Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions - The implementation of Directive 96/71/EC in the Member States
Date: 2003-07-25
Institutions: European Commission
Subjects: Council of the European Union, EC Directive, European Parliament, application of EU law, expatriate worker, freedom to provide services, labour law, labour mobility, national implementing measure, report, services company, working conditions

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 25.7.2003
COM(2003) 458 final

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL, THE
EUROPEAN PARLIAMENT, THE ECONOMIC AND SOCIAL COMMITTEE AND
THE COMMITTEE OF THE REGIONS

The implementation of Directive 96/71/EC in the Member States

TABLE OF CONTENTS

1.

2.

2.1.

2.2.

2.3.

Introduction.................................................................................................................. 3

Directive 96/71/EC – its context in Community law, its key content and its added
value ............................................................................................................................. 4

The context of the Directive......................................................................................... 4

The key content of the Directive.................................................................................. 5

The added value of the Directive ................................................................................. 6

2.3.1. What does this Directive add as regards private international law? ............................ 6

2.3.1.1. The Rome Convention ................................................................................................. 6

2.3.1.2. Jurisdiction ................................................................................................................... 6

2.3.1.3. What does this Directive add as regards the Court's case law? ................................... 7

3.

3.1.

3.2.

3.3.

4.

THE IMPLEMENTATION OF THE DIRECTIVE IN THE MEMBER STATES .... 7

The key legislative provisions (Articles 1 to 3) ........................................................... 7

The implementation of cooperation on information (Article 4)................................... 9

Measures designed to ensure compliance with the Directive (Articles 5 and 6) ....... 10

Assessment of the situation........................................................................................ 11

4.1.

Transposition of the Directive in the Member States................................................. 11

4.1.1.

The method ................................................................................................................ 11

4.1.2.

The nature of the standards applicable....................................................................... 11

4.1.2.1. Collective agreements ................................................................................................ 12

4.1.2.2. The nature of the legislative standards applicable concerning matters other than those
explicitly referred to in the Directive ......................................................................... 12

4.2.

Practical application................................................................................................... 14

4.2.1. Difficulties encountered by the Member States' authorities ...................................... 14

4.2.2. Difficulties encountered by service provider undertakings and posted workers ....... 17

4.3.

The acceding countries............................................................................................... 17

5.

Conclusion ................................................................................................................. 18

2

Commission Communication

on the implementation of Directive 96/71/EC

1.

INTRODUCTION

Directive 96/71/EC of the European Parliament and of the Council concerning the posting of
workers in the framework of the provision of services was adopted on 16 December 1996. It
aims to abolish the obstacles and uncertainties that impede implementation of the freedom to
supply services, by improving legal certainty and facilitating identification of the employment
conditions  that  apply  to  workers  temporarily  employed  in  a  Member  State  other  than  the
Member State whose legislation governs the employment relationship. It endeavours to strike
a balance between the economic freedoms bestowed by the EC Treaty and employees' rights
during their period of posting.

Since the Directive is a supranational legal instrument whose transposal in one Member State
directly affects employers and workers in other countries, the manner in which it is actually
implemented  is  particularly  important  for  all  Member  States.  Article  8  provides  that  the
Commission  shall  review  the  operation  of  the  Directive  with  a  view  to  proposing  the
necessary amendments to the Council where appropriate.

In preparation for this review, the Commission services have taken a number of steps: the first
was to draft a report on the transposal of the Directive in the 15 Member States, designed to
ascertain  the  present  situation  as  regards  national  legislations  and  collective  agreements.  At
the same time, the national administrations were sent a questionnaire asking them to describe
the practicalities of applying the Directive and any difficulties encountered. The results of the
transposal study and the replies to the questionnaire were discussed by a group of government
experts.

The purpose of this Communication is to draw the conclusions from all this preparatory work
concerning the transposal and practical implementation of Directive 96/71/EC in the Member
States,  and  to  define  the  Commission's  position  as  to  whether  the  1996  Directive  needs
revising.

The  Communication  does  not  seek  to  judge  the  compatibility  with  the  Directive  and  the
Treaty  of  the  national  transposing  measures  mentioned  herein,  nor  does  it  prejudge  what
position the Commission will take in its monitoring of the application of Community law.

3

2.

DIRECTIVE 96/71/EC – ITS CONTEXT IN COMMUNITY LAW, ITS KEY CONTENT AND
ITS ADDED VALUE

2.1.

The context of the Directive

With the achievement of the single market, in particular as regards freedom to supply services
between Member States, a new form of worker mobility has emerged, quite distinct from the
mobility  of  migrant  workers  explicitly  addressed  in  the  EC  Treaty  and  in  secondary
legislation concerning  the  free  movement  of  workers.  The  dynamic  environment  created  by
the single market, with its economic freedoms, is encouraging undertakings to develop their
transnational  activities  and  increasingly  to  provide  transnational  services.  The  situation  of
employees  posted  temporarily  to  another  Member  State  to  perform  work  under  a  service
contract on behalf of their employer has raised all sorts of legal questions.

As these are transnational situations, questions often arise as to which law is applicable to the
employment  relationship.  On  this  subject,  the  Convention  of  Rome  of  19  June  1980  on  the
law applicable to contractual obligations1 provides, as a general rule, for freedom of choice as
regards the law applicable by the parties. In the absence of choice, the employment contract is
governed, pursuant to Article 6(2), by the law of the country in which the employee habitually
carries out his work, even if he is temporarily employed in another country. If the employee
does  not  habitually  carry  out  his  work  in  any  one  country,  the  law  applicable  is  that  of  the
country  in  which  the  place  of  business  through  which  he  was  engaged  is  situated,  unless  it
appears from the circumstances as a whole  that  the  contract  is  more closely connected with
another country. According to Article 6(1) of the Convention, the choice of law made by the
parties must not have the result of depriving the employee of the protection afforded to him
by  the  mandatory  rules  of  the  law  which  would  be  applicable  under  paragraph  2  of  that
Article in the absence of choice. Article 7 provides that, under certain conditions, effect may
be given, concurrently with the law declared applicable, to the mandatory rules of the law of
another country, in particular those of the Member State within whose territory the worker is
temporarily posted.

