EN Official Journal of the European Union C 17/67

Opinion of the Committee of the Regions on ‘The posting of workers in the framework of the provision of services’

2013/C 17/12

THE COMMITTEE OF THE REGIONS

— notes that the phenomenon of posting workers in the EU has grown in recent years: emphasises also that the number of posted workers varies greatly both in terms of Member States of origin and of host Member State of the posting;

— considers, in light of the above, that there is now a need to adopt a Community instrument on the posting of workers in the framework of the provision of services, that both harmonises enforcement of its implementation and addresses the fundamental issues that have arisen from the judgments of the Court of Justice of the European Union, which have led to a restrictive interpretation of Directive 96/71/EC;

— regrets that the European Commission's current proposal does not review or rework Directive 96/71/EC and is thus not able to deal with all of the substantive issues raised by case-law, especially those related to the extension of collective agreements, the extension of the "core set" of applicable rules, use of a host country's more favourable provisions and respect for fundamental social rights such as the right to strike;

— proposes to ensure greater social responsibility on the part of employers and sub-contractors by introducing a provision limiting the number of sub-contracting levels;

— welcomes the European Commission's withdrawal on 11 September 2012 of the proposal for a regulation (Monti II) on reconciling the right to strike with the economic freedoms of the European Union on the basis of the flexibility clause, in the context of the completion of the internal market (Article 352 TFEU);

Rapporteur Alain HUTCHINSON Member of the Brussels-Capital Regional Parliament Reference documents Proposal for a Directive of the European Parliament and of the Council on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services COM(2012) 131 final and Proposal for a Council Regulation on the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services COM(2012) 130 final

I. POLICY RECOMMENDATIONS

THE COMMITTEE OF THE REGIONS

1. supports the European Commission's initiatives aimed at strengthening the social dimension of the internal market in accordance with Article 9 of the Lisbon Treaty, which ensures that the social dimension is taken into account in all European Union policies;

Current developments in the posting of workers

2. notes that the phenomenon of posting workers in the EU has grown in recent years: according to the European Commission, one million workers are posted each year by their employer from one Member State to another; emphasises also that the number of posted workers varies greatly both in terms of Member States of origin and of host Member State of the posting;

3. observes that it is the most labour-intensive sectors that request the most posted workers. The construction and public works sector has historically employed the highest number of posted workers (24% of postings in Europe, according to European Commission data), the vast majority of these workers being labourers;

4. emphasises that wage differences between countries can be significant;

The territorial dimension of the posting of workers

5. draws attention to the geographical concentration of postings specific to certain sectors; cross-border regions account for a substantial share of prior declarations of posting;

6. considers that the regions, particularly border regions, should play a greater role in terms of cooperation between public authorities from different countries, to ensure that these postings are carried out in a way that respects people's rights and dignity on the one hand, and to exchange good practices on the other. The regions concerned should thus be given the appropriate means to fulfil their tasks;

7. emphasises that the territorial scope of collective labour agreements is a prerequisite for their application to posted workers within the meaning of Directive 1996/71/EC. The competent authorities must consequently be able to inform service providers and workers posted to these regions from another country of the content of such agreements and ensure their implementation;

The need for better enforcement of the rules on posting workers

8. underlines that these postings of workers often take place in a way that disregards social security and labour regulations and tax laws. Ways to circumvent legal obligations include: — hiring solely for the purpose of the posting; front companies that make it possible to register an address in the country that is supposedly the State of origin of the posting, — the "bogus self-employed", who do not pay any social contributions and are not covered by the working and wage conditions of the host country, as laid down in Directive 96/71/EC, which applies only to employees, — the practice adopted by some large companies of establishing a platform for posted workers, setting up a subsidiary in a State with financially advantageous tax and social regulations and posting workers there, — the wrongful use of postings for what are actually permanent jobs, — failure to provide a prior declaration of posting; underlines that studies show that there are a number of cases of posting of workers where the legally established minimum employment and working conditions in the host country are not complied with and attempts are made to circumvent rules on social security and taxation;

9. points out that, in the light of the vast differences noted by the Commission in national control measures across Member States and/or third countries included via agreements in the free movement of persons, common control standards are particularly important. However, the powers of national authorities to carry out checks must not be restricted in this context;

