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‘Posting’ and ‘Posted Workers’: The Need for Clear Definitions of Two Key Concepts of the Posting of Workers Directive

  • Aukje van Hoek and Mijke Houwerzijl

Abstract

In this chapter the authors discuss the personal scope of the Directive on the Posting of Workers (Dir 96/71/EC) and the implementation thereof in the Member States. The comparative findings are based on two studies conducted by the authors on behalf of the European Commission in 2010/2011. The authors argue that the concepts of ‘posting’ and ‘posted worker’ are crucial for a proper understanding of the scope of application of the Directive and its interaction with the Rome I Regulation on the applicable law to contractual obligations (Reg 593/2008). A clear and enforceable demarcation of the personal scope will help the Member States to combat abuse of the freedom to provide services and to distinguish more clearly between posting and other types of labour mobility. The proposal submitted by the European Commission to that effect (COM (2012) 131) is judged to be an important step in the right direction.

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1 Case 19/67 Van der Vecht [1967] ECR 345 and Case 35/70 Manpower [1970] ECR 1251.

2 See for instance European Parliament, Posting of Workers. Proposal for a Directive COM(91) 0230—C3/0320/91—SYN 356. Legislative Resolution (Cooperation procedure: first reading) embodying the opinion of the European Parliament on the Commission proposal for a Council directive concerning the posting of workers in the framework of the provision of services, 10 February 1993. OJ C 72/78, 15.3.93; European Parliament, Resolution on the posting of workers in the framework of provision of services. B4-0858/95. OJ C 166/123, 3.7.95; no. 4-464/204 and no. 4-464/206.

3 The Rome I Regulation (Reg 593/2008, OJ L177/6) is the direct successor of the Rome Convention of 1980. The relevant provisions have changed in text, but not drastically as to their contents. See as to the continuity between Art 6 of the Rome Convention and Art 8 of the Rome I Regulation: Case C-29/10 HeikoKoelzsch [2011], not yet reported in ECR, para 46. The provision on overriding mandatory provisions has changed however (see Art 7 Rome Convention and Art 9 Rome I Regulation).

4 See the Commission (EC), ‘Guidance on the Posting of Workers in the Framework of the Provision of Services’ (Communication) SEC (2006) 439/COM (2006) 0159 final, followed by the Communication, ‘Posting of workers in the framework of the provision of services: maximising its benefits and potential while guaranteeing the protection of workers’ SEC (2007) 747/COM (2007) 0304 final.

5 See for an account of the ‘integration fatigue’ and ‘(single) market fatigue’ in the old Member States in western Europe due to the enlargements and the unemployment and discrediting of financial capitalism in the credit crisis, the report of Mario Monti, A new strategy for the single market, at the service of Europe’s economy and society, May 2010. See: http//:ec.europa.eu/bepa/pdf/monti_report_final_10_05_2010_en.pdf.

6 Case C-438/05 Viking [2007] ECR I-10779; Case C-341/05 Laval un Partneri [2007] ECR I-11767; Case C-346/06 Dirk Rüffert v Land Niedersachsen [2008] ECR I-1989; Case C-319/06 Commission v Luxembourg [2008] ECR I-4323.

7 The ‘Laval-quartet’ gave rise to numerous conferences among scholars and policymakers and led to a ‘tsunami’ of (working) papers and articles in Academic journals. See also many ETUC press releases and reports on the aftermath of this case law.

8 European Parliament resolution of 22 October 2008 on challenges to collective agreements in the EU (2008/2085(INI)).

9 van Hoek, A & Houwerzijl, M, Comparative study on the legal aspects of the posting of workers in the framework of the provision of services in the European Union (Radboud University Nijmegen, March 2011). See: http://ec.europa.eu/social/BlobServlet?docId=6677&langId=en. National experts: C Maria Ana, K Ahlberg, G Castegnaro, A Claverie, K Ewing, M Muda, G Orlandini, F van Overmeiren, B Palli, M Pliszkiewicz, L Roseberry, M Schlachter.

