Labour Mobility Initiative Association’s analysis
Why did the European Commission propose a new term of a “sent” person in addition to the existing one of a posted worker? And why does it seem to be necessary?
At the Labour Mobility Initiative Association, we carried out the in-depth comparative analysis of the notions used in Directive 96/71/EC and Regulation 883/2004/EC. Our analysis shows that the EU legislator uses in both documents the same notion of a “posted” while having at first sight similar, yet different situations in mind, causing confusion. The revision process of the coordination regulations seems a good opportunity to fix it.
Current state of play
The notion of a “posted” worker or person is currently used both in Directive 96/71/EC and Regulation 883/2004/EC. The Directive expressly defines what a “posted” worker means, while the Regulation uses the notion of “posted” persons. Their texts clearly show that the EU legislator uses in both documents the same notion of “a posted” worker or person while having in mind different situations. There are practical cases which demonstrate that a person carrying out work in a Member State other than the one in which he or she is employed and normally works is treated as a posted worker only by the Regulation and not by the Directive, e.g. a Slovakian ski instructor employed by a Slovakian tourist company provides skiing lessons in the Austrian Alps to Slovakian tourists, clients of that tourist company.
Legal and public confusion
The notion “posted” used by the Regulation is much wider than the one used in the Directive. Not all “posted” persons under the Regulation are “posted” workers under the Directive. Some “posted” workers within the meaning of the Directive remain “posted” despite the fact that they are covered by a social security system of a Member State other than the one sending this person. Others who are “posted” under the Regulation and obtain a PD A1 are not “posted” in the meaning of the Directive. This fact causes confusion – a legal one, but also the one that is widespread and reflected by public opinion and the media.
New notion of a sent person
The Commission seemed to have noticed the conceptual inconsistency between the Directive and the Regulation and proposed an additional notion of a “sent person” in its proposal for the revision of the Regulation. The notion of “sent” persons, as shown in the graph below, constitutes the broadest concept, containing posted workers, self-employed persons and others who are covered by the Regulation only.
EPSCO in its partial general approach adopted on 23 October 2017 follows the Commission’s logic and goes even further. In its proposed Art. 12(1) only the term “sent” persons is used, since posted workers are the subcategory of sent workers.
What seems to be the most detrimental would be to use in the Regulation only a notion of “posted” worker within the meaning of the Directive. This would de facto exclude from the legal framework all employed and self-employed persons who carry out work in the territory of a Member State other than the State in which they normally work, but provide no service abroad for any other party or the service is provided for a party that is not operating in that Member State.
In our opinion, the introduction of a new notion of a “sent” person in the revised Regulation, as the broadest concept, containing i.e. posted workers, is rational and helps to solve the existing legal and public confusion, and as such contributes to a better understanding of law.
To find out more, read the entire analysis here.
Labour Mobility Initiative
Labour Mobility Initiative is Europe’s largest think thank dealing with work, mobility and posting of workers. Since 2013 it has been bringing together scholars, enterpreneurs, trade unions and public administration to create the only Polish and the largest European substantive forum for exchanging knowledge on the posting of workers in the framework of freedom to provide services. more >>>