Proposal for a directive of the European Parliament and of the Council on the posting of workers who are third- country nationals for the provision of cross-border services
Date: 1999-01-27
Institutions: European Commission
Subjects: foreign national, free movement of workers, freedom to provide services, frontier worker, self-employed person

C  67/12

EN

Official  Journal  of  the  European  Communities

10.3.1999

II

(Preparatory  Acts)

COMMISSION

Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  on  the  posting  of
workers  who  are  third(cid:220)country  nationals  for  the  provision  of  cross(cid:220)border  services

(1999/C  67/09)

(Text  with  EEA  relevance)

COM(1999)  3  final  -  1999/0012(COD)

(Submitted  by  the  Commission  on  12  February  1999)

THE  EUROPEAN  PARLIAMENT  AND  THE  COUNCIL
OF  THE  EUROPEAN  UNION,

the  Protection  of  Human  Rights,  particularly  as
regards  family  life;

Having  regard  to  the  Treaty  establishing  the  European
Community,  and 
in  particular  Articles  57(2)  and  66
thereof,

Having  regard  to  the  proposal  from  the  Commission,

Having  regard  to  the  opinion  of  the  Economic  and
Social  Committee,

Acting  in  accordance  with  the  procedure  laid  down  in
Article  189b  of  the  Treaty,

(1)(cid:217)Whereas,  pursuant  to  point  (c)  of  Article  3  of  the
Treaty,  the  abolition,  between  Member  States,  of
services
obstacles 
constitutes  one  of  the  objectives  of  the  Community;

free  movement  of 

the 

to 

(4)(cid:217)Whereas  service  providers  who  need  to  post  a
worker  who  is  a  third(cid:220)country  national  encounter
such  difficulties  that  they  are  often  obliged  to
withdraw  from  providing  the  service  or  put  up  with
damaging  delays;  whereas  the  preventive  checks
carried  out  by  the  Member  States  in  which  the
services  are  provided  before  any  workers  are  posted
duplicate  both  the  checks  they  make  after  the  event
and  those  made  in  the  country  of  establishment;

(5)(cid:217)Whereas  the  authorities  of  a  Member  State 

in
which  services  are  provided  have  no  guarantee  of
the  lawfulness,  in  the  Member  State  in  which  the
is  established,  of  the  situation  of  the
provider 
service  provider  and  worker  to  be  posted;  whereas,
furthermore,  the  Member  States  have  no  guarantee
that  the  workers  posted  will  return  to  the  Member
State  in  which  they  chiefly  work  when  the  services
have  been  completed;

(2)(cid:217)Whereas  the  free  movement  of  services  includes  the
right  for  service  providers  to  post  their  staff  even  if
the  persons  in  question  are  not  citizens  of  the
Union  but  third(cid:220)country  nationals  legally  present  in
the  Community;  whereas  the  staff  also  includes  the
managers  of  companies;

(3)(cid:217)Whereas  the  freedom  to  provide  services  neither
creates  direct  rights  for  the  workers  concerned  nor
affects  rights  already  recognised  at  Community  or
national  level  or  under  international  agreements,
including  those  guaranteed  by  the  Convention  for

(6)(cid:217)Whereas  a  document  known  as  an  "EC  service
provision  card’,  to  be  issued  by  the  Member  State
in  which  the  service  provider  is  established,  should
be  the  instrument  that  facilitates  postings  so  that  a
provider  can  react  with  a  view  to  current  or
potential  postings 
in  connection  with  normal
activities  even  if  his  staff  includes  one  or  more
third(cid:220)country  nationals;  whereas  it  should  be  for
the  service  provider  to  decide  whether  to  apply  for
this
the  EC 
Directive,  similarly,  does  not  affect  the  under(cid:220)
takings  of  the  Community  and  its  Member  States,
given  in  the  context  of  the  General  Agreement  on

service  provision  card;  whereas 

10.3.1999

EN

Official  Journal  of  the  European  Communities

C  67/13

Trade 
in  Services  (GATS)(cid:216)(˛);  whereas  the  EC
service  provision  card  should  include  only  the  data
required  under  Directive  95/46/EC  of 
the
European  Parliament  and  of  the  Council  of  24
October  1995  on  the  protection  of  individuals  with
regard  to  the  processing  of  personal  data  and  on
the  free  movement  of  such  data(cid:216)(ˇ);