As regards posted workers within the context of the EC Treaty, the Court of Justice has been
requested on several occasions to clarify their situation in the context of the freedom to supply
services as referred to in Article 49 of the Treaty. In a number of cases the Court of Justice
has  taken  the  opportunity  to  develop  criteria,  first  and  foremost  to  distinguish  between
freedom to supply services and freedom of movement of workers. On this point, the Court has
emphasised that – unlike migrant workers – posted workers who are sent to another country to
perform a service return to their country of origin after completing their mission, without at
any time joining the labour market of the host Member State. Given this specific situation, the
rules  of  primary  and  secondary  Community  law  devised  for  migrant  workers  would  not
therefore resolve  the  specific  problems  of  posting.  In  particular,  as  regards  the  employment
conditions applicable during the period of posting, the Court has recognised that Community
law  does  not  preclude  Member  States  from  extending  their  legislation,  or  collective  labour
agreements  entered  into  by  both  sides  of  industry,  to  any  person  who  is  employed,  even
temporarily, within their territory, no matter in which country the employer is established, on
condition that the rules of the EC Treaty, and in particular Article 49 are complied with.2

1

2

OJ No L 266 of 9.10. 1980, p.1
Judgment of 3 February 1982, Seco and Desquenne, point 14, 62/81 and 63/81, ECR p. 223; Judgment
of 27 March 1990, Rush Portuguesa, point 18, C-113/89, ECR p.I-01417

4

                                                
In order to facilitate the free movement of services it was deemed necessary and advisable to
coordinate the laws of the Member States affected by this Court of Justice case law and thus
lay  down,  at  Community  level,  a  nucleus  of  mandatory  minimum  protection  rules  to  be
observed in the host country by employers who post workers to perform temporary  work in
the  territory  of  the  Member  State  where  the  services  are  provided.  Directive  96/71/EC
concerning the posting of workers, which is based on Articles 47 (ex 57), paragraph 2 and 55
(ex  66)  of  the  EC  Treaty  establishes  this  Community  catalogue  of  minimum  rules  deemed
mandatory. This Directive takes account of the specific situation of posted workers and ties in
with the legal context outlined above.

It  should  be  stressed  that  the  Directive's  scope  does  not  extend  to  social  security;  the
provisions applicable with regard  to  benefits  and  social  security  contributions  are  those  laid
down by Council Regulation (EEC) No 1408/71 of 14 June 1971.3

2.2.

The key content of the Directive

The Directive applies to undertakings which post workers to work temporarily in a Member
State  other  than  the  State  whose  laws  govern  the  employment  relationship.  It  covers  three
transnational posting situations, namely:

(cid:1)  posting  under  a  contract  concluded  between  the  undertaking  making  the  posting  and  the

party for whom the services are intended,

(cid:1)  posting to an establishment or an undertaking owned by the group,

(cid:1)  posting  by  a  temporary  employment  undertaking  to  a  user  undertaking  operating  in  a

Member State other than that of the undertaking making the posting,

with  the  proviso,  in  all  three  situations,  that  there  is  an  employment  relationship  between  the
undertaking making the posting and the posted worker.

Undertakings established in a non-member State must not be given more favourable treatment
than undertakings established in a Member State. In this context, Recital 20 of the Directive
indicates  that  the  Directive  does  not  affect  either  the  agreements  concluded  by  the
Community with third countries or the laws of Member States concerning the access to their
territory  of  third-country  providers  of  services.  The  Directive  is  also  without  prejudice  to
national  laws  relating  to  the  entry,  residence  and  access  to  employment  of  third-country
workers.

Whatever  the  law  applicable  to  the  employment  relationship,  the  Directive  seeks  to  guarantee
that posted workers will enjoy the application of certain minimum protective provisions in force
in  the  Member  State  to  which  they  are  posted.  To  this  end,  Article  3(1)  of  the  Directive  lays
down the mandatory rules to be observed by employers during the period of posting in regard to
the following issues: maximum work periods and minimum rest periods; minimum paid annual
holidays; minimum rates of pay; the conditions of hiring-out of workers, in particular the supply
of  workers  by  temporary  employment  undertakings;  health,  safety  and  hygiene  at  work;  and
protective measures with regard to the terms and conditions of employment of pregnant women
or women who have recently given birth, of children and of young people. These rules must be
laid down by the legislations of the host country and/or by collective agreements or arbitration

3

OJ No L 149 of 5.7.1971

5

                                                
awards which have been declared universally acceptable in the case of activities in the building
work  sector,  while  Member  States  are  left  the  choice  of  imposing  such  rules  laid  down  by
collective  agreements  in  the  case  of  activities  other  than  building  work.  They  may  also,  in
compliance with the Treaty, impose the application of terms and conditions of employment on
matters other than those referred to in the Directive in the case of public policy provisions.

For the purposes of implementing the Directive, Member States must designate liaison offices
and  make  provision  for  administrative  cooperation  regarding  the  provision  of  information.
The Directive also contains a jurisdiction clause which states that judicial proceedings may be
instituted  in  the  Member  State  in  whose  territory  the  worker  is  or  was  posted,  without
prejudice  to  the  right,  under  existing  international  conventions  on  jurisdiction,  to  institute
proceedings in another State.

2.3.

The added value of the Directive

2.3.1. What does this Directive add as regards private international law?

2.3.1.1. The Rome Convention

The  Rome  Convention  lays  down  the  general  criteria  for  determining  the  law  applicable  to
contractual  obligations.  It  also  permits  the  judge  –  exceptionally  –  to  set  aside  the  law  that
would normally be applicable to the contract and instead apply the mandatory rules within the
meaning  of  private  international  law  ["règles  impératives",  also  known  in  French  as  "lois
d'application immédiate" or "lois de police"] that obtain at the place where the work is carried
out  (Article  7).  These  mandatory  rules  are  not  defined  by  the  Rome  Convention.  Directive
96/71 designates at Community level mandatory rules within the meaning of Article 7 of the
Rome Convention in transnational posting situations. These rules thus constitute a nucleus of
minimum  protection  for  posted  workers,  while  respecting  the  principle  of  equality  of
treatment  between  national  and  non-national  providers  of  services  (Article  49  of  the  EC
Treaty) and between national and non-national workers.

The  choice-of-law  rules  provided  for  by  the  Rome  Convention  for  determining  the  law
applicable  offer  a  general  legal  framework,  whereas  the  Directive  specifically  concerns  the
situation of posted workers and is thus able to refine this legal framework.

The Directive in no way seeks to amend the law applicable to the employment contract, but it
lays  down  a  number  of  mandatory  rules  to  be  observed  during  the  period  of  posting  in  the
host Member State, "whatever the law applicable to the employment relationship".