10. considers, in light of the above, that there is now a need to adopt a Community instrument on the posting of workers in the framework of the provision of services, that both harmonises enforcement of its implementation and addresses the fundamental issues that have arisen from the judgments of the Court of Justice of the European Union referred to above, including the Viking (C-438/05), Laval (C-341/05) Rüffert (C-346/06) and Luxembourg (C-319/06)) cases, which have led to a restrictive interpretation of Directive 96/71/EC;

11. therefore welcomes the plan to adopt a proposal for a directive in this area, but regrets that the European Commission's current proposal does not review or rework Directive 96/71/EC and is thus not able to deal with all of the substantive issues raised by the judgments referred to above, especially those related to the extension of collective agreements, the extension of the "core set" of applicable rules, use of a host country's more favourable provisions and respect for fundamental social rights such as the right to strike;

12. draws attention to the fact that the proposal for a directive submitted for the Committee's consideration confines itself to setting out the measures and mechanisms aimed at improving and strengthening the application and enforcement of the provisions of Directive 96/71/EC, which has to date proven inadequate for the purpose of combating social dumping and fraud;

Fundamental rights should not be subsidiary to economic freedoms

13. welcomes the European Commission's withdrawal on 11 September 2012 of the proposal for a regulation (Monti II) on reconciling the right to strike with the economic freedoms of the European Union on the basis of the flexibility clause, in the context of the completion of the internal market (Article 352 TFEU);

14. shares the view that the right to strike should not be subsidiary to the additional goal of completing the internal market, as it is an inviolable principle enshrined in the Charter of Fundamental Rights. Furthermore, the "lex specialis", as defined in Article 153 of the Treaty, explicitly excludes the right to strike from the scope of Community legislation;

15. believes, however, that the withdrawal of the proposal for a regulation leaves open a number of issues raised by rulings of the Court of Justice. Therefore calls for a new legislative proposal explicitly guaranteeing that fundamental social rights (right to collective bargaining, right to industrial action) cannot be restricted by economic freedoms (freedom of establishment and freedom to provide services) and that economic freedoms cannot be a justification for bypassing national laws and practices in social matters;

16. notes that 12 national parliaments (19 votes) have for the first time deployed the early warning mechanism against the Commission in relation to this proposal for a regulation on the grounds that these proposals infringe national competences and the principles of subsidiarity and proportionality;

17. considers, however, that there is a need for action by the EU legislator to clarify the relationship between "collective action" and freedom of establishment and freedom to provide services where there are genuinely transnational issues, for example in the case of a business with branches in several Member States;

18. is thus of the view that if the Commission had maintained its proposal for a regulation, in the light of reasoned opinions adopted by national parliaments as well as positions expressed at regional level through the CoR, the latter could have considered taking the necessary steps to lodge an ex-post appeal against it for breaching the principle of subsidiarity in terms of both the choice of legal basis and insufficient evidence of the added value of EU action in this area; points out to the Commission that the CoR will continue to monitor compliance with the subsidiarity principle in these matters very closely;

19. considers that the proposal on the enforcement of Directive 96/71/EC remains entirely valid and warrants the Committee's full attention;

20. considers that Directive 96/71/EC enshrines fundamental rights, the implementation of which should be facilitated, that these rights concerning human dignity have furthermore been consolidated with the entry into force of the Treaty of Lisbon, which now makes the Charter of Fundamental Rights legally binding, and that these rights should not be subject to the rationale of economic freedoms;

21. therefore regrets that the Commission proposal has not led to a debate on the choice of legal basis, with the selected basis being "the provision of services" (Article 62 TFEU, in conjunction with Article 53), which means that issues relating to the application of Directive 96/71/EC are again addressed in the context of economic freedoms and that the Committee of the Regions, the European Economic and Social Committee and the social partners are not fully involved in drawing up a text of direct concern to them;

The proposal for a directive should take account of all situations that involve posting

22. nevertheless supports the Commission's current proposal for combating social dumping and fraud in the posting of workers and for putting in place mechanisms to enforce the application of working conditions and wages for posted workers. However, the proposal under review does not address this objective, and must therefore be substantially improved;

23. considers that situations involving workers being posted from countries outside the European Union, which are included in Directive 96/71/EC, warrant a mention in the proposal. In addition, the directive should, as soon as possible after adoption, be included in the body of EEA law and the agreement with Switzerland on the free movement of persons;

24. is aware of existing limitations in enforcement, such as language barriers, monitoring short-term postings, difficulties in obtaining information in another Member State, the complexity of imposing sanctions and the lack of resources to monitor national authorities;

