Brussels, 14/02/2011 (Agence Europe) - During the transition period provided for in the Act on the accession conditions of the new member states, the principle of free movement of services does not prevent the older member states requiring that posted workers from the new member states obtain work permits.
That was what the Court of Justice of the EU made very clear in giving its response on 10 February to two questions put to it for a ruling (Cases C-307, C-308 and C-309/09) by the Dutch Council of State to which three Polish companies had referred the Social Affairs Ministry after they had been fined for posting Polish workers to the Netherlands without obtaining the necessary authorisations.
The most significant part of the ruling, however, is the definition given by the Court of the notion of “posting” of workers in the sense of the relevant Community legislation (Articles 56 and 57 of the TFEU and Article 1 of Directive 96/71/EC). Thus, under the terms of this legislation, “posting” is “a service provided for remuneration in respect of which the worker who has been hired out remains in the employ of the undertaking providing the service, no contract of employment being entered into with the user undertaking. It is characterised by the fact that the movement of the worker to the host member state constitutes the very purpose of the provision of services effected by the undertaking providing the services and that that worker carries out his tasks under the control and direction of the user undertaking”.
This definition could be fraught with consequences at a time when there is strong pressure for the principle of the “country of origin”, contained in the first draft of the Bolkestein directive on services, to be re-introduced in the area of services. That the Court states explicitly, in this ruling, that there is no contract of employment with the user company when workers are posted could mean that, after the transition period, companies in the older member states could employ posted workers, without work permits and under the same terms and conditions as obtain in the country where the company which hires out the workers' services is located. This would be a formalisation of the “country of origin” principle that was abandoned in the revised version of the Bolkestein directive. (F.G./transl.rt)