Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services
Date: 2012-03-21
Institutions: European Commission
Subjects: access to information, administrative cooperation, administrative sanction, equal treatment, free movement of workers, freedom to provide services, frontier worker, right of establishment, working conditions

EUROPEAN COMMISSION 

Brussels, 21.3.2012  
COM(2012) 131 final 

2012/0061 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the enforcement of Directive 96/71/EC concerning the posting of workers in the 
framework of the provision of services 

(Text with EEA relevance) 

{SWD(2012) 63 final} 
{SWD(2012) 64 final} 

 
 
  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

General context 

The free movement of workers, freedom of establishment and the freedom to provide services 
are fundamental principles of the European Union. 

The  free  movement  of  workers  must  be  distinguished  from  the  freedom  to  provide  services 
under Article 56 of the Treaty on the Functioning of the European Union (TFEU). 

The free movement of workers gives every citizen the right to move freely to another Member 
State  to  work  and  reside  there  for  that  purpose  and  protects  them  against  discrimination  as 
regards employment, remuneration and other working conditions in comparison to nationals 
of that Member State. In contrast, the freedom to provide services gives businesses the right to 
provide  services  in  another  Member  State.  To  that  end,  they  may  send  (‘post’)  their  own 
workers temporarily to the other Member State to carry out the work necessary to provide the 
services. Posted workers in this sense are covered by Directive 96/71/EC1. 

This Directive aims to reconcile the exercise of this freedom to provide cross-border services 
under  Article  56  TFEU  with  appropriate  protection  of  the  rights  of  workers  temporarily 
posted abroad for that purpose. In order to do so, it sets out mandatory rules at EU level that 
must  be  applied  to  posted  workers  in  the  host  country2.  It  establishes  a  core  set  of  clearly 
defined  terms  and  conditions  of  work  and  employment  that  must  be  complied  with  by  the 
service  provider  in  the  host  country  to  ensure  the  minimum  protection  of  workers.  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  of  obtaining 
proper  representation,  lack  of  knowledge  of  local  laws,  institutions  and  language).  The 
Directive also plays a key role in promoting a climate of fair competition between all service 
providers  (including  those  from  other  Member  States)  by  guaranteeing  both  a  level  playing 
field and legal certainty for service providers, service recipients, and workers posted for the 
provision of services. 

Key contents of Directive 96/71/EC 

The  Directive  applies  to  businesses  that  post  workers  temporarily  to  a  Member  State  other 
than  the  one  whose  laws  govern  the  employment  relationship.  It  covers  three  cross-border 
situations: 

– 

1 

2 

Posting under a contract concluded between the business making the posting and the 
party for whom the services are intended (‘contracting/subcontracting’); 

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 1997 L 18. 
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, COM(2007) 304 final. 

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– 

– 

posting to an establishment or business owned by the group in the territory of another 
Member State (‘intra-corporate transfers’), 

hiring out by a temporary employment firm or placement agency to a user business 
established in another Member State, 

with the proviso that, in all three situations, there is an employment relationship between the 
business making the posting and the worker during the period of posting3. 

The core terms  and conditions of work and employment to be complied with,  as  defined in 
Article 3(1) of the Directive, include: 

– 

– 

– 

– 

– 

– 

– 

maximum work periods and minimum rest periods; 

minimum paid annual holidays; 

minimum  rates  of  pay,  including  overtime  rates  (this  does  not  apply  to 
supplementary occupational retirement pension schemes); 

the  conditions  for  hiring  out  workers,  in  particular  the  supply  of  workers  by 
temporary employment firms; 

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,  children  and  young 
people; 

equality  of  treatment  between  men  and  women  and  other  non-discrimination 
provisions. 

Where  these  terms  and  conditions  of  employment  are  laid  down  by  law,  regulation  or 
administrative  provisions,  Member  States  must  apply  them  to  workers  posted  to  their 
territory. Member States must equally apply them to posted workers if they are laid down by 
collective  agreements  or  arbitration  awards  that  have  been  declared  universally  applicable 
within  the  meaning  of  Article  3(8),  insofar  as  they  concern  the  activities  referred  to  in  the 
Annex to the Directive (building work). With regard to other activities, Member States are left 
the  choice  of  imposing  terms  and  conditions  of  employment  laid  down  by  such  collective 
agreements or arbitration awards (Article 3(10), second indent). They may also, in compliance 
with  the  Treaty,  impose  terms  and  conditions  of  employment  in  matters  other  than  those 
referred to in the Directive in the case of public policy provisions (Article 3(10), first indent). 

The Directive does not oblige Member States to set minimum wages. At the time of adoption 
of the Directive, the Council and the Commission stated: ‘The first and second subparagraphs 
of  Article  3(1)  do  not,  as  regards  the  Member  States  the  legislation  of  which  makes  no 
provision for minimum wages, entail any obligation to make provision for such wages.’4 

3 
4 

Article 1(1) and (3)(a) to (c). 
Council Doc. 10048/96 ADD1 of 20 September 1996. 

. 

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While  the  Directive  does  not  apply  directly  to  businesses  established  in  third  countries, 
Article  1(4)  provides  for  businesses  established  in  a  third  country  not  to  be  given  more 
favourable treatment than businesses established in a Member State. This means that Member 
States  must  not  provide  businesses  established  in  a  third  country  with  a  more  advantageous 
competitive position in comparison to businesses established in a Member State, in particular 
with regard to working conditions and wage costs. Consequently, the Directive indirectly sets 
a minimum level of protection for their workers. 

Further,  Articles  4,  5  and  6  of  the  Directive  contain  provisions  on  access  to  information, 
administrative cooperation, enforcement and jurisdiction. 

Political context — developments since the adoption of the Directive in 1996 

Already before the adoption of the Posting of Workers Directive, the question whether, and if 
so to what extent, national labour regulations could be applied to workers of foreign service 
providers  had  led  to  considerable  controversy,  as  shown  by  the  case  law  of  the  European 
Court of Justice (ECJ). 

The Commission evaluated the implementation and application of the Directive and adopted a 
report  in  20035.  This  report  identified  several  deficiencies  and  problems  of  incorrect 
implementation and/or application of the Directive in specific Member States. 

Furthermore,  the  Commission  adopted  in  20066  guidelines  aimed  at  clarifying  the  extent  to 
which  certain  national  control  measures  could  be  justified  and  proportionate  in  view  of 
prevailing EU law as interpreted in the Court’s jurisprudence. In a second Communication in 
20077 several shortcomings were highlighted as regards the way controls were carried out in 
some  Member  States  and  the  poor  quality  of  administrative  cooperation  and  access  to 
information8. 

The  judgments  of  the  European  Court  of  Justice  in  the  Viking-Line,  Laval,  Rüffert  and 
Commission  v  Luxembourg  cases9  triggered  an  intense  debate  among  EU  institutions, 
academics and social partners. This focused on two major issues. 

The first concerned how to set the right balance between the exercise by trade unions of their 
right  to  take  collective  action,  including  the  right  to  strike,  and  the  economic  freedoms 
enshrined in the TFEU, in particular the freedom of establishment and the freedom to provide 
services. The second was how to interpret some key provisions in Directive 96/71/EC, such as 

5 

6 

7 

8 

9 

Report  from  the  Commission  services  on  the  implementation  of  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,  2003.  Available  at:  http://www.ec.europa.eu/social/posted-
workers. 
Communication from the Commission — Guidance on the posting of workers in the framework of the 
provision of services, COM(2006) 159 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, COM(2007) 304 final. 
See for further details: Study ‘Information provided on the posting of workers’, F. Muller, Strasbourg, 
September 2010. Available on the website: http://www.ec.europa.eu/social/posted-workers. 
CJEU cases of 11 December 2007, Viking (C-438/05), 18 December 2007, Laval (C-341/05), 3 April 
2008, Rüffert (C-346/06), 19 June 2008, Commission v Luxembourg (C-319/06). 

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the concept of public policy, the material scope of the terms  and conditions of employment 
imposed by the Directive and the nature of mandatory rules, in particular the minimum wage. 

At  his  presentation  of  political  priorities  before  the  European  Parliament  on  15  September 
2009,  President  Barroso  recognised  the  need  to  address  the  concerns  and  issues  raised  by 
several  stakeholders  during  the  debate  and  announced  a  legislative  initiative  to  resolve  the 
problems with the implementation and interpretation of the Posting of Workers Directive. 

The report on the relaunch of the Single Market10, submitted  by Professor Monti  on 9 May 
2010, also addressed these concerns. He recognised that the controversy fuelled by the rulings 
‘has the potential to alienate from the Single Market and the EU a segment of public opinion, 
workers’ movements and trade unions, which has been over time a key supporter of economic 
integration’.  He  further  added  that  ‘the  Court’s  cases  have  exposed  the  fault  lines  that  run 
between the Single Market and the social dimension at national level’. 

Previously  in  2008,  the  Commission  had  adopted  a  Recommendation11  calling  on  Member 
States  to  take  urgent  action  to  improve  the  situation  of  posted  workers  through  better 
cooperation  between  national  administrations,  more  effective  exchange  of  information 
between Member States, better access to information and the exchange of best practice. In the 
same  year,  it  also  established12  an  Expert  Committee  on  Posting  of  Workers,  comprising 
representatives  of  the  Member  States  and  social  partners,  with  the  aim  of  discussing  and 
clarifying problems with the implementation and application of the Directive. 

Extent of the phenomenon of posting 

The  analysis  of  posting  as  an  economic  and  social  phenomenon,  as  distinct  from  anecdotal 
evidence, is hampered by the lack of precise figures and the poor quality of the data base. The 
only  available  data  source  at  EU  level  is  based  on  the  systematic  data  collection  of  E101 
certificates  (2005-2009)  in  the  field  of  social  security,  carried  out  by  DG  EMPL  in 
cooperation with national authorities13. However, this data base has several limitations14. 

With these caveats, it can be estimated that around one million workers are posted each year 
by  their  employers  from  one  Member  State  to  another.  Posting  thus  concerns  only  a  small 
share of the active population (0.4 % of the active population of EU-15 sending countries and 
0.7 %  of  the  active  population  of  EU-12  sending  countries).  However,  in  terms  of  labour 
mobility  within  the  EU,  the  number  of  postings  represented  18.5 %  of  non-national  EU-27 
citizens  in  the  labour  force  in  2007.  Therefore,  it  can  be  concluded  that,  while  posting  is  a 
significant phenomenon in terms of labour mobility, especially in some countries and sectors, 
it remains a relatively small phenomenon in the EU labour market.15 

10 

11 

12 

13 

14 
15 

A new strategy for the single market — at the service of Europe’s Economy and Society, Report to the 
President of the European Commission, José Manuel Barroso, by Mario Monti, 9 May 2010. 
Commission Recommendation of 3 April 2008 on enhanced administrative cooperation in the context 
of the posting of workers in the framework of the provision of services, OJ C 85, 4.4.2008, pp. 1–4. 
Commission  Decision  of  19  December  2008  setting  up  the  Committee  of  Experts  on  Posting  of 
Workers (2009/17/EC), OJ L 8/26, 13.1.2009. 
European Commission (2011), ‘Posting of workers in the European Union and EFTA countries: Report 
on  E101  certificates  issued  in  2008  and  2009’;  European  Commission  (2011),  ‘Administrative  data 
collection on E101 certificates issued in 2007’. 
Cf. IA, p. […]. 
Cf.  Idea  Consult  (see  footnote  28),  executive  summary.  The  percentage  provides  only  a  rough 
indication of the proportion of postings relative to non-national EU-27 citizens in the labour force (it is 

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However, there are significant numbers of posted workers in some Member States (Germany, 
France,  Luxembourg,  Belgium  or  Poland)  and  the  phenomenon  is  increasingly  widespread, 
now  affecting  all  Member  States  as  sending  and/or  as  receiving  countries.  The  economic 
importance  of  posting  also  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,  the  posting  of  workers  enhances 
international  trade  in  services  with  all  the  known  advantages  linked  to  the  Single  Market 
(higher competition, efficiency gains, etc.). 

2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENTS 

2.1. 

Consultation with interested parties 

The rulings of the Court in the Viking-Line, Laval, Rüffert and Commission v Luxembourg 
cases  in  2007-2008  have  fuelled  an  intense  debate  in  particular  on  the  consequences  of  the 
freedom  to  provide  services  and  freedom  of  establishment  for  the  protection  of  workers’ 
rights and the role of trade unions in protecting workers’ rights in cross-border situations. 

The  European  trade  unions  and  some  political  groups  in  the  European  Parliament  see  these 
judgments  as  anti-social.  The  ETUC  refers  to  them  as  a  ‘licence  for  social  dumping’.  They 
want  the  legislation  to  be  amended  to  clarify  the  legal  situation  and  prevent  judges  ruling 
against  what  they  perceive  as  workers’  interests  in  the  future.  To  this  end,  they  have  put 
forward two key demands for: 

– 

– 

a  revision  of  the  Posting  of  Workers  Directive  (Directive  96/71/EC)  to  include  a 
reference to the principle of ‘equal pay for equal work’ and allow the ‘host Member 
State’  to  apply  more  favourable  conditions  than  the  core  terms  and  conditions  of 
employment in accordance with Article 3(1) of the Directive; 

the  introduction  of  a  ‘Social  Progress  Protocol’  in  the  Treaty  to  give  priority  to 
fundamental social rights over economic freedoms. 

Other  stakeholders  take  a  different  position.  BusinessEurope  has  welcomed  the  clarification 
the Court’s rulings have brought and does not consider that the Directive needs revising. Most 
Member States have expressed similar views. The Member States most affected by the rulings 
(SE, DE, LU and DK) have modified their legislation in order to conform to the rulings. 

In October 2008, the European Parliament adopted a resolution calling on all Member States 
to  properly  enforce  the  Posting  of  Workers  Directive  and  asking  the  Commission  not  to 
exclude  a  partial  review  of  the  Directive  after  assessing  in  depth  the  problems  and 
challenges16. At the same time, it emphasised that the freedom to provide services as ‘one of 
the  cornerstones  of  the  European  project  should  be  balanced,  on  the  one  hand,  against 
fundamental rights and the social objectives of the Treaties and on the other hand, against the 

likely to be an overestimation). An E101 certificate does not represent a full-time one-year equivalent 
worker, while the Labour Force Survey, which provides the data on non-national EU-27 citizens in the 
labour force, does not cover posted workers. 
Resolution  of  22  October  2008  on  challenges  to  collective  agreements  in  the  EU  (2008/2085(INI)), 
points 25 and 30. 

16 

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right of the public and social partners to ensure non-discrimination, equal treatment and the 
improvement  of  living  and  working  conditions’17.  On  2  June  2010,  the  Employment  and 
Social Affairs Committee organised a hearing of three experts (representing the Commission, 
ETUC  and  BE),  where  S&D,  Left  and  Green  MEPs  called  for  action  to  be  taken  by  the 
Commission very much along the same lines as proposed by the ETUC. 

On a joint invitation from Commissioner Špidla and Minister Bertrand (acting as President of 
the Council) at the October 2008 Forum, the European social partners agreed to carry out a 
joint  analysis  of  the  consequences  of  the  Court  rulings  in  the  context  of  mobility  and 
globalisation.  In  March  201018,  the  European  social  partners  delivered  a  report  on  the 
consequences  of  the  ECJ  rulings.  The  document  exposed  their  wide  divergences.  While 
Business Europe is opposed to revision of the Directive (but accepts the need for clarification 
of certain aspects related to enforcement), ETUC wants it thoroughly amended. 

In  2010,  the  European  Economic  and  Social  Committee  adopted  an  opinion  on  the  ‘Social 
Dimension  of  the  Single  Market’19,  asking  for  more  effective  implementation  of  Directive 
96/71/EC and expressing support for a Commission initiative to clarify the legal obligations 
for national authorities, business and workers, including partial revision of the Directive. The 
opinion  further  encourages  the  Commission  to  exempt  the  right  to  strike  from  the  Single 
Market and to explore the idea of a ‘European Social Interpol’, supporting the activities of the 
labour inspectorates of the various Member States. 

Recognising the controversy fuelled by the Court rulings in his report ‘A new Strategy for the 
Single Market’, Professor Monti recommended to: 

– 

– 

Clarify  the  implementation  of  the  Posting  of  Workers  Directive  and  strengthening 
dissemination  of  information  on  the  rights  and  obligations  of  workers  and 
companies,  administrative  cooperation  and  sanctions  in  the  framework  of  the  free 
movement of persons and the cross-border provision of services; 

Introduce  a  provision  to  guarantee  the  right  to  strike,  modelled  on  Article  2  of 
Council  Regulation  (EC)  No  2679/98  (the  so-called  Monti  Regulation),  and  a 
mechanism  for informal  resolution  of  labour disputes concerning the  application of 
the Directive. 

In October 2010, the Commission launched a public consultation on how to reinvigorate the 
Single  Market  with  its  Communication  ‘Towards  a  Single  Market  Act  —  For  a  highly 
competitive  social  market  economy  —  50  proposals  for  improving  our  work,  business  and 
exchanges with one another’20. It put forward two proposals (numbers 29 and 30) designed to 
restore  confidence  and  support  among  citizens,  one  on  the  balance  between  fundamental 
social rights and economic freedoms and one on the posting of workers. 

– 

17 
18 

19 
20 

Proposal  29:  ‘Pursuant  to  its  new  strategy  for  the  effective  implementation  of  the 
Charter of Fundamental Rights by the European Union, the Commission will ensure 

Point 1; see also points 17 and 31. 
The  text  was  presented  during  the  Oviedo  conference  in  March  2010,  organised  by  the  Spanish 
Presidency. The debates once again showed divided opinions among stakeholders. 
Opinion 2011/C 44/15. 
COM(2010) 608 final/2, 11.11.2010. 

