European Commission’s Guides on the posting of workers

European Commission’s Guides on the posting of workers – for the first time in Polish

The Polish language versions of the two Guides, prepared by the European Commission, have just been published. These are the “Practical Guide on Posting”and the “Short Guide Posting of Workers”. They are intended to facilitate the posting of workers for entrepreneurs after the entry into force of the Revised Posted Workers’ Directive 2018/957. These are the first documents of this type issued by the European Commission (so far there has only been the Practical Guide of the Administrative Commission – that is of an advisory body of the European Commission, but that Guide ismainly related to social security issues). On the contrary, the above-mentioned Guides of the Commission also cover labour law issues.

The Guides are of great importance for employers who post workers – they explain how to interpret and apply the new provisions. Although the authors make a reservation that the Guides do not interpret the provisions of the Posted Workers Directives, it can be expected that they will provide a source of interpretation in a similar way as the Administrative Commission Practical Guide has become the reference point for issuing A1 certificates.

It is possible to posting even if a worker has been recruited for the purpose of posting

The published version of the EC Guide differs from its previous versions, which remained only within the project. It is a pity that some provisions were not included in the final version – some clarifications contained therein would certainly be helpful for entrepreneurs who post workers. Despite these shortcomings, the European Commission’s Guide contains a lot of accurate clarifications. First of all, it confirmed that the provisions on posting will apply even if the employment relationship with the posting worker did not exist well in advance of the posting. In other words, the Guide confirms that it is possible to post a worker even if a given worker has been recruited for the purposes of posting and had not previously worked for a given posting enterpreneur. What is important is solely that both parties are bound by the contract throughout the entire duration of the period of posting.

The European Commission’s Practical Guide on Posting basically repeats the wording of the Regulation 987/2009 on the coordination of social security systems, which in Article 14 paragraph 1 confirms that a posted worker may also be a person employed for the purpose of being posted to another Member State (provided is subject to the law of the sending Member State prior to the posting). However, such clarification, contained in the Guide, is needed in the face of protectionist actions by some host Member States. This concerns in particular France and the practice of the local authorities carried out after the entry into force of Act 2018-771 of 5 September 2018 (the so-called “Avenir Professionelle” act). Its latest interpretation by some branches of the French Regional Directorate for Enterprise, Competition, Consumption, Labour and Employment (DIRECCTE) is reduced to demand that the posted worker must be employed (“habitually working”) in the posting undertaking in the sending state, contrary to EU law, and / or be employed in that undertaking (and that State) after the end of period of posting. The Guide may be an occasion at least to change the practice (and then adjust the relevant provisions accordingly) in this regard.

Extension of the posting – upon “notification” (not a”request”)

The Guide also reminds that the period of posting specified in the Revision Directive – 12 months – may be extended by 6 months. For this to happen, the posting entrepreneur has to submit a “motivated notification”. The Guide emphasizes that the above extension cannot depend on the acceptance by the host Member State – the posting entrepreneur submits a “motivated notification” (and not a request or application). There are limited possibilities for refusal by the host Member State. However, each time, the posting entrepreneur will need to justify the extension.

However, there is also an open question as to whether Member States will hinder (or not) such extensions in practice (e.g. by requiring specific content of the “notifications” or by delaying their substantive consideration). It is a pity that the authors of the Guide failed to deal with this issue in greater detail.

Travel, board and lodging expenses according to the law of the sending Member State

On the other hand, the Guide does not lack a reference to allowances (reimbursement of expenses) to cover the costs of travel, accommodation and meals for posted workers. The Guide confirms that it depends on the provisions in force in the sending Member State (including the law applicable to the employment relationship of the posted worker) whether the posting entrepreneur must cover / reimburse such costs. Thus, the Guide confirms the rule known to practitioners, already formulated by the EU Employment Commissioner, M. Thyssen in her response of 28 April 2016 (E-015510/2015) to an interpellation submitted by MEP D. Jazłowiecka (EPP). The Guide also reminds us that there are types of travel, accommodation and boarding expenses for which we apply the laws of the host Member State. This is the case where the worker is required to travel to and from his normal place of work within the host Member State or where such worker has been temporarily posted by his employer from a habitual place of work in the host country to another place of work.

Posting of third-country nationals confirmed and “chain posting” allowed

The Guide also confirms the possibility of posting third-country nationals legally employed and residing in the European Union. Unfortunately, the Guide contained no reference to the problem of the so-called Vander Elst visas – i.e. “visas” having the nature of specific work permits – maintained by some EU countries, including Germany. In the case of the latter, this must come as a surprise, as already in 2006 Germany had lost a case before the CJEU in which the Court found these visas contrary to the freedom to provide services.

The Guide confirms the possibility of the so-called chain posting” of temporary workers – a worker hired by a temporary agency from state A to an employer from state B, may be posted by the latter to state C as part of the provision of services. In this case, the Guide specifies that the temporary agency is responsible for completing the formalities resulting from the regulations, including the obligation of submitting a relevant notification.

Finally, the Guide deals with examples relating to the comparison of the remuneration paid and payable to posted workers. This is, of course, a response to the obligation to pay posted workers “remuneration” instead of ”minimum rates of pay”. It was introduced by theRevision Directive 2018/957. The Guide is limited to a few examples of such comparisons, payments for overtime, additional work or work under particular conditions. It is to be hoped that these issues will be gradually supplemented in the next editions of this Guide.

European Commission’s Guides on Posting – “living” documents

The Guides on the posting of workers from the European Commission are undoubtedly a step in the right direction. They contain a lot of practical recommendations that will make it easier for entrepreneurs posting workers right from the date of their publication. However, the European Commission had already informed that they were so-called “living documents”. What does it mean? Well, they will be able to be supplemented as the practice unfolds. Here is hoping this will allow us to fully respond to the challenges that will be faced, especially right from the date of their publications, by entrepreneurs posting workers abroad.

Katarzyna Węglarz & Marcin Kiełbasa