Monika Spotowska

Tax adviser (Poland)
Senior Associate
Phone: +48 22 244 00 56

The European Parliament has finished work on the directive implementing Directive 96/71/EC concerning the posting of workers in the framework of the provision of services. The purpose of the new regulations is to ensure better legal protection of posted workers and to provide mechanisms preventing the circumvention of the relevant provisions of law.  

The posting of workers by an employer to another Member State in the framework of the provision of services is regulated in Directive 96/71/EC of the European Parliament and of the Council of 16/12/1996. The purpose of the Directive is to ensure minimum protection of posted workers. According to the Directive, the terms and conditions of employment of a posted worker may not be worse than those applying in the Member State to whose territory he was posted. Member States have been obliged to adopt national legal regulations which guarantee minimum employment standards on their territory. However, due to the lack of relevant control mechanisms, such regulations are not always fully observed.

In order to ensure that the requirements of Directive 96/71/EC are effectively implemented, consistently applied and effectively enforced, the European Commission prepared a draft directive implementing the above Directive. The implementing directive neither repeals nor changes the principles adopted in Directive 96/71/EC but rather introduces measures which should lead to strengthening the norms applicable on its basis.

The implementing directive contains a list of criteria which should help to establish whether in a given case the work is indeed performed by a posted worker or whether there is an attempt to circumvent the law. On the basis of an analysis of the selected facts, the competent control authorities can assess whether:

  • the enterprise posting a worker (employer) conducts a significant part of its business activity in the country of posting;
  • the posted worker temporarily carries out their work in a Member State to which they were posted.

In addition, the Directive sets a list of control measures and administrative requirements which competent authorities may use to find out whether the employment is legal. However, these are not the only measures that can be used by the Member States. Member States can introduce additional requirements and measures but should respect the principle of proportionality. According to this principle, the measures taken should be appropriate and necessary to achieve the planned objective and the introduced restrictions cannot be excessive. Moreover, the Member States have to notify the European Commission about the solutions adopted in this area. 

Thanks to the new regulations access to information will be improved as well. Member States will be obliged to keep an official website containing data on the terms and conditions of employment applying to workers posted to their territory. In addition, they should indicate persons and authorities competent to provide information to workers and enterprises (employers) on their national law.

The implementing directive also sets out in detail the principles of cooperation between Member States. Mutual assistance should consist in the exchange of information and in the carrying out of inspections and investigations regarding the posting of workers. Information requested by other Member States or by the European Commission may be transferred by electronic means through the Internal Market Information System (IMI). 

Moreover, the implementing directive provides workers with means to protect their rights. In case a worker has sustained loss or damage because his employer has failed to comply with the applicable rules, he has the right to lodge a complaint against his employer and to institute judicial or administrative proceedings in the Member State in whose territory he was posted. The worker is entitled to use these means even after the end of his employment.  The Directive stipulates that the employer is liable for all liabilities arising from the contractual relationship between the employer and the posted worker. The role of Member States is to have in place the mechanisms which allow posted workers to recover e.g. any outstanding remuneration, social insurance contributions and other costs.

Workers from the construction sector will be specially protected. Contractors and subcontractors will bear joint and several liability for any outstanding remuneration of workers from this sector. Member States may decide to impose a more stringent liability in this regard or to extend this liability also to other sectors. However, the application of the new means cannot lead to the violation of the non-discrimination or proportionality principle. 

In addition, the Directive provides for principles of cross-border enforcement of administrative fines and penalties, which should eliminate the existing problems in this area. 

Member States will have two years for bringing into force the national regulations necessary to comply with the Directive after its publication in the Official Journal of the European Union. However, it is worth starting as soon as now to consider the obligations arising from the implementing directive.

We would be glad to provide you with more information if you are interested in this or other issues in the area of labour law in Poland. Our attorneys-in-law also offer legal advice in Poland on other issues. They are at your disposal in Rödl & Partner offices in: Gdansk, Gliwice, Cracow, Poznan, Warsaw, Wroclaw.