Inside the European Commission > some reflections on the posting of workers in the EU

Mr Łukasz Wardyn is legal officer in the Unit ‘Free movement of workers and coordination of social security systems’ of DG Employment, Social Affairs and Inclusion. He took up this responsibility in April. We found him prepared to give us some background information about the EU coordination rules with regard to the posting of workers.

trESS: Mr Wardyn, thanks a lot for your time. How would you assess the importance of the posting of workers within the broad field of EU social security coordination.

Łukasz Wardyn (ŁW): Freedom of movement of workers and services are the founding principles of the European Union. One possible form of this fundamental rights’ application is the concept of "posting". This term applies to those who, employed in one EU Member State, are sent by their employer to carry out work on a temporary basis in another Member State. The guiding principle is that persons to whom the Regulations apply are subject to the legislation of a single Member State only. In the case of employed and self-employed persons the legislation of the Member State where the activity is carried out normally applies, even if they reside on the territory of another Member State. This principle is referred to as "lex loci laboris". However, in some very specific situations, criteria other than the actual place of employment are justified. Such exception from this general rule is provided for a person who is temporarily required to pursuit his activity in another country, i.e. a “posted worker”. The aim of Article 12 of Regulation 883/2004, which regulates “posting”, was to assure that a short working period, not exceeding 24 months, will not result in frequent changes of applicable legislation. Thus, it also helps to reduce red tape by avoiding unnecessary and costly administrative procedures and other complications.

trESS: How has the phenomenon of the posting of workers developed over the last decades? Do you see specific trends?

ŁW: According to the main findings emerging from the 2010-2011 data collection on Portable Documents A1 in 2011, a total of 1.51 million documents were recorded across the EU-27 and Iceland, Liechtenstein and Norway. Of these, around 1.21 million related to postings to specific countries. The remainder of almost 300,000 cases fell into the categories international transport, persons active in two or more Member States or other cases. This represents an increase compared to 2010 (1.33 million, among which 1.06 million related to postings to specific countries) and 2009 (1.27 million and 1 million respectively).

It is worthwhile to mention that in 2011, around 60% of all postings (compared to 63% in 2010) originated in the EU-15 Member States and almost 40% (compared to 37% in 2010) in the EU-12 Member States. Postings originating in EEA-EFTA countries accounted for only 0.2% of all postings. In addition, in 2011 the main sending countries of posted workers were Poland, Germany and France followed by Romania, Hungary, Belgium and Portugal. The main receiving countries were Germany and France followed by the Netherlands, Belgium, Spain, Italy and Austria.

trESS: Would you assess the Regulations’ provisions on the posting of workers as the accurate framework for the accommodation and promotion of the free movement of services or do you still see room for improvement?

ŁW: The new Regulations entered into force only three years ago. There are still, from time to time, challenging aspects to be clarified, also in the field of posting, such as: the relation between the posting provisions and the rules on working in several Member States (what is the applicable legislation for a posted worker who, while being posted, decides to start additional employment in the country to which he or she was posted). However, it has to be underlined that in general terms the posting provisions, from the social security coordination point of view, have so far not caused major difficulties during their implementation, especially looking at the amount of issued A1 documents.

I would like to recall that with the implementation of the new legislation a revised Practical Guide has been prepared and adopted by the Administrative Commission. The Guide is intended to provide, at the various practical and administrative levels involved in implementing specific Community provisions, a valid working instrument to assist institutions, employers and citizens in the area of determining which Member State’s legislation should apply in given circumstances. The first part is devoted only to the posting of workers with many practical examples. Therefore, I warmly recommend to get acquainted with it.

trESS: Next to EU social security coordination law, the posting of workers can also be found in the domains of labour law and tax law. How do you see the relation and interdependence of those – in principle – separate rules? And what about the different concepts of duration of posting in those three areas?

ŁW: It is true that ‘posting’ does not refer only to the social security coordination and the determination of the applicable legislation. It is a very complex concept, which in each of the domains can be applied differently. Just to give you one example: according to the Practical Guide, there are situations in which it is absolutely impossible to apply the provisions on posting such as replacement of posted workers. However, this provision does not limit the free movement of workers or services, as it refers only to e.g. the expiration of the 24-month period, during which a posted worker can still be paying his or her social security contributions to the posting state. Thus, a posted worker can still be immediately replaced by another posted worker as defined by Directive 96/71/EC concerning the posting of workers in the framework of the provision of services. The only difference will be that the newly posted worker will be attached to the social security legislation of the state of work, because the exception of Article 12 of Regulation 883/2004 does not apply to him or her any more.

trESS: Do you see any value in more convergence of the posting concept in those three areas of law?

ŁW: It has to be underlined that as European Union law stands at present, the rules e.g. governing taxation are matters coming within the competence of the Member States. On the other hand, the posting concept is understood differently in each of the areas. The posting provisions of Article 12 of Regulation 883/2004, as already mentioned, determine which legislation is applicable from the social security point of view and avoid frequent changes of applicable legislation. The aim of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services is to guarantee that the rights and working conditions of a posted worker are protected throughout the European Union. Therefore, even if these rules are all dealing with posting, they are related to different concepts, such as the freedom of movement and the freedom to provide service, which have different aims. This also explains the reasons behind these differences in posting concepts.

trESS: Do you experience that there are specific implementation challenges related to Article 16?

ŁW: As just mentioned we are still in the ‘learning and adaptation process’ of the new legal framework. Member States have indicated a need to discuss some challenges related to the process of issuing the Portable Document A1 based on the procedure of Article 16 of Regulation 987/2009. One of the challenges is the verification of facts and documents which are outside of the competent Member State. In addition, it has been reported that employers do not provide sufficient information to employees in order to make sure that the correct legislation will be applicable. Especially, as the employer has other, e.g. economical, interests than the employee. Thus, there could be cases where an employee discovers the applicable legislation only when applying for a benefit. Consequently, even recovery of contributions or benefits can occur.

trESS: To conclude, where does the posting of workers figure in the Commission’s recent reflection process on highly mobile workers?

ŁW: It is true that the Commission is now preparing a paper which will address the social security coverage of highly mobile workers moving within the EU as regards determining the Member States whose social security legislation is applicable. Those concerned in particular are highly mobile workers (such as artists and researchers) for whom geographical mobility is an intrinsic aspect of their work in so far as they work frequently and for short periods in different Member States.

The posting of workers, from the social security point of view, falls outside the scope of the paper on highly mobile workers. The same applies for the 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, currently discussed in the Council and the European Parliament.

trESS: Thank you for your time.

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