EUR-Lex
SEC(2008)0379

PURPOSE: to assess the application of Directive 96/71/EC on the posting of workers in the framework of the provision of services.

CONTENT: on 4 April 2006 the Commission adopted the Communication 'Guidance on the posting of

workers in the framework of the provision of services' (see INI/2006/2038 ) which aimed to assist Member States in achieving the results required by the Directive and in particular as regards administrative requirements and control measures imposed on service providers.

The present Communication responds to the commitment taken by the Commission in its Communication to monitor developments in the Member States4 with respect to all matters addressed in that Communication.

The present Communication is based on a detailed examination of the situation in the Member

States and also takes into account the information provided and the concerns expressed by the European

Parliament in its Resolution of 26 October 2006 on the application of the Directive.

There are no precise figures or estimates of posted workers in the EU. However, the overall number of posted workers is estimated to be just under 1 million or about 0.4% of the EU working age population in 2005. They represent significant numbers in some Member States (Germany, France, Luxembourg, Belgium or Poland) but the phenomenon is increasingly widespread and affects now all Member States as sending and/or as receiving countries. The economic importance of posting exceeds by far its quantitative size, as it can play a crucial economic role in filling temporary shortfalls in the labour supply in certain professions or sectors (e.g. construction, transport). On the other hand, employment conditions, wages in particular, offered to posted workers, if not subject to proper control and enforcement, may diverge from the minimal conditions established by law or negotiated under generally applicable collective agreements. If such divergence takes place on a large scale this might undermine the organization and functioning of local labour markets. At the same time, on a more general level, restrictions on labour market access may exacerbate resort to undeclared work. When accompanied by lacunae in enforcement of Community legislation already in place, this phenomenon leads to undesirable social consequences both for undeclared workers and the regular labour force.

Guidelines provided for in the Commission's Communication of April 2006

In its Communication of April 2006, the Commission explained and clarified how the Community acquis, and in particular Article 49 EC as interpreted by the ECJ, had to be observed and how the results required by the Directive could be achieved in a more effective manner. Among the control measures applied by Member States in the context of supervising the posting of workers, it explicitly focussed upon the following types of administrative requirements:

to have a representative established on the territory of the host Member State ; to obtain a prior authorisation in the host Member State or to be registered with them, or any other equivalent obligation; to make a prior declaration to the authorities of the host Member State; to keep and maintain social documents on the territory of the host country and/or under the conditions which apply in its territory; measures which apply specifically to posted workers who are nationals of third countries.

Control measures applied by the Member States : in the light of the available information and pending further assessment, a number of control measures applied by Member States do not seem to be in conformity with Article 49 EC as interpreted by the ECJ. A final assessment of the situation will, however, depend on an assessment as to whether certain legitimate monitoring needs can be fulfilled by improved access to information and/or more effective administrative cooperation between the host Member State and the Member State of origin.

Control measures used : the main categories of control measures used by the Member States are as follows:

the requirement imposed on the posting undertaking to have a representative in the host country is explicitly made in 6 Member States (and implicitly in 3 others); a specific authorisation/registration regime for posting of workers exists in two Member States; the requirement to make a declaration prior to the commencement of the work by the service provider exists in 16 Member States19; whereas one Member State imposes such an obligation on the recipient of the service; requirements to keep and maintain certain social documents on the territory of the host country and/or under the conditions which apply in its territory are imposed in 14 Member States in varying ways and concerning different types of documents.

Member States and Social Partners have divergent views as to whether certain control measures are needed as well as to whether these are compatible with Community law. In October 2006, the European Parliament adopted a Resolution which alleges the right of the host Member State to impose certain formalities to employers that post workers so as to make it possible for the authorities of that country to ensure compliance with the terms and conditions of employment. For a number of Member States this constitutes a highly sensitive issue, touching upon key characteristics of their social model. Control measures imposed by Member States are embedded in their legal and institutional frameworks, and in some Social Partners can also be entrusted with control and monitoring tasks of terms and conditions of employment. Lack of information on the identity and/or legitimacy of service providers, the temporary and often very short-term nature of posting operations, the perceived risks of "social dumping" or distortion of competition, as well as the cultural and physical distance between controlling authorities, are mentioned as justification for the use of certain control measures by host country authorities. On the other hand, these are often perceived as excessive by service providers and authorities in sending countries, and pursuing goals that go beyond the protection of posted workers' rights.

Assessment : the inventory of control measures used by Member States shows their striking diversity. As a matter of principle, the Commission does not intended to put into question the different social models chosen by Member States nor the way they organise their system of labour relations and collective bargaining, provided that it is implemented and applied in a way which is fully compatible with the obligations under the Treaty.

