posting of workers in the framework of the provision of
TRANSCRIPT
University of Amsterdam
Faculty of Law
L.L.M. European and International Labour Law
Jan Králíček
Student number: 10973486
Posting of Workers in the Framework of the
Provision of Services – Establishing a Time
Frame for Genuine Application of the
Directive 96/71/EC
Master Thesis
“Labour is not a commodity.”
Declaration concerning the Aims and Purposes of the International Labour Organisat ion,
adopted at the 26th session of the ILO, Philadelphia, 10 May 1944
Supervisor of the Master Thesis: prof. dr. A.A.H. van Hoek
Table of contents
Introduction ................................................................................................................................ 1
I. Limitations on the length of posting under the Posted Workers Directive, Enforcement
Directive and norms of private international law ....................................................................... 5
a. The Posted Workers Directive ............................................................................................ 5
b. The Posted Workers Enforcement Directive....................................................................... 8
c. Limitations on the length of posting in the Rome I Regulation ........................................ 11
II. Potential sources for assessment of a proper maximum duration of posting....................... 16
a. Limits on successive assignments in temporary agency work .......................................... 17
b. Case law on the freedom to provide services .................................................................... 23
c. Social security coverage .................................................................................................... 25
III. Beyond genuine posting – the regime of non-genuinely posted workers .......................... 27
Conclusions .............................................................................................................................. 33
Bibliography ............................................................................................................................. 36
1
Introduction
Posting of workers refers to a situation where a worker, for a limited period, carries out his
work in the territory of a Member State other than the State in which he normally works.1 This
term is central to the Directive 96/71/EC (hereinafter referred to as the “Posted Workers
Directive”) which strives to achieve balance between the free movement of services and fair
competition with measures guaranteeing respect for the rights of posted workers2. Although
originally intended to remove obstacles to the freedom of provision of services and to combat
one aspect of social dumping, its subsequent use in situations which were not deemed genuine
raised concerns as to the fair use and abuse of the concept of a posted worker.3
While the European Court of Justice held, even before the Directive’s enactment, that sending
of workers is an inherent economic right of the sending undertaking derived out of the existence
of freedom of provision of services in single market4; the outcomes of potential social dumping
arising out of artificial arrangements, which seek to establish application of foreign (less
protective) rules of labour law to workers performing work in a different country, were not
successfully resolved with adoption of the Posted Workers Directive.
The weaknesses of the Posted Workers Directive identified in the discussions within the
Employment and Social Affairs of the European Parliament include a lack of legal clarity on
the posting situation, a lack of administrative monitoring due to insufficient cooperation among
Member States to exchange information, too little information being made available to
companies and posted workers, and difficulties in enforcing rights and handling cross-border
complaints. These have led to distortions and abuses by posting companies, including creation
of so called “letter box” companies as way to minimise social security contributions.5 In a paper
focused on the implementation, practical application and operation of the Posted Workers
Directive in the building sector6, improper use of posting was also identified as a possible source
of social dumping as well as possible distortions of competition, due to the specific conditions
1 Art. 2(1) of the 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, OJ L 18, 21.1.1997, p. 1–6 2 Recitals 2,5,13 Preamble Directive 96/71/EC 3 European Commission, COM(2012) 131 final, Proposal for a Directive on the enforcement of Directive 96/71/EC
concerning the posting of workers in the framework of the provision of services, p. 13-14 4 ECJ, C-113/89 (Rush Portuguesa), [1990] ECR I-1417, operative part 5 European Parliament. Q&A on Posting of Workers. Employment policy. What are the weaknesses of the 1996
Directive and how is it abused? [online] 6 Cremers and Donders, The free movement of workers in the European Union Directive 96/71/EC on the posting
of workers within the framework of the provision of services: its implementation, practical application and
operation, p. 139 [online]
2
in which the workforce in this sector is posted. The existence of the abuse of provisions of the
Directive was also acknowledged by the European Parliament in its Communication on the
implementation and impact of the Directive in the common market7.
In terms of numbers, in 2012 and 2013, respectively 1.23 million and 1.34 million forms, which
are related to postings of workers according to Article 12 of Regulation (EC) No. 883/2004,
were issued.8,9 In 2013, the leading sending Member State was Poland, and on average 43.9%
of the forms were issued to posted workers employed in the construction sector. Compared to
2010 data, the overall number of postings increased by 16% in 2012 and by 27% in 2013.10 The
overall number is still less than 1% of EU working age population, but there is significant rising
trend in the last years, together with acknowledgement that the posted workers in construction
industry are in particularly precarious position.
To address the aforementioned problems, together with an effort to tackle issues connected to
the misuse of posting in situations which were not deemed genuine, the Posted Workers
Directive was augmented by another piece of EU legislation – an Enforcement Directive11 –
which aims to reduce the role of the Posted Workers Directive to situations of genuine posting,
as well as to prevent, avoid and counteract the abuse and circumvention of applicable rules
regarding the posting of workers.12 It also contains provisions advancing the cooperation
between Union labour inspectorate bodies tasked with investigating and remedying unfair
labour practices. According to documents accompanying the legislative proposal, the drafters
of the Enforcement Directive recognised a number of problems with regards to the use and
abuse of the PWD, inter alia, that the posting is no longer of a temporary nature or has a
rotational character.13 This study will focus primarily on this aspect of genuine posting
situation.
7 European Parliament resolution of 11 July 2007 on the Commission Communication on the posting of workers
in the framework of the provision of services: maximising its benefits and potential while guaranteeing the
protection of workers [online] 8 Pacolet and de Wispelaere, Posting of workers: Report on A1 portable documents issued in 2012 and 2013,
Network Statistics FMSSFE, European Commission, December 2014, p. 13 [online] 9 It has to be noted that the numbers of issued certificates only partially reflect the actual volume of postings. 10 Pacolet and de Wispelaere, Report on A1 portable documents issued in 2012 and 2013, p. 8 11 Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of
Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending
Regulation (EU) No 1024/2012 on administrative cooperation through the internal market Information System
(‘the IMI Regulation’) OJ L 159 12 Recital 5, Preamble of the Directive 2014/67/EU 13 European Commission, SWD(2012) 63 final, PARTIE I Impact Assessment, Revision of the legislative
framework on the posting of workers in the context of provision of services, p. 34 [online]
3
In order to justify the difference in treatment between posted workers (core protection) and
migrant workers (equal treatment), posting has to be of temporary nature. If the duration of the
posting is excessive, and becomes permanent, the presumption behind the difference in legal
status between these two categories of workers is no longer valid. The same situation occurs if
the same or different employees are repeatedly recruited by an undertaking with the purpose of
being posted to another Member State for carrying out the same job (rotational postings).14
To better address the requirement of temporary nature of the posting for its proper use, the
Enforcement Directive provides for a more comprehensive definition of posting, includ ing
temporality criteria.15 The text aims to improve legal clarity by helping Member States to assess
whether a posting is genuine or an attempt to circumvent the law.16 This is done in order to
ascertain that the services provided are genuine and that they do not distort competition by
providing an unfair advantage to the undertakings using artificial arrangements to achieve
lowest social contributions possible.17 This would ultimately improve the position of workers
themselves as it aims to prevent social dumping by these arrangements where foreign service
providers can undercut local service providers because their labour standards are lower. The
existence of an ongoing debate on the issues related to the posting of workers is evidenced by
a planned targeted review of the Posted Workers Directive indicated in the 2015 Commiss ion
Work programme, which will be conducted to assess whether any adjustments are needed to
further prevent the posting of workers leading to social dumping.18
This thesis aims to establish a time limitation for the implementation and interpretation of the
term “limited period of time”, that is the temporary character of posting of workers; to see what
is the maximum duration of posting still falling under the genuine character of posting, and
provide aid, or a very basic tool for identification of non-genuine postings. The thesis asks what
is the relevant time period that a continuous posting can take, to be still regarded as genuine,
for the purpose of the Enforcement Directive. Is there a certain duration that could be used by
inspectorate bodies to assess the temporary character of posting?
The first part of this work will be devoted to an overview of key aspects of the Posted Workers
Directive and the newly enacted Enforcement Directive, specifically addressing the notions of
14 Ibid., p. 34 15 Art. 4(3)(a),(d) of the Directive 2014/67/EU 16 European Parliament. Q&A on Posting of Workers. Employment policy. How would the latest proposals
improve enforcement? [online] 17 Ibid. 18 European Parliament, Parliamentary questions for written answer to the Commission, E-011088/2014 Answer
given by Ms Thyssen on behalf of the Commission (28.4.2015) [online]
4
temporality used in these legal materials. It will include a comparison with the terms used in
the norms of private international law. This will be followed by a review of potential sources
for assessment of the proper temporary limitation of posting. This part will draw from three
different approaches, which includes analysis of case law, a closer look on limits set by
particular Member States for continuous temporary agency worker assignments, and finally the
Regulation on the coordination of social security systems19 and its special rules on posting will
be discussed. The last part will take a look at the regime applicable for non-genuine postings.