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that the rights guaranteed in the Charter, including the right to take collective action, 
are taken into account. ….’ 

– 

Proposal  30:  ‘In  2011,  the  Commission  will  adopt  a  legislative  proposal  aimed  at 
improving the implementation of the Posting of Workers Directive, which is likely to 
include or  be  supplemented  by a clarification of the exercise of  fundamental  social 
rights within the context of the economic freedoms of the single market.’ 

The  public  consultation  showed  huge  interest  and  support  for  these  actions  from  unions, 
individual citizens and NGOs. 

Proposal  29  on  the  effective  implementation  of  the  Charter  of  Fundamental  Rights  and  the 
social  impact  assessment  is  considered  one  of  the  most  important  issues  by  the  740 
respondents (out of the more than 800). 

The  European  social  partners  responded  to  the  consultation  along  their  established  lines. 
ETUC  reiterated  its  request  for  a  ‘Social  Progress  Protocol’  amending  the  Treaty  and 
maintained that the Commission should not only clarify and improve the implementation of 
the Posting of Workers Directive, but also thoroughly revise it. BusinessEurope supported the 
Commission’s approach for better implementation and enforcement of the existing Directive. 

The  idea  of  a  so-called  Monti  II  regulation  was  welcomed  by  ETUC  (and  also  expressly 
mentioned  in  several  replies  from  national  trade  unions)  in  addition  to  a  Social  Progress 
Protocol.  BusinessEurope’s  contribution  does  not  make  a  clear  statement,  but  seems  to 
question its added value, clearly indicating that it should not call into question the exclusion 
of the right to strike from EU competences. 

Following  the  wide-ranging  public  debate  and  on  the  basis  of  the  contributions  during  the 
public debate, the Commission adopted the Communication ‘A Single Market Act — Twelve 
levers to boost growth and strengthen confidence’ on 13 April 201121. Legislative initiatives 
regarding the posting of workers are among the twelve key actions included under the social 
cohesion  chapter:  ‘legislation  aimed  at  improving  and  reinforcing  the  transposition, 
implementation and enforcement in practice of the Posting of Workers Directive, which will 
include  measures  to  prevent  and  sanction  any  abuse  and  circumvention  of  the  applicable 
rules, together with legislation aimed at clarifying the exercise of freedom of establishment 
and the freedom to provide services alongside fundamental social rights’. 

Following  the  adoption  of  the  Single  Market  Act,  the  European  Parliament  adopted  three 
resolutions  on  6  April  201122.  However,  unlike  the  more  general  issue  of  mobility  (and 
portability  of  pension  rights),  the  posting  of  workers  was  not  among  the  key  priorities 
identified. 

In contrast, the posting of workers and the economic freedoms do figure among the priorities 
identified by the European Economic and Social Committee23. 

In its Conclusions on the priorities for relaunching the Single Market, the Council: 

21 
22 

23 

COM(2011) 206 final. 
On  a  Single  Market  for  Enterprises  and  Growth  [2010/2277(INI)],  a  Single  Market  for  Europeans 
[2010/2278(INI)], and on Governance and Partnership in the Single Market [2010/2289(INI)]. 
Opinion Ms Federspiel, Mr Siecker and Mr Voles, INT 548, 15 March 2011. 

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‘14.  CONSIDERS  that  proper  implementation  and  enforcement  of  the  Posting  of  Workers 
Directive  can  contribute  to  a  better  protection  of  posted  workers’  rights  and  ensure  more 
clarity regarding the rights and obligations of service providing businesses as well as national 
authorities  and  can  help  to  prevent  circumvention  of  the  applicable  rules;  moreover 
CONSIDERS  that  more  clarity  in  the  exercise  of  the  freedom  of  establishment  and  the 
freedom to provide services alongside fundamental social rights is necessary;’24 

The Conference on Fundamental Social Rights and the Posting of Workers (27-28 June 2011) 
gathered ministers, social partners, representatives of EU institutions and academics in order 
to  discuss  the  regulatory  options  available  and  help  identify  feasible  solutions25.  It  was 
intended  to  contribute,  through  an  open  constructive  debate,  to  a  more  shared  vision  and  to 
present the results of recent studies. 

Moreover, the Krakow declaration26 reiterated that the cross-border provision of services and 
the  mobility  of  posted  workers  are  essential  elements  of  the  Single  Market.  Facilitating  the 
temporary  cross-border  provision  of  services  should  go  hand  in  hand  with  guaranteeing  an 
adequate and appropriate level of protection for workers posted to another Member State to 
provide these services. 

2.2. 

Impact assessment 

In line with its policy on better regulation, the Commission conducted an impact assessment 
of  policy  alternatives  based  on  an  external  study27.  Since  2009,  the  Commission  has  also 
launched four ex-post evaluation studies: 

– 

– 

– 

– 

24 
25 

26 

27 

28 

29 

30 

Study on the economic and social effects associated with the phenomenon of posting 
of workers in the European Union28; 

Study  on  the  legal  aspects  of  the  posting  of  workers  in  the  framework  of  the 
provision of services in the European Union (covering 12 Member States)29; 

Complementary  study  on  the  legal  aspects  of  the  posting  of  workers  in  the 
framework of the provision of services in the European Union (covering 15 Member 
States)30; 

Study  on  the  protection  of  workers’  rights  in  subcontracting  processes  in  the 
European Union31 

. 

for 

and 

more 

related 

keynote 

speeches 

documents: 

information, 

3094th Competitiveness Council meeting, 30 May 2011. 
See 
http://ec.europa.eu/social/main.jsp?langId=en&catId=471&eventsId=347&furtherEvents=yes. 
Single Market Forum, Krakow, 3-4 October 2011, in particular the fifth paragraph of the Declaration 
and point 5 of the Operational Conclusions. 
Multiple Framework Contract VT 2008/87, Preparatory study for an Impact Assessment concerning the 
possible  revision  of  the  legislative  framework  on  the  posting  of  workers  in  the  context  of  services, 
(VT/2010/126). 
Idea  Consult  and  Ecorys  Netherlands,  Study  on  the  economic  and  social  effects  associated  with  the 
phenomenon of posting of workers in the European Union, Brussels, 2011. Available on the website: 
http://www.ec.europa.eu/social/posted-workers. 
Aukje  van  Hoek  and  Mijke  Houwerzijl,  Study  on  the  legal  aspects  of  the  posting  of  workers  in  the 
framework  of  the  provision  of  services  in  the  European  Union,  2011.  Available  on  the  website: 
http://www.ec.europa.eu/social/posted-workers. 
.Available on the website: http://www.ec.europa.eu/social/posted-workers. 

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The  policy  alternatives  contain  a  range  of  possible  options,  sub-options  and  packages  of 
options  representing  different  degrees  of  EU  intervention:  non-regulatory  intervention  and 
regulatory  intervention.  With  respect  to  the  latter,  the  sub-options  and  option  packages 
provide more differentiated scenarios ranging from minimum to maximum intervention. 

All  these  options  were  analysed  against  the  general  objectives,  namely  the  sustainable 
development of the Single Market, based on a highly competitive social market economy, the 
freedom to provide services and promotion of a level playing field, the improvement of living 
and working conditions, respect for the diversity of industrial relation systems in the Member 
States, and the promotion of dialogue between management and labour. In addition, they were 
examined against the more specific (and related operational) objectives: (i) better protection 
of  the  rights  of  posted  workers,  (ii)  facilitating  the  cross-border  provision  of  services  and 
improving  the  climate  of  fair  competition,  and (iii)  improving  legal  certainty  as  regards  the 
balance  between  social  rights  and  economic  freedoms,  in  particular  in  the  context  of  the 
posting of workers. Based on the Strategy for the effective implementation of the Charter of 
Fundamental  Rights  by  the  European  Union,  the  impact  assessment  was  used  to  identify 
fundamental rights liable to be affected, the degree of interference with the right in question 
and  the  necessity  and  proportionality  of  the  interference  in  terms  of  policy  options  and 
objectives32. 

The preferred option is a combination of different measures. As far as the present proposal is 
concerned, a package of regulatory measures to deal with the implementation, monitoring and 
enforcement of the minimum working conditions (‘problem 1’) and with the abuse of posted 
worker status in order to evade or circumvent legislation (‘problem 2’), combined with non-
regulatory  measures  to  deal  with  controversial  or  unclear  interpretation  of  the  terms  and 
conditions of employment required by Directive 96/71/EC (‘problem 3’), is considered to be 
overall  the  most  effective  and  efficient  solution  to  address  the  specific  objectives  ‘better 
protection  of  the  rights  of  posted  workers’,  ‘improving  the  climate  of  fair  competition’  and 
‘facilitating the cross-border provision of services’ and the most coherent with regard to the 
general objectives. It is therefore in essence the basis for the present proposal. 

A  positive  impact  on  SMEs  and  especially  micro-businesses  can  be  expected  thanks  to  the 
improved and clearer regulatory environment. SMEs are in particular affected by the lack of 
transparent  information  regarding  the  applicable  working  and  employment  conditions  in  the 
host  Member  State  since  they  have  little  capacity  to  investigate  the  applicable  rules 
themselves.  Thus,  companies  will  bear  lower  costs  of  investigating  applicable  working  and 
employment  conditions  in  the  host  Member  State,  and  will  benefit  from  the  possibility  of 
providing services in new markets. Since SMEs and micro-businesses are especially affected 
by  administrative  requirements  that  create  excessively  onerous  obligations  for  foreign 
undertakings  they  will  benefit  from  the  present  proposal  which  will  limit  Member  States 
possibilities to imposes such measures. It provides guidance for Member States with regard to 
inspections.  SMEs  and  micro-businesses  with  a  good  record  will  benefit  from  inspections 
based on a risk assessment. Effective inspections, improved administrative cooperation, cross-
border  execution  of  fines  and  a  carefully  balanced  liability  scheme  will  contribute  to  fairer 
competition and a more level playing field. SMEs and micro-businesses which are particularly 
sensitive to unfair competition will benefit from these provisions.33 

31 
32 
33 

Ongoing – draft final results have been taken into account. 
COM(2010) 573 final, p. 6-7 
See Impact Assessment regarding the Posting of Workers dossier, Annex 11, of January 2012. 

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In its report "Minimizing regulatory burden for SMEs - Adapting EU regulation to the needs 
of  micro-enterprises"  of  23  November  2011,  the  European  Commission  elaborated  the 
principle that micro-entities should be excluded from the scope of proposed new legislation 
unless  the proportionality  of their  being  covered can be  demonstrated.34 With respect to the 
present  proposal,  micro-businesses  cannot  be  excluded  from  the  scope  because  this  would 
undermine one of the proposal's key objectives - the fight against letter box companies - and it 
would create considerable new loopholes. It would equally imply a decrease in legal certainty 
since  the  level  of  protection  to  be  respected  for  their  posted  employees  would  have  to  be 
established on a case by case basis. A better enforcement of the existing legislation can only 
be  achieved  by  including  micro-businesses  into  the  scope  of  the  Enforcement  Directive. 
However, micro-businesses and other SMEs will benefit in general from more legal certainty, 
fairer competition and more targeted risk-based inspections.  

In conclusion, the Enforcement Directive will have differing, but mostly very positive impact 
on  different  types  of  SMEs.  Genuine  SMEs  will  benefit  from  a  fairer  level-playing  field, 
while  some  letter-box  SMEs  are  likely  to  disappear.  SMEs  which  have  already  had 
subcontractors  abiding  to  minimum  wage  legislation  and  therefore  had  higher  costs  (in 
comparison to competitors with subcontractors not abiding the law) will benefit from a better 
level-playing field. SMEs that so far benefitted from subcontractors not abiding to minimum 
wage legislation will have to find new business models. 

The draft impact assessment was scrutinised by the Impact Assessment Board (‘IAB’) and its 
recommendations for its improvement were integrated within the final report. The opinion of 
the  IAB  as  well  as  the  final  Impact  Assessment  and  its  executive  summary  are  published 
together with this proposal. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

3.1 

General context — summary of the proposed action 

Without re-opening Directive  96/71/EC, the present  proposal aims to improve,  enhance and 
reinforce  the  way  in  which  this  Directive  is  implemented,  applied  and  enforced  in  practice 
across  the  European  Union  by  establishing  a  general  common  framework  of  appropriate 
provisions  and  measures  for  better  and  more  uniform  implementation,  application  and 
enforcement  of  the  Directive,  including  measures  to  prevent  any  circumvention  or  abuse  of 
the rules. It ensures at the same time guarantees for the protection of posted workers’ rights 
and the removal of unjustified obstacles to the free provision of services. As highlighted in the 
Strategy  for  the  effective  implementation  of  the  Charter  of  Fundamental  Rights  by  the 
European Union, people must be able to effectively enjoy their rights enshrined in the Charter 
when they are in a situation governed by Union law35. 

Together  with  the  proposal  for  a  Regulation  clarifying  the  exercise  of  the  right  to  take 
collective  action  within  the  context  of  the  economic  freedoms  of  the  Single  Market,  in 
particular the freedom of establishment and the freedom to provide services36, it constitutes a 
targeted intervention in line with one of the key objectives of the Treaty, namely to establish 
an internal market and work for a highly competitive social market economy, aiming at full 

34 
35 
36 

COM(2011) 803 final 
COM(2010) 573 final 
COM(2012) 130 final  

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employment  and  social  progress.  In  particular  by  facilitating  the  cross-border  provision  of 
services and improving the climate of fair competition, this initiative will allow the potential 
for growth offered by the posting of workers and jobs for posted workers to be tapped as a 
key element in the provision of services in the internal market. It will thus contribute to smart, 
sustainable  and  inclusive  growth  recovery  in  line  with  the  objectives  and  priorities  of  the 
Europe 202037 strategy. 

3.2 

Legal basis 

This  proposal  is  based  on  Articles  53(1)  and  62  TFEU,  which  are  identical  those  on  which 
Directive  96/71/EC  is  based  and  allow  for  the  adoption  of  directives  under  the  ordinary 
legislative procedure. 

3.3 

Subsidiarity and proportionality principles 

The problems identified with respect to the implementation, application and enforcement of 
Directive  96/71/EC  are  linked  to  the  objectives  set  out  in  Article  3(3)  TEU,  according  to 
which  the  European  Union  is  to  establish  an  internal  market  based  on  a  highly  competitive 
social market economy, aiming at full employment and social progress, and in Articles 56 and 
151 TFEU. 

Adequate  implementation  and  effective  application  and  enforcement  are  key  elements 
guaranteeing  the  effectiveness  of  the  applicable  EU  rules.  Differences  and  disparities  in  the 
way Directive 96/71/EC is implemented, applied and enforced in the different Member States 
are detrimental to the proper functioning of the Directive. It thus risks making it very difficult, 
if  not  impossible,  to  create  the  required  level  playing  field  for  service  providers  and  ensure 
that workers posted for the provision of services enjoy the same level of protection guaranteed 
by the Directive throughout the EU. Under these circumstances, the required legal clarity and 
certainty can only be achieved at EU level. 

Therefore,  the  objectives  of  the  proposal  cannot  be  sufficiently  achieved  by  Member  States 
and require action at EU level 

In  line  with  the  principle  of  proportionality,  this  Directive  does  not  go  beyond  what  is 
necessary  in  order  to  achieve  the  objectives.  In  order  to  improve  the  application  and 
enforcement  of  Directive  96/71/EC  in  practice,  a  combination  of  effective  preventive 
measures and adequate, proportionate penalties is proposed. The proposed more uniform rules 
for  administrative  cooperation,  mutual  assistance,  national  control  measures  and  inspections 
reflect  the  heterogeneous  nature  of  inspection  and  control  systems  across  Member  States, 
while also endeavouring to avoid unnecessary or excessive administrative burden for service 
providers. At the same time, moreover, respect for the diversity of the different social models 
and industrial relations systems in the Member States is guaranteed. 

3.4 

Detailed explanation of the proposal 

3.4.1 

Subject matter 

Apart from describing the objectives of the proposal for a Directive, Article 1 contains what is 
often referred to as the ‘Monti clause’. It combines the text of Article 2 of Council Regulation 

37 

COM(2010) 2020 final, 3.3.2010. 

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No  2679/9838  and  Article  1(7)  of  the  Services  Directive39.  It  is  also  in  line  with  the  text  of 
similar provisions in, for example, the recent proposal for a Regulation on jurisdiction and the 
recognition  and  enforcement  of  judgments  in  civil  and  commercial  matters  (recast  Brussels 
I)40 and the recently adopted Regulation on macroeconomic imbalances41. 

3.4.2 

Preventing  abuse  and  circumvention  –  elements  improving  implementation  and 
better monitoring of application of the notion of posting  

According to the definition in Article 2(1) of Directive 96/71/EC42 ‘posted worker’ means, for 
the purposes of this Directive, a worker who, for a limited period, carries out his or her work 
in the territory of a Member State other than the Member State in which he or she normally 
works. 

Without  prejudice  to  Article  2(2)  of  Directive  96/71/EC43,  a  worker  qualifies  as  posted  by 
virtue of his or her factual situation and the circumstances in which he or she is expected to 
carry out his or her activities, including: 

– 

– 

– 

– 

the temporary nature of the activities to be performed, 

the  existence  of  a  direct  employment  relationship  between  the  undertaking 
making the posting and the worker during the whole period of posting, 

the country in which the worker normally works, and 

the existence of a genuine link between the employer and the worker’s country 
of origin. 

However, Directive 96/71/EC does not contain any further indication as to how to determine 
whether  the  employer  is  established  in  a  Member  State,  nor  does  it  contain  more  specific 
criteria  as  to  how  to  determine  the  temporary  nature  of  the  work  to  be  performed  by  the 
posted workers or the Member State in which the workers concerned ‘normally work’. 

