Directive 96/71/EC concerning the posting of workers in the framework of the provision of services aimed to reconcile the exercise of this freedom to provide cross-border services under Article 56 of the Treaty on the Functioning of the EU (TFEU) with appropriate protection of the rights of workers temporarily posted abroad for that purpose. In order to do so, it set out mandatory rules at EU level that must be applied to posted workers in the host country. Directive 96/71/EC established a core set of clearly defined terms and employment conditions that must be complied with by the service provider in the host country to ensure the minimum protection of workers.

The Commission did not consider it necessary to amend Directive 96/71/EC, because, according to the Commission, there is nothing wrong with the current posting rules. The Commission is of the opinion that the 1996 Directive is fundamental to clarify the rules applying in posting situations and represents a valid compromise between the protection of workers' rights and the freedom to provide services. Therefore, instead of proposing amendments to Directive 96/71/EC, the Commission decided to adopt a proposal for a Directive, which aim is to improve, enhance and reinforce the way in which Directive 96/71/EC is implemented, applied and enforced in practice across the EU (Enforcement Directive). It does this by establishing a general common framework of appropriate provisions and measures for better and more uniform implementation, application and enforcement of the Directive, including measures to prevent any circumvention or abuse of the rules. It ensures at the same time guarantees for the protection of posted workers' rights and the removal of unjustified obstacles to the free provision of services.

Together with the proposal for a Regulation clarifying the exercise of the right to take collective action within the context of the economic freedoms of the Single Market, in particular the freedom of establishment and the freedom to provide services (Monti II Regulation), the Commission is of the opinion that the proposed Enforcement Directive constitutes a targeted intervention in line with one of the key objectives of the Treaty to establish an Internal Market and work for a highly competitive social market economy, aiming at full employment and social progress.

Apart from describing the objectives of the proposal for a Directive, Article 1 contains what is often referred to as the Monti clause. It combines the text of Article 2 of Council Regulation (EC) 2679/98 of 7 December 1998 on the functioning of the internal market in relation to the free movement of goods among the member states (Monti I Regulation) and Article 1(7) of Directive 2006/123 of the European Parliament and of the Council of 12 December 2006 on services in the internal market (Services Directive). According to the Commission, the Enforcement Directive proposal is also in line with the text of similar provisions in, for example, the recent proposal for a Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and the recently adopted Regulation (EU) 1176/2011 of the European Parliament and of the Council of 16 November 2011 on the prevention and correction of macroeconomic imbalances.

Next steps: The Enforcement Directive proposal is based on Articles 53(1) and 62 TFEU, which are identical those on which Directive 96/71/EC is based and allow for the adoption of Directives under the ordinary legislative procedure.

For a detailed analysis of Directive 96/71/EC, see Practice Note, The Posted Workers Directive.

The proposal for a new Monti II Regulation confirms that the fundamental right to collective bargaining and to take collective action, including the right to strike, and economic freedoms are of equal importance. It sets out a new alert mechanism for industrial conflicts in cross-border situations (as in Monti I Regulation), but leaves national law on the right to strike entirely unaffected. Member states are free to lay down the conditions for the existence and exercise of the social rights at issue. However, when exercising that power member states must comply with EU law, in particular the provisions of the Treaty on the freedom of establishment and the freedom to provide services. The ECJ clearly stated that the right to strike does not fall outside the scope of the freedom of establishment and the freedom to provide services.

The proposal further states that the ECJ rulings in the area of protection of workers triggered a wide-ranging, intense debate on the protection of the rights of posted workers, and more generally the extent to which trade unions can continue to protect workers' rights in cross-border situations. In particular, they sparked controversy on the adequacy of existing EU rules to protect the rights of workers in the context of the freedom to provide services and the freedom of establishment. Annex 10 to the Impact Assessment accompanying the proposals, summarises these ECJ cases (Viking Laval, Line, Rüffert and Commission vs Luxembourg cases).

The proposal further refers to the Monti Report of 9 May 2010, which concluded that these ECJ cases exposed the fault lines that run between the Single Market and the social dimension in two ways:

Therefore, the Monti Report recommended to:

Next steps: The new Monti II Regulation will be decided on by unanimity in the Council of Ministers and through consent procedure by the European Parliament.

Since Directive 96/71/EC entered into force in December 1999, the Commission evaluated the implementation and application of the Directive. In 2009, the Commission launched the following four ex-post evaluation studies:

In order to prepare the Impact Assessment on the revision of the legislative framework on the posting of workers in the context of provision of services, the following ex-ante evaluation Study has been carried out by an external consultant in 2011:

The Impact Assessment consists of the following sections:

The free movement of workers is one of the fundamental freedoms guaranteed by the Treaty of the EU. To guarantee that the rights and working conditions of a posted worker are protected throughout the EU and to avoid "social dumping" where foreign service providers can undercut local service providers because their labour standards are lower, the EU law has established a core of mandatory rules regarding the terms and conditions of employment to be applied to an employee posted to work in another member state. These rules will reflect the standards of local workers in the host member state. The idea is that where a member state has certain minimum terms and conditions of employment, these must also apply to workers posted to that state. However, there is nothing to stop the employer applying working conditions which are more favourable to workers such as, for instance, those of the sending member state.

Directive 96/71/EC concerning the posting of workers in the framework of the provision of services has been in force since December 1999. The Commission evaluated the implementation and application of the Directive and adopted a Report in 2003, which identified several problems of deficient or incorrect implementation and application of the Directive in specific member states. In 2008, the Commission adopted a Recommendation on enhanced administrative co-operation in the context of the posting of workers in the framework of the provision of services. With the adoption of this Recommendation, the Commission called on member states to take urgent action to improve the situation of posted workers through better co-operation between national administrations, for more effective exchange of information between member states and better access to information and exchange of best practice. It also established in 2008 an Expert Committee on Posting of Workers, composed by member states and social partners, with the aim of discussing and clarifying problems of implementation of the Directive. Since 2009, the Commission launched four ex-post evaluation studies concerning social, economic and legal aspect of posting. In order to prepare the Impact Assessment, an ex-ante evaluation study was carried out by an external consultant in 2011. The work of the Expert Committee on the Posting of Workers has been taken into consideration, in particular the pilot project on electronic information exchange using a separate and specific application of the Internal Market Information System (IMI) in the area of posting of workers (see Legal update, European Commission publishes Communication on the Internal Market Information System).

Please note the pdfs of the first sources can be found on the webpage of the final source.

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