The European Commission presents its interpretation of the new provisions on posting of workers.
Together with the recently adopted report on the application and implementation of the Revision Directive 2014/67/EU, the European Commission has also published a ”Practical Guide on Posting”. This is the first document of it kind issued by the EC. Until now, we only had t ”the Practical Guide” of the Administrative Commission – an advisory body to the European Commission; however, it concerned, in principle, social security issues. The EC’s Practical Guide tackles labour law questions as well. It already contains provisions resulting from the amendment to the Basic Directive 96/71/EC, which are to be applicable from 30 July 2020. One can expect that this Guide will become a source of interpretation in similar vein as the above-mentioned ”Practical Guide” of the Administrative Commission. Despite the reservations I present below, the EC ‘s Practical Guide may also be a useful tool in struggles with certain unfounded requirements of authorities of the host Member States.
What is missing in the Practical Guide?
The actually published version of the EC Guide differs from its previous versions, which remained only in the phase of design. It is a pity that some of the previous entries did not make it to the finally-published form of the Guide. Some of the clarifications contained therein would certainly go a long way towards explaining some practical doubts. I am refering here in particular to:
- the issue of the so-called ”non-replacement condition” (requirement that the posted worker ”is not sent to replace another posted person”) under Art. 12 of Regulation 883/2004 and clarification of the rules of the so-called ”long-term posting”. One of the earlier projects of the Guide clearly indicated that the ”long term rule” was to be applied only once the actual duration of posting exceeded 12 or 18 months, i.e. the first day following the 12 or 18 months of posting. Such a clarification would eliminate concerns about adopting a different interpretation, in particular with respect to contracts whose performance would be carried out on 30 July 2020 and afterwards.
The published version of the Guide does not contain the emphasis encompassed in the previous version of the Guide that one posted worker can be legally replaced with another. The Commission’s indications in previous versions of the Guide resembled the interpretation of the concept of replacement (of one posted worker with an another) contained in the Opinion of the Advocate General H.S. Øe in the Alpenrind case. In his view, the issue of replacement should be considered only from the viewpoint of the employer that posts the worker. In the Advocate General’s Opinion, except for cases of abuse, the purpose of posting workers by another employer (whom he dubbed ”employer B”, as opposed to ”employer A” whose worker has previously been posted) is simply to perform a previously contracted service, and not to replace a posted worker.
- a reminder contained in the previous projects of the Guide that posting of workers can last from a few hours to a few several years and it is not possible to limit its duration, as this would limit the EU’s freedom to provide services. Such a clarification is, moreover, in line with the latest jurisprudence of the Court of Justice of the EU, including e.g. the cases of Duomo, Glisczynski or Schmelz.
Despite the above-mentioned shortcomings, the EC’s Guide contains some useful clarifications as well. First of all, it confirms that the posting rules will apply even if the employment relationship with the posting employer was not established a certain time before the posting. Therefore, this means a person can be recruited for the purposes of posting. By doing so, the EC Guide confirms that one can post a worker even if they have been recruited for the purposes of posting and had not previously worked for that given posting employer. What is important is merely that the two parties be bound by the contract throughout the entire period of posting.
The EC’s Guide basically repeats here the current wording of Art. 14 para. 1 of Regulation 987/2009 (the condition is to be subject to the legislation of the sending State before being posted; it has recently been specified in the rulings of the CJEU in Walltopia as well as in SF v. Inspecteur van de Belastingdienst). However, this clarification is needed anyway, given a string of protectionist measures adopted by certain host Member States, especially France.
Moreover, the Guide confirms that one can also apply for A1 Portable Document (A1 PD) ”whenever possible” in advance of the posting. This reminder is particularly important in the context of the proposal to remove the words ”whenever possible” from the existing provisions as part of the work on revision of the coordination of social security systems’ regulations. Adoption of such proposal would in fact oblige posting employers to have an A1 PD before posting. This would be a huge problem in case of urgent orders and, for example, when withdrawing an A1 PD or shortening its period and reapplying for that document (for a new period). However, the Guide confirms the principle of declarative (and not constitutive) nature of A1 PD.
Moreover, the Commission has specified information on the extension of the 12-month period (by 6 months) with regard to A1 PD issued pursuant to Art. 12. In order for it to occur, the posting entrepreneur must submit a ”reasoned notification”. The Guide emphasizes that the extension cannot depend on acceptance by the host Member State. According to the authors of the Guide – the posting employer merely submits a ”reasoned notification” (not a request or application). There are limited possibilities for refusal by the host Member State. However, each time, it will be necessary to justify the extension by the posting employer.
Fourthly – the Guide includes a reference to allowances (reimbursement of expenses) to cover the costs of travel, accommodation and board (meals) for posted workers. It was confirmed that it is the provisions in force in the sending State that decide whether the posting employer must cover / reimburse such costs. In this way, the Guide confirms the rule which had already been formulated by the EU Commissioner Marianne Thyssen in response to the interpellation filed by the MEP Danuta Jazłowiecka. The Guide also reminds that there are also types of travel, accommodation and board for which one needs to apply the laws of the host Member State. This is the case when workers are required to travel to and from their regular place of work in the Member State to whose territory they are posted, or where they are temporarily sent by their employer from that regular place of work to another place of work (in the receiving Member State).
Finally, the Guide also confirms of the possibility of so-called ”chain posting” of temporary workers – i.e. a situation when a given temporary employment agency established in Member State A hires out a worker to a user undertaking in Member State B, which then posts that worker to another Member State. The Guide specifies that it is the temporary agency which must comply with formalities arising from the provisions of the Posting of Workers Directive.
A step in the right direction
Despite the shortcomings and omissions concerning some important issues, the EC’s Practical Guide is a step towards increasing the clarity of the new provisions. The European Commission also declared that the Guide is a ‘living document’ – so it will be supplemented as the practice unfolds. One can also hope these activities will facilitate posting of workers after 30 July 2020, that is when the revised PWD becomes effective.
dr Marcin Kiełbasa