COMMISSION OF THE EUROPEAN COMMUNITIES 
COM(93)225 fin»' - SYN 346 
Brussels, 15 June 1993 
Amended proposal for a 
COUNCIL DIRECTIVE 
concerning the posting of workers 
In the framework of the provision 
(presented by the Commission pursuant to Article 149(3) 
of the EEC-Treaty) 
Z-
EXPLANATORY MEMORANDUM 
Parliament and the Economic and Social Committee have delivered 
opinions on the proposal for a Council Directive concerning the posting 
of workers in the framework of freedom to provide services. The amended 
proposal, which the Commission is submitting pursuant to Article 149 of 
the Treaty, takes account of Parliament's amendments approved on 10 
February 1993, the Economic and Social Committee's opinion adopted on 
16 December 1991 and the developments of discussions In the Council 
Working Group on Social Questions. A number of technical improvements 
have been incorporated for the sake of legal certainty and consistency. 
Article 1 
The wording of Article 1 has been rephrased to clarify its meaning and 
to emphasize the fact that the undertaking referred to therein may be 
established either in a Member State or In a third country. This 
amendment is in line with the wishes expressed by Parliament and 
responds to a broad consensus within the Council Working Group on 
Social Questions. 
Article 2 
Point (c) has been amended at the request of Parliament. By replacing 
the original term "located" with the Parliament's recommended 
expression "carrying out work" the new text becomes clearer, broader 
and more adequate. 
Article 3 
The amendment to paragraph 1, point (a) and the new paragraph 4 have 
been introduced to take acount of the wishes overwhelmingly expressed 
by Parliament, they have a two-fold objective: First of all, to 
clarify the original text by deleting the term "erga omnes" which is 
unknown in some Member States and to ensure the application of 
collective agreements at national, regional or other levels which must 
be observed by all national undertakings operating in the occupation or 
industry concerned and, secondly, to allow Member States, in the 
absence of the abovementloned collective agreements (or awards), to 
include those which are complied with by the great majority of 
national-level undertakings in the occupation or industry In question. 
The fact that an economically insignificant number of national-based 
undertakings do not observe the collective agreements (or awards) in 
question, would not necessarily impede their application to the 
undertaking referred to in Article 2. A key factor will be the 
extent to which those undertakings are real potential competitors 
relative to undertakings referred to in Article 2. The term "national-
based undertakings being in a similar position" should be construed as 
enterprises established in the Member State concerned, which undertake 
similar activities or operations and are equivalent in volume or size. 
Furthermore, in order to guarantee legal certainty, Article 4 (3) 
provides that Member States must ensure that information is officially 
published and easily available to foreign undertakings in order to 
enable them to identify the collective agreements which are generally 
applicable within the meaning of Article 3(4). In the absence of such 
Information the abovementloned collective agreements cannot be imposed 
upon foreign providers of services. 
Paragraph 1, point (b) has been changed In response to three amendments 
made by Parliament, by adding the terms "Saturdays" and "shift work", 
"public holidays" and "sexual orientation" to (I), (II) and (vli) 
respect ively. 
Paragraph 1, point (b)(lll) has been modified, at Parliament's request, 
by deleting the words "but excluding benefits provided for by private 
occupational schemes". It is now clear that bad weather payments, 
payments relating to annual holidays and public holidays are the 
responsibility of the employer where the national law of the host 
country so establishes. Whether or not he should pay contributions to 
special funds laid down by laws or the collective agreements referred 
to in Article 3 will depend on the circumstances of the case and on the 
rule that persons providing services should be neither discriminated 
against nor required to comply with obligations which are incompatible 
with the provision of services as laid down in Article 59 of the Treaty 
(Joined Cases 62 and 63/81 Seco SA). 
Paragraph 2 has been amended at the request of Parliament. It reduces 
to one month the original three-month threshold. The new threshold 
allows for the necessary flexibility, may be regarded as more 
favourable to workers and is in line with Article 4(3) of Council 
Directive 91/533/EEC of 14 October 1991 concerning the employer's 
obligation to inform workers on the conditions applicable to their 
contracts of employment. The said Article allows the employer not to 
give a new written statement to a posted worker where the posting lasts 
less than one month. 
Paragraph 3 has been Inserted to reflect the opinion of Parliament and 
is designed to guarantee the application of the more favourable working 
conditions provided for by the law applicable, usually the law of the 
home country. 
Article 4 
Article 4 has been introduced In light of the views of Parliament and 
the Economic and Social Committee. 