2.3.1.2. Jurisdiction

Council  Regulation  (EC)  No  44/2001  of  22  December  2000  on  jurisdiction  and  the
recognition  and  enforcement  of  judgments  in  civil  and  commercial  matters4  establishes
Community  rules  on  jurisdiction  and  the  recognition  of  judgments  in  civil  and  commercial
matters.  With  regard  to  individual  employment  contracts,  Article  19  of  this  Regulation
provides  that  an  employer  domiciled  in  a  Member  State  may  be  sued  in  the  courts  of  the
Member State where he is domiciled, or in another Member State in the courts for the place
where the employee habitually carries out his work or in the courts for the last place where he
habitually  carried  out  his  work.  This  rule  thus  introduces,  in  the  worker's  favour,  an

4

OJ No L 012 of 16/01/2001, p. 1

6

                                                
exemption  from  the  general  principle that  judicial  proceedings  against  persons  domiciled  in
the territory of a Member State must be instituted in that same Member State.

Article  6  of  Directive  96/71/EC  adds  to  these  rules,  in  favour  of  posted  workers  employed
temporarily  in  another  Member  State,  a  new  specific  jurisdiction  clause  tailored  to  the
specific situation in which posted workers find themselves. In order to allow the right to the
terms and conditions of employment guaranteed in Article 3 of the Directive to be enforced,
Article 6 provides that judicial proceedings may be instituted in the Member State in whose
territory the worker is or was posted.

This clause constitutes a provision governing a specific matter, as authorised by Article 67 of
Regulation 44/2001, and is without prejudice to the  right to institute judicial  proceedings in
another  State  pursuant  to  the  above-mentioned  provisions  of  the  Regulation  or  pursuant  to
international conventions on the subject of jurisdiction.

2.3.1.3. What does this Directive add as regards the Court's case law?

The  Court  of  Justice  has  held  that  Community  law  does  not  preclude  Member  States  from
extending  their  legislation,  or  collective  labour  agreements  entered  into  by  both  sides  of
industry, to any person who is employed, even temporarily, within their territory, no matter in
which country the employer is established. This case law thus makes it possible for Member
States  to  extend,  in  compliance  with  the  Treaty,  certain  rules  to  employees  posted  on  their
territory, whereas the Directive makes it obligatory to guarantee that certain mandatory rules
concerning the terms and conditions of employment of posted workers are observed.

In  addition,  the  case  law  does  not  specify  the  legislative  provisions  or  collective  labour
agreements in question. The Directive therefore seeks to coordinate Member States' laws with
a  view  to  compiling  a  list  of  the  mandatory  rules  which  undertakings  posting  workers
temporarily  to  another  country  must  observe  in  the  host  country.  It  does  not  harmonise  the
material  content  of  the  rules  categorised  as  "mandatory",  but  it  identifies  them  and  makes
them  binding  on  undertakings  posting  workers  to  a  Member  State  other  than  the  State  in
whose territory these workers habitually work.

3.

THE  IMPLEMENTATION  OF  THE  DIRECTIVE  IN  THE  MEMBER
STATES

3.1.

The key legislative provisions (Articles 1 to 3)

Even before Directive 96/71/EC was adopted, several Member States had already established
their  own  national  legislation  concerning  the  posting  of  workers  in  connection  with  the
transnational provision of services. These include Germany5, Austria6 and France7. When the
Directive was finally  adopted, these States adapted their  legislations  to  bring  them  into  line
with the requirements of the Community Directive8.

5

6

7

8

Law of 26 February 1996 on the posting of workers.
Bundesgesetzblatt I 1995/895.
Law of 20 December 1993 and Implementing Decree of 11 July 1994.
Cf. in Germany, the Law of 19 December 1998 amending the Law of 26 February 1996 on the posting
of  workers;  in  Austria,  adaptation  of  the  AVRAG  which  entered  into  force  on  1  October  1999;  in
France, the decrees of 4 September and 29 May 2000, amending the provisions of the French  Labour
Code relating to postings in connection with the international provision of services.

7

                                                
More conventionally, other Member States, such as Spain9, Denmark10, Finland11, Greece12,
Italy13, the Netherlands14, Portugal15, Sweden16, Belgium17 and Luxembourg18, transposed
the Directive by passing laws after the Community instrument was adopted.

All  the  Member  States  oblige  undertakings  established  abroad  and  posting  workers  to  their
territory  to  observe  their  transposition  legislation.  The  principle  whereby  undertakings
established  in  a  non-member  State  must  not  be  given  more  favourable  treatment  than
Community undertakings is observed.

In Ireland, no specific measure transposing the Directive has been adopted, but a provision
contained  in  the  Protection  of  Employees  (Part-Time  Work)  Act,  transposing  another
Community Directive, clarifies that certain provisions of Irish law apply to posted workers in
Ireland.

In the United Kingdom, it was not deemed necessary to adopt a specific Act to transpose the
Directive,  since  UK  law  applies  to  all  employees  regardless  of  their  situation.  The  UK  has
simply  amended  certain  more  restrictive  texts  in  order  to  extend  their  scope  to  posted
workers.

Most Member States have defined, in their legislation,  the  posted  worker  situations  covered
by  the  Directive,  and  some  have  adopted  the  Directive's  definitions  word  for  word.  Some
legislations  have  also  adopted  the  Directive's  definition  of  "posted  worker",  while  in  other
Member  States  the  content  of  the  concept  of  "posted  worker"  derives  from  the  relevant
legislation as a whole.

As regards determining which terms and conditions of employment established by legislative
provisions apply to posted workers, the Member States fall into three categories:

(cid:1)  some  Member  States  have  essentially  reproduced  the  terms  of  the  Directive,  without
indicating  to  which  provisions  of  their  national  legislation  the  matters  covered  by  the
Directive correspond;

(cid:1)  others  have  sought  to  identify  the  applicable  national  provisions  and  have  inserted

references to these national provisions;

(cid:1)  two Member States have not adopted any specific transposition legislation concerning the
national provisions applicable to posted workers; one of them has simply adopted a single
provision  making  it  clear  that  its  labour  legislation  applies  to  workers  posted  on  its
territory.

9

10

11

12

13

14

15

16

17

18

Law 45/1999 of 29 November 1999.
Law n° 933 of 15 December 1999, which entered into force on 17 December 1999.
Law  1146/1999,  which  entered  into  force  on  16  December  1999,  subsequently  amended  by  Law
74/2001 of 26 January 2001 to take account of the adoption of a new law on labour agreements.
Presidential Decree No 219 of 28 August 2000, which entered into force on 31 August 2000.
Legislative Decree No 72 of 25 February 2000.
Law of 2 December 1999, which entered into force on 23 December 1999.
Law 9/2000 of 15 June 2000.
Law 1999:678, which entered into force on 16 December 1999.
Law of 5 March 2002 (Moniteur belge of 13.03.02) and Royal Decree of 29.03.2002 (Moniteur belge of
17.04.02)
Posting  of  workers  and  monitoring  the  implementation  of  labour  law,  Law  of  20  December  2002,
Recueil de législations A-No 154, 31 December 2002.

