COMMISSION STAFF WORKING DOCUMENT Accompanying the document REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE on the application and implementation of Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services
Date: 2024-04-30
Institutions: Directorate-General for Employment, Social Affairs and Inclusion, European Commission
Subjects: application of EU law, collective agreement, equal treatment, free movement of workers, freedom to provide services, labour law, posted worker, provision of services, remuneration of work, working conditions

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 30.4.2024  SWD(2024) 320 final  COMMISSION STAFF WORKING DOCUMENT    Accompanying the document REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE  on the application and implementation of Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services {COM(2024) 320 final}  
 
 
3.1.1.4.10. 

3.1.1.4.8. 
3.1.1.4.9. 

3.1.1.4.1. 
3.1.1.4.2. 
3.1.1.4.3. 
3.1.1.4.4. 
3.1.1.4.5. 
3.1.1.4.6. 
3.1.1.4.6.1. 
3.1.1.4.6.2. 
3.1.1.4.7. 

Introduction ......................................................................................................................................... 2 
1. 
Transposition process .......................................................................................................................... 3 
2. 
3. 
Detailed analysis of Member States application and implementation of the Directive ....................... 4 
3.1.  Article 1 of the Directive ..................................................................................................................... 4 
3.1.1.  Article 1 (1) of the Directive: amendments to Article 1 (scope) of Directive   96/71/EC ................... 4 
Point (a) – subject matter and scope ................................................................................... 4 
3.1.1.1. 
Point (b) – aim of the Directive and the Monti clause ........................................................ 4 
3.1.1.2. 
Point (c) – double or chain posting ..................................................................................... 5 
3.1.1.3. 
3.1.1.4. 
Article 1(2) of the Directive – terms and conditions of employment, long-term posting,       
temporary agency workers, posting allowances, collective agreements and other terms 
and conditions of employment ............................................................................................ 7 
Point (a) – terms and conditions of employment ................................................................ 8 
Application of universally applicable collective agreements to all sectors ........................ 8 
Remuneration ..................................................................................................................... 8 
New elements of the terms and conditions of employment of the host Member State ..... 11 
Information obligations .................................................................................................... 13 
Point b) – long-term posting and temporary agency workers ........................................... 15 
Paragraph 1a – rules on long-term posting ....................................................................... 15 
Paragraph 1(b) – Equal treatment of posted temporary   agency workers ........................ 18 
Point (c) on the terms and conditions of employment more favourable to workers and 
posting allowances ............................................................................................................ 21 
Point (d) on collective agreements ................................................................................... 23 
Point (e) on additional terms and conditions of employment that apply to temporary         
agency workers ................................................................................................................. 24 
Point  (e)  on  application of  additional  terms  and  conditions  of  employment  based  on 
equality of treatment ......................................................................................................... 24 
Article 1(3) on cooperation between Member States ....................................................... 25 
3.1.1.5. 
Article 1(4) on monitoring, control and enforcement ....................................................... 26 
3.1.1.6. 
Article 1(5) on the introductory wording of the Annex .................................................... 29 
3.1.1.7. 
4. 
Subcontracting and the posting of workers ....................................................................................... 29 
4.1.  Applicable legal framework .............................................................................................................. 29 
4.2.  Main challenges identified related to subcontracting chains ............................................................. 30 
4.3.  Good practices for addressing the identified challenges ................................................................... 31 
5. 
Posting of third-country nationals ..................................................................................................... 32 
5.1.  Main challenges related to the posting of third-country nationals ..................................................... 33 
5.2.  Good practices for addressing the identified challenges ................................................................... 34 
6. 
Main conclusions............................................................................................................................... 35 
6.1.  Double or chain posting .................................................................................................................... 35 
6.2. 
Terms and conditions of employment ............................................................................................... 36 
6.2.1.  Remuneration .................................................................................................................................... 36 
6.2.2.  New elements of the terms and conditions of employment ............................................................... 36 
6.2.3.  Information obligations ..................................................................................................................... 36 
Long-term posting ............................................................................................................................. 36 
6.3. 
Temporary agency workers ............................................................................................................... 36 
6.4. 
6.5. 
Posting allowances ............................................................................................................................ 37 
6.6.  Cooperation between the competent national authorities and bodies ................................................ 37 
6.7.  Monitoring, control and enforcement ................................................................................................ 37 
Subcontracting ................................................................................................................................... 37 
6.8. 
Third-country nationals ..................................................................................................................... 37 
6.9. 

1 

 
 
 
1.  Introduction 
This detailed staff working document accompanies the report (1) from the Commission to the 
European Parliament, the Council and the European Economic and Social Committee on the 
application and implementation by the Member States of Directive (EU) 2018/957 amending 
Directive 96/71/EC  concerning the posting  of workers in  the framework  of the provision  of 
services (2) (the Directive).  

Article  2  of  the  Directive  requires  the  Commission  to  review  the  application  and 
implementation of the Directive and to submit a report to the European Parliament, the Council 
and the European Economic and Social Committee, as well as to propose, where appropriate, 
necessary amendments to the Directive and to Directive 96/71/EC (3). In particular, the report 
has to include an assessment of certain provisions of the Directive in order to determine whether 
further measures are required to ensure a level playing field and protect workers, notably in the 
case of subcontracting and on the measures mentioned in Article 2(2)(b) and Article 3(3) of the 
Directive regarding the road transport sector. 

Both  the  implementation  report  and  this  accompanying  staff  working  document  are  sector 
neutral. Article 2(2)(b) of Directive (EU) 2018/957 requires the Commission to include in the 
report reviewing the application and implementation of the Directive an assessment of whether 
further measures to ensure a level playing field and protect workers are necessary on the posting 
of drivers in the road transport sector. This provision was included in case of non-adoption of 
the specific legislation on the posting of drivers in that sector. Since Directive (EU) 2020/1057 
(4) was adopted, it is no longer necessary to include a specific assessment on the road transport 
sector as this will be evaluated in the report on the implementation of Directive (EU) 2020/1057 
(5).  

This accompanying staff working document presents the results of the review of the application 
and implementation of the Directive in greater detail than in the report to the EU institutions, 
which focuses on the main trends. It provides a general overview of how Member States have 
implemented  the  Directive  but  does  not  present  an  exhaustive  account  of  all  national 
implementation  measures.  In  particular,  this  staff  working  document  does  not  prejudge  the 
stance which the Commission may take in connection with any infringement procedure on the 
compatibility of such measures with EU law.  

In addition to the specific assessment on subcontracting, the report as well as this accompanying 
staff working document also include an analysis of the situation of posted third-country national 
workers. This is due to the recent increase in the posting of third-country national workers and 
its expected expansion in the future as an important intra-EU mobility channel (6). 

(1)   COM (2024) 320. 
(2)   Directive  2018/957/EU  of  the  European  Parliament  and  of  the  Council  amending  Directive  96/71/EC 

concerning the posting of workers in the framework of the provision of services, OJ L 173, 9.7.2018, p. 16. 

(3)  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, 21.1.1997, p. 1. 

(4)   Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020 laying down specific 
rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport 
sector and amending Directive 2006/22/EC as regards enforcement requirements and Regulation (EU) No 
1024/2012, OJ L 249, 31.7.2020, p. 49.  

(5)  Directive (EU) 2020/1057 requires the Commission to evaluate its implementation by 31 December 2025. 
(6)  Report  on  the  cooperation  practices,  possibilities  and  challenges  between  Member  States  –  specifically  in 
relation to the posting of third-country nationals, Final Report ELA/2022/RS/027/ELA.306-2021/TITLE 3/2.2 
February  2023.  The  report  is  accessible  via  this  link:  ela-report-posting-third-country-nationals.pdf 
(europa.eu) 

2 

 
 
 
 
 
 
 
This accompanying staff working document also looks at the application and implementation 
of  other  provisions  of  Directive  96/71/EC  that  the  Directive  did  not  amend.  Insofar  as  the 
available  information  allows,  the  staff  working  document  also  considered  the  practical 
effectiveness of the measures taken by Member States.  

The report and this accompanying staff working document are based on the information on the 
national  measures  transposing  the  Directive  that  Member  States  have  communicated  to  the 
Commission.  The  Commission  has  also  collected  information  on  the  implementation  of  the 
Directive  by  the  Member  States  through  a  questionnaire  distributed  to  the  members  of  the 
MoveS network (7). 

In addition, the Commission has used the work carried out by the subgroup for the transposition 
of the Directive within the Expert Committee on Posting of Workers (the ECPW) (8) and it has 
also  collected  the  views  of  Member  States  and  social  partners  through  a  questionnaire 
distributed by the European Labour Authority (ELA) (the questionnaire on the implementation 
of the Directive).  

The Commission has also taken into account a study supporting the monitoring of the Posting 
of  Workers  Directive  (EU)  2018/957  and  of  the  Enforcement  Directive  2014/67/EU  (9),  in 
particular to assess whether further measures are necessary in order to ensure a level playing 
field and protect workers in the case of subcontracting. 

When  analysing  the  situation  of  posted  third-country  nationals,  the  Commission  has  paid 
particular attention to the recent work of ELA on this matter (10). 

The  Commission  has  also  considered  the  information  brought  to  the  attention  of  the 
Commission by members of the European Parliament, citizens’ complaints and petitions and 
various stakeholders. 

2.  Transposition process 

Article 3(1) of the Directive required the Member States to transpose it by 30 July 2020. 

To  assist  Member  States  with  the  transposition,  the  Commission  set  up  a  subgroup  on  the 
transposition of the Directive within the ECPW. By the deadline of 30 July 2020, 12 Member 
States  (Belgium,  Germany,  Estonia,  France,  Lithuania,  Hungary,  Malta,  the  Netherlands, 
Poland,  Romania,  Slovakia  and  Sweden)  had  notified  the  Commission  that  they  had  fully 
transposed the Directive. Italy notified the Commission that it had fully transposed the Directive 
after the deadline. 

Seel  also  Employment  and  social  developments  in  Europe  (ESDE)  2023  -  Publications  Office  of  the  EU 
(europa.eu)  

(7)  The  Network of  Legal  Experts  (MoveS) is  a network of  independent  experts  in  the  field  of  intra-EU 
mobility. MoveS stands  for  Free Movement of  Workers  and  Social  Security  Coordination.  The network is 
funded by the European Commission. It covers the 27 EU Member States, as well as Iceland, Liechtenstein, 
Norway and Switzerland. 

(8)  Report of the subgroup on the transposition of Directive (EU) 2018/957, Report to the Committee of Experts 

on Posting of Workers (ECPW). https://ec.europa.eu/social/BlobServlet?docId=22913&langId=en 

(9)   Study supporting the monitoring of the Posting of Workers Directive 2018/957/EU and of the  Enforcement 
Directive 2014/67/EU. This study has been prepared for the European Commission. It reflects the views only 
of the authors, and the European Commission is not liable for any consequence stemming from the reuse of 
this publication. https://op.europa.eu/en/web/general-publications 

(10)  See footnote (6). 

3 

 
 
 
 
 
 
 
 
 
 
 
On 8 October 2020, the Commission sent letters of formal notice to 14 Member States who had 
not notified their transposition measures or had done so only partially (11). 

On 9 June 2021, the Commission sent reasoned opinions to Austria and Slovenia. The other 
Member States notified their transposition measures in the meantime.  

By  November  2021,  all  27  Member  States  had  notified  the  Commission  that  they  had  fully 
transposed the Directive. All Member States had passed new laws or administrative acts or had 
amended existing acts. 

3.  Detailed analysis of Member States application and implementation of the Directive 

3.1. Article 1 of the Directive  

Article  1  of  the  Directive  contains  the  amendments  to  Directive  96/71/EC.  The  Article  is 
divided into five paragraphs which are explained in the sections below. 

3.1.1.  Article 1 (1) of the Directive: amendments to Article 1 (scope) of Directive   

96/71/EC 

Paragraph 1 of Article 1 of the Directive amends Article 1 of Directive 96/71/EC, which sets 
out its scope.  It includes three points: (a), (b) and (c). 

3.1.1.1.  Point (a) – subject matter and scope  

Point (a) amends the title of Article 1 of Directive 96/71/EC to better reflect its content following 
the amendments made by the Directive. This is a declaratory provision which is intended to 
clarify the content of Article 1 of Directive 96/71/EC.  

3.1.1.2.  Point (b) – aim of the Directive and the Monti clause 

Point (b) inserts two new subparagraphs into Article 1 of Directive 96/71/EC: subparagraphs -
1 and -1a. 

Subparagraph  -1  makes  explicit  the  aim  of  the  Directive,  which  is  the  protection  of  posted 
workers during their posting in relation to the freedom to provide services. This provision does 
not create any rights or legal obligations, but Member States should ensure that the aim of the 
Directive referred to in this new subparagraph is reflected in the national law transposing the 
Directive (12). National legislation in all Member States reflects this aim. 

Subparagraph -1a is known as the Monti clause. The objective of this clause is to ensure the 
free movement of services within the EU, while acknowledging the right and freedom to take 
strike  action  in  accordance  with  the  industrial  relations  systems  prevailing  in  the  Member 
States. Both economic freedoms and the right to strike are thus respected.  

This clause has been in the EU legal order since the adoption of the Monti Regulation in 1998 
(13). In the area of the freedom to provide services and posting, this clause is also included in 

(11)  Bulgaria, Croatia, Czechia, Denmark, Ireland, Greece, Spain, Cyprus, Latvia, Luxembourg, Austria, Portugal, 

Slovenia and Finland, 

(12)  See subpoint 3.1.1.2 of the report of the subgroup on the transposition of Directive (EU) 2018/957, Report to 

the Committee of Experts on Posting of Workers (ECPW).   

(13)  Council Regulation (EC) No. 2679/98 of 7 December 1998 on the functioning of the internal market in relation 

to the free movement of goods among the Member States, OJ L 337, 12.12.1998, p. 8. 

4 

 
 
 
  
 
 
 
 
 
the  Services  Directive  (14)  and  in  Directive  2014/67/EU  (15)  (the  Enforcement  Directive). 
Directive 96/71/EC also reflects this clause in recital 22 (16). 

In practice, fundamental rights recognised by Member states and at EU level including the right 
to strike and the right or freedom to take other actions in the area of industrial relations are not 
affected by the provisions of the Directive. Nevertheless, subparagraph -1a is intended to recall, 
while also ensuring the free movement of services within the EU, the right and freedom to take 
strike  action  in  accordance  with  the  industrial  relations  systems  prevailing  in  the  Member 
States.  

