Posting revisited

11 April 2008

in june 2006 the European Commission published its assessment of the situation for EU citizens working, or posted, outside their home nation. The aim was to remove unnecessary obstacles to the free movement of workers, while continuing to ensure adequate protection for posted workers, in the framework of the ‘Posting Directive' (1996/71/EC).

Mobility is vital to addressing labour shortages in the EU, particularly in the labour-intensive construction industry. Companies should not be confronted by unnecessary barriers, but at the same time, host countries must be able to combat illegal employment and ensure the protection of workers.

The need for national authorities to check compliance with national laws is indisputable. The Commission also says it does not intend to question the different social models or the way Member States organise their collective bargaining systems. However, it considers that some measures are excessive as they go beyond the protection of posted workers and are unjustified obstacles to the free movement of services – a fundamental right enshrined in the EU Treaty.

Many Member States appear to rely solely on their national laws and instruments. This may be caused by the virtual absence of administrative cooperation between countries as well as unsatisfactory access to information and cross-border enforcement issues.

The Commission is therefore calling on the Member States to reinforce cooperation with each other as well as with itself. It also underlines the important role of the social partners FIEC and the European Federation of Building and Woodworkers (EFBWW) for the construction industry – in further improving the practical application of the Posting Directive.

In a joint position paper adopted a year ago FIEC and EFBWW confirmed their backing of the two fundamental aims of the Posting Directive, mentioned in Articles 49 and 50 of the Treaty. These guarantee the free movement of services and people, while also ensuring that the employer posting workers to another Member State will do so “under the same conditions as imposed by that State on its nationals”.

The Posting Directive is a necessary tool to ensure legal certainty for companies and for guaranteeing the rights of posted workers. FIEC and EFBWW also take the position that the Commission and Member States, must ensure it functions in a more effective way, to combat the risks of ‘social dumping' which may arise in the development of the European internal market.

Posted workers must benefit from the working conditions


Considering the specifics of the construction sector, which differ significantly from other sectors, FIEC and EFBWW:

• Consider that the Posting Directive does not need to be revised and that it is a well balanced instrument for achieving the objectives of articles 49 and 50 of the EC Treaty, including fair competition and social protection.

• Are pleased with the progress made by some Member States regarding the access to information relative to posting and the diversity of the tools developed in order to make such information known to everyone, even if trans-national administrative cooperation still needs to be improved.

• Declare that the use of expressions such as “perceived risks” or “general presumption”, when speaking of risks of social dumping or fraud and abuse, is inadequate, considering the non-respect of social and labour law rules is an existing phenomenon and confirmed by the findings of control actions.

• Regret that the Commission never expressly mentions that “prior declarations” are adequate and proportionate formalities to ensure that the host Member State's social law is respected. On the contrary, the Commission considers such formality as suspicious rather than a tool for reinforcing control. In fact, prior declarations are not synonymous with prior controls. On the contrary they allow the authorities of the host country to be properly informed of the existence of posted workers on their territories and to organise controls, if and when necessary.

• Welcome in this regard the judgment of the European Court of Justice issued on 18/7/2007 (Case C-490/04, Commission v. Germany) which decided that certain control measures (such as providing some key documents in local languages or paying subscriptions into the local paid leave fund, provided there is no equivalent cover in the home country) are in line with the “freedom to provide services” principle of the EU-Treaty.

• Reaffirm that it would be helpful to have a harmonised EU standard form for such “prior declaration” and offer their assistance for developing it.

• Confirm that they would like to be involved in the further “examination and reflection” on “whether subsidiary liability could constitute an effective and proportionate way to increase the monitoring and enforcement of compliance with Community law” as mentioned in the Communication.

It is clear that the “Posting” Directive will continue to be a priority issue on the agenda of the European Social Partners in the coming years.

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