Ref. Ares(2022)1770935 - 10/03/2022
9 November 2021
Barriers in posting of workers across the EU: the notification procedure
Input from member organisations
•
BDA (Germany)
More coordination on notification procedure (and especially on additional requirements
according to art. 9.2 of the Enforcement Directive) is urgently needed. The different
requirements in Member States pose a real risk to posting of workers and provision of
services in the Single Market. We therefore support DG GROW’s work on streamlining the
national notification procedures and call for
reduction of administrative burden that is
currently put on companies.
Some general problems with the notification procedure:
• The required documents (incl. pay slips, time sheets) in many cases must be provided in
the language of the Member State where the posting takes place. Even though this is
allowed by the Enforcement Directive, in practice this leads to high costs of compliance
for companies.
• Exemptions from the notification procedure vary to a great extent in the Member States.
A general rule on exemptions (i.e. number of days) would render the posting notification
for companies much easier.
• There is no common definition of what constitutes posting in the Member States.
• Some Member States sanction not only companies, but also host companies and
customers. Many companies fear that this puts pressure on relations with their
customers.
• Providing information on host company/customer is not always easy – in some cases
they are reluctant to deliver the required information to the posting company (hence,
information on host company and/or customer shall be kept to a minimum).
Several concrete examples:
•
Belgium: The company must provide the notification document Limosa-1 to its
customers before the start of posting. If the company fails to do so, the customer must
notify the Belgian authorities (not notifying may lead to fines on company and/or
customer).
•
Denmark: Companies must indicate their national sales tax identification number
(reason unclear) and the Danish cvr-number of the customer (which the posting
companies usually do not have).
•
France: Companies must submit the SIRET-number of the French companies and
information on the professional qualifications of the posted worker. The posting company
must provide the receipt of the notification to their customers, alongside with a
declaration that no sanctions are currently unpaid. Customers can demand additional
documents and information from the company, such as PD A1 and excerpt from the
commercial register.
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•
Greece: The company must confirm that it does not use any hazardous substances or
high-risk materials.
•
Italy: The company must also provide the personal tax number of the legal
representative of the company.
•
Luxembourg: The company must provide medical certificate stating that
the posted worker is fit for employment. All documents on professional qualifications of
the posted workers must also be submitted. Companies must also provide
a Luxembourgish VAT identification number and notify the occasional and temporary
provision of services to the General Directorate for Small and Medium-Sized Enterprises
at the Ministry of the Economy.
•
The Netherlands: The customer will be automatically informed about the notification and
asked to control the correctness of the information submitted before the start of posting.
The companies had to submit a Dutch tax number, which the companies abroad did not
possess (unclear whether still applies).
•
Switzerland: Companies must notify the posting at least eight days before the start of
posting. Exemptions are possible only in urgent cases.
• More examples are listed in paper “ZDH – posting in accordance with the rules must be
simple”.
From our point of view,
these examples of additional requirements are not
proportionate or necessary, and hence not in line with the aim of art. 9.2 of the
Enforcement Directive.
As for current in- and out-bound postings in Germany: Data from the German
Central
Customs Authority – the authority that is responsible for handling the incoming declarations
according to article 9.1 – shows that annually almost
600.000 declarations (584.547 in
2020)
from EU Member States and the UK alone have to be handled.
Important: note that
these are the numbers for
2020, the year where the
pandemic caused an
abrupt
interruption to large amounts of labour mobility. The actual amount therefore is most
likely much higher.
In the attached PDF “Overview national websites” you can find a very abstract evaluation of
the national websites that provide information and links to forms related to posting.
Furthermore, we have also attached some additional information on posting of workers in
Germany and short business trips.
•
FEDIL (Luxembourg)
This is of highest importance for FEDIL as we are facing many challenges, as you know, in
the area of posting – and since many years.
• In Luxembourg, the rules as they stand now are just exaggerated:
• As regards costs, it is difficult to evaluate. However it’s important to note that:
o Certain specialised service providers
refuse to serve Luxembourg
costumers because of conditions that are almost impossible to comply with.
This is true for repairing, maintenance, transport, trade or conferencing visits
etc… as they all fall under the scope of the exaggerated Luxembourg law and
its application.
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o The cost is not only linked to
extensive administrative burden, the hours
lost with paperwork but also the cost linked to
special expenses like
obligatory visits to occupational physicians prior to visiting Luxembourg...
o The cost is mainly linked to
the fact that installation, repairing or
maintenance cannot take place or is seriously delayed.
o
Costs are linked to fines that have to be paid if services from within the
internal market are inevitable but compliance with the Luxembourg
rules is impossible.
o
Cost is also linked to the fact that competition within the internal market
cannot play and Luxembourg costumers have to choose providers from
the very narrow national market if such providers even exist within the
borders.