Paragraph 1 ensures cooperation between public authorities of both the 
home and the host country in matters relating to the application of the 
Directive. It states that liaison offices must be designated to 
channel such cooperation. 
Paragraph 2 contains a non-exhaustive list of matters on which 
information should be provided to a requesting public authority. Such 
a list includes Information concerning the working conditions 
applicable to posted workers In accordance with Article 3 and the 
cross-border supply of workers, including apparent abuses or possible 
cases of unlawful cross-frontier activities. 
Paragraph 3 Is clarified In Article 3 (1)(a). 
<< 
Article 5 
This Article reflects the opinion of Parliament and the Economic and 
Social Committee and is In line with other Commission proposals. It 
provides for appropriate remedies in the event of failure to comply. 
Article 6 
Article 6 modifies the date referred to in the original Article 4 which 
Is no longer viable. 
Article 7 
This Article was added to take into account Parliament's wishes. It 
provides for a review of the operation of the Directive five years 
after the expiry of the period referred to in Article 6. 
Proposal for a Council Directive concerning 
the framework of the provision of services the posting of workers In 
ORIGINAL PROPOSAL 
Proposal for a Council Directive 
concerning the posting of workers 
in the framework of the 
provisions of services Amended proposa I for a Counc11 
Directive concerning the posting 
of workers in the framework of the 
provisions of services 
The Counc11 
Commun(ties, of the European 
Having regard to the Treaty 
establishing the European 
Economic Community, and in 
particular Articles 57(2) and 66 
thereof, 
Having regard to the proposal 
from the Commission,*1) 
In cooperation with 
Par I lament ,'(2) the European 
Having regard to 
the Economic 
Committee,(3* the opinion of 
and Social 
Whereas, pursuant to Article 3(c) 
of the EEC Treaty, the abolition 
as between Member States of 
obstacles to freedom of movement 
for persons and services 
constitutes one of the objectives 
of the Community; 
Whereas for the provision of 
services any restrictions based 
on nationality or residence 
requirements are prohibited under 
the Treaty with effect from the 
end of the transitional period; The Council of the European 
Commun It les, 
Unchanged 
Unchanged 
Unchanged 
Unchanged 
Unchanged 
Unchanged 
(1) OJ No 
(2) OJ No 
(3) OJ No 
Not foreseen Whereas the free provision of 
services In the framework of the 
Single Market L§ a fundamental 
principle of the EEC Treaty as 
interpreted by. the court ol 
Justice. Whereas. however . 
certain restrictions may be 
Introduced where justified on 
grounds of public Interest. 
Whereas the realization of the 
Internal market offers a dynamic 
environment for the provision of 
services and transnational 
subcontracting by inviting a 
growing number of undertakings to 
post their employees abroad 
temporarily to perform work on 
the territory of a Member State 
other than the State in which 
they are habitually employed; Unchanged 
Whereas the provision of services 
may take the form either of 
performance of work by the 
provider of the service or the 
provision of manpower for use by 
an undertaking in the framework 
of a public or a private 
contract ; 
Whereas any such promotion of the 
transnational provision of 
SP^^-Ces requires a climate of 
-<alr competition to exist which 
cannot be attained without 
measures ensuring respect for the 
r ights of workers; 
Whereas the transnationalizatIon 
of the employment relationship 
raises problems with regard to 
the legislation applicable to the 
employment relationship and that 
it is In the best interests of 
the parties to lay down the 
conditions governing the 
employment relationship 
envisaged; Unchanged 
Whereas any such promotion of the 
transnational provision of 
services requires fair competition 
to exist which cannot be attained 
without measures guaranteeIng 
respect for the rights of workers; 
Unchanged 
<? 
Whereas Community law does not 
preclude Member States from 
applying their legislation, or 
collective agreements entered 
into by both sides of Industry to 
any person who Is employed, even 
temporarily, within their 
territory, although his employer 
Is established In another Member 
State*, whereas Community law does 
not forbid Member States to 
guarantee the respect of those 
rules by the appropriate means; Unchanged 
Whereas Council Directive 
71/305/EEC Of 26 July 1971, 
concerning the coordination of 
procedures for the award of 
public works contracts,*4* as 
last amended by Council Directive 
89/440/EEC,<5) lays down strict 
rules on the verification of the 
aptitudes of bidders on the basis 
of their economic, financial or 
technical capacities; Unchanged 
Whereas Council Directive 
89/440/EEC and Council Directive 
90/531/EEC of 17 September 1990 
on the procurement procedures of 
entities operating in the water, 
energy, transport and 
telecommunications sectors*6* 
introduced a transparency clause 
whereby the contracting authority 
may provide tenderers with the 
necessary Information concerning 
working conditions applicable to 
the work envisaged; Unchanged 
Whereas ILO Convention 94 
concerning social clauses in 
public contracts came into force 
on 20 September 1952; Unchanged 
Whereas the Convention on the law 
applicable to contractual 
obligations opened for signature 
in Rome on 19 June 1980*7) by 
eight Member States came into 
force on 1 April 1991 in the 
majority of Member States; Unchanged 
(4) OJ L 185 of 16.8.1971, p. 5. 
