Opinion of the European Economic and Social Committee on the ‘communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions on the implementation of Directive 96/71/EC in the Member States’ (COM(2003) 458 final)
Date: 2004-03-31
Institutions: European Economic and Social Committee
Subjects: accession to the European Union, application of EU law, approximation of laws, expatriate worker, labour law, labour mobility, national implementing measure, restriction on competition, working conditions

30.4.2004

EN

Official Journal of the European Union

C 112/49

b. What impact do CAP measures have in terms of genetic
diversity, and what impact can be expected from decoupling
and cross-compliance?

Even though a work programme has not been
the Committee welcomes the

3.10
submitted for the regulation,
detailed objectives set out in the draft.

4. Summary

4.1
In its proposal for a regulation the Commission already
to a large extent takes account of the proposals of the Member
States, the Parliament and the EESC on the withdrawn proposal
of 22 November 2001. The EESC welcomes the new proposal
for a regulation and expects the programme to be rapidly
adopted, implemented, evaluated and continued.

Brussels, 31 March 2004

The President

of the European Economic and Social Committee

Roger BRIESCH

Opinion of the European Economic and Social Committee on the ‘communication from the
Commission to the Council, the European Parliament, the Economic and Social Committee and the
Committee of the Regions on the implementation of Directive 96/71/EC in the Member States’

(COM(2003) 458 final)

(2004/C 112/15)

On 25 July 2004 the Commission decided to consult the European Economic and Social Committee, under
Article 262 of the Treaty establishing the European Community, on the above-mentioned communication.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 3 March 2004. The rapporteur was Ms Le Nouail
Marlière.

At its 407th plenary session of 31 March and 1 April 2004 (meeting of 31 March), the European
Economic and Social Committee adopted the following opinion by 93 votes to one with five abstentions.

1.

Introduction

Background

1.1 The directive

1.1.1
adopted in 1996 by the Council and the European Parliament.

The directive on the posting of workers (1) was

The directive seeks

to strike a balance between
1.1.2
extending the opportunities for businesses to provide services
in other Member States and social protection of workers. For
this reason, it defines a series of employment conditions which
posted workers are to be guaranteed in the territory of the host
regardless of which legal system governs posted
country,
workers' employment contracts. The directive defines a posted
worker as a worker who, for a limited period, carries out his
work in the territory of a Member State other than the State in
which he normally works (Article 2(1)).

(1) Directive 96/71/EC of the European Parliament and of the Council
concerning the posting of workers in the framework of the provi-
sion of services, OJ L 18 of 21.1.1997.

Regulation 1408/71, which deals with the coordina-
1.1.3
tion of social security in the EU in connection with the free
movement of workers and services, introduced postings as one
of the circumstances in which social insurance coverage could
continue in the State of residence when working in another
Member State for a maximum period of 12 months (2), or 18
months under certain conditions.

1.1.4 Directive 96/71/EC is concerned with the practical
coordination of employment conditions for posted workers.
Article 3 is the core of the text, stipulating the conditions
applicable to posted workers. These are laid down:

— by employment conditions established in law, regulation or

administrative provision;

— by fulfilling the criteria set out in the directive;

(2) Regulation 1408/71.

C 112/50

EN

Official Journal of the European Union

30.4.2004

— by specific employment conditions such as those referred to
in Article 3(1), listed in collective agreements which have
been declared universally applicable,
they
concern the activities referred to in the annex of the direc-
tive. This concerns activities in the construction sector;

insofar

as

— by specific provisions leaving the Member States to apply
the directive as they see fit, for example with regard to very
short-term postings, the one-month exception concerning
minimum rates of pay and the extension of the directive's
scope to include collective agreements in sectors other than
construction;

— a provision of the directive establishing its minimal char-
acter, i.e. that workers may receive more favourable condi-
tions of employment (Article 3(7)).

Together with transposition into national

legislation,
1.1.5
administrative cooperation (Article 4)
is also considered an
important means for implementing the provisions of the direc-
tive, not only for exchange of
information, but also for
measures necessary to prevention infringement of the rules set
out in the directive. Directly preventing infringements contri-
butes to social protection and the free movement of services.

1.2 The opinion of the Committee

1.2.1
In 1991, the ESC issued an opinion on the Proposal
for a Council Directive concerning the posting of workers in
the framework of the provision of services (COM(91) 230 final
– SYN 346, and ESC opinion CES 1512/91).