25. is therefore very much in favour of the adoption of the draft directive's provisions aimed at eliminating these limitations as far as possible and at strengthening mechanisms to implement enforcement measures and sanctions to ensure not only the efficiency of Directive 96/71/EC's implementation but also its effectiveness. At the same time, the system of cross-border enforcement of judgments must be set out more clearly, in line with the current principles of international cooperation and the mutual recognition and enforcement of judgments, and take account of the procedural rights of the individual;

26. considers that, in case of non-compliance with Directive 96/71/EC or with this directive, for example if the worker is not actually posted, the undertaking concerned shall be covered by the relevant legislation applicable in the country of service provision. All workers concerned shall be deemed to be exercising their freedom of movement in line with Article 45 TFEU.

Social responsibility: a key provision of the proposal for a directive, which should be complemented

27. welcomes the provisions dealing with the social responsibility of the employer and the subcontractor, especially in the construction sector, and welcomes the fact that eight EU Member States have already adopted this measure for social responsibility (Austria, Germany, Spain, Finland, France, Italy, the Netherlands and Belgium). However, this is not enough to effectively prevent abuse; rather, any company which abuses posted workers or benefits from abuse should be held to account;

28. considers that it would be useful to add to this provision on social responsibility with a provision to limit the number of sub-contracting tiers, which would reduce the risk of abuse in the posting of workers. This would furthermore provide a more accurate way of listing subcontractors;

The proactive role of social stakeholders in enforcing legislation

29. endorses the provisions put forward by the European Commission to give stakeholders from trade unions and the social partners a key role in labour inspectorates. At the same time, however, differences between systems in individual states must be taken into consideration;

30. believes that this role should be strengthened by giving the competent bodies responsible for implementation rights in the Member States to exchange monitoring practices in order to pool their efforts more successfully in this area;

31. considers, moreover, that reference should also be made to employees' representatives, especially members of European Works Councils, in construction companies, in particular, as key players: on major projects, for example, coordination between representative bodies can also be a lever for providing information and warnings. These initiatives by employees' representatives are all the more valid, given that a high number of companies provide information on their policy of social responsibility (CSR);

The proposal's text requires clarification to ensure the successful implementation of its provisions

32. draws attention to the fact that national courts will play a major role in the day-to-day implementation of the proposed directive, that this must therefore contain clear and precise provisions so as not to create new doubts regarding the text's interpretation by different national courts and lead to a higher number of complaints to the Court of Justice of the European Union;

33. considers for these reasons that certain terms contained in the proposed directive should be clarified and clearly defined. For example, the conditions for posting workers must be clearly set out, so that the legal consequences of abuse are not at employees' expense. Another area which needs clarification is the use of two different terms in some language versions to express the concept of "temporarily posted", for example, use of the term "effective", which should be linked to that of "effectiveness" and even the concept of a "core set of […] conditions of work", which does not appear in Directive 96/71/EC;

34. for the same reasons, draws attention to the proposal's preamble (paragraph 5), which states that "the relationship between Directive 96/71/EC and Regulation (EC) No 593/2008 on the law applicable to contractual obligations […] need[s] to be further clarified", but offers no response to this call for clarification in the text of the proposal;

The need to dispel any confusion regarding application of the texts

35. considers that the proposal's preamble could consequently heighten confusion regarding the issue of the law applicable to employment contracts (would it be that of the country of origin or that of host country?). While it is true, as pointed out in paragraph 6 of the preamble, that the proposal does not directly address the law applicable under Article 8 of the Rome I Regulation, it should be recalled that the aim of the 1996 directive (Article 6 of the Rome Convention of 1980 at the time) was not to amend this provision either but to clarify the implementing conditions for mandatory rules within the meaning of Article 9 of the Rome I Regulation (Article 7 of the Rome Convention of 1980 at the time);

36. will ensure that the proposal for a directive does not alter the spirit or aim of Directive 96/71/EC;

37. believes that compliance by the tenderer with the provisions of Directive 96/71/EC should be a criterion when public or private contracts are awarded, and that it should be possible to exclude the tenderer concerned in the case of significant abuse, as is already the case;

38. endorses the Commission's commitment to harmonising Member State legislation on the cross-border enforcement of fines and administrative sanctions.