8

                                                
The  question  of  the  applicability  of  collective  agreements  is  particularly  important,  since
wages  are  chiefly  determined  by  collective  bargaining.  Most  Member  States'  legislations
provide  for  the  application  or  extension  of  universally  applicable  collective  agreements  to
posted  workers.  Some  Member  States  do  not  have  universally  applicable  collective
agreements. Consequently, the only rules that these States apply to posted workers are those
contained in the law or in other legislative texts.

As  regards  the  exception,  the  derogation  options  and  the  other  options  provided  for  by  the
Directive, the situation can be summarised as follows:

Not all Member States have adopted the exception for assembly work - excluding activities in
the  field  of  building  work  -  that  does  not  exceed  eight  days  (Art.  3(2)).  It  should  be
remembered,  however,  that  this  exception  does  not  apply  to  the  activities  in  the  field  of
building work listed in the Annex to the Directive.

Most  Member  States  have  not  made  use  of  the  derogation  options  offered  in  the  Directive
(Article 3(3), 3(4) and 3(5)). Two Member States have combined the exception for assembly
work with all the derogation options in such a way as to render their transposition legislation
inapplicable to postings that do not exceed eight days.

Several Member States have made use of the option provided for in Article 3(10), first indent,
of  applying  to  the  undertakings  concerned  terms  and  conditions  of  employment  other  than
those referred to in Article 3 of the Directive.

Pursuant to Article 3(10), second indent, the terms and conditions of employment of the host
State as laid down in universally applicable collective agreements or arbitration awards, and
concerning activities other than those referred to in the Annex19, may be imposed on national
undertakings and undertakings from other States on a basis of equality of treatment.

The  following  Member  States  have  made  use  of  this  extension  option:  Austria,  Belgium,
Spain,  Finland,  France,  Greece,  Italy,  Portugal  and  Luxembourg.  In  these  countries,  all
sectors are covered.

In  Germany,  the  extension  of  collectively  agreed  terms  and  conditions  of  employment  to
activities  other  than  building  work  is  limited  to  services  to  assist  maritime  navigation,  as
regards minimum pay, duration of paid leave, holiday pay and the additional holiday bonus.
In the Netherlands, application of collectively agreed terms and conditions of employment is
limited to the activities listed in the Annex to the Directive. In Denmark, the United Kingdom
and Sweden, which do not have universally applicable collective agreements, this option does
not apply.

3.2.

The implementation of cooperation on information (Article 4)

Article  4  of  Directive  96/71/EC  obliges  Member  States  to  designate  one  or  more  liaison
offices  or  national  bodies  and  to  notify  these  to  the  other  Member  States.  Article  4  also

19

The  Annex  mentions  all  building  work  relating  to  the  construction,  repair,  upkeep,  alteration  or
demolition  of  buildings,  and  in  particular  the  following  work:  excavation,  earthmoving,  actual
building  work,  assembly  and  dismantling  of  prefabricated  elements,  fitting  out  or  installation,
alterations, renovation, repairs, dismantling, demolition,  maintenance,  upkeep, painting and cleaning
work, improvements.

9

                                                
provides for cooperation between the public authorities responsible for monitoring the terms
and conditions of employment referred to in Article 3 of the Directive.

Three different types of cooperation on information are mentioned in  Article  4: cooperation
between  the  public  authorities  responsible  for  monitoring  the  terms  and  conditions  of
employment referred to in the Directive; cooperation to examine any difficulties which might
arise in the application of Article 3(10); and cooperation to ensure that the information on the
terms and conditions of employment is generally available.

Interested  parties  need  to  have  advance  information  about  the  terms  and  conditions  of
employment applicable in the host country in order for them to be able to perform the services
required  and  comply  with  the  mandatory  provisions  applicable  to  employees  during  their
period  of  posting.  The  temporary  nature  of  posting  and  the  concomitant  clashes  between
different Member States' legal systems can make it difficult to apply the provisions resulting
from  the  transposal  of  the  Directive  and  to  monitor  observance  of  these  provisions.  The
administrative  cooperation  which  the  Directive  provides  for  between  Member  States  in  this
context is therefore especially important.

All  Member  States  have  designated  bodies  to  ensure  the  cooperation  provided  for  by  the
Directive.  These  are  generally  the  responsible  departments  of  the  relevant  Ministries,  the
Labour Inspectorate or employment offices.

In  order  to  facilitate  access  to  information  on  the  terms  and  conditions  of  employment
applicable, a good few Member States have produced brochures or vade-mecums, which are
also available on their websites.

3.3.

Measures designed to ensure compliance with the Directive (Articles 5 and 6)

Two types of measures are used by Member States to ensure compliance with the provisions
of  the  Directive:  measures  to  monitor  the  legality  of  postings  and  measures  to  penalise
possible irregularities ascertained.

Besides the usual inspections of undertakings or workplaces, certain States have adopted two
other types of methods to facilitate monitoring of compliance with the transposition rules: the
keeping  of  records  at  the  place  where  the  services  are  provided  and  the  declaration  of  the
provision of services to the national authorities.

As  regards  penalties,  some  Member  States  have  not  introduced  any  new  penalties  to  cover
posting  situations.  In  these  countries,  the  remedies  and  penalties  applicable  are  the  same  as
those applicable under domestic law.

As required by Article 6 of the Directive, most of the Member States have made it possible to
institute judicial proceedings in their territory when a worker is or has been posted there, in
order to allow enforcement of the right to the terms and conditions of employment guaranteed
by the Directive. This jurisdiction of the courts of the country of posting is recognised either
in the legal instruments transposing the Directive or in the codes of procedure in force. Two
countries  have  not  introduced  explicit  provisions  entitling  posted  workers  to  institute
proceedings in the courts of the country of posting.

10

4.

ASSESSMENT OF THE SITUATION

4.1.

Transposition of the Directive in the Member States

According  to  studies  by  independent  experts,  transposition  of  the  Directive  by  the  Member
States  has,  generally  speaking,  been  satisfactory.  However,  the  Commission  would  like  to
mention three categories of transposition problems encountered in certain Member States.

4.1.1.

The method

The Commission considers that the method used in the two countries which have not adopted
a  specific  transposal  instrument  (see  3.1.  above)  needs  to  be  assessed  in  the  light  of  the
criteria established by the Court of Justice in cases C-365/9320 and C-144/9921. In these two
cases the Court pointed out that it is settled law that "whilst legislative action on the part of
each Member State is not necessarily required in order to implement a directive, it is essential
for national law to guarantee that the national authorities will effectively apply the directive in
full, that the legal position under national law should be sufficiently precise and clear and that
individuals  are  made  fully  aware  of  their  rights  and,  where  appropriate,  may  rely  on  them
before the national courts." The Court added that this last condition is of particular importance
where  the  directive  in  question  is  intended  to  accord  rights  to  nationals  of  other  Member
States (Commission v Greece, Case 365/93, point 9 and Commission v The Netherlands, Case
144/99, point 18).

