2009 - 2014 EUROPEAN PARLIAMENT
Plenary sitting
A7-9999/2013
3.7.2013
***I REPORT
on the 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 (COM(2012)0131 – C7-0086/2012 – 2012/0061(COD))
Committee on Employment and Social Affairs
Rapporteur: Danuta Jazłowiecka
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EN United in diversity EN
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Amendments to a draft act
In amendments by Parliament, amendments to draft acts are highlighted in bold italics. Highlighting in normal italics is an indication for the relevant departments showing parts of the draft act which may require correction when the final text is prepared – for instance, obvious errors or omissions in a language version. Suggested corrections of this kind are subject to the agreement of the departments concerned.
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CONTENTS
Page
DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION ...... 5
EXPLANATORY STATEMENT ...... 56
OPINION OF THE COMMITTEE ON THE INTERNAL MARKET AND CONSUMER PROTECTION ...... 59
OPINION OF THE COMMITTEE ON LEGAL AFFAIRS ...... 100
PROCEDURE ...... 122
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DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION on the 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 (COM(2012)0131 – C7-0086/2012 – 2012/0061(COD))
(Ordinary legislative procedure: first reading)
The European Parliament,
– having regard to the Commission proposal to Parliament and the Council (COM(2012)0131),
– having regard to Article 294(2) and Articles 53(1) and 62 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7-0086/2012),
– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,
– having regard to the opinion of the European Economic and Social Committee of 19 September 20121,
– having regard to Rule 55 of its Rules of Procedure,
– having regard to the report of the Committee on Employment and Social Affairs and the opinions of the Committee on Internal Market and Consumer Protection (A7-0000/2013) and of the Committee on Legal Affairs (A7-0000/2013),
1. Adopts its position at first reading hereinafter set out;
2. Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text;
3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.
1 OJ C351, 15.11.2012, p. 61.
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Amendment 1
Proposal for a directive Citation 1 a (new)
Text proposed by the Commission Amendment
Having regard to the Charter of Fundamental Rights of the European Union,
Amendment 2
Proposal for a directive Recital 2
Text proposed by the Commission Amendment
(2) The free movement of workers gives (2) The freedom to provide services every citizen the right to move freely to includes the right of undertakings to another Member State to work and reside provide services in another Member State, there for that purpose and protects them to which they may send ('post') their own against discrimination as regards workers temporarily to carry out the work employment, remuneration and other necessary to provide these services there. working conditions in comparison to It is necessary for the purpose of the nationals of that Member State. It needs posting of workers to distinguish this to be distinguished from the freedom to freedom from the free movement of provide services, which includes the right workers, which gives every citizen the right of undertakings to provide services in to move freely to another Member State to another Member State, for which they may work and reside there for that purpose send (‘post’) their own workers and protects them against discrimination temporarily to carry out the work as regards employment, remuneration and necessary to provide these services there. other working conditions in comparison to nationals of that Member State.
Amendment 3
Proposal for a directive Recital 3b (new)
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Text proposed by the Commission Amendment
(3b) In order to ensure compliance with Directive 96/71/EC, whilst not putting an unnecessary administrative burden on the service providers, it is essential that the factual elements referred to in the provisions on preventing abuse and circumvention in this Directive are considered to be indicative and non- exhaustive. In particular, there should be no requirement that each element is to be satisfied in every posting case.
Amendment 4
Proposal for a directive Recital 4
Text proposed by the Commission Amendment
(4) In order to prevent, avoid and combat (4) In order to prevent, avoid and combat circumvention and/or abuse of the circumvention and/or abuse of the applicable rules by companies taking applicable rules by companies taking improper or fraudulent advantage of the improper or fraudulent advantage of the freedom to provide services enshrined in freedom to provide services enshrined in the Treaty and/or the application of the Treaty and/or the application of Directive 96/71/EC the implementation Directive 96/71/EC the implementation and monitoring of the notion of posting and monitoring of the notion of posting should be improved. should be improved and more uniform elements, facilitating a common interpretation, should be introduced at Union level. In this context, it is important to underline the importance of monitoring tools to ensure compliance with applicable rules, especially minimum terms and conditions of employment, as well as penalising those who circumvent those rules.
Amendment 5
Proposal for a directive Recital 4 a (new)
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Text proposed by the Commission Amendment
(4a) In the event of non-compliance, for example the bogus posting of a worker, the rules of Regulation (EC) no 593/2008 on the law applicable to contractual obligations (Rome I Regulation) apply. When determining which law is applicable under Rome I, account should be taken of those provisions which are most favourable to the worker.
Amendment 6
Proposal for a directive Recital 4 b (new)
Text proposed by the Commission Amendment
(4b) All measures introduced by this Directive should be justified, proportionate and non-discriminatory, so as not to create administrative burdens or to limit the potential that companies, in particular small and medium enterprises, have to create new jobs, while protecting posted workers.
Amendment 7
Proposal for a directive Recital 5
Text proposed by the Commission Amendment
(5) Therefore, the constituent factual (5) Therefore, the constituent factual elements characterising the temporary elements characterising the temporary nature inherent to the notion of posting, nature inherent to the notion of posting, which implies that the employer should be which implies that the employer should be genuinely established in the Member State genuinely established in the Member State from which the posting takes place, as well from which the posting takes place, as well as the relationship between Directive as the relationship between Directive 96/71/EC and Regulation (EC) No 96/71/EC and Regulation (EC) No 593/2008 on the law applicable to 593/2008 on the law applicable to contractual obligations (hereinafter the contractual obligations (hereinafter the
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‘Rome I Regulation’) need to be further ‘Rome I Regulation’) need to be further clarified. clarified in order to ensure the widest possible implementation of that Directive
Amendment 8
Proposal for a directive Recital 5 a (new)
Text proposed by the Commission Amendment
(5a) The European Parliament and the Council should provide the Commission, as necessary, with support, oversight and feedback concerning the implementation of this Directive.
Amendment 9
Proposal for a directive Recital 6
Text proposed by the Commission Amendment
(6) As is the case with Directive 96/71/EC, (6) As is the case with Directive 96/71/EC, this Directive should not prejudice the this Directive should not prejudice the application of the law which, under application of Regulation No 883/2004 of Article 8 of the Rome I Regulation, the European Parliament and of the applies to individual employment Council of 29 April 2004 on the contracts, or the application of Regulation coordination of social security systems, No 883/2004 of the European Parliament Regulation No 987/2009 of the European and of the Council of 29 April 2004 on the Parliament and of the Council of 16 coordination of social security systems and September 2009 laying down the procedure Regulation No 987/2009 of the European for implementing Regulation (EC) No Parliament and of the Council of 16 883/2004 on the coordination of social September 2009 laying down the procedure security systems, of Regulation (EU) No for implementing Regulation (EC) No 465/2012 of the European Parliament and 883/2004 on the coordination of social of the Council of 22 May 2012 or of security systems. Articles 45 and 46 TFEU. The provisions of this Directive should be without prejudice to the provision, by Member States, of more favourable conditions for posted workers.
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Amendment 10
Proposal for a directive Recital 7 a (new)
Text proposed by the Commission Amendment
(7a) Member States should ensure that necessary resources are available to make the checks efficient and to enable requests for information, as provided for in this Directive, from the host Member State or the Member State of establishment to be responded to without undue delay.
Amendment 11
Proposal for a directive Recital 8
Text proposed by the Commission Amendment
(8) Trade unions play an important role in (8) In many Member States, the social the context of the posting of workers for partners play an important role in the the provision of services since social context of the posting of workers for the partners may, in accordance with national provision of services since they may, in law and/or practice, determine the different accordance with national law and/or levels (alternatively or simultaneously) of practice, determine the different levels the applicable minimum rates of pay. (alternatively or simultaneously) of the applicable minimum rates of pay. With this right should also come duty, on the part of the social partners, to communicate and inform about those rates.
Amendment 12
Proposal for a directive Recital 8 a (new)
Text proposed by the Commission Amendment
(8a) The supervisory authorities in the Member States have the most important part to play in enforcing Directive 96/71/EC. Undeclared employment can
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only be contained by means of effective and efficient checks on compliance with minimum terms and conditions of employment. Monitoring by Member States should not be hampered in any way.
Amendment 13
Proposal for a directive Recital 10 Text proposed by the Commission Amendment
(10) Adequate and effective (10) Adequate and effective implementation and enforcement are key implementation and enforcement are key elements in protecting the rights of posted elements in protecting the rights of posted workers, whereas poor enforcement workers and in ensuring the right of undermines the effectiveness of the Union undertakings to provide services in rules applicable in this area. Close another Member State, whereas poor cooperation between the Commission and enforcement undermines the effectiveness the Member States is therefore essential, of the Union rules applicable in this area. It without neglecting the important role of is therefore essential to establish and labour inspectorates and the social partners maintain close cooperation between in this respect. Member States, the Commission and relevant national, regional and local authorities, while underlining the important role of labour inspectorates and the social partners in this respect.
Amendment 14
Proposal for a directive Recital 10 a (new)
Text proposed by the Commission Amendment
(10a) Effective monitoring procedures in Member States are essential and therefore they should be established throughout Europe. Member States should provide adequate funding to enable competent authorities to detect and combat circumvention of applicable rules. Member States are entitled to perform effective, regular and flexible inspections necessary to ensure full compliance with
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Directive 96/71/EC and the provisions of this Directive provided they are justified, proportionate and non- discriminatory.
Amendment 15
Proposal for a directive Recital 11
Text proposed by the Commission Amendment
(11) Mutual trust, a spirit of cooperation, (11) Mutual trust, a spirit of cooperation, continuous dialogue and mutual continuous dialogue and mutual understanding are essential in this respect. understanding are essential in this respect. Insufficient cooperation between Member States remains a problem on enforcing Directive 96/71/EC and hinders the creation of a level playing field for companies and the protection of workers. Failure of Member States to fully comply with this Directive should be communicated to the European Commission which will decide whether to initiate infringement proceedings in accordance with the Treaty.
Amendment 16
Proposal for a directive Recital 12
(12) In order to facilitate better and more (12) In order to facilitate better and more uniform application of Directive 96/71/EC, uniform application of Directive 96/71/EC, it is appropriate to provide for an electronic it is appropriate to provide for an electronic information exchange system to facilitate information exchange system to facilitate administrative cooperation and competent administrative cooperation and competent authorities should use the Internal Market authorities should use the Internal Market Information System (IMI) as much as Information System (IMI) as much as possible. However, this should not prevent possible together with other established the application of bilateral agreements or means of cooperation such as bilateral arrangements concerning administrative agreements or arrangements. cooperation.
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Amendment 17
Proposal for a directive Recital 13
Text proposed by the Commission Amendment
(13) Administrative cooperation and (13) Administrative cooperation and mutual assistance between the Member prompt and far-reaching mutual States should comply with the rules on the assistance between the Member States protection of personal data laid down in should comply with the rules on the Directive 95/46/EC, and with regard to protection of personal data laid down in administrative cooperation through the Directive 95/46/EC, and with regard to Internal Market Information System (IMI), administrative cooperation through the it should also comply with Regulation (EC) Internal Market Information System (IMI), No 45/2001 of the European Parliament it should also comply with Regulation (EC) and of the Council of 18 December 2000 No 45/2001 of the European Parliament on the protection of individuals with regard and of the Council of 18 December 2000 to the processing of personal data by the on the protection of individuals with regard EU institutions and bodies and on the free to the processing of personal data by the movement of such data and Regulation EU institutions and bodies and on the free (EU) xxx (IMI Regulation) on movement of such data and Regulation administrative cooperation through the (EU) xxx (IMI Regulation) on Internal Market Information System (IMI). administrative cooperation through the Internal Market Information System (IMI) .
Amendment 18
Proposal for a directive Recital 13 a (new)
Text proposed by the Commission Amendment
(13a) It is a matter of concern that there are still many difficulties for Member States to recover cross-border administrative fines and penalties and that the mutual recognition of administrative fines and penalties needs to be addressed in future legislation.
Amendment 19
Proposal for a directive Recital 14
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Text proposed by the Commission Amendment
(14) Member States obligations to make (14) Difficulties in accessing information information on terms and conditions of on terms and conditions of employment employment generally available and to are very often the reason why existing provide effective access to it, not only to rules are not applied by service providers. service providers from other Member Member States should therefore ensure States, but also to the posted workers that such information is made generally concerned, should be further concretised.. available, free of charge and that effective access to it is provided, not only to service providers from other Member States, but also to the posted workers concerned. Member States should equally establish contact points to enable workers and service providers to exercise their right to information, advice and support.
Amendment 20
Proposal for a directive Recital 14 a (new)
Text proposed by the Commission Amendment
(14a) Where terms and conditions of employment are laid down in collective agreements which have been declared to be universally applicable, Member States should ensure that those collective agreements are published and accessible.
Amendment 21
Proposal for a directive Recital 15
Text proposed by the Commission Amendment
(15) Member States should determine the (15) In order to improve accessibility of way in which providers and recipients are information, a single source of provided with easily accessible relevant information should be established in information, preferably by making this Member States. Each Member State information accessible through a website, should establish a single official national following web accessibility standards. website, following web accessibility Such websites should include in particular standards, and other suitable means of
PE498.030v02-00 14/120 RR\498030EN.doc EN any website put in place pursuant to EU communication. Such website should legislation with a view to promote include in particular information on terms entrepreneurship and/or the development and conditions of employment applicable of the cross-border of services. to posted workers in the national territory as well as links to any website put in place pursuant to Union legislation with a view to promote entrepreneurship and/or the development of the cross-border provision of services.
Justification
The current situation in which terms and conditions of employment are to be found through different sources, leads to poor awareness of rules and in consequence, their non-application. Establishing a single source of information should contribute to improving its accessibility for both - employers and employees.
Amendment 22
Proposal for a directive Recital 16
Text proposed by the Commission Amendment
(16) In order to ensure the correct (16) In order to ensure the correct application of, and to monitor compliance application of, and to monitor compliance with, the substantive rules on the terms and with, the substantive rules on the terms and conditions of employment to be respected conditions of employment to be respected with regard to posted workers, Member with regard to posted workers, Member States should apply only certain control States should apply a core set of control measures or administrative formalities to measures and administrative formalities to undertakings posting workers for the undertakings posting workers for the provision of services. Such measures and provision of services that effectively requirements may only be imposed prevent and combat fraud and unfair provided that the competent authorities competition. Member States may impose cannot carry out their supervisory task any additional administrative effectively without the requested requirements and control measures information and the necessary deemed to be necessary in order to ensure information cannot be obtained easily the effective monitoring of and from the employer of posted workers or compliance with the obligations set out in the authorities in the Member State of Directive 96/71/EC and in this Directive. establishment of the service provider within a reasonable delay and/or less restrictive measures would not ensure that the objectives of the national controls measures deemed necessary are attained.
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Amendment 23
Proposal for a directive Recital 17
Text proposed by the Commission Amendment
(17) A comprehensive system of preventive (17) In order to enforce effectively the and control measures, together with terms and conditions of employment all deterrent penalties to identify and prevent forms of fraudulent use of self- employed individual instances of bogus self- status to evade provisions of Directive employed, should contribute to combat 96/71/EC should be prohibited through a concealed employment effectively comprehensive system of preventive and control measures, together with deterrent penalties. Member States should ensure that they have mechanisms in place to identify cases of falsely self- employed.
Amendment 24
Proposal for a directive Recital 17 a (new)
Text proposed by the Commission Amendment
(17a) In order to enforce effectively the terms and conditions of employment it is also necessary to counter bogus self- employment. This is of decisive importance in preventing possible abuses. The responsible authority should have the necessary resources to establish whether workers who are ostensibly self-employed workers are not in fact to a large extent repeatedly working for the same employers or bound to them by some form of hierarchical relationship.
Amendment 25
Proposal for a directive Recital 19
Text proposed by the Commission Amendment
(19) National labour inspectorates, social (19) National labour inspectorates, social
PE498.030v02-00 16/120 RR\498030EN.doc EN partners and other monitoring bodies are of partners and other monitoring bodies are of paramount importance in this respect and paramount importance in this respect and should continue to play a crucial role. should continue to play a crucial role. The work of the supervisory authority should not be hampered in any way whatsoever.
Amendment 26
Proposal for a directive Recital 20
Text proposed by the Commission Amendment
(20) In order to cope in a flexible way with (20) In order to cope in a flexible way with the diversity of labour markets and the diversity of labour markets and industrial relations systems, by way of industrial relations systems, the social exception, other actors and/or bodies may partners, and/or by way of exception other monitor certain terms and conditions of national bodies, may monitor certain terms employment of posted workers, provided and conditions of employment of posted these offer the persons concerned an workers, provided these offer the persons equivalent degree of protection and concerned an equivalent degree of exercise their monitoring in a non- protection and exercise their monitoring in discriminatory and objective manner. a non-discriminatory and objective manner.
Amendment 27
Proposal for a directive Recital 21
Text proposed by the Commission Amendment
(21) Member States' inspection authorities (21) Member States' inspection authorities and other relevant monitoring and and other relevant national monitoring and enforcement bodies should avail enforcement bodies should avail themselves of the cooperation and themselves of the cooperation and exchange of information provided for in exchange of information provided for in the relevant legislation in order to verify the relevant legislation in order to verify whether the rules applicable to posted whether the rules applicable to posted workers have been respected. workers have been respected.
Amendment 28
Proposal for a directive Recital 22
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Text proposed by the Commission Amendment
(22) Member States are particularly (22) Member States are particularly encouraged to introduce a more integrated encouraged to introduce a more integrated approach to labour inspections. The need to approach to labour inspections. The need to develop common standards in order to develop common standards in order to establish comparable methods, practices establish comparable methods, practices and minimum standards at Union level and minimum standards at Union level should equally be examined. should equally be examined. However, the development of common standards must not result in Member States being hampered in their efforts to combat undeclared employment effectively.
Amendment 29
Proposal for a directive Recital 23
Text proposed by the Commission Amendment
(23) To facilitate the enforcement of (23) To facilitate the enforcement of Directive 96/71/EC and ensure more Directive 96/71/EC and ensure more effective application of it, effective effective application of it, effective complaint mechanisms should exist complaint mechanisms should exist through which posted workers may lodge through which posted workers may lodge complaints or engage in proceedings either complaints or engage in proceedings either directly or through relevant designated directly or, subject to the approval of those third parties, such as trade unions or other posted workers, through relevant associations as well as common institutions designated third parties, such as trade of social partners. This should be without unions or other associations as well as prejudice to national rules of procedure common institutions of social partners. concerning representation and defence This should be without prejudice to before the courts. national rules of procedure concerning representation and defence before the courts.
Justification
It is important to underline that third parties do not have the right to engage in proceedings on behalf of the posted workers only with their approval.
Amendment 30
Proposal for a directive
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Recital 24
Text proposed by the Commission Amendment
(24) In view of the prevalence of deleted subcontracting in the construction sector, and in order to protect posted workers‘ rights, it is necessary to ensure that in such sector at least the contractor of which the employer is a direct subcontractor can be held liable to pay to posted workers the net minimum rates of pay due, any back-payments of outstanding remuneration and/or contributions due to common funds or institutions of social partners regulated by law or collective agreement in so far as these are covered by Article 3 (1) of Directive 96/71/EC in addition to or in place of the employer. The contractor shall not be held liable if he/she has undertaken due diligence. The latter may imply preventive measures concerning proof provided by the subcontractor, including where relevant based upon information emanating from national authorities.
Amendment 31
Proposal for a directive Recital 25
Text proposed by the Commission Amendment
(25) In specific cases, other contractors deleted may, in accordance with national law and practice, be also held liable for failure to comply with the obligations under this Directive, or their liability may be limited, after consultation of the social partners at national or sectoral level.
Amendment 32
Proposal for a directive
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Recital 26
Text proposed by the Commission Amendment
(26) The obligation to impose a liability deleted requirement on the contractor where the direct subcontractor is a service provider, established in another Member State, posting workers is justified in the overriding public interest of the social protection of workers. Such posted workers may not be in the same situation as workers employed by a direct subcontractor established in the Member State of establishment of the contractor with regard to the possibility to claim outstanding pay or refunds of taxes or social security contributions unduly withheld.
Amendment 33
Proposal for a directive Recital 27
Text proposed by the Commission Amendment
(27) The disparities between the systems deleted of the Member States for enforcing imposed administrative fines and/or penalties in cross-border situations are prejudicial to the proper functioning of the internal market and risk making it very difficult, if not impossible, to ensure that posted workers enjoy an equivalent level of protection throughout the Union.
Amendment 34
Proposal for a directive Recital 28
Text proposed by the Commission Amendment
(28) Effective enforcement of the (28) Effective enforcement of the substantive rules governing the posting of substantive rules governing the posting of
PE498.030v02-00 20/120 RR\498030EN.doc EN workers for the provision of services workers for the provision of services should be ensured by specific action should be ensured by specific action focusing on the cross-border enforcement focusing on the cross-border enforcement of imposed administrative fines and of imposed financial administrative penalties. Approximation of the legislation penalties and/ or fines. Approximation of of the Member States in this field is the legislation of the Member States in this therefore an essential prerequisite in order field is therefore an essential prerequisite to ensure a higher, more equivalent and in order to ensure a higher, more comparable level of protection necessary equivalent and comparable level of for the proper functioning of the internal protection necessary for the proper market. functioning of the internal market.
