Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending 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 - Main contents

Document date	09-03-2018
Publication date	10-03-2018
Reference	6783/18 ADD 1
From	Presidency
External link	original article
Original document in PDF

Council of the European Union

Brussels, 9 March 2018

PUBLIC

(OR. en)

6783/18

Interinstitutional File: ADD 1

2016/0070 (COD) i LIMITE

SOC 118 EMPL 88 COMPET 131 MI 139 CODEC 311 JUSTCIV 51

NOTE

From: Presidency

To: Permanent Representatives Committee

Subject: Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF

THE COUNCIL amending Directive 96/71/EC i 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

Delegations will find attached a four-column-table reflecting the state-of-play of the

interinstitutional negotiations on the above-mentioned file.

Revision of the Posting of Workers Directive

Comparative table after the 7th trilogue of 28/02/2018

COM Proposal EP AMs Council General Approach Comments

Proposal for a = = Proposal for a 1

DIRECTIVE OF THE = = DIRECTIVE OF THE EUROPEAN 2

EUROPEAN PARLIAMENT PARLIAMENT AND OF THE

AND OF THE COUNCIL COUNCIL

amending Directive 96/71/EC i of = amending Directive 96/71/EC i NOTE: CONS GA are only 3

The European Parliament and of […] concerning the posting of legal-linguistic modifications. the Council of 16 December 1996 workers in the framework of the concerning the posting of workers provision of services in the framework of the provision of services

(Text with EEA relevance) = = (Text with EEA relevance) 4

THE EUROPEAN = = THE EUROPEAN 5 PARLIAMENT AND THE PARLIAMENT AND THE COUNCIL OF THE EUROPEAN COUNCIL OF THE UNION, EUROPEAN UNION,

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Amendment 1 = 6

Having regard to the Treaty on the Having regard to the Treaty on Having regard to the Treaty on

Functioning of the European the Functioning of the European the Functioning of the European

Union, and in particular Union, and in particular Article Union, and in particular

Articles 53(1) and 62 thereof, 53(1), Article 62, and Article Articles 53(1) and 62 thereof,

153(1)(a) and (b) in conjunction with Article 153(2)

thereof, NOTE: SEE ROW 47 bis and 47

ter

Having regard to the proposal = = Having regard to the proposal 7 from the European Commission, from the European Commission,

After transmission of the draft = = After transmission of the draft 8 legislative act to the national legislative act to the national parliaments, parliaments,

Having regard to the opinion of = = Having regard to the opinion of 9 the European Economic and the European Economic and Social Committee, Social Committee1,

Acting in accordance with the = = Acting in accordance with the 10 ordinary legislative procedure, ordinary legislative procedure,

Whereas: = = Whereas: 11

1 OJ C , , p. .

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Recital 1

Amendment 2 NOTE: CONS GA are only 12

• (1) 

  The free movement of (1) The free movement of (1) The free movement of legal-linguistic modifications.

workers, freedom of workers, freedom of workers, freedom of establishment and freedom to establishment and freedom to establishment and freedom to provide services are fundamental provide services are fundamental provide services are fundamental principles of the internal market in principles of the internal market principles of the internal market the Union enshrined in the Treaty in the Union enshrined in the […] enshrined in the Treaty on on the Functioning of the Treaty on the Functioning of the the Functioning of the European

European Union (TFEU). The European Union (TFEU) and Union (TFEU). The implementation of those essential to a properly implementation of those principles is further developed by functioning internal market. principles is further developed the Union aimed at guaranteeing a The implementation and by the Union and is aimed at level playing field for businesses enforcement of those principles guaranteeing a level playing and respect for the rights of is further developed by the field for businesses and respect workers. Union aimed at guaranteeing a for the rights of workers.

level playing field for businesses, combating the circumvention of rules, respecting workers’ rights, improving working conditions and enhancing social cohesion among Member States.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Recital 2

Amendment 3 NOTE: CONS GA are only 13

• (2) 

  The freedom to provide (2) The freedom to provide (2)The freedom to provide legal-linguistic modifications.

services includes the right of services includes the right of services includes the right of undertakings to provide services undertakings to provide services undertakings to provide services in another Member State, to in another Member State, to in another Member State, to which they may post their own which they may post their own which they may post their own workers temporarily in order to workers temporarily in order to workers temporarily in order to provide those services there. provide those services there. In provide […] services there.

accordance with Article 56 TFEU, restrictions on freedom to provide services within the Union are to 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.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Recital 3

Amendment 4 NOTE: CONS GA are only 14

• (3) 

  According to Article 3 TEU, (3) According to Article 3 TEU, (3) According to Article 3 of the legal-linguistic modifications.

the Union shall promote social the Union shall promote social Treaty on European Union, the justice and protection. Article 9 justice and protection. Article 9 Union is to promote social

TFEU gives the Union the task to TFEU gives the Union the task justice and protection. promote a high level of to promote a high level of According to Article 9 of the employment, to guarantee an employment, to guarantee TFEU, […] the Union is to take adequate social protection and to adequate social protection and to into account requirements combat social exclusion. combat social exclusion as well linked to the promotion of a

as to promote a high level of high level of employment, the education, training and guarantee of adequate social protection of human health. protection and the fight against social exclusion in defining and implementing its policies and activities.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Recital 3a(new)

Amendment 5 PROVISIONALLY AGREED 15

(3a) In order to ensure that this TEXT, SUBJECT TO CHECK Directive is correctly applied, BY THE COUNCIL:

coordination between the In order to ensure that this Member States’ labour Directive is correctly applied, inspection services and coordination between the cooperation at European level Member States’ competent on combating fraud relating to authorities and/or bodies and the posting of workers should cooperation at European level be strengthened, and checks on combating fraud relating to should be carried out to ensure the posting of workers should that social contributions for be strengthened. posted workers are paid regularly to the managing authority of the Member State of origin.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Recital 4

Amendment 6 NOTE: CONS GA are only 16

• (4) 

  Almost twenty years after its (4) Almost twenty years after its (4) Almost twenty years after its legal-linguistic modifications.

adoption, it is necessary to assess adoption, and in the light of adoption, it has become whether the Posting of Workers proven cases of fraud, it is necessary to assess whether

Directive still strikes the right necessary to revise the Posting Directive 96/71/EC i of the balance between the need to of Workers Directive, assess European Parliament and of promote the freedom to provide whether it still strikes the right the Council 3 still strikes the services and the need to protect balance between the need to right balance between the need the rights of posted workers. promote the freedom to provide to promote the freedom to

services and ensure a fair provide services and the need to business climate and a level protect the rights of posted playing field for workers and workers. undertakings operating in the internal market, and the need to protect the rights of posted workers. There is an urgent need to clarify the rules, to make sure that they are applied uniformly and to bring about genuine upward social convergence. Alongside the revision of Directive 96/71/EC i, priority should also be given to the implementation and enforcement of Directive

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

2014/67/EU of the European Parliament and of the Council 2 .

Recital 4a (new)

Amendment 7 17

(4a) Sufficient and accurate data remains lacking in the area of posted workers, in particular with regard to information about the number of posted workers in particular employment sectors and in particular Member States. It is important that the Commission begin to collect and monitor such data, and carry out an impact assessment in the area of posted workers.

3 Directive 96/71/EC i 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 (OJ L 18, 21.1.1997, p.1)

2 Directive 2014/67 i/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC i concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 i on administrative cooperation through the Internal Market Information System (‘the IMI Regulation‘) (OJ L 159, 28.5.2014, p. 11).

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Recital 5

Amendment 8 NOTE: CONS GA are only 18

• (5) 

  The principle of equal (5) The principle of equal (5) The principle of equal legal-linguistic modifications.

treatment and the prohibition of treatment and the prohibition of treatment and the prohibition of any discrimination based on any discrimination based on any discrimination based on nationality are enshrined in EU nationality are enshrined in EU nationality have been enshrined law since the founding Treaties. law since the founding Treaties, in Union law since the founding

The principle of equal pay has including for companies Treaties. The principle of equal been implemented through providing cross-border services. pay has been implemented secondary law not only between The principle of equal pay has through secondary law not only women and men, but also between been implemented through between women and men, but employees with fix term contracts secondary law not only between also between employees with and comparable permanent women and men, but also fixed term contracts and workers, between part-time and between employees with fix comparable permanent workers, full-time workers or between term contracts and comparable between part-time and full-time temporary agency workers and permanent workers, between workers and between temporary comparable workers of the user part-time and full-time workers agency workers and comparable undertaking. or between temporary agency workers of the user undertaking.

workers and comparable workers of the user undertaking. This includes the prohibition of any measures which may directly or indirectly discriminate between citizens. While applying those principles, the relevant case-law of the Court of Justice of the European Union should be

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

taken into consideration.

