COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the document Proposal for a Directive of the European Parliament and the Council amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services
Date: 2016-03-08
Institutions: Directorate-General for Employment, Social Affairs and Inclusion, European Commission
Subjects: equal treatment, expatriate worker, free movement of workers, freedom to provide services, frontier worker, labour law, provision of services, remuneration of work, single market, working conditions

EUROPEAN 
COMMISSION 

Strasbourg, 8.3.2016  
SWD(2016) 52 final 

COMMISSION STAFF WORKING DOCUMENT 

IMPACT ASSESSMENT 

Accompanying the document 

Proposal for a Directive of the European Parliament and the Council 

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

{COM(2016) 128 final} 
{SWD(2016) 53 final} 

EN 

   EN 

 
 
 
 
  
 
 
 
TABLE OF CONTENTS 

1.  PROCEDURAL  ISSUES  AND  CONSULTATION  OF  INTERESTED 

PARTIES..................................................................................................................... 4 

1.1. Identification ........................................................................................................ 4 

1.2. Consultation and expertise ................................................................................... 4 

1.3 Scrutiny by the Commission Regulatory Scrutiny Board ..................................... 5 

2. PROBLEM DEFINITION............................................................................................... 5 

2.1. Policy context ....................................................................................................... 5 

2.2. Defining the scope of the issue............................................................................. 9 

2.3.  Inconsistent  playing  field  for  companies  grounded  on  differentiated 

wage rules........................................................................................................ 10 

2.4. Unclear rules to be applied on specific situations .............................................. 14 

2.4.1. Subcontracting....................................................................................... 14 

2.4.2. Temporary agency workers ................................................................... 15 

2.4.3. Definition of the temporary nature of posting....................................... 16 

2.4.4. Intra-corporate posting .......................................................................... 17 

2.5. Evolution of the problem without further EU intervention................................ 18 

2.6.  EU Right to Act ............................................................................................... 19 

3. OBJECTIVES ............................................................................................................... 20 

3.1. General Policy Objective.................................................................................... 20 

3.2. Specific objectives.............................................................................................. 20 

3.3. Coherence of the objectives with other EU policies .......................................... 21 

4. POLICY OPTIONS....................................................................................................... 21 

4.1. Option 1 - No policy change: baseline scenario................................................. 22 

4.2.  Option  2:  clarification  of  the  composition  of  minimum  rates  of  pay  to 

codify the rulings of the European Court of Justice ........................................ 22 

4.3.1  Option  3a:  Application  of  the  same  mandatory  rules  on 

remuneration for posted and local workers ....................................... 23 

4.3.2.  Option  3b:  Extension  to  all  sectors  of  the  reference  to  erga 

omnes collective agreements ............................................................. 24 

4.4. Option 4: Adapted rules for specific situations of posting................................. 25 

4.4.1. Option 4a: long-term postings ............................................................... 25 

4.4.2. Option 4b: sub-contracting relations ..................................................... 25 

4.4.3. Option 4c: Temporary agency workers ................................................. 26 

4.5. Discarded options ............................................................................................... 27 

2 

 
 
4.5.1  Communication  by  the  Commission  to  clarify  the  elements  of 

remuneration applicable to posted workers ...................................... 27 

4.5.2.  Introduction  of  equal  pay  for  equal  work  with  respect  to  a 

reference undertaking........................................................................ 27 

4.5.3.  Clarification  of  the  application  of  the  Directive  to  the  road 

transport sector ................................................................................. 28 

4.5.4. Option 4d: intra-group posting ............................................................. 28 

5. ANALYSIS OF THE IMPACT OF THE POLICY OPTIONS .................................... 29 

5.1. Effectiveness ...................................................................................................... 29 

5.1.1. Create a level playing field for companies based on equal rules 

on wages ............................................................................................ 29 

5.1.2. Improve the clarity of EU rules on posting ........................................... 31 

5.2. Overall economic impacts .................................................................................. 32 

5.3. Overall social impacts ........................................................................................ 41 

5.4. Impact on SME's ................................................................................................ 43 

5.5. Implementation costs.......................................................................................... 44 

5.6. Budgetary Impact ............................................................................................... 44 

6. OVERALL COMPARISON OF THE OPTIONS ........................................................ 45 

6.1 The preferred options .......................................................................................... 46 

7. EVALUATION AND MONITORING......................................................................... 48 

7.1. Monitoring.......................................................................................................... 48 

7.2. Evaluation........................................................................................................... 49 

ANNEX  I.    -    SUMMARY  OF  THE  POSITIONS  EXPRESSED  BY  THE 

MEMBER STATES AND THE STAKEHOLDERS ............................................... 50 

ANNEX II. - NUMBERS AND FIGURES ON POSTING OF WORKERS ................... 55 

ANNEX  III.  -  OVERVIEW  OF  THE  CASE  LAW  OF  THE  CJEU  ON  THE 

CONSTITUENT ELEMENTS OF MINIMUM RATES OF PAY........................... 71 

ANNEX IV........................................................................................................................ 76 

ILLUSTRATIVE  SIMULATIONS  OF  THE  IMPACT  OF  EQUAL  PAY  ON 
LABOUR  COSTS  FOR  EMPLOYERS  AND  AFTER-TAX  INCOME  FOR 
WORKERS IN SITUATION OF POSTING............................................................ 76 

ANNEX V. - COMPOSITION OF REMUNERATION .................................................. 86 

ANNEX  VI. 

- 

IMPACT  OF  THE  REVISED  DIRECTIVE  ON 

REMUNERATION ................................................................................................... 87 
3 

 
 
 
1. PROCEDURAL ISSUES AND CONSULTATION OF INTERESTED PARTIES 

1.1. Identification 

Lead DG: DG Employment, Social Affairs and Inclusion (EMPL) 

Other services involved: SG, LS 

CWP/Agenda planning reference: CWP 2016, Annex I, initiative n. 8. 

1.2. Consultation and expertise 

In the framework of the Labour Mobility Package, the Commission launched on 15 July 
2015 a public consultation open to EU citizens and organisations, which remained open 
for 12 weeks. The consultation included a chapter on the social security rules applicable 
to  posted  workers.  Out  of  307  respondents  who  submitted  their  replies  to  the  public 
consultation, 232 respondents replied online to the questions on the coordination rules on 
posting  (which  amounts  to  75.57%  of  the  total  number  of  respondents),  including  138 
individuals (69.35% of the total number of individuals) and 94 organisations (87.04% of 
the total number of organisations). 

During  the  preparation  of  the  initiative,  the  Commission  has  received  written 
contributions from 16 Member States, in the form of two joint letters. The first was sent 
on  18  June  2015,  signed  by  Austria,  Belgium,  France,  Germany,  Luxembourg,  the 
Netherlands and Sweden. On 31 August 2015, a second joint letter signed by Bulgaria, 
Czech Republic, Estonia, Hungary, Lithuania, Latvia, Poland, Slovakia and Romania was 
sent to the Commission. 

The  targeted  revision  of  the  Directive  was  also  discussed  with  Member  States' 
representatives  within  the  Committee  of  Experts  on  Posting  of  Workers,  in  a  meeting 
held on 7 September 2015. 

The  Commission  organised  a  consultation  of  European  social  partners  on  the  Labour 
Mobility Package, including the targeted review of the Posting of Workers Directive, in 
the form of a roundtable, which was held on 10 June 2015.  

A meeting with was held with civil society on 17 June 2015. 

Written contributions were received from the following European social partners: ETUC, 
BusinessEurope,  UEAPME,  EFBWW  and  FIEC,  EBC,  CESI,  CEC  and  Eurociett. 

4 

 
 
 
 
 
 
 
 
 
 
Written  contributions  were  also  received  from  national  social  partners,  namely  the 
Swedish  Association  of  Industrial  Employers,  Gesamtmetall  ,  the  Confederation  of 
Industry of the Czech Republic, the Industry Associations of Denmark, Finland, Iceland, 
Norway,  Sweden,  the  Council  of  Nordic  Trade  Unions  and  the  Dutch  Trade  Union 
Confederation (FNV). 

Two European NGOs have also sent written contributions: ECAS and Eurodiaconia. 

Annex  III  provides  a  summary  of  the  positions  expressed  by  the  Member  States  and 
stakeholders in written contributions 

To increase the evidence basis, a study on wage-setting  systems  and  minimum  rates  of 
pay applicable to posted workers in accordance with 1996 Posting of Workers Directive 
in  a  selected  number  of  Member  States  and  sectors  was  prepared,  on  behalf  of  the 
Commission, by the Fondazione Giacomo Brodolini1. An analysis on the economic value 
of posting of workers was prepared on behalf of the Commission by HIVA KU Leuven2. 

1.3 Scrutiny by the Commission Regulatory Scrutiny Board 

The Regulatory Scrutiny Board of the European Commission assessed a draft version of 
the present IA and issued a negative opinion on 22 January 2016. A new version of the 
Impact Assessment was submitted to the Board on 15 February 2016. A positive opinion 
on the new version was issued on 24 February 2016. 

2. PROBLEM DEFINITION 

2.1. Policy context3 

Posting of workers plays an essential role in the Internal Market, particularly in the cross-
border  provision  of  services.  It  consists  of  the  case  in  which  undertakings  post  an 
employee to another Member State to provide a service. Directive 96/71/EC (hereafter: 
'the  Directive')4  regulates  three  variants  of  posting:  the  direct  provision  of  services 
between  two  companies  under  a  service  contract,  posting  in  the  context  of  an 
establishment  or  company  belonging  to  the  same  group  ('intra-group  posting'),  and 

1      Fondazione  Giacomo  Brodolini  (FGB),  Study  on  wage  setting  systems  and  minimum  rates  of  pay 
applicable to posted workers in accordance with Directive 97/71/EC in a selected number of Member 
States and sectors, December 2015. 

2   De Wispelaere,  F.  and  Pacolet,  J.,  ‘An  ad hoc  statistical  analysis  on  short  term  mobility  -  economic 

value of posting of workers’, HIVA KU Leuven, February 2016. 

3     For more information, see Annex II. 
4     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. 

5 

 
 
 
 
 
 
 
                                                 
posting through hiring out a worker via a temporary work agency established in another 
Member State.  

The  EU  established  an  Internal  Market  which  is  based  on  a  highly  competitive  social 
market economy, aiming at full employment and social progress (Article 3(3)TFEU). 

The treaty establishes the right for companies to provide their services in other Member 
States. It provides that 'restrictions on the freedom to provide services in the Union shall 
be prohibited in respect of nationals of Member States who are established in a Member 
State other than that of the person to whom the services are intended' (Article 56 TFEU). 
The  freedom  to  provide  services  may  be  limited  only  by  rules  which  are  justified  by 
overriding reasons of general interest, provided that these are justified, proportionate and 
applied in a non-discriminatory way. 

Altogether,  in  2014  (latest  data  available),  there  were  over  1.92  million  postings  in  the 
EU, up by 10.3% as compared to 2013 and by 44.4% with respect to 2010. The upward 
trend followed the stagnation of postings during the years 2009 and 20105.  

EU-15  Member  States  represented  the  destination  of  86%  of  total  postings,  with 
Germany,  France  and  Belgium  as  the  three  main  countries  of  destination  which 
altogether  received  50%  of  total  postings  in  Europe  (see  figure  1).  In  proportion  to  the 
domestic employment of the receiving country, posted workers represent a relevant share 
in Luxembourg, Belgium and Austria. 

5   Pacolet, J. and De Wispelaere, F. (2015), Posting of Workers. Report on A1 portable documents issued 
in 2014, Network Statistics FMW&SSC, European Commission. The data include postings to single 
Member States (according to art. 12 of Regulation 883/2004) and postings to multiple Member States 
(article 13 of Regulation 883/2004).  The data also includes the self-employed (on average 8% of total 
postings) which are not covered by the posting of Workers Directive. Because no data is available on 
the  destination  of  postings  to  multiple  member  States,  the  total  figure  of  sent  posted  workers  (1.92 
million) is higher than that of received posted workers (1.45 million, in 2014).   

6 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
Figure 1. Posted workers, breakdown by receiving country, absolute numbers and 
% of total employment, years 2010 and 2014. 

Source: EMPL elaboration on Pacolet and De Wispelaere (2015). Note: data on received posted workers 
are only available with respect to postings to single Member States (art. 12 of Reg. 883/2004). 

Poland, Germany and France accounted for the three largest senders of posted workers in 
2014,  with  EU-15  accounting  for  54%  of  total  posted  workers  sent  in  that  year.  The 
incidence  of  posted  workers  on  the  domestic  employment  of  sending  countries  was 
highest in Luxembourg, Slovenia, and Slovakia. 

Figure 2. Posted workers, breakdown by sending country, absolute number and % 
on total employment, years 2010 and 2014. 

Source:  EMPL  elaboration  on  Pacolet  and  De  Wispelaere  (2015).  Note:  data  on  sent  posted  workers 
include both postings to single Member States and postings to multiple Member States (art. 12, 13 of Reg. 
883/2004).  

7 

 
 
 
 
 
 
 
 
Postings  involve  a  small  share  of  the  total  EU  workforce  (0.7%),  with  unique  posted 
persons  accounting  on  average  for  0.4%  of  EU  employment  (0.2%  in  full-time 
equivalents). However, the relevance of  posting of workers is particularly strong in the 
construction sector, in which 42% of total postings are concentrated. Posting of workers 
is also important in the manufacturing industry (21.8%) and in other service sectors, such 
as  personal  services  (education,  health  and  social  work,  13.5%)  and  business  services 
(administrative, professional, and financial services, 10.3%). Posting of workers through 
temporary  agency  work  represents,  on  average,  5%  of  total  postings  in  the  EU,  albeit 
with significant cross-country variations.  

Further data on posting of workers are presented in Annex II. 

However, it is important to note that strong data limitations on posting of workers remain 
an on-going problem6. Comparable figures are based on the portable documents A1 (PD 
A1)  for  social  security  purposes7,  although  some  Member  States,  including  Belgium, 
Denmark,  France  and  Sweden  have  set  up  national  registration  systems,  requiring 
detailed information from companies posting workers to their country. The accuracy of 
the information contained in PD A1 documents cannot be guaranteed due to the lack of 
formal  controls  by  the  authorities  in  the  sending  countries,  among  other  things. 
Therefore,  the  figures  presented  below  represent  an  estimate  of  the  actual  number  of 
postings taking place and do not provide a precise picture of reality8. Moreover, PD A1 
forms  include  incomplete  information  on  the  duration  of  postings  (these  forms  are  not 
required for short-term postings below one month of duration and for long-term postings 
over  24  months)  and  the  precise  economic  sector  of  activity;  and  they  include  no 
information at all on aspects such as the qualification of posted workers, their earnings, 
and the economic value of cross-border services involving posting of workers.  

Improvements  can  be  expected  from  the  transposition  of  the  2014  Enforcement 
Directive,  in  particular  the  administrative  requirements  and  control  measures  suggested 
by article 9(1). Furthermore, the envisaged revision of the Regulation on social security 

6     See also European Commission (2012) Impact Assessment. Revision of the legislative framework on 
the posting of workers in the context of the provision of services. Partie I, SWD (2012) 63 final. 
7        Within  the  meaning  of  Article  12  of  Regulation  No  883/2004  on  the  coordination  of  social  security 
systems, PD A1 forms serve to certify that the holder is covered by the social security legislation of the 
Member  State  of  origin.  PD  A1  could,  inter  alia,  also  be  issued  for  persons  who  are  normally 
employed, self-employed or both employed and self-employed in two or more Member States (Art. 13 
of Regulation (EC) No 883/2004). 

8     The gap in registered posted workers between PD A1 figures and national registers can be significant. 
Annex II provides some examples. The gap can be explained by many factors, including in particular 
the  non-obligation  for  sending  employers  to  have  a  PD  A1  form  for  short-term  postings  below  one 
month  and  long-term  postings  over  24  months  (which  are  instead  compulsory  registered  in  national 
systems).  However,  the  gap  still  demonstrates  the  shortcoming  of  the  data  available  through  social 
security forms, which remain the only fully comparable data source. 

8 

 
 
 
 
 
 
 
                                                 
coordination  will  propose  stricter  measures  to  improve  the  reliability  of  the  A1  forms, 
and therefore of the data, provided by sending Member States.  

2.2. Defining the scope of the issue 

Posting  of  workers  constitutes  an  essential  resource  for  the  functioning  of  the  Internal 
Market.  The  1996  Directive  sets  the  EU  regulatory  framework  to  establish  a  balance 
between  the  objectives  of  promoting  and  facilitating  the  cross-border  provision  of 
services,  providing  protection  to  posted  workers  and  ensuring  a  level-playing  field 
between foreign and local competitors. It stipulates a 'core set' of terms and conditions of 
employment  of  the  host  Member  State  which  are  mandatory  to  be  applied  by  foreign 
service providers, which include (article 3(1) of the Directive): maximum work periods 
and  minimum  rest  periods;  the  minimum  rates  of  pay,  including  overtime  rates; 
minimum  paid  annual  holidays;  the  conditions  of  hiring-out  of  workers;  health,  safety 
and hygiene at work; protective measures in favour of pregnant women, young mothers, 
children, and young people; equality of treatment between genders; and other provisions 
of non-discrimination.   

The 2014 Enforcement Directive9 has provided for new and strengthened instruments to 
fight and sanction circumventions, fraud and abuses. It addresses problems caused by so-
called  "letter-box  companies"  and  increases  the  Member  States’  ability  to  monitor 
working  conditions  and  enforce  the  rules  applicable.  Inter  alia,  the  Directive  lists 
qualitative  criteria  characterising  the  existence  of  a  genuine  link  between  the  employer 
and  the  Member  State  of  establishment.  The  Enforcement  Directive  also  lays  down 
provisions to improve administrative cooperation between national authorities in charge 
of posting. For instance, it provides for an obligation to respond to requests for assistance 
from the competent authorities in other Member States within two  working days in the 
case of urgent requests for information and within 25 working days in non-urgent cases. 
Moreover,  the  Directive  lists  national  control  measures  that  the  Member  States  may 
apply  when  monitoring  compliance  with  the  working  conditions  applicable  to  posted 
workers.  The  full  effects  of  the  Directive  should  become  tangible  as  of  mid-2016,  as 
Member States will have until 18 June 2016 to transpose the Directive.  

The  current  initiative  does  not  address  any  issue  touched  upon  by  the  Enforcement 
Directive. Neither the Enforcement Directive nor the measures taken to transpose it into 
national laws will be in any way affected by the present initiative. Rather, it focuses on 
issues which were not addressed by it and pertain to the EU regulatory framework set by 
the original 1996 Directive. Therefore, the revised posting of Workers Directive and the 
Enforcement Directive are complementary to each other and mutually reinforcing.  

9    Directive  2014/67/EU  of  the  European  Parliament  and  of  the  Council  of  15  May  2014  on  the 
enforcement  of  Directive  96/71/EC  concerning  the  posting  of  workers  in  the  framework  of the 
provision  of  services  and  amending  Regulation 
(EU)  No  1024/2012  on  administrative 
cooperation through the Internal Market Information System ( ‘the IMI Regulation’ ). 

9 

 
 
 
                                                 
Problem Tree 

Drivers 

Problems 

Consequences 

Un-level playing field 
for companies due to 
different rules on wages 
between posted and local 
workers 

Unclear rules to be 
applied (implementation 
difficulties) 

Deteriorated acceptance 
of posting 

Social dumping 

Unfair competition 

Legal uncertainty/higher 
litigation costs (for 
companies and workers) 

Reference to minimum 
level of pay 

Universal systems not in 
all the Member States 

Incentives for companies 
to replace locally hired 
workers with foreign 
service providers

Lack of clarity of what 
elements are covered by 
minimum pay  

Lack of clarity regarding 
the temporary nature of 
posting 

Inconsistency between 
different EU rules 

2.3. Inconsistent playing field for companies grounded on differentiated wage rules  

The  1996  Posting  of  Workers  Directive  establishes  a  structural  differentiation  of  wage 
rules applying to posted and local workers which is the institutional source of an un-level 
playing  field  between  posting  and  local  companies,  as  well  as  of  segmentation  in  the 
labour market.  

Wage differentiation originates from three mechanisms set in place by the Directive. 

First, the Directive stipulates that posted workers are guaranteed only the minimum rates 
of  pay,  as  part  of  a  "hard  core  of  clearly  defined  protective  rules",  in  the  receiving 
Member  State.  Minimum  pay  is  defined  either  by  the  law  or  by  universally  applicable 
collective agreements which have been declared universally applicable. In the absence of 
universally  applicable  collective  agreements,  Member  States  may  decide  to  base 
themselves  on  collective  agreements  which  are  generally  applicable  to  all  similar 
undertakings  in  the  geographical  area  and  in  the  profession  or  industry  concerned,  or 

10 

 
 
 
 
 
 
 
 
 
 
collective agreements which have been concluded by the most representative employers' 
and  labour  organizations  at  national  level  and  which  are  applied  throughout  national 
territory10.  Thus,  unless  there  are  collective  agreements  that  fulfil  these  conditions, 
posted workers are only entitled to whatever statutory minimum wage that there might be 
in the receiving country. However, even when collective agreements are applicable, it is 
widely reported that sending companies tend to pay the rates applicable to the lowest pay 
group,  rather  than  the  adequate  pay  group  corresponding  to  workers'  job  tasks, 
educational  level  and  seniority11.  In  summary,  the  existing  Directive  has  an  in-built 
structural wage gap between posted and local workers. 

Second,  the  composition  of  the  minimum  rates  of  pay  guaranteed  to  posted  workers  in 
the  host  Member  States  is  unclear  and  sensibly  varies  across  the  Member  States.  The 
Directive leaves the definition and composition of 'minimum rates of pay' applicable in 
their  country  to  the  Member  States  and  the  social  partners.  For  example,  while  certain 
bonuses  or  allowances  (such  as  Christmas  bonus  or  bad-weather  allowance)  are 
constituent  parts  of  the  pay  in  some  Member  States,  they  are  not  in  others.  Annex  V 
provides  an  overview  of  the  types  of  bonuses  and  allowances  included  across  different 
Member  States.  The  European  Court  of  Justice  has  clarified  selected  issues  of  the 
concept12. Nevertheless, the lack of a clear standard generates uncertainty about rules and 
practical difficulties for the bodies responsible for the enforcement of the rules in the host 
Member  State;  for  the  service  provider  when  determining  the  wage  due  to  a  posted 
worker; and for the awareness of posted workers themselves about their entitlements. In 
practice, the notion of "minimum  rates of pay" which can in a number of Member States 
include  seniority  allowance,  quality  bonuses  and  13th  month  bonuses,  seems  to  be 
wrongly interpreted without these components, as meaning 'minimum wage' (see Annex 
V). 

Third,  there  are  uncertainties  concerning  the  effectiveness  of  the  Directive  in  Denmark 
and  Sweden  where,  in  the  absence  of  a  statutory  minimum  wage  and  a  scheme  for  the 
extension  of  collective  agreements,  minimum  rates  of  pay  are  set  by  collective 
agreements  that  are  applicable  nationwide  but  leave  ample  room  for  integration  to 
company-level  agreements,  in  line  with  productivity  and  skill  requirements.  Following 
the  Laval  ruling13  through  which  the  European  Court  of  Justice  has  challenged  the 

10   See in particular article 3(8) of the 1996 Posting of Workers Directive. 
11    FGB (2015), Wage Study.  This situation primarily affects workers posted from low-wage EU Member 
States  in  low-skill  occupations.  Workers  with  higher  bargaining  power  vis-à-vis  their  employers  are 
reported to receive wages in line with the standards of the receiving countries. 

12   Commission v. Germany (C-341/02), Isbir (C-522/12). In the recent case Sähköalojen ammattiliitto ry 
(C-396/13), the Court ruled that the 'minimum rates of pay' which a host Member State can require to 
be paid to posted workers include: holiday allowances, daily flat-rate allowances for posted workers to 
compensate them for disadvantages entailed by the posting, and compensation for travelling time, on 
equal  terms  as  local  workers.  Moreover,  it  acknowledged  the  validity  of  different  hourly  pay  levels 
attached to the categorisation of employees into pay groups in collective agreements to the sense of the 
Directive, provided that the conditions are universally binding and transparent. 

13    C-341/05 - Laval un Partneri. 

11 

 
 
 
                                                 
validity of company-level agreements to set the working conditions for posted workers, 
both countries have amended national legislation to clarify the application of their wage-
setting systems in the terms set by the Directive14  . While general agreements set basic 
wage  floors  in  some  relevant  exposed  sectors,  company-level  agreements  play  an 
essential role in setting a level playing field with local companies, but the number of such 
collective agreements with cross-border service providers seems to be low15..   

