Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending 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
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

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   EUROPEAN COMMISSION  Strasbourg, 8.3.2016  COM(2016) 128 final 2016/0070 (COD)   Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending 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 (Text with EEA relevance) {SWD(2016) 52 final} {SWD(2016) 53 final}  
 
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

1.1. 

Reasons for and objectives of the proposal 

The  Commission  announced  in  its  Political  Guidelines  and  confirmed  in  its  Work 
Programme 2016 a targeted revision of the Posting of Workers Directive to address 
unfair  practices  and  promote  the  principle  that  the  same  work  at  the  same  place 
should be remunerated in the same manner.  

Posting of workers plays an essential role in the Internal Market, particularly in the 
cross-border  provision  of  services.  Directive  96/71/EC1  (hereafter:  'the  Directive') 
regulates  three  variants  of  posting:  the  direct  provision  of  services  by  a  company 
under  a  service  contract,  posting  in  the  context  of  an  establishment  or  company 
belonging to the same group ('intra-group posting'), and posting through hiring out a 
worker through 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) TEU). 

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 1.9 million postings in the 
EU (representing 0.7% of a total EU labour force), up by 10.3% as compared to 2013 
and  by  44.4%  with  respect  to  2010.  The  upward  trend  followed  some  stagnation 
during the years 2009 and 2010.  

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, 
mothers  who  have  recently  given  birth,  children,  and  young  people;  equality  of 
treatment between genders; and other provisions of non-discrimination.   
The 2014 Enforcement Directive2 has provided for new and strengthened instruments 
to fight and sanction circumventions, fraud and abuses. It addresses problems caused 

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Directive 96/71/EC  of  the European Parliament  and of  the  Council  of 16  December  1996  concerning 
the posting of workers in the framework of the provision of services, OJ L 18, 21.1.97, p.1. 
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’), OJ L 159, 28.5.2014, p. 11. 

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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,  which  can  also  be  used  to 
determine whether a person falls within the applicable definition of a posted worker. 
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 and 
requires  that  appropriate  and  effective  checks  and  monitoring  mechanisms  are  in 
place  and  that  national  authorities  carry  out  effective  and  adequate  inspections  on 
their  territory  in  order  to  control  and  monitor  compliance  with  the  provisions  and 
rules  laid  down  in  Directive  96/71/EC.  The  full  effects  of  the  Directive  should 
become  tangible  as  of  mid-2016,  as  Member  States  have  until  18  June  2016  to 
transpose the Directive.  

The current  initiative does  not  address  any issue touched  upon by the Enforcement 
Directive. 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. 

1.2. 

Consistency with existing policy provisions in the policy area 

The Commission has set itself to work towards a deeper and fairer Single 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. 

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 SMEs.  

At the same time, the Posting of Workers Directive underpins the initiatives for the 
road  transport  sector  announced  by  the  Commission  in  its  Work  Programme  2016. 
These  measures  will  aim  in  particular  to  further  enhance  social  and  working 
conditions of road transport workers fostering at the same time the efficient and fair 
provision  of  road  transport  services.  The  two  million  workers  engaged  in 
international  road  transport  operations  regularly  carry  out  work  on  the  territory  of 
different Member States, over brief periods of time. In this context, the forthcoming 
initiatives  for  the  road  transport  sector  should  contribute  to  more  clarity  and  better 
enforcement of the rules applicable to employment  contracts in  the transport sector 
and  may  address  the  specific  challenges  the  application  of  the  provisions  of  the 
Posting of Workers Directive raises in this specific sector. 