Recital 6

Amendment 9 NOTE: EP shifts the content of 19

• (6) 

  The Rome I Regulation (6) The Rome I Regulation DELETED recital 7 into recital 6.

generally permits employers and generally permits employers and employees to choose the law employees to choose the law applicable to the employment applicable to the employment contract. However, the employee contract. However, the employee must not be deprived of the must not be deprived of the protection of the mandatory rules protection of the mandatory of the law of the country in which rules of the law of the country in or, failing that, from which the which or, failing that, from employee habitually carries out which the employee habitually his work. In the absence of carries out his work. In the choice, the contract is governed absence of choice, the contract is by the law of the country in which governed by the law of the or, failing that, from which the country in which or, failing that, employee habitually carries out from which the employee his work in performance of the habitually carries out his work in contract. performance of the contract. The

Rome I Regulation also provides that the country where the work is habitually carried out is not deemed to have changed if the worker is temporarily employed in another country. This Directive creates legal certainty in the

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

application of the Rome I Regulation to a specific situation, without amending the Rome I Regulation in any way. The worker will in particular enjoy the protection and benefits pursuant to the Rome I Regulation.

Recital 7

Amendment 10 NOTE: EP shifts the content of 20

• (7) 

  The Rome I Regulation DELETED DELETED recital 7 into recital 6.

provides that the country where the work is habitually carried out shall not be deemed to have changed if he is temporarily employed in another country.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Recital 7a (new)

(7a) The competent national (7a) The competent national 21 authorities, in accordance with authorities, in accordance with their national law and/or their national law and/or practice, should be able to practice, should be able to verify that the conditions of verify that the conditions of accommodation for posted accommodation for posted workers provided by workers provided by employers are in line with the employers are in line with the relevant national provisions in relevant national provisions in force in the host Member State force in the host Member State that might apply also to posted that might apply also to posted workers. workers.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Recital 7b (new)

(7b) Posted workers that are PROVISIONALLY AGREED 22 temporarily sent from their TEXT, SUBJECT TO regular place of work, in the CHECK BY THE COUNCIL: territory of the Member State

to which they have been Posted workers that are posted, to another place of temporarily sent from their work, should receive at least regular place of work, in the the same allowances or territory of the Member State reimbursement of expenditure to which they have been to cover travel, board and posted, to another place of lodging expenses for workers work, should receive at least away from home for the same allowances or professional reasons that apply reimbursement of expenditure to local workers in that to cover travel, board and Member State. The same lodging expenses for workers should apply to costs incurred away from home for by a posted worker when he is professional reasons that apply required to travel to and from to local workers in that his regular place of work in Member State. The same the Member State to which should apply to costs incurred territory he is posted. by a posted worker when he is However, the hard core of required to travel to and from protective rights should not be his regular place of work in extended to allowances or the Member State to which reimbursement of expenditure territory he is posted. related to the fact that a However, the hard core of worker who is posted within protective rights should not be

the meaning of Article 1 (3) of extended to allowances or reimbursement of expenditure

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Directive 96/71/EC i is away related to the fact that a from the Member State in worker who is posted within which he normally works. the meaning of Article 1 (3) of Double payment of travel, Directive 96/71/EC i is away board and lodging expenses from the Member State in should be avoided. which he normally works. Double payment of travel, board and lodging expenses should be avoided.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Recital 8

Amendment 11 23

• (8) 

  In view of the long duration of (8) In view of the long duration (8) Posting is of a temporary certain posting assignments, it is of certain posting assignments, it nature and the posted worker necessary to provide that, in case is necessary to provide that usually returns to the country of posting lasting for periods posting is of a temporary of origin after the completion higher than 24 months, the host nature. Therefore, all the of the work for which he has

Member State is deemed to be the applicable terms and conditions been posted. However, in view country in which the work is of employment of the Member of the long duration of certain carried out. In accordance with State where the worker is posted postings, and in the principle of Rome I should be applicable after 24 acknowledgment of the link

Regulation, the law of the host months, except the conditions between the labour market of

Member Sates therefore applies to relating to the conclusion and the host country and the the employment contract of such termination of the employment workers posted for such long posted workers if no other choice contract. This rule does not periods, it is necessary to of law was made by the parties. In affect the right of undertakings provide that, in case of posting case a different choice was made, posting workers to the territory lasting for periods longer than it cannot, however, have the result of another Member State to 12 months, host countries of depriving the employee of the invoke the freedom to provide should ensure that protection afforded to him by services in circumstances also undertakings posting workers provisions that cannot be where the posting exceeds 24 to their territory guarantee an derogated from by agreement months. For postings that additional set of terms and under the law of the host Member require a longer duration, it conditions that are

State. This should apply from the should be possible to grant mandatorily applicable to start of the posting assignment extensions to undertakings workers in the Member State whenever it is envisaged for more based on a reasoned request where the work is carried out. than 24 months and from the first made to the competent day subsequent to the 24 months authority of the Member State when it effectively exceeds this

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

duration. This rule does not affect where the worker is posted. the right of undertakings posting workers to the territory of another

Member State to invoke the freedom to provide services in circumstances also where the posting exceeds 24 months. The purpose is merely to create legal certainty in the application of the

Rome I Regulation to a specific situation, without amending that

Regulation in any way. The employee will in particular enjoy the protection and benefits pursuant to the Rome I

Regulation.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Recital 9

Amendment 12 24

• (9) 

  It is settled case law that (9) It is settled case law that (9) Ensuring greater restrictions to the freedom to restrictions to the freedom to protection of workers is provide services are only provide services are only necessary to safeguard the admissible if justified by admissible if justified by freedom to provide services on overriding reasons in the public overriding reasons in the public a fair basis in both the short interest and must be proportionate interest and must be necessary and the long term, notably by and necessary. and proportionate preventing abuse of the rights

  guaranteed by the Treaties. Rules ensuring such protection of workers, however, cannot affect the right of undertakings posting workers to the territory of another Member State to invoke the freedom to provide services also in cases where the posting exceeds 12 months. Any provision applicable to workers posted in the context of a posting exceeding 12 months must thus be compatible with that freedom. It is settled case law that restrictions to the freedom to provide services are […] admissible only if justified by overriding reasons in the public

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

interest and if they are proportionate and necessary.

Recital 9a (new)

(9a) The additional set of 25 terms and conditions to be guaranteed by the undertaking posting workers to another Member State should also cover workers who are posted to replace other posted workers, to ensure that such replacements are not used to circumvent the otherwise applicable rules.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Recital 9b (new)

(9b) As is the case with 26 Directive 96/71/EC i, this Directive should not prejudice the application of Regulation (EC) No 883/2004 4 and Regulation (EC) No 987/2009 i of the European Parliament and of the Council 5 .

4 Regulation (EC) No 883/2004 i of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ L 166, 30.4.2004, p. 1).

5 Regulation (EC) No 987/2009 i of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 i on the coordination of social security systems (OJ L 284, 30.10.2009, p. 1).

