Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions - Posting of workers in the framework of the provision of services: maximising its benefits and potential while guaranteeing the protection of workers {SEC(2007) 747}
Date: 2007-06-13
Institutions: European Commission
Subjects: access to information, administrative cooperation, application of EU law, freedom to provide services, labour law, labour mobility, organisation of work, working conditions

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 13.6.2007 
COM(2007) 304 final 

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

Posting of workers in the framework of the provision of services: 

maximising its benefits and potential while guaranteeing the protection of workers 

{SEC(2007) 747} 

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

Posting of workers in the framework of the provision of services - maximising its 
benefits and potential while guaranteeing the protection of workers 

1. 

INTRODUCTION 

On  4  April  2006  the  Commission  adopted  the  Communication  'Guidance  on  the  posting  of 
workers in the framework of the provision of services'1, as well as a Staff working document2 
on  the  implementation  of  Directive  96/71/EC  concerning  the  posting  of  workers  in  the 
framework  of  the  provision  of  services3  (hereinafter  "the  Directive").  The  aim  of  this 
Communication  was  to  assist  Member  States  in  achieving  the  results  required  by  this 
Directive  in  a  more  effective  manner  (in  particular  as  regards  access  to  information  and 
administrative  cooperation),  as  well  as  ensuring  full  compliance  with  the  prevailing 
Community  acquis,  notably  with  Article  49  EC  on  the  freedom  to  provide  services,  as 
interpreted  by  the  European  Court  of  Justice  (ECJ),  as  regards  administrative  requirements 
and control measures imposed on service providers. 

The  present  Communication  (and  the  attached  Staff  working  document)  responds  to  the 
commitment  taken  by  the  Commission  in  its  Communication  of  April  2006  to  monitor 
developments  in  the  Member  States4  with  respect  to  all  matters  addressed  in  that 
Communication. Its purpose is: 

•  to present an objective view of the situation; 

•  to  assess  whether  progress  was  achieved  since  April  2006,  reflecting  the 

guidelines issued by the Commission; 

•  to draw operational conclusions from the monitoring exercise;  

•  to indicate the appropriate steps and measures to rectify the situation, if necessary. 

The present Communication is based on a detailed examination of the situation in the Member 
States, described in the attached Staff working document. This examination draws mainly, but 
not exclusively, on information given by Member States and Social Partners at EU level (both 

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COM(2006) 159. 
SEC(2006) 439. 
Directive 96/71/EC  of  the European Parliament  and of  the  Council  of 16  December  1996  concerning 
the posting of workers in the framework of the provision of services (OJ L 18, 21.1.1997, p. 1). 
The analysis is limited to the 25 Member States of the Union in 2006. The implementation of the acquis 
in  Romania  and  Bulgaria  as  regards  posting  of  workers,  including  the  issues  discussed  in  the 
communication  adopted  on  4  April  2006,  will  be  assessed  separately  in  the  general  context  of 
assessment of implementation measures following enlargement. 

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cross-industry and sectoral) in reply to questionnaires submitted to them in October 20065. It 
also takes into account the information provided and the concerns expressed by the European 
Parliament in its Resolution of 26 October 2006 on the application of the Directive.  

There are no precise figures or estimates of posted workers in the EU. However, the overall 
number  of  posted  workers  is  estimated  to  be  just  under  1  million  or  about  0.4%  of  the  EU 
working age population in 20056. They represent significant numbers in some Member States 
(Germany,  France,  Luxembourg,  Belgium  or  Poland)  but  the  phenomenon  is  increasingly 
widespread and affects now all Member States as sending and/or as receiving countries. The 
economic importance  of  posting exceeds by far its  quantitative size,  as it can play a crucial 
economic  role  in  filling  temporary  shortfalls  in  the  labour  supply  in  certain  professions  or 
sectors (e.g. construction, transport). Furthermore, posting of workers enhances international 
trade  in  services  with  all  the  known  advantages  linked  to  the  single  market  (higher 
competition, efficiency gains etc.). 

