Reform of posting of workers directive

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. 

On 8.3.2016 the European Commission is presenting a targeted revision of the rules on posting of workers, as set out in the 2016 Commission work programme.

The aim of this proposal is to facilitate the provision of services across borders within a climate of fair competition and respect for the rights of posted workers, who are employed in one Member State and sent to work temporarily in another by their employer.