P6_TA(2006)0463

Posting of workers

European Parliament resolution on the application of Directive 96/71/EC on the posting of workers (2006/2038(INI))

The European Parliament,

- having regard to 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 [1] (the Posting of Workers Directive),

- having regard to the Commission communication on the implementation of Directive 96/71/EC in the Member States (COM(2003)0458),

- having regard to the Commission communication entitled, Guidance on the posting of workers within the framework of the provision of services (COM(2006)0159) (Guidance),

- having regard to the Commission's services report on the implementation of Directive 96/71/EC(SEC(2006)0439) (Services Report),

- having regard to its resolution of 15 January 2004 on the implementation of Directive 96/71/EC in the Member States [2],

- having regard to Articles 27 and 34 of the Charter of Fundamental Rights of the European Union,

- having regard to the Migrant Workers (Supplementary Provisions) Convention C143 of the International Labour Organization,

- having regard to Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties [3],

- having regard to the judgments of the Court of Justice of the European Communities of 9 August 1994 in Case C-43/93, Vander Elst [4], of 23 November 1999 Joined Cases C-369/96 and 376/96, Arblade [5], of 25 October 2001 in Joined Cases C-49/98, C-50/98, C-52/98, C-54/98, C-68/98 and C-71/98, Finalarte [6], of 7 February 2002 in Case C-279/00, Commission v Italy [7], of 12 October 2004 in Case C-60/03, Wolff & Müller GmbH [8], of 21 October 2004 in Case C-445/03, Commission v Luxembourg [9], and of 19 January 2006 in Case C-244/04, Commission v Germany [10],

- having regard to Council Directive 91/533/EEC of 14 October 1991 on an employer's obligation to inform the employees of the conditions applicable to the contract or employment relationship [11],

- having regard to Rule 45 of its Rules of Procedure,

- having regard to the report of the Committee on Employment and Social Affairs and the opinion of the Committee on the Internal Market and Consumer Protection (A6-0308/2006),

A. whereas the Posting of Workers Directive has two important objectives, which are to guarantee the free movement of persons and services whilst ensuring that posted employees are subject to the terms and conditions related to minimum rates of pay, working conditions and health and safety of the host Member State, pursuant to Article 3 of the Posting of Workers Directive; whereas this is an important tool for ensuring fair treatment,

B. whereas the terms and conditions set out in Article 3 of the Posting of Workers Directive should be regarded as minimum standards only; whereas Article 3(7) of the Posting of Workers Directive provides that the conditions set out in paragraphs 1 to 6 of Article 3 do not prevent the application of terms and conditions of employment which are more favourable to workers,

C. whereas under Article 2(2) of the Posting of Workers Directive, it is incumbent on the host country to define what constitutes a worker; whereas the above-mentioned Commission's Services Report confirms that the de facto labour situation in the host country is the decisive criterion in this connection,

D. recalling that in its position of 16 February 2006, Parliament deleted Articles 24 and 25 from the proposed directive on services in the single market [12],

E. whereas in the Wolff & Müller case, the Court of Justice held that the host country's measures to prevent unfair competition, which guarantee that posted employees benefit from the minimum standards set out in Article 3 of the Posting of Workers Directive, are justified, and that such targeted protection measures constitute a justified restriction on the freedom to provide services,

F. whereas in Wolff & Müller the Court of Justice held that there is not necessarily a contradiction between the freedom to provide services and the upholding of fair competition on the one hand and ensuring workers' protection on the other,

G. whereas the equal treatment principle in the Posting of Workers Directive cuts both ways, guaranteeing, on the one hand, the equal treatment of undertakings in the context of the freedom to provide services, and, on the other, under Article 3, the equal treatment of posted employees under the locally applicable minimum terms and conditions of employment,

H. whereas the Commission's Guidance calls for measures to prevent the minimum protection standards and rights from being circumvented to the disadvantage of the posted workers,

I. whereas the very small number of complaints received by the Commission relating to the implementation of the Posting of Workers Directive and the limited number of infringement procedures brought by the Commission highlight the fact that people are unaware of their rights under the directive and that it is therefore failing to achieve its aims,

J. whereas the parties to collective wage agreements may have a major role to play in the successful implementation of the Posting of Workers Directive, and whereas boosting the role of the social partners and greater cross-border cooperation would accordingly represent a decisive step towards achieving the desired equality; whereas, however, in many countries the majority of workers are not members of trade unions and it is often this group of non-affiliated workers that receives the least information about its rights and obligations,