Furthermore, the necessity for preventive actions and appropriate sanctions aimed at countering illegal employment and undeclared work, including in the form of disguised self-employment, as well as combating unlawful activities by fictitious foreign temporary employment agencies, is indisputable. In this context, Member States need to strike the right balance between, on one side, the necessity to provide and safeguard the effective protection of workers and, on the other, the need to ensure that the formal requirements and control measures used or imposed in order to guarantee the respect of overriding reasons of general interest (such as protection of posted workers), including the way these are effectively applied, exercised or performed in practice, are justified and proportionate in view of the objectives pursued and aims to be achieved. This situation may well be related to, if not caused by, the virtual absence of administrative cooperation, the still unsatisfactory access to information as well as cross-border enforcement problems. These problems cannot be solved unless Member States improve the way they cooperate with each other and, in particular comply with their obligations regarding administrative cooperation and access to information as stipulated in the Directive. In complying with their obligations, Member States would substantially contribute to a reduction of administrative burdens in line with the objectives set by the European Council. Improved administrative cooperation could also constitute an important element when aiming to improve and increase effective compliance with and enforcement of Community law. Adequate and effective implementation and enforcement are key elements in the protection of posted workers rights.

Future measures : the Commission considers that urgent action is required and envisages the following measures:

adopt a Commission Recommendation (on the basis of Article 211 EC), to be endorsed by Council conclusions in order to reinforce administrative cooperation amongst Member States through the use of the Internal Market Information System (IMI)43 and to clarify the role of liaison offices; adopt a Commission Decision setting up a high level Committee, in order to support and assist the Member States in identifying and exchanging good practices, to institutionalise the current, informal Group of Government Experts by identifying with greater precision its role, tasks and responsibilities, and to formally involve social partners regularly; ensure effective compliance with the fundamental freedoms of the EC-Treaty, as interpreted by the ECJ, by those Member States which impose administrative requirements and control measures considered incompatible with prevailing Community law (such as the requirement to have a representative established in the host Member State, or an obligation to keep certain social documents on its territory, without any exception and/or time limitation, when information can be obtained via the employer or the authorities in the Member State of origin within a reasonable delay) on a case by case basis, including, if necessary, launching infringement proceedings under Article 226 EC; ensure the conformity with Community law, as interpreted by the ECJ notably in the judgement "Vander Elst", with respect to those Member States which still require work permits and other conditions to posted third country nationals who are legally staying and are legally employed in another Member State, by launching infringement procedures under Article 226 EC; continue monitoring the Member States' national transposition measures and their application on all other matters not dealt with in this Communication, including those situations where, contrary to Article 4(3), accessibility and transparency of information remains a problem, and, if necessary, take the appropriate measures, including launching infringement procedures under Article 226 EC; engage, for example in the above-mentioned high level Committee, with the Member States and Social Partners in an in-depth examination of cross-border enforcement problems (sanctions, fines, joint and several liability).

On the basis of this examination, the Commission will take appropriate action.

COM(2007)0304
EUR-Lex

SEC(2007)0747
EUR-Lex

This Communication concerns the right of a service provider established in a Member State to temporarily post workers to another Member State in order to provide a service. Directive 96/71/EC identifies the mandatory rules in force in the host country that are to be applied to posted workers by establishing a core of terms and conditions of work and employment and making them binding on undertakings posting workers to a Member State other than the State in whose territory these workers habitually work. The Directive has a clear social objective: that posted workers are guaranteed during the period of posting the respect by their employer of certain protective rules of the Member State to which they are posted.

Following the adoption by the European Parliament on 16 February 2006 of a legislative resolution on the proposal for a directive on services in the internal market, the Commission presented an amended proposal, in which Articles 24 and 25 of the initial proposal setting out specific provisions on the posting of workers are deleted. In these Articles, the Commission proposed the scrapping of certain administrative obligations concerning the posting of workers, accompanied by measures to reinforce administrative cooperation between Member States.

The Commission undertook to draw up guidelines to clarify the prevailing Community law on the administrative procedures dealt with in Articles 24 and 25. This Communication tells the Member States how to observe the Community acquis as interpreted by the European Court of Justice with reference to Article 49 EC (the principle that Member States should ensure the freedom to provide services within the Community) and how to achieve the results required by the Directive in a more effective manner. It also refers to the Commission's report SEC(2006)0439.

Control measures: the Commission points out that, when performing inspections as part of the implementation of the Directive Member States must abide by Article 49 EC and refrain from creating or upholding unjustified and disproportionate restrictions to the free provision of services within the Community. The Court has underlined several times that these inspections must be suitable for achieving the objectives pursued without restricting this freedom any more than necessary, in accordance with the principle of proportionality. The Commission goes on to discuss and give guidance on the following topics, which urgently required clarification on the basis of the case law of the ECJ based on Article 49 EC:

– the requirement to have a representative on the territory of the host Member State;

– the requirement to obtain authorisation from the competent authorities of the host Member State or to be registered with them, or any other equivalent obligation;

– the requirement to make a declaration;

– the requirement to keep and maintain social documents on the territory of the host country and/or under the conditions which apply in its territory.

