Activities of Thomas HÄNDEL related to 2012/0061(COD)
Plenary speeches (1)
Posting of workers in the framework of the provision of services (debate)
Shadow reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council on the enforcement of directive 96/71/EC concerning the posting of workers in the framework of the provision of services PDF (697 KB) DOC (1 MB)
Amendments (83)
Amendment 61 #
Proposal for a directive
Recital 1
Recital 1
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 53(1) and 62Articles 62, 151 and 153 thereof,
Amendment 68 #
Proposal for a directive
Recital 2 a (new)
Recital 2 a (new)
(2a) No discrimination against workers must occur regarding their freedom of movement. Freedom to provide services entitles undertakings to provide services in other Member States without suffering discrimination. The rights of workers are subordinate to freedom to provide services. Instead of equal treatment, only minimum conditions apply.
Amendment 69 #
Proposal for a directive
Recital 2 b (new)
Recital 2 b (new)
(2b) In practice, the posting of workers with the aim of protecting their rights frequently produces the opposite result. Posted workers are no longer protected from exploitation. Workers are posted because they receive only minimum rewards instead of equal pay and working conditions. A multitude of strategies make this possible: Genuine postings are circumvented by means of bogus self- employment; The free movement of workers may be fraudulently undermined by means of spurious postings, frequently involving temporary employment, three- country transfer arrangements and shell companies. At the same time the fundamental trade union principle of ‘equal pay for equal work’ at the same place is eroded by posted workers being paid less for the same work, thereby detracting from Europe’s prosperity, social harmony, democratic values and credibility.
Amendment 72 #
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 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. Since the objective of protecting workers’ rights under the directive has not been achieved by its implementation to date and matters can only be can only be made better through the non-discriminatory treatment of workers employed in the same Member States, this directive, which is intended enforce Directive 96/71/EC can achieve only a temporary improvement.
Amendment 91 #
Proposal for a directive
Recital 7
Recital 7
(7) Respect for the diversity of national industrial relations systems as well as the autonomy of social partners is explicitly recognised by the Treaty. However, these systems are being undermined by misuse of the provisions of Directive 96/71/EC. This can only be remedied through enforcement of the principle of ‘equal pay for equal work’ in an equivalent post, unless pay levels in the country of origin are lower, in which case they must be applied, given that fair conditions and non-discrimination apply to not only to undertakings but also to workers.
Amendment 128 #
Proposal for a directive
Recital 14
Recital 14
(14) Member States obligations to make information on terms and conditions of employment generally available free of charge and to provide effective access to it, not only to service providers from other Member States, but also to the posted workers concerned, should be further concretised. Posted workers are in their own right entitled to information and advice on the applicable terms and conditions of employment. It is the responsibility of the Member States to create the necessary bodies which may be consulted by posted workers.
Amendment 140 #
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 certain control measures or 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 all control measures or administrative formalities judged to be effective and necessary for this purpose.
Amendment 171 #
Proposal for a directive
Recital 24
Recital 24
(24) In view of the prevalence of subcontracting in the construction sector and elsewhere, 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 authoritieevery contractor involved can be held liable for payment of all amounts owing to posted workers.
Amendment 187 #
Proposal for a directive
Recital 25
Recital 25
(25) In specific cases, other contractors may, in accordance with national law and practice, be also held liable for failure to comply with the obligations under this Directive, or their liability may be limited, after consultation of the social partners at national or sectoral level.
Amendment 188 #
Proposal for a directive
Recital 25 a (new)
Recital 25 a (new)
(25a) Member States are free to introduce or continue to apply more rigorous provisions regarding general contractor liability.
Amendment 221 #
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 provisensure that Member States can enforce successfully Directive 96/71EC. This directive sets out implementation instruments needed for the equal treatment of posted workers as regards all terms and conditions of services, while facilitatemployment applicable ing the exercise of the freedom to provide services for service providers and promoting fair competition between service providerplace where the service is to be performed, in accordance with the national law or practice of the Member States.