Amendment 35
Proposal for a directive Recital 28 a (new)
Text proposed by the Commission Amendment
(28a) The disparities between the systems of the Member States for enforcing in cross-border situations administrative fines or penalties imposed are prejudicial to the proper functioning of the internal market. The approximation of the legislation of Member States in this field is therefore an essential prerequisite in order to ensure a higher, more equivalent and comparable level of obedience of law.
Justification
The main aim of penalties and fines imposed through their dissuasive character is to guarantee the respect for law (equivalent level of protection of workers is a secondary and indirect result).
Amendment 36
Proposal for a directive Recital 29
Text proposed by the Commission Amendment
(29) The adoption of common rules for (29) The adoption of common rules for providing mutual assistance and support providing mutual assistance and support for enforcement measures and the for enforcement measures and the
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associated costs, as well as the adoption of associated costs, as well as the adoption of uniform requirements for the notification uniform requirements for the notification of decisions relating to administrative of decisions relating to administrative penalties and fines imposed, should resolve penalties and fines imposed with regard to a number of practical cross-border posting of workers situations in enforcement problems and guarantee better accordance with this Directive and with communication and better enforcement of Directive 96/71, should resolve a number such decisions emanating from another of practical cross-border enforcement Member State. problems and guarantee better communication and better enforcement of such decisions emanating from another Member State.
Amendment 37
Proposal for a directive Recital 30
Text proposed by the Commission Amendment
(30) Notwithstanding the establishment of (30) Notwithstanding the establishment of more uniform rules with respect to the some more uniform rules with respect to cross-border enforcement of penalties and the cross-border enforcement of penalties fines and the need for more common and fines and the need to make the follow- criteria for follow-up procedures in the up procedures more effective in the event event of the non-payment of these they of the non-payment of these, they should should not affect the Member States‘ not affect the Member States' competences competences to determine their system of to determine their system of penalties, penalties, sanctions and fines or the sanctions and fines or the recovery recovery measures available under their measures available under their internal internal legislation. legislation.
Justification
Chapter VI does not create a more uniform system but introduces only some approximations aiming at making the cross border enforcement of penalties and fines possible and effective even under different national provisions.
Amendment 38
Proposal for a directive Article 1
Text proposed by the Commission Amendment
1. This Directive establishes a general 1. This Directive establishes a set of
PE498.030v02-00 22/120 RR\498030EN.doc EN common framework of appropriate specific provisions, measures and control provisions, measures and control mechanisms to enable Member States to mechanisms necessary for better and more ensure better and more uniform uniform implementation, application and implementation, application and enforcement in practice of Directive enforcement in practice of Directive 96/71/EC, including measures to prevent 96/71/EC, including measures to prevent and sanction any abuse and circumvention and sanction any abuse and circumvention of the applicable rules. of the applicable rules and is without prejudice to the scope of Directive 96/71/EC. This Directive aims to guarantee respect This Directive aims to guarantee respect for an appropriate level of minimum for an appropriate level of protection of the protection of the rights of posted workers rights of posted workers for the cross- for the cross-border provision of services, border provision of services, especially the while facilitating the exercise of the enforcement of the terms and conditions freedom to provide services for service of employment that apply in the place providers and promoting fair competition where the service is to be performed in between service providers., accordance with Article 3 of Directive 96/71/EC and to support the functioning of the internal market while facilitating the exercise of the freedom to provide services for service providers and promoting fair competition between service providers. 2. This Directive shall not affect in any 2. This Directive shall not affect in any way the exercise of fundamental rights as way the exercise of fundamental rights as recognised in Member States and by recognised in Member States and at Union Union law, including the right or freedom and, where appropriate, at international to strike or to take other action covered by level, including the right or freedom to the specific industrial relations systems in strike or to take other action covered by the Member States, in accordance with specific industrial relations systems in national law and practices. Nor does it Member States, in accordance with affect the right to negotiate, conclude and national law and practices. Nor does it enforce collective agreements and to take affect the right to negotiate, conclude and collective action in accordance with enforce collective agreements and to take national law and practices. collective action in accordance with national law and practices.
Amendment 39
Proposal for a directive Article 2 – paragraph 1 – point a
Text proposed by the Commission Amendment
(a) 'competent authority' means an (a) 'competent authority' means authorities
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authority designated by a Member State to or bodies, including the liaison offices perform functions under this Directive; under Article 4 of Directive 96/71/EC, designated by a Member State and entrusted with the performance of public functions under this Directive and under Directive 96/71/EC;
Amendment 40
Proposal for a directive Article 2 – paragraph 1 – point b
Text proposed by the Commission Amendment
(b) ‘requesting authority’ means the (b) 'requesting authority' means the competent authority of a Member State competent authority of a Member State which makes a request for assistance, which makes a request for assistance, information, notification or recovery information, notification or recovery concerning a penalty or fine as referred to concerning a penalty or fine, as referred to in Chapter V; in Chapter VI;
Justification
The cross-border enforcement is regulated in Chapter VI (not in Chapter V).
Amendment 41
Proposal for a directive Article 2 – paragraph 1 – point c
Text proposed by the Commission Amendment
(c) ‘requested authority’ means the (c) ‘requested authority' means the competent authority of a Member State to competent authority of a Member State to which a request for assistance, information, which a request for assistance, information, notification or recovery is made. notification or recovery is made, as referred to in Chapter VI.
Justification
It needed further clarification on which authority is intended.
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Amendment 42
Proposal for a directive Article 3
Text proposed by the Commission Amendment
Preventing abuse and circumvention Set of enforcement provisions to prevent abuse and circumvention 1. For the purpose of implementing, applying and enforcing Directive 96/71/EC, the competent authorities shall make an overall assessment of all factual elements that are deemed to be necessary, including, in particular, those set out in paragraphs 2 and 3 of this Article. Those elements are intended to assist competent authorities when carrying out checks and controls and where they have reason to believe that a worker may not qualify as a posted worker under Directive 96/71/EC. These elements are indicative factors in the overall assessment to be made and therefore shall not be considered in isolation. Those elements shall be adapted to each specific case and shall take account of the specificities of the situation and the nature of the activities. Failure to satisfy one or more of these elements shall not automatically preclude a situation from being a posting; however it may be used by competent authorities to assist them when assessing, under paragraphs 2 and 3, whether the posting is genuine. 1. For the purpose of implementing, 2. In order to determine whether an applying and enforcing Directive undertaking genuinely performs activities, 96/71/EC the competent authorities shall other than purely internal management take into account factual elements and/ or administrative activities, characterising the activities carried out by competent authorities shall make an an undertaking in the State in which it is overall assessment of all factual elements established in order to determine whether characterising the activities carried out by it genuinely performs substantial an undertaking in the Member State of activities, other than purely internal establishment and, where necessary, in management and/or administrative the host Member State. Such elements activities. Such elements may include: may include in particular: (a) the place where the undertaking has its (a) the place where the undertaking has its registered office and administration, uses registered office and administration, uses
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office space, pays taxes, has a professional office space, pays taxes and social security licence or is registered with the chambers contributions and, where applicable, of commerce or professional bodies, according to national law has a professional licence or is registered with the chambers of commerce or professional bodies, (b) the place where posted workers are (b) the place where posted workers are recruited, recruited and from which they are posted, (c) the law applicable to the contracts (c) the law applicable to the contracts concluded by the undertaking with its concluded by the undertaking with its workers, on the one hand, and with its workers, on the one hand, and with its clients, on the other hand, clients, on the other hand, (d) the place where the undertaking (d) the place where the undertaking performs its substantial business activity performs its business activity the and where it employs administrative staff, assessment of which, in a wider time- frame, is not limited to purely internal management and/or administrative activities, where it employs administrative staff and in which sector the posted worker is employed, (e) the abnormally limited number of (e) the number of contracts performed contracts performed and/or size of turnover and/or the size of the turnover realised in realised in the Member State of the Member State of establishment, taking establishment. into account the specific situation of, inter alia, newly established undertakings and SMEs, as well as the differences in the purchasing power of currencies in different Member States; The assessment of these elements shall be adapted to each specific case and take account of the nature of the activities carried out by the undertaking in the Member State in which it is established. 2. In order to assess whether a posted 3. In order to assess whether a posted worker temporarily carries out his or her worker temporarily carries out his or her work in a Member State other than the one work in a Member State other than the one in which he or she normally works, all in which he or she normally works, all factual elements characterising such work factual elements characterising such work and the situation of the worker shall be and the situation of the worker shall be examined. examined. Such elements may include: Such elements may include in particular : (a) the work is carried out for a limited (a) the work is carried out for a limited period of time in another Member State; period of time in another Member State; the duration of the posting shall be
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calculated in accordance with Article 3(6) of Directive 96/71/EC, (b) the posting takes place to a Member (b) the posting takes place to a Member State other than the one in or from which State other than the one in or from which the posted worker habitually carries out his the posted worker habitually carries out his or her work according to Regulation (EC) or her work according to Regulation (EC) No 593/2008 and/or the Rome Convention; No 593/2008 and/or the Rome Convention, (c) the posted worker returns or is expected (c) the posted worker returns or is expected to resume working to the Member State to resume working to the Member State from which he/she is posted after from which he/she is posted after completion of the work or the provision of completion of the work or the provision of services for which he or she was posted; services for which he or she was posted, (d) travel, board and (d) travel, board and lodging/accommodation is provided or lodging/accommodation is provided or reimbursed by the employer who posts the reimbursed by the employer who posts the worker, and if so, how this is done; as well worker; if so, the method of as reimbursement shall be included, (e) any repeated previous periods during (e) any repeated previous periods during which the post was filled by the same or which the post was filled by the same or another (posted) worker; another (posted) worker; or (f) possession of a valid A1 form, issued in respect of the posted worker. All the factual elements enumerated above are indicative factors in the overall assessment to be made and may not therefore be considered in isolation. The criteria shall be adapted to each specific case and take account of the specificities of the situation. 3a. Member States may apply additional elements to be verified by the competent authority provided that they are justified, proportionate and non-discriminatory. Member States shall without delay inform the Commission of any additional elements and shall make them available to the public on a single national website in a precise, clear and accessible way. The Commission shall communicate additional elements to the competent authorities in all Member States. 3b. Member States shall ensure, in accordance with their national law and practice, that posted workers are not
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falsely declared as self- employed.
Amendment 43
Proposal for a directive Article 3 – paragraph 2 a (new)
Text proposed by the Commission Amendment
2a. Within three years after …*, the necessity and appropriateness of the elements referred to in paragraphs 2 and 3 of this Article shall be reviewed in the light of defining possible new elements to be taken into account in order to determine whether the undertaking is genuine and a posted worker temporarily carries out his or her work, and, where appropriate, a proposal shall be submitted to the European Parliament and to the Council for any necessary amendments. ______* OJ please insert the date two years after the entry into force of this Directive.
Amendment 44
Proposal for a directive Article 3 – paragraph 3 – subparagraph 2 (new)
Text proposed by the Commission Amendment
When verifying the self- employed status of a person in the host Member State, the following elements may in particular be taken into account by the competent authorities: (a) Fulfilment of business requirements in the Member State of establishment such as registration as self- employed, maintenance of an office, payment of taxes, possession of a VAT number, registration with chambers of commerce; (b)Remuneration, the existence of a
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relationship of subordination between a self- employed person and an undertaking and the existence of financial responsibility for the undertaking's results; (c) Self- employment activities before moving to the host Member State.
Amendment 45
Proposal for a directive Article 3 a (new)
Text proposed by the Commission Amendment
3a. If the competent authority concludes, on the basis of factual elements listed in paragraphs 2 and 3 of Article 3, that there is no genuine posting situation, the terms and conditions of employment applicable to the worker shall be those established by the law determined in accordance with the rules of Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I Regulation). When determining which law is applicable under Rome I account shall be taken of the provisions which are most favourable to the worker.
Amendment 46
Proposal for a directive Article 4
Text proposed by the Commission Amendment
Role of liaison offices Competent authorities and liaison offices For the purposes of this Directive, Member For the purposes of this Directive, Member States shall, in accordance with national States shall, in accordance with national legislation and/or practice, designate one or legislation and/or practice, designate one or more competent authorities, which may more competent authorities, which may include the liaison office(s) referred to in include the liaison office(s) referred to in Article 4 of Directive 96/71/EC. Article 4 of Directive 96/71/EC. The liaison office shall provide information on
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terms and conditions of employment and employment rules. The liaison office may also monitor the application of those rules. Contact details of the competent authorities Contact details of the competent authorities shall be communicated to the Commission and liaison offices shall be communicated and the other Member States. The to the Commission and the other Member Commission shall publish and regularly States and shall be made available to the update the list of the competent authorities public. The Commission shall publish and and liaison offices. regularly update the list of the competent authorities and liaison offices.
Amendment 47
Proposal for a directive Article 5
Text proposed by the Commission Amendment
1. Member States shall take the appropriate 1. Member States shall take the appropriate measures to ensure that the information on measures to ensure that the information on the terms and conditions of employment the terms and conditions of employment referred to in Article 3 of Directive referred to in Article 3 of Directive 96/71/EC which are to be applied and 96/71/EC which are to be applied and complied with by service providers are complied with by service providers are made generally available in a clear, made generally available free of charge in comprehensive and easily accessible way a clear, transparent, comprehensive and at a distance and by electronic means, in easily accessible way at a distance and by formats and by web standards that ensure electronic means, in formats and by web access to persons with disabilities and to standards that ensure access to persons ensure that the liaison offices or the other with disabilities and to ensure that the competent national bodies referred to in liaison offices or the other competent Article 4 of Directive 96/71/EC are in a national bodies referred to in Article 4 of position to carry out their tasks effectively. Directive 96/71/EC are in a position to carry out their tasks effectively. 2. In order to bring about further 2. In order to bring about further improvements with respect to access to improvements with respect to access to information, member States shall: information, Member States shall: (a) indicate clearly, in a detailed and user (a) indicate clearly, in a detailed and user- friendly manner and accessible format on friendly manner and in an accessible national websites which terms and format on a single official national website conditions of employment and/or which and by other suitable means, which terms parts of their (national and/or regional) and conditions of employment and/or legislation have to be applied to workers which parts of their (national and/or posted to their territory; regional) legislation have to be applied to
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workers posted to their territory; (b) take the necessary measures to make (b) take the necessary measures to make generally available on internet sites generally available on the single official information on which collective national website and by other suitable agreements are applicable (and to whom), means information on which collective and which terms and conditions of agreements are applicable (and to whom), employment have to be applied by service and which terms and conditions of providers from other Member States in employment have to be applied by service accordance with Directive 96/71/EC, providers from other Member States in whereby, where possible, links to existing accordance with Directive 96/71/EC, internet sites and other contact points, in whereby, where possible, links to existing particular the relevant social partners, shall internet sites and other contact points, in be provided; particular the relevant social partners, shall be provided; (c) make the information available to (c) make the information available to workers and service providers in workers and service providers free of languages other than the national charge in English and the national language(s) of the country in which the language of the Member State of origin of services are provided, if possible in the worker and service provider or upon summarised leaflet form indicating the request in other official languages of the main labour conditions applicable and Union, and not only in the national upon requests in formats accessible to language(s) of the country in which the persons with disabilities; services are provided, if possible in summarised leaflet form indicating the main labour conditions applicable, describing the procedures to lodge complaints and judicial proceedings as well as sanctions applicable in case of non-compliance in formats accessible to persons with disabilities; further detailed information on labour and social conditions applicable to posted workers, including occupational health and safety, shall be made easily available, free of charge, by different means of communication including contact points; (d) improve the accessibility of the (d) improve the relevance, accessibility information and clarity of the information and clarity of the information, especially provided on national websites; that provided on a single official national website, as referred to in point (a); (e) indicate, if possible, a contact person at (e) indicate a contact person at the liaison the liaison office in charge of dealing with office in charge of dealing with requests requests for information; for information and take measures to make necessary information available for the posting companies and posted workers;
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(f) keep the information provided for in the (f) keep the information provided for in the country fishes up to date. country fiches up to date. 3. The Commission shall continue to 3. The Commission shall continue to support the Member States in this area. support the Member States in this area. 4. Where, in accordance with national law, 4. Where, in accordance with national law, traditions and practices, the terms and traditions and practices including respect conditions of employment referred to in for the autonomy of social partners, the Article 3 of Directive 96/71/EC are laid terms and conditions of employment down in collective agreements in referred to in Article 3 of Directive accordance with article 3 paragraph 1 and 96/71/EC are laid down in collective 8 of that Directive, Member States should agreements in accordance with article 3, ensure that the social partners shall paragraphs 1 and 8 of that Directive, identify these and make the relevant Member States shall ensure that the social information, in particular concerning the partners identify these and make available different minimum rates of pay and their the relevant information, concerning the constituent elements, the method used to different minimum rates of pay and their calculate the remuneration due and the constituent elements, the method used to qualifying criteria for classification in the calculate the remuneration and the different wage categories, available in an qualifying criteria for classification in the accessible and transparent way for service different wage categories. The terms and providers from other Member States and conditions of employment shall be made posted workers. available in an accessible and transparent way for service providers from other Member States who post workers and for posted workers. 4a. Posted workers shall have the right to receive from the host Member State information on the applicable terms and conditions of employment. Member States shall establish contact points or indicate other bodies or authorities to which workers and undertakings can turn for information, advice and support concerning their rights and obligations. This applies both to the host Member States and Member States of establishment. The Commission and Member States shall ensure adequate support for relevant initiatives of the social partners at the Union and national level that aimed to inform undertakings and workers on the applicable terms and conditions laid down in this Directive and in Directive 96/71/EC.
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Amendment 48
Proposal for a directive Article 6
Text proposed by the Commission Amendment
1. Member States shall work in close 1. Member States shall work in close cooperation and provide each other mutual cooperation and provide each other mutual assistance in order to facilitate the assistance without delay in order to implementation, application and facilitate the implementation, application enforcement in practice of this Directive. and enforcement in practice of this Directive. 2. The cooperation of the Member States 2. The cooperation of the Member States shall in particular consist in replying to shall in particular consist in replying reasoned requests for information and to without delay to reasoned requests for carry out checks, inspections and information and to carry out checks, investigations from competent authorities inspections and investigations from with respect to the situations of posting competent authorities with respect to the referred to in Article 1 (3) of Directive situations of posting referred to in Article 1 96/71/EC, including investigation of any (3) of Directive 96/71/EC and any relevant abuses of applicable rules on the posting of articles of this Directive, including workers or possible cases of unlawful investigation of any abuses of applicable transnational activities. rules on the posting of workers and initiating appropriate actions in accordance with national laws and practices and with this Directive. 3. For the purpose of responding to a 3. For the purpose of responding to a request for assistance from competent request for assistance from competent authorities in another Member State, authorities in another Member State, Member States shall ensure that service Member States shall ensure that service providers established in their territory providers established in their territory supply their competent authorities with all supply their competent authorities without the information necessary for supervising delay with all the information necessary for their activities in compliance with their supervising their activities in compliance national laws. with their national laws and Directive 96/71/EC. Where service providers fail to provide such information, appropriate action shall be initiated by the relevant competent authorities. 4. In the event of difficulty in meeting a 4. In the event of difficulty in meeting a request for information or in carrying out request for information or in carrying out checks, inspections or investigations, the checks, inspections or investigations, the Member State in question shall rapidly Member State in question shall rapidly inform the requesting Member State with a inform the requesting Member State with a
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view to finding a solution. view to finding a solution. In the event of any persisting problems in the exchange of information or a permanent refusal to supply information, the Commission shall be informed and, where it considers it to be justified, it shall initiate an infringement proceeding. Cases of long- term refusal to provide requested information shall be recorded by the Commission, with a view inter alia to creating a publicly accessible list of authorities reported to have permanently refused to provide information. 5. Member States shall supply the 5. Member States shall supply the information requested by other Member information requested by other Member States or the Commission by electronic States or the Commission by electronic means as soon as possible and at the latest means as soon as possible and at the latest within 2 weeks from the reception of a within 2 weeks from the reception of a request. A specific urgency mechanism request. A specific urgency mechanism shall be used for special situations where a shall be used for special situations where a Member State becomes aware of particular Member State becomes aware of particular circumstances requiring urgent action. In circumstances requiring urgent action. In such circumstances, the information shall such circumstances, the information shall be submitted within 24 hours. be submitted within 24 hours. This shall not preclude competent authorities in the host Member State from taking measures to investigate, prevent and punish fraud. 6. Member States shall ensure that registers 6. Member States shall ensure that registers in which service providers have been in which service providers have been entered, and which may be consulted by entered, and which may be consulted by the competent authorities in their territory, the competent authorities in their territory, may also be consulted, in accordance with may also be consulted, in accordance with the same conditions, by the equivalent the same conditions by the equivalent competent authorities of the other Member competent authorities of the other Member States. States. 7. Member States shall ensure the 7. Member States shall ensure the strict confidentiality of the information which confidentiality of the information which they exchange. Information exchanged they exchange. Information exchanged shall be used only in respect of the shall be used exclusively in respect of the matter(s) for which it was requested. matter(s) for which it was requested and in accordance with national law and practices, and in particular personal data protection law. 8. Mutual administrative cooperation and 8. Mutual administrative cooperation and assistance shall be provided free of charge assistance shall be provided free of charge 9. The Commission and the competent 9. The Commission and the competent
PE498.030v02-00 34/120 RR\498030EN.doc EN authorities shall cooperate closely in order authorities shall cooperate closely in order to examine any difficulties which might to examine any difficulties which might arise in the application of Article 3(10) of arise in the application of Article 3(10) of Directive 96/71/EC. Directive 96/71/EC.