Figure 3 provides a synoptic view of the level of minimum rates of pay (as a ratio of the 
average  wage  in  the  whole  economy)  under  different  wage  regimes  and  the  number  of 
workers  posted  to  each  Member  State  from  lower-wage  countries  who  are  likely  to 
receive only the minimum rates of pay in the receiving country.  

Figure 3. Minimum rates of pay guaranteed by the Directive and potential range of 
posted workers affected, by receiving country, whole economy, 2010 

Source: EMPL calculations on Eurostat data and Pacolet and De Wispelaere (2015) data. No data for CY. 
Note: in minimum wage countries (MW) the minimum pay is calculated as the ratio between the monthly 
statutory minimum wage and the nominal average wage in the construction sector; in Member States with 
universally  applicable  collective  agreements  (CA),  and  collective  agreements  concluded  at  national level 
(in accordance to article 3(8) of the Directive), the minimum rate of pay is calculated as the ratio between 
the  nominal  monthly  wage  of  the  lowest  pay  group  (elementary  worker)  and  the  average  wage  in  the 
construction sector.  

14   Malmberg, J. (2010), The impact of the ECJ judgements on Viking, Laval, Rueffert and Luxemburg 
on  the  practice  of  collective  bargaining  and  the  effectiveness  of  social  action,    European  Parliament 
Study 
(http://www.europarl.europa.eu/document/activities/cont/201107/20110718ATT24274/20110718ATT
24274EN.pdf) 

15    FGB Study (2015), Denmark and Sweden Country reports. 

12 

 
 
 
 
 
                                                 
Differentiated  rules  on  wages  translate  into  a  competitive  advantage  for  posting 
companies  over  local  companies  in  receiving  countries,  with  the  former  being  able  to 
adhere to lower wage bound than the latter, while competing for the same business in the 
same (host) country. This is particularly true in domestically-provided services, such as 
construction  and  personal  services,  given  their  labour-intensive  and  price-sensitive 
character and the fact that delocalisation of these activities is not possible. In light of EU 
labour  market  conditions,  including  wage  differentials  and  diversity  of  wage-setting 
regimes, in the context of an enlarged European Union, the balance struck by the 1996 
Directive  to  establish  a  climate  of  fair  competition  has  changed  considerably.  As 
illustrated  by  figure  9  (Annex  II),  the  gap  between  Member  States  on  minimum  wages 
has  constantly  increased  since  1996,  from  a  ratio  between  the  lowest  and  the  highest 
minimum wage of 1:3 to 1:10. Moreover, differentiated wage rules seem in contradiction 
with the principle according to which cross-border service providers should pursue their 
activities  in  another  Member  State  "under  the  same  conditions  as  are  imposed  by  the 
State on its own nationals" (Article 57 TFEU). 

The  labour  market  effect  of  these  provisions  is  segmentation  between  posted  and  local 
workers.  Posted  workers  are  reported  to  receive  a  lower  remuneration  level  than  local 
workers,  especially  in  high-wage  EU  receiving  countries,  such  as  Belgium,  Denmark, 
France,  Germany,  the  Netherlands  and  Sweden.  Because  of  the  absence  of  data  on  the 
earnings  of  posted  workers,  only  gross  estimates  exist.  However,  the  wage  gap  (in 
compliance  with  the  Directive)  is  estimated  to  range  from  10-15%  in  the  Danish 
construction sector, up to about 25% - 35% in the construction sector in the Netherlands 
and  Belgium,  and  up  to  50%  in  the  road  transport  sector  in  Belgium16.  The  wage  gap 
constitutes  a  source  of  labour  market  segmentation  insofar  as  it  implies  differentiated 
rules applying to posted workers on aspects such as composition of pay, correspondence 
of certain bonuses, and longer working hours.  

Wage differentiation is reported to be especially acute in two cases. First, posted workers 
in  labour-intensive  sectors,  such  as  the  construction  sector  and  road  transport  are  more 
likely to receive minimum pay rates than posted workers in high-end service sectors, e.g. 
finance and insurance. This is because in these sectors labour cost differentials are one of 
the key drivers of posting of workers while posted workers tend to have low skills17. By 

Committee, 

16    See Fondazione Giacomo Brodolini (FGB), Study on wage setting systems and minimum rates of pay 
applicable to posted workers in accordance with Directive 97/71/EC in a selected number of Member 
States and sectors [henceforth quoted as "FGB - Wage Study"], Final report, November 2015; Schiek, 
Oliver,  Forde,  Alberti,  "EU  Social  and  Labour  Rights  and  EU  Internal  Market  Law",  Study  for  the 
EMPL 
2015 
(http://www.europarl.europa.eu/RegData/etudes/STUD/2015/563457/IPOL_STU%282015%29563457
_EN.pdf);  M.  Houwerzijl,  "The  Dutch  Understanding  of  Posting  of  Workers  in  the  context  of  Free 
Services  Provision  and  Enlargement:  a  Neutral  Approach?",  in:  S.  Evju,  Cross-Border  Services, 
Posting 
2013 
(http://www.jus.uio.no/ifp/english/research/projects/freemov/publications/books/cross-border.html) 
17    See ISMERI Europa, 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, Final 

and  Multilevel  Governance,  University 

of  Workers 

Parliament, 

of  Oslo, 

September 

European 

13 

 
 
 
                                                 
contrast, in sectors or for professions in which posting is driven by skills shortages, such 
as the care services sector, or workers have higher skills, wages are not reported to be a 
problematic issue18. Second, unequal wage treatment particularly affects workers posted 
from low- to high-wage countries. While the 1996 Directive does not preclude companies 
from  applying  more  generous  conditions  than  the  minimum  standards  of  the  receiving 
country,  workers  posted  from  low-wage  countries  tend  to  lack  the  bargaining  power  to 
obtain  more  generous  conditions  in  line  with  the  wage  standards  of  the  receiving 
countries. On the receiving end, the Directive provisions can exert downward wage and 
overall  labour  cost  competition  on  local  companies  and  workers  in  high-wage  Member 
States19,  including  through  possible  risks  of  replacement  of  local  workers  with  posted 
workers. It also risks destabilising coordinated wage-setting regimes and the bargaining 
autonomy of the social partners in those regimes. 

2.4. Unclear rules to be applied on specific situations  

The  1996  Directive  addresses  different  types  of  posting  through  a  one-size-fits-all 
principle. In specific situations, however, the rules have not proved to be up to standard 
with changing economic and labour market conditions and do not provide sufficient legal 
clarity.  Unclear  rules  undermine  the  efficient  functioning  of  the  Internal  Market  by 
creating uncertainties among undertakings, workers and their representatives, and public 
authorities. 

2.4.1. Subcontracting 

Posted  workers  in  the  context  of  sub-contracting  chains  are  in  a  situation  of  particular 
vulnerability.  Subcontracting  chains 
involve  a  client,  or  principal  contractor, 
externalising  single  specialities  or  tasks  to  other  companies  or  self-employed  workers. 
Workers  may  be  posted  to  another  member  State  in  order  to  execute  that  service. 
Subcontracting is an extensive practice in the building and construction sector, as well as 
in  other  industries  and  service  sectors,  such  as  shipbuilding,  transport,  tourism  and  the 
cleaning industry20. The compression of production costs through the subcontracting of 
specific  tasks  to  trans-national  subcontractors  is  one  of  the  drivers  of  the  phenomenon 
and may be a source of downward wage pressure in the context of posting both on posted 
and on local workers, as well as a source of risk of job displacement for local workers21.  

Report, March 2012; J. Cremers, In search of cheap labour in Europe. Working and living conditions 
of posted workers, European Institute for Construction Labour Research – AIAS, 2010. 

18    FGB (2015), Wage Study. 
19   EFBWW and FIEC, Joint Position, 29 February 2015; European Builders Confederation, Open Letter 

to Maryanne Thyssen, 5 October 2015; Council of Nordic Trade Unions, 20 January 2016. 

20    Y.  Jorens,  S.  Peters,  M.  Houwezijl,  Study  on  the  protection  of  workers'  rights  in  subcontracting 

processes in the European Union, June 2012.  

21    See  Lillie,  N.  (2012),  "Subcontracting,  posted  migrants  and  labour  market  segmentation  in  Finland", 
British  Journal  of  Industrial  Relations,  40(1):  148-167  N.  Lillie  and  I.  Wagner,  Subcontracting, 
insecurity and posted work: evidence from construction, meat processing and ship building, European 
Trade Union Institute, 2015 

14 

 
 
 
                                                                                                                                                 
As  there  is  little  comprehensive  data,  it  is  difficult  to  estimate  the  extent  of  sub-
contracting  through  cross-border  service  providers  and  posting  of  workers.  Overall,  in 
2011 (latest available data) payments of companies to subcontractors ranged between less 
than  15%  (RO,  PT,  DK,  and  IT)  to  over  30%  (UK,  SK,  and  CZ)  of  turnover  in  the 
construction sector (figure 10, Annex II).  

The 2014 Enforcement Directive recognised that "compliance with the applicable rules in 
the  field  of  posting  in  practice  and  the  effective  protection  of  workers'  rights  in  this 
respect  is  a  matter  of  particular  concern  in  subcontracting  chains"  (recital  36)  while 
introducing  a  system  of  joint  liability  of  the  main  contractor22.  The  Enforcement 
Directive  hence  determines  who  can  be  held  liable  for  wage  payment  but  does  not 
address the question of what wage a posted worker in a subcontracting chain is entitled 
to. 

2.4.2. Temporary agency workers 

The  posting  of  temporary  agency  workers  to  a  user  undertaking  established  in  another 
Member  State  is  a  rather  specific  situation,  compared  with  the  typical  situation  of 
workers posted in the context of a contract of service. In the case of temporary agency 
workers,  the  movement  of  the  worker  to  the  host  Member  State  constitutes  the  very 
purpose of the provision of services and the posted worker carries out his tasks under the 
control and direction of the user undertaking. 

Posted agency workers are exposed to the risk of differentiated treatment with respect to 
temporary  agency  workers  directly  recruited  in  the  host  Member  States  because  of  the 
problematic  interaction  between  the  Posting  of  Workers  directive  and  the  Directive 
2008/104/EC on temporary agency work (TAW)23.  

While the TAW Directive establishes that temporary agency workers should be granted 
the same working and employment conditions of workers as comparable workers of the 
user  undertaking,  in  the  Posting  of  Workers  directive  the  same  principle  is  not 
mandatory.  Article  3(9)  provides  that  temporary  agency  workers  posted  from  another 
Member State are granted the application of the hard core of rights as nationals, including 
minimum rates of pay, but are not granted equal treatment as comparable workers of the 
user undertaking, unless a Member State has ruled so.  

22    Directive  2014/67/EU  of  the  European  Parliament  and  of  the  Council  of  15  May  2014  on  the 
enforcement  of  Directive  96/71/EC  concerning  the  posting  of  workers  in  the  framework  of the 
provision  of  services  and  amending  Regulation 
(EU)  No  1024/2012  on  administrative 
cooperation through the Internal Market Information System ( ‘the IMI Regulation’ ) 

23    A.Van Hoek and M. Houwerzijl, Comparative Study on the legal aspects of the posting of workers in 

the framework of the provision of services in the European Union, 2011. 

15 

 
 
 
 
 
 
                                                 
The majority of Member States (15) has transposed article 3(9) to ensure that the equal 
treatment  principle  also  applies  to  posted  temporary  agency  workers,  but  thirteen 
Member  States  (Austria,  Cyprus,  Estonia,  Greece,  Finland,  Croatia,  Hungary,  Ireland, 
Latvia,  Poland,  Portugal,  Slovenia,  and  Slovakia)  do  not  set  any  specific  provision  for 
this category of workers, with the general conditions for posted workers applying24. 

As a result, temporary agency workers who are posted to the latter group of countries are 
exposed  to  risks  of  differentiated  pay  and  working  conditions  with  respect  to  locally 
recruited agency workers. National temporary agencies are faced with unfair competition 
since  the  workers  assigned  by  agencies  established  in  another  Member  State  are 
potentially paid lower wages. It should be noted, however, that the Posting of Workers 
Directive does not affect the regulation of the temporary agency industry with respect to 
aspects  such  as  restrictions  on  particular  sectors  or  licencing  systems  in  the  Member 
States. 

2.4.3. Definition of the temporary nature of posting 

The 1996 Directive defines the nature of posting as having a temporary character, for the 
"limited period of time" necessary for a worker to carry out in another Member State the 
work for which he or she has been posted25. However, the Directive does not provide any 
temporary  limitation  to  the  posting  of  workers  or  any  limitation  to  the  assumption  that 
they do not integrate into the labour market of the host Member State.  

The lack of a definition of the temporary limitation of posting creates a mismatch with 
the Regulation on the coordination of social security systems26. The Regulation sets at 24 
months the maximum duration of postings after which posted workers are compulsorily 
integrated in the social security regime of the host Member State for the entire period of 
posting.  The  same  rule  does  not  apply  for  working  conditions  under  the  Posting  of 
Workers  Directive.  Workers  posted  for  long  periods  remain  entitled  to  the  minimum 
standards  of  the  host  Member  State,  as  far  as  remuneration,  working  time,  and  paid 
holidays  are  concerned,  while  remaining  subject  to  the  income  tax  regime  of  the  home 
country.  

The  inconsistency  of  the  EU  regulatory  framework  on  posting  represents  a  problem  as 
such as a matter of clarity of rules, while bearing significant adverse consequences on the 
fairness  of  competition  between  posting  and  local  companies.  Companies  posting 
workers  for  long-term  services  can  continue  applying  a  more  advantageous  set  of 
minimum-standard  labour  rules  with  respect  to  local  companies,  thus  gaining  a 
competitive edge based on the application of unequal wage rules. 

24    Austria does not provide for equal treatment of posted temporary agency workers, but established more 

generous conditions than the minimum core of rights.  

25   A.Van Hoek and M. Houwerzijl, 2011. 
26   Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the 

coordination of social security systems. 

16 

 
 
 
                                                 
In turn, workers posted for long periods are de facto integrated in the labour market of 
the host Member State, but they do not benefit from the principle of equal treatment with 
nationals as EU mobile workers (within the meaning of Article 45 TFEU) do, as far as 
working  conditions  are  concerned.  Workers  in  long-term  postings  are  more  exposed  to 
abuses of their working conditions27. 

The Commission identified this problem in the preparation of the Enforcement Directive, 
but  no  policy  option  was  presented  at  that  time  since  the  initiative  focused  only  on 
problems related with the enforcement of the existing rules 28. 

2.4.4. Intra-corporate posting 

In  addition  to  the  typical  situation  of  posting  in  the  context  of  a  contract  of  services 
between  undertakings  established  in  different  Member  States  and  to  temporary  agency 
workers,  the  Directive  also  covers  intra-corporate  posting,  i.e.,  the  posting  to  an 
establishment  or  to  an  undertaking  owned  by  the  group  in  the  territory  of  another 
Member State. 

The  specificity  of  this  situation  is  two-fold:  first  it  has  a  rather  weak  link  with  the 
provision of services, being mainly confined to staff mobility within undertakings of the 
same  group.  Secondly,  similarly  to  the  agency  worker,  the  link  between  the  posted 
worker  and  the  undertaking  in  which  he/she  temporarily  performs  the  tasks  is  much 
stronger,  since  the  worker  carries  out  the  tasks  under  the  control  and  direction  of  the 
undertaking  to  which  he/she  has  been  posted.  It  also  creates  a  difference  of  treatment 
between EU and third-country nationals. Indeed, Directive 2014/66/EU on the conditions 
of entry and residence of third-country nationals in the framework of an intra-corporate 
transfer  provides,  in  its  Article  5(4)(b)  that  third  country  nationals  must  be  given  a 
remuneration  "not  less  favourable  than  the  remuneration  granted  to  nationals  of  the 
Member State where the work is carried out occupying comparable positions".  

By providing for the same rules as for the typical situation of posting under a contract of 
services, the Directive does not address the specificities of this situation and could create 
a  distortion  of  competition  between  companies  having  (or  not)  subsidiaries  in  different 
Member  States,  as  well  as  a  difference  of  treatment  between  EU  and  third-country 
nationals. 

27   European Trade Union Confederation (ETUC), A Revision of the Posting of Workers Directive. Eight  
proposals  for  improvement.  Final  Report  from  the  ETUC  Expert  Group  on  posting,  2010. 
(https://www.etuc.org/sites/www.etuc.org/files/final_report_ETUC_expert_group_posting_310510_E
N.pdf). 

28   European Commission, SWD(2012) 63 final.  

17 

 
 
 
                                                 
2.5. Evolution of the problem without further EU intervention 

With the continuing pick-up of economic activity in the EU29, posting of workers can be 
expected to continue growing at a steady pace based on the evidence that the growth of 
posting is strongly correlated to the growth of GDP30. If postings continue to grow at the 
annual  growth  rate  of  11.1%  showed  between  2010  and  2014,  the  total  number  of 
postings may reach up to 3 million workers by 2018. While the increase in the number of 
postings represents an indicator of a vigorous Internal Market for cross-border services, 
its  social  acceptance  among  companies  and  workers  may  risk  being  weakened  by 
concerns about the fairness of EU rules.  

The  regulatory  framework  would  nevertheless  be  subject  to  some  changes  as  a 
consequence of two factors, notably the transposition of the 2014 Enforcement Directive 
and the application of current – and possibly, future – case law of the European Court of 
Justice. 

The transposition of the Enforcement Directive  

On 18 June 2016, the deadline for the transposition of the 2014 Enforcement Directive at 
national level elapses. The Enforcement Directive tackles a number of important issues 
related  to  the  fighting  and  sanctioning  of  circumventions,  fraud  and  abuses.  Member 
States are called upon to set up stronger rules to unmask fraudulent competition practices 
by  companies  through  the  use  of  so-called  "letter-box  companies".  The  Directive  will 
also simplify and improve access to information on terms and conditions of employment 
in  the  host  Member  State,  both  for  employers  and  to  posted  workers.  Moreover,  the 
improvement of administrative cooperation between the Member States, in particular as 
concerns the exchange of information, will support the fight against abuses of the posting 
of  workers  covering  up  undeclared  or  illegal  work  activities.  The  set-up  of  stronger 
monitoring systems at national level will increase the availability of reliable data on the 
posting of workers across the EU Member States, and enhance inter alia the ability of the 
social  partners  to  monitor  and  enforce  the  correct  application  of  the  provisions  set  by 
collective  agreements.  The  cross-border  enforcement  of  administrative  penalties  and 
fines  will  also  ensure  that  the  sanctions  are  effective  and  dissuasive  even  in  case  of  a 
short presence of the cross-border service provider in the host Member State. 

The Enforcement Directive will be effective essentially in situations of fraud (letter-box 
companies,  etc.).  It  will  therefore  mainly  contribute  to  preventing  severe  forms  of 
distortion  of  competition.  To  the  extent  to  which  wage  differentiation  and  unfair 
competition practices are a matter of poor enforcement at national level, the transposition 
of the Enforcement Directive will contribute to tackling the problems listed above.  

29 

European 

Commission, 

European 

Economic 

Forecast, 

Autumn 

2015 

(http://ec.europa.eu/economy_finance/publications/eeip/pdf/ip011_en.pdf ). 

30   ISMERI Europe (2011) 

18 

 
 
 
                                                 
The effects of the jurisprudence by the European Court of Justice 

The  European  Court  of  Justice  has  clarified  on  successive  occasions  the  notion  of 
"minimum rates of pay". In particular, the case Sähköalojen ammattiliitto ry (C-396/13) 
has established that a host Member State can require sending companies to include in the 
payment to posted workers holiday allowances, daily flat-rate allowances to compensate 
workers for disadvantages entailed by the posting, and compensation for travelling time, 
on equal terms as local workers.  

Moreover, the ruling acknowledged that if collective agreements set different pay levels 
related  to  the  categorisation  of  employees  into  pay  groups,  these  pay  levels  need  to  be 
considered as valid in line with the Directive, provided that the conditions are universally 
binding and transparent. 

While  the  ruling  has  an  immediate  effect  on  the  rules  applicable  to  posting  companies 
and posted workers, its effects will continue to be monitored closely.  

In the more recent case Regio-Post (C-115/14)31, the Court's ruling has tackled an issue 
in relation to subcontracting activities in public procurement. It established that Member 
States can require tenderers of public procurements and their subcontractors to pay their 
employees  a  set  minimum  wage.  They  can  also  exclude  those  tenderers  and 
subcontractors who are unwilling to respect that minimum wage level.  

In  summary,  the  case  law  of  the  European  Court  of  Justice  has  contributed  to 
progressively clarify the provisions of the EU regulatory framework (see Annex II for a 
summary of recent case law). 

The case law of the Court is nevertheless, by definition, unpredictable since it depends on 
the  number  and  nature  of  the  cases  brought  before  the  Court.  Moreover,  the  Court  can 
clarify but not amend the provisions of the Directive. 

2.6.  EU Right to Act 

A  regulative  framework  for  posting  of  workers  between  Member  States  can  only  be 
established at EU level. The aims are to facilitate the cross-border provision of services 
through  posting  of  workers  by  improving  the  clarity  and  transparency  of  applicable 
labour  market  rules  in  the  host  Member  State(s)  of  posted  workers;  to  ensure  a  level 
playing field for competition in the provision of services between posting companies and 
local companies in the host Member State, while ensuring that posted workers have an 
adequate level of protection while working in the host Member State.  

31 RegioPost GmbH & Co. KG v Stadt Landau in der Pfalz (C-115/14) 

19 

 
 
 
                                                 
EU  action  in  the  form  of  a  Directive  is  warranted  to  encourage  the  freedom  to  provide 
services across borders on the basis of article 56 of the Treaty on the Functioning of the 
European Union (TFEU).  

The  Directive  currently  provides  for  a  uniform  and  EU-wide  regulative  framework 
setting a hard core of protective rules of the host Member State which need to be applied 
to  posted  workers,  irrespective  of  their  substance.  Therefore,  in  full  respect  of  the 
principle  of  subsidiarity,  the  Member  States  and  the  social  partners  at  the  appropriate 
level remain responsible for establishing their labour legislation, organising wage-setting 
systems  and  determining  the  level  of  remuneration  and  its  constituent  elements,  in 
accordance with national law and practices. The envisaged initiative does not change this 
approach. It thus respects the principles of subsidiarity and proportionality and does not 
interfere with the competence of national authorities and social partners.   

The  proposed  policy  options  respect  the  limits  laid  down  in  primary  EU  law  and  the 
Charter  of  Fundamental  Rights.  Proportionality  is  one  of  the  factors  against  which  the 
developed policy options have been assessed. The principle of equal treatment, including 
on pay, is enshrined in Article 21 of the EU Charter of Fundamental Rights. It is also at 
the  core  of  EU  secondary  law  on  fixed-term  contracts,  part-time  work  or  temporary 
agency  work.  More  recently,  the  EU  has  developed  a  consistent  legal  acquis  on  equal 
treatment,  including  pay,  in  matters  such  as  racial  or  ethnic  origin,  religion  or  belief, 
disability, age or sexual orientation. 

3. OBJECTIVES  

3.1. General Policy Objective 

The  general  objective  is  to  ensure  the  smooth  functioning  of  the  Internal  Market  by 
adapting  the  terms  and  conditions  set  by  the  1996  Directive  to  the  new  economic  and 
labour market conditions, diverting the basis of competition away from wage costs and 
workers' working conditions and thereby increasing the fairness of the Internal Market.  

3.2. Specific objectives 

The specific objectives that correspond to the problems identified are to: 

•  create  a  level  playing  field  for  the  cross-border  provision  of  services  through 

equal rules on wages applicable to posted and to local workers;  

• 

improve the clarity of EU rules on posting by improving the consistency between 
different pieces of EU legislation. 

In  the  context  of  this  impact  assessment,  the  level  playing  field  for  companies  is 
understood  as  the  same  set  of  rules  applying  for  the  remuneration  of  labour  within  a 

20 

 
 
 
 
given Member State, which generates equal opportunities for companies. The scope of a 
level  playing  field  to  other  elements  such  as  taxes,  legal  form  of  companies,  access  to 
loans, etc. is outside the scope of this initiative.   

3.3. Coherence of the objectives with other EU policies 

The targeted review of the Posting of Workers Directive figures prominently among the 
initiatives proposed by the Commission to  achieve the objective of a deeper and fairer 
Internal Market, as one of the chief priorities for its mandate. The proposal of targeted 
amendments  to  the  Posting  of  Workers  Directive  integrates  and  complements  the 
provisions set in the Enforcement Directive, which is to be transposed by 18 June 2016.  

The targeted revision of the Posting of Workers Directive will interact with the planned 
revision  of  the  Regulation  on  the  coordination  of  social  security  systems  (Reg.  No. 
883/2004). The revision of social security coordination rules aims at facilitating the full 
exercise  of  citizens'  mobility  rights  while  at  the  same  time  ensuring  an  equitable 
distribution  of  the  financial  burden  among  the  institutions  of  the  Member  States 
involved. Included in the said proposal of revision is the requirement for Member States 
to certify the information contained in the Portable Documents A1, which constitute the 
information  basis  for  data  on  posted  workers.  Such  provision  may  contribute  to 
improving  the  reliability  of  data  on  the  posting  of  workers  and  the  evidence-basis  for 
policy initiatives at national and EU level. 

