Limited cumulative period of posting in the revised PWD – in search of a legal justification

Important

Labour Mobility Initiative Association’s analysis

Posting of a worker is temporary by its nature. In the revision of the Posting of Workers’ Directive, the EU legislator decided to shorten the definite time limit for duration of a posting to 12 months with a possible extension to 18 months. After this period almost all host Member State labour regulations will apply to the posted worker. This measure is, according to the EU legislator,  “justified by reasons of public interest”. However, such a time limit does not apply only to the period of posting of a single worker, but cumulatively to all posted workers performing the same task under at the same place, so in certain circumstances it will also apply to a worker who has been posted for a few weeks. In our paper we undertook to answer whether this provision can really be “justified by reasons of public interest” in line with the EU law and CJEU rulings.

Boundaries of the freedom to provide services

In accordance with the Treaty and the Services Directive, the right to provide services in a Member State other than that in which the provider is established shall be respected. Member States can impose both requirements regarding the provision of a service activity, where they are justified for reasons of public interest, as well as rules on certain employment conditions, provided the above mentioned requirements respect the principles of non-discrimination, necessity and proportionality.

Applicable labour law for workers posted or sent abroad

The rules on the choice of applicable labour law for posted workers are provided by the Rome I Regulation, which prevents the situation where workers posted or sent abroad are deprived of the protection granted to them by the law of a sending Member State. This protective aim is visible in prohibition of changing worker’s habitual place of work to another Member State if the work is carried out there temporarily. Rome I Regulation defines the notion of temporariness not by setting a time limit, but by the intention of returning back to work in the country of origin after carrying out the tasks abroad. The freedom of choice of law is to be respected as far as possible: a derogation is admissible, but only for reasons of public interest .

Temporariness of the freedom to provide services and of the posting of workers

The concept of temporary provision of services within the meaning of the Treaty, according to the CJEU, includes also those services “which are provided over an extended period”, provided this activity is not “carried out on a permanent basis or without a foreseeable limit to its duration”.

Posting of workers has always been limited in time, as it is supposed to correspond to the time which is necessary to deliver a temporary service abroad. According to the European Commission, a longer posting creates a “link” between the posted worker and the labour market of the host Member State, which justifies, by reasons of public interest, that this worker falls under host Member State legislation. The political compromise on the revision of the Posting of Workers Directive shortened the time limit of a posting from 24 to 12 months with a possible extension to 18 months.

This modification leads de facto to the change of the labour law applicable to a posted worker, no matter which law the parties chose, or the existence of a “link” with local labour markets or not, and without any regard to the meanings of temporariness according to the Treaties.

Cumulative period of postings

The EU legislator introduced an additional provision which extends the time restriction not only to a single worker, but to cumulative period of posting of all workers carrying out the same task in the same place. In many cases it may de facto equal to the total time of a service provided in the same place. Time-limit for the cumulative period of postings will result in treating workers posted even for few days, whose period of posting, counted cumulatively with other postings exceeded 12 months, as if they were posted for a long period, despite there is no “link” between each posted worker and the labour market of the host Member State.

As one can try to find whether such regulations applying to workers who are posted for only a few days may be justified for reasons of public interest or not, it is important to notice that, according to CJEU case law, such change in legislation should be avoided for the sake of clarity of law and for the protection of workers, as it is important under Rome I Regulation not to break the connection between a posted worker – whose task abroad is limited in time by nature – and his country of origin.

Applying almost all regulations of host Member State labour law to workers posted for short periods, but to the same place where previously another posted worker(s) carried out the same task, seems to have a purely economic aim, as it does not result from the situation of posted workers themselves, but only from the duration of the service. According to CJEU case law, such an aim cannot constitute a reason justifying the restriction on freedoms of the Single Market, and the EU legislator did not give any other reason.

Conclusions

Our analysis points out the fact that the purpose of this new regulation seems to be to discourage service providers from scheduling tasks in such a manner that they last over 12 months in one place, even though the Treaty guarantees them such a possibility. The implementation of this provision, as it seems to directly violate the freedom to provide services since its aim is not to protect workers, will infringe, by its very nature, the protective measures of the Rome I Regulation and the case law of the CJEU on freedom to provide services.