K. whereas it would be appropriate for the social partners in those Member States where the directive is implemented through collective agreements to gain direct access to information about the posting companies so that they can exercise the supervision which in other Member States is subject to authorities that have such access to company information,

L. whereas, in cases where bilateral or trilateral agreements between or among Member States, and between or among the parties to collective agreements, accord mutual recognition to national industrial safety standards and working conditions, the circumvention of national standards has successfully been prevented, and whereas this situation has also been improved thanks to cooperation between liaison offices and the exchange of information between trade unions,

M. whereas the Posted Workers Directive is still needed to provide legal certainty for posted workers and the businesses concerned, and whereas the Commission needs to take an active position to make cooperation between the Member States, their liaison offices and employment inspectorates more effective and efficient, particularly to counteract unfair competition and social dumping,

N. whereas the EU-15 Member States undertook, in a preferential clause in the Accession Treaty, not to treat the nationals of the ten new Member States less favourably, as regards free movement, than thirdcountry nationals; whereas this is only possible if the residence of the third-country nationals is known to the relevant authorities; whereas host Member States may not impose additional conditions on posted workers from third countries if they have been lawfully employed by a service provider established in a Member State,

1. Notes that the Commission, in its Guidance, recognises both the social objective of the Posting of Workers Directive and the full responsibility of the host country to put that objective into practice by guaranteeing the protection and rights of all employees temporarily posted abroad; notes that the Commission calls on Member States to assume this responsibility while guaranteeing the company rights under Article 49 of the EC Treaty to provide cross-border services;

2. Points out that the difficulties raised by the application of the Posting of Workers Directive are related partly to the fact that it has not been transposed by all the Member States, and calls on the Commission to keep Parliament informed of the progress of infringement proceedings against defaulting Member States; and also draws attention to the difficulties of implementing the Posting of Workers Directive as a result of differences of interpretation of certain key concepts, such as worker, minimum salary, and subcontracting, the difficulty of both workers and small businesses in obtaining information, and the difficulty of monitoring compliance with the directive;

3. Notes that the Commission's Guidance strives towards the better implementation of the Posting of Workers Directive with the aim of reducing the existing barriers in the Members States, which severely obstruct the effective posting of workers; notes however, that the Commission's legal interpretation in some cases goes beyond that established by the case law of Court of Justice; notes that the Commission, in the conclusions of its Guidance, recognises the need for inspection measures to be more clearly defined and access to information to be improved; expects appropriate mandatory remedies for the enforcement of the directive to be adopted, however;

4. Calls on the Commission to submit a proposal for a directive on the conditions required for the crews of vessels providing regular passenger and freight ferry services between Member States;

5. Notes that one of the key practical difficulties in the successful implementation of the Posting of Workers Directive is the issue of double posting and that better coordination between Member States and enhanced notification procedures are required to counter this;

6. Notes the observation in the Commission's Guidance that the Posting of Workers Directive is not enforced in practice in some Member States, and calls on the Commission to take appropriate measures in this connection;

Employment relationships and the definition of "employee"

7. Supports the analysis in the Commission's Guidance that the Posting of Workers Directive is not the appropriate context within which to address concerns with regard to the legal situation of self-employed workers; concludes from reports based on actual practice that sham self-employment is a strategy commonly used to circumvent the minimum standards of Article 3(1) of the Posting of Workers Directive;

8. Calls on the Member States, with reference to the Perulli study on Economically dependent/quasisubordinate (parasubordinate employment: legal, social and economic aspects), to adjust their definitions of "employees" so that a clear distinction can be made between the status of "entrepreneurs", comprising economically independent businesses working for several mutually independent undertakings on the one hand, and "employees", working in an organisationally and economically dependent manner under supervision and for remuneration on the other;

9. Notes that the Court of Justice has, on several occasions, formulated detailed criteria that enable a distinction to be drawn between "workers" and "self-employed persons"; considers that, taking account of the Member States' competence for determining status with regard to employment law, the Commission should ensure that a distinction be drawn in compliance with the guidelines laid down by the Court of Justice; calls on the Commission to initiate negotiations with the Member States as a matter of urgency, with the aim of establishing transparent and consistent criteria for determining the status of "workers" and "selfemployed persons" in employment law;

