Further our previous article that discussed cross-border training activities, a fairly large number of questions were addressed to us, can be summarised as follows:

  • whether a training can be assimilated to a “business trip”- when “no service is provided” in the meaning of point 2.4 first paragraph Practical Guide on Posting (published by the Directorate-General for Employment Social Affairs and Inclusion EU Commission)
  • whether in any circumstances, training activities give rise to an obligation to comply with administrative requirements and/or with terms and conditions of employment laid down in the Member State where the training is carried out (i.e., regardless of their scope, duration etc.)

It is apparently hard to admit that (example), a two-day training might give rise to certain obligations under the host Member State national legislation.

1 Whether any training activity falls under the provisions of the Posting of Workers Directive

The Posting of Workers Directive (PWD) applies to undertakings established in a Member State which, in the framework of the transnational provision of services, post workers, to the territory of a Member State (Article 1.1 Directive 96/71/EC).

When a service is not provided (in the sense of EU law), a training does not fall within the provisions of the PWD.

Pursuant to Article 57TFEU, "Services shall be considered to be 'services' within the meaning of the Treaties where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons".

An example of a training activity that does not fall within the scope of Article 57TFEU: an individual attending a training organised by a public educational institution financed with public funds. The ratio decidendi is the “essential characteristic of remuneration thus lies in the fact that it constitutes consideration for the service in question and is normally agreed upon between the provider and the recipient of the service”, “absent in the case of courses provided under the national education system” (see to that effect the ECJ ruling in Belgian State v Humbel, C-263/86, 27 September 1988, ECLI:EU:C:1988:451, paragraphs 17,18 and 19).

The specificity of certain activities is that the worker crosses the border, on behalf of his/her employer, in view of receiving a service (e.g., to attend a training). It is settled ECJ case-law that such situations fall within the scope of Articles 56 and 57TFEU (see to that effect the ECJ ruling in Luisi and Carbone, Joined Cases C-286/82 and C-26/83, 31 January 1984, ECLI:EU:C:1984:35, Decision paragraph 10).

As a matter of principle, organisation of professional training courses, if "provided to nationals of a Member State on the territory of another Member State, irrespective of the place of establishment of the provider or recipient of the services", falls within the scope of Article 56TFEU-freedom to provide services- (see to that effect the ECJ ruling in Vestergaard, C-55/98, 28 October 1999, ECLI:EU:C:1999:533, paragraph 18).

The EU Commission's services report on the implementation of Directive 96/71/EC, underlines that “if the definition of a posted worker set out in the Directive were to diverge from the general definition of the provision of services set out in the Treaty, this would not only make the legal situation more complicated but would be likely to reduce the level of protection provided to those working on a temporary basis in another Member State" (COM (2006)159 final).

Or, pursuant to Article 2.1 Directive 96/71/EC, posted worker “means a worker who, for a limited period, carries out his work in the territory of a Member State other than the State in which he normally works".

It follows that unless a service is not provided in the meaning of Article 57TFEU, a worker posted for training falls under the scope of the PWD.

2 Whether in any circumstances, training activities give rise to an obligation to comply with administrative requirements and/or with terms and conditions of employment laid down in the Member State where the training is carried out

Firstly, as regards an eventual different treatment can be given to a worker and a trainee from the perspective of the PWD, the national legislation of the host Member State must be considered: "it must be stated at the outset that, although, in its question, the referring court refers to both workers and trainees posted to Belgian territory, the national provisions applicable to them are, mutatis mutandis, identical. Therefore, the reasoning which follows with regard to posted workers also applies to trainees, since their training period is completed under the conditions of a genuine and effective activity as an employee" (Edgard Jan De Clercq and Others, C-315/13, 3 December 2014, ECLI:EU:C:2014:2408, paragraph 36).

As regards whether the eventual (very) short duration of a training activity, rules out per se the applicability of the provisions governing posting, in Mazzoleni, the ECJ recalled that "As regards more specifically national provisions relating to minimum wages, such as those at issue in the main proceedings, it is clear from the case-law of the Court that Community law does not preclude Member States from extending their legislation, or collective labour agreements entered into by both sides of industry, relating to minimum wages, to any person who is employed, even temporarily, within their territory, regardless of the country in which the employer is established"[Mazzoleni, C-165/98, 15 March 2001, ECLI:EU:C:2001:162, paragraph 28).

“However, there may be circumstances in which the application of such rules would be neither necessary nor proportionate to the objective pursued, namely the protection of the workers concerned" (Mazzoleni, C-165/98, 15 March 2001, ECLI:EU:C:2001:162, paragraph 30).

Pursuant to Articles 3.3 to 3.5 Directive 96/71/EC, Member States' national legislation may provide for certain exemptions, taking in consideration the length of the posting and the amount of work to be done.

Pursuant to Article 9(1) Directive 2014/67/EU, Member States may impose administrative requirements and control measures, provided that these are justified and proportionate in accordance with EU law (see to that effect Maksimovic and Others Joined Cases C-64/18, C- 140/18, C-146/18 and C-148/18,12 September 2019, ECLI:EU:C:2019:723).

National legislations transposing the Posting of Workers Directive and its enforcing Directive 2014/67EU, represent legal grounds for eventual exemptions.

Example:

  • Section 1(5)2 and 9, and Section 1(6)1 Anti-Wage and Social Dumping Act (LSD-BG)-Austria
  • Section 24(2)4 Posted Workers Act (AEntG) -Germany

Having regard to the above considerations, in view of determining eventual exemptions from certain administrative requirements and/or certain terms and conditions of employment, the national legislation of the Member State where the training is carried out must be considered:

  • whether the specific training activity is covered by an exemption
  • the period during which such an exemption applies
  • which administrative requirements and/or terms and conditions of employment are concerned by the exemption