Opinion of the European Economic and Social Committee on the Posting of workers in the framework of the provision of services — Maximising its benefits and potential while guaranteeing the protection of workers COM(2007) 304 final
Date: 2008-05-29
Institutions: European Economic and Social Committee
Subjects: access to information, administrative cooperation, application of EU law, freedom to provide services, labour law, labour mobility, organisation of work, working conditions

30.8.2008

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Official Journal of the European Union

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Opinion of the European Economic and Social Committee on the Posting of workers in the frame-
work of the provision of services — Maximising its benefits and potential while guaranteeing the
protection of workers

COM(2007) 304 final

(2008/C 224/22)

On 13 June 2007, the Commission decided to consult the European Economic and Social Committee,
under Article 262 of the Treaty establishing the European Community, on the

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.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 7 May 2008. The rapporteur was Ms Le Nouail
Marlière.

At its 445th plenary session, held on 28 and 29 May 2008 (meeting of 29 May), the European Economic
and Social Committee adopted the following opinion by 116 votes to 1, with 4 abstentions.

On 13 June 2007, the Commission published the aforemen-
tioned Communication, in which it assesses the measures taken
by the Member States to transpose Directive 96/71/EC on the
posting of workers in the framework of the provision of services
in the European Union and suggests improvements to its imple-
mentation.

— if real transparency of rights is applied,

— if the positive rights of workers are guaranteed,

Directive 96/71/EC aims to reconcile the exercise of the funda-
mental freedom to provide cross-border services under Article
49 TEC for service providers, on the one hand, with the need to
ensure an appropriate level of protection of
the terms and
conditions of employment of workers
temporarily posted
abroad to provide these services.

According to the Commission, a worker is said to be ‘posted’
when he is sent by his employer to a Member State in order to
perform work there, in the framework of the contracted provi-
sion of services. This cross-border provision of services implies
the sending of employees to a Member State other than the one
in which they usually work, and creates a specific category of
workers, known as ‘posted workers’. However, Member States
had been left some scope for interpretation as regards the defi-
nition.

This Communication follows on from two communications (1),
which included guidelines pursuant
to Directive 96/71/EC
which stipulated that the Commission should review the text by
16 December 2001 with a view to submitting proposals to the
Council for any amendments which might be needed.

The Committee had issued an opinion (2) wherein it recom-
mended that the Commission should ‘submit a new report so
that the following can be verified:

(1) COM(2003) 458 The implementation of Directive 96/71/EC in the
Member States, and COM(2006) 159 of 4.4.2006 on Guidance on the
posting of workers in the framework of the provision of services.

(2) EESC opinion of 31 March 2004 on the Communication from the
Commission to the Council, the European Parliament, the European
Economic and Social Committee and the Committee of the Regions:
The implementation of Directive 96/71/EC in the Member States,
rapporteur: Ms Le Nouail Marlière (OJ C 112 of 30.4.2004).

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

— if distortions of competition in connection with free move-

ment of services were prevented,

— and lastly if small businesses enjoy proper and adequate
access to the information they need in order to implement
the transposed directive’.

The Committee also suggested ‘a more detailed analysis
regarding the economic and social partners, an evaluation of
workers' and businesses' information mechanisms with a view
to their improvement, promotion of local, regional or cross-
border networks of information centres, drawing on an inven-
tory of best information-sharing practices for both employers
and employees, a legal study to ensure that the Member States'
framework of legislation and information on applicable collec-
tive agreements is sufficiently clear, accessible and up-to-date in
the context of enlargement’.