This  has  led  to  several  problems  with  the  implementation,  application  and  enforcement  in 
practice  of  the  Directive.  Competent  authorities  in  the  Member  States,  service  providers  as 
well as the posted workers themselves often face unclear situations where it appears difficult 
to  determine  whether  there  is  a  posting  within  the  meaning  of  the  Posting  of  Workers 

38 

39 
40 
41 

42 
43 

Regulation No 2679/98 of 7 December 1998 on the functioning of the internal market in relation to the 
free movement of goods among Member States, OJ L337/8, 12.12.98. 
Directive 2006/123, OJ L 376/36, 27.12.2006; cf. recital 22 of Directive 96/71/EC. 
COM(2010) 748 final, 14.12.2010, Article 85. 
Article  1(3),  last  sentence,  Regulation  (EU)  No  1176/2011  of  the  European  Parliament  and  of  the 
Council  of  16  November  2011on  the  prevention  and  correction  of  macroeconomic  imbalances,  OJ  L 
306/25, 23.11.2011. 
To be read in combination with Articles 1(1) and 1(3) of the Directive. 
The definition of a worker is that which applies in the law of the Member State to whose territory the 
worker is posted. 

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Directive  or  not44.  Abuses  have  also  been  committed  by  employers  exploring  insufficient 
clarity of the legal provisions in order to circumvent the applicable rules45. 

To  avoid  circumvention  of  the  rules  and  combat  abuse  of  the  application  of  Directive 
96/71/EC, the present proposal contains in Article 3 paragraphs 1 and 2 an indicative, non-
exhaustive  list  of  qualitative  criteria/constituent  elements  characterising  both  the  temporary 
nature inherent to the notion of posting for the provision of services46 as well as the existence 
of a genuine link between the employer and the Member State from which the posting takes 
place. This further specification and clarification will also enhance legal certainty. 

A  clearer,  more  easily  enforceable  indicative  description  of  the  constituent  elements  of  the 
notion  of  posting  for  the  provision  of  services  as  well  as  the  criteria  relating  to  what 
constitutes  a  genuinely  establishment  of  the  service  provider  in  a  Member  State  will  help 
avoid  ‘creative  use’  of  Directive  96/71/EC  for  situations  that  are  not  proper  postings  in  the 
sense of the Directive. 

The  role  of  the  Member  State  from  which  the  posting  takes  place  is  further  clarified  in  the 
context of administrative cooperation (Article 7). 

3.4.3 

Access to information 

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  provide  services  in 
compliance  with  the  rules  resulting  from  Directive  96/71/EC  and  its  transposition  into 
national law. SMEs are in particular affected by the lack of transparent information regarding 
the applicable working and employment conditions in the host Member State since they have 
little capacity to investigate the applicable rules themselves. Thus, companies will have lower 
costs  of  investigating  applicable  working  and  employment  conditions  in  the  host  Member 
State.  It  also  constitutes  an  important  means  for  facilitating  respect  for  workers’  rights  and 
their protection. Furthermore, proper and effective administrative cooperation among Member 
States  is  essential  for  compliance  control.  The  successful  implementation,  application  and 

44 

45 

46 

See for further details chapters 2.2, 3.2 and 5.2 of the (complementary) study on the legal aspects of the 
posting  of  workers  in  the  framework  of  the  provision  of  services.  —  Cf  chapter  3.2.1  Impact 
Assessment 
See for further details in particular chapter 3.5 'cases in the media and in court of the legal study and 
chapter 3.4 of the complementary legal study.— Cf chapter 3.2.2 Impact Assessment. For instance, the 
fact that the posted worker is not a national of either the Member State of the service provider or agency 
by or through which he/she is recruited or the Member State where the service is temporarily provided 
constitutes  a  clear  indication  that  such  a  situation  would  not  qualify  as  ‘posting’  in  the  sense  of 
Directive  96/71,  unless  the  posted  worker  has  previously  been  employed  by  the  service  provider  or 
agency  and/or  worked  on  the  territory  of  the  Member  State  where  the  service  provider  or  agency  is 
established. 
According to the case law of the ECJ, the temporary nature of the activity of the person providing the 
service  in  the  host  Member  State  has  to  be  determined  in  the  light  not  only  of  the  duration  of  the 
provision of the service but also of its regularity, periodical nature or continuity. No provision of the 
Treaty affords a means of determining, in an abstract manner, the duration or frequency beyond which 
the supply of a service or a certain type of service in another Member State can no longer be regarded as 
the  provision  of  services  within  the  meaning  of  the  Treaty  (judgment  of  11.12.2003,  case  C-215/01, 
Schnitzer, rec. 28 and 31. cf. judgment of 30.11.1995, C-55/94, Gebhard). However, an activity carried 
out on a permanent basis, or at least without a foreseeable limit to its duration, does not come under the 
EU provisions concerning the provision of services (judgment of 7.9.2004, case C-456/02, Trojani, rec. 
28). 

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enforcement  of  Directive  96/71/EC  would  be  difficult  unless  these  requirements  are 
sufficiently guaranteed. 

Notwithstanding improvements made in terms of access to information47, Article 5 therefore 
contains a number of important more detailed measures to help ensure easily accessible and 
generally available information on the terms and conditions to be respected, including where 
these are laid down in collective agreements (paragraph 4). 

3.4.4 

Administrative cooperation and mutual assistance 

The  general  principles,  rules  and  procedures  necessary  for  effective  administrative 
cooperation and assistance are laid down in Article 6, whereas the role of the Member State 
from which the posting takes place is covered by Article 7. 

An  appropriate  legal  basis  is  also  provided  in  Article  18  for  the  use  of  the  separate  and 
specific  application  of  the  Internal  Market  Information  System  (‘IMI’)  as  the  electronic 
information  exchange  system  to  facilitate  administrative  cooperation  on  the  posting  of 
workers. 

Article  8  provides  for  accompanying  measures  to  develop,  facilitate,  support,  promote  and 
further  improve  administrative  cooperation  and  to  increase  mutual  trust,  including  through 
financial support. 

3.4.5  Monitoring  compliance  —  national  control  measures  —  link  with  administrative 

cooperation 

Chapter IV ‘Monitoring compliance’ covers national control measures, including those which 
may  be  applied  to  legally  resident  and  lawfully  employed  third-country  nationals  who  are 
posted  within  the  EU  by  their  employer,  as  well  as  inspections.  It  is  closely  linked  with 
Chapter  III  (administrative  cooperation)  and  Chapter  I  (general  provisions,  in  particular 
Article 3 (1) and (2), so should be read in close connection with those provisions. 

As recognised by the case law of the ECJ, the effective protection of workers’ rights, which 
constitutes  an  overriding  reason  of  general  interest,  may  equally  justify  certain  national 
inspections  and  control  measures  necessary  to  carry  out  the  general  supervisory  task  of 
authorities  in  monitoring  the  observance  of  substantive  obligations  justified  by  the  general 
interest48. For inspections relating to the implementation of the Directive, however, Member 
States must abide by Article 56 TFEU and refrain from creating or upholding unjustified and 
disproportionate  restrictions  on  service  providers  within  the  European  Union49.  In  the 

47 

48 

49 

on 

September 

Strasbourg, 

F.  Muller, 

2010.  Available 

Cf.  COM(2007)  304,  p.  9.  See  for  further  details:  Study  ‘Information  provided  on  the  posting  of 
the  website: 
workers’, 
http://www.ec.europa.eu/social/posted-workers. 
Communication  ‘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, 13.6.2007, 
point 2.2, p. 4. Communication ‘Guidance on the posting of workers in the framework of the provision 
of services, COM(2006) 159 final, 4.4.2006, p. 3. Cf. judgment of 23.11.1999, joined cases C-369/96 
and  C-376/96,  Arblade  and  others,  paragraph  38.  Cf.  also  judgment  of  19.1.2006,  case  C-244/04, 
Commission  v  Germany,  paragraph  36  and  judgment  of  21.10.2004,  case  C-445/03,  Commission  v 
Luxembourg, paragraph 39/40 (both judgments concern third-country nationals as posted workers). 
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 19.1.2006, Commission 
v Germany, C-224/04, paragraph 36. 

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Finalarte  cases50,  the  Court  accepted  that  businesses  established  outside  the  host  Member 
State  could  be  required  to  provide  more  information  than  businesses  established  in  that 
Member  State,  to  the  extent  that  this  difference  in  treatment  was  justified  by  objective 
differences between those businesses and businesses established in the host Member State. 

However,  as  equally  acknowledged  by  the  ECJ,  there  is  at  the  same  time  no  doubt  a  link 
between the existence of an organised system for cooperation and exchange of information51 
and  the  possibility  for  Member  States  to  apply  certain  control  measures  in  order  to  monitor 
compliance.  Indeed,  an  effectively  functioning  system  of  this  kind  may  render  certain 
obligations superfluous52. 

Administrative cooperation and national control measures are thus two sides of the same coin. 
For certain aspects of the notion of posting, such as the genuine link of the employer with the 
sending  Member  State,  the  Member  State  from  which  the  posting  takes  place  plays  the  key 
role, whereas matters such as compliance with the terms and conditions of employment to be 
respected  in  the  country  where  the  services  are  provided  can  only  be  controlled  in  the  host 
Member State. Close collaboration by both countries is also necessary on other matters, such 
as  the  indicative  qualitative  criteria  to  be  used  in  the  context  of  the  notion  of  posting. 
Therefore,  both  countries  are  an  essential  part  of  an  effectively  functioning  system  of 
cooperation  and  exchange  of  information,  even  if  the  actual  scope  of  their  activities  in  this 
context may differ. 

The effectiveness of administrative cooperation as well as the control and monitoring already 
carried out in the Member State of establishment are thus important elements in the case-by-
case assessment of the compatibility of national control measures with EU law53. Therefore, a 
review  clause  has  been  included  in  order  to  evaluate  the  situation  further,  in  particular  to 
examine the necessity and appropriateness of the application of national control measures in 
the  light  of  the  experiences  with  and  effectiveness  of  the  functioning  of  the  system  of 
administrative cooperation as well as technological developments54 (Article 9, paragraph 3). 

The monitoring exercise launched on the basis of the Commission’s Communication of April 
2006 not only highlighted the striking diversity of national control measures used by Member 
States, but also showed that many Member States appear to rely solely on their own national 
measures  and  instruments  to  control  service  providers55.  Moreover,  those  were  applied  in  a 

50 

51 

52 

53 
54 

55 

Judgment  of  25 October  2001,  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), 
paragraphs 69-74. 
Judgment  of  23.11.1999,  joined  cases  C-369/96  and  C-376/96,  Arblade  and  others,  paragraph  61  and 
79,  of  18.7.2007,  C-490/04,  Commission  v  Germany,  paragraph  78;  cf.  conclusions  AG  Ruiz-Jarabo 
Colomer, case C-490/04, paragraphs 81-88, conclusions AG Trstenjak, case C-319/06, Commission  v 
Luxembourg,  paragraph  86,  conclusions  AG  Cruz  Villalón,  case  C-515/08,  Santos  Palhota  e.a. 
paragraph 92. 
Such as the retention of documents in the host Member State after the employer has ceased to employ 
workers,  cf.  judgment  of  23.11.1999,  joined  cases  C-369/96  and  C-376/96,  Arblade  and  others, 
paragraph 79. 
Cf. COM(2007) 304, p. 7, first paragraph, last sentence. 
Moreover,  the  mandate  of  the  Expert  Committee  on  Posting  of  Workers  will  be  adapted  in  order  to 
establish  clearly  its  role  in  examining  the  feasibility  of  developing  more  uniform,  standardised 
templates  for  the  social  documents  accepted  by  the  Court  as  being  compatible  with  EU  law  (such  as 
time sheets, payslips, etc.). 
Cf. COM(2007) 304, p. 6-8 and 11. 

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way not always justified or proportionate in view of the objectives pursued and were thus not 
in conformity with Article 56 TFEU as interpreted by the ECJ. 

In  its  case  law,  the  ECJ  has  further  clarified  the  compatibility  of  certain  national  control 
measures  with  EU  law.  It  reiterated  that  a  proportionate  prior  declaration  requirement  is  an 
appropriate  measure  for  enabling  subsequently  the  necessary  checks  to  be  carried  out  and 
preventing  fraud56.  Moreover,  with  respect  to  the  obligation  to  keep  certain  specific  social 
documents  within  the  territory  of  a  Member  State,  the  ECJ57  accepted  that  the  obligation 
imposed on foreign businesses to retain the employment contract (or an equivalent document 
within the meaning of Directive 91/533), payslips, time-sheets and proof of payment of wages 
at  the  building  site,  as  well  as  an  obligation  to  translate  the  relevant  documents  into  the 
language of the Member State concerned58, did not constitute unjustified and disproportionate 
restrictions  on  the  freedom  to  provide  services59.  A  similar  obligation  to  keep  copies 
equivalent to the individual accounts and payslips at the workplace60 or at the address of the 
employer’s  agent  or  servant  on  the  territory  of  the  Member  State  concerned  was  likewise 
considered not to violate the Treaty provisions on the freedom to provide services61. 

However,  notwithstanding  the  requirements  indicated  in  the  previous  paragraph,  the  Court 
decided that Member States may not impose any of the following requirements on a service 
provider  established  in  another  Member  State  which  temporarily  posts  workers  to  another 
Member State for the provision of its services: 
- an obligation for the provider to have an establishment in their territory; 
- an obligation for the provider to obtain an authorisation from or to be registered with their 
competent authorities, including entry in a register or registration with a professional body or 
association  in  their  territory,  or  to  satisfy  any  other  equivalent  requirement,  except  where 
provided for in other instruments of EU law; 
- an obligation to designate a representative or ad hoc agent established, domiciled or residing 
in the host Member State; 
-  a  ban  on  the  provider  setting  up  a  certain  form  or  type  of  infrastructure  in  their  territory, 
including an office or chambers, which the provider needs in order to be able to provide the 
services in question; 

56 

57 
58 

59 

60 

61 

Judgment of 7.10.2011, case C-515/08, dos Santos Palhota, par. 54 and 52 and of 1.10.2009, C-219/08, 
Commission v Belgium, par. 16 and the case law referred to. 
Judgment of 18.7.2007, case C-490/04, Commission v Germany, paragraphs 56–80. 
Acknowledging  that  on-site  supervision  would  be  extremely  difficult,  even  impossible,  in  practice,  if 
those  documents  could  be  presented  in  the  language  of  the  Member  State  where  the  undertaking  is 
established  (par.  71).  However,  the  Court  equally  indicated  that  of  particular  importance  for  its 
conclusion in this respect was the fact that the translation requirement concerned only four documents 
that were not excessively long and for which standard forms were generally used (par. 76). 
An  important  element  in  the  Court’s  assessment  was  that  the  necessary  or  requested  information 
(without which the national authorities cannot carry out their supervisory task effectively) could not be 
easily  obtained  via  the  employer  or  the  authorities  in  the  Member  State  of  establishment  within  a 
reasonable  period  of  time  and/or  less  restrictive  measures  would  not  ensure  achievement  of  the 
objectives of the national control measures deemed necessary. 
Cf. for a similar requirement to keep certain documents on site or in an accessible and clearly identified 
place, judgment of 23.11.1999, joined cases C-369/96 and C-376/96, Arblade and others, paragraph 64-
66, judgment of 25 October 2001, 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), 
paragraph 74. 
Judgment of 7.10.2010, case C-515/08, dos Santos Palhota, paragraphs 55-58 and 42. 

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- an obligation to keep certain social documents on its territory, without any exception and/or 
time limitation, when the information can be obtained via the employer or the authorities in 
the Member State of establishment within a reasonable period of time; 
- an obligation to draw up relevant social documents in accordance with the rules of the host 
country. 

It  is  considered  appropriate  to  clarify  this  case  law  by  codifying  it  in  the  present  proposal, 
indicating  clearly  which  requirements  are  compatible  with  obligations  under  EU  law  and 
which  are  not.  By  complying  with  their  obligations,  Member  States  would  substantially 
contribute to reducing administrative burdens in line with the objectives set by the European 
Council. SMEs would benefit from better enforcement of the existing Directive, a more level 
playing  field  and  fairer  competition.  Improved  administrative  cooperation  and  effective  and 
adequate  inspections  based  on  risk  assessment  would  make  inspections  more  effective  and 
reduce  costs  for  companies  in  non-risk  sectors  or  situations  and  thus  contribute  to  less 
burdensome controls62. 

Furthermore,  in  line  with  ILO  Convention  No  8163,  effective  and  adequate  inspections, 
primarily based on regular risk assessment by the competent authorities, should be carried out 
in order to control and monitor compliance with the applicable rules (Article 10).In order to 
reflect  the  different  industrial  relations  systems  and  diversity  of  systems  of  control  in  the 
Member States, other actors and/or bodies may also monitor certain terms and conditions of 
employment of posted workers, such as the minimum rates of pay and working time. 

3.4.6.  Enforcement — defence of rights, subcontracting chains, liability and penalties 

Chapter  V  (Articles  11  and  12)  relates  to  the  enforcement  and  defence  of  rights,  which  in 
itself concerns a fundamental right: the Charter of Fundamental Rights of the European Union 
confirms the right to effective remedy for everyone whose rights and freedoms guaranteed by 
the law of the European Union are violated or not respected. 

Complaint mechanisms 

To facilitate better enforcement and ensure more correct application in practice of Article 6 of 
Directive  96/71/EC,  effective  mechanisms  need  to  be  in  place  for  posted  workers  to  lodge 
complaints directly or through designated third parties, such as trade unions, subject to their 
approval (Article 11). This is without prejudice to the jurisdiction of the courts in the Member 
States  as  laid  down,  in  particular,  in  the  relevant  instruments  of  Union  law  and/or 
international conventions as well as to national rules of procedure concerning representation 
and  defence  before  the  courts.  Common  institutions  of  social  partners  in  so  far  as  they  are 
covered  by  Article  3  (1)  of  Directive  96/71/EC  may  equally  have  a  legitimate  interest  in 
ensuring that the provisions of Directive 96/71/EC are complied with. 