Amendment 253 #
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 take into account factual elements characterising the activities carried out by an undertaking in the State in which it is established and in the host Member State in order to determine whether it genuinely performs substantial activities, other than p. Purely internal management and/or administrative activities in the Member State of establishment or purely staffing activities in the host Member State preclude posting. Such elements mayshall include: at least:
Amendment 270 #
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 undertakingMember State of establishment is the place where the undertaking performs the bulk of its business activity, where most of its customer contracts are carried out and where it has its registered office and administration, uses office space, pays taxes and social security contributions, has a professional licence or is registered with the chambers of commerce or professional bodies,
Amendment 278 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point b
Article 3 – paragraph 1 – subparagraph 1 – point b
(b) the placeMember State of establishment where posted workers are recruited and habitually employed,
Amendment 285 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point c a (new)
Article 3 – paragraph 1 – subparagraph 1 – point c a (new)
(ca) the ratio between the number of workers in the Member State of establishment and the host Member State respectively,
Amendment 287 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point d
Article 3 – paragraph 1 – subparagraph 1 – point d
(d) the placeMember State of establishment, where the undertaking performs its substantial business activity and where it employs administrative staff,in the sector where the posted worker is employed. Over 50% of the turnover is realised in the Member State of establishment.
Amendment 297 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point e
Article 3 – paragraph 1 – subparagraph 1 – point e
(e) the abnormally limited number ofplace where most customer contracts are performed and/or size of turnover realised in the Member State of establishment.
Amendment 300 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point e a (new)
Article 3 – paragraph 1 – subparagraph 1 – point e a (new)
(ea) the undertaking has been present for at least two years in the Member State of establishment.
Amendment 309 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 2
Article 3 – paragraph 1 – subparagraph 2
The assessment of these elements shall be adapted to each specific case and take account of the nature of the activities carried out by the undertaking in the Member State in which it is established. If the undertaking is unable to prove that it performs the bulk of its business activity in the Member State of establishment, it shall be treated as if it had from the start been established in the host Member State.
Amendment 320 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 2 – introductory part
Article 3 – paragraph 2 – subparagraph 2 – introductory part
Such elements mayshall include at least the following criteria:
Amendment 330 #
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; The duration of the posting shall be established in accordance with Article 3(6) of Directive 96/71 EC; if similar service contracts with the same service provider and the same contractor are performed in rapid or immediate succession at the same place, the duration thereof shall be calculated as a single total;
Amendment 337 #
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 344 #
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 toworker is posted from the Member State fromin which he/she is posted after completion of the work or the provision of services for which he or she wasnormally employed and the employment contract does not apply solely to the posteding;
Amendment 352 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 2 – point c a (new)
Article 3 – paragraph 2 – subparagraph 2 – point c a (new)
(ca) the worker is habitually employed in a Member State other than the posting state and the employment contract remains valid after the posting;
Amendment 353 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 2 – point c b (new)
Article 3 – paragraph 2 – subparagraph 2 – point c b (new)
(cb) the employment contract was concluded at least three months prior to the posting;
Amendment 364 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 2 – point e
Article 3 – paragraph 2 – subparagraph 2 – point e
(e) any repeated previous periods during which the post was filled by the same or another (posted) worker. The replacement of a posted worker with another worker or the repeated employment of the same worker in a given post over a limited period gives rise to the legal presumption that the activity is not temporary in nature. An activity is presumed not to be temporary if the cumulative duration of the individual postings exceeds 12 months in accordance with Article 6 of Directive 96/71/EC
Amendment 366 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 2 – point e a (new)
Article 3 – paragraph 2 – subparagraph 2 – point e a (new)
(ea) Recruitment of a worker in the host Member State and/or already employed there shall not constitute a posting.
Amendment 367 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 2 – point e b (new)
Article 3 – paragraph 2 – subparagraph 2 – point e b (new)
(eb) If a worker is deployed for the direct or indirect purpose of strike breaking, or intent to do so can be believably established, this shall not constitute a posting.
Amendment 378 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 3
Article 3 – paragraph 2 – subparagraph 3
All the factual elements enumerated above are indicative factors in the overall assessment to be made and may not therefore be considered in isolation. The criteria shall be adapted to each specific case and take account of the specificities of the situation. If the undertaking cannot prove that a worker is being employed temporarily in another Member State the worker shall be treated as if he were, from the commencement of his activity, a worker of the host Member State. The terms and conditions of employment the Member State of establishment shall apply if they are more favourable.