It  should  be  pointed  out  that  in  these  two  countries,  the  posting  situations  covered  and  the
rights deriving from the provisions of the Directive are not clearly defined and the jurisdiction
clause contained in Article 6 of the Directive has not been implemented.

Insofar as the absence of identification of  "mandatory rules" is to be interpreted as meaning
that  the  totality  of  the  legislation  in  the  field  of  labour  law  applies  to  posting  situations,  it
should be pointed out that the Directive in no way permits Member States to extend all their
legislative  provisions  and/or  collective  agreements  governing  terms  and  conditions  of
employment to workers posted on their territory, and that the application of such rules must
be in compliance with the EC Treaty, in particular Article 49. As regards the matters covered,
the  Directive  lays  down  a  catalogue  of  mandatory  rules  (listed  in  Article  3)  applicable  to
posted  workers,  to  which  Member  States  may  add  only  public  policy  provisions  in  the
international context (see below).

4.1.2.

The nature of the standards applicable

According  to  Article  3(1)  of  the  Directive,  Member  States  must  ensure  that  undertakings
covered by the Directive guarantee workers posted to their territory the terms and conditions
of  employment  established  by  law,  regulation  or  administrative  provision  and/or  by
universally  applicable  collective  agreements  or  arbitration  awards.  Thus,  the  Directive  first
determines  the  nature  of  the  standards  which  Member  States  must  apply,  and  then  the
content of these standards.

20

21

Judgment of 23 March 1995, Commission/Greece, ECR I-499, point 9
Judgment of 10 May 2001, Commission/Kingdom of the Netherlands, ECR I-3541, point 17

11

                                                
4.1.2.1. Collective agreements

Not  all  the  transposing  legislation  has  addressed  the  question  of  determining  the  collective
agreements applicable  to  posting  situations. The Commission intends  to  look into  this more
closely and examine the criteria used for determining the collective agreements applicable to
national undertakings on the one hand and undertakings from other countries on the other. As
the  Court  of  Justice  emphasised  in  the  Joined  Cases  C-49/98,  C-50/98,  C-52/98  to  C-54/98
and C-68/98 to C-71/9822, these criteria may have different practical consequences in the case
of "mixed" businesses, i.e. businesses which carry out activities in a variety of sectors.

Collective agreements as referred to in Article 3(1) of the Directive must, for the purposes of
implementation  of  the  Directive,  be  declared  universally  applicable  within  the  meaning  of
Article  3(8).  The  first  subparagraph  of  Article  3(8)  of  the  Directive  refers  to  erga  omnes
collective agreements, which must be observed by all undertakings in the  geographical area
and  in  the  profession  or  industry  concerned  in  order  to  guarantee  equality  of  treatment
between  domestic  undertakings  and  undertakings  established  in  another  Member  State
providing services in the territory of a Member State.

In the absence of a system for declaring collective agreements to be of universal application,
the second subparagraph of Article 3(8) offers Member States options designed to guarantee
equality of treatment. The group of experts which prepared the transposal of the Directive was
of  the  opinion  that  if  Member  States,  in  the  absence  of  a  system  for  declaring  collective
agreements or arbitration awards to be of universal application, decide to base themselves on
the  two  other  categories  of  collective  agreements  referred  to  in  Article  3(8),  i.e.  generally
applicable  collective  agreements  or  collective  agreements  concluded  by 
the  most
representative employers' and labour organisations, they must make explicit mention thereof
in  their  legislation  implementing  the  posted  workers  Directive.  If  their  implementing
legislation  makes  no  reference  to  this  effect,  Member  States  may  not  oblige  undertakings
established  in  another  Member  State  which  post  workers  to  their  territory  to  observe  the
collective agreements referred to in the second subparagraph of Article 3(8).

Since no Member State's transposing legislation makes any mention of the options offered by
the second subparagraph of Article 3(8), the Commission concludes that those Member States
which  do  not  have  collective  agreements  declared  to  be  universally  applicable  within  the
meaning of the first subparagraph of Article 3(8) of the Directive do not apply the terms and
conditions  of  employment  laid  down  in  collective  agreements  to  workers  posted  on  their
territory.  In  these  countries,  therefore,  only  the  terms  and  conditions  of  employment  laid
down in legislative provisions apply to workers posted on their territory.

4.1.2.2. The nature of the legislative standards applicable concerning matters other than those

explicitly referred to in the Directive

The first indent of the first subparagraph of Article 3(10) stipulates that the Directive shall not
preclude  the  application  by  Member  States,  in  compliance  with  the  Treaty,  to  national
undertakings and to the undertakings  of  other States, on  a  basis  of  equality  of  treatment,  of
terms  and  conditions  of  employment  on  matters  other  than  those  referred  to  in  the  first
subparagraph of paragraph 1 in the case of public policy provisions.

22

Judgment of 25 October 2001 "Finalarte", points 76-83, ECR 2001, p. I-07831

12

                                                
As regards the meaning of public policy provisions, the Commission would point out that, at
the time of adoption of the Directive, the Council and the Commission stated (Statement 10)
that  "the  expression  'public  policy  provisions'  should  be  construed  as  covering  those
mandatory  rules  from  which  there  can  be  no  derogation  and  which,  by  their  nature  and
objective,  meet  the  imperative  requirements  of  the  public  interest.  These  may  include,  in
particular,  the  prohibition  of  forced  labour  or  the  involvement  of  public  authorities  in
monitoring compliance with legislation on working conditions". As explicitly stated in Article
3(10), the application of public policy provisions has to be carried out in compliance with the
Treaty and on a basis of equality of treatment.

The Commission considers that the first indent of Article 3(10) has to be interpreted bearing
in  mind  the  objective  of  facilitating  the  free  movement  of  services  within  the  Community.
Thus, the Directive lays down a nucleus of minimum rules for the protection of the rights of
workers  in  the  host  State,  with  which  undertakings  posting  workers  must  comply.  Member
States are not free to impose all their mandatory labour law provisions on service providers
established in another Member State. They must comply with the rules of the EC Treaty, and
in particular Article 49, as interpreted by the Court of Justice (c.f. the Portugaia Construções23
and Mazzoneli24 judgments).

