Article 2 of Directive 96/71/EC defines a posted worker as “a worker who, for a limited period, carries out his work in the territory of a Member State other than the State in which he normally works” within the framework of the provision of services.
Legally, it is essential to understand the law applicable to the posted employee’s contract and the necessary documentation for a proper posting. Over the years, EU primary and secondary law has provided guidance on compliance with various obligations. All EU Member States, EEA countries and Switzerland have conformed to the regulations and directives on the posting of workers.
Law applicable to the posted worker’s contract
Article 3 of Regulation (EC) 593/2008 on the law applicable to contractual obligations allows the parties to freely choose the law applicable to their contract. However, under Article 8, this choice cannot deprive the employee of the mandatory protection provided by the law that would apply in the absence of a choice. Temporary work in another country does not, in itself, change the country in which the employee habitually works.
In addition, Directive 96/71/EC requires the application of certain mandatory terms and conditions of employment in the host Member State, regardless of the law governing the contract, without preventing the application of more favourable conditions for the worker. Hence, the Directive supplements the protection afforded by the law governing the contract, rather than replacing that law.
For this directive to apply, the posting company must:
- properly employ the worker, and
- the employment relationship must continue throughout the entire posting duration.
Working conditions during the posting in Europe
When the conditions are fulfilled, the worker may be posted to another EU Member State within the framework of the freedom to provide services, subject to the applicable employment, administrative and, where relevant, immigration requirements. Directive (EU) 2018/957 amending Directive 96/71/EC on posting workers replaces the term “minimum rates of pay” with “remuneration”.
Article 3 of Directive 96/71/EC sets out the matters in respect of which employers must guarantee the applicable host Member State’s terms and conditions, without prejudice to more favourable conditions for workers. These terms are laid down by legislation and/or collective agreements or arbitration awards applicable under the Directive:
- maximum work periods and minimum rest periods;
- minimum paid annual leave;
- remuneration, including overtime rates; this point does not apply to supplementary occupational retirement pension schemes;
- the conditions of hiring-out of workers, in particular the supply of workers by temporary employment undertakings;
- health, safety and hygiene at work;
- protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people;
- equality of treatment between men and women and other provisions on non-discrimination;
- the conditions of workers’ accommodation where provided by the employer to workers away from their regular place of work;
- allowances or reimbursement of expenditure to cover travel, board and lodging expenses for workers away from home for professional reasons.
Social Security in Europe
Regulation (EC) No. 883/2004 allows posted workers to remain subject to the social security legislation of the sending State, provided the relevant conditions are met. The applicable legislation is certified by an A1 Certificate, issued by the competent institution.
The A1 Certificate is issued on the basis of the applicable EU social security coordination rules. Article 12 of Regulation (EC) No. 883/2004 concerns temporary postings, whereas Article 13 concerns persons who normally work in two or more Member States; these are distinct situations. Article 14 of Regulation (EC) No. 987/2009 provides further rules for their application.
Specifically, Art. 12 of Reg. 883/2004 establishes that an employee posted by an employer normally operating in the sending State may remain insured there if the anticipated work does not exceed 24 months and the employee is not sent to replace another posted worker, provided all other conditions are met. A self-employed person may similarly remain insured in the sending State when temporarily pursuing a similar activity abroad under the applicable conditions.
Posting 360 for stronger cooperation on social security
ELA, the European Labour Authority, together with the European Commission, launched in March 2023 the “Posting 360 Mutual Learning and Understanding Program“, a programme to strengthen knowledge and exchange of information regarding the posting of workers, including labour law and social security coordination, and to enhance administrative cooperation.
Administrative obligations for posting workers in Europe
Directive 2014/67/EU outlines administrative requirements and control measures for enforcing Directive 96/71/EC on posting workers.
- Declaration of posting: notifies the authorities in the host country about the posting of employees, using an electronic portal provided by the government or other means. Requirements, exemptions and deadlines vary by country and may depend on the sector, activity or duration of the posting.
- Archiving of documentation: the employer must retain or make available the required documents for inspection, as prescribed by national law.
- Checks after the posting: authorities may request documents and investigate infringements after the posting ends. Retention duties and limitation periods depend on national law.
- Translation of documents: where required, documents must be translated into an official language of the host country or another language it accepts.
- Liaison person: where required, the employer must designate a person to liaise with the host-country authorities.
Duty of disclosure when posting workers in EU
Finally, Directive (EU) 2019/1152 requires employers to communicate certain information in writing to workers before their departure. Under Article 7, this includes the destination country or countries, the anticipated duration, the currency of payment, any relevant benefits and repatriation arrangements. Posted workers covered by Directive 96/71/EC must also receive information on the remuneration due under host-country law, any posting allowances and reimbursement arrangements, and the link to the host country’s single official national website.