11 Member States (17) have included provisions in their national legislation reflecting the Monti 
clause, in some cases literally.  

3.1.1.3.  Point (c) – double or chain posting 

Point  (c)  introduces  two  amendments  to  Article  1(3)  of  Directive  96/71/EC.  The  first 
amendment is of a purely editorial nature (18). 

The second amendment adds to Article 1(3) of Directive 96/71/EC two new subparagraphs that 
address the situation known as double or chain posting. This is a situation where a worker is 
recruited  by  a  temporary  employment  undertaking  or  placement  agency  (temporary 
employment agency) and hired out to perform work for a user undertaking.  A double or chain 
posting occurs when the user undertaking sends the worker to temporarily carry out activities 
in  a  Member  State  other  than  the  Member  State  where  the  worker  normally  works  for  the 
temporary employment agency or for the user undertaking to yet another Member State (19).  

This means, in essence, that a worker is posted from Member State A to Member State B and 
is then further re-posted to Member State C.  

The temporary employment agency and the user undertaking can be established/operating in 
the same Member State or in two different Member States. The provision is applicable in both 
cases, provided that the user undertaking sends the worker to carry out activities in a Member 
State  other  than  the  Member  State  where  the  worker  normally  works  for  the  temporary 
employment agency or for the user undertaking (20). 

In  these  situations,  the  worker  is  considered  as  being  posted  by  the  temporary  employment 
agency  with  which  the  worker  has  an  employment  relationship.  This  means  that  it  is  the 
temporary  employment  agency  which  bears  the  responsibility  of  complying  with  all  the 
provisions of Directive 96/71/EC and the Enforcement Directive. This is the case even when 
the  temporary  employment  agency  and  the  user  undertaking  are  established  in  the  same 
Member State. 

(14)  Article 1(7) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 

on services in the internal market, OJ L 376, 27.12.2006, p. 36. 

(15)  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. 

(16)  “Whereas this Directive is without prejudice to the law of the Member States concerning collective action to 

defend the interests of trades and professions”. 

(17)  Greece, France, Croatia, Cyprus, Luxembourg, Malta, Portugal, Romania, Slovakia, Sweden and Finland. 
(18)  See subpoint 3.1.1.3 of the report of the subgroup on the transposition of Directive (EU) 2018/957, Report to 

the Committee of Experts on Posting of Workers (ECPW).   

(19)  See footnote 18.   
(20)  See footnote 18.   

5 

 
 
  
 
 
 
 
 
 
In addition, the user undertaking is obliged to inform the temporary employment agency in due 
time if it is planning to send the worker hired out by the temporary employment agency to carry 
out  activities  in  another  Member  State.  For  instance,  the  user  undertaking  to  which  the 
temporary  agency  worker  has  been  posted  (in  Member  State  B)  must  inform  the  temporary 
employment  agency  (in  Member  State  A)  in  due  time  before  the  posted  temporary  agency 
worker starts carrying out tasks in a further Member State (Member State C).  

On this basis, within the scope of the Directive, Member States might be concerned from three 
different perspectives: 
- as a Member State of  establishment of the temporary  employment  agency (home Member 
State); 
-  as  a  Member  State  of  establishment  (or  operation)  of  the  user  undertaking  (home  or  host 
Member State); 
- as the Member State where the activities are carried out following the double or chain posting 
(host Member State) (21). 

Almost all Member States have regulated the situation of posted temporary agency workers in 
a chain posting situation. 

Some Member States (Hungary, Slovakia) do not allow user undertakings to assign temporary 
agency  workers  to  another  employer.  Hungary  does  not  allow  chain  posting  when  it  is  the 
Member State of establishment of the temporary employment agency.  Slovakia only allows 
chain posting for the situations covered by Article 1(3)(a) (posting under a contract of services) 
and 1(3)(b) (intra-company posting) of Directive 96/71/EC.  

A large majority of Member States identify temporary employment agencies as the undertaking 
that make the posting.  National legislation does not always specify this explicitly, but it can be 
inferred from the national legislation.   

For  instance,  legislation  in  France  does  not  explicitly  specify  that  temporary  employment 
agencies are the undertakings making the posting. However, it can be indirectly inferred from 
Article L. 1262-2-1 of the Labour Code, which requires the user undertaking that is established 
outside the national territory and that, in order to carry out its activity on the national territory, 
has recourse to posted workers made available by a temporary employment agency which is 
also  established  outside  the  national  territory  to  inform  the  temporary  employment  agency 
which employs  the posted  workers before  their posting on the national  territory of the rules 
applicable to these posted workers. 

23  Member  States (22)  have  made  specific  reference  to  the  user  undertaking’s  obligation  to 
inform the temporary employment agency in the case of double or chain posting. The other four 
Member States (Ireland, Croatia, Hungary and Slovenia) have not included this provision of 
information requirement in their legislation. 

Some Member States require this information to be provided before commencement of the work 
(Belgium, Germany, Lithuania, Luxembourg, Malta,  the Netherlands, Austria and Portugal), 
within a reasonable time before the posting (Denmark, Estonia, Greece, France and Cyprus) or 
without delay (meaning immediately) (Italy).  

(21)  See footnote 18.    
(22)  Belgium,  Bulgaria,  Czechia,  Denmark,  Germany,  Estonia,  Greece,  Spain,  France,  Italy,  Cyprus,  Latvia, 
Lithuania, Luxembourg, Malta, the Netherlands, Austria, Poland, Portugal, Romania, Slovakia, Finland and 
Sweden. 

6 

 
 
 
 
 
 
 
 
 
 
‘In due time’ has been further specified in some Member States, such as Romania (at least 30 
days before starting the activity), Poland (at least 15 working days before the posting), Bulgaria 
(5 days before the posting) or Sweden (no later than 10 days before the commencement of the 
work). In Czechia, Germany, Latvia and Portugal, there is an obligation to inform ‘in due time’, 
without  specifying  what  is  to  be understood  as ‘due time’. Finland does  not  state a  specific 
timeframe for the user undertaking to inform the temporary employment agency. 

Most Member States replying to the questionnaire on the implementation of the Directive have 
not prescribed a specific format for the obligation to inform the temporary employment agency 
in case of chain or double posting.  Some Member States (Greece, France and Portugal) state 
that this information may be sent by any means. Others have stated that it has to be in writing 
(digital  or  paper)  (Italy),  according  to  the  format  agreed  between  the  parties  (Latvia)  or 
depending on the choice of the service provider (the Netherlands). In Belgium, a specific form 
is provided to comply with the information obligation.  

Conclusion  

Almost all Member States have included the Directive’s provisions on temporary employment 
agencies in a double or chain posting situation in their national legislation. A large majority 
identify  temporary  employment  agencies  as  the  undertaking  that  make  the  posting  in  these 
situations, explicitly or implicitly. Most Member States explicitly refer to the user undertaking’s 
obligation to inform the temporary employment agency in the case of a chain or double posting.  
In this context, the timeframe for the user undertaking to inform the temporary  employment 
agency on the double or chain posting situation, as reflected in the concept of ‘in due time’, 
varies between Member States.   

3.1.1.4. Article 1(2) of the Directive – terms and conditions of employment, 
long-term  posting,  temporary  agency  workers,  posting  allowances, 
collective agreements and other terms and conditions of employment 

Article 1(2) of the Directive introduces amendments to Article 3 of Directive 96/71/EC. It is 
divided in the following points:  

-  point (a) replaces paragraph 1 on the terms and conditions of employment; 
-  point  (b)  inserts  two  paragraphs  into  paragraph  1  on  the  terms  and  conditions  of 

employment: 

o  paragraph 1a on long-term posting; and  
o  paragraph  1b  on  the  application  to  posted  workers  employed  by  temporary 
employment agencies of the terms and conditions of employment pursuant to 
Article 5 of Directive 2008/104/EC on temporary agency work (23); 

-  point (c) replaces paragraph 7 on posting allowances;  
-  point  (d)  replaces  the  second  and  third  subparagraphs  of  paragraph  8  on  collective 

agreements;  

-  point (e) replaces two paragraphs: 

o  paragraph 9 with respect to other terms and conditions of employment applicable 

to posted workers employed by temporary employment agencies; and  

o  paragraph 10 on other terms and conditions of employment in the case of public 

policy provisions. 

(23)  Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary 

agency work, OJ L 327, 5.12.2008, p. 9. 

7 

 
 
 
 
 
 
 
 
3.1.1.4.1.  Point (a) – terms and conditions of employment  

This point makes the following changes to Article 3(1) of Directive 96/71/EC:  

- 

- 
- 

- 

the application to all sectors of the terms and conditions of employment from universally 
applicable  collective  agreements  or  arbitration  awards  or  which  apply  according  to 
Article 3(8) of Directive 96/71/EC; 
the concept of ‘remuneration’ replaces the concept of ‘minimum rates of pay’; 
two new elements are added to the core terms and conditions of employment: conditions 
of workers’ accommodation, where provided by the employers to workers away from 
their regular place of work, and allowances or reimbursement of expenditure to cover 
workers away from home for professional reasons; 
information obligations are reinforced. 

3.1.1.4.2.  Application of universally applicable collective agreements to                  

all sectors   

Member States must now ensure the application to posted workers in all sectors of the terms 
and  conditions  of  employment  stemming  from  collective  agreements  or  arbitration  awards 
universally applicable or which apply in accordance with Article 3(8) of Directive 96/71/EC.   

18  Member  States  apply  terms  and  conditions  of  employment  that  stem  from  universally 
applicable collective agreements in all sectors (24). Most of these Member States had already 
provided for the application of universally applicable collective agreements to all sectors before 
the  transposition  of  the  Directive,  with  a  few  exceptions.  In  Germany,  for  example,  the 
application  of  universally  applicable  collective  agreements  was  limited  to  the  construction 
sector (with the possibility of extension).  

The other nine Member States (25) do not have universally applicable collective agreements but 
do  apply  sectoral  collective  agreements  and/or  national  collective  agreements  (including 
territorial collective agreement in the case of Italy). 

Conclusion 

Within the scope of the Directive, Member States have included in their national legislation the 
provisions  of  the  Directive  related  to  the  application  of  universally  applicable  collective 
agreements or arbitration awards or which apply in accordance with Article 3(8) of Directive 
96/71/EC to posted workers in all sectors.  

3.1.1.4.3.  Remuneration 

Replacement of ‘minimum rates of pay’ with ‘remuneration’  

The Directive replaces the concept of ‘minimum rates of pay’ with ‘remuneration’. Member 
States must therefore ensure that workers posted to their territory benefit from ‘remuneration’, 
which is defined as all the elements of remuneration rendered mandatory by national law or 
collective  agreements  which  have  been  declared  universally  applicable  or  which  apply 
according to Article 3(8) of Directive 96/71/EC. This is one of the main amendments of the 
Directive.  

The concept of ‘remuneration’ includes but goes beyond the concept of ‘minimum rates of pay’. 
As  already  provided  in  Directive  96/71/EC  for  the  ‘minimum  rates  of  pay’,  the  concept  of 

(24)  Belgium, Bulgaria, Germany, Estonia, Ireland, Greece, Spain, France, Croatia, Latvia, Luxembourg, Hungary, 

the Netherlands, Austria, Portugal, Romania, Slovenia and Finland. 

(25)  Czechia, Denmark, Italy, Cyprus, Lithuania, Malta, Poland, Slovakia and Sweden. 

8 

 
 
 
 
‘remuneration’ is to be determined by the national law and/or practice of the Member State to 
whose territory the worker is posted. The Directive does not therefore define the concept of 
‘remuneration’.  

It  is  up  to  the  Member  States  and  social  partners  (as  the  case  may  be)  to  determine  which 
constitutive elements are mandatory for the workers in Member States (with the exception of 
measures concerning occupational pension schemes).  In this context, Member States are not 
obliged to use the term ‘remuneration’ for the purpose of transposing the Directive.  

The concept of remuneration does not require a posted worker to receive exactly the same salary 
and benefits as his/her local peers (e.g., group insurance and hospitalisation insurance). It rather 
refers  to  the  salary  scales  and  specific  allowances/benefits  mandatorily  required  by  national 
legislation and/or universally binding collective agreements. 

As  for  the  concrete  changes  from  ‘minimum  rates  of  pay’  to  ‘remuneration’,  one  common 
feature  that  can  be  discerned  is  that  11  Member  States (26)  have  opted  for  what  can  be 
considered  as  a  general  or  broad  definition  of  “remuneration”.  For  example,  in  Belgium, 
‘remuneration’ is defined as the salaries, benefits and allowances due by virtue of legal and 
administrative provisions sanctioned by criminal law, as well as by conventional provisions that 
have  been  declared  universally  binding  (excluding  contributions  to  supplementary  pension 
schemes). 

Some  Member  States  (e.g.,  Bulgaria,  Czechia,  Spain,  France,  Cyprus,  Latvia,  Lithuania, 
Luxembourg, the Netherlands, Portugal, Romania and Slovenia) have opted for an enumeration 
of mandatory elements of remuneration.  

Three Member States (Denmark, Slovakia, and Sweden) do not have a specific definition of the 
concept of ‘remuneration’ at the national level. However, they do refer to the elements of such 
remuneration (Slovakia) or to the applicable collective agreements (Denmark and Sweden). In 
Denmark  and  Sweden,  the  terms  and  conditions  of  remuneration  stem  from  the  applicable 
collective agreement.  

Two Member States (Czechia and Slovenia) have exceptions in their national legislation to the 
application of the concept of ‘remuneration’ to posted workers. These exceptions originate from 
the implementation of Directive 96/71/EC and were already related to the implementation of 
‘minimum rates of pay’.  

In Czechia, the remuneration applies only if the employee is posted to Czechia for more than 
30 days in a calendar year (unless it is a posted worker from a temporary employment agency 
or  placement  agency).  In  Slovenia,  the  remuneration  applies  to  postings  of  more  than  one 
month. 

Two Member States (Ireland and Portugal) have not replaced the concept of ‘minimum rates of 
pay’ with ‘remuneration’. 