The concept of public policy within the meaning of Directive 96/71/EC must be interpreted in
the light of the case law of the Court, which has ruled on this concept on several occasions.
The  case  law,  while  not  giving  a  precise  definition  of  the  concept  of  public  policy,  which
appears, inter alia, in Articles 46 and 56 of the EC Treaty, recognises that this concept may
vary from one country to another and from one period to another25, thus leaving the national
authorities an area of discretion within the limits imposed by the Treaty. However, the Court
has  ruled  that  the  concept  of  public  policy  must  be  interpreted  strictly26  and  should  not  be
determined  unilaterally  by  each  Member  State.  It  has  ruled  that  recourse  to  the  concept  of
public policy must be justified on overriding general interest grounds27, must presuppose the
existence  of  a  genuine  and  sufficiently  serious  threat  affecting  one  of  the  fundamental
interests  of  society28  and  must  be  in  conformity  with  the  general  principles  of  law,  in
particular fundamental rights and the general principle of freedom of expression.

As regards the classification of the national provisions at issue as public-order legislation, the
Court of Justice ruled, in its judgment in the Joined Cases C-369/96 and C-376/9629, that "the
term must be understood as applying to national provisions compliance with which has been
deemed  to  be  so  crucial  for  the  protection  of  the  political,  social  or  economic  order  in  the
Member  State  concerned  as  to  require  compliance  therewith  by  all  persons  present  on  the
national territory of that Member State and all legal relationships within that State."

To  illustrate  the  difference  between  domestic  public  policy  provisions  on  the  one  hand  and
public  policy  provisions  and  mandatory  provisions  ["lois  de  police"]  in  the  international
context  on  the  other,  we  can  cite  the  example  of  the  rules  concerning  dismissal,  which  in
some countries are domestic public order provisions. These are national mandatory rules from

23

24

25

26

27

28

29

Judgment of 24 January 2002, Case 164/99
Judgment of 15 March 2001, Case 165/98, ECR p. I-2189
Judgment of 27 October 1977, Case 30/77, ECR 1977, p. 1999
Judgment of 18 June 1991, Case C-260/89, ECR 1991, p. I-2925
Judgment of 14 November 1995, Case 484/93, ECR 1995, p. I-3955
Judgment of 27 October 1977, Case 30/77, ECR 1977, p. 1999
Judgment  of  the  Court  of  23  November  1999,  Jean  Claude  Arblade/Bernard  Leloup,  point  30,  ECR
1999, p. I-08453.

13

                                                
which the parties may not derogate by contract, and which  are intended to protect  a "weak"
party  (the  worker).  In  these  countries,  any  contract  between  an  employer  and  employee  in
which  the  employee  waived  his  rights  to  redundancy  pay  or  agreed  to  shorter  than  normal
periods of notice without compensation would be null and void in regard to national contract
law. However, these same rules are not considered to be international public policy provisions
or  mandatory  rules  within  the  meaning  of  Article  7  of  the  Rome  Convention,  which  would
apply  whatever  the  law  applicable  to  the  contract.  Accordingly,  when  the  employment
contract is  validly  subject  to  a  foreign  law,  the  domestic  public  policy  provisions  regarding
dismissal do not apply automatically.

Some  of  the  provisions  of  the  Rome  Convention  might  offer  Member  States  valuable
guidance  in  the  application  of  Article  3(10)  of  the  posted  workers  Directive.  For  example,
pursuant  to  Article  10  of  the  Convention  the  consequences  of  breach  of  a  contractual
obligation are governed by the law applicable to the contract by virtue of Articles 3 to 6 and
Article 12 of the Convention: in posting situations this will normally be the law of the home
State. This confirms that the rules of the host State concerning the consequences of breach of
an employment contract (e.g. termination  of the  employment  contract)  could  not  be  applied
under Article 3(10) of the Directive.

Finally,  the  group of  experts which prepared  the  transposal  of  the  Directive  considered  that
the  concept  of  "public  policy  provisions"  referred  to  in  Article  3(10)  covers  provisions
concerning  fundamental  rights  and  freedoms  as  laid  down  by  the  law  of  the  Member  State
concerned  and/or  by  international  law,  such  as  freedom  of  association  and  collective
bargaining, prohibition of forced labour, the principle of non-discrimination and elimination
of exploitative forms of child labour30, data protection and the right to privacy.

Consequently,  Member  States  whose  transposing  legislation  obliges  foreign  undertakings,
during the period of posting, to comply with the labour law of the host country in its totality,
are  clearly  exceeding  the  framework  established  by  the  Community  legislation.  Other
Member States which, in their transposing legislation, explicitly add to the list of mandatory
rules their own domestic public policy provisions, must also revise their legislation in the light
of the above.

4.2.

Practical application

4.2.1. Difficulties encountered by the Member States' authorities

Most  of  the  difficulties  encountered  by  the  Member  States  have  to  do  with  monitoring
compliance with the law. The particular nature of transnational postings, i.e. their temporary
nature  and  the  clash  between  different  legal  systems,  makes  such  monitoring  tricky  and
difficult.

Language  barriers  are  the  first  problem.  In  some  Member  States,  the  inability  of  the
monitoring services to read documents drafted in the national language of the posted workers
has resulted in Member States requiring such documents to be drafted in the language of the
country in which the services are provided.

24

The  right  to  organise  and  collective  bargaining  are  dealt  with  in  ILO  Conventions  87  and  98.
Conventions 29 and 105 cover the prohibition of forced labour,  while Convention 111 establishes the
principle of non-discrimination. Convention 182 covers the worst forms of child labour.

14

                                                
Another  source  of  difficulties  is  the  need  to  compare  different  countries'  legislations.  In
certain  fields  the  competent  services  are  not  allowed  simply  to  verify  compliance  with  the
provisions of  domestic  labour  law  but  must  also  verify  in  advance  whether  the  employer  is
complying  with  an  equivalent  piece  of  legislation  in  force  in  the  country  in  which  the
undertaking is established. However, in order to compare legislations it is necessary not only
to be familiar with the legislations of other Member States but also to be able to assess their
equivalence to the domestic law applicable in the host country.

Particular  difficulties  have  been  encountered  in  trying  to  compare  paid  leave  schemes  for
workers in the building sector. In some Member States these schemes are implemented via a
system  of  paid  leave  funds  under  which  workers'  leave  entitlements  acquired  with  different
employers in the course of a given year are aggregated. With a view to dividing the financial
burden between the employers concerned, employers in the building sector must pay into the
leave funds contributions calculated on the basis of the relevant national provisions. Insofar as
employers  established  abroad  are  obliged  to  participate  in  the  paid  leave  funds  scheme  in
force  in  the  host  country  and  must  pay  contributions  during  the  workers'  period  of  posting,
two different situations may arise.

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 extending beyond the cooperation provided between national authorities. The aim
is  to  ensure  mutual  recognition  of  paid  leave  schemes  and  to  avoid  employers  being  faced
with having to pay double contributions when they post workers.