10 van Hoek, A and Houwerzijl, M, Complementary Study on the Legal Aspects of the Posting of Workers in the Framework of the Provision of Services in the European Union (University of Amsterdam, November 2011). See: http://ec.europa.eu/social/main.jsp?catId= 471&langId=en. National experts: F Burger, T Davulis, M Doherty, K Dupate, J Garcia Murcia, A Ceinos, J Hajdú, D Sári, P Hůrka, R Knez, V Rošic, R Knight, U Liukkunen, A Olsovska, C Papadimitriou, E Soumeli, K Sredkova, J Manuel Vieira Gomes.

11 Next to this, the PWD I and PWD II studies also deal extensively with the implementation, application and enforcement of the material scope (Art 3) of the PWD (ch 3); actors involved in monitoring and control of the rights and the presence of posted workers, and their cross-border cooperation on these matters, with access to information, duties on service providers and service recipient as well as tools and remedies available to posted workers (ch 4).

12 See: Proposal for a Directive on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services, Brussels 21 March 2012, COM (2012) 131 final.

13 See also Recital 20 of the PWD which indicates that the Directive does not affect either the agreements concluded by the EU with third countries or the laws of Member States concerning the access to their territory of third-country providers of services. The Directive is also without prejudice to national laws relating to the entry, residence and access to employment of third-country workers.

14 Simplified description of the content of Art 3 of the PWD.

15 Apart from duties arising under the free movement of workers and non-discrimination requirements.

16 Case C-319/06 Commission v Luxembourg (n 6).

17 The distinction in the PWD between three types of posting was not adopted in the Act of 5 March 2002. The Explanatory Statement affirms that the type of posting is of no importance for the implementation of the PWD in Belgium. It was conceived that a detailed description of the types of posting falling within the scope of application would narrow the measure’s effect.

18 Neither the nationality of the workers nor the country of establishment of the employer is relevant to the application of the 2002 Act.

19 See for the effect of this confusion on the legal position of the workers: Kantonrechter Heerlen 24 September 2003, JAR 2003/268, Houwerzijl AI 2004/2 pp 39–41. For more information on the Dutch implementation see also M Houwerzijl, The Dutch Understanding of Posting of Workers in the Context of Free Services Provision and Enlargement: A Neutral Approach? Formula Working Paper 2010, see www.jus.uio.no/ifp/english/research/projects/freemov/publications/papers/2010/september/index.html.

20 Compare COM (2003) 458, p 8 and Barnard, C, ‘The UK and Posted Workers: The Effect of Commission v Luxembourg on the Territorial Application of British Labour Law’ (2009) 38(1) Industrial Law Journal 122, 125-26. See on the position of the UK also L Merrett, ‘Posted Workers in Europe from a Private International Law Perspective’ (2011) Cambridge Yearbook of European Legal Studies 219–44.

22 T Novitz, UK Implementation of the Posted Workers Directive 96/71, Formula Working Paper 2010, (see www.jus.uio.no/ifp/english/research/projects/freemov/publications/papers/2010/september/index.html) p 17 with reference to Barnard, ‘The UK and Posted Workers’ (n 20).

23 To give but one example: from the UK it is reported that any complaints entered by posted workers will not be recorded as such, since they are not in any way distinguished from national workers. Novitz, UK Implementation of the Posted Workers Directive 96/7 (n 22) observes: ‘Following also from the lack of specific legal implementation of the PWD, there are no registration or control measures which apply to posted workers in the UK.’ (p 2).

24 This conclusion was also drawn by the European Commission in its Communication to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions on the implementation of Directive 96/71/EC in the Member States, COM (2003) 458 and the report by M Sargeant on the implementation of the Directive in the new Member States of July 2007 (Contract VC/2005/38, Human European Consultancy in partnership with Middlesex University).

25 This is the case in Art R.1262-1 C.trav with regard to work accidents, Art R.1262-3 C.trav on freedom of expression, Art R.1262-4 on bank holidays and Art R.1262-7 on delivery of a monthly pay slip.