14 Member States that responded to the questionnaire on the implementation of the Directive 
considered  that  the  situation  of  posted  workers  had  improved  following  the  change  from 
‘minimum rates of pay’ to ‘remuneration’. Of the other Member States, some did not yet have 
appropriate  data  to  measure  the  improvement;  and  others  already  had  national  legislation 
referring to remuneration before the adoption of the amendment or collective agreements fully 

(26)  Belgium, Germany, Estonia, Ireland, Croatia, Hungary, Italy, Malta, Austria, Poland and Finland. 

9 

 
 
 
 
 
 
 
 
 
 
 
or primarily regulated remuneration in their national systems. 

With respect to social partners, an EU level trade union that responded to the same questionnaire 
considered that equality of treatment between posted workers and local workers with regard to 
remuneration is one of the most important elements in the Directive. However, social partners 
also mentioned challenges for its practical application related, for instance, to the calculation of 
the  gross  amount  of  remuneration  (see  subpoint  3.1.1.4.7  of  this  staff  working  document 
regarding Article 1(2)(c) of the Directive on posting allowances).  

Some employers’ organisations  that responded to  the questionnaire  viewed  the change from 
‘minimum  rates  of  pay’  to  ‘remuneration’  positively,  but  others  expressed  some  concerns 
regarding the complexity to calculate the remuneration in practice (for instance regarding the 
applicable  collective  agreement).  Some  employers’  organisations  also  considered  that  the 
change had not had such an impact because this was already covered by universally applicable 
collective agreements in some Member States.  

An EU-level trade union mentioned the importance of the change from ‘minimum rates of pay’   
to ‘remuneration’ and emphasised the challenges in its implementation, regarding for instance 
on collective agreements. 

Some  stakeholders  interviewed  in  the  context  of  the  study  supporting  the  monitoring  of  the 
Directive  and  of  the  Enforcement  Directive  emphasised  the  complexity  of  collective 
agreements  and  the  challenges  for  employers  and  temporary  employment  agencies  to 
understanding  which  provisions  apply  in  general  to  posted  workers  (particularly  as  regards 
remuneration) (27).  

Employers  interviewed  in  the  context  of  the  study  repeatedly  emphasised  that  it  can  be  a 
burdensome task to accurately determine the remuneration applicable to posted workers (28). 
This is because, as explained above, the Directive does not actually define remuneration. Only 
the elements of remuneration mandatorily applicable to all workers in the geographical area or 
sector are to be considered as remuneration. 

Consequently, according to the study, the remuneration to be paid to a posted worker differs 
between Member States as well as between sectors of activity. This can lead to underpayment, 
because it is first necessary to know the minimum level of the remuneration to be paid. Any 
amount below this threshold is considered as an underpayment. 

Conclusion and suggestions for further actions 

Almost all Member States have included the provision on remuneration as established by the 
Directive  in  their  national  legislation.  There  are  some  difficulties  in  determining  the 
remuneration applicable to posted workers with all its mandatory elements. These difficulties 
are mainly related to the complexity of determining the remuneration in practice. ELA could 
work, in close cooperation with Member States and social partners, on a tool to facilitate the 
calculation of the remuneration of posted workers and increase its transparency. Such a tool, 
for which the general elements could be established by ELA, would be used and implemented 
at national level. 

(27)  See point 8.1.3 of the study supporting the monitoring of the Posting of Workers Directive 2018/957/EU and 

of the Enforcement Directive 2014/67/EU. 

(28)  See point 6.2.2 of the study supporting the monitoring of the Posting of Workers Directive 2018/957/EU and 

of the Enforcement Directive 2014/67/EU. 

10 

 
 
 
 
 
 
 
 
 
 
 
3.1.1.4.4.  New elements of the terms and conditions of employment of the    

host Member State 

The Directive adds two new elements to the list of core terms and conditions of employment of 
the receiving Member State that are to be granted to a worker posted to  that Member State: 
point (h) on the conditions of workers’ accommodation, where provided by the employer to 
workers away from their regular place of work; and point (i) on allowances or reimbursement 
of expenditure to cover travel, board and lodging for workers’ away from home for professional 
reasons. 

Conditions of workers’ accommodation where provided by the employer to workers away from 
their regular place of work 

Point (h) makes it clear that the rules of the host Member State concerning the conditions of 
workers’ accommodation are also applicable to workers posted to the territory of that Member 
State.  

Most Member States’ legislation contains provisions that are applicable to national workers and 
entitle them to at least some accommodation rights when they are away from their regular place 
of work. These national provisions vary considerably from one Member State to another. 

12 Member States (29) have provisions on conditions of accommodation when workers are away 
from  their  regular  place  of  work,  and  these  provisions  are  applicable  to  posted  workers. 
Slovenia applies these provisions only to local workers posted abroad, so they do not apply to 
workers posted to Slovenia. 

12 Member States (30) do not have such conditions of accommodation when the workers are 
away from their regular place of work in their national legislation. However, such conditions 
can feature in collective agreements or in individual employment contracts, as provided for by 
the collective agreements, and would cover posted workers (posted temporary agency workers 
in the case of Poland), except in Belgium and Ireland.  

In Estonia, Austria, and Romania there is no obligation to provide accommodation to workers. 
In any event, Austria and Romania have included provisions on conditions of accommodation 
of posted workers in the national legislation implementing the Directive. 

Some Member States and social partners (mainly employer organisations) that replied to the 
questionnaire  on  the  implementation  of  the  Directive  considered  that  the  new  terms  of 
employment regarding the conditions of accommodation had improved the situation of workers. 
Other  social  partners  have  considered  that  they  had  not  improved  the  situation  of  workers 
because there are not sufficient data to evaluate this matter or because the accommodation was 
already defined in the national legislation.  

Four  Member  States  that  replied  to  the  same  questionnaire  also  identified  the  following 
shortcomings which could affect accommodation conditions of posted workers: unsuitability, 
small size, equipment defect and inadequate electrical installations and sanitary facilities. To 
inspect those accommodation conditions, two Member States declared that it is necessary to 
have  the  consent,  trust  and  effective  cooperation  of  the  posted  workers,  so  that  they  report 
possible conditions of degradation of their housing situation and allow inspectors to access the 
premises. 

(29)  Bulgaria, Czechia, Denmark, Germany, Greece, Latvia, Lithuania, Luxembourg, Hungary, Portugal, Slovenia 

and Finland. 

(30)  Belgium, Ireland, Spain, France, Croatia, Italy, Cyprus, Malta, the Netherlands, Slovakia, Poland and Sweden. 

11 

 
 
 
 
 
 
 
 
 
An EU level trade union has mentioned in the questionnaire that substandard accommodation 
is a persistent concern for posted workers, in terms of both qualitative and quantitative elements. 
It has also emphasised the importance of correctly transposing Article 1(2)(c) of the Directive 
on  posting  allowances  (see  subpoint  3.1.1.4.7  of  this  report)  in  order  to  ensure  decent 
accommodation to posted workers in all situations. 

The  study  supporting  the  monitoring  of  the  Directive  and  of  the  Enforcement  Directive 
highlights a range of occupational, safety and health (OSH) issues related to the accommodation 
of posted workers (31). It stresses the fact that accommodation provided by employers can be of 
poor quality and overcrowded, leading to issues such as lack of sleep, which in turn increases 
the risk of work-related accidents (32). The study also points out that posted workers may live 
on-site  in  collective  accommodation,  which  makes  them  sometimes  face  economic 
vulnerability and an increased dependence on their employer (33).  

Allowances or reimbursement of expenditure to cover travel, board and lodging expenses for 
workers away from home for professional reasons 

Point (i) provides that the terms and conditions of employment in the host Member State include   
allowances or reimbursement of expenditure to cover travel, board and lodging expenses for 
workers away from home for professional reasons.  

The first subparagraph of Article 1(2)(a) of the Directive makes it clear that point (i) does not 
concern any allowances or reimbursement due to the posting itself (from the home to the host 
Member State) but concerns only travel during the posting assignment for professional reasons. 
It therefore applies when the workers are required to travel to and from their regular place of 
work in the host Member State and where the workers are temporarily sent by their employer 
from that regular place of work to another place of work.  

Most  Member  States  have  provisions  entitling  national  workers  to  reimbursement  or 
compensation of expenditure related to travel, board and lodging. Such national provisions vary 
from one Member State to another. 

In 18 Member States (34) reimbursement of, or compensation for, expenditure related to travel, 
board and lodging for workers away from home for professional reasons exists and is applicable 
to posted workers.   

7 Member States (Belgium, Croatia, Cyprus, Italy, Malta, France, Sweden) regulate allowances 
or  reimbursement  of  expenditure  to  cover  travel,  board  and  lodging  expenses  in  collective 
agreements which apply to posted workers. 

Slovenia does not have specific provisions to cover the reimbursement of expenses for travel, 
board and lodging for posted workers away from home for professional reasons.  

(31)  See point 6.6.2 of the study supporting the monitoring of the Posting of Workers Directive 2018/957/EU and 

of the Enforcement Directive 2014/67/EU. 

(32)  See subpoint 6.6.2.3 of the study supporting the monitoring of the Posting of Workers Directive 2018/957/EU 

and of the Enforcement Directive 2014/67/EU. 

(33)  Subpoint 6.6.2.5 of the study supporting the monitoring of the Posting of Workers Directive 2018/957/EU 

and of the Enforcement Directive 2014/67/EU. 

(34)  Bulgaria, Czechia, Denmark, Germany, Estonia, Greece, Spain, Latvia, Lithuania, Luxembourg, Hungary, the 

Netherlands, Austria, Poland, Portugal, Romania, Slovakia and Finland. 

12 

 
 
 
 
 
 
 
 
 
 
 
 
Ireland  does  not  have  provisions  related  to  reimbursement  or  compensation  of  expenditure 
related to travel, board and lodging for national workers. 

Conclusion and suggestions for further actions 

In the transposition of the Directive, the applicable provisions of the Directive on the two new 
elements  explained  above  vary  between  Member  States.  Those  provisions  apply  to  posted 
workers in so far as they exist for national workers in the host Member State.  

Some concerns remain relating to the conditions of accommodation which may affect posted 
workers. National inspection authorities and social partners (particularly trade unions) could, 
together with ELA, develop targeted awareness-raising campaigns to address issues such as the 
sub-standard  conditions  of  accommodation  that  may  affect  posted  workers,  including  more 
specific  information  on  the  right  of  posted  workers  to  accommodation  conditions  in  host 
Member States (where provided to national workers) and sanctions for not respecting that right. 

3.1.1.4.5.  Information obligations 

The third subparagraph of Article 1(2)(a) of the Directive complements the provisions of Article 
5 of the Enforcement Directive by requiring Member States to publish information – without 
undue delay and transparently – on the terms and conditions of employment applicable under 
Article 3(1) of Directive 96/71/EC, including the constituent elements of remuneration, as well 
as the terms and conditions of employment applicable to long-term posted workers.  

According to the fourth  and fifth subparagraphs of Article 1(2)(a) of the Directive,  Member 
States  must  ensure  that  the  information  provided  on  the  single  official  national  website  is 
accurate and up-to-date. Where the information on the single official national website (national 
website) does not indicate which terms and conditions of employment are to be applied, this 
fact  must  be  taken  into  account,  in  accordance  with  national  law  and/or  practice,  when 
determining whether penalties in the event of infringements of the national provisions adopted 
pursuant to this Directive satisfy the principle of proportionality. 

17  Member  States  (Bulgaria,  Denmark,  Germany,  Greece,  Spain,  France,  Croatia,  Italy, 
Hungary,  Lithuania,  Luxembourg,  Malta,  Austria,  Poland,  Portugal,  Romania  and  Sweden) 
have  included  in  the  national  legislation  a  specific  obligation  to  provide  information  on  a 
national website.  

The other Member States do not have an explicit legal obligation to provide information on a 
national  website.  However,  as  established  in  the  implementation  report  of  the  Enforcement 
Directive (35), all Member States have set up national websites providing information on the 
terms and conditions of employment referred to in Article 3 of Directive 96/71/EC.  

Most  Member  States  have  adapted  their  national  legislation  to  establish  proportionality  of 
sanctions if the information provided on those national websites is not accurate and up to date 
or this principle was already embedded in their internal legal system.  

Ireland,  Spain,  France,  Cyprus,  Slovenia  and  Slovakia  do  not  specifically  establish  such 
proportionality  of  sanctions.  However,  in  some  of  these  Member  States,  proportionality  is 

(35)  Report from the Commission to the European Parliament, the Council and the European Economic and Social 
Committee on the application and implementation of 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) 1024/2012 on administrative 
cooperation through the Internal Market Information System ('the IMI Regulation'), COM/2019/426 final. 

13 

 
 
 
 
 
 
 
 
 
 
 
applied in practice through general provisions of labour law (France) or by labour inspectors 
(Slovakia).  

Some employers’ organisations pointed out in the questionnaire on the implementation of the 
Directive  that  it  is  sometimes  difficult  for  foreign  companies  to  determine  which  collective 
agreement is applicable and to understand its provisions (even if translated information on the 
applicable  legislation  is  available  on  the  relevant  national  website).  In  this  context,  one 
employers’  association  also  pointed  out  that  national  websites  often  do  not  provide  all  the 
necessary information and are not regularly updated. 

Overall, the national websites have been implemented positively in the Member States (36). In 
addition,  most  of  the  national  websites  are  considered  to  be  easily  findable  using  the  most 
common search engines when using key words such as ‘posting of workers’ or ‘posted workers’ 
in combination with the name of the Member State (37).  

Some national websites either appear not to be up-to-date (e.g., Austria, Greece, Italy) or do not 
appear to include the latest information on collective agreements (Italy), an issue which also 
occurs in other Member States. Some websites appear to lack transparency and intuitiveness 
(e.g., Bulgaria, Spain, Finland, Croatia, Latvia, Portugal) due to the reliance on hyperlinks when 
referencing national law (38). 

The study indicates that some national websites only provide part of the information needed by 
the posting undertaking, for instance there is no information available on social security law, 
tax  law,  or  the  applicable  collective  agreements.  Some  stakeholders  report  that  the  national 
websites might be useful for employers, consultants and social secretariats, but that (posted) 
employees themselves will rarely look for information through this channel (39).  

According to the ELA Regulation (40), the ELA supports Member States in complying with the 
obligations  on  access  to  and  dissemination  of  information  relating  to  the  free  movement  of 
workers and to the posting of workers as laid down in Article 5 of the Enforcement Directive. 
The ELA’s work covers the information published by Member States on the national websites 
related to posting and supports capacity building in the Member States, through cross sectoral 
trainings, seminars, peer-to-peer reviews and group activities.  