The  amendments  to  the  Posting  of  Workers  Directive  complement  the  Internal  Market 
Strategy aimed at enhancing transparency and simplicity of rules for EU businesses. In 
the preparatory consultations led by the Commission with about 300 stakeholders, mostly 
SMEs,  30%  of  companies  providing  services  across  borders  reported  problems  with 
existing  rules  on  posting  of  workers,  such  as  burdensome  administrative  requirements, 
paperwork, fees and registration obligations. The lack of clarity of labour market rules in 
the country of destination is also considered a relevant hindrance to cross-border service 
provision, especially among SME's32. A clarification of certain rules under the Posting of 
Workers  Directive  may  positively  complement  the  Internal  Market  Strategy  to  address 
these concerns. 

4. POLICY OPTIONS 

To  reflect  the  holistic  character  of  the  initiative,  the  policy  options  are  presented  as  a 
compact  set  of  possible  measures.  Each  option  is  nevertheless  to  be  understood  as 
opposed to the baseline scenario. 

32      European  Commission,  Upgrading  the  Single  Market:  more  opportunities  for  people  and  business 

Commission, COM(2015) 550final, 28 October 2015   
21 

 
 
 
                                                 
4.1. Option 1 - No policy change: baseline scenario 

The  Commission  does  not  take  any  initiative  to  revise  the  1996  Posting  of  Workers 
Directive. It monitors and evaluates the transposition of the Enforcement Directive  and 
takes stock of its implementation, while it is left to the case law of the European Court of 
Justice to clarify the legal uncertainties in the EU regulative framework.    

The entry into force of the Enforcement Directive will contribute to a better detection and 
sanction  of  situations  of  fraud  (letter-box  companies,  non-compliance  with  the  rules  of 
the Member State of origin on taxes or social contributions, etc.). 

The  European  Court  of  Justice  could  continue  contributing  to  the  clarification  of  the 
notion  of  "minimum  rates  of  pay",  although  this  is  entirely  dependent  on  the  cases 
brought to the Court. 

This  option  has  the  support  of  nine  Member  States33,  Business  Europe,  UAPME,  the 
European  representations  of 
industries 
(CEEMET), temporary agency work industry (Eurociett, except for issues related to the 
temporary  agency  work  sector,  see  below)  and  the  Confederation  of  the  Managers 
(CEC).  

the  metal,  engineering  and 

technology 

4.2. Option 2: clarification of the composition of minimum rates of pay to codify the 

rulings of the European Court of Justice 

This  option  entails  a  revision  of  the  1996  Directive  with  the  aim  of  codifying  the  case 
law of the European Court of Justice, with particular reference to the case Sähköalojen 
ammattiliitto  ry  (C-396/13).  This  option  implies  some  changes  to  clarify  the  notion  of 
"minimum rates of pay" and its composing elements.  

The revision would define that minimum rates of pay applicable to posted workers may 
include, if set by the law of the Member State: 

•  holiday allowances; 
•  daily  flat-rate  allowances  to  compensate  workers  for  disadvantages  entailed  by 

the posting; and  

•  compensation for travelling time, on equal terms as local workers.  

Moreover, changes would also include the recognition of different pay levels attached to 
the categorisation of employees into pay groups in collective agreements, provided that 
the conditions are universally binding and transparent. 

A fuller list of case law is provided in Annex III.  

33     Bulgaria, Czech Republic, Estonia, Hungary, Lithuania, Latvia, Poland, Slovakia and Romania. 

22 

 
 
 
 
 
 
                                                 
This  option  codifies  case  law,  but  it  would  not  create  any  additional  effect  on  the  pay 
conditions applicable to posted workers with respect to the status quo. By codifying the 
case-law of the Court at a certain point in time, it could prevent its development in future 
cases. 

4.3. Option 3: Changes to the provisions of the Directive regarding pay 

4.3.1 Option 3a: Application of the same mandatory rules on remuneration for posted and 
local workers  

This  option  establishes  a  new  balance  in  working  conditions,  including  remuneration, 
between posted and local workers in the host countries by removing the reference to the 
"minimum"  rates  of  pay  applicable  to  posted  workers.  The  pay  applicable  to  posted 
workers  would  thus  encompass  all  the  elements  of  remuneration  that  are  paid  to  local 
workers  if  they  are  laid  down  by  law  or  by  collective  agreement  which are  generally 
applicable  to  all  similar  undertakings  in  the  geographical  area  and  in  the  profession  or 
industry concerned, or by collective agreements which have been concluded by the most 
representative  employers'  and  labour  organizations  at  national  level  and  which  are 
applied throughout national territory.  In order to ensure that the rules on remuneration 
applicable  to  posted  workers  are  proportionate  and  do  not  impede  the  provision  of 
services, it could be specified that the applicable rules on remuneration should be all the 
law,  regulation  or 
elements  of  remuneration  rendered  mandatory  by  national 
administrative  provision,  collective  agreements  or  arbitration  awards  which  have  been 
declared universally applicable and/or, in the absence of a system for declaring collective 
agreements  or  arbitration  awards  to  be  of  universal  application,  other  collective 
agreements  or  arbitration  awards  within 
the  meaning  of  paragraph  8  second 
subparagraph, in the Member State to whose territory the worker is posted. . 

This option would continue respecting the differences of wage-setting systems in Europe. 
Therefore, EU Member States would be affected differently by the option. 

• 

• 

In Member States in which terms and conditions of employment are set by law or by 
collective agreements not universally applicable (BG, CZ, EE, HR, HU, LV, LT, MT, 
PL, RO, SK, UK) this option would make applicable to posted workers elements of 
remuneration  set  by  law  that  are  not  so  far  expressly  considered  as  part  of  the 
"minimum rates of pay", if any, such as, for instance, of a Christmas allowance or a 
compensation for work during public holidays or night work; 

In  Member  States  with  collective  agreements  made  universally  applicable  to  some 
sectors (IE, DE, LU) or professions (CY) or in all sectors (AT, BE, ES, FI, FR, EL, 
IT, NL, PT, SI), or by nationwide collective agreements in accordance with Article 
3(8) of the Directive (DK, SE), the option would add up to the pay of posted workers 
elements of remuneration set by the relevant collective agreement that are not so far 

23 

 
 
 
 
expressly  considered  as  part  of  the  "minimum  rates  of  pay".  Since  collective 
agreements  tend  to  be  more  detailed  than  statutory  provisions  on  the  elements  of 
remuneration,  the  option  would  have  a  higher  impact  than  in  the  case  above. 
Elements  of  remuneration  to  be  applied  to  posted  workers  are  totally  dependent  on 
the  terms  of  each  collective  agreement  and  may  include  elements  such  as  seniority 
allowances, allowances and supplements for dirty, heavy or dangerous work, 13th/14th 
month bonuses.  

Existing provisions leaving the faculty to Member States to exempt short-term postings 
of less than one month from the application of the rules on pay will not be changed34.  

4.3.2.  Option  3b:  Extension  to  all  sectors  of  the  reference  to  erga  omnes  collective 
agreements  

The option establishes that posted workers must be granted the rates of pay laid down by 
law or by collective agreement made universally applicable in all economic sectors. 

The  modification  would  overcome  the  current  provision  which  establishes  that  the 
application of collective agreements made universally applicable is currently mandatory 
only for the construction sector and optional for all other sectors. This option envisages 
extending the validity of universally-binding collective agreements for posted workers to 
all sectors of the economy. Thus, all collective agreements applicable erga omnes would 
automatically be applicable to posted workers, as well. 

Member States would be differently affected by this provision. 

This provision may have an impact on Member States which give generally binding force 
to  collectively-agreed  pay  rates  in  some  sectors  or  professions  only  (DE,  IE,  LU,  CY). 
These Member States will be encouraged to extend this practice to posted workers in all 
sectors.   

This  option  would  have  no  impact  either  on  Member  States  which  already  extend  the 
validity of collective agreements to all sectors, in line with the faculty given by Article 
3(10) of the 1996 Directive (AT, BE, ES, FR, EL, FI, IE, IT, NL, PT, SI); or on countries 
which do not made collective agreements universally applicable (BG, CZ, EE, HR, HU, 
LV, LT, MT, PL, RO, SK, UK, as well as DK, SE). 

This option would go in the direction supported by seven Member States35, the European 
Trade Union Confederation, and the European Builders Confederation.  

34   Article 3 (3). 
35    Austria, Belgium, France, Germany, Luxembourg, the Netherlands and Sweden.  

24 

 
 
 
 
 
                                                 
4.4. Option 4: Adapted rules for specific situations of posting 

4.4.1. Option 4a: long-term postings  

Option  4a  would  include  a  provision  according  to  which  the  labour  law  of  the  host 
Member States applies to the employment contract of workers posted for longer than 24 
months, from day one of posting.  

The proposal provides that, whenever the anticipated or the effective duration of posting 
exceeds 24 months, the posted worker is deemed to be carrying out his tasks habitually in 
the  host  Member  State.  By  application  of  the  rules  of  the  Rome  I  Regulation36,  the 
employment contract will be governed by the law of the host Member State37. In case of 
replacement  of  a  posted  worker,  this  option  envisages  that  the  cumulative  duration  of 
posting  is  taken  into  account  with  regard  to  workers  who  were  posted  for  at  least  six 
months  (who  would  thus  benefit  from  the  application  of  the  labour  law  of  the  host 
Member State). 

This  provision  would  meet  the  objective  of  aligning  the  Posting  of  Workers  Directive 
with the conditions set by the Regulation on the coordination of social security systems 
as  regards  long-term  posting,  thus  eliminating  a  source  of  inconsistency  in  the  EU 
regulatory framework. 

The  proposal  would  tackle  the  distortions  to  competition  caused  by  the  application  of 
lower-standard wage rules by posting companies in host Member States in the event of 
long-term postings and correct the internal inconsistency of the EU regulatory framework 
as regards the definition of the temporary nature of posting.  

This  provision  would  affect  workers  posted  to  all  Member  States,  provided  that  the 
anticipated or effective duration of posting is longer than 24 months.  

This  option  goes  in  the  direction  of  specifying  the  temporary  duration  of  posting 
advocated by seven Member States, the Economic, Social and Environmental Council of 
France and the Socio-Economic Council of the Netherlands, as well as by the European 
Builders Confederation. The European Builders Confederation and the Economic, Social 
Environmental Council of France also propose that social partners are delegated to set the 
maximum duration of postings at sector level.  

4.4.2. Option 4b: sub-contracting relations 

This option would give Member States the faculty (but not the obligation) to provide that 
the workers of any subcontractor must be granted the same remuneration as the workers 

36   Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the 

law applicable to contractual obligations (Rome I), OJ L 177, 4.7.2008, p. 6. 

37   Or, in case of an express choice of the law applicable, the provisions "that cannot be derogated from 

by agreement" will be applicable. 

25 

 
 
 
                                                 
of the contractor, including the rules laid down in collective agreements not universally 
applicable (for instance, company-level agreements) which are binding to the contractor.  

To avoid discriminating against cross-border service providers, the option would provide 
that Member States can only implement this principle for both national and cross-border 
service providers. 

This  provision  would  add  a  further  level  of  protection  for  posted  workers  in 
subcontracting chains which would constitute a major change with respect to the existing 
situation. The current Directive provides no specific conditions for subcontracting chains. 

While  this  option  may  potentially  be  exercised  by  all  Member  States,  an  essential 
precondition for it to have an impact is that the main contractor transparently applies a 
not  universally  applicable  collective  agreement  at  any  level,  including  company-level 
agreements. The added value of this option would be more evident if applied in Member 
States where collective agreements are not universally applicable or the company is the 
dominant level of wage bargaining, including DK, SE, and the UK, inter alia. The option 
would not affect posted workers who already benefit from more favourable conditions of 
employment in accordance with their individual contract or the rules of the Member State 
of origin. 

4.4.3. Option 4c: Temporary agency workers 

Option  4  includes  the  provision  to  render  mandatory  the  application  to  cross-border 
temporary  agency  workers  of  the  principle  of  equal  treatment  of  temporary  agency 
workers with respect to comparable workers in the user undertaking, set by Article 5 of 
Directive 2008/104/EC. 

This  change  would  improve  the  consistency  between  the  Posting  of  Workers  Directive 
and the Temporary Agency Work Directive by eliminating any source of uncertainty as 
regards the application of the principle of equal treatment to agency workers.  

Currently, it is up to the host Member State to decide whether it applies to these workers 
the general rules on posting (i.e. minimum rates of pay laid down in law or erga omnes 
collective agreements) or the terms and conditions of employment that are applicable to 
temporary agency workers at national level. 

The  option  only  concerns  temporary  agency  workers  assigned  by  temporary  agencies 
established  in  a  different  Member  State  than  the  user  undertaking.  The  main  receiving 
Member States have made use of the possibility to provide for equal treatment between 
national  and  cross-border  temporary  agents.  The  option  would  require  legislative 
amendments in AT, CY, EE, EL, FI, HR, HU, IE, LV, PL, PT, SI, and SK. 

26 

 
 
 
While  no  stakeholder  has  expressed  any  explicit  position  on  this  option,  Eurociett  has 
supported the principle of equal pay for equal work for posted agency workers and the 
application  of  the  full  set  of  regulations  in  the  Temporary  Agency  Work  Directive  to 
posted  agency  workers.  General  favour  for  an  EU  initiative  on  posted  agency  workers 
has  also  been  expressed  by  the  European  Trade  Union  Conference,  the  European 
Builders Confederation, and the Economic, Social and Environmental Council of France.  

4.5. Discarded options 

4.5.1  Communication  by  the  Commission  to  clarify  the  elements  of  remuneration 
applicable to posted workers 

This  option  would  envisage  an  interpretative  Communication  which  builds  on  the  case 
law of the European Court of Justice to clarify the elements of remuneration applicable to 
posted workers across the EU Member States.  

However,  considering  the  wide  range  of  views  on  this  issue,  a  non-legislative  option 
would  have  a  very  limited  impact  and  would  not  attain  the  objectives  of  ensuring  the 
fairness  of  posting  and  of  increasing  legal  clarity  for  companies,  workers  and  public 
authorities.  

4.5.2. Introduction of equal pay for equal work with respect to a reference undertaking 

This option would envisage the introduction of the principle of equal pay for equal work 
at  company  level  by  requiring  that  posted  workers  are  guaranteed  the  terms  and 
conditions of employment covering remuneration that would be applicable if the posted 
workers  were  employed  by  a  reference  undertaking  or,  in  its  absence,  a  similar 
undertaking established in the host Member State. In the case of a subcontracting chain, 
the proposal would imply that the posted workers should receive the same remuneration 
treatment  as  the  employees  of  the  contractor  established  in  the  host  Member  State  of 
which  the  service  provider  is  a  direct  or  an  indirect  subcontractor  (hereafter  the 
"reference undertaking"). 

This proposal may be most effective to attain the objective of providing equal treatment 
to posted workers since it would ensure full equal treatment for posted workers compared 
with  workers  of  the  undertaking  of  reference.  However,  it  risks  failing  the  test  of 
proportionality  and  compatibility  with  the  Internal  Market,  as  it  would  create  more 
obligation  on  companies  posting  workers  from  other  Member  States  than  on  local 
companies  in  the  host  Member  State.  Moreover,  the  complexity  of  the  mechanism  of 
identifying a reference or similar undertaking may increase the risk of judicial litigation 
in the implementation phase.  

27 

 
 
 
4.5.3. Clarification of the application of the Directive to the road transport sector 

This option would consist in defining that the application of the Directive to international 
transport  operations  other  than  cabotage  (which  is  always  covered  by  the  Directive) 
requires  the  existence  of  a  sufficient  link  with  the  host  Member  States.  In  order  to 
provide  a  high  level  of  legal  certainty,  the  criteria  to  determine  the  existence  of  a 
sufficient link should be expressly set out. In any case, given that cabotage falls in any 
case within the scope of the Directive, international transport operations combined with a 
cabotage  operation  should  also  fall  within  the  scope  of  the  Directive.  For  other 
international transport operations, the sufficient link should be expressed in the number 
of transport operations in a given Member State within a reference period (one month, for 
instance)  or  in  any  other  way  that  is  applicable  in  practice  and  enforceable  in  the  host 
Member State. 

This  option  would  be  effective  to  achieve  the  objectives  of  providing  a  more  balanced 
playing field in the transport sector and enhance legal clarity for companies. However, as 
more  evidence  is  required  in  order  to  establish  an  adequate  definition  of  a  "sufficient 
link"  as  regards  to  international  transport  operations,  a  sector-specific  regulation  is 
deemed more suitable to tackle the problem. 

4.5.4. Intra-group posting 

This option would concern workers posted between two establishments or undertakings 
of  the  same  group,  established  in  two  Member  States.  It  would  provide  that  the 
remuneration  of  these  posted  workers  is  not  less  favourable  than  the  remuneration 
granted to workers employed in the establishment or undertaking where the workers has 
been posted occupying comparable positions. 

This  option  would  aim  at  aligning  the  protection  granted  to  EU  nationals  and  third-
country  nationals  in  case  of  intra-corporate  posting  by  extending  equal  treatment  to 
posted  workers,  in  line  with  Directive  2014/66/EU.  However,  the  option  has  been 
discarded because it would be an obstacle to the free provision of services which would 
not be justified and proportionate.  

The  Court  has  recognised  that  the  protection  of  workers  is  an  overriding  objective  of 
general interest that can justify obstacles to the provision of services on condition that it 
is  appropriate  for  ensuring  the  attainment  of  the  legitimate  objective  or  objectives 
pursued  and  that  it  proportionate,  i.e.,  that  it  does  not  go  beyond  what  is  necessary  to 
achieve  the  objective.  This  option  cannot  be  seen  as  necessary  for  the  protection  of 
posted  workers  and  would,  in  any  case,  go  beyond  what  is  necessary  to  reach  the 
objective. 

28 

 
 
 
5. ANALYSIS OF THE IMPACT OF THE POLICY OPTIONS  

This  section  summarises  the  economic  and  social  impacts  of  each  policy  option.  No 
environmental  impact  has  been  identified.  The  analysis  includes  an  evaluation  of  the 
specific impact of the proposals on small and medium enterprises (SME's).  

As noted in section 2.1, one fundamental caveat to the analysis of the impact is the scarce 
availability  of  data.  To  partially  compensate  for  this,  a  multiplicity  of  sources  of 
qualitative evidence has been used, based on stakeholders' assessment of the situation in 
particular sectors and workplaces. Where possible, national data sources have been used 
to complement EU data, in the understanding that national sources are not representative 
of  other  Member  States.  Finally,  proxies  have  extensively  been  used  to  simulate  the 
impact  of  the  proposed  provisions  on  remuneration  levels,  as  well  as  on  the  economic 
value of posting. 

5.1. Effectiveness 

The  analysis  of  effectiveness  addresses  the  degree  to  which  the  options  achieve  the 
specific  objectives  of  the  revision  of  the  Directive:  create  a  level  playing  field  for 
companies  based  on  equal  rules  on  wages;  and  improve  the  clarity  of  EU  rules  on 
posting,  including  by  eliminating  inconsistencies  between  different  pieces  of  EU 
legislation. 

5.1.1. Create a level playing field for companies based on equal rules on wages 

Under options 1 and 2, differentials in rules on wages with posted workers may narrow 
as a consequence of the recent case law of the European Court of Justice, most notably 
the case Sähköalojen ammattiliitto ry (C-396/13), establishing that some allowances may 
be  part  of  the  pay  of  posted  workers  and  that  pay  groups  set  by  universally  binding 
collective agreements should be respected for posted workers. The impact is expected to 
be significant especially in the construction sector, where collective agreements are a key 
source to determine the wage level of posted workers, either because they are declared 
universally binding or because they are signed by the most representative employers' and 
workers'  associations  in  accordance  with  Article  3(8)  of  the  Directive  (see  table  1).  In 
those countries, the respect of pay groups may imply some wage raises, if –as reported by 
some stakeholders – employers tend to apply only the lowest pay group, under the status 
quo38. However, posted workers will still be entitled to minimum pay rates only, while 
the application of the Court's case law would have no impact on sectors and in countries 
where  collective  agreements  are  not  binding.  Therefore,  the  structural  differentiation  in 
pay rates and the resulting distortion of competitive conditions will persist. 

38    See section 5.2 

29 

 
 
 
 
                                                 
Table 1. Sources of minimum rates of pay for posting of workers in the EU 28 
Statutory 
minimum wage 

Binding collective agreements 
All sectors 

 Nationwide 
agreements (Art. 
3(8) 

Selected sectors 
or professions 

BG,  CZ,  EE,  HR, 
HU,  LV,  LT,  MT, 
PL, RO, SK, UK 

DE, IE, LU, CY 

AT,  BE,  ES,  FR,  EL, 
FL, IT, NL, PT, SI 

DK, SE 

Note:  In  DE,  the  sector-specific  wage  minima  apply  in  fourteen  sectors  (waste  management,  training 
services,  construction  industry,  roofing  trade,  electrical  trades,  industrial  cleaning  services,  money  and 
valuable  services,  scaffolding  erection,  agriculture,  forestry  and  horticulture,  painting  and  decorating 
trades,  care  provision,  slaughter  and  meat  processing,  stonemason  and  stone  sculptor,  the  textile  and 
clothing industry, laundry services and temporary agency work sector). In LU, collective agreements are 
universally  binding  in  the  main  nine  sectors  of  posting  (building  and  associated  trades,  transport,  road 
haulage and road passenger transport; cleaning of buildings; security guarding; brewing; printing; banking 
and insurance; social sector and care; temporary agency work). In IE, Employment Regulation Orders with 
statutory  effects  are  currently  in  place  in  the  catering,  contract  cleaning,  hairdressing,  hotels,  retail  and 
trades  and  in  the  security  industry  sectors.  In  CY,  minimum  wages  have  statutory  effects  for  some 
professions  only,  namely  shop  assistants,  clerks,  child-care  workers,  personal  care  workers,  security 
guards, and cleaners at business/corporate premises. 

Option  3a  and  3b  would  establish  equal  rules  on  remuneration  and  extend  the 
effectiveness  of  universally  binding  collective  agreements  to  workers  posted  in  all 
economic sectors. By overcoming the "minimum rates of pay" standard set by the current 
Directive,  this  option would achieve the  utmost degree  of effectiveness  in  attaining  the 
objective of levelling the playing field as regards wage rules. Through the extension of 
the  validity  of  universally  binding  collective  agreements  to  all  sectors  beyond  the 
construction  sector,  which  is  currently  not  mandatory,  this  option  reinforces  the  wage-
setting instruments to determine the rates of pay of posted workers. In several Member 
States,  including  among  the  largest  recipients,  the  provision  would  have  no  impact  as 
collective  agreements  are  already  enforced  erga  omnes  in  all  sectors  (see  table  1).  An 
impact may be exerted on DE, IE, LU and CY. These Member States will need to extend 
to posted workers those wage rates at sector- or professional level which they decide to 
declare universally binding in all sectors, while this is currently compulsory only for the 
construction  sector.  Obviously,  the  decision  on  whether  or  not  to  make  a  collective 
agreement  legally  binding  will  continue  to  rest  with  the  Member  States.  This  option 
would  not  affect  Member  States  in  which  collective  agreements  are  not  universally 
binding  and  only  the  statutory  minimum  wage  is  applicable  to  posted  workers,  unless 
they regulate to this effect. Likewise, this option would not have any effect on the wage-
setting  regimes  of  DK  and  SE  in  those  sectors where nationwide collective agreements 
do not set any remuneration standard.  

30 

 
 
 
 
 
 
 
 
 
 
 
 
Option  4  would  reinforce  the  attainment  of  the  objective  of  a  more  balanced  level 
playing  field  by  filling  specific  legislative  gaps.  In  particular,  the  equal  treatment  rule 
would eliminate competition on wage rules among subcontractors in a production chain. 
As regards to long-term posting, the application of the equal treatment principle from day 
one  would  reduce  differentials  in  the  working  conditions  of  long-term  posted  workers 
and contribute to reducing wage differentials with local workers.  The clarification of the 
interplay  between  the  posting  of  workers  and  the  temporary  agency  workers  directives 
would improve the level playing field by aligning legislation on the working conditions 
of posted temporary agency workers across the EU. 