II. RECOMMENDATIONS FOR AMENDMENTS

Amendment 1

Preamble

First citation

Commission text CoR amendment Having regard to the Treaty on the Functioning of the European Union, and in particular Article 53(1) and 62 thereof, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 153(1)(b) 53(1) and 62 thereof,

Reason

Working and employment conditions are traditionally determined by collective bargaining and therefore by the autonomy of the social partners, who also play a key role in monitoring the application of the relevant Conventions. As a result, Article 153(1)(b), which explicitly refers to EU initiatives relating to working conditions, is the most appropriate legal basis. Furthermore, since this is a proposal for a directive on the enforcement of Directive 96/71/EC, which has its legal basis in "the provision of services", the Court of Justice's judgments on the choice of legal basis do not explicitly exclude the use of a more appropriate legal basis for adopting this proposal.

Amendment 2

Recital 3

Commission text CoR amendment 3) With respect to workers temporarily posted to carry out work in order to provide services in another Member State than the one in which they habitually carry out their work, 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 establishes a core set of clearly defined terms and conditions of work and employment which must be complied with by the service provider in the Member State to which the posting takes place to ensure the minimum protection of the posted workers concerned. 3) With respect to workers temporarily posted to carry out work in order to provide services in another Member State than the one State in which they habitually carry out their work, 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 establishes a core set of clearly defined terms and conditions of work and employment which must be complied with by the service provider in the Member State to which the posting takes place to ensure the minimum protection of the posted workers concerned.

Reason

This amendment is not merely semantic in nature; the aim is to ensure consistency with the concepts used in Directive 96/71/EC. [Translator's note: in order to improve legal certainty, the amendment seeks to replace the French term ‧provisoire‧ used in recitals 3 and 5 with ‧temporaire‧, both of which are rendered in English as ‧temporarily‧.]. Furthermore, the directive does not only cover postings between Member States, unlike the Commission proposal. If the scope of this proposal were so limited, it would depart from the intention of the 1996 legislator, which uses the term "in the territory of a Member State other than the State in which ..." (Recital 3, Directive 96/71/EC) and not "in another Member State", as in the current proposal for a directive, in order to take account of the phenomena of postings from third countries. For the sake of legal certainty, it would make sense to reiterate this principle in the recitals of the current proposal.

Amendment 3

Recital 6

Commission text CoR amendment 6) As is the case with Directive 96/71/EC, this Directive should not prejudice the application of the law which, under Article 8 of the Rome I Regulation, applies to individual employment contracts, or the application of Regulation No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems and Regulation No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems 6) As is the case with Directive 96/71/EC, this Directive should not prejudice the application of the law which, under Article 8 of the Rome I Regulation, applies to individual employment contracts, the mandatory provisions of the posting's host Member State, in accordance with Article 9 of the Rome 1 Regulation, or the application of Regulation No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems and Regulation No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems

Reason

This addition is important insofar as it helps clear up any confusion regarding the scope of Directive 96/71/EC and its relationship with private international law. Directive 96/71/EC does not directly concern the application of the law which under Article 8 of the Rome I Regulation applies to individual employment contracts, but expressly provides, in accordance with Article 9 of the Rome 1 Regulation, for the application of the mandatory provisions of the host country (irrespective of the law applicable to the contract) to posted workers. Not to emphasise this or state it clearly here could result in misunderstandings, entailing the risk of departing from the spirit and the letter of Directive 96/71/EC.

Amendment 4

Recital 14

Commission text CoR amendment Member States obligations to make information on terms and conditions of employment generally available and to provide effective access to it, not only to service providers from other Member States, but also to the posted workers concerned, should be further concretised. More detail should be provided regarding Member States' obligations to make information on terms and conditions of employment generally available and to provide effective access to it, free of charge, not only for service providers from other Member States, but also for the posted workers concerned.

Reason

In order to be accessible in practice, the information should be made available free of charge. Note: the amendment is consistent with an amendment to Article 5 of the draft directive.

Amendment 5

Article 1, new point 3

Commission text CoR amendment Article 1 Subject (…) Article 1 Subject (…) 3. This directive shall comply, with regard to the application and enforcement of the working and employment conditions of posted workers, with the provisions of Article 1(4) of Directive 96/71/EC, which states that: "Undertakings established in a non-member State must not be given more favourable treatment than undertakings established in a Member State";

Reason

This amendment is entirely justified if we accept that the proposed directive must not disturb the structure of Directive 96/71/EC; given that the legislator introduced Article 1(4) to avoid the risk of social dumping from countries outside the European Union. For the same reason, it is important to ensure that a strict application of Directive 96/71/EC is not confined to the posting of workers from one Member State to another, which would offer the opportunity for fraud or circumvention by non-EU countries. Member States should therefore be alert and take the steps needed to prevent any such circumvention of the law, which would represent a major shortcoming in the existing control system.