The ELA Working Group on Information (41) has held several thematic meetings on posting of 
workers, with 18 peer review sessions of national websites on posting and discussions on best 
practices.  In  this  context,  ELA  has  published  a  guidance  to  the  presentation  of  universally 

(36)  See point 4.3 of the study supporting the monitoring of the Posting of Workers Directive 2018/957/EU and of 

the Enforcement Directive 2014/67/EU. 

(37)  Lessons learnt for single national websites on the posting of workers, ELA booklet, May 2023. This document 
provides a peer review session of 18 different national posting websites. The document is accessible via this 
link: Lessons learnt from peer reviews of single national websites on the posting of workers: booklet available 
now! | European Labour Authority (europa.eu)  

(38)  See point 4.3 of the study supporting the monitoring of the Posting of Workers Directive 2018/957/EU and of 

the Enforcement Directive 2014/67/EU. 

(39)  See point 6.2.4 of the study supporting the monitoring of the Posting of Workers Directive 2018/957/EU and 

of the Enforcement Directive 2014/67/EU. 

(40)  Article 6(c) of Regulation (EU) 2019/1149 of the European Parliament and of the Council of 20 June 2019 
establishing a European Labour Authority, amending Regulations (EC) No 883/2004, (EU) No 492/2011, and 
(EU) 2016/589 and repealing Decision (EU) 2016/344, OJ L 186, 11.7.2019, p. 21. 

(41)  https://www.ela.europa.eu/en/what-we-do#bcl-inpage-item-745 

14 

 
 
 
 
 
 
  
 
applicable  collective  agreements  on  national  websites (42)  and  it  is  working  on  a  ‘sample 
outline’,  giving  guidance  to  Member  States  regarding  the  content  to  be  presented  on  their 
websites. ELA has been also working on a practical guidance with the lessons learnt for those 
national websites (43).  

Conclusion and suggestions for further action 

Member  States  have  set  up  national  websites  on  posting  to  comply  with  the  Directive’s 
reinforced information obligations.  

However, the national websites still have some shortcomings in the content of the information 
as required by the Directive (difficulties in finding information on collective agreements and 
incomplete or outdated information). It is crucial that employers and workers have access to 
complete and up-to-date information on the terms and conditions of employment (particularly 
remuneration  and  all  its  mandatory  elements)  applicable  to  posted  workers  (including  on 
collective agreements and on long-term posting situations).  

Directive  (EU)  2019/1152 (44)  on  transparent  and  predictable  working  conditions  has 
introduced  new  information  requirements  for  employers  to  ensure  that  posted  workers  are 
properly informed about the core working and employment conditions of their work assignment 
in the host Member State. Information on the national websites is available through the “Your 
Europe website” (45). 

ELA  could  therefore  continue  and  reinforce  its  work  with  Member  States  on  making 
information  on  posting  websites  more  transparent,  comprehensive,  up-to-date  and  easily 
accessible for posted workers and service providers.  

3.1.1.4.6.  Point b) – long-term posting and temporary agency workers 

Point  b)  adds  two  new  paragraphs  to  Article  3(1)  of  Directive  96/71/EC:  paragraph  1a  lays 
down the rules on long-term posting when the posting period exceeds 12 (or 18) months, and 
paragraph 1b concerns temporary agency workers. 

3.1.1.4.6.1.  Paragraph 1a – rules on long-term posting 

According to the rules on long-term posting, the employer of a posted worker has to guarantee 
additional terms and conditions of employment once the period of posting exceeds 12 months 
or 18 months following a motivated notification submitted by the service provider (‘long-term 
posting’). It also includes a provision on the replacement of the posted worker when performing 
the same task at the same place. 

This amendment was, together with other amendments of the Directive (i.e., on remuneration), 
the object of two actions to annul the Directive. In particular, it was argued that the rules on 
long-term posting restricted the provision of services in the internal market. The Court of Justice 
of the European Union has dismissed both actions in their entirety (46).  

(42)  Single national websites on posting, Approach to the presentation of information stemming from universally 
applicable  collective  agreements.  The  document  is  accessible  via  this  link:  ELA-Approach-to-presenting-
collective-agreements.pdf (europa.eu)  

(43)  Footnote 37. 
(44)  Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and 

predictable working conditions in the European Union, OJ L 186, 11.7.2019, p. 105. 

(45)  Posting staff abroad: Guidelines & social security rules - Your Europe (europa.eu) 
(46)  Judgement of the Court of Justice of 8 December 2020, Hungary v. European Parliament and Council of the 

European Union, case C-620/18, ECLI:EU:C:2020:1001. 

15 

 
 
 
 
  
 
 
 
 
 
 
With respect to long-term posting, the Court stated that the EU legislature did not commit any 
manifest error in holding that the consequence of a posting for a period in excess of 12 months 
should be that the personal situation of the posted workers concerned should to an appreciable 
degree more closely resemble that of workers employed by undertakings established in that host 
Member State. 

Guarantee of all mandatory applicable terms and conditions of employment 

In the case of a long-term posting, Member States have to ensure (in addition to the terms and 
conditions of employment referred to in Article 3(1) of the Directive) all the applicable terms 
and conditions  of employment which are laid down in  the Member State where the work is 
carried out by law, regulation or administrative provision, and/or by collective agreements or 
arbitration awards which have been declared universally applicable. According to Article 3(7) 
of  Directive  96/71/EC,  this  should  not  prevent  the  application  of  terms  and  conditions  of 
employment which are more favourable to workers. 

The obligation to provide the broader range of employment rights in the case of a long-term 
posting does not apply to procedures, formalities and conditions relating to the conclusion and 
termination  of  the  employment  contract,  including  non-competition  clauses,  as  well  as  to 
provisions on supplementary occupational retirement pension schemes.  

Almost  all  Member  States  guarantee  to  long-term  posted  workers  all  additional  terms  and 
conditions  of  employment  applicable  by  law  and/or  by  collective  agreements  or  arbitration 
awards  which  have  been  declared  universally  applicable.  In  Ireland,  the  same  terms  and 
conditions apply to a posted worker regardless of the duration of the posting. 

The specification of additional terms and conditions varies between Member States.  

Bulgaria and the Netherlands have opted for a “closed” list of additional terms and conditions. 
It is unclear whether all the mandatorily applicable terms and conditions of employment are 
included. In Bulgaria, for instance, the posted worker has the right to the minimum working 
conditions established in the national legislation regarding compensation for the violation of 
worker’s  rights,  free  food  and/or  food  additives,  periodic  medical  examinations,  free  work 
clothes and uniforms; and social, welfare and cultural services.  

Some  Member  States’  legislation  (Germany,  Ireland,  Hungary,  Latvia,  Malta  and  the 
Netherlands) does not provide for the application of the more favourable principle in the case 
of long-term postings. In Ireland, all employees are subject to the same national conditions.  

In  many  Member  States  (Bulgaria,  Denmark,  Germany,  Greece,  Spain,  France,  Cyprus, 
Hungary, Luxembourg, Hungary, Malta, the Netherlands, Austria, Poland, Romania, Slovenia, 
Slovakia, and Sweden), procedures related to the termination of the employment contract and 
supplementary  pension  schemes  are  explicitly  excluded  from  the  applicable  terms  and 
conditions  of  employment  for  long-term  postings.  Czechia  does  not  regulate  supplementary 
occupational  retirement  schemes  at  national  level  and  Lithuania  does  not  have  an  active 
occupational pension fund (47). 

Judgment of the Court of Justice of  8 December 2020, Poland v. European Parliament and Council of the 
European Union, case C-626/18, ECLI:EU:C:2020:1000. 

(47) According to the information available to the Commission, Lithuania adopted a special law on occupational 

pensions in 2006 but an active occupational pension fund has not yet been established in Lithuania. 

16 

 
 
 
 
 
 
 
 
 
 
 
 
The Member States replies to the questionnaire on the implementation of the Directive indicate 
that a large majority of Member States publish on a national website the terms and conditions 
of employment applicable to long-term posting. Subpoint 3.1.1.4.5 of this report provides more 
information on the publication of the information on the terms and conditions of employment. 

Extension of a posting to 18-months with motivated notification 

The 12-month period of posting can be extended by the submission of a motivated notification 
from the service provider. The Member State where the service is provided has to extend the 
period  of  12  months  to  18  months.  This  extension  cannot  be  subject  to  an  authorisation 
procedure, but Member States may require companies to comply with a formal procedure (e.g., 
deadlines, mandatory statements and provision of reasons for the extension).  

All  Member States, except  Ireland,  require  a company to  submit a motivated notification to 
extend a period of posting from 12 months to 18 months. Ireland does not do so because the 
same terms and conditions apply to a posted worker regardless of the duration of posting.   

In some Member States (Cyprus, Hungary, Malta, Austria and Slovenia), there is no explicit 
timeframe foreseen in the law for the submission of the notification. However, the notification 
has to be made before the deadline is extended (Austria) or in due time and at the latest before 
the starting of the service provision (Hungary). 

In many Member States  (Belgium,  Bulgaria, Czechia, Denmark,  Germany,  Estonia, Greece, 
Spain, France, Latvia, Lithuania, Luxembourg, Poland, Slovakia, Finland and Sweden) the time 
limit for the submission of motivated notification can be introduced within a wide timeframe, 
notably  before  the  end  of  the  12th  month  of  employment  of  the  posted  worker.  Croatia  and 
Portugal require the service provider to submit this notification at least 1 month before the end 
of the 12-month period. 

According to the replies from Member States to the questionnaire on the implementation of the 
Directive,  a  large  majority  of  them  require  the  motivated  notification  to  be  submitted 
electronically (by email, specific portal and/or electronic procedure).  In Spain, the notification 
has to be submitted electronically, but it is the Autonomous Community where the posting is 
taking place that regulates the specific procedure for doing so.  

Some  Member  States  (e.g.,  Czechia,  Denmark,  France,  Italy,  the  Netherlands  and  Austria) 
allow  service  providers  to  submit  the  motivated  notification  together  with  the  posting 
declaration. 

Many  Member  States  that  responded  to  the  questionnaire  declared  that  they  had  not   
experienced  any  problems  with  motivated  notifications.  In  this  respect,  two  Member  States 
reported  that  few  motivated  notifications  for  long-term  postings  have  been  submitted.  One 
Member State considered that the scope of the motivated notification (and, more generally, the 
long-term posting status) remains poorly understood by companies and causes confusion with 
the rules on the right of residence or social security.  

Regarding social partners, employers’ organisations replying to the ELA questionnaire do not 
report problems with motivated notifications or do not have sufficient experience to report such 
problems.  

Rules about the replacement of a posted worker 

17 

 
 
 
 
 
 
 
 
 
 
 
 
Where a company replaces a posted worker with another posted worker performing the same 
task at the same place, the overall duration of the posting to be taken into account for assessing 
the threshold of 12 (or 18) months consists of the cumulative duration of the posting periods of 
the individual posted workers concerned.  

The concept of ‘the same task at the same place’ is determined by taking into consideration, 
inter alia, the nature of the service to be provided, the work to be performed and the address(es) 
of the workplace. 

If  the  employer  replaces  one  posted  worker  with  another,  the  employment  periods  of  each 
posted worker should be added together.  

Most Member States (Belgium, Bulgaria, Czechia, Denmark, Germany, Estonia, Greece, Spain, 
France,  Croatia,  Italy,  Cyprus,  Lithuania,  Luxembourg,  Hungary,  Malta,  Poland,  Portugal, 
Romania, Slovenia, Slovakia, Finland, and Sweden) have rules on the replacement of a posted 
worker and the accompanying ‘the same task at the same place’ concept.  

Latvia,  the  Netherlands,  Austria,  and  Sweden  have  not  included  provisions  in  their  national 
legislation related to the ‘the same task at the same place’ concept.  

19  Member  States  that  replied  to  the  questionnaire  on  the  implementation  of  the  Directive 
declared that they had not encountered any abuse or circumvention related to the replacement 
of  a  worker  when  applying  the  ‘the  same  task  at  the  same  place’  principle.  However,  one 
Member State reported that it had encountered abuse or circumvention because it is difficult to 
define  the  ‘the  same  task’  concept.  Two  Member  States  reported  that  they  do  not  yet  have 
available data to be able to draw solid conclusions on possible abuse or circumvention. 

Regarding  social  partners,  a  trade  union  has  reported  in  the  questionnaire  that  the  lack  of 
available  data  means  that  it  remains  quite  easy  to  continue  the  practice  of  having  multiple 
postings for ‘the same task at the same place’ in a row. Another EU level trade union also stated 
that Member States should introduce specific control provisions and administrative measures 
to verify that the rules in this area are not circumvented by fraudulent service providers with 
respect to the cumulation of posting periods. 

Conclusion and suggestions for further actions 

Almost  all  Member  States  have  included  in  their  national  legislation  the  provisions  of  the 
Directive related to long-term postings.  Most Member States have rules on the replacement of 
a posted worker.  Both the specification of the additional terms and conditions applicable to 
posted  workers  in  a  long-term  posting  situation  and  the  timeframe  to  submit  the  motivated 
notification vary between Member States. 

The  Commission  also  notes  that  it  is  necessary  to  ensure  that  national  websites  include  the 
information related to long-term postings, which has not always been the case so far. ELA could 
therefore  continue  working  with  Member  States  on  improving  the  information  included  on 
national websites (as mentioned in subpoint 3.1.1.4.5 above).  

3.1.1.4.6.2.  Paragraph  1(b)  –  Equal  treatment  of  posted  temporary       

agency workers 

18 

 
 
 
 
  
 
 
 
 
 
 
 
This  paragraph  provides  that  the  terms  and  conditions  of  employment  of  posted  temporary 
agency workers are those which apply pursuant to Article 5 of Directive 2008/104/EC (48) to 
temporary  agency  workers  hired-out  by  temporary  employment  agencies  established  in  the 
Member State where the work is carried out. The same paragraph also provides that the user 
undertaking has to inform the temporary employment agency of the terms and conditions of 
employment that it applies to its workforce.   

Terms and conditions of employment of posted temporary agency workers 

The terms and conditions of employment applicable to posted temporary agency workers are 
not limited to those set by law or collective agreement within the meaning of Article 3(8) of 
Directive 96/71/EC, as amended. They could be set out by any type of collective agreement that 
binds on the user undertaking. 

