EN Official Journal of the European Union CE 33/254

(2004/C 33 E/263)

WRITTEN QUESTION E-2342/03

by Paul Rübig (PPE-DE) to the Commission

(16 July 2003)

Subject: Construction workers' social security fund run by the autonomous province of Bozen (Cassa Edile Provincia Autonoma Bolzano); payments by foreign construction firms

The Austrian firm Strabag AG has complained that Austrian construction firms which post workers to the autonomous province of Bozen, Italy, are required to make payments to the construction workers' social security fund run by that province even though the Austrian firms make essentially the same payments in Austria, in accordance with the law on construction workers' holidays and pay and the general law on social security.

Dual payments of this kind are demanded in particular in connection with tender procedures for public works contracts awarded by municipalities. In addition, according to reports by Italian trade unions non-EU citizens have been denied work permits because the Austrian construction firm which employs them has refused to register its workers with the relevant social security fund.

1. Is the Commission aware of the situation outlined above and does it take the view that the duplication of essentially identical social security payments for construction workers represents a breach of the freedom to provide services on the grounds that it leads to market distortions and distortions of competition?

2. Does the Commission regard the instances of discrimination outlined above as contrary to Community law?

3. If so, does the Commission intend to take action (this refers to both the questions above)?

4. Does the Commission take the view that the payments to the construction workers' social security fund are covered by Directive 96/71/EC on the posting of workers (1)?

5. In its answer, will the Commission confirm the remarks it made in its answer to Written Question E-1479/98 (2)?

Answer given by Mrs Diamantopoulou on behalf of the Commission

(22 August 2003)

The Honourable Member has raised questions relating to the freedom to provide services across national borders and to the provisions of 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 (3).

1. The Commission has no knowledge of the particular case brought up by the Honourable Member, but it is aware of the risk of double contributions by employers when they are subject to obligations in respect of paid leave in both the sending Member State and the host Member State. If the system of paid leave funds exists in both the countries concerned, i.e. in the country of origin of the undertaking and in the host country, the question of the equivalence of the two Member States' schemes must be decided. To address the problems involved in comparing these schemes, the paid leave funds in several Member States have set up a system of cooperation to ensure mutual recognition of paid leave schemes and to avoid employers being faced with having to pay double contributions when they post workers.

2. The Commission is of the opinion that a double burden on employers in this context could constitute a restriction to the exercise of the freedom to provide services and is not in keeping with the spirit or letter of Directive 96/71/EC.

3. The Commission will examine all of the cases brought to its attention and will take all measures necessary to ensure respect for the EC Treaty and correct implementation of Directive 96/71/EC. It will also encourage all initiatives taken by paid leave funds as referred to in point 1.

4. Directive 96/71/EC obliges the Member States to ensure that undertakings posting workers on their territory guarantee these workers the conditions of employment listed in Article 3 that are in force in the host country, including the minimum length of paid annual leave. When implementing this obligation, the Member States must abide by the provisions of the Directive as well as Articles 49 et seq. of the EC Treaty.

5. The Commission confirms its answer to Written Question E-1479/98 by Mrs R. Oomen-Ruijten and others (4).

(1) OJ L 18, 21.1.1997, p. 1.

(2) OJ C 50, 22.2.1999, p. 41.

(3) OJ L 18, 21.1.1997.

(4) OJ C 50, 22.2.1999.