Amendment 49
Proposal for a directive Article 7
Text proposed by the Commission Amendment
Role of the Member State of establishment Role of the Member States 1. In accordance with the principles established in Articles 4 and 5 of Directive 96/71/EC during the period of posting of a worker to another Member State, the inspection of the terms and conditions of employment that are to be complied with according to Directive 96/71/EC is the responsibility of the authorities of the host Member State in cooperation with the Member State of establishment. The host Member State shall therefore control, monitor and take all the necessary supervisory or enforcement measures, in accordance with Article 10 of this Directive and with its national law and/or practices and its administrative procedures, with respect to workers posted to its territory. Checks and controls shall, where necessary, be carried out by the authorities of the host Member State on their own initiative or at the request of the competent authorities of the Member State of establishment, as provided for in Article 10 and in conformity with the powers of supervision provided for in the host Member State’s national law, practice and administrative procedures and which respect Union law. 1. The Member State of establishment of 2. The Member State of establishment of the service provider shall continue to the service provider shall also continue to control, monitor and take the necessary control, monitor and take the necessary supervisory or enforcement measures, in supervisory or enforcement measures, in accordance with its national law, practice accordance with its national law, practice
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and administrative procedures, with respect and administrative procedures, with respect to workers posted to another Member to workers posted to another Member State. State. This obligation shall not result in a duty on the part of the Member State of establishment to carry out factual checks and controls in the territory of the host Member State where the service is provided. 2. In the circumstances referred to in 3. For the purpose of enforcing Directive Article 3(1) and (2) and Article 9(1), the 96/71/EC, in the circumstances referred to Member State of establishment of the in Article 3(1) and (2) and Article 9(1), the service provider shall assist the Member Member State of establishment of the State to which the posting takes place to service provider shall assist the host ensure compliance with the conditions Member State to ensure full compliance applicable under Directive 96/71/EC and with the conditions applicable under this Directive. The Member State of Directive 96/71/EC and this Directive. The establishment of the service provider shall, Member State of establishment of the on its own initiative, communicate to the service provider shall without delay, on its Member State to which the posting takes own initiative or at the request of the host place any relevant information as specified Member State, communicate to the in Articles 3(1) and (2) and 9(1), where competent authority of the host Member the Member State of establishment of the State any relevant information as specified service provider is aware of specific facts in this Directive or required for which indicate possible irregularities. compliance with Article 3 of Directive 96/71/EC. 3. Competent authorities of the host 4. Competent authorities of the host Member State may equally ask the Member State may equally ask the competent authorities of the Member State competent authorities of the Member State of establishment, for each instance where of establishment, for each instance where services are provided or for each service services are provided or for each service provider, to provide information as to the provider, to provide information to verify legality of the service provider’s full compliance with both Directive establishment, the service provider’s good 96/71/EC and this directive, including as conduct, and the absence of any to the legality of the service provider’s infringement of the applicable rules. The establishment, the service provider’s good competent authorities of the Member State conduct, and the absence of any of establishment shall provide this infringement of the applicable rules. The information in accordance with Article 6. competent authorities of the host Member State may also request additional information for overriding reasons of public interest. Such requests shall be supported by an adequate statement of reasons, in particular by specifying the reason of the request. The competent authorities of the Member State of establishment shall provide this information in accordance with Article 6.
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4. The obligation laid down in paragraphs 1 and 2 shall not entail a duty on the part of the Member State of establishment to carry out factual checks and controls in the territory of the host Member State where the service is provided. Such checks and controls shall, if need be, be carried out by the authorities of the host Member State at the request of the competent authorities of the Member State of establishment, in accordance with Article 10 and in conformity with the powers of supervision provided for in the host Member State's national law, practice and administrative procedures and which respect Union law. 4a. Member States which discover that workers are being recruited to work, falsely, as self-employed persons shall inform the competent authorities in the host Member State without delay. 4b. Any information received by the competent authorities shall be treated as confidential. In accordance with Union and national law on data protection, Member States shall remain ultimately responsible for safeguarding data and the legal rights of affected persons and shall put in place appropriate protection mechanisms in this respect. 4c. Member States shall provide the necessary resources in order to ensure effective checks and controls.
Amendment 50
Proposal for a directive Article 8
Text proposed by the Commission Amendment
1. Member States shall, with the assistance 1. Member States shall, with the assistance of the Commission, take accompanying of the Commission, take accompanying measures to develop, facilitate and promote measures to develop, facilitate and promote
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the exchange between officials in charge of the exchange between officials in charge of the implementation of administrative the implementation of administrative cooperation and mutual assistance as well cooperation and mutual assistance as well as monitoring the compliance with and as monitoring the compliance with and enforcement of the applicable rules. enforcement of the applicable rules. Member States may also take accompanying measures to support organisations providing information to posted workers. 1a. The competent authorities in the host Member State and in the Member State of establishment shall be encouraged to collect data specific to the posting process and evaluate it, while respecting Union and national law on data protection. Member States are equally encouraged to forward the collected data to the Commission for summaries. 2. The Commission shall assess the 2. The Commission shall assess the need necessity for financial support in order to for financial support in order to further further improve administrative cooperation improve administrative cooperation and and increase mutual trust through projects, increase mutual trust through projects, including promoting exchanges of relevant including promoting exchanges of relevant officials and training, as well as officials and training, as well as developing, facilitating and promoting best developing, facilitating and promoting best practice initiatives, including those of practice initiatives, including those of social partners at Union level, such as the social partners at Union level, such as the development and updating of databases or development and updating of databases or joint websites containing general or sector- joint websites containing general or sector- specific information concerning terms and specific information concerning terms and conditions of employment to be respected. conditions of employment to be respected. Where it concludes that such need exists, the Commission shall ensure adequate funding.
Amendment 51
Proposal for a directive Article 9
Text proposed by the Commission Amendment
1. Member States may only impose the 1. Member States may impose any following administrative requirements and administrative requirements and control control measures: measures that they deem to be necessary for the effective enforcement of Directive
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96/71/EC and this Directive, including in particular: (a) an obligation to designate a contact person in the host Member State, acting as the mandated representative of the posting company, who can be contacted by the competent authorities of the host Member State, who is authorised to receive any official notices and documents and who is also authorised to negotiate and conclude binding agreements, if necessary, on behalf of the employer with the relevant social partners in the host Member State, in accordance with national legislation and practice, within the period in which the services are provided. (b) measures aiming at combating undeclared labour; (c) a translation of the documents referred (c) a translation of the documents referred to under (b), may be justified provided to in paragraph 2 in one of the official these documents are not excessively long languages of the Union that is also an and standardised forms are generally used official language of the host Member for such documents; State; (d) an obligation to designate a contact person to negotiate, if necessary, on behalf of the employer with the relevant social partners in the Member State to which the posting takes place, in accordance with national legislation and practice, during the period in which the services are provided. 2. Member States shall ensure that the 2. Without prejudice to paragraph 1, procedures and formalities relating to the Member States shall impose the following posting of workers can be completed administrative requirements and control easily by undertakings, at a distance and measures: by electronic means as far as possible. (a) an obligation for a service provider (a) an obligation for a service provider established in another Member State to established in another Member State to make a simple declaration to the make a simple declaration to the responsible national competent authorities responsible national competent authorities at the latest at the commencement of the at least five working days prior to the service provision, whereby the declaration commencement of the service provision, in may only cover the identity of the service an official language of the Union that is provider, the presence of one or more also an official language of the host
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clearly identifiable posted workers, their Member State or in another language, if anticipated number, the anticipated accepted, by the host Member State, duration and location of their presence, whereby the declaration covers in and the services justifying the posting; particular the identity of the service provider, the anticipated number of posted workers and their personal identification data, where applicable, the designated contact person as specified in paragraph 1 (a), the beginning and the anticipated duration and the place where the service is to be provided and the services justifying the posting; that declaration shall state that the service provider has been made aware of the applicable minimum working conditions in the host Member State and has agreed to comply with them in accordance with Article 3 of Directive 96/71/EC; a service provider established in another Member State shall inform the competent authorities in the host Member State without delay of any changes to the information contained in the declaration prior to or during the service provision. (b) an obligation throughout the period of posting to keepor make available, in an accessible and clearly identified place such as the workplace or the building site, or for mobile workers in the transport sector the operations base in the host Member State or the vehicle with which the service is provided, copies in paper or electronic form of the following documents: - proof of identity of the posted worker, - the employment contract (or an equivalent document indicating terms of employment such as a document within the meaning of Directive 91/533, including, where appropriate or relevant, the additional information referred to in Article 4 of that Directive), - payslips and proof of payment of wages, - time-sheets,
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- social security documentation referred to in Regulation (EC) No 883/2004 (e.g. the A1 form), - work and residence permits in the Member State of establishment in the case of third country nationals or copies of equivalent documents, issued according to the national law of the Member State of establishment, - an assessment pursuant to Directive 89/391/EC of the occupational health and safety risks. These documents shall also be kept or made available for a period of at least two years after the period of posting. 2. Member States shall ensure that the 3. Member States shall ensure that the procedures and formalities relating to the procedures and formalities relating to the posting of workers can be completed easily posting of workers can be completed by by undertakings, at a distance and by undertakings, at a distance and by electronic means as far as possible. electronic means as far as possible. 3. Within three years after the date referred 4. Within three years after …* the to in Article 20, the necessity and Commission shall review the effectiveness appropriateness of the application of of national control measures and of their national control measures shall be application in the light of the experiences reviewed in the light of the experiences with and effectiveness of the system for with and effectiveness of the system for cooperation and exchange of information, cooperation and exchange of information, the development of more uniform, the development of more uniform, standardised documents, the establishment standardised documents, the establishment of common principles or standards for of common principles or standards for inspections in the field of the posting of inspections in the field of the posting of workers as well as technological workers as well as technological developments, with a view to proposing, developments, with a view to proposing, where appropriate, any necessary where appropriate, any necessary amendments or modifications. amendments or modifications. ______* OJ please insert the date two years after the entry into force of this Directive.
Amendment 52
Proposal for a directive Article 10
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Text proposed by the Commission Amendment
Inspections Controls and inspections 1. Member States shall ensure that 1. Member States shall ensure that appropriate checks and monitoring appropriate and effective checks and mechanisms are put in place and that monitoring mechanisms are put in place effective and adequate inspections are and that effective and adequate inspections carried out on their territory in order to are carried out on their territory in order to control and monitor compliance with the control and monitor compliance with the provisions and rules laid down in Directive provisions and rules laid down in Directive 96/71/EC and to guarantee its proper 96/71/EC and in this Directive and to application and enforcement. Such guarantee their proper application and inspections shall be based primarily on a enforcement, as well as to combat risk assessment to be drawn up regularly undeclared employment. Such inspections by the competent authorities. The risk may be based on a risk assessment to be assessment shall identify the sectors of drawn up regularly by the competent activity in which the employment of authorities. The risk assessment may workers posted for the provision of identify the sectors of activity in which the services is concentrated on their territory. employment of workers posted for the When making such risk assessment the provision of services is concentrated on realisation of big infrastructural projects, their territory. When making such risk the special problems and needs of specific assessment the realisation of big sectors, the past record of infringement, as infrastructural projects, the existence of well as the vulnerability of certain groups long chains of subcontractors , the special of workers shall be taken into account. problems and needs of specific sectors, the past record of infringement, as well as the vulnerability of certain groups of workers may be taken into particular account. 2. Member States shall ensure that 2. Member States shall ensure that inspections and controls of compliance inspections and controls of compliance with Directive 96/71/EC are not with this Directive and Directive 96/71/EC discriminatory and/or disproportionate. are not discriminatory and/or disproportionate and shall allocate the necessary resources for such inspections and controls. In accordance with its own practice, the competent authority shall provide the inspected or controlled undertaking with a post inspection or control document which includes any relevant information. 3. If information is needed in the course of 3. If information is needed in the course of the inspections and in the light of the the inspections and in the light of Article 3 criteria in Article 3, the Member State of this Directive, the host Member State where the service is provided and the and the Member State of establishment Member State of establishment shall act in shall act in accordance with the rules on accordance with the rules on administrative administrative cooperation. In particular,
PE498.030v02-00 42/120 RR\498030EN.doc EN cooperation, i.e. the competent authorities the competent authorities shall cooperate shall cooperate pursuant to the rules and pursuant to the rules and principles laid principles laid down in Articles 6 and 7. down in Articles 6 and 7 of this Directive. 4. In Member States where, in accordance 4. In Member States where, in accordance with national law and practice, the setting with national law and practice, the setting of the terms and conditions of employment of the terms and conditions of employment of posted workers referred to in Article 3 of posted workers referred to in Article 3 of Directive 96/71/EC, and in particular the of Directive 96/71/EC, and in particular the minimum rates of pay, including working minimum rates of pay and working time, is time, is left to management and labour left to social partners, those social they may, at the appropriate level and partners may, at the appropriate level and subject to the conditions laid down by the subject to the conditions laid down by Member States, also the monitor the those Member States, also monitor the application of the relevant terms and application of the relevant terms and conditions of employment of posted conditions of employment of posted workers, provided that an adequate level workers in accordance with the existing of protection equivalent to that resulting legal national provisions, provided that from Directive 96/71/EC and this those terms and conditions have been duly Directive is guaranteed. communicated, pursuant to Article 5 of this Directive. 5. Member States where labour 5. Member States where labour inspectorates have no competence with inspectorates have no competence with respect to the control and monitoring of the respect to the control and monitoring of the working conditions and/or terms and working conditions and/or terms and conditions of employment of posted conditions of employment of posted workers may, by way of exception, after workers may, by way of exception, after consulting the social partners at national consulting the social partners at national level, establish or maintain arrangements level, establish, modify or maintain guaranteeing the respect of these terms and procedures and mechanisms guaranteeing conditions of employment, provided that the respect of these terms and conditions of the arrangements offer the persons employment, provided that they are not concerned an adequate degree of discriminatory or disproportionate as protection equivalent to that resulting specified in Article 10(2) of this Directive. from Directive 96/71/EC and this Directive.
Amendment 53
Proposal for a directive Article 11
Text proposed by the Commission Amendment
1.For the enforcement of the obligations 1. For the enforcement of the obligations under Article 6 of Directive 96/71/EC and under this Directive and under Directive this Directive, Member States shall ensure 96/71/EC, Member States shall ensure that
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that there are effective mechanisms for there are effective mechanisms for posted posted workers to lodge complaints against workers to lodge complaints against their their employers directly, as well as the employers directly, as well as the right to right to institute judicial or administrative institute judicial or administrative proceedings, also in the Member State in proceedings, also in the Member State in whose territory the workers are or were whose territory the workers are or were posted, where such workers consider they posted, where such workers consider they have sustained loss or damage as a result of have sustained loss or damage as a result of a failure to apply the applicable rules, even a failure to apply the applicable rules, even after the relationship in which the failure is after the relationship in which the failure is alleged to have occurred has ended. alleged to have occurred has ended. 2. Paragraph 1 shall apply without 2. Paragraph 1 shall apply without prejudice to the jurisdiction of the courts in prejudice to the jurisdiction of the courts in the Member States as laid down, in the Member States as laid down, in particular, in the relevant instruments of particular, in the relevant instruments of Union law and/or international Union law and/or international conventions. conventions. 3. Member States shall ensure that trade 3. Member States shall ensure that trade unions and other third parties, such as unions and other third parties, such as associations, organisations and other legal associations, organisations and other legal entities which have, in accordance with the entities which have, in accordance with the criteria laid down by their national law, a criteria laid down by their national law, a legitimate interest in ensuring that the legitimate interest in ensuring that the provisions of this Directive are complied provisions of this Directive and of with, may engage, on behalf or in support Directive 96/71/EC are complied with, of the posted workers or their employer, may engage, on behalf or in support of the with their approval in any judicial or posted workers or their employer, with administrative proceedings provided for their approval, in any judicial or with the objective of implementing this administrative proceedings provided for Directive and/or enforcing the obligations with the objective of implementing this under this Directive. Directive and Directive 96/71/EC and/or enforcing the obligations under this Directive and Directive 96/71/EC. 4. Paragraphs 1 and 3 shall apply without 4.Paragraphs 1 and 3 shall apply without prejudice to national rules on prescription prejudice to national rules on prescription deadlines or time limits for bringing deadlines or time limits for bringing similar actions and to national rules of similar actions and to national rules of procedure concerning representation and procedure concerning representation and defence before the courts. defence before the courts. However, Member States shall provide for a period of at least six months during which a claimant can file a claim under national rules of procedure. 4a. Posted workers bringing judicial or administrative proceedings within the meaning of Article 11(1) shall not receive
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any unfavourable treatment by the employer. Member States shall also define under national law the conditions under which the duration of the residence permit of posted workers from third countries may be extended until these proceedings are terminated. 5. Member States shall ensure that the 5. Member States shall ensure that the necessary mechanisms are in place to necessary mechanisms are in place to ensure that posted workers are able to ensure that posted workers or third parties receive. acting with their approval and on their behalf are able to claim and that posted workers are able to receive at least the following: (a) any outstanding remuneration which, (a) any outstanding remuneration which, under the applicable terms and conditions under the applicable terms and conditions of employment covered by Article 3 of of employment covered by Article 3 of Directive 96/71/EC, would have been due; Directive 96/71/EC, would have been due; (b) refund of excessive costs, in relation to (b) refund of excessive costs, in relation to net remuneration or to the quality of the net remuneration or to the quality of the accommodation, withheld or deducted accommodation, withheld or deducted from wages for accommodation provided from wages for accommodation provided by the employer. by the employer. (c) any back- payments or refund of taxes or social security contributions unduly withheld from the worker’s salary. Member States shall also ensure that the necessary mechanisms are in place to ensure the payment of due taxes, social security contributions and contributions due to common funds or institutions of social partners. This paragraph shall also apply in cases This paragraph shall also apply in cases where the posted workers have returned where the posted workers have returned from the Member State to which the from the Member State to which the posting took place. posting took place and to those posted workers who, in accordance with Article 3(3b) of this Directive, have been identified as falsely declared to be self- employed.
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Amendment 54
Proposal for a directive Article 12
Text proposed by the Commission Amendment
Subcontracting – Joint and several liability Subcontracting 1. With respect to the construction activities referred to in the Annex to Directive 96/71/EC, for all posting situations covered by Article 1(3) of Directive 96/71/EC, the Member States shall ensure on a non–discriminatory basis with regard to the protection of the equivalent rights of employees of direct subcontractors established in its territory, that the contractor of which the employer (service provider or temporary employment undertaking or placement agency) is a direct subcontractor can, in addition to or in place of the employer, be held liable by the posted worker and/or common funds or institutions of social partners for non-payment of the following: (a) any outstanding net remuneration corresponding to the minimum rates of pay and/or contributions due to common funds or institutions of social partners in so far as covered by Article 3 (1) of Directive 96/71/EC; (b) any back-payments or refund of taxes or social security contributions unduly with held from his/her salary. The liability referred to in the present paragraph shall be limited to worker's rights acquired under the contractual relationship between the contractor and his subcontractor. 2. Member States shall provide that a 1. Member States shall take measures on a contractor who has undertaken due non–discriminatory basis, to ensure that a diligence shall not be liable in accordance company that instructs another company with paragraph 1. Such systems shall be directly or indirectly to provide services on applied in a transparent, non its behalf can be held liable in addition to discriminatory and proportionate way. or in place of any subcontractor for due
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They may imply preventive measures entitlements to employees and/or due taken by the contractor concerning proof social security contributions to common provided by the subcontractor of the main funds or institutions of social partners. working conditions applied to the posted workers as referred to in Article 3 (1) of Directive 96/71/EC, including pay slips and payment of wages, the respect of social security and/or taxation obligations in the Member State of establishment and compliance with the applicable rules on posting of workers. The liability referred to in this paragraph shall be limited to workers' rights acquired during the contractual relationship between the contractor and his subcontractors. 3. Member States may, in conformity with 2. Paragraph 1 shall be without prejudice Union law, provide for more stringent to more stringent liability rules under liability rules under national law on a non- national law. discriminatory and proportionate basis in regard to the scope and range of subcontractor liability. Member States may also, in conformity with Union law, provide for such liability in sectors other than those contained in the Annex to Directive 96/71/EC. Member States may in these cases provide that a contractor that has undertaken due diligence as defined by national law shall not be liable. 4. Within three years after the date referred to in Article 20, the Commission shall, in consultation with the Member States and social partners at EU level, review the application of this Article with a view to proposing, where appropriate, any necessary amendments or modifications.
