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.
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.
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.
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.
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.
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.
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|
|Act||Entry into force - Date of expiry||Deadline for transposition in the Member States||Official Journal|
|Directive 96/71/EC [adoption codecision COD/1991/346]||
OJ L 18 of 21.1.1997
|Amending act(s)||Entry into force||Deadline for transposition in the Member States||Official 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.||
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).||
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.