CELEX: 51993PC0225
Language: en
Date: 1993-06-15
Title: Amended proposal for a COUNCIL DIRECTIVE concerning the posting of workers in the framework of the provision

COMMISSION OF THE EUROPEAN COMMUNITIES
                                       COM(93)225  fin»' - SYN 346
                                       Brussels, 15 June 1993
                       Amended proposal for a
                          COUNCIL DIRECTIVE
                 concerning the posting of workers
                 In the framework of the provision
      (presented by the Commission pursuant to Article 149(3)
                         of the EEC-Treaty)
 ---pagebreak---                                                                         Z-
                         EXPLANATORY MEMORANDUM
Parliament and the Economic and Social Committee have delivered
opinions on the proposal for a Council Directive concerning the posting
of workers in the framework of freedom to provide services. The amended
proposal, which the Commission is submitting pursuant to Article 149 of
the Treaty, takes account of Parliament's amendments approved on 10
February 1993, the Economic and Social Committee's opinion adopted on
16 December 1991 and the developments of discussions In the Council
Working Group on Social Questions. A number of technical improvements
have been incorporated for the sake of legal certainty and consistency.
Article 1
The wording of Article 1 has been rephrased to clarify its meaning and
to emphasize the fact that the undertaking referred to therein may be
established either in a Member State or In a third country. This
amendment is in line with the wishes expressed by Parliament and
responds to a broad consensus within the Council Working Group on
Social Questions.
Article 2
Point (c) has been amended at the request of Parliament. By replacing
the original    term   "located" with   the Parliament's    recommended
expression "carrying out work" the new text becomes clearer, broader
and more adequate.
Article 3
The amendment to paragraph 1, point (a) and the new paragraph 4 have
been introduced to take acount of the wishes overwhelmingly expressed
by Parliament, they have a two-fold objective: First of all, to
clarify the original text by deleting the term "erga omnes" which is
unknown in some Member States and to ensure the application of
collective agreements at national, regional or other levels which must
be observed by all national undertakings operating in the occupation or
industry concerned and, secondly, to allow Member States, in the
absence of the abovementloned collective agreements (or awards), to
include those which are complied with by the great majority of
national-level undertakings in the occupation or industry In question.
The fact that an economically insignificant number of national-based
undertakings do not observe the collective agreements (or awards) in
question, would not necessarily impede their application to the
undertaking referred to in Article 2. A key factor will be the
extent to which those undertakings are real potential competitors
relative to undertakings referred to in Article 2. The term "national-
based undertakings being in a similar position" should be construed as
enterprises established in the Member State concerned, which undertake
similar activities or operations and are equivalent in volume or size.
Furthermore, in order to guarantee legal certainty, Article 4 (3)
provides that Member States must ensure that information is officially
published and easily available to foreign undertakings in order to
 ---pagebreak--- enable them to identify the collective agreements which are generally
applicable within the meaning of Article 3(4). In the absence of such
 Information the abovementloned collective agreements cannot be imposed
upon foreign providers of services.
Paragraph 1, point (b) has been changed In response to three amendments
made by Parliament, by adding the terms "Saturdays" and "shift work",
"public holidays" and "sexual orientation" to (I), (II) and (vli)
respect ively.
Paragraph 1, point (b)(lll) has been modified, at Parliament's request,
by deleting the words "but excluding benefits provided for by private
occupational schemes". It is now clear that bad weather payments,
payments relating to annual holidays and public holidays are the
responsibility of the employer where the national law of the host
country so establishes. Whether or not he should pay contributions to
special funds laid down by laws or the collective agreements referred
to in Article 3 will depend on the circumstances of the case and on the
rule that persons providing services should be neither discriminated
against nor required to comply with obligations which are incompatible
with the provision of services as laid down in Article 59 of the Treaty
(Joined Cases 62 and 63/81 Seco SA).
Paragraph 2 has been amended at the request of Parliament. It reduces
to one month the original three-month threshold. The new threshold
allows for the necessary flexibility, may be regarded as more
favourable to workers and is in line with Article 4(3) of Council
Directive 91/533/EEC of 14 October 1991 concerning the employer's
obligation to inform workers on the conditions applicable to their
contracts of employment. The said Article allows the employer not to
give a new written statement to a posted worker where the posting lasts
less than one month.