Amendment 6

Article 3(1)

Commission text CoR amendment Article 3 Preventing abuse and circumvention 1. For the purpose of implementing, applying and enforcing Directive 96/71/EC the competent authorities shall take into account factual elements characterising the activities carried out by an undertaking in the State in which it is established in order to determine whether it genuinely performs substantial activities, other than purely internal management and/or administrative activities. Such elements may include: a) the place where the undertaking has its registered office and administration, uses office space, pays taxes, has a professional licence or is registered with the chambers of commerce or professional bodies, b) the place where posted workers are recruited, c) the law applicable to the contracts concluded by the undertaking with its workers, on the one hand, and with its clients, on the other hand, d) the place where the undertaking performs its substantial business activity and where it employs administrative staff, e) the abnormally limited number of contracts performed and/or size of turnover realised in the Member State of establishment. The assessment of these elements shall be adapted to each specific case and take account of the nature of the activities carried out by the undertaking in the Member State in which it is established. Article 3 Preventing abuse and circumvention 1. For the purpose of implementing, applying and enforcing Directive 96/71/EC the competent authorities shall take into account factual elements characterising the activities carried out by an undertaking in the State in which it is established in order to determine whether it genuinely performs substantial activities, other than purely internal management and/or administrative activities. Such elements may include: a) the Member State where the undertaking exercises its main professional activity, measured as working time units per employee, and the place where the undertaking has its registered office and administration, uses office space, pays taxes, has a professional licence or is registered with the chambers of commerce or professional bodies, b) the place where posted workers are recruited, c) the law applicable to the contracts concluded by the undertaking with its workers, on the one hand, and with its clients, on the other hand, d) the place where the undertaking performs its substantial business activity and where it employs administrative staff, e) the abnormally limited number of contracts performed and/or size of turnover realised in the Member State of establishment. The assessment of these elements shall be adapted to each specific case and take account of the nature of the activities carried out by the undertaking in the Member State in which it is established. 2. In order to assess whether a posted worker temporarily carries out his or her work in a Member State other than the one in which he or she normally works, all factual elements characterising such work and the situation of the worker shall be examined. Such elements may include: f) the work is carried out for a limited period of time in another Member State; g) the posting takes place to a Member State other than the one in or from which the posted worker habitually carries out his or her work according to Regulation (EC) No 593/2008 and/or the Rome Convention; h) the posted worker returns or is expected to resume working to the Member State from which he/she is posted after completion of the work or the provision of services for which he or she was posted; i) travel, board and lodging/accommodation is provided or reimbursed by the employer who posts the worker, and if so, how this is done; as well as j) any repeated previous periods during which the post was filled by the same or another (posted) worker. All the factual elements enumerated above are indicative factors in the overall assessment to be made and may not therefore be considered in isolation. The criteria shall be adapted to each specific case and take account of the specificities of the situation. 2. The examination of these elements shall contribute to the definition of a posted worker in the host Member State, as provided for in Article 2(2) of Directive 96/71/EC of the European Parliament concerning the posting of workers in the framework of the provision of services; 3. In order to assess whether a posted worker temporarily carries out his or her work in a Member State other than the one in which he or she normally works, all factual elements characterising such work and the situation of the worker shall be examined. Such elements may include: f) the work is carried out for a limited period of time in another Member State; g) the posting takes place to a Member State other than the one in or from which the posted worker habitually carries out his or her work according to Regulation (EC) No 593/2008 and/or the Rome Convention; h) the posted worker returns or is expected to resume working to the Member State from which he/she is posted after completion of the work or the provision of services for which he or she was posted; i) the posted worker has a valid A1 form as proof of his or her social security coverage in the home Member State. The A1 form shall not be retroactive and must be provided from the beginning of the posting period and prior to any inspection; j) travel, board and lodging/accommodation is provided or reimbursed by the employer who posts the worker, and if so, how this is done; as well as k) any repeated previous periods during which the post was filled by the same or another (posted) worker. All the factual elements enumerated above are indicative factors in the overall assessment to be made and may not therefore be considered in isolation. The criteria shall be adapted to each specific case and take account of the specificities of the situation.