The issue of temporary nature of posting will be approached from analytic perspective of the
current scholarly texts. Comparative study of the legal norms in place in chosen Member States
will be used to establish the boundaries on successive use of temporary agency workers.
19 Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the
coordination of social security systems , OJ L 166 of 30.4.2004, pp. 1-123
5
I. Limitations on the length of posting under the Posted Workers
Directive, Enforcement Directive and norms of private
international law
a. The Posted Workers Directive
Issues presented by posting of workers within the internal market represent an instance of a
conflict between social protection of workers, an objective of EU policies20, and freedom to
provide services, a fundamental freedom under primary EU law21. This conflict is not confined
solely to the issue of posting of workers and does play a wider role in EU’s strategies,
nevertheless, it could be argued that this conflict between perceived social dumping caused by
free provision of services in the area of posting of workers produced a new kind of tension, not
only exemplifying different Member States’ goals in this area (sending x receiving states), but
turning groups of workers hostile against each other22.
The Posted Workers Directive was enacted on the legal basis of dealing with the provision of
services while recognising the existing norms of private international law on the law applicable
to contractual obligations.23 It was an attempt to accommodate the legal situation arising out of
the decision in Rush Portugesa which affirmed the right of undertakings to post workers in the
area of EU, while leaving the regulation of the employment conditions of posting workers to
host states24. Member States subsequently responded by the introduction of national legislat ion
for posted workers25. This situation was viewed by the European Commission as raising
substantial barriers to the posting of workers, requiring community-wide action. The
Commission’s Explanatory Memorandum, which accompanied the first draft of the Directive ,
did identify the removal of obstacles to the free movement of services as one of the main
objectives of the Directive (along with the control of unfair competition and worker
protection).26
20 Art. 151 of the Treaty on the Functioning of the European Union (TFEU) 21 Art. 56 TFEU 22 Barnard, 'British Jobs for British Workers': The Lindsey Oil Refinery Dispute and the Future of Local Labour
Clauses in an Integrated EU Market, Industrial Law Journal, 2009, p. 247 23 Recital 7-11 Preamble of the Directive 96/71/EC 24 ECJ, C-113/89 (Rush Portuguesa), [1990] ECR I-1417, para. 18 25 Davies, 'Posted Workers: Single Market or Protection of National Labour Law Systems?' (1997) 34 Common
Market Law Review, Issue 3, p. 590 26 Ibid., p. 592, further referring to the Proposal for a Council Directive concerning the posting of workers in the
framework of the provision of services. COM (91) 230 final, 1 August 1991
6
The minimum length of posting was discussed but not included in the final Directive, only
leaving an exemption available for the Member States when the length of the posting does not
exceed one month27. Shorter postings were understood in the drafting phase as “having limited
relevance with respect to practices amounting to distortions of competition”.28 This observation
will be important for establishing the impact of the length of posting for the assessment of
genuine use of the Directive in a latter part of this paper.
The definition of the term “worker” was left to the law of the Member State to whose territory
the worker is posted.29 The Directive defines the “posted worker” as a worker who, for a limited
period, carries out his work in the territory of a Member State other than the State in which he
normally works.30 There is thus a clear understanding of limited period of time for which the
employee is posted, with a requirement of an existent, genuine link towards the state in which
employee normally works. Nevertheless, the exact meaning of the phrase “for a limited period”
used in the definition of posted worker is not specified. The term “limited period” was not yet
clarified in the case-law even though the length of posting is of crucial importance for
assessment of genuine posting situation. Subsequent case law elaborated on the definition of
the hiring-out method of posting and did not, as such, include a time limitation requirement for
this type of posting31. Clarification of the definition of the temporary posting in the Posted
Workers Directive was recognised as a possible tool to combat abusive situations.32
Three types of posting are recognised33:
(a) (contracting/sub-contracting)
posting workers to the territory of a Member State on their account and under their
direction, under a contract concluded between the undertaking making the posting and
the party for whom the services are intended, operating in that Member State, provided
there is an employment relationship between the undertaking making the posting and
the worker during the period of posting; or
(b) (intra-corporate transfers)
27 Art 4 of the Directive 96/71/EC 28 European Commission, Proposal for a Council Directive concerning the posting of workers in the framework of
the provision of services. COM (91) 230 final, 1 August 1991, para 26 29 Art 2(2) of the Directive 96/71/EC 30 Art 2(1) of the Directive 96/71/EC 31 ECJ, C-307/09-309/09 (Vicoplus), ECR 2011, I-00453 32 Van Hoek and Houwerzijl, Comparative study on the legal aspects of the posting of workers in the framework
of the provision of services in the European Union, 2011, p. 189 [online] 33 Art 1(3) of the Directive 96/71/EC
7
posting workers to an establishment or to an undertaking owned by the group in the
territory of a Member State, provided there is an employment relationship between the
undertaking making the posting and the worker during the period of posting; or
(c) (hiring-out)
being a temporary employment undertaking or placement agency, hiring out a worker
to a user undertaking established or operating in the territory of a Member State,
provided there is an employment relationship between the temporary employment
undertaking or placement agency and the worker during the period of posting.
The criteria to determine hiring-out within the meaning of Art 1(3)(c) of the Posted Workers
Directive are threefold. Hiring-out has to be 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, with 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.34 The afforded protection by host state law, regardless of the law applicable, which
has to be observed during posting of workers (so called “core protections”), is covering the
following areas35:
- maximum work periods and minimum rest periods;
- minimum paid annual holidays;
- minimum rates of pay;
- the conditions for hiring out workers, in particular by temporary work agencies;
- health and safety;
- protection for pregnant women, women who have recently given birth, and minors;
- equal treatment and non-discrimination.
Ultimately, through these requirements, the Directive should both protect businesses’ interna l
market freedom to provide services and prevent social dumping.36
34 ECJ, C-307/09-309/09 (Vicoplus), ECR 2011, I-00453, para. 51 35 Article 3 of the Directive 96/71/EC 36 European Commission, Labour law and working conditions. Social Europe guide. Volume 6, p. 41 [online]
8
b. The Posted Workers Enforcement Directive
The European Commission, based on the impact assessment and studies into the
implementation and legal aspects of PWD throughout the EU37, proposed a new Directive
reinforcing the Posted Workers Directive in 2012. The Comparative study on the legal aspects
of the posting of workers in the framework of the provision of services in the European Union
suggested that a clear and enforceable definition of both the concept of posting and the concept
of posted worker might help to avoid shortcomings of the Posted Workers Directive.38 The final
text of the Directive 2014/67/EU on the enforcement of directive 96/71/EC concerning the
posting of workers in the framework of the provision of services (hereinafter referred to as the
“Enforcement Directive”)39 provides justification for its enactment on the basis of concerns
about avoidance and abuse of the requirements of the Posted Workers Directive.40 The
Enforcement Directive specifically states that where there is no genuine posting situation and a
conflict of law arises, due regard should be given to union law/international private law
provisions41 that are aimed at ensuring that employees should not be deprived of the protection
afforded to them by provisions which cannot be derogated from by an agreement, or which can
only be derogated from to their benefit.42
The Enforcement Directive aims to provide a clarification of the definition of the posted worker.
The clarification should serve the aim to provide means to fight the abuse of non-genuine ly
posted workers. Article 3 is intended to clarify situations which may be treated as a posting
through a non-exhaustive lists of qualitative criteria which characterise the relationship between
a posted worker and the sending company, and allow an assessment of the establishment of the
sending undertaking.43 This list is intended to be used in cases of doubt and to target those who
abuse the Postings Directive through the use of letterbox companies or filling a permanent role
with repeated postings. Those elements are intended to assist competent authorities when
37 A full list of preparatory materials is available on the website: http://www.ec.europa.eu/social/posted-workers 38 Van Hoek and Houwerzijl, Comparative study on the legal aspects of the posting of workers in the framework
of the provision of services in the European Union, 2011, p. 14 [online] 39 Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of
Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending
Regulation (EU) No 1024/2012 on administrative cooperation through the internal market Information System
(‘the IMI Regulation’) OJ L 159, 28.5.2014, p. 11–31 40 Recital 7, Preamble of the Directive 2014/67/EU 41 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. 6–16 or the Rome Convention 42 Recital 11, Preamble of the Directive 2014/67/EU 43 Art. 3 of the Directive 2014/67/EU
9
carrying out checks and controls and where they have reason to believe that a worker may not
qualify as a posted worker under the Posted Workers Directive.
The need for a clear definition of a posted worker was specifically addressed in the Article 4 of
the Enforcement Directive. This Article (named Identification of a genuine posting and
prevention of abuse and circumvention) states that in implementing, applying and enforcing the
Posted Workers Directive, the competent authorities shall make an overall assessment of all
factual elements that are deemed to be necessary (case-by-case basis), including, in particular,
those set out in paragraphs 2 (criteria of sending undertaking) and 3 of this Article (criteria of
the posting itself). Those elements are indicative factors in the overall assessment to be made
and therefore shall not be considered in isolation.44 The substantive factors characterising the
work provided by the posted worker are45:
a) the work is carried out for a limited period of time in another Member State;
b) the date on which the posting starts;
c) the posting takes place to a Member State other than the one in or from which the posted
worker habitually carries out his or her work according to Regulation (EC) No 593/2008
(Rome I) and/or the Rome Convention;
d) the posted worker returns to or is expected to resume working in the Member State from
which he or she is posted after completion of the work or the provision of services for
which he or she was posted;
e) the nature of activities;
f) travel, board and lodging or accommodation is provided or reimbursed by the employer
who posts the worker and, if so, how this is provided or the method of reimbursement;
g) any previous periods during which the post was filled by the same or by another (posted)
worker.