1. General comments

This Communication is based on a third assessment
1.1
completed many years after the date set by the directive itself
(16 December 2001 at the latest) which takes account of trans-
positions and enactments in all Member States, thus highlighting

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the specific character of this sector which is not only legal, tech-
nical and economic, but primarily social and human, resulting
in difficulties in assessment, transposition, implementation and
supervision. This highly legal Directive involves interpretations
and scope for interpretation at several levels as regards its trans-
position and case-law, which leads to practical problems for
businesses, posted workers and work supervisors, as was
pointed out by the social partners and local and national autho-
rities during parliamentary hearings. The European Parlia-
ment (3) issued a number of recommendations, including one
which stipulated that the social partners should be given a
stronger role, without however providing details on how this
should be achieved.

competition between all

1.2
The Committee points out that one way to ensure that
certain freedoms considered on the same footing (personal
freedom and the freedom to provide services) remain equal in
reality is to ensure that the directive guarantees compliance with
a significant level of protection of the rights of posted workers
and fair
service providers. The
Committee does not feel that it is possible to calmly envisage
free movement of services at the expense of certain workers.
Recent case-law (4) may be interpreted as moving along these
lines, but the Committee would point out that ILO conventions
No 87 on the Freedom of Association and No 98 on Collective
Bargaining state that the process of framing social
legislation
must
follow the customary procedures for such legislation,
including collective bargaining at enterprise or any other level,
and in areas as varied as setting minimum wages in a sector or
company. Since the transposition of Directive 96/71/EC came
under this customary lawmaking framework in each Member
State, the Commission should enforce international law, as inter-
preted by ad hoc supervisory bodies, and labour standards rati-
fied by all Member States, in accordance with primary law.

Currently, in addition to the new Communication under
1.3
examination,
the Commission has proposed a recommenda-
tion (5) for adoption by the Council on enhanced administrative
cooperation, an information exchange system and the sharing
and exchange of best practice.

these new proposals,

Taking into account all

1.4
the
Committee stresses that the Commission is moving in the right
direction, in particular with the proposal to boost administrative
cooperation and set up an information exchange system
between Member States to exchange information on labour law
useful to workers posted to that State and on relevant collective
to provide workers and service providers with
conventions,
access to this information in languages other than the official
language or languages of the country in which the services are

(3) And more recently B6-0266/2007 of 11 July 2007.
(4) Laval c) Svenska Affaire C-341/05.
(5) Commission Recommendation of (…) ‘on enhanced administrative
cooperation in the context of the posting of workers in the framework
of the provision of services’ IP/08/514.

being provided, to set up liaison bureaux with appointed repre-
sentatives and to involve the social partners in the high ranking
committee, etc.

in at least three languages,

the specific area in question (mobility,

1.5
The Commission however has submitted the document
assessing the measures to implement and transpose these rules
in English only, thereby minimising the assessment's potential
contribution to the Member States and the social partners at all
levels. The Committee suggests that the Commission take into
freedom of
account
movement), and make the effort to publish the attached docu-
ment (6)
including one southern
romance language and one Slav language, in addition to English.
The matter of language will arise in any event, and if the new
provisions are to have the anticipated impact, the Committee
recommends that appropriate language arrangements be intro-
duced both when providing information for the social partners
who play a major role in the field and for the information
exchange system between the Member States. The Committee
refers to its opinion on the implementation of the Commission's
multilingualism strategy and the new exploratory opinion (7)
requested by the Commission, and will certainly raise the matter
of communication and the information necessary for the appli-
cation of the provisions on the posting of workers, of which
institutional communication is one aspect.

General nature of the information system and specific

1.6
nature of the system of social registers:

The Commission proposes

to do away with those
1.7
control measures regarding the posting of workers that
it
considers unnecessary, while continuing to guarantee appro-
priate protection for posted workers. In its Communication, the
Commission stresses that its purpose is not to question the
Member States' social models, but, referring to part of the ECJ's
case-law, it considers that certain control measures are unjusti-
fied since they would exceed what would be needed for the
social protection of workers.

The Committee emphasises the lack of consistency in
1.8
proposing to do away with the obligation to keep social regis-
ters in the Member State in which the service is being provided.
While an information exchange system provides information on
the legislation in force as well as on the rights and obligations
of service providers and workers, it does not allow for the indi-
vidualised monitoring of rights in the area of social protection,
including immediate and long-term protection, illness, accidents,
pensions and social insurance, nor of the social security and tax
contributions which are mandatory in the country in which the
service is being provided, these contributions being regulated by
the labour law in force, specifically that of the country in which
the service is being provided. The Committee therefore advises
against the abolition of this obligation.