26 For the discussion of ‘temporary posting’ under the Rome I Regulation, please refer to COM (2002) 654 final, p 35.

27 This element seems to be present in the Danish definition. See PWD 1 study, p 47, with reference to M Gräs Lind, The Danish Law and the Posting of Workers, Formula Working Paper 2010, p 5, see www.jus.uio.no/ifp/english/research/projects/freemov/publications/papers/2010/september/index.html.

28 This criterion is used inter alia in France and Luxembourg. See PWD 1 study, p 46–47.

29 The attachment of a worker to the social security scheme of the Member State in which the undertaking which employs him normally operates (the posting State) maintains, whenever the worker concerned is sent by that undertaking to another Member State (the State of employment) for a period of time which from the outset is limited (a maximum of 24 months), and provided that the worker was already affiliated with the social security system of the posting State, prior to the posting. See Art 12 Reg (EC) 883/04 as amended by Reg (EC) 988/2009 and implemented by Reg (EC) 987/2009, which came into force from 1 May 2010. As a main rule (Art 11) a person is subject to the legislation of the place where he is employed or self-employed.

30 See C-55/94 Gebhard [1995] ECR I-41659.

31 The German report refers to authors relying on the temporal limit laid down in Article 12 Regulation (EC) 883/04 on the one hand and to authors relying on recital 36 of the Rome I Regulation on the other hand. See Junker, Abbo, ‘Gewöhnlicher Arbeitsort und vorübergehende Entsendung im Internationalen Privatrecht’ in Festschrift für Andreas Heldrich zum 70. Geburtstag (München, Beck, 2005) 719-39; Müko-Martiny, Münchener Kommentar zum Bürgerlichen Gesetzbuch, Band 10, 5. Aufl, Art 8 Rom I-VO Rn 57.

32 The Lindsey Oil Refinery seems to be an exception in this regard. From the ACAS report we gather that there was no dispute about the genuine nature of the posting. The conflict pertained to the labour conditions offered to the posted workers and the effect on local employment opportunities of subcontracting to an Italian company. See Report of an Inquiry into the circumstances surrounding the Lindsey Oil Refinery Dispute, conducted by the Advisory Conciliation and Arbitration Service (ACAS), published on 16 February 2009.

33 The coverage of the Center Parcs media case no 30 in the Dutch media is a good example of this. See PWD I study, Annex I, no 30. In this case, a German cleaning company had a service contract to clean several Center Parcs’ holiday parks in the Netherlands, and posted workers from Germany to carry out these services. A Dutch union claimed that the German company should apply the Dutch CLA in the cleaning sector in full. The press dealt with this case as if it concerned migrant workers instead of posted workers. www.depers.nl/binnenland/236662/Schoonmakersprotest-in-Heijen.html; 22 and 27 August 2009.

34 With this purpose, user company Skanska, a Swedish construction firm, made plans to replace Polish agency workers at its firm who were employed by the Swedish TWA by (perhaps the same) Polish agency workers employed by the Polish Adecco daughter company. See PWD 1 study, Annex I, no 39. Similarly, a Belgian mushroom cultivator replaced (Belgian) seasonal workers by posted Polish workers to harvest his mushrooms. De Standaard, ‘Zonder die Polen ga ik failliet’ (13 January 2010), see PWD I study, Annex I, no 3.

35 This is specifically reported from Sweden and France, see PWD I study, pp 56–58. On the Swedish implementation of the PWD see also K Ahlberg, The Age of Innocence and Beyond, Formula Working Paper 2010, through: www.jus.uio.no/ifp/english/research/projects/freemov/publications/papers/2010/september/index.html.

36 A particularly problematic point concerned the status of workers from the EU8 /EU2 countries who are posted to EU15 Member States by TWAs. Several Member States (Belgium, Denmark, Luxembourg and the Netherlands) consider those ‘posted’ agency workers as subject to the restrictions on the free movement of workers—a view that was strongly opposed by other Member States (eg Romania) and the European Commission. In its judgment of 10 February 2011 the CJEU sided with the former and deemed the Dutch transitional regime at this point to be in conformity with EU law. See Cases C-307–309/09 Vicoplus, not yet reported in ECR.