The Enforcement Directive, however, does not contain a specific time limitation for the purpose
of establishing “temporality”, nor does it create a presumption (rebuttable or not) of a non-
genuine posting after certain time spent working in another Member State. This holds true to
both of the time limitations used, these are the “limited period of time” and “expected return of
the worker to the home state” requirements which are listed as elements which should be
assessed in order to identify a genuine posting. The recital of the Enforcement Directive also
44 Art. 4 of the Directive 2014/67/EU 45 Art. 4(2) of the Directive 2014/67/EU
10
mentions that Member States should ensure that provisions are in place to adequately protect
workers who are not genuinely posted,46 but the Directive does not specify in what way this
goal should be achieved. The inclusion of this task and the requirement of giving “due regard”
to the overriding mandatory provisions of Rome I Regulation in the recital, but not in the text
itself, raises questions as to the nature of this task, making it a proclamation of reinforcement
of Rome I Regulation rules of recommendatory nature. At the time of drafting, the European
Trade Union Confederation was in favour of inclusion of a strict time limit for posting, while
BUSINESSEUROPE, The Confederation of European Business, opposed such a time limit
considering that the specific circumstances of each case may determine the need for longer
posting periods.47
46 Recital 11 Preamble of the Directive 2014/67/EU 47 European Commission, SWD(2012) 63 final, PARTIE I Impact Assessment, Revision of the legislative
framework on the posting of workers in the context of provision of services, p. 35 [online]
11
c. Limitations on the length of posting in the Rome I
Regulation
The Regulation 593/2008 on the law applicable to contractual obligations (hereinafter referred
to as the “Rome I Regulation”)48 prescribes, with regards to the applicable law to the individua l
employment contracts, that to the extent that the law applicable to the individual employment
contract has not been chosen by the parties, the contract shall be governed by the law of the
country in which or, failing that, from which the employee habitually carries out his work in
performance of the contract. The country where the work is habitually carried out shall not be
deemed to have changed if he is temporarily employed in another country.49
It follows that the Rome I Regulation also uses the notion of temporality for the assessment of
an individual worker’s habitual place of work – in order to see whether the country in which
the work is habitually carried out has changed by being “temporarily” employed in another
country. I would now consider whether the interpretation of this term in the Rome I Regulat ion
can help establish temporal limitation for the duration of posting under the Posted Workers
Directive. To achieve this, it is necessary to compare the areas covered, relation between the
norms, and case law interpretation.
The Posted Workers Directive represents a lex specialis norm in relation to the rules of private
international law applicable between members of the EU. The Rome I Regulation recital states
that its rules on individual employment contracts should not prejudice the application of the
overriding mandatory provisions of the country to which a worker is posted in accordance with
the Posted Workers Directive50. The Posted Workers Directive itself acknowledges this
relationship in the wording of Art 3(1) stating that whatever the law applicable to the
employment relationship, the undertakings guarantee workers posted to their territory the terms
and conditions of employment covering the following matters (nucleus of mandatory rules for
minimum protection).51 Thus, regardless of applicable law, core employee protection norms of
the host state are to be observed.
The term “temporarily employed in another country” used in Rome I Regulation is further
referenced in the recital which suggests the following criterion for the definition of temporality
48 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. 6–16 49 Art. 8(2) of the Regulation 593/2008 (Rome I) 50 Recital 34 Preamble of the Regulation 593/2008 (Rome I) 51 Art. 3(1) of the Directive 96/71/EC
12
of employment in another country within the meaning of the Regulation: “As regards individua l
employment contracts, work carried out in another country should be regarded as temporary if
the employee is expected to resume working in the country of origin after carrying out his tasks
abroad.”52
Provisions for individual labour contracts in the Rome I Regulation are applicable to individua l
employment contracts per its Article 8, but the Regulation itself does not define either
“individual contract of employment” or “employee”. The autonomous definition of individua l
employment contract contains the following elements which were specified in case law53:
- contracts of employment create a lasting bond which brings the worker to some extent
within the organisational framework of the business of the undertaking or employer,
and they are linked to the place where the activities are pursued, which determines the
application of mandatory rules and collective agreements;
- relationship of subordination;
- essential feature is that for a certain period of time one person performs services for,
and under the direction of, another in return for which he receives remuneration.
On the contrary to this approach, the Posted Workers Directive specifies its scope of application
as covering undertakings established in a Member State which, in the framework of the
transnational provision of services, post workers, to the territory of a Member State54. As
previously mentioned, the transnational posting is understood in three situations :
subcontracting, intra- group posting, and hiring out (temporary agency posting)55 and the term
“worker” is not given a community-wide definition, rather applying the law of the Member
State to whose territory the worker is posted.56 The reasoning for this advanced by academic
literature is that the uniform definition has to be adjusted for various national law definitions of
dependable work and shadowy areas between self-employed and employed persons, allowing
for national inspectorate bodies to address illegal work.57
52 Recital 36 Preamble of the Regulation 593/2008 (Rome I) 53 ECJ, C‑47/14 (Holterman Ferho Exploitatie BV), ECLI:EU:C:2015:574, para. 39-41, 45 54 Art. 1(1) of the Directive 96/71/EC 55 Art. 1(3)(a),(b),(c) of the Directive 96/71/EC 56 Art. 2(2) of the Directive 96/71/EC 57 Karl Riesenhuber, European Employment Law: A Systematic Exposition, Cambridge: Intersentia, Ius
Communitatis Series, Vol 4, 2012, p. 202
13
Per reading of the ECJ’s ruling in Vicoplus, the return of personnel (as opposite to the Rome I
Regulation) in posting situations seems to be a factor usually present, but not a necessary aspect
of posting within the meaning of Art 1(3)(a):
“By contrast, the fact that the worker returns to his Member State of origin at the end of the
posting cannot preclude that worker from having been made available in the host Member State.
Although it is true that a worker posted for the purpose of carrying out work as part of a
provision of services by his employer, within the meaning of Article 1(3)(a) of Directive 96/71,
returns, in general, to his State of origin after the completion of that service (see, to that effect,
Rush Portuguesa, paragraph 15, and Vander Elst, paragraph 21), there is nothing to prevent a
worker who has been hired out, within the meaning of Article 1(3)(c) of Directive 96/71, from
leaving the host Member State and also returning to his Member State of origin after having
carried out his work within the user undertaking.”58
For the clarity of the description, we can now illustrate the following discrepancies between the
understanding of basic definitions in the Posted Workers Directive and the Rome I Regulat ion:
Worker/employment relationship Temporality
Rome I
Regulation
Autonomous – Lasting bond which
brings the worker to some extent within
the organisational framework of the
business of the undertaking or
employer, subordination, performance
of services for and under the direction
of another in return for which he
receives remuneration59
Employee temporarily employed in
another country - if the employee is
expected to resume working in the
country of origin after carrying out his
tasks abroad.60
PWD National law: As defined in the law of
the host country.61
No contract of employment entered into
with the user undertaking.62
Employee works for a “limited period
of time” in the territory of a Member
State other than the State in which he
normally works.63
If we also look into the history of the drafting of the Rome I Regulation (in order to achieve
conversion of the Rome Convention of 1980 on the law applicable to contractual obligat ions
into a Community instrument, while debating introduction of changes departing from the
58 ECJ, C-307/09-309/09 (Vicoplus), ECR 2011, I-00453, para. 49 59 ECJ, C‑47/14 (Holterman Ferho Exploitatie BV), ECLI:EU:C:2015:574, para. 39-41 60 Recital 36 Preamble of the Regulation 593/2008 (Rome I) 61 Art. 2(2) of the Directive 96/71/EC 62 ECJ, C-307/09-309/09 (Vicoplus), ECR 2011, I-00453, para. 51 63 Art. 2(1) of the Directive 96/71/EC
14
wording of the Rome Convention64), the scholarly discussion seemed to support the draft (and
now current) wording of the Regulation absenting any hard upper limit, claiming it was right in
rejecting calls for the introduction of upper limits or presumptions beyond which a posting shall
be deemed to be permanent. According to a commentary by Max Planck Institute for
Comparative and International Private Law65, any given period would be arbitrary and could
prove too rigid to cover the various situations of modern employment contracts, in turn referring
to various German scholars on their estimates of upper limit of temporary posting.66
The Commission’s Green Paper on conversion of Rome Convention into community
legislation67 mentioned that the absence of rigidity regarding the applicable law also enables
courts to take have fuller regard to the facts of the case, as “temporary employment” can refer
to a great variety of situations. The same document recognised the link with the Directive on
Posted Workers and more specifically the interaction between the general conflict rule of the
Rome Convention and the rule affecting the applicable law in the sectoral Directive. The Green
Paper included a note that the two instruments do not use the same terminology, but claimed
that the difference in purpose of both instruments does not produce conflict:
“A superficial reading might suggest that the Directive does not follow the same logic as the
Convention, Article 6 of which stipulates that the employee’s status does not have to be changed
because of a temporary assignment. But it is clear from a more detailed analysis that the two
instruments sit well together. In the event of a temporary assignment, the Directive by no means
aims to amend the law applicable to the employment contract but determines a “focal point” of
mandatory rules to be complied with throughout the period of assignment to the host Member
State, “whatever the law applicable to the working relationship”. The Directive must therefore
be regarded as an implementation of Article 7 of the Rome Convention, concerning overriding
mandatory rules".68
64 Convention 80/934/ECC on the law applicable to contractual obligations opened for signature in Rome on 19
June 1980, OJ L 266 of 9.10.1980 65 Max Planck Institute for Comparative and International Private Law, Comments on the European Commission’s
Proposal for a Regulation of the European Parliament and the Council on the law applicable to contractual
obligations (Rome I), p. 288 [online] 66 Scholars named in the text include: Heilmann, Das Arbeitsvertragsstatut (1991) 144 (arguing that an
employment may not be regarded as temporary after the employee worked two years abroad); Bamberger/H. Roth
(-Spickhoff), Kommentar zum Bürgerlichen Gesetzbuch (2003) Art.30 EGBGB, no.20 (assuming the same after
three years); v. Hoffmann/Thorn, Internationales Privatrecht (2004) 460 (assuming the same after one or two years) 67 European Commission, COM(2002) 654 final, GREEN PAPER on the conversion of the Rome Convention of
1980 on the law applicable to contractual obligations into a Community instrument and its modernisation , p. 35
“The Rome Convention and the Directive not having the same objectives, there is no inconsistency between these
instruments.“ 68 Ibid., p. 36
15
However, the Green Paper concludes with the acknowledgement that “there is a risk of
confusion in that the two instruments do not use the same terminology” and that “the present
situation does not add to the transparency of Community legislation.”69 I infer that the broad
and non-exact scope afforded by both definitions leaves significant space for interpretat ion.
