WRITTEN QUESTION P-3653/95 by Fernando Moniz (PSE) to the Commission (9 January 1996)

Subject: Situation of Portuguese workers recruited by German companies

It is public knowledge that Portuguese workers are being recruited by German companies in the absence of any guarantees regarding minimum working conditions, social rights and benefits and, in certain cases, even a proper wage.

One of these workers recently had a serious accident in Scotland but did not receive any kind of assistance or insurance cover despite the extremely precarious conditions in which he was working, and was completely abandoned for several days by his employer.

In view of the fact that similar cases have already been reported, how is it that they continue to go unpunished?

What is the Commission doing, or what does it intend to do, to prevent such situations?

Answer given by Mr Flynn on behalf of the Commission (8 February 1996)

With regard to workers who are posted to another Member State to provide a service on behalf of the undertaking which employs them, the Commission put forward, in 1991, a proposal for a Council Directive ((COM(91) 230 and amended proposal COM(93) 225. )) aimed at forestalling the considerable risk of worker exploitation liable to arise from this trend towards the transnational externalisation of labour. In the main, the proposal for a Directive provides that any undertaking engaged in the transnational provision of services on the territory of a Member State, which posts workers for that purpose, should abide by a set of mandatory rules on working conditions such as hygiene, health and safety, and wages, applied in the Member State in question. With a view to enhancing surveillance and control measures, the Commission makes provision, in its proposal, for cooperation between public authorities, the main purpose of which is to reply to any request for information concerning obvious abuses or possible cases of unlawful cross-border activities. This proposal is still being discussed by the Council, and the Commission will do its utmost to facilitate speedy adoption of the Directive.

As far as social security is concerned, the Commission would point out that, under Regulation (EEC) No 1408/71 ((OJ L 149, 5.7.1971 - consolidated version OJ C 325, 10.12.1992. )), employed or self-employed persons may be subject to the legislation of a single Member State only (Article 13 (1)). The Regulation lays down rules for determining the applicable legislation. These conflict-of-law rules are binding. Consequently, it is not permissible to determine that the legislation of another Member State is applicable.

In principle, the legislation which applies is that of the Member State on whose territory the person is carrying out the activity. However, the Regulation provides for certain exceptions to this rule, especially in respect of posted workers. In certain circumstances, such workers remain subject to the legislation of the Member State on whose territory they normally work (see Article 14 (1) and Article 14a (1)).

The Commission wishes also to point out that Regulation (EEC) No 1408/71 and its conflict-of-law rules are in no way intended to harmonise the social protection laws in force in the Member States. They therefore do not do away with differences between national social security schemes. It is, moreover, up to the authorities of the Member State concerned to monitor the application of the relevant legislation and, where appropriate, to take the necessary measures to ensure compliance.