Figure 4. Summary of the impact of options on wages 

Wage conditions 

Options 1 & 2 

Option 3 

Option 4 

Equal treatment 

of 

the 

Suppression 
reference to minimum 
Universal 
collective 
agreement  applicable  in  all 
sectors 
Universal 
collective 
agreement,  minimum  level 
for 
and 
construction 
optional for other sectors 

Optional 
agency workers 

for 

temporary 

Optional 
agency workers 

for 

temporary 

Temporary agency, Long-
term  
Optional / subcontracting 

All the Member States  

AT, BE, CY, DE, ES, FR, 
EL,  FI,  IE,  IT,  LU,  NL, 
PT, SI 

AT, BE, CY*, DE**, ES, 
FR,  EL,  FI,  IE***,  IT, 
LU****, NL, PT, SI 

AT,  BE,  CY,  DE*,  ES, 
FR,  EL,  FI,  IE**,  IT, 
LU***, NL, PT, SI 

Legal Minimum wage 

BG,  CZ,  EE,  HR,  HU, 
LV,  LT,  MT,  PL,  RO, 
SK, UK 

BG,  CZ,  EE,  HR,  HU, 
LV,  LT,  MT,  PL,  RO, 
SK, UK 

BG,  CZ,  EE,  HR,  HU, 
LV,  LT,  MT,  PL,  RO, 
SK, UK 

Collective  agreements  (art. 
3(8)) 
* for 6 professions ** in 14 sectors  *** in 6 sectors **** in 9 sectors 

SE, DK 

SE, DK 

SE, DK 

5.1.2. Improve the clarity of EU rules on posting 

Under option 1, legal clarification is left to the pronouncements of the European Court of 
Justice upon the occurrence of judicial litigation on selected aspects. As shown in Annex 
III, the Court's jurisprudence has clarified the concept and composition of pay on several 
occasions.  However,  delegating  finding  a  solution  for  the  problems  identified  to  the 
Court  implies  the  permanence  of  uncertainty  for  companies  and  workers  until  the 
occurrence of a case of judicial litigation. The risk of further judicial litigation on issues 
of pay, among other aspects, and the related costs for businesses and workers, cannot be 
prevented through non-action. 

Option  2  brings  some  added  value  with  respect  to  option  1.  By  modifying  the  EU 
Directive  to  reflect  the  rulings  of  the  Court  of  Justice,  this  option  would  increase  the 
clarity  of  the  main  EU  legislative  source.  However,  it  would  not  tackle  the  identified 
legal situation with temporary agency work, subcontracting, long-term posting, and intra-

31 

 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
group transfers; nor  would this option prevent  further  cases  of judicial litigation on the 
components of pay emerging again in the future. 

Options  3a  and  3b  contribute  to  improving  clarity  on  the  constituent  elements  of 
remuneration  and  to  reducing  existing  cross-sector  differences  in  the  mandatory 
application  of  collective  agreements.  First,  by  equalising  the  rules  on  remuneration 
between posted and local workers, this option would clear any room for interpretation on 
the  constituent  elements  of  the  wage  to  be  applied  to  posted  workers.  It  would  thus 
contribute to minimising the risk of further judicial litigation on this very point. Second, 
the  option  would  increase  the  certainty  that  the  minimum  pay  set  by  all  universally 
binding  collective  agreements  apply  to  posted  workers,  regardless  of  their  sector  of 
employment.  Within  the  scope  of  EU  competences,  however,  the  provision  would  not 
harmonise the set of instruments applicable to posted workers across the Member States, 
nor the diverse structure of collective agreements, including the definition of pay groups 
and bonuses and allowances, which remain a prerogative of the social partners in national 
wage-setting practices.  

Option  4  contributes  to  legal  clarity  by  intervening  on  specific  situations  by  removing 
mismatches  with  other  pieces  of  EU  legislation.  The  thrust  of  option  4  reaches  out  to 
posted  employees  in  subcontracting  chains,  in  line  with  the  attention  conferred  by  the 
2014  Enforcement  Directive.  The  advantage  of  this  option  is  that  it  would  extend  the 
applicability of company-level agreements in Denmark and Sweden where these are the 
predominant  source  of  wage-setting,  thus  filling  a  legislative  gap  in  the  existing 
Directive.  Further  contributions  to  the  legal  clarity  stem  from  aligning  pieces  of  EU 
legislation  in  the  case  of  long-term  posting  (with  Regulation  No.  883/2004)  and 
temporary  agency  work  (with  Directive  2008/104/EC),  by  establishing  similar  rules 
between posted workers and third-country nationals. 

5.2. Overall economic impacts 

The  economic  impact  of  the  options  is  assessed  against  the  objectives  of  promoting  a 
level playing field in the context of the Internal Market based on the application of equal 
rules on wages, and of improving legal clarity for companies.  

Limited labour market and economic significance 

The economic context of posting of workers is one of a rather limited significance in the 
national  labour  markets,  with  the  number  of  postings  accounting  for  0.7%  of  total  EU 
employment, descending to 0.4% if only unique posted workers are counted and further 
down  to  only  0.2%  in  full-time  equivalents39.  Overall,  the  employment  impact  of  new 

39    Postings make up 0.7% of total EU employment, but the figure includes single workers being posted 
multiple  times  during  the  same  year.  Therefore,  unique  persons  are  normally  the  more  comparable 
figure but only a few member States provide data. See Pacolet and De Wispelaere (2015) 

32 

 
 
 
                                                 
legislation  may  be  circumscribed  to  specific  segments  of  the  European  labour  market, 
including  in  those  Member  States  where  posting  represents  significant  shares  of  the 
domestic  employment  population,  such  as  Slovenia  (11.5%)  and  Luxembourg  (20.7%) 
from  a  sending  perspective40,  and  Belgium  (3.6%)  and  Luxembourg  (9%)  from  a 
receiving perspective.  

The provision of cross-border services through posting of workers may be thus assumed 
to have a limited economic impact on sending or receiving countries. In the absence of 
any data on the turnover or added value gained through posting of workers, figures can 
only be reconstructed via proxies. To take the representative construction sector, cross-
border services represent an overall small share of total turnover in the sector (calculated 
as the ratio of turnover from export activities on total turnover), amounting to just 0.7% 
of total turnover in the EU28 (figure 11, Annex II)41. Exceptions are SI, EE, DK and LU, 
where the cross-border trade intensity makes up about 5% of total turnover. It should be 
noticed  however  that  not  all  cross-border  construction  services  are  carried  out  through 
posting of workers (e.g. they could be carried out by hiring local workforce).  

Two posting models 

The wage rules set by the Directive impact differently on the economic context in which 
posting  takes  place.  Posted  workers  tend  to  support  the  provision  of  labour-intensive 
services in the context of low value chains, including construction, transports and some 
personal services. Labour cost differentials give a competitive edge to posting companies 
which thus tend to strictly apply the minimum rate of pay required in the host country. 
Wage cost competition is particularly relevant as posted workers support the provision of 
domestically-provided  services  which  cannot  be  delocalised.  On  the  other  hand,  posted 
workers are also employed in the context of the provision of high-productivity services, 
such  as  financial  services  or  of  particularly  skilled  labour  in  high  value  chains.  In  line 
with the possibilities given by the Directive, this segment of posted workers tends to be 
paid  higher  wages  than  the  minimum,  or  at  the  level  of  the  home  country  if  this  has 
higher wage standards than the receiving country42. 

Wage-based competition does not exhaust the phenomenon of posting of workers in the 
EU. Empirical evidence points to the fact that, while labour cost differentials remain one 
important  driver  of  posting43,  there  is  no  strict  correlation  between  price  level  or  tax 
wedge differentials and the volume of sent posted workers (figure 12 and 13, Annex II). 

40   Taking into account unique persons posted, however, the labour market impact of sent posted workers 
decreases  to  4.2%  of  total  employment  in  Slovenia  and  4.7%  in  Luxembourg  (Pacolet  and  De 
Wispelaere 2015). As noted in footnote (39), this implies that single workers are posted multiple times 
during the same year.   

41   See also, European Commission, A Single Market Strategy for Europe - Analysis and Evidence,    
        SWD(2015) 202 final, 28 October 2015. 
42   ISMERI Europe (2011) and FGB (2015). 
43   ISMERI Europe (2011). 

33 

 
 
 
                                                 
This is because in high value chains skills shortages or factors such as specialisation or 
quality  of  the  service  play  an  important  role  in  the  cross-border  provision  of  services. 
Wage cost differentials may be estimated to be the driving factor of flows from low- to 
high-wage countries, which represented one third of the total stock in 2014, and part of 
the comparative advantage for a further 15% of workers being posted from medium- to 
high-wage  countries (figure 5). However, the remaining 50%  of  postings  flow between 
countries with similar wage levels, where it can be assumed that the search for adequate 
skills  rather  than  cost  reductions  constitute  the  main  trigger  for  businesses  to  look  for 
cross-border  service  providers.  In  this  case,  the  wage  rules  set  by  the  Directive  are  not 
reported by the stakeholders to create any particular problem. 

Figure 5. Flow of postings between EU Member States divided by wage group (high, 
medium, low), % on total posting, year 2014 

Notes:  EMPL  calculations.  High-wage  (above  EU  average  wage,  year  2012):  DK,  LU,  SE,  FI,  BE,  NL, 
DE, FR, AT, IT, IE; Medium-wage (around EU average, 2012): CY, ES, EL, MT, SI, PT; Low-wage (less 
than half of the EU average wage): HR, CZ, EE, PL, SK, HU, LV, LT, RO, BG; no data on the destination 
of postings from CY, DK, and the UK. 

Posting  of  workers  tends  to  be  pro-cyclical,  satisfying  demand  for  services  in  more 
dynamic economies and contracting in the event of a downturn, which is reflected in the 
correlation  between  the  number  of  postings  and  overall  economic  growth  (figure  15, 
Annex  II).  However,  the  possibility  for  posting  companies  to  wage  costs  through  the 
current  rules  promotes  the  deepening  of  specialisation  of  low-wage  countries  in  the 
provision  of  labour-intensive  services  in  low  value  chains,  most  notably  construction 
services,  to  high-wage  countries.  Figure  6  shows  that  70%  of  postings  from  low-wage 
member States occur in industry and construction sectors, as compared to about 50% and 
40% of postings from medium- and high-wage countries, respectively.  Posting rules thus 
favour  a  strong  role  of  wage-based  competition  in  these  services  markets.  Minimum-

34 

 
 
 
 
 
 
standard  rules  on  wages  add  up  to  differentials  in  labour  and  income  taxation  between 
Member States and generate significant gaps in total labour costs for employers44. 

Figure 6. Posted workers sent in 2014, breakdown by economic sector and group of 
countries 

Source:  EMPL  calculations  on  Pacolet  and  De Wispelaere  (2015);  High-wage  (above  EU  average wage, 
year 2012): DK, LU, SE, FI, BE, NL, DE, FR, AT, IT, IE; Medium-wage (around EU average, 2012): CY, 
ES, EL, MT, SI, PT; Low-wage (less than half of the EU average wage): HR, CZ, EE, PL, SK, HU, LV, 
LT, RO, BG; no data on the destination of postings from CY, DK, and the UK. 

Concentrated impact on receiving country  
On  the  receiving  end,  current  rules  favour  flows  of  posted  workers  into  a  set  of  high-
wage economies, with  DE, FR, BE, AT, NL receiving 81% of workers posted from low-
wage countries, and a few economic sectors, most notably the construction sector (figure 
15). In this sector, posted workers represent up to 20% of domestic employment in BE, 
and over 10% in AT and LU (figure 6, Annex II) 

The  labour  market  impact  of  the  in-flow  of  workers  to  which  lower  pay  rules  apply  in 
high-wage  Member  States  is  not  univocal,  although  data  limitation  constrains  in-depth 
analysis. There is some evidence that posted workers complement domestic employment 
in  the  whole  economy  by  filling  job  vacancies  for  skills  or  positions  which  are  not 

44   While nominal social security contribution rates or corporate or income tax rates may not differ widely 
(see figures 16-19 in Annex II), the labour cost gap is more relevant the lower the reference wage.    

35 

 
 
 
 
 
 
 
 
                                                 
present  in  the  domestic  labour  market45.  However,  while  this  seems  to  be  the  case  of 
workers posted in high value chains, a closer analysis of posting in low value chains in a 
representative receiving Member State such as Belgium shows that potential substitution 
effects have been at play. Figure 7 shows the share of posted workers in the construction 
sector increasing since 2010 with overall domestic construction employment decreasing 
at the same time.  

Figure 7. Belgium, trends in employment, self-employment and posted workers, all 
economy and construction sector, 2010-2014.  

Source: Pacolet and De Wispelaere (2016) calculations on LIMOSA and BNB data 

In other Member States, domestic employment growth remains subdued with respect to 
the growth of received posted workers. In this perspective, posted workers risk crowding 
out especially national low-skilled jobs with which they compete in the receiving market 
(figure 20, Annex II).    

Under option 1 (baseline scenario) and largely under option 2, unchanged rules would 
be likely to provide the context for the growth of posting of workers at a steady pace with 
respect to recent years in line with economic growth. 

45   Della Pellegrina, L. and Saraceno, M. (2013), "Posted workers: complements or substitutes for local 
employment?  Empirical  evidence  from  the  EU",  Paolo  Baffi  Centre  Research  Paper  n.  136 
(http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2287841). 

36 

 
 
 
 
 
 
 
 
                                                 
Option 3a and option 3b are expected to have an impact on raising the wage level of 
posted  workers,  particularly  those  posted  from  low-wage,  and  to  a  lesser  extent  from 
medium-wage Member States to high-wage Member States.  

The  application  of  equal  rules  on  wages  (option  3a)  would  imply  that  posted  workers 
would  be  entitled  to  all  elements  of  remuneration  laid  down  by  law  or  by  universally 
applicable  collective  agreement.  The  quantification  of  possible  wage  increases  is  very 
difficult, as bonuses and allowances strongly vary across the member States and sectoral 
collective agreement (see Annex VI). On the basis of the distribution displayed in figure 
5  for  the  year  2014,  option  3a  can  be  estimated  to  affect  between  around  700,000  to 
900,000 workers being posted from low- to high-wage countries, and to a lesser extent, 
from medium- to high-wage countries which are assumed to receive the minimum rate of 
pay  under  the  current  scenario.  The  elimination  of  the  reference  to  "minimum  rates  of 
pay" will facilitate the application of the Directive to the industrial relations systems of 
DK  and  SE  by  overcoming  the  problems  related  to  the  definition  of  "minima"  which 
were among the causes of the dispute in the Laval case. Nevertheless, option 3a would 
affect  workers  posted  to  DK  and  SE  only  to  the  extent  that  nationwide  collective 
agreements  between  the  most  representative  social  partners  set  remuneration  standards, 
in  the  absence  of  both  a  statutory  minimum  wage  and  universally  applicable  collective 
agreements. The option would not affect workers being posted from high- to lower-wage 
countries, as they are reported to usually be paid the same wage levels as in their home 
Member State.  

Option 3b may potentially affect only workers posted from lower-wage countries to the 
Member  States  which  currently  give  statutory  effect  to  collective  agreements  only  in  a 
selected  number  of  sectors,  most  notably  DE,  IE  and  LU.  The  potential  beneficiaries 
would  be  up  to  300,000  workers46.  Workers  in  sectors  currently  excluded  from  the 
application  of  sectoral  minimum  pay  may  benefit  from  the  increased  protection  of 
applicable agreements.   

By  increasing  the  reach  of  equal  rules  on  wages  to  workers  posted  from  low-wage 
countries,  the  main  economic  impact  of  options  3a  and  3b  would  principally  be  on 
labour-intensive services in low value chains but will remain limited. From the receiving 
perspective, local companies in high-wage Member States, especially cost-sensitive small 
and medium enterprises (SME's), would benefit from a more balanced level playing field 
vis-à-vis  posting  companies  from  lower-wage  countries,  thus  increasing  their  cost 
competitiveness.  However,  it  should  be  emphasised  that  equal  rules  on  wages  would 
translate  neither  into  equal  nominal  wages  between  posted  and  local  workers,  nor  into 
equal  levels  of  labour  costs.  While  the  current  gap  in  wage  outcomes  would  narrow 

46   The number overlaps with workers affected by option 3a. It refers to workers posted from lower wage 
countries to DE, IE, LU and CY. However, available data do not allow to disaggregating information 
to the level of detail necessary to know how many of those 300,000 are already covered by sectoral 
collective agreements. 

37 

 
 
 
                                                 
down, pay structures would remain differentiated more in line with wage distribution in 
the domestic labour market of the receiving Member State. Furthermore, social security 
and  other  tax  differentials  would  still  generate  an  advantage  on  total  labour  costs  for 
companies established in countries with lower nominal rates than those in the receiving 
one.  The  simulation  carried  out  in  Annex  IV  shows  that  companies  from  high-tax 
Member  States  (e.g.  BE  or  FR)  would  still  be  at  a  cost  disadvantage  with  respect  to 
posting companies from low-tax countries, even in an extreme situation of equalisation of 
wage costs (which is part of the discarded option)47. 

For  the  same  reasons,  from  a  sending  perspective,  the  cost  competitiveness  of  posting 
companies in labour-intensive sectors established in low-wage Member States would be 
reduced with respect to the baseline scenario, but it would not be eliminated by options 
3a  and  3b.  Tax  differentials  would  still  play  a  role  in  determining  lower  total  labour 
costs. On the one hand, stricter rules on wages may have an adverse impact especially on 
SME's providing cross-border services in sectors such as constructions with the risk of a 
possible  loss  of  business  opportunities.  On  the  other  hand,  option  3a  would  have  the 
advantage of enhancing legal clarity as concerns the elements of remuneration applicable 
to posted workers, which are currently a possible object of dispute and legal action. On a 
more  macro-level,  higher  wage  costs  may  drive  companies  established  in  low-wage 
Member States to invest in non-cost factors to open markets, such  as  the skills of their 
workforce and service innovation. In the long-run, the effect of equal rules on wages may 
contribute to shifting economic specialisation towards higher value chains. 

Within the Internal Market, consumers of construction services may possibly be affected 
by price increases. However, the effect on prices would be unlikely to be automatic, as 
the limited increase of wage costs may simply reduce the mark-ups of construction firms 
which are estimated to be relatively higher in sending countries such as CZ, PL, SK and 
PT48.    

Lower-wage service providers to DK and SE would not be affected by option 3a and 3b. 
At the same time, posting of workers in more capital-intensive sectors such as high-end 
manufacturing,  telecommunications  and  technological  services  are  expected  to  be  less 
affected by the modification of the Directive, to the extent that posting in these sectors is 
mainly motivated by the search for adequate skills which are not present in the domestic 
market.  

The application of equal treatment envisaged by option 4a and 4b is expected to have a 
strong impact on levelling the playing field in cases of long-term postings and posting in 

47      K.  Maslauskaite,  Posted  workers  in  the  EU:  State  of  Play  and  regulatory  evolution,  Notre  Europe, 
(http://www.institutdelors.eu/media/postedworkers-maslauskaite-ne-jdi-

Policy  paper  107,  2014 
mar14.pdf?pdf=ok).  

48      See  Molnar,  M.  and  Bottini,  N.  (2010),  How  Large  are  Competitive  Pressures  in  Services  Markets? 
Estimation  of  Mark-Ups  for  Selected  OECD  countries,  OECD  Journal:  Economic  Studies  (2010), 
http://www.oecd.org/eco/reform/49850122.pdf  

38 

 
 
 
                                                 
the  context  of  subcontracting,  albeit  on  a  limited  segment  of  posting.  They  also 
contribute  to  improving  legal  clarity  though  fine-tuning  different  pieces  of  EU 
legislation, thus avoiding the risk of judicial litigation.   

Option  4a  would  add  the  reduction  of  differentials  in  working  conditions,  including 
equal rules on wages, to the alignment of labour taxation costs envisaged for long-term 
postings  by  Regulation  883/2004  on  social  security  coordination.  The  lack  of  data  as 
regards long-term postings does not allow the estimation of how many workers would be 
affected  by  this  option49.  However,  available  data  suggest  that  long-term  postings  may 
represent a small share of total postings. The average duration of posting was 103 days in 
2014, with a maximum of 257 days of workers posted from Ireland (see figure 8, Annex 
II)50. Sample data from Austria find that 4-5% of total postings to that country are longer 
than a year51, while the maximum length of a registered posting in France amounted to 
1,288 days in a temporary agency work enterprise in 2012 but only 553 days in 201352. 
In  the  construction  sector,  the  maximum  duration  of  postings  is  reported  to  be  seldom 
longer  than  6  months53.  Therefore,  it  can  be  concluded  that,  while  substantial,  the 
changes  introduced  by  option  4a  would  be  circumscribed  to  a  limited  group  of  posted 
workers. 

The  impact  of  this  option  on  the  reduction  of  labour  cost  differentials  would  be  more 
significant  with  respect  to  long-term  postings  from  low-wage  and  high-wage  countries. 
The  margins  for  competition  on  labour  costs  for  sending  companies  from  lower-wage 
countries, in particular SME's, in low value chains would be reduced, as an effect of the 
application of equal rules on wages, as well as of the labour law provisions of the host 
Member  State.  On  the  other  hand,  local  companies  in  receiving  Member  States  would 
increase  their  cost  competitiveness  on  more  ambitious  service  provisions,  and  shift  the 
determining competitiveness conditions on non-cost factors.    

Option 4b would be optional for Member States to introduce in order to reduce the scope 
of wage cost competition in sub-contracting chains. The relevant feature of this option is 
that it provides the possibility to apply the rules on remuneration applicable to the main 
contractor  to  any  subcontractor,  including  rules  stemming  from  non-universally 
applicable collective agreements, for instance at company level, if the main contractor is 

49   As recalled above, PD A1 forms are not issued for postings up to 24 months, as beyond that duration 

posted workers are socially insured in the host country. 

50    J. Pacolet and F. De Wispelaere, Posting of Workers. Report on A1 portable document issued in 2014, 

December 2015. 

51  L&R  Sozialforschung,  Entwicklungen 

im  Bereich  des  Lohndumpings,  Wien,  May  2014 

(http://www.lrsocialresearch.at/sozialforschung/archiv-de/591-
Entwicklungen+im+Bereich+des+Lohndumpings). 

52   DGT, Analyse des declarations de detachement des enterprises prestataires de services en France en 

2013, November 2014 (http://travail-emploi.gouv.fr/IMG/pdf/Bilan_PSI_2013.pdf). 

53      According  to  data  on  Germany  provided  by  SOKA  Bau,  90%  of  postings  in  the  construction  sector 
lasted  less  than  six  months,  FGB  (2015),  Country  Report,  Germany.  See  also  European  Builders' 
Confederation, Open Letter on Posting of Workers, 5 October 2015. 

39 

 
 
 
                                                 
bound  by  one.  Therefore,  this  option  may  have  an  effect  on  all  wage-setting  systems, 
including DK and SE, as well as Member States with full wage decentralisation, such as 
the UK. Despite the fact that sub-contracting is reported to be a wide-spread practice in a 
number of sectors, including construction, cleaning, and manufacturing industries, there 
is  no  data  which  allows  to  estimating  the  number  of  workers  involved.  According  to 
Eurostat figures, in 2011, the relevance of payments to subcontractors in the construction 
sector amounted to over 30% of turnover in the UK, SK, and CZ and to less than 15% in 
RO, PT, DK, and IT (figure 11, Annex II). Based on the assumption that subcontracting 
mainly involves low-skilled workers in low-wage and labour intensive sectors54, it could 
be estimated that the potential range of workers affected may fall in the range of up to 
676,300  postings  in  2014,  including  workers  posted  in  sectors  such  as  construction, 
agriculture,  hunting  and  fishing  sector,  accommodation  and  food  service  activities,  and 
freight transport by road sector.  

The application of equal treatment between posted workers in subcontracting chains with 
respect to the wage rules applicable to workers at the main contractor companies would 
have the effect of strongly compressing wage differentiation between the main contractor 
and its sub-contractors, including both local and foreign ones. Option 4b – proposed to be 
facultative  for  Member  States  to  apply  –  would  reduce  the  cost  competitiveness 
especially  of  SME's  posting  workers  from  low-  to  higher-wage  countries  and  result  in 
some  losses  of  business  opportunities  for  companies  placing  their  competitiveness  on 
cost  factors.  However,  option  4b  would  still  entail  the  payment  of  the  social  security 
contributions  at  the  rate  of  the  country  of  origin,  thus  preserving  some  room  of 
manoeuvre  on  total  labour  costs  for  sending  firms.  While  equalising  the  level  playing 
field would benefit domestic firms, especially SME's, in higher-wage countries vis-à-vis 
low-wage  competitors,  the  provision  would  reduce  room  for  cost  competitiveness  for 
local  companies,  as  well.  Final  consumer  prices  may  be  pushed  upwards  to  the  extent 
that  the  main  contractor  would  have  a  reduced  leverage  to  optimise  total  service  costs 
through competition between sub-contractors.  