Article 5 of Directive 2008/104/EC concerns the ‘basic’ terms and conditions of employment 
as  defined  in  Article  3(1)(f)  of  that  Directive (49).  The  terms  and  conditions  of  employment 
provided for under Article 3(1) of Directive 96/71/EC and, if applicable, Article 3(1a) on long-
term posting of Directive 96/71/EC, which are not part of the basic terms and conditions of 
employment, remain applicable to temporary agency workers. 

Almost  all  Member  States  (except  Ireland  and  Slovenia)  have  enacted  an  obligation  to 
guarantee for posted workers the terms and conditions of employment which apply pursuant to 
Article 5 of Directive 2008/104/EC.  

Duty of the user undertaking  to  inform  the temporary  employment agency of the terms  and 
conditions of employment 

The obligation of the user undertaking to inform the temporary employment agency of the terms 
and conditions which apply to temporary agency workers has been introduced to ensure that 
the  temporary  employment  agency  is  aware  of  the  terms  and  conditions  of  employment 
prevailing in the user undertaking. 

In  Estonia,  the  information  obligation  only  applies  to  long-term  posting  and  chain  posting, 
while  Malta  imposes  this  information  obligation  only  for  posting  periods  exceeding  4 
consecutive  weeks.  Sweden  imposes  the  information  obligation  only  when  the  temporary 
agency asks for it. 

Croatia  has  introduced  an  additional  information  requirement.  It  requires  the  temporary 
employment agency to confirm in writing that it has been informed of the terms and conditions 
of employment.  

Some Member States (Belgium, Latvia, Hungary and Romania) explicitly refer to the means 
by which the information should be given to the temporary employment undertaking (e.g., in 
writing or electronically).  

(48) Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary 

agency work, OJ L 327, 5.12.2008, p. 9. 

(49)  According  to  Article  3(1)f  of  Directive  2008/104/EC,  “basic  working  and  employment  conditions”  means 
working  and  employment  conditions  laid  down  by  legislation,  regulations,  administrative  provisions, 
collective agreements and/or other binding general provisions in force in the user undertaking relating to: 
(i)  the duration of working time, overtime, breaks, rest periods, night work, holidays and public holidays; 
(ii) pay. 

19 

 
 
 
 
 
 
 
 
 
 
 
 
 
Explicit applicability of terms  and conditions  of employment in  the case of chain  or double 
posting 

The temporary employment agency has to guarantee to posted temporary agency workers the 
terms and conditions of employment that would apply if they had been recruited directly by the 
user undertaking to occupy the same job. The question here is whether the Member States also 
make these terms and conditions explicitly applicable in the case of chain or double posting, 
where the worker posted to the user undertaking is sent to work in another Member State by 
that undertaking (see subpoint 3.1.1.3 on double or chain posting). 

When a worker posted by a temporary employment agency to a user undertaking is sent by the 
user  undertaking  to  another  Member  State,  the  worker  is  considered  as  being  posted  by  the 
temporary  employment  agency  with  which  the  worker  has  the  employment  relationship,  as 
regards  the  terms  and  conditions  of  employment.  This  means  that  it  is  the  temporary 
employment  agency  that  is  responsible,  not  only  for  the  administrative  requirements  (e.g., 
making the declaration  before the posting), but also  for  complying  with  the right  terms  and 
conditions of employment.  

15 Member States (50) make these terms and conditions explicitly applicable in the case of chain 
or double posting.  

In some Member States (Belgium, Cyprus, Austria) the legislation does not explicitly make the 
terms and condition of employment also applicable in case of chain or double posting, but it 
can be considered that it does so implicitly.    

The  legislation  of  seven  Member  States  (Denmark,  Ireland,  Croatia,  Latvia,  Hungary,  the 
Netherlands  and  Slovenia)  does  not  make  the  terms  and  conditions  of  employment  either 
explicitly or implicitly also applicable in the case of chain or double posting.  

According to the study on the monitoring of the Directive and of the Enforcement Directive, 
the recent nature of the Directive makes it difficult to estimate its impact (51). However, the 
study points out that there is a real risk that the new provisions on posted temporary agency 
work are not applied in practice (52). 

The  role  of  temporary  employment  agencies  (and  other  labour  market  intermediaries)  is  a 
matter of concern in cross-border work contexts (53). Certain practices may result in situations 
where the least favourable rights are applied to posted workers. This outcome may be driven 
by  the  actual  intention  to  circumvent  the  rules,  but  it  may  also  be  triggered  by  the  limited 
awareness of the temporary employment agencies and the user undertaking(s) about the relevant 
rules that apply in different countries, particularly in situations where sectoral and/or regional 
collective agreements are also applicable (54). 

Organisations representing employers and temporary employment agencies emphasise the point 
that the complexity of the legal system regulating temporary cross-border work (e.g., posting) 

(50)  Bulgaria, Czechia, Germany, Estonia, Greece, Spain, France, Italy, Luxembourg, Malta, Poland, Portugal, 

Romania, Finland and Sweden. 

(51)  Subpoint 6.1.3.1 of the study supporting the monitoring of the Posting of Workers Directive 2018/957/EU and 

of the Enforcement Directive 2014/67/EU. 

(52)  Point 6.1.1 of the study supporting the monitoring of the Posting of Workers Directive 2018/957/EU and of 

the Enforcement Directive 2014/67/EU. 

(53)  Point 6.1.2 of the study supporting the monitoring of the Posting of Workers Directive 2018/957/EU and of 

the Enforcement Directive 2014/67/EU. 

(54)  See footnote 53. 

20 

 
 
 
 
 
 
 
 
 
 
may lead to inadvertent  non-compliance. This is particularly the case for smaller companies 
and temporary employment agencies that do not have branches in more than one Member State 
and  therefore  cannot  access  legal  information  on  other  countries’  legislation  internally,  as 
would be the case with larger multinational companies or agencies (55). 

Conclusion and suggestions for further action 

Almost  all  Member  States  have  included  in  their  national  legislation  the  provisions  of  the 
Directive related to posted temporary agency workers. Some Member States either oblige the 
user undertaking to inform the temporary  employment agency only in specific situations; or 
introduce additional information requirements.  

In addition, there are some strong concerns that the practical application of the provisions of 
the Directive related to posted temporary agency workers may result in situations where less 
favourable conditions may be applied to such workers. ELA could address those concerns, in 
close  cooperation  with  Member  States,  through  more  effective  and  extensive  cross-border 
cooperation and enforcement efforts targeting temporary agency work. Social partners could 
consider supporting the work of labour inspectorates. 

Furthermore,  Member  State  could  carry  out  reviews  of  existing  legislation  and  its 
implementation at the national level and/or set up, with the support of ELA, assistance services 
for temporary employment  agencies and user undertakings  on the application of the posting 
rules. 

3.1.1.4.7.  Point  (c)  on  the  terms  and  conditions  of  employment  more 

favourable to workers and posting allowances 

The first paragraph of Article 1(2)(c) of the Directive states that the terms and conditions of 
employment provided for under Articles 3(1) to 3(6) of Directive 96/71/EC do not prevent the 
application of more favourable conditions to posted workers. 

The second paragraph of Article 1(2)(c) states that allowances specific to the posting are to be 
considered  as  part  of  remuneration,  unless  they  are  paid  in  reimbursement  of  expenditure 
actually incurred on account of the posting (e.g., expenditure on travel, board and lodging). 

For the reimbursement of the posted worker for travel, board and lodging expenditure, the last 
sentence of the second paragraph of Article 1(2)(c) of the Directive provides that the employer   
must  reimburse  the  posted  worker  in  accordance  with  the  national  law  and/or  practice 
applicable to the employment relationship. This is to be understood as the national law and /or 
practice of the home Member State, unless otherwise determined in accordance with EU rules 
on private international law.  

The  third  paragraph  of  Article  1(2)(c)  of  the  Directive  states  that  “where  the  terms  and 
conditions of employment applicable to the employment relationship do not determine whether 
and,  if  so,  which  elements  of  the  allowance  specific  to  the  posting  are  paid  by  way  of 
reimbursement of expenditure actually incurred on account of the posting or which are to be 
considered  as an element  of the remuneration package of the posted worker, then the entire 
allowance  is to  be considered  as paid as reimbursement of expenditure”.  

First paragraph of Article 1(2)(c) of the Directive - Application of more favourable terms and 
conditions of employment to workers 

(55)  See footnote 51. 

21 

 
 
 
 
 
  
  
 
 
 
 
 
This provision was already included in Directive 96/71/EC. Almost all Member States apply, 
explicitly  or  implicitly,  terms  and  conditions  of  employment  which  are  more  favourable  to 
posted workers.  In Denmark the more favourable treatment applies to posted workers only after 
12 months. 

In  Estonia,  health  and  safety  conditions  apply  to  a  posted  employee  in  accordance  with  the 
Estonian law, even when they are less favourable to the posted employee. 

Second paragraph of Article 1(2)(c) of the Directive - Allowances specific to the posting and 
the reimbursement obligation  

Many Member States (56) specify which parts of the allowances specific to the posting are paid 
in reimbursement of expenditure actually incurred on account of the posting, and which are part 
of  the  remuneration.  Some  Member  States  (Belgium,  Spain,  Croatia,  Slovakia)  regulate  the 
reimbursement  of  travel,  board  and  lodging  expenditure  through  collective  agreements.  For 
instance,  in  Belgium  and  Croatia,  this  is  generally  regulated  at  industry  level  when  those 
Member States are home countries. 

Some Member States (Czechia, Denmark, Hungary, Austria, Slovenia and Sweden) have not 
included in  their national  legislation a specific provision  that  posting  allowances  are  part of 
remuneration unless they are paid in reimbursement of expenditure actually incurred on account 
of the posting.  

The national legislation of some Member States (Belgium, Czechia, Germany, Ireland, Spain, 
Luxembourg, Hungary, Latvia, Malta, the Netherlands, Austria, Portugal, Poland and Slovenia) 
does not include or does not clearly specify that the reimbursement of travel, board and lodging 
expenditure for the posted worker is done in accordance with the national law and/or practice 
of the home Member State.  

In Denmark, the reimbursement of travel, board and lodging expenditure for the posted worker 
is carried out in accordance with the rules of Denmark (as host Member State) rather than on 
the basis of the rules of the home Member State. In Finland, the rules of the home Member 
State  do  not  apply  when  the  reimbursement  of  expenditure  is  lower  that  the  allowances  in 
Finland. For the latter, the Finnish universally collective agreement applies.  

In its response to the questionnaire on the implementation of the Directive, an EU level trade 
union emphasised the point that the reimbursement of expenditure incurred on account of the 
posting  (such as  expenditure on travel,  board and lodging) is  an important  improvement for 
posted workers and that its correct transposition is of utmost importance. 

According  to  the  study  supporting  the  monitoring  of  the  Directive  and  of  the  Enforcement 
Directive, housing costs may be high in the host Member States, and posted workers are likely 
to lack knowledge of the local housing market. The study stresses that posted workers are more 
vulnerable to practices such as the deduction of accommodation costs from their salaries (57). 
This  expenditure  should  not  be  deducted  from  the  posted  workers’  salaries  but  should  be 
reimbursed to the posted workers on the basis of the national law and/or practice applicable to 
the employment relationship.  

(56)  Belgium,  Bulgaria,  Germany,  Estonia,  Ireland,  Greece,  Spain,  France,  Croatia,  Italy,  Cyprus,  Latvia, 

Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia and Finland. 

(57)  Subpoint 6.6.2.3 of the study supporting the monitoring of the Posting of Workers Directive 2018/957/EU and 

of the Enforcement Directive 2014/67/EU. 

22 

 
 
 
 
 
 
   
 
 
 
 
 
Third  paragraph  of  Article  1(2)(c)  of  the  Directive  -  determination  of  the  elements  of  the 
allowance specific to the posting 

According to the third paragraph of Article 1(2)(c) of the Directive, if it does not clearly appear 
which  elements  of  the  posting  allowance  are  paid  in  reimbursement  of  expenditure  actually 
incurred  because  of  the  posting,  then  the  entire  allowance  is  considered  to  be  paid  in 
reimbursement of expenditure, not remuneration. 

A large majority of Member States (58) have included this rule into their national legislation. 
Seven Member States (Bulgaria, Czechia, Hungary, Austria, Romania, Slovenia and Slovakia) 
have not specifically included this rule.  

Conclusion and suggestions for further action 

Almost all Member States have included in their national legislation a provision requiring the 
application  of  terms  and  conditions  of  employment  which  are  more  favourable  to  posted 
workers.  

Some  Member  States  have  not  included  in  their  national  legislation  a  specific  provision  on 
posting  allowances  being  part  of  remuneration  unless  they  are  paid  in  reimbursement  of 
expenditure actually incurred on account of a posting. In addition, the national legislation of 
some Member States does not include or does not clearly specify that the reimbursement of 
travel,  board  and  lodging  expenditure  for  the  posted  worker  is  done  in  accordance  with  the 
national law and/or practice of the home Member State.  

In  this  context,  ELA  could  facilitate  the  transparency  of  information  regarding  posting 
allowances and reimbursement of posting related costs in Member States.  

3.1.1.4.8.  Point (d) on collective agreements 

This point extends the option of applying to posted workers, collective agreements not made 
universally  applicable  in  Member  States  that  already  have  a  system  for  declaring  collective 
agreements universally applicable. The purpose of this provision is to reflect the diverse nature 
of Member States’ collective agreements and to give Member States the possibility of extending 
the scope of the Directive by applying it to a broader range of collective agreements.  

Of the 18 Member States who apply  universally applicable collective agreements, at  least  4   
Member States (Greece, Hungary, the Netherlands, Finland) have used the option provided by 
the Directive to also apply to posted workers collective agreements which are not universally 
applicable. 

Regarding the specific scope of applicable collective agreements, 18  Member States (Belgium, 
Bulgaria,  Estonia,  Germany,  Greece,  France,  Croatia,  Italy,  Latvia,  Lithuania (59), 
Luxembourg,  Malta,  the  Netherlands,  Austria,  Portugal,  Romania,  Slovenia  and  Finland) 
exclude procedures related to the termination of the employment contract and  provisions on 
supplementary occupational pension schemes, regardless of whether the terms and conditions 
of employment stem from the law or from collective agreements.  