A  modernised  legislative  framework  for  posting  of  workers  will  contribute  to 
creating  transparent  and  fair  conditions  for  the  implementation  of  the  Investment 
Plan  for  Europe.  The  Investment  Plan  will  provide  an  additional  boost  to  cross-

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border service provision and thereby lead to increased demand for skilled labour to 
be  fulfilled.  As  strategic  infrastructural  projects  are  realised  across  the  Member 
States, companies will require appropriate skills for the job, and adequate conditions 
need to be set for that demand to be satisfied with adequate supply across borders. A 
modernised Posting of Workers Directive will contribute to investments taking place 
within conditions of undistorted competition and protection of workers' rights. 

to 

is  given 

The  EU  Platform  against  Undeclared  Work  may  positively  interact  with  a  view  to 
tackling  fraudulent  aspects  of  the  phenomenon  of  posting  of  workers.  Posting  is 
exposed to the risk of being subject of undeclared work practices, such as "envelope 
wages" or "cash-in-hand", whereby only part of the salary is paid officially, while the 
rest 
the  employee  unofficially,  bogus  self-employment,  and 
circumvention of relevant EU and national legislation. The EU has stepped action to 
fight  undeclared  work  and  continues  to  act  against  letter  box  companies.  The 
Commission  proposed  in  April  2014  the  establishment  of  a  Platform  for  the 
prevention and deterrence of undeclared work. The Platform will bring together the 
enforcement authorities of all Member States. It will facilitate the exchange of best 
practices,  develop  expertise  and  analysis  and  support  cross-border  cooperation  of 
Member States in order to fight undeclared work more efficiently and effectively. 

2. 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

2.1. 

Legal basis 

This  proposal amends  Directive 96/71/EC and is  therefore based on the  same legal 
basis, Articles 53(1) and 62 TFEU. 

2.2. 

Subsidiarity (for non-exclusive competence) 

An  amendment  to  an  existing  Directive  can  only  be  achieved  by  adopting  a  new 
Directive. 

2.3. 

Proportionality 

It  is  settled  case  law  that  restrictions  to  the  freedom  to  provide  services  are  only 
admissible  if  justified  by  overriding  reasons  in  the  public  interest,  relating  in 
particular to the protection of workers, and must be proportionate and necessary. 

The present proposal complies with this requirement since it does not harmonise the 
labour  costs  in  Europe  and  is  limited  to  what  is  necessary  to  guarantee  conditions 
adapted to living costs and standards of the host Member State for the duration of the 
assignment of the posted workers. 

In  a  highly  competitive  internal  market,  competition  is  based  on  quality  of  the 
service, productivity, costs (of which labour costs are but one part) and innovation. 
The present proposal does not therefore go beyond what is necessary to achieve its 
objective. 

3. 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

3.1. 

Stakeholder consultations 

By a joint letter, 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'. 

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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. 

Bulgaria, Czech Republic, Estonia, Hungary, Lithuania, Latvia, Poland, Slovakia and 
Romania,  by  a  joint  letter,  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  consider  action  only  insofar  as  evidence  is  rigorously  analysed 
concerning the challenges and specificities of cross-border service provision.  

ETUC has expressed support for a revision to ensure the principle of equal treatment. 
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  having  the  effect  of  favouring  company-level  over  sector-level 
collective  agreements.  In  turn,  the  ETUC  advised  that  the  Commission  proposes 
measures  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  combatting  bogus  self-employment,  and  better  enforcement  measures,  in 
particular inspections and more reliable social security forms.   

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".  Favourable  to  revising  the 
Directive  have  also  been  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 (FIEC and EFBWW) have also taken a joint position asking 
the Commission to assess a number of issues related to posting.. 

BUSINESSEUROPE 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. 
Businesseurope  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 

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the  metal,  engineering  and 

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 
technology 
Confederation  of  European  Managers  (CEC).  The  Confederation  of  Industry  of  the 
Czech  Republic  and  the  Industry  Associations  from  Finland,  Sweden,  Denmark, 
Iceland and Norway have in a joint letter also expressed concerns about introducing 
the principle of equal pay for equal work in the Posting of Workers Directive.  

industries  (CEEMET),  by 

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.  

EUROCIETT, representing the temporary work agency industry, has found that there 
is  in  general  no  need  for  reopening  the  1996  Directive.  Eurociett  has  nevertheless 
supported the principle of equal pay for equal work for posted agency workers and 
the application of the full set of rules provided for by the Temporary Agency Work 
Directive to posted agency workers.  