On the other hand, employment conditions, wages in particular, offered to posted workers, if 
not  subject  to  proper  control  and  enforcement,  may  diverge  from  the  minimal  conditions 
established  by  law  or  negotiated  under  generally  applicable  collective  agreements.  If  such 
divergence takes place on a large scale this might undermine the organization and functioning 
of  local  labour  markets.  At  the  same  time,  on  a  more  general  level,  restrictions  on  labour 
market  access  may  exacerbate  resort  to  undeclared  work.  When  accompanied  by  lacunae  in 
enforcement of Community legislation already in place, this phenomenon leads to undesirable 
social consequences both for undeclared workers and the regular labour force7. 

2. 

CONTROL MEASURES – THE LEGAL FRAMEWORK AT EU-LEVEL 

2.1. 

Key role and importance of Directive 96/71/CE 

The  Directive  aims  to  reconcile  the  exercise  of  companies'  fundamental  freedom  to  provide 
cross border services under Article 49 EC, on the one hand, with the appropriate protection of 
the rights of workers temporarily posted abroad to provide them, on the other. In order to do 
that  it  identifies  the  mandatory  rules  of  general  interest  at  Community  level  that  must  be 
applied to posted workers in the host country. The Directive establishes a hard core of clearly 
defined  terms  and  conditions  of  work  and  employment  for  minimum  protection  of  workers 
that  must  be  complied  with  by  the  service  provider  in  the  host  country.  The  Directive  thus 
provides  a  significant  level  of  protection  for  workers,  who  may  be  vulnerable  given  their 
situation  (temporary  employment  in  a  foreign  country,  difficulty  to  obtain  proper 
representation, lack of knowledge of local laws, institutions and language). The Directive also 
plays  a  key  role  in  promoting  the  necessary  climate  of  fair  competition  between  all  service 
providers (including those from other Member States) by guaranteeing a level playing field, 
as well as legal certainty for service providers, service recipients, and workers posted within 
the context of the provision of services. 

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The  Commission  made  also  available  a  form  through  its  website,  allowing  users  to  set  out  their 
experience. 
The  most  reliable  and up-to-date  statistical  data presently  available  are based on  the number  of  E101 
certificates  delivered  by  the  social  security  institutions  of  the  sending  countries  for  every  posting  not 
exceeding 12 months.  
As indicated in the Commission report on the functioning of the transitional arrangements set out in the 
2003 Accession Treaty - COM(2006) 48, 8.2.2006, paragraph 20. 

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2.2.  Contents and pertinence of case law of the Court of Justice 

According  to  well  established  ECJ  case  law8,  Article  49  EC  on  the  freedom  to  provide 
services  requires  not  only  the  elimination  of  any  discrimination  against  a  service  provider 
established in another Member State by reason of its nationality, but also the elimination of 
any  restriction,  even  if  it  applies  indiscriminately  to  national  service  providers  and  to  those 
from  other  Member  States,  which  is  likely  to  prevent,  hamper  or  make  less  attractive  the 
activities of a service provider established in another Member State where it lawfully provides 
similar services.  

In addition, as a fundamental principle of the EC Treaty, the freedom to provide services may 
be limited only by rules which are justified by overriding reasons of general interest, provided 
that these apply without distinction, and insofar as that interest is not already protected by the 
rules to which the service provider is subject in the Member State in which he is established 
The ECJ has accepted worker protection9, including protection of workers in the construction 
sector10,  as  an  overriding  reason  of  general  interest.  Moreover,  application  of  such  national 
rules  of  a  Member  State  to  service  providers  established  in  another  Member  State  must  be 
necessary  to  ensure  attainment  of  the  objective  pursued  and  must  not  exceed  what  is 
necessary to attain the objective. Purely administrative  considerations can not be evoked by 
Member States in order to derogate from Community law11. 

Furthermore, the ECJ has accepted that Member States have the power to verify compliance 
with  national  and  Community  provisions  in  respect  of  the  provision  of  services.  Thus  it 
recognizes that inspection measures may be justified to monitor the observance of obligations 
justified by imperative reasons of general interest12. 

When performing inspections related to the implementation of the Directive, Member States 
must, however, abide by Article 49 EC and refrain from creating or upholding unjustified and 
disproportionate  restrictions  to  service  providers  within  the  Community.  The  ECJ  has 
underlined several times that these inspections must be suitable for achieving the objectives 
pursued  without  restricting  this  freedom  any  more  than  necessary13,  in  accordance  with  the 
principle of proportionality. 