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Recital 10

Amendment 13 27

• (10) 

  Because of the highly mobile (10) Because of the highly (10) Because of the highly nature of work in international mobile nature of work in mobile nature of work in road transport, the implementation international road transport, the international road transport, the of the posting of workers directive implementation of the posting of implementation of this raises particular legal questions workers directive in that sector Directive in this sector raises and difficulties (especially where raises particular legal questions particular legal questions and the link with the concerned and difficulties which are difficulties,[…] which will be

Member State is insufficient). It addressed in the Commission’s addressed through specific would be most suited for these proposal for a directive rules for road transport also challenges to be addressed amending Directive 2006/22/EC i reinforcing the fight against through sector-specific legislation as regards enforcement fraud and abuse, in the together with other EU initiatives requirements and laying down framework of the mobility aimed at improving the specific rules with respect to package. functioning of the internal road Directive 96/71/EC i and transport market. Directive 2014/67 i/EU for

posting drivers in the road transport sector [COD(2017)0121], which is intended to provide for sectorspecific legislation.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Recital 11

Amendment 14 NOTE: CONS GA are only 28

• (11) 

  In a competitive internal (11) In a truly integrated and (11) In a competitive internal legal-linguistic modifications.

market, service providers compete competitive internal market, market, service providers not only on the basis of a labour service providers compete on the compete not only on the basis of costs but also on factors such as basis of factors such as labour costs but also on the productivity and efficiency, or the productivity, efficiency, basis of factors such as quality and innovation of their education and skill level of the productivity and efficiency, or goods and services. labour force, as well as quality the quality and innovation of

and innovation of their goods their goods and services. and services.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Recital 11a (new)

(11a) This Directive should not NOTE: Council GA on recital 29 affect in any way the exercise 11a (new) corresponds with EP of fundamental rights as AM 20 on recital 13d (new) / EP recognised in Member States AM 26 on Article 4a. and at Union level, including the right or freedom to strike or to take other action covered by the specific industrial relations systems in Member States, in accordance with national law and/or practice. Nor should this Directive affect the right to negotiate, conclude and enforce collective agreements and to take collective action in accordance with national law and /or practice.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Recital 12

Amendment 15 PROVISIONALLY AGREED, 30

• (12) 

  It is within Member States' (12) It is within Member States' (12) It is within Member States’ SUBJECT TO CHECK BY competence to set rules on exclusive competence to set competence to set rules on THE COUNCIL:

remuneration in accordance with rules on remuneration in remuneration in accordance with (12) It is within Member States' their law and practice. However, accordance with their national their law and / or practice. […] competence to set rules on national rules on remuneration law and/or practice. The setting remuneration in accordance with applied to posted workers must be of wages is a matter for the their national law and/or justified by the need to protect Member States and the social practice. The setting of wages is posted workers and must not partners alone. Particular care a matter for the Member disproportionately restrict the should be taken not to States and the social partners cross-border provision of services. undermine national systems of alone. Particular care should

wage setting and the freedom of be taken not to undermine the parties involved. national systems of wage setting and the freedom of the parties involved.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Recital 12a (new)

(12a) The concept of PROVISIONALLY AGREED, 31 ‘remuneration’ should include, SUBJECT TO CHECK BY but should not be limited to, THE COUNCIL: all the elements of minimum

rates of pay developed by the deletion

Court of Justice of the European Union.

Recital 12b (new)

(12b) When comparing the EP to take stance once there is 32 remuneration paid to the a finalised position on posted worker and the allowances remuneration due in accordance with the laws and/or practices of the Member State to which territory the worker is posted, the gross amount of remuneration should be taken into account. The total gross amounts of remuneration should be compared, rather than individual elements of remuneration rendered mandatory as provided for in Article 3 (1). In order to ensure transparency and assist

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

the competent authorities when carrying out checks and controls, it is nevertheless necessary that the elements, which are part of the remuneration, can be identified in enough detail according to national law and practice of the sending Member State. As provided for in Article 3(7) of Directive 96/71/EC, allowances specific to the posting should be considered to be part of the remuneration. Such allowances should therefore be taken into account for the comparison, unless they concern expenditure actually incurred on account of the posting, such as expenditure on travel, board and lodging.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Recital 12c (new)

(12c) Allowances specific to 33 posting often serve several purposes. Insofar as their purpose is the reimbursement of expenditure incurred on account of the posting, such as expenditure on travel, board and lodging, Directive 96/71/EC provides that they shall not be considered as part of remuneration. In view of the relevance of allowances specific to posting, uncertainty as to which parts of allowances specific to posting are allocated to reimbursement of expenditure should be avoided. Such allowances should be considered to be paid in reimbursement of expenditure unless the terms and conditions resulting from law, regulation or administrative provision, collective agreements or contractual agreements that apply to the employment relationship define which parts

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

of the allowance are allocated to the reimbursement of expenditure.

Recital 13

Amendment 16 PROVISIONALLY AGREED, 34

• (13) 

  The elements of (13) The elements of (13) The elements of SUBJECT TO CHECK BY remuneration under national law remuneration, the method used remuneration and other terms THE COUNCIL:

or universally applicable to calculate the remuneration and conditions of employment The elements of remuneration collective agreements should be due and where relevant, the under national law or universally and other terms and conditions clear and transparent to all service qualifying criteria for applicable collective agreements of employment under national providers. It is therefore justified classification in the different should be clear and transparent law or collective agreements as to impose on Member States the wage categories should be clear to all service providers and referred to in Article 3.8 should obligation to publish the and transparent to all service posted workers. In addition to be clear and transparent to all constituent elements of providers and posted workers. the requirements under service providers and posted remuneration on the single For the calculation of the Article 5 of Directive workers. In addition to the website provided for by Article 5 remuneration, all mandatory 2014/67/EU of the European requirements under Article 5 of of the Enforcement Directive. elements, laid down by law, Parliament and of the Directive 2014/67 i/EU of the

applicable collective agreements Council 6 , it is therefore justified European Parliament and of the or arbitration awards, should be to impose on Member States the Council, it is therefore justified taken into account, provided obligation to publish the to impose on Member States the that those elements are also constituent elements of obligation to publish the applied at local level. It is remuneration, and the constituent elements of therefore justified to impose on additional set of terms and remuneration, and the Member States the obligation to conditions applicable to long additional set of terms and

6 Directive 2014/67 i/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC i concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 i on administrative cooperation through the Internal Market Information System (‘the IMI Regulation’) (OJ L 159, 28.5.2014, p. 11).

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

publish the constituent elements term posting, on the single conditions in accordance with of remuneration as defined by website provided for by that Article 3.1-a, on the single the applicable law and Article. The proportionality of website provided for by Article 5 collective agreements on the any sanctions to a service of Directive 2014/67 i/EU as single website provided for by provider for non-compliance transparency and access to Article 5 of the Enforcement with the terms and conditions information is essential for legal Directive as transparency and of employment to be ensured certainty and law enforcement. access to information is to posted workers might take Each Member State should essential for legal certainty and into account, in particular, ensure that its website contains law enforcement . The whether the information in the accurate information and is information provided on the single national website on the updated on a regular basis. Any single official national website terms and conditions of sanctions to a service provider should be in line with national employment is provided in for non-compliance with the law and practice and should conformity with Article 5 of terms and conditions of respect the autonomy of the Directive 2014/67 i/EU, employment to be ensured to social partners. Each Member including respecting the posted workers should be State should ensure that its autonomy of the social determined in a proportionate website works properly and is partners. manner, taking into account, in updated on a regular basis. particular, whether the information on the single national website on the terms and conditions of employment is provided in conformity with Article 5 of Directive 2014/67/EU, respecting the autonomy of the social partners.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Recital 13a (new)

Amendment 17 35

(13a) Directive 2014/67 i/EU provides for a number of provisions to ensure that rules on posting of workers are enforced and are respected by all service providers. Article 4 of Directive 2014/67 i/EU provides a list of elements that are to be assessed in order to identify genuine posting situations and prevent abuse and circumvention.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Recital 13b (new)

Amendment 18 36

(13b) Employers should, before the beginning of the posting, take appropriate measures to provide essential information about the terms and conditions of employment in accordance with Council Directive 91/533/EEC 7 , as regards the posting.

7 Council Directive 91/533/EEC i on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship (OJ L 288, 18.10.91, p. 32).

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Recital 13c (new)

Amendment 19 37

(13c) This Directive establishes a balanced framework with regard to the freedom to provide services and the protection of posted workers, which is nondiscriminatory, transparent and proportionate while respecting the diversity of national industrial relations. This Directive does not prevent application of terms and conditions of employment which are more favourable to posted workers.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Recital 13d (new)

Amendment 20 NOTE: EP AM 20 on recital 13d 38

(13d) This Directive should not (new) corresponds to Council in any way affect the exercise of GA on recital 11a (new). See fundamental rights as also EP AM 26 on Article 4a.

recognised in the Member States and at Union level, including the right or freedom to strike or to take other action covered by the specific industrial relations systems in the Member States, in accordance with national law and/or practice. Nor should it affect the right to negotiate, to conclude and enforce collective agreements, or to take collective action in accordance with national law and/or practice.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Recital 14

Amendment 21 39

• (14) 

  Laws, regulations, (14) Laws, regulations and deleted administrative provisions or national practice, including collective agreements applicable administrative provisions or in Member States may ensure that collective agreements applicable subcontracting does not confer on in Member States may ensure undertakings the possibility to that subcontracting does not avoid rules guaranteeing certain confer on undertakings the terms and conditions of possibility to avoid rules employment covering guaranteeing certain terms and remuneration. Where such rules conditions of employment on remuneration exist at national covering remuneration. Where level, the Member State may such rules on remuneration exist apply them in a nonat national level, the Member discriminatory manner to State may apply them in a nonundertakings posting workers to discriminatory manner to its territory provided that they do undertakings posting workers to not disproportionately restrict the its territory. cross-border provision of services.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Recital 14a (new) (EP)

Amendment 22 40

(14a) With a view to tackling abuses in subcontracting situations and in order to protect posted workers' rights, Member States should ensure, in accordance with national law and practice that posted workers receive all entitlements.