4. 

COLLECTION AND USE OF EXPERTISE 

Several  studies,  reports  and  articles  were  used  during  the  preparation  of  this 
initiative.  The  references  are  to  be  found  in  the  Impact  Assessment  Report 
accompanying the present proposal.  

5. 

IMPACT ASSESSMENT 

This  proposal  is  accompanied  by  an  Impact  Assessment  Report  which  analysis  the 
phenomenon  of  posting,  describes  the  problem  with  the  current  legal  framework, 
envisages  different  policy  options  to  address  it  and  finally  assesses  the  social  and 
economic impact of the policy options. 

6. 

FUNDAMENTAL RIGHTS 

This  Directive  respects  the  fundamental  rights  and  complies  with  the  principles 
recognised  by  the  Charter  of  Fundamental  Rights  of  the  European  Union.  In 
particular,  it  is  designed  to  ensure  full  compliance  with  Article  31  of  the  Charter, 
which provides that every worker has the right to working conditions which respect 
his or her health, safety and dignity, and to limitation of maximum working hours, to 
daily and weekly rest periods and to an annual period of paid leave. 

7. 

DETAILED EXPLANATION OF THE SPECIFIC PROVISIONS OF THE PROPOSAL 

Article 1 of the proposal introduces several changes to Directive 96/71/EC. 

7.1. 

Paragraph 1 

Paragraph  1  adds  a  new  Article  2bis  to  the  Directive.  This  Article  deals  with  the 
labour  law  to  be  applied  to  posted  workers  when  the  anticipated  or  the  effective 
duration  of  posting  exceeds  twenty-four  months.  This  is  without  prejudice  to  the 
possible  duration  of  a  temporary  provision  of  services.  The  Court  of  Justice  has 
consistently  held  that  the  distinction  between  the  freedom  of  establishment  and  the 
freedom to provide services on a temporary basis needs to be made on a case by case 
basis,  taking  into  account  not  only  the  duration  but  also  the  regularity,  periodicity 
and continuity of the provision of services.  

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Paragraph 1 of the new Article 2bis applies when it is anticipated that the duration of 
posting  will  be  superior  to  24  months  or  when  the  effective  duration  of  posting 
exceeds 24 months. In both cases, the host Member State is deemed to be the country 
in which the work is habitually carried out. In application of the rules of the Rome I 
Regulation3,  the  labour  law  of  the  host  Member  Sate  will  therefore  apply  to  the 
employment contract of such posted workers if no other choice of law was made by 
the parties. In case a different choice was made, it cannot, however, have the result of 
depriving the employee of the protection afforded to him by provisions that cannot 
be derogated from by agreement under the law of the host Member State. 

In order to prevent the circumvention of the rule set out in paragraph 1, paragraph 2 
clarifies that, in case of replacement of a worker regarding the same task, calculation 
of  the  duration  of  posting  must  take  into  account  the  cumulative  duration  of  the 
posting of the workers concerned. The rule of paragraph 1 will apply whenever the 
accumulated  duration  exceeds  24  months  but,  in  order  to  respect  the  principle  of 
proportionality, only to the workers posted for at least six months. 

7.2. 

Paragraph 2 

Paragraph 2 introduces several changes to Article 3 of the Directive. 

Point (a) 

Point (a) replaces paragraph 1 of Article 3 of the Directive. 

The new text introduces three main changes: 

– 

– 

– 

it  suppresses  the  reference  to  the  "activities  referred  to  in  the  Annex"  in  the 
second indent; 

it  replaces  the  reference  to  "minimum  rates  of  pay"  by  a  reference  to 
"remuneration"4; 

it  adds  a  new  subparagraph  imposing  on  Member  States  an  obligation  to 
publish information on the constituent elements of remuneration. 

The  first  change  makes  the  collective  agreements  universally  applicable  within  the 
meaning of Article 3(8) applicable to posted workers in all sectors of the economy, 
irrespective  of  whether  the  activities  are  referred  to  in  the  annex  to  the  Directive 
(which currently is the case only for the construction sector).  

