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 jurisdiction governing 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.
Jurisdiction to be applied 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 jurisdiction for their contract. However, Directive 96/71/EC permits the non-application of certain parts of the latter in order to facilitate the employee. The directive allows the application of the most favorable norms to the employee, regardless of the contract’s jurisdiction. Hence, the Directive has the power to deform the jurisdiction of the contract in favour of the employee.
For this directive to apply, the posting company must:
- properly employ the worker, and
- the employment relationship must be valid for the entire posting duration.
Working conditions during the posting in Europe
When the conditions are fulfilled, the worker may move freely within the EU Member States, provided they follow the most favorable rules. Directive 957/18/EU amending Directive 96/71/EC on posting workers replaces the term “minimum rates of pay” with “remuneration”.
Article 3 of this directive outlines the terms that must ensure the most favorable conditions, regardless of the employment contract’s jurisdiction:
- 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 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 maintain the system of paying contributions in their home country, even for work done abroad. This is possible by requesting a single or multi-state A1 Certificate.
The A1 Certificate is issued when the conditions for posting, as outlined in Community legislation (Articles 12 and 13 of EC Reg. 883/2004 and Article 14 of EC Reg. 987/2009), are met. Specifically, Art. 12 of Reg. 883/2004 establishes that an employee or self-employed worker posted to an EU country, under all required conditions, remains insured for social security purposes in their home country.
For the entire posting period (maximum 24 months or longer in case of extension), the employer pays social security contributions in the country of origin.
Posting 360 for stronger cooperation on social security
ELA, the European Labor Authority, with the support of the European Commission, launched in March 2023 “Posting 360 Mutual Learning and Understanding Program“, a program to strengthen knowledge and exchange of information regarding social security and posting of workers.
Administrative obligations for posting workers in Europe
Directive 2014/67/EU outlines the administrative obligations for implementing Directive 96/71/EC on posting workers. The Directive lists obligations that may vary in their mandatory nature, depending on how each Member State has transposed it:
- 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. In some countries, this declaration is always mandatory, while in others, it is required only after a minimum posting period.
- Archiving of documentation: the worker must keep the required documentation and present it to the inspector upon request.
- Prescription in controls: the authorities can conduct checks on the posting for up to two years after the posting ends. Therefore, authorities may penalize a company for an irregular posting even after the performance has ended.
- Translation of documents: the relevant posting documents must be translated into the official language of the host country.
- Representative domiciled in the foreign country: fluent in the local language, the main contact with authorities during inspection checks.
Duty of disclosure when posting workers in EU
Finally, Directive (EU) 2019/1152 requires employers to communicate certain data to posted workers, including their salary during the posting. These obligations may be more or less stringent depending on the transposition into the Member State’s legislation.