Firstly, per my reading of the provisions, “expectations to resume working in the country of
origin” can have especially broad meaning, leaving significant uncertainty as to when exactly
this period ends (or should end), or if it is even possible to indicate that at all.
It could be concluded that the term “temporarily employed in another country” used in the
Rome I Regulation and its interpretation within that context does not shed any additional light
on the establishment of maximum length criteria for a continuous posting to be regarded as
genuine under the Posted Workers Directive. The option to set maximum upper limit was
debated during the legislative procedure leading to the Rome I Regulation, but was not adopted.
However, the notion of return of the employee (that the employee is expected to resume
working in the country of origin after carrying out his tasks abroad) was included as one of the
relevant criteria in the Enforcement Directive. Both the “limited period of time” and “posted
worker returns to/is expected to resume working in the Member State from which he or she is
posted after completion of the work or the provision of services for which he or she was posted ”
requirements are listed70 as elements which should be assessed in order to identify a genuine
posting. This can be interpreted as an attempt to bridge the terminology and requirements of
both norms.
Nevertheless, within the framework of the Rome I Regulation, the maximum duration of being
“temporarily” employed in another country, even when clarified with “expectations to resume
working in the country of origin” explanation, can be interpreted very broadly. Ambiguity as
regards the regime of applicable law runs against the general objective of the Rome I Regulat ion
– to promote legal certainty in the European judicial area, where the conflict-of-law rules should
be highly foreseeable.71 I conclude that the “(expected) return of the worker to the country of
origin” is now one of the relevant criteria for assessment of genuine posting situation, but does
not provide for establishment of limit of maximum length of such posting.
69 Ibid., p. 37 70 Art. 4(3)(a),(d) of the Directive 2014/67/EU; alongside the element requiring that “the posting takes place to a
Member State other than the one in or from which the posted worker habitually carries out his or her work
according to Regulation (EC) No 593/2008 (Rome I) and/or the Rome Convention“ 71 Recital 6,16 Preamble of the Regulation 593/2008 (Rome I)
16
II. Potential sources for assessment of a proper maximum duration
of posting
It can be inferred that with the length of posting, the effect on the labour market of host state
directly increases. The possibility for Member States to use the exception on minimum wage
application for posting of short duration72, and the eight-day initial assembly exemption73 are
only supportive of this notion (as exceptions permitted against the general rule of day-one
protection). The importance of the temporal aspect can also be shown by the fact that the
Commission’s initial proposal for the Posted Workers Directive of 1991 stated that the
minimum pay and holidays provisions did not apply to postings of less than three months; the
1993 version reduced that period to one month but still retained its compulsory status.74
With the presumption that the length of posting is the defining variable for assessment of the
impact on the labour market of the host country, the implication would be that it is also one of
the defining values for establishing a genuine posting, and possibly for establishing whether the
home state law can still be primarily applicable under the norms of private international law. It
also makes the use of host state law provisions possibly legitimate due to fact that the notion of
being only “temporarily” employed in another country can no longer be maintained. Studies
suggested a framework of implementation based on a rebuttable presumption of non-genuine
posting.75 To address the question of exact length that should be applied, it is necessary to look
into possible sources for assessment of this maximum duration.
72 Art 3(3),(4) of the Directive 96/71/EC 73 Art 3(2) of the Directive 96/71/EC 74 Paul Davies, 'Posted Workers: Single Market or Protection of National Labour Law Systems?' (1997) 34
Common Market Law Review, Issue 3, p. 602, further referring to the COM(93)225 final-SYN 346, O.J. 1993, C
187/5, Art. 3(2) 75 Van Hoek and Houwerzijl, Comparative study on the legal aspects of the posting of workers in the framework
of the provision of services in the European Union, 2011, p. 188 [online]
17
a. Limits on successive assignments in temporary agency work
The question of use and abuse of posted workers can be seen in a broader scope of activities of
temporary agencies. The Directive 2008/104/EC76 (the “Temporary Agency Work Directive ”)
establishes a protective framework for temporary agency workers in the EU77 and both
Directives (Posted Workers, Temporary Agency Work) are essentially addressing temporal
situations. It can also be argued that posted workers face similar conditions in terms of potential
precariousness of their work where same questions of equality with the rest of the workforce at
the workplace arise. Also, as previously noted, the Posted Workers Directive recognises
postings by agencies as one of the recognised variants of posting.78 The Posted Workers
Directive further lists “the conditions of hiring-out of workers, in particular the supply of
workers by temporary employment undertakings” as one of the core standards covered under
Article 3(1).79 Finally, the Posted Workers Directive attains an option for the Member States to
provide that the sending undertakings must guarantee temporary hired-out workers the terms
and conditions which apply to temporary workers in the Member State where the work is carried
out.80 This suggests that there might currently be limited situations where a hard cap on the
length of the posting applies. This is in the case of temporary agency hiring-out postings where
certain countries made use of the Article (3)(9) of the Posted Workers Directive to apply the
same conditions to national and foreign temporary workers. At the same moment, a number of
these countries apply time limitations on the maximum continuous use of temporary agency
workers (among other regulations limiting the use of temporary agency workers such as non-
abuse criteria, preferred use of core workers, etc.). All these limitations are subject to review
under the Temporary Agency Work Directive81, and as such can be susceptible to invalid ity
due to their conflict with the freedom to provide services (restrictions on the use of temporary
agency work create an obstacle to the provision of services by temporary employment
undertakings)82, but can nevertheless serve as a valid starting point for the discussion on the
76 Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary
agency work, OJ L 327, 5.12.2008, p. 9–14 77 Recital 12 Preamble of the Directive 2008/104/EC 78 Art. 1(3)(c) of the Directive 96/71/EC 79 Art. 3(1)(d) of the Directive 96/71/EC 80 Art. 3(9) of the Directive 96/71/EC which states that “Member States may provide that the undertakings referred
to in Article 1 (1) must guarantee workers referred to in Article 1 (3) (c) the terms and conditions which apply to
temporary workers in the Member State where the work is carried out.” 81 Art. 12 Directive 2008/104/EC (“By 5 December 2013, the Commission shall, in consultation with the Member
States and social partners at Community level, review the application of this Directive with a view to proposing,
where appropriate, the necessary amendments.”) 82 Opinion of AG Szpunar, Case C-533/13 (Auto- ja Kuljetusalan Työntekijäliitto AKT ry), para. 91
18
possible establishment of time frame for posting situations to distinguish them from abuse of
the rules.
Moreover, the Temporary Agency Work Directive allows only for prohibitions and restrictions
on the use of agency workers “on grounds of general interest relating in particular to the
protection of temporary agency workers, the requirements of health and safety at work or the
need to ensure that the labour market functions properly and abuses are prevented”.83 Academic
legal writers are almost unanimous in interpreting Article 4(1) of the Temporary Agency Work
Directive as imposing on the Member States an obligation to remove unjustified restrictions on
the use of temporary agency work84, such as the maximum temporal limitations.
