Commission assesses implementation of posted workers directive in Member States

The European Commission has assessed national measures to implement the EU directive on posted workerss, within the context of rights to provide services in the internal market. In the view of the Commission, urgent action needs to be taken to improve administrative cooperation. The portability of pension rights is also topical, in the context of the free movement of services and a directive in this regard is under preparation.

It is estimated that about one million posted workers are working in the EU, representing around 4% of the EU’s working age population. These workers are protected by Directive 96/71/EC on the posting of workers in the framework of the provision of services, which aims to balance the freedom to provide services with the rights of posted workers (see more information from the European Commission on the subject of posting of workers).

Directive on posted workers

The directive on posted workers requires that, where Member States have certain minimum terms and conditions of employment, which apply to national workers, they must also apply these conditions to workers who are temporarily posted to work in the Member States. The terms affected concern those relating to working time, holidays, minimum wages, health and safety – including special protection for young workers and pregnant women – as well as those pertaining to recruitment, equal treatment and non-discrimination.

Pension portability

Although pension portability – the ability of workers to preserve the value of pension benefits when they change jobs or pension plan – is not an issue specified in the directive, it is nevertheless a factor relevant to the posting of workers. Indeed, pension portability is the key issue in a proposal for a new directive, which will set minimum standards on the acquisition of supplementary pension rights, so that workers who choose to be mobile and move between Member States are not penalised in terms of eligibility and other criteria.

On welcoming the EU Parliament’s report on the progress towards a directive in this area, the EU Commissioner, Vladimir Špidla, noted that: ‘enabling workers to move freely around the EU and national labour markets, without losing important work pension benefits, is a clear example of flexicurity in action. Mobility must not be punished but rewarded’ (see Press release, 20 June 2007).

Concerns regarding Member States’ posting practices

Although all Member States have had to implement the terms of Directive 96/71/EC, an assessment of national measures by the European Commission uncovers three major types of problems (see Communication of 13 June 2007 (COM(2007) 0304 final)).

• The first problem relates to information given to workers and employers on the provisions of the directive: according to the Commission, information provided by the national authorities is often insufficient.

• The second problem concerns the national authorities’ use of control measures which, in some cases, go beyond what is strictly necessary. The impact of these control measures is believed to be hindering the freedom to provide services.

• The final issue raised by the Commission relates to the interpretations of the directive by the Member States’ legislation; these interpretations have led to an increase in the number of legal cases at both national and EU level.

Thus, the communication highlights the fact that the directive is being implemented in a manner that impedes or limits free movement.

Factors restricting free movement

The Commission believes that there is a need for administrative cooperation between the Member States and for what it refers to as ‘lighter forms of control’. It highlights requirements for work permits or visas for posted ‘third-country nationals’ who are legally residing in another Member State as barriers impeding free movement. Nevertheless, the Commission also notes that some Member States have made significant advances from the position 12 months’ earlier (see Press release, 4 April 2006). For example, some of the countries have established dedicated information points, while others have improved their web-based services. In some Member States, bilateral agreements have been established, particularly between neighbouring countries.

Strategies for promoting mobility

The Commission is proposing urgent action on a number of measures in order to facilitate cooperation between the Member States. It intends to promote the Internal Market Information System (4.5Mb PDF) to allow for a secure exchange of data between Member States and to promote more effective working arrangements, thus addressing both administrative and linguistic problems. The Commission also intends to establish a high-level group to support the exchange of best practice. This would allow for the development of more formal arrangements, which would replace informal practices between the Member States and help to define a more precise role for the social partners.

However, along with these measures aiming to encourage cooperation and exchange, the Commission also makes it clear that it will take action, including legal action, against Member States which have not applied the terms of the directive, as interpreted by the European Court of Justice (ECJ).

Sonia McKay, Working Lives Research Institute