If a temp agency worker is sent to perform a service activity in a company established in one of the EU Member States, the agency is required to comply with the obligations introduced by the European directives on transnational posting and their respective national transpositions.
Table of contents
1. Which are the obligations?
These obligations introduced by the European directives include:
- The transmission of a prior declaration of posting, with the aim of informing the foreign inspection authorities about the worker’s assignment in foreign territory;
- Appointment of a contact person, who may be 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 for at least two years after its end;
- Salary alignment to the collective agreement applicable in the host country;
- A1 Certificate, which certifies that 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.).
It is important to specify that requirements for temporary work agency vary according to the host country regulations and that in some cases the employment of temporary staff is severely limited (e.g. in Belgium).
2. 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”
A transnational posting is genuine if the foreign employment agency has a substantial turnover in the country of establishment. The judgment of the Court of Justice, filed on 3 June 2021 and mentioned by the Labour Inspectorate in its note 936 of 15 June 2021, clarifies that the turnover cannot derive mainly from countries other than the country of establishment.
The dispute, which has raised some doubt of interpretation of the EU rule, concerns a temporary employment agency based in Bulgaria, whose recruitment activities are carried out mainly in Germany and other EU countries. The issuance of A1 certificates for workers recruited in Bulgaria and immediately posted to user companies in other EU countries was refused by the competent Bulgarian authority, on the basis that the agency did not carry out any “habitual activity” in the country of establishment.
3. Requirements for a Posting to be ‘genuine’
The Court of Justice therefore clarified that the company must carry out ‘in a significant manner’ the activity of hiring out workers in the Member State where it is established. 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”, so that any activity of mere internal administration can be excluded.