Option  4c  targets  a  very  limited  group  of  posted  workers.  It  would  promote  the 
adaptation  of  rules  on  equal  treatment  for  posted  temporary  agency  workers  in  thirteen 
Member  States  (figure  8).  However,  while  these  Member  States  are  the  destination  of 
7.5%  of  total  posted  workers  in  2014,  with  Austria  and  Finland  making  up  the  lion's 
share of this figure, only Portugal has a relevant share of workers posted to the country 
through temporary work agencies (11.4%). Based on 2014 figures, this option may affect 
up to 1,000 workers posted to the thirteen Member States requiring legislative adaptation. 
In  general,  the  regulation  may  have  a  cost-increasing  impact  to  the  extent  that  unclear 
rules  on  the  treatment  of  posted  agency  workers  in  these  Member  States  lead  to  lower 
working  conditions  standards  for  these  workers.    However,  the  impact  would  be 

54  Jorens,  Y.,  Peters,  and  Houwerzijl,  M.  (2012),  Study  on  the  protection  of  workers'  rights  in 
subcontracting processes in the European Union, commissioned by DG EMPL - VC/2011/0015. 

40 

 
 
 
                                                 
concentrated in countries where the agency work sector makes up low (between 4-5%) to 
very low (less than 2%) shares of total in-flowing postings55.  

Figure 8. % Share of temporary agency workers on total posting received, 2014 

Source: EMPL, on the basis of data provided by Pacolet and De Wispelaere (2015) 

5.3. Overall social impacts 

The social impact of the initiative is measured against the objectives of fair conditions of 
competition  among  companies  based  on  equal  rules  on  wages  applying  to  posted  and 
local workers in the host country; and of providing more certain rules to posted workers 
and their representatives both in sending and receiving countries.  

Under  option  1  (status  quo)  and,  to  a  large  extent,  option  2,  unequal  rules  on  wages 
generate  a  segmentation  between  posted  and  local  workers,  affecting  in  particular 
workers  posted  from  low-  to  higher-wage  countries  in  labour-intensive  sectors.  To 
provide the same services, posted workers are entitled to minimum rates of pay, while the 
unclear  status  of  pay  increases  according  to  skill  or  qualification  levels  are  reported  to 
create  significant  gaps  in  pay  with  equivalent  domestic  workers56.    Wage  differentials 
between posted and local workers are reported to vary across member States and sectors, 
from  10  up  to  50%  less.  Unequal  rules  on wages may have an  adverse impact  on  low-
skilled  workers  in  labour-intensive  sectors  of  high-wage  receiving  Member  States, 
through  downward  wage  competition  at  the  local  level  and  displacement  of  job 
opportunities. On the other hand, wage differentials have a relatively lower impact on the 
overall welfare of workers posted from low-wage to higher-wage countries to the extent 
that  minimum  pay  levels  in  high-wage  countries  exceed  average  take-home  pay  in  the 

55    Pacolet and De Wispelaere, 2015.  
56   As noted already, no issue is identified with workers being posted from high to lower-wage Member 
States as these tend to be paid the same wage levels as in the home country (FGB 2015). The Directive 
allows for more favourable wage treatment. See also Cremers (2011), In search of cheap labour.  

41 

 
 
 
 
 
                                                 
home  country.  As  an  illustrative  example,  in  2010,  the  level  of  the  statutory  minimum 
wage  in  Belgium  (EUR  1,415)  was  almost  twice  as  high  as  the  average  wage  of  a 
construction worker in Poland (EUR 752). Moreover, as shown in the simulation carried 
out in Annex IV, lower social security and income tax rates in the home Member State – 
where taxes are paid - may contribute to smoothing differentials in net earnings between 
posted and local workers, although gaps remain significant.  

The  implementation  of  the  Enforcement  Directive  and  of  the  rulings  of  the  European 
Court  of  Justice  may  contribute  to  mitigating  differentials,  including  through  more 
effective inspection systems. However, any smoothing effect would not be an intentional 
consequence of clearer and more effective EU legislation either on the clarification of the 
composition  of  pay  for  posted  workers,  or  on  the  application  of  rules  across  different 
economic sectors.  

Option 2 is not expected to produce substantive changes with respect to the status quo. 
The  codification  of  the  case  law  into  the  Directive  may  advance  some  steps  on  legal 
clarity, as individual workers may access information about their entitlements about pay 
from one single and clearer legal text. However, while in practical terms the rulings of 
the  European  Court  of  Justice  are  already  applicable,  they  only  tackle  part  of  the 
problems identified and do not provide an effective solution to unequal rules on wages, 
and their social consequences. 

Option  3a  and  3b  are  expected  to  have  a  relevant  impact  both  on  reducing  wage 
differentials  between  posted  and  local  workers  and  on  clarifying  the  entitlements  of 
posted workers across sectors.  

While,  as  mentioned  in  section  5.2,  these  options  do  not  aim  at  equal  wage  outcomes, 
they  would  contribute  to  clarifying  the  entitlement  of  posted  workers  to  all  the 
remuneration  elements  envisaged  by  universally  applicable  collective  agreements  or 
agreements  signed  by  the  most  representative  organisations,  including  bonuses  and 
allowances,  such  as  seniority  pay  or  the  Christmas  bonus,  inter  alia,  on  equal  terms  as 
local  workers57.  Option  3a  is  expected  to  exert  some  effects  also  on  Member  States 
where  rates  of  pay  are  set  through  statutory  regulation  insofar  as  elements  of  pay 
mandated by law to local workers (e.g. the 13th month bonus) would become applicable 
to posted workers.  

Option 3b may have a beneficial effect for the social protection of workers posted from 
low-wage  to  higher-wage  countries  in  sectors  where  collective  agreements  are  not 
universally  applicable.  In  DE,  IE,  LU,  the  statutory  minimum  wage  represents  the 
minimum rate of pay in sectors in which sectoral minimum wages are not given statutory 

57   FGB, Wage Study, 2015; see Annex VI for a preliminary reconstruction of the elements of wage which 

would become applicable to posted workers under option 3. 

42 

 
 
 
                                                 
effects.  In  these  Member  States,  option  3b  would  promote  the  extension  of  sectoral 
minima to all sectors. 

On  the  other  hand,  both  options  entail  the  risk  of  an  inflow  of  dependent  posted  work 
into  self-employment  as  a  possible  unintended  consequence  of  more  equal  wage 
standards.  As collective agreements  do not apply to the self-employed, companies  may 
find it more advantageous to recruit on independent work arrangements, falling outside 
the  protection  scope  of  the  Directive.  In  2014,  registered  posted  self-employed  were 
roughly  8%  of  total  postings,  at  fairly  stable  levels  with  respect  to  previous  years. 
Nevertheless, bogus or false self-employment is reported to be a problematic issue as far 
as posting is concerned, even though part of the problem source for the phenomenon rests 
with labour market segmentation and enforcement of labour law in the sending Member 
States58.       

Options 4a would enhance the social protection of workers posted for long-term periods 
with an impact on the remuneration of posted workers similar to that of option 3. 

Options  4b  and  4c  would  have  a  strong  beneficial  impact  on  workers  posted  in  the 
context of subcontracting chains or via temporary work agencies. The promotion of the 
principle  of  equal  treatment  aims  at  raising  the  protection  especially  of  workers  posted 
from  low-wage  Member  States  by  conferring  the  entitlement  to  the  remuneration 
conditions  set  by  company-level  agreements.  Especially  in  the  case  of  posted  agency 
workers, options 4c would increase the level of protection in the thirteen countries where 
the  principle  of  equal  treatment  is  formally  not  in  force.    However,  as  discussed  in 
section  5.2,  little  data  availability  limits  the  possibility  to  quantify  the  impact  of  these 
options.  Stronger  enforcement  tools  and  coordination  provided  for  by  the  Enforcement 
Directive would contribute to greater effectiveness of these options on the ground. 

5.4. Impact on SME's 

The  envisaged  initiative  does  not  increase  the  administrative  burden  or  costs  to  cross-
border  service  providers  and  to  SME's  in  particular.  The  issues  concerning  the 
administrative  requirements  and  control  measures  that  Member  States  can  impose  on 
cross-border service providers was dealt with by the Enforcement Directive (Article 9). 
None of the options considered here has any impact on these aspects. 

SMEs especially in receiving high-wage Member State would benefit from this initiative, 
as  a  level  playing  field  would  enhance  their  capacity  to  compete  on  non-wage  factors. 
This  beneficial  effect  is  stressed  by  some  SME  stakeholder,  as  well59.  In  turn,  possible 
increases in wage costs may have some adverse effects especially on SMEs basing their 

58   See, for instance, Cremers, In search of cheap labour, 2010; LO (Swedish Trade Union Confederation). 
Beyond  dreams  and  belief.  Pictures  of  posting  in  practice  and  the  need  for  an  amended  Posting  of 
Workers Directive, 2015 

59   European Builders Confederation, Open Letter to Marianne Thyssen, 5 October 2015. 

43 

 
 
 
                                                 
competitiveness  on  wage  costs,  which  is  reflected  in  the  concerns  of  other  European 
stakeholder associations about the opportunity to revise the Directive60. 

The costs of access to information to the conditions of remuneration applicable to posted 
workers in different receiving Member States would not be substantially modified by any 
of  the  considered  options  with  respect  to  the  status  quo.  However,  option  3a  would 
contribute  to  facilitating  the  application  of  collective  agreements,  as  these  would  be 
applicable  in  their  entirety,  with  respect  to  the  current  difficulty  of  identifying  the 
components of "minimum rates of pay". 

In any case, it should be noted that Article 5 of the Enforcement Directive requires that 
Member States ensure that the information on the terms and conditions of  employment 
which  are  to  be  applied  and  complied  with  by  service  providers  is  made  generally 
available free of charge in a clear, transparent, comprehensive and easily accessible way 
in a single national website on posting.  

5.5. Implementation costs 

The revision of the 1996 Directive would not bear any implementation cost. In fact, all 
implementation  costs  will  be  included  in  the  transposition  of  the  2014  Enforcement 
Directive, due by 18 June 2016. 

In  line  with  the  dispositions  of  the  Enforcement  Directive,  the  Commission  will  assess 
and evaluate  the  implementation and explore the enforcement mechanisms put  in  place 
by the Member States. 

Some  options  could  diminish  administrative  costs,  by  improving  legal  clarity  and 
reducing the frequency of judicial litigation. 

5.6. Budgetary Impact 

No extra budgetary impact is envisaged for the implementation of the proposed revision. 
As  noted  above,  the  transposition  of  the  Enforcement  Directive  should  comprehend  all 
implementation costs. 

However,  the  proposed  changes  may  have  an  impact  on  public  budgets  in  the  form  of 
extra social security revenues for sending Member States, resulting from the increase of 
the wage basis on which social security charges are levied – especially for posting flows 
from  low-  to  higher-wage  countries.  It  is  estimated  that  social  security  revenues 
represent, on average, 0.7% of total monthly revenues and 0.2% of total yearly revenues 

60    UAPME, reply on Mobility package consultation, 25 July 2015. 

44 

 
 
 
 
                                                 
 
for  sending  Member  States,  with  higher  values  (up  to  an  estimated  4.9%  in  SI)  in 
countries  where  sent  posted  workers  represent  a  strong  share  of  the  domestic 
workforce61.  A  marginal  wage  increase  for  posted  workers  may  further  benefit  social 
security  revenues  in  sending  Member  States,  even  though  there  is  a  risk  that  possible 
losses of business opportunities in receiving countries may render the effect neutral. 

6. OVERALL COMPARISON OF THE OPTIONS 

The  table  below  synthetizes  the  main  impacts  of  the  options  for  different  groups  of 
stakeholders. 

Table 3. Impact on main groups and stakeholders 
OPTIONS 

1 

2 

Posted 
workers 
Local workers 
(host country) 

0 

0 

0 

0 

no 

3a 
reference 
to minima 
equal 
(+) 
conditions 
(++) 
less 
downward 
wage 
pressure 

3b 
Reference 
to CA 
equal 
(+) 
conditions 
(++) 
less 
downward 
wage 
pressure   

equal 

long-

4a. 
term 
postings 
(++) 
treatment  
(++) 
competition 
on 
standards 

labour 

no 

4b. 
contracting 

sub-

4c. temporary 
Agency work 

equal 

(++) 
wage 
++  less  wage 
pressure 
on 
sub-
contractors 

equal 

less 

(++) 
treatment 
++ 
competition 
on 
standards 

labour 

Posting 
undertakings 

0 

0 

(-)  Higher 
wage costs 

(-)  Higher 
wage costs 

(-)  Higher 
wage costs 

Higher 

(--) 
wage costs 

Local 
undertakings 
(host country) 

Public 
authorities 

Social 
Partners 

0 

0 

0 

0 

0 

0 

level 

(+) 
playing 
field 
on 
wage rules 
(+)  budget 
impact 

level 

(++) 
playing 
field 
on 
wage rules 
(0)  

(++) 
level 
playing  field 
on 
labour 
costs 
(+) 
impact 

budget 

(+)  respect 
of 
IR 
systems 

(+)  respect 
of 
IR 
systems 

(0)  

level 
(++) 
playing 
field 
on wage costs 

(0) 
budget 
impact  /  adm 
cost 
(0)  

clearer 
to  be 

clearer 
to  be 

(0/+) 
rules 
applied 
(0/+) 
rules 
applied 

(+) 
simplification 

(0) 

The options are compared in terms of effectiveness in reaching the objectives, in social 
and economic impact and coherence. Based on the impact analysis presented above, the 
following comparison of options can be drawn. 

61   De Wispelaere, F. and Pacolet, J. (2015), Impact of social security coordination and income taxation 
law  applicable  to  posted  workers  on  welfare  states:  from  tax  competition  towards  upward  social 
convergence, KU  Leuven working  paper, November  2015  (https://hiva.kuleuven.be/nl/docs/working-
papers/HIVA_WP2015_01.pdf ) 

45 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
Table 4. Comparison of options 
OPTIONS 

2 

1 

3a 

3b 

long-

4a. 
term 
postings 

sub-
4b. 
contracting 

4c. temp. 
Agency 
work 

Ensure fair wage 
conditions to posted 
workers 
Ensure a level playing 
field for companies 
Improve legal clarity 

Social impact 

Economic impact 
Budgetary impact 
Cost effectiveness 

0 

0 

0 

0 

0 
0 
0 

Objectives 

++ 

++ 

++ 

+ 

+ 

+ 

Impact 
+ 

+ 

0 

0 

+ 

0 

++ 

++ 

++ 

++ 

0 
0 
+/0 

0/- 
+/0 
++/+ 

0/- 
+/0 
+ 

- 
+/0 
++/+ 

++ 

++ 

+/0 

++ 

-- 
+/0 
+/0 

++ 

++ 

++ 

+ 

0/- 
0 
++ 

Option 2, codifying the case law of the European Court of Justice, has a modest impact 
on improving legal clarity of the EU regulatory framework, but has no value added with 
respect to the status quo. 

Options 3a and 3b have an effective impact on attaining the policy objectives with an 
expected high social impact and a valuable economic impact on contributing to a more 
balanced  level  playing  field.  The  risk  of  adverse  impact  on  the  competitiveness  of 
posting  undertakings  is  rather  limited.  It  does  not  address  specific  problems  with  the 
effectiveness of the Directive on regulating particular cases of posting. 

Options 4a, 4b, and 4c attain the objectives of legal clarity with a view on the current 
mismatches  between  the  Directive  and  different  pieces  of  EU  legislation  and  a  level 
playing  field  for  companies  as  far  as  specific  problems  in  the  context  of  posting  are 
concerned.  Option  4b  may  have  a  strong  economic  impact  on  subcontracting  chains. 
While  effective  in  attaining  these  objectives,  these  options  alone  are  not  sufficient  to 
comprehensively address the general problems identified with the existing Directive. 

A  wider  variety  of  options  (communication  by  the  Commission,  equal  pay,  specific 
intervention  on  the  road  transport  sector)  have  been  considered  and  discarded,  as  they 
have been deemed inadequate or disproportionate to tackle the identified problems. 

6.1 The preferred options 

In  light  of  the  comparison  of  the  options,  the  preferred  options  are  a  combination 
between options 3 and 4. Option 3 revises the general regulatory framework of posting of 
workers, while option 4 tackles specific problems related to the posting of workers.  

46 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
As for option 3, the introduction of equal rules on the remuneration of posted workers, 
coupled with the extension of the validity of universally binding collective agreements to 
posted  workers  in  all  economic  sectors,  addresses  the  identified  problems  of 
differentiated wage treatment of posted workers with respect to local workers in the host 
country, and the unfair competition advantage of posting undertakings based on different 
wage  rules  than  those  applicable  to  local  companies.  By  removing  the  reference  to 
"minimum" rates of pay applicable to posted workers, all the elements of remuneration 
legally  applicable  to  local  workers  in  host  Member  States  become  applicable  to  posted 
workers, as well. Universally binding collective agreements are automatically applicable 
to  posted  workers  in  all  economic  sectors,  not  only  in  the  construction  sector  and 
optionally in other sectors, as currently is the case. 

Option  4  integrates  the  principles  set  by  option  3  through  the  introduction  of  equal 
treatment  in  a  number  of  problematic  issues  which  are  currently  unclear  because  of 
mismatches between different pieces of EU legislation. By establishing equal treatment 
on working conditions with respect to local workers in host countries in cases of postings 
lasting  over  24  months,  the  Posting  of  Workers  Directive  aligns  with  the  regulation  of 
social security, thus filling a long-standing gap in EU legislation. The applicability of the 
remuneration  conditions  set  in  company-level  collective  agreements  of  the  main 
contractor to all undertakings in a sub-contracting chain tackle the vulnerability of posted 
workers  in  subcontracting  situations  in  line  with  the  2014  Enforcement  Directive.  By 
compulsory application to posted workers of the same rules set in the Temporary Agency 
Work  Directive,  a  legislative  mismatch  is  corrected  for  the  benefit  of  legal  clarity  and 
improved consistency of the EU regulatory framework.  

Table 5. Summary of expected impact of the selected options 

Content 

 Impact 

3a  Minimum  rates  of  pay  replaced  by 
a reference to remuneration. 

Member States affected: AT, BE, DK, ES, FI, FR, EL, IT, 
NL, PT, SE, SI 

(Inclusion  of  additional  elements 
the  remuneration  such  as 
into 
seniority  allowance,  13th,  14th 
month bonuses) 

3b  Extension  of 

to 
the 
extended  collective  agreements  to 
all sectors (not only construction) 

reference 

Impact  on  workers:  additional  remuneration  elements  for 
about 700,000 to 900,000 posted workers  

Impact  on  companies:  more  level  playing  field  in 
receiving 
on  wage 
limited 
competitiveness of sending companies 

countries, 

impact 

Impact  on  budget:  higher  social  security  revenues  for 
sending Member States. 

Member States affected: DE, LU, IE, CY 

Impact on workers: higher pay rates for about 300,000 
posted workers affected (2014 data); 

Impact on companies: more level playing field in 
receiving countries, limited impact on wage 
competitiveness of sending companies. 

Impact on budget: higher social security revenues for 

47 

 
 
 
 
 
4a  Application  of  labour  law  of  the 
host  MS  for  posting  with  duration 
higher than 24 months 

4b 

Possibility 
treatment in subcontracting chains 

introduce 

to 

equal 

sending Member States 

Member States affected: all 

Impact on workers: no clear data, estimated marginal 
share of total posted workers; 

Impact on companies: level playing field in the receiving 
countries, reduced margins of competition on labour costs. 

Impact on budget: none 

Member States affected: all (optional) 

Impact on workers: no clear data. Equal pay rates with 
respect to workers at main contractor estimated up to 
700,000 workers; 

Impact on companies: level playing field in receiving 
countries, significant impact on wage competitiveness of 
sending companies 

Impact on budget: none 

4c 

Equal 
treatment 
temporary agency workers  

for 

posted 

Member States affected: AT, CY, EE, EL, FI, HR, HU, IE, 
LV, PL, PT, SI, SK; 

Same  conditions  for  cross-border 
and  national 
temporary  agency 
workers 

Impact on workers: up to 1,000 posted agency workers to 
MS requiring legislative adaptation; 

Impact on companies: higher pay rates for sending 
companies in line with work agencies in the receiving 
country 

Impact on budget: none 

7. EVALUATION AND MONITORING 

Monitoring and evaluation arrangements for the preferred options consist of a number of 
inter-related processes. 

7.1. Monitoring 

The  Commission  will  monitor  the  transposition  of  the  Enforcement  Directive  and  its 
implementation  in  the  Member  States.  No  later  than  June  2019,  the  Commission  is 
expected  to  submit  a  report  on  the  application  and  implementation  of  the  Enforcement 
Directive. Further implementation reports by the Commission will include aspects related 
to the revised Posting of Workers Directive in the future. 

The  Expert  Committee  on  Posting  of  Workers  (ECPW)  regularly  scrutinises  and 
discusses  various  problems  related  to  the  Directive.  Albeit  not  constituting  a  proper 

48 

 
 
 
 
 
 
 
 
 
 
 
monitoring committee, the ECPW can give an important contribution to the transposition 
of the revised Directive and to the analysis of its impact over the years.  

The improvement of the information contained in the Portable Documents A1 – which is 
included  in  the  revision  of  the  Regulation  on  social  security  coordination  presented  by 
the Commission in the 2015 Mobility Package – will be key to enhancing the reliability 
of the information basis to monitor the dynamics of the posting of workers phenomenon. 
On the basis of evidence provided by the PD A1 forms, the Commission will continue to 
produce yearly reports on the flows of posted workers throughout the EU Member States, 
to  be  presented  and  discussed  in  the  ECPW.  At  the  same  time,  the  possible  set-up  by 
some Member States of more extensive control systems and data bases concerning the in-
flow  of  posted  workers  in  their  countries,  as  provided  for  by  the  2014  Enforcement 
Directive,  will  further  contribute  to  monitor  aspects  of  the  revised  Directive  for  which 
data reliability has been found problematic. The newly established European Platform to 
enhance cooperation in tackling undeclared work will contribute with its work to monitor 
abuse of the posting of workers' rules. 

The Commission will also promote independent studies, including in collaboration with 
the social partners and the EU sectoral dialogue, to survey sector-specific aspects of the 
directive, including the application of wage rules and of other working conditions such as 
working time, and duration of postings.      

7.2. Evaluation 

The Commission will proceed to a fully-fledged evaluation of the impact of the revised 
Directive  five  years  after  the  deadline  for  transposition.  The  evaluation  report  will 
include an assessment of whether the operational objectives of the revised Directive have 
been  reached.  A  particular  focus  will  be  cast  on  the  application  of  the  "equal  pay  for 
equal work" principle, its economic effects on the competitiveness of sending enterprises 
and  flow  of  posted  workers,  and  sector-specific  issues  in  the  temporary  agency  work 
industry  and  road  transport  sector,  among  others.  This  evaluation  report  will  be 
developed  by  the  Commission  with  the  assistance  of  external  experts,  on  the  basis  of 
terms of reference developed by the Commission services. Stakeholders will be informed 
of and consulted to comment on the terms of reference through the ECPW, and they will 
also  be  regularly  informed  of  the  progress  of  the  evaluation  and  its  findings.  The 
evaluation report will be made public.  

49 

 
 
 
ANNEX I.  -  SUMMARY OF THE POSITIONS EXPRESSED BY THE MEMBER STATES AND 
THE STAKEHOLDERS 

The targeted review of the 1996 Posting of Workers Directive has been the object of a 
roundtable with the social partners and non-governmental organisations, which was held 
on 22 July 2015 to identify the main remaining problems beyond the transposition of the 
Enforcement  Directive  and  discuss  the  possible  necessity  for  further  EU  action.  While 
the  messages  conveyed  by  the  social  partners  and  other  stakeholders'  organisations  on 
that occasion addressed the main issues of the Directive in a more general way, the social 
partners  and  some  Member  States  followed  up  with  written  position  papers  with  more 
precise policy preferences later on.  

Austria,  Belgium,  France,  Germany,  Luxembourg,  the  Netherlands  and  Sweden  have 
claimed support for a modernisation of the Posting of Workers Directive establishing the 
principle  of  'equal  pay  for  equal  work  in  the  same  place'62.  These  Member  States 
suggested  that  the  provisions  regarding  working  and  social  conditions,  most  notably 
including  remuneration, applicable to posted workers should be amended and widened; 
the set-up of a maximum duration limit to postings should be considered, with particular 
regard to aligning provisions with the EU Regulation on coordination of social security; 
the applicable conditions to the road transport sector should be clarified; the information 
basis  contained  in  the  Portable  Documents  A1  should  be  strengthened  in  its  reliability; 
cross-border cooperation between inspection services should be improved; and a study on 
the  extent  and  impact  of  bogus  self-employment  in  the  context  of  posting  should  be 
promoted. 