(58)  Belgium,  Cyprus,  Denmark,  Germany,  Estonia,  Ireland,  Greece,  Spain,  France,  Croatia,  Italy,  Latvia, 

Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Finland and Sweden. 

(59) This is only the case for Lithuania as regards the procedures of the termination of the employment contract 

and the non-competence agreements. Lithuania does not have any active occupational pension fund. 

23 

 
 
 
 
 
 
 
 
 
   
 
 
In  Denmark,  some  applicable  collective  agreements  include,  under  certain  conditions, 
provisions on employer-paid occupational pensions. 

3.1.1.4.9.  Point (e) on additional terms and conditions of employment that 

apply to temporary agency workers 

According to Article 1(2)(e)(9) of the Directive, Member States may require that, in addition to 
the  provisions  of  Article  5  of  Directive  2008/104/EC  on  temporary  agency  work,  posted 
temporary agency workers benefit from any more favourable terms and conditions that apply 
to temporary agency workers at national level. 

14 Member States (60) had already transposed an equivalent provision before the adoption of 
the Directive (61).  

Of  the  other  13  remaining  Member  States  which  had  not  transposed  this  provision  by  then, 
Greece, Austria, Poland, Portugal and Slovakia have since used the possibility provided by this 
Article. In Austria, for instance, the following provisions apply to temporary agency workers 
posted  there,  regardless  of  the  legislation  applicable:  entitlement  to  payments  in  case  of 
sickness, other personal reasons or termination of the labour contract, notice periods and special 
protection against termination of the labour contract and compensation for the termination of 
the labour contract.  

In addition, temporary agency workers who are employed by a user undertaking for a period 
longer than 4 years are entitled to be included into the supplementary pension scheme of the 
user undertaking. 

Of the Member States which had already transposed this provision before the adoption of the 
Directive, Germany, Malta and the Netherlands have adopted additional provisions.  

3.1.1.4.10.  Point  (e)  on  application  of  additional  terms  and  conditions  of 

employment based on equality of treatment 

Article 1(2)(e)(10) of the Directive provides that the host Member State may, in compliance 
with the Treaty, and on a basis of equal treatment, also require the application of terms and 
conditions  of  employment  on  matters  other  than  the  terms  and  conditions  established  under 
Article 3(1) of Directive 96/71/EC (i.e. maximum working periods and minimum rest periods, 
remuneration, health, safety and hygiene at work, etc.) on the grounds of public policy. 

The concept of public policy provisions must be interpreted strictly. It can only apply to national 
provisions where compliance with those national provisions has been deemed to be so crucial 
for the protection of the political, social or economic order in the Member State concerned that   
compliance with them is required of all persons present on the national territory of that Member 
State and all legal relationships within that state.  

Six Member States (Belgium, Czechia, France, Luxembourg, Finland and Sweden) require the 
application  of  terms  and  conditions  of  employment  on  matters  other  than  the  terms  and 

(60)  Belgium,  Bulgaria,  Czechia, Denmark,  Germany,  Spain,  France, Italy,  Lithuania,  Luxembourg,  Malta,  the 
Netherlands, Romania and Sweden.  Point 2.4.2 of the impact assessment accompanying the proposal for  a 
Directive of the European Parliament and of the Council amending Directive 96/71/EC concerning the posting 
of workers in the framework of the provision of services, SWD(2016)52 final. 

(61)  Article 3(9) read as follows in the previous version of Directive 96/71/EC: “Member States may provide that 
the undertakings referred to in Article 1(1) must guarantee workers referred to in Article 1(3)(c) the terms and 
conditions which apply to temporary workers in the Member State where the work is carried out”. 

24 

 
 
 
 
 
 
 
 
 
 
 
conditions of employment established under Article 3(1) of Directive 96/71/EC on the grounds 
of public policy.   

3.1.1.5. Article 1(3) on cooperation between Member States 

The  first  sentence  of  Article  1(3)  of  the  Directive  requires  Member  States  to  provide  for 
cooperation between the authorities or bodies competent to monitor the terms and conditions 
of employment mentioned in Article 3 of Directive 96/71/EC. All Member States have included 
provisions on such cooperation in their national legal systems.  

The second sentence of Article 1(3) of the Directive further stipulates that “such cooperation 
shall in particular consist in replying to reasoned requests from those authorities or bodies for 
information  on  the  transnational  hiring-out  of  workers,  and  in  tackling  manifest  abuses  or 
possible cases of unlawful activities, such as transnational cases of undeclared work and bogus 
self-employment linked to the posting of workers”. 

All  Member  States  have  established  an  authority  or  body  that  is  competent  to  ensure 
cooperation  with  their  counterparts  in  other  Member  States  and  to  handle  requests  for 
information  on  the  hiring-out  of  workers  and/or  the  tackling  of  manifest  abuses  or  possible 
cases  of  unlawful  activities  (e.g.,  transnational  cases  of  undeclared  work  and  bogus  self-
employment linked to posted workers). All Member States include undeclared work and bogus 
self-employment linked to the posting of workers, either explicitly or implicitly.  

The third sentence of Article 1(3) of the Directive further provides that the authority or body 
competent for cooperation with its counterparts in other Member States also has the task or duty 
of obtaining necessary information from other authorities or bodies within their national system. 
All Member States have covered this provision. 

More information on administrative cooperation between Member States may be found in the 
implementation report of the Enforcement Directive (62).  

An  EU  level  trade  union  has  pointed  out,  when  replying  to  the  questionnaire  on  the 
implementation of the Directive, that the correct application of the Directive (particularly when 
it  comes  to  the  rules  on  applicable  collective  agreements  and  their  effective  enforcement) 
requires sincere and open dialogue between Member States and social partners.  

In  this  context,  ELA  carries  out  several  activities  to  support  cooperation  between  Member 
States  in  the  area  of  posting  workers.  These  activities  include  the  development  of  a  mutual 
learning and understanding programme for the national liaison offices in the area of posting of 
workers; the training programme for representatives of national authorities on the basis of EU 
labour mobility law; and cooperation with National Training Centres for labour inspectors. 

ELA has also established a forum called Posting 360’. The Posting 360 forum allows experts 
from  ELA, the Commission,  the Member States  and the social partners to  come together  to 
discuss challenges in the application of EU and national rules on the posting of workers in a 
holistic manner, and to explore potential hands-on solutions which could be implemented by 
the Member States (with the ELA’s assistance). 

Conclusion  

(62)  See footnote 35. 

25 

 
 
 
 
 
 
 
 
 
 
 
 
All Member States have included the provisions of the Directive related to cooperation between 
the Member States’ national competent authorities.  

3.1.1.6. Article 1(4) on monitoring, control and enforcement 

Article 1(4) of the Directive replaces Article 5 of Directive 96/71/EC on monitoring, control 
and enforcement. In this respect, the host and home Member States are both responsible for the 
monitoring, control and enforcement of the obligations laid down in the Directive and in the 
Enforcement Directive. 

Member  States  have  to  adopt  rules  on  penalties  applicable  to  infringements  of  national 
provisions adopted pursuant  to  the Directive and ensure its implementation.  These penalties 
have to be effective, proportionate and dissuasive. Member States also have to ensure adequate 
procedures  for  workers  and/or  workers’  representatives  to  enforce  the  obligations  under  the 
Directive. 

In  addition,  if  an  undertaking  is  improperly  or  fraudulently  creating  the  impression  that  the 
situation of a worker falls within the scope of the Directive, the Member State concerned has 
to ensure that the worker benefits from relevant law and practice. Member States have to ensure 
that  this  measure  does  not  lead  to  the  worker  concerned  being  subject  to  less  favourable 
conditions than those applicable to posted workers. 

Measures taken by Member States in the event of failure to comply with the Directive  

In  all  Member  States,  labour  inspectorates  or  comparable  bodies  play  a  central  role  in  the 
monitoring, checking of and/or enforcing compliance with the Directive.  

For this purpose, such inspectorates or bodies are generally empowered to enter the premises 
of the employer and carry out inspections; and in the case of non-compliance with the terms of 
the Directive, to issue warnings and, if these are not followed, to take certain coercive measures 
(notably including the imposition of administrative sanctions/penalties and criminal sanctions). 
In addition, the standard tools of EU law for the (judicial) enforcement of EU law (e.g., direct 
effect) are available to those who wish to enforce the rights guaranteed by the Directives on 
posting.  

Upon the request of one or more Member States, ELA coordinates and supports concerted or 
joint inspections in the areas within its competence (63). For instance, the ELA Working Group 
on Inspections consists of Member States and social partners and play an important role in the 
work on tools and procedures for inspections carried out (64). ELA held 35 joint inspections in 
2022.  

Penalties applicable to infringements of national provisions adopted pursuant to the Directive 

The second paragraph of Article 1(4) of the Directive stipulates that infringements of national 
provisions  implementing  the  Directive  are  to  be  sanctioned  by  administrative  fines.  The 
wording of this paragraph on penalties is the same as in Article 20 of the Enforcement Directive. 

(63)  Article  9  of  Regulation  (EU)  2019/1149  of  the  European  Parliament  and  of  the  Council  of  20  June  2019 
establishing a European Labour Authority, amending Regulations (EC) No 883/2004, (EU) No 492/2011, and 
(EU) 2016/589 and repealing Decision (EU) 2016/344 (Text with relevance for the EEA and for Switzerland), 
OJ L 186, 11.7.2019, p. 21. 

(64)  https://www.ela.europa.eu/en/concerted-and-joint-inspections#ecl-inpage-217 

26 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
In almost all Member States (except Ireland) infringements of national provisions implementing 
the Directive are sanctioned with administrative fines. Criminal fines are (also) imposed in six 
Member States (Belgium, Denmark, Estonia, Greece, France, Cyprus).  

Some Member States do not include specific sanctions for some posting-related offences, for 
instance  for  not  fulfilling  the  information  obligation  regarding  chain  posting  (Czechia, 
Denmark, Estonia, Greece, Hungary, Finland, Croatia, the Netherlands, Slovenia). 

In  the  case  of  temporary  employment  agencies,  some  Member  States  impose  fines  on  the 
agencies and/or the undertakings to which the workers are posted. For instance, Croatia imposes 
fines  on  both  temporary  employment  agencies  and  user  undertakings.  Czechia  and  Spain 
impose fines on temporary employment agencies. Romania imposes fines on user undertakings.    

Spain  has  introduced  specific  sanctions  for  very  serious  infringements  in  case  of  fraudulent 
posting in relation to letterbox companies. 

Sanctions  may  also  include  warnings  (Belgium  and  Bulgaria),  suspension  or  prohibition  of 
services  (Spain,  France,  Luxembourg  and  Austria),  suspension  of  payments  to  the  posting 
undertaking  or  temporary  employment  agency  (Austria),  a  prohibition  on  exercising  a 
profession or being active as a company (Belgium, Luxembourg and Hungary), closure of a 
company (Belgium) or exclusion from the award of public contracts (Germany).  

The amount of the fines differs significantly  between  Member States; varies for the various 
breaches/infringements of the posting rules; and can be made dependent on the frequency of 
violations, the size of the undertakings and/or the number of posted workers involved in the 
breach. Overall, fines can range from a maximum amount of EUR 1 100 in Latvia to EUR 400 
000 in Austria and EUR 500 000 in Germany.  

It may be too early to assess whether the provisions are effective, proportionate and dissuasive 
in line with the Directive. In any event, the sanctions are often (largely) the same as the ones 
applicable  to  cases  lacking  a  cross-border  element  (Belgium,  Bulgaria,  Czechia,  Ireland, 
Greece,  Spain,  France,  Croatia,  Cyprus,  Lithuania,  Luxembourg,  the  Netherlands,  Poland, 
Portugal and Slovakia). 

In  two  Member  States  (Cyprus (65)  and  Hungary),  fines  are  high  when  compared  with  the 
national  equivalent  fines.  In Latvia  and Estonia,  sanctions appear to be  rather low, with  the 
maximum amount being EUR 1 100 for Latvia (although this is the same as national equivalent 
fines) and EUR 3 200 for Estonia (at least for legal persons).   

According  to  the  study  supporting  the  monitoring  of  the  Directive  and  the  Enforcement 
Directive (66), an appropriate level of sanctions and enhanced labour inspection activities can 
effectively  incentivise  compliance  and  deter  illicit  behaviour.  The  study  mentions  some 
significant barriers to understanding whether the existing sanctions in the law are sufficient to 
deter unlawful practices.  

These barriers include the low share of labour inspections conducted to control compliance with 
posting  regulations  as  a  proportion  of  the  total  inspections  carried  out;  and,  in  the  case  of 

(65) In Cyprus, fines seem to be up to four times higher than the equivalent to national ones (at least for temporary         

employment agencies). 

(66)  See  subpoint  6.1.3.1  of  of  the  study  supporting  the  monitoring  of  the  Posting  of  Workers  Directive 

2018/957/EU and of the Enforcement Directive 2014/67/EU. 

27 

 
 
 
 
 
 
 
 
 
 
 
 
temporary  employment  agencies,  the  often-volatile  functioning  of  (smaller)  agencies,  which 
can be set up, dismantled and then set up again elsewhere relatively easily. 

Procedures  available  to  workers  and/or  workers’  representatives  for  the  enforcement  of 
obligations 

The third paragraph of Article 1(4) of the Directive requires Member States to ensure adequate 
procedures to workers and/or workers’ representatives regarding the enforcement of obligations 
under the Directive. 

In all Member States workers have the possibility to access national courts to enforce the rights 
granted  by  the  Directive.  This  may  be  due  to  general  civil  law,  labour  law  procedures  or 
arbitration. 

Workers  may  also  approach  trade  unions  and  comparable  representative  bodies  (Belgium, 
Bulgaria, Czechia, Denmark, Germany, Greece, France, Croatia, Cyprus, Luxembourg, Latvia, 
the Netherlands, Austria, Poland, Portugal, Romania, Slovenia, Slovakia and Finland) which 
can as a rule take action on behalf of workers. Workers can also approach labour inspectorates 
(Czechia, Estonia, Spain, Latvia, Lithuania, Poland, Romania, Slovenia and Slovakia). 