Amendment 55
Proposal for a directive Article 13
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Text proposed by the Commission Amendment
1. Without prejudice to the means which 1. Without prejudice to the means which are or may be provided for in Union are or may be provided for in Union legislation, the principles of mutual legislation, the principles of mutual assistance and recognition as well as the assistance and recognition as well as the measures and procedures provided for in measures and procedures provided for in this Article shall apply to the cross-border this Chapter shall apply to the cross-border enforcement of administrative fines and enforcement of financial administrative penalties imposed for failure to comply penalties and /or fines imposed for failure with the applicable rules in another to comply with the applicable rules Member State on a service provider provided for in Directive 96/71/EC in established in another Member State. another Member State on a service provider established in another Member State. 2. The requesting authority may, in 2. The requesting authority may, in accordance with the laws, regulations and accordance with the laws, regulations and administrative practices in force in its own administrative practices in force in its own Member State, request the competent Member State, request the competent authority in another Member State to authority in another Member State to recover a penalty or fine or notify a recover a penalty or fine or retroactive decision imposing a penalty or a fine, in so social security contributions in far as the relevant laws, regulations and accordance with Regulation (EC) No administrative practices in force in the 987/2009 or notify a decision imposing a requested authority’s Member State allow penalty or a fine or retroactive payment of such action for similar claims or social security contributions. decisions. The competent authority in the requesting The competent authority in the requesting Member State shall ensure that the request Member State shall ensure that the request for recovery of a penalty or a fine or for recovery of a penalty or a fine or notification of a decision imposing a notification of a decision imposing a penalty or fine is made in accordance with penalty or fine is made in accordance with the rules in force in that Member State, the rules in force in that Member State, whereas the competent requested authority whereas the competent requested authority shall ensure that such recovery or shall ensure that such recovery or notification in the requested Member State notification in the requested Member State is effected in accordance with the national is recognised without any further laws, regulations and administrative formality being required and is effected in practices in force in the latter. accordance with the national laws, regulations and administrative practices in force in the latter applying to the same or similar requests . The requesting authority may not make a The requesting authority may not make a request for recovery of a penalty or a fine request for recovery of a penalty or a fine or notification of a decision imposing a or notification of a decision imposing a penalty or fine if and as long as the fine or penalty or fine if and as long as the fine or
PE498.030v02-00 48/120 RR\498030EN.doc EN penalty, as well the underlying claim penalty, as well the underlying claim and/or the instrument permitting its and/or the instrument permitting its enforcement in the requesting Member enforcement in the requesting Member State, are contested in that Member State. State, are contested in that Member State in accordance with its national law and practice. If it emerges that the service provider is indeed not established in the Member State of alleged establishment or the address or that the company data are false, the competent authorities shall not terminate the procedure on formal grounds but shall investigate the matter further in order to establish the identity of the natural or legal person responsible for the posting.
Amendment 56
Proposal for a directive Article 14
Text proposed by the Commission Amendment
1. Further to the request by the requesting 1. Further to the request by the requesting authority for recovery of a penalty or a fine authority for recovery of a penalty or a fine or notification of a decision imposing a or notification of a decision imposing a penalty or fine, the requested authority penalty or fine, the requested authority shall provide any information and mutual shall without delay provide any assistance which would be useful to the information and mutual assistance requesting authority in the recovery of a requested which would be useful to the fine and/or penalty, as well as, to the extent requesting authority in the recovery of a possible, for the underlying claim. fine and/or penalty, as well as, to the extent possible, for the underlying claim. The request for information concerning the The request for information concerning the recovery of penalty or fine as well as the recovery of penalty or fine as well as the notification of a decision concerning such notification of a decision concerning such matters shall at least indicate: matters shall at least indicate: (a) the name and known address of the (a) the name and known address of the addressee, as well as any other relevant addressee, as well as any other relevant data or information for the identification of data or information for the identification of the addressee, the addressee, (b) the purpose of the notification or (b) the purpose of the notification or request for recovery, the period within request for recovery, the period within which it shall be effected and any dates of which it shall be effected and any dates of
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relevance to the enforcement process; relevance to the enforcement process; (c) a description of the nature and amount (c) a description of the nature and amount of the fine or penalty, as well as the of the fine or penalty, as well as the underlying claim in respect of which the underlying claim in respect of which the request is made, and its different request is made, and its different components; components; (d) all other relevant information or (d) all other relevant information or documents, including those of a judicial documents, including those of a judicial nature, concerning the claim, fine or nature, concerning the claim, fine or penalty; and penalty; and (e) the name, address and other contact (e) the name, address and other contact details regarding the competent authority details regarding the competent authority responsible for the assessment of the fine responsible for the assessment of the fine and/or penalty, and, if different, the and/or penalty, and, if different, the competent body where further information competent body where further information can be obtained concerning the penalty or can be obtained concerning the penalty or fine or the possibilities for contesting the fine or the possibilities for contesting the payment obligation or decision imposing it. payment obligation or decision imposing it. 2. For the purpose of recovery of a penalty 2. For the purpose of recovery of a penalty or fine or notification of a decision or fine or retroactive social security imposing a penalty or fine in the requested contributions or notification of a decision Member State, any fine or penalty in imposing a penalty or fine or retroactive respect of which a request for recovery or payment of social security contributions in notification has been made shall be treated the requested Member State, any fine or as if it were a fine or penalty of the penalty or retroactive social security requested Member State. contributions in respect of which a request for recovery or notification has been made shall be treated as if it were a fine or penalty or retroactive social security contributions of the requested Member State. 3. The requested authority shall promptly 3. The requested authority shall promptly inform the requesting authority of the inform the requesting authority of the action taken on its request for notification action taken on its request for information, or recovery and, more specifically, of the notification or recovery and, more date on which the instrument or decision specifically, of the date on which the was forwarded or notified to the addressee. instrument or decision was forwarded or notified to the addressee. The same shall apply if there are substantial obstacles to the successful processing of the request . The requested authority shall likewise The requested authority shall likewise inform the requesting authority of the inform the requesting authority of the grounds for refusing a request for grounds for refusing a request for information, recovery or notification. information, recovery or notification.
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3a. The provisions on recovery of fines or penalties shall also apply to fines imposed as part of enforceable statutory decisions by national courts and such decisions resulting from industrial proceedings.
Amendment 57
Proposal for a directive Article 15
Text proposed by the Commission Amendment
1. If, in the course of the recovery or 1. If, in the course of the recovery or notification procedure, the fine, penalty notification procedure, the fine, penalty and/or underlying claim is contested by the and/or underlying claim is challenged in service provider concerned or an interested the requesting Member State by the party, the cross-border enforcement service provider concerned or an interested procedure of the fine or penalty imposed party in compliance with the applicable shall be suspended pending the decision of rules, the cross-border enforcement the appropriate national authority in the procedure of the fine or penalty imposed matter. shall be suspended pending the decision of the appropriate national authority in the requesting Member State in the matter. The requesting authority shall without The requesting authority shall without delay notify the requested authority of the delay notify the requested authority of the contestation. contestation. 2. Disputes concerning the enforcement 2. Disputes concerning the enforcement measures taken in the requested Member measures taken in the requested Member State or concerning the validity of a State or concerning the validity of a notification made by a competent authority notification made by a competent authority of the requested Member State shall be of the requested Member State shall be brought before the competent body or brought before the competent body or judicial authority of that Member State in judicial authority of that Member State in accordance with its laws and regulations. accordance with its laws and regulations.
Amendment 58
Proposal for a directive Article 16
Text proposed by the Commission Amendment
1. The requested authority shall remit to 1. The amounts recovered with respect to the requesting authority the amounts the penalties and/ or fines referred to in
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recovered with respect to the fines or this Chapter shall remain with the penalties referred to in this Chapter. requested authority. The requested authority may recover amounts from the natural or legal person concerned and retain any costs which it incurs in connection with recovery, in accordance with the laws, regulations and administrative procedures or practices of the requested Member State which apply to similar claims. 2. Member States shall not claim from each 2. Member States shall not claim from each other the reimbursement of costs arising other the reimbursement of costs arising from any mutual assistance they grant each from any mutual assistance they grant each other pursuant to this Directive or resulting other pursuant to this Directive or resulting from its application. from its application. Where recovery creates a specific problem or concerns a very large amount, the requesting and requested authorities may agree reimbursement arrangements specific to the case(s) in question. 3. Notwithstanding the paragraph 2, the competent authority in the requesting Member State shall remain liable to the requested Member State for any costs and any losses incurred as a result of actions held to be unfounded, in terms of the substance of the fine or penalty, the validity of the instrument issued by the requesting authority for the purpose of enforcement and/or any precautionary measures taken by the requesting authority.
Amendment 59
Proposal for a directive Article 16 a (new)
Text proposed by the Commission Amendment
16a. Within three years after …*, the Commission shall, after consulting Member States, review the application of this Chapter, in particular in the light of the experiences with and effectiveness of
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the system of cross-border enforcement of administrative penalties and/or fines with a view to proposing, where appropriate, any necessary amendments or modifications. ______* OJ please insert the date two years after the entry into force of this Directive.
Amendment 60
Proposal for a directive Article 18
Text proposed by the Commission Amendment
1. The administrative cooperation and 1. The administrative cooperation and mutual assistance between the competent mutual assistance between the competent authorities of the Member States provided authorities of the Member States provided for in Articles 6, 7, 10(3), 13, 14 and 15 for in Articles 6, 7, 10(3), 13, 14 and 15 shall be implemented through the Internal shall be implemented as far as possible Market Information System (IMI), through the Internal Market Information established by [reference to IMI System (IMI), established by [reference to Regulation]. IMI Regulation] and other established means of cooperation such as bilateral agreements. 2. Member States may continue to apply 2. Member States are free to apply bilateral arrangements concerning existing, and to conclude new, bilateral administrative cooperation between their arrangements concerning administrative competent authorities as regards the cooperation and mutual assistance application and monitoring of the terms between their competent authorities as and conditions of employment applicable regards the application and monitoring of to posted workers referred to in Article 3 of the terms and conditions of employment Directive 96/71/EC, in so far as these applicable to posted workers referred to in arrangements do not adversely affect the Article 3 of Directive 96/71/EC, in so far rights and obligations of the workers and as these arrangements do not adversely companies concerned. affect the rights and obligations of the workers and companies concerned. 3. In the context of bilateral agreements 3. In the context of bilateral arrangements referred to in paragraph 2, competent referred to in paragraph 2, competent authorities of the Member States shall use authorities of the Member States may use IMI as much as possible. In any event, IMI where possible. In any event, where a where a competent authority in one of the competent authority in one of the Member Member States concerned has used IMI, it States concerned has used IMI, it may shall be used for any follow-up required where possible be used for any follow-up
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and shall take precedence over the required. mechanism(s) foreseen in such a bilateral agreement with respect to administrative cooperation and mutual assistance.
Amendment 61
Proposal for a directive Article 21 – paragraph 1
Text proposed by the Commission Amendment
1. No later than 5 years after the expiry of 1. No later than three years after the expiry the deadline for transposition, the of the deadline for transposition, the Commission shall report to the European Commission shall report to the European Parliament, the Council and the European Parliament, the Council and the European Economic and Social Committee on the Economic and Social Committee on the implementation of this Directive, making implementation of this Directive, making appropriate proposals where necessary. appropriate proposals where necessary.
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EXPLANATORY STATEMENT
Posting of workers plays a crucial role in the context of cross-border provision of services and the development of the internal market. Every year around one million EU citizens are posted to work in another Member State. This category of workers needs to be protected especially in the time of crisis, when their potential and competitiveness allow maintaining a certain level of employment or even helping generating new jobs. We shall act in order to develop and improve the mobility of European undertakings in the internal market. This will definitely contribute to economic growth and stability of the European Union.
The freedom to provide services (it needs to be distinguished from the free movement of workers), under which posting takes place, is one of the pillars of the internal market and constitutes a basis of cross-border mobility of thousands of European undertakings. The guarantee of freedom to provide services has to come together with the guarantee of workers’ rights. In this context, a balanced approach is indispensable when it comes to measures and instruments proposed. The cooperation between Member States must be further enforced to better protect and survey this special category of posted workers on the European internal market.
ENFORCEMENT DIRECTIVE
The experience of the past years shows clearly that there is an urgent need of improvements in order to secure a better implementation, application and enforcement of the Directive 96/71/EC concerning the posting of workers in the framework of the provision of services. There is a series of problems that range from disrespect of workers’ rights and lack or inaccessibility of information to persisting obstacles in the cooperation between Member States or lack of execution of fines and penalties in the cross-border context. Moreover, in the past years there were several ECJ's judgments resulting in delimitation of certain measures in the legal framework concerning the posting of workers. Therefore, on the 21st of March 2012 the European Commission proposed an Enforcement Directive with new solutions and measures. The Enforcement Directive is based on Articles 53(1) and 62 TFEU which, for the sake of legal clarity, should be maintained.
The rapporteur acknowledges the need for improvements in order to secure a better implementation, application and enforcement of the Directive 96/71/EC and therefore welcomes the European Commission’s proposal. In the rapporteur’s view the Enforcement Directive shall in general: contain balanced measures in order to protect both, posted workers and freedom to provide services; set a clear legal framework for the category of posted workers so that their potential and competitiveness is used, especially in the time of crisis, to combat the growing unemployment; improve the access to information, both for companies and employers, to make posting easier and safer; improve cooperation between Member States in order to better secure employers’ rights;
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avoid unnecessary bureaucratic burdens for the companies (especially SMEs) which could hamper their mobility in the internal market and their capacity to create new jobs.
Accessibility of information (art. 5) Taking into account that problems with accessibility, transparency and exhaustiveness of information on terms and conditions of employment are very often a cause of inapplication of rules, there is an urgent need to improve access to and communication of information. The existence of different labour market models and industrial relation systems in the EU, where generally binding rules are established alternatively or simultaneously by national authorities or social partners, creates problems in identifying the terms and conditions of employment to be applied. In order to solve the problem the rapporteur proposes to introduce a single national website per Member State with all the necessary information on binding terms and conditions of employment. The rapporteur insists also on ensuring the accessibility of information at EU level through updated, exact and exhaustive information in the country fiches published on the EC website. Improving the accessibility of information, also by making it available to workers and service providers in English and other most relevant languages, will help eliminating a series of problems, which, as today’s experience shows, can cause serious consequences to both undertakings and posted workers.
Legal clarity and proportionality of the proposed measures (art. 3, 9) In order to guarantee a legal clarity and certainty a list of uniform measures at EU level must be established. Two articles in the Enforcement Directive are of paramount importance here - articles 3 and 9. The rapporteur proposes to maintain the indicative character of the lists in Articles. The two lists of criteria in article 3 shall combat and prevent the circumvention of law but cannot lead to situations where honest undertakings are excluded from certain national markets. Posting of workers is not a national phenomenon, it is a cross-border activity which requires a common legal framework and a common approach. Therefore the lists have to contain common indications at EU level. Establishing a common list of criteria in article 3 is directly linked to the introduction of a common list of control measures in article 9. The rapporteur firmly opts for clarity in the context of controls, what can only be guaranteed by a common list of possible control measures. The legal certainty should be obtained by a clear communication of what is to be controlled. The proportionality of proposed measures is a fundamental requirement for their acceptance at EU level.
Cooperation between Member States (art. 6, 7, 18) Having regard to the fact that posting of workers is a cross-border activity, proper and effective cooperation between the competent authorities from the Member State of establishment and the host Member State is necessary. In order to improve administrative cooperation between Member States, a better use of the IMI system has to be secured. Thus, the rapporteur proposes the obligatory use of the IMI system always when it is possible and the revision of deadlines proposed by the EC, in order to make them more feasible. Additionally, the matter of data protection is to be guaranteed.
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4.3.2013
OPINION OF THE COMMITTEE ON THE INTERNAL MARKET AND CONSUMER PROTECTION
for the Committee on Employment and Social Affairs on the 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 (COM(2012)0131 – C7-0086/2012 – 2012/0061(COD))
Rapporteur: Malcolm Harbour
SHORT JUSTIFICATION
The free movement of workers and the freedom to provide services are fundamental pillars of the internal market. When an undertaking sends workers to another Member State in the context of a service provision, the Posted Workers Directive 96/71/EC aims to protect the rights of such workers and prevent social dumping. This Directive has proven to be heavily circumvented and insufficiently enforced. In response, the Commission proposed an enforcement Directive.
The purpose of the enforcement Directive must be to create feasibility of the provision laid down Directive 96/71/EC, to ensure a level playing field for companies, to create disincentives for circumvention and to safeguard the protection of workers rights.
Your Rapporteur has proposed additional text to underline the objectives of 96/71/EC, focussing on no discrimination between employees on the basis of nationality, and stressing that the proposed enforcement Directive should respect the principles laid down in 96/71/EC while improving enforcement and effectively sanctioning circumvention.
Your Rapporteur has introduced a clarifying text in a number of areas. These include clearer definitions and clarification of the roles and responsibilities of Member States and service providers, such as the evidence that an employer-employee relationship existed prior to posting. Your Rapporteur proposes a minimum set of enforcement measures and an open list in Article 9 that is essential to allow Member States the necessary flexibility to take additional measures to ensure the proper enforcement of 96/71/EC
In order to combat circumvention, your Rapporteur has made 3 key proposals. Firstly, that in case of non-compliance with Directive 96/71/EC and this directive, the concerned
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undertaking shall be covered by the relevant legislation applicable in the country of service provision, and all concerned workers shall be deemed workers exercising their freedom of movement within the Union in according with Article 45 of the TFEU which stresses non- discrimination.
Secondly, an amendment of the legal base of the proposal to clarify this Directive concerns the free movement of workers and services. Thirdly, a strong sanction for those Member States who do not cooperate when asked to provide the necessary information to verify a posting situation.
Abuse of subcontracting chains is not unique to the construction sector. Therefore joint and several liability should be extended to all sectors. The requirement for due diligence would be difficult to implement in practice, thus it has been deleted. Member States should take the necessary measures, according to their own experiences and procedures, to ensure implementation of joint and several liability. The introduction, or continued application of more stringent rules on the national level should also be permitted. The Commission, in cooperation with the European Parliament and Council should review the application of this Article with a view to proposing, where appropriate, modifications.
Your Rapporteur considers that sound administrative cooperation and mutual assistance key to the success of the proposed Directive. Whilst your Rapporteur sees the potential of the IMI system for rapid exchange of information which overcomes language barriers, some Member States already have highly effective non-IMI based methods of administrative cooperation. Member States should be free to apply bilateral agreements outside of IMI. Competent Authorities must provide information requested without delay and where information is not available, officially declare the absence of such information.
In order to increase information available to workers, contact details of competent authorities should be publically available. In addition, information on terms and conditions of employment should be generally available, free of charge in a clear, transparent, comprehensive and easily understandable way.
In order to improve the administrative cooperation and mutual assistance, the Commission should present the results of an Impact Assessment on the feasibility of an EU-wide notification or registration system based on and compatible with existing systems in Member States. Secondly, the Commission should propose a European register for serious offenders (a "black list") of companies proven to flout the provisions of 96/71/EC and other relevant Union legislation.
The success of the proposed Enforcement Directive and 96/71/EC depends on not only political will but also on the allocation of sufficient resources which is why your Rapporteur proposes text obliging Member States and Commission to dedicate the necessary resources in order to make proper enforcement of 96/71/EC a reality.
AMENDMENTS
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The Committee on the Internal Market and Consumer Protection calls on the Committee on Employment and Social Affairs, as the committee responsible, to incorporate the following amendments in its report:
Amendment 1
Proposal for a directive Recital 2
Text proposed by the Commission Amendment
(2) The free movement of workers gives (2) The freedom to provide services every citizen the right to move freely to includes the right of undertakings to another Member State to work and reside provide services in another Member State, there for that purpose and protects them for which they may send ('post') their own against discrimination as regards workers temporarily to carry out the work employment, remuneration and other necessary to provide these services there. It working conditions in comparison to is necessary for the purpose of the posting nationals of that Member State. It needs of workers to distinguish this freedom to be distinguished from the freedom to from the free movement of workers, which provide services, which includes the right gives every citizen the right to move freely of undertakings to provide services in to another Member State to work and another Member State, for which they may reside there for that purpose and protects send (‘post’) their own workers them against discrimination as regards temporarily to carry out the work necessary employment, remuneration and other to provide these services there. working conditions in comparison to nationals of that Member State.
