Communication from the Commission - Guidance on the posting of workers in the framework of the provision of services {SEC(2006) 439}
Date: 2006-04-04
Institutions: European Commission
Subjects: application of EU law, freedom to provide services, labour law, labour mobility, services company, worker information, working conditions

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 4.4.2006 
COM(2006) 159 final 

COMMUNICATION FROM THE COMMISSION 

Guidance on the posting of workers in the framework of the provision of services  

{SEC(2006) 439} 

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COMMUNICATION FROM THE COMMISSION 

Guidance on the posting of workers in the framework of the provision of services  

1. 

PURPOSE OF THIS COMMUNICATION 

Article 49 of the EC Treaty (hereinafter known as ‘EC’) establishes the principle that Member 
States  should  ensure  the  freedom  to  provide  services  within  the  Community.  This 
fundamental freedom includes the right of a service provider established in a Member State to 
temporarily  post  workers  to  another  Member  State  in  order  to  provide  a  service.  Under  the 
case law, the free provision of services, a fundamental principle of the Treaty, may only be 
restricted by rules justified on one of the grounds listed in Article 46 EC and by overriding 
reasons based on the general interest, in accordance with the principles of non-discrimination 
and proportionality.  

Directive  96/71/EC  (hereinafter  known  as  ‘the  Directive’)  identifies  the  mandatory  rules  in 
force in the host country that are to be applied to posted workers by establishing a hard core 
of terms and conditions of work and employment and making them binding on undertakings 
posting  workers  to  a  Member  State  other  than  the  State  in  whose  territory  these  workers 
habitually work. The Directive has a clear social objective: that posted workers are guaranteed 
during  the  period  of  posting  the  respect  by  their  employer  of  certain  protective  rules  of  the 
Member State to which they are posted. These rules include in particular:  

•  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,  

•  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.  

Member  States  have  a  legal  obligation  to  adopt  the  rules  necessary  to  comply  with  the 
Directive, to take the appropriate measures in the event of failure to comply with those rules 
and to ensure that workers and/or their representatives have appropriate measures available to 
enforce the obligations defined in the Directive, as well as to make provision for cooperation 
between the public authorities. 

The  aim  of  the  Directive  is  to  reconcile  companies’  rights  to  provide  transnational  services 
under Article 49 EC, on the one hand, and the rights of workers temporarily posted abroad to 
provide them, on the other. 

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Following  the  adoption  by  the  European  Parliament  on  16  February  2006  of  a  legislative 
resolution on the proposal for a directive on services in the internal market, the Commission 
presented an amended proposal, in which Articles 24 and 25 of the initial proposal setting out 
specific provisions on the posting of workers are deleted. In these Articles, the Commission 
proposed  the  scrapping  of  certain  administrative  obligations  concerning  the  posting  of 
workers, accompanied by measures to reinforce administrative cooperation between Member 
States. 

The Commission undertook to draw up guidelines to clarify the prevailing Community law on 
the administrative procedures dealt with in Articles 24 and 25. This Communication tells the 
Member States how to observe the Community acquis as interpreted by the European Court 
of  Justice  with  reference  to  Article  49  EC  and  how  to  achieve  the  results  required  by  the 
Directive  in  a  more  effective  manner.  The  evidence  gathered  in  the  Commission's  report 
SEC(2006)  4391,  which  is  annexed  to  the  present  Communication,  shows  that  there  is 
considerable  scope  for  improving  access  to  information,  administrative  cooperation  and 
monitoring of compliance, inter alia by identifying and disseminating best practices.  

This  Communication  does  not  affect  the  Commission's  prerogative  provided  for  under  the 
Treaty to ensure Member States' compliance with Community law, nor does it affect general 
rules on visa requirements. 

2. 

GUIDANCE: CONTROL MEASURES 

In  its  case  law2,  the  Court  accepted  that  Member  States  could  verify  that  no  abuses  of  the 
freedom  to  provide  services  had  taken  place,  for  example  the  use  of  workers  from  third 
countries on the labour market of the host Member State. It also accepted the justification for 
the inspection measures necessary to monitor the observance of obligations justified under the 
general  interest.  However,  the  Commission  would  like  to  point  out  that,  when  performing 
inspections  as  part  of  the  implementation  of  the  Directive,  Member  States  must  abide  by 
Article  49  EC  and  refrain  from  creating  or  upholding  unjustified  and  disproportionate 
restrictions to the free provision of services within the Community. The Court has underlined 
several  times  that  these  inspections  must  be  suitable  for  achieving  the  objectives  pursued 
without restricting this freedom any more than necessary3, in accordance with the principle of 
proportionality. 