Reason

The amendment seeks to prevent the creation of companies whose activities are fictitious in the Member State of establishment simply in order to bypass the rules in terms of working conditions in the host Member State.

Article 2(2) of Directive 96/71/EC aims to ensure that posted workers from a given State (including non-EU States) are not considered to be self-employed and are thus not covered by the directive. A salaried worker working in the construction sector in country A would simply need to be reclassified as self-employed by his employer in country A, for the latter to be relieved from the obligations of the directive in Member State B to which the worker is posted. To prevent this type of fraud, the 1996 directive gives the country hosting the work (in this case Member State B) the discretion to define the concept of worker, and therefore the working relationship, in line with its domestic legislation. The only weakness in this legal arrangement lies in the difficulty of applying the principle thus established in practice: the list of elements contained in Article 4 will certainly provide a guideline making the practical application of Article 2(2) of Directive 96/71/EC easier.

Amendment 7

Article 3a

Commission text CoR amendment Sanctions for non-compliance In case of non-compliance with Article 3 of Directive 96/71/EC or relevant articles of this directive, an undertaking and its workers shall be covered by the relevant legislation applicable in the country of service provision, and all workers concerned shall be deemed to be exercising their freedom of movement within the Union in accordance with Article 45 TFEU. The host Member State may then request immediate proof that the workers concerned are receiving treatment equal to nationals of the host Member State for all terms and conditions of employment and related social rights in accordance with Article 45 TFEU.

Amendment 8

Article 5(1)

Commission text CoR amendment Member States shall take the appropriate measures to ensure that the information on the terms and conditions of employment referred to in Article 3 of Directive 96/71/EC which are to be applied and complied with by service providers are made generally available in a clear, comprehensive and easily accessible way at a distance and by electronic means, in formats and by web standards that ensure access to persons with disabilities and to ensure that the liaison offices or the other competent national bodies referred to in Article 4 of Directive 96/71/EC are in a position to carry out their tasks effectively. Member States shall take the appropriate measures to ensure that the information on the terms and conditions of employment referred to in Article 3 of Directive 96/71/EC which are to be applied and complied with by service providers are made generally available free of charge in a clear, transparent, comprehensive and easily accessible way at a distance and by electronic means, in formats and by web standards that ensure access to persons with disabilities and to ensure that the liaison offices or the other competent national bodies referred to in Article 4 of Directive 96/71/EC are in a position to carry out their tasks effectively.

Reason

In order to be accessible in practice, the information should be free of charge.

Amendment 9

Article 7(4)

Commission text CoR amendment The obligation laid down in paragraphs 1 and 2 shall not entail a duty on the part of the Member State of establishment to carry out factual checks and controls in the territory of the host Member State where the service is provided. Such checks and controls shall, if need be, be carried out by the authorities of the host Member State at the request of the competent authorities of the Member State of establishment, in accordance with Article 10 and in conformity with the powers of supervision provided for in the host Member State’s national law, practice and administrative procedures and which respect Union law The obligation laid down in paragraphs 1 and 2 shall not entail a duty on the part of the Member State of establishment to carry out factual checks and controls in the territory of the host Member State where the service is provided. Such checks and controls shall, if need be, be carried out by the authorities of the host Member State at the request of the competent authorities of the Member State of establishment, in accordance with Article 10 and in conformity with the powers of supervision provided for in the host Member State’s national law, practice and administrative procedures and which respect Union law.

Reason

This is to remove procedural brakes to the factual controls both in the Member State of establishment and in the host Member State.

Amendment 10

Article 9(1) introductory part

Commission text CoR amendment Member States may only impose the following administrative requirements and control measures: Member States may only impose In order to improve with the application of Articles 3 and 5 of Directive 96/71/EC, host Member States shall impose, as a minimum, the following administrative requirements and control measures:

Reason

Instead of putting forward maximum requirements as proposed by European Commission, it is suggested that minimum requirements be set. This reversal of logic is also consistent with the provisions of Article 12(3) as proposed by the Commission.