As per the character of agency work, its temporality and use, Advocate General Szpunar in the
case AKT v Öljytuote ry, Shell Aviation Finland Oy85 had to assess whether certain limitations
of Member States on the length of agency work were in compliance with the functioning of
internal market, or if they posed an unjustified burden to the freedom of provision of services.86
Regardless of the fact that the compliance of those limitations with the freedom of provision of
services was not itself adjudicated by the Court, the Advocate General reiterated that the
Temporary Agency Directive prohibits the continued application, or the introduction of
prohibitions or restrictions, on the use of temporary agency work that is not justified on grounds
of general interest, relating in particular, to the protection of temporary agency workers, the
requirements of health and safety at work or the need to ensure that the labour market functions
properly, and abuses are prevented.87 On the other hand, the goal to combat abuse in this area
was accepted as a possible justification for length limitations on successive posting.
As the Advocate General further noted, the continuance, for a long period of time, of temporary
employment relationships, which should by nature remain temporary, might in fact be
indicative of an abuse of this form of work.88 The provision in question in the case stemmed
out of a sectoral collective agreement which was limiting the use of temporary agency by stating
that “the use of temporary workers is an unfair practice if the temporary agency workers
employed by undertakings using external workers carry out the undertaking’s usual work
83 Art. 4 of the Directive 2008/104/EC, entitled ‘Review of restrictions or prohibitions’ 84 Opinion of AG Szpunar, Case C-533/13 (Auto- ja Kuljetusalan Työntekijäliitto AKT ry), para. 40, in turn
referring to Bell, M., ‘Between flexicurity and fundamental social rights: the EU directives on atypical work’,
European law review, 2012, Vol. 37, no 1, p. 36, and various other sources 85 ECJ, C-533/13 (Auto- ja Kuljetusalan Työntekijäliitto AKT ry v Öljytuote ry and Shell Aviation Finland Oy),
ECLI:EU:C:2015:173 86 Opinion of AG Szpunar, Case C-533/13 (Auto- ja Kuljetusalan Työntekijäliitto AKT ry), para. 2 87 Ibid., paragraph 93 88 Ibid., paragraph 122
19
alongside the undertaking’s permanent workers under the same management and for a long
period of time.89
The Advocate General observed that it is clear from the definitions set out in Article 3 of
Temporary Agency Work Directive that temporary agency work implies relationships which
are maintained “temporarily”. It may thus be inferred that this form of work is not appropriate
in all circumstances, in particular where staffing needs are permanent. The Advocate General’s
assessment followed with an argument that inasmuch as the limitation provision at issue
prohibits the employment of temporary agency workers alongside an undertaking’s own
employees for a “long period of time”, it does pursue the legitimate objective of limiting the
abusive use of that form of work. Indeed, in accordance with the general thrust of EU
legislation, the use of temporary agency work must not have a detrimental effect on direct
employment but must, on the contrary, be able to lead to more secure forms of employment.90
Finally, the Advocate General concluded that national rules which limit the use of temporary
work to the performance of tasks which, by reason of their nature or duration, objectively meet
a temporary need for labour and which prohibit the employment of temporary agency workers
alongside an undertaking’s own employees for a long period of time, seem justified on the
ground of a general interest relating to the need to ensure that the labour market functions
properly and abuses are prevented.91
The issue itself was not decided by the court since it held that the provision in question92 only
binds the competent authorities of the Member States, imposing on them an obligation to review
in order to ensure that any potential prohibitions or restrictions on the use of temporary agency
work are justified, while such obligations cannot be performed by the national courts.93
Nevertheless, it provides for an assessment where a national rule justified on the grounds of
general interest gave rise to a conflict between the perceived proper use of “temporary” agency
work and its abuse. I infer that given the temporary requirement of both the Temporary Agency
Work and Posted Workers Directives, creating a reasonable time scope for posting of workers
might be possible by drawing from the national practice of states in the case of limitations on
the use of agency work.
89 Ibid., paragraph 9 90 Ibid., paragraph 120 91 Ibid., paragraph 124 92 Art. 4(1) of the Directive 2008/104/EC 93 ECJ, C-533/13 (Auto- ja Kuljetusalan Työntekijäliitto AKT ry v Öljytuote ry and Shell Aviation Finland Oy),
ECLI:EU:C:2015:173, para. 32
20
The national limitations on the use of temporary agency work under the Temporary Agency
Work Directive were subject to review by the Member States in cooperation with social
partners94 and subsequently reviewed by the European Commission.95 The report reviewing the
limitations on the use of temporary agency workers96 identified several approaches taken by the
Member States in order to justify limitations on the use.
Firstly, a number of countries (Belgium, Bulgaria, Croatia, Czech Republic, France, Germany,
Greece, Hungary, Italy, Poland, Portugal, and Slovenia) referred to “the protection of temporary
agency workers” to explain and provide a justification for certain prohibitions or restrictions in
place.97 On the other hand, other Member States (Ireland, Luxembourg, Malta and the United
Kingdom) reported that no restrictions or prohibitions were in place.98 Specifically, several
Member States (Belgium, Bulgaria, Czech Republic, Germany, Greece, Italy, Poland, and
Sweden) justified certain prohibitions or restrictions on the use of agency work by “the need to
ensure that abuses are prevented”. These countries are important for the assessment of the
understanding of abuse of the “temporary” character of work under the Temporary Agency
Work Directive. Several Member States (Belgium, France, Greece, and Poland) explained
various restrictive measures by the need to protect permanent employment and to avoid a
situation in which permanent positions might be filled by workers employed on a temporary
basis. In particular, they have used this justification to limit the duration of assignments and to
explain the existence of a list of permissible reasons for using temporary agency work, such as,
for instance, the replacement of an absent worker, a temporary increase in the volume of work,
or the performance of exceptional or seasonal tasks.99
A selected number of Member States make provision for a maximum duration of temporary
agency assignments. In France, the law limits the length of assignments as between 18 and 24
months, inclusive of any contract renewals, according to the reasons for use.100 In Portugal, the
maximum permitted assignment was increased from one to two years in 2007.101 The total
94 Art. 4(2) of the Directive 2008/104/EC: "By 5 December 2011, Member States shall, after consulting the social
partners in accordance with national legislation, collective agreements and practices, rev iew any restrictions or
prohibitions on the use of temporary agency work in order to verify whether they are justified…” 95 Art. 4(5) of the Directive 2008/104/EC: "The Member States shall inform the Commission of the results of the
review referred to in paragraphs 2 and 3 by 5 December 2011." 96 European Commission, COM(2014) 176 final, Report from the Commission on the application of Directive
2008/104/EC on temporary agency work, p. 9 97 Ibid., p. 10 98 Ibid., p. 9 99 Ibid., p. 12 100 European Foundation for the Improvement of Living and Working Conditions, Temporary agency work and
collective bargaining in the EU, p. 26 [online] 101 Ibid., p. 26
21
length of any assignment in Luxembourg is limited to a maximum of 12 months, inclusive of
any renewals. In Poland, agency workers may not be deployed to any one employer for more
than 12 months over a period of 36 consecutive months. In Italy, the TAW collective agreement
stipulates that the initial assignment can be extended for a maximum of five times and for an
overall duration of no more than 36 months. The regulation of assignment length is made under
the terms of the national collective agreement in Belgium. The maximum permitted length of
the assignment depends on certain conditions, linked to reason for use, as defined in the national
collective agreement. The maximum permitted lengths of assignment are: the whole period
concerning the temporary replacement of a permanent worker (e.g. due to sick leave); a
maximum of six months when replacing a dismissed worker, with a maximum of an additiona l
six months subject to the agreement of the trade union delegation; any period agreed by the
union delegation to meet any temporary peaks of demand (or a period of six months plus up to
two further periods of six months if there is no trade union delegation, providing the social fund
or mediation authority is informed); from seven days to 12 months in the case of unusual work,
depending on the situation, to which a special National Collective Agreement (of November
1981) applies.102
The following list gives the overview of existing limitations on the hiring-out (under Art 1(3)(c)
of the Posted Workers Directive) postings through equal application based on Art 3(9) currently
in force in Member States which were deemed to have the highest number of “incoming” posted
workers (based on an overview of A1 norms handed out to workers coming from other Member
States for the purposes of social security coverage)103 together with some other countries that
apply the system of limitations:104
102 Ibid., p. 27 103 PACOLET and DE WISPELAERE, Posting of workers: Report on A1 portable documents issued in 2012 and
2013, Network Statistics FMSSFE, European Commission, December 2014, p. 13 [online] 104 Compiled based on the documents of Temporary agency work and collective bargaining in the EU and the
Report from the Commission on the application of Directive 2008/104/EC on temporary agency work
22
MS: Max. time limitations for assignment
with the same undertaking:
Extending TAW protection to
foreign workers?