Workers  and  their  representatives  are  often  able  and  even  obliged  to  bring  grievances 
anonymously to the attention of labour inspectorates (Spain), or to the entities responsible for 
the  resolution  of  labour  disputes  before  commencing  judicial  proceedings  (Estonia,  Ireland, 
Spain, Latvia, Lithuania, Poland, Romania and Slovakia).  

Application  of  relevant  law  and  practice  in  the  case  of  a  worker  fraudulently  qualified  as  a 
posted worker 

The fourth paragraph of Article 1(4) of the Directive  concerns the situation of workers who 
have  been  found  to  be  not  genuinely  posted  because  the  undertaking  has  improperly  or 
fraudulently  created the impression that the situation of those workers would fall within the 
scope of the Directive.  

The Directive now provides that Member States must ensure that such workers benefit from 
relevant  law  and  practice  and  that  this  does  not  lead  to  the  application  of  less  favourable 
conditions than those applicable to posted workers. This provision is to be read in conjunction 
with Article 11(3) of the Enforcement Directive. 

A large majority of Member States have included specific provisions in their national legislation 
allowing workers who have  been  improperly or  fraudulently  qualified  as  ‘posted’ to  benefit 
from national law and practice. Czechia, Ireland, Latvia, Austria and Slovenia do not have any 
specific provision on this matter.   

Most Member States provide assurances that workers benefitting from law and practice will not 
have less favourable conditions. Ireland, Latvia, Luxembourg, Austria and Slovenia have not 
included this specific provision in their national legislation. Some Member States (Spain, Italy 
and Lithuania) grant workers even more favourable conditions.  

Conclusion  

28 

 
 
 
 
 
 
 
 
 
 
 
 
 
In all Member States (except Ireland) infringements of national provisions implementing the 
Directive are sanctioned by administrative fines. Six Member States include criminal fines (67).  
The penalties vary between Member States and it may be too early to assess whether they are 
effective, proportionate and dissuasive in line with the Directive. For instance, the level of fines 
ranges from a maximum amount of EUR 1 100 in Latvia to EUR 400 000 in Austria and EUR  
500 000 in Germany. 

3.1.1.7. Article 1(5) on the introductory wording of the Annex 

Article  1(5)  of  the  Directive  replaces  the  introductory  wording  of  the  Annex  to  Directive 
96/71/EC in order to adapt it to the Articles of that Directive. It does not need to be examined 
in the context of this staff working document and related report. 

4.  Subcontracting and the posting of workers 

Article 2(2) of the Directive requires the Commission to submit a report on the application and 
implementation of the Directive. This report should include an assessment of whether further 
measures  are  required  to  ensure  a  level  playing  field  and  protect  workers  in  the  case  of 
subcontracting.  

The sections below describe the applicable legal framework of subcontracting liability in the 
context of the posting of workers, identify the main challenges related to subcontracting and 
propose some good practices to address those challenges. 

4.1. Applicable legal framework  

Subcontracting  is  not  directly  regulated  in  the  Directive,  but  the  Enforcement  Directive 
recognises  subcontracting  as  a  matter  of  particular  concern (68).  In  this  context,  some  social 
partners are calling to limit subcontracting practices, particularly in the context of the posting 
of workers (69).  

Subcontracting is not a harmful practice itself. It can be useful when a specific project needs 
several capabilities which cannot be provided by a single contractor (70). Subcontracting may 
also be used to address labour shortages and to increase efficiency and flexibility. Competition 
in  some  sectors  is  based  on  labour  costs  and  materials.  Subcontracting  in  those  sectors  has 
therefore  become  the  strategy  to  increase  profits  by  lowering  costs (71).  Long  complex 
subcontracting chains (72) may be set up and may include subcontracted undertakings which are 
posting workers.  

Article 12 of the Enforcement Directive sets out a liability mechanism according to which the 
contractor  to  which  the  employer  is  a  direct  subcontractor,  in  addition  to  or  in  place  of  the 
employer,  can  be  held  liable  by  a  posted  worker  with  respect  to  any  outstanding  net 

(67)  Belgium, Denmark, Estonia, Greece, France and Cyprus. 
(68)  Recital 36 and Article 12 of Enforcement Directive. 
(69)  See, for instance, the report of the European Trade Union Confederation (ETUC) “Subcontracting and social 
liability”, available in this link: Subcontracting and social liability_EN.pdf (etuc.org). See also the “who’s the 
boss” campaign of the European Federation of Building and Woodworkers (EFBWW): WHO'S THE BOSS? 
STOP EXPLOITATION IN SUBCONTRACTING CHAINS! (efbww.eu)  

(70)   See point 6.7.1 of the study supporting the Posting of Workers Directive 2018/957/EU and of the Enforcement 

Directive 2014/67/EU. 

(71)   See footnote 70. 
(72)  Subcontracting chains involve a client, or a principal contractor, externalising single specialities or tasks to 
other companies or self-employed workers. See points 2.2 and 6.7.1 of the study supporting the monitoring of 
the Posting of Workers Directive 2018/957/EU and of the Enforcement Directive 2014/67/EU. 

29 

 
 
 
 
 
 
 
 
 
 
 
remuneration or contributions to common funds or institutions of social partners insofar as they 
are covered by Article 3 of Directive 96/71/EC.  

Member States are required to introduce such subcontracting liability on a non-discriminatory 
and proportionate basis in the construction sector, and also may provide for it in other sectors. 
They  may  also  take  more  stringent  liability  rules  with  regard  to  the  scope  (i.e.,  cover  more 
companies involved in the subcontracting chain, than only the direct contractor) and the range 
(i.e., cover more working conditions covered by Article 3 of Directive 96/71/EC) on a non- 
discriminatory and proportionate basis.  

Member States may also apply other enforcement measures provided that these are justified 
and proportionate in accordance with EU law. 

The  implementation  report  (73)  on  the  Enforcement  Directive  provided  an  overview  on  the 
application of those provisions in the Member States. In this context, several Member States 
indicated that the introduction of those provisions increased the effective protection of workers’ 
rights in subcontracting chains. 

Most  Member  States  limit  the  subcontracting  liability  provided  for  under  the  Enforcement 
Directive to the direct contractor. 10 Member States also provide for the possibility to claim 
unmet payments from parties that are not in a direct contractual relationship with the posting 
employer (74).  

All Member States (75) have adopted national provisions on subcontracting liability within the 
construction  sector.  Since  the  adoption  of  the  implementation  report  on  the  Enforcement 
Directive, 10 Member States have extended those provisions to all sectors(76) (i.e., they have 
adopted a sector neutral subcontracting liability) or to other sectors (77). 

In  addition  to  the  implementation  of  the  specific  provisions  of  the  Enforcement  Directive 
regarding subcontracting liability, some Member States (Belgium, Spain, France and Italy) 
have introduced further measures, such as a ceiling on the number of subcontracting levels 
within subcontracting chains (in a specific sector or in several sectors) (78). For instance, Spain 
has adopted legislation setting a maximum of four subcontracting levels in the construction 
sector. Belgium,  France and Italy  have set  a maximum number of subcontracting  levels  in 
relation  to  public  contracts.  Moreover,  10  Member  States (79)  have  introduced  a  full  chain 
liability (i.e., a subcontracting liability that is not limited to one link up the chain) (80).  

4.2. Main challenges identified related to subcontracting chains 

(73)  See footnote 35. 
(74)  See point 3.9.2 of the implementation report on the Enforcement Directive. 
(75)  Denmark, Finland and Sweden  have taken “other appropriate enforcement measures” according to Article 

12(6) of the Enforcement Directive.  

(76)  Bulgaria, Germany, Spain, France, Italy, Luxembourg, Hungary, the Netherlands, Portugal and Slovakia.  See 
subpoint 4.2.2.2 of the study supporting the monitoring of the Posting of Workers Directive 2018/957/EU and 
of the Enforcement Directive 2014/67/EU. 

(77)  Belgium. 
(78)  See subpoint 4.2.2.1 of the study supporting the monitoring of the Posting of Workers Directive 2018/957/EU 

and of the Enforcement Directive 2014/67/EU. 

(79)  Belgium, Bulgaria, Spain, France, Italy, Lithuania, Luxembourg, the Netherlands, Austria and Poland.   
(80)  Subpoint 4.2.2.2 of the study supporting the monitoring of the Posting of Workers Directive 2018/957/EU and 

of the Enforcement Directive 2014/67/EU. 

30 

 
 
 
 
 
 
 
 
 
 
The following  main challenges could  be identified, taking  into account  the legal  framework 
applicable  to  subcontracting  in  the  context  of  posted  workers  as  well  as  the  information 
collected and analysed by the Commission. 

First,  companies  at  the  top  of  long  and  complex  subcontracting  chains  may  have  a  limited 
control  over  the  lower  chain  levels.  These  companies  may  also  try  to  push  business  risks 
downward in the subcontracting chain (81). The liability mechanism analysed in the previous 
section only partly addresses this situation. Most Member States limit the liability to the direct 
contractor but do not extend it to other parties in the subcontracting chain.  

Second, the lack of transparency and accountability in long subcontracting chains may make 
enforcement of the  applicable rules very difficult due to  problems  in  identifying the liable 
company.  The  direct  responsibility  and  liability  of  the  contractor  may  therefore  be 
considerably  reduced  because  of  the  long  subcontracting  chain.  This  may  also  affect  the 
recovery of unpaid wages (82). 

Third,  in  some  Member  States,  the  application  of  collective  agreements  may  provide  a 
different protection to posted workers in subcontracting chains (83). In addition, flexibility in 
the application of some collective agreements may be used to pay workers in subcontracting 
chains according to less favourable agreements (84). 

Fourth,  some  companies  in  subcontracting  chains  can  turn  out  to  be  letterbox  companies. 
These companies do not perform any economic activity but are only set up to lower labour 
costs or create fiscal optimisation strategies. The letterbox company posts workers abroad but 
it does not carry out any significant economic activity in its home Member State and takes 
advantage of the lower social security contributions and taxes (85). Letterbox companies are 
specifically designed to stay hidden, so it becomes difficult to identify them, especially within 
long and complex subcontracting chains (86).  

Finally, fierce intra-firm competition in subcontracting chains may result in lower attention to 
OSH issues, so subcontracted workers can be less well-informed about significant and relevant 
OSH policies and procedures (87). 

4.3. Good practices for addressing the identified challenges 

The Enforcement Directive sets out a minimum legal framework with respect to subcontracting. 
Member States are free to apply more stringent rules under national law or to go further under 
national law on a non-discriminatory and proportionate basis.  

Against this background and based on the identified challenges presented in section 4.2 above, 
adopting  good  practices  would  help  Member  States  and/or  social  partners  to  address  those 
challenges and increase transparency and liability in subcontracting chains.  

(81)   See point 6.7.2 of the study supporting the monitoring of the Posting of Workers Directive 2018/957/EU and 

of the Enforcement Directive 2014/67/EU. 

(82)   See footnote 81. 
(83)   See point 4.2.2 of the study supporting the monitoring of the Posting of Workers Directive 2018/957/EU and 

of the Enforcement Directive 2014/67/EU. 

(84)  See point 5.3.4 of the study supporting the monitoring of the Posting of Workers Directive 2018/957/EU and 

of the Enforcement Directive 2014/67/EU. 

(85)  See point 6.7.1 of the study supporting the monitoring of the Posting of Workers Directive 2018/957/EU and 

of the Enforcement Directive 2014/67/EU. 

(86)  See footnote 81. 
(87)  Subpoint 6.6.2.1 of the study supporting the monitoring of the Posting of Workers Directive 2018/957/EU and 

of the Enforcement Directive 2014/67/EU 

31 

 
 
 
 
 
 
 
 
 
 
These good practices include: 

- 

- 

- 

- 

- 

limiting  the  number  of  levels  in  subcontracting  chains  and/or  extending  the 
subcontracting liability to the full chain, as currently applied in 10 Member States, on a 
proportionate and non-discriminatory basis; 

imposing “social clauses” in public procurement contracts published by Member States 
(88); 

allowing workers to take a specific claim directly to the top of the subcontracting chain, 
without the need to go through each level of the chain (89); 

enhancing  cooperation  between  Member  States  in  order  to  facilitate  inspections  and 
tackle the abusive practices of letterbox companies, including on a cross-border basis, 
and by exchanging information; 

enhancing the possibility for trade unions to access workplaces at national level with 
the aim of protecting workers and providing information on their rights. 

-  designating  a  coordinator  with  an  overview  of  all  the  different  entities  in  a 
subcontracting chain  (following  the example of  the project  supervisor under  Council 
Directive 92/57/EEC on the implementation of minimum safety and health requirements 
at temporary or mobile construction sites) (90); 

- 

including provisions in collective agreements stating that before works start, companies 
are obliged to communicate to the national competent authorities the complete list of 
companies  involved  in  contracts  and  subcontracts  (including  cross-border  service 
providers) (91). 

These good practices could be developed by ELA under the ELA Posting 360 programme. The 
Commission  therefore  does  not  see  the  need  to  amend  the  Directive  at  this  stage  regarding 
subcontracting specifically. 

5.  Posting of third-country nationals 

This section and the related section of the implementation report presents the main challenges 
affecting  the  working  conditions  of  posted  third-country  nationals  as  well  as  some  good 
practices to address those challenges. It does not provide an account of the legal framework 
applicable to the entry and stay of third-country nationals in a host Member State. 

The posting of third-country nationals has been increasing in recent years and is expected to 
increase still even further in the future as an important intra-EU mobility channel, driven by 
how labour and skills shortages manifest in all Member States (92).  

In several Member States, more than one in five of incoming posted workers are third-country 
nationals  (Belgium,  Bulgaria,  France,  Luxembourg,  the  Netherlands  Austria  and  Poland). 

(88)  Point 6.7.5 of of the study supporting the monitoring of the Posting of Workers Directive 2018/957/EU and 

of the Enforcement Directive 2014/67/EU. 

(89)  See footnote 88. 
(90)  See footnote 88. 
(91)  See footnote 88. 
(92)  See footnote 6.  

32 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Employers of posted third-country nationals are mostly established in Lithuania, Poland and 
Slovenia (93).  

Posted third-country nationals often come from a country that borders or has strong historical 
ties with the Member States. They often have the Belarusian, Bosnian or Ukrainian nationality. 
Member  States  such  as  Belgium,  France  and  Austria,  are  hosting  an  increasing  number  of 
posted third-country nationals (94).  