Joint and several liability 

The  protection  of  workers  rights  is  a  matter  of  particular  concern  in  subcontracting  chains, 
which are particularly widespread in the construction sector in the European Union. There is 
evidence that, in a number of cases, posted workers are exploited and left without payment of 
wages or part of the wages they are entitled to under the Directive 96/71/EC. Posted workers 

62 
63 

See for further details IA Study, pp. 55–56. 
Labour Inspection Convention 1947, ratified by the 27 Member States. 

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may also not be able to enforce their wage claims against their employer because the company 
has  disappeared  or  never  really  existed.  Adequate,  effective  and  dissuasive  measures  are 
necessary in order to ensure the compliance of subcontractors with their legal and contractual 
obligations,  particularly  as  regards  workers’  rights.  Moreover,  increased  transparency  in 
subcontracting processes will enhance the overall protection of workers’ rights. 

The  European  Parliament  has  referred  to  the  need  to  table  a  proposal  in  parliamentary 
questions64 and has adopted several resolutions on this issue, calling upon the Commission to 
establish  a  legislative  instrument  on  joint  and  several  liability  at  EU  level,  in  particular  for 
long subcontracting chains65. 

However, a cautious approach is required in this respect in order to take due account of the 
variety of legal systems in place in the Member States, as well as the impact such a system 
may  have  on  cross-border  service  provision  within  the  Internal  Market.  It  is  therefore 
understandable  that  differing  views  among  stakeholders  exist  as  to  the  feasibility  and/or 
desirability of an instrument at EU level66. 

Currently,  only  a  limited  number  of  Member  States  (8)  and  Norway  establish  joint  and/or 
several  liability  for  parties  other  than  the  direct  employer  with  regard  to  social  security 
contributions,  taxes  and/or  (minimum)  wages.  Substantial  differences  exist  between  the 
various  national  systems  for  several  and  joint  liability67.  The  different  legal  traditions  and 
industrial  relations  cultures  in the  countries  concerned indicate that the systems  adopted  are 
highly  specific  to  each  national  situation  and  few  elements,  if  any,  are  transferable  to  a 
European solution. 

Further research confirms that even if some mechanisms for joint and several liability show 
similarities, they remain significantly different in terms of scope, actual implementation and 
effectiveness, including in cross-border situations68. 

In its constant case law, the Court of Justice of the EU reiterates that the protection of workers 
rights can justify a restriction to the freedom to provide services. In the Finalarte case69, the 
Court  also  indicated  that  a  difference  in  treatment  between  foreign  and  national  companies 
can be justified by objective differences and does not necessarily constitute a discrimination 
contrary to the freedom to provide services. 

The  case  law  of  the  Court  of  Justice  of  the  EU  provides  some  guidance  on  the  possible 
incompatibility of some existing joint and several liability systems with obligations under EU 

64 
65 

66 

67 

68 

69 

See for instance E-6753/2011 and E-5137/09. 
See  for  instance  Resolution  A6-0065/2009  of  26.3.2009  on  the  basis  of  the  own-initiative  Lehtinen 
report as well as point 9 of the recently adopted report on the mid-term review of the European strategy 
2007-2012 on health and safety at work (2011/2147(INI). 
Cf.:  Communication  on  the  outcome  of  the  public  consultation  on  the  Commission’s  Green  Paper 
‘Modernising labour law to meet the challenges of the 21st century’, COM(2007) 627 final, 24.10.2007, 
p. 8. 
Cf. study ‘Liability in subcontracting processes in the European construction sector’ carried out by the 
European  Foundation  for 
in  2008. 
http://www.eurofound.europa.eu/publications/htmlfiles/ef0894.htm. 
Study on  the protection  of  workers’  rights  in  subcontracting processes  in  the  European  Union, Ghent 
University, 2012. The preliminary final results have been taken into consideration. 
Judgment of 25.10.2001, case C-49/98. 

the  Improvement  of  Living  and  Working  Conditions 

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19 

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law.  In  its  judgment  in  the  Wolff-Müller  case70,  the  Court  declared  that  the  German  (chain) 
liability scheme for minimum wage payments under certain conditions could be considered as 
a justified measure, whereas a Belgian joint liability scheme for (wage) tax debts was deemed 
to  be  disproportionate  and  thus  incompatible  with  the  Treaty  provisions  on  the  freedom  to 
provide services71. 

The  current  proposal  contains  specific  provisions  concerning  contractors’  obligations  and 
(joint and several) liability with respect to compliance with the relevant terms and conditions 
of employment of posted workers by subcontractors (Article 12). The focus is on preventive 
measures,  combined  with  the  possibility  for  Member  States  who  so  wish  to  maintain  or 
implement more far-reaching systems of joint and several or chain liability.  

The  provisions  are  limited  to  the  construction  sector,  as  defined  by  the  list  of  activities 
included  in  the  Annex  to  Directive  96/71.  Posting  by  temporary  work  agencies  is  included 
provided it is aimed at activities in the construction sector. However, Member States may, if 
they so wish, extend these provisions to other sectors. 

This  balanced  package  of  measures  should  reflect  sufficiently  the  variety  and  diversity  of 
existing  systems  at  national  level,  while  at  the  same  time  avoiding  adding  unnecessary  or 
unjustified administrative burden for companies. Furthermore, companies should not assume 
the  responsibilities  of  public  authorities  to  verify  the  application  of  labour  laws  by  other 
companies.  However,  in  line  with  the  OECD  Guidelines  for  Multinational  Enterprises, 
responsible  business  conduct  and  governance  should  at  least  require  them  to  carry  out  risk-
based due diligence when selecting subcontractors. There is equally evidence to suggest that 
proportionate risk management can make good business sense72. 

The  proposal  for  this  Directive  takes  a  comprehensive  approach  to  enforcement,  including 
awareness  raising  (better  information),  state  enforcement  mechanisms  (inspections  and 
sanctions)  and  private  law  enforcement  mechanisms (joint and several liability). All aspects 
are  important  for  a  balanced  approach.  Weakening  one  of  the  aspects  would  imply 
strengthening other aspects of enforcement in order to achieve a similar result. Therefore, all 
aspects have been included in the proposal in a balanced way. The proposed system of joint 
and  several  liability  is  limited  to  direct  subcontractor  situations  in  the  construction  sector 
where  most  of  the  cases  of  non-payment  of  wages  have  been  reported.  Contractors  which 
have  undertaken  due  diligence  obligations  cannot  be  held  liable  in  accordance  with  Article 
12(1). Joint and several liability is a mechanism of self-regulation between private actors and 
a far less restrictive and more proportionate system than possible alternative systems such as 
pure state intervention by inspections and sanctions.  

3.4.7.  Cross-border enforcement of administrative fines and penalties 

Given  the  transnational  nature  of  posting,  the  mutual  recognition  and  enforcement  of  fines 
and penalties, particularly in the country of establishment of the company posting the workers 
temporarily to another Member State, is crucial. The absence of a common mutual recognition 

70 
71 
72 

Judgment of 12.10.2004, case C-60/03. 
Judgment of 9.11.2006, case C-433/04, Commission v Belgium. 
'Reclaiming health and safety for all: an independent review of health and safety legislation', Professor 
Ragnar E Löfstedt, nov. 2011, preface. 

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20 

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and  enforcement  instrument  has  been  identified  as  causing  major  practical  enforcement 
problems and difficulties73. 

Part  of  the  problem  is  caused  by  the  fact  that  non-compliance  with  the  obligations  under 
Directive 96/71/EC is sanctioned differently in the Member States74. In a number of Member 
States  the  sanctions  imposed  are  of  a  penal  or  criminal  nature,  whereas  in  others  they  are 
governed by administrative law, and a combination of the two can also be found. However, 
the  underlying  claims  concerning  the  terms  and  conditions  of  employment  to  be  complied 
with are mainly (if not all) of a civil nature. 

Existing EU instruments govern to a certain extent some of the fines and penalties imposed, 
including  via  mutual  assistance,  and  their  mutual  recognition.  For  example  Council 
Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle 
of mutual recognition to financial penalties75 provides for the mutual recognition of financial 
penalties76  and  thus  facilitates  via  a  simple  and  effective  system  their  cross-border 
enforcement. It also covers the recognition and enforcement of decisions concerning offences 
serving the purpose of implementing obligations arising from instruments adopted under the 
Treaties. The recognition and enforcement of judgments with respect to underlying claims of 
a civil nature is governed by the Brussels I Regulation77. 

With  respect  to  fines  and  penalties  of  an  administrative  nature,  which  can  be  appealed  to 
courts  other  than  penal  courts,  similar  instruments  do  not  exist.  Therefore,  Chapter  VI 
(Articles 13 – 16) sets out a system for the cross-border enforcement of such administrative 
fines  and  penalties.  The  systems  established  for  the  recovery  of  social  security  claims  by 
Regulation 987/200978 and for tax claims by Directive 2010/24/EU79 were used as a source of 
inspiration. The IMI system will be used for the necessary mutual assistance and cooperation 
between the competent authorities. 

This Chapter does not aim to establish harmonised rules for judicial cooperation, jurisdiction, 
or  the  recognition  and  enforcement  of  decisions  in  civil  and  commercial  matters,  or  to  deal 
with applicable law. Equally, other EU instruments that govern such matters in general terms 
remain applicable. 

3.4.8.  Final provisions - Penalties 

73 

74 

75 
76 
77 

78 

79 

Communication  ‘The  implementation  of  Directive 96/71/EC  in  the  Member  States’,  COM(2003)  458 
final, 25.7.2003, p. 20, as well as the Commission report on the implementation of Directive 96/71/EC 
concerning  the  posting  of  workers  in  the  framework  of  the  provision  of  services,  SEC(2006)  439,  p. 
28/29. 
See for further details the CIBELES project: 
http://www.mtin.es/itss/web/Sala_de_comunicaciones/Noticias/Archivo_Noticias/2011/11/22112011_n
ot_web_port.html. 
OJ L 76, 22.3.2005, p. 16. 
Including administrative fines, provided the decisions concerned can be appealed to a penal court. 
Council Regulation (EC) 44/2001 of 22.12.2000 on jurisdiction and the recognition and enforcement of 
judgments in civil and commercial matters, OJ L 12, 16.1.2001. Cf. Regulation (EC) No 805/2004 of 
the European Parliament and of the Council of 21.4.2004 creating a European Enforcement Order for 
uncontested claims, OJ L 143, 30.4.2004. 
Regulation  978/2009  of  16  September  2009  laying  down  the  procedure  for  implementing  Regulation 
(EC) No 883/2004 on the coordination of social security systems, OJ L 284, 30.10.2009, in particular 
Articles 75–85. 
Directive 2010/24 of 16 March 2010 concerning mutual assistance for the recovery of claims relating to 
taxes, duties and other measures, OJ L 84, 31.3.2010. 

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Article 17 contains the standard provision for penalties in the case of non-compliance, which 
should  be  effective,  proportionate  and  dissuasive  (Article  17).  Effectiveness  requires  the 
sanction  to  be  suitable  for  achieving  the  desired  goal,  i.e.  observance  of  the  rules. 
Proportionality  requires  that  the  sanction  must  be  commensurate  with  the  gravity  of  the 
conduct  and  its  effects  and  must  not  exceed  what  is  necessary  to  achieve  the  goal. 
Dissuasiveness requires that the sanctions constitute an adequate deterrent for potential future 
perpetrators. 

The appropriate legal basis for the use of the Internal Market Information System (‘IMI’) as 
the  electronic  information  exchange  system  to  facilitate  administrative  cooperation  is 
provided for in Article 18, whereas Article 19 contains the necessary technical amendments to 
the IMI Regulation.  

4. 

BUDGETARY IMPLICATIONS 

This proposal is expected to have implications for the EU budget.. Costs for grants (projects, 
seminars,  exchange  of  good  practice  etc)  of  2  million  EUR  as  well  as  for  the  Expert 
Committee  on  the  Posting  of  Workers  of  0,264  million  EUR  per  year  will  be  covered  by 
PROGRESS (2013) and the Programme for Social Change and Innovation (2014-2020). Costs 
of 0,5 million EUR for an ex-post evaluation study in 2016 will be covered by the Programme 
for Social Change and Innovation. Costs for human resources of 0,232 million EUR and other 
administrative  expenditure  (travel  costs  0,01  million  EUR;  stakeholder  conferences  every 
second year 0,36 million EUR) will be covered under heading 5 of the Multiannual Financial 
Framework. Details are explained in the financial statement annexed to this proposal. 

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22 

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2012/0061 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the enforcement of Directive 96/71/EC concerning the posting of workers in the 
framework of the provision of services 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 53(1) and 62 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national Parliaments, 

Having regard to the opinion of the European Economic and Social Committee80, 

Having regard to the opinion of the Committee of the Regions81, 

After consulting the European Data Protection Supervisor, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

The  free  movement  of  workers,  freedom  of  establishment  and  freedom  to  provide 
services  are  fundamental  principles  of  the  internal  market  in  the  Union  enshrined  in 
the  Treaty.  The  implementation  of  these  principles  is  further  developed  by  Union 
aimed at guaranteeing a level playing field for businesses and respect for the rights of 
workers. 

The free movement of workers gives every citizen the right to move freely to another 
Member  State  to  work  and  reside  there  for  that  purpose  and  protects  them  against 
discrimination as regards employment, remuneration and other working conditions in 
comparison  to  nationals  of  that  Member  State.  It  needs  to  be  distinguished  from  the 
freedom  to  provide  services,  which  includes  the  right  of  undertakings  to  provide 
services in another Member State, for which they may send (‘post’) their own workers 
temporarily to carry out the work necessary to provide these services there. 

80 
81 

OJ C , , p. . 
OJ C , , p. . 

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(3)  With  respect  to  workers  temporarily  posted  to  carry  out  work  in  order  to  provide 
services in another Member State than the one in which they habitually carry out their 
work,  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 services82 establishes a core set of clearly defined terms and conditions of work and 
employment  which  must  be  complied  with  by  the  service  provider  in  the  Member 
State to which the posting takes place to ensure the minimum protection of the posted 
workers concerned. 

(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

In  order  to  prevent,  avoid  and  combat  circumvention  and/or  abuse  of  the  applicable 
rules by companies taking improper or fraudulent advantage of the freedom to provide 
services  enshrined  in  the  Treaty  and/or  the  application  of  Directive  96/71/EC  the 
implementation and monitoring of the notion of posting should be improved. 

Therefore,  the  constituent  factual  elements  characterising  the  temporary  nature 
inherent to the notion of posting, which implies that the employer should be genuinely 
established  in  the  Member  State  from  which  the  posting  takes  place,  as  well  as  the 
relationship between Directive 96/71/EC and Regulation (EC) No 593/2008 on the law 
applicable to contractual obligations (hereinafter the ‘Rome I Regulation’)83 need to be 
further clarified. 

As  is  the  case  with  Directive  96/71/EC,  this  Directive  should  not  prejudice  the 
application  of  the  law  which,  under  Article  8  of  the  Rome  I  Regulation,  applies  to 
individual employment contracts, or the application of Regulation No 883/2004 of the 
European Parliament and of the Council of 29 April 2004 on the coordination of social 
security systems84 and Regulation No 987/2009of the European Parliament and of the 
Council  of  16  September  2009  laying  down  the  procedure  for  implementing 
Regulation (EC) No 883/2004 on the coordination of social security systems 85. 

Respect  for  the  diversity  of  national  industrial  relations  systems  as  well  as  the 
autonomy of social partners is explicitly recognised by the Treaty86. 

Trade  unions  play  an  important  role  in  the  context  of  the  posting  of  workers  for  the 
provision of services since social partners may, in accordance with national law and/or 
practice,  determine  the  different  levels  (alternatively  or  simultaneously)  of  the 
applicable minimum rates of pay87. 

For the purpose of ensuring that a posted worker receives the correct pay and provided 
allowances specific to posting can be considered part of minimum rates of pay, such 
allowances should only be deducted from wages if national law, collective agreements 
and/or practice of the host Member State provide for this. 

(10)  Adequate  and  effective  implementation  and  enforcement  are  key  elements  in 
protecting  the  rights  of  posted  workers,  whereas  poor  enforcement  undermines  the 

82 
83 
84 
85 
86 
87 

OJ L 18, 21.1.1997, p. 1. 
OJ L 177, 4.7.2008, p. 6.  
OJ L 166, 30.4.2004, p. 1. 
OJ L 284, 30.10.2009, p. 1. 
Article 152 of the Treaty on the Functioning of the European Union. 
Cf. judgment 15.4.2008, case C-268/06, Impact, in particular points 123 and 129. 

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effectiveness of the Union rules applicable in this area. Close cooperation between the 
Commission  and  the  Member  States  is  therefore  essential,  without  neglecting  the 
important role of labour inspectorates and the social partners in this respect. 

(11)  Mutual  trust,  a  spirit  of  cooperation,  continuous  dialogue  and  mutual  understanding 

are essential in this respect. 

(12) 

In order to facilitate better and more uniform application of Directive 96/71/EC, it is 
appropriate  to  provide  for  an  electronic  information  exchange  system  to  facilitate 
administrative  cooperation  and  competent  authorities  should  use  the  Internal  Market 
Information System (IMI) as much as possible. However, this should not prevent the 
application  of  bilateral  agreements  or  arrangements  concerning  administrative 
cooperation. 

