Directive 96/71 / EC on the posting of workers

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Directive 96/71 / EC

Title: Directive 96/71 / EC of the European Parliament and of the Council of December 16, 1996 on the posting of workers in the context of the provision of services
Designation:
(not official) 		Posting Directive
Scope: EEA
Legal matter: Employment Law
Basis: EC Treaty , in particular Article 57 Paragraph 2 and Article 66
Procedure overview: European Commission
European Parliament
IPEX Wiki
Come into effect: February 10, 1997
Last change by: Directive (EU) 2018/957
To be
implemented in national law by: 		December 16, 1999
Implemented by: Germany
Posted Workers Act
Reference: OJ L 18 of 21.1.1997, pp. 1-6
Full text Consolidated version (not official)
basic version
The regulation must have been implemented in national law.
Please note the information on the current version of legal acts of the European Union !

The Directive 96/71 / EC on the posting of workers in the framework of the provision of services (short PWD ) is a directive of the European Parliament and of the Council of 16 December 1996th

Goal setting

The aim of the directive is to create a legal framework for the European internal market in the field of services ; The legal basis is Art. 53 Para. 1, 2nd Alt. and Art. 62 of the Treaty on the Functioning of the European Union (TFEU). The Directive contains rules for the application of provisions in the labor law of the Member States to the employment relationships of workers posted by an employer established in an EU Member State to provide services in another Member State.

While clear labor law relationships prevail in the context of the free movement of workers (namely the labor law of the state in which the employment relationship is established and the work is carried out), the posting of workers in the context of cross-border provision of services removes the spatial unity between the place of temporary provision of work and the territorial scope of the labor law applicable to the employment relationship. This transnationalization justifies the need for European regulation of the posting of workers (recitals 3 to 6 of Directive 96/71 / EC ).

The aim of the directive is to ensure that workers in a member state do not work for a longer period of time whose employment relationships are not subject to the law of that member state:

“Community law does not prevent Member States from applying their laws or the collective agreements concluded by the social partners to any person who, even temporarily, is employed in their territory, even if their employer is located in another Member State. Community law does not prohibit the Member States from ensuring compliance with these provisions by appropriate means. "

- Recital 12, Directive 96/71 / EC

The European Court of Justice (ECJ) had already established this principle in its Rush Portuguesa judgment of March 27, 1990.

content

The central provision of the Posting of Workers Directive is the labor law equality of the workers posted to a country with the normally employed workers there with regard to certain aspects of the working conditions, insofar as they are the subject of legal and administrative regulations or of generally binding collective agreements in the destination country. Art. 3 (1) of Directive 96/71 / EC lists the areas of protection in which the law of the country of destination also applies to posted workers. These are:

a) maximum working hours and minimum rest periods;
b) minimum annual paid vacation ;
c) minimum wage rates including overtime rates; this does not apply to the additional company pension schemes;
d) Conditions for the provision of workers , in particular by temporary employment agencies;
e) occupational safety, health and hygiene;
f) Protective measures in connection with the working and employment conditions of pregnant women and women who have recently given birth, children and young people;
g) Equal treatment for men and women and other non-discrimination provisions.

Art. 3 (1) initially only provides for the Member State to be obliged to implement the construction activities listed in the annex to the directive, but the Member States are free to apply these to other sectors with generally binding collective agreements under Art. 3 (10) Public order regulations with regard to working and employment conditions other than those listed in Art. 3 (1).

Exceptions apply outside of the construction sector for employees who are only sent for a few days to assemble goods delivered by their employer (Art. 3 (2)). The Member States can make further exceptions for workers whose duration does not exceed one month; however, this does not apply to cross-border temporary employment (Art. 3 (3)).

Art. 3 (7) stipulates that Art. 3 (1–6) do not prevent the application of employment and working conditions that are more favorable for employees.

It is noticeable that the catalog of Art. 3 (1) does not include access to a social security system in the target country. For posted workers, the provisions of the country of origin apply during the first 24 months of a posting in accordance with Art. 12 (1) of Regulation (EC) No. 883/2004 on the coordination of social security systems .

effect

In the regulatory areas covered by the Posting of Workers Directive, this creates an area of ​​protection for the autonomy of the EU member states under labor law. The labor law of the member states is thus relieved of the pressure of regime competition “in their own country” that would exist if employees were permanently employed in a state under “non-resident” employment conditions.

In view of the different socio-political traditions and the different levels of protection of the individual states, this is a compromise that tries to meet several requirements:

  • the declared aim of the freedom to provide services ,
  • the right of the member states to autonomously shape labor law, unless there are EU-wide minimum standards, e.g. B. in the area of ​​minimum wage legislation,
  • the differences between the Member States, which make harmonization seem impossible.

