1. Dr marek benio
SoPHIA
Posting of workers

2. EU pillars Freedom of movement for people (employees)
Free movement of goods (and services)
Free movement of capital
Freedom to start and run businesses

5. Free movement of services
Article 56 TFEU
Restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.
 C 113/89 Rush Portuguesa and C-43/93 Vander Elst
Employees of a company that has been temporarily posted to another Member State for the purpose of providing services there do not claim in any way the right to access to the labour market of the other country, because they return to their country of origin or residence after carrying out their tasks.

6. Posted worker - definition
For the purposes of this Directive, the term „posted worker” means a worker who, for a limited period, carries out his work in the territory of a Member State other than the State in which he normally works
For the purposes of this Directive, a definition of a worker shall be that which shall apply in the law of the Member State in whose territory the worker is posted

7. Legal systems Labour law Social security Taxes Harmonization
Directive 96/71/EC
Rome I - private international law
Labour law
Coordination
Regulation 883/2004/EC
Social security
Avoiding double taxation
Bilateral agreements
Taxes

8. Sources of EU law (labour and social security law)
Article 56 TFEU
Treaty
96/71/EC
Basic directive
2014/64/EC
Implementation directive
593/2008/EU
Rome I Regulation
883/2004/EC (d. 1408/71/EC)
Regulation on coordination of social security systems
987/2009/EC
Regulation laying down the procedure for implementing reg. 883/2004/EC
A draft revision of the implementation directive

9. Basic directive 96/71/EC
Posting of workers in the framework of the provision of services

10. Types of posting
Posting of workers by an undertaking on its own account and under its direction to the territory of another state, under an agreement between the undertaking and a recipient of services operating in a given Member State,
posting workers to a company or undertaking belonging to a group of undertakings in the territory of another country,
posting workers to the territory of another country as a temporary work undertaking or lending an employee to an undertaking through an agency.

11. Mandatory employment conditions
maximum work periods and minimum rest periods,
minimum pay,
minimum annual pay leave.

12. Implementation directive
Criteria for real posting – Employer and employee
Strengthening cooperation between audit institutions
Cross-border enforcement of penalties and fines
Implementation directive 2014/64/EC

13. Criteria for real posting - employer
Company headquarters
Place of recruitment of employees
Law applicable to employment contracts
Law applicable to contracts with clients
Significant activity in the posting country
Number of contracts and turnover in the posting country

14. Criteria for real posting - employee
Limited work-time abroad
The date of the start of posting
Work in a country other than that in which the employee normally performs work
After the work is done, the employee returns to his country
Transport, accommodation and meals are provided for the worker
Substitutes for another posted worker

15. The choice of labour law ROME I
Definition of the employment relationship according to the law of the host country
Rome I Regulation 593/2008/EU (different standards no longer collide)
Rules:
Labour law of the posting country
Choice of the governing law by the parties – with the exception of Article 3 of the Directive
Principle of the most favourable law

16. Social insurance One legal order Anti-discrimination policy
Social insurance guarantee even after crossing the border
Protection against double insurance
Anti-discrimination policy
Protection of acquired rights
Protection of rights during their acquisition

17. Applicable legislation
Article 11 Lex loci laboris
General rule
Article 12 Posted workers
Article 13 Work in two countries
Article 16 Special agreement
Special rules

18. Article 12
A person who performs an activity as an employed person in a Member State on behalf of an employer who normally carries out his activities there, and who is posted by that employer to another Member State to work on behalf of that employer, is still subject to the legislation of the first Member State, provided that the anticipated duration of such work does not exceed 24 months and that the person is not sent to replace another delegated person.

19. A1 certainty over correctness
Statement A1 / E101 – is binding for the competent institution and courts of the Member State to which the employees were posted, until it is revoked or declared invalid by the authorities of the Member State that issued it.
Judgment C-2/05 of CJEU: Rijksdienst voor Sociale Zekerheid vs Herbosch Kiere NV
French URSSAF of Alsace vs Swiss insurance company and ROSA – case pending [opinion of the Advocate General of the CJEU Oe

20. Discussion

21. Inspiration for the survey
In our Union, the same work at the same place should be remunerated in the same manner
Jean Claude Junker
COM proposal minimum rates of pay -> remuneration
Equal pay? Equal terms of pay?

22. Revision of the basic directive
Equal pay for the same work done in the same place
EQUAL PAY
After 24 moths – working in the host country

23. „Remuneration”
It covers all elements required by host country regulations, collective agreements or arbitration rulings recognized as generally applicable or
Understood according to the law and custom of the host state
pay bonuses? variable pay components? all because of minimum pay rates, ????

24. Usual workplace
The principle of freedom of choice of the law (Article 3 and Article 8 of the Rome I Treaty)
The choice cannot lead to depriving an employee of the protection granted to him on the basis of regulations that cannot be excluded by contract, under the law of the country where he normally performs his work.
_____________________________________________________________________
EC proposal – expected or actual posting period <24 months – the host country is considered to be a usual workplace>
After 24 months or from day 1?
2 or more usual places of work possible

25. Let’s talk Social dumping Level playing field Fairer single market
Equal (terms of) pay for the same work in the same place