Amendment 383 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 3 a (new)
Article 3 – paragraph 2 – subparagraph 3 a (new)
Amendment 384 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 3 b (new)
Article 3 – paragraph 2 – subparagraph 3 b (new)
If the terms and conditions of employment under Directive 96/71/EC concerning the posting of workers and/or Directive 2008/14/EC on temporary agency work may be applicable to a worker, the provisions of the directive most favourable to the worker shall, in case of doubt, apply. If an employer is unable to prove convincingly what terms and conditions of employment apply to the posted worker because of the arrangements in place involving one or more postings (end-on- end postings, several undertakings and/or several Member States) and one or more temporary employment agencies, the law applicable shall be that which is doubly favourable to the worker. The individual terms and conditions of employment in the Member State of establishment shall be compared to those in the host Member State and those which are most favourable applied to the worker. In addition, the terms and conditions of employment for casual and posted workers shall be compared and those most favourable to the worker selected This dual comparison to establish the most favourable terms and conditions shall apply from commencement of the activity.
Amendment 422 #
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 by 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 425 #
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 sites 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 427 #
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 nationthe desired official language(s) of the country in which the services are provided, if possibleEU, in summarised leaflet form indicating the main labour conditions applicable and upon requests in formats accessible to persons with disabilities; detailed information on labour and social conditions, including health and safety at the workplace, shall be made readily available to employees by various means of communication and contact points.
Amendment 442 #
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 450 #
Proposal for a directive
Article 5 – paragraph 4
Article 5 – paragraph 4
4. Where, in accordance with national law, traditions and practices, and without prejudice to 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 article 3 paragraph 1 and 8 of that Directive, Member States should ensure that the social partners shall identify these and make 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.
Amendment 453 #
Proposal for a directive
Article 5 – paragraph 4 a (new)
Article 5 – paragraph 4 a (new)
4a. Access to information and advice for employees (a) Posted workers shall have an independent right to receive from the host Member State information and advice about the working conditions and terms of employment applicable, which must be provided in the EU official language of the worker’s choice. (b) Member States shall make bodies and agencies available to which workers can apply for information and advice and for support in securing respect for their rights. This shall apply both to host Member States and to Member States of establishment. (c) The provision of advice and information for workers may also be taken over by the appropriate trade unions if the requisite funding is supplied by Member States.
Amendment 464 #
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 reasonedan obligation to reply without delay to requests for information 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 of that Directive, including investigation of any abuses of applicable rules on the posting of workers or possible cases of unlawful transnational activities.
Amendment 475 #
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. Any permanent refusal to provide the requested data constitutes an infringement of EU law as referred to in Articles 258 et seq. TFEU.
Amendment 484 #
Proposal for a directive
Article 6 – paragraph 5 – subparagraph 2 a (new)
Article 6 – paragraph 5 – subparagraph 2 a (new)
This urgency mechanism shall also be used if the criteria in Article 3 lead to the suspicion that the posted worker is employed by a fictitious undertaking or is not a worker or is not genuinely posted. This shall not prevent the national authorities and/or labour inspectorates of the host Member State from taking immediate measures to prevent, investigate and penalise social fraud.
Amendment 500 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. The Member State of establishment of In accordance with Article 5 of Directive 96/71/EC, the host Member State shall control, monitor and take the necessary supervisory and enforcement measures, in accordance with its national law and/or practice and administrative procedures, with respect to workers posted to its territory. In accordance with the principles established in Articles 4 and 5 of Directive 96/71/EC, the Member State of establishment of the service provider shall also continue to control, monitor and take the necessary supervisory or enforcement measures, in accordance with its national law, practice and administrative procedures, with respect to workers posted to another. To improve enforcement it shall support the competent authority of the host Member State by providing without delay information on whether posting undertakings fulfil the minimum criteria outlined in Article 3 of this directive and in Directive 96/71/EC and whether they are entitled to post workers. Member States which learn that employees in their country are being recruited by service-providers solely for the purpose of immediately posting them to a third Member State may not support these activities but must inform the competent authorities in the host Member State.
