Only several days before the transposition deadline, although the majority of Member States are yet to communicate the text of the measures adopted (or merely yet to adopt any measure), the most important “receiving Member States” have adopted the laws necessary to comply with the amended Posting of Workers Directive.

It is important to underline certain concepts whose interpretation will be disputed by the different stakeholders (without being exhaustive).

Duration -replacement condition

Reading in conjunction the definition of long term posting and the replacement condition, the 12 months period (eventually extended to 18 months), is deemed to be the effective cumulative duration of different posting periods (not necessary continuous periods),during which one or several posted workers ,carry out on behalf of their employer, the same task at the same place of work.

There is no ex ante limit to the aggregation of periods during which different workers carry out the same task, at the same place of work (to date, a fact, although “somewhat unclear”-see to that extent the Opinion delivered by Advocate General Manuel Campos Sánchez-Bordona in C-620/18 and C-626/18).

Open questions:

1 Which kind of interruptions are deemed to break the effective duration of the period of posting?

2 The application of the replacement condition in certain (not rare) situations - example:

On 1 August 2020, a Polish company will post to France, to the same customer (a Train Testing Centre), seven test engineers (X₁ to X₇).

The engineers will be carrying out the same task (tests on trains), at the premises of the French customer. The posting period will vary: three engineers will be posted for two weeks, two engineers will be posted for one month, and the other two for two months.

On 1 January 2021 (i.e. three months after the day on which the last engineer posted has completed the assignment), the Polish company will post another engineer (Y), to carry out the same task at the same place of work.

Which one of the engineers (X₁ to X₇) will be replaced by Y?

Provided that Y will replace X₃, an engineer posted upon completion of the assignment carried out by Y, shall be deemed to replace Y, or may replace (e.g.) the engineer X₄?

3 Whether the concept of “same place of work”, will be given a uniform interpretation throughout the EU?

The answer is prima facie in the negative.

Terms and conditions of employment

Concept of remuneration

The gross remuneration due in accordance with the national law and/or practice of the host Member State, is constituted of:

  • the basic remuneration (considering the relevant category, position, professional qualification, and seniority) supplemented by
  • exclusively constituent elements of remuneration which are rendered mandatory by the host Member State national law, regulation or administrative provision, or by collective agreements or arbitration awards which, in that Member State, have been declared universally applicable or otherwise apply (In the absence of, or in addition to, a system for declaring collective agreements or arbitration awards to be of universal application)

That amount must be compared with the home country gross remuneration actually paid to the worker (i.e. basic gross remuneration, supplemented by components deemed to constitute remuneration in the meaning of the host MS law).

The principle of favourability cannot be applied as regards the remuneration only (it requires an overall assessment of the terms and conditions of employment, from the law applicable to the employment relationship, and the host MS legislation).

Open questions:

1 Provided that the actual gross remuneration paid to the posted worker, is higher than the amount due in accordance with the national law and/or practice of the host Member State, and however, applying the principle of favourability, the host MS legislation is more favourable to the worker, the former amount could be eventually decreased to equalize the latter (i.e. considering the other terms and conditions as well, applying the host MS legislation, the worker will be given more favourable conditions). Shall such a decrease be addressed under the home MS law, host MS law, both, or merely “as a consequence” of the application of a conflict of laws rule under the Posting of Workers Directive?

2 Where determining the remuneration on grounds of collective agreements, to what extent posting scenarios must be “transposed” into the host MS national legislation? Example: must the experience be determined on grounds of the home of host MS’ relevant collective agreement?