10. Points out that proving that a sham self-employed person is a de facto employee is at present a difficult and lengthy process and that the posted worker may have completed the job and returned home by the time the necessary evidence has been established;

11. Calls for exchanges to be encouraged between Member States' employment inspection services to enable a joint campaign against sham self-employment, particularly by exchanging information;

12. Notes that existing case law recognises the right of the host Member State to require the documents needed to verify compliance with the employment conditions laid down in the Posting of Workers Directive; takes the view that these requests for documents should not be confined merely to time sheets or documents concerning health and safety conditions at the workplace, provided that the requests are proportionate; points out that the Member State in which a company normally operates (the sending state) is required to provide the host state with form E101, proving that the posted worker is affiliated to the sending state's social security system;

13. Notes that differences in employment conditions may arise in Member States that have not introduced provisions under Article 3(9) of the Directive to ensure that posted temporary agency workers benefit from the conditions that apply to temporary workers in the Member State where the work is carried out; calls on the Member States concerned to take measures to end such discrimination;

Securing terms and conditions of work pursuant to Article 3 of the Posting of Workers Directive

14. Repeats that the Posting of Workers Directive lays down the minimum essential rules for the protection of workers and employment applicable to posted workers on their territory and does not prevent the Member States from imposing other labour and employment conditions laid down in collective agreements declared to be of general application, nor from imposing other labour and employment conditions where these constitute provisions of public policy (ordre public); opposes a restrictive interpretation of the concept of "provisions for public policy" by the Commission, in particular by enacting as a regulation the provisions of the Convention on the law applicable to contractual obligations of 19 June 1980 (COM(2005)0650);

15. Notes that in many Member States, trade unions have a role as partners in collective negotiations, and that the Commission has stated in proceedings before the Court of Justice [13] that the specific form of some Nordic collective negotiations is in accordance with the EC Treaty and with the Posting of Workers Directive;

16. Considers that, in order to ensure the proper application of the Posting of Workers Directive, the availability of a person who could act as a representative of the posting company is necessary so as to enable the rules and conditions of the Posting of Workers Directive to be implemented;

17. Notes that, in the absence of special collective agreements as defined in Article 3(8) of the Posting of Workers Directive, national legislation regarding workplace and employment conditions, including statutory minimum wage provisions, shall apply;

18. Notes that all measures that inform workers about their rights, including the wages to which they are entitled, contribute to the successful implementation of the Posting of Workers Directive; considers that information on and awareness of the rights and entitlements that the directive confers must be urgently improved for all parties concerned; invites the Commission actively to support these measures; welcomes, therefore, the Commission's initiative of a website dedicated to the posting of workers, which contains direct links to relevant national legislation; points out that the information should be provided in appropriate languages;

19. Believes that the effective implementation of the Posting of Workers Directive will not be achieved by a huge bureaucracy but, on the contrary, by increased information and simple procedures that enable people to become aware of their rights; calls, therefore, on the European Foundation for the Improvement of Living and Working Conditions (Eurofound) in Dublin to develop guidelines on best practice in the preparation of information for employees and employers;

20. Underlines the importance of retaining the right for the host Member States to determine the minimum wage pursuant to Art 3(1) of the Posting of Workers Directive but calls on those Member States that set minimum wage rates by collective agreement, to facilitate access to information on the levels of minimum wage by undertakings that intend to seek establishment in another Member State;

21. Deplores the lack of cooperation between the various authorities, both at European and national level, with the sectoral social partners who play a very important role and expects the Commission to stimulate cooperation between the national liaison offices and the sectoral social partners concerned; considers that at European level there is an urgent need for cooperation between Commission departments, including the group of experts and the sectoral social partners, on the question of content;

22. Calls for effective measures to protect workers who report breaches of rights in their place of work;

23. Notes that participation in holiday pay funds under general collective agreements constitutes additional protection for posted workers in some Member States and that direct payment to workers is proportionate in accordance with the Court of Justice's judgment in Finalarte: in other words, posting undertakings may be required to pay contributions into holiday pay funds, which must also be opened to posted workers so that they, too, benefit therefrom; considers it necessary for posted workers to be given comprehensive information about the rules of such holiday pay funds;

24. Notes the development of information tools with explanations of conditions applying to posted workers by the social partners in certain sectors; calls on Member States to promote the gathering of such information in other areas of economic activity in a bid to facilitate access to this vital information by workers and employees alike and improve compliance with the Posting of Workers Directive;