Amendment 505 #
Proposal for a directive
Article 7 – paragraph 3
Article 7 – paragraph 3
3. Competent authorities of the host Member State may equally ask the competent authorities of the Member State of establishment, for each instance where services are provided or for each service provider, to provide information as to the legality of the service provider’s establishment, the service provider’s good conduct, and the absence of any infringement of the applicable rulesin order to monitor full compliance both with Directive 96/71/EC and with this Directive. The competent authorities of the Member State of establishment shall provide this information in accordance with Article 6.
Amendment 508 #
Proposal for a directive
Article 7 – paragraph 4
Article 7 – paragraph 4
4. The obligation laid down in paragraphs 1 and 2 shall not entail a duty on the part of the Member State of establishment to carry out factual checks and controls in the territory of the host Member State where the service is provided. Such cChecks and controls shall, if need be, be carried out by the authorities of the host Member State at the request of the competent authorities of the Member State of establishment, in accordance with Article 10 and in conformity with the powers of supervision provided for in the host Member State’'s national law, practice and administrative procedures and which respect Union law.
Amendment 512 #
Proposal for a directive
Article 7 – paragraph 4 a (new)
Article 7 – paragraph 4 a (new)
4a. Member States shall provide the requisite resources for efficient checks and controls.
Amendment 516 #
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 gather the data referred to in Article 9(1) and analyse them. The competent authorities of the Member State of establishment shall gather the relevant data with regard to the criteria referred to in Article 3(1) and with regard to the payment of social insurance contributions and taxes by the service- provider. Member States shall be required to report regularly to the Commission. The Commission shall summarise the reports and publish them regularly. Within two years after the entry into force of this Directive, the Commission shall submit to the European Parliament and the Council an impact assessment concerning the feasibility of an EU-wide notification or registration system, which shall be based on the systems which exist in the Member States and shall be compatible with them.
Amendment 528 #
Proposal for a directive
Article 9 – paragraph 1 – introductory part
Article 9 – paragraph 1 – introductory part
1. Member States may onlyshall at the minimum impose the following administrative requirements and control measures:
Amendment 540 #
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 atprior to the commencement of the service provision, whereby the declaration may only cover 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, and the services justifying the posting; . This declaration shall state that the service provider has been informed of the minimum working conditions pursuant to Article 3 of Directive 96/71/EC and has agreed to comply with them. It shall contain at least details of the identity of the service provider, the name and address of the representative and person authorised to accept service appointed by him/her, the duration of the posting, the date on which it commences, the identity and number of the posted workers, the duties they are to perform and their place or work and place of residence in the host Member State; an obligation for the service provider to inform the competent authorities without delay: - if the posting does not or has not taken place or was terminated ahead of schedule, - if the activity is interrupted, - if the posted worker has been assigned by his/her employer to another undertaking in the Member State of establishment, in particular in the event of transfers of undertakings or mergers;
Amendment 557 #
Proposal for a directive
Article 9 – paragraph 1 – point b
Article 9 – paragraph 1 – point b
(b) an obligation to keep or make available and/or retain copies in paper or electronic form of, during the period of posting and up to two years after the provision of the service, in an accessible and clearly identified place in its territory, 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, in particular of the following documents: - a copy of the A1 form by way of evidence of social insurance in the Member State of establishment, - 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), - pay slips, time-sheets and proof of payment of wages or copies of equivalent documents during the period of posting in an accessible and clearly identified place in its territory, such as the workplace or the building site, or for mobile, - time-sheets, - an assessment of the occupational health and safety risks pursuant to Directive 89/71/EC, - if the posted workers in the transport sector the operations base or the vehicle with which the service is provided; s a third-country national, copies of his work permit and residence permit;
Amendment 569 #
Proposal for a directive
Article 9 – paragraph 1 – point c
Article 9 – paragraph 1 – point c
(c) a translation of the documents referred to under (b), may be justified provided these documents are not excessively long and standardised forms are generally used for such documents into the desired official language of the EU;
Amendment 593 #
Proposal for a directive
Article 9 – paragraph 1 – point d
Article 9 – paragraph 1 – point d
(d) an obligation to designate a contact person to negotiate, if necessary,legal or mandated representative to assume the responsibilities of the service provider in the Member State to which the posting takes place and officially authorised to take delivery on behalf of the posting company at his business address in the Member State to which the posting takes place. The responsibilities of the representative shall, if necessary include negotiating 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 603 #
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 607 #
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 necessity and appropriateness of the applicationeffectiveness 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 614 #
Proposal for a directive
Article 9 – paragraph 3 a (new)
Article 9 – paragraph 3 a (new)
3a. For the duration of a worker’s posting, responsibility for the inspection of working conditions shall lie with the authorities or the body in charge in the Member State to which the posting takes place. They may carry out factual checks and controls on their own initiative.