It  is  within Member  States'  competence  to  set  rules  on  remuneration  in  accordance 
with  their  law  and  practice.  The  second  amendment  implies  that  the  rules  on 
remuneration  applicable  to  local  workers,  stemming  from  the  law  or  collective 
agreements  universally  applicable  within  the  meaning  of  Article  3(8),  are  also 
applicable to posted workers.  

Finally, the new subparagraph imposes on Member States an obligation to publish in 
the website referred to in Article 5 of Directive 2014/67/EU the constituent elements 
of remuneration applicable to posted workers. 

Point (b) 

A new paragraph is added which deals with situations of subcontracting chains. This 
new  rule  gives  the  faculty  to  Member  States  to  oblige  undertakings  to  subcontract 

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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. 
Building on case law of the Court in Case C-396/13.  

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only  to  undertakings  that  grant  workers  certain  conditions  on  remuneration 
applicable  to  the  contractor,  including  those  resulting  from  non-universally 
applicable collective agreements. This  is  only  possible on a proportionate and non-
discriminatory basis and would thus in particular require that the same obligations be 
imposed on all national sub-contractors. 

Point (c) 

It adds a new paragraph which sets the conditions applicable to the workers referred 
to  in  Article  1(3)(c)  of  the  Directive,  i.e.  workers  hired  out  by  a  temporary  agency 
established in a Member State other than the Member State of establishment of the 
user undertaking. This new paragraph corresponds to Article 3(9) of the Directive. It 
specifies that the conditions to be applied to cross-border agencies hiring out workers 
must  be  those  that  are,  pursuant  to  Article  5  of  Directive  2008/104/EC,  applied  to 
national agencies hiring out workers. Contrary to Article 3(9) of the Directive, this is 
now a legal obligation imposed on Member States. 

7.3. 

Paragraph 3 

Paragraph  3  amends  the  Annex  to  the  Directive  following  the  changes  made  to 
Article 3(1). 

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2016/0070 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending 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 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Economic and Social Committee5, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

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

The freedom to provide services includes the right of undertakings to provide services 
in  another  Member  State,  to  which  they  may  post  their  own  workers  temporarily  in 
order to provide those services there. 

According  to  Article  3  TEU,  the  Union  shall  promote  social  justice  and  protection. 
Article 9 TFEU  gives  the Union the task to  promote a  high  level of employment, to 
guarantee an adequate social protection and to combat social exclusion. 

Almost twenty years after its adoption, it is necessary to assess whether the Posting of 
Workers  Directive  still  strikes  the  right  balance  between  the  need  to  promote  the 
freedom to provide services and the need to protect the rights of posted workers. 

The  principle  of  equal  treatment  and  the  prohibition  of  any  discrimination  based  on 
nationality are enshrined in EU law since the founding Treaties. The principle of equal 
pay has been implemented through secondary law not only between women and men, 
but  also  between  employees  with  fix  term  contracts  and  comparable  permanent 
workers,  between  part-time  and  full-time  workers  or  between  temporary  agency 
workers and comparable workers of the user undertaking. 

5 

OJ C , , p. . 

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(6) 

(7) 

(8) 

The Rome I Regulation generally permits employers and employees to choose the law 
applicable to the employment contract. However, the employee must not be deprived 
of the protection of the mandatory rules of the law of the country in which or, failing 
that,  from  which  the  employee  habitually  carries  out  his  work.  In  the  absence  of 
choice,  the  contract  is  governed  by  the  law  of  the  country  in  which  or,  failing  that, 
from  which  the  employee  habitually  carries  out  his  work  in  performance  of  the 
contract.  

The Rome I Regulation provides that the country where the work is habitually carried 
out  shall  not  be  deemed  to  have  changed  if  he  is  temporarily  employed  in  another 
country. 