1 

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3 

This report is a follow-up to the European Parliament’s request to the Commission in its resolution of 
15 January 2004, P5_TA(2004)0030. 
Case  C-113/89  (Rush  Portuguesa  Ldª  v  Office  national  d'immigration),  judgment  of  27  March  1990, 
paragraph  17,  and  joint  cases  C-369/96  and  376/96  (public  prosecutor  v  Jean-Claude  Arblade  et  al), 
judgment of 23 November 1999, paragraph 62. 
See, in this context, the judgments Commission v Luxembourg, case C-445/03, judgment of 21 October 
2004, paragraph 40 and Commission v Germany, C-224/04, judgment of 19 January 2006, paragraph 
36. 

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2.1.  General application measures 

Of  the  measures  implemented  by  certain  Member  States,  the  following  urgently  require 
clarification on the basis of the case law of the Court of Justice based on Article 49 EC4: 

–  the requirement to have a representative on the territory of the host Member State; 

–  the requirement to obtain authorisation from the competent authorities of the host Member 

State or to be registered with them, or any other equivalent obligation; 

–  the requirement to make a declaration; 

–  the requirement to keep and maintain social documents on the territory of the host country 

and/or under the conditions which apply in its territory. 

a)  The  requirement  to  have  a  representative  established  on  the  territory  of  the  host 
Member State 

The  Court5  described  the  requirement  to  have  a  subsidiary  on  the  national  territory  as 
constituting "the very negation of the free provision of services". An obligation on the service 
provider to appoint a representative domiciled in a particular Member State in order to offer 
services  there  would  appear  to  be  incompatible  with  Article  49  EC,  being  similar  to  the 
requirement  to  elect  domicile  with  an  approved  agent,  which  has  already  been  declared 
unlawful by the Court6. 

In the judgment Arblade et al.7, the Court ruled that the obligation to have available and keep 
certain documents at the domicile of a natural person resident in the host Member State, who 
would  hold  them  as  the  employer’s  appointed  agent  or  proxy,  even  after  the  employer  has 
stopped employing workers in that State, could only be admissible if the national authorities 
were not able to effectively perform their control duties effectively in the absence of such an 
obligation. This case law must be interpreted on a case-by-case basis, but it can be considered 
that,  to  fulfil  this  role,  the  appointment  of  a  person  from  among  the  posted  workers,  for 
example  a  foreman,  to  act  as  the  link  between  the  foreign  company  and  the  labour 
inspectorate, should be sufficient. 

Conclusion: Pursuant to current case law, it must be concluded that the requirement made by a 
Member  State  that  companies  posting  workers  on  its  territory  must  have  a  representative 
domiciled in that host Member State is disproportionate for monitoring the working conditions 
of these workers. The appointment of a person from among the posted workers, for example a 
foreman, to act as the link between the foreign company the labour inspectorate, should suffice. 

4 

5 
6 

7 

These  measures  are  identified  in  the  Report  from  the  Commission  to  the  Council  and  the  European 
Parliament on the State of the Internal Market for Services – COM(2002) 441 of 30 July 2002. 
Case C-279/00 (Commission v Republic of Italy), judgment of 7 February 2002, paragraph 18. 
See, in this context, for example, the Court’s judgment of 6 March 2003 in case C-478/01, paragraph 
19. 
See footnote 2, paragraph 76. 

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b) The requirement to obtain authorisation from the competent authorities of the host 
Member State or to be registered with them, or any other equivalent obligation 

According to the established case law of the Court of Justice, national rules which stipulate 
that  the  provision  of  services  on  national  territory  by  a  company  established  in  another 
Member State is subject, as a general rule and for all activities, to obtaining an administrative 
authorisation, constitute a restriction of the free provision of services within the meaning of 
Article 49 EC (see, in particular, the Vander Elst judgment8).  