Amendment 11

Article 9(1) a)

Commission text CoR amendment an obligation for a service provider established in another Member State to make a simple declaration to the responsible national competent authorities at the latest at the commencement of the service provision, whereby the declaration may only cover the identity of the service provider, the presence of one or more clearly identifiable posted workers, their anticipated number, the anticipated duration and location of their presence, and the services justifying the posting; an obligation for a service provider established in another Member State to make a simple declaration to the responsible national competent authorities at the latest at the commencement of the service provision, whereby the. This declaration may only cover the identity of the service provider, the presence of one or more clearly identifiable posted workers, their anticipated number, the anticipated duration and location of their presence, and the services justifying the posting; shall indicate that the service provider has been made aware of the minimum terms and conditions of employment as listed in Article 3 of Directive 96/71/EC in the country of service provision and will comply with them. It shall include as a minimum the duration of the posting, the start date, the identity and number of workers posted and the workplaces in the host Member State.

Reason

This is to clarify what is required of the declaration to be made by the service provider.

Amendment 12

Article 9(1) b)

Commission text CoR amendment an obligation to keep or make available and/or retain copies in paper or electronic form of the employment contract (or an equivalent document within the meaning of Directive 91/533, including, where appropriate or relevant, the additional information referred to in Article 4 of that Directive), payslips, time-sheets and proof of payment of wages or copies of equivalent documents during the period of posting in an accessible and clearly identified place in its territory, such as the workplace or the building site, or for mobile workers in the transport sector the operations base or the vehicle with which the service is provided; an obligation to keep or make available and/or retain copies in paper or electronic form of the employment contract (or an equivalent document within the meaning of Directive 91/533, including, where appropriate or relevant, the additional information referred to in Article 4 of that Directive), payslips, time-sheets and proof of payment of wages, the A1 form as proof of social security coverage in the home Member State, the necessary assessment of risks to safety and health at work in accordance with Directive 89/391/EC and, when the posted worker is a third country national, copies of the work permit and residence permit and any other documents needed to verify compliance with Directive 96/71/EC and this directive, or copies of equivalent documents during the period of posting in an accessible and clearly identified place in its territory, such as the workplace or the building site, or for mobile workers in the transport sector the operations base or the vehicle with which the service is provided;

Reason

Note: linked to the amendment to Article 3(2).

Amendment 13

Article 11, new point 4

Commission text CoR amendment Article 11 Defence of rights — facilitation of complaints — back-payments (…) 3. Member States shall ensure that trade unions and other third parties, such as associations, organisations and other legal entities which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, on behalf or in support of the posted workers or their employer, with their approval in any judicial or administrative proceedings provided for with the objective of implementing this Directive and/or enforcing the obligations under this Directive. Article 11 Defence of rights — facilitation of complaints — back-payments (…) 3. Member States shall ensure that trade unions and other third parties, such as associations, organisations and other legal entities which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, on behalf or in support of the posted workers or their employer, with their approval in any judicial or administrative proceedings provided for with the objective of implementing this Directive and/or enforcing the obligations claims under this Directive. Trade unions shall have the right to bring actions on behalf of posted workers, with their consent. 4. Workers' representatives, especially members of European Works Councils in companies in the construction sector, shall have the right at any time to alert the trade unions and the competent authorities regarding the application of the law to any posting-related situation that raises serious doubts in terms of compliance with the working and employment conditions of posted workers; 5. 4.Paragraphs 1 and 3 shall apply without prejudice to national rules on prescription deadlines or time limits for bringing similar actions and to national rules of procedure concerning representation and defence before the courts.

Reason

Workers' representatives in companies, especially members of European Works Councils, see at first hand the realities of business in different undertakings and entities in the Member States. Such individuals are genuine observers of labour relations on the ground or at the transnational level and should consequently have the right to issue an alert in the event of fraud in the application of the provisions on the posting of workers.

Amendment 14

Article 12(1)

Commission text CoR amendment Article 12 Subcontracting — Joint and several liability With respect to the construction activities referred to in the Annex to Directive 96/71/EC, for all posting situations covered by Article 1(3) of Directive 96/71/EC, the Member States shall ensure on a non–discriminatory basis with regard to the protection of the equivalent rights of employees of direct subcontractors established in its territory, that the contractor of which the employer (service provider or temporary employment undertaking or placement agency) is a direct subcontractor can, in addition to or in place of the employer, be held liable by the posted worker and/or common funds or institutions of social partners for non-payment of the following: Article 12 Subcontracting — Joint and several liability With respect to the construction activities referred to in the Annex to Directive 96/71/EC, for all posting situations covered by Article 1(3) of Directive 96/71/EC, the Each Member States shall take ensure the necessary measures, on a non–discriminatory basis, with regard to the protection of the equivalent rights of employees of direct subcontractors established in its territory, that the contractor of which the employer (service provider or temporary employment undertaking or placement agency) is a direct subcontractor can, to ensure that an undertaking that appoints another undertaking to provide services is liable, in addition to and/or in place of the employer, for the obligations of that undertaking or subcontractor or hirer of labour appointed by that undertaking, in addition to or in place of the employer, be held liable by the posted worker and/or common funds or institutions of social partners for non-payment of the following:

Reason

There is no reason to restrict regulation of subcontracting chains to the construction sector. Clarification of the obligations incurred.