It should also be recalled in this context that a Member State may not base itself, according to 
existing  case  law  of  the  ECJ,  on  a  general  presumption  of  fraud  or  abuse  by  a  person  or 

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As  summarised  in,  for  instance,  the  judgment  of  23.11.1999,  joined  cases  C-369/96  and  376/96, 
Arblade e.a., paragraphs 33-39 (and the case law referred to herein). 
See the Webb judgment of 17.12.1981, case 279/80, paragraph 19, and judgments of 3.2.1982, joined 
cases  62  and  63/81,  Seco  and  Desquenne  &  Giral,  paragraph  14,  and  of  27.3.1990,  C-113/89,  Rush 
Portuguesa, paragraph 18. 
Guiot judgment of 28.3.1996, case C-272/94, paragraph 16. 
See, in particular, the judgment of 26.1.1999, Terhoeve, Case C-18/95, ECR p. I-345, paragraph 45. 
In this context, see the Rush Portuguesa judgment of 27.3.1990, case C-113/89, paragraph 18, and the 
Arblade judgment, cited above, paragraphs 38, 61 to 63 and 74. 
See, in this context, the Rush Portuguesa judgment, cited above, paragraph 17, as well as the judgments 
of  21.10.2004,  Commission  v  Luxembourg,  case  C-445/03,  paragraph  40,  and  of  19.1.2006, 
Commission v Germany, C-224/04, paragraph 36. 

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company exercising a fundamental freedom guaranteed by the Treaty to justify a restriction of 
this fundamental freedom14. 

2.3.  Guidelines provided for in the Commission's Communication of April 2006 

In  its  Communication  of  April  2006,  the  Commission  explained  and  clarified  how  the 
Community  acquis,  and  in  particular  Article  49  EC  as  interpreted  by  the  ECJ,  had  to  be 
observed and how the results required by the Directive could be achieved in a more effective 
manner. Among the control measures applied by Member States in the context of supervising 
the  posting  of  workers,  it  explicitly  focussed  upon  the  following  types  of  administrative 
requirements: 

•  to have a representative established on the territory of the host Member State; 

•  to obtain a prior authorisation in the host Member State or to be registered with 

them, or any other equivalent obligation; 

•  to make a prior declaration to the authorities of the host Member State; 

•  to keep and maintain social documents on the territory of the host country and/or 

under the conditions which apply in its territory; as well as 

•  measures  which  apply  specifically  to  posted  workers  who  are  nationals  of  third 

countries. 

3. 

OVERVIEW OF THE SITUATION 

3.1. 

Control  measures  used  -  reasons  evoked  to  justify  the  necessity  to  impose  such 
measures 

According to the information supplied by the Member States15, nearly all impose at least one 
category of the above requirements: 

•  The  requirement  imposed  on the posting undertaking to have a representative in 
the  host  country  is  explicitly  made  in  6  Member  States16  (and  implicitly  in  3 
others17); 

•  A  specific  authorisation/registration  regime  for  posting  of  workers  exists  in  two 

Member States18; 

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See  for  instance  judgments  of  15.9.2005,  Commission  v  Denmark,  C-464/02,  paragraph  81,  of 
15.6.2006,  C-255/04,  Commission  v  France,  paragraph  52,  and  of  9.11.2006,  case  C-433/04, 
Commission v Belgium, paragraph 35. 
See for further details the services report, as well as the schematic overview provided for in Annex 1 of 
this report. 
I.e. Germany, Greece, Luxemburg, Austria, Finland and Sweden. 
I.e. Estonia, France and Latvia. 
Malta and Luxembourg (the latter requires an authorization only for posting of third country nationals). 

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•  The requirement to make a declaration prior to the commencement of the work by 
the  service  provider  exists  in  16  Member  States19;  whereas  one  Member  State20 
imposes such an obligation on the recipient of the service; 

•  Requirements  to  keep  and  maintain  certain  social  documents  on  the  territory  of 
the  host  country  and/or  under  the  conditions  which  apply  in  its  territory  are 
imposed in 14 Member States in varying ways and concerning different types of 
documents21. 

