The European Commission has released a Practical Guide on Posting, “aims at assisting workers, employers and national authorities in understanding the rules on posting of workers, as they have been revised with the adoption of Directive 2014/67/EU and Directive 2018/957/EU”.
A useful instrument contains “must to know” about the posting of workers under labour law provisions.
Hereinafter, a few notes and clarifications.
In point 1.2 (The rules at a glance) , the concept of “protection of workers” must be read in conjunction with the introduction (protection of posted workers), in the sense of the Opinion provided by AG Zpunar in Michael Dobersberger (ECLI:EU:C:2019:638 C-16/16 paragraphs 25 to 31).
The workers must be protected, are” the workers of the country of origin of the service provider who are sent to the country of destination”, and not “the workers of the country of destination”. With simple words, the directive’s objective is” the promotion of the transnational provision of services in a climate of fair competition and guaranteeing respect for the rights of workers”, and not to justify protectionism.
In point 2.1 (When can an undertaking envisage posting workers to another Member State ?), in addition to the classical situations provided for by Article 1.3 Directive 96/71/EC, in regard to “other cases», the guide underlines that “In all these cases, the undertaking may post a worker under Directive 96/71/EC only if an employment relationship exists with the worker during the whole period of posting”.
The “other cases” must be considered in the sense of the ECJ case law, in particular Danieli & C. Officine Meccaniche SpA, (ECLI:EU:C:2018:904 C-18/17 paragraph 42) :” the provisions of Article 56TFEU must apply in all cases where a person providing services offers those services in a Member State other than that in which he is established, wherever the recipients of those services may be established”.
In Michael Dobersberger (ECLI:EU:C: 2019:638 C-16/18), AG Szpunar recalls that the terms: “under a contract concluded between the undertaking making the posting and the party for whom the services are intended”, do not necessary imply a direct contract. In regard to the terms “provided there is an employment relationship between the undertaking making the posting and the worker during the period of posting”, the AG suggests the following interpretation: “Considering the content and purpose of Directive 96/71, it is irrelevant to the exercise of the freedom to provide services whether an undertaking established in one Member State itself posts workers to another Member State, or whether this is done indirectly by transferring them to another undertaking”(paragraph 82).
Point 2.4 (“business trips” Are the rules on posting applicable to any mission abroad of workers ?), contains a non-exhaustive enumeration of situations fail under the “business trip” category, and which are not covered by the Posting of Workers Directive and by Directive 2014/67/EU : « This is the case, for example, of workers on business trips (when no service is provided), attending conferences, meetings, fairs, following training etc”. We would rephrase and remove the wording “when no service is provided”, after the enumeration. In any circumstances, it is advisable to refer to the national legislation in the host country.
In regard to the point 3.3 (In case of inspection, which documents must be available?), several (expected) questions were referred to the ECJ for preliminary ruling (joined cases C-492/19, C-493/19, C-494/19). The questions are related on the one hand, to the “other administrative requirements and control measures” Member States may impose under Article 9 Directive 2014/67/EU, and on the other hand, to the delay in which documents must be made available.
For a better understanding of the point 3.10 (After an inspection, a high sanction has been imposed. Is this in accordance with EU law?), the ECJ ruling in Zoran Maksimovic and Others (Joined Cases C-64/18, C-140/18, C-146/18 and C-148/18) , will add to the case : Article 56 TFEU, must be interpreted as precluding a national legislation, from providing for, in the event of non-compliance with obtaining administrative authorizations and keeping salary documents, fines : a) that cannot be less than a predefined amount b) that are imposed cumulatively for each worker concerned and with no upper limit. However, the ECJ found that provisions lay down fines that vary in accordance to the number of workers concerned, do not seem, in principle, to be disproportionate.