(13)  Administrative cooperation and mutual assistance between the Member States should 
comply  with  the  rules  on  the  protection  of  personal  data  laid  down  in  Directive 
95/46/EC, and with regard to administrative cooperation through the Internal Market 
Information System (IMI), it should also comply with Regulation (EC) No 45/2001 of 
the European Parliament and of the Council of 18 December 2000 on the protection of 
individuals with regard to the processing of personal data by the EU institutions and 
bodies  and  on  the  free  movement  of  such  data88  and  Regulation  (EU)  xxx  (IMI 
Regulation)  on  administrative  cooperation  through  the  Internal  Market  Information 
System (IMI)".  

(14)  Member  States  obligations  to  make  information  on  terms  and  conditions  of 
employment  generally  available  and  to  provide  effective  access  to  it,  not  only  to 
service providers from other Member States, but also to the posted workers concerned, 
should be further concretised. 

(15)  Member  States  should  determine  the  way  in  which  providers  and  recipients  are 
provided  with  easily  accessible  relevant  information,  preferably  by  making  this 
information accessible through a website, following web accessibility standards. Such 
websites  should  include  in  particular  any  website  put  in  place  pursuant  to  EU 
legislation  with  a  view  to  promote  entrepreneurship  and/or  the  development  of  the 
cross-border of services. 

(16) 

In  order  to  ensure  the  correct  application  of,  and  to  monitor  compliance  with,  the 
substantive  rules  on  the  terms  and  conditions  of  employment  to  be  respected  with 
regard to posted workers, Member States should apply only certain control measures 
or  administrative  formalities  to  undertakings  posting  workers  for  the  provision  of 
services.  Such  measures  and  requirements  may  only  be  imposed  provided  that  the 
competent  authorities  cannot  carry  out  their  supervisory  task  effectively  without  the 
requested  information  and  the  necessary  information  cannot  be  obtained  easily  from 
the  employer  of  posted  workers  or  the  authorities  in  the  Member  State  of 
establishment of the service provider within a reasonable delay and/or less restrictive 
measures  would  not  ensure  that  the  objectives  of  the  national  controls  measures 
deemed necessary are attained. 

88 

OJ L 8, 12.1.2001, p. 1. 

EN 

25 

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(17)  A comprehensive system of preventive and control measures, together with deterrent 
penalties to identify and prevent individual instances of bogus self-employed, should 
contribute to combat concealed employment effectively. 

(18)  To  ensure  better  and  more  uniform  application  of  Directive  96/71/EC  as  well  as  its 
enforcement  in  practice,  and  to  reduce,  as  far  as  possible,  differences  in  the  level  of 
application  and  enforcement  across  the  Union,  Member  States  should  ensure  that 
effective and adequate inspections are carried out on their territory. 

(19)  National  labour  inspectorates,  social  partners  and  other  monitoring  bodies  are  of 
paramount importance in this respect and should continue to play a crucial role. 

(20) 

In order to cope in a flexible way with the diversity of labour markets and industrial 
relations systems, by way of exception, other actors and/or bodies may monitor certain 
terms  and  conditions  of  employment  of  posted  workers,  provided  these  offer  the 
persons concerned an equivalent degree of protection and exercise their monitoring in 
a non-discriminatory and objective manner. 

(21)  Member States’ inspection authorities and other relevant monitoring and enforcement 
bodies  should  avail  themselves  of  the  cooperation  and  exchange  of  information 
provided for in the relevant legislation in order to verify whether the rules applicable 
to posted workers have been respected. 

(22)  Member States are particularly encouraged to introduce a more integrated approach to 
labour  inspections.  The  need  to  develop  common  standards  in  order  to  establish 
comparable methods, practices and minimum standards at Union level should equally 
be examined. 

(23)  To  facilitate  the  enforcement  of  Directive  96/71/EC  and  ensure  more  effective 
application  of  it,  effective  complaint  mechanisms  should  exist  through  which  posted 
workers  may  lodge  complaints  or  engage  in  proceedings  either  directly  or  through 
relevant designated third parties, such as trade unions or other associations as well as 
common  institutions  of  social  partners.  This  should  be  without  prejudice  to  national 
rules of procedure concerning representation and defence before the courts. 

(24) 

In view of the prevalence of subcontracting in the construction sector, and in order to 
protect posted workers' rights, it is necessary to ensure that in such sector at least the 
contractor of which the employer is a direct subcontractor can be held liable to pay to 
posted workers the net minimum rates of pay due, any back-payments of outstanding 
remuneration  and/or  contributions  due  to  common  funds  or  institutions  of  social 
partners  regulated  by  law  or  collective  agreement  in  so  far  as  these  are  covered  by 
Article  3  (1)  of  Directive  96/71/EC  in  addition  to  or  in  place  of  the  employer.  The 
contractor  shall  not  be  held  liable  if  he/she  has  undertaken  due  diligence.  The  latter 
may  imply  preventive  measures  concerning  proof  provided  by  the  subcontractor, 
including where relevant based upon information emanating from national authorities.  

(25) 

In specific cases, other contractors may, in accordance with national law and practice, 
be also held liable for failure to comply with the obligations under this Directive, or 
their  liability  may  be  limited,  after  consultation  of  the  social  partners  at  national  or 
sectoral level.  

EN 

26 

   EN 

 
(26)  The  obligation  to  impose  a  liability  requirement  on  the  contractor  where  the  direct 
subcontractor  is  a  service  provider,  established  in  another  Member  State,  posting 
workers is justified in the overriding public interest of the social protection of workers. 
Such posted workers may not be in the same situation as workers employed by a direct 
subcontractor established in the Member State of establishment of the contractor with 
regard to the possibility to claim outstanding pay or refunds of taxes or social security 
contributions unduly withheld. 

(27)  The  disparities  between  the  systems  of  the  Member  States  for  enforcing  imposed 
administrative  fines  and/or  penalties  in  cross-border  situations  are  prejudicial  to  the 
proper  functioning  of  the  internal  market  and  risk  making  it  very  difficult,  if  not 
impossible,  to  ensure  that  posted  workers  enjoy  an  equivalent  level  of  protection 
throughout the Union. 

(28)  Effective enforcement of the substantive rules governing the posting of workers for the 
provision of services should be ensured by specific action focusing on the cross-border 
enforcement  of  imposed  administrative  fines  and  penalties.  Approximation  of  the 
legislation  of  the  Member  States  in  this  field  is  therefore  an  essential  prerequisite  in 
order to ensure a higher, more equivalent and comparable level of protection necessary 
for the proper functioning of the internal market. 

(29)  The  adoption  of  common  rules  for  providing  mutual  assistance  and  support  for 
enforcement  measures  and  the  associated  costs,  as  well  as  the  adoption  of  uniform 
requirements  for  the  notification  of  decisions  relating  to  administrative  penalties  and 
fines  imposed,  should  resolve  a  number  of  practical  cross-border  enforcement 
problems  and  guarantee  better  communication  and  better  enforcement  of  such 
decisions emanating from another Member State. 

(30)  Notwithstanding  the  establishment  of  more  uniform  rules  with  respect  to  the  cross-
border enforcement of penalties and fines and the need for more common criteria for 
follow-up procedures in the event of the non-payment of these they should not affect 
the Member States’ competences to determine their system of penalties, sanctions and 
fines or the recovery measures available under their internal legislation. 

(31)  This  Directive  does  not  aim  to  establish  harmonised  rules  for  judicial  cooperation, 
jurisdiction, or the recognition and enforcement of decisions in civil and commercial 
matters, or to deal with applicable law. 

(32)  Member States should take appropriate measures in the event of failure to comply with 
the  obligations  laid  down  in  this  Directive,  including  administrative  and  judicial 
procedures,  and  should  provide  for  effective,  dissuasive  and  proportionate  penalties 
for any breaches of the obligations under this Directive. 

(33)  This Directive respects the fundamental rights and observes the principles recognised 
in  the  Charter  of  Fundamental  Rights  of  the  European  Union,  notably  protection  of 
personal data (Article 8), the freedom to choose an occupation and right to engage in 
work  (Article  15),  the  freedom  to  conduct  a  business  (Article  16),  the  right  to 
collective bargaining and action (Article 28), fair and just working conditions (Article 
31), and the right to an effective remedy and to a fair trial (Article 47) and has to be 
implemented in accordance with those rights and principles. 

EN 

27 

   EN 

 
(34)  Since the objective of this Directive, namely to establish a general common framework 
of appropriate provisions, measures and control mechanisms necessary for better and 
more  uniform  implementation,  application  and  enforcement  in  practice  of  Directive 
96/71/EC, cannot be sufficiently achieved by the Member States, and can therefore, by 
reason  of  the  scale  and  effects  of  the  action,  be  better  achieved  at  Union  level,  the 
Union may adopt measures in accordance with the principle of subsidiarity as set out 
in Article 5 of the Treaty of the European Union. In accordance with the principle of 
proportionality,  as  set  out  in  that  Article,  this  Directive  does  not  go  beyond  what  is 
necessary in order to achieve that objective, 

HAVE ADOPTED THIS DIRECTIVE: 

CHAPTER I 
GENERAL PROVISIONS 

Article 1 
Subject matter 

1. 

2. 

This  Directive  establishes  a  general  common  framework  of  appropriate  provisions, 
measures  and  control  mechanisms  necessary  for  better  and  more  uniform 
implementation,  application  and  enforcement  in  practice  of  Directive  96/71/EC, 
including  measures  to  prevent  and  sanction  any  abuse  and  circumvention  of  the 
applicable rules. 

This  Directive  aims  to  guarantee  respect  for  an  appropriate  level  of  minimum 
protection of the rights of posted workers for the cross-border provision of services, 
while  facilitating  the  exercise  of  the  freedom  to  provide  services  for  service 
providers and promoting fair competition between service providers. 

This  Directive  shall  not  affect  in  any  way  the  exercise  of  fundamental  rights  as 
recognised  in  Member  States  and  by  Union  law,  including  the  right  or  freedom  to 
strike  or  to  take  other  action  covered  by  the  specific  industrial relations  systems  in 
Member States, in accordance with national law and practices. Nor does it affect the 
right to negotiate, conclude and enforce collective agreements and to take collective 
action in accordance with national law and practices. 

Article 2 
Definitions 

For the purposes of this Directive, 

(a) 

(b) 

‘competent authority’ means an authority designated by a Member State to perform 
functions under this Directive; 

‘requesting  authority’  means  the  competent  authority  of  a  Member  State  which 
makes  a  request  for  assistance,  information,  notification  or  recovery  concerning  a 
penalty or fine as referred to in Chapter V; 

EN 

28 

   EN 

 
(c) 

‘requested  authority’  means  the  competent  authority  of  a  Member  State  to  which  a 
request for assistance, information, notification or recovery is made. 

Article 3 
Preventing abuse and circumvention 

1. 

For  the  purpose  of  implementing,  applying  and  enforcing  Directive  96/71/EC  the 
competent  authorities  shall  take  into  account  factual  elements  characterising  the 
activities carried out by an undertaking in the State in which it is established in order 
to  determine  whether  it  genuinely  performs  substantial  activities,  other  than  purely 
internal management and/or administrative activities. Such elements may include: 

(a) 

the  place  where  the  undertaking  has  its  registered  office  and  administration, 
uses office space, pays taxes, has a professional licence or is registered with the 
chambers of commerce or professional bodies, 

(b) 

the place where posted workers are recruited, 

(c) 

(d) 

(e) 

the  law  applicable  to  the  contracts  concluded  by  the  undertaking  with  its 
workers, on the one hand, and with its clients, on the other hand, 

the place where the undertaking performs its substantial business activity and 
where it employs administrative staff, 

the abnormally limited number of contracts performed and/or size of turnover 
realised in the Member State of establishment.  

The  assessment  of  these  elements  shall  be  adapted  to  each  specific  case  and  take 
account of the nature of the activities carried out by the undertaking in the Member 
State in which it is established. 

2. 

In order to assess whether a posted worker temporarily carries out his or her work in 
a  Member  State  other  than  the  one  in  which  he  or  she  normally  works,  all  factual 
elements characterising such work and the situation of the worker shall be examined.

Such elements may include: 

(a) 

the work is carried out for a limited period of time in another Member State; 

(b) 

(c) 

the posting takes place to a Member State other than the one in or from which 
the  posted  worker  habitually  carries  out  his  or  her  work  according  to 
Regulation (EC) No 593/2008 and/or the Rome Convention; 

the  posted  worker  returns  or  is  expected  to  resume  working  to  the  Member 
State from which he/she is posted after completion of the work or the provision 
of services for which he or she was posted; 

(d) 

travel,  board  and  lodging/accommodation  is  provided  or  reimbursed  by  the 
employer who posts the worker, and if so, how this is done; as well as 

EN 

29 

   EN 

 
 
 
(e) 

any repeated previous periods during which the post was filled by the same or 
another (posted) worker. 

All  the  factual  elements  enumerated  above  are  indicative  factors  in  the  overall 
assessment to be made and may not therefore be considered in isolation. The criteria 
shall  be  adapted  to  each  specific  case  and  take  account  of  the  specificities  of  the 
situation.  

CHAPTER II 
ACCESS TO INFORMATION 

Article 4 
Role of liaison offices 

For  the  purposes  of  this  Directive,  Member  States  shall,  in  accordance  with  national 
legislation and/or practice, designate one or more competent authorities, which may include 
the liaison office(s) referred to in Article 4 of Directive 96/71/EC. 

Contact  details  of  the  competent  authorities  shall  be  communicated  to  the  Commission  and 
the other Member States. The Commission shall publish and regularly update the list of the 
competent authorities and liaison offices. 

Article 5 
Improved access to information 

1. 

Member States shall take the appropriate measures to ensure that the information on 
the  terms  and  conditions  of  employment  referred  to  in  Article  3  of  Directive 
96/71/EC which are to be applied and complied with by service providers are made 
generally available in a clear, comprehensive and easily accessible way at a distance 
and  by  electronic  means,  in  formats  and  by  web  standards  that  ensure  access  to 
persons with disabilities and to ensure that the liaison offices or the other competent 
national  bodies  referred  to  in  Article  4  of  Directive  96/71/EC  are  in  a  position  to 
carry out their tasks effectively. 

2. 

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

(a) 

(b) 

indicate  clearly,  in  a  detailed  and  user  friendly  manner  and  accessible  format 
on national websites which terms and conditions of employment and/or which 
parts  of  their  (national  and/or  regional)  legislation  have  to  be  applied  to 
workers posted to their territory; 

take  the  necessary  measures  to  make  generally  available  on  internet  sites 
information on which collective agreements are applicable (and to whom), and 
which  terms  and  conditions  of  employment  have  to  be  applied  by  service 
providers  from  other  Member  States  in  accordance  with  Directive  96/71/EC, 
whereby,  where  possible,  links  to  existing  internet  sites  and  other  contact 
points, in particular the relevant social partners, shall be provided; 

EN 

30 

   EN 

 
(c)  make the information available to workers and service providers in languages 
other  than  the  national  language(s)  of  the  country  in  which  the  services  are 
provided,  if  possible  in  summarised  leaflet  form  indicating  the  main  labour 
conditions applicable and upon requests in formats accessible to persons with 
disabilities; 

(d) 

(e) 

improve  the  accessibility  of  the  information  and  clarity  of  the  information 
provided on national websites; 

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

(f) 

keep the information provided for in the country fiches up to date. 

The Commission shall continue to support the Member States in this area.  

Where,  in  accordance  with  national  law,  traditions  and  practices,  the  terms  and 
conditions  of  employment  referred  to  in  Article  3  of  Directive  96/71/EC  are  laid 
down in collective agreements in accordance with article 3 paragraph 1 and 8 of that 
Directive,  Member  States  should  ensure  that  the  social  partners  shall  identify  these 
and  make  the  relevant  information,  in  particular  concerning  the  different  minimum 
rates  of  pay  and  their  constituent  elements,  the  method  used  to  calculate  the 
remuneration  due  and  the  qualifying  criteria  for  classification  in  the  different  wage 
categories, , available in an accessible and transparent way for service providers from 
other Member States and posted workers. 

CHAPTER III 
ADMINISTRATIVE COOPERATION 

Article 6 
Mutual assistance — general principles 

Member  States  shall  work  in  close  cooperation  and  provide  each  other  mutual 
assistance  in  order  to  facilitate  the  implementation,  application  and  enforcement  in 
practice of this Directive. 

The  cooperation  of  the  Member  States  shall  in  particular  consist  in  replying  to 
reasoned  requests  for  information  and  to  carry  out  checks,  inspections  and 
investigations  from  competent  authorities  with  respect  to  the  situations  of  posting 
referred  to  in  Article  1  (3)  of  Directive  96/71/EC,  including  investigation  of  any 
abuses  of  applicable  rules  on  the  posting  of  workers  or  possible  cases  of  unlawful 
transnational activities. 

For the purpose of responding to a request for assistance from competent authorities 
in  another  Member  State,  Member  States  shall  ensure  that  service  providers 
established  in  their  territory  supply  their  competent  authorities  with  all  the 
information  necessary  for  supervising  their  activities  in  compliance  with  their 
national laws. 

3. 

4. 

1. 

2. 

3. 

EN 

31 

   EN 

 
4. 

5. 

6. 

7. 

8. 

9. 

1. 

2. 

3. 

In  the  event  of  difficulty  in  meeting  a  request  for  information  or  in  carrying  out 
checks,  inspections  or  investigations,  the  Member  State  in  question  shall  rapidly 
inform the requesting Member State with a view to finding a solution. 

Member States shall supply the information requested by other Member States or the 
Commission by electronic means as soon as possible and at the latest within 2 weeks 
from the reception of a request. 

A specific urgency mechanism shall be used for special situations where a Member 
State  becomes  aware  of  particular  circumstances  requiring  urgent  action.  In  such 
circumstances, the information shall be submitted within 24 hours. 