Interpretation of the Posting of Workers Directive by the European Court of Justice

The guideline was understood by some member states as allowing the application of complete collective bargaining systems to posting companies, as long as they are generally binding, including regulations on topics that are not listed in the catalog of Art. 3 (1). Luxembourg therefore initially implemented the directive in such a way that the entire generally binding building collective agreement was extended to include posting companies. In some Scandinavian countries that do not have a system for declaring collective agreements generally applicable, such as B. Sweden, according to local tradition, it was left to the trade unions to enforce their usual collective agreements with posting companies.

In the judgments Laval - C 341/05 of December 18, 2007 -, Rüffert - C 346/06 of April 3, 2008 - and Luxembourg - C 319/06 of June 19, 2008 - the ECJ commented on the question of whether the catalog of Art. 3 (1) of the Directive is a final regulation.

He answered this question in the affirmative despite Art. 3 (7) and in the Laval ruling initially limited tariff demands and strike actions by the unions against posting companies to the catalog of Art. 3 (1) and, in the context of this catalog, to what is absolutely necessary for the protection of the employee Minimum size. At the same time, he imposed the observance of a proportionality principle on them for strike measures with regard to permitted collective bargaining items.

In the Rüffert judgment, he forbade the mandatory application of collectively agreed wages above generally binding minimum wages within the framework of state collective bargaining laws.

In the Luxembourg ruling, among other things, he banned Luxembourg from applying an automatic inflation adjustment clause to the wages of posted workers.

These judgments triggered an extensive and sometimes heated debate in many European countries, in which the European Parliament finally participated with the “Andersson Report”. In this report, Parliament took note of the interpretation of the ECJ, but distanced itself in an unusually clear manner from some of the fundamental considerations and interpretations of the ECJ, in particular on the question of the use of more favorable working conditions beyond the catalog of Art. 3 (1) and on the subject trade union rights vis-à-vis posting companies, and called on the Commission and Council to revise the Posting Directive immediately.

The trade unions and some legal scholars have particularly criticized the fact that the ECJ treats them as a member state with regard to their obligations, even though they are not a state but an interest group and without the obligations being opposed to national rights, that the ECJ is unilaterally party to the employers seize, without respecting basic employee rights, to free collective bargaining demands and collective bargaining autonomy, and that finally the Rüffert judgment would give collective bargaining minimum wage companies a competitive advantage at the expense of the collective bargaining companies. It was criticized that the rulings give the freedoms of entrepreneurs in the internal market a higher priority than the basic rights of employees and their trade unions. In response to the judgments, the European Trade Union Confederation (ETUC) and the German Trade Union Confederation DGB demanded an immediate revision of the Posting of Workers Directive and the inclusion of a "social clause" in the European treaties and used the judgments in summer 2009 as an opportunity for mass demonstrations in several European capitals.

In contrast, most employers' associations and a few other legal scholars welcomed the judgments.

Significance of the Posting of Workers Directive in connection with the Bolkestein Directive

In the Posting of Workers Directive, it is not the country of origin principle , which was heavily controversial in the development process of the Bolkestein Directive , but the country of destination principle (see in particular: Destination country principle (EU law) ).

Art. 3 (1) of the Bolkestein Directive provides that the provisions of the Posting of Workers Directive generally take precedence over the Bolkestein Directive.

Reform efforts

The EU member states agreed on a draft of a revised Posting of Workers Directive on October 23, 2017. The advance was supported primarily by France, but also by Belgium, Germany, Luxembourg, the Netherlands and Austria.

The aim of the proposed change is to correct imbalances between Member States and to combat social dumping in order to regulate competition.

From the first day of posting, the principle of “equal pay for equal work in the same place” should apply. At least the local wages are to be paid, including all surcharges (such as vacation and Christmas bonuses ).

Postings should be limited to 12 months, with the possibility of an extension of six months in exceptional cases. In the case of long-term postings, the labor law of the host country should apply. The transport industry should initially remain exempt from the new rules.

In Germany, the Posted Workers Act already largely implements the provisions proposed in the draft.

See also

literature

  • Werner Eichhorst: European social policy between national autonomy and market freedom. Posting of workers in the EU. Campus, Frankfurt am Main 2000.

Web links

Individual evidence

  1. ↑ Rush Portuguesa (ECJ, Case C-113/89)
  2. ↑ "The ECJ and (un) social Europe" criticism is not justified "taz 12.9.2008" , position of the European trade union federation ETUC on the judgments Viking and Laval
  3. ↑ taz archive 9/12/2008 on the Rüffert judgment
  4. ↑ Directive 2006/123 / EC
  5. ↑ Caterina Tani: EU overcomes divisions on posted workers. In: euobserver. Retrieved February 17, 2018 .
  6. ↑ a b Posting of Workers Directive: EU presents plans for equal working conditions. (No longer available online.) TK, November 21, 2017, archived from the original on February 18, 2018 ; accessed on February 17, 2018 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.tk.de
  7. ↑ a b EU: Posting of Workers Directive to be tightened. In: AuA - Labor and Labor Law. Retrieved February 17, 2018 .
  8. ↑ European Posting of Workers Directive 2017: Social Affairs Ministers agree on reform. haufe.de, October 25, 2017, accessed on February 17, 2018 .