It results from the replies to the questionnaires and the general debate on the Communication 
of  April  2006,  that  Member  States  and  Social  Partners  have  divergent  views  as  to  whether 
certain  control  measures  are  needed  as  well  as  to  whether  these  are  compatible  with 
Community  law.  In  October  2006,  the  European  Parliament  adopted  a  Resolution22  which 
alleges the right of the host Member State to impose certain formalities to employers that post 
workers so as to make it possible for the authorities of that country to ensure compliance with 
the  terms  and  conditions  of  employment.  For  a  number  of  Member  States  this  constitutes  a 
highly  sensitive  issue,  touching  upon  key  characteristics  of  their  social  model.  Control 
measures  imposed  by  Member  States  are  embedded  in  their  legal  and  institutional 
frameworks,  and in some  Social  Partners can also be  entrusted with control and monitoring 
tasks  of  terms  and  conditions  of  employment.  Lack  of  information  on  the  identity  and/or 
legitimacy  of  service  providers,  the  temporary  and  often  very  short-term  nature  of  posting 
operations, the perceived risks of "social dumping" or distortion of competition, as well as the 
cultural and physical distance between controlling authorities, are mentioned as justification 
for the use of certain control measures by host country authorities. On the other hand, these 
are often perceived as excessive by service providers and authorities in sending countries, and 
pursuing goals that go beyond the protection of posted workers' rights.  

3.2. 

Assessment 

The inventory of control measures used by Member States shows their striking diversity.  

As  a  matter  of  principle,  it  is  not  intended  to  put  into  question  the  different  social  models 
chosen  by  Member  States  nor  the  way  they  organise  their  system  of  labour  relations  and 
collective  bargaining,  provided  that  it  is  implemented  and  applied  in  a  way  which  is  fully 
compatible  with  the  obligations  under  the  Treaty.  Furthermore,  the  necessity  for  preventive 
actions  and  appropriate  sanctions  aimed  at  countering  illegal  employment  and  undeclared 
work,  including  in  the  form  of  disguised  self-employment,  as  well  as  combating  unlawful 
activities by  fictitious foreign  temporary  employment agencies, is  indisputable. Last but not 
least, Member States have the obligation to ensure that minimum rates of pay, where relevant, 
are applied to employers providing services within their territory, regardless of the country in 
which the employer is established and Community law thus does not prohibit Member States 
from enforcing those rules by appropriate means. 

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Belgium,  Germany,  Greece,  Spain,  France,  Cyprus,  Latvia,  Lithuania,  Luxembourg,  Hungary,  Malta, 
Austria, Portugal, Slovenia, Slovakia and Finland. 
Czech Republic. 
Belgium,  Germany,  Estonia,  Greece,  Spain,  France,  Italy,  Luxembourg,  Malta,  Austria,  Portugal, 
Slovakia, Finland and Sweden. 
Resolution European Parliament on the Schroedter report of 26 October 2006. 

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When monitoring compliance with the nucleus of mandatory rules applicable, Member States 
need to strike the right balance between, on one side, the necessity to provide and safeguard 
the  effective  protection  of  workers  and,  on  the  other,  the  need  to  ensure  that  the  formal 
requirements  and  control  measures  used  or  imposed  in  order  to  guarantee  the  respect  of 
overriding  reasons  of  general  interest  (such  as  protection  of  posted  workers),  including  the 
way  these  are  effectively  applied,  exercised  or  performed  in  practice,  are  justified  and 
proportionate  in  view  of  the  objectives  pursued  and  aims  to  be  achieved.  In  particular  the 
principle  of  proportionality,  including  the  question  whether  the  legitimate  aim  can  not  be 
achieved  in  a  less  restrictive  but  equally  effective  manner,  is  to  be  observed.  The 
particularities inherent to the situation of posting (such as its temporary and often very short-
term nature, the perceived risk of "social dumping" or of serious distortion to competition, the 
cultural and physical distance between controlling authorities and posting undertakings), need 
to  be  sufficiently  taken  into  account,  with  the  result  that  a  case  by  case  assessment  of  the 
compatibility  is  required.  While  striking  the  balance,  the  controls  and  monitoring  already 
carried  out  in  the  Member  State  of  origin,  as  well  as  the  effectiveness  of  administrative 
cooperation will also have to be taken into consideration23. 