The posting of workers directives apply equally to posted workers who are EU and those who 
are  third-country  nationals.  They  do  not  distinguish  on  the  grounds  of  the  posted  workers’ 
nationality.  However,  recital  20  of  Directive  96/71/EC  makes  it  clear  that  the  rules  of  the 
Directive are without prejudice to national laws relating to the entry, residence and access to 
employment of third-country nationals.  

In most Member States, the same general rules on posting, which transpose the relevant EU 
legislation, apply to posted third-country nationals. Three Member States (95) have introduced 
specific provisions on posting of third-country nationals into their national legal framework. 
Croatia and the Netherlands explicitly state that a person legally employed in a Member State 
where  their  employer  is  established  does  not  require  a  work  permit.  Similarly,  the  Latvian 
Labour Law requires an employer to declare that a worker is legally employed in the sending 
Member State (96). 

The sections below identify the main challenges related to the posting of third-country nationals 
and propose some good practices to address those challenges.  

5.1. Main challenges related to the posting of third-country nationals 

First, posted third-country national workers present a higher degree of vulnerability than EU 
posted workers due to their potential dependency on the employer for the renewal of the work 
and/or  residence  permits (97).  They  may  therefore  be  less  inclined  to  seek  help,  report  their 
employers and submit complaints regarding breaches of their rights (98).  

Second, posted third-country national workers are generally more exposed to abusive practices, 
such as fraudulent posting, labour rights violations, precarious working conditions or irregular 
payment  or  non-payment  of  social  contributions (99).  Posted  third-country  nationals  are  also 

(93)  Point 3.2 of the study supporting the monitoring of the Posting of Workers Directive 2018/957/EU and of the 

Enforcement Directive 2014/67/EU. 

(94)  See footnote 93. 
(95)  Croatia, Latvia, and the Netherlands. 
(96)  See point 2.2.1 of the report on the cooperation practices, possibilities and challenges between Member States 
– specifically in relation to the posting of third-country nationals, Final Report ELA/2022/RS/027/ELA.306-
2021/TITLE 3/2.2 February 2023.  

(97)  See point 3.1 of the report on the cooperation practices, possibilities and challenges between Member States 
– specifically in relation to the posting of third-country nationals, Final Report ELA/2022/RS/027/ELA.306-
2021/TITLE 3/2.2 February 2023.  

(98)  It  appears  that  there  is  a  low  number  of  complaints  brought  by  posted  third-country  nationals  before  the 
competent national authorities. In addition to linguistic difficulties, this may be also due to cultural differences 
and  different  standards  of  acceptability,  fear  of  being  fined,  isolation  or  economic  problems.  For  more 
information, see section 3.4.2 of the report on the cooperation practices, possibilities and challenges between 
Member  States  –  specifically  in  relation  to  the  posting  of  third-country  nationals,  Final  Report 
ELA/2022/RS/027/ELA.306-2021/TITLE 3/2.2 February 2023.  

(99)  See point 6.5.2 of the study supporting the monitoring of the Posting of Workers Directive 2018/957/EU and 
of the Enforcement Directive 2014/67/EU as well as section 3.1 of the report on the cooperation practices, 
possibilities and challenges between Member States – specifically in relation to the posting of third-country 
nationals, Final Report ELA/2022/RS/027/ELA.306-2021/TITLE 3/2.2 February 2023. 

33 

 
 
 
 
 
 
 
 
 
likely  to  accept  a remuneration below what  should be paid  (100). Risks related to  precarious 
living and working conditions also seem to be higher for posted third-country nationals (101).  

Third, posted third-country national workers may not be aware of their rights in the context of 
posting. This could mainly stem from language barriers in accessing the relevant information, 
as  in  the  case  of  posting  working  conditions  are  regulated  under  different  national  legal 
frameworks (102).  Lack of awareness may also be due to the duration of the posting, especially 
in short-term postings (103).  

Fourth,  employers  of  posted  third-country  national  workers  may  also  face  difficulties  in 
accessing the relevant information on the applicable rules on posting of those workers in a host 
Member State (104). 

Fifth, there may be a lack of comprehensive and comparable data across the EU on posted third-
country national workers. This may make it more difficult for national competent authorities to 
understand certain sectors, adopt evidence-based policy and cooperate with national competent 
authorities from other Member States (105). 

5.2. Good practices for addressing the identified challenges 

According  to  the  replies  to  the  questionnaire  on  the  implementation  of  the  Directive,  some 
Member States do not consider it necessary to adopt specific measures related to the posting of 
third-country nationals, but other Member States consider that these measures are necessary 
(particularly in subcontracting chains).  

Regarding  social  partners,  most  trade  unions  (at  both  EU  and  national  level)  consider  that 
specific  measures  are  necessary.  Employers’  associations  generally  take  the  view  that  the 
current  rules  on  the  posting  of  workers  already  provide  an  effective  framework  for  the 
protection of third-country nationals. 

ELA  has  recently  published  a  report  on  cooperation  practices,  possibilities  and  challenges 
between Member States (specifically in relation to the posting of third-country nationals). This 
report identifies the employment conditions and rights of posted third country nationals as one 
of the main focuses for inspections (106).  

Considering the challenges identified in the previous section, adopting good practices would 
help Member States and social partners to address those challenges: 

(100) See point 6.5.2 of the study supporting the monitoring of the Posting of Workers Directive 2018/957/EU and 

of the Enforcement Directive 2014/67/EU. 

(101) See point 8.5 of the study supporting the monitoring of the Posting of Workers Directive 2018/957/EU and 

of the Enforcement Directive 2014/67/EU. 

(102)  See,  for  instance,  point  5.4.1  of  report  on  the  cooperation  practices,  possibilities  and  challenges  between   
Member  States  –  specifically  in  relation  to  the  posting  of  third-country  nationals,  Final  Report 
ELA/2022/RS/027/ELA.306-2021/TITLE 3/2.2 February 2023. 

(103) See point 3.1 of the report on the cooperation practices, possibilities and challenges between Member States 
– specifically in relation to the posting of third-country nationals, Final Report ELA/2022/RS/027/ELA.306-
2021/TITLE 3/2.2 February 2023.  

(104) See footnote 103.  
(105) See point 5.4 of the report on the cooperation practices, possibilities and challenges between Member States 
– specifically in relation to the posting of third-country nationals, Final Report ELA/2022/RS/027/ELA.306-
2021/TITLE 3/2.2 February 2023.  

(106) See footnote 6. 

34 

 
 
 
 
 
  
  
  
 
 
 
-  providing a better access to information on labour rights specifically focused on posted 
third-country national workers: this should not be limited to the information presented 
in the single official national websites on posting but may include other initiatives which 
have  already been developed by some Member  States (107)  (for instance,  distributing 
information flyers in multiple languages to posted workers, creating helplines for third-
country  nationals  that  provide  legal  advice  on  employment  in  different  languages  or 
providing forms to submit complaints in several languages); 

-  promoting a regular exchange of information between Member States on the relevant 
competent authorities in the context of posting of third-country nationals. This should 
include information  on the immigration authorities where these need to  be involved. 
Such information should cover both information on the scope of their powers as well as 
the relevant contact information (108);  

- 

- 

- 

creating and funding networks, through social partners or NGOs, to facilitate that posted 
third-country national workers claim their rights, in particular regarding the wages and 
working conditions; 

reinforcing the enforcement of the posting rules at national level in specific sectors with 
a high  number of posted third-country nationals  (for instance,  by compiling a list  of 
national  rules  and  procedures  relating  to  the  posting  of  third  country  nationals  and 
distributing to the relevant authorities). In addition, ELA’s Posting 360 mutual learning 
and understanding multi-annual programme could pay particular attention to the posting 
of third-country nationals (109); 

further encouraging the exchange of information and good practices between Member 
States  (particularly  those  with  significant  outbound/inbound  flows)  notably  by 
promoting exchange activities on posting of third-country nationals. This measure could 
also be carried out by ELA under the Posting 360 Programme. 

6.  Main conclusions  

The transposition of the Directive by all Member States has improved the working conditions 
of posted workers.  

Member  States’  legislation  substantially  complies  with  the  Directive’s  requirements.  The 
sections  below  describe  the  main  conclusions  derived  from  the  information  collected  and 
analysed by the Commission. 

6.1. Double or chain posting 

Almost  all Member States have included the provisions of the  Directive on double or chain 
posting  in  their  national  legislation.  The  timeframe  for  the  user  undertaking  to  inform  the 
temporary work agency on the double or chain posting situation (as reflected in the concept ‘in 
due time’) varies between Member States.   

(107) See, in particular, point 3.4.2 of the report on the cooperation practices, possibilities and challenges between 
Member  States  –  specifically  in  relation  to  the  posting  of  third-country  nationals,  Final  Report 
ELA/2022/RS/027/ELA.306-2021/TITLE 3/2.2 February 2023.  

(108)  Section 5.2 of the report on the cooperation practices, possibilities and challenges between Member States –  
specifically in relation to the posting of third-country nationals, Final Report ELA/2022/RS/027/ELA.306-
2021/TITLE 3/2.2 February 2023. 

(109)  Enhancing  cross-border  cooperation  in  the  area  of  posting  of  workers:  ELA  launches  the  Posting  360  

Programme | European Labour Authority (europa.eu)  

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6.2. Terms and conditions of employment  

6.2.1.  Remuneration 

Almost  all  Member  States  have  included  the  Directive’s  provision  on  remuneration  in  their 
national legislation. The change from ‘minimum rates of pay’ to ‘remuneration’ has improved 
the rights of posted workers. Some difficulties were identified in determining the remuneration 
applicable to posted workers with all its mandatory elements.  

6.2.2.  New elements of the terms and conditions of employment 

The  applicable  provisions  of  Member  States  on  the  two  new  elements  of  the  terms  and 
conditions of employment (conditions of accommodation and allowances or reimbursement of 
expenditure  related  to  travel,  board  and  lodging)  established  by  the  Directive  vary  between 
Member States. Those provisions apply to posted workers in so far as they exist for national 
workers  in  the  host  Member  State.  There  are  nevertheless  persistent  concerns  related  to  the 
conditions  of  accommodation  which  may  affect  posted  workers,  notably  the  incidence  of 
substandard accommodation conditions.  

6.2.3.  Information obligations 

Member States have established national websites on posting to comply with the information 
obligations provided for in the Directive. The national websites still have some shortcomings 
with  respect  to  the  content  of  the  information  required  by  the  Directive  (difficulties  to  find 
information on collective agreements and incomplete or outdated information). Complete and 
up-to-date information on the terms and conditions of employment applicable to posted workers 
is crucial for both employers and workers, particularly on remuneration and all its mandatory 
elements, and including on collective agreements and long-term posting situations.  

ELA is already working with Member States  on making such information more transparent, 
comprehensive, up-to-date and easily accessible for posted workers and service providers.  

6.3. Long-term posting 

Almost all Member States have included the provisions of the Directive related to long-term 
postings in their national legislation. Most Member States provide rules on the replacement of 
a posted worker. The additional terms and conditions applicable to posted workers in long-term 
posting situation as well as the timeframe to submit the motivated notification vary between 
Member States. The Commission  further notes  that not  all the  national websites  include the 
information related to long-term postings.  

6.4. Temporary agency workers 

Almost  all  Member  States  have  included  the  provisions  of  the  Directive  related  to  posted 
temporary agency workers in their national legislation. Some Member States oblige the user 
undertaking to inform the temporary employment agency only in specific situations or introduce 
additional information requirements.  

In addition, the Commission notes some strong concerns in relation to the practical application 
of the provisions of the Directive related to posted temporary agency workers. ELA, in close 
cooperation  with  Member  States,  could  provide  more  effective  and  extensive  cross-border 
cooperation and enforcement efforts targeting temporary agency work.  

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Enforcement of the posting rules, including  on the rules related to posted temporary agency 
workers, is in the competence of the Member States. Enforcement is significantly influenced 
by the awareness of the temporary employment agencies and the user undertaking(s) about the 
relevant rules that apply in different countries, particularly in situations where sectoral and/or 
regional collective agreements are also applicable. 

In addition, social partners could also consider supporting the work of labour inspectorates.  

6.5. Posting allowances 

Some  Member  States  have  not  included  in  their  national  legislation  a  specific  provision  on 
posting  allowances  being  part  of  remuneration  unless  they  are  paid  in  reimbursement  of 
expenditure actually incurred on account of a posting. In addition, the national legislation of 
some Member States does not include or does not clearly specify that the reimbursement of 
travel, board and lodging expenditure for a posted worker must be done in accordance with the 
national law and/or practice of the home Member State. In this context, ELA could facilitate 
the transparency of information  regarding posting  allowances  and reimbursement of posting 
related costs in Member States.  

6.6. Cooperation between the competent national authorities and bodies 

All Member States have included the provisions of the Directive on cooperation between the 
national authorities and bodies in their national legislation. ELA could continue working with 
the Member States to support such cooperation. 

6.7. Monitoring, control and enforcement 

A large majority of Member States have included provisions on the monitoring, control and 
enforcement of obligations in their national legislation. The penalties vary between Member 
States, and it may be too early to assess whether they are effective, proportionate and dissuasive. 

6.8. Subcontracting 

The report identifies some challenges with respect to posted workers in subcontracting chains. 
These  challenges  mainly  relate  to  the  need  to  increase  transparency  and  liability  in  those 
subcontracting chains. Further analysis is needed to consider mapping the current situation in 
Member States regarding the coverage of subcontracting liability (i.e., the sectors, levels and 
working  conditions  covered).  This  would  include  providing  guidance  on  applying  more 
stringent  rules  at  national  level  with  regard  to  the  scope  of  subcontracting  liability  (i.e., 
imposing full chain liability, or extending liability to other terms and conditions of employment) 
on a non-discriminatory and proportionate basis.  

6.9. Third-country nationals  

The report observes that posted third-country national workers may be more exposed to abusive 
practices and recommends several measures to address this situation. These measures include 
providing  a  better  access  to  information  on  labour  rights  focused  on  posted  third-country 
national  workers  as  well  as  promoting  a  regular  exchange  of  information  between  Member 
States on the relevant competent authorities in the context of posting of third-country national 
workers or reinforcing the enforcement of posting rules in sectors with a high number of posted 
third-country nationals. ELA continues to play a key role in facilitating access to information 
and  supporting  Member  States  by  enhancing  transnational  cooperation  between  national 
enforcement bodies. 

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