 #
Proposal for a directive
Article 12 – paragraph 1
Article 12 – paragraph 1
Amendment 701 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 1
Article 12 – paragraph 1 – subparagraph 1
Amendment 718 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 1 – point a
Article 12 – paragraph 1 – subparagraph 1 – point a
Amendment 736 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 2
Article 12 – paragraph 1 – subparagraph 2
Amendment 744 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
Amendment 755 #
Proposal for a directive
Article 12 – paragraph 3
Article 12 – paragraph 3
Amendment 764 #
Proposal for a directive
Article 12 – paragraph 4
Article 12 – paragraph 4
Amendment 770 #
Proposal for a directive
Article 12 a (new)
Article 12 a (new)
Article 12a Subcontracting and liability 1. Each Member State shall take the necessary measures to ensure that an undertaking which appoints a subcontractor to provide services is liable, in addition to and/or in place of that subcontractor, for obligations of that subcontractor and any other intermediate. 2. This shall not in any way preclude the application of already existing more stringent rules at national level nor the introduction of those. 3. Member States may limit vertical subcontracting to three levels provided that the limitation is not discriminatory.
Amendment 774 #
Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1
Article 13 – paragraph 2 – subparagraph 1
2. The requesting authority may, in accordance with the laws, regulations and administrative practices in force in its own Member State, request the competent authority in another Member State to recover a penalty or fine, fine or retroactive social security contributions or notify a decision imposing a penalty or, a fine, in so far as the relevant laws, regulations and administrative practices in force in the requested authority's Member State allow such action for similar claims or decis or retroactive social security contributions.
Amendment 781 #
Proposal for a directive
Article 13 – paragraph 2 – subparagraph 2
Article 13 – paragraph 2 – subparagraph 2
Amendment 783 #
Proposal for a directive
Article 13 – paragraph 2 – subparagraph 3
Article 13 – paragraph 2 – subparagraph 3
Amendment 788 #
Proposal for a directive
Article 13 – paragraph 2 a (new)
Article 13 – paragraph 2 a (new)
2a. If it emerges that the service provider is indeed not established in the Member State of alleged establishment or the address or company data are false, the competent authorities shall not terminate the process on formal grounds but further investigate the matter in order to establish the identity of the natural or legal person responsible for the posting.
Amendment 791 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
2. For the purpose of recovery of a penalty or fine or notification of a decision imposing a penalty or fine in the requested Member State, any fine or penalty, fine or retroactive payment of social security contributions or notification of a decision imposing a penalty, fine or retroactive payment of social security contributions in the requested Member State, any fine, penalty or retroactive payment of social security contributions in respect of which a request for recovery or notification has been made shall be treated as if it were a fine or penalty of the requested Member State.
Amendment 794 #
Proposal for a directive
Article 14 – paragraph 3 – subparagraph 1
Article 14 – paragraph 3 – subparagraph 1
3. The requested authority shall promptly inform the requesting authority of the action taken on its request for information, notification or recovery and, more specifically, of the date on which the instrument or decision was forwarded or notified to the addressee. The same shall apply if there are substantial obstacles to the request being successfully processed.
Amendment 802 #
Proposal for a directive
Article 15 – paragraph 1 – subparagraph 1
Article 15 – paragraph 1 – subparagraph 1
1. If, in the course of the recovery or notification procedure, the fine, penalty and/or underlying claim is contested in the requesting Member State by the service provider concerned or an interested partyin compliance with the regulations applicable for contestation,, the cross-border enforcement procedure of the fine or penalty imposed shall be suspended pending the decision of the appropriate national authority in the matter.
Amendment 812 #
Proposal for a directive
Article 18 – paragraph 1
Article 18 – paragraph 1
1. The administrative cooperation and mutual assistance between the competent authorities of the Member States provided for in Articles 6, 7, 10(3), 13, 14 and 15 shall be implemented through the Internal Market Information System (IMI), established by [reference to IMI Regulation]89 or by other established methods of cooperation on which the Member States agree on a case-by-case basis or by means of bilateral agreements.
Amendment 819 #
Proposal for a directive
Article 18 – paragraph 2
Article 18 – paragraph 2
2. Member States may continue to apply bilateral arrangements or conclude new bilateral agreements concerning administrative cooperation between their competent authorities as regards the application and monitoring of the terms and conditions of employment applicable to posted workers referred to in Article 3 of Directive 96/71/EC, in so far as these arrangements do not adversely affect the rights and obligations of the workers and companies concerned.
Amendment 821 #
Proposal for a directive
Article 18 – paragraph 3
Article 18 – paragraph 3
Amendment 825 #
Proposal for a directive
Article 19 a (new)
Article 19 a (new)
Article 19a Clause of non-regression - More favourable provisions 1. This Directive and Directive 96/71/EC are without prejudice to the Member States' right to apply or introduce legislative, regulatory or administrative provisions which are more favourable to workers or to promote or permit collective agreements concluded between the social partners which are more favourable to workers. 2. The implementation of this Directive shall under no circumstances constitute sufficient grounds for justifying a reduction in the general level of protection of workers in the fields covered by this Directive and Directive 96/71/EC. This is without prejudice to the rights of Member States and/or management and labour to lay down, in the light of changing circumstances, different legislative, regulatory or contractual arrangements to those prevailing at the time of the adoption of this Directive, provided that the minimum requirements laid down in this Directive are respected.
Amendment 833 #
Proposal for a directive
Article 21 – paragraph 1
Article 21 – paragraph 1
No later than 5 years after the expiry of the deadline for transposition, the Commission shall report to the European Parliament, the Council and, the European Economic and Social Committee and the Committee of the Regions on the implementation of this Directive, making appropriate proposals where necessary.