in  which 

(7)(cid:217)Whereas  the  Member  State  issuing  the  EC  service
provision  card  should  take  account  of  public  policy
aimed  at  combating  clandestine 
immigration  by
lawfulness  of  the  situation  in  the
certifying  the 
Member  State 
service  provider
employs  the  third(cid:220)country  national;  whereas  the
document  should  ensure  that  the  main  activity  of
the  posted  worker  takes  place  in  the  Member  State
in  which  the  service  provider  is  established;  whereas
the  document  should  be  safeguarded  against  falsifi(cid:220)
cation;  whereas  it  is  therefore  no  longer  necessary
to  require  an  entry  visa;

the 

(8)(cid:217)Whereas  the  EC  service  provision  card  issued  by  a
Member  State  should  thus  provide  the  guarantee
necessary  to  ensure  that  all  other  Member  States  in
which  services  are  to  be  provided  will  allow  persons
to  enter  and  reside  in  the  country  in  order  to
provide  one  or  more  services,  namely  during  and  at
the  time  of  the  provision  of  services;  whereas  this
include  the  obligation  not  to
guarantee  should 
consider  the  posting  as  an 
interruption  of  the
period  of  residence  and  of  the  permitted  paid
activity,  and  in  particular  not,  under  any  circum(cid:220)
stances,  to  refuse  readmission  of  the  person  posted;
whereas,  consequently,  the  Member  State  in  which
the  service  is  provided  should  therefore  no  longer
be  able  to  impose  its  own  requirements  as  regards
entry,  residence  and  access  to  a  temporary  paid
activity;  whereas  this  Directive  does  not  affect  the
and
binding 
employment  prevailing 
in
which  a  service  is  provided,  those  rules  having  been
laid  down  by  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(cid:216)(—);

in  the  Member  State 

conditions  of  work 

rules  on 

(9)(cid:217)Whereas  each  Member  State  in  which  a  service  is
provided  should  be  able  to  make  it  obligatory  to
declare,  before  the  entry  of  the  posted  worker  into
the  territory,  his  intended  presence  and  the  service
or  services  for  which  he  is  to  be  posted;  whereas  a

(˛)(cid:217)OJ  L  336,  23.12.1994,  p.  190.
(ˇ)(cid:217)OJ  L  281,  23.11.1995,  p.  31.
(—)(cid:217)OJ  L  18,  21.1.1997,  p.  1.

in  question  to  take  measure 

compulsory  prior  declaration  should  enable  the
Member  State 
in
specific  cases  on  grounds  of  public  order,  public
security  or  public  health,  within  the  limits  set  by
this  Directive;  whereas  each  Member  State  in  which
a  service  is  provided  should  also  be  able  to  make  it
obligatory 
temporary
to  obtain,  after  entry,  a 
residence  permit  if  the  time  required  for  the  service
or  services  for  which  the  posted  worker  will  reside
exceeds  six  months  out  of  a  period  of  twelve
months;

(10)(cid:217)Whereas  each  Member  State  should  thus  be  able  to
check,  particularly  if  a  temporary  residence  permit
is  issued,  that  the  residence  of  the  worker  posted  is
for  the  purpose  of  providing  a  service  or  services  in
the  Member  State;  whereas  the  freedom  to  provide
services  should  always  be  of  a  temporary  nature
which  must  be  determined  on  the  basis  of  the
continuity,  frequency,  and  duration  of  the  service;
whereas  the  validity  of  the  temporary  residence
permit  should  be  capable  of  limitation  to  the  period
of  validity  of  the  EC  service  provision  card  on  the
grounds  that  the  Member  State  intends  to  issue,  in
conformity  with  the  freedom  to  provide  services,  a
residence  permit 
its  own
national  provisions  for  postings  exceeding  six  or
twelve  months;

in  accordance  with 

treatment  between 

(11)(cid:217)Whereas  for  this  Directive  to  be  effective,  there
must  be  equality  of 
third(cid:220)
country  nationals  and  citizens  of  the  Union  posted
as  workers  as  regards  the  recognition  of  diplomas,
certificates  and  other  qualifications  acquired  within
the  Community;  whereas,  under  this  Directive,  this
equality  of  treatment  should  be  invoked  only  by
service 
third(cid:220)country
nationals;  whereas  this  equality  of  treatment  should
not  cover  diplomas,  certificates  and  other  qualifi(cid:220)
cations  acquired 
third  country  and  only
recognised  in  a  Member  State;

