Administrative Requirements and Control Measures in the Posted Workers Enforcement Directive

Sara Fekete, PhD candidate at the Eötvös Loránd Tudományegyetem, Faculty of Law, Department of Private International Law and European Economic Law (Hungary)

January 2020

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ABSTRACT

On 25 September 2019, the European Commission presented its report to the European Parliament, the Council and the European Economic and Social Committee on the application and implementation of Directive 2014/67/EU (the ‘Enforcement Directive’) assessing, in particular, the appropriateness and adequacy of the application of national control measures introduced on the basis of its Article 9.

In its report, the European Commission summarises the three-years experience of Member States and relevant stakeholders with the effectiveness of the system for administrative cooperation and exchange of information, the development of more uniform, standardised documents, the establishment of common principles or standards for inspections in the field of the posting of workers and technological developments.

The Enforcement Directive has been implemented in all Member States starting from 18 June 2016. According to the Enforcement Directive, all Member States are authorised to impose certain administrative requirements in order to ensure effective monitoring of compliance with the obligations set out in Article 3(1) of the Posted Workers Directive (96/71/EC), namely guaranteeing to posted workers the ‘hard core’ labour rights applicable in the host country based on law, regulation or administrative provision, and/or universally applicable collective agreements (provided these are more favourable than the rights enjoyed based on their home country employment regulation):

a)maximum work periods and minimum rest periods;
b) minimum paid annual holidays;
c)minimum rates of pay, including overtime rates (but excluding supplementary occupational retirement pension schemes);
d)the conditions of hiring-out worker, in particular the supply of workers by temporary employment undertakings;
e)health, safety and hygiene at work;
f)protective measures with ergard to the employment of pregnant women or women who have recently given birth, of children and of young people;
g)equality of treatment between men and women and other provisions on non-discrimination.

To achieve its objective, the Enforcement Directive established a common framework of a set of appropriate provisions, measures and control mechanisms necessary for better and more uniform implementation, application and enforcement in practice of the Posting of Workers Directive, including measures to prevent and sanction any abuse and circumvention of the rules applicable to posted workers.

The Enforcement Directive itself enlists a range of administrative requirements the Member States can ‘pick & chose’ from, to guarantee the respect of the above ‘core labour rights’ during postings, namely:

  1. to make a simple declaration to the responsible national competent authorities in order to allow factual controls at the workplace (the so-called ‘Posted Worker Notification’; ‘PWN’);
  2. to keep or make available and/or retain copies of the employment contract or an equivalent document relevant to the assignment, including payslips, time-sheets and proof of payment of wages during the posting, as well as after the period of posting at the request of the authorities;
  3. to provide a translation of the retained assignment related employment documents;
  4. to designate a person to liaise with the competent authorities in the host Member State in which the services are provided and to send out and receive documents and/or notices;
  5. an obligation to designate a contact person, if necessary, acting as a representative through whom the relevant social partners may seek to engage the service provider to enter into collective bargaining within the host Member State.

Although the list of requirements included in the Enforcement Directive is indicative and non-exhaustive, allowing the Member States to choose the preferred control measures – or even introduce new ones as long as they are justified and proportionate – the European Commission’s assessment indicates that most Member States impose most or all of the administrative requirements listed in Article 9(1).

While the PWN-related administrative requirements introduced by the Member States during the implementation of the Enforcement Directive are de iure in line with the scope of the regulation. In practice however, the introduction of measures based on the Article 9(1) of the Enforcement Directive has led to practical problems when posting workers, especially due to increased administrative burden.

The existence of the practical challenges related to compliance with PWN requirements was also acknowledged by the Court of Justice of the European Union (CJEU) which, in its most recent case law, namely cases Čepelnik (C-33/1) and Maksimovic (joined cases C‑64/18, C‑140/18, C-146/18 and C-148/18) has analysed the admissibility of certain national measures aiming at protecting posted workers and combating social security fraud. In both cases, the CJEU has identified that the national measures implemented under the Enforcement Directive are indeed able to create a barrier to the freedom to provide services.

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Silvia RainoneAdministrative Requirements and Control Measures in the Posted Workers Enforcement Directive