37 See in this regard the indicators proposed in Art 3(1) and Art 3(2)(e) of the Draft Enforcement Directive of the PWD (COM (2012) 131).

38 See PWD 1 study, Annex I, no 39, as referred to above n 34.

39 See for instance Deakin, SRegulatory Competition after Laval’ (2008) 10 Cambridge Yearbook of European Legal Studies 581609 .

40 The term reflagging is derived from international shipping. It refers to the situation where a shipowner changes the flag of his ship to profit from a more favourable legal regime in the country of the new flag. Lower labour standards are an important incentive for reflagging, as are taxation and manning requirements.

42 From France a case of 2010 was reported concerning subcontracting in France by a Luxembourg firm using Latvian workers. A Belgium case ‘Rb. Antwerpen, 21 May 2008’ concerns a Belgian shipping company which had a branch establishment in Luxembourg where it recruited Polish and Slovak sailors who were posted to Belgium under a subcontracting relationship.

43 Although the directors often are (and remain) French nationals.

44 Restrictions on the use of TWAs might be an explanation for the high incidence of irregular/undeclared work, but regulation does not itself explain underpayment and abuse.

45 See Belgium media cases no 5 and 6; the Netherlands media case no 26; Sweden media cases 35 and 36, PWD I study, Annex 1. The risk of abuse seems to increase if the worker is in an illegal position him or herself, eg for violation of the transitional migration regime. Several national experts reported exploitative practices such as the taking of passports, overcharging for housing, transportation and other services, the imposition of fines, etc.

46 Archetypal examples are cross-border services in the construction sector (such as in Rush Portuguesa and Rüffert), where the employer has won a contract to build a part of a railway or a prison.

47 See for an example C-413/01 Ninni-Orasche [2003] ECR I-13187, para 26. ‘In order to be treated as a worker, a person must nevertheless pursue an activity which is effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and accessory.’

48 Case C-319/06 Commission v Luxembourg (n 6).

49 Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work OJ L327/5.

50 See with regard to liability for eg wages also PWD 1 and 2 studies, resp. sections 4.4 and 4.7, and Houwerzijl, M and Peters, S, Liability in Subcontracting Processes in the European Construction Sector (Dublin, European Foundation, 2008): www.eurofound.europa.eu/pubdocs/2008/94/en/1/EF0894EN.pdf; Jorens, Y, Peters, S and Houwerzijl, M, Study on the Protection of Workers’ Rights in Subcontracting Processes in the European Union (Ghent University, 2012).

51 The exemption of Art 1(2) for seagoing personnel of merchant navy undertakings is implemented in most of the Member States, with the exception of the Netherlands, Germany and the UK.

52 See PWD 1 study, section 3.2. Hungary, Slovakia and Czech Republic have or until recently had specific conflict of laws rules for transport workers. Cross-border mobility of transport workers may not qualify as posting under domestic law and/or the implementation measures in Austria, Hungary, Slovenia and Portugal. See PWD 2 study, section 3.2.

53 Regulation (EC) No 1072/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international road haulage market (Text with EEA relevance) OJ L300, 14 November 2009, pp 72–87.

54 However, the same seems to be true of an international transport operation ending in the host state. The place of performance of a transport service can be deemed to be situated in both the country of origin and the country of destination. Compare Commission notice on the definition of the relevant market for the purposes of Community competition law, OJ C372/5 and Commission Decision C (2008) 8458 final of 17 December 2008 in Case No COMP/M.5141-KLM/Martinair, paras 28 ff and paras 103 ff for EU competition law and CJEU 9 July 2009; Case C-204/08 Peter Rehder v Air Baltic Corporation [2009] ECR I-06073, paras 29 ff, for the place of performance of the service under the Brussels I Regulation. In the case of cabotage, both places are located within the same state.

55 See Preamble para 17 and 18 of Reg 1072/2009 and Draft recommendation for second reading on the Council common position for adopting a regulation of the European Parliament and of the Council on common rules for access to the international road haulage market (recast) A6–0211/2009 (11788/1/2008—C6 0014/2009—2007/0099(COD)) Committee on Transport and Tourism Rapporteur: M Grosch p 15/16.