providers  who 

employ 

in  a 

favourable 

treatment  on 

those  established  within 

(12)(cid:217)Whereas  Member  States  should  not  be  able  to
service
confer  more 
providers  established  outside  the  Community  than
on 
the  Community;
whereas  the  Member  States  may  derogate  from  this
Directive  on  grounds  of  public  order,  public
security  or  public  health;  whereas  the  limits  of  such
derogation  must  be  determined  with  respect  to
service  providers  as  employers  and  the  workers  who
are  third(cid:220)country  nationals  on  the  basis  of  the  coor(cid:220)

C  67/14

EN

Official  Journal  of  the  European  Communities

10.3.1999

dination  provided  for  in  Directive  64/221/EEC  of
25  February  1964  on  the  coordination  of  special
measures  concerning  the  movement  and  residence
of  foreign  nationals  which  are  justified  on  grounds
of  public  policy,  public  security  or  public  health(cid:216)(˛),
as  last  amended  by  Directive  75/35/EEC(cid:216)(ˇ)  as  in
order  to  establish  a  uniform  framework  for  the
service  provider  regardless  of  the  nationality  of  his
staff;

(17)(cid:217)Whereas,  not  later  than  four  years  after  the  date  of
transposal  of  this  Directive,  the  Commission  must
examine  its  application  with  a  view  to  proposing
any  necessary  amendments,

HAVE  ADOPTED  THIS  DIRECTIVE:

(13)(cid:217)Whereas  it  is  vital  for  the  implementation  of  this
Directive  to  ensure  close  cooperation  between  the
competent  authorities  of 
the  Member  States;
whereas  it  would  be  useful  for  the  competent  auth(cid:220)
orities  of  the  Member  States  to  adopt  a  uniform
format  for  the  EC  service  provision  card;  whereas
the  Commission  should  be  empowered  to  lay  down
in  connection
this  format  and  other  procedures 
with  the  EC  service  provision  card,  acting 
in
accordance  with  the  procedure  set  out  in  Council
Regulation  (EC)  No  1683/95  of  29  May  1995
laying  down  a  uniform  format  for  visas(cid:216)(—);

(14)(cid:217)Whereas, 

this  Directive  does  not  affect 

the
competence  of  the  Member  States  to  decide  which
third(cid:220)country  nationals  are  to  be  admitted  for  the
purpose  of  a  paid  activity,  the  conditions  on  which
such  admission  should  be  extended  or  which
professional  activities  are  regulated  on  national
territory,  and  which  are  not;

(15)(cid:217)Whereas, 

in  accordance  with 

the  principle  of
proportionality  as  set  out  in  the  third  paragraph  of
Article  3b  of  the  EC  Treaty,  this  Directive  does  not
is  necessary  for  achieving  the
go  beyond  what 
objective  of  the  free  movement  of  services;  whereas
it  covers  only  the  checks  that  precede  the  provision
of  cross(cid:220)border  services,  but  not  the  checks  made
afterwards  in  the  Member  State  in  which  the  service
is  provided;  whereas  it  is  limited  to  postings  for
periods  of  not  more  than  twelve  months  and  to  the
recognition  of  diplomas,  certificates  and  other
qualifications  acquired  within  the  Community;

Article  1

This  Directive  applies  to  service  providers  established  in
a  Member  State  who,  in  connection  with  the  provision  of
cross(cid:220)border  services,  post  workers  who  are  nationals  of
a  third  country  to  the  territory  of  another  Member  State.

Article  2

in  the
1.(cid:218)(cid:217)When  a  provider  of  services  proposes, 
ordinary  course  of  his  business,  to  post  an  employed
worker  who  is  a  national  of  a  third  country  to  one  or
more  other  Member  States  on  account  of  one  of  the
situations  set  out  in  points  (a)  and  (b)  of  Article  1(3)  of
Directive  96/71/EC,  the  Member  State  in  which  the
service(cid:220)provider  is  established  shall  be  obliged  to  issue  to
him,  at  his  request,  a  document  to  be  known  as  an  "EC
service  provision  card’.

