Posting an employee to another EU country


Poland, like other member states of the European Union, is subject to the freedom to provide services in other EU countries. Another privilege is the free movement of people, which means that every citizen has the right to freely move to other Member States, e.g. for the purpose of earning money and living within their borders. Moreover, this principle protects such a person from discrimination as regards working conditions as compared with those of the nationals of a given member state.

A manifestation of the freedom to provide services is the possibility of temporarily delegating - delegating - own employees to perform work in another Member State. In recent months, there has been a heated discussion about the new implementation directive, which will change the current rules for such posting of an employee (both on the part of the company and the employee himself).

According to the Regulation of the European Parliament and of the Council (EC) No. 883/2004 of 29 April 2004 on the coordination of social security systems, employees moving within the European Union are subject to the social security legislation of one country.

Social insurance - the principle of the place of work

In accordance with the principle resulting from the above-mentioned of the Regulation, a person working in a Member State should be subject to the social security legislation in force within that Member State. It does not matter where the employer's registered office is or where the employee has a permanent place of residence. There are exceptions to this rule. One of them is posting, which cannot last longer than 24 months.

Another important issue is the need for an employee to be subject to social insurance in the country from which he or she is posted for at least 30 days before starting work. This is a prerequisite for him to be able to be posted.

Conditions necessary for posting

The regulations stipulate that a number of conditions must be met when posting. First of all, the employer has to prove that he is normally active in the posting state. On the part of the employee, there is an obligation to perform work on behalf of the employer, which means that throughout the entire period of posting there must be a direct relationship between the posting employer and the posted worker.

Certain criteria are used to assess whether an employer carries out a substantial part of its activity in the posting State. These include, for example:

  • the place where the posting enterprise has its seat,
  • the number of administrative staff posting the enterprise, working in the posting state and in the country of employment - the presence of only administrative staff in the posting state excludes the possibility of applying the posting provisions to this enterprise,
  • place (country) where posted workers are recruited,
  • place (country) where most contracts are concluded with customers,
  • the law applicable to contracts concluded by the posting enterprise with employees and clients,
  • number of contracts performed in the posting state and in the state of employment,
  • the turnover achieved by the posting company in the posting state and in the state of employment in an appropriately typical period (e.g. a turnover of around 25% of the total turnover in the posting state may be a sufficient indicator, but cases where the turnover is lower than 25% require individual analysis);
  • the period during which the company is established in the posting Member State.

On the other hand, the relationship between the employee and the employer is determined taking into account:

  • the contract between the posted and the posting undertaking, which must be valid throughout the entire period of the posting;
  • the right to terminate the employment contract - this must only apply to the posting undertaking;
  • the posting undertaking's exclusive right to determine the "nature" of the work to be performed by the posted worker, not in terms of details of the type of work to be performed or how it is to be performed, but of general guidance on the type and result of that work or of the essential service to be provided;
  • the obligation to remunerate the employee - should rest with the enterprise that concluded the employment contract;
  • the right to disciplinary action against the employee that is retained by the posting company.

For employed persons posted to work in another Member State, they must have valid certificates - A1 forms on social security legislation applicable to the entitled person. It is a European certificate which proves that insurance premiums are still paid in the country of permanent employment. This form is applied for at the Social Insurance Institution in the country where the company is based.

What will the directive introduce?

The directive in question is the so-called implementation (i.e. enforcement) directive, which extends and complements Directive 96/71 / EC of 1996. It is based on Articles 60 and 77 of the Treaty on the Functioning of the European Union (TFEU). Its purpose is to strengthen the existing regulations in such a way as to prevent infringements and make it more difficult for dishonest business owners to circumvent the law. Importantly, it does not change the provisions of the basic directive, but will apply alongside it.

The most important assumptions of the Directive of the European Parliament and of the Council on the enforcement of Directive 96/71 / EC on the posting of workers in the framework of the provision of services:

  • Introduction of the so-called joint and several liability in the construction sector. It would consist in the fact that the contractor could - together with the employer posting workers or instead of him - be held liable by the posted worker. Liability would apply to the payment of wages, taxes and social security contributions.

  • Introducing measures to be used by control authorities from all EU countries to assess the legality of posting.

  • The IMI system, i.e. providing better access to information on the terms of employment of a posted worker and faster information exchange between Member States:

  • Introduce cross-border enforcement of fines and penalties. Currently, administrative penalties and fines cannot be enforced outside the country that imposed them.

  • Introduction of a list of control measures. Member States are to be free to choose the control measures provided that these instruments are only aimed at implementing the Posting of Workers Directive and are justified and proportionate. Acceptable measures:

    • notification to be made at the latest when the service is started;

    • obligation to have certain documents at the place of service and their translation;

    • appointing, if necessary, a person (representative) to negotiate with the trade unions.

The assumptions of the directive under discussion raise many doubts and controversies, especially in Poland. The country on the Vistula River is a leader in terms of the number of posted workers. Therefore, many entrepreneurs followed with concern the effects of works and discussions on the text of the directive. There is no doubt, however, that in view of the numerous abuses committed by dishonest employers, it was necessary to introduce more detailed regulations. It very often happens that honest entrepreneurs also suffer when they administer justice. This is also the case of the discussed changes. The directive introduces

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requirements that will be difficult to meet also for legally operating companies. It should be noted that the more detailed provisions concerning the posting of workers are still more favorable than the hypothetical revision of the basic Directive 96/71 / EC. This is because in such a situation all the current terms and conditions of employment of posted workers could change, which for Polish entrepreneurs would result in a complete blocking of the possibility of posting.

Many EU countries have announced the immediate implementation of the enforcement directive into their legal order.

In principle, the directive was submitted to two votes in the European Parliament. The first one was held on March 18, 2014 in the Employment and Social Affairs Committee. It adopted the text of the new directive by majority vote. In the second vote in plenary on 16 April, the European Parliament voted by a large majority in favor of the implementation directive. Amendments blocking the document submitted in early April by the Socialist faction were rejected. The agreement now has to be formally confirmed by the member states. Then the implementation period will begin, which will last for a summer. The new regulations are expected to enter into force in most Member States in the first quarter of 2016.

'The final version of the legislation strikes a balance between the freedom to provide services and the protection of posted workers. The legal provisions will provide more transparency and certainty, helping to improve the situation of over one million posted workers in the EU"said Danuta Jazłowiecka (EPP, PL), responsible for the report.