Skip to content If a temporary agency worker performs a service activity in a company established in one of the EU Member States, the agency must comply with the obligations introduced by the European directives on transnational posting and their respective national transpositions.
Which are the obligations?
The obligations introduced by the European directives include:
- The submission of a prior posting declaration. Its aim is to inform the foreign inspection authorities about the worker’s assignment in foreign territory;
- Appointment of a contact person. The posted worker himself or a professional figure domiciled in the host Country (depending on the applicable national regulation);
- The storage of documentation relating to the posting throughout the duration of the assignment and retaining or providing them afterwards as required by the applicable national rules;
- Salary alignment to the collective agreement applicable in the host Country;
- A1 Certificate. It certifies the posted worker remains insured for social security purposes in the EU Country where the sending company is based;
- Elaboration of any immigration documents for third-country nationals, if needed (visas, permits, etc.).
In relation to remuneration, the European Court of Justice has recently ruled that a collective agreement offering lower pay to temporary workers compared to workers recruited directly must provide for compensatory benefits.
It is important to specify that requirements for temporary work agency vary according to the host Country regulations. Additionally, in some cases the employment of temporary staff is severely limited (e.g. in Belgium).
Court of Justice judgement on the authenticity of posting
In order to consider a posting as genuine, it is necessary to take into consideration the “place where the undertaking carries out its main economic activity” and the “amount of turnover achieved by the undertaking in the Member State of establishment”.
In its judgment of 3 June 2021 in Case C‑784/19, Team Power Europe, the Court of Justice clarified the conditions under which a temporary-work agency may be regarded as normally carrying out its activities in its Member State of establishment for social security posting purposes.
The judgment concerns Article 12(1) of Regulation (EC) No 883/2004 and Article 14(2) of Regulation (EC) No 987/2009, which govern the conditions for maintaining the sending Member State’s social security legislation during a posting.
The dispute concerned an agency established in Bulgaria and the refusal to issue an A1 certificate for a worker assigned to a user undertaking in Germany. The agency selected and recruited workers in Bulgaria but did not carry out activities of assigning workers to user undertakings in Bulgaria.
The Court held that selection and recruitment in the Member State of establishment are insufficient. The agency must also carry out a significant part of its activities of assigning workers to user undertakings established and operating in that same Member State.
Requirements for a Posting to be ‘genuine’
In Note No 936 of 15 June 2021, the Italian National Labour Inspectorate highlighted the implications of the judgment for assessing genuine postings under Legislative Decree No 136/2016.
For temporary-work agencies, the Inspectorate indicated that the assessment should specifically examine turnover generated by assigning workers to user undertakings established in the agency’s Member State of establishment, in relation to total turnover from temporary agency assignments, including cross-border assignments.
More generally, Article 4 of Directive 2014/67/EU requires an overall assessment of the factual circumstances concerning both the undertaking and the posted worker. The location of substantial business activities and the turnover generated in the Member State of establishment are relevant indicators, but neither is sufficient on its own to establish that a posting is genuine.