25. Highlights the fact that country fact sheets, which will enrich the content of the Commission's Guidance, are currently being produced by experts; recommends that the Commission's Guidance take such contributions fully into account to bridge the information gap;

26. Notes that public authorities have a clear responsibility and must make a significant contribution towards stemming unfair competition by awarding contracts only to those firms that comply with all the provisions applicable in the host country in respect of Article 3 of the Posting of Workers Directive; refers in this connection to Article 55 of the Public Procurement Directive [14], under the terms of which contracting entities may demand details relating to employment protection and working conditions if tenders appear to be abnormally low in relation to the goods, works or services;

27. Considers that companies that post workers and general undertakings, if contracts are awarded to posted sub-undertakings, should be regarded as jointly responsible for the posted workers' living conditions in the host country, to ensure that they are decent conditions;

28. Refers to the Wolff & Müller case, in which the Court of Justice held that a legal system of general liability of contractors contributes to ensuring the protection of workers and is therefore an overriding reason in the general interest; calls on those Member States that do not yet possess any such national legislation to close this loophole without delay; calls on the Commission to regulate joint and several liability for general or principal undertakings, in order to deal with abuses in the subcontracting and outsourcing of cross-border workers and to set up a transparent and competitive internal market for all companies;

Guaranteeing effective supervision

29. Notes that under existing case law the national authorities may take appropriate measures to ensure that compliance with minimum requirements of Article 3 of the Posting of Workers Directive is monitored; supports the Commission conclusion to the effect that the host Member State should be able to require a prior declaration by the service provider to enable it to verify compliance with the employment conditions;

30. Considers that joint action to supervise compliance with the rules has significant administrative advantages over bilateral contacts between Member States; calls, therefore, on the Commission to coordinate action by Member States to supervise compliance with the directive by host country undertakings;

31. Notes that measures pursuant to Article 5 of the Posting of Workers Directive are effective only if penalties can be enforced; notes that, in order for this to happen, it must be possible for fines to be served on a representative of the undertaking recognised as such under national law, since in accordance with the principle of the mutual recognition of penalties, procedures for the collection of fines can only be pursued if a prosecution has been duly initiated in the host country;

32. Notes the comment by the Commission concerning the ineffectiveness of the national liaison offices; notes also that the objective to make the national liaison offices operational is one of the most basic priorities of the Commission and the Member States and that the functioning of the national liaison offices is a responsibility shared between the Commission and the Member States;

33. Strongly supports the Commission's call on the Member States to provide the liaison offices and the inspection authorities with the equipment and resources needed to enable them to respond effectively to requests for information and cooperation; calls on the Member States to set up proper cross-border cooperation between inspection authorities; requests the Commission actively to support close cooperation between Member States by improving the information available on its website and an obligatory contact point for posted workers with the host country's social partners and by subsequently creating a permanent European structure for cross border cooperation;

34. Notes that the Commission will adopt, within 12 months of the adoption of its Guidance, a report that will describe the situation in all Member States with regard to all aspects mentioned in the Guidance, in order to evaluate progress made on these issues; insists that this report should also cover the efforts made to resolve the legal issues referred to in the Commission's Services Report; requests that the Parliament be properly consulted on this report in order to decide whether a revision of the Directive is necessary;

35. Calls on the Commission to submit biennially to the Parliament and the Council concrete data on the transposition of the Posting of Workers Directive at national level, focusing on instances of infringements of the directive;

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36. Instructs its President to forward this resolution to the Council, the Commission, the governments of the Member States and the European Economic and Social Committee.

[1] OJ L 18, 21.1.1997, p. 1.

[2] OJ C 92 E, 16.4.2004, p. 404.

[3] OJ L 76, 22.3.2005, p. 16.

[4] [1994] ECR I-3803.

[5] [1999] ECR I-8453.

[6] [2001] ECR I-7831.

[7] [2002] ECR I-1425.

[8] [2004] ECR I-9553.

[9] [2004] ECR I-10191.

[10] [2006] ECR I-885.

[11] OJ L 288, 18.10.1991, p. 32.

[12] Texts Adopted, P6_TA(2006)0061.

[13] Case C-341/05, Laval, proceedings pending.

[14] Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ L 134, 30.4.2004, p. 114).

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