In view of the long duration of certain posting assignments, it is necessary to provide 
that,  in  case  of  posting  lasting  for  periods  higher  than  24  months,  the  host  Member 
State is deemed to be the country in which the work is carried out. In accordance with 
the principle of Rome I Regulation, the law of the host Member Sates therefore applies 
to the employment contract of such posted workers if no other choice of law was made 
by the parties. In case a different choice was made, it cannot, however, have the result 
of depriving the employee of the protection afforded to him by provisions that cannot 
be derogated from by agreement under the law of the host Member State. This should 
apply from the start of the posting assignment whenever it is envisaged for more than 
24  months  and  from  the  first  day  subsequent  to  the  24  months  when  it  effectively 
exceeds  this  duration.  This  rule  does  not  affect  the  right  of  undertakings  posting 
workers  to  the  territory  of  another  Member  State  to  invoke  the  freedom  to  provide 
services in circumstances  also where  the posting exceeds  24  months.  The purpose is 
merely  to  create  legal  certainty  in  the  application  of  the  Rome  I  Regulation  to  a 
specific situation, without amending that Regulation in any way. The employee will in 
particular enjoy the protection and benefits pursuant to the Rome I Regulation. 

(9) 

It  is  settled  case  law  that  restrictions  to  the  freedom  to  provide  services  are  only 
admissible  if  justified  by  overriding  reasons  in  the  public  interest  and  must  be 
proportionate and necessary. 

(10)  Because  of  the  highly  mobile  nature  of  work  in  international  road  transport,  the 
implementation  of  the  posting  of  workers  directive  raises  particular  legal  questions 
and  difficulties  (especially  where  the  link  with  the  concerned  Member  State  is 
insufficient).  It  would  be  most  suited  for  these  challenges  to  be  addressed  through 
sector-specific  legislation  together  with  other  EU  initiatives  aimed  at  improving  the 
functioning of the internal road transport market. 

(11) 

(12) 

In a competitive internal market, service providers compete not only on the basis of a 
labour costs but also on factors such as productivity and efficiency, or the quality and 
innovation of their goods and services. 

It  is  within  Member  States'  competence  to  set  rules  on  remuneration  in  accordance 
with their law and practice. However, national rules on remuneration applied to posted 
workers  must  be  justified  by  the  need  to  protect  posted  workers  and  must  not 
disproportionately restrict the cross-border provision of services. 

(13)  The elements of remuneration under national law or universally applicable collective 
agreements  should  be  clear  and  transparent  to  all  service  providers.  It  is  therefore 
justified  to  impose  on  Member  States  the  obligation  to  publish  the  constituent 
elements  of  remuneration  on  the  single  website  provided  for  by  Article  5  of  the 
Enforcement Directive. 

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(14)  Laws,  regulations,  administrative  provisions  or  collective  agreements  applicable  in 
Member  States  may  ensure  that  subcontracting  does  not  confer  on  undertakings  the 
possibility  to  avoid  rules  guaranteeing  certain  terms  and  conditions  of  employment 
covering remuneration. Where such rules on remuneration exist at national level, the 
Member  State  may  apply  them  in  a  non-discriminatory  manner  to  undertakings 
posting workers to its territory provided that they do not disproportionately restrict the 
cross-border provision of services. 

(15)  Directive 2008/104/EC of the European Parliament and of the Council on temporary 
agency work gives expression to the principle that the basic working and employment 
conditions  applicable  to  temporary  agency  workers  should  be  at  least  those  which 
would apply to such workers if they were recruited by the user undertaking to occupy 
the same job. This principle should also apply to temporary agency workers posted to 
another Member State. 

(16) 

In  accordance  with  the Joint  Political  Declaration  of  28  September  2011  of  Member 
States  and  the  Commission  on  explanatory  documents6,  Member  States  have 
undertaken  to  accompany,  in  justified  cases,  the  notification  of  their  transposition 
measures  with  one  or  more  documents  explaining  the  relationship  between  the 
components  of  a  directive  and  the  corresponding  parts  of  national  transposition 
instruments. With regard to this Directive, the legislator considers the transmission of 
such documents to be justified, 

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 
Amendments to Directive 96/71/EC 

Directive 96/71/EC is hereby amended as follows: 

(1) 

The following Article 2a is added: 

Article 2a 

Posting exceeding twenty-four months 

1.  When  the  anticipated  or  the  effective  duration  of  posting  exceeds  twenty-four 
months, the Member State to whose territory a worker is posted shall be deemed to 
be the country in which his or her work is habitually carried out. 