Recital 14b (new) (EP)

Amendment 23 41

(14b) Member States should enforce existing rules on subcontracting strictly and consistently.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Recital 14a (new) (CONS)

(14a) In the context of fighting PROVISIONALLY AGREED 42 fraud related to posting, the TEXT, SUBJECT TO CHECK European Platform to enhance BY THE COUNCIL: cooperation in tackling

undeclared 8 work created by In the context of fighting fraud Decision (EU) 2016/344 related to posting, the should, within its mandate, European Platform to enhance participate in the monitoring cooperation in tackling and the evaluation of cases of undeclared

9 work created by

fraud, which should be Decision (EU) 2016/344 anonymised as appropriate, should, within its mandate, improve the implementation participate in the monitoring and efficiency of and the evaluation of cases of administrative cooperation fraud, improve the between Member States, implementation and efficiency develop alert mechanisms and of administrative cooperation bring assistance and support between Member States, to reinforced administrative develop alert mechanisms and cooperation and information bring assistance and support exchanges between the liaison to reinforced administrative offices. In doing so, the cooperation and information Platform is to work in close exchanges between the liaison

cooperation with the offices. In doing so, the Platform is to work in close

8 Decision (EU) 2016/344 of the European Parliament and of the Council of 9 March 2016 on establishing a European Platform to enhance cooperation in tackling undeclared work (OJ L 65, 11.03.2016, p.12).

9 Decision (EU) 2016/344 of the European Parliament and of the Council of 9 March 2016 on establishing a European Platform to enhance cooperation in tackling undeclared work (OJ L 65, 11.03.2016, p.12).

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Committee of Experts on cooperation with the Posting of Workers. Committee of Experts on Posting of Workers.

Recital 14b (new) (CONS)

(14b) The transnational nature PROVISIONALLY AGREED 43 of certain situations of fraud TEXT, SUBJECT TO CHECK or abuses related to posting BY THE COUNCIL: justifies concrete measures

aiming at reinforcing the (14b) The transnational nature transnational dimension of of certain situations of fraud inspections, inquiries and or abuses related to posting exchanges of information justifies concrete measures between the competent aiming at reinforcing the authorities of the concerned transnational dimension of Member States. To this end, in inspections, inquiries and the framework of exchanges of information administrative cooperation between the competent provided for in Directive 96/71 i authorities of the concerned and in Directive 2014/67 i/EU, Member States. To this end, in in particular Article 7 the framework of paragraph 4, the national administrative cooperation competent authorities should provided for in Directive 96/71 i have the necessary means for and in Directive 2014/67 i/EU, alerting on such situations and in particular Article 7 exchanging information paragraph 4, the national aiming at preventing and competent authorities should repressing these frauds. The have the necessary means for European Platform is, within alerting on such situations and its mandate, the relevant exchanging information

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

framework for facilitating the aiming at preventing and exchange of information and repressing these frauds. The cooperation between Member European Platform is, within States. its mandate, the relevant framework for facilitating the exchange of information and cooperation between Member States.

Recital 15

 (15) Directive 2008/104/EC i of Amendment 24 44 the European Parliament and of

the Council on temporary agency (15) Directive 2008/104/EC i of (15) Directive 2008/104/EC i of work gives expression to the the European Parliament and of the European Parliament and of principle that the basic working the Council on temporary the Council

10 on temporary

and employment conditions agency work gives expression to agency work gives expression to applicable to temporary agency the principle that the basic the principle that the basic workers should be at least those working and employment working and employment which would apply to such conditions applicable to conditions applicable to workers if they were recruited by temporary agency workers temporary agency workers the user undertaking to occupy the should be at least those which should be at least those which same job. This principle should would apply to such workers if would apply to such workers if also apply to temporary agency they were recruited by the user they were recruited by the user workers posted to another undertaking to occupy the same undertaking to occupy the same

Member State. job. This principle should also job. That principle should also apply to temporary agency apply to temporary agency

workers posted to another workers posted to another

10 Directive 2008/104/EC i of the European Parliament and of the Council of 19 November 2008 on temporary agency work (OJ L 327, 5.12.2008, p. 9).

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Member State. Member States Member State. Where that should ensure equal treatment principle applies, the user between posted temporary undertaking should inform the agency workers and temporary-work agency about domestically employed the working conditions and temporary agency workers. remuneration it applies to its workers. Member States can under certain conditions provide for exceptions from the equal treatment/equal pay principle pursuant to Art. 5(2) and Art. 5(3) of the temporary agency work directive. When such an exception applies, the temporary work agency has no need for the information about the user undertaking's working conditions and the information requirement should therefore not apply. Member States should ensure that the user undertaking informs the temporary work agency about the posted workers that are temporarily working in a Member State other than the Member State to which they have been posted, in order to allow the employer to apply, as appropriate, the terms and

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

conditions of employment that are more favourable to the posted worker.

Recital 16

• (16) 

  In accordance with the Joint = = (16) In accordance with the Joint 45

Political Declaration of 28 Political Declaration of 28

September 2011 of Member September 2011 of Member

States and the Commission on States and the Commission on explanatory documents11, explanatory documents12, Member States have undertaken Member States have undertaken to accompany, in justified cases, to accompany, in justified cases, the notification of their the notification of their transposition measures with one transposition measures with one or more documents explaining the or more documents explaining relationship between the the relationship between the components of a directive and the components of a directive and corresponding parts of national the corresponding parts of transposition instruments. With national transposition regard to this Directive, the instruments. With regard to this legislator considers the Directive, the legislator transmission of such documents to considers the transmission of be justified, such documents to be justified,

HAVE ADOPTED THIS = = HAVE ADOPTED THIS 46

DIRECTIVE: DIRECTIVE:

11 OJ C 369, 17.12.2011, p. 14.

12 OJ C 369, 17.12.2011, p. 14.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Article 1

Amendments to Directive 96/71/EC i

Directive 96/71/EC i is hereby = Directive 96/71/EC i is […] NOTE: CONS GA are only 47 amended as follows: amended as follows: legal-linguistic modifications.

In Article 1 (1996 Directive), 47 the title becomes "Subject bis matter and scope"

In Article 1 (1996 Directive), a 47 paragraph 1 bis is added: ter

This Directive shall ensure the protection of posted workers during their posting assignment in relation to the freedom to provide services, by laying down mandatory provisions regarding working conditions and the protection of workers' health and safety that must be respected.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

PRESENT TEXT OF DIRECTIVE Amendment 25 NOTE: EP linguistic amendment 48

96/71/EC,

Article 1- paragraph 3 - point c: (-1) In Article 1(3), point (c) is

to DIR 96/71.

replaced by the following: “(c) being a temporary

employment undertaking or “(c) being a temporary placement agency, hire out a employment worker to a user undertaking undertaking or established or operating in the placement agency, hire territory of a Member State, out a worker to a user provided there is an employment undertaking established relationship between the or operating in the temporary employment territory of a Member undertaking or placement agency State, provided that and the worker during the period there is an employment

of posting.” relationship between the temporary

employment undertaking or placement agency and the worker during the period of posting.”

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Amendment 26 In Article 1 (1996 Directive), a 49

(-1a) In Article 1, the following paragraph 5 or second

paragraph is added: subparagraph to paragraph 1 bis is added (exact paragraph to

“4a. This Directive shall not in be decided):

any way affect the exercise of fundamental rights as recognised in the Member “This Directive shall not in any States and at Union level, way affect the exercise of including the right or freedom fundamental rights as to strike or to take other action recognised in the Member covered by the specific States and at Union level, industrial relations systems in including the right or freedom Member States, in accordance to strike or to take other action with national law and/or covered by the specific practice. Nor does it affect the industrial relations systems in right to negotiate, to conclude Member States, in accordance and enforce collective with national law and/or agreements, or to take collective practice. Nor does it affect the action in accordance with right to negotiate, to conclude national law and/or practice.” and enforce collective agreements, or to take collective action in accordance with national law and/or practice.”