Even if a measure appears to be acceptable in itself, such as the use of a declaration by the 
time the work starts, indicating how many workers will be posted, where and for how long, 
additional formalities24 may be attached to it which may make its use so costly or difficult as 
to  hamper  unnecessarily  the  provision  of  services.  The  requirement  of  a  representative 
established in the host Member State and the obligation to keep certain social documents on 
its  territory,  without  any  exception  and/or  time  limitation,  and/or  the  obligation  to  draw  up 
documents  in  accordance  with  the  rules  in  the  host  country25,  is  unjustified  and 
disproportionate  for  the  monitoring  of  working  conditions  of  posted  workers  when 
information can be obtained via the employer or the authorities in the Member State of origin 
within  a  reasonable  delay.  The  effective  protection  of  workers,  however,  may  require  that 
certain  documents,  particularly  as  regards  health  and  safety  matters  and  working  hours,  are 
kept on site or within the territory of the host Member State26. Moreover, if and in so far as 
control  measures  do  not  significantly  add  to  the  protection  of  the  posted  workers,  their 
justification,  necessity  and  proportionality  is  questionable.  Furthermore,  measures  which 
apply  in  an  automatic  and  unconditional  manner,  on  the  basis  of  a  general  presumption  of 
fraud or abuse by a person or company exercising a fundamental freedom guaranteed by the 
Treaty, constitute an unjustified restriction27. 

In the light of the available information and pending further assessment, a number of control 
measures applied by Member States do not seem to be in conformity with Article 49 EC as 
interpreted  by  the  ECJ.  A  final  assessment  of  the  situation  will,  however,  depend  on  an 
assessment  as  to  whether  certain  legitimate  monitoring  needs  can  be  fulfilled  by  improved 

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For the European Parliament, in the Resolution mentioned above, host Member States should be able in 
all circumstances to require the documents needed to verify compliance, and the availability of a person 
who could act as a representative of the posting company is deemed necessary.  
Some Member States also require that the prior declaration needs to be accompanied by an E-101 form 
used for social security purposes in the context of Regulation (EEC) No 1408/71 (which may, as such, 
not be in line with the case law of the ECJ in this respect). 
Arblade judgement, cited above, paragraph 66. 
Arblade judgement, cited above, paragraph 61. 
See for instance the judgments of the ECJ of 15.9.2005, Commission v Denmark, C-464/02, paragraph 
81,  of  15.6.2006,  Commission  v  France,  C-255/04,  paragraph  52,  and  of  9.11.2006,  Commission  v 
Belgium, C-433/04, paragraphs 35-38. 

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access  to  information  and/or  more  effective  administrative  cooperation  between  the  host 
Member State and the Member State of origin (which will be the subject of chapter 4 below). 

3.3.  Measures applied to posted workers who are nationals of third countries 

The information received shows that a considerable number of Member States (1528) require a 
work permit or impose access-to-the-labour-market related visa requirements for posted third 
country nationals who are legally staying and are legally employed in another Member State. 
Additional  conditions  are  still  applied  with  regard  to  residence  permits  and/or  visa 
requirements,  which  may  hamper  the  effective  exercise  of  a  fundamental  freedom  by  the 
service  provider.  Among  such  conditions  figure  minimum  employment  periods  or  type  of 
contracts  in  the  country  of  origin,  or  a  minimum  duration  of  the  residence  permit  in  the 
country of establishment of the employer. 

Such measures are not in conformity with the Treaty rules on the freedom to provide services 
as  interpreted  by  the  European  Court  of  Justice.  In  its  Communication  of  April  200629,  the 
Commission concluded that on the basis of existing case law30 a host Member State may not 
impose  administrative  formalities  or  additional  conditions  on  posted  workers  who  are  third 
country  nationals  when  they  are  lawfully  employed  by  a  service  provider  established  in 
another Member State, without prejudice, however, to the right of the host Member State to 
check that these conditions are complied within the Member State where the service provider 
is established. Therefore, there is still a considerable number of Member States which do not 
completely or correctly respect this case law, or do not apply it at all. 

4. 

ACCESS TO INFORMATION – ADMINISTRATIVE COOPERATION 

Article 4 of the Directive outlines two axes of cooperation with respect to information in the 
context of posting of workers: 

•  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  designation  of  a  monitoring  authority  organised  and 
equipped in such a way as to function effectively and to be able to deal promptly 
with respect to requests regarding terms and conditions covered by the Directive. 

•  Furthermore, 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,  not  only  to  foreign  service 
providers, but also to the posted workers concerned31. 