(6) Sec 2008_747.
(7) EESC exploratory opinion on multilingualism, rapporteur: Ms Le

Nouail-Marliére, ongoing.

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1.9
The Committee points out that the objectives of Directive
96/71/EC have not been fully realised even 10 years after its
enactment. Diverging attitudes regarding the type and extent of
social protection of posted workers persist in Europe, for both
EU and third country workers.

1.10
In its Green Paper on Modernising labour law to meet
the challenges of the 21st century, the Commission states that
black labour, especially within the context of cross-border
posting of workers,
is an extremely disturbing and persistent
phenomenon in today's labour markets and is also responsible
for distortions of competition (8) as well as for the exploitation
of employees. In the Green Paper, the Commission called for
enforcement mechanisms able to secure the efficiency of the
labour markets, avoid violations of national
labour law and
protect the social rights of employees.

The Committee points out that the economic and social
1.11
partners in the building industry are particularly alert to the
enactment of Directive 96/71/EC owing to the social dumping
as well as to possible distortions of competition, due to the
specific conditions in which the workforce in this sector is
posted, especially as regards cross-border postings (9). Control
measures adjusted to the particularities of the building industry
are essential to protect domestic and posted workers affected by
this. With this in mind, the Commission's plans should not
weaken Member States' control mechanisms which have proven
themselves over a long period of time, since the Commission
would thus contradict its declared intention not to change the
social models in the Member States.

1.12
The Committee quotes the EP view according to which
the Commission should moderate its interpretation of ECJ case-
law when evaluating the compatibility of certain measures with
Community law (10).

2. Specific comments

2.1 With regard to the obligation to keep certain documents
in the language of the host Member State, the Commission
considers the obligation to translate to be an unjustified limita-
tion on the free provision of services. In contrast to this, the ECJ

(8) Green Paper, COM(2006) 708 final, paragraph 4.b) p. 11 and following
pages; EESC opinion of 30 May 2007 on the Green Paper on Moder-
nising labour law, rapporteur: Mr Retureau (OJ C175 of 27.7.2007).
(9) Particular reference should be made to one study: ‘Free movement of
workers in the EU’, by Jan Cremers and Peter Donders, European
Institute for Construction Labour Research, Editeurs et Werner
Buelen, FETBB Auteur.
Other sectors are also victims of this social dumping, but the conditions
of posting are not governed by the same Directive. EESC opinions
1698/2007 on the Cross-border agricultural workforce, rapporteur: Mr
Siecker, and 1699/2007 on the Agricultural employment situation,
rapporteur: Mr Wilms.

(10) European Parliament Resolution B6-0266/2007 of 11 July 2007.

recently decided in a decision of 18 July 2007 (C-490/04) that
this controversial obligation is in keeping with Community law.

another ECJ

The Commission also quotes

2.2
ruling,
whereby measures which are automatically and unconditionally
applicable, based on a general presumption of tax evasion or
fraud by a person or company exercising a fundamental
freedom guaranteed by the Treaty, constitute an unjustified
limitation of the free provision of services (11). The Committee
doubts that the Court of Justice's interpretation is applicable to
measures which are subject to Directive 96/71/EC, since the
directive authorises Member States to ‘take appropriate measures
in the event of failure to comply with this directive’. This provi-
sion does not lead to a general presumption of fraud. On the
contrary, it states that the substantive law content of the direc-
tive would be void if the Member States were unable to police
compliance with the provisions of posting with the appropriate
means.

3. Improved cooperation as a solution for the existing

problems when applying Directive 96/71/EC

3.1
The Committee welcomes the Commission's clear recog-
nition of the considerable deficiencies that currently exist in
cross-border administrative cooperation and of
the need for
action on this front, and is convinced that effective cooperation
regarding the sharing of
information between Member State
authorities may contribute to overcoming the problems arising
from difficulties in the practical implementation of the directive
in relation to
regulating the posting of workers, not
compliance monitoring.

least

3.2
However, the Committee does not feel that improved
cooperation may void national control measures. The coopera-
tion mechanisms within the framework of Directive 96/71/EC
have so far proven to be unworkable; they have been unable to
guarantee the social protection of employees in the same way
and to the same extent in all domestic provisions.