Comparisons are, however, more complicated if the system of paid leave funds exists in only
one of the two countries concerned.  It was this situation which gave rise to the judgment in
the Joined Cases C-49/98, C-50/98, C-52/98 to C-54/98 and C-68/98 to C-71/9831, in which
the Court examined the question as to whether Articles 49 and 50 (ex 59 and ex 60) of the EC
Treaty preclude a Member State from imposing national  rules relating to the system of paid
leave funds on a business established in another Member State not possessing such a system
which provides services in the first Member State and posts workers there.

The  Court  points  out  that  the  freedom  to  provide  services,  as  one  of  the  fundamental
principles of the Treaty, may be restricted only by rules justified by overriding requirements
relating to the public interest, one of which is the protection of workers, and that it is for the
national  court  to  check  whether,  viewed  objectively,  the  rules  in  question  promote  the
protection of posted workers. According to the Court, it is necessary to check whether those
rules  confer  a  genuine  benefit  on  the  workers  concerned  which  significantly  adds  to  their
social  protection.  After  considering  the  potential  benefits  of  a  paid  leave  funds  scheme,  the
Court states that it is for the national court "to consider whether such potential benefits confer
real additional protection on posted workers. That assessment must take account, first, of the
protection  as  to  paid  leave  that  workers  already  enjoy  under  the  law  of  the  Member  State
where their employer is established."

The Court concludes that Articles 49 (ex 59) and 50 (ex 60) of the Treaty do not preclude a
Member State from imposing national rules such as those examined in this Case on a business
established in another Member State, "on the two-fold condition that: (i) the workers do not

31

Judgment of 25 October 2001 Finalarte

15

                                                
enjoy an essentially similar level of protection under the law of the Member State where their
employer is established, so that the application of the national rules of the first Member State
confers a genuine benefit on the workers concerned, which significantly adds to their social
protection, and (ii) the application of those rules by the first Member State is proportionate to
the public interest objective pursued."

It is clear that all these difficulties cannot be resolved without effective cooperation between
Member  States'  administrations.  Such  cooperation  should  be  the  means  for  the  monitoring
services  to  obtain  rapid  information  on  the  content  of  the  legislation  in  the  undertaking's
country  of  establishment.  It  should  also  be  the  means  for  obtaining  information  on  the
situation of the service provider established in another State.

As  regards  monitoring  compliance  with  the  terms  and  conditions  of  employment,  the
Commission  would  also  point  out  that  the  Court  of  Justice  emphasised  the  importance  of
administrative  cooperation  in  the  context  of  transnational  postings  in  the  Joined  Cases  C-
369/96  and  376/96,  although  these  Cases  did  not  relate  to  the  interpretation  of  Directive
96/71/EC. In these two Cases the Court was called upon to consider whether Articles 49 (ex
59) and 50 (ex 60) of the Treaty must be interpreted as meaning that they preclude a Member
State  from  requiring  an  undertaking  established  in  another  Member  State  and  temporarily
carrying out work in the first State to retain certain social and labour documents with an agent
in the country in which the work is performed.

On the principle of keeping social and labour documents in the country of posting, the Court
ruled  that  the  imposition  of  this  obligation  on  undertakings  from  another  Member  State
constitutes a restriction on the freedom to provide services within the meaning of Article 59
of the Treaty, which can be justified only if it is necessary to provide effective protection for
workers. The Court held that the effective protection of workers in the construction industry
may  require  that  certain  documents  are  kept  on  site,  or  at  least  in  an  accessible  and  clearly
identified  place  in  the  territory  of  the  host  Member  State,  so  that  they  are  available  to  the
authorities of that State responsible for carrying out checks, particularly where there exists no
organised  system  for  cooperation  or  exchanges  of  information  between  Member  States  as
provided for in Article 4 of Directive 96/71.

On  certain  arrangements  for  the  keeping  and  retention  of  such  documents,  the  Court  also
referred  to  the  organised  system  for  cooperation  and  exchanges  of  information  between
Member  States,  as  provided  for  in  Article  4  of  Directive  96/71,  will  shortly  render
superfluous the retention of the documents in the host Member State after the employer  has
ceased to employ workers there.

This  case  law  first  of  all  invites  the  Member  States  to  take  all  necessary  measures  for  the
setting up of an organised and effective system of cooperation in the context of the transposal
of the Directive which, according to the  Court of Justice,  must replace certain requirements
regarding  the  keeping  and  retention  of  social  documents  at  the  place  of  work.  After  the
implementation of Directive 96/71, arguments based on differences in the form or content of
the documents between  those  of  the  host  country  and  those  of  the  country  of  establishment
will  no  longer  be  accepted  to  justify  the  imposition  of  certain  obligations  in  this  field  on
undertakings  established  in  another  Member  State.  In  any  assessment  of  the  justification  of
these measures, it must be expected that the Court will take fully into account the cooperation
provided for in Article 4 of Directive 96/71, which should enable Member States to obtain all
the information necessary in connection with transnational postings.

16

4.2.2. Difficulties encountered by service provider undertakings and posted workers

The  undertakings  concerned  could  encounter  difficulties  arising  from  the  fact  that  the
Directive obliges them to comply with the law of a State other than the State in which they are
established and the  relevant  provisions  are  often  difficult  to  understand  and  sometimes  also
difficult  to  obtain.  The  legal  instruments  implementing  the  Directive  are  often  complicated
because they contain a multiplicity of references to other instruments. This legislative method
means that the texts cannot be understood without consulting other texts to which reference is
made.  Furthermore,  access  to  the  applicable  collective  agreements  may  prove  difficult  in
some Member States. Service providers also have to contend with the absence of translations
of the applicable texts.

The  Commission  would  point  out  in  this  respect  that  Article  4(3)  of  Directive  96/71/EC
explicitly provides  that each Member  State  shall  take  the  appropriate  measures  to  make  the
information  on  the  terms  and  conditions  of  employment  referred  to  in  Article  3  generally
available.  The  Commission  is  pleased  that  some  Member  States  have  taken  measures  to
facilitate access to the provisions applicable to posting situations, for example by publishing
information  brochures  or  creating  websites  with  relevant  information,  and  encourages
Member States to continue along this path.

It should also be pointed out that the Commission listed the difficulties mentioned by service
providers  in  connection  with  the  cross-border  provision  of  services,  notably  as  regards  the
posting of workers, in its report on the state of the internal market for services32, adopted on
30 July 2002.

4.3.

The acceding countries

As  regards  the  situation  in  the  acceding  countries,  it  should  be  remembered  that  these
countries are obliged to transpose the provisions of the Directive prior to joining the European
Union. Most of them have already adopted new provisions and/or adapted existing legislation
with a view to transposing the Directive on the posting of workers.