Member  States  shall  ensure  that  registers  in  which  service  providers  have  been 
entered, and which may be consulted by the competent authorities in their territory, 
may  also  be  consulted,  in  accordance  with  the  same  conditions,  by  the  equivalent 
competent authorities of the other Member States. 

Member  States  shall  ensure  the  confidentiality  of  the  information  which  they 
exchange.  Information  exchanged  shall  be  used  only  in  respect  of  the  matter(s)  for 
which it was requested. 

Mutual administrative cooperation and assistance shall be provided free of charge. 

The  Commission  and  the  competent  authorities  shall  cooperate  closely  in  order  to 
examine  any  difficulties  which  might  arise  in  the  application  of  Article  3(10)  of 
Directive 96/71/EC. 

Article 7 
Role of the Member State of establishment 

The Member State of establishment of the service provider shall continue to control, 
monitor and take the necessary supervisory or enforcement measures, in accordance 
with its national law, practice and administrative procedures, with respect to workers 
posted to another Member State. 

In the circumstances referred to in Article 3 (1) and (2) and Article 9(1), the Member 
State of establishment of the service provider shall assist the Member State to which 
the  posting  takes  place  to  ensure  compliance  with  the  conditions  applicable  under 
Directive  96/71/EC  and  this  Directive.  The  Member  State  of  establishment  of  the 
service  provider  shall,  on  its  own  initiative,  communicate  to  the  Member  State  to 
which the posting takes place any relevant information as specified in Articles 3 (1) 
and (2) and 9(1), where the Member State of establishment of the service provider is 
aware of specific facts which indicate possible irregularities. 

Competent  authorities  of  the  host  Member  State  may  equally  ask  the  competent 
authorities  of  the  Member  State  of  establishment,  for  each  instance  where  services 
are provided or for each service provider, to provide information as to the legality of 
the  service  provider’s  establishment,  the  service  provider’s  good  conduct,  and  the 
absence of any infringement of the applicable rules. The competent authorities of the 
Member  State  of  establishment  shall  provide  this  information  in  accordance  with 
Article 6. 

EN 

32 

   EN 

 
4. 

1. 

2. 

The obligation laid down in paragraphs 1 and 2 shall not entail a duty on the part of 
the  Member  State  of  establishment  to  carry  out  factual  checks  and  controls  in  the 
territory  of  the  host  Member  State  where  the  service  is  provided.  Such  checks  and 
controls shall, if need be, be carried out by the authorities of the host Member State 
at the request of the competent authorities of the Member State of establishment, in 
accordance  with  Article  10  and  in  conformity  with  the  powers  of  supervision 
provided  for  in  the  host  Member  State’s  national  law,  practice  and  administrative 
procedures and which respect Union law. 

Article 8 
Accompanying measures 

Member  States  shall,  with  the  assistance  of  the  Commission,  take  accompanying 
measures to develop, facilitate and promote the exchange between officials in charge 
of the implementation of administrative cooperation and mutual assistance as well as 
monitoring the compliance with and enforcement of the applicable rules. 

The  Commission  shall  assess  the  necessity  for  financial  support  in  order  to  further 
improve  administrative  cooperation  and  increase  mutual  trust  through  projects, 
including  promoting  exchanges  of  relevant  officials  and  training,  as  well  as 
developing,  facilitating  and  promoting  best  practice  initiatives,  including  those  of 
social partners at Union level, such as the development and updating of databases or 
joint websites containing general or sector-specific information concerning terms and 
conditions of employment to be respected. 

CHAPTER IV 
MONITORING COMPLIANCE 

Article 9 
National control measures 

1. 

Member  States  may  only  impose  the  following  administrative  requirements  and 
control measures: 

(a) 

(b) 

an  obligation  for  a  service  provider  established  in  another  Member  State  to 
make a simple declaration to the responsible national competent authorities at 
the  latest  at  the  commencement  of  the  service  provision,  whereby  the 
declaration may only cover the identity of the service provider, the presence of 
one or more clearly identifiable posted workers, their anticipated number, the 
anticipated duration and location of their presence, and the services justifying 
the posting; 

an  obligation  to  keep  or  make  available  and/or  retain  copies  in  paper  or 
electronic form of the employment contract (or an equivalent document within 
the meaning of Directive 91/533, including, where appropriate or relevant, the 
additional information referred to in Article 4 of that Directive), payslips, time-
sheets  and  proof  of  payment  of  wages  or  copies  of  equivalent  documents 
during the period of posting in an accessible and clearly identified place in its 

EN 

33 

   EN 

 
territory, such as the workplace or the building site, or for mobile workers in 
the transport sector the operations base or the vehicle with which the service is 
provided;  

a translation of the documents referred to under (b), may be justified provided 
these documents are not excessively long and standardised forms are generally 
used for such documents; 

an obligation to designate a contact person to negotiate, if necessary, on behalf 
of the employer with the relevant social partners in the Member State to which 
the  posting  takes  place,  in  accordance  with  national  legislation  and  practice, 
during the period in which the services are provided. 

(c) 

(d) 

Member States shall ensure that the procedures and formalities relating to the posting 
of workers can be completed easily by undertakings, at a distance and by electronic 
means as far as possible. 

Within  three  years  after  the  date  referred  to  in  Article  20,  the  necessity  and 
appropriateness of the application of national control measures shall be reviewed in 
the light of the experiences with and effectiveness of the system for cooperation and 
exchange of information, the development of more uniform, standardised documents, 
the  establishment  of  common  principles  or  standards  for  inspections  in  the  field  of 
the  posting  of  workers  as  well  as  technological  developments,  with  a  view  to 
proposing, where appropriate, any necessary amendments or modifications. 

Article 10 
Inspections 

Member States shall ensure that appropriate checks and monitoring mechanisms are 
put  in  place  and  that  effective  and  adequate  inspections  are  carried  out  on  their 
territory  in  order  to  control  and  monitor  compliance  with  the  provisions  and  rules 
laid  down  in  Directive  96/71/EC  and  to  guarantee  its  proper  application  and 
enforcement.  Such  inspections  shall  be  based  primarily  on  a  risk  assessment  to  be 
drawn up regularly by the competent authorities. The risk assessment shall identify 
the sectors of activity in which the employment of workers posted for the provision 
of services is concentrated on their territory. When making such risk assessment the 
realisation of big infrastructural projects, the special problems and needs of specific 
sectors, the past record of infringement, as well as the vulnerability of certain groups 
of workers shall be taken into account. 

Member  States  shall  ensure  that  inspections  and  controls  of  compliance  with 
Directive 96/71/EC are not discriminatory and/or disproportionate. 

If information is needed in the course of the inspections and in the light of the criteria 
in Article 3, the Member State where the service is provided and the Member State 
of establishment shall act in accordance with the rules on administrative cooperation, 
i.e. the competent authorities shall cooperate pursuant to the rules and principles laid 
down in Articles 6 and 7. 

In Member States where, in accordance with national law and practice, the setting of 
the terms and conditions of employment of posted workers referred to in Article 3 of 

2. 

3. 

1. 

2. 

3. 

4. 

EN 

34 

   EN 

 
Directive 96/71/EC, and in particular the minimum rates of pay, including working 
time, is left to management and labour they may, at the appropriate level and subject 
to the conditions laid down by the Member States, also the monitor the application of 
the relevant terms and conditions of employment of posted workers, provided that an 
adequate level of protection equivalent to that resulting from Directive 96/71/EC and 
this Directive is guaranteed. 

Member  States  where  labour  inspectorates  have  no  competence  with  respect  to  the 
control  and  monitoring  of  the  working  conditions  and/or  terms  and  conditions  of 
employment of posted workers may, by way of exception, after consulting the social 
partners  at  national  level,  establish  or  maintain  arrangements  guaranteeing  the 
respect of these terms and conditions of employment, provided that the arrangements 
offer  the  persons  concerned  an  adequate  degree  of  protection  equivalent  to  that 
resulting from Directive 96/71/EC and this Directive. 

CHAPTER V 
ENFORCEMENT 

Article 11 
Defence of rights — facilitation of complaints — back-payments 

For the enforcement of the obligations under Article 6 of Directive 96/71/EC and this 
Directive, Member States shall ensure that there are effective mechanisms for posted 
workers to lodge complaints against their employers directly, as well as the right to 
institute  judicial  or  administrative  proceedings,  also  in  the  Member  State  in  whose 
territory  the  workers  are  or  were  posted,  where  such  workers  consider  they  have 
sustained  loss  or  damage as a result of a  failure to apply the applicable rules, even 
after the relationship in which the failure is alleged to have occurred has ended.  

Paragraph  1  shall  apply  without  prejudice  to  the  jurisdiction  of  the  courts  in  the 
Member States as laid down, in particular, in the relevant instruments of Union law 
and/or international conventions. 

Member  States  shall  ensure  that  trade  unions  and  other  third  parties,  such  as 
associations,  organisations  and  other  legal  entities  which  have,  in  accordance  with 
the criteria laid down by their national law, a legitimate interest in ensuring that the 
provisions of this Directive are complied with, may engage, on behalf or in support 
of  the  posted  workers  or  their  employer,  with  their  approval  in  any  judicial  or 
administrative  proceedings  provided  for  with  the  objective  of  implementing  this 
Directive and/or enforcing the obligations under this Directive. 

Paragraphs  1  and  3  shall  apply  without  prejudice  to  national  rules  on  prescription 
deadlines  or  time  limits  for  bringing  similar  actions  and  to  national  rules  of 
procedure concerning representation and defence before the courts. 

Member States shall ensure that the necessary mechanisms are in place to ensure that 
posted workers are able to receive 

5. 

1. 

2. 

3. 

4. 

5. 

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35 

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(a) 

(b) 

any outstanding remuneration which, under the applicable terms and conditions 
of employment covered by Article 3 of Directive 96/71/EC, would have been 
due; 

refund of excessive costs, in relation to net remuneration or to the quality of the 
accommodation,  withheld  or  deducted  from  wages  for  accommodation 
provided by the employer. 

This  paragraph  shall  also  apply  in  cases  where  the  posted  workers  have  returned 
from the Member State to which the posting took place. 

Article 12 
Subcontracting — Joint and several liability  

With  respect  to  the  construction  activities  referred  to  in  the  Annex  to  Directive 
96/71/EC,  for  all  posting  situations  covered  by  Article  1(3)  of  Directive  96/71/EC, 
the  Member  States  shall  ensure  on  a  non–discriminatory  basis  with  regard  to  the 
protection of the equivalent rights of employees of direct subcontractors established 
in  its  territory,  that  the  contractor  of  which  the  employer  (service  provider  or 
temporary  employment  undertaking  or  placement  agency)  is  a  direct  subcontractor 
can, in addition to or in place of the employer, be held liable by the posted worker 
and/or  common  funds  or  institutions  of  social  partners  for  non-payment  of  the 
following: 

(a) 

any outstanding net remuneration corresponding to the minimum rates of pay 
and/or contributions due to common funds or institutions of social partners in 
so far as covered by Article 3 (1) of Directive 96/71/EC; 

(b) 

any  back-payments  or  refund  of  taxes  or  social  security  contributions  unduly 
with held from his/her salary. 

The  liability  referred  to  in  the  present  paragraph  shall  be  limited  to  worker's  rights 
acquired  under  the  contractual  relationship  between  the  contractor  and  his 
subcontractor. 

Member States shall provide that a contractor who has undertaken due diligence shall 
not  be  liable  in  accordance  with  paragraph  1.  Such  systems  shall  be  applied  in  a 
transparent, non discriminatory and proportionate  way.  They  may  imply  preventive 
measures taken by the contractor concerning proof provided by the subcontractor of 
the main working conditions applied to the posted workers as referred to in Article 3 
(1) of Directive 96/71/EC, including pay slips and payment of wages, the respect of 
social security and/or taxation obligations in the Member State of establishment and 
compliance with the applicable rules on posting of workers. 

Member  States  may,  in  conformity  with  Union  law,  provide  for  more  stringent 
liability rules under national law on a non-discriminatory and proportionate basis in 
regard to the scope and range of subcontractor liability. Member States may also, in 
conformity  with  Union  law,  provide  for  such  liability  in  sectors  other  than  those 
contained  in  the  Annex  to  Directive  96/71/EC.  Member  States  may  in  these  cases 
provide that a contractor that has undertaken due diligence as defined by national law 
shall not be liable. 

1. 

2. 

3. 

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36 

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4. 

Within three years after the date referred to in Article 20, the Commission shall, in 
consultation  with  the  Member  States  and  social  partners  at  EU  level,  review  the 
application  of  this  Article  with  a  view  to  proposing,  where  appropriate,  any 
necessary amendments or modifications. 

CHAPTER VI 
CROSS-BORDER ENFORCEMENT OF ADMINISTRATIVE 
FINES AND PENALTIES 

1. 

2. 

Article 13 
General principles — mutual assistance and recognition 

Without  prejudice  to  the  means  which  are  or  may  be  provided  for  in  Union 
legislation,  the  principles  of  mutual  assistance  and  recognition  as  well  as  the 
measures and procedures provided for in this Article shall apply to the cross-border 
enforcement of administrative fines and penalties imposed for failure to comply with 
the applicable rules in a Member State on a service provider established in another 
Member State. 

The  requesting  authority  may,  in  accordance  with  the  laws,  regulations  and 
administrative  practices  in  force  in  its  own  Member  State,  request  the  competent 
authority  in  another  Member  State  to  recover  a  penalty  or  fine  or  notify  a  decision 
imposing  a  penalty  or  a  fine,  in  so  far  as  the  relevant  laws,  regulations  and 
administrative  practices  in  force  in  the  requested  authority’s  Member  State  allow 
such action for similar claims or decisions. 

The competent authority in the requesting Member State shall ensure that the request 
for recovery of a penalty or a fine or notification of a decision imposing a penalty or 
fine is made in accordance with the rules in force in that Member State, whereas the 
competent  requested  authority  shall  ensure  that  such  recovery  or  notification  in  the 
requested Member State is effected in accordance with the national laws, regulations 
and administrative practices in force in the latter. 

The requesting authority may not make a request for recovery of a penalty or a fine 
or notification of a decision imposing a penalty or fine if and as long as the fine or 
penalty,  as  well  the  underlying  claim  and/or  the  instrument  permitting  its 
enforcement in the requesting Member State, are contested in that Member State. 

Article 14 
Request for recovery, information or notification 

1. 

Further to the request by the requesting authority for recovery of a penalty or a fine 
or notification of a decision imposing a penalty or fine, the requested authority shall 
provide  any  information  and  mutual  assistance  which  would  be  useful  to  the 
requesting authority in the recovery of a fine and/or penalty, as well as, to the extent 
possible, for the underlying claim. 

EN 

37 

   EN 

 
The request for information concerning the recovery of penalty or fine as well as the 
notification of a decision concerning such matters shall at least indicate: 

(a) 

(b) 

(c) 

(d) 

(e) 

the  name  and  known  address  of  the  addressee,  as  well  as  any  other  relevant 
data or information for the identification of the addressee, 

the purpose of the notification or request for recovery, the period within which 
it shall be effected and any dates of relevance to the enforcement process; 

a  description  of  the  nature  and  amount  of  the  fine  or  penalty,  as  well  as  the 
underlying  claim  in  respect  of  which  the  request  is  made,  and  its  different 
components; 

all  other  relevant  information  or  documents,  including  those  of  a  judicial 
nature, concerning the claim, fine or penalty; and 

the name, address and other contact details regarding the competent authority 
responsible for the assessment of the fine and/or penalty, and, if different, the 
competent  body  where  further  information  can  be  obtained  concerning  the 
penalty  or  fine  or  the  possibilities  for  contesting  the  payment  obligation  or 
decision imposing it. 

For the purpose of recovery of a penalty or fine or notification of a decision imposing 
a  penalty  or  fine  in  the  requested  Member  State,  any  fine  or  penalty  in  respect  of 
which  a  request  for  recovery  or  notification  has  been  made  shall  be  treated  as  if  it 
were a fine or penalty of the requested Member State. 

The requested authority shall promptly inform the requesting authority of the action 
taken on its request for notification or recovery and, more specifically, of the date on 
which the instrument or decision was forwarded or notified to the addressee. 

The requested authority shall likewise inform the requesting authority of the grounds 
for refusing a request for information, recovery or notification. 

Article 15 
Suspension of the procedure 

If,  in  the  course  of  the  recovery  or  notification  procedure,  the  fine,  penalty  and/or 
underlying  claim  is  contested  by  the  service  provider  concerned  or  an  interested 
party, the cross-border enforcement procedure of the fine or penalty imposed shall be 
suspended pending the decision of the appropriate national authority in the matter. 

The  requesting  authority  shall  without  delay  notify  the  requested  authority  of  the 
contestation. 

Disputes concerning the enforcement measures taken in the requested Member State 
or  concerning  the  validity  of  a  notification  made  by  a  competent  authority  of  the 
requested  Member  State  shall  be  brought  before  the  competent  body  or  judicial 
authority of that Member State in accordance with its laws and regulations. 

2. 

3. 

1. 

2. 

EN 

38 

   EN 

 
Article 16 
Costs 

1. 

The requested authority shall remit to the requesting authority the amounts recovered 
with respect to the fines or penalties referred to in this Chapter. 

2. 

3. 

The  requested  authority  may  recover  amounts  from  the  natural  or  legal  person 
concerned  and  retain  any  costs  which  it  incurs  in  connection  with  recovery,  in 
accordance with the laws, regulations and administrative procedures or practices of 
the requested Member State which apply to similar claims. 

Member  States  shall  not  claim  from  each  other  the  reimbursement  of  costs  arising 
from  any  mutual  assistance  they  grant  each  other  pursuant  to  this  Directive  or 
resulting from its application. 

Where  recovery  creates  a  specific  problem  or  concerns  a  very  large  amount,  the 
requesting and requested authorities may agree reimbursement arrangements specific 
to the case(s) in question. 