The  EC  service  provision  card  shall  be  issued  if  it  is
established  that:

(a)(cid:217)the  worker  resides 

in 

that  Member  State, 

in

accordance  with  its  legislation;

(b) he  is  affiliated  to  the  social  security  scheme  in  the
Member  State  responsible  for  the  risk  of  sickness  or
industrial  accident,  or  else  is  insured  against  the  risk
of  sickness  or  industrial  accident  during  his  posting
to  one  or  more  other  Member  States.

(16)(cid:217)Whereas  for  the  purpose  of 

Directive,  Member  States  should 
appropriate  system  of  sanctions;

implementing  this
lay  down  an

2.(cid:218)(cid:217)The  EC  service  provision  card  shall  be  valid  for  the
period  during  which  the  worker 
lawful  actual
employment,  which  may  not  exceed

in 

is 

(a)(cid:217)twelve  months 

lawful  actual
employment  for  more  than  twelve  months  before  the
card  is  issued,  or

the  case  of 

in 

(˛)(cid:217)OJ  56,  4.4.1964,  p.  850/64.
(ˇ)(cid:217)OJ  L  14,  20.1.1975,  p.  14.
(—)(cid:217)OJ  L  164,  14.7.1995,  p.  1.

(b) six  months  in  the  case  of  lawful  actual  employment
for  more  than  six  months  before  the  card  is  issued.

10.3.1999

EN

Official  Journal  of  the  European  Communities

C  67/15

"Lawful  employment’  means  work  carried  out  under
Community  or  national  regulations,  or  with  the  author(cid:220)
isation  of  the  Member  State 
issuing  the  EC  service
provision  card,  which  permits  access  to  a  job  either  with
the  applicant  service  provider  or  with  another  employer
established  in  the  Member  State  in  question.

possession  of  the  EC  service  provision  card,  and  of  an
identity  card  or  passport  valid  for  the  period  during
which  the  services  are  to  be  provided.

2.(cid:218)(cid:217)No  Member  State  in  which  a  service  is  provided
may  require  from  the  posted  worker  or  the  service
provider  in  his  capacity  as  employer

"Actual  employment’  means  the  work  actually  carried  out
on  the  territory  of  the  Member  State  issuing  the  EC
service  provision  card.

(a)(cid:217)an  entry  or  exit  visa;

3.(cid:218)(cid:217)  The  EC  service  provision  card  shall  be  renewable
only  if  the  conditions  as  to  its  issue  set  out  in  paragraphs
1  and  2  are  fulfilled  once  more.

4.(cid:218)(cid:217)The  EC  service  provision  card  shall  be  a  separate
document  belonging  to  the  service  provider,  which  he
puts  at  the  disposal  of  the  posted  employed  worker
described  therein.

It  shall  contain  the  following  data:

(a)(cid:217)details  of  the  service  provider  and  the  posted  worker;

(b) the  period  of  validity;

(c) the  issuing  authority  and  issuing  Member  State.

(b) a  residence  permit  other  than  that  specified 

in

paragraph  3;  or

(c) a  work  permit  or  permit  for  access  to  a  job;  or

(d) impose  any  obligation  equivalent  to  those  in  points

(a),  (b)  and  (c).

3.(cid:218)(cid:217)Any  Member  State  in  which  a  service  is  provided
may  require  the  service  provider  to  declare,  before  the
worker  enters  the  territory,  the  intended  presence  of  the
posted  worker,  the  period  of  presence  provided  for  and
the  service  provision  or  provisions  for  which  he  is  to  be
posted.  If  the  total  period  required  for  the  service
provision  or  provisions  in  question  exceeds  six  months
out  of  a  period  of  twelve  months,  the  Member  State  shall
issue,  after  entry  of  the  posted  worker,  a  temporary
residence  permit  showing  that  residence  is  authorised.

the 
falsification 

The  precise  details,  a  specimen  of  the  document  to  be
to
issued,  and 
an
shall  be 
prevent 
implementing 
the
in 
procedure  provided  for  in  Article  6  of  Regulation  (EC)
No  1683/95.

technical  specifications  designed 
laid  down 
in 
accordance  with 

regulation 

5.(cid:218)(cid:217)The  Member  State  issuing  the  EC  service  provision
card  may  not  regard  posting  for  the  provision  of  services
in  another  Member  State  as  being  an  interruption  of  the
posted  worder’s  period  of  residence  or  paid  activity.

The 
issuing  Member  State  may  not  refuse,  under
national  regulations,  the  readmission  to  its  territory  of
the  posted  worker,  for  any  reason  whatsoever.