In  a  separate  opinion,  the  French  authorities  have  proposed  to  reinforce  the  core  rights 
granted  to  posted  workers  with  a  view  to  including  an  obligation  for  the  posting 
employer to pay for lodging expenses and any other cost incurred by the worker in the 
context of posting; to establish a minimum and a maximum duration period for postings; 
to tackle double postings of temporary agency workers; to extend the mechanism of joint 
liability  currently  applying  to  the  construction  sector  to  all  other  sectors;  to  clarify  the 
application  of  the  Directive  to  the  road  transport  sector,  most  notably  as  regards  the 
mechanism  of  joint  liability;  and  to  establish  an  EU-level  structure  of  cooperation  and 
coordination  of  labour  inspectorates  and  authorities  to  facilitate  controls  on  postings.63 
On top of this, the French Economic, Social and Environmental Committee proposed to 
delegate to the European social partners at sectoral level the establishment of a maximum 
duration cap on postings; to limit the possibilities to post a worker to the Member State in 

62 Letter to Marianne Thyssen, Luxembourg 18 June 2015. 
63 Note des Autorités Françaises, 30 September 2015. 

50 

 
 
 
 
                                                 
which  he  or  she  habitually  resides  and  to  establish  a  minimum  of  three  months  of 
affiliation to the social security system of a country before a worker can be posted.64 

The  Socio-Economic  Council  of  the  Netherlands  also  has  advised  to  consider  the 
introduction of an explicit limit to the temporariness of posting, as well as to clarify other 
concepts such as wage elements and untaxed allowances, and other  applicable working 
conditions to posted workers.65    

The  European  Parliament  is  discussing  a  draft  Resolution66  which  calls  to  addressing 
regulatory gaps with a view to implementing the principle of "equal pay and equal social 
protection for the same work". The draft Resolution proposes to extend the legal basis of 
the  Posting  of  Workers  Directive  beyond  the  freedom  of  movement  and  to  provide 
services,  to  the  social  policy  chapter  (Articles  151  and  153  TFEU).  While  the  draft 
Resolution  posits  that  posted  workers  and  local  workers  should  receive  equal  pay, 
including  by  taking  into  consideration  the  role  of  social  security  contributions  and 
posting-specific  bonuses,  it  also  calls  to  limiting  the  maximum  period  of  posting  and 
excluding  temporary  work  agencies  from  the scope  of  the  Directive.  Specific  measures 
are also advocated for the transport industry, in particular to clarify the rules on cabotage. 

Favourable  to  revising  the  Directive  have  also  been  the  European  Trade  Union 
Confederation  (ETUC),  the  European  Builders  Confederation  (EBC)  representing  the 
SME  employers  in  the  construction  sector,  the  EU  Trade  Union  of  Building  and 
Woodworkers  (EFBWW),  the  Dutch  Trade  Union  Confederation  (FNV),  the  Estonian 
Trade  Union  Confederation  and  the  Council  of  Nordic  Trade  Unions.  The  EU  social 
partners in the construction industry have also asked the Commission to assess a number 
of issues related to the Directive. 

The  ETUC  has  expressed  support  for  a  revision  to  ensure  the  principle  of  equal 
treatment67. In this context, however, the ETUC called the Commission upon respecting 
the principle of autonomy of the social partners to negotiate wages and the plurality of 
national  industrial  relation  systems,  by  establishing  provisions  on  the  constituent 
elements  of  pay  and  having  the  effect  of  favouring  company-level  over  sector-level 
collective  agreements68.  In  turn,  the  ETUC  advised  that  the  Commission  reviews 
provisions regarding the requirement of a previous period of employment in the country 
of  origin  to  be  especially  applied  to  posted  temporary  agency  workers,  new  rules  on 

64 CESE, Les Travailleurs detaches, 2015-24. 
65 Sociaal-Economische Raad (SER), Arbeidsmigratie, Advies 14/09, December 2014 
66  Report  on  Social  dumping  in  the  European  Union  (2015/2255  (INI),  Committee  on  Employment  and 

Social Affairs. 

67  ETUC,  Paris  Manifesto,  Stand  Up  in  solidarity  for  quality  jobs,  workers'  rights  and  a  fair  society  in 
Europe, 1 October 2015. 
68  ETUC, Targeted review of the Posting of Workers, ETUC contribution, 28 August 2015. 

51 

 
 
 
                                                 
combatting  bogus  self-employment,  and  better  enforcement  measures,  in  particular 
inspections and more reliable social security forms69.   

The  European  Builders  Confederation  (EBC),  representing  SMEs  in  the  construction 
sector, has expressed support for reopening the 1996 Directive in line with the principle 
"equal  pay  for  equal  work  in  the  same  place".  Concerning  this  directive,  the  EBC 
proposes  to  extend  the  legal  basis  of  the  Posting  of  Workers  directive  in  line  with  the 
social  security  regulation  and  the  services  directive;  to  delegate  the  sector-level  social 
partners  with  setting  a  temporary  limit  to  postings;  to  tighten  rules  on  the  activities  of 
temporary  work  agencies  in  the  construction  sector,  with  particular  reference  to  the 
provision of information as regards their activities; and to tackle the issue of bogus self-
employment.  EBC  also  proposes  the  creation  of  a  common  database  of  social  security 
forms. 

The Council of Nordic Trade Unions (NFS) has welcomed the prospect of a revision of 
the Directive calling for the close involvement of the social partners and the governments 
of  the  Nordic  countries  (Denmark,  Finland,  Iceland,  Norway,  Sweden)  in  its 
preparation70. The NFS has agreed with the principle of equal pay for equal work, which 
it considers the foundation of collective bargaining in the Nordic countries and a means 
to avoid wage competition and discrimination. However, it takes stock of the ambiguity 
introduced by the European Court  of  Justice  as regards to the conformity of the  labour 
market model of the Nordic countries with the Posting of Workers directive.  

In  a  joint  position,  the  EU  social  partners  of  the  construction  sector  (the  European 
Federation  of  Building  and  Woodworkers,  EFBWW,  and  the  European  Construction 
Industry Federation, FIEC) have asked the Commission, among other things, to define a 
maximum  duration  of  posting,  elaborate  a  EU  harmonised  module  for  preliminary 
declaration  for  posting,  and  provide  legal  clarity  as  regards  to  the  position  of  posted 
temporary agency workers in the light of the Temporary Agency Work Directive71. In a 
single letter, the EFBWW has encouraged the Commission to provide the instruments for 
the principle of "equal pay for equal work in the same workplace" to be widely applied72.  

ECAS (European Citizens' Action Service) has stressed the need to align the definition of 
posted  worker  between  the  Posting  of  Workers  Directive  and  the  Regulation  on  social 
security coordination.  

69  ETUC, letter to Marianne Thyssen, Brussels 22 July 2015. 
70  Council  of  Nordic  Trade  Unions,  Labour  Mobility  package  –  Revision  of  the  Posting  of  Workers 

Directive, 20 January 2016. 

71   EFBWW and FIEC, Joint Position. Towards a level playing field in the European construction sector. 

Joint proposals of the EU sectoral social partners, 27 February 2015. The 

72    EFBWW, Observations regarding the proposed EU Labour Mobility Package, 29 February 2016. 

52 

 
 
 
                                                 
On  the  other  hand,  nine  other  Member  States,  Business  Europe,  UAPME  (representing 
European  small  and  medium  enterprises),  Eurociett  (representing  the  temporary  work 
agency  industry),  CEEMET  (representing  employers  of  the  metal,  engineering  and 
technology-based  industries),  Gesamtmetall  (the  employer  association  of  the  German 
metalworking  industry)  and  the  Association  of  Industrial  Employers  of  Sweden,  the 
Confederation  of  Industry  of  the  Czech  Republic,  and  the  Industry  Associations  of 
Denmark, Finland, Iceland, Norway and Sweden have expressed their opposition to the 
review of the Directive, at this stage.  

In a joint letter, Bulgaria, Czech Republic, Estonia, Hungary, Lithuania, Latvia, Poland, 
Slovakia and Rumania have argued that a review of the 1996 Directive is premature and 
should be postponed after the deadline for the transposition of the Enforcement Directive 
has elapsed and its effects carefully evaluated and assessed. These Member States have 
expressed  the  concern  that  the  principle  of  equal  pay  for  equal  work  in  the  same  place 
may  be  incompatible  with  the  single  market,  as  pay  rate  differences  constitute  one 
legitimate element of competitive advantage for service providers. Moreover, they have 
taken the position that posted workers should remain under the legislation of the sending 
Member State for social security purposes, and no measure should thus be taken to revise 
the linkages between the posting of workers and the social security coordination in this 
sense.  Finally,  they  called  upon  the  Commission  to  considering  action  only  insofar  as 
evidence  is  rigorously  analysed  concerning  the  challenges  and  specificities  of  cross-
border service provision.  

Similarly,  BUSINESS  EUROPE73  has  considered  a  priority  to  ensure  the  correct 
transposition of the Enforcement Directive as it deems that most of the challenges with 
posting of workers are related to poor enforcement and lack of controls in the Member 
States.  Business  Europe  has  also  suggested  that  the  reopening  of  the  Directive  may 
reduce  posting  activities  because  of  the  uncertainty  that  the  negotiation  would  create 
among  companies.  While  supportive  of  measures  to  increase  the  reliability  and 
transparency of Portable Documents, Business Europe has considered that the principle 
of "equal pay for equal work" would create an undue interference of the EU in the free 
determination of wage levels by the social partners and recalls that a level playing field 
for competition is created by a large body of EU law addressing various aspects of labour 
law. These arguments were also shared by the representatives of employers of the metal, 
engineering  and  technology  industries  (CEEMET)74,  by  the  Confederation  of  European 
Managers  (CEC),  by  the  Swedish  Association  of  Industrial  Employers,  the  Industry 
Associations  of  Denmark,  Finland,  Iceland,  Norway  and  Sweden,  and  by  the 
Confederation of Industry of the Czech Republic.  

73  Business Europe, letter to Marianne Thyssen, 5 October 2015. 
74 CEEMET, Position against a Revision of Directive 96/71/EC concerning the posting of workers in the 

framewoek of the provision of services, 5 October 2015. 

53 

 
 
 
                                                 
GESAMTMETALL  has  also  called  the  Commission  to  clarifying  the  practical 
implications of the principle of "equal pay", as well as to taking into account the possible 
impact  of  this  principle  on  the  free  provision  of  cross-border  services,  with  notable 
reference to the competitiveness of undertakings established in countries with low wage 
standards. 

Likewise, UAPME has taken the view that the Posting of Workers Directive should not 
be  modified  before  the  transposition  of  the  Enforcement  Directive  is  completed  and  its 
effects evaluated.  

EUROCIETT75,  representing  the  temporary  work  agency  industry,  is  of  the  view  that 
there  is  no  need  for  reopening  the  1996  Directive.  With  particular  reference  to  the 
temporary  agency  work  sector,  Eurociett  maintains  that  the  2008  Temporary  Agency 
Work Directive already provides for the implementation of the equal pay for equal work 
principle in all the Member States. While it argues that information access for companies 
and workers and data collection on the industry should be enhanced, it calls for a more 
in-depth legal analysis of the interplay between the directives on Posting of Workers and 
on Temporary Agency Workers. As the latter already provides for the implementation of 
the principle of equal pay for equal work in the host countries, Eurociett sees no need to 
modify the Posting of Workers Directive. 

75  Eurociett, Posting of agency workers and the cross-border provision of services, 9 November 2015. 

54 

 
 
 
                                                 
ANNEX II. - NUMBERS AND FIGURES ON POSTING OF WORKERS 

The posting of workers in the EU has steadily picked up since 2010 on an average 
annual rate of increase of 9.6%, to reach over 1.9 million postings in 2014. Overall, 
the number of posted workers, calculated as number of portable documents A1 (PD A1) 
issued, has increased by 44.4%, between 2010 and 2014 (figure 1)76. Although data are 
not fully comparable due to changes in the social security registration system in 2010, the 
number  of  postings  has  rebounded  after  a  downward  break  in  the  first  dip  of  the 
economic  crisis  between  2007  and  2009.  Currently,  the  total  figure  is  composed  of 
postings to a single Member State (on average 75% of total postings in 2014), postings to 
two or more Member States (about 22% of the total) and postings in the framework of 
common agreements between Member States (2%) and of flight or cabin crew members 
(0.05%).  

Figure  1.  Number  of  social  security  certificates  for  posted  workers  issued  to  a  single 
and to two or more Member States (in millions), 2007-2014  

Source: DG EMPL calculations on PD A1s data. 
Note:  From  2010,  the  PD  A1  form  has  replaced  the  previous  E101  form.  Data  are  not  fully 
comparable, because the E101 form could be issued for posting periods up to 12 months – to be 
possibly prolonged for another 12 months, whereas under PD A1 rules the maximum duration of 
postings is 24 months.  

The  following  analysis  is  mainly  based  on  EU  social  security  data  measuring 
postings to single Member States. This is motivated by the facts that EU data are the 
only  comparable  source  of  information  across  all  Member  States;  and  that  data  on 

76    Workers  posted  from  and  to  EFTA  countries  (Iceland,  Liechtenstein,  Norway  and  Switzerland)  are 

included in the calculation, as flows always involve EU countries.  

55 

 
 
 
 
 
                                                 
postings  to  two  or  more  Member  States  do  not  include  any  information  regarding  the 
destination  of  workers  and  therefore  cannot  be  fully  matched  with  information  on 
receiving  Member  States77.  However,  for  the  sake  of  completeness  of  information, 
specific data will be presented when relevant.  

Variation  in  the  number  of  posted  workers  has  been  very  different  across  the  EU 
between 2010 and 2014, also reflecting the different impacts of the crisis. The highest 
increases  in  sending  countries  were  recorded  in  Greece,  Slovakia  Lithuania,  and 
Bulgaria–  with  more  than  double  as  many  PD  A1  issued  in  2014  than  in  2010  –  and 
especially  in  Slovenia  –  where  the  number  of  posted  workers  sent  more  than  tripled 
during  the  same  period,  although  the  absolute  numbers  remain  low.  In  turn,  Sweden, 
Germany,  Belgium,  Slovenia,  Austria  and,  especially,  Estonia  recorded  the  highest 
increases  among  receiving  countries,  while  the  receipt  of  posted  workers  substantially 
dropped in Cyprus, Greece, Spain and Bulgaria.  

The  contribution  of  posting  to  adjusting  labour  demand  within  the  EU  partly 
explains  the  fact  that  the  number  of  postings  has  increased  faster  than  expected. 
According  to  simulations,  the  number  of  postings  was  projected  to  increase  to  1.07 
million  by  2013  and  reach  up  to  1.12  million  in  2015.  Actual  data  show  that  this 
projection has been underestimated by over 700,000 postings for each of the years 2013 
and 201478. In particular, the flows of posted workers have been directed to the Member 
States with relatively better economic performances during the crisis, such as Germany. 
Posting  has  thus  proved  to  be  also  an  important  mechanism  to  adjust  labour  demand 
within the EU.  

EU  15  Member  States  remain  the  main  destination  of  posted  workers.  In  absolute 
numbers,  Germany  (414,200),  France  (190,850)  and  Belgium  (159,750)  have  been  the 
Member States receiving the highest number of postings in 2014. In proportion to overall 
domestic employment, however, the receipt of posted workers had the strongest impact 
on Luxembourg (9%), Belgium (3.6%) and Austria (2.5%), while they make up around 
1% of employed persons in Germany, the Netherlands, and France. 

All Member  States  are  senders of posted workers, but  their  incidence on  domestic 
labour  markets  varies  across  the  Member  States.  Poland  (266,700),  Germany 
(232,800)  and  France  (119,700)  record  the  highest  absolute  number  of  postings  sent. 
However, while sent posted workers account for 1.7% of the total employed population 

77    It  should  be  noticed  that  data  also  include  self-employed  workers  working  temporarily  in  another 
Member States, who do not fall into the scope of the Posting of Workers Directive. The self-employed 
make  up  on  average  8%  of  total  postings,  with  a  higher  importance  in  Germany,  Italy,  the  Czech 
Republic and Slovakia. 

78      ISMERI  Europe  (2012),  p.  81  projected  postings  to  be  1.07  in  2013  and  about  1.1  million  in  2014, 
whereas  actual  numbers  proved  to  be,  respectively  1.74  and  1.92  million.  See  also  European 
Commission  (2012)  Impact  Assessment.  Revision  of  the  legislative  framework  on  the  posting  of 
workers in the context of the provision of services. Partie II, SWD (2012) 63 final.  

56 

 
 
 
 
                                                 
in  Poland,  they  make  up  about  0.6%  in  France  and  Germany.  In  fact,  among  sending 
countries,  posted  workers  have  a  stronger  significance  especially  in  Luxembourg  and 
Slovenia, where they represent respectively 20.7% and 11.5% of the domestic employed 
population, followed by Slovakia, Estonia, Lithuania and Portugal79.   

These  figures  may  underestimate  the  actual  number  of  posted  workers.  From  a 
receiving  perspective,  data  from  national  compulsory  registration  systems  show  a 
relevant  gap  between  EU  and  national  figures,  with  the  latter  being  up  to  five  times 
higher in the case of Denmark (table 1). National estimations should carefully take into 
account  full-time  equivalents  and  the  number  of  unique  persons  posted.  However,  EU 
social  security  data  do  not  include  information  neither  on  short-term  nor  on  long-term 
postings, as in these cases PD A1 forms are not required.    

Table  1.  Comparison  between  EU  and  national  data  sources  on  received  posted 
workers, year 2014  
Country 

Number of PD A1 received 
(EU data) 
159,753  

Belgium 
(LIMOSA) 
Denmark 
(RUT) 
France 
Sources: Member States communications to the Commission 

190,848 

10.869 

Number of registrations 
(national data) 
Number of declarations: 499,840 
Number of unique persons: 205,279 
59,351 

228,650 

Postings  to  multiple  Member  States  reflect  the  phenomenon  of  highly-mobile 
workers  and  are  a  significant  part  of  total  posted  workers  sent  by  some  Member 
States.  While  Poland  records  428,400  posted  workers  sent  in  2014,  Germany  has 
255,700  and  France  125,200.  Figure  2  below  shows  that  for  Member  States  such  as 
Denmark, Latvia, Czech Republic and the Netherlands the figure of total postings can be 
up  to  four  times  higher  than  the  figure  of  postings  to  single  Member  States  only.  This 
data  could  be  understood  as  reflecting  the  extent  of  the  phenomenon  of  highly-mobile 
workers  in  specific  sectors,  such  as  transports.  However,  there  is  a  lack  of  data 
concerning the sector of activity of this group and the destination of these postings.  

79     If forms for unique persons only are taken into account, the percentage share of sent posted workers 
on the total employed population drops to 0.3% in France, 4.7% in Luxembourg and 4.2% in Slovenia. 
However, this information is not available for many Member States, including Germany and Poland. 

57 

 
 
 
 
 
 
 
 
 
 
 
 
                                                 
Figure  2.  Posted  workers  sent  to  single  destinations  and  total  posted  workers  sent 
(including to multiple Member States), selected Member States, year 2014.  

Source: EMPL calculations on Pacolet and De Wispelaere (2015) 

Overall,  some  Member  States  are  net  senders  and  others  net  recipients  of  posted 
workers.  Poland,  Latvia,  and  Slovenia  were  among  the  highest  net  senders  of  posted 
workers, with levels which have increased over the period 2010-2014 (figure 3). In turn, 
Germany,  Belgium,  Austria,  France  and  the  Netherlands  were  amongst  the  highest  net 
recipients. Except for in the Netherlands, the faster increase of receipts over sent posted 
workers during the crisis period has accentuated the balance in these countries. Contrary 
to  most  other  Member  States,  Italy  and  Spain  have  turned  from  being  net  receivers  to 
becoming  net  senders  of  posted  workers  between  2010  and  2014,  mostly  due  to  the 
impact of the economic crisis.  

58 

 
 
 
 
 
 
 
 
 
Figure  3.  Net  balance  between  postings  sent  and  received,  2010  and  2014  (in 
,000)

Source: EMPL calculations. Note: calculations are done on the basis of postings to single Member States 
only, due to the lack of data on the receipt of workers posted to multiple member States. 

Posting  between  companies  represents  the  most  widespread  type  of  posting, 
although there is no data on other types of postings. Directive 96/71/EC distinguishes 
between  three  types  of  postings,  namely  posting  between  a  company  and  a  service 
provider, posting of workers within the same group and posting through temporary work 
agencies.  Although  it  is  quite  commonplace  that  the  first  type  of  posting  is  the  most 
widespread, the grand majority of the Member States does not collect data to distinguish 
between  the  three  types.  As  regards  intra-group  posting,  only  France  provides  data.  In 
2013,  intra-group  posting  accounted  for  3%  of  total  postings80.  Concerning  posted 
temporary  agency  workers,  available  data  from  PD  A1  documents  for  the  year  2014 
show that they make up on average 5% of total postings, yet with relevant cross-country 
variation.  Agency  workers  represent  over  10%  of  total  postings  received  by  the 
Netherlands, Belgium, France and Portugal, but up to 35% of total postings sent from the 
Netherlands and 25.7% of those sent from Belgium in 201481.  

80    DGT,  Analyse  des  déclarations  de  détachement  des  entreprises  prestataires  de  services  en  France  en 

2013, Novembre 2014.  

81   Frequently missing information concerning the sector of activity on the PD A1 forms suggests caution 

as regards the handling of data on sectoral breakdowns of postings.  

59 

 
 
 
 
 
 
                                                 
All  in  all,  posting  of  workers  still  involves  a  very  small  fraction  (0.7%)  of  the  EU 
employed population. In full-time equivalents, it can be estimated that posted workers 
account for 0.26% of EU employment. However, the labour market impact is especially 
concentrated on specific sectors and Member States.  

The  construction  sector  accounts  for  the  largest  sector  for  posting  of  workers, 
followed  by  the  manufacturing  industry  and  different  types  of  services  (figure  4). 
Overall,  the  construction  sector  absorbs  32.7%  of  total  postings  in  the  EU28,  thus 
proving  the  most  relevant  sector  for  the  provision  of  cross-border  services.  Industrial 
sectors,  such  as  the  metalworking  industry,  account  for  about  another  quarter  of  total 
postings.  The  service  sector  makes  up  32%  of  total  postings,  which  can  be  further 
disaggregated  into  personal  services  (education,  health  and  social  work),  business 
services  (finance  and  insurance,  real  estate,  administrative,  professional  and  technical 
services, including temporary agency work), and transports (including road transport and 
information  and  communication  systems),  as  well  as  other  services,  such  as  wholesale 
and  retail  trade  (1.4%  of  total  postings)  and  food  and  accommodation  services  (0.4%). 
Agriculture employs 1.6% of total posted workers in the EU 

Figure 4. Posted workers in the EU28, breakdown by economic sector (%, 2014) 

Source: DG EMPL elaboration on Pacolet and De Wispelaere (2015) 

The incidence of posted construction sector workers on domestic labour markets is 
especially  strong  in  some  Member  States.  In  Slovenia,  Sweden,  Finland,  Austria, 
Belgium,  and  Latvia  posted  construction  sector  workers  represented  over  half  of  total 
workers received in 2014. Measured as a proportion of the domestic employed workforce 
in the sector, posted workers made up 20% of Belgian construction workers in 2014, and 

60 

 
 
 
 
about  10%  and  Austrian  and  Luxembourgish  workers  (figure  5)82.  From  a  sending 
perspective,  construction  workers  represent  over  50%  of  posted  workers  sent  from 
Estonia, Portugal and Slovenia, and followed by Hungary, Poland and Luxembourg with 
shares slightly below that level. 

Figure 5. % Share of received postings in the construction sector on total construction 
workers, year 2014  

20.0

15.0

10.0

5.0

0.0

BE AT LU DE SI FI SE FR NL EE HR SK DK ES LV IT LT CZ HU CY IE RO BG MT EL PL UK PT

Source: DG EMPL calculations on Eurostat data 

The service sector, mainly personal and business services, absorbs another 32.9% of 
posted workers. From a receiving perspective, financial and business services, as well as 
personal services represent the majority of postings received in Malta, Greece, Portugal 
Cyprus  and  Bulgaria.  In  turn,  the  Netherlands,  Germany,  Finland,  Belgium  and 
Luxembourg  post  a  sizeable  share  of  their  workers  in  the  services  sector,  particularly 
among  financial  and  professional  services,  and  personal  services  such  as  health  and 
social  work.  While  a  minor  share  of  total  postings  involves  the  agriculture  sector,  its 
share amongst sending countries is highest (6.5%) in Estonia and Romania.   