(5) OJ L 210 Of 21.7.1989, p. 1. 
(6) OJ L 297 of 29.10.1990, p. 1 
(7) OJ L 260 Of 9.10.1980. 
Whereas its Article 3 
establishes, as a general rule, 
the free choice of law made by 
the parties; whereas, in the 
absence of choice, the contract 
shall be governed according to 
Article 6(2), by the law of the 
country In which the employee 
habitually carries out his work 
in performance of the contract, 
even If he Is temporarily 
employed in another country; or 
if the employee 
habitually carry out 
any one country, by 
the country in which 
business through which he was 
engaged is situated; unless it 
appears from the circumstances as 
a whole that the contract Is more 
closely connected with another 
country, In which case the 
contract shall be governed by the 
law of that country; Unchanged 
does not 
his work In 
the law of 
the place of 
Whereas, according to Article 
6(1) of the said Convention, the 
choice of law made by the parties 
shall not have the result of 
depriving the employees of the 
protection afforded to him by the 
mandatory rules of the law which 
would be applicable under 
paragraph 2 in the absence of 
choI ce ; Unchanged 
Whereas, according to the 
principle of precedence of the 
Community law stated in its 
Article 20, the said Convention 
shall not affect the application 
of provisions which, in relation 
to a particular matter, lay down 
choice of law rules relating to 
contractual obligations and which 
are or will be contained in acts 
of the institutions of the 
European Communities or in 
national laws harmonized In 
implementation of such acts-, Unchanged 
Whereas a minimal approximation 
of the labour laws of the Member 
States has already taken place; 
whereas, however, there are still 
differences as to the social 
rights guaranteed by the national 
laws and the collective 
agreements in force-, Unchanged 
^ 
Whereas, to this end, the laws of 
the Member States must be 
coordinated In order to lay down 
a nucleus of mandatory rules for 
minimum protection to be observed 
in the host country by employers 
who post workers to perform 
temporary work In the territory 
of a Member State where the 
services are provided; 
Whereas the stability of 
employment relationships for 
short-term postings should not be 
hampered with respect to minimum 
rates of pay and minimum paid 
hoi lays; whereas, therefore, an 
exception to certain provisions 
of the Directive should be 
provided for; 
Whereas, however, a "hard core" 
of protective rules, clearly 
defined, should be observed by 
the provider of the services 
notwithstanding the duration of 
the worker's posting; 
Not foreseen Whereas untI I such time as these 
socI a I rI a his have 
laws of the Member 
coordinated In 
a nucleus of 
for minimum 
in the differences In 
converged, the 
States must be 
order to lay down 
mandatory rules 
protection to be observed 
host country by employers who post 
workers to perform temporary work 
In the territory of a Member State 
where the services are provided; 
whereas such coordination can be 
achieved only 
Community law; 
Unchanged 
Unchanged 
Whereas, however, the mandatory 
rules for 
force in the host orot< 
country must not 
prevent application of the terms 
and conditions of employment 
provided for by the law applicable 
which are more favourable to 
workers; 
Whereas, to attain the aims and 
objectives envisaged by this 
Directive, undertakings 
established outside the Community 
must be subject to the same "hard 
core" of protective rules with 
respect to their workers who 
carry out temporary work in the 
territory of a Member State; 
Whereas this Directive Is without 
prejudice to national laws 
relative to the hiring out of 
workers, notably to the 
functioning of temporary 
employment business, as well as 
to the entry, residence and 
employment of third country 
workers. 
