Commission Recommendation of 31 March 2008 on enhanced administrative cooperation in the context of the posting of workers in the framework of the provision of services (Text with EEA relevance)
Date: 2008-03-31
Institutions: European Commission
Subjects: administrative cooperation, information system, labour law, labour mobility, services company, worker information, working conditions

4.4.2008

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Official Journal of the European Union

C 85/1

I

(Resolutions, recommendations and opinions)

RECOMMENDATIONS

COMMISSION

COMMISSION RECOMMENDATION

of 31 March 2008

on enhanced administrative cooperation in the context of the posting of workers in the framework
of the provision of services

(Text with EEA relevance)

(2008/C 85/01)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(3)

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 211 thereof,

Notwithstanding improvements in terms of access to
justified concerns as to the
information, there are still
way the Member States have implemented and/or apply
in practice the rules on administrative cooperation as
provided for by Directive 96/71/EC (2). Satisfactory
implementation, correct application and effective compli-
in practice of Directive
ance with and enforcement
96/71/EC do not seem possible unless this situation is
corrected (3).

Whereas:

(1)

(2)

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 (1) imposes clear obligations as regards coopera-
tion between national administrations, and makes it the
responsibility of the Member States to create the neces-
sary conditions for such cooperation. This obligation
includes the designation,
in accordance with national
legislation and/or practice, of one or more monitoring
authorities organised and equipped in such a way as to
function effectively and to be able to deal promptly with
requests of information regarding terms and conditions
of employment covered by Directive 96/71/EC.

Directive 96/71/EC furthermore sets out a clear obliga-
tion for
the 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
concerned.

(1) OJ L 18, 21.1.1997, p. 1.

(4)

The monitoring exercise launched by the Commission on
the basis of its Communication ‘Guidance on the posting
in the framework of
of workers
the provision of
services’ (4)
furthermore showed that many Member
States tend to rely solely on their own national measures
and instruments to monitor the compliance with the
terms and conditions of employment applicable to
posted workers by service providers. 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 (5).

(2) Commission's Staff Working Documents SEC(2006) 439 and
SEC(2007) 747, as well as Communication ‘Posting of workers in the
framework of the provision of services: maximising its benefits and
potential while guaranteeing the protection of workers’, in particular
part 6 Conclusions, COM(2007) 304 final of 13 June 2007, page 9.
(3) See in this context also Resolution of the European Parliament of

11 July 2007, B6-0266/2007.

(4) COM(2006) 159 final, 4 April 2006.
(5) Communication ‘Posting of workers in the framework of the provision
of services: maximising its benefits and potential while guaranteeing
the protection of workers’,
in particular part 6 Conclusions,
COM(2007) 304 final of 13 June 2007, as well as the accompanying
Staff working document, SEC(2007) 747.

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(5)

(6)

(7)

To ensure compliance with their terms and conditions of
employment (1), the authorities of the Member State in
which the services are provided apply certain control
measures or administrative formalities to posting under-
takings. The necessity for preventive actions and appro-
priate sanctions aimed at protecting posted workers is
indisputable. The analysis of the control measures used
by the Member States, however, shows their striking
diversity and indicates that some of these may not be
proportionate and may therefore not be in conformity
either with Article 49 of the Treaty as interpreted by the
European Court of Justice or with Directive 96/71/EC.

Legitimate monitoring needs cannot be fulfilled while
fully complying with Community law unless the Member
States improve, and reinforce if necessary, the way they
effectively cooperate with each other and/or unless access
to information is improved as stipulated in Directive
96/71/EC (2).