There  are  certain  activities  whose  exercise  is  regulated  in  the  Member  States  by  legal  or 
regulatory provisions including a specific authorisation system for each activity. For example, 
many Member States insist that temporary employment agents must  be properly authorised, 
so as to ensure that they have sufficient guarantees to perform this work. 

The host Member State is entitled to require prior authorisation only for the performance of 
certain  activities,  whatever  the  posting  situation,  on  condition  that  this  can  be  justified  by 
overriding reasons based on the general interest, is proportionate and is compatible with the 
relevant provisions of the Treaty concerning the free provision of services. This requirement 
must take into account the controls and monitoring already carried out in the Member State of 
origin. 

Conclusion: Pursuant to current case law, it must be concluded that any rules which make the 
posting of workers subject to systematic prior control, including by way of compulsory and 
systematic prior authorisation or registration, would be disproportionate.  

c) Requirement to make a declaration 

Almost half the Member States require service providers which post workers to their territory 
to  submit  a  prior  declaration  to  their  authorities9.  The  purpose  of  such  declarations  would 
appear to be, on the one hand, to enable the national authorities to verify the information on 
the  posting  of  workers  obtained  during  in  situ  checks  and,  on  the  other,  to  help  the  labour 
inspectorates  to  conduct  risk  assessments  in  order  to  target  their  checks  at  situations  or 
companies which are at high risk. 

At  this  stage,  the  Court  has  not  delivered  any  judgments  relating  specifically  to  the 
admissibility of an obligation to make a declaration concerning the posting of workers. In the 
case  Commission  v  Luxembourg10,  in  which  a  posted  worker  who  was  a  national  of  a  third 
country was required to have a work permit in order to provide services, the Court declared 
that  "a  measure  which  would  be  just  as  effective  whilst  being  less  restrictive  than  the 
measures at issue here would be an obligation imposed on a service-providing undertaking to 
report beforehand to the local authorities on the presence of one or more deployed workers, 
the  anticipated  duration  of  their  presence  and  the  provision  or  provisions  of  services 
justifying  the  deployment.  It  would  enable  those  authorities  to  monitor  compliance  with 
Luxembourg social welfare legislation during  the  deployment while at  the same time  taking 

8 

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10 

Case  C-43/93  (Raymond  Vander  Elst  v  Office  des  migrations  internationals),  judgment  of  9  August 
1994. 
The Member States in question are: Austria, Belgium, Germany, Spain, France, Greece, Luxembourg, 
Hungary, Latvia, Malta, Netherlands and Portugal. Slovenia and the Czech Republic impose a similar 
obligation on the recipients of the services. 
See footnote 3, paragraph 31. 

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account of the obligations by which the undertaking is already bound under the social welfare 
legislation applicable in the Member State of origin". 

As  regards  the  posting  of  workers  who  are  nationals  of  a  third  country  by  a  Community 
service  provider,  the  Court  concluded  in  its  judgment  in  the  case  Commission  v  Federal 
Republic of Germany11, that "as the Advocate General observed in point 27 of his Opinion, a 
requirement that the service provider furnishes a simple prior declaration certifying that the 
situation  of  the  workers  concerned  is  lawful  (…)  in  the  Member  State  where  that  provider 
employs  them,  would  give  the  national  authorities,  in  a  less  restrictive  but  as  effective  a 
manner as checks in advance of posting, a guarantee that those workers’ situation is lawful 
and  that  they  are  carrying  on  their  main  activity  in  the  Member  State  where  the  service 
provider  is  established.  Such  a  requirement  would  enable  the  national  authorities  to  check 
that information subsequently and to take the necessary measures if those workers’ situation 
was not regular". 

Under  this  case  law  of  the  Court,  a  declaration  is  deemed  to  be  a  measure  which  is  just  as 
effective  as  and  less  restrictive  than  a  prior  authorisation  when  it  comes  to  ensuring  that 
Member  States  are  informed  at  all  times  about  the  presence  of  posted  workers  from  third 
countries on their territory. 

The Member States must refrain from using declarations for purposes other than for providing 
information,  such  as  for  checking  or  registering  companies  which  provide  services,  which 
would amount to a system of authorisation. 