Paragraph 3 has been Inserted to reflect the opinion of Parliament and
is designed to guarantee the application of the more favourable working
conditions provided for by the law applicable, usually the law of the
home country.
Article 4
Article 4 has been introduced In light of the views of Parliament and
the Economic and Social Committee.
Paragraph 1 ensures cooperation between public authorities of both the
home and the host country in matters relating to the application of the
Directive. It states that liaison offices must be designated to
channel such cooperation.
Paragraph 2 contains a non-exhaustive list of matters on which
information should be provided to a requesting public authority. Such
a   list   includes  Information  concerning   the working   conditions
applicable to posted workers In accordance with Article 3 and the
cross-border supply of workers, including apparent abuses or possible
cases of unlawful cross-frontier activities.
Paragraph 3 Is clarified In Article 3 (1)(a).
 ---pagebreak---                                                                         <<
Article 5
This Article reflects the opinion of Parliament and the Economic and
Social Committee and is In line with other Commission proposals. It
provides for appropriate remedies in the event of failure to comply.
Article 6
Article 6 modifies the date referred to in the original Article 4 which
Is no longer viable.
Article 7
This Article was added to take into account Parliament's wishes. It
provides for a review of the operation of the Directive five years
after the expiry of the period referred to in Article 6.
 ---pagebreak--- Proposal for a Council Directive concerning the posting of workers In
 the framework of the provision of services
          ORIGINAL PROPOSAL
Proposal for a Council Directive        Amended proposa I for a Counc11
concerning the posting of workers       Directive concerning the posting
 in    the    framework       of    the of workers in the framework of the
provisions of services                  provisions of services
The    Counc11    of    the    European The   Council  of   the   European
Commun(ties,                            Commun It les,
Having    regard     to   the    Treaty Unchanged
establishing         the       European
Economic     Community,       and    in
particular Articles 57(2) and 66
thereof,
Having regard to the          proposal  Unchanged
from the Commission,*1)
In cooperation with the European        Unchanged
Par I lament ,'(2)
Having regard to the opinion of         Unchanged
the      Economic       and      Social
Committee,(3*
Whereas, pursuant to Article 3(c)       Unchanged
of the EEC Treaty, the abolition
as between Member          States of
obstacles to freedom of movement
for     persons       and     services
constitutes one of the objectives
of the Community;
Whereas for the provision of            Unchanged
services any restrictions based
on    nationality      or    residence
requirements are prohibited under
the Treaty with effect from the
end of the transitional period;
(1) OJ No
(2) OJ No
(3) OJ No
 ---pagebreak---    Not foreseen                            Whereas the free provision of
                                           services In the framework of the
                                           Single Market      L§ a fundamental
                                           principle of the EEC Treaty as
                                            interpreted    by. the     court    ol
                                           Justice.    Whereas.          however .
                                           certain      restrictions    may    be
                                            Introduced    where    justified on
                                           grounds of public Interest.
   Whereas the realization of the          Unchanged
   Internal market offers a dynamic
   environment for the provision of
   services      and      transnational
   subcontracting     by    inviting    a
   growing number of undertakings to
   post    their    employees     abroad
   temporarily to perform work on
   the territory of a Member State
   other than the State in which
   they are habitually employed;
   Whereas the provision of services       Unchanged
  may take the form either of
   performance    of    work    by   the
  provider of the service or the
  provision of manpower for use by
   an undertaking in the framework
  of    a   public     or   a    private
  contract ;
  Whereas any such promotion of the        Whereas any such promotion of the
  transnational        provision      of   transnational        provision      of
  SP^^-Ces requires a climate of          services requires fair competition
-<alr competition to exist which           to exist which cannot be attained
  cannot     be    attained     without   without      measures     guaranteeIng
 measures ensuring respect for the        respect for the rights of workers;
  r ights of workers;
 Whereas the transnationalizatIon         Unchanged
 of the employment relationship
 raises problems with regard to
 the legislation applicable to the
 employment relationship and that
 it is In the best interests of
 the parties to lay down the
conditions         governing        the
employment                relationship
envisaged;
 ---pagebreak---                                                     <?