Geographic proximity is a key context factor of posting dynamics. The majority 
(52%) of posted workers are sent to a neighbouring state, with peaks of over 70% in 
Luxembourg, Belgium, Austria, and the Netherlands (figures 6 and 7). Conversely, 
neighbouring countries make up over 70% of posted workers received by Luxembourg, 
Austria and the Czech Republic. For instance, Belgium mainly receives posted workers 
from and sends its own posted workers mainly to France, the Czech Republic mainly 
receives its posted workers from Slovakia, and Germany to the Netherlands, France, 
Switzerland and Austria.  

82      While  the  number  of  PD  A1  issued  in  the  construction  sector  may  not  reflect  the  actual  number  of 
posted construction workers (as the same worker could be posted more times during the same year), 
the method allows cross-country comparisons.  

61 

 
 
 
 
 
 
                                                 
Figure 6. Workers posted to neighbouring and non-neighbouring Member States as % 
of total postings, from a sending perspective, 2014  

Source: DG EMPL elaboration on Pacolet and De Wispelaere (2015) 

Figure 7. Workers posted from neighbouring and non-neighbouring Member States as 
% of total received postings, 2014. 

Source: DG EMPL elaboration on Pacolet and De Wispelaere (2015) 

Posting is generally limited in time (figure 8). Available data suggests that the average 
duration of posting is less than 4 months (100 days in 2013, 103 days in 2014). However, 
there  are  significant  differences  between  the  Member  States.  Whereas  the  average 
duration of postings from France, Belgium and Luxembourg does not last over 33 days, 
workers  posted  from  Estonia,  Hungary  and  Ireland  tend  to  stay  for  over  230  days.  It 
should be noted that in some Member States workers are posted multiple times per year 

62 

 
 
 
 
 
 
for  short  periods.  Indeed,  by  weighting  the  number  of  postings  with  the  number  of 
'unique persons' posted, the same worker is posted on average 1.7 times per year.  

Figure 8. Average duration of postings (in days) by sending Member State (2014) 

Source: Pacolet and De Wispelaere (2015) 

The incompleteness of information, however, suggests much caution in the interpretation 
of  data.  While  data  on  the  duration  from  PD  A1  data  is  only  available  for  twelve  EU 
Member States (plus Iceland)83, it should be reminded that PD A1 forms are not due for 
postings envisaged to be longer than two years, as in that case workers will be covered by 
the  social  security  legislation  of  the  Member  State  of  employment84.  Therefore,  long-
figure.
included 
term 

postings 

above 

not 

the 

are 

in 

83      The  countries  are  Belgium,  Croatia,  Czech  Republic,  Estonia,  France,  Germany,  Hungary,  Italy, 
Ireland, Latvia, Luxembourg, and Slovenia. There is however a small improvement with respect to the 
seven Member States for which data were available in 2013 (Belgium, Germany, France, Ireland, Italy, 
Hungary, Slovenia and Iceland). Pacolet, De Wispelaere, "Posting of Workers. Report on A1 portable 
documents issued in 2012 and 2013", European Commission, December 2014. 

84      If  postings  are  based  on  common  agreements  between  the  Member  States  (in  line  with  article  16  of 

Regulation 883/2004), posting periods are extensible up to 5 years.  

63 

 
 
 
 
 
                                                 
STATISTICAL ANNEX - ADDITIONAL FIGURES  

Figure 9. Dispersion of the monthly minimum wages in the EU (1999-2015) 

Source: Eurostat. Note: highest value is the minimum wage in Luxembourg. Lowest value is the minimum 
wage (in Portugal from 1999 to 2003; in Latvia from 2004 to 2006; in Bulgaria from 2007 to 2015, except 
for 2013 (Romania) 

Figure  10.  %  share  of  payment  to,  and  income  from  subcontractors  on  total 
turnover, construction sector, 2011 

Source: Eurostat, Structural Business Statistics [sbs_is_subc_r2], EMPL calculation.  
No data available for FR and PL. 

64 

 
 
 
 
 
 
 
Figure  11.  Intensity  of  cross-border  services  on  total  turnover  in  the  construction 
sector, 2014  

Source: EMPL calculations on Eurostat data. 

Figure  12.  Sent  posted  workers  and  differentials  in  social  security  contributions 
(2008-2014) 

Source: Pacolet and De Wispelaere (2016) on Eurostat data 

65 

 
 
 
 
 
 
 
 
 
 
 
 
 
Figure 13. Sent posted workers and price differentials (2008-2014) 

Source: Pacolet and De Wispelaere (2016) 

Figure  14:  Change  in  the  share  of  received  workers  in  total  posted  workers  and 
GDP growth (2010-2013). 

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ES

DK

CZ

FR

BE

DE

GB

LU

AT

PL

MT

IS

FI

IE

SK

RO

BG

HU
NL

SI

IT

0

EE

LT

LV

.1
GDP Growth 2010-2013

.2

.3

66 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Figure  15.  Posted  workers  received  in  2014,  breakdown  by  sector  and  selected 
group of countries 

Source: EMPL calculation on Pacolet and De Wispelaere (2015) 

Figure 16. Social contribution rates, paid by employees, EU 28, year 2014 

Source: OECD-EC tax benefit indicators. Note: data 2014; except BG, HR, LT, LV, MT, RO 2013 - CY 
no data 

67 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Figure  17.  Personal  income  tax  rates,  at  67%  and  100%  of  average  wage  (single 
person), 2014 

Source: OECD-EC tax benefit indicators. Note: data 2014. 

Figure  18.  Social  contribution  rates  paid  by  employers  (at  50/67/100%  of  the 
average wage) , EU 28, year 2014 

Source: OECD-EC tax benefit indicators. Note: SSCer (data 2014; except BG, HR, LT, LV, MT, RO 2013 
- CY no data. 

68 

 
 
 
 
 
 
 
 
 
 
 
 
 
Figure 19. Top corporate income tax rates, EU28, year 2015 

Source: European Commission, Tax Reforms in the Member States 

69 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Figure 20. Annual % changes in received posted workers, total construction sector 
employment, and low-skilled construction workers, AT, BE, LU (2008-2014) 

Source: EMPL calculations on Eurostat data 

70 

 
 
 
 
 
 
 
ANNEX III. - OVERVIEW OF THE CASE LAW OF THE CJEU ON THE CONSTITUENT 
ELEMENTS OF MINIMUM RATES OF PAY 

In the table below, the case law of the CJEU is summarized, distinguishing between the 
two perspectives: 

the host Member State perspective: is the host Member State entitled or obliged 

1. 
to consider a certain element as being part of the notion of minimal rates of pay? 

2. 
the  comparative  perspective:  when  assessing  whether  the  amount  effectively 
paid  to  the  posted  worker  complies  with  the  minimum  rates  of  pay,  must  the  Member 
State take into account a specific element as being part of the notion of minimal rates of 
pay? 

In  the  first  case,  the  elements  in  consideration  are  provided  for  by  the  law  of  the  host 
Member  State  or  by  a  collective  agreement  declared  universally  applicable.  When  the 
Court decides that this element is part of the notion of minimum rates of pay, this means 
that it needs to be part of the remuneration granted to the posted worker. 

In the second case, the elements at stake are not foreseen in the law of the host Member 
State or in a collective agreement declared universally applicable, but they are effectively 
paid  to  the  worker  in  accordance  to  the  employment  contract,  the  law  of  the  Member 
State  of  establishment  or  a  collective  agreement  binding to  the  undertaking  posting  the 
workers. When the Court decides that such an element must be taken into consideration 
as  being  part  of  the  minimal  rates  of  pay,  the  ruling  has  no  impact  on  the  constitutive 
elements of the host Member State, it only concerns the comparison between the amount 
paid to the worker and the amount that must be paid in accordance with the applicable 
rules of the host Member State. 

71 

 
 
 
 
 
 
 
 
 
 
 
Table 1: Are the elements below to be considered constituent elements of minimum 
rates of pay? 

Bonuses 
in 
respect  of  the 
13th  and  14th 
month 

Quality 
bonuses 

Case  Host MS 
perspect
ive 
Not ruled 
yet 

Case 
C-
341/02, 
§31 

Not ruled 
yet 

Case 
C-
341/02, 
§39 

Comparative 
perspective 

Yes, they are 
constituent 
elements of 
minimum 
rates of pay 
No, they are 
not constituent 
elements of 
minimum 
rates of pay 

Bonuses 
for 
dirty, heavy or 
dangerous 
work 

Case 
C-
341/02, 
§39 

Not ruled 
yet 

No, they are 
not constituent 
elements of 
minimum 
rates of pay 

Case 
C‑522/
12, 
§40-42 

sum 

Lump 
payments 
determined  in 
the  context  of 
the negotiation 
of  a  collective 
agreement 

Depends 
on the 
intention 
of the 
parties to 
the 
collectiv
e 
agreeme
nt 

Capital 
formation 
contribution 

Case 
C‑522/
12, 
§43-45 

No 

Reasoning of the CJEU 

condition 

On 
regularly, 
they 
proportionately,  effectively  and  irrevocably  during  the 
period for which the worker is posted. 

paid 

that 

are 

Allowances  and  supplements  which  are  not  defined  as 
being constituent elements of the minimum wage by the 
legislation or national practice of the host Member State, 
and  which  alter  the  relationship  between  the  service 
provided  by  the  worker,  on  the  one  hand,  and  the 
consideration  which  he  receives  in  return,  on  the  other, 
cannot  be  treated  as  being  constituent  elements  of  the 
minimum wage. 
It  is  entirely  normal  that,  if  an  employer  requires  a 
worker  to  carry  out  additional  work  or  to  work  under 
particular conditions, compensation must be provided to 
the  worker  for  that  additional  service  without  its  being 
taken  into  account  for  the  purpose  of  calculating  the 
minimum wage. 
Allowances  and  supplements  which  are  not  defined  as 
being constituent elements of the minimum wage by the 
legislation or national practice of the host Member State, 
and  which  alter  the  relationship  between  the  service 
provided  by  the  worker,  on  the  one  hand,  and  the 
consideration  which  he  receives  in  return,  on  the  other, 
cannot  be  treated  as  being  constituent  elements  of  the 
minimum wage. 
It  is  entirely  normal  that,  if  an  employer  requires  a 
worker  to  carry  out  additional  work  or  to  work  under 
particular conditions, compensation must be provided to 
the  worker  for  that  additional  service  without  its  being 
taken  into  account  for  the  purpose  of  calculating  the 
minimum wage. 
Only the elements of remuneration which do not alter the 
relationship between the service provided by the worker, 
on the one hand, and the consideration that he receives in 
return,  on  the  other,  can  be  taken  into  account  in 
determining  the  minimum  wage  within  the  meaning  of 
Directive 96/71. 

It  depends  whether  the  parties  to  the  collective  wage 
agreement intended, in that way, to introduce an increase 
in  wages  in  consideration  of  the  work,  during  the 
such  a  collective  agreement,  of 
negotiation  of 
anticipating,  by 
the 
application of the new salary scale. 
The capital formation contribution seems, in view of its 
objective  and  its  characteristics,  to  alter  the  relationship 
between  the  service  provided  by  the  worker  and  the 
consideration which he receives by way of remuneration 
for that service. 

lump  sum  payments, 

those 

72 

 
 
 
 
 
 
 
Yes 

C‑396/
13, 
§40-45 

Guaranteed 
pay  for  hourly 
and/or 
work 
piecework 
in 
accordance 
with 
the 
categorisation 
of  employees 
into 
pay 
groups 

Daily 
allowance 

Yes 

C‑396/
13, 
§46-50 

Compensation 
daily 
for 
travelling time 

C‑396/
13, 
§53-57 

Yes 

transparency,  which  means, 

Since its aim,  by the formation of a capital amount that 
the  worker  will  benefit  from  in  the  longer  term,  is  to 
achieve  an  objective  of  social  policy  supported,  in 
particular,  by  a  financial  contribution  from  the  public 
authorities,  it  cannot  be  regarded,  for  the  application  of 
Directive 96/71, as forming part of the usual relationship 
between  the  work  done  and  the  financial  consideration 
for that work from the employer. 
The  rules  in  force  in  the  host  Member  State  may 
determine whether the calculation of the minimum wage 
must  be  carried  out  on  an  hourly  or  a  piecework  basis. 
However, those rules must be binding and must meet the 
requirements  of 
in 
particular, that they must be accessible and clear. 
The  minimum  wage  calculated  by  reference  to  the 
relevant  collective  agreements  cannot  be  a  matter  of 
choice  for  an  employer  who  posts  employees  with  the 
sole  aim  of  offering  lower  labour  costs  than  those  of 
local workers. 
The  rules  for  categorising  workers  into  pay  groups, 
which are applied in the host Member State on the basis 
of  various  criteria  including  the  workers’  qualifications, 
training  and  experience  and/or  the  nature  of  the  work 
performed  by  them,  apply  instead  of  the  rules  that  are 
applicable  to  the  posted  workers  in  the  home  Member 
State. It is only where a comparison is made between the 
terms  and  conditions  of  employment,  referred  to  in  the 
first  subparagraph  of  Article  3(7)  of  Directive  96/71, 
applied in the home Member State and those in force in 
the  host  Member  State  that  the  categorisation  made  by 
the home Member State must be taken into account when 
it is more favourable to the worker. 
The  allowance  takes  the  form  of  a  flat-rate  daily 
payment. 
The  allowance 
in  reimbursement  of 
expenditure actually incurred on account of the posting, 
as referred to in the second subparagraph of Article 3(7) 
of Directive 96/71. 
In  fact,  the  allowance  is  intended  to  ensure  the  social 
protection  of  the  workers  concerned,  making  up  for  the 
disadvantages  entailed  by  the  posting  as  a  result  of  the 
workers being removed from their usual environment. 
It follows that such an allowance must be classified as an 
‘allowance specific to the posting’ within the meaning of 
the  second  subparagraph  of  Article  3(7)  of  Directive 
96/71. 
That  provision  of  the  directive  states  that  such  an 
allowance is part of the minimum wage. 
Accordingly, the daily allowance at issue must be paid to 
posted  workers  such  as  those  concerned  in  the  main 
proceedings  to  the  same  extent  as  it  is  paid  to  local 
workers when they are posted within Finland. 
The  question  raised  does  not  concern  compensation  for 
the costs incurred by the workers concerned in travelling 
to and from their place of work but solely the question as 
to  whether  Article  3  of  Directive  96/71  must  be 
interpreted  as  meaning  that  compensation  for  daily 
73 

is  not  paid 

 
 
 
 
 
 
 
of 
Coverage 
the 
cost  of 
accommodatio
n 

C‑396/
13, 
§58-60 

No 

Meal vouchers  C‑396/

No 

13, 
§61-63 

the 

has 

and 

defrayed 

travelling  time  is  to  be  regarded  as  an  element  of  those 
workers’ minimum wage. 
According  to  the  relevant  provisions  of  the  Finnish 
collective  agreements,  compensation  for  travelling  time 
is  paid  to  workers  if  their  daily  commute  to  and  from 
work is of more than one hour’s duration. 
Since  such  compensation  for  travelling  time  is  not  paid 
in reimbursement of expenditure actually incurred by the 
worker on account of the posting, it must, in accordance 
with the second subparagraph of Article 3(7) of Directive 
96/71,  be  regarded  as  an  allowance  specific  to  the 
posting and thus be part of the minimum wage. 
Even  though  the  wording  of  Article  3(7)  excludes  only 
the  reimbursement  of  expenditure  on  accommodation 
which  has  actually  been  incurred  on  account  of  the 
the 
employer 
posting 
accommodation  costs  of  the  workers  concerned  without 
the latter having first to pay them and then seek to have 
them  reimbursed,  the  method  which  the  employer  has 
chosen to cover such expenditure has no bearing on the 
legal classification thereof. 
The very purpose of Article 3(7) of Directive 96/71 does 
not  permit  expenditure  connected  with  the  posted 
workers’ accommodation to be taken into account in the 
calculation of their minimum wage. 
The Court observes that the provision of those vouchers 
is based neither on any law, regulation or administrative 
provision  of  the  host  Member  State  nor  on  the  relevant 
the  Sähköalojen 
collective  agreements 
ammattiliitto,  but  derives 
the  employment 
relationship  established  in  Poland  between  the  posted 
workers and their employer. 
to  offset 
Furthermore, 
accommodation  costs,  these  allowances  are  paid  to 
compensate  for  living  costs  actually  incurred  by  the 
workers on account of their posting. 
Accordingly,  it  is  clear  from  the  actual  wording  of 
paragraphs  1  and  7  of  Article  3  of  Directive  96/71  that 
the allowances concerned are not to be considered part of 
the  minimum  wage  within  the  meaning  of  Article  3  of 
the directive. 

invoked  by 
from 

the  allowances  paid 

like 

Holiday pay 

C‑396/
13, 
§64-69 

All 
workers 
entitled 
because 
of EU 
law 

Not ruled yet  As  regards  payment  in  respect  of  holidays,  it  must  be 
recalled  at  the  outset  that,  under  Article  31(2)  of  the 
Charter,  every  worker  has  the  right  to  an  annual  period 
of paid leave. 
That  right,  which  is  set  out  in  Article  7  of  Directive 
2003/88/EC  from  which  that  directive  permits  no 
derogation,  provides  that  every  worker  is  entitled  to  a 
period  of  paid  annual  leave  of  at  least  four  weeks.  The 
right  to  paid  annual  leave  which,  according  to  settled 
case-law,  must  be  regarded  as  a  particularly  important 
principle  of  EU  social  law,  is  thus  granted  to  every 
worker, whatever his place of employment. 
The  Court’s  case-law  also  makes  clear  that  the  term 
‘paid  annual  leave’  in  Article  31  of  the  Charter  and 
Article  7(1)  of  Directive  2003/88  means  that,  for  the 
duration  of  annual  leave  within  the  meaning  of  those 
provisions, remuneration must be maintained and that, in 
74 

 
 
 
 
 
 
 
receive 

their  normal 

other  words,  workers  must 
remuneration for that period of rest. 
According  to  that  case-law,  Directive  2003/88  treats 
entitlement  to  annual  leave  and  to  a  payment  on  that 
account  as  being  two  aspects  of  a  single  right.  The 
purpose  of  requiring  payment  to  be  made  in  respect  of 
that  leave  is  to  put  the  worker,  during  such  leave,  in  a 
position  which  is,  as  regards  his  salary,  comparable  to 
periods of work. 
Thus,  the  pay  which  the  worker  receives  during  the 
holidays is intrinsically linked to that which he receives 
in return for his services. 
Accordingly,  Article  3  of  Directive  96/71,  read  in  the 
light  of  Articles  56  TFEU  and  57  TFEU,  must  be 
interpreted as meaning that the minimum pay which the 
worker must receive, in accordance with point (b) of the 
second  indent  of  Article  3(1)  of  the  directive,  for  the 
minimum  paid  annual  holidays  corresponds  to  the 
minimum  wage  to  which  that  worker  is  entitled  during 
the reference period. 

75 

 
 
 
 
ANNEX IV 

ILLUSTRATIVE SIMULATIONS OF THE IMPACT OF EQUAL PAY ON LABOUR COSTS FOR 
EMPLOYERS AND AFTER-TAX INCOME FOR WORKERS IN SITUATION OF POSTING 

The  following  analysis  simulates  the  impact  of  differentials  in  social  security 
contributions and corporate and personal income tax rates between sending and receiving 
Member States on labour costs for firms and after-tax income for posted.  

This  simulation  has  only  an  illustrative  value  and  neither  does  it  correspond  to  the 
desired  outcome  of  the  proposed  options  nor  aims  at  fully  representing  the  reality  of 
posting.  'Equal  Pay'  is  therefore  a  fictitious  scenario.  It  is  used  to  illustrate  the  most 
extreme  change  but  does  not  represent  the  outcome  of  the  proposed  revision  which 
should instead fall between the 'status quo' and the 'equal pay' levels, depending on the 
applicable collective agreement, as well as other contingent characteristics such as firm 
size,  worker's  skill,  seniority,  and  job  position.  Absent  any  systematic  data  collection, 
this  simulation  constitutes  a  useful  proxy  in  order  to  better  understand  the  role  of  the 
home  country  rule  enshrined  in  Regulation  883/2004  on  the  coordination  of  social 
security systems as regards the payment of social security charges and taxes on posting 
of workers.  

Methodological remarks 

To construct the simulation, the three main receiving countries were taken as an example 
(BE, DE, FR). Sending countries were selected on the basis of differentials both in home 
wage  standards,  including  one  high-wage  (NL),  one  medium-wage  (PT)  and  two  low-
wage Member States (RO, PL), and in levels of labour and income taxation.  

The exercise is developed on the basis of the wage of a low-skill manual worker in the 
representative  construction  sector.  The  reference  wage  is  taken  from  the  Eurostat 
Earnings  Survey  2010  (latest  data  available)  which  provides  data  on  wages  per 
occupation  and  sector,  inter  alia.  The  EC-OECD  tax-benefit  database  is  the  source  for 
social security rates and income taxes. 

The simulation analyses the status quo and three scenarios of change: 

Status quo: foreign company paying / posted worker receiving the minimum pay set by 
the sectorial collective agreement of the host country, and social security contributions in 
the home country. 

Scenario 1: foreign company paying / posted worker being paid the average wage of the 
sector in the host country, and social  security  contributions  in the home country on the 
basis of the full wage of the host country 

76 

 
 
 
Scenario  2:  foreign  company  paying  /  posted  worker  being  paid  the  average  sectorial 
wage of the host country, and social security contributions on the same basis as Scenario 
1, as well as corporate / personal income tax in the home country 

To  simulate  the  minimum  rates  of  pay  received  by  posted  construction  workers  in  the 
status quo, the exercise takes the monthly salary level of the lowest-skilled occupation in 
the  receiving  countries,  that  is,  elementary  worker.  The  assumption  is  that  under  the 
status  quo,  employers  will  tend  to  pay  posted  workers  with  the  minimum  contractual 
level, regardless of the actual skill level of the posted worker. 

To  simulate  the  scenario  involving  income  taxation,  the  exercise  assumes  a  company  / 
worker  posted  /  being  posted  to  another  Member  State  for  a  period  of  six  months,  that 
being the only source of profit / work revenue in the corresponding year. The company is 
assumed to employ 10 manual workers for 6 months and to pay corporate tax on the basis 
of a EUR 500,000 yearly turnout. 

Data  

Country 

Germany 

Belgium 

France 

Poland 

Romania 

Portugal 

Average 
wage manual 
[elementary] 
worker, 
constructions  
(EUR, 2010) 

Social 
security 
employer 
(100 % 
AW) 

Social 
security 
employee 
(100% 
AW) 

Corporate 
income tax 
 (% 
turnout) 

Receiving countries 

Personal 
income 
tax 
(100% 
average 
wage) 

2,533 
[2,081] 
2,615 
[2,615] 
1,714 
[1,388] 

613  

324  

773  

16.16 

17.12 

29.65 

16.03 

22.96 

10.79 

33.99 

21.83 

27.69 

10.16 

33.33 

10.59 

Sending countries 

14.37 

21.88 

19.19 

8.97 

15.26 

9.77 

8.89 

13.9 

19 

16 

21 

25 

5.96 

10.45 

13.14 

14.58 

77 

Netherlands 

3,082  

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
SIMULATION  1 – Labour costs for posting and local employers 

Germany 

4000

3000

2000

1000

0

350,000

300,000

250,000

200,000

150,000

100,000

50,000

0

Scenario 1.  Monthly labour costs

2,942

2,897

2380

3,087

3,019

2536

2480

2,760

2268

Local

Poland

Romania

Portugal

Netherlands

equal pay

status quo

Scenario 2. Yearly labour costs

324,770

241,820

246,220

276,640

267,100

Local

Poland

Romania

Portugal

Netherlands

78 

 
 
 
 
 
 
 
 
Belgium 

4000

3000

2000

1000

0

Scenario 1. Monthly labour costs

3215

2991

3187

3117

2850

1718

1830

1790

1637

Local

Poland

Romania

Portugal

Netherlands

Equal pay

status quo

79 

 
 
 
 
 
 
France 

2500

2000

1500

1000

500

0

Scenario 1. Monthly labour cost

2,146

1,960

1587

2,089

1692

2,043

1654

1,868

1513

Local

Poland

Romania

Portugal

Netherlands

Equal Pay

Status quo

80 

 
 
 
 
 
 
 
Comments 

The  simulation  of  the  status  quo  depicts  part  of  the  baseline  scenario  in  the  receiving 
Member  States.  Social  security  contribution  levels  paid  by  employers  in  the  selected 
sending  countries  are  in  all  cases  lower  than  in  the  receiving  countries.  Since  social 
security  charges  are  paid  on  lower  wage  levels,  the  total  labour  cost  are  substantially 
lower  (up  to  80%  in  the  case  of  Polish  workers  in  Belgium)  than  in  the  receiving 
countries.  

The case of the Netherlands is telling of the role of taxation in determining labour cost 
competitiveness.  While  nominal  wage  costs  are  higher  in  the  home  country  than  in  all 
other  receiving  countries,  the  low  social  security  contribution  rate  (one  third  of  the 
French one) results in lower total labour costs of posted workers from the Netherlands. 