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

• (1) 

  The following Article 2a is deleted NOTE: In the Council GA and 50 added: provisionally agreed text, the

  new article 2a is deleted, and the substance of its content regarding long-term posting is dealt with under Article 3.1.(-a) i.e. following paragraph 1 and preceding paragraph 1a (new) of Article 3 - it would thus fall in ROW 74 bis in this table.

  Therefore, the provisional agreement on long-term posting implies keeping the Council's general approach, and thus:

  • - 

    deletion of ROWS 50, 51, 52, 56

  • - 

    keeping Council's text on ROWS 53, 54, 55

  • - 

    moving the content of ROWS 53, 54, 55 to ROW 74 bis.

  deleted

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Article 2a deleted deleted 51

Posting exceeding twenty-four deleted deleted 52 months

Amendment 27 (aa) The following paragraph (aa) The following paragraph 53

• 1. 

  When the anticipated or the 1. The posting of a worker shall is added: is added to Article 3 as in effective duration of posting be temporary. When the "1(-a) When the effective General approach:

exceeds twenty-four months, the anticipated or the effective duration of a posting exceeds "1(-a) When the effective

Member State to whose territory a duration of posting exceeds 12 months, Member States duration of a posting exceeds worker is posted shall be deemed twenty-four months, Member shall ensure, irrespective of 12 months, Member States to be the country in which his or States shall ensure that the which law applies to the shall ensure, irrespective of her work is habitually carried out. undertakings referred to in employment relationship, that which law applies to the

Article 1(1) guarantee workers the undertakings referred to in employment relationship, that posted to their territory, in Article 1(1) guarantee workers the undertakings referred to in addition to the terms and posted to their territory, in Article 1(1) guarantee workers conditions of employment addition to the terms and posted to their territory, in referred to in Article 3(1) and conditions of employment addition to the terms and irrespective of which law referred to in paragraph 1 of conditions of employment applies to the employment this Article, all the applicable referred to in paragraph 1 of relationship, all the applicable terms and conditions of this Article, all the applicable terms and conditions of employment which are laid terms and conditions of employment which are down, in the Member State employment which are laid applicable in the Member State where the work is carried out: down, in the Member State where the service is provided,

provided that those terms and (a) by law, regulation or

where the work is carried out:

conditions are more favourable administrative provision, (a) by law, regulation or to the worker than those and/or administrative provision, pursuant to the law which (b) by collective agreements or and/or

applies to the employment arbitration awards which have (b) by collective agreements or

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

relationship, with the been declared universally arbitration awards which have exemption of the conditions applicable within the meaning been declared universally relating to the conclusion and of paragraph 8. applicable within the meaning termination of the employment of paragraph 8.

contract. The first subparagraph of this paragraph does not apply to The first subparagraph of this

the following matters: paragraph does not apply to

(a) procedures, formalities and the following matters:

conditions of the conclusion (a) procedures, formalities and and termination of the conditions of the conclusion employment contract, and termination of the including non-competition employment contract, clauses; including non-competition

(b) supplementary clauses;

occupational retirement (b) supplementary pension schemes. occupational retirement

The Member State in which pension schemes.

the service is provided shall, The Member State in which on the basis of a motivated the service is provided shall, notification of a service on the basis of a motivated provider, extend to 18 months notification of a service the period before which the provider, extend to 18 months provisions of this paragraph the period before which the apply. provisions of this paragraph apply.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Amendment 27 (continued) Where the undertaking Where the undertaking 54

• 2. 

  For the purpose of paragraph 1, 2. For the purpose of paragraph referred to in Article 1(1) referred to in Article 1(1) in case of replacement of posted 1, in the case of replacement of replaces a posted worker by replaces a posted worker by workers performing the same task posted workers performing the another posted worker another posted worker at the same place, the cumulative same task at the same place, the performing the same task at performing the same task at duration of the posting periods of cumulative duration of the the same place, the duration of the same place, the duration of the workers concerned shall be posting periods of the workers the posting shall, for the the posting shall, for the taken into account, with regard to concerned shall be taken into purposes of this paragraph, be purposes of this paragraph, be workers that are posted for an account. […] the cumulative duration of the the cumulative duration of the effective duration of at least six posting periods of the posting periods of the months. individual workers concerned. individual workers concerned.

  For the purposes of this For the purposes of this Article, the concept 'the same Article, the concept 'the same

  55

  task at the same place' shall be task at the same place' shall be determined taking into determined taking into consideration inter alia the consideration inter alia the nature of the service to be nature of the service to be provided, the work to be provided, the work to be performed and the address(es) performed and the address(es) of the workplace." of the workplace."

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Amendment 27 (continued) deleted 56

2a. The Member State where the service is provided may, on the basis of the reasoned request of a service provider, extend the duration before which the terms and conditions of employment applicable in that Member State are guaranteed as referred to in paragraph 1 on the ground that the services provided by that undertaking are to remain temporary for longer.

The Member State shall handle such requests in a proportionate, nondiscriminatory and timely manner, providing reasons for its decision. Where the Member State accedes to such a request, the undertaking shall provide an update of the situation every twelve months, until the end of the provision of the services concerned.

The competent authority of the host Member State shall take a decision on such requests in

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

accordance with Article 4 of Directive 2014/67 i/EU, with Regulation 883/2004/EC i and in a justified, proportionate and non-discriminatory manner.

• (2) 

  Article 3 is amended as = = (2) Article 3 is amended as 57 follows: follows:

(a) Paragraph 1 is replaced by the = = (a) Paragraph 1 is replaced by 58 following: the following:

Amendment 28 PROVISIONALLY AGREED 59

• 1. 

  Member States shall ensure 1. Member States shall ensure 1. Member States shall ensure, TEXT, SUBJECT TO CHECK that, whatever the law applicable that, whatever the law applicable irrespective of which law BY THE COUNCIL:

to the employment relationship, to the employment relationship, applies to the employment the undertakings referred to in the undertakings referred to in relationship, that the

Article 1 (1) guarantee workers Article 1 (1) guarantee workers undertakings referred to in Member States shall ensure, posted to their territory the terms posted to their territory equal Article 1 (1) guarantee workers irrespective of which law and conditions of employment terms and conditions of who are posted to their territory applies to the employment covering the following matters employment which cover the the terms and conditions of relationship, that the which, in the Member State where following matters laid down in employment covering the undertakings referred to in the work is carried out, are laid the Member State where the following matters which, in the Article 1 (1) guarantee workers down: work is carried out: Member State where the work is who are posted to their territory

carried out, are laid down: on a basis of equality of treatment the terms and

conditions of employment covering the following matters which, in the Member State where the work is carried out, are laid down:

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

– by law, regulation or = = – by law, regulation or 60 administrative provision, and/or administrative provision, and/or

Amendment 28 (continued) = To be further discussed and 61

– by collective agreements or – by collective agreements or assessed, in particular when arbitration awards which have arbitration awards […] within necessary follow-up changes been declared universally the meaning of paragraphs 8 regarding references to applicable within the meaning of and 8a: universally applicable collective

paragraph 8: agreements, mainly in paragraph 8, have been

assessed.

Note that all sides agreed that there was no political disagreement and that the most appropriate wording should be used horizontally throughout the Directive."

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Amendment 28 (continued) = (a) maximum work periods and 62

(a) maximum work periods and a) maximum work periods and minimum rest periods;

minimum rest periods; minimum rest periods, including specific measures regarding

night work, work performed during weekends and public holidays and work performed in shifts;

Amendment 28 (continued) = (b) minimum paid annual leave; 63

(b) minimum paid annual holidays (b) minimum paid annual leave;

(c) remuneration, including = = (c) remuneration, including 64 overtime rates; this point does not overtime rates; this point does apply to supplementary not apply to supplementary occupational retirement pension occupational retirement pension schemes; schemes;

(d) the conditions of hiring-out of = = (d) the conditions of hiring-out 65 workers, in particular the supply of workers, in particular the of workers by temporary supply of workers by temporary employment undertakings; employment undertakings;

(e) health, safety and hygiene at = = (e) health, safety and hygiene at 66 work; work;

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

(f) protective measures with = = (f) protective measures with 67 regard to the terms and conditions regard to the terms and of employment of pregnant conditions of employment of women or women who have pregnant women or women who recently given birth, of children have recently given birth, of and of young people; children and of young people;

(g) equality of treatment between = = (g) equality of treatment 68 men and women and other between men and women and provisions on non-discrimination. other provisions on nondiscrimination.