Amendment 2
Proposal for a directive Recital 2 a (new)
Text proposed by the Commission Amendment
(2a) This Directive should not affect the exercise of the fundamental rights as recognised by the Member States and International Labour Organization Conventions, where applicable, and by the Charter of Fundamental Rights of the European Union.
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Amendment 3
Proposal for a directive Recital 3
Text proposed by the Commission Amendment
(3) With respect to workers temporarily (3) With respect to workers temporarily posted to carry out work in order to posted to carry out work in order to provide services in another Member State provide services in another Member State than the one in which they habitually carry than the one in which they habitually carry out their work, Directive 96/71/EC of the out their work, Directive 96/71/EC of the European Parliament and of the Council of European Parliament and of the Council of 16 December 1996 concerning the posting 16 December 1996 concerning the posting of workers in the framework of the of workers in the framework of the provision of services establishes a core set provision of services establishes a core set of clearly defined terms and conditions of of clearly defined terms and conditions of work and employment which must be work and employment which must be complied with by the service provider in complied with by the service provider in the Member State to which the posting the Member State to which the posting takes place to ensure the minimum takes place to ensure the minimum protection of the posted workers protection of the posted workers concerned. concerned. This Directive should not prevent legal or collectively agreed standards from providing the posted workers with more favourable conditions, as long as equal treatment and non- discrimination of local and foreign companies and workers is ensured. This Directive aims at improving the implementation of the Directive 96/17/EC while fully respecting Articles 26(2), 45(1), 45(2), 53(1) and 62 TFEU and the Charter of Fundamental Rights of the European Union
Amendment 4
Proposal for a directive Recital 3 a (new)
Text proposed by the Commission Amendment
(3a) This directive aims at better enforcement of Directive 96/71/EC. Therefore, the provision laid down in this directive shall be applicable without
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prejudice to the provisions laid down in Directive 96/71/EC.
Amendment 5
Proposal for a directive Recital 3b (new)
Text proposed by the Commission Amendment
(3b) In order to ensure compliance with Directive 96/71/EC without putting on the service providers unnecessary administrative burden it is essential that the factual elements in Article 3 of this Directive should be considered as indicative and non-exhaustive. There should not be a requirement that each element must be satisfied in every posting case.
Amendment 6
Proposal for a directive Recital 4
Text proposed by the Commission Amendment
(4) In order to prevent, avoid and combat (4) In order to prevent, avoid and combat circumvention and/or abuse of the circumvention and/or abuse of the applicable rules by companies taking applicable rules by companies taking improper or fraudulent advantage of the improper or fraudulent advantage of the freedom to provide services enshrined in freedom to provide services enshrined in the Treaty and/or the application of the Treaty and/or the application of Directive 96/71/EC the implementation Directive 96/71/EC the implementation and monitoring of the notion of posting and monitoring of the notion of posting should be improved. must be enforceable and should be improved, taking into consideration the principles of proportionality and non- discrimination.This core set of clearly defined terms and conditions of work and employment set out Directive 96/71/EC may not be adversely affected by this Directive. Any circumvention of these rules must entail sanctions, in particular as regards the terms and conditions of
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employment.
Amendment 7
Proposal for a directive Recital 4 a (new)
Text proposed by the Commission Amendment
(4a) All measures introduced by this Directive must be justified, proportionate and non-discriminatory in order not to create administrative burden and not to lock the potential that companies, in particular small and medium enterprises, have in creating new jobs, while protecting posted workers.
Amendment 8
Proposal for a directive Recital 5
Text proposed by the Commission Amendment
(5) Therefore, the constituent factual (5) Therefore, the constituent factual elements characterising the temporary elements characterising the temporary nature inherent to the notion of posting, nature inherent to the notion of posting, which implies that the employer should be which implies that the employer should be genuinely established in the Member State genuinely established in the Member State from which the posting takes place, as well from which the posting takes place, as well as the relationship between Directive as the relationship between Directive 96/71/EC and Regulation (EC) No 96/71/EC and Regulation (EC) No 593/2008 on the law applicable to 593/2008 on the law applicable to contractual obligations (hereinafter the contractual obligations (hereinafter the ‘Rome I Regulation’) need to be further ‘Rome I Regulation’) need to be further clarified. clarified, in order to ensure a broad application of that Directive.
Amendment 9
Proposal for a directive Recital 5 a (new)
Text proposed by the Commission Amendment
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(5a) The European Parliament and the Council should provide to the Commission, when necessary, support, oversight and feedback concerning the implementation of this Directive.
Amendment 10
Proposal for a directive Recital 6
Text proposed by the Commission Amendment
(6) As is the case with Directive 96/71/EC, (6) As is the case with Directive 96/71/EC, this Directive should not prejudice the this Directive should not prejudice the application of the law which, under Article application of the law which, under Article 8 of the Rome I Regulation, applies to 8 of the Rome I Regulation, applies to individual employment contracts, or the individual employment contracts, or the application of Regulation No 883/2004 of application of Regulation No 883/2004 of the European Parliament and of the the European Parliament and of the Council of 29 April 2004 on the Council of 29 April 2004 on the coordination of social security systems and coordination of social security systems and Regulation No 987/2009 of the European Regulation No 987/2009 of the European Parliament and of the Council of 16 Parliament and of the Council of 16 September 2009 laying down the procedure September 2009 laying down the procedure for implementing Regulation (EC) No for implementing Regulation (EC) No 883/2004 on the coordination of social 883/2004 on the coordination of social security systems. security systems. The provisions of this Directive should be without prejudice to Member States national law providing for and enforcing more favourable conditions for posted workers.
Amendment 11
Proposal for a directive Recital 7 a (new)
Text proposed by the Commission Amendment
(7a) Member States should ensure that necessary resources are available to make the checks efficient and to be able to respond without undue delay to requests for information as provided for in this Directive from the host Member State or the Member State of establishment.
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Amendment 12
Proposal for a directive Recital 8
Text proposed by the Commission Amendment
(8) Trade unions play an important role in (8) Social partners play an important role the context of the posting of workers for in the context of the posting of workers for the provision of services since social the provision of services since they may, in partners may, in accordance with national accordance with national law and/or law and/or practice, determine the different practice, determine the different levels levels (alternatively or simultaneously) of (alternatively or simultaneously) of the the applicable minimum rates of pay . applicable minimum rates of pay. Social partners should take the responsibilityfor communicating and informing about those rates.
Amendment 13
Proposal for a directive Recital 10
Text proposed by the Commission Amendment
(10) Adequate and effective (10) Adequate and effective implementation and enforcement are key implementation and enforcement are key elements in protecting the rights of posted elements in protecting the rights of posted workers, whereas poor enforcement workers, whereas poor enforcement undermines the effectiveness of the Union undermines the effectiveness of the Union rules applicable in this area. Close rules applicable in this area. It is therefore cooperation between the Commission and essential to establish and maintain close the Member States is therefore essential, cooperation between Member States, the without neglecting the important role of Commission, and relevant national, labour inspectorates and the social partners regional, and local actors including in this respect. labour inspectorates and the social partners in this respect.
Amendment 14
Proposal for a directive Recital 11
Text proposed by the Commission Amendment
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(11) Mutual trust, a spirit of cooperation, (11) Taking into account that the ability continuous dialogue and mutual of the host Member State to establish understanding are essential in this respect. factual elements regarding the undertaking established in another Members State is limited, cooperation with the Member State of establishment is crucial and should be further improved. Mutual trust, a spirit of assistance, continuous dialogue and mutual understanding are essential in this respect.
Amendment 15
Proposal for a directive Recital 12
Text proposed by the Commission Amendment
(12) In order to facilitate better and more (12) In order to facilitate better and more uniform application of Directive 96/71/EC, uniform application of Directive 96/71/EC, it is appropriate to provide for an electronic it is appropriate to provide for an electronic information exchange system to facilitate information exchange system to facilitate administrative cooperation and competent administrative cooperation and competent authorities should use the Internal Market authorities should use the Internal Market Information System (IMI) as much as Information System (IMI) as much as possible. However, this should not prevent possible. However, this does not prevent the application of bilateral agreements or the application of bilateral agreements or arrangements concerning administrative arrangements concerning administrative cooperation. cooperation. Arrangements for application of electronic information exchange by means of the IMI should be tested to ensure that they work in practice.
Amendment 16
Proposal for a directive Recital 13 a (new)
Text proposed by the Commission Amendment
(13a) It is noted with concern that there are still many difficulties for the Member States to recover cross-border administrative fines and penalties and recognises that the mutual recognition of administrative fines and sanctions need to
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be addressed in future legislation.
Amendment 17
Proposal for a directive Recital 14
Text proposed by the Commission Amendment
(14) Member States obligations to make (14) Member States should inform the information on terms and conditions of Commission of how they intend to make employment generally available and to information on terms and conditions of provide effective access to it, not only to employment generally available and service providers from other Member accessible to posted workers and service States, but also to the posted workers providers from other Member States. concerned, should be further concretised.
Amendment 18
Proposal for a directive Recital 14 a (new)
Text proposed by the Commission Amendment
(14a) Where terms and conditions of employment are laid down in collective agreements which have been declared universally applicable, Member States should ensure that those collective agreements are officially published and accessible.
Amendment 19
Proposal for a directive Recital 15 a (new)
Text proposed by the Commission Amendment
(15a) In order to improve and facilitate mutual assistance and cross-border cooperation between the competent authorities in the Member States, an Union wide notification or registration system based on and compatible with existing systems in the Member States
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should be developed in accordance with the rules on the protection of personal data. In order for such system to be compatible with the principle of non- discrimination and fair competition the Commission should present to the European Parliament and the Council an impact assessment for the feasibility of such system.
Amendment 20
Proposal for a directive Recital 16
Text proposed by the Commission Amendment
(16) In order to ensure the correct (16) In order to ensure the correct application of, and to monitor compliance application of, and to monitor compliance with, the substantive rules on the terms and with, the substantive rules on the terms and conditions of employment to be respected conditions of employment to be respected with regard to posted workers, Member with regard to posted workers, Member States should apply only certain control States should apply only such control measures or administrative formalities to measures or administrative formalities to undertakings posting workers for the undertakings posting workers for the provision of services. Such measures and provision of services. Such control requirements may only be imposed measures or administrative formalities provided that the competent authorities should be proportionate and not entail cannot carry out their supervisory task unjustified, excessive administrative effectively without the requested burdens. Such measures and requirements information and the necessary information may only be imposed provided that the cannot be obtained easily from the competent authorities cannot carry out their employer of posted workers or the supervisory task effectively without the authorities in the Member State of requested information and the necessary establishment of the service provider information cannot be obtained easily from within a reasonable delay and/or less the employer of posted workers or the restrictive measures would not ensure that authorities in the Member State of the objectives of the national controls establishment of the service provider measures deemed necessary are attained. within a reasonable delay and/or less restrictive measures would not ensure that the objectives of the national controls measures deemed necessary are attained.
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Amendment 21
Proposal for a directive Recital 16 a (new)
Text proposed by the Commission Amendment
(16a) Any risk assessment drawn up by the competent authorities should aim at identifying the sectors of activity in which the employment of workers posted for the provision of services is concentrated on their territory. When making such risk assessment the special problems and needs of specific sectors, the past record of infringement, the information provided by social partners on the ground, the practices of circumvention as well as the vulnerability of certain groups of workers should be taken into account.
Amendment 22
Proposal for a directive Recital 18
Text proposed by the Commission Amendment
(18) To ensure better and more uniform (18) To ensure better and more uniform application of Directive 96/71/EC as well application of Directive 96/71/EC as well as its enforcement in practice, and to as its enforcement in practice, and to reduce, as far as possible, differences in the reduce, as far as possible, differences in the level of application and enforcement across level of application and enforcement across the Union, Member States should ensure the Union, Member States should ensure that effective and adequate inspections are that effective and adequate inspections are carried out on their territory. carried out on their territory. Such inspections shall be based primarily on a risk assessment to be drawn up by the competent authorities and which should take into account elements such as the realisation of big infrastructural projects, the special problems and needs of specific sectors, the past record of infringement, as well as the vulnerability of certain groups of workers.
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Amendment 23
Proposal for a directive Recital 19
Text proposed by the Commission Amendment
(19) National labour inspectorates, social (19) National labour inspectorates, social partners and other monitoring bodies are of partners and other monitoring authorities paramount importance in this respect and are of paramount importance in this respect should continue to play a crucial role. and should continue to play a crucial role.
Amendment 24
Proposal for a directive Recital 23
Text proposed by the Commission Amendment
(23) To facilitate the enforcement of (23) To facilitate the enforcement of Directive 96/71/EC and ensure more Directive 96/71/EC and ensure more effective application of it, effective effective application of it, effective complaint mechanisms should exist complaint mechanisms should exist through which posted workers may lodge through which posted workers may lodge complaints or engage in proceedings either complaints or engage in proceedings either directly or through relevant designated directly or, where applicable with their third parties, such as trade unions or other approval, through relevant designated third associations as well as common institutions parties, such as trade unions or other of social partners. This should be without associations as well as common institutions prejudice to national rules of procedure of social partners. This should be without concerning representation and defence prejudice to national rules of procedure before the courts. concerning representation and defence before the courts.
Amendment 25
Proposal for a directive Recital 24
Text proposed by the Commission Amendment
(24) In view of the prevalence of deleted subcontracting in the construction sector, and in order to protect posted workers‘ rights, it is necessary to ensure that in such sector at least the contractor of which the employer is a direct
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subcontractor can be held liable to pay to posted workers the net minimum rates of pay due, any back-payments of outstanding remuneration and/or contributions due to common funds or institutions of social partners regulated by law or collective agreement in so far as these are covered by Article 3 (1) of Directive 96/71/EC in addition to or in place of the employer. The contractor shall not be held liable if he/she has undertaken due diligence. The latter may imply preventive measures concerning proof provided by the subcontractor, including where relevant based upon information emanating from national authorities.
Amendment 26
Proposal for a directive Recital 25
Text proposed by the Commission Amendment
(25) In specific cases, other contractors deleted may, in accordance with national law and practice, be also held liable for failure to comply with the obligations under this Directive, or their liability may be limited, after consultation of the social partners at national or sectoral level.
Amendment 27 Proposal for a directive Recital 26
Text proposed by the Commission Amendment
(26) The obligation to impose a liability deleted requirement on the contractor where the direct subcontractor is a service provider, established in another Member State, posting workers is justified in the overriding public interest of the social protection of workers. Such posted
PE498.030v02-00 70/120 RR\498030EN.doc EN workers may not be in the same situation as workers employed by a direct subcontractor established in the Member State of establishment of the contractor with regard to the possibility to claim outstanding pay or refunds of taxes or social security contributions unduly withheld.
Amendment 28 Proposal for a directive Recital 27
Text proposed by the Commission Amendment
(27) The disparities between the systems of (27) The disparities between the systems of the Member States for enforcing imposed the Member States for enforcing imposed administrative fines and/or penalties in administrative fines and/or penalties with cross-border situations are prejudicial to regard to posting of workers situations as the proper functioning of the internal defined in Directive 96/71/EC and this market and risk making it very difficult, if Directive, in cross-border situations are not impossible, to ensure that posted prejudicial to the proper functioning of the workers enjoy an equivalent level of internal market and risk making it very protection throughout the Union. difficult, if not impossible, to ensure that posted workers enjoy an equivalent level of protection throughout the Union. Where such fines and penalties are imposed due to non-compliance with the employment conditions established by labour courts or collective agreements, those fines and penalties must be enforceable.
Amendment 29 Proposal for a directive Recital 28
Text proposed by the Commission Amendment
(28) Effective enforcement of the (28) Effective enforcement of the substantive rules governing the posting of substantive rules governing the posting of workers for the provision of services workers for the provision of services should be ensured by specific action should be ensured by specific action focusing on the cross-border enforcement focusing on the cross-border enforcement of imposed administrative fines and of imposed administrative fines and penalties. Approximation of the legislation penalties with regard to posting of workers of the Member States in this field is situations, as defined in Directive
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therefore an essential prerequisite in order 96/71/EC and this Directive. to ensure a higher, more equivalent and Approximation of the legislation of the comparable level of protection necessary Member States in this field is therefore an for the proper functioning of the internal essential prerequisite in order to ensure a market. higher, more equivalent and comparable level of protection necessary for the proper functioning of the internal market.
Amendment 30 Proposal for a directive Recital 29
Text proposed by the Commission Amendment
(29) The adoption of common rules for (29) The adoption of common rules for providing mutual assistance and support providing mutual assistance and support for enforcement measures and the for enforcement measures and the associated costs, as well as the adoption of associated costs, as well as the adoption of uniform requirements for the notification uniform requirements for the notification of decisions relating to administrative of decisions relating to administrative penalties and fines imposed, should resolve penalties and fines imposed with regard to a number of practical cross-border posting of workers situations, as defined enforcement problems and guarantee better in Directive 96/71/EC and this Directive, communication and better enforcement of should resolve a number of practical cross- such decisions emanating from another border enforcement problems and Member State. guarantee better communication and better enforcement of such decisions emanating from another Member State.
Amendment 31 Proposal for a directive Recital 30
Text proposed by the Commission Amendment
(30) Notwithstanding the establishment of (30) Notwithstanding the establishment of more uniform rules with respect to the more uniform rules with respect to the cross-border enforcement of penalties and cross-border enforcement of penalties and fines and the need for more common fines with regard to posting of workers criteria for follow-up procedures in the situations, as defined in Directive event of the non-payment of these they 96/71/EC and this Directive and the need should not affect the Member States' for more common criteria for follow-up competences to determine their system of procedures in the event of the non-payment penalties, sanctions and fines or the of these they should not affect the Member recovery measures available under their States' competences to determine their internal legislation. system of penalties, sanctions and fines or
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the recovery measures available under their internal legislation.
Amendment 32 Proposal for a directive Article 1 – paragraph 1 – subparagraph 1
Text proposed by the Commission Amendment
This Directive establishes a general This Directive establishes a set of specific common framework of appropriate provisions, measures and control provisions, measures and control mechanisms in order to provide assistance mechanisms necessary for better and more to the Member States in the uniform implementation, application and implementation, application and enforcement in practice of Directive enforcement of Directive 96/71/EC, 96/71/EC, including measures to prevent including measures to prevent and sanction and sanction any abuse and circumvention any abuse and circumvention of the of the applicable rules. applicable rules.
Amendment 33 Proposal for a directive Article 1 – paragraph 1 – subparagraph 2
Text proposed by the Commission Amendment
This Directive aims to guarantee respect This Directive sets out enforcement for an appropriate level of minimum measures needed for the equal treatment protection of the rights of posted workers of posted workers as regards terms and for the cross-border provision of services, conditions of employment, defined in while facilitating the exercise of the Article 3 of Directive 96/71/EC. Those freedom to provide services for service enforcement measures aim to facilitate providers and promoting fair competition and improve the exercise of the freedom to between service providers. provide services and to promote fair competition for service providers in the internal market.
Amendment 34 Proposal for a directive Article 1 – paragraph 2
Text proposed by the Commission Amendment
2. This Directive shall not affect in any 2. This Directive shall not affect in any way the exercise of fundamental rights as way the exercise of fundamental rights as recognised in Member States and by Union recognised in Member States, including the
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law, including the right or freedom to right or freedom to strike or to take other strike or to take other action covered by the action covered by the specific industrial specific industrial relations systems in relations systems in Member States, in Member States, in accordance with accordance with national law and practices. national law and practices. Nor does it Nor does it affect the right to negotiate, affect the right to negotiate, conclude and conclude and enforce collective enforce collective agreements and to take agreements and to take collective action in collective action in accordance with accordance with national law and practices. national law and practices.
Amendment 35 Proposal for a directive Article 2 – paragraph 1 – point a
Text proposed by the Commission Amendment
(a) ‘competent authority’ means an (a) ‘competent authority’ means authority designated by a Member State to authorities or bodies designated by a perform functions under this Directive; Member State and entrusted to perform public functions under this Directive;
Amendment 36 Proposal for a directive Article 2 – paragraph 1 – point c a (new)
Text proposed by the Commission Amendment
(ca) ‘host Member State’ means the Member State to which the worker is temporarily posted within the meaning of this Directive and Directive 96/71/EC.
Amendment 37 Proposal for a directive Article 3 – paragraph 1 – subparagraph 1 – introductory part
Text proposed by the Commission Amendment
For the purpose of implementing, applying For the purpose of implementing, applying and enforcing Directive 96/71/EC the and enforcing Directive 96/71/EC the competent authorities shall take into competent authorities shall make an account factual elements characterising the overall assessment of factual elements activities carried out by an undertaking in characterising the activities carried out by the State in which it is established in order an undertaking in the State in which it is to determine whether it genuinely performs established in order to determine whether it substantial activities, other than purely genuinely performs substantial activities.