Whereas Community law does not            Unchanged
preclude      Member      States     from
applying their legislation, or
collective        agreements      entered
 into by both sides of Industry to
any person who Is employed, even
temporarily,           within       their
territory, although his employer
 Is established In another Member
State*, whereas Community law does
not     forbid     Member     States   to
guarantee the respect of those
rules by the appropriate means;
Whereas         Council         Directive Unchanged
71/305/EEC Of          26   July    1971,
concerning the coordination of
procedures       for    the    award   of
public works contracts,*4* as
last amended by Council Directive
89/440/EEC,< 5) lays down strict
rules on the verification of the
aptitudes of bidders on the basis
of their economic, financial or
technical capacities;
Whereas         Council         Directive Unchanged
89/440/EEC and Council Directive
90/531/EEC of 17 September 1990
on the procurement procedures of
entities operating in the water,
energy,            transport          and
telecommunications            sectors*6*
introduced a transparency clause
whereby the contracting authority
may provide tenderers with the
necessary Information concerning
working conditions applicable to
the work envisaged;
Whereas       ILO      Convention      94 Unchanged
concerning       social     clauses    in
public contracts came into force
on 20 September 1952;
Whereas the Convention on the law         Unchanged
applicable          to       contractual
obligations opened for signature
in Rome on 19 June 1980*7) by
eight Member States came into
force on 1 April 1991 in the
majority of Member States;
(4)  OJ  L  185  of  16.8.1971, p. 5.
(5)  OJ  L 210   Of  21.7.1989, p. 1.
(6)  OJ  L 297   of  29.10.1990, p. 1
(7)  OJ  L 260   Of  9.10.1980.
 ---pagebreak--- Whereas         its      Article        3 Unchanged
 establishes, as a general rule,
 the free choice of law made by
 the parties; whereas,           in the
absence of choice, the contract
shall be governed according to
Article 6(2), by the law of the
country In which the employee
habitually carries out his work
 in performance of the contract,
even     If     he    Is   temporarily
employed in another country; or
 if    the     employee     does     not
habitually carry out his work In
any one country, by the law of
the country in which the place of
business through which he was
engaged is situated; unless it
appears from the circumstances as
a whole that the contract Is more
closely connected with another
country,      In    which    case    the
contract shall be governed by the
 law of that country;
Whereas, according         to Article     Unchanged
6(1) of the said Convention, the
choice of law made by the parties
shall not have the result of
depriving the employees of the
protection afforded to him by the
mandatory rules of the law which
would      be      applicable      under
paragraph 2 in the absence of
choI ce ;
Whereas,       according      to     the  Unchanged
principle of precedence of the
Community      law stated       in   its
Article 20, the said Convention
shall not affect the application
of provisions which, in relation
to a particular matter, lay down
choice of law rules relating to
contractual obligations and which
are or will be contained in acts
of    the     institutions     of    the
European      Communities      or     in
national      laws     harmonized     In
implementation of such acts-,
Whereas a minimal approximation           Unchanged
of the labour laws of the Member
States has already taken place;
whereas, however, there are still
differences as to the social
rights guaranteed by the national
laws      and       the     collective
agreements in force-,
 ---pagebreak---                                                                               ^
Whereas, to this end, the laws of       Whereas untI I such time as these
the    Member      States     must   be differences In socI a I rI a his have
coordinated In order to lay down        converged, the laws of the Member
a nucleus of mandatory rules for        States must     be coordinated     In
minimum protection to be observed       order to lay down a nucleus of
 in the host country by employers       mandatory    rules     for    minimum
who    post    workers     to perform   protection to be observed in the
temporary work In the territory         host country by employers who post
of a Member         State where the     workers to perform temporary work
services are provided;                  In the territory of a Member State
                                        where the services are provided;
                                        whereas such coordination can be
                                        achieved    only
                                        Community law;
Whereas       the      stability     of Unchanged
employment       relationships      for
short-term postings should not be
hampered with respect to minimum
rates of pay and minimum paid
hoi lays; whereas, therefore, an
exception to certain provisions
of    the    Directive      should   be
provided for;
Whereas, however, a "hard core"         Unchanged
of   protective       rules,    clearly
defined, should be observed by
the provider of          the services
notwithstanding the duration of
the worker's posting;
Not foreseen                            Whereas,   however,  the mandatory
                                        rules for             orot<
                                        force in the host country must not
                                        prevent application of the terms
                                        and   conditions    of     employment
                                        provided for by the law applicable
                                        which   are more     favourable    to
                                        workers;
Whereas, to attain the aims and
objectives      envisaged     by   this
Directive,                undertakings
established outside the Community
must be subject to the same "hard
core" of protective rules with
respect     to their workers who
carry out temporary work in the
territory of a Member State;
 ---pagebreak--- Whereas this Directive Is without                   Whereas.              without      prejudice          to
prejudice          to      national            laws other provisions of: Community law.