56 Para 17 of the Preamble of Reg 1972/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international road haulage market, OJ L300/72 confirms the application of the PWD to cabotage activities.

57 This is in conformity with the European transport Regulation 1072/2009, in the course of an international operation concerning the transport of goods by road.

58 The French Statute (no 2009–1503), which was adopted on 8 December 2009 lays down that special conditions for the application of the posting provisions with regard to transport workers should be provided by decree. This decree (no 2010–389) was subsequently adopted on 19 April 2010.

59 Illustrative examples were given for Italy, Romania and the Netherlands. See also the overview of media cases in section 3.5 and Annex 1, PWD I study.

60 van Hoek, A and Houwerzijl, M, Report for the Dutch Social Partners in Transport (Nijmegen, Radboud University, 2008).

61 Eurostat defines the concept as ‘international road transport between two different countries performed by a road motor vehicle registered in a third country’, see http://epp.eurostat.ec.europa.eu/statistics_explained/index.php/Glossary:Cross-trade.

62 Preamble (6): ‘Whereas the transnationalization of the employment relationship raises problems with regard to the legislation applicable to the employment relationship; whereas it is in the interests of the parties to lay down the terms and conditions governing the employment relationship envisaged.’

63 See preamble PWD paras 6–11. See also Evju, S, ‘Revisiting the Posted Workers Directive: Conflict of Laws and Laws in Contrast’ (2010) 12 Cambridge Yearbook of European Legal Studies 151-82.

64 The competence to interpret the Rome Convention was established in a separate protocol which entered into force on 1 August 2004 (see Case C-29/10 Heiko Koelzsch v État du Grand-Duché de Luxembourg, not yet reported in ECR, para 30). The Rome I Regulation only applies to contracts concluded as from 17 December 2009: Corrigendum to Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (Official Journal of the European Union L 177 of 4 July 2008), [2008] OJ L177.

65 Judgment of the Court (Grand Chamber) of 25 October 2011, Joined Cases C-509/09 eDate Advertising GmbH v X and C-161/10 Olivier Martinez and Robert Martinez v MGN Limited, not yet reported in ECR.

66 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on Electronic Commerce) [2000] OJ L178, p 1.

67 Interestingly enough the reference in the publication on the curia.eu website gives as one of the topics of the case: ‘law applicable to information society services’. The specific tort—defamation/invasion of privacy—is not covered by the Rome II Regulation, see Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) Article 1(2)(g), [2007] OJ L199/40–49.

68 This is a first difference between the situation covered by eDate (where no such harmonised conflict rule exists) and the situation as regards international employment contracts.

69 Compare the Brussels I Regulation Art 19, which uses an identical criterion to establish jurisdiction over the employer: Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I), [2001] OJ L12/1–23.

70 Judgment of the Court (Grand Chamber) of 15 March 2011, Case C-29/10 Heiko Koelzsch v État du Grand Duchy of Luxembourg, not yet reported in ECR and Judgment of the Court (Fourth Chamber) of 15 December 2011, C-394/10 Jan Voogsgeerd v Navimer SA, not yet reported in ECR, in particular paras 34–35.

71 Koelzsch (n 70) paras 47–49.

72 See on this issue inter alia, van Lent, CMEP, Internationale intra-concernmobiliteit (Deventer, Kluwer, 2000) 16 .

73 Landmark cases (old but illustrative) include Dutch Supreme Court (HogeRaad) 23 October 1987, Sorensen v Aramco Overseas Company, Nederlandse Jurisprudentie 1987, 842 and German highest labour court (Bundesarbeitsgericht) 29 October 1992—2 AZR 267/92, IPRax 1994, 123 (Pilotenentscheidung ). For a more recent example see Austrian Supreme Court 28 November 2005, 9 ObA 150/05g and Van Hoek and Houwerzijl, PWD 2 study, p 68.