Not foreseen Whereas. without prejudice to 
other provisions of: Community law. 
this Directive does not entailthe 
obligation to give Legal 
recognition to the e xI s t ence of 
temporary employment 
Qui. does it prejudice 
application by Member States __ol 
their laws concerning the hiring 
out of workers and. 
employment businesses temporary 
lu 
undertakings not establIshed Ln 
their territory but operating 
therein In the framework of the 
provision of services; 
Whereas this Directive shall 
affect neither the agreements 
concluded by the Community wjth 
third countries nor t h e laws of 
Member States concerning the 
access to its or their territory 
of third-country providers of 
services: whereas this Directive 
is also without prejudice to 
national laws relating to the 
entry, residence and acces s to 
Not foreseen workers; 
Whereas competent authorities in 
different Member States must 
cooperate with each other in tHa 
appl Icatlon o_f this Pi recti VOL 
provide 
n the whereas Member States must 
for appropriate remedies. 
event of failure to comply 
this Directive; with 
Whereas five years after the date 
set for the implementation of this 
Directive. the Commission must 
review Its operation with a view 
to proposing, where necessary, the 
adequate amendments. 
HAS ADOPTED THIS DIRECTIVE 
Article 1 
This Directive shall apply to 
undertakings, regardless of the 
State in which they are 
established, which exercise their 
activities In the framework of 
the provision of services within 
the meaning of the Treaty. Article 1 
This Directive shall apply to 
employment relationships carried 
out In the framework of Ihe 
seiLvJses reietred to 
the provision of 
Article whether^ 
undertaking providing them Is 
established In a Member State or 
In a non-Member country. 
Article 2 
This Directive applies to the 
extent that an undertaking 
referred to in Article 1: 
(a) in the course of carrying out Article 2 
(b) a contract for 
services posts a 
the territory of 
State on behalf of 
the direction 
undertaking; or work or 
worker to 
a Member 
and under 
of that 
being a temporary employment 
business places a worker with 
a user undertaking 
established or having a place 
of business in a Member 
State, In so far as there is 
an employment relationship 
between the temporary 
employment business and the 
worker during the period of 
posting; or, 
(c) places a worker with one of 
Its establishments, or with 
another undertaking located 
in a Member State, in so far 
as there Is an employment 
relationship between the 
former undertaking and the 
worker during the period of 
post ing. 1. Unchanged 
(a) Unchanged 
(b) Unchanged 
(c) places a worker with one of 
its establishments or with 
another undertaking carrying 
out work in a Member State, in 
so far as there is an 
employment relationship 
between the former undertaking 
and the worker during the 
period of posting. 
Article 3 Article 3 
Member States shall see to it 
that, whatever the law 
applicable to the employment 
relationship, the undertaking 
does not deprive the worker of 
the terms and conditions of 
employment which apply for 
work of the same character at 
the place where the work is 
temporarily carried out, 
provided that: 1. Member States shall see to it 
that, whatever the law applicable 
to the employment relationship, 
the undertaking referred to In 
Article 2 does not deprive the 
worker of the terms and conditions 
of employment which apply for work 
of the same character at the place 
where the work Is temporarily 
carried out, provided that: 
(a) they are laid down by laws, 
regulations and 
administrative provisions, 
collective agreements or 
arbitration awards, covering 
the whole of the occupation 
and industry concerned 
having an "erga omnes" 
effect and/or being made 
legally binding in the 
occupation and industry 
concerned, and (a) they are laid down by laws, 
regulations and 
administrative provisions or 
by collective agreements or 
arbitration awards within 
the meaning of par; 
(b) they concern the following 
matters: (b) they concern the following 
matters : 
(I) maximum daily and weekly 
hours of work, rest 
periods, work on Sundays 
and night work; (I) maximum dally and weekly 
hours of work, rest 
periods, work on Saturdays 
and Sundays, night work 
and shift work; 
(ii) minimum paid holidays; 
(ill) the minimum rates of pay, 
including overtime rates 
and allowances, but 
excluding benefits 
provided for by private 
occupational schemes; (II) public holidays and 
minimum paid hoiidays 
(ill) the minimum rates of pay, 
including overtime rates 
and a Ilowances; 
(Iv) the conditions of hiring 
out of workers, in 
particular the supply of 
workers by temporary 
employment businesses; 
(v) health, safety and hygiene 
at work; (iv) unchanged 
(v) unchanged 
>f3 
(vi) protective measures with 
regard to the working 
conditions of pregnant 
women or women who have 
recently given birth, 
children, young people and 
other groups enjoying 
special protection; (vl) unchanged 
(vii) equality of treatment 
between men and women and 
prohibition of 
discrimination on the 
grounds of colour, race, 
re Iigion, opinions, 
national origin or social 
background. (vll) equality of treatment 
between men and women and 
prohibition of 
discrimination on the 
grounds of colour, race, 
re Iiglon, opinions, 
national origin, social 
background or sexual 
orientation. 