PE498.030v02-00 74/120 RR\498030EN.doc EN internal management and/or During the assessment the account shall administrative activities. Such elements be taken in particular of the following may include: factual elements, which shall where applicable be demonstrated to the competent authorities by the undertaking posting the workers:
Amendment 38 Proposal for a directive Article 3 – paragraph 1 – subparagraph 1 – point a
Text proposed by the Commission Amendment
(a) the place where the undertaking has its (a) the place where an undertaking carries registered office and administration, uses out its substantial business activity, has its office space, pays taxes, has a professional administration, pays taxes and social licence or is registered with the chambers contributions, has in accordance with of commerce or professional bodies, national law a professional licence or is registered with the chambers of commerce or professional bodies,
Amendment 39 Proposal for a directive Article 3 – paragraph 1 – subparagraph 1 – point b
Text proposed by the Commission Amendment
(b) the place where posted workers are (b) the place where posted workers are recruited recruited and the place from which workers are posted,
Amendment 40 Proposal for a directive Article 3 – paragraph 1 – subparagraph 1 – point c
Text proposed by the Commission Amendment
(c) the law applicable to the contracts (c) the law applicable to the contracts concluded by the undertaking with its concluded by the undertaking with its workers, on the one hand, and with its clients, clients,
Amendment 41 Proposal for a directive Article 3 – paragraph 1 – subparagraph 1 – point e
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Text proposed by the Commission Amendment
(e) the abnormally limited number of (e) the abnormally limited number of contracts performed and/or size of turnover contracts performed and/or size of turnover realised in the Member State of realised in the Member State of establishment. establishment, taking into account the specific situation of newly established undertakings.
Amendment 42 Proposal for a directive Article 3 – paragraph 1 – subparagraph 1 – point e a (new)
Text proposed by the Commission Amendment
(ea) the posted worker has a valid A1 form to certify which social security legislation applies and this is one of several indications that this is a posting situation.
Amendment 43 Proposal for a directive Article 3 – paragraph 1 – subparagraph 2
Text proposed by the Commission Amendment
The assessment of these elements shall be deleted adapted to each specific case and take account of the nature of the activities carried out by the undertaking in the Member State in which it is established.
Amendment 44 Proposal for a directive Article 3 – paragraph 2 – subparagraph 1 and subparagraph 2 – introductory part
Text proposed by the Commission Amendment
In order to assess whether a posted worker In order to better implement Articles 3 and temporarily carries out his or her work in a 5 of Directive 96/71/EC and to assess Member State other than the one in which whether a posted worker temporarily he or she normally works, all factual carries out his or her work in a host elements characterising such work and the Member State, all factual elements situation of the worker shall be examined. characterising such work and the situation
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of the worker shall be examined. Such elements may include: Account shall be taken in particular of the following elements,
Amendment 45 Proposal for a directive Article 3 – paragraph 2 – subparagraph 2 – point c
Text proposed by the Commission Amendment
(c) the posted worker returns or is expected (c) the posted worker is habitually to resume working to the Member State employed and is expected to return to his from which he/she is posted after habitual place of employment after completion of the work or the provision of completion of the work or the provision of services for which he or she was posted; services for which he or she was posted;
Amendment 46 Proposal for a directive Article 3 – paragraph 2 – subparagraph 2 – point e
Text proposed by the Commission Amendment
(e) any repeated previous periods during (e) the posted worker is not replacing which the post was filled by the same or another posted worker, except in the case another (posted) worker. of illness or resignation;
Amendment 47 Proposal for a directive Article 3 – paragraph 2 – subparagraph 2 – point e ae c (new)
Text proposed by the Commission Amendment
(ea) the posted worker is not replacing a striking worker; (eb) the worker is organisationally and financially dependent on his employer; (ec) the obligation with regard to the remuneration of the worker rests with the undertaking which concluded the employment contract.
Amendment 48 Proposal for a directive Article 3 – paragraph 2 – subparagraph 3
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Text proposed by the Commission Amendment
The Member States shall take appropriate action to prevent, avoid and combat circumvention and/or abuse of this Directive by undertakings seeking deliberately to deny posted workers their rights or to deprive them of those rights. All the factual elements enumerated above The list of elements enumerated in are indicative factors in the overall paragraph 1 and 2 are indicative and non- assessment to be made and may not exhaustive and shall never be considered therefore be considered in isolation. The in isolation. The assessment of these criteria shall be adapted to each specific elements shall be adapted to each specific case and take account of the specificities of case and take account of the specificities of the situation. the situation.
Amendment 49 Proposal for a directive Article 4 – paragraph 2
Text proposed by the Commission Amendment
Contact details of the competent authorities Contact details of the competent authorities shall be communicated to the Commission shall be communicated to the Commission and the other Member States. The and the other Member States and be Commission shall publish and regularly available to the public. The Commission update the list of the competent authorities shall publish and regularly update the list and liaison offices. of the competent authorities and liaison offices.
Amendment 50 Proposal for a directive Article 5 – paragraph 1
Text proposed by the Commission Amendment
1. Member States shall take the appropriate 1. Member States shall take the appropriate measures to ensure that the information on measures to ensure that the information on the terms and conditions of employment the terms and conditions of employment referred to in Article 3 of Directive referred to in Article 3 of Directive 96/71/EC which are to be applied and 96/71/EC which are to be applied and complied with by service providers are complied with by service providers are made generally available in a clear, made generally available free of charge in comprehensive and easily accessible way a clear, transparent comprehensive and at a distance and by electronic means, in easily accessible way at a distance and by
PE498.030v02-00 78/120 RR\498030EN.doc EN formats and by web standards that ensure electronic means, in formats and by web access to persons with disabilities and to standards that ensure access to persons ensure that the liaison offices or the other with disabilities and to ensure that the competent national bodies referred to in liaison offices or the other competent Article 4 of Directive 96/71/EC are in a national bodies referred to in Article 4 of position to carry out their tasks effectively. Directive 96/71/EC are in a position to carry out their tasks effectively.
Amendment 51 Proposal for a directive Article 5 – paragraph 2 – introductory part
Text proposed by the Commission Amendment
2. In order to bring about further 2. In order to bring about further improvements with respect to access to improvements with respect to access to information, Member States shall: information, Member States shall in accordance with the principles established in Article 4 of Directive 96/71/EC:
Amendment 52 Proposal for a directive Article 5 – paragraph 2 – point b
Text proposed by the Commission Amendment
(b) take the necessary measures to make (b) take the necessary measures to make generally available on internet sites generally available on internet sites and by information on which collective other means information on which agreements are applicable (and to whom), collective agreements are applicable (and and which terms and conditions of to whom), and which terms and conditions employment have to be applied by service of employment have to be applied by providers from other Member States in service providers from other Member accordance with Directive 96/71/EC, States in accordance with Directive whereby, where possible, links to existing 96/71/EC, whereby, where possible, links internet sites and other contact points, in to existing internet sites and other contact particular the relevant social partners, shall points, in particular the relevant social be provided; partners, shall be provided;
Amendment 53 Proposal for a directive Article 5 – paragraph 2 – point c
Text proposed by the Commission Amendment
(c) make the information available to (c) make the information available to
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workers and service providers in workers and service providers in the languages other than the national national language(s) of the Member State language(s) of the country in which the from which the posting is made, the services are provided, if possible in language of the Member State of origin of summarised leaflet form indicating the the worker and service provider, and not main labour conditions applicable and only in the national language(s) of the upon requests in formats accessible to country in which the services are provided, persons with disabilities; if possible in summarised leaflet form indicating the main labour conditions applicable as well as describing the procedures to lodge complaints and initiate judicial or administrative proceedings and sanctions applicable in case of non-compliance and upon requests in formats accessible to persons with disabilities; Information about other contact points such as those provided by social partners shall also be made available;
Amendment 54 Proposal for a directive Article 5 – paragraph 2 – point c a (new)
Text proposed by the Commission Amendment
(ca) further detailed information on labour and social conditions including health and safety at the workplace shall be easily made available by different means of communication including contact points;
Amendment 55 Proposal for a directive Article 5 – paragraph 2 – point e a (new)
Text proposed by the Commission Amendment
(ea) improve or set up structures to inform, advise and support workers; where applicable, Member States shall make use of existing infrastructure such as the liaison offices, single points of contact and advice centres.
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Amendment 56 Proposal for a directive Article 5 – paragraph 4
Text proposed by the Commission Amendment
4. Where, in accordance with national law, 4. Where, in accordance with national law, traditions and practices, the terms and traditions and practices, and with full conditions of employment referred to in respect to the autonomy of the social Article 3 of Directive 96/71/EC are laid partners the terms and conditions of down in collective agreements in employment referred to in Article 3 of accordance with article 3 paragraph 1 and 8 Directive 96/71/EC are laid down in of that Directive, Member States should collective agreements in accordance with ensure that the social partners shall article 3 paragraph 1 and 8 of that identify these and make the relevant Directive, Member States shall ensure that information, in particular concerning the these terms and conditions are made different minimum rates of pay and their publically available in an accessible and constituent elements, the method used to transparent way to services providers from calculate the remuneration due and the host Member States and to posted workers qualifying criteria for classification in the and may involve social partners in that different wage categories, , available in an respect. The relevant information shall, in accessible and transparent way for service particular cover the different minimum providers from other Member States and rates of pay and their constituent elements, posted workers. the method used to calculate the remuneration and the qualifying criteria as well as terms and conditions of employment, available to national competent authorities. To this end, Member States may provide a official register.
Amendment 57 Proposal for a directive Article 5 – paragraph 4 – subparagraph 1 a (new)
Text proposed by the Commission Amendment
Member States shall ensure that collective agreements referred to in paragraphs 1 and 8 of Article 3 of Directive 96/71 are subject to registration in official registers and publication. Terms and conditions of employment referred to in Article 3 of the Directive 96/71 laid down in those collective agreements shall be applicable to an undertakings posting workers only from the moment of official registration
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and publication of those agreements.
Amendment 58 Proposal for a directive Article 6 – paragraph 2
Text proposed by the Commission Amendment
2. The cooperation of the Member States 2. In compliance with the principles shall in particular consist in replying to established in Article 4 and 5 of Directive reasoned requests for information and to 96/71/EC, the cooperation of the Member carry out checks, inspections and States shall in particular consist of an investigations from competent authorities obligation to reply without undue delay in with respect to the situations of posting a swift and effective manner to requests referred to in Article 1 (3) of Directive for information and to carry out checks, 96/71/EC, including investigation of any inspections and investigations by their abuses of applicable rules on the posting of competent authorities with respect to the workers or possible cases of unlawful situations of posting referred to in Article 1 transnational activities. (3) of Directive 96/71/EC and relevant articles of this Directive, including investigation of any abuses of applicable rules on the posting of workers or possible cases of unlawful transnational activities and initiating appropriate actions in accordance with with applicable national laws and practices.
Amendment 59 Proposal for a directive Article 6 – paragraph 3
Text proposed by the Commission Amendment
3. For the purpose of responding to a 3. For the purpose of responding to a request for assistance from competent request for assistance from competent authorities in another Member State, authorities in another Member State, Member States shall ensure that service Member States shall ensure that service providers established in their territory providers established in their territory supply their competent authorities with all supply their competent authorities with all the information necessary for supervising the information necessary for supervising their activities in compliance with their their activities in compliance with their national laws. national laws and Directive 96/71/EC. Where service providers fail to provide such information, the competent authorities shall initiate appropriate action.
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Amendment 60 Proposal for a directive Article 6 – paragraph 4 a (new)
Text proposed by the Commission Amendment
4a. Any long-term refusal to supply the information requested shall entitle the requesting Member State to draw up a list of competent authorities that have refused to cooperate and to inform the Commission thereof. The Commission shall after verification keep a publicly accessible list of those authorities reported by Member States to it which have not been willing to cooperate.
Amendment 61 Proposal for a directive Article 6 – paragraph 5
Text proposed by the Commission Amendment
5. Member States shall supply the 5. Member States shall supply the information requested by other Member information requested by other Member States or the Commission by electronic States or the Commission by electronic means as soon as possible and at the latest means as soon as possible and at the latest within 2 weeks from the reception of a within 2 weeks from the reception of a request. request or within 3 weeks if the answer requires an inspection on the spot. A specific urgency mechanism shall be A specific urgency mechanism shall be used for special situations where a Member used for special situations where a Member State becomes aware of particular State becomes aware of particular circumstances requiring urgent action. In circumstances requiring urgent action. In such circumstances, the information shall such circumstances, the information shall be submitted within 24 hours. be submitted within 24 hours. Without prejudice to subparagraphs 1 and 2, the competent authorities and/or inspectorates of the host Member State shall not be precluded from taking immediate measures preventing, investigating and sanctioning fraud.
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Amendment 62 Proposal for a directive Article 6 – paragraph 6
Text proposed by the Commission Amendment
6. Member States shall ensure that registers 6. Member States shall ensure that registers in which service providers have been in which service providers have been entered, and which may be consulted by entered, and which may be consulted by the competent authorities in their territory, the competent authorities in their territory, may also be consulted, in accordance with may also be consulted, in accordance with the same conditions, by the equivalent comparable conditions, by the equivalent competent authorities of the other Member competent authorities of the other Member States. States.
Amendment 63 Proposal for a directive Article 6 – paragraph 7
Text proposed by the Commission Amendment
7. Member States shall ensure the 7. Member States shall ensure the confidentiality of the information which confidentiality of the information which they exchange. Information exchanged they exchange, in accordance with Union shall be used only in respect of the law and national law and practices. matter(s) for which it was requested.
Amendment 64 Proposal for a directive Article 6 – paragraph 9
Text proposed by the Commission Amendment
9. The Commission and the competent 9. In accordance with the principle authorities shall cooperate closely in order established in Article 4 of the Directive to examine any difficulties which might 96/71/EC the Commission and the arise in the application of Article 3(10) of competent authorities shall cooperate Directive 96/71/EC. closely in order to examine any difficulties which might arise in the implementation of the Directive 96/71/EC.
Amendment 65 Proposal for a directive Article 6 – paragraph 9 a (new)
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Text proposed by the Commission Amendment
9a. In order to facilitate mutual assistance and cross-border cooperation the Commission shall not later than ... present to the European Parliament and the Council an impact assessment for the feasibility of a Union wide notification or registration system based on and compatible with existing systems in Member States. ______OJ: please insert the date: two years after the entry into force of this Directive.
Amendment 66 Proposal for a directive Article 7 – title
Text proposed by the Commission Amendment
Role of the Member State of establishment Cooperation between the Member State of establishment and the host Member State
Amendment 67 Proposal for a directive Article 7 – paragraph 1
Text proposed by the Commission Amendment
1. The Member State of establishment of 1. In accordance with the principles the service provider shall continue to established in Articles 4 and 5 of the control, monitor and take the necessary Directive 96/71/EC, the Member State of supervisory or enforcement measures, in establishment of the service provider shall accordance with its national law, practice continue to control, monitor and take the and administrative procedures, with respect necessary supervisory or enforcement to workers posted to another Member measures, in accordance with its national State. law, practice and administrative procedures, with respect to workers posted to another Member State. That responsibility shall not in any way reduce the possibilities for the host Member State, on their own initiative, to control, monitor and take necessary supervisory or enforcement measures including as
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regards the inspections of the working conditions.
Amendment 68 Proposal for a directive Article 7 – paragraph 2
Text proposed by the Commission Amendment
2. In the circumstances referred to in 2. In the circumstances referred to in Article 3 (1) and (2) and Article 9(1), the Article 3 (1) and (2) and Article 9(1) of Member State of establishment of the this Directive, the Member State of service provider shall assist the Member establishment of the service provider shall State to which the posting takes place to assist the host Member State to ensure ensure compliance with the conditions compliance with the conditions applicable applicable under Directive 96/71/EC and under Directive 96/71/EC and this this Directive. The Member State of Directive. The Member State of establishment of the service provider shall, establishment of the service provider shall, on its own initiative, communicate to the on its own initiative, or following a Member State to which the posting takes request from the host Member State, place any relevant information as specified communicate to the host Member State in Articles 3 (1) and (2) and 9(1), where any relevant information as specified in the Member State of establishment of the Articles 3 (1) and (2) and 9(1). The service provider is aware of specific facts Member State of establishment shall in the which indicate possible irregularities. spirit of Article 6(1) of this Directive, support the competent authorities of the host Member State by providing information on compliance with Article 3 of this Directive in due time.
Amendment 69 Proposal for a directive Article 7 – paragraph 3
Text proposed by the Commission Amendment
3. Competent authorities of the host 3. Competent authorities of the host Member State may equally ask the Member State may equally ask the competent authorities of the Member State competent authorities of the Member State of establishment, for each instance where of establishment, for each instance where services are provided or for each service services are provided or for each service provider, to provide information as to the provider, to provide information to verify legality of the service provider's full compliance with Directive 96/71/EC establishment, the service provider's good and this directive, including as to the conduct, and the absence of any legality of the service provider's infringement of the applicable rules. The establishment, the service provider's good
PE498.030v02-00 86/120 RR\498030EN.doc EN competent authorities of the Member State conduct, and the absence of any of establishment shall provide this infringement of the applicable rules. . The information in accordance with Article 6. competent authorities of the Member State of establishment shall provide this information in accordance with Article 6.
Amendment 70 Proposal for a directive Article 7 – paragraph 4
Text proposed by the Commission Amendment
4. The obligation laid down in paragraphs 4. Checks and controls shall be carried out, 1 and 2 shall not entail a duty on the part where needed, by the authorities of the of the Member State of establishment to host Member State in accordance with carry out factual checks and controls in Article 10 and in conformity with the the territory of the host Member State powers of supervision provided for in the where the service is provided. Such checks host Member State's national law, practice and controls shall, if need be, be carried and administrative procedures. out by the authorities of the host Member State at the request of the competent authorities of the Member State of establishment, in accordance with Article 10 and in conformity with the powers of supervision provided for in the host Member State's national law, practice and administrative procedures and which respect Union law.
Amendment 71 Proposal for a directive Article 8 – paragraph 1 a (new)
Text proposed by the Commission Amendment
1a. Member States shall, with the assistance of the Commission, take accompanying measures to develop, facilitate and promote the exchange between social partners as well as to ensure that organisations providing information to posted workers are supported.
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Amendment 72 Proposal for a directive Article 9 – paragraph 1 – point b
Text proposed by the Commission Amendment
(b) an obligation to keep or make available (b) an obligation to keep or make available and/or retain copies in paper or electronic within a reasonable period of time and/or form of the employment contract (or an retain, at the choice of the services equivalent document within the meaning of provider, copies in paper or electronic form Directive 91/533, including, where of the employment contract (or an appropriate or relevant, the additional equivalent document within the meaning of information referred to in Article 4 of that Directive 91/533, including, where Directive), payslips, time-sheets and proof appropriate or relevant, the additional of payment of wages or copies of information referred to in Article 4 of that equivalent documents during the period of Directive), payslips, time-sheets and proof posting in an accessible and clearly of payment of wages or copies of identified place in its territory, such as the equivalent documents, issued in workplace or the building site, or for accordance with the national law of the mobile workers in the transport sector the Member State of establishment, during the operations base or the vehicle with which period of posting in an accessible and the service is provided; clearly identified place in its territory, such as the workplace or the building site, or for mobile workers in the transport sector the operations base or the vehicle with which the service is provided;
Amendment 73 Proposal for a directive Article 9 – paragraph 1 – point c
Text proposed by the Commission Amendment
(c) a translation of the documents referred (c) a translation of the documents referred to under (b), may be justified provided to under (b), may be justified provided these documents are not excessively long these documents are important in order to and standardised forms are generally used establish the nature of posting and the for such documents; compliance with Directive 96/71/EC not excessively long and standardised forms are generally used for such documents;
Amendment 74 Proposal for a directive Article 9 – paragraph 2 a (new)
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Text proposed by the Commission Amendment
2a. Member States shall ensure that all administrative requirements and control measures are publicly available to the service providers and regularly updated.
Amendment 75 Proposal for a directive Article 9 – paragraph 3
Text proposed by the Commission Amendment
3. Within three years after the date referred 3. Within three years after the date referred to in Article 20, the necessity and to in Article 20, the necessity, appropriateness of the application of appropriateness and sufficient national control measures shall be effectiveness of the application of national reviewed in the light of the experiences control measures shall be reviewed in the with and effectiveness of the system for light of the experiences with and cooperation and exchange of information, effectiveness of the system for cooperation the development of more uniform, and exchange of information, the standardised documents, the establishment development of more uniform, of common principles or standards for standardised documents, the establishment inspections in the field of the posting of of common principles or standards for workers as well as technological inspections in the field of the posting of developments, with a view to proposing, workers as well as technological, social where appropriate, any necessary and economic developments of posting, amendments or modifications. with a view to proposing, where appropriate, any necessary amendments or modifications to ensure effective controls of employment conditions by the competent authorities of the host Member State.