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31 

Belgium, Denmark, Germany, Estonia, Ireland, Italy, Cyprus, Latvia, Luxembourg, Malta, Netherlands, 
Austria, Portugal, Slovakia and Finland. There are ECJ judgments regarding such requirements against 
Belgium, Germany and Luxembourg, and an open infringement procedure against Italy. 
See in particular point 2.2, page 8. 
See judgments of 9.8.1994, Vander Elst, case C-43/93, of 21.10.2004, Commission v Luxembourg, case 
C-445/03,  and  of  19.1.2006,  Commission  v  Germany,  case  C-224/04.  Idem  judgment  of  21.9.2006, 
Commission v Austria, case C-168/04. 
Thus, different types of cooperation and access to information are mentioned in Article 4: cooperation 
between  the  public  authorities  responsible  for  monitoring  the  terms  and  conditions  of  employment 

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The evidence gathered in the Commission's Staff working document SEC(2006) 439 showed 
that  there  was  considerable  scope  for  improved  access  to  information,  administrative 
cooperation  and  compliance  monitoring,  inter  alia  by  identifying  and  disseminating  best 
practices. The European Parliament resolution stressed that a large number of posted workers 
are  not  even  aware  of  their  rights  according  to  the  directive;  it  called  for  the  necessary 
measures to provide effective access to information for posted workers and their employers32. 

The Commission's own investigation and the replies to the questionnaires show encouraging 
improvements in a large number of Member States of the availability of information dedicated 
specifically to posting, be it via websites, contact points, brochures, leaflets, vade-mecums or 
other means.  

However,  a  number  of  deficiencies  were  still  noticed33.  Some  countries  only  publish 
information  in  their  national  language.  The  information  provided  appears  also  often  too 
limited  and/or  complex,  in  particular  in  situations  where  different  collective  agreements  at 
regional level are applicable, more than one monitoring authority exists or other parties than 
labour inspections are involved.  

As to the cooperation among Member States, the very small number of contacts made through 
liaison  offices, established in Article  4 of  the  Directive, indicates that Member States either 
ignore  this  form  of  cooperation  or  have  sought  other  forms,  for  instance  through  bilateral 
contacts  between  monitoring  authorities  of  neighbouring  countries.  In  practice  the 
'Cooperation standards' laid down in the Code of Conduct agreed in the group of government 
experts on posting of workers34 seem to have been implemented and respected when dealing 
with  requests  from  other  Member  States,  but  the  4  week  deadline  for  replies  is  reported  as 
being  rarely  met.  The  use  of  the  multilingual  form  is  not  widespread  and  a  number  of 
criticisms  have  been  formulated  as  to  its  effectiveness.  Several  replies  indicate  that  the  role 
and responsibilities of the liaison offices merit clarification, and may even have to be revised.  

To  sum  up,  notwithstanding  improvements  in  terms  of  access  to  information,  there  are 
justified  concerns  as  to  the  way  Member  States  implement  and/or  apply  the  rules  on 
administrative  cooperation  as  provided  for  by  the  Directive.  Successful  implementation  and 
application of the Directive does not seem possible unless this situation is corrected. Access to 
advance  information  about  the  terms  and  conditions  of  employment  applicable  in  the  host 
country is a  prerequisite for  interested parties to be able to perform the services required in 
compliance with the provisions resulting from the Directive and its transposition in national 
law.  The  proper  functioning  of  administrative  cooperation  among  Member  States  is  an 
essential  instrument  for  compliance  control;  its  virtual  absence  may  explain  why  Member 
States  revert  to  control  measures,  which  appear  unnecessary  and/or  disproportionate  in  the 
light of the interpretation by the ECJ of Article 49 EC.  

referred  to  in  the  Directive;  close  cooperation  between  the  Commission  and  the  public  authorities  to 
examine  any  difficulties  which  might  arise  in  the  application  of  Article  3(10);  and  the  necessity  to 
ensure  that  the  information  on  the  terms  and  conditions  of  employment  is  generally  available  (Idem 
Communication: The implementation of Directive 96/71/EC in the Member States - COM(2003) 458, 
25.7.2003, p. 10. 
See point 18 of the Resolution. 
See for more details the Services Report. 
Set  up  under  the  Commission  Decision  concerning  the  creation  of  a  group  of  Directors-General  for 
Industrial Relations (2002/260/EC) of 27 March 2002 ( OJ L 91, 6.4.2002, p. 30). 