Conclusion:  On  the  basis  of  existing  case  law,  the  Commission  considers  that  the  host 
Member State, in order to be able to monitor compliance with the conditions of employment 
laid  down  in  the  Directive,  should  be  able  to  demand,  in  accordance  with  the  principle  of 
proportionality, that the service provider submit a declaration, by the time the work starts, at 
the  latest,  which  contains  information  on  the  workers  who  have  been  posted,  the  type  of 
service  they  will  provide,  where,  and  how  long  the  work  will  take.  The  declaration  could 
mention  that  posted  workers  from  third  countries  are  in  a  lawful  situation  in  the  country  in 
which the service provider is established, including with regard to the visa requirements, and 
legally employed in that country. 

d) The requirement to keep and maintain social documents on the territory of the host 
country and/or under the conditions which apply in its territory 

The  Court  of  Justice  has  expressed  its  opinion  on  the  obligation  to  keep  and  store  social 
security documents on posted workers in the host Member State. 

In its judgment in the case concerning Arblade et al.12, the Court pointed out that the effective 
protection  of  workers,  particularly  as  regards  health  and  safety  matters  and  working  hours, 
could require that  certain documents be kept in an accessible and clearly identified place in 
the  territory  of  the  host  Member  State,  so  that  they  were  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/EC”.  

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See footnote 3, paragraph 41. 
See footnote 2, paragraph 61. 

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However, in the same  judgment,  the  Court explained that, before  imposing  an  obligation of 
this kind on a service provider, the competent authorities in the host country would have to 
verify that the social protection of the workers concerned was not sufficiently safeguarded by 
the  production,  within  a  reasonable  time,  of  the  documents  kept  in  the  Member  State  of 
establishment13.  In  the  Finalarte  cases14,  the  Court  accepted  that  businesses  established 
outside the host Member State could be required to provide more information than businesses 
established in that State, to the extent that this difference in treatment could be attributed to 
objective differences between those businesses and businesses established in the host Member 
State. 

However, the Court also said that it was necessary to check whether the information provided 
in  the  documents  required  under  the  legislation  of  the  Member  State  of  establishment  were 
sufficient as a whole to enable the checks needed in the host Member State to be carried out15. 

Since the period for transposing the Directive came to an end in 1999, and since a system of 
cooperation on information pursuant to Article 4 has been gradually put in place, the Member 
States  have  had  less  scope  to  demand  that  certain  social  documents  be  kept  in  the  State  to 
which  workers  have  been  posted.  However,  the  Commission  takes  the  view  that  the  host 
Member State could still demand that certain documents which have to be generated and held 
in  situ  are  kept  in  the  workplace,  such  as  records  on  actual  hours  worked  or  documents  on 
conditions  of  health  and  safety  in  the  workplace.  In  order  that  the  authorities  in  the  host 
Member State can monitor conditions of employment in accordance with the Directive, they 
are  allowed  to  require  the  service  provider  to  produce  documents  which  are  considered 
necessary for carrying out these checks within a reasonable period of time. 

However,  it  is  not  acceptable  for  the  host  Member  State  to  demand  that  a  second  set  of 
documents which comply with its own legislation be provided simply because the documents 
which  comply  with  the  legislation  of  the  Member  State  of  establishment  exhibit  certain 
differences  in  terms  of  form  and  content.  Nor  is  it  acceptable  for  the  host  Member  State  to 
require  that  social  security  documents  be  provided  as  they  are  the  subject  of  a  specific 
procedure in the country of origin, pursuant to Regulation (EEC) No 1408/71. However, the 
Court  of  Justice  recognised  in  the  cases  concerning  Arblade  et  al.16  that  "the  items  of 
information  respectively  required  by  the  rules of  the  Member  State  of  establishment  and  by 
those of the host Member State (…) may differ to such an extent that the monitoring required 
under the rules of the host Member State cannot be carried out on the basis of documents kept 
in accordance with the rules of the Member State of establishment". 