Amendment 76 Proposal for a directive Article 10 – paragraph 1
Text proposed by the Commission Amendment
1. Member States shall ensure that 1. Member States shall ensure that effective appropriate checks and monitoring and appropriate checks and monitoring mechanisms are put in place and that mechanisms are put in place and that effective and adequate inspections are effective and adequate inspections are carried out on their territory in order to carried out on their territory in order to
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control and monitor compliance with the control and monitor compliance with the provisions and rules laid down in Directive provisions and rules laid down in Directive 96/71/EC and to guarantee its proper 96/71/EC and to guarantee its proper application and enforcement. Such application and enforcement. Such inspections shall be based primarily on a inspections shall be based primarily on a risk assessment to be drawn up regularly risk assessment to be drawn up by the by the competent authorities. The risk competent authorities. The risk assessment assessment shall identify the sectors of shall identify the sectors of activity in activity in which the employment of which the employment of workers posted workers posted for the provision of for the provision of services is services is concentrated on their territory. concentrated on their territory. When making such risk assessment the realisation of big infrastructural projects, the special problems and needs of specific sectors, the past record of infringement, as well as the vulnerability of certain groups of workers shall be taken into account.
Amendment 77 Proposal for a directive Article 10 – paragraph 2
Text proposed by the Commission Amendment
2. Member States shall ensure that 2. Member States shall ensure that inspections and controls of compliance inspections and controls of compliance with Directive 96/71/EC are not with Directive 96/71/EC are not discriminatory and/or disproportionate. discriminatory and/or disproportionate. According to its own practice, the competent authority shall provide the inspected or controlled undertaking with a post inspectioin or control document which includes any relevant information.
Amendment 78 Proposal for a directive Article 10 – paragraph 5
Text proposed by the Commission Amendment
5. Member States where labour 5. In accordance with Article 5 of inspectorates have no competence with Directive 96/71/EC Member States are respect to the control and monitoring of entitled to use arrangements in line with the working conditions and/or terms and their national law and practice to ensure conditions of employment of posted compliance with Directive 96/71/EC in
PE498.030v02-00 90/120 RR\498030EN.doc EN workers may, by way of exception, after order to guarantee the persons concerned consulting the social partners at national an adequate degree of protection as level, establish or maintain arrangements defined by Directive 96/71/EC and this guaranteeing the respect of these terms Directive. and conditions of employment, provided that the arrangements offer the persons concerned an adequate degree of protection equivalent to that resulting from Directive 96/71/EC and this Directive.
Amendment 79 Proposal for a directive Article 11 – paragraph 1
Text proposed by the Commission Amendment
1. For the enforcement of the obligations 1. For the enforcement of the obligations under Article 6 of Directive 96/71/EC and under Article 6 of Directive 96/71/EC and this Directive, Member States shall ensure this Directive, Member States shall ensure that there are effective mechanisms for that there are effective mechanisms for posted workers to lodge complaints against posted workers to lodge complaints against their employers directly, as well as the their employers directly, as well as the right to institute judicial or administrative right to institute judicial or administrative proceedings, also in the Member State in proceedings, irrespective of it is the whose territory the workers are or were Member State of establishment of the posted, where such workers consider they undertaking or the host Member State, have sustained loss or damage as a result of where such workers consider they have a failure to apply the applicable rules, even sustained loss or damage as a result of a after the relationship in which the failure is failure to apply the applicable rules, even alleged to have occurred has ended. after the relationship in which the failure is alleged to have occurred has ended.
Amendment 80 Proposal for a directive Article 11 – paragraph 3
Text proposed by the Commission Amendment
3. Member States shall ensure that trade 3. Member States shall ensure that trade unions and other third parties, such as unions and other third parties, such as associations, organisations and other legal associations, organisations and other legal entities which have, in accordance with the entities which have, in accordance with the criteria laid down by their national law, a criteria laid down by their national law, a legitimate interest in ensuring that the legitimate interest in ensuring that the provisions of this Directive are complied provisions of Directive 96/71/EC and this with, may engage, on behalf or in support Directive are complied with, may engage,
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of the posted workers or their employer, on behalf or in support of the posted with their approval in any judicial or workers or their employer, where administrative proceedings provided for applicable with their approval in any with the objective of implementing this judicial or administrative proceedings Directive and/or enforcing the obligations provided for with the objective of under this Directive. implementing Directive 96/71/EC and this Directive and/or enforcing the obligations under Directive 96/71/EC and this Directive.
Amendment 81 Proposal for a directive Article 11 – paragraph 5 – subparagraph 1 – introductory part
Text proposed by the Commission Amendment
Member States shall ensure that the Member States shall ensure that the necessary mechanisms are in place to necessary mechanisms are in place to ensure that posted workers are able to ensure that posted workers or those acting receive on their behalf are able to claim and that posted workers are able to receive:
Amendment 82 Proposal for a directive Article 11 – paragraph 5 – subparagraph 1 – point b
Text proposed by the Commission Amendment
(b) refund of excessive costs, in relation to (b) refund of excessive costs or costs net remuneration or to the quality of the relating to travel, board and accommodation, withheld or deducted accommodation, automatically deducted from wages for accommodation provided from wages for which no reimbursement by the employer. was provided by the employer;
Amendment 83 Proposal for a directive Article 11 – paragraph 5 – subparagraph 1 – point b a (new)
Text proposed by the Commission Amendment
(ba) any back payments or refund of taxes or social security contributions unduly withheld from the worker's salary.
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Amendment 84 Proposal for a directive Article 11 – paragraph 5 a (new)
Text proposed by the Commission Amendment
5a. Posted workers initiating judicial or administrative proceedings shall not receive any unfavourable treatment by their employer.
Amendment 85 Proposal for a directive Article 12
Text proposed by the Commission Amendment
[...] deleted
Amendment 86 Proposal for a directive Article 13 – paragraph 1
Text proposed by the Commission Amendment
1. Without prejudice to the means which 1. Without prejudice to the means which are or may be provided for in Union are or may be provided for in Union legislation, the principles of mutual legislation, the principles of mutual assistance and recognition as well as the assistance and recognition as well as the measures and procedures provided for in measures and procedures provided for in this Article shall apply to the cross-border this Article shall apply to the cross-border enforcement of administrative fines and enforcement of administrative fines and penalties imposed for failure to comply penalties regarding posting of workers with the applicable rules in a Member State situations in accordance with Directive on a service provider established in another 96/71 and this Directive, imposed for Member State. failure to comply with the applicable rules in a Member State on a service provider established in another Member State.
Amendment 87 Proposal for a directive Article 13 – paragraph 2 – subparagraph 1
Text proposed by the Commission Amendment
2. The requesting authority may, in 2. The requesting authority may, in
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accordance with the laws, regulations and accordance with the laws, regulations and administrative practices in force in its own administrative practices in force in its own Member State, request the competent Member State, request the competent authority in another Member State to authority in another Member State to recover a penalty or fine or notify a recover a penalty or fine or retroactive decision imposing a penalty or a fine, in so social security contributions in far as the relevant laws, regulations and accordance with Regulation (EC) No administrative practices in force in the 987/2009/EC or notify a decision imposing requested authority's Member State allow a penalty or a fine or retroactive social such action for similar claims or decisions. security in accordance with Regulation (EC) No 987/2009/EC, in so far as the relevant laws, regulations and administrative practices in force in the requested authority's Member State allow such action for similar claims or decisions.
Amendment 88 Proposal for a directive Article 14 – paragraph 3 a (new)
Text proposed by the Commission Amendment
3a. The provisions on recovery of fines or penalties or retroactive sociual security contributions shall also apply to fines imposed as part of enforceable statutory decisions by national courts.
Amendment 89 Proposal for a directive Article 16 – paragraph 1 – subparagraph 2
Text proposed by the Commission Amendment
The requested authority may recover The requested authority may recover amounts from the natural or legal person amounts from the natural or legal person concerned and retain any costs which it concerned and retain any costs which it incurs in connection with recovery, in incurs in connection with recovery, in accordance with the laws, regulations and accordance with the laws, regulations and administrative procedures or practices of administrative procedures or practices of the requested Member State which apply to the requested Member State which apply to similar claims. similar claims. If the requested authority retains any costs incurred in connection with recovery, it shall inform the requesting authority and provide a justification of those costs.
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Amendment 90 Proposal for a directive Article 18 – paragraph 1
Text proposed by the Commission Amendment
1. The administrative cooperation and 1. The administrative cooperation and mutual assistance between the competent mutual assistance between the competent authorities of the Member States provided authorities of the Member States provided for in Articles 6, 7, 10(3), 13, 14 and 15 for in Articles 6, 7, 10(3), 13, 14 and 15 shall be implemented through the Internal shall be implemented through the Internal Market Information System (IMI), Market Information System (IMI), established by [reference to IMI established by Regulation (EU) No Regulation] . 1024/2012 and where deemed necessary by the concerned Member State be accompanied by other established means of cooperation such as bilateral agreements.
Amendment 91 Proposal for a directive Article 18 – paragraph 2
Text proposed by the Commission Amendment
2. Member States may continue to apply 2. Where appropriate and in accordance bilateral arrangements concerning with the principles established in Directive administrative cooperation between their 96/71/EC, Member States are free to apply competent authorities as regards the bilateral arrangements concerning application and monitoring of the terms administrative cooperation and mutual and conditions of employment applicable assistance between their competent to posted workers referred to in Article 3 authorities as regards the enforcement of of Directive 96/71/EC, in so far as these Directive 96/71/EC and this Directive, in arrangements do not adversely affect the so far as these arrangements do not rights and obligations of the workers and adversely affect the rights and obligations companies concerned. of the workers and companies concerned. Not later than ... the European Commission will evaluate the interaction between the IMI and the bilateral agreements. ______OJ: please insert the date: 5 years after the entry into force of this Directive.
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Amendment 92 Proposal for a directive Article 18 – paragraph 3
Text proposed by the Commission Amendment
3. In the context of bilateral agreements 3. In the context of bilateral agreements referred to in paragraph 2, competent referred to in paragraph 2, competent authorities of the Member States shall use authorities of the Member States shall use IMI as much as possible. In any event, IMI as much as possible. In any event, where a competent authority in one of the where a competent authority in one of the Member States concerned has used IMI, it Member States concerned has used IMI, it shall be used for any follow-up required shall where possible be used for any and shall take precedence over the follow-up required. mechanism(s) foreseen in such a bilateral agreement with respect to administrative cooperation and mutual assistance.
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PROCEDURE
Title Enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services References COM(2012)0131 – C7-0086/2012 – 2012/0061(COD) Committee responsible EMPL Date announced in plenary 18.4.2012
Opinion by IMCO Date announced in plenary 18.4.2012
Rapporteur Emilie Turunen Date appointed 8.5.2012 Discussed in committee 18.9.2012 10.10.2012 28.11.2012 Date adopted 21.2.2013
Result of final vote +: 20 –: 15 0: 4
Members present for the final vote Pablo Arias Echeverría, Adam Bielan, Preslav Borissov, Birgit Collin- Langen, Lara Comi, Anna Maria Corazza Bildt, Cornelis de Jong, Christian Engström, Vicente Miguel Garcés Ramón, Evelyne Gebhardt, Małgorzata Handzlik, Malcolm Harbour, Philippe Juvin, Sandra Kalniete, Edvard Kožušník, Toine Manders, Hans-Peter Mayer, Franz Obermayr, Sirpa Pietikäinen, Phil Prendergast, Mitro Repo, Heide Rühle, Christel Schaldemose, Andreas Schwab, Catherine Stihler, Róża Gräfin von Thun und Hohenstein, Emilie Turunen, Bernadette Vergnaud, Barbara Weiler Substitute(s) present for the final vote Jürgen Creutzmann, Ildikó Gáll-Pelcz, María Irigoyen Pérez, Constance Le Grip, Antonyia Parvanova, Marc Tarabella, Kyriacos Triantaphyllides, Rafał Trzaskowski, Patricia van der Kammen Substitute(s) under Rule 187(2) present Norbert Glante for the final vote
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29.4.2013
OPINION OF THE COMMITTEE ON LEGAL AFFAIRS
for the Committee on Employment and Social Affairs
on the 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 (COM(2012)0131 – C7-0086/2012 – 2012/0061(COD))
Rapporteur: Klaus-Heiner Lehne
AMENDMENTS
The Committee on Legal Affairs calls on the Committee on Employment and Social Affairs, as the committee responsible, to incorporate the following amendments into its report:
Amendment 1 Proposal for a directive Recital 4
Text proposed by the Commission Amendment
(4) In order to prevent, avoid and combat (4) In order to prevent, avoid and combat circumvention and/or abuse of the circumvention and/or abuse of the applicable rules by companies taking applicable rules by companies taking improper or fraudulent advantage of the improper or fraudulent advantage of the freedom to provide services enshrined in freedom to provide services enshrined in the Treaty and/or the application of the Treaty and/or the application of Directive 96/71/EC the implementation Directive 96/71/EC the implementation and monitoring of the notion of posting and monitoring of the notion of posting should be improved. should be improved and more uniform criteria, facilitating a common interpretation, should be introduced at
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Union level.
Amendment 2 Proposal for a directive Recital 4 a (new)
Text proposed by the Commission Amendment
(4a) All measures introduced by this Directive must be justified, proportionate and non-discriminatory so that they do not create administrative burdens and do not lock the potential that companies, in particular small and medium enterprises, have for creating new jobs, while protecting posted workers.
Amendment 3 Proposal for a directive Recital 6 a (new)
Text proposed by the Commission Amendment
(6a) Competent authorities should make an overall assessment of all factual elements in order to determine whether the worker is genuinely posted. If the proof cannot be produced, Member States involved should collaborate closely and without delay in order to choose which law is applicable to the employment contract, basing their decision on the Rome I Regulation.
Amendment 4 Proposal for a directive Recital 13 a (new)
Text proposed by the Commission Amendment
(13a) The next revision of the IMI regulation should take into account the fact that the IMI incorporates what is currently regulated within bilateral
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agreements.
Amendment 5 Proposal for a directive Recital 14
Text proposed by the Commission Amendment
(14) Member States obligations to make (14) Member States obligations to make information on terms and conditions of information on terms and conditions of employment generally available and to employment generally available free of provide effective access to it, not only to charge and to provide effective access to service providers from other Member it, not only to service providers from other States, but also to the posted workers Member States, but also to the posted concerned, should be further concretised. workers concerned, should be further concretised.
Amendment 6 Proposal for a directive Recital 14 a (new)
Text proposed by the Commission Amendment
(14a) Posted workers should have an individual right to information and advice about their rights, obligations and applicable working conditions and terms of employment.
Amendment 7 Proposal for a directive Recital 16
Text proposed by the Commission Amendment
(16) In order to ensure the correct (16) In order to ensure the correct application of, and to monitor compliance application of, and to monitor compliance with, the substantive rules on the terms and with, the substantive rules on the terms and conditions of employment to be respected conditions of employment to be respected with regard to posted workers, Member with regard to posted workers, Member States should apply only certain control States should apply only certain control measures or administrative formalities to measures or administrative formalities to undertakings posting workers for the undertakings posting workers for the provision of services. Such measures and provision of services. For the purpose of
PE498.030v02-00 100/120 RR\498030EN.doc EN requirements may only be imposed legal clarity, possible control measures provided that the competent authorities and requirements should be uniform at cannot carry out their supervisory task Union level and may only be imposed effectively without the requested provided that the competent authorities information and the necessary information cannot carry out their supervisory task cannot be obtained easily from the effectively without the requested employer of posted workers or the information and the necessary information authorities in the Member State of cannot be obtained easily from the establishment of the service provider employer of posted workers or the within a reasonable delay and/or less authorities in the Member State of restrictive measures would not ensure that establishment of the service provider the objectives of the national controls within a reasonable delay and/or less measures deemed necessary are attained. restrictive measures would not ensure that the objectives of the national controls measures deemed necessary are attained.
Amendment 8 Proposal for a directive Recital 22
Text proposed by the Commission Amendment
(22) Member States are particularly (22) Member States are particularly encouraged to introduce a more integrated encouraged to introduce a more integrated approach to labour inspections. The need approach to labour inspections. There is to develop common standards in order to also a need to develop common standards establish comparable methods, practices in order to establish comparable methods, and minimum standards at Union level practices and minimum standards at Union should equally be examined. level.
Amendment 9 Proposal for a directive Recital 24
Text proposed by the Commission Amendment
(24) In view of the prevalence of (24) In view of the prevalence of subcontracting in the construction sector, subcontracting in the construction sector, and in order to protect posted workers’ and in order to protect posted workers’ rights, it is necessary to ensure that in such rights, it is recommended that in such sector at least the contractor of which the sector at least the contractor of which the employer is a direct subcontractor can be employer is a direct subcontractor can be held liable to pay to posted workers the net held liable to pay to posted workers the net minimum rates of pay due, any back- minimum rates of pay due, any back- payments of outstanding remuneration payments of outstanding remuneration
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and/or contributions due to common funds and/or contributions due to common funds or institutions of social partners regulated or institutions of social partners regulated by law or collective agreement in so far as by law or collective agreement in so far as these are covered by Article 3 (1) of these are covered by Article 3 (1) of Directive 96/71/EC in addition to or in Directive 96/71/EC in addition to or in place of the employer. The contractor shall place of the employer. The contractor may not be held liable if he/she has undertaken not be held liable if he/she has undertaken due diligence. The latter may imply due diligence. The latter may imply preventive measures concerning proof preventive measures concerning proof provided by the subcontractor, including provided by the subcontractor, including where relevant based upon information where relevant based upon information emanating from national authorities. emanating from national authorities.
Amendment 10 Proposal for a directive Recital 25
Text proposed by the Commission Amendment
(25) In specific cases, other contractors deleted may, in accordance with national law and practice, be also held liable for failure to comply with the obligations under this Directive, or their liability may be limited, after consultation of the social partners at national or sectoral level.
Amendment 11 Proposal for a directive Recital 26
Text proposed by the Commission Amendment
(26) The obligation to impose a liability deleted requirement on the contractor where the direct subcontractor is a service provider, established in another Member State, posting workers is justified in the overriding public interest of the social protection of workers. Such posted workers may not be in the same situation as workers employed by a direct subcontractor established in the Member State of establishment of the contractor with regard to the possibility to claim
PE498.030v02-00 102/120 RR\498030EN.doc EN outstanding pay or refunds of taxes or social security contributions unduly withheld.
Amendment 12 Proposal for a directive Recital 27
Text proposed by the Commission Amendment
(27) The disparities between the systems of (27) The disparities between the systems of the Member States for enforcing imposed the Member States for enforcing imposed administrative fines and/or penalties in administrative fines and/or penalties in cross-border situations are prejudicial to cross-border situations are prejudicial to the proper functioning of the internal the proper functioning of the internal market and risk making it very difficult, if market and risk making it very difficult, if not impossible, to ensure that posted not impossible, to ensure that posted workers enjoy an equivalent level of workers enjoy an equivalent level of protection throughout the Union. protection throughout the Union. Nevertheless, Member States should ensure that efficient administrative fines and/or penalties to ensure compliance with Directive 96/71/EC and this Directive are provided for.
Amendment 13 Proposal for a directive Recital 32
Text proposed by the Commission Amendment
(32) Member States should take (32) Member States should take appropriate measures in the event of failure appropriate measures in the event of failure to comply with the obligations laid down in to comply with the obligations laid down in this Directive, including administrative and this Directive, including administrative and judicial procedures, and should provide for judicial procedures, and should provide for effective, dissuasive and proportionate effective, dissuasive and proportionate penalties for any breaches of the penalties for any breaches of the obligations under this Directive. obligations under this Directive. Good cooperation between the Member States is essential for a correct enforcement of Directive 96/71/EC and for creating a level playing field for companies and workers.
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Amendment 14 Proposal for a directive Article 1 – paragraph 1 – subparagraph 1
Text proposed by the Commission Amendment
1. This Directive establishes a general 1. This Directive sets up provisions, common framework of appropriate measures and control mechanisms to provisions, measures and control ensure a better and more uniform mechanisms necessary for better and more implementation, application and uniform implementation, application and enforcement by the Member States in enforcement in practice of Directive practice of Directive 96/71/EC, including 96/71/EC, including measures to prevent measures to prevent and sanction any and sanction any abuse and circumvention abuse and circumvention of the applicable of the applicable rules. rules.
Amendment 15 Proposal for a directive Article 2 – point a
Text proposed by the Commission Amendment
(a) ‘competent authority’ means an (a) ‘competent authority’ means public authority designated by a Member State to authorities designated by a Member State perform functions under this Directive; to perform functions under this Directive;
Amendment 16 Proposal for a directive Article 2 – point a – paragraph 1 a (new)
Text proposed by the Commission Amendment
The competent authorities may include the liaison offices under Article 4 of Directive 96/71/EC;
Amendment 17 Proposal for a directive Article 2 – point a – paragraph 1 b (new)
Text proposed by the Commission Amendment
Contact details of the competent authorities shall be communicated to the
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Commission and the other Member States. The Commission shall publish and regularly update the list of the competent authorities and liaison offices.