2.  For  the  purpose  of  paragraph  1,  in  case  of  replacement  of  posted  workers 
performing  the same task at the same place, the cumulative duration of the posting 
periods of the workers concerned shall be taken into account, with regard to workers 
that are posted for an effective duration of at least six months. 

(2) 

Article 3 is amended as follows: 

(a)  Paragraph 1 is replaced by the following: 

1.  Member  States  shall  ensure  that,  whatever  the  law  applicable  to  the 
employment  relationship,  the  undertakings  referred  to  in  Article  1  (1) 
guarantee  workers  posted  to  their  territory  the  terms  and  conditions  of 
employment covering the following matters which, in the Member State 
where the work is carried out, are laid down: 

– 

by law, regulation or administrative provision, and/or 

6 

OJ C 369, 17.12.2011, p. 14. 

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– 

by collective agreements or arbitration awards which have been declared 
universally applicable within the meaning of paragraph 8: 

(a)  maximum work periods and minimum rest periods; 

(b)  minimum paid annual holidays 

(c) 

(d) 

remuneration,  including  overtime  rates;  this  point  does  not  apply  to 
supplementary occupational retirement pension schemes; 

the  conditions  of  hiring-out  of  workers,  in  particular  the  supply  of 
workers by temporary employment undertakings; 

(e)  health, safety and hygiene at work; 

(f) 

protective  measures  with  regard  to  the  terms  and  conditions  of 
employment  of  pregnant  women  or  women  who  have  recently  given 
birth, of children and of young people; 

(g) 

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

For  the  purpose  of  this  Directive,  remuneration  means  all  the  elements  of 
remuneration rendered mandatory by national law, regulation or 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. 

Member States shall publish in the single official national website referred to in 
Article 5 of Directive 2014/67/EU the constituent elements of remuneration in 
accordance with point (c).  

(b)  The following paragraph is added: 

1a. If undertakings established in the territory of a Member State are obliged by 
law,  regulation,  administrative  provision  or  collective  agreement,  to  sub-
contract in the context of their contractual obligations only to undertakings that 
guarantee certain terms and conditions of employment covering remuneration, , 
the  Member  State  may,  on  a  non–discriminatory  and  proportionate  basis, 
provide  that  such  undertakings  shall  be  under  the  same  obligation  regarding 
subcontracts with  undertakings referred to  in  Article 1 (1) posting workers to 
its territory. 

(c)  The following paragraph is added 

1b.  Member  States  shall  provide  that  the  undertakings  referred  to  in  Article 
1(3)(c)  guarantee  posted  workers  the  terms  and  conditions  which  apply 
pursuant  to  Art.  5  Directive  2008/104/EC  of  the  European  Parliament  and  of 
the  Council  of  19  November  2008  on  temporary  agency  work  to  temporary 
workers  hired-out  by  temporary  agencies  established  in  the  Member  State 
where the work is carried out. 

(d)  Paragraph 9 is deleted. 

(e)  The second subparagraph of paragraph 10 is deleted. 

(3) 

The first paragraph of the Annex is amended as follows: 

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The  activities  mentioned  in  Article  3  include  all  building  work  related  to  the 
construction,  repair,  upkeep,  alteration  or  demolition  of  buildings,  and  in  particular 
the following work:. 

Article 2 

1. 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions necessary to comply  with this Directive by  [two years after adoption] at 
the  latest.  They  shall  forthwith  communicate  to  the  Commission  the  text  of  those 
provisions. 

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

2. 

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

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

Article 3 

This Directive is addressed to the Member States. 

Done at Strasbourg, 

Article 4 

For the European Parliament 
The President 

For the Council 
The President 

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