Notwithstanding the paragraph 2, the competent authority in the requesting Member 
State shall remain liable to the requested Member State for any costs and any losses 
incurred as a result of actions held to be unfounded, in terms of the substance of the 
fine or penalty, the validity of the instrument issued by the requesting authority for 
the  purpose  of  enforcement  and/or  any  precautionary  measures  taken  by  the 
requesting authority. 

CHAPTER VII 
FINAL PROVISIONS 

Article 17 
Penalties 

Member States shall lay down rules on penalties applicable in the event of infringements of 
national  provisions  adopted  pursuant  to  this  Directive  and  shall  take  all  the  necessary 
measures to ensure that they are implemented and complied with. The penalties provided for 
shall be effective, proportionate and dissuasive. Member States shall notify these provisions 
to the Commission by [….. date of transposition] at the latest. They shall notify without delay 
any subsequent amendments to them. 

Article 18 
Internal Market Information System 

1. 

The  administrative  cooperation  and  mutual  assistance  between  the  competent 
authorities of the Member States provided for in Articles 6, 7, 10(3), 13, 14 and 15 

EN 

39 

   EN 

 
2. 

3. 

shall  be  implemented  through  the  Internal  Market  Information  System  (IMI), 
established by [reference to IMI Regulation]89. 

Member  States  may  continue 
to  apply  bilateral  arrangements  concerning 
administrative  cooperation  between  their  competent  authorities  as  regards  the 
application and monitoring of the terms and conditions of employment applicable to 
posted  workers  referred  to  in  Article  3  of  Directive  96/71/EC,  in  so  far  as  these 
arrangements  do  not  adversely  affect  the  rights  and  obligations  of  the  workers  and 
companies concerned. 

In  the  context  of  bilateral  agreements  referred  to  in  paragraph  2,  competent 
authorities  of  the  Member  States  shall  use  IMI  as  much  as  possible.  In  any  event, 
where a competent authority in one of the Member States concerned has used IMI, it 
shall  be  used  for  any  follow-up  required  and  shall  take  precedence  over  the 
mechanism(s)  foreseen  in  such  a  bilateral  agreement  with  respect  to  administrative 
cooperation and mutual assistance.  

Article 19 
Amendment to [IMI Regulation] 

The following point shall be added to Annex I to [IMI Regulation]: 

1. 

2. 

1. 

89 

90 
91 

Directive  96/71/EC  of  the  European  Parliament  and  of  the  Council  concerning  the 
posting of workers in the framework of the provision of services90: Article 4;  

Directive  xxxx/xx/EC  of  the  European  Parliament  and  of  the  Council  on  the 
enforcement  of  Directive  96/71/EC  concerning  the  posting  of  workers  in  the 
framework of the provision of services91: Articles 6, 7, 10(3), 13, 14 and 15. 

Article 20 
Transposition 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions necessary to comply with this Directive within 2 years after its entry into 
force.  They  shall  forthwith  communicate  to  the  Commission  the  text  of  those 
provisions and a correlation table between those provisions and this Directive. 

When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this 
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official 
publication. Member States shall determine how such reference is to be made. 

IMI  is  a  secure  online  application  that  allows  national,  regional  and  local  authorities  to  communicate 
quickly  and  easily  with  their  counterparts  abroad.  It  was  funded  under  the  IDABC  programme 
(Interoperable  Delivery  of  European  eGovernment  Services  to  public  administrations,  businesses  and 
citizens).  See  Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  on 
administrative  cooperation  through  the  Internal  Market  Information  System  ('the  'IMI'  Regulation), 
COM (2011) 522 final, 29.8.2011 
OJ L18, 21.1.1997. 
OJ reference 

EN 

40 

   EN 

 
                                                 
2. 

Member States shall communicate to the Commission the text of the main provisions 
of national law which they adopt in the field covered by this Directive. 

Article 21 
Report 

No later than 5 years after the expiry of the deadline for transposition, the Commission shall 
report  to  the  European  Parliament,  the  Council  and  the  European  Economic  and  Social 
Committee  on  the  implementation  of  this  Directive,  making  appropriate  proposals  where 
necessary. 

Article 22Entry into force 

This Directive shall enter into force on the day following that of its publication in the Official 
Journal of the European Union. 

Article 23 
Addressees 

This Directive is addressed to the Member States. 

Done at Brussels, 21.3.2012 

For the European Parliament 
The President 

For the Council 
The President 

EN 

41 

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LEGISLATIVE FINANCIAL STATEMENT 

1. 

FRAMEWORK OF THE PROPOSAL/INITIATIVE  

1.1.  Title of the proposal/initiative  

1.2.  Policy area(s) concerned in the ABM/ABB structure 

1.3.  Nature of the proposal/initiative  

1.4.  Objective(s)  

1.5.  Grounds for the proposal/initiative  

1.6.  Duration and financial impact  

1.7.  Management method(s) envisaged  

2. 

MANAGEMENT MEASURES  

2.1.  Monitoring and reporting rules  

2.2.  Management and control system  

2.3.  Measures to prevent fraud and irregularities  

3. 

ESTIMATED FINANCIAL IMPACT OF THE PROPOSAL/INITIATIVE  

3.1.  Heading(s)  of  the  multiannual  financial  framework  and  expenditure  budget  line(s) 
affected  

3.2.  Estimated impact on expenditure  

3.2.1. Summary of estimated impact on expenditure  

3.2.2. Estimated impact on operational appropriations  

3.2.3. Estimated impact on appropriations of an administrative nature 

3.2.4. Compatibility with the current multiannual financial framework 

3.2.5. Third-party participation in financing  

3.3.  Estimated impact on revenue

EN 

42 

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LEGISLATIVE FINANCIAL STATEMENT 

1. 

FRAMEWORK OF THE PROPOSAL/INITIATIVE  

1.1. 

Title of the proposal/initiative  

Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 
on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework 
of the provision of services 

1.2. 

Policy area(s) concerned in the ABM/ABB structure92  

Employment, social solidarity 

Single Market Policy  

Internal Market for services 

1.3. 

Nature of the proposal/initiative  

(cid:133) The proposal/initiative relates to a new action  

(cid:133) The proposal/initiative relates to a new action following a pilot project/preparatory action93  

⌧ The proposal/initiative relates to the extension of an existing action  

(cid:133) The proposal/initiative relates to an action redirected towards a new action  

1.4. 

Objectives 

1.4.1.  The Commission's multiannual strategic objective(s) targeted by the proposal/initiative  

Contributing to the European 2020 targets: 
- Promote increased participation in the labour market 
- Develop a safe, flexible and mobile European labour market 
- Promote social and economic cohesion 
Create an effective regulatory framework for the internal market for services, on the basis of 
sound evidence, in order to benefit consumers and business 

1.4.2. 

Specific objective(s) and ABM/ABB activity(ies) concerned  

Specific objective No.1 (EMPL): 

92 
93 

ABM: Activity-Based Management – ABB: Activity-Based Budgeting. 
As referred to in Article 49(6)(a) or (b) of the Financial Regulation. 

EN 

43 

   EN 

 
                                                 
Bring about effective application of EU law on matters related to health and safety, labour law 
in all Member States 

Specific objective No.3 (EMPL): 

Reinforce  effective  partnerships  with  national  and  pan-European  stakeholders  in  support  of 
outcomes related to employment and social solidarity policy areas policy areas 

Specific objective No.1 (MARKT): 

Deliver on the Single Market Act and promote the development of social business 

Specific objective No.12 (MARKT): 

Develop  the  full  potential  of  the  Internal  Market  Information  system  (IMI)  to  support 
improved implementation of single market legislation 

ABM/ABB activity(ies) concerned 

Employment, social solidarity (EMPL) 

Single Market Policy (MARKT) 

Internal Market for services (MARKT) 

1.4.3.  Expected result(s) and impact 

Specify the effects which the proposal/initiative should have on the beneficiaries/groups targeted. 

Improving information regarding the applicable working conditions for posted workers 
Enabling posted workers to better defend their rights, including in subcontracting chains 
Clarifying the role of social partners in enforcement activities 
Improving monitoring and enforcement of working conditions 

1. Better protecting the rights of posted workers 
– 
– 
– 
– 
2. Facilitating cross-border provision of services and improving climate of fair competition 
– 
– 
working conditions for posted workers 
– 
measures 
– 

Providing for a more precise definition of posting 
Improving information regarding the obligations of undertakings in respect of applicable 

Providing  for  clarity  regarding  administrative  requirements  and  national  control 

Improving administrative cooperation between the responsible national authorities 

1.4.4. 

Indicators of results and impact  

Specify the indicators for monitoring implementation of the proposal/initiative. 

Once  the  substance  of  future  action  is  clarified,  the  Commission  together  with  the  Expert 
Committee on the Posting of Workers (ECPW) will develop a limited set of indicators which 
cover  relevant  aspects  of  the  operation  of  the  Directive.  The  initial  proposal  for  a  list  of 

EN 

44 

   EN 

 
indicators to be tracked is the following (after each indicator the source of the information is 
provided):  (i)  the  number  of  searches  of  national  posting  websites  (provided  by  Member 
States); (ii) the number of inter-country cooperation projects on posting promoted by national 
authorities or social partners (Member States); (iii) the number of requests made through the 
special IMI application for posting (Commission); (iv) number of litigation cases in national 
courts  (Member  States);  (v)  percentage  of  inspections  leading  to  sanctions  (Member  States). 
The Commission will also continue to collect administrative data on posting based on social 
security data. With regard to frequency of use, these indicators will be regularly presented and 
discussed  in  the  ECPW,  and  will  also  form  part  of  the  set  of  indicators  to  be  used  in  the 
evaluation mentioned below. 

1.5. 

Grounds for the proposal/initiative  

1.5.1.  Requirement(s) to be met in the short or long term  

The  proposal  will  aim  at  improving  and  reinforcing  the  implementation,  application  and 
enforcement  in  practice  of  the  Posting  of  Workers  Directive,  including  measures  to  prevent 
and sanction any abuse and circumvention of the applicable rules. 

It will address deficiencies with respect to information for employers and posted workers, in 
control, monitoring and enforcement action and with regard to administrative cooperation. It 
will  address  unnecessary  administrative  requirements  and  control  measures  imposed  on 
service  providers,  the  protection  of  posted  workers  in  disputes  concerning  their  individual 
employment conditions, situation in which posting is no longer of a temporary nature or has a 
rotational character or in which the employer has no genuine link with the sending Member 
State. 

In  order  to  do  so,  the  initiative  will  introduce  more  precise  provisions  regarding  the 
implementation,  monitoring  and  enforcement  of  the  Directive,  including  the  protection  of 
posted  worker's  rights  as  well  as  further  criteria  to  clarify  the  constituent  elements  of  the 
notion of posting by so as to better fight circumvention and abuses of the rules. 

1.5.2.  Added value of EU involvement 

The problems identified are linked to the objectives set out by Article 3(3) TEU and Articles 
56 and 151 TFEU. Lack of clarity of the existing legal framework on EU level is at the origin 
of  the  problems  identified.  The  existing  Directive  leaving  Member  States  wide  margin  with 
regard to implementation, application and enforcement in practice as well as previous attempts 
to address existing problems by the way of non-binding measures have not been sufficient to 
solve the identified problems. Therefore, it is necessary to address the existing problems at EU 
level in order to better achieve the objectives of the Treaty. 

1.5.3.  Lessons learned from similar experiences in the past 

Previous  attempts  to  solve  problems  of  implementation  and  enforcement  in  practice  of  the 
Posting of Workers Directive by non-legislative means have not reached their objectives. The 
issues  have  been  addressed  by  interpretative  guidelines  in  2006.  A  monitoring  exercise  in 

EN 

45 

   EN 

 
2007  showed  that  there  were  a  number  of  deficiencies.  The  respective  Communication 
provided  further  clarifications  for  Member  States.  In  2008,  the  Commission  adopted  a 
Recommendation94 calling on Member States to take urgent action to improve the situation of 
posted  workers  through  better  cooperation  between  national  administrations,  for  more 
effective  exchange  of  information  between  Member  States  and  better  access  to  information 
and exchange of best practice. 

Since  2009,  the  Commission  launched  several  ex-post  evaluation  studies:  Study  on  the 
economic  and  social  effects  associated  with  the  phenomenon  of  posting  of  workers  in  the 
European Union; Study on the legal aspects of the posting of workers in the framework of the 
provision  of  services  in  the  European  Union  (covering  12  Member  States);  Complementary 
study  on  the  legal  aspects  of  the  posting  of  workers  in  the  framework  of  the  provision  of 
services  in  the  European  Union  (covering  15  Member  States);  Study  on  the  protection  of 
workers' rights in subcontracting processes in the European Union (ongoing). 

In order to prepare the Impact Assessment an ex-ante evaluation study has been carried out by 
an  external  consultant  in  2011:  Preparatory  study  for  an  Impact  Assessment  concerning  the 
possible revision of the legislative framework on the posting of workers in the context of the 
provision of services 

These recent studies confirmed that a number of the problems identified still exist. 

1.5.4.  Coherence and possible synergy with other relevant instruments 

Fundamental  rights:  The  proposal  is  consistent  with  the  EU's  fundamental  rights  strategy, 
COM(2010) 573 final. 

Europe 2020 strategy: The initiative will contribute to the creation of employment within the 
strategy for smart, sustainable and socially inclusive growth (Europe 2020). 

Single Market Act: This initiative is one of the twelve levers identified by the Commission in 
order  to  boost  growth  and  reinforce  citizens'  confidence  in  the  Single  Market.  The  proposal 
will in particular facilitate the cross-border provision of services and improve the climate of 
fair  competition.  This  initiative  allows  for  untapping  the  potential  of  growth  of  posting  of 
workers  as  a  key  element  of  the  provision  of  services  in  the  Internal  market.  In  addition,  it 
may  contribute  to  mitigate  the  social  and  political  tensions  raised  by  controversies  around 
several Court rulings and their perceived effects on industrial relations systems. 

Small Business Act: To the extent that most undertakings posting workers are SMEs, and that 
the  present  initiative  envisages  facilitating  the  provision  of  services  by  harmonising  the 
implementation  and  enforcement  of  the  Directive,  thereby  creating  favourable  opportunities 
for business across borders, it is in line with the Small Business Act. 

94 

Commission  Recommendation  of  3  April  2008  on  enhanced  administrative  cooperation  in  the  context  of  the 
posting of workers in the framework of the provision of services, OJ C 85, 4.4.2008, p. 1–4. 

EN 

46 

   EN 

 
                                                 
Smart Regulation: The initiative is also in line with the Smart Regulation agenda, designed to 
achieve regulation which is of the highest quality possible, in full respect of the principles of 
subsidiarity and proportionality. The present proposal is based on a full evaluation of existing 
legislation  and  policies,  covering  legal,  economic  and  social  aspects.  They  aim  at  making 
legislation clearer and more accessible and drive Member States and social partners' efforts to 
ensure  more  effective  and  coherent  enforcement  of  legislation.  It  takes  into  account  the 
outcome of consultation with stakeholders, especially the European social partners. 

Internal  Market  Information  System  (IMI):  The  initiative  proposes  to  use  IMI  in  the  area  of 
posting of workers to improve administrative cooperation between Member States. It is in line 
with the Commission's strategy for expansion and further development of IMI, COM(2011) 75 
final.  It  is  linked  to  the  Commission's  proposal  for  a  horizontal  Regulation  on  IMI, 
COM(2011) 522 final. 

EU  Programme  for  Social  Change  and  Innovation  (follow-up  PROGRESS):  Accompanying 
measures, in particular projects of non-governmental organisations and social partners, will be 
financed  via  call  for  proposals  under  the  new  EU  Programme  for  Social  Change  and 
Innovation, COM(2011) 609 final, in order to support the implementation and application in 
practice of the initiative. (2 million Euro per year). 

1.6. 

Duration and financial impact  

⌧ Proposal/initiative of limited duration  

•  (cid:133) Proposal/initiative in effect from [DD/MM]YYYY to [DD/MM]YYYY  

•  ⌧ Financial impact from 2013 to 2020 

The  implementation  of  the  directive  is  of  unlimited  duration  and  it  is  expected  that  the 
successor  programme(s)  of  Social  Change  and  Innovation  Programme  will  keep  bearing  the 
related costs after 2020. 

(cid:133) Proposal/initiative of unlimited duration 

•  Implementation with a start-up period from 2013 to 2014, 

•  followed by full-scale operation 

1.7.  Management mode(s) envisaged95  

⌧ Centralised direct management by the Commission  

(cid:133) Centralised indirect management with the delegation of implementation tasks to: 

95 

Details  of  management  modes  and  references  to  the  Financial  Regulation  may  be  found  on  the  BudgWeb  site: 
http://www.cc.cec/budg/man/budgmanag/budgmanag_en.html 

EN 

47 

   EN 

 
                                                 
•  (cid:133)  executive agencies  

•  (cid:133)  bodies set up by the Communities96  

•  (cid:133)  national public-sector bodies/bodies with public-service mission  

•  (cid:133) persons entrusted with the implementation of specific actions pursuant to Title V of the 
Treaty  on  European  Union  and  identified  in  the  relevant  basic  act  within  the  meaning  of 
Article 49 of the Financial Regulation  

(cid:133) Shared management with the Member States  

(cid:133) Decentralised management with third countries  

(cid:133) Joint management with international organisations (to be specified) 

If more than one management mode is indicated, please provide details in the "Comments" section. 

Comments  

2. 

MANAGEMENT MEASURES  

2.1.  Monitoring and reporting rules  

Specify frequency and conditions. 

