Directive amending Directive 96/71/EC: Detailed explanation of the specific provisions of the proposal

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

amending Directive 96/71/EC of The European Parliament and of the Council of 16

December 1996 concerning the posting of workers in the framework of the provision of services

DETAILED EXPLANATION OF THE SPECIFIC PROVISIONS OF THE PROPOSAL

Article 1 of the proposal introduces several changes to Directive 96/71/EC. 

Paragraph 1 adds a new Article 2bis to the Directive. This Article deals with the labour law to be applied to posted workers when the anticipated or the effective duration of posting exceeds twenty-four months. This is without prejudice to the possible duration of a temporary provision of services. The Court of Justice has consistently held that the distinction between the freedom of establishment and the freedom to provide services on a temporary basis needs to be made on a case by case basis, taking into account not only the duration but also the regularity, periodicity and continuity of the provision of services. Paragraph 1 of the new Article 2bis applies when it is anticipated that the duration of posting will be superior to 24 months or when the effective duration of posting exceeds 24 months. In both cases, the host Member State is deemed to be the country in which the work is habitually carried out. In application of the rules of the Rome I Regulation3, the labour law of the host Member Sate will therefore apply to the employment contract of such posted workers if no other choice of law was made by the parties. In case a different choice was made, it cannot, however, have the result of depriving the employee of the protection afforded to him by provisions that cannot be derogated from by agreement under the law of the host Member State. 

3 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), OJ L 177, 4.7.2008, p. 6. 

4 Building on case law of the Court in Case C-396/13. 

In order to prevent the circumvention of the rule set out in paragraph 1, paragraph 2 clarifies that, in case of replacement of a worker regarding the same task, calculation of the duration of posting must take into account the cumulative duration of the posting of the workers concerned. The rule of paragraph 1 will apply whenever the accumulated duration exceeds 24 months but, in order to respect the principle of proportionality, only to the workers posted for at least six months. 

Paragraph 2 introduces several changes to Article 3 of the Directive. 

Point (a) 
Point (a) replaces paragraph 1 of Article 3 of the Directive. 
The new text introduces three main changes: 
– it suppresses the reference to the „activities referred to in the Annex” in the second indent; 
– it replaces the reference to „minimum rates of pay” by a reference to „remuneration”; 
– it adds a new subparagraph imposing on Member States an obligation to publish information on the constituent elements of remuneration. 
The first change makes the collective agreements universally applicable within the meaning of Article 3(8) applicable to posted workers in all sectors of the economy, irrespective of whether the activities are referred to in the annex to the Directive (which currently is the case only for the construction sector). 
It is within Member States’ competence to set rules on remuneration in accordance with their law and practice. The second amendment implies that the rules on remuneration applicable to local workers, stemming from the law or collective agreements universally applicable within the meaning of Article 3(8), are also applicable to posted workers. 
Finally, the new subparagraph imposes on Member States an obligation to publish in the website referred to in Article 5 of Directive 2014/67/EU the constituent elements of remuneration applicable to posted workers. 

Point (b) 
A new paragraph is added which deals with situations of subcontracting chains. This new rule gives the faculty to Member States to oblige undertakings to subcontract only to undertakings that grant workers certain conditions on remuneration applicable to the contractor, including those resulting from non-universally applicable collective agreements. This is only possible on a proportionate and non-discriminatory basis and would thus in particular require that the same obligations be imposed on all national sub-contractors. 

Point (c) 
It adds a new paragraph which sets the conditions applicable to the workers referred to in Article 1(3)(c) of the Directive, i.e. workers hired out by a temporary agency established in a Member State other than the Member State of establishment of the user undertaking. This new paragraph corresponds to Article 3(9) of the Directive. It specifies that the conditions to be applied to cross-border agencies hiring out workers must be those that are, pursuant to Article 5 of Directive 2008/104/EC, applied to national agencies hiring out workers. Contrary to Article 3(9) of the Directive, this is now a legal obligation imposed on Member States. 

Paragraph 3 amends the Annex to the Directive following the changes made to Article 3(1). 2016/0070 (COD)