Scenario  1  shows  that  differentials  in  social  security  charges  have  a  similar  effect  if 
equal pay is simulated, i.e. if posted workers are paid the same rate as local workers, but 
where differentials are lower (e.g. between Romania and Belgium or France) the gap in 
labour costs substantially narrows. However, the case of Germany shows that if the social 
security charges of the recipient Member State are lower than those of sending countries, 
the  labour  cost  competitiveness  of  posted  workers  from  low-wage  countries  is 
eliminated. 

Scenario  2  shows  that  lower  corporate  income  tax  rates  in  all  sending  Member  States 
vis-à-vis  receiving  countries  may  contribute  to  the  overall  fiscal  premium  of  tax 
regulations in a situation of posting, even in a situation of equal pay. In that scenario, the 
cost gap is reduced with respect to the status quo but  sending  companies seem to have 
more leverage to compress costs than local firms, including if provisions established an 
equal pay rule. Clearly, the present simulation depicts a very simplified fiscal framework 
and should be understood only as an indicative sign of potential cost gaps. 

In  practice,  labour  costs  for  posted  worker  are  increased  by  supplementary  allowances 
specific  to  posting,  whereas  the  non-application  of  a  number  of  allowances  granted  to 
local workers may contribute to lower nominal wages for posted workers. The simulation 
has provided a tool to visually understand the implications of current and possible rules 
on the economic drivers of posting. 

81 

 
 
 
SIMULATION 2 – after-income earning of posted and local workers 

Germany 

82 

 
 
 
 
 
 
Belgium 

83 

 
 
 
 
 
 
France 

84 

 
 
 
 
 
Comments 

This  simulation  analyses  the  impact  of  social  security  contributions  paid  by  employees 
and  personal  income  taxes  on  the  potential  take-home  pay  of  posted  workers  vis-à-vis 
local workers.  

In the case of employees, patterns in levels of social security contributions are less clear-
cut  as  in  the  case  of  employers.  Social  security  rates  are  higher  in  Poland  and  in  the 
Netherlands  than  in  Belgium  and  France,  therefore  net  pay  should  be  lower,  nominal 
wages being equal. However, it is true that personal income taxes (here considered on a 
single  person  earning  100%  the  average  wage)  are  generally  lower  in  most  sending 
countries  than  in  the  receiving  countries,  with  the  Polish  rate  being  one  third  of  the 
French rate). Despite some exceptions, income tax differentials may contribute to higher 
take-home pay for posted workers than local workers, pay being equal. 

This situation is reflected in the scenario construed by the simulation.  

In  the  status  quo,  lower  nominal  wages  result  in  lower  net  pay  of  posted  workers  all 
across the board. However, the role of tax differentials emerges in the equal pay scenario 
1.  For  instance,  the  lower  social  charges  in  Portugal  than  in  Belgium  produces  that  the 
take-home pay of workers posted from Portugal is higher than that of Belgian workers, 
nominal wages being equal. Instead, Romanian posted workers will receive a lower take-
home  pay  than  Belgians  with  the  same  wage  because  of  higher  social  security 
contributions in Romania.  

In scenario 2, the low tax differentials between France and most of the origin countries 
of  posted  workers  results  in  a  slightly  better  situation  of  local  workers  than  posted 
workers, whereas in high-tax Belgium local workers remain significantly worse off than 
posted workers from Poland, Romania and Portugal.  

85 

 
 
 
 
ANNEX V. - COMPOSITION OF REMUNERATION 

Element of wage 

Is  considered  part 
of 
the  minimum 
rates of pay 

Is  NOT 
considered 
part  of  the  minimum 
rates of pay 

EC  case  law:  are 
to  be  considered 
as minimum rates 
of  pay  is  present 
in the host MS 

EC 
law: 
case 
must  be  accepted 
as  being  part  of 
minimum rates of 
pay  if  effectively 
paid 
to  posted 
workers  

Seniority allowance 

Allowances 
supplements 
dirty, 
heavy 
dangerous work 
Quality bonuses 

and 
for 
or 

BE,  DE,  EL,  AT, 
FR*,  LU*,  PL,  SI, 
IT 
BE,  EE,  EL,  ES, 
AT, FR*, LU**, PL, 
SI, IT 

BG,  CY,  EE,  FR**, 
HU, IE, LT, LU**, LV, 
SK, UK, MT, CZ, NL
BG,  CY,  DE,  FR**, 
HU, IE, LT, LU**, LV, 
SK, MT, CZ and NL 

BE,  EE,  ES,  FR 
LU*, PL and SI 

13th  month  bonuses 
(Christmas 
allowances) 

BE,  EL,  ES,  AT, 
FR*,  IT,  LU  and 
PL 

Travel expenses 

SI 

Lump sum payments 
determined 
in 
collective agreement 

to 
for 

of 
Categorisation 
employees  into  pay 
groups 
Daily  allowance 
compensate 
posting 
Compensation 
daily travelling time 
Holiday  pay  longer 
than 4 weeks 
Meal vouchers 

for 

Notes: 

No 

Yes 

AT, BG, CY, DE, EL, 
HU,  IE,  IT, LT,  LU**, 
LV,  SK,UK  MT,  CZ 
and NL 
BG,  CY,  DE,  EE, 
FR**,  HU,  IE,  LT, 
LU**, LV, SI, SK, UK, 
MT, CZ and NL 
BE,  CY, CZ,  DE,  EE, 
ES,  FR,  HU,  IE,  IT, 
LT,  LV,  NL,  PL,  SK, 
UK, EL and AT 

is 

the 
to 
the 

if 

Yes, 
intention 
increase 
wages 
Yes. 

Yes 

Yes 

Yes 

No 

* 

** 

In collective agreements. 

In national law 

86 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
ANNEX VI. - IMPACT OF THE REVISED DIRECTIVE ON REMUNERATION 

Option 3 

Option 4a 

Option 4b 

Option 4c 

Option 4d 

Equal rules 
on pay 
(elements to 
be added) 

Sectoral 
extension 

Long-term 

Sub-
contracting 

Temp 
agency 
work 

Intra-
corporate 

be 

all 

For 
MS, 
legislative 
changes 
will 
required. 
There  are 
no  reliable 
figures  on 
the number 
intra-
corporate 
posting, 
but 
seems 
represent 
only 
marginal 
proportion 
of  posted 
workers. 

it 
to 

a 

AT  Quality 
bonuses 

Already 
implemented, 
no impact 

BE 

Already 
implemented, 
no impact 

Legislative 
change 
required. 
National 
labour 
law 
will  apply  to 
workers 
for 
posted 
more  than  2 
years, 
including  on 
remuneration. 

Legislative 
change 
required. 
National 
labour 
law 
will  apply  to 
workers 
posted 
for 
more  than  2 
years, 
including  on 
remuneration. 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
of 
this 
faculty. 

Impact 
depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

Impact 
limited since 
AT  usually 
makes  CA 
universally 
applicable. 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
this 
of 
faculty. 

Impact 
depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

Impact 

Legislative 
changes 
required  to 
implement 
the 
principle  of 
equal 
treatment 
with 
national 
temporary 
agency 
workers. 

Impact 
limited 
since  TAW 
represent 
less 
1% 
posted 
workers. 

than 
of 

and 

No  impact: 
equal 
treatment 
between 
local 
cross-
border 
temporary 
agent 
workers 
already 
place. 

in 

Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111 

 
 
 
 
 
 
BG 

CY 

limited since 
BE  usually 
makes  CA 
universally 
applicable. 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
of 
this 
faculty. 

Impact 
depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

Impact 
limited since 
only  around 
30% 
of 
workers  are 
covered  by 
CA 
and 
workers 
to 
posted 
are 
BG 
likely 
to 
benefit  from 
more 
favourable 
conditions 
in  the  home 
MS. 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
of 
this 
faculty. 

Impact 
depends  on 

Legal  change 
required, 
impact 
dependent  on 
the 
number 
and content of 
CA 
made 
universally 
applicable 

Legislative 
change 
required. 
National 
labour 
law 
will  apply  to 
workers 
for 
posted 
more  than  2 
years, 
including  on 
remuneration. 

Legal  change 
required, 
impact 
dependent  on 
the 
number 
and content of 
made 
CA 
universally 
applicable 

Legislative 
change 
required. 
National 
labour 
law 
will  apply  to 
workers 
posted 
for 
more  than  2 
years, 

88 

and 

No  impact: 
equal 
treatment 
between 
local 
cross-
border 
temporary 
agent 
workers 
already 
place. 

in 

Legislative 
changes 
required  to 
implement 
the 
principle  of 
equal 
treatment 
with 
national 

 
 
 
 
 
temporary 
agency 
workers. 

Impact 
limited 
since  TAW 
represent 
around  6% 
low 
of  a 
number  of 
posted 
workers. 

and 

No  impact: 
equal 
treatment 
between 
local 
cross-
border 
temporary 
agent 
workers 
already 
place. 

in 

including  on 
remuneration. 

CZ 

Legal  change 
required, 
impact 
dependent  on 
the 
number 
and content of 
made 
CA 
universally 
applicable 

Legislative 
change 
required. 
National 
labour 
law 
will  apply  to 
workers 
posted 
for 
more  than  2 
years, 
including  on 
remuneration. 

89 

whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

Impact 
limited. 
Around 50% 
of  workers 
are  covered 
by CA and a 
large 
proportion 
of  workers 
to 
posted 
CY 
could 
benefit  from 
more 
favourable 
conditions 
in  the  home 
MS. 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
of 
this 
faculty. 

Impact 
depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

Impact 
limited since 
only  around 
of 
38% 
workers  are 
covered  by 
and 
CA 

 
 
 
 
Currently, 
only 
sectors. 

14 

DE  Allowance 

for  dirty  or 
dangerous 
work; 
Quality 
bonuses 

Legislative 
change 
required. 
National 
labour 
law 
will  apply  to 
workers 
posted 
for 
more  than  2 
years, 
including  on 
remuneration. 

workers 
to 
posted 
are 
CZ 
likely 
to 
benefit  from 
more 
favourable 
conditions 
in  the  home 
MS. 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
of 
this 
faculty. 

Impact 
depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

and 

No  impact: 
equal 
treatment 
between 
local 
cross-
border 
temporary 
agent 
workers 
already 
place. 

in 

With  around 
60% 
of 
workers 
covered  by 
CA 
and 
universally 
applicable 
CA  only  in 
some 
sectors, 
impact 
could 
significant. 

the 

be 

DK 

No 
impact 
since  DK  has 
no mechanism 
to  make  CA 
universally 
applicable 

Legislative 
change 
required. 
National 
labour 
law 
will  apply  to 
workers 
posted 
for 
more  than  2 

90 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
this 
of 
faculty. 

Impact 

No  impact: 
equal 
treatment 
between 
local 
cross-
border 
temporary 
agent 

and 

 
 
 
 
 
years, 
including  on 
remuneration. 

workers 
already 
place. 

in 

depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

With  around 
80% 
of 
workers 
covered  by 
CA  and  no 
universally 
applicable 
CA, 
impact 
could 
significant. 

the 

be 

EE 

Legal  change 
required, 
impact 
dependent  on 
the 
number 
and content of 
CA 
made 
universally 
applicable 

Legislative 
change 
required. 
National 
labour 
law 
will  apply  to 
workers 
for 
posted 
more  than  2 
years, 
including  on 
remuneration. 

91 

Legislative 
changes 
required  to 
implement 
the 
principle  of 
equal 
treatment 
with 
national 
temporary 
agency 
workers. 

Impact 
limited 
since  TAW 
represent 
around  1% 
low 
of  a 
number  of 
posted 
workers. 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
of 
this 
faculty. 

Impact 
depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

Impact 
limited since 
only  around 
33% 
of 
workers  are 
covered  by 
CA 
and 
workers 
posted to EE 
are  likely  to 
benefit  from 
more 

 
 
 
 
EL  Quality 
bonuses 

Already 
implemented, 
no impact 

ES 

Already 
implemented, 
no impact 

favourable 
conditions 
in  the  home 
MS. 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
of 
this 
faculty. 

Impact 
depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

Impact 
limited since 
EL  usually 
makes  CA 
universally 
applicable. 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
of 
this 
faculty. 

Impact 
depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

Impact 
limited since 
ES  usually 

Legislative 
change 
required. 
National 
law 
labour 
will  apply  to 
workers 
posted 
for 
more  than  2 
years, 
including  on 
remuneration. 

Legislative 
change 
required. 
National 
labour 
law 
will  apply  to 
workers 
posted 
for 
more  than  2 
years, 
including  on 
remuneration. 

92 

Legislative 
changes 
required  to 
implement 
the 
principle  of 
equal 
treatment 
with 
national 
temporary 
agency 
workers. 

Impact 
limited 
since  TAW 
represent 
around  4% 
of  a 
low 
number  of 
posted 
workers. 

and 

No  impact: 
equal 
treatment 
between 
local 
cross-
border 
temporary 
agent 
workers 
already 
place. 

in 

 
 
 
 
FI 

No 
information 

Already 
implemented, 
no impact 

Legislative 
change 
required. 
National 
labour 
law 
will  apply  to 
workers 
posted 
for 
more  than  2 
years, 
including  on 
remuneration. 

makes  CA 
universally 
applicable. 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
this 
of 
faculty. 

Impact 
depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

and 

No  impact: 
equal 
treatment 
between 
local 
cross-
border 
temporary 
agent 
workers 
already 
place. 

in 

With  around 
90% 
of 
workers 
covered  by 
CA and only 
a 
few 
universally 
applicable 
CA, 
impact 
could 
significant. 

the 

be 

FR 

Already 
implemented, 
no impact 

Legislative 
change 
required. 
National 
labour 
law 
will  apply  to 
workers 
posted 
for 
more  than  2 
years, 
including  on 
remuneration. 

93 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
this 
of 
faculty. 

Impact 
depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 

and 

No  impact: 
equal 
treatment 
between 
local 
cross-
border 
temporary 
agent 
workers 
already 
place. 

in 

 
 
 
 
CA. 

Impact 
limited since 
FR  usually 
makes  CA 
universally 
applicable. 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
of 
this 
faculty. 

Impact 
depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
this 
of 
faculty. 

Impact 
depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

Impact 
limited since 
only  around 
33% 
of 
workers  are 
covered  by 

HR 

- 

Legislative 
change 
required. 
National 
law 
labour 
will  apply  to 
workers 
posted 
for 
more  than  2 
years, 
including  on 
remuneration. 

HU 

Legal  change 
required, 
impact 
dependent  on 
the 
number 
and content of 
CA 
made 
universally 
applicable 

Legislative 
change 
required. 
National 
labour 
law 
will  apply  to 
workers 
posted 
for 
more  than  2 
years, 
including  on 
remuneration. 

94 

and 

No  impact: 
equal 
treatment 
between 
local 
cross-
border 
temporary 
agent 
workers 
already 
place. 

in 

Legislative 
changes 
required  to 
implement 
the 
principle  of 
equal 
treatment 
with 
national 
temporary 
agency 
workers. 

Impact 
limited 
since  TAW 
represent 
less 
than 
2%  of  a 
low 
number  of 
posted 
workers. 

 
 
 
 
 
and 

CA 
workers 
to 
posted 
are 
HU 
likely 
to 
benefit  from 
more 
favourable 
conditions 
in  the  home 
MS. 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
this 
of 
faculty. 

Impact 
depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

Some 
impact. 
Around 40% 
of  workers 
are  covered 
by  CA  and 
the 
CA  at 
level  of  the 
undertaking 
are 
common. 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
of 
this 
faculty. 

Impact 
depends  on 

Legislative 
changes 
required  to 
implement 
the 
principle  of 
equal 
treatment 
with 
national 
temporary 
agency 
workers. 

Impact 
limited 
since  TAW 
represent 
around  4% 
of  a 
low 
number  of 
posted 
workers. 

and 

No  impact: 
equal 
treatment 
between 
local 
cross-
border 
temporary 
agent 
workers 

Currently only 
7 sectors 

IE 

Seniority 
allowances; 
Quality 
bonuses; 
13th  month 
allowance 

Legislative 
change 
required. 
National 
labour 
law 
will  apply  to 
workers 
posted 
for 
more  than  2 
years, 
including  on 
remuneration. 

IT 

Quality 
bonuses 

Already 
implemented, 
no impact 

Legislative 
change 
required. 
National 
labour 
law 
will  apply  to 
workers 
posted 
for 
more  than  2 
years, 

95 

 
 
 
including  on 
remuneration. 

LT 

Legal  change 
required, 
impact 
dependent  on 
the 
number 
and content of 
CA 
made 
universally 
applicable 

Legislative 
change 
required. 
National 
labour 
law 
will  apply  to 
workers 
posted 
for 
more  than  2 
years, 
including  on 
remuneration. 

already 
place. 

in 

whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

Impact 
limited since 
IT 
usually 
makes  CA 
universally 
applicable. 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
this 
of 
faculty. 

Impact 
depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

Impact 
limited since 
only  around 
15% 
of 
workers  are 
covered  by 
and 
CA 
workers 
posted to LT 
are  likely  to 
benefit  from 
more 
favourable 
conditions 
in  the  home 
MS. 

96 

 
 
 
 
 
LU 

Currently only 
9 sectors 

Legislative 
change 
required. 
National 
labour 
law 
will  apply  to 
workers 
posted 
for 
more  than  2 
years, 
including  on 
remuneration. 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
this 
of 
faculty. 

Impact 
depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

and 

No  impact: 
equal 
treatment 
between 
local 
cross-
border 
temporary 
agent 
workers 
already 
place. 

in 

With  around 
50% 
of 
workers 
covered  by 
CA 
and 
universally 
applicable 
CA  only  in 
some 
sectors, 
impact 
could 
significant. 

the 

be 

LV 

Legal  change 
required, 
impact 
dependent  on 
number 
the 
and content of 
CA 
made 
universally 
applicable 

Legislative 
change 
required. 
National 
law 
labour 
will  apply  to 
workers 
posted 
for 
more  than  2 
years, 
including  on 
remuneration. 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
of 
this 
faculty. 

Impact 
depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

Impact 

97 

Legislative 
changes 
required  to 
implement 
the 
principle  of 
equal 
treatment 
with 
national 
temporary 
agency 
workers. 

Impact 
limited 
since  TAW 
represent 
less 
than 
2%  of  a 

 
 
 
 
 
low 
number  of 
posted 
workers. 

and 

No  impact: 
equal 
treatment 
between 
local 
cross-
border 
temporary 
agent 
workers 
already 
place. 

in 

MT 

Legal  change 
required, 
impact 
dependent  on 
number 
the 
and content of 
CA 
made 
universally 
applicable 

Legislative 
change 
required. 
National 
law 
labour 
will  apply  to 
workers 
posted 
for 
more  than  2 
years, 
including  on 
remuneration. 

limited since 
only  around 
30% 
of 
workers  are 
covered  by 
and 
CA 
workers 
to 
posted 
are 
LV 
to 
likely 
benefit  from 
more 
favourable 
conditions 
in  the  home 
MS. 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
of 
this 
faculty. 

Impact 
depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

Some 
impact. 
Around 60% 
of  workers 
are  covered 
by  CA  and 
CA  at 
the 
level  of  the 
undertaking 
are 
common. 

NL 

Seniority 
allowances; 
Allowance 
for  dirty  or 
dangerous 

Already 
implemented, 
no impact 

Legislative 
change 
required. 
National 
labour 

law 
98 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 

No  impact: 
equal 
treatment 
between 
local 

and 

 
 
 
 
work; 
Quality 
bonuses;13th 
month 
allowance 

will  apply  to 
workers 
posted 
for 
more  than  2 
years, 
including  on 
remuneration. 

PL 

Legal  change 
required, 
impact 
dependent  on 
number 
the 
and content of 
CA 
made 
universally 
applicable 

Legislative 
change 
required. 
National 
law 
labour 
will  apply  to 
workers 
posted 
for 
more  than  2 
years, 
including  on 
remuneration. 

99 

cross-
border 
temporary 
agent 
workers 
already 
place. 

in 

of 
faculty. 

this 

Impact 
depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

Impact 
limited since 
NL  usually 
makes  CA 
universally 
applicable. 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
of 
this 
faculty. 

Impact 
depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

Limited 
impact. 
Around 25% 
of  workers 
are  covered 
CA. 
by 
Although 
CA  at 
the 
level  of  the 
undertaking 
are 
common, 
workers 

 
 
 
 
 
posted to PL 
are  likely  to 
benefit  from 
more 
favourable 
conditions 
in  the  home 
MS. 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
of 
this 
faculty. 

Impact 
depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

Impact 
limited since 
IT 
usually 
makes  CA 
universally 
applicable. 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
of 
this 
faculty. 

Impact 
depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 

PT  No 

information 

Already 
implemented, 
no impact 

Legislative 
change 
required. 
National 
law 
labour 
will  apply  to 
workers 
posted 
for 
more  than  2 
years, 
including  on 
remuneration. 

RO 

Legal  change 
required, 
impact 
dependent  on 
the 
number 
and content of 
made 
CA 
universally 
applicable 

Legislative 
change 
required. 
National 
labour 
law 
will  apply  to 
workers 
posted 
for 
more  than  2 
years, 
including  on 
remuneration. 

100 

Legislative 
changes 
required  to 
implement 
the 
principle  of 
equal 
treatment 
with 
national 
temporary 
agency 
workers. 

Some 
impact 
since  TAW 
represent 
around 
12% 
workers 
posted 
PT. 

of 

to 

and 

No  impact: 
equal 
treatment 
between 
local 
cross-
border 
temporary 
agent 
workers 
already 
place. 

in 

 
 
 
 
CA. 

Impact 
limited since 
only  around 
of 
35% 
workers  are 
covered  by 
CA 
and 
workers 
to 
posted 
are 
RO 
likely 
to 
benefit  from 
more 
favourable 
conditions 
in  the  home 
MS. 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
this 
of 
faculty. 

Impact 
depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

SE 

No 
impact 
since  SE  has 
no mechanism 
to  make  CA 
universally 
applicable 

Legislative 
change 
required. 
National 
labour 
law 
will  apply  to 
workers 
posted 
for 
more  than  2 
years, 
including  on 
remuneration. 

and 

No  impact: 
equal 
treatment 
between 
local 
cross-
border 
temporary 
agent 
workers 
already 
place. 

in 

With  around 
90% 
of 
workers 
covered  by 
CA  and  no 
universally 
applicable 
CA, 
impact 
could 
significant. 

the 

be 

SI 

Legal  change 
required, 

Legislative 
change 

Legislative 
required 

101 

 
 
 
 
 
 
impact 
dependent  on 
the 
number 
and content of 
CA 
made 
universally 
applicable 

required. 
National 
labour 
law 
will  apply  to 
workers 
for 
posted 
more  than  2 
years, 
including  on 
remuneration. 

SK 

Legal  change 
required, 
impact 
dependent  on 
the 
number 
and content of 
CA 
made 
universally 
applicable 

Legislative 
change 
required. 
National 
labour 
law 
will  apply  to 
workers 
posted 
for 
more  than  2 
years, 
including  on 
remuneration. 

102 

only  if  MS 
to 
decides 
itself 
avail 
of 
this 
faculty. 

Impact 
depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

Impact 
limited since 
IT 
usually 
makes  CA 
universally 
applicable. 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
this 
of 
faculty. 

Impact 
depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

Impact 
limited since 
only  around 
35% 
of 
workers  are 
covered  by 
and 
CA 
workers 
posted 
SK 

to 
are 

Legislative 
changes 
required  to 
implement 
the 
principle  of 
equal 
treatment 
with 
national 
temporary 
agency 
workers. 

Impact 
limited 
since  TAW 
represent 
around  1% 
of  a 
low 
number  of 
posted 
workers. 

 
 
 
 
and 

No  impact: 
equal 
treatment 
between 
local 
cross-
border 
temporary 
agent 
workers 
already 
place. 

in 

UK 

Legal  change 
required, 
impact 
dependent  on 
the 
number 
and content of 
CA 
made 
universally 
applicable 

Legislative 
change 
required. 
National 
labour 
law 
will  apply  to 
workers 
posted 
for 
more  than  2 
years, 
including  on 
remuneration. 

likely 
to 
benefit  from 
more 
favourable 
conditions 
in  the  home 
MS. 

Legislative 
required 
only  if  MS 
to 
decides 
itself 
avail 
this 
of 
faculty. 

Impact 
depends  on 
whether  the 
main 
contractor  is 
bound  by  a 
non-
universally 
applicable 
CA. 

Some 
impact. 
Around 30% 
of  workers 
are  covered 
by  CA  and 
the 
CA  at 
level  of  the 
undertaking 
are 
common. 

103