Multi-state activity carried out on temporary basis, on behalf of a single undertaking or employer, fall under the scope of the Posting of Workers Directive.

That situation concerns workers who simultaneously, or in alternation, for the same undertaking or employer, exercise one or more separate activities in two or more Member States.

The transposition of Directive 2018/957/EU increases the degree of complexity in applying “simultaneously or in alternation” the laws of different Member States.

The concept of duration of posting is not given an autonomous and uniform interpretation throughout the European Union, and consequently, in the context of multi-state activity the monitoring might be complex.

In the same context, notifying the whole duration of the multi-state activity, regardless the effective duration of posting in each Member State, is not any more an adequate option. Practically, a distinctive declaration of posting must be sent for each period will be spent in each Member State.

The terms and conditions of employment (including remuneration), must be determined and applied considering laws, regulations or administrative provisions and/or collective agreements or arbitrations awards, for each Member State in which territory the activity is carried out.

Situations in which a worker pursues a part of his/her activity in the home Member State, and simultaneously or in alternation, activities in other Member States, might trigger additional conflict of laws, such as but not limited to rules on payment of remuneration.

Another conflict of laws might occur when determining allowances or reimbursement of expenditure to cover travel, board, and lodging expenses for workers away from home for professional reasons.

The principle of “marginal activity” from the social security coordination regulations, is not applicable under the Posting of Workers Directive. An activity that last (e.g.) three days in the territory of a Member State, falls within the scope of the PWD, regardless whether or not the worker will be again carrying out activities within the territory of the latter Member State.

Under the social security coordination regulations, multi-state activity does not trigger the applicability of the criterion of “substantial activity” in the Member State of establishment. However, multi-state activities falling under the scope of the Posting of Workers Directive, fall under the scope of Directive 2014/67/EU as well.       

A worker qualifies as a posted worker under Directive 96/71/EC as amended, if the employer performs substantial activities in the Member State of establishment, in the meaning of Article 4.2 Directive 2014/67/EU.

The takeaway

Although frequently privileged mobility solution, there is little understanding of the concept of multi-state activity.

The application of the amended Posting of Workers Directive adds to the complexity.

The above-mentioned matters must be addressed on a case by case basis, on grounds of EU law and national legislations.