Amendment 623 #
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 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 638 #
Proposal for a directive
Article 10 – paragraph 2
Article 10 – paragraph 2
2. Member States shall ensure that inspections and controls of compliance with Directive 96/71/EC are not discriminatory and/or disproportionate shall allocate the necessary resources to ensure inspections and controls.
Amendment 653 #
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 665 #
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/or enforcing the obligations under this Directive. Trade unions shall have the right to bring class actions to enforce the provisions of this Directive and Directive 96/71/EC. They may also be given the right to bring actions in their own name but on behalf of posted workers.
Amendment 673 #
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, if they are more favourable than the stipulations in paragraph (a), and to national provisions according to which the parties to the collective agreements enforce these agreements.
Amendment 679 #
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 receive at least the following:
Amendment 684 #
Proposal for a directive
Article 11 – paragraph 5 – subparagraph 1 – point a
Article 11 – paragraph 5 – subparagraph 1 – point a
(a) any outstanding remuneration and related elements of pay and social security, including interest, which, under the applicable terms and conditions of employment covered by Article 3 of Directive 96/71/EC, would have been due;
Amendment 691 #
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 in cases where workers are employed as fictitious self- employed workers on a cross-border basis.
Amendment 705 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 1 – introductory part
Article 12 – paragraph 1 – subparagraph 1 – introductory part
1. With respect to the construction activities referred to in the Annex to Directive 96/71/EC, for all posting situations covered by Article 1(3) of Directive 96/71/EC, the Member States shallEach Member State shall take the necessary measures to ensure o, in a non–- discriminatory basis with regard to the protection of the equivalent rights of employees of direct subcontractors established in its territory, that the contractor of which the employer (service provider or temporary employment undertaking or placement agency) is a direct subcontractor can, in addition to or in place of the employer, be held liable by the postedway, that a contracting authority which commissions another undertaking to carry out work or provide services is liable in respect of the obligations of that undertaking, a subcontractor or an agency contracted by the undertaking or by a subcontractor for claims under the employment contract vis- à-vis its workers and/or common funds or institutions of social partners for non-payment of the following:, acting as a guarantor who has forgone an obligation under a previous claim. Where stricter rules exist at national level, they shall take precedence.
Amendment 715 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 1 – point a
Article 12 – paragraph 1 – subparagraph 1 – point a
Amendment 727 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 1 – point b
Article 12 – paragraph 1 – subparagraph 1 – point b
Amendment 734 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 2
Article 12 – paragraph 1 – subparagraph 2
Amendment 742 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
Amendment 760 #
Proposal for a directive
Article 12 – paragraph 3
Article 12 – paragraph 3
3. Member States may, in conformity with Union law, provide for more stringent liability rules under national law on a non- discriminatory and proportionate basis in regard to the scope and range of subcontractor liability. Member States may also, in conformity with Union law, provide for such liability in sectors other than those contained in the Annex to Directive 96/71/EC. Member States may in these cases provide that a contractor that has undertaken due diligence as defined by national law shall not be liable.
