Brussels, 30/03/2006 (Agence Europe) - As announced by Commissioner Vladimir Spidla, the European Commission is expected to adopt a communication, on 4 April, on the “guidelines concerning the posting of workers in the context of service provision”. In the communication, it will assess the implementation of Directive 96/71/EC on the posting of workers (see EUROPE 9138, 9148). Early March, Mr Spidla had confirmed that the Commission planned to present its report on implementation of the “posting of workers” directive at the same time as its amended proposal for a “services” directive. By the end of February, the Commissioner had already explained this dossier to the EP Committee on Social Affairs, stressing that the directive aims to protect workers who are posted to third countries. The Commission will assess its implementation from the point of view of compliance with this principle. And, if it proves necessary, it will initiate infringement procedure (see EUROPE 9138).
The Commission's draft assessment on the posting of workers (which is still the subject of discussion within Commission services) explains to Member States how they should proceed in order to fully adhere to acquis communautaire as interpreted by the caselaw of the Court of Justice (which refers to Article 49 of the Treaty stipulating that Member States must guarantee free service provision in the EU). In its draft, the Commission considers that access to information, administrative cooperation and monitoring of compliance with legislation may be considerably improved thanks, in particular, to the diffusion of best national practice.
A. Monitoring respect of legislation. The text stresses, on the basis of existing caselaw, that the main measures for controlling implementation by Member States above all concern the requirement of: (1) having a representative resident on the territory of the host Member State: the designation of a person among the posted workers, for example a foreman, who acts as a link between the foreign company and the relevant monitoring authority, should be sufficient; (2) obtaining authorisation from the relevant authorities of the host Member State or being registered with these authorities, or any other equivalent obligation; 3) making a declaration containing a series of indications: the host Member State, for verifying compliance with the employment conditions established in Directive 96/71/EC, should be able to demand that the service provider makes a declaration containing indications on posted workers, the duration of the postings and the type of service, by the latest at the time they start work and in respect of the principle of proportionality. Regarding measures applying to posted workers who are nationals of third countries, the draft communication stresses that the host Member State is not allowed to ask, for such workers, administrative formalities or supplementary conditions when these workers are regularly employed by a service provider established in another Member State.
B. Access to information (Article 4,3 of the directive). The draft stipulates among other things that, in order to meet their obligations, Member States must make more effort to improve information on employment conditions to be applied by the service providers, and make such information more readily available. The Commission announces it will continue to support the efforts made by Member States in this field, mainly within the group of experts, and that it will follow their initiatives in order to ensure they converge as soon as possible.
C. Cooperation between Member States (Articles 4,1 and 2 of the directive). According to the draft communication, Member States are invited to take the necessary measures so that their liaison offices and/or control authorities are given the necessary resources for providing an effective response to requests for information and crossborder cooperation coming from relevant authorities in other Member States. Here too, the Commission will continue to support the Member State, mainly by making the most appropriate electronic systems available. It will also closely monitor their progress.
D. Monitoring compliance with the directive and measures in event of failure to comply (Article 3 of the directive). Member States are invited to review their control and implementation systems for the directive and above all to ensure that they are able to detect irregularities, that adequate and proportionate control measures are in place and that service providers may be sanctioned if they fail to comply with the directive. The Commission undertakes to work with Member States in order to improve crossborder cooperation of work inspections in matters covered by the directive.