Austria No time limitations present, lengthy
assignments accepted by Courts 105
Limited number of protective
provisions
Belgium Up to 12 months depending on the
type of assignment
Yes
Czech Republic 12 months Yes
Germany Currently there is no limitation on
lengthy assignments106
--
France maximum of 18 months107
Yes
Luxembourg maximum of 12 months, inclusive of
any renewals
Yes
Italy Overall duration of no more than 36
months
Yes
Poland Prohibition of deployment to one
employer for more than 12 months
over a period of 36 consecutive
months
Yes
Portugal 24 months Yes
Spain National and sectoral collective
agreements apply
--
United
Kingdom
No specific limit imposed --
It can be concluded that the use of restrictions on the maximum continuous assignments of
temporary agency workers varies significantly. Member States do not have a consistent limit in
force with regards to the limited duration of temporary agency assignments. There is currently
no fixed limit for the length of an assignment with a certain user of agency workers within the
largest “importer” states of posted workers. The only exceptions are Italy, France and Belgium
with 36, 18 (with extensions), and 12 months respectively.
105 European Labour Law Network, Temporary Agency Work – Amendment of the Austrian Temporary Agency
Work Act mentions that: „Article 3 of the Directive mentions that the work performed by temporary agency
workers is performed “temporarily” – there is no mention of that in the Austrian Act. On the contrary, the Austrian
Supreme Court deals with long-term assignments in its rulings and not with the legality of such lengthy
assignments.“ [online] 106 Section 1 para. 1 sent. 2 of the German Temporary Employment Act (Arbeitnehmerüberlassungsgesetz)
specifies that the hiring-out of workers has to be temporary. This provision does not provide a specific amount of
time. The coalition agreement between the dominating German parties SPD and CDU includes a planned statutory
time limit of 18 months (however, this is not implemented as of December 2015) 107 The maximum duration is extended to 24 months in the case of replacement of a worker who left the company
because of his/her position being suppressed, assignments carried out in a foreign country and for exceptional
export orders that require special efforts both in quantitative and qualitative terms. Furthermore, the duration of
the contract can be 36 months for apprenticeships. In: European Foundation for the Improvement of Living and
Working Conditions, Temporary agency work and collective bargaining in the EU, p. 26
23
b. Case law on the freedom to provide services
As the situation of non-genuine posting of workers essentially falls under abusive use of the
rights provided by the Posted Workers Directive in the framework of the provision of services,
it is necessary to explore whether there are any time limits recognised in case law for continuous
service provision which, due to its duration, could no longer be regarded as being covered by
the freedom to provide services under EU law. The ECJ has accepted that a general legal
principle prohibiting abuse of rights exists in the EU and this principle has been applied also in
case law of the Court of Justice.108
In the area of provision of services, the ECJ was repeatedly asked to make a distinction between
situations which were (supposedly) covered by the freedom of provision of services but which
were pursued on a stable and continuous basis for extended periods. This raised questions as to
the temporary nature of the provision of services - and whether a person pursuing certain
activities for lengthy time comes under the provisions relating to the right of establishment and
not those of the chapter relating to services. Similar conflict as in the case of abusive continuous
postings arises. The concept of establishment is allowing a national to participate, on a stable
and continuous basis, in the economic life of a Member State other than his State of origin,
whereas, in contrast, where the provider of services moves to another Member State, the
provisions of the freedom of establishment envisage that he is to pursue his activity there only
on a temporary basis.109
The ECJ held that the temporary nature of the provision of services is to be determined in the
light of its duration, regularity, periodicity and continuity.110 Provision of services within the
meaning of the Treaty may cover services varying widely in nature, including services which
are provided over an extended period, even over several years, where, for example, the services
in question are supplied in connection with the construction of a large building.111 The ECJ
concluded that no provision of the Treaty affords a means of determining, in an abstract manner,
the duration or frequency beyond which the supply of a service or of a certain type of service
in another Member State can no longer be regarded as the provision of services within the
meaning of the Treaty.112
108 ECJ, C-321/05 (Kofoed), [2007] ECR I-5795, para. 38. 109 ECJ, C-55/94 (Gebhard), [1995] ECR I-04165, para. 26 110 ECJ, C-55/94 (Gebhard), para. 39 111 ECJ, C-215/01 (Schnitzer), [2003] ECR I-14847, para. 30 112 ECJ, C-215/01 (Schnitzer), para. 31
24
However, an activity carried out on a permanent basis, or at least without a foreseeable limit to
its duration, does not come under the EU provisions concerning the provision of services.113
It follows that the case law from the area of provision of services does not provide for the
interpretation of the term “limited period of time” (or to further explain the temporary character
of posting) within the meaning of the Posted Workers Directive. Assessment of the maximum
duration of continuous posting still falling under the genuine character of posting may benefit
only from the general guidelines specified in the services cases as to what should be taken into
account for such assessment – the duration, regularity, periodicity and continuity – and could
build on the example given in one of the cases which states that the freedom of provision of
services may cover services which are provided over an extended period, even over several
years, where, for example, the services in question are supplied in connection with the
construction of a large building.
113 ECJ, C-456/02 (Trojani), [2003] ECR I-07573, para. 28
25
c. Social security coverage
The length of maximum posting which could serve as the basis for a presumption of genuine
posting could be also based on the participation in the social security schemes of the host
country. Per the requirement of Regulation No 883/2004 on the coordination of social security
systems (the “Coordination Regulation”)114, a person who pursues an activity as an employed
person in a Member State on behalf of an employer which normally carries out its activit ies
there, and who is posted by that employer to another Member State to perform work on that
employer's behalf, shall continue to be subject to the legislation of the first Member State,
provided that the anticipated duration of such work does not exceed twenty-four months and
that he is not sent to replace another person.115
For the purposes of such posting, an A1 (formerly E101) statement is a document stating the
country in which a worker is covered by social insurance. It must be borne in mind that there is
an exception from the rule on maximum duration of posting because of the possibility to apply
for an extension of validity of the A1 statement if the work lasts longer than origina l ly
estimated. The A1 forms are issued not only for posting as defined in Art 12 of the Coordination
Regulation, but also for other activities such as international transport or persons working in
two or more Member States as defined in Art 13 of the same Regulation.116
The A1 statement binds the competent institution and the courts of the Member State in which
workers are posted, as long as it has not been withdrawn or declared invalid by the authorit ies
of the Member State which issued it. The role of the A1 form is to indicate the applicable
legislation for establishing the social security rights of migrant workers, employees and the self-
employed as well as where the respective contributions should be paid. The information in the
A1 form reflects relevant information for establishing the social security rights, but does not
reflect the salary level or working conditions.117
The approach of linking the temporary character of assignments with the application of social
security norms has been addressed previously – a maximum time limit for posting, linked to
the maximum used in EU social security, was proposed, inter alia, in Luxembourg (Bill
114 Regulation 883/2004 on the coordination of social security systems 115 Art 12(1) of the Regulation 883/2004 on the coordination of social security systems 116 Kristina Maslauskaite, Posted Workers in The EU: State of Play and Regulatory Evolution, Notre Europe –
Jacques Delors Institute, p. 5 [online] 117 Van Hoek and Houwerzijl, Study on the legal aspects of the posting of workers in the framework of the
provision of services in the European Union, 2011, p. 26
26
5942).118 The Posted Workers Directive leaves only limited room to extend the protection of
posted workers beyond the hard nucleus mentioned in the Directive - posted workers only
receive the protection which is allowed under Directive, whereas migrant workers are entitled
to equal treatment. In this situation, necessary steps should be taken to amalgamate these two
groups of workers when certain criteria of integration into workforce are met and when full
application of local standards is appropriate.
Moreover, workforce integration is regarded as one of the important areas of integration policies
in the Member States as structural integration actions which specifically target labour market
are present in the overwhelming number of Member States with highest number of incoming
foreign nationals.119 The goal of inclusion of foreigners sought through these labour market
policies suggests that workplace integration plays an important role in the overall societal
integration. It seems only plausible that the workforce integration and social integration (in
broader sense) go hand in hand, thus questioning the difference with regard to the lengthy
posting assignments. It is possible to infer that the persons who would already fall under the
social coverage of host country should no longer be treated as temporary under the conditions
of the Posted Workers Directive/Rome I Regulation.
The aforementioned arguments lead to a conclusion that the period of two years, which is
allowed under the Coordination Regulation for persons who are posted by their employer to
another Member State (which provides that the person shall continue to be subject to the
legislation of the home Member State), can serve as an appropriate upper limit for establishing
a rebuttable presumption of non-genuine posting after this period. Not only is the length
substantiated by application of social security system of the host state after two years – it is
only logical that the application of social security provisions (which are frequently closely
associated with norms of labour law) would be closely linked to application of national labour
law – but it also falls into the general range which is already used by certain Member States
with regards to limits on temporary agency work (12-36 months). The rebuttable presumption
should have an option for justification of a longer posting – in situations where the tasks on the
project/service provided in the host state take longer than the presumed two years (such as
construction projects taking longer than this period – in line with the previously discussed case
law on the freedom to provide services).