Amendment 18 Proposal for a directive Article 2 – point b
Text proposed by the Commission Amendment
(b) ‘requesting authority’ means the (b) ‘requesting authority’ means the competent authority of a Member State competent authority of a Member State which makes a request for assistance, which makes a request for assistance, information, notification or recovery information, notification or recovery; concerning a penalty or fine as referred to in Chapter V;
Amendment 19 Proposal for a directive Article 2 – point c
Text proposed by the Commission Amendment
(c) ‘requested authority’ means the (c) ‘requested authority’ means the competent authority of a Member State to competent authority of a Member State to which a request for assistance, information, which a request for assistance, information, notification or recovery is made. notification or recovery is made, as referred to in Chapter VI.
Amendment 20 Proposal for a directive Article 3 – paragraph 1 – introductory part
Text proposed by the Commission Amendment
1. For the purpose of implementing, 1. For the purpose of implementing, applying and enforcing Directive 96/71/EC applying and enforcing Directive 96/71/EC the competent authorities shall take into the competent authorities shall take into account factual elements characterising the account factual elements characterising the activities carried out by an undertaking in activities carried out by an undertaking in the State in which it is established in order the Member State in which it is established to determine whether it genuinely performs in order to determine whether it genuinely substantial activities, other than purely posts workers to the territory of another
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internal management and/or Member State in the framework of administrative activities. Such elements transnational provision of services. may include: performs substantial activities, other than purely internal management and/or administrative activities. Such elements may only include:
Amendment 21 Proposal for a directive Article 3 – paragraph 1 – point b
Text proposed by the Commission Amendment
(b) the place where posted workers are (b) the place where posted workers are recruited, recruited and from which they are posted,
Amendment 22 Proposal for a directive Article 3 – paragraph 1 – point d
Text proposed by the Commission Amendment
(d) the place where the undertaking (d) the place where the undertaking performs its substantial business activity performs its business activity, which in a and where it employs administrative staff, wider time-frame assessment is not limited to purely internal management and/or administrative activities,
Amendment 23 Proposal for a directive Article 3 – paragraph 1 – point e
Text proposed by the Commission Amendment
(e) the abnormally limited number of deleted contracts performed and/or size of turnover realised in the Member State of establishment.
Justification
Deletion aiming at taking into account the situation of newly established SMEs which may from the beginning get a contract and use posted workers. In such a situation, they would automatically have a lower turnover in the Member State of establishment but this would not
PE498.030v02-00 106/120 RR\498030EN.doc EN affect the genuine nature of the company of the establishment situation.
Amendment 24 Proposal for a directive Article 3 – paragraph 2 – subparagraph 2 – introductory part
Text proposed by the Commission Amendment
Such elements may include: Such elements may only include:
Amendment 25 Proposal for a directive Article 3 – paragraph 2 a (new)
Text proposed by the Commission Amendment
2a. Within three years after the date referred to in Article 20, the necessity and appropriateness of the elements enumerated in paragraphs 1 and 2 of this article shall be reviewed in the light of defining possible new elements which shall be taken into account in order to determine whether the undertaking is genuine and a posted worker temporarily carries out his or her work, with a view to proposing, where appropriate, any necessary amendments or modifications.
Amendment 26 Proposal for a directive Article 5 – paragraph 1
Text proposed by the Commission Amendment
1. Member States shall take the appropriate 1. Member States shall take the appropriate measures to ensure that the information on measures to ensure that the information on the terms and conditions of employment the terms and conditions of employment referred to in Article 3 of Directive referred to in Article 3 of Directive 96/71/EC which are to be applied and 96/71/EC which are to be applied and complied with by service providers are complied with by service providers, made generally available in a clear, including those laid down in collective comprehensive and easily accessible way agreements, are made generally available at a distance and by electronic means, in free of charge and in a clear, formats and by web standards that ensure comprehensive and easily accessible way
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access to persons with disabilities and to at a distance and by electronic means, in ensure that the liaison offices or the other formats and by web standards that ensure competent national bodies referred to in access to persons with disabilities and to Article 4 of Directive 96/71/EC are in a ensure that the liaison offices or the other position to carry out their tasks effectively. competent national bodies referred to in Article 4 of Directive 96/71/EC are in a position to carry out their tasks effectively.
Amendment 27 Proposal for a directive Article 5 – paragraph 2 – point c
Text proposed by the Commission Amendment
(c) make the information available to (c) make the information available to workers and service providers in languages workers and service providers in the most other than the national language(s) of the relevant languages other than the national country in which the services are provided, language(s) of the country in which the if possible in summarised leaflet form services are provided, if possible in indicating the main labour conditions summarised leaflet form indicating the applicable and upon requests in formats main labour conditions applicable and accessible to persons with disabilities; upon requests in formats accessible to persons with disabilities;
Amendment 28 Proposal for a directive Article 6 – paragraph 2
Text proposed by the Commission Amendment
2. The cooperation of the Member States 2. The cooperation of the Member States shall in particular consist in replying to shall in particular consist in replying reasoned requests for information and to without delay to requests for information carry out checks, inspections and and to carry out checks, inspections and investigations from competent authorities investigations from competent authorities with respect to the situations of posting with respect to the situations of posting referred to in Article 1 (3) of Directive referred to in Article 1 (3) of Directive 96/71/EC, including investigation of any 96/71/EC, including investigation of any abuses of applicable rules on the posting of abuses of applicable rules on the posting of workers or possible cases of unlawful workers. transnational activities.
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Amendment 29 Proposal for a directive Article 6 – paragraph 3
Text proposed by the Commission Amendment
3. For the purpose of responding to a 3. For the purpose of responding to a request for assistance from competent request for assistance from competent authorities in another Member State, authorities in another Member State, Member States shall ensure that service Member States shall ensure that service providers established in their territory providers established in their territory supply their competent authorities with all supply their competent authorities with all the information necessary for supervising the information necessary for supervising their activities in compliance with their their activities in compliance with their national laws. national laws. Where service providers fail to provide such information, appropriate action must be initiated by the competent authorities within the host state and where appropriate in cooperation with the competent authorities of the state of establishment.
Justification
Competent Authorities within host states must enforce EU and national employment laws effectively. Where a breach is identified, and for any reason legal action is not possible in the host state, both states must cooperate to ensure that the service provider is held accountable, provides the appropriate remuneration to posted workers, and faces the relevant criminal sanctions.
Amendment 30 Proposal for a directive Article 6 – paragraph 4
Text proposed by the Commission Amendment
4. In the event of difficulty in meeting a 4. In the event of difficulty in meeting a request for information or in carrying out request for information or in carrying out checks, inspections or investigations, the checks, inspections or investigations, the Member State in question shall rapidly Member State in question shall rapidly inform the requesting Member State with a inform the requesting Member State with a view to finding a solution. view to finding a solution. In the event of any persisting problems in the exchange of information, the Commission should intervene in order to assist Member States in solving the problem.
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Amendment 31 Proposal for a directive Article 6 – paragraph 5 – subparagraph 1
Text proposed by the Commission Amendment
5. Member States shall supply the 5. Member States shall supply the information requested by other Member information requested by other Member States or the Commission by electronic States or the Commission by electronic means as soon as possible and at the latest means as soon as possible and at the latest within 2 weeks from the reception of a within 2 weeks from the reception of a request. request or within one month if the answer requires an on-the-spot inspection. Where the request is of an urgent nature, the information must be sent within three days of the reception of the request.
Amendment 32 Proposal for a directive Article 6 – paragraph 5 – subparagraph 2
Text proposed by the Commission Amendment
A specific urgency mechanism shall be deleted used for special situations where a Member State becomes aware of particular circumstances requiring urgent action. In such circumstances, the information shall be submitted within 24 hours.
Amendment 33 Proposal for a directive Article 6 – paragraph 7
Text proposed by the Commission Amendment
7. Member States shall ensure the 7. Member States shall ensure the confidentiality of the information which confidentiality of the information which they exchange. Information exchanged they exchange in accordance with Union shall be used only in respect of the data protection rules as well as their matter(s) for which it was requested. national law and practice.
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Amendment 34 Proposal for a directive Article 7 – paragraph 3
Text proposed by the Commission Amendment
3. Competent authorities of the host 3. Competent authorities of the host Member State may equally ask the Member State may equally ask the competent authorities of the Member State competent authorities of the Member State of establishment, for each instance where of establishment, for each instance where services are provided or for each service services are provided or for each service provider, to provide information as to the provider, to provide information as to the legality of the service provider’s legality of the service provider’s establishment, the service provider’s good establishment. The competent authorities conduct, and the absence of any of the Member State of establishment shall infringement of the applicable rules. The provide this information in accordance competent authorities of the Member State with Article 6. of establishment shall provide this information in accordance with Article 6.
Amendment 35 Proposal for a directive Article 9 – paragraph 1 – point a
Text proposed by the Commission Amendment
(a) an obligation for a service provider (a) an obligation for a service provider established in another Member State to established in another Member State to make a simple declaration to the make a declaration to the responsible responsible national competent authorities national competent authorities by the at the latest at the commencement of the commencement of the service provision, service provision, whereby the declaration whereby the declaration may only cover may only cover the identity of the service the identity of the service provider, the provider, the presence of one or more presence of one or more clearly identifiable clearly identifiable posted workers, their posted workers, their anticipated number, anticipated number, the anticipated the anticipated duration and location of duration and location of their presence, and their presence, and the services justifying the services justifying the posting; the posting;
Amendment 36 Proposal for a directive Article 9 – paragraph 1 – point c
Text proposed by the Commission Amendment
(c) a translation of the documents referred (c) the possibility to request the translation
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to under (b), may be justified provided of the documents referred to under (b), these documents are not excessively long may be justified provided these documents and standardised forms are generally used are not excessively long and standardised for such documents; forms are generally used for such documents;
Amendment 37 Proposal for a directive Article 9 – paragraph 1 – point d
Text proposed by the Commission Amendment
(d) an obligation to designate a contact (d) the possibility to request the person to negotiate, if necessary, on behalf designation of a contact person to of the employer with the relevant social negotiate, if necessary, on behalf of the partners in the Member State to which the employer with the relevant social partners posting takes place, in accordance with in the host Member State, in accordance national legislation and practice, during with national legislation and practice, the period in which the services are within the period in which the services are provided. provided.
Amendment 38 Proposal for a directive Article 10 – paragraph 1
Text proposed by the Commission Amendment
1. Member States shall ensure that 1. Member States shall ensure that effective appropriate checks and monitoring checks and monitoring mechanisms are put mechanisms are put in place and that in place and that effective and adequate effective and adequate inspections are inspections are carried out on their territory carried out on their territory in order to in order to control and monitor compliance control and monitor compliance with the with the provisions and rules laid down in provisions and rules laid down in Directive Directive 96/71/EC and in this Directive 96/71/EC and to guarantee its proper and to guarantee its proper application and application and enforcement. Such enforcement. Such inspections shall be inspections shall be based primarily on a based primarily on a risk assessment to be risk assessment to be drawn up regularly drawn up regularly by the competent by the competent authorities. The risk authorities. The risk assessment shall assessment shall identify the sectors of identify the sectors of activity in which the activity in which the employment of employment of workers posted for the workers posted for the provision of provision of services is concentrated on services is concentrated on their territory. their territory. When making such risk When making such risk assessment the assessment the realisation of big realisation of big infrastructural projects, infrastructural projects, the special
PE498.030v02-00 112/120 RR\498030EN.doc EN the special problems and needs of specific problems and needs of specific sectors, the sectors, the past record of infringement, as past record of infringement, as well as the well as the vulnerability of certain groups vulnerability of certain groups of workers of workers shall be taken into account. shall be taken into account.
Amendment 39 Proposal for a directive Article 11 – paragraph 3
Text proposed by the Commission Amendment
3. Member States shall ensure that trade deleted unions and other third parties, such as associations, organisations and other legal entities which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, on behalf or in support of the posted workers or their employer, with their approval in any judicial or administrative proceedings provided for with the objective of implementing this Directive and/or enforcing the obligations under this Directive.
Amendment 40 Proposal for a directive Article 11 – paragraph 4
Text proposed by the Commission Amendment
4. Paragraphs 1 and 3 shall apply without 4. Paragraphs 1 and 3 shall apply without prejudice to national rules on prescription prejudice to national rules on prescription deadlines or time limits for bringing deadlines or time limits for bringing similar actions and to national rules of similar actions and to national rules of procedure concerning representation and procedure concerning representation and defence before the courts. defence before the courts. However, a minimum period of at least six months for filing a claim shall be provided for under national rules of procedure.
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Amendment 41 Proposal for a directive Article 12 – paragraph 1 – subparagraph 1 – introductory part
Text proposed by the Commission Amendment
1. With respect to the construction 1. With respect to the construction activities referred to in the Annex to activities referred to in the Annex to Directive 96/71/EC, for all posting Directive 96/71/EC, for all posting situations covered by Article 1(3) of situations covered by Article 1(3) of Directive 96/71/EC, the Member States Directive 96/71/EC, the Member States are shall ensure on a non–discriminatory encouraged to introduce a system in basis with regard to the protection of the which the contractor of which the equivalent rights of employees of direct employer (service provider or temporary subcontractors established in its territory, employment undertaking or placement that the contractor of which the employer agency) is a direct subcontractor can, in (service provider or temporary addition to or in place of the employer, be employment undertaking or placement held liable by the posted worker and/or agency) is a direct subcontractor can, in common funds or institutions of social addition to or in place of the employer, be partners for non-payment of the following: held liable by the posted worker and/or common funds or institutions of social partners for non-payment of the following:
Amendment 42 Proposal for a directive Article 12 – paragraph 2
Text proposed by the Commission Amendment
2. Member States shall provide that a 2. Member States may provide that a contractor who has undertaken due contractor who has undertaken due diligence shall not be liable in accordance diligence shall not be liable in accordance with paragraph 1. Such systems shall be with paragraph 1. Such systems, if applied in a transparent, non discriminatory introduced, shall be applied in a and proportionate way. They may imply transparent, non discriminatory and preventive measures taken by the proportionate way. They may imply contractor concerning proof provided by preventive measures taken by the the subcontractor of the main working contractor concerning proof provided by conditions applied to the posted workers as the subcontractor of the main working referred to in Article 3 (1) of Directive conditions applied to the posted workers as 96/71/EC, including pay slips and payment referred to in Article 3 (1) of Directive of wages, the respect of social security 96/71/EC, including pay slips and payment and/or taxation obligations in the Member of wages, the respect of social security State of establishment and compliance with and/or taxation obligations in the Member the applicable rules on posting of workers. State of establishment and compliance with
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the applicable rules on posting of workers.
Amendment 43 Proposal for a directive Article 13 – paragraph 1
Text proposed by the Commission Amendment
1. Without prejudice to the means which 1. Without prejudice to the means which are or may be provided for in Union are or may be provided for in Union legislation, the principles of mutual legislation, the principles of mutual assistance and recognition as well as the assistance and recognition as well as the measures and procedures provided for in measures and procedures provided for in this Article shall apply to the cross-border this Chapter shall apply to the cross-border enforcement of administrative fines and enforcement of financial administrative penalties imposed for failure to comply penalties and/or fines imposed on a with the applicable rules in a Member service provider established in a Member State on a service provider established in State, for failure to comply with the another Member State. applicable rules on posting of workers in another Member State.
Amendment 44 Proposal for a directive Article 13 – paragraph 2 – subparagraph 1
Text proposed by the Commission Amendment
2. The requesting authority may, in 2. The requesting authority may, in accordance with the laws, regulations and accordance with the laws, regulations and administrative practices in force in its own administrative practices in force in its own Member State, request the competent Member State, request the competent authority in another Member State to authority in another Member State to recover a penalty or fine or notify a recover a penalty or fine or notify a decision imposing a penalty or a fine, in so decision imposing a penalty or a fine. far as the relevant laws, regulations and administrative practices in force in the requested authority’s Member State allow such action for similar claims or decisions.
Amendment 45 Proposal for a directive Article 14 a (new)
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Text proposed by the Commission Amendment
Article 14a Grounds for refusal The competent authorities in the requested Member State may refuse a request for recovery or notification of a decision if the request is incomplete or manifestly does not correspond to the underlying decision or the costs required to recover the penalty/fine are disproportionate in relation to the amount to be recovered.
Amendment 46 Proposal for a directive Article 16 – paragraph 1 – subparagraph 1
Text proposed by the Commission Amendment
1. The requested authority shall remit to 1. The amounts recovered with respect to the requesting authority the amounts the penalties and/or fines referred to in recovered with respect to the fines or this Chapter shall remain at the requested penalties referred to in this Chapter. authority.
Amendment 47 Proposal for a directive Article 16 – paragraph 1 – subparagraph 2
Text proposed by the Commission Amendment
The requested authority may recover deleted amounts from the natural or legal person concerned and retain any costs which it incurs in connection with recovery, in accordance with the laws, regulations and administrative procedures or practices of the requested Member State which apply to similar claims.
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Amendment 48 Proposal for a directive Article 16 – paragraph 2 – subparagraph 2
Text proposed by the Commission Amendment
Where recovery creates a specific problem deleted or concerns a very large amount, the requesting and requested authorities may agree reimbursement arrangements specific to the case(s) in question.
Amendment 49 Proposal for a directive Article 16 – paragraph 3
Text proposed by the Commission Amendment
3. Notwithstanding the paragraph 2, the deleted competent authority in the requesting Member State shall remain liable to the requested Member State for any costs and any losses incurred as a result of actions held to be unfounded, in terms of the substance of the fine or penalty, the validity of the instrument issued by the requesting authority for the purpose of enforcement and/or any precautionary measures taken by the requesting authority.
Amendment 50 Proposal for a directive Article 16 a (new)
Text proposed by the Commission Amendment
Article 16a Review clause Within three years after the date referred to in Article 20, the Commission shall, in consultation with the Member States, review the application of this Chapter in particular in light of the experiences with and effectiveness of the system of cross-
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border enforcement of administrative penalties and/or fines with a view to proposing, where appropriate, any necessary amendments or modifications.
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PROCEDURE
Title Enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services References COM(2012)0131 – C7-0086/2012 – 2012/0061(COD) Committee responsible EMPL Date announced in plenary 18.4.2012
Opinion by JURI Date announced in plenary 26.10.2012
Rapporteur Evelyn Regner Date appointed 26.11.2012 Discussed in committee 21.1.2013 Date adopted 25.4.2013
Result of final vote +: 16 –: 7 0: 0
Members present for the final vote Luigi Berlinguer, Sebastian Valentin Bodu, Christian Engström, Marielle Gallo, Giuseppe Gargani, Sajjad Karim, Klaus-Heiner Lehne, Antonio Masip Hidalgo, Alajos Mészáros, Bernhard Rapkay, Evelyn Regner, Dimitar Stoyanov, Rebecca Taylor, Alexandra Thein, Cecilia Wikström, Tadeusz Zwiefka Substitute(s) present for the final vote Piotr Borys, Eva Lichtenberger, Angelika Niebler, József Szájer Substitute(s) under Rule 187(2) present Sylvie Guillaume, Jürgen Klute, Jacek Olgierd Kurski for the final vote
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PROCEDURE
Title Enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services References COM(2012)0131 – C7-0086/2012 – 2012/0061(COD) Date submitted to Parliament 21.3.2012 Committee responsible EMPL Date announced in plenary 18.4.2012 Committee(s) asked for opinion(s) IMCO JURI Date announced in plenary 18.4.2012 26.10.2012 Rapporteur(s) Danuta Date appointed Jazłowiecka 16.2.2012
Discussed in committee 28.11.2012 20.2.2013 29.5.2013 19.6.2013 Date adopted 20.6.2013
Result of final vote +: 23 –: 18 0: 6
Members present for the final vote Regina Bastos, Edit Bauer, Heinz K. Becker, Jean-Luc Bennahmias, Phil Bennion, Pervenche Berès, Milan Cabrnoch, David Casa, Alejandro Cercas, Ole Christensen, Derek Roland Clark, Marije Cornelissen, Emer Costello, Frédéric Daerden, Karima Delli, Sari Essayah, Richard Falbr, Thomas Händel, Marian Harkin, Nadja Hirsch, Stephen Hughes, Danuta Jazłowiecka, Martin Kastler, Ádám Kósa, Jean Lambert, Verónica Lope Fontagné, Olle Ludvigsson, Thomas Mann, Elisabeth Morin-Chartier, Csaba Őry, Licia Ronzulli, Elisabeth Schroedter, Joanna Katarzyna Skrzydlewska, Jutta Steinruck, Traian Ungureanu, Inês Cristina Zuber Substitute(s) present for the final vote Georges Bach, Jürgen Creutzmann, Ria Oomen-Ruijten, Evelyn Regner, Birgit Sippel, Sampo Terho Substitute(s) under Rule 187(2) present Ricardo Cortés Lastra, Jürgen Klute, Alexander Graf Lambsdorff, for the final vote Marita Ulvskog, Jacek Włosowicz
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