One of the frequently asked questions is related to the status of cross-border trainings.
Most of the related questions read as follows:
Do training activities fall under the scope of the Posting of Workers Directive, regardless if about “classroom trainings” or “on-the-job trainings”?
To clarify the concept of training in the context of cross-border activities, the question must be rephrased:
The first relevant question is whether a training activity always fails within the scope of the Posting of Workers Directive.
The answer is in the negative (although such situations are rare).
Where a service is not provided (in the sense of EU law), a training does not fail within the scope of the Posting of Workers Directive.
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 employee sent to attend a training organised by a public educational institution, financed with public funds, is not posted in the meaning of the PWD (see to that context the ECJ ruling in C-263/86 Belgian State v Humbel, 27 September 1988, ECLI:EU:C:1988:451, paragraphs 17,18 and 19). Such a situation does not fail within the scope of Article 57TFEU.
However ,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 services, fails within the scope of Article 56TFEU (see to that extent C-55/98 Vestergaard, 28 October 1999, ECLI:EU:C:1999:533, paragraph 18).
As regards an eventual different treatment can be given to a worker and a trainee from the perspective of the PWD, in Edgard Jan De Clercq and Others, the ECJ upheld : “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” (C-315/13, Edgard Jan De Clercq and Others, 3 December 2014, ECLI:EU:C:2014:2408, paragraph 36).
The specificity of certain activities (e.g. training, conference) is that the worker crosses the border, on behalf of his/her employer, in view of receiving a service (to attend conferences, follow trainings). It is settled ECJ case-law, that such situations fall within the scope of Article 56TFEU (see to that extent Joined Cases C-286/82 and C-26/83 Luisi and Carbone, 31 January 1984, ECLI:EU:C:1984:35, paragraph 10).
Conclusion: Except for the situation above mentioned (and underlined), training activities fall within the scope of the Posting of Workers Directive.
Provided that the training activity fails within the scope of the PWD, the question is whether in respect to short duration trainings, the employer is exempt from the obligation to comply with certain terms and conditions of employment laid down by the host Member State national legislation
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”.
The EU Commission 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).
In Danieli & C. Officine Meccaniche SpA, AG Wahl has underlined that : “the directive applies to a wide array of situations in which workers are transferred from one Member State to another in the context of cross-border provision of services” (C-18/17, Danieli & C. Officine Meccaniche SpA, ECLI:EU:C:2018:288, paragraph 40).
As regards the short duration of a training, in Mazzoleni, the ECJ has 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”(C-165/98, Mazzoleni, 15 March 2001, ECLI:EU:C:2001:162, paragraph 28).
Having regard to the above considerations, as a matter of principle, training activities fall within the scope of the PWD.
“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” (C-165/98, Mazzoleni, 15 March 2001, ECLI:EU:C:2001:162,paragraph 30).
The only mandatory exemption from the applicability of certain terms and conditions of employment, is laid down in Article 3.2 Directive 96/71/EC : initial assembly and/or first installation of goods, if the posting period does not exceed eight days, under the conditions laid down in the said article.
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.
Conclusion: With regard to short duration trainings, eventual exemptions from the applicability of certain terms and conditions of employment, are laid down by the national legislation of the host Member State.
Lastly, the question is whether it must be distinguished between “classroom training” and “on-the -job training”
As a matter of principle, the question should be whether the activity constitutes a training, and not where that activity will be carried out.
It is however important to refer to the national law and practice of the host Member State. Provided that the law is “silent”, to consider that labour inspections will often qualify “on-the -job trainings” as merely lucrative activity.