Amendment 28 (continued) PROVISIONALLY AGREED, 69

(ga) the conditions of workers’ SUBJECT TO CHECK BY accommodation; THE COUNCIL

(ga) the conditions of workers' accomodation when provided by the employer to workers away from their regular place of work;

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Amendment 28 (continued) PROVISIONALLY AGREED, 70

(gb) allowance rates to cover SUBJECT TO CHECK BY (gb) allowances or travel, board and lodging reimbursement of expenditure THE COUNCIL

expenses for workers away to cover travel, board and (gb) allowances or from their habitual place of lodging expenses for workers reimbursement of expenditure work. away from home for to cover travel, board and professional reasons; this point lodging expenses for workers applies exclusively to travel, away from home for board and lodging costs professional reasons; this point incurred by a posted worker applies exclusively to travel, when he is required to travel board and lodging costs to and from his regular place incurred by a posted worker of work in the Member State when he/she is required to to which territory he is posted, travel to and from his/her or when he is temporarily sent regular place of work in the by his employer from this Member State to which workplace to another territory he/she is posted, or workplace. It shall not apply when he/she is temporarily to allowances or sent by his/her employer from reimbursement of expenditure this workplace to another related to the fact that the workplace. It shall not apply worker, during the posting to allowances or referred to in Article 1(3), is reimbursement of expenditure away from the Member State related to the fact that the in which he normally works. worker, during the posting referred to in Article 1(3), is away from the Member State in which he normally works.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Amendment 28 (continued) PROVISIONALLY AGREED, 71

For the purpose of this Directive, For the purpose of this Directive, For the purposes of this SUBJECT TO CHECK BY remuneration means all the the concept of remuneration Directive, the concept of THE COUNCIL:

elements of remuneration shall be defined by the law remuneration shall be For the purposes of this rendered mandatory by national and/or practice of […] the determined by the national Directive, the concept of law, regulation or administrative Member State to whose territory law and/or practice of the remuneration shall be provision, collective agreements the worker is posted. Member State to whose determined by the national or arbitration awards which have territory the worker is posted law and/or practice of the been declared universally and means all the elements of Member State to whose applicable and/or, in the absence remuneration rendered territory the worker is posted of a system for declaring mandatory by national law, and means all the elements of collective agreements or regulation or administrative remuneration rendered arbitration awards to be of provision, collective agreements mandatory by national law, universal application, other or arbitration awards which have regulation or administrative collective agreements or been declared universally provision, collective agreements arbitration awards within the applicable and/or, in the absence or arbitration awards […] as meaning of paragraph 8 second of a system for declaring referred to in paragraph 8 in subparagraph, in the Member collective agreements or that Member State. State to whose territory the arbitration awards to be of worker is posted. universal application, other

collective agreements or arbitration awards within the meaning of paragraph 8 second subparagraph, in that Member State […].

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Amendment 28 (continued) PROVISIONALLY AGREED, 72

Member States shall publish in the Member States shall publish, in Without prejudice to Article 5 SUBJECT TO CHECK BY single official national website accordance with national law of Directive 2014/67 i/EU, THE COUNCIL:

referred to in Article 5 of and/or practice, without undue Member States shall publish in

Directive 2014/67 i/EU the delay and in a transparent the single official national Without prejudice to Article 5 constituent elements of manner in the single official website […], referred to in that of Directive remuneration in accordance with national website and by other Article, information on: 2014/67/EU, Member States point (c). suitable means, referred to in

Article 5(2) of Directive a. the constituent elements of

shall publish, in accordance

2014/67/EU, the constituent remuneration in accordance

with national law and/or

elements of remuneration in with point c) of the first

practice, without undue delay

accordance with point (c) of this subparagraph of Article 3(1);

and in a transparent

paragraph. Member States shall and

manner , in the single official national website referred to in

ensure that the information b. all the terms and conditions that Article, the constituent provided on the single official of employment in accordance elements of remuneration in national website is accurate and with Article 3(1)(-a). accordance with point (c) of

up to date. The Commission this paragraph and all the shall publish on its website the terms and conditions of addresses of the single official employment in accordance national websites. with Article 3(1)(-a).

Member States shall ensure that the information provided on the single official national website is accurate and up to date. The Commission shall publish on its website the addresses of the single official national websites.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Amendment 28 (continued) PROVISIONALLY AGREED, 73

An undertaking shall not be SUBJECT TO CHECK BY responsible for the failure to THE COUNCIL:

apply or the incorrect

application of such elements if Where the information on the

the information is not, or is single official national website Where the information on the incorrectly, provided on the does not indicate, in single official national website single national official website conformity with Article 5 of does not indicate, in prior to the commencement of Directive 2014/67 i/EU, which conformity with Article 5 of the posting. terms and conditions of Directive 2014/67 i/EU, which

employment are to be applied, terms and conditions of this circumstance may be employment are to be applied, taken into account, in this circumstance shall be accordance with national law taken into account, in and practice, in determining accordance with national law penalties in the event of and/or practice, in infringements of the national determining penalties in the provisions adopted pursuant event of infringements of the

to this Directive. national provisions adopted pursuant to this Directive, to

the extent necessary to ensure the proportionality thereof.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Amendment 28 (continued) deleted 74

In order to avoid double payment, nothing in this Article shall allow for any element of remuneration, allowances or expenses related to work outside the habitual place of work to be paid more than once to a posted worker. The worker shall be subject to the terms and conditions that are more favourable to him or her.

NOTE: In the CONS GA, Article 74 3.1.(-a) on long-term posting bis would be located here.

(b) The following paragraph is = DELETED deleted 75 added:

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Amendment 29 deleted deleted 76

1a. If undertakings established in 1a. If undertakings established in the territory of a Member State the territory of a Member State are obliged by law, regulation, are obliged by law, regulation, administrative provision or administrative provision or collective agreement, to subcollective agreement to subcontract in the context of their contract in the context of their contractual obligations only to contractual obligations only to undertakings that guarantee undertakings that guarantee certain terms and conditions of certain […] conditions of […] employment covering remuneration, the Member State remuneration, the Member State may, on a non–discriminatory may, on a non–discriminatory and and proportionate basis, place proportionate basis, provide that undertakings that post workers such undertakings shall be under to their territory under the same the same obligation regarding obligations. Such requirements subcontracts with undertakings shall be applicable only to the referred to in Article 1 (1) posting employees of the subcontractor workers to its territory. who are being posted to that

Member State.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Amendment 30 deleted 77

(ba) The following paragraph is inserted:

“1aa. In the case of subcontracting, the contractor shall inform a service provider from another Member State in writing about the applicable terms and conditions of employment as regards remuneration prior to the commencement of the service contract.”

Amendment 31 deleted 78

(bb) The following paragraph is inserted:

“1ab. Member States shall communicate to the Commission any measure referred to in this Article. The Commission shall communicate those measures to the other Member States.”

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

(c) The following paragraph is = = (c) The following paragraph is 79 added added

1b. Member States shall provide = "1b. Member States shall The EP looks favourably upon 80 that the undertakings referred to in provide that the undertakings the Council's proposed Article 1(3)(c) guarantee posted referred to in point (c) of Article modifications but there was no workers the terms and conditions 1(3) guarantee posted workers conclusion at the trilogue. which apply pursuant to Art. 5 the terms and conditions which Directive 2008/104/EC i of the apply pursuant to Article 5 of European Parliament and of the Directive 2008/104/EC i […] to Council of 19 November 2008 on temporary workers hired-out by

temporary agency work to temporary agencies established NOTE: CONS GA are only temporary workers hired-out by in the Member State where the legal-linguistic modifications.

temporary agencies established in work is carried out. the Member State where the work is carried out.

Member States shall ensure PROVISIONALLY AGREED 81 that the user undertaking TEXT, SUBJECT TO CHECK informs the undertakings BY THE COUNCIL: referred to in point (c) of

Article 1(3) of: The user undertaking shall inform the undertakings

referred to in point (c) of Article 1(3) of the terms and conditions that it applies regarding the working conditions and remuneration to the extent covered by the first sub-paragraph of this

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

paragraph.

