The freedom to provide services entails the right of traders to provide services in another Member State. This can consist in self-service by a self-employed person or on temporary assignment of employees. The principle of free movement of workers provides protection against discrimination in terms of employment, remuneration and other conditions of work and employment compared to nationals of that Member State.
There is a difference between the posting of workers and the principle of free movement of workers, which gives every citizen the right to move freely to another Member State for work and residence in that country.
Directive 96/71 / EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services constitutes the basic set of clearly defined conditions of employment to be fulfilled by the service provider in the Member State of posting to ensure a minimum level of protection to the posted workers. The directives do not apply to the personnel of commercial navy shipping companies.
This directive applies to companies operating in the EU. One of the conditions for the effective posting of a worker to another Member State is the need for an employment relationship between an employee and a delegate.
It is also worth pointing out that, on 28 May 2014, Directive 2014/67 / EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71 / EC on the posting of workers in the framework of the provision of services, amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System.
The purpose of this legislative act is to ensure that an adequate level of protection of the rights of posted workers for cross-border provision of services is ensured while at the same time facilitating the use of service providers’ freedom to provide services and promoting fair competition between service providers and thus supporting the functioning of the internal market. Directive 2014/67 / EU therefore does not change the scope of Directive 96/71 / EC. At the same time art. 4 of that directive contains elements for assessing whether the posting company actually operates in the country of residence and whether the posting of workers is temporary.
Delegation can occur in the following forms:
– On its own account and under its direction, under an agreement between the posting undertaking and the recipient of the services,
– to an establishment or a company belonging to a group (delegation within a single capital group),
– as a temporary employment agency hiring the employer’s employee staff.
An employee delegated in accordance with the directive is defined as an employee who, for a limited period of time, carries out his or her work in the territory of another Member State than the country where he works on a daily basis. The definition of worker is the definition used in the law of the Member State in which the worker is posted.
The posting period is calculated on the basis of a reference period of one year from the start of the posting. All calculations of the posting period should take into account all previous periods in which the posted job was filled by the posted worker.
In accordance with the provisions of the Directive, Member States shall ensure that the conditions of employment of workers posted on their territory, including the following:
– maximum working periods and minimum rest periods,
– minimum paid annual leave,
– minimum wage rates, including overtime rates (not applicable to supplementary occupational pension schemes),
– the conditions for hiring out workers, in particular by temporary employment companies,
– health, safety and hygiene in the workplace,
– protective measures applicable to the conditions of employment of pregnant women or women immediately after birth, children and adolescents,
– equality of treatment for men and women, and other non-discrimination provisions.
Significantly, with regard to the concept of minimum wage – it is defined in the national law and / or practice of the Member State in whose territory the worker is posted.
Member States may introduce some derogations from the rules on:
– minimum wage for work lasting a maximum of one month (provided that the work is not carried out by an agency providing employees);
– minimum wage and leave for small-scale works (provided that the work is not carried out by an agency providing workers);
– minimum wage and leave for installation and / or installation work of the delivered article and the maximum duration is not more than eight days. This derogation is not applicable in the construction sector.
In the case of initial assembly and / or first installation (if the service is required for the proper performance of the service) performed by skilled (specialized) posted workers for a period of no longer than 8 days,
- minimum paid annual leave,
- minimum remuneration rates with overtime rates.
This rule does not apply to the following construction works:
construction work in a narrower sense,
assembly and disassembly of prefabricated elements,
equipping or installing,
maintenance(painting and cleaning works)