118 Ibid., p. 48 119 Friedrich Heckmann, Dominique Schnapper (eds.) The Integration of Immigrants in European Societies
National Differences and Trends of Convergence, In Memory of Hans Mahnig Lucius & Lucius. Stuttgart - 2003
27
III. Beyond genuine posting – the regime of non-genuinely posted
workers
After the inquiry into the maximum continuous period of genuine posting, it is necessary to
establish the outcome for the assessment of applicable law to the individual employment
relationships of non-genuinely posted workers who are no longer covered by the Posted
Workers Directive. As noted in a previous part of the text, the final version of the Enforcement
Directive contains two terms used for establishing limited temporary nature of posting – the
limited period of time used by the Posted Workers Directive and the expected return of the
employee used by the Rome I Regulation. I conclude that the continuous use of posting in
situations which are no longer genuine does not fall under the Posted Worker Directive
definition of posting and thus does not directly benefit from the core protections specified
therein.
The legislative history of the Enforcement Directive shows divergent views on what should be
the regime of law applicable to non-genuinely posted workers. While discussing the
Enforcement Directive, the position of non-genuinely posted workers was a point of contention
as evidenced by the extensive debate and numerous amendments within the European
Parliament.120 Essentially, three variants for the solution regarding the conflict of laws
applicable to non-genuine postings were suggested:121
use of host state law in full;
use of norms of private international law;
use of law providing better protection for the employee.
The final version of the Enforcement Directive specifically states that where there is no genuine
posting situation and a conflict of law arises, due regard should be given to Union
law/international private law provisions122 that are aimed at ensuring that employees should not
be deprived of the protection afforded to them by provisions which cannot be derogated from
by an agreement, or which can only be derogated from to their benefit. Member States should
ensure that provisions are in place to adequately protect workers who are not genuine ly
120 European Parliament, Debate in Parliament 15/04/2014, Posting of workers in the framework of the provision
of services [online] 121 Van Hoek, Private International Law: An Appropriate Means to Regulate Transnational Employment in the
European Union? Erasmus Law Review, Issue 3 2014, p. 167 further referring to the Procedure file
2012/0061/COD of European Parliament 122 Regulation 593/2008 (‘Rome I’) or the Rome Convention
28
posted,123 but the Enforcement Directive does not specify in what way this goal should be
achieved. The solution chosen in the Enforcement Directive leaves it open for an application of
the norms of private international law, pointing at proper use of provisions which cannot be
derogated from by an agreement.
As previously discussed, under Rome I Regulation, the habitual place of work is the primary
connecting factor for establishing the law applicable to individual employment contracts
(absenting choice of law by the parties). The country where the work is habitually carried out
shall not be deemed to have changed if he is temporarily employed in another country.124 Due
to the inclusion of the requirements for temporality of the Rome I Regulation within the
elements of genuine posting under the Enforcement Directive, it is also no longer possible to
treat the non-genuine posting situations as temporary within the meaning of the Rome I
Regulation. This raises a question whether the habitual place of work as the primary connecting
factor “relocated” to the host state when the posting is no longer genuine due to abusive
continuous or permanent postings.
Accepting that the habitual place of work has changed would mean that the law of the host state
is applicable, subject to the finding that the posting is no longer genuine. This holds true only
insofar as the closer connection clause is exhausted. Article 8(4) of the Rome I Regulat ion
specifies that:
“Where it appears from the circumstances as a whole that the contract is more closely connected
with a country other than that indicated in paragraphs 2 or 3 (of Art 8), the law of that other
country shall apply.”125
This escape clause was given a broad interpretation in the Schlecker case126. Article 6(2) of the
predecessor of the Rome I Regulation (the Rome Convention on the law applicable to
contractual obligations127) with the same wording as the current closer connection clause128 was
interpreted as being applicable even where an employee carries out the work in performance of
the contract habitually, for a lengthy period and without interruption in the same country. Even
under these conditions, the national court may disregard the law of the country where the work
123 Recital 11 Preamble of the Directive 2014/67/EU 124 Art. 8(2) sent. 2 of the Regulation 593/2008 (‘Rome I’) 125 Art. 8(4) of the Regulation 593/2008 (‘Rome I’) 126 ECJ, C-64/12 (Schlecker v Boedeker), ECLI:EU:C:2013:551 127 Rome Convention on the law applicable to contractual obligations 128 “unless it appears from the circumstances as a whole that the contract is more closely connected with another
country, in which case the contract shall be governed by the law of that country“
29
is habitually carried out, if it appears from the circumstances as a whole that the contract is
more closely connected with another country.129 The case did not arise out of posting situation
but it signalled that the ECJ is ready to accept that the law of the country where a continuous
employment contract which was performed not only habitually, but also for a lengthy period
and without interruption in the same country, (acknowledging that Ms Boedeker had habitua lly
carried out her activity in the Netherlands for more than 11 years and without interruption in
that same country130) can still be disregarded based on the finding that there is a closer
connection with another country.
The particular elements which were held to be significant factors suggestive of a connection
with a particular country are:
“the country in which the employee pays taxes on the income from his activity and the country
in which he is covered by a social security scheme and pension, sickness insurance and
invalidity schemes. In addition, the national court must also take account of all the
circumstances of the case, such as the parameters relating to salary determination and other
working conditions”.131
This would mean that as far as these conditions are met, non-genuine application of the Posted
Workers Directive would still be caught in the scope of the closer connection clause pointing
to the application of home state law (regardless of the discussion on the habitual place of work
assessment). The importance of the social security coverage is emphasised in the ruling – which
makes the argument of tying the limits for genuine posting with the rules on social security
coordination even stronger. If the aforementioned elements are not present in a case of non-
genuine posting, home state law would be applicable. When such elements are present, it is up
to the courts to establish that the home state law is (still) the law applicable by the virtue of the
closer connection clause. If the latter is true, the escape from the scope of closer connection
clause is still possible through application of overriding mandatory provisions.132
Article 9 of the Rome I Regulation specifies that overriding mandatory provisions are
provisions the respect for which is regarded as crucial by a country for safeguarding its public
interests, such as its political, social or economic organisation, to such an extent that they are
applicable to any situation falling within their scope, irrespective of the law otherwise
129 ECJ, C-64/12 (Schlecker v Boedeker), ECLI:EU:C:2013:551, para. 42,44 130 Ibid., para. 27 131 Ibid., para. 41 132 Art. 9 of the Regulation 593/2008 (‘Rome I’)
30
applicable to the contract under the Regulation. The same article prescribes that nothing in the
Regulation shall restrict the application of the overriding mandatory provisions of the law of
the forum.133
The core protections contained in the Posted Workers Directive are understood as an
implementation of Article 9 of the Rome I Regulation concerning overriding mandatory
rules134, identifying the relevant mandatory rules in the context of employment contracts, and
requiring the home State courts to apply them. 135 The Community legislature has selected those
matters listed in Article 3(1)(a) – (g) to be the mandatory rules under Article 7(2) of the Rome
Convention/ Article 9(2) of the Rome I Regulation.136
The Posted Workers Directive was interpreted by the ECJ as not only setting minimum core
standards, but also as a ceiling for the application of host state labour law to the areas mentioned
in the Directive.137 Member States cannot unilaterally rely on Article 3(10) of the Posted
Workers Directive to impose additional requirements on posted workers over and above those
laid down by Article 3(1), except in rare circumstances of public policy.138
The exceptional nature of the public policy derogation was emphasised in Commission v
Luxembourg:
“… while the Member States are still, in principle, free to determine the requirements of public
policy in the light of national needs, the notion of public policy in the Community context, …
may be relied on only if there is a genuine and sufficiently serious threat to a fundamenta l
interest of society.” 139
Nevertheless, the core protections included in the Posted Workers Directive shall be applied by
virtue of their existence as mandatory provisions under Article 9 or the Rome I Regulation. The
scope of those protections cannot be narrowed – a narrower scope of application of the core
protections under PWD in cases of non-genuine posting is not in possible. If the mandatory
provisions actually had narrower scope than core provisions of PWD, this would then allow
third country undertakings posting personnel under their national law to get an advantage
133 Art 9(2) of the Regulation 593/2008 (‘Rome I’) 134 European Commission, COM(2002) 654 final, GREEN PAPER, p. 36 135 Paul Davies, 'Posted Workers: Single Market or Protection of National Labour Law Systems?', p. 136 Barnard C., The UK and Posted Workers: The Effect of Commission v Luxembourg on the Territorial
Application of British Labour Law Industrial Law Journal, Vol. 38, No. 1, Match 2009, p. 129 137 Van Hoek, Private International Law: An Appropriate Means to Regulate Transnational Employment in the
European Union? Erasmus Law Review, Issue 3 2014, p. 167 138 Barnard C., op. cit., p. 129 139 ECJ C-319/06 (Commission v Luxembourg), [2008] ECR I-04323, para. 50
31
against EU undertakings, a situation contrary to Art 1(4) of the Posted Workers Directive140.
As an observation supporting this finding, it seems that the Member States actually enforce the
same scope of rules, as their national regulations are based on the “universal application” to all
workers in the state (territorial principle), such as the UK.141
The opposite situation (mandatory provisions in Rome I having wider scope than core
provisions in PWD) would have to be assessed in the light of ECJ’s case law.