Five years after the deadline for transposition there will be a on-going evaluation. The main 
focus of this evaluation will be to assess the initial effectiveness of the Directive as modified. 
Emphasis will be placed on analysis of enhanced cooperation arrangements between Member 
State  and  quality  of  information  generated  by  these  arrangements.  This  evaluation  will  be 
carried out by the Commission with the assistance of external experts. Terms of reference will 
be  developed  by  Commission  services.  Stakeholders  will  be  informed  of  and  asked  to 
comment on the terms of reference through the Expert Committee on the Posting of Workers 
(ECPW),  and  they  will  also  be  regularly  informed  of  the  progress  of  the  evaluation  and  its 
findings. The findings will be made public. 

2.2.  Management and control system  

2.2.1.  Risk(s) identified  

Regarding  accompanying  measures  under  the  EU  Programme  for  Social  Change  and 
Innovation: Under this programme, centralised direct management will involve the attribution 
of numerous contracts and grants for specific activities and the payment of numerous grants to 
governmental  and  non-governmental  organisations.  The  main  risk  will  be  relating  to  the 

96 

As referred to in Article 185 of the Financial Regulation. 

EN 

48 

   EN 

 
                                                 
capacity of (especially) smaller organisations to effectively control expenditure as well as to 
ensure the transparency of operations carried out. 

2.2.2.  Control method(s) envisaged  

Regarding  accompanying  measures  under  the  EU  Programme  for  Social  Change  and 
Innovation: The control measures indicated in COM(2011) 609 final will be used. 

2.3.  Measures to prevent fraud and irregularities  

Specify existing or envisaged prevention and protection measures. 

Regarding  accompanying  measures  under  the  EU  Programme  for  Social  Change  and 
Innovation:  Measures  to  prevent  fraud  and  irregularities  indicated  in  COM(2011)  609  final 
will be used.  

EN 

49 

   EN 

 
3. 

ESTIMATED FINANCIAL IMPACT OF THE PROPOSAL/INITIATIVE  

3.1. 

Heading(s)  of  the  multiannual  financial  framework  and  expenditure  budget  line(s) 
affected  

• 

Existing expenditure budget lines  

Heading of 
multiannual 
financial 
framework 

1 

1 

In order of multiannual financial framework headings and budget lines. 

Budget line 

Type of  
expenditure

Contribution  

Number  
[Description………………………...……….] 

Diff./non-
diff. 
(97) 

from 
EFTA98 
countries 

from 
candidate 
countries99 

from third 
countries 

within the meaning 
of Article 18(1)(aa) 
of the Financial 
Regulation  

04.04.01.03  (may  change  with  new 
programme)100 

(replaced 

PROGRESS 
the 
Programme  for  Social  Change  and 
Innovation in 2014) 

by 

04.01.04.10  (may  change  with  new 
programme)101 

(replaced 

PROGRESS 
the 
Programme  for  Social  Change  and 
Innovation in 2014) 

by 

Diff 

YES 

Yes 

No 

NO 

non-diff  YES 

No 

No 

NO 

• 

New budget lines requested  

Heading of 
multiannual 
financial 
framework 

In order of multiannual financial framework headings and budget lines. 

Budget line 

Type of 
expenditure

Contribution  

Number  
[Heading……………………………………..] 

Diff./non-
diff. 

[XX.YY.YY.YY] 

from 
EFTA 
countries 

from 
candidate 
countries 

from third 
countries 

within the meaning 
of Article 18(1)(aa) 
of the Financial 
Regulation  

YES/N YES/N YES/N

YES/NO 

97 
98 
99 
100 

101 

Diff. = Differentiated appropriations / Non-diff. = Non-Differentiated Appropriations 
EFTA: European Free Trade Association.  
Candidate countries and, where applicable, potential candidate countries from the Western Balkans. 
The financial impact indicated under this budget line is covered by PROGRESS (2013) and the EU Programme for 
Social Change and Innovation (2014-2020, follow-up PROGRESS), COM(2011) 609 final. 
The financial impact indicated under this budget line is covered by PROGRESS (2013) and the EU Programme for 
Social Change and Innovation (2014-2020, follow-up PROGRESS), COM(2011) 609 final. 

EN 

50 

   EN 

 
 
 
                                                 
O 

O 

O 

EN 

51 

   EN 

 
 
3.2. 

Estimated impact on expenditure  

3.2.1. 

Summary of estimated impact on expenditure  

Heading of multiannual financial 
framework:  

1 

Sustainable growth (from 2014 onwards: Smart and Inclusive Growth) 

EUR million (to 3 decimal places) 

DG: EMPL102 

(cid:121) Operational appropriations  

Year 
2013103 

Year 
2014 

Year 
2015 

Year 
2016 

Year 
2017 

Year 
2018 

Year 
2019 

Year 
2020 

TOTA
L 

04.04.01.03  (may  change  with  new 
programme  for  Social  Change  and 
Innovation) 

Commitments 

Payments 

(1) 

(2) 

2,000 

2,000 

2,000  

2,000 

2,000 

2,000 

2,000 

2,000 

16,000

0,800 

2,000 

2,000  

2,000 

2,000 

2,000 

2,000 

2,000 

14,800 

of 

an 

administrative 
Appropriations 
 from the envelope for specific programmes104  
04.01.04.10  (may  change  with  new 
programme  for  Social  Change  and 
Innovation) 

nature 

financed 

(3) 

0,264 

0,264 

0,264 

0,764 

0,264 

0,264 

0,264 

0,264 

2.612 

TOTAL appropriations 

Commitments 

=1+1a 
+3 

2,264 

2,264 

2,264 

2,764 

2,264 

2,264 

2,264 

2,264 

18,612 

102 
103 
104 

EN 

For details on the general IMI funding see COM(2011) 522 final (proposal on the IMI Regulation). 
Year N is the year in which implementation of the proposal/initiative starts. 
Technical and/or administrative assistance and expenditure in support of the implementation of EU programmes and/or actions (former "BA" lines), indirect 
research, direct research. 

52 

E

 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
for DG EMPL 

Payments 

=2+2a
+3 

1,064 

2,264 

2,264 

2,764 

2,264 

2,264 

2,264 

2,264 

17,412 

(cid:121) TOTAL operational appropriations  

Commitments 

Payments 

(cid:121)  TOTAL  appropriations  of  an  administrative  nature 
financed from the envelope for specific programmes  

(4) 

(5) 

(6) 

2,264 

1,064 

2,264 

2,264 

2,264 

2,264 

2,764 

2,764 

2,264 

2,264 

2,264 

2,264 

2,264 

2,264 

2,264 

2,264 

18,612 

17,412 

TOTAL appropriations  
under HEADING 1 
of the multiannual financial framework 

Commitments 

=4+ 6 

2,264 

2,264 

2,264 

2,764 

2,264 

2,264 

2,264 

2,264 

18,612

Payments 

=5+ 6 

1,064 

2,264 

2,264 

2,764 

2,264 

2,264 

2,264 

2,264 

17,412 

EN 

53 

E

 
  
 
 
 
 
 
 
 
 
 
 
 
 
Heading of multiannual financial 
framework:  

5 

" Administrative expenditure " 

DG: EMPL 

(cid:121) Human resources  

Year 
2013 

Year 
2014 

Year 
2015 

Year 
2016 

Year 
2017 

Year 
2018 

Year 
2019 

Year 
2020 

TOTA
L 

EUR million (to 3 decimal places) 

0,232 

0,232 

0,232 

0,232 

0,232 

0,232 

0,232 

0,232 

1,856 

(cid:121) Other administrative expenditure  

0,010 

0,360 

0,010 

0,360 

0,010 

0,360 

0,010 

0,360 

1,48 

TOTAL DG EMPL 

Appropriations  

0,242 

0,592 

0,242 

0,592 

0,242 

0,592 

0,242 

0,592 

3,336 

TOTAL appropriations 
under HEADING 5 
of the multiannual financial framework  

(Total 
= Total payments) 

commitments 

0,242 

0,592 

0,242 

0,592 

0,242 

0,592 

0,242 

0,592 

3,336 

Year 
2013 

Year 
2014 

Year 
2015 

Year 
2016 

Year 
2017 

Year 
2018 

Year 
2019 

Year 
2020 

TOTA
L 

EUR million (to 3 decimal places) 

TOTAL appropriations  
under HEADINGS 1 to 5 
of the multiannual financial framework  

Commitments 

2,506 

2,856 

2,506 

3,356 

2,506 

2,856 

2,506 

2,856 

21,948 

Payments 

1,306 

2,856 

2,506 

3,356 

2,506 

2,856 

2,506 

2,856 

20,748 

EN 

54 

E

 
  
 
 
 
 
 
 
 
 
 
3.2.2.  Estimated impact on operational appropriations  

•  (cid:133)  The proposal/initiative does not require the use of operational appropriations  

•  ⌧ The proposal/initiative requires the use of operational appropriations, as explained below: 

Indicate 
objectives 
and 
outputs  

Year 
2013 

Year 
2014 

Year 
2015 

Year 
2016 

Year 
2017 

Year 
2018 

Year 
2019 

Year 
2019 

TOTAL 

OUTPUTS 

Commitment appropriations in EUR million (to 3 decimal places) 

Type of 
output105 

(cid:216) 

Avera
ge 
cost  
of the 
output 

r
e
b
m
u
N

s
t
u
p
t
u
o

f
o

SPECIFIC OBJECTIVE No 1106: 
Effective application of EU law 

Cost 

r
e
b
m
u
N

s
t
u
p
t
u
o

f
o

Cost 

r
e
b
m
u
N

s
t
u
p
t
u
o

f
o

Cost 

r
e
b
m
u
N

s
t
u
p
t
u
o

f
o

Cost 

r
e
b
m
u
N

s
t
u
p
t
u
o

f
o

Cost 

r
e
b
m
u
N

s
t
u
p
t
u
o

f
o

Co
st 

r
e
b
m
u
N

s
t
u
p
t
u
o

f
o

Cost 

Nu
mb
er 

Cost 

Nu
mb
er 

Cost 

0,400 

5 

2,000 

5 

2,000 

5 

2,000

5 

2,000

5 

2,000 

5 

5 

2,000

5 

2,000

40 

16,000 

2,0
00 

Projects, 
conferences
, seminars, 
good 
practice 
guides 
(grants) 

Exchange 
of best 
practices, 
training, 
mutual 
learning, 
capacity 
building in 
order to 
improve 
administrati
ve 
cooperation 
between 
national 

105 
106 

Outputs are products and services to be supplied (e.g.: number of student exchanges financed, number of km of roads built, etc.). 
As described in Section 1.4.2. "Specific objective(s)…" 

EN 

55 

EN 

 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
Exchanges 
of good 
practices 

0,264 

1 

0,264 

1 

0,264 

1 

0,264

1 

0,264

1 

0,264 

1 

1 

0,264

1 

0,264

8 

2,112 

0,2
64 

authorities  

Expert 
committee 
on the 
posting of 
workers - 
exchange 
of best 
practices in 
order to 
improve 
administrati
ve 
cooperation  

Sub-total for specific objective N°1 

6 

2,264 

6 

2,264 

6 

2,264

6 

2,264

6 

2,264 

TOTAL COST 

6 

2,264 

6 

2,264 

6 

2,264

6 

2,264

6 

2,264 

6 

6 

2,2
64 

2,2
64 

6 

2,264

6 

2,264

48 

18,112 

6 

2,264

6 

2,264

48 

18,112 

EN 

56 

EN 

 
  
3.2.3.  Estimated impact on appropriations of an administrative nature 

3.2.3.1.  Summary  

•  (cid:133)  The  proposal/initiative  does  not 

require 

the  use  of  administrative 

appropriations  

•  ⌧ The  proposal/initiative  requires  the  use  of  administrative  appropriations,  as 

explained below: 

EUR million (to 3 decimal places) 

Year 
2013 107 

Year 
2014 

Year 
2015 

Year 
2016 

Year 
2017 

Year 
2018 

Year 
2019 

Year 
2020 

TOTA
L 

HEADING 5 
of the multiannual 
financial framework 

Human resources  

0,232 

0,232 

0,232 

0,232 

0,232 

0,232 

0,232 

0,232 

1,856 

0,010 

0,360 

0,010 

0,360 

0,010 

0,360 

0,010 

0,360 

1,48 

Other administrative 
expenditure  

Subtotal HEADING 5 
of the multiannual 
financial framework  

Outside 
HEADING 5108 
of the multiannual 
financial framework  

Human resources  

Other expenditure  
of an administrative 
nature 

Subtotal  
outside HEADING 5 
of the multiannual 
financial framework  

TOTAL 

0,242 

0,592 

0,242 

0,592 

0,242 

0,592 

0,242 

0,592 

3,336

107 
108 

Year N is the year in which implementation of the proposal/initiative starts. 
Technical  and/or  administrative  assistance  and  expenditure  in  support  of  the  implementation  of  EU 
programmes and/or actions (former "BA" lines), indirect research, direct research. 

EN 

57 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
3.2.3.2.  Estimated requirements of human resources  

•  (cid:133)  The proposal/initiative does not require the use of human resources  

•  ⌧ The  proposal/initiative  requires  the  use  of  human  resources,  as  explained 

below: 

Estimate to be expressed in full amounts (or at most to one decimal place) 

Year 
2013 

Year 
2014 

Year 
2015 

Year 
2016 

Year 
2017 

Year 
2018 

Year 
2019 

Year
2020 

(cid:121) Establishment plan posts (officials and temporary agents) 

XX 01 01 01 (Headquarters and 
Commission’s Representation Offices) (1 
AD) 

XX 01 01 02 (Delegations) 

XX 01 05 01 (Indirect research) 

10 01 05 01 (Direct research) 

127000  127000 

12700
0 

12700
0 

127000 

12700
0 

12700
0 

12700
0 

(cid:121) External personnel (in Full Time Equivalent unit: FTE)109 

73000 

73000 

73000 

73000 

73000 

73000 

73000 

73000 

32000 

32000 

32000 

32000 

32000 

32000 

32000 

32000 

XX 01 02 01 (CA, INT, SNE from the 
"global envelope") (1 SNE) 

XX 01 02 01 (CA, INT, SNE from the 
"global envelope") (0,5 CA) 

XX 01 02 02 (CA, INT, JED, LA and SNE 
in the delegations) 

XX 01 04 yy 110 

- at Headquarters111 

- in delegations  

XX 01 05 02 (CA, INT, SNE - Indirect 
research) 

10 01 05 02 (CA, INT, SNE - Direct 
research) 

Other budget lines (specify) 

TOTAL 

232000  232000 

23200
0 

23200
0 

232000 

23200
0 

23200
0 

23200
0 

XX is the policy area or budget title concerned. 

The human resources required will be met by staff from the DG who are already assigned to 
management of the action and/or have been redeployed within the DG, together if necessary 
with any additional allocation which may be granted to the managing DG under the annual 
allocation procedure and in the light of budgetary constraints. 

Description of tasks to be carried out: 

109 

110 
111 

CA= Contract Agent; INT= agency staff ("Intérimaire"); JED= "Jeune Expert en Délégation" (Young 
Experts in Delegations); LA= Local Agent; SNE= Seconded National Expert;  
Under the ceiling for external personnel from operational appropriations (former "BA" lines). 
Essentially  for  Structural  Funds,  European  Agricultural  Fund  for  Rural  Development  (EAFRD)  and 
European Fisheries Fund (EFF). 

EN 

58 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
Officials  and  temporary  agents  (1 
AD) 

External personnel (1 SNE) 

External personnel (0,5 CA) 

monitoring 
procedures, 
proposals/tenders, coordination administrative cooperation 

transposition, 

infringement 

coordination 

call 

for 

support to administrative cooperation, support to call for proposals/tenders, evaluation 

management  of  grants  and  contracts,  relations  with  beneficiaries  of  grants  and 
contracts 

3.2.4.  Compatibility with the current multiannual financial framework  

•  ⌧ Proposal/initiative is compatible the current multiannual financial framework. 

•  (cid:133)  Proposal/initiative  will  entail  reprogramming  of  the  relevant  heading  in  the 

multiannual financial framework. 

Explain what reprogramming is required, specifying the budget lines concerned and the corresponding 
amounts. 

•  (cid:133)  Proposal/initiative requires application of the flexibility instrument or revision 

of the multiannual financial framework112. 

Explain what is required, specifying the headings and budget lines concerned and the corresponding 
amounts. 

3.2.5.  Third-party contributions  

•  ⌧ The proposal/initiative does not provide for co-financing by third parties  

•  The proposal/initiative provides for the co-financing estimated below: 

Appropriations in EUR million (to 3 decimal places) 

Year 
N 

Year 
N+1 

Year 
N+2 

Year 
N+3 

… enter as many years as 
necessary to show the duration 
of the impact (see point 1.6) 

Total 

Specify  the  co-financing 
body  

TOTAL appropriations 
cofinanced  

112 

See points 19 and 24 of the Interinstitutional Agreement. 

EN 

59 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
3.3. 

Estimated impact on revenue  

•  ⌧ Proposal/initiative has no financial impact on revenue. 

•  (cid:133)  Proposal/initiative has the following financial impact: 

•  (cid:133) 

on own resources  

•  (cid:133) 

on miscellaneous revenue  

Appropriation
s available for 
the ongoing 
budget year 

Budget revenue line: 

Article …………. 

EUR million (to 3 decimal places) 

Impact of the proposal/initiative113 

Year 
N 

Year 
N+1 

Year 
N+2 

Year 
N+3 

… insert as many columns as necessary 
in order to reflect the duration of the 
impact (see point 1.6) 

For miscellaneous assigned revenue, specify the budget expenditure line(s) affected. 

Specify the method for calculating the impact on revenue. 

113 

As regards traditional own resources (customs duties, sugar levies), the amounts indicated must be net 
amounts, i.e. gross amounts after deduction of 25% for collection costs. 

EN 

60 

   EN