Adequate and effective implementation and enforcement
are key elements in protecting posted workers rights,
whereas poor enforcement undermines the effectiveness
of the Community rules applicable in this area. Close
co-operation between the Commission and the Member
States is therefore essential, without neglecting the impor-
tant role of labour inspectorates and the social partners
in this respect.

the provision of

(8) With respect to the posting of workers in the framework
of
services different administrative
cultures, structures and languages, as well as lack of
clearly established procedures and clearly identified actors
constitute significant barriers for an efficient working
cooperation between Member States in this area. The use
of an appropriate and well functioning electronic infor-
mation system designed to facilitate mutual assistance
and information exchange between Member States is a
very effective tool to break down many of these barriers
and is thus essential for Member States to be able to
cooperate closely. Such a system should allow competent
authorities and other actors involved, such as social part-
ners, to identify easily their relevant interlocutors in other
Member States and to communicate in an efficient way.
Furthermore,
it should help in creating a climate of
mutual trust and confidence, fundamental for administra-
tive cooperation to function effectively.

(1) Idem Resolution of the European Parliament on the Schroedter report

of 26 October 2006.

(2) The same point

is stressed in the Resolution of

the European
Parliament, see in particular points 21 and 32 et seq. From the replies
received in the context of the public consultation launched on the
modernisation of labour law, COM(2006) 708 of 22 November 2006,
it resulted also that the need for better and improved cooperation was
also largely supported by the Member States (see COM(2007) 627 final
of 24 October 2007) and the accompanying Staff Working Document,
SEC(2007) 1373.

(9)

Providing easily accessible, accurate and up to date infor-
mation to undertakings and workers about the terms and
conditions of employment
that will apply to posted
workers in the host Member State is a fundamental
condition contributing to preventing the emergence of
conflicts, problematic situations and abuses. Therefore,
the necessary measures should be taken to provide effec-
tive access to information for posted workers and their
employers (3).

(10) Urgent action is required to remedy shortcomings in the
the
implementation, application and enforcement of
legislation pertaining to the posting of workers, by rein-
forcing administrative cooperation between the Member
States, through using more effective systems of exchange
of
improving access to information and
promoting exchange of information and on best prac-
tices,

information,

HEREBY RECOMMENDS:

1. Information exchange system

Member States should take the necessary measures and
make the required efforts to put in place an electronic
information exchange system, such as the Internal Market
Information System (‘IMI’) (4), and in particular to develop,
in close cooperation with Commission services, first of all
a — specific — application to support the administrative
cooperation necessary to improve the practical implemen-
tation of Directive 96/71/EC.

The development of such an electronic information exchange
system for the administrative cooperation in the context of
Directive 96/71/EC would imply the following for Member
States:

1.

2.

identifying the main issues and questions on which informa-
tion will have to be exchanged and which thus should be
included in the exchange system;

identifying the competent authorities and, if necessary, other
actors involved in the monitoring and control of the employ-
ment conditions of posted workers that will take part in the
exchange system;

(3) The same point and call for action was stressed by the European

Parliament in its Resolution of 11 July 2007, see point 18.

(4) 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 appli-
cations developed will support the revised Professional Qualifications
Directive (2005/36/EC of the European Parliament and of the Council)
and the Services Directive (2006/123/EC of the European Parliament
and of the Council).

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3. clarifying of the role of liaison offices;

4. examining the issue of adequate safeguards for the protection
of personal data exchanged during an information exchange
between Member States authorities and, if necessary, other
actors involved (1).

Member States should, on the basis of the results of these
preliminary examinations, furthermore assess and decide,
in cooperation with Commission services, whether IMI
provides the most suitable support for the information
exchange as set out in Article 4 of Directive 96/71/EC.

The Commission will provide support and assistance to the
Member States in this respect and undertakes to work very
closely with them in order to achieve the necessary progress in
due time. In particular, it will facilitate and coordinate the work
of an operational task force, to be set up on a voluntary basis,
and provide
appropriate,
throughout the development of the specific application.

assistance

technical

external

if

2. Access to information

Member States should increase their efforts to enhance
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.