Article  3

treatment  between 

4.(cid:218)(cid:217)In  order  to  facilitate  the  provision  of  services,  any
Member  State  in  which  a  service  is  carried  out  shall
ensure  equality  of 
third(cid:220)country
nationals  and  citizens  of  the  Union  posted  as  workers  for
the  purpose  of  provision  of  services  as  regards  the  recog(cid:220)
nition  of  diplomas,  certificates  and  other  qualifications
acquired  within 
to
performing  the  activity  concerned,  and 
issued  by  a
competent  authority  of  a  Member  State.  The  Member
State  shall  ensure  that  legal  remedy  under  national  law  is
in  his  capacity  as
available  to  the  service  provider 
employer 
to
observe  this  equality  of  treatment.

the  Community  with  a  view 

in  connection  with  decisions 

that  fail 

Article  4

1.(cid:218)(cid:217)Member  States  shall  not  give  more  favourable
treatment  to  service  providers  established  outside  the
the
Community 
Community.

those  established  within 

than 

to 

1.(cid:218)(cid:217)Any  Member  State  in  which  services  are  provided
shall  permit  the  entry  and  residence  of  a  worker  who  is  a
third(cid:220)country  national  to  its  territory  for  the  purpose  of
one  or  more  provisions  of  services,  if  such  person  is  in

this
2.(cid:218)(cid:217)Member  States  may  not  derogate 
Directive  except  on  grounds  of  public  order,  public
security  or  public  health, 
in  which  case  Directive
64/221/EEC  shall  apply  mutatis  mutandis.

from 

C  67/16

EN

Official  Journal  of  the  European  Communities

10.3.1999

Article  5

Article  7

to 

1.(cid:218)(cid:217)The  Member  States  shall  designate  the  authorities
responsible  for  issuing  the  EC  service  provision  card  and
the  temporary  residence  permit,  and  for  receiving  the
information  referred 
in  Article  3(3).  They  shall
provide  the  Commission  and  the  other  Member  States
with  a 
list  of  such  authorities.  They  shall  take  the
necessary  measures  for  simplifying  as  far  as  possible  the
formalities,  deadlines  and  procedures  for  obtaining  the
above(cid:220)mentioned  documents,  which  shall  be  issued  free
of  charge  or  on  payment  of  a  sum  not  exceeding  the
duties  and  taxes  payable  for  the  issuing  of  identity  cards
to  national  citizens.

2.(cid:218)(cid:217)Member  States 
for  cooperation
between  the  public  administrations  responsible  under
national 
the
implementation  of  this  Directive.

for  matters  connected  with 

shall  provide 

legislation 

Cooperation  shall  in  particular  entail  replying  to  any
reasoned  request  for  information.  Such  cooperation  shall
be  provided  free  of  charge  and  without  delay.

No  later  than  four  years  after  the  date  specified  in
Article  8,  the  Commission  shall  report  to  the  European
Parliament  and  the  Council  on  the  implementation  of
this  Directive  in  the  Member  States  and  shall  propose
any  necessary  changes.

Article  8

The  Member  States  shall  adopt  and  publish  no  later  than
30  June  2002  the  laws,  regulations  and  administrative
provisions  necessary  to  comply  with  this  Directive.  They
shall  forthwith  inform  the  Commission  thereof.

When  Member  States  adopt  those  provisions,  they  shall
contain  a  reference  to  this  Directive  or  be  accompanied
by  such  a  reference  on  the  occasion  of  their  official
publication.  Member  States  shall  determine  how  such
reference  is  to  be  made.

Article  6

Article  9

rules  adopted 

Member  States  shall  lay  down  the  penalties  applicable  to
infringements  of  national 
the
implementation  of  this  Directive  and  shall  take  all
necessary  measures  to  ensure  their  enforcement.  The
penalties  shall  be  effective,  proportionate  and  deterrent.
Member  States  shall  notify  the  Commission  of  these
provisions  not  later  than  the  date  specified  in  Article  8,
and  as  soon  as  possible  in  the  event  of  any  subsequent
changes.

for 

This  Directive  shall  enter  into  force  on  the  twentieth  day
following  that  of  its  publication  in  the  Official  Journal  of
the  European  Communities.

Article  10

This  Directive  is  addressed  to  the  Member  States.