relative to the hiring out of                       this Directive does not entailthe
workers,          notably              to       the obligation                 to       give           Legal
functioning               of            temporary   recognition to the e xI s t ence of
employment business, as well as                     temporary employment
to   the entry,              residence          and Qui.         does         it prejudice
employment          of      third           country application by Member States __ol
workers.                                            their laws concerning the hiring
                                                    out of workers and. temporary
                                                    employment                   businesses               lu
                                                    u n d e r t a k i n g s not e s t a b l I s h e d Ln
                                                    their           territory        but       operating
                                                    t h e r e i n In the f r a m e w o r k o f t h e
                                                    p r o v i s i o n of s e r v i c e s ;
Not foreseen                                        Whereas             this       Directive           shall
                                                    affect           neither        the      agreements
                                                    c o n c l u d e d by the C o m m u n i t y wjth
                                                    third c o u n t r i e s nor t h e laws of
                                                    Member            States        concerning           the
                                                    a c c e s s to its or their territory
                                                    of        third-country            providers          of
                                                    s e r v i c e s : w h e r e a s this D i r e c t i v e
                                                    is       also         without       prejudice         to
                                                    national             laws     relating         to the
                                                    e n t r y , r e s i d e n c e and a c c e s s to
                                                    workers;
Not  foreseen                                       W h e r e a s competent a u t h o r i t i e s in
                                                    different              Member        States         must
                                                    c o o p e r a t e w i t h each other in tHa
                                                    appl Icatlon             o_f this        Pi recti V O L
                                                    w h e r e a s Member S t a t e s must p r o v i d e
                                                    for a p p r o p r i a t e remedies. n the
                                                    event o f f a i l u r e to comply with
                                                    this D i r e c t i v e ;
                                                    W h e r e a s five y e a r s after the d a t e
                                                    set for the implementation o f this
                                                    Directive.              the C o m m i s s i o n     must
                                                    r e v i e w Its o p e r a t i o n w i t h a view
                                                    to p r o p o s i n g , w h e r e n e c e s s a r y , the
                                                    adequate amendments.
HAS A D O P T E D T H I S D I R E C T I V E
 ---pagebreak---               Article 1                             Article 1
This Directive shall apply to         This Directive      shall apply to
undertakings, regardless of the       employment    relationships carried
State     in    which     they    are out    In the     framework of Ihe
established, which exercise their     provision of seiLvJses reietred to
activities In the framework of              Article          whether^   the
the provision of services within      undertaking     providing   them   Is
the meaning of the Treaty.            established In a Member State or
                                      In a non-Member country.