In order to bring about further improvements with respect to
the access to information, Member States should:

1. avoid referring to or providing general

information on
labour law only, but instead to indicate clearly which terms
and conditions of employment and/or which part of their
(national and/or regional) legislation have to be applied to
workers posted to their territory;

2. take the necessary measures to make generally available the
information on which collective agreements are applicable
(and to whom), and which terms and conditions of employ-
ment have to be applied by foreign service providers; where
possible,
links to existing Internet sites and other contact
points, in particular the relevant Social Partners, should be
provided;

3. make this information available to workers and service provi-
ders in languages other than the national language(s) of the
country in which the services are provided; if possible, in a
summarised leaflet form indicating the main labour condi-
tions applicable;

4. make better use of possibilities offered by the Internet and to
the information

improve the accessibility and clarity of
provided on the national websites (2).

In addition Member States should:

5. enable liaison offices to have an efficiently organised struc-
ture at their disposal and be equipped with appropriate staff
and other resources to fulfil their duties to provide informa-
tion;

6.

indicate, if possible, a contact person within the liaison office
in charge of dealing with requests for information.

The Commission will continue to support the Member States in
this area, especially through the existing portal on the EUROPA
website with links to national websites on the posting of
workers.

3. Exchange of good practice

Member States should participate actively in a systematic
and formal process of identification and exchange of good
practice in the field of posting of workers through any
forums of cooperation established by the Commission to
that end, such as the envisaged High-Level Committee (for
further details see the Annex).

Done at Brussels, 31 March 2008.

For the Commission

Vladimír ŠPIDLA

Member of the Commission

(1) See in this context also Commission Decision 2008/49/EC of
12 December 2007 concerning the implementation of the Internal
Market Information System (IMI) as regards the protection of personal
data (OJ L 13, 16.1.2008, p. 18).

(2) The national websites have links in the Commission website on

posting of workers:
http://europa.eu.int/comm/employment_social/labour_law/postingof-
workers_en.htm

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Official Journal of the European Union

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ANNEX

High-Level Committee in the field of posting of workers (to be established): envisaged role, tasks and
responsibilities

The exchanges of information that have taken place so far on a voluntary basis within the informal group of govern-
mental experts on the posting of workers, have shown that the group was effective in improving the available means of
exchange of information on the terms and conditions of employment for posted workers. Furthermore, it has provided
useful information to the Commission with respect to the implementation and application of Directive 96/71/EC.

Enhanced administrative cooperation requires also developing effective means for identifying and exchanging good prac-
tice in all matters relevant to the correct application and enforcement in practice of Directive 96/71/EC. It will thus be
possible to greatly improve administrative cooperation and prevent the emergence of conflicts and the frequent recourse
to jurisdictional dispute settlement.

Therefore, as already announced in its Communication of 13 June 2007, the Commission envisages setting up a
High-Level Committee, with the following intended tasks and objectives:

1.

identify and promote the exchange of experience and best practices;

2. promote the exchange of relevant information, including information on existing forms of (bilateral) administrative

cooperation between the Member States and/or Social Partners;

3. examine (administrative) questions, difficulties and specific issues concerning the implementation, application, as well
as effective compliance with and enforcement of Directive 96/71/EC or the national implementing measures, relevant
for the posting of workers;

4. examine any difficulties which might arise in the application of Article 3(10) of Directive 96/71/EC;

5. monitor progress achieved in improving administrative cooperation, in particular the development of the — specific
— application to support the administrative cooperation, and the adaptation and implementation of the IMI, as well as
improvement of access to information and, if necessary, suggest steps or actions to be taken;

6. examine possibilities to increase effective compliance with and enforcement of workers rights and protection of their

position, if necessary;

7. engage in an in-depth examination of practical cross-border enforcement problems.

In order to reach these objectives, the High-Level Committee should closely involve the public bodies responsible for the
control of the legislation in Member States that applies to posted workers, such as labour inspectorates. It should also, in
accordance with national law and/or practice, formally involve social partners regularly, in particular representatives of
sectoral social partners in sectors with a high incidence of recourse to posted workers.

The Commission is ready to adopt a Commission Decision setting up such a High-Level Committee in the near future,
where its composition, objectives and working methods will be defined. To this effect, it will take into account the
outcome of the debate in the Council following this Recommendation.