3.3
This situation is particularly important for the building
industry, where preventive checks carried out on building sites
to assess the effectiveness of posted workers' rights are vital.

3.4
Handing responsibility for checks back to the Member
State of origin would lead to undesirable delays in the protection
of workers' rights. This is one of the reasons why the ECJ in the
above-mentioned decision of 18 July 2007 granted Member

(11) Point 3.2 of the Communication.

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States the authority to maintain the obligation to keep certain
documents on building sites in the language of
the host
Member State. The Committee advises against abolishing this
obligation, and indeed would recommend making recruitment
and employment data, or in this case data on the posting of
workers, more accessible by maintaining the obligation to make
this data available for inspection by employment, vocational
training and social protection authorities, in the host country
and the country of origin. It will become increasingly important
for this information to be clear and accessible to companies and
workers in an expanded internal market with a trend towards
still greater mobility.

require the participation of the national or European legislator.
The measures necessary to comply with Directive 96/71/EC are
not
the EU, and the
sufficiently harmonised throughout
committee could help correct this situation.

4.3
Finally, the Committee is pleased that the Commission
fully takes into account the European Parliament resolutions on
in particular the resolution on the
the posting of workers,
recognition of
the social partners, and
suggests that their experience be put to good use, inter alia by
providing them with additional resources to allow them to
divulge examples of best practices.

the commitment of

3.5
Data on pension or health protection rights (shipyards,
chemicals, agriculture, etc.) could be collected and checked more
easily if there were several additional entries: country of origin,
company, social services and organisations, in line with the prin-
ciple of transparency.

4.4
In order to guarantee equal rights for all workers, the
Commission should encourage efforts to adopt measures to
improve controls and cooperation between Member States.

3.6
The Committee also believes that the difficulties arising
from the practical implementation of the directive regulating the
posting of workers cannot be resolved bilaterally by the
Member States alone. Consideration should therefore be given
to establishing a European body to act as a logistical hub, relay
point, catalyst and information centre for cross-border coopera-
tion between authorities in connection with the posting of
workers. This body should also draw up periodic reports on any
difficulties arising and on the measures proposed to resolve
them.

4. Commission recommendations to improve the imple-

mentation of Guideline 96/71/EC

trade unions and employers. The purpose of

The Committee applauds the Commission's intention to
4.1
set up a high ranking committee in cooperation with Member
States,
this
committee would be to support the exchange and identification
of proven processes, through the thorough examination and
solution of problems connected to the cross-border enforcement
of civil and administrative sanctions imposed in the context of
the posting of workers. The Committee emphasises that Euro-
pean sectoral social partners have so far carried out the bulk of
the work as regards surveillance and implementation, and so
they should be explicitly involved in the process, by being auto-
matically represented on the committee as soon as it is set up.
They have already expressed their views in a joint European
declaration. The Committee supports the Commission's initiative
in view of the experience which has been acquired, but does not
prejudge the hoped-for level of participation by inter-sectoral
European social partners.

5. Unresolved issues

5.1 Bogus self-employment

The Committee has expressed concerns about

the
5.1.1
problems of detecting bogus ‘self-employed workers’ and their
legal reclassification, in the case of those established outside or
inside the Member State in which they are detected, or in cases
It calls on the
where the posting is in some way bogus.
Commission to consider possible legal and practical solutions.
Posted workers are sometimes encouraged to declare themselves
to be self-employed when they are in fact entirely dependant on
one single contractor, and are sometimes not declared to be
either posted or self-employed, occasionally in dangerous profes-
sions in which complete social security coverage is vital.