It also gives guidance on measures which apply to posted workers who are nationals of third countries

Cooperation on information: on the question of access to information, Member States are asked to redouble their efforts to enhance, and improve access to, the information on the terms and conditions of employment that must be applied by service providers, and to ensure that their liaison offices are in a position to carry out their tasks effectively. The Commission will continue to support the Member States in this area, especially through the expert group, and will monitor their efforts in order to make sure that they contribute to progress towards best practices. Member States are also asked to take the necessary measures to ensure that their liaison offices and/or monitoring authorities have the necessary equipment and resources to respond effectively to requests for information and cross-border cooperation from the competent authorities of the other Member States. The Commission will continue to support the Member States in this area, especially by making more appropriate electronic systems available, and will monitor their progress closely.

Monitoring of compliance with the Directive and measures in the event of failure to comply: Member States are asked to re-examine their systems for monitoring and implementing the Directive. They are asked, in particular, to ensure that there is a mechanism in place to remedy any deficiencies; that appropriate and proportionate monitoring measures are in place; and that service providers who do not comply can be effectively sanctioned. The Commission undertakes to work with the Member States in order to improve transnational cooperation of labour inspectorates in the subject areas covered by the Directive on the posting of workers.

In order to assess progress, the Commission will adopt within 12 months a report which will examine the situation in all Member States with regard to all aspects covered by the Communication.

COM(2006)0159
EUR-Lex

SEC(2006)0439
EUR-Lex

COM(2003)0458
EUR-Lex

Directive 1996/71
OJ L 018 21.01.1997, p. 0001

The Council adopted the Directive, with the UK delegation voting against and the Portuguese delegation abstaining (with explanations of vote).

OJ C 320 28.10.1996, p. 0064-0073
T4-0456/1996

T4-0456/1996

The rapporteur, Mr Peter (PSE, D), welcomed the Directive that had been put forward by the Commission, which sought to eliminate unfair competition by ensuring that ‘posted’ workers did not receive lower wages and were not subjected to less favourable working conditions that those prevailing in the Member State in which they were practising their profession. While establishing that the Commission and the Council had taken note of Parliament’s demands, the rapporteur also wanted to see the directive applied to port dredging and navigation work. Commissioner Flynn had underlined the importance of protecting freedom of movement, while at the same time avoiding social and wage dumping. He was opposed to the amendment on the application of the directive to ‘ro-ro’ vessels transporting passengers and freight. In fact workers on board this type of vessel were not outside the terms of the Directive in question, and in any case ro-ro vessels came under the law on flag Member State; moreover, it was extremely rare to find cases in which a worker on board a vessel flying the flag of one Member State was transferred to a vessel flying the flag of another Member State. Finally, Commissioner Flynn gave his assurance that the Commission would see to it that Member States transposed the Directive into their legislation.

Debate in Parliament

A4-0265/1996
OJ C 320 28.10.1996, p. 0004

A4-0265/1996

EUR-Lex
SEC(1996)1109

06689/2/1996
OJ C 220 29.07.1996, p. 0001

06689/2/1996

The Council discussed the proposal for a directive concerning the posting of workers in the framework of the provision of services. One problem covered by the discussion was that of the time threshold, i.e. the non-­application to short-term postings of the host Member State ’s provisions regarding the minimum length of paid annual holidays and minimum rates of pay. The Council instructed the Permanent Representatives Committee to continue the discussions and to report back at a meeting in the near future.

1892

At the request of the Commission, the Council had a brief discussion on the proposal for a directive concerning the posting of workers in the framework of the provision of services. Commissioner FLYNN said he was prepared to make one last effort to help reach agreement on this important directive. The Council instructed the Permanent Representatives Committee to continue the discussion under the Spanish Presidency.

1862

B4-0510/1995

B4-0858/1995
OJ C 166 03.07.1995, p. 0082-0123

OJ C 166 03.07.1995, p. 0082-0123
T4-0302/1995

Debate in Parliament

T4-0302/1995

The debate focused on: - the scope of the Directive; - the exhaustive or non-exhaustive nature of the list of terms and conditions of employment covered by the Directive; - the optional non­-application of provisions regarding minimum annual paid holidays and minimum rates of pay to short-­term postings of under one month. The Council instructed the Permanent Representatives Committee to continue discussing the matter in the light of this debate with a view to a decision at the Council meeting on 29 June 1995.

1836

1813

The "Labour and Social Affairs" Council held a policy debate on this proposal. The debate in particular related to:

- the scope of the directive;

- the possibility to provide or to allow, an initial period during which the provisions of the directive would not be applicable and, if necessary, the duration of such an initial period.

1784

EUR-Lex
OJ C 187 09.07.1993, p. 0005
COM(1993)0225

EUR-Lex
COM(1993)0225

OJ C 072 15.03.1993, p. 0064-0085
T3-0083/1993

T3-0083/1993

Debate in Parliament

OJ C 072 15.03.1993, p. 0004
A3-0022/1993

A3-0022/1993

EUR-Lex
COM(1991)0230

OJ C 150 15.06.1992, p. 0036-0119
T3-0277/1992

T3-0277/1992

Debate in Parliament

OJ C 150 15.06.1992, p. 0010
A3-0161/1992

A3-0161/1992

CES1512/1991
OJ C 049 24.02.1992, p. 0041

EUR-Lex
OJ C 225 30.08.1991, p. 0006
COM(1991)0230