74 Pending Case C-64/12 Schlecker [2012] OJ C126/5. See for the original judgment Dutch Supreme Court (Hoge Raad) 3 February 2012, case no 10/01806, LJN: BS8791 (publication number at www.rechtspraak.nl), Nederlandse Jurisprudentie 2012, 90.

75 It is important to note though that when host state law does not apply by virtue of Art 8(3) or Art 8(4), it may still apply by virtue of Art 9 Rome I (see also below section VI).

76 The PWD uses the word ‘normally’, whereas the Rome I Regulation applies ‘habitually’. It is unclear whether there is a difference in meaning between the two concepts; whereas the Rome I Regulation seems to focus on the place of work under the specific contract of employment, the concept of PWD may also be applied when the work in the country of origin is performed for more than one employer. Thus, a purely literal reading of Art 2(1) PWD would fit with the posting rule with regard to social security: here, previous insurance in the country of origin is required, not necessarily previous engagement with the posting undertaking. See Art 12 Reg (EC) 883/04 as amended by Reg (EC) 988/2009 and implemented by Reg (EC) 987/2009, which came into force from 1 May 2010.

77 This link is made explicit in the indicator in Art 3(2)(b) of the draft enforcement directive of the PWD (COM (2012) 131).

78 The Dutch ‘Wet arbeidsvoorwaarden grensoverschrijdende arbeid (WAGA)’ defines the posted worker as someone who works temporarily in the Netherlands, while foreign law is applicable to their labour contract. Other criteria and distinctions provided in the PWD are not implemented in the Dutch law.

79 See, eg, Rüffert (n 6), para 34 refers to the Member State of origin and Case C-341/05 Laval un Partneri Ltd v SvenskaByggnadsarbetareförbundet [2007] ECR I-11767, para 81.

80 The coordination of cross-border services is regulated (inter alia) by the Services Directive. Labour law is specifically excluded from the fields coordinated by this directive; see preamble paras 14 and 86–87 and Art 1(6) of Directive 2006/123.

81 Compare in the context of the transitional period and migration law: Joined Cases 307–309/09 Vicoplus v Minister van SocialeZaken en Werkgelegenheid, not yet published in ECR, see on this judgment also above n 36; Compare also Services Directive, preamble paras 86 and 87.

82 PWD II Study, p 286.

83 See on the limitations the treaty itself imposes Cases C-49/98 Finalarte [2001] ECR I-7831, C-164/99 Portugaia Construcoes [2002] ECR I-787, C-165/98 Mazzoleni [2001] ECR I-2189, C-369/96 Arblade [1999] ECR I-08453 and C-272/94 Guiot [1996] ECR I-1905.

84 However, it must be noted that Member States make very divergent use of Art 9 Rome I. See the PWD I study, pp 16 ff.

85 Traditionally, under Polish law, common Polish nationality used to be enough for the Polish labour law to apply. Under German private international law as interpreted by the Bundesarbeitsgericht, common nationality is a factor to be taken into consideration when determining the applicable law: see inter alia BAG 29 October 1992—2 AZR 267/92IPRax 1994, 123 (Pilotenentscheidung). See for case law under the Rome Convention (and the similar rule of Dutch private international law), van Hoek, AAH, Internationale mobiliteit van werknemers (Den Haag, Sdu, 2000).

86 Pursuant to Art 12 Reg 883/2004.

87 This is also proposed as an indicator in Art 3(2)(d) of the draft enforcement directive of the PWD (COM (2012) 131).

88 Please note that only EU-nationals are entitled to free movement under Art 45 TFEU.

89 Notwithstanding the possibility to make contractual arrangements on this with the employer.

90 Case C-113/89 Rush Portuguesa [1990] ECR I-1417, para 15; Case C-43/93 Vander Elst [1994] ECR I-3803, para 23. See for the development of this line in case law, Verschueren, H, ‘Cross-border workers in the European internal market: Trojan horses for Member States’ Labour and Social Security Law?’ (2008) 24(2) The International Journal of Comparative Labour Law and Industrial Relations, 167-99, in particular 171–77. Please note that in Vicoplus (n 36), the CJEU ruled that although an undertaking engaged in the making available of workers is taking advantage of the free movement of services, the activities it carries out are specifically intended to enable workers to gain access to the labour market of the host Member State. On the basis of this judgment, it may be argued that an intermediate category comes into being, because posted agency workers would qualify as both a posted and a migrant worker.

