Can protection of workers be reconciled with maintaining freedom to provide services? At first sight, there is no clear answer.
The Posting of Workers Directive (96/71/EC) regulates the extent to which a “core of mandatory provisions” of the host Member State applies to posted workers, irrespective of the law applicable to the employment relationship under the Rome I Regulation. On 9 July 2018, Directive (EU) 2018/957 of the European Parliament and of the Council amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services was published in the Official Journal of the EU. According to Art. 3 of the Directive, it must be implemented into national law by 30 July 2020.
According to the Commission proposal, the official main objective of the reform is “the same pay for the same work in the same place”, i.e. applying equal pay conditions within a Member State, irrespective of whether a national or a posted worker is employed. Article 1 of the Directive lays out three objectives: promotion of freedom to provide services; a guarantee of equal conditions of competition; and protection of workers through social convergence.
Posting workers to other countries in the framework of provision of services mainly concerns place-bound activities such as construction work and security services, guarding buildings, personal services such as personal care, and transportation services. In 2016, some 2.3 million workers were posted within the EU. The main country of destination is Germany, while the main country of origin is Poland as well as other Central and Eastern European countries. Since 2010, the number of posted workers has increased many times over.
The main changes concern, in particular, full equal pay for posted workers, the introduction of a maximum duration beyond which all host country legislation applies to a posting, as well as extension of the mandatory application of posting rules in generally binding collective agreements to all sectors of the economy in addition to greater transparency of working and employment conditions.
The amendment has seen a highly critical response from a large number of Member States. In particular, this is due to the fact that although protection of workers is enhanced, posting becomes less attractive for companies. This raises the likelihood of a decrease in the number of postings. As a result, Poland and Hungary have brought an action for annulment before the European Court of Justice.
Author is a German Referendar at the time in bnt Prague office.