Conclusion: On the basis of the aforementioned case law, it must be concluded that, in order 
to  be  able  to  monitor  compliance  with  the  conditions  of  employment  laid  down  in  the 
Directive, the host Member State must be able to demand, in accordance with the principle of 
proportionality, that documents be kept in the workplace which are, by their nature, created 
there, such as time sheets or documents on conditions of health and safety in the workplace. 
The host Member State cannot demand a second set of documents if the documents required 
under the legislation of the Member State of establishment, taken as a whole, already provide 

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16 

See footnote 2, paragraph 65. 
Joined Cases C-49/98, 50/98, 52/98, 54/98, 68/98 and 71/98 (Finalarte Sociedade de Construção Civil 
Lda v Urlaubs- und Lohnausgleichskasse der Bauwirtschaft and Others), judgment of 25 October 2001, 
paragraphs 69-74. 
See footnote 2, paragraphs 64-65. 
See footnote 2, paragraph 63. 

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sufficient information, to allow the host Member State to carry out the checks required.  

2.2.  Measures which apply to posted workers who are nationals of third countries 

In the existing case law on the freedom to provide services in accordance with Article 49 EC 
(see, for example, the judgments in the Vander Elst17 and Commission v Luxembourg cases18), 
the  Court  took  the  view  that  workers  who  were  regularly  and  habitually  employed  by  a 
service provider established in a Member State (country of origin) could be posted to another 
Member  State  (host  country)  without  being  subject  in  the  latter  State  to  administrative 
formalities, such as the obligation to obtain a work permit. 

The  Court  also  held  that  a  number  of  additional  conditions  which  certain  Member  States 
imposed with regard to the posting of workers from third countries were excessive. In the case 
Commission v Germany19, the Court held that German legislation ran counter to Article 49 EC 
by  requiring  nationals  of  third  countries  posted  to  Germany  by  a  company  established  in 
another Member State to have been employed by that company for at least a year in order to 
be  eligible  for  a  residence  visa.  In  this  case,  the  Court  confirmed  its  judgment  in  the  case 
Commission v Luxembourg20, in which it concluded that legislation requiring posted workers 
to  have  been  employed  for  at  least  six  months  before  being  posted  went  beyond  what  was 
required for the objective of the social welfare protection of workers who were nationals of a 
third country and therefore was not justified. In the latter judgment, the Court also censured 
the requirement concerning contracts of employment of indefinite duration. 

Conclusion:  On  the  basis  of  existing  case  law,  it  must  be  concluded  that  the  host  Member 
State  may  not  impose  administrative  formalities  or  additional  conditions  on  posted  workers 
from  third  countries  when  they  are  lawfully  employed  by  a  service  provider  established  in 
another Member State, without prejudice to the right of the host Member State to check that 
these  conditions  are  complied  with  in  the  Member  State  where  the  service  provider  is 
established.  

3. 

COOPERATION ON INFORMATION 

a) Access to information 

Article  4(3)  of  the  Directive  sets  out  a  clear  obligation  for  Member  States  to  take  the 
appropriate  measures  to  make  the  information  on  the  terms  and  conditions  of  employment 
generally available to foreign service providers and to workers. 

There is major scope for improvement as regards the use of tools to provide information on 
the  terms  and  conditions  of  employment  during  posting,  and  on  the  obligations  to  fulfil. 
Supplementary  efforts  are  needed  in  order  to  bring  about  visible  improvements  on  the 
following aspects: 

•  while  the  number  of  national  internet  sites  dedicated  specifically  to  posting  has  grown 
substantially,  there  is  still  a  need  for  Member  States  to  make  better  use  of  internet 

17 
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19 
20 

See footnote 8. 
See footnote 3. 
See footnote 3. 
See footnote 3. 

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possibilities and to improve the accessibility and clarity of the information provided on the 
national websites21; 

•  Member  States  need  to  make  it  clear  which  part  of  their  national  legislation  has  to  be 
applied by foreign service providers, and avoid having only information on labour law in 
general,  without  specifying  which  terms  and  conditions  have  to  be  applied  to  posted 
workers; 

•  information should be made available in other languages than the national language(s) of 

the host country; 

•  liaison offices need to be equipped with appropriate staff and other resources to fulfil their 

information duties; 

•  Member  States  should  indicate  a  contact  person  in  charge  of  dealing  with  requests  for 

information, as this works better than a large, anonymous structure; 

•  liaison offices also need to have at their disposal an efficiently organised structure. They 
need to be able to function as an intermediary between the person requesting information 
and other competent national bodies. 