1.3.3
The legal study cites the provisions of conventions, the
implementation of cooperation on information (Article 4),
monitoring measures and penalties in the event of non-compli-
ance with the directive (Articles 5 and 6).

1.3.4
In chapter 4 of the communication, the Commission
assesses the situation regarding the transposition of the direc-
tive in the Member States, the method of transposition, and the
nature of the standards and collective agreements applicable.

Chapter 4 also mentions the practical and administra-
1.3.5
tive difficulties in application encountered by the Member
States, with three short paragraphs being given over to difficul-
ties encountered by service provider undertakings and posted
workers.

1.3.6
It concludes that since none of the Member States has
encountered any particular legal difficulties in transposing the
directive, implementation may pose some difficulties, but these
should disappear over time.

The Commission then concludes that it would there-
1.3.7
fore be premature to consider amending the directive. Finally,
it proposes that a group of government experts of variable
composition should be charged with examining ways of facili-
tating access to information on the provisions applicable to
posted workers and of monitoring compliance with provisions
in order to resolve the difficulties identified (countries failing to
transpose specific provisions, public policy provisions, informa-
tion seeking, compliance with national
transposition provi-
sions, and implementing penalties).

1.3 Why a Communication from the Commission?

2. General comments

1.3.1
States by the end of 1999.

The directive was to be transposed by the Member

2.1 On the Commission's lines of analysis

Article 8 of the directive stipulated that the Commis-
1.3.2
sion should review its operation by 16 December 2001,
in
order to see if it was necessary to propose any amendments to
the Commission
the Council. When the deadline expired,
began to monitor the implementation of
the directive in
Member State legislation. The conclusions of the report were
transposed into the Commission's communication on imple-
mentation of the directive. The communication is an evaluation
of the transposition, in legislative terms, of applicable national
rights. It introduces the content and objectives of the directive
under evaluation, and describes the legislative measures taken
in the Member States, dividing them into three groups: those
which have reproduced the terms of the directive, without indi-
cating to which provisions of their national
legislation the
matters covered by the directive correspond; those which have
sought to identify the applicable national provisions and have
inserted references to these national provisions; and lastly,
those Member States which have not adopted any specific
transposition legislation concerning the national provisions
applicable to posted workers.

2.1.1
The Committee considers the communication to be
useful, but insufficient. It calls upon the Commission to flesh
out its analysis, especially regarding the unfair competition and
social dumping which could result from bogus postings. The
Committee urges the Commission to conduct sector-based
consultations with those to whom transposition is effectively
addressed, particularly in the construction sector where the
social partners have not yet been consulted, since they have
mentioned problems concerning the definitions of posted
workers and the grey area comprising ‘self-employed’ workers.
This fuller analysis could focus on the practical implementation
of Article 3 of the directive in terms of real respect for the
fundamental rights of workers contained in it. In this connec-
tion,
the national consultations
carried out in the first exercise effectively shed light on prac-
tical difficulties in application and the real state of transposition
of the implementing provisions. In any case, the Committee
considers that more detailed work needs to be carried out on
the most advantageous provisions, in order to provide a more
accurate comparison of good practices and better inform all
workers and businesses concerned.

the Committee wonders if

30.4.2004

EN

Official Journal of the European Union

C 112/51

The definitions used in the different national

2.1.2
laws
regarding posted workers are of significance in terms of the
principles of the directive. Specific questions, which are impor-
tant if the evaluation is to be complete, must be raised. How
do the Member States recognise posted workers, and do they
apply the directive accordingly? What type of measures have
the Member States or the social partners taken to ensure
compliance with the directive? A number of aspects are of par-
ticular importance in this regard:

— clarification between the legislation and collective agree-

ments applicable in all the sectors in question;

— the position of posted workers within the national legisla-

tive framework and the applicable definition;

— the principle of application of minimum Community stan-

dards;

— the principle of equal treatment, in the light of the new

Treaty Article 13 and ensuing directives;

— compliance with provisions on minimum wages;

— provisions concerning social security and those concerning

employment conditions;

— the situation regarding posted workers who are third-

country nationals;

— the enforcement of a number of judgments, such as the
Arblade Leloup case concerning minimum rates of pay (1),
and the Guiot (2) and ULAK (3) cases, and in particular
before transposition of the directive in the Member States
except for Ireland and the United Kingdom.