Amendment 15

Article 12(2)

Commission text CoR amendment Member States shall provide that a contractor who has undertaken due diligence shall not be liable in accordance with paragraph 1. Such systems shall be applied in a transparent, non discriminatory and proportionate way. They may imply preventive measures taken by the contractor concerning proof provided by the subcontractor of the main working conditions applied to the posted workers as referred to in Article 3 (1) of Directive 96/71/EC, including pay slips and payment of wages, the respect of social security and/or taxation obligations in the Member State of establishment and compliance with the applicable rules on posting of workers. Member States shall provide that a contractor who has undertaken due diligence shall not be liable in accordance with paragraph 1. Such systems shall be applied in a transparent, non discriminatory and proportionate way. They may imply preventive measures taken by the contractor concerning proof provided by the subcontractor of the main working conditions applied to the posted workers as referred to in Article 3 (1) of Directive 96/71/EC, including pay slips and payment of wages, the respect of social security and/or taxation obligations in the Member State of establishment and compliance with the applicable rules on posting of workers.

Reason

There is no definition of "due diligence" at European level. We do need to ensure that contractors continue to be accountable for verifying that sub-contractors are complying with working conditions.

Amendment 16

Article 12(3)

Commission text CoR amendment Member States may, in conformity with Union law, provide for more stringent liability rules under national law on a non-discriminatory and proportionate basis in regard to the scope and range of subcontractor liability. Member States may also, in conformity with Union law, provide for such liability in sectors other than those contained in the Annex to Directive 96/71/EC. Member States may in these cases provide that a contractor that has undertaken due diligence as defined by national law shall not be liable. Member States may, in conformity with Union law, provide for more stringent liability rules under national law on a non-discriminatory and proportionate basis in regard to the scope and range of subcontractor liability. Member States may also, in conformity with Union law, provide for such liability in sectors other than those contained in the Annex to Directive 96/71/EC. Member States may in these cases provide that a contractor that has undertaken due diligence as defined by national law shall not be liable.

Reason

There is no definition of "due diligence" at European level. We do need to ensure that contractors continue to be accountable for verifying that sub-contractors are complying with working conditions.

Amendment 17

Article 12(4) (new sub-paragraph)

Commission text CoR amendment 4a. In the absence of an agreement between the social partners in the sector concerned setting a limited number of sub-contracting levels, this number shall be limited to three.

Reason

This amendment follows on from point 28 of the draft opinion's policy recommendations.

Amendment 18

Article 18, new article to follow Article 18

Commission text CoR amendment New Article Non-regression clause The implementation of this directive shall under no circumstances be sufficient grounds to justify a reduction in the general level of protection of workers in the fields covered by this directive. This should be without prejudice to the rights of Member States and/or social partners to establish, in the light of changing circumstances, different legislative, regulatory or contractual arrangements to those prevailing at the time of the adoption of this directive, provided that the minimum requirements laid down in this directive are met.

Reason

This so-called "non-regression" clause is now included in many EU directives and is intended to improve their implementation in the Member States. The transposal of a directive in a Member State should not have the effect of reducing existing levels of protection in the areas covered by the directive, in particular with regard to the joint and several liability referred to in Article 12 of the directive.

Amendment 19

Article 21

Commission text CoR amendment Article 21 Report No later than 5 years after the expiry of the deadline for transposition, the Commission shall report to the European Parliament, the Council and the European Economic and Social Committee on the implementation of this Directive, making appropriate proposals where necessary; Article 21 Report No later than 5 years after the expiry of the deadline for transposition, the Commission shall report to the European Parliament, the Council and the European Economic and Social Committee and the Committee of the Regions on the implementation of this Directive, making appropriate proposals where necessary;

Reason

This requirement is in line with the choice of Article 153 TFEU as the legal base for the proposed directive.