• 1) 

  the terms and conditions Integrated in ROW 81 82 that it applies regarding the working conditions and remuneration to the extent covered by the first subparagraph of this paragraph and

• 2) 

  posted workers that are Move to ROW 89 83 temporarily carrying out work in a Member State other than the Member State to which they have been posted."

(ca) Paragraph 7 is replaced 84 by the following:

"7. Paragraphs 1 to 6 shall not 85 prevent application of terms and conditions of employment which are more favourable to workers.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

PRESENT TEXT OF DIRECTIVE Amendment 32 Allowances specific to the PROVISIONALLY AGREED 86

96/71/EC, posting shall be considered to be TEXT, SUBJECT TO CHECK

Article 3-paragraph7- (ca) In paragraph 7, the second BY THE COUNCIL: subparagraph 2 subparagraph is replaced by the

part of remuneration, unless

following: they are paid in reimbursement Allowances specific to the

“Allowances specific to the of expenditure actually incurred posting, other than those

posting shall be considered to be “Allowances specific to the on account of the posting, such referred to in Paragraph 1 (gb), part of the minimum wage, unless posting shall be considered to be as expenditure on travel, board shall be considered to be part of they are paid in reimbursement of part of remuneration, unless and lodging. remuneration, unless they are expenditure actually incurred on they are paid in reimbursement If it does not result from the paid in reimbursement of account of the posting, such as of expenditure actually incurred terms and conditions of expenditure actually incurred on expenditure on travel, board and on account of the posting, such employment applicable to the account of the posting, such as

lodging.” as expenditure on travel, board and lodging. employment relationship expenditure on travel, board and

whether and in that case which lodging. The employer shall

In that case, they shall be elements of an allowance reimburse the worker for such provided for by the employer specific to the posting are paid expenditure in accordance with and shall not be deducted from in reimbursement of national law and/or practice. remuneration.” expenditure or are part of

remuneration, then the entire If it does not result from the allowance shall be considered terms and conditions of to be paid in reimbursement of employment applicable to the expenditure actually incurred employment relationship

on account of the posting. whether and in that case which elements of an allowance

specific to the posting are paid in reimbursement of expenditure or are part of remuneration, then the entire allowance shall be considered to be paid in reimbursement of expenditure actually incurred

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

on account of the posting.

INTERPRETATIVE DECLARATION FROM THE COMMISSION:

Article 3(7), second subparagraph, of the Directive lays down that allowances specific to the posting shall be considered to be part of the minimum wage [“remuneration” after the revision], unless they are paid in reimbursement of expenditure actually incurred on account of the posting, such as expenditure on travel, board and lodging.

The co-legislators are considering adding to that subparagraph the following sentence: “The employer shall reimburse the worker for such expenditure in accordance with national law and/or practice”.

The Commission understands the words “national law and/or practice” to refer to the national law and /or practice applicable

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

to the employment relationship. When a worker is posted under the Directive this is in principle the home Member State's law, unless otherwise determined, in accordance with EU rules on private international law.

In the light of the Court's judgment in Case C-396/13 (paragraph 59), reimbursement also covers the situation where the employer defrays costs of the workers without the latter having first to pay them and then seek to have them reimbursed.

Amendment 33 PROVISIONALLY AGREED, 87

(c b) The following paragraph SUBJECT TO CHECK BY is inserted: THE COUNCIL:

8a. Member States may also, if they so decide, in accordance Withdrawal of AM33. with their national law and practice and on a nondiscriminatory

basis, base Article 3.8 - the terms "or in themselves on collective addition to" are added to article agreements or arbitration 3.8 of Directive 96/71 i, such that awards which are, as defined by the second paragraph now reads:

the Member State where the

work is carried out, In the absence of, or in addition to, a system for declaring

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

representative in the collective agreements or geographical area, the arbitration awards to be of profession or industry universal application within the concerned and offer the most meaning of the first favourable terms and subparagraph, Member States conditions of employment to the may, if they so decide, base worker. themselves on:

Member States shall ensure that information about any such collective agreements or arbitration awards is available on the single official national website. Such collective agreements shall be applicable to posted workers only insofar as they are published on the single official national website.

An undertaking shall not be responsible for the failure to apply or the incorrect application of such collective agreements or arbitration awards if the information is not, or is incorrectly, provided on the single national official website prior to the commencement of the posting.”

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Amendment 34 88

(d) Paragraph 9 is deleted. (d) Paragraph 9 is replaced by (d) Paragraph 9 is amended as the following: follows:

PRESENT TEXT OF DIRECTIVE “In addition to the terms and "Without prejudice to Article PROVISIONALLY AGREED 89

96/71/EC, conditions referred to in 3(1b), Member States may TEXT, SUBJECT TO CHECK

Article 3- paragraph 9 paragraph 1 of this Article, provide that the undertakings BY THE COUNCIL

Member States may provide that Member States may provide referred to in Article 1 (1) shall the undertakings referred to in that the undertakings referred guarantee workers referred to in

Article 1 (1) must guarantee to in Article 1(1) must point (c) of Article 1 (3) the [additional conditions TAW]

workers referred to in Article 1 guarantee workers referred to terms and conditions, other

• (3) 

  (c) the terms and conditions in Article 1(3)(c) the same than those referred to in

  exact wording to be discussed

which apply to temporary workers terms and conditions that apply paragraph 3(1b), which apply in the Member State where the to temporary agency workers in to temporary workers in the

work is carried out. the Member State where the Member State where the work is work is carried out. carried out." [chain posting and info

obligations] Temporary employment undertakings or placement agencies established in one To be added to Article 1(3) Member State may post a worker to a user undertaking

established or operating in Where a worker who has been another Member State provided hired out by a temporary that the user undertaking is employment undertaking or established in the Member State placement agency to a user where the worker is posted. If undertaking is to carry out work this is not the case, the posted within the context of a worker’s host Member State transnational provision of a shall be deemed to be that in service in the meaning of Article

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

which his or her work is 1(3)(a) to (c) by the user habitually carried out, without undertaking in a Member State prejudice to any terms and other than the one in which he conditions of employment that normally works for either the are more favourable to the temporary employment posted worker.” undertaking or placement agency or user undertaking, the worker shall be considered to be posted to that Member State by the temporary employment undertaking or placement agency with which the worker has been in an employment relationship. The temporary employment undertaking or placement agency shall be considered to be the undertaking referred to in Article 1(1) and shall fully comply with the relevant provisions of this Directive and Directive 2014/67 i/EU.

A user undertaking shall inform the temporary employment undertaking or placement agency from which a worker has been hired out in due time before the commencement of work referred to in the second subparagraph of Article 1(3).

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

Amendment 35 […] Paragraph 10 is replaced 90

(da) Paragraph 10 is replaced […] Paragraph 10 is replaced by the following:

by the following: by the following:

PRESENT TEXT OF DIRECTIVE Amendment 35 91

96/71/EC,

Article 3 - paragraph 10: 10. This Directive shall not "10. This Directive shall not This Directive shall not preclude the application by preclude the application by preclude the application by

“This Directive shall not preclude Member States, in compliance Member States, in compliance Member States, in compliance the application by Member States, with the Treaty and in with the Treaty, to national with the Treaty, to national in compliance with the Treaty to accordance with national law undertakings and to the undertakings and to the national undertakings and to the and practice, of terms and undertakings of other States, undertakings of other States, undertakings of other States, on a conditions of employment to on a basis of equality of on a basis of equality of basis of equality of treatment, of: national undertakings and to the treatment, of terms and treatment, of terms and

• - 

  terms and conditions of undertakings of other States conditions of employment on conditions of employment on employment on matters other than operating on their territory on matters other than those matters other than those those referred to in the first matters other than those referred referred to in the first referred to in the first subparagraph of paragraph 1 in to in the first subparagraph of subparagraph of paragraph 1 subparagraph of paragraph 1 the case of public policy paragraph 1 in the case of public in the case of public policy in the case of public policy provisions, policy provisions. provisions." provisions." - terms and conditions of For the purpose of this employment laid down in the Directive, public policy collective agreements or provisions shall refer to nonarbitration awards within the discriminatory measures taken meaning of paragraph 8 and in the public interest, including concerning the activities other measures in the fields of than those referred to in the protection of workers, equal

Annex.” treatment, fair competition and the proper functioning of the

labour market. Such measures

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

shall not serve economic ends.