32 
33 
34 

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5. 

REINFORCING MONITORING OF COMPLIANCE AND ENFORCEMENT 

According to the Directive, Member States have to ensure compliance with the provisions of 
the Directive by taking appropriate measures, in particular to ensure adequate procedures for 
enforcement of obligations under the Directive. As provided for by Article 6 of the Directive, 
Member States have made it possible to institute judicial proceedings in their territory in order 
to allow enforcement of the right to the terms and conditions of employment guaranteed by 
the Directive. 

Although  the  application  of  the  Directive  does  not  seem  to  have  given  rise  to  many  formal 
complaints or legal proceedings, the European Parliament35, as well as a number of replies to 
the questionnaires, in particular from social partners, regret that the mechanisms put in place 
to  remedy  deficiencies  would  not  be  sufficient  and  would  offer  neither  appropriate  nor 
proportionate measures to monitor effectively compliance with the Directive. Social partners 
stress  the  lack  of  collective  legal  actions,  whereas  some  Member  States  stress  the  need  for 
EU-instruments  for  the  effective  cross-border  sanctioning  of  infringements  by  non-national 
service providers. 

Enforcement  of  fines  imposed  abroad  is  often  mentioned  as  problematic.  A  number  of 
reactions  question  the  usefulness  for  administrative  sanctions  imposed  in  the  context  of 
posting of workers of the Council Framework Decision 2005/214/JHA of 24 February 2005 
on the application of the principle of mutual recognition to financial penalties36. Although the 
latter  should  be  considered  to  apply  to  posting  of  workers,  its  pertinence  is  contested:  the 
procedures leading to an enforceable decision are considered too long to cover the majority of 
cross  border  situations,  taking  also  in  consideration  the  temporary  and  often  short  nature  of 
posting.  Furthermore,  some  Member  States  indicate  that  their  national  procedural  rules 
sometimes  make  it  overly  difficult  (or  even  prohibit)  to  launch  administrative  procedures 
against companies established in another Member State. 

Replies to the questionnaires show that a variety of joint and several liability systems exist in 
some  Member  States37,  which  impose  the  monitoring  obligation  directly  on  the  receiving 
company or contractor in the host country. This is seen by the Member States concerned as 
offering  a  direct,  effective  and  feasible  method  of  control  and  verification,  compared  to 
lengthy procedures with respect to a company or subcontractor established in another Member 
State.  

The ECJ held38 that Article 5 of the Directive, interpreted in the light of Article 49 EC, did in 
principle not preclude the use of a system of joint and several liability for general or principal 
contractors as an appropriate measure in the event of failure to comply with the Directive. The 
Court, however, also indicated that such a measure must not go beyond what is necessary to 
attain the objective pursued (referring the assessment of the proportionality of this measure to 
the national court). In a more recent judgment39 it considered a specific joint liability system 
disproportionate and contrary to Article 49 EC among other reasons because of its automatic 
and unconditional nature and excessive scope.  

35 
36 
37 
38 

39 

See Resolution on Schroedter report under I, and points 29 et seq. 
JO L 76, 22.3.2005, p. 17. 
In particular: Austria, Belgium, France, the Netherlands, and more recently Finland.  
Case C-60/03 (Wolff & Müller GmbH & Co. KG v. José Felipe Pereira Félix), judgment of 12.11.2004, 
paragraph 37. 
Judgment of 9.11.2006, Commission v Belgium, case C-433/04, in particular paragraphs 37-41. 

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Whether  subsidiary  liability  could  constitute  an  effective  and  proportionate  way  to  increase 
the  monitoring  and  enforcement  of  compliance  with  Community  law  merits  further 
examination and reflection. A similar question was included in the Commission's Green Paper 
"Modernising labour law to meet the challenges of the 21st century"40. 

6. 

CONCLUSIONS  

The monitoring exercise launched on the basis of the Commission's Communication of April 
2006  shows  that  many  Member  States  rely  solely  on  their  own  national  measures  and 
instruments to control service providers and in a way which does not always appear to be in 
conformity neither with Article 49 EC as interpreted by the ECJ nor with the Directive. This 
situation  may  well  be  related  to,  if  not  caused  by,  the  virtual  absence  of  administrative 
cooperation, the still unsatisfactory access to information as well as cross-border enforcement 
problems.  These  problems  cannot  be  solved  unless  Member  States  improve  the  way  they 
cooperate  with  each  other  and,  in  particular  comply  with  their  obligations  regarding 
administrative  cooperation  and  access  to  information  as  stipulated  in  the  Directive41,42.  In 
complying with their obligations, Member States would substantially contribute to a reduction 
of administrative burdens in line with the objectives set by the European Council. 