Transposal  is  seemingly  well  under  way  in  some  countries,  while  in  others  a  great  deal  of
work remains to be done. This applies in particular to Article 3(1), whereby,  as host States,
they  must  lay  down  the  rules  to  be  followed  by  foreign  undertakings  providing  services  on
their territory.

In order to get the acceding countries swiftly involved in the work of the government experts
group,  experts  from  these  countries  will  be  invited  to  participate  in  the  group's  meetings  in
2003.

32

COM(2002) 441 final

17

                                                
5.

CONCLUSION

Revision of Directive 96/71/EC

The results of the studies  of the transposition  of  Directive  96/71/EC,  as  outlined  above,  are
broadly  corroborated  by  the  Member  States'  answers  to  a  questionnaire  on  the  practical
application of the provisions arising from the Directive, and by the conclusions of the group
of government experts.

This group's conclusions can be summarised as follows:

(cid:1)  None of the Member States has encountered any particular legal difficulties in transposing

the Directive.

(cid:1)  Implementing  the  Directive  may  pose  practical  difficulties,  but  most  of  these  should
disappear  in  the  course  of  time  thanks  to  better  information  and  better  administrative
cooperation between public authorities (Article 4 of the Directive).

(cid:1)  It seems premature to consider amending the Directive. With regard to Article 4, on which
the  effective  implementation  of  the  Directive  primarily  depends,  it  is  clear  that  the
information circuits and the cooperation networks will take time to build up.

These opinions and positions indicate to the Commission that it is not necessary to amend the
Directive. The difficulties encountered in implementing it have so far tended to be more of a
practical nature than a legal nature. Consequently, as things stand at present the Commission
will not be presenting a proposal for a directive amending the arrangements for implementing
the posted workers Directive.

Identification of the problems

The problems identified can be divided into three groups:

(cid:1)  The situation in the Member States which have not deemed it necessary to adopt specific
and explicit transposal measures does not conform to the criteria established by the Court's
case  law  regarding  the  transposal  of  Community  directives.  The  mandatory  provisions
within the meaning of the Directive have not been identified and the rights and obligations
arising from the Directive have not been clearly defined. The jurisdiction clause of Article
6 has not been explicitly transposed.

(cid:1)  The  provisions  which  several  Member  States  have  made  applicable  to  posting  situations
under the first indent of Article 3(10) need to be reviewed in order to verify which of these
provisions  can  be  deemed  to  be  public  policy  provisions  within  the  meaning  of  private
international  law.  Public  policy  provisions  or  mandatory  provisions  ["lois  de  police"]  in
private  international  law  are  provisions  to  which  a  State  attaches  such  importance  that  it
requires them to be applied whenever there is a connection between the legal situation and
its  territory,  whatever  law  is  otherwise  applicable  to  the  contract  or  the  employment
relationship.

(cid:1)  The  practical  difficulties  mentioned  at  point  4.2.,  namely  the  obstacles  encountered  in
seeking information, in monitoring compliance with national implementing provisions and
in implementing penalties are such as to limit the effectiveness of the Directive.

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Proposed solutions to the problems

The first two groups of difficulties mentioned above are problems connected with transposing
the Directive into Member State's legal systems, and as such need to be resolved at national
level. There will be contacts on these matters between the Member States concerned and the
Commission.

As regards the third group of difficulties, the Commission will continue to assess what it can
do to help improve the dissemination of information and cooperation between Member States'
administrations.  At  this  stage,  it  is  considering  taking  and  encouraging  the  following
measures:

(cid:1)  A  group  of  government  experts  of  variable  composition,  set  up  under  the  Commission
Decision of 27 March 200233, will need to meet at least twice a year in order to discuss the
subjects  addressed  under  4.1.  and  4.2.  and  any  other  practical  difficulties  which  national
administrations  may  have  encountered.  The  members  of  the  Group  of  Directors-General
for  Industrial  Relations  created  by  the  aforementioned  Decision  are  asked  to  nominate
experts from the different competent administrations, cooperation bodies, liaison offices or
Labour Inspectorates depending on the subjects to be discussed. The group will need first
of all to clarify the allocation of the various cooperation tasks mentioned in Article 4 of the
Directive  and  exchange  information  on  the  organisation  and  functioning  of  such
cooperation.

(cid:1)  The group of experts will need to examine ways of facilitating access to information on the
provisions  applicable  to  posted  workers  in  the  host  Member  States,  for  example  through
clear  and  simple  brochures,  website  access  to  information  on  the  laws  and  collective
agreements applicable to posting situations, and contact persons in the liaison offices, with
links to the websites of the other Member States and the Commission.

(cid:1)  The Commission services will be instructed to collect all the relevant information from the
Member States, make it accessible to the public on the Commission's websites and create
links to the Member States' sites (laws and collective agreements, liaison offices).

(cid:1)  As regards the problems of monitoring compliance with the mandatory provisions within
the meaning of the Directive, the group will be asked to identify various essential items of
information  which  must  be  supplied  (by  the  undertakings  concerned)  to  the  monitoring
authorities  in  the  host  country.  Exchanges  of  information  and  good  practice  within  the
experts  group  could  help  to  simplify  and  bring  into  closer  alignment  the  practical
arrangements so far developed by Member States, particularly as regards statements to the
competent  administrations.  The  Commission  considers  that  this  group  will  also  be  the
appropriate body for seeking solutions to the language problems mentioned in this context.

(cid:1)  In  addition,  it  appears  necessary  not  only  to  improve  transnational  cooperation  via  the
mechanisms set up under Directive 96/71/EC, but also to evaluate the possibilities of the
various forms of collaboration established outside the Directive.

33

Decision concerning the creation of a  group of Directors-General  for Industrial  Relations  (2002/260),
OJ L 91/30

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(cid:1)  In the context of the implementation of the Internal Market Strategy for Services decided
upon  at  the  Lisbon  European  Council34,  the  Commission  is  reflecting  on  ways  of
improving  the  systems  of  administrative  cooperation  and  will  be  proposing  concrete
measures on this matter in 2003.

(cid:1)  Finally,  the  Commission  would  point  out  that  the  "Justice,  Home  Affairs  and  Civil
Protection"  Council  of  8  May  2003  reached  an  agreement  on  a  framework  decision
concerning the application of the principle of mutual recognition to financial penalties. In
the  future,  therefore,  a  simple  and  effective  system  will  facilitate  the  cross-border
enforcement  of  financial  penalties  once  the  provisions  of  this  framework  decision  have
been implemented by the Member States.

34

COM(2000) 888 final of 29.12.2000

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