(e) The second subparagraph of Amendment 36 = deleted as the whole paragraph 92

paragraph 10 is deleted. DELETED is replaced (see ROWs 90-91)

PRESENT TEXT OF DIRECTIVE Amendment 37 PROVISIONALLY AGREED 93

96/71/EC, TEXT, SUBJECT TO CHECK

Article 4 - paragraph 2 - (2a) In Article 4(2), the first BY THE COUNCIL

subparagraph 1: subparagraph is replaced by the following:

“Member States shall make

provision for cooperation between “Member States shall make Member States shall make the public authorities which, in provision for cooperation provision for cooperation accordance with national between the public authorities between the public authorities legislation, are responsible for which, in accordance with which, in accordance with monitoring the terms and national legislation, are national legislation, are conditions of employment referred responsible for monitoring the responsible for monitoring the to in Article 3. Such cooperation terms and conditions of terms and conditions of shall in particular consist in employment referred to in employment referred to in replying to reasoned requests Article 3. Such cooperation shall Article 3, including at Union from those authorities for in particular consist in replying level. Such cooperation shall in information on the transnational to reasoned requests from those particular consist in replying to hiring-out of workers, including authorities for information on reasoned requests from those manifest abuses or possible cases the transnational hiring-out of authorities for information on of unlawful transnational workers, and in tackling the transnational hiring-out of

activities.” manifest abuses or possible workers, and in tackling cases of unlawful activities, manifest abuses or possible

such as transnational cases of cases of unlawful activities, undeclared work and bogus such as transnational cases of self-employment. Such undeclared work and bogus cooperation shall be supported self-employment linked to the

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

by the European Platform to posting of workers. tackle undeclared work.

If the liaison office or the

competent authority in the If the liaison office or the Member State from which the competent authority in the worker is posted does not Member State from which the possess the information worker is posted does not requested by the competent possess the information authority of the host Member requested by the competent State, it shall seek that authority of the host Member information from other State, it shall seek that authorities or bodies. In the information from other event of persistent delays in authorities or bodies. In the providing information to the event of persistent delays in host Member State, the providing information to the Commission shall be informed host Member State, the and shall take appropriate Commission shall be informed

measures.” and shall take appropriate measures.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

PRESENT TEXT OF DIRECTIVE Amendment 38 PROVISIONALLY AGREED 94

96/71/EC, TEXT, SUBJECT TO CHECK

Article 5 - paragraph 1: (2b) Article 5 is replaced by the following: BY THE COUNCIL

“Member States shall take

appropriate measures in the event “The host Member States and of failure to comply with this the Member States of [monitoring and sanctions]

Directive. establishment shall be responsible for the monitoring, The host Member State and the

They shall in particular ensure control and enforcement of the Member State from which the that adequate procedures are obligations laid down in this worker is posted shall be available to workers and/or their Directive and shall take responsible for the monitoring, representatives for the appropriate measures in the control and enforcement of the enforcement of obligations under event of failure to comply with obligations laid down in this this Directive.” this Directive. The sanctions Directive and Directive

provided for shall be effective, 2014/67/EC and shall take

proportionate and dissuasive. appropriate measures in the event of failure to comply with

They shall in particular ensure this Directive. The penalties that adequate procedures are provided for shall be effective, available to workers and/or proportionate and dissuasive. workers' representatives for the

enforcement of obligations They shall in particular ensure

under this Directive. that adequate procedures are available to workers and/or

Member States shall ensure workers' representatives for the that in the case of non-genuine enforcement of obligations posting, irrespective of which under this Directive. law applies to the employment relationship, the terms and

conditions of the Member State [non-genuine posting]

where the service is provided Member States shall ensure

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

apply.” that, where following an overall assessment carried out

pursuant to Article 4 of Directive 2014/67 i/EU by a Member State, it is established that an undertaking is improperly or fraudulently creating the impression that the situation of a worker falls within the scope of Directive 96/71/EC, that Member State shall ensure that the worker benefits from relevant legislation and collective agreements.

Member States shall ensure that this Article does not lead to the worker concerned being subject to less favourable conditions than those applicable to posted workers.

• (3) 

  The first paragraph of the = = (3) The first paragraph of the 95

Annex is amended as follows: Annex is amended as follows:

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

The activities mentioned in = = The activities mentioned in 96

Article 3 include all building work Article 3 include all building related to the construction, repair, work related to the construction, upkeep, alteration or demolition repair, upkeep, alteration or of buildings, and in particular the demolition of buildings, and in following work:. particular the following work:

Article 2

• 1. 

  Member States shall bring into = Member States shall adopt and PROVISIONALLY AGREED 97 force the laws, regulations and publish, by 3 years after the TEXT, SUBJECT TO CHECK administrative provisions entry into force of this BY THE COUNCIL necessary to comply with this Directive, the laws, regulations

Directive by [two years after and administrative provisions Member States shall adopt and adoption] at the latest. They shall necessary to comply with this publish, by 2 years after the forthwith communicate to the Directive […]. They shall entry into force of this Commission the text of those immediately communicate […] Directive, the laws, regulations provisions. the text of those measures to and administrative provisions

the Commission. necessary to comply with this Directive […]. They shall

immediately communicate […] the text of those measures to the Commission.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

They shall apply those PROVISIONALLY AGREED 98 measures from 4 years after TEXT, SUBJECT TO CHECK the entry into force of this BY THE COUNCIL Directive. Until that date,

Directive 96/71/EC i shall They shall apply those remain applicable in its measures from 2 years after wording prior to the the entry into force of this amendments introduced by Directive. Until that date,

this Directive. Directive 96/71/EC i shall remain applicable in its

wording prior to the amendments introduced by this Directive.

When Member States adopt those = When Member States adopt NOTE: CONS GA are only 99 provisions, they shall contain a those measures, they shall legal-linguistic modifications. reference to this Directive or be contain a reference to this accompanied by such a reference Directive or be accompanied by on the occasion of their official such a reference on the occasion publication. Member States shall of their official publication. determine how such reference is Member States shall determine to be made. how such reference is to be

made.

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

2(-a)(new) This Directive shall 2(-a)(new) This Directive shall 100 apply to the road transport apply to the road transport sector from the date of entry sector from the date of entry into force of a legislative act into force of a legislative act amending Directive amending Directive 2006/22/EC as regards 2006/22/EC as regards enforcement requirements and enforcement requirements and laying down specific rules with laying down specific rules with respect to Directive 96/71/EC i respect to Directive 96/71/EC i and Directive 2014/67 i/EU for and Directive 2014/67 i/EU for posting drivers in the road posting drivers in the road transport sector. transport sector.

• 2. 

  Member States shall = = 2. Member States shall 101 communicate to the Commission communicate to the Commission the text of the main provisions of the text of the main provisions national law which they adopt in of national law which they adopt the field covered by this in the field covered by this Directive. Directive.

  DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

• 3. 

  The Commission shall PROVISIONALLY AGREED 102 review the application and TEXT, SUBJECT TO CHECK implementation of this BY THE COUNCIL Directive. By 8 years after the

entry into force of this 3. The Commission shall Directive, the Commission review the application and shall present a report on the implementation of this application and Directive. By 5 years after the implementation of this entry into force of this Directive to the European Directive, the Commission Parliament, the Council and shall present a report on the the European Economic and application and Social Committee and implementation of this propose, where appropriate, Directive to the European necessary amendments and Parliament, the Council and

modifications to this Directive. the European Economic and Social Committee and

propose, where appropriate, necessary amendments and modifications to this Directive.

That report shall include an assessment of whether further measures to ensure a levelplaying field and protect workers are required:

• 1. 

  in the case of subcontracting;

• 2. 

  in the light of Article 2(-a) (new), taking into account the

DG B 1C LIMITE EN

COM Proposal EP AMs Council General Approach Comments

developments concerning the legislative act amending directive 2006/22/EC i and laying down specific rules with respect to Directive 96/71/EC i and Directive 2014/67/EC i for posting drivers in the road transport sector.

Article 3

This Directive shall enter into = = This Directive shall enter into 103 force on the [twentieth] day force on the [twentieth] day following that of its publication in following that of its publication the Official Journal of the in the Official Journal of the European Union. European Union.

Article 4

This Directive is addressed to the = = This Directive is addressed to 104

Member States. the Member States.

Done at Strasbourg, = = Done at Strasbourg, 105

For the European Parliament For = = For the European Parliament For 106 the Council the Council

The President The President = = The President The President 107

DG B 1C LIMITE EN