              Article 2                             Article 2
This Directive applies to the         1. Unchanged
extent     that    an    undertaking
referred to in Article 1:
(a) in the course of carrying out       (a) Unchanged
    a    contract    for    work   or
    services posts a worker to
    the territory of a Member
    State on behalf of and under
    the     direction      of    that
    undertaking; or
(b) being a temporary employment        (b) Unchanged
    business places a worker with
    a        user        undertaking
    established or having a place
    of    business    in a Member
    State, In so far as there is
    an    employment    relationship
    between       the       temporary
    employment business and the
    worker during the period of
    posting; or,
(c) places a worker with one of       (c) places a worker with one of
     Its establishments, or with           its establishments or with
    another undertaking       located     another undertaking carrying
     in a Member State, in so far         out work in a Member State, in
    as there Is an employment             so    far    as   there    is  an
    relationship      between     the     employment           relationship
    former undertaking and the            between the former undertaking
    worker during the period of           and   the worker      during  the
    post ing.                             period of posting.
 ---pagebreak---              Article 3                               Article 3
  Member States shall see to it        1. Member States shall see to it
  that,      whatever      the     law that, whatever the law applicable
  applicable to the employment         to the employment        relationship,
  relationship, the undertaking        the undertaking referred to In
  does not deprive the worker of       Article 2 does not deprive the
  the terms and conditions of          worker of the terms and conditions
  employment     which    apply   for  of employment which apply for work
  work of the same character at        of the same character at the place
  the place where the work is          where the work        Is temporarily
  temporarily       carried      out,  carried out, provided that:
  provided that:
(a) they are laid down by laws,          (a) they are laid down by laws,
     regulations                  and        regulations                  and
     administrative      provisions,         administrative provisions or
     collective     agreements      or       by collective agreements or
     arbitration awards, covering            arbitration      awards   within
     the whole of the occupation              the meaning of par;
     and      industry      concerned
     having     an    "erga    omnes"
    effect     and/or    being made
     legally     binding     in   the
    occupation       and     industry
     concerned, and
(b) they concern      the   following    (b) they concern      the  following
    matters:                                 matters :
 (I)   maximum daily and weekly           (I)   maximum dally and weekly
       hours     of     work,    rest           hours    of     work,    rest
       periods, work on Sundays                 periods, work on Saturdays
       and night work;                          and Sundays, night work
                                                and shift work;
 (ii) minimum paid holidays;              (II) public       holidays      and
                                                minimum paid hoiidays
 (ill) the minimum rates of pay,          (ill) the minimum rates of pay,
         including overtime rates                including overtime rates
         and     allowances,      but            and a Ilowances;
         excluding           benefits
         provided for by private
         occupational schemes;
 (Iv) the conditions of hiring            (iv) unchanged
       out     of     workers,      in
       particular the supply of
       workers      by      temporary
       employment businesses;
 (v)   health, safety and hygiene         (v) unchanged
       at work;
 ---pagebreak---                                                                                        >f3
  (vi) protective      measures    with    (vl) unchanged
        regard    to     the    working
       conditions       of     pregnant
       women or women who have
        recently      given      birth,
       children, young people and
       other      groups       enjoying
       special protection;
  (vii) equality      of      treatment    (vll) equality       of          treatment
         between men and women and               between men and women and
         prohibition                 of          prohibition                        of
         discrimination       on    the          discrimination             on     the
         grounds of colour, race,                grounds of colour, race,
         re Iigion,          opinions,            re Iiglon,               opinions,
         national origin or social               national origin,              social
         background.                             background           or       sexual
                                                 orientation.
   Paragraphs K b ) (ii) and (ill)         Paragraph K b ) (ii) and ( I N )
   shall not apply to employment           shall not apply to employment
   relationships referred to In            relationships referred to in
   Article 2 when the length of            Article 2 when the length of
   the posting of the workers is           the posting of workers is less
   less than three months, within          than one month. within a
   a reference period of one year          reference period of one year
   from the beginning of the               from the beginning of the
   posting. In calculating the             posting. In calculating the
   three-month period, account             one-month period, account shaI I
   should     be    taken     of    any    be taken of any                  previous
   previous periods for which the          periods for which the post has
   post has been filled by a               been filled by a posted worker.
   posted worker.
3. Not foreseen                         3. Paragraph 1 _JSha! I - no i_prevent
                                           applicatlog. of the terms and
                                           condltIons       ef__         employment
                                           provided     for     by      ^1M       law
                                                    IJS ._wJiiclL axe___jnore.