Paragraphs Kb) (ii) and (ill) 
shall not apply to employment 
relationships referred to In 
Article 2 when the length of 
the posting of the workers is 
less than three months, within 
a reference period of one year 
from the beginning of the 
posting. In calculating the 
three-month period, account 
should be taken of any 
previous periods for which the 
post has been filled by a 
posted worker. Paragraph Kb) (ii) and (IN) 
shall not apply to employment 
relationships referred to in 
Article 2 when the length of 
the posting of workers is less 
than one month. within a 
reference period of one year 
from the beginning of the 
posting. In calculating the 
one-month period, account shaI I 
be taken of any previous 
periods for which the post has 
been filled by a posted worker. 
3. Not foreseen 3. Paragraph 1 
applicatlog. 
condltIons 
provided 
IJS ._wJiiclL 
favourable to workers. _JSha! I - no i_prevent 
of the terms and 
employment 
^1M law 
axe___jnore. ef__ 
for by 
4. Not foreseen 4. For the purposes of paragraph 1 
point XajL collectIvfl 
agreements -OJL ar bit rat, ton awards mean 
observed by those which must ba 
a I I undertakings In 
the geographical area and In 
ibfi profession or industry concerned. In the absence thereof. Member States may 
nclude those collectlve 
agreements or awards which are 
general lv applicable in the 
area or In the profession or 
Industry In question, provided 
that their application to the 
undertaking referred to In 
Article 2 ensures eeualltv of 
treatment on matters Itemised under paragraph ] point ihl 
between that undertaking and 
national-level undertakings 
being In a similar position. 
Article 4 Article 4 
Not foreseen 
2. Not foreseen 1• Member States shall provide for 
coopérât Ion between pub I ic 
authorities in matters relating to 
the application of this Directive. 
To this end they shall designate 
liaison offices. The relevant 
details shall be notified to the 
other Member States and to tM. 
CommissIon. 
2. The assistance referred to In 
paragraph 1 shall consist LQ 
particular In replying to any 
reasoned recuest 10JL 
information concerning the 
working conditions applicable 
to posted workers In accordance 
with Article 3 and the cross-
border supply ol workers. 
including apparent abuses ox 
possible cases of unlawful 
activities. cross-front ier 
Mutua administrât ive 
assistance shall be provided 
free of charge 
3. Not foreseen Member states shall ensuo 
official information on. 
collective agreements which ara 
generally applclable within the 
meaning oj Article ai4j_ia 
PUb) Ished fey. § competent 
authority and read LLLY 
available to Ite undertaking 
referred to Ln Article 2^ 
Fal M no sjucj] Information the 
Undertaking In Question shall 
not _fee_ bound Jtf-the 
abovementloned collectlve 
agreements. 4< 
Article S 
Not foreseen Article S 
Member States shaJ! provide for 
appropriate remedies in the event 
o_f fal lure to Cpmp 1 y with this 
Directive and In particular shall 
ensure that adeouate procedures 
exist at the. suit of workers 
and/or their representatives for 
the enforcement of obligations 
under this DirectIve 
Article 4 Article 6 
Member States shall bring into 
force the laws, regulations and 
administrative provisions 
necessary to comply with this 
Directive by 31 December 1992 at 
the latest. They shall 
Immediately inform the 
Commission thereof. Member States shall bring into 
force the laws, regulations and 
administrative provisions 
necessary to comply with this 
Directive iw£ years after Its 
adopt Ion at the latest. They 
shall immediately Inform the 
Commission thereof. 
s» When Member States adopt these 
provisions, these shall contain 
a reference to this Directive, 
or shall be accompanied by such 
reference at the time or their 
official publication. The 
procedure for such reference 
shall be adopted by Member 
States. Unchanged 
Article 7 
Not foreseen Article 7 
Five years after tnfi Period 
referred to in Artlde 6 Ulft 
Commission shall review the 
operation of this Directive with a 
view to proposing. where 
necessary, suitable amendments. 
Article S 
This Directive is addressed to 
the Member States. Article 8 
This Directive 
Member States. Is addressed to the 
.A t 
ISSN 0254-147Î 
CGM(93)2?5 final 
sr* 
EN 
Catalogue number : CB-CO-93-256-EN-C 
ISBN 92-77-55945-4 
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