The application of protective rules of wider scope than what is the core mandatory protections
was subject to interpretation in the Unamar case142. This case dealt with protection of self-
employed commercial agents and Belgian rules in place that were deemed mandatory,
providing protection going beyond what was provided by the law chosen by the parties which
met the requirements of the Directive on the coordination of the laws of the Member States
relating to self-employed commercial agents143.
The Court held that:
“the law of a Member State of the European Union which meets the minimum protection
requirements … and which has been chosen by the parties to a commercial agency contract may
be rejected by the court of another Member State before which the case has been brought in
favour of the law of the forum, owing to the mandatory nature, in the legal order of that Member
State, of the rules governing the situation of self-employed commercial agents, only if the court
before which the case has been brought finds, on the basis of a detailed assessment, that, in the
course of that transposition, the legislature of the State of the forum held it to be crucial, in the
legal order concerned, to grant the commercial agent protection going beyond that provided for
by that directive, taking account in that regard of the nature and of the objective of such
mandatory provisions.”144
This means that a detailed assessment of rules which goes beyond core areas of the Posted
Workers Directive is necessary in order to apply them after the expiry of genuine posting. For
this assessment, the court shall take into account not only of the exact terms of that law, but
also of its general structure and of all the circumstances in which that law was adopted in order
140 Art. (1)(4) of the Directive 96/71/EC: “Undertakings established in a non-member State must not be given more
favourable treatment than undertakings established in a Member State.” 141 Grušić, U., 2015. The European Private International Law of Employment, Cambridge University Press, p. 286 142 ECJ, C-184/12 (Unamar), ECLI:EU:C:2013:663 143 Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States
relating to self-employed commercial agents, OJ L 382, 31/12/1986, p. 0017 - 0021 144 ECJ, C-184/12 (Unamar), ECLI:EU:C:2013:663, para. 52
32
to determine whether it is mandatory in nature in so far as it appears that the legislature adopted
it in order to protect an interest judged to be essential by the Member State concerned.145
In conclusion, the habitual place of work is the primary connecting factor for establishing the
law applicable to individual employment contracts (absenting choice of law by the parties). The
country where the work is habitually carried out should change from the home state to the host
state in cases of non-genuine, continuous posting, as the temporary character of foreign
employment within the meaning of the Rome I Regulation is no longer valid.
Even after this assessment, the application of host state law might be precluded by the closer
connection clause which states that where it appears from the circumstances as a whole that the
employment contract is more closely connected with a different country, the law of that country
prevails. Conditions which are to be met to establish such a connection include, inter alia, social
security scheme coverage. This would mean that as far as these conditions are met, non-genuine
application of the Posted Workers Directive would still be caught in the scope of the closer
connection clause pointing to the application of home state law (regardless of the discussion on
the habitual place of work assessment). If the aforementioned elements are not present in a case
of non-genuine posting, home state law would be applicable. The escape from the scope of
closer connection clause is still possible through application of overriding mandatory
provisions. It is argued that the application of overriding mandatory provisions in the case of
non-genuinely posted workers is obligatory, as the core protections of the Posted Workers
Directive are specifying precisely these mandatory standards in the covered areas. This scope
cannot be narrowed based on the fact that the posting is no longer genuine – as this would allow
third country postings (not covered by the PWD) to get an advantage against EU undertakings,
a situation contrary to the PWD itself. The ECJ case law is interpreted as establishing the PWD
as not only the minimum, but also a maximum protection afforded by host law in the posting
situations. As those limits are no longer applicable for non-genuine posted workers, it is
possible to go further and, provided that a detailed assessment of the norm in question is
conducted, allow the application of protective norms of host state law which go beyond the core
of PWD, as long as they are held to be crucial for protecting interest judged to be essential by
the Member State concerned.
145 ECJ, C-184/12 (Unamar), ECLI:EU:C:2013:663, para. 50
33
Conclusions
The paper first outlined the role of Posted Workers Directive in balancing protection of workers,
an objective of EU policies, and freedom to provide services, a fundamental freedom under EU
law. The Directive was reviewed in order to assess the potential shortcomings by experts who
suggested several changes.
In order to justify the difference in treatment between posted workers (core protection) and
migrant workers (equal treatment), posting of workers has to be of a temporary nature. If the
duration of the posting is excessive, and becomes permanent, the presumption behind the
difference in legal status between these two categories of workers is no longer valid. The same
situation occurs if the same or different employees are repeatedly recruited by an undertaking
with the purpose of being posted to another Member State for carrying out the same job
(rotational postings).146
The problems behind the Posted Workers Directive were understood as mainly driven by the
absence of criteria which would enable Member States authorities to determine if a posting is
genuine. The Posted Workers Directive gave no indication as to the temporary nature of the
posting, it neither provided for a fixed time limit nor does it contain more specific criteria as to
how to determine the temporary nature of the work to be performed by the posted workers.147
Improvement was sought for the inaccurate definition of temporality of posting and the
definition of posted worker as such, with one of the suggestions supporting an establishment of
a time frame for the temporality of posting as a rebuttable presumption of non-genuine posting.
Some of these suggestions were later incorporated in the Posted Workers Enforcement
Directive which aims, inter alia, to introduce a number of indicators for identification of a
genuine posting in order to assist the competent authorities. The Enforcement Directive’s goal
is to provide a useful tool contributing to combating abuses of the Posted Workers Directive,
thus helping prevent, avoid and combat circumvention of the applicable rules. It is supposed to
be used in cases of doubt and to target those who abuse the Directive through the use of letterbox
146 European Commission, SWD(2012) 63 final, PARTIE I Impact Assessment, Revision of the legislative
framework on the posting of workers in the context of provision of services, p. 34 [online] 147 European Commission, COM(2012) 131 final, Proposal for a Directive of the European Parliament and of the
Council on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the
provision of services, p. 13
34
companies or filling a permanent role with repeated postings. The Enforcement Directive shall
be transposed into national law by Member States by 18 June 2016.148
The criteria for establishing a genuine posting include a number of factual elements, the time
limitation is addressed by a requirement of the temporary character of posting of limited period
of time, and the presumption of return of the worker after completion of the work is also
included in the list. This bridges the difference between the definitions of temporality of posting
in the Posted Workers Directive and the Rome I Regulation respectively. The Rome I
Regulation does not clarify the notion “temporary” either, it only states that work carried out in
another country should be regarded as temporary if the employee is expected to resume working
in the country of origin after having carried out his tasks abroad.
Regime of law applicable to non-genuinely posted workers is briefly discussed, with the finding
that the non-genuinely posted workers would still be caught in the scope of the closer
connection clause pointing to the application of home state law. The escape from the scope of
closer connection clause is still possible through application of overriding mandatory
provisions. It is argued that the application of overriding mandatory provisions in the case of
non-genuinely posted workers is obligatory, as the core protections of the Posted Workers
Directive are specifying precisely these mandatory standards in the covered areas. This scope
cannot be narrowed based on the fact that the posting is no longer genuine – as this would allow
third country postings (not covered by the PWD) to get an advantage against EU undertakings,
a situation contrary to the PWD itself. The ECJ case law is interpreted as establishing the PWD
as not only the minimum, but also a maximum protection afforded by host law in the posting
situations. As those limits are no longer applicable for non-genuine posted workers, it is
possible to go further and, provided that a detailed assessment of the norm in question is
conducted, allow the application of protective norms of host state law which go beyond the core
of PWD, as long as they are held to be crucial for protecting interest judged to be essential by
the Member State concerned.
In order to establish the maximum duration of posting still falling under the genuine character
of posting, the paper firstly explored case law from the area of provision of services. It was
shown that case law from the area of provision of services does not provide for the interpretat ion
of the term “limited period of time” within the meaning of the Posted Workers Directive.
Secondly, the inquiry into national law of Member States found that the use of restrictions on
148 Art. 23 of the Directive 2014/67/EU
35
the maximum continuous assignments of temporary agency workers varies significantly.
Member States do not have a consistent limit in force with regards to the limited duration of
temporary agency assignments. There is currently no fixed limit for the length of an assignment
with a certain user of agency workers within the largest “importer” states of posted workers.
Lastly, it is argued that the period of two years which is allowed under Regulation on the
coordination of social security systems for application of home state social security schemes
for persons who are posted by their employer to another Member State (which provides that the
person shall continue to be subject to the legislation of the home Member State) can serve as
an appropriate upper limit for establishing a rebuttable presumption of non-genuine posting
after this period. Not only is the length substantiated by the application of social security system
of the host state after two years – it is only logical that the application of social security
provisions (which are frequently closely associated with norms of labour law) would be closely
linked to an application of national labour law – but it also falls into the general range which is
already used by certain Member States with regards to limits on temporary agency work (12-
36 months). The rebuttable presumption should have an option for justification of a longer
posting – in situations where the tasks on the project/service provided in the host state take
longer than the presumed two years (such as construction projects taking longer than this period ,
accommodating thus the example given in the part on the case law on freedom to provide
services). It can serve as an appropriate upper limit for establishing a rebuttable presumption of
non-genuine posting after this period, distinguishing genuine postings from attempts to
circumvent the law.
36
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