                                           favourable   to w o r k e r s .
 ---pagebreak--- 4. Not foreseen         4. For the purposes of paragraph 1
                            point       XajL          collectIvfl
                            agreements     -OJL      ar bit rat, ton
                            awards mean those which must ba
                           observed by a I I undertakings In
                            the geographical area and In
                           ibfi   profession      or      industry
                           concerned. In         the       absence
                            thereof.   Member      States       may
                             nclude      those        collectlve
                           agreements or awards which are
                           general lv applicable           in the
                           area or In the profession or
                            Industry In question, provided
                           that their application to the
                           undertaking     referred         to    In
                           Article 2 ensures eeualltv of
                           treatment on matters Itemised
                           under paragraph ] point               ihl
                           between that undertaking and
                           national-level          undertakings
                           being In a similar position.
             Article 4                Article 4
Not foreseen           1• Member States shall provide for
                       coopérât Ion       between           pub I ic
                       authorities in matters relating to
                       the application of this Directive.
                       To this end they shall designate
                       liaison     offices. The          relevant
                       details shall be notified to the
                       other Member States and to tM.
                       CommissIon.
2. Not foreseen        2. The assistance referred to In
                           paragraph 1 shall consist LQ
                           particular In replying to any
                           reasoned          recuest           10JL
                           information       concerning         the
                           working conditions applicable
                           to posted workers In accordance
                           with Article 3 and the cross-
                           border supply ol workers.
                           including apparent abuses ox
                           possible    cases     of      unlawful
                           cross-front ier          activities.
                           Mutua                administrât ive
                           assistance shall be provided
                           free of charge
 ---pagebreak---                                                                                                            4<
   3. Not f o r e s e e n                           Member states shall ensuo
                                                    official information on.
                                                    collective agreements which ara
                                                    g e n e r a l l y a p p l c l a b l e w i t h i n the
                                                    meaning           oj     Article          ai4j_ia
                                                    PUb) I s h e d        fey.       §       competent
                                                    authority                  and            read LLLY
                                                    available to Ite undertaking
                                                    referred to Ln A r t i c l e                        2^
                                                    Fal M no sjucj] Information the
                                                   Undertaking In Question shall
                                                    not          _fee_      bound          Jtf-        the
                                                    abovementloned                        collectlve
                                                    agreements.
                         Article S                                    Article S
   Not     foreseen                             Member States shaJ! provide for
                                                appropriate remedies in the event
                                                o_f fal lure to Cpmp 1 y with this
                                                Directive and In particular shall
                                                ensure that adeouate                       procedures
                                                exist       at the. suit of workers
                                                and/or their representatives for
                                                the enforcement                  of obligations
                                                under this DirectIve
                         Article 4                                    Article 6
    Member States shall bring into              Member States shall bring                             into
    force the laws, regulations and             force the laws, regulations and
    administrative                   provisions administrative                             provisions
    necessary to comply with this               necessary           to comply             with       this
    Directive by 31 December 1992 at            Directive i w £              years after              Its
    the              latest. They         shall adopt Ion          at     the         latest. They
     Immediately               inform       the shall         immediately               Inform        the
    Commission thereof.                         Commission thereof.
    When Member States adopt these              Unchanged
s»  p r o v i s i o n s , these shall contain
    a reference to this D i r e c t i v e ,
    or shall be accompanied by such
    reference at the time or their
    official                 publication. The
    procedure            for such     reference
    shall          be adopted       by Member
    States.
 ---pagebreak---              Article 7                      Article 7
Not foreseen                   Five years after tnfi Period
                               referred to in Artlde 6 Ulft
                               Commission    shall    review   the
                               operation of this Directive with a
                               view    to     proposing.     where
                               necessary, suitable amendments.
             Article S                     Article 8
This Directive is addressed to This Directive Is addressed to the
the Member States.             Member States.
 ---pagebreak---                                                                                     .A t
                                                                     ISSN 0254-147Î
                                                              CGM(93)2?5 final
                                                                      sr*
EN
                                Catalogue number : CB-CO-93-256-EN-C
                                                             ISBN 92-77-55945-4
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