Amendment 775 #
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 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 785 #
Proposal for a directive
Article 13 – paragraph 2 – subparagraph 3
Article 13 – paragraph 2 – subparagraph 3
The requesting authority may not make a request for recovery of a penalty or a fine or notification of a decision imposing a penalty or fine if and as long as the fine or penalty, as well the underlying claim and/or the instrument permitting its enforcement in the requesting Member State, are contested in that Member State. This shall not apply where enforcement is nevertheless possible in accordance with the law in the host Member State.
Amendment 786 #
Proposal for a directive
Article 13 – paragraph 2 – subparagraph 3 a (new)
Article 13 – paragraph 2 – subparagraph 3 a (new)
If it becomes clear, in the course of the procedure, that the service provider is not in fact established in the Member State of establishment or the address or other details relating to the undertaking are incorrect, the competent authorities shall not close the procedure on formal grounds but shall investigate and attempt to identify the natural or legal person responsible for the posting.
Amendment 792 #
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 795 #
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 805 #
Proposal for a directive
Article 17 a – paragraph 1 (new)
Article 17 a – paragraph 1 (new)
Amendment 806 #
Proposal for a directive
Article 17 a – paragraph 2 (new)
Article 17 a – paragraph 2 (new)
2. In order to achieve public objectives and perform public tasks in keeping with the principle of equal treatment and non- discrimination, the Member States may, by adopting or applying laws, regulations and administrative practices, promote the granting of equal pay and working conditions at comparable workplaces, in particular in the area of public procurement at national, regional and local level, where this is more favourable for workers. This shall apply without prejudice to this Directive and Directive 96/71/EC. Member States may stipulate that collective agreements going beyond the minimum working conditions laid down by laws, regulations and administrative practices shall apply in the case of transnational undertakings established in other Member States.
Amendment 807 #
Proposal for a directive
Article 17 a – paragraph 3 (new)
Article 17 a – paragraph 3 (new)
3. Member States may establish working conditions stipulated for similar undertakings, professions or sectors in a region as more favourable working conditions within the meaning of Article 3 of Directive 96/71/EC.
Amendment 808 #
Proposal for a directive
Article 17 a – paragraph 4 (new)
Article 17 a – paragraph 4 (new)
4. Member States which do not have a system of general applicability may establish collective agreements applicable to similar undertakings in a region in the sectors concerned as more favourable working conditions. Account shall be taken of corresponding practices in this regard.
Amendment 809 #
Proposal for a directive
Article 17 a – paragraph 5 (new)
Article 17 a – paragraph 5 (new)
5. This Directive and Directive 96/71/EC shall not prevent Member States from ratifying ILO Convention No 94.
Amendment 810 #
Proposal for a directive
Article 17 a – paragraph 6 (new)
Article 17 a – paragraph 6 (new)
6. These directives shall not prevent the introduction or application of indexation mechanisms for wages or for minimum wages, or their application to posted workers.
Amendment 811 #
Proposal for a directive
Article 17 a– paragraph 7 (new)
Article 17 a– paragraph 7 (new)
7. Implementation of this Directive shall not be used to justify a reduction in the general level of protection for workers covered by this Directive and by Directive 96/71/EC.
Amendment 817 #
Proposal for a directive
Article 18 – paragraph 2
Article 18 – paragraph 2
2. Member States may continue to apply and adopt new bilateral arrangements 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 820 #
Proposal for a directive
Article 18 – paragraph 3
Article 18 – paragraph 3
Amendment 829 #
Proposal for a directive
Article 21 – title
Article 21 – title
Report and amendment of Directive 96/71/EC
Amendment 830 #
Proposal for a directive
Article 21 – paragraph 1
Article 21 – paragraph 1
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 on the implementation of this Directive, making appropriate proposals where necessary. In the event that these reports do not show any significant improvement in the situation of posted workers, Directive 96/71/EC shall be amended one year after the end of the reporting period referred to in paragraph 1, to the effect that equal pay rather than only minimum rates of pay, and all collective agreements rather than only generally applicable collective agreements, shall apply for the purposes of Article(3)(1), second indent in conjunction with point (c) in conjunction with paragraph 8, where the remaining conditions are met. Posted workers shall be placed on an equal footing with non- posted workers in the host Member State in relation to the payment of wages, salaries and additional elements of remuneration, annual leave and other working conditions.