In  order  to  fulfil  their  obligations,  Member  States  are  asked  to  redouble  their  efforts  to 
enhance, and improve access to, the information on the terms and conditions of employment 
that  must  be  applied  by  service  providers,  and  to  ensure  that  their  liaison  offices  are  in  a 
position  to  carry  out  their  tasks  effectively.  The  Commission  will  continue  to  support  the 
Member States in this area, especially through the expert group, and will monitor their efforts 
in order to make sure that they contribute to progress towards best practices. 

b) Cooperation between Member States 

Article 4(1) and (2) of the Directive imposes clear obligations as regards cooperation between 
national  administrations,  and  makes  it  the  responsibility  of  Member  States  to  create  the 
necessary  conditions  for  such  cooperation.  This  obligation  includes  the  creation  of  a 
monitoring  authority  that  can  reply  to  a  reasoned  request  on,  for  instance,  whether  the 
company providing transnational services is truly established in the Member State of origin or 
to a request for documentary evidence to establish whether the worker is considered a worker 
according to the legislation of the host Member State. 

The information request can also be needed in the reverse direction.  For instance, when the 
posting  is  over  and  the  posted  worker  wants  to  know  whether  he  received  what  he  was 
entitled to over the period of posting. 

In order to comply with Article 4 of the Directive, Member States have to ensure that liaison 
offices  and  monitoring  authorities  are  organised  and  equipped  in  such  a  way  as  to  function 
effectively  and  to  be  able  to  reply  promptly  to  requests.  This  may  require  liaison  offices 
and/or monitoring authorities to undertake investigations or to obtain information from other 
sources or bodies (such as social security institutions), and they will have to do so in the same 
way as in domestic cases and in accordance with national legislation. 

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The  national  websites  have 
in 
http://europa.eu.int/comm/employment_social/labour_law/postingofworkers_en.htm 

the  Commission  website  on  posting  of  workers: 

links 

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Transnational  cooperation  can  be  improved  by  building  on  the  initiatives  taken  by  the 
Commission through the expert group, in particular the drafting of a code of conduct on good 
cooperation and the adoption of a multilingual form for the exchange of information between 
authorities. In order to facilitate the exchange of information, use can be made in due time of 
the  electronic  system  which  will  be  set  up  by  the  Commission  in  support  of  the  Services 
Directive. 

In order to fulfil their obligations, Member States are asked to take the necessary measures to 
ensure  that  their  liaison  offices  and/or  monitoring  authorities  have  the  necessary  equipment 
and resources to respond effectively to requests for information and cross-border cooperation 
from the competent authorities of the other Member States. The Commission will continue to 
support  the  Member  States  in  this  area,  especially  by  making  more  appropriate  electronic 
systems available, and will monitor their progress closely. 

4. 

MONITORING  OF  COMPLIANCE  WITH  THE  DIRECTIVE  AND 
MEASURES IN THE EVENT OF FAILURE TO COMPLY 

Member States have an obligation to guarantee certain terms and conditions to workers posted 
to their territory under Article 3 of the Directive, and to take measures to prevent and combat 
any  unlawful  behaviour  by  service  providers,  such  as  refusing  to  offer  such  terms  and 
conditions. This is a fundamental condition for establishing fair competition, which improves 
public  perception  of  the  posting  of  workers  in  the  context  of  the  cross-border  movement  of 
services. Member States must, accordingly, ensure that mechanisms are in place to guarantee 
compliance with the implementing legislation on the posting of workers. 

Posted  workers  and/or  organisations  representing  them  should  have  the  possibility  to 
complain directly to the relevant authority of the host Member State, and enforcement should 
be able to be prompted by complaints by workers or competing undertakings. While this can 
contribute to better monitoring and enforcement, it also means that the monitoring authority 
must have the necessary resources and powers to follow up on such complaints. 

Member States need to evaluate constantly the effectiveness of labour inspectorates and other 
monitoring  systems  and  examine  ways  to  improve  them,  in  keeping  with  their  obligations 
under the Directive. These efforts may be supported by strengthening the cooperation between 
the national authorities responsible for monitoring (including labour inspectorates) on matters 
covered by the Directive. At least once a year representatives of the labour  inspectorates or 
other bodies responsible for the monitoring the application of the Directive should meet in the 
expert group on posting of workers. 