National rules should contain clear and feasible defini-
5.1.2
tions, as well as clear rules about liability in the event of bogus
self-employment and/or bogus posting, so as to guarantee the
payment of salaries, fines, taxes and social contributions which
can be claimed by the worker and the authority, to ensure that
the authorities can check that this obligation is complied with,
to minimise the profit made by using fraudulent practices and
to enhance the economic sanctions on people who commit
fraud, in the event of collusion between companies and bogus
‘self-employed workers’ with the purpose of avoiding the obliga-
tions of social protection.

5.2 Subcontracting and liability

4.2
This committee should ensure that de facto conditions
are not imposed on Member States, which would normally

At Member State level, some national or sectoral part-
5.2.1
ners have endorsed the principle of general or principal contrac-
tors having joint and several
liability for subcontractors. This
principle has been included in national law and deserves to be

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6. Conclusions

6.1
The Committee supports the Commission's initiatives
which have been proposed to the Council, but expresses
concern that they are too one-sided in their approach, focusing
primarily on the removal of the restrictions or obstacles that
supposedly exist for companies posting workers to other coun-
tries. However, given the recognised shortcomings in the moni-
in cross-border administrative
toring of working conditions,
cooperation and in the enforcement of fines, the Committee
feels that the same degree of importance should also be attached
to enforcing employees' protected rights under the directive
regulating the posting of workers. In particular, the Committee
has its misgivings about the abolition of the obligation to keep
social registers in the Member State in which the service is being
provided; encourages the Council to adopt the proposed recom-
mendation for enhanced administrative cooperation between
improved access to information by service
Member States,
providers and posted workers with wider language cover, and
the exchange of
information and good practice between
Member States within a tripartite high ranking committee,
including representatives of the Member States and economic
and social partners at national and European level, with the
purpose of reinforcing Directive 96/71/EC and the protection of
posted workers in the context of the free provision of services.

The President

of the European Economic and Social Committee

Dimitris DIMITRIADIS

as

good practice. The

mentioned
European Parliament
report (12) highlights several advantages for posted workers
under a regime of joint and several liability. In its communica-
tion, the Commission takes the view that the issue of whether
principal contractors having 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. For its part, the European
Parliament has endorsed such a move.

5.2.2
Practical experience shows that the directive on the
posting of workers is sometimes circumvented by long chains of
subcontracting combined with the use of cross-border service
providers.

joint and several

The Communication indicates that

5.2.3
the Commission
intends to engage with the Member States and social partners in
an in-depth examination of cross-border enforcement problems
(sanctions, fines,
In this way, the
Commission takes up the consistent call of the European Parlia-
ment to take a legislative initiative on joint and several liability
in order to minimise the possibilities of circumventing legal or
in accordance with the directive
collectively agreed standards,
on the posting of workers. The Committee would ask to be
informed of the outcome of this process.

liability).

Brussels, 29 May 2008.

(12) The European Parliament report on corporate social responsibility: A
New Partnership (2006/2133(INI)), the European Parliament report
on the application of Directive 96/71/EC relating to the posting of
workers (2006/2038(INI)) and the European Parliament adopted the
report (A6-0247/2007) on modernising labour law to meet the chal-
lenges of the 21st century calls ‘on the Commission to regulate joint
and several liability for general or principal undertakings, in order to
deal with abuses in the subcontracting and outsourcing of workers and
to set up a transparent and competitive market for all companies on
the basis of a level playing field regarding respect for labour standards
and working conditions, in particular calls on the Commission and the
Member States to clearly establish at European level who is responsible
for compliance with labour law and for paying the associated wages,
social security contributions and taxes in a chain of subcontractors’. A
practical example is the building site of the Council of Ministers' head-
quarters (Justus Lipsius) in Brussels during the 1990s. At a certain
moment the site board included 30 to 50 subcontractors, and not
everyone was on the board. Another example is the renovation of the
Berlaymont building (headquarters of the European Commission)
where a German company, specialised in removal of asbestos, engaged
via subcontracting some 110 Portuguese workers, who were not
trained at all for their task and worked in dreadful conditions. Other
practical cases can be found in ‘The free movement of workers’, CLR
Studies 4 (2004), pp. 48-51, Cremers and Donders eds.