Posted Workers Directive
Directive 96/71/EC concerning the posting of workers in the framework of the provision of services ( short PWD ) is a directive of the European Parliament and of the Council of 16 December 1996.
Objective
Objective of the Directive is to create a legal framework for the European single market in services; Legal basis of Article 53, Section 1, 2 Alt. and Article 62 of the Treaty on the Functioning of the European Union ( TFEU). The Directive lays down rules for the application of provisions in labor legislation on the employment of workers who are posted by a resident in an EU Member State employer to provide services in another Member State.
While in the context of free movement of workers prevail clear labor relations ( namely, the labor of the State in which justified the employment relationship and the work is performed ), the posting of workers raises in the context of cross- border provision of services, the spatial unity between the location of the temporary provision of job performance and the territorial scope of the law applicable to the employment relationship employment law. This transnationalization of the need for a European regulation of the posting of workers is justified (recitals 3 to 6 of the Directive 96/71/EC ).
The Directive is intended to ensure that over a longer period employees are not operating in a Member State whose employment is not subject to the law of that Member State:
This principle, the European Court had already established in his judgment " Rush Portuguesa " ( ECJ, Case C-113/89 ) of 27 March 1990.
Content
The central provision of the PWD is the most labor legal equality of posted workers in a state with the normal there workers in terms of certain aspects of the working conditions, insofar as they are subject to laws, regulations and administrative provisions or by collective agreements generally binding in the target country. Article 3 ( 1) of Directive 96/71/EC lists the protection areas in which to posted workers the law of the country of destination shall apply. These are:
The Article 3 (1 ) provides for implementing duty of the Member State initially for construction activities listed in the Annex to the Directive that the extension to other sectors with generally binding collective agreements, Member States pursuant to Article 3 (10 ) is exempted, as is the use of rules of public policy with regard to other than the one in Article 3 (1 ) above and conditions of employment.
Exception rules apply outside the construction area for employees who are posted only for a few days for the assembly of a delivered from their employer goods ( Article 3 ( 2) ). Other exceptions may be adopted by Member States for workers whose period of posting does not exceed one month; However, this does not apply in the field of cross-border supply of temporary workers (Article 3 ( 3) ).
In Article 3 (7) specifies that Article 3 (1-6 ) does not preclude the application of more favorable to workers employment and working conditions.
It is striking that the list in Article 3 ( 1) does not include access to a social security system of the country. Apply to workers posted here during the first 24 months of posting in accordance with Article 12 ( 1) of Regulation ( EC) 883/2004 on the coordination of social security systems, the provisions of the country of origin.
Effect
In the control areas covered by the PWD this creates a protected zone for the labor organizational autonomy of the EU Member States. The labor legislation is thus relieved of the pressure of the competition regime " in their own country ", which would be given if permanent workers would be employed to " non-resident " of employment in a state.
In view of the different social policy traditions and the different levels of protection of the individual countries, this is a compromise that attempts to meet a number:
- The stated objective of freedom to provide services,
- The right of Member States to autonomous design of labor law, provided there are no EU - wide minimum standards, eg in the area of minimum wage legislation,
- The differences between the Member States, which can harmonize seem impossible.
Interpretation of the Posting of Workers Directive by the European Court
Some Member States, the Directive was understood that they allow the use of complete tariff works on Entsendefirmen, insofar as these are generally binding, thus also of regulations on topics that are in the list in Article 3 (1 ) are not shown. Luxembourg transposed the Directive therefore first order so that the entire general binding Byggnadsarbetareförbundet collective agreement was extended to Entsendefirmen. In some Scandinavian countries, which have no system for the general applicability of collective agreements such as Sweden, it was left according to the local tradition the unions to enforce their usual collective agreements against Entsendefirmen.
In the judgments " Laval " - C 341 /05 of 18 December 2007 - " Rueffert " - C 346 /06 of 3 April 2008 - and " Luxembourg " - C 319 /06 of 19 June 2008 - took the ECJ first addressed the question of whether it is in the list in Article 3 (1 ) of the Directive to a final settlement is.
He replied in the affirmative, despite the Article 3 (7) and limited in the Laval judgment initially wage demands and strikes by unions against Entsendefirmen on the list in Article 3 (1) and in the context of this catalog content to the mandatory essential for the protection of employees minimum. For industrial action as to permissible tariff regulatory objects he killed them at the same time to the attention of a proportionality principle.
In Rueffert ruling forbidding the mandatory application of collective wage above generally binding minimum wages under collective agreements state laws.
In Luxembourg - Luxembourg judgment he forbade, among other things, the use of an automatic inflation adjustment clause in the wages of posted workers.
These judgments triggered a comprehensive and partially heated debate in many countries of Europe, in which eventually involved the European Parliament with the " Andersson report ". In this report, the Parliament adopted the interpretation of the ECJ acknowledged but distanced himself in an unusually clear form of some main considerations and interpretations of the ECJ, in particular the question of the application of more favorable working conditions on the list in Article 3 ( 1) out and about the trade union rights against the posting undertaking and requested the Commission and Council for the immediate review of the PWD.
From the unions and some legal scholars was especially criticized that they were treated by the ECJ with regard to the obligations as a Member State, even though they are not a state but an advocacy and without the obligations Member State's rights were faced that the ECJ sided for the employer party seize, without heeding the basic workers' rights to free collective bargaining demands and collective bargaining, and that finally the Rueffert - judgment rate unbound minimum wage companies a competitive advantage at the expense of collective closing company would gives. There was criticism that the freedoms of entrepreneurs in the internal market, a higher rank than the fundamental rights of workers and their unions will be given by the judgments. In response to the judgments of the European Trade Union Confederation ( ETUC) and the German Federation of Trade Unions DGB demanded an immediate review of the PWD and the insertion of a " social clause " in the European Treaties and took the judgments in the summer of 2009 as an occasion for mass demonstrations in several European capitals.
However, most employers and some other legal scholars welcomed the sentences.
Importance of the PWD in connection with the Bolkestein Directive
In the PWD are not on the genesis of the Bolkestein Directive (Directive 2006/123/EC ) highly controversial country of origin principle, but the destination principle applies.
Article 3 ( 1) of the Bolkestein Directive provides that the provisions of the PWD in principle take precedence over the Bolkestein Directive.