— if distortions of competition in connection with free move-

ment of services are prevented;

— if small businesses enjoy proper and adequate access to the
information they need in order to implement the trans-
posed directive.

2.2.1
Several Member States have universally applicable
collective agreements in the construction sector. The main
question is how the provisions of such collective agreements
are used to implement the directive. The interpretation of the
employment conditions defined in Article 3 is of special impor-
tance in this regard. What are the minimum rates of pay,
minimum paid holidays and rest periods under the terms of
these collective agreements? Collective agreements may vary
considerably between Member States in these areas. One
example would be the use, in some Member States, of ‘social
funds’ for paid holidays. Membership of such funds may ensure
more advantageous conditions for posted workers. The ques-
tion is to find out how such advantageous conditions may be
measured and taken into account.

2.2.2 Not all the Member States have extended application
of collectively agreed labour conditions to posted workers in
other sectors mentioned in the annex to the directive, although
Article 3(10)(2) explicitly provides for this possibility.

2.2.2.1
The Committee urges the Commission to gather all
available information from the Member States and the new
accession countries concerning the number of posted workers
and the various sectors most affected, bearing in mind the
differing systems of industrial relations.

In view of

2.2
the
the communication's
Committee calls on the Commission to submit a new report so
that the following can be verified:

shortcomings,

— if real transparency of rights is applied;

— if the positive rights of workers are guaranteed;

— if workers' mobility is promoted or hindered by application
of the provisions arising from transposition in the Member
States of
the directive, given the risks of protectionist
restrictions on the labour market;

(1) Cases 369/96 and 376/96, CJEC, 23 November 1999.
(2) Case 272/94, CJEC, 28 March 1996.
(3) Cases C49/98, C50/98, C53/98.

2.2.3 On a number of occasions over recent years, the Euro-
pean Commission has been obliged to acknowledge that the
expectations of the mid-1980s regarding mobility have not
been borne out, or only to a minor extent. Less than 2 % of the
European working population works in a country other than
the country of origin. The figures for annual mobility are even
lower. EU estimates refer to 600,000 active workers outside
their own countries, not all of whom have the status of posted
workers and are therefore not covered by the directive. This
mobility seems to be restricted to executives and highly-skilled
workers on the one hand, and construction workers on the
other. The existence of pay-related and social dumping in some
EU countries and in some occupational sectors is connected
with the fact that in these high-risk sectors, even a relatively
small number of workers offering their services on the labour
market at significantly lower rates of pay can upset the existing
pay structure and trigger a down spiral of pay and prices.

C 112/52

EN

Official Journal of the European Union

30.4.2004

2.3 On the direct prevention of a weakening of social protection and

on free movement of services

— The communication does not at present justify concluding
from the difficulties encountered that the directive should
be simplified or revised. In this regard, national experience
(social partners in the construction sector, administrators,
work inspectors etc.) on posted workers constitutes a valu-
able source of information and is therefore of great impor-
tance.

3. Specific comments and proposals

In its new analysis, the Commission should first of all
3.1
consider the impact of enlargement on the implementation of
the directive in both existing EU Member States and the acces-
sion countries,
the transitional accession
periods. The analysis should also evaluate the regional and
cross-border or sectoral dimensions, especially the construction
sector.

taking account of

— It should ensure that the economic and social partners are
actively involved, especially at national and European level.
In the Committee's view, an assessment should be made of

whether the directive has enabled the rights of posted
workers (social protection, pensions, etc.)
to be more
clearly defined, and distortions of competition for local
businesses to be avoided.

3.2

The Committee also suggests the following:

— a more detailed analysis regarding the economic and social

partners;

— an evaluation of workers' and businesses'
mechanisms with a view to their improvement;

information

— promotion of local, regional or cross-border networks of

information centres;

— an inventory of best information-sharing practices for both
employers and employees,
for example between Finland
and Estonia, based in Tallinn, on the rights of posted
workers in Finland;

— a legal study to ensure that the Member States' framework
of
legislation and information on applicable collective
agreements is sufficiently clear, accessible and up-to-date in
the context of enlargement.

Brussels, 31 March 2004.

The President

of the European Economic and Social Committee

Roger BRIESCH