30.4.2004   

EN

Official Journal of the European Union

C 112/49

1.1.1

The directive on the posting of workers (1) was adopted in 1996 by the Council and the European Parliament.

1.1.2

The directive seeks to strike a balance between extending the opportunities for businesses to provide services in other Member States and social protection of workers. For this reason, it defines a series of employment conditions which posted workers are to be guaranteed in the territory of the host country, regardless of which legal system governs posted workers' employment contracts. The directive defines a posted worker as 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 (Article 2(1)).

1.1.3

Regulation 1408/71, which deals with the coordination of social security in the EU in connection with the free movement of workers and services, introduced postings as one of the circumstances in which social insurance coverage could continue in the State of residence when working in another Member State for a maximum period of 12 months (2), or 18 months under certain conditions.

1.1.4

Directive 96/71/EC is concerned with the practical coordination of employment conditions for posted workers. Article 3 is the core of the text, stipulating the conditions applicable to posted workers. These are laid down:

1.1.5

Together with transposition into national legislation, administrative cooperation (Article 4) is also considered an important means for implementing the provisions of the directive, not only for exchange of information, but also for measures necessary to prevention infringement of the rules set out in the directive. Directly preventing infringements contributes to social protection and the free movement of services.

1.2.1

In 1991, the ESC issued an opinion on the Proposal for a Council Directive concerning the posting of workers in the framework of the provision of services (COM(91) 230 final – SYN 346, and ESC opinion CES 1512/91).

1.3.1

The directive was to be transposed by the Member States by the end of 1999.

1.3.2

Article 8 of the directive stipulated that the Commission should review its operation by 16 December 2001, in order to see if it was necessary to propose any amendments to the Council. When the deadline expired, the Commission began to monitor the implementation of the directive in Member State legislation. The conclusions of the report were transposed into the Commission's communication on implementation of the directive. The communication is an evaluation of the transposition, in legislative terms, of applicable national rights. It introduces the content and objectives of the directive under evaluation, and describes the legislative measures taken in the Member States, dividing them into three groups: those which have reproduced the terms of the directive, without indicating to which provisions of their national legislation the matters covered by the directive correspond; those which have sought to identify the applicable national provisions and have inserted references to these national provisions; and lastly, those Member States which have not adopted any specific transposition legislation concerning the national provisions applicable to posted workers.

1.3.3

The legal study cites the provisions of conventions, the implementation of cooperation on information (Article 4), monitoring measures and penalties in the event of non-compliance with the directive (Articles 5 and 6).

1.3.4

In chapter 4 of the communication, the Commission assesses the situation regarding the transposition of the directive in the Member States, the method of transposition, and the nature of the standards and collective agreements applicable.

1.3.5

Chapter 4 also mentions the practical and administrative difficulties in application encountered by the Member States, with three short paragraphs being given over to difficulties encountered by service provider undertakings and posted workers.

1.3.6

It concludes that since none of the Member States has encountered any particular legal difficulties in transposing the directive, implementation may pose some difficulties, but these should disappear over time.

1.3.7

The Commission then concludes that it would therefore be premature to consider amending the directive. Finally, it proposes that a group of government experts of variable composition should be charged with examining ways of facilitating access to information on the provisions applicable to posted workers and of monitoring compliance with provisions in order to resolve the difficulties identified (countries failing to transpose specific provisions, public policy provisions, information seeking, compliance with national transposition provisions, and implementing penalties).

2.1.1

The Committee considers the communication to be useful, but insufficient. It calls upon the Commission to flesh out its analysis, especially regarding the unfair competition and social dumping which could result from bogus postings. The Committee urges the Commission to conduct sector-based consultations with those to whom transposition is effectively addressed, particularly in the construction sector where the social partners have not yet been consulted, since they have mentioned problems concerning the definitions of posted workers and the grey area comprising ‘self-employed’ workers. This fuller analysis could focus on the practical implementation of Article 3 of the directive in terms of real respect for the fundamental rights of workers contained in it. In this connection, the Committee wonders if the national consultations carried out in the first exercise effectively shed light on practical difficulties in application and the real state of transposition of the implementing provisions. In any case, the Committee considers that more detailed work needs to be carried out on the most advantageous provisions, in order to provide a more accurate comparison of good practices and better inform all workers and businesses concerned.

2.1.2

The definitions used in the different national laws regarding posted workers are of significance in terms of the principles of the directive. Specific questions, which are important if the evaluation is to be complete, must be raised. How do the Member States recognise posted workers, and do they apply the directive accordingly? What type of measures have the Member States or the social partners taken to ensure compliance with the directive? A number of aspects are of particular importance in this regard:

2.2

In view of the communication's shortcomings, the Committee calls on the Commission to submit a new report so that the following can be verified:

2.2.1

Several Member States have universally applicable collective agreements in the construction sector. The main question is how the provisions of such collective agreements are used to implement the directive. The interpretation of the employment conditions defined in Article 3 is of special importance in this regard. What are the minimum rates of pay, minimum paid holidays and rest periods under the terms of these collective agreements? Collective agreements may vary considerably between Member States in these areas. One example would be the use, in some Member States, of ‘social funds’ for paid holidays. Membership of such funds may ensure more advantageous conditions for posted workers. The question is to find out how such advantageous conditions may be measured and taken into account.

2.2.2

Not all the Member States have extended application of collectively agreed labour conditions to posted workers in other sectors mentioned in the annex to the directive, although Article 3(10)(2) explicitly provides for this possibility.

2.2.2.1

The Committee urges the Commission to gather all available information from the Member States and the new accession countries concerning the number of posted workers and the various sectors most affected, bearing in mind the differing systems of industrial relations.

2.2.3

On a number of occasions over recent years, the European Commission has been obliged to acknowledge that the expectations of the mid-1980s regarding mobility have not been borne out, or only to a minor extent. Less than 2 % of the European working population works in a country other than the country of origin. The figures for annual mobility are even lower. EU estimates refer to 600,000 active workers outside their own countries, not all of whom have the status of posted workers and are therefore not covered by the directive. This mobility seems to be restricted to executives and highly-skilled workers on the one hand, and construction workers on the other. The existence of pay-related and social dumping in some EU countries and in some occupational sectors is connected with the fact that in these high-risk sectors, even a relatively small number of workers offering their services on the labour market at significantly lower rates of pay can upset the existing pay structure and trigger a down spiral of pay and prices.

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The communication does not at present justify concluding from the difficulties encountered that the directive should be simplified or revised. In this regard, national experience (social partners in the construction sector, administrators, work inspectors etc.) on posted workers constitutes a valuable source of information and is therefore of great importance.

3.1

In its new analysis, the Commission should first of all consider the impact of enlargement on the implementation of the directive in both existing EU Member States and the accession countries, taking account of the transitional accession periods. The analysis should also evaluate the regional and cross-border or sectoral dimensions, especially the construction sector.

3.2

The Committee also suggests the following: