The provision of services can be performed at an undertaking belonging to the same group, or to a subsidiary established in another Member State.The posting of workers by employment agencies established in another Member State also falls within the scope of transnational postings.
Scope of application of the transnational posting
As set out in Article 1 of Directive 96/71/EC, the legislation on the transnational provision of services, which includes the aforementioned Directive and the subsequent 67/2014/EU and 957/2018/EU, applies when an undertaking established in one Member State sends one or more workers to another undertaking established in another Member State. In particular, paragraph 3 defines in more detail the scope of application, which involves undertakings that:
(a) post a worker, on their own account and under their direction, to the territory of a Member State, under a contract concluded between the undertaking which sends the worker and the party for whom the services are intended, operating in that Member State, provided that an employment relationship exists between the worker and the undertaking which sends the worker during the period of posting; or
(b) post a worker to the territory of a Member State, to an establishment or to an undertaking belonging to the group, provided that there is an employment relationship between the worker and the undertaking making the posting during the period of posting; or
(c) post, as a temporary employment undertaking or as an undertaking making the temporary assignment of workers, a worker to a user undertaking having its head office or place of business in the territory of a Member State, provided that there is an employment relationship between the worker and the temporary employment undertaking or the undertaking making the temporary assignment during the period of posting.”
Definition of posted worker
It follows from the definition of the scope of application that the main prerequisite for transnational posting is the existence of an employment relationship between the worker and the sending company. Not only that, Article 2 of the same directive specifies that the posting of the worker to a company in another Member State must be for a limited period.
It follows that the worker cannot be employed for the sole purpose of being sent on secondment and that the employee must therefore return to his or her usual employment in the State in which he or she is employed, once the mission abroad has ended.
Authenticity of the transnational posting
In order to prevent abuse or evasion of obligations, it is therefore necessary to verify that the posting is genuine and that the conditions required are met. The supervisory bodies may therefore carry out an inspection to determine that
- The posting company is actually established in the Member State where it is based and that it does not therefore carry out mere administrative activities;
- The posting of the worker(s) is carried out for a limited period and that he/she resumes his/her usual employment in the state of recruitment.
How to verify the authenticity of posting
In order to assess the above conditions, the authorities may require an evaluation of the following elements:
- the place where the company is registered with the Chamber of Commerce or, where required by reason of its activity, with a professional register;
- the rules applicable to the contracts concluded by the posting company with its clients and workers;
- the number of contracts performed or the amount of turnover achieved by the undertaking in the Member State of establishment, taking into account the specific nature of small and medium-sized enterprises and newly established undertakings;
- the content, nature and mode of performance of the work and the remuneration of each worker;
- the temporary nature of the work activity carried out by each worker in Italy;
- the existence of the certificate relating to the social security legislation applicable to the individual posted worker (Form A1).