91 In this case also compensation for work involving overnight stays away from home was disputed and the legality of awarding posted workers better protection on working time at collective agreement level than that provided by legislation in the host country. This advisory opinion builds on the Judgment of the CJEU in the Case-244/04 Commission v Germany [2006] ECR I-885 on the interpretation of the notion ‘minimum rates of pay’. See on this subject also the PWD 1 and PWD 2 studies, respectively sections 3.6 and 3.6.

92 Under Section 7 of the Norwegian Tariff Board Regulation, an employer is required to cover necessary travel expenses on commencement and completion of the assignment of a posted worker and for a reasonable number of home visits. Before the employer posts an employee to work away from home, board and lodging arrangements must be agreed. As a rule, the employer is required to cover board and lodging, but a fixed subsistence allowance, or payment on the submission of receipts etc. may be agreed. On the Norwegian implementation of the PWD see S Evju, Safeguarding the National Interests. Norwegian Responses to Free Movement of Services, Posting of Workers, and the Services Directive, Formula Working Paper 2010, through: www.jus.uio.no/ifp/english/research/projects/freemov/publications/papers/2010/september/index.html.

93 Art 3(7) stipulates that ‘Allowances specific to the posting shall be considered to be part of the minimum wage, unless they are paid in reimbursement of expenditure actually incurred on account of the posting, such as expenditure on travel, board and lodging.’ Art 3(1)(c) on the other hand guarantees the posted worker the application of host state rules with regard to ‘the minimum rates of pay, including overtime rates; this point does not apply to supplementary occupational retirement pension schemes.’

94 EFTA-Court, Advisory opinion in Case E-2/11, point 97.

95 EFTA-Court, Advisory opinion in Case E-2/11, points 99–101.

96 See PWD 2 study, p 131–33.

97 Resolution no 116 of 21 November 1996 of the Ministry of Finances of the Republic of Lithuania (State Gazette, 1996, no 114–2660).

98 France has a provision which excludes employees hired in France from the scope of application of their implementing rules. CdT L 1262–3, see PWD I study, ch 3.2, p 32 and p 46.

99 The Circular requires significant activity in the home state.

100 L1262–3; Preventing undertakings providing services in France from recruiting complementary staff ‘on the spot’, would probably constitute an obstacle to the freedom to provide services contrary to Art 56 TFEU. One may also wonder if this latter criterion is desirable from a ‘local labour market perspective’: compare this to the solution sought under the supervision of ACAS in the Lindsey oil refinery dispute, where the dispute settlement agreement with the Italian subcontractor included recruitment of around 100 ‘locally sourced’ workers. See extensively Barnard, C, ‘“British Jobs for British Workers”: The Lindsey Oil Refinery Dispute and the Future of Local Labour Clauses in an Integrated EU Market’ (2009) 38(3) Industrial Law Journal 245-77.

101 This requirement does not apply in the case of TWAs.

102 See eg, Case C-244/04 Commission v Germany (n 91).

103 However, it cannot eliminate all the reported problems and uncertainties. As discussed in section IV above, our PWD studies confirm the special status of transport workers, both as regards the exact criterion for application of the protection offered by the PWD and as regards the practical application and enforcement thereof. These findings underscore the relevance of a separate implementation of the PWD for transport workers.

104 See Art 3(2) of the proposal for a Directive on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services, Brussels 21 March 2012, COM (2012) 131 final.

105 In our opinion, another (absolute) contraindication of a genuine posting situation would be the abnormally limited number of contracts performed and/or size of turnover realised by the posting employer in the Member State of establishment, see Art 3(1)(e).

106 See for specifics, above section VI and PWD2 study, ch 3.6 ‘per diems’.

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