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Posting of workers in the framework of the provision of services

The European Union wishes to remove the uncertainties and obstacles impeding the free provision of services by increasing legal certainty and making it easier to identify the working conditions in the Member State to which the worker is posted which apply to posted workers.

ACT

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 [See amending acts].

SUMMARY

The Directive applies to undertakings which, in the framework of the transnational provision of services, post workers to the territory of a Member State, provided there is an employment relationship between the undertaking making the posting and the worker during the period of posting:

  • on their account and under their direction, under a contract concluded between the undertaking making the posting and the party for whom the services are intended;
  • to an establishment or to an undertaking owned by the group;
  • as a temporary employment undertaking, to a user undertaking.

For the purposes of the Directive, “posted worker” means a worker who, for a limited period, carries out his/her work in the territory of a Member State other than the State in which he/she normally works. The definition of a worker is that which applies in the law of the Member State to whose territory the worker is posted.

Working conditions

Member States must ensure that undertakings guarantee posted workers a central core of mandatory protective legislation laid down in the Member State in which the work is carried out:

  • by law, regulation or administrative provision and/or;
  • by collective agreements or arbitration awards * which have been declared universally applicable, in so far as they concern the activities set out in the Directive's annex.

Conditions of work and employment to be covered are:

  • maximum work periods and minimum rest periods;
  • minimum paid annual holidays;
  • minimum rates of pay, including overtime rates;
  • the conditions of hiring-out of workers, in particular the supply of workers by temporary employment undertakings;
  • health, safety and hygiene at work;
  • protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people;
  • equality of treatment between men and women and other provisions on non-discrimination.

Derogations

Member States may derogate from the immediate implementation of the rules on:

  • minimum rates of pay in the case of work lasting for a maximum of one month provided that this work is not carried out by temporary employment undertakings;
  • minimum rates of pay and holidays in the case of an "insignificant" amount of work to be done, provided that this work is not carried out by temporary employment undertakings;
  • minimum rates of pay and holidays in the case of initial assembly and/or first installation of the goods provided when the maximum duration of the work does not exceed eight days. This derogation does not, however, apply to the building industry.

Calculation of salary

Allowances specific to the posting are considered to be part of the minimum wage, unless they are paid in reimbursement of expenditure actually incurred on account of the posting.

Equal treatment

Member States may provide that undertakings must guarantee temporarily posted workers the same terms and conditions which apply to temporary workers in the Member States where the work is carried out.

Cooperation in the area of information and duty to provide information

Member States must designate one or more liaison offices or one or more competent national bodies and notify the other Member States and the Commission accordingly.

Member States must make provision for cooperation between the public authorities which, in accordance with national legislation, are responsible for monitoring terms and conditions of employment. Mutual administrative assistance is provided free of charge.

Each Member State must take the appropriate measures to make the information on terms and conditions of employment generally available and to ensure that adequate procedures are available to workers and/or their representatives for the enforcement of obligations under the Directive.

In the event of non-compliance with these terms and conditions of employment, Member States shall, if necessary, also take the appropriate measures.

Redress

In order to enforce the right to the terms and conditions of employment guaranteed by the Directive, judicial proceedings may be instituted in the Member State in whose territory the worker is or was posted.

Background

The European Union wishes to remove the uncertainties and obstacles impeding the free provision of services, as provided for in Article 49 of the EC Treaty, by increasing the protection of posted workers.

However, during the last two waves of EU enlargement in 2004 and 2007, the Acts of Accession introduced transitional arrangements for Germany and Austria. They enable the countries to cope with the risk of disruption in certain vulnerable sectors, and to limit the posting of workers in relation to the provision of services and for as long as they apply restrictions on the free movement of workers and have informed the Commission. The new Member States may take reciprocal measures where Germany and Austria depart from Article 49 of the EC Treaty.

The transitional arrangements which enable Member States to restrict access to the labour market to workers coming from the new Member States, with the exception of Cyprus and Malta, do not allow Member States to derogate from Article 49 of the EC Treaty and therefore restrict the posting of workers.

Key terms used in the act
  • Collective agreements or arbitration awards which have been declared universally applicable: These must be observed by all undertakings in the geographical area and in the profession or industry concerned.

REFERENCES

ActEntry into force - Date of expiryDeadline for transposition in the Member StatesOfficial Journal
Directive 96/71/EC [adoption codecision COD/1991/346]

10.2.1997

16.12.1999

OJ L 18 of 21.1.1997

Amending act(s)Entry into forceDeadline for transposition in the Member StatesOfficial Journal
Annexes V , VI , VIII , IX , X , XII , XIII , and XIV : Lists referred to in Article 24 of the Acts of Accession to the European Union of the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia and Slovakia.

1.5.2004

-

OJ L 236 of 23.9.2003

Act concerning the conditions of accession of the Republic of Bulgaria and Romania and the adjustments to the Treaties on which the European Union is founded (Official Journal L 157 of 21.06.2005).

1.1.2007

-

OJ L 157 of 21.6.2005

Subsequent amendments and corrections to Directive 96/71/EC have been incorporated in the basic text. This consolidated version (FR ) has a purely documentary value.

RELATED ACTS

EFFECTIVE IMPLEMENTATION OF THE DIRECTIVE / MONITORING

Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions - Posting of workers in the framework of the provision of services: maximising its benefits and potential while guaranteeing the protection of workers [COM(2007) 304 final – Not published in the Official Journal].
Directive 96/71/CE ensures a high level of security for service providers, posted workers and service users. This Communication refers to the application of the Directive in the Member States.

The Commission highlights the importance of access to information and administrative cooperation between the State of origin and the host State. The progress achieved in these areas should enable the obstacles to the freedom to provide services to be removed. However, the advancements are insufficient and workers are not sufficiently informed of their rights.

Impediments for posted workers who are nationals of third countries also still exist, as they can be subject to visa requirements or residence permits. However, in cases where the service provider is established in a Member State, no administrative formality or additional conditions should be imposed.

However, certain measures may be required in order to ensure the protection of posted workers and compliance with the rules of general interest on the condition that they are proportionate and justified. In particular, this relates to certain control measures implemented at national level and in compliance with Article 49 of the EC Treaty on the freedom to provide services.

Communication from the Commission of 4 April 2006 – Guidance on the posting of workers in the framework of the provision of services [COM(2006) 159 final – Not published in the Official Journal].

Communication from the Commission of 25 July 2003 on the implementation of Directive 96/71/EC in the Member States [COM(2003) 458 final – Not published in the Official Journal].

Last updated: 09.10.2009
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