In case of failure to comply with the obligations under the Directive, the Member States are 
obliged under Article 5 of the Directive to take appropriate measures. While it is left to the 
Member States to choose the appropriate instruments to introduce, these have to be capable of 
guaranteeing  due  protection  of  rights  for  the  persons  concerned  and  be  similar  to  those 
applicable in case of violations of national law in purely domestic situations. 

Where  irregularities  are  detected,  Member  States  must  provide  for  measures,  including 
sanctions and penalties, which are genuine, proportionate and dissuasive in nature. They may 
also introduce appropriate procedures for workers and/or their representatives to enforce their 
rights.  Easy  access  to  courts  and  tribunals  for  posted  workers,  including  arbitration  or 

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mediation  procedures,  on  the  same  footing  as  national  workers,  is  a  precondition  in  this 
context. 

In a preliminary ruling22, the European Court of Justice expressed an opinion on a system of 
joint and several liability for general or principal contractors. The Court held that Article 5 of 
the  Directive,  interpreted  in  the  light  of  Article  49  EC,  did  not  preclude  the  use  of  such  a 
system  as  an  appropriate  measure  in  the  event  of  failure  to  comply  with  the  Directive.  The 
Court also laid down that such a measure must not go beyond what is necessary to attain the 
objective  pursued,  and  referred  to  the  national  court  for  application  of  this  judgment  in  the 
case in question.  

Member  States  are  invited  to  assess  the  impact  of  introducing  a  proportionate  and  non-
discriminatory  measure  of  this  kind  in  national  legislation.  The  Member  States  that  already 
have such a system in place are invited to assess its effectiveness as a proportionate and non-
discriminatory measure, in the event of failure to comply with the Directive. 

In order to fulfil their obligations, Member States are asked to re-examine their systems for 
monitoring and implementing the Directive. They are asked, in particular, to ensure that there 
is  a  mechanism  in  place  to  remedy  any  deficiencies;  that  appropriate  and  proportionate 
monitoring  measures  are  in  place;  and  that  service  providers  who  do  not  comply  can  be 
effectively sanctioned. The Commission undertakes to work with the Member States in order 
to improve transnational cooperation of labour inspectorates in the subject areas covered by 
the Directive on the posting of workers. 

5. 

CONCLUSIONS 

There is an urgent need to clarify the control measures which Member States can use, in the 
light  of  Article  49  EC  as  interpreted  by  the  Court's  judgments,  and  to  improve  access  to 
information  and  administrative  cooperation.  Member  States  should  act  to  ensure  that  the 
guidance provided in this Communication gives rise to concrete results as soon as possible. In 
order  to  assess  progress,  the  Commission  will  adopt  within  12  months  a  report  which  will 
examine  the  situation  in  all  Member  States  with  regard  to  all  aspects  covered  by  this 
Communication.  In  order  to  monitor  developments  in  the  Member  States  and  to  be  able  to 
undertake  an  objective  assessment,  on  the  basis  of  the  guidance  set  out  above,  the 
Commission will: 

•  address  a  detailed  questionnaire,  as  soon  as  possible,  to  national  authorities  and  social 
partners, inviting them to comment not only on their own measures but also on how they 
perceive and assess measures or actions undertaken by other authorities or social partners; 

•  make  a  form  available  through  the  Commission's  website,  allowing  users  to  set  out  their 
positive or negative experience with obtaining information, with international cooperation 
and with monitoring and enforcement; 

•  closely  monitor  and  assess,  on  an  ongoing  basis,  efforts  made  by  the  Member  States  to 
facilitate access to information and implement the code of conduct and the standard form 
for exchange of information. 

22 

Case C-60/03 (Wolff & Müller GmbH & Co. KG v. José Felipe Pereira Félix), judgment of 12 October 
2004, paragraph 37. 

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If,  as  a  result  of  this  monitoring  exercise,  the  Commission  comes  to  the  conclusion  that 
compliance  with  the  relevant  provisions  of  Community  law  and/or  co-operation  between 
Member States under Articles 4 and 5 of the Directive have not substantially improved, it will 
take the necessary steps to rectify this situation. 

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