Improved administrative cooperation could also constitute an important element when aiming 
to  improve  and  increase  effective  compliance  with  and  enforcement  of  Community  law. 
Adequate and effective implementation and enforcement are key elements in the protection of 
posted  workers  rights,  whereas  poor  enforcement  undermines  the  effectiveness  of  the 
Community rules applicable in this area. Close, if necessary reinforced, co-operation between 
the  Commission  and  the  Member  States  is  therefore  primordial,  but  the  important  role  of 
Social  Partners  in  this  respect  should  not  be  neglected.  The  Commission  will  use  all 
instruments at its disposal to remedy the shortcomings in the implementation of the legislation 
pertaining to posting of workers which have been identified in the Communication. 

Therefore,  the  Commission  considers  that  urgent  action  is  required  and  envisages  the 
following measures: 

•  Adopt  a  Commission  Recommendation  (on  the  basis  of  Article  211  EC),  to  be 
endorsed by Council conclusions in order to reinforce administrative cooperation 
amongst  Member  States  through  the  use  of  the  Internal  Market  Information 
System (IMI)43 and to clarify the role of liaison offices; 

•  Adopt  a  Commission  Decision  setting  up  a  high  level  Committee,  in  order  to 
support  and  assist  the  Member  States  in  identifying  and  exchanging  good 

40 
41 

42  

43 

COM(2006) 708, 22.11.2006. 
This point is also stressed in the Resolution of the European Parliament. See in particular points 21 and 
32 et seq.  
In any case, the lack of effective cooperation which would be due to a refusal or reluctance from the 
part  of  Member  States  to  make  use  of  such  an  instrument  cannot  just  by  itself  justify  that  control 
measures are maintained. 
IMI  is  an  information  system  designed  to  facilitate  mutual  assistance  and  information  exchange 
between  Member  States.  It  provides  a  tool  for  secure  and  fast  data  exchange  among  European 
authorities, allowing them to work together effectively despite barriers due to different languages and 
administrative  procedures  and  structures.  The  first  applications  developed  will  support  the  revised 
Professional Qualifications Directive (2005/36/EC) and the Services Directive (2006/123/EC). 

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practices,  to  institutionalise  the  current,  informal  Group  of  Government  Experts 
by  identifying  with  greater  precision  its  role,  tasks  and  responsibilities,  and  to 
formally involve social partners regularly; 

•  Ensure effective compliance with the fundamental freedoms of the EC-Treaty, as 
interpreted  by  the  ECJ,  by  those  Member  States  which  impose  administrative 
requirements  and  control  measures  considered  incompatible  with  prevailing 
Community  law  (such  as  the  requirement to have a representative established in 
the  host  Member  State,  or  an  obligation  to  keep  certain  social  documents  on  its 
territory, without any exception and/or time limitation,  when information can be 
obtained via the employer or the authorities in the Member State of origin within a 
reasonable  delay)  on  a  case  by  case  basis,  including,  if  necessary,  launching 
infringement proceedings under Article 226 EC; 

•  Ensure the conformity with Community law, as interpreted by the ECJ notably in 
the  judgement  "Vander  Elst",  with  respect  to  those  Member  States  which  still 
require work  permits and  other conditions to posted third country nationals who 
are  legally  staying  and  are  legally  employed  in  another  Member  State,  by 
launching infringement procedures under Article 226 EC;  

•  Continue monitoring the Member States' national transposition measures and their 
application  on  all  other  matters  not  dealt  with  in  this  Communication,  including 
those situations where, contrary to Article 4(3), accessibility and transparency of 
information remains a problem, and, if necessary, take the appropriate measures, 
including launching infringement procedures under Article 226 EC;  

•  Engage,  for  example  in  the  above-mentioned  high  level  Committee,  with  the 
Member  States  and  Social  Partners  in  an  in-depth  examination  of  cross-border 
enforcement problems (sanctions, fines, joint and several liability). On the basis of 
this examination, the Commission will take appropriate action. 

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