This is all extremely problematic and we strongly believe that there is a breach of
the internal market rights.
We rely on the Commission to make Luxembourg change its legislation. Indeed,
we have done an extensive work with our prior Minister of Labour, Mr. Nicolas
Schmit, who is now Commissioner. Indeed, he proposed a law to correct these
considerable impacts and he acknowledged that the legal framework must be
adapted. However, this law is now stuck in Parliament since 2017/2018 and has
never been adopted... pressure from the Commission is essential for us.
The letter including evidence of the obstacles to posting sent to PM Schmit in 2017 is
attached.
•
Medef/UiMM (France)
Estimations of the cost of compliance with the requirements of the Enforcement Directive,
focusing on articles 9.1 and 9.2: it can be financial estimation, but also estimation of
time/human resources necessary to comply with these requirements;
From the returns we had from our member companies (and their contractors), filling in the
sipsi declaration and gathering all the documents needed in case of control can easily take
up half a day of work for an HR person (for one posted employee), if not more (people who
are not familiar with posting will need longer or assistance, e.g. from a lawyer, which is
costly). It is therefore not possible to post an employee on the same day because of the
preparation work needed.
Potential gold-plating in the notification procedure.
Please find below a summary regarding the administrative requirements and control
measures for posting workers by the French authorities.
1. Regarding the declaration to make by the service provider established in
another Member State (article 9. 1 (a) of the Directive 2014/67/UE)
The Article 9. 1 (a) of the Directive 2014/67/EU contains a list of information to be
communicated to the host Member State via the declaration. This information is
designed to allow the host authorities to carry out factual controls at the workplace.
Concerning this declaration, we noted that the French authorities request additional
details (via the web site
https://www.sipsi.travail.gouv.fr/) in comparison with the
information listed by the Directive.
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As a general comment for all the cases of posting, the additional information below is
requested by the French authorities :
• As regards the identity of the service provider : company’s director personal
information (i.e., name and family name, date and place of birth).
• Information on the client based in the host country.
• As regards information on the service provision : possible use of dangerous
tools or proceeding, working hours, number of rest days per week and flexible
working hours.
• Expenses : travel, food and accommodation expenses provided or
reimbursed by the employer who post the worker and if so, how this is
provided or the method of reimbursement.
• Nature of posting : social security legislation applicable to the posted worker,
date of signing of the contract or of the beginning of the contractual
relationship with his/her employer, professional qualification and employee’s
hourly rate during the secondment.
• Place where the documents, to be provided to the Labour inspectorate, are
stored (i.e., place of work in France or secure storage space).
Concerning posting of an interim worker by a temporary agency established abroad,
the French authorities also request information related to the proof of a financial
guarantee. In this case, it must be indicated the identity of the company from which
the financial guarantee was obtained.
2. Regarding the documents to keep or make available in case of Labour inspectorate’s
request (article 9. 2 (b) of the Directive 2014/67/UE)
In addition to the documents listed in article 9. 2 (b) of the Directive 2014/67/UE, French
authorities require, in most cases, that the documents below (articles R. 1263-1 and R.
1263-8 of the Labour Code) be presented immediately:
• Document proving an equivalent medical monitoring in the home country. This
document is required to be exempted from specific medical examinations provided by
French law.
• In case of posting ≥ 1 month, payslips or any equivalent document showing the
remuneration requested by the French authorities must contain specific information.
As per article R. 1263-1 of the Labour Code, this document must contain the following
information : gross remuneration, working hours and period with a distinction between
hours paid at regular rate and those paid with an increased rate, holiday and bank
holiday and related salary, conditions of registration with paid leave and bad weather
funds (if applicable), title of the collective agreement applicable at sector level to the
employee. Whereas, in case of posting < 1 month, a document showing that the
minimum remuneration has been paid is requested.
• Companies established in a country outside the EU must submit to the French
authorities, a social security posting certificate or a certificate of social declaration
provided by the French social protection agency responsible for collecting social
contributions less than 6 months old and showing the posted worker’s registration
with the French social security scheme.
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• For temporary agencies, a proof of a financial guarantee (or proof of an equivalent
guarantee in the home country), assignment contract and contract for the supply of
agency workers in accordance with French law are requested.
• Please also note that French law requires a work permit for third-country nationals.
This requirement is expressly provided by the article R. 1263-1 of the Labour Code.
Please note that, for us, the reference to “the additional information referred to in Article 4 of
that Directive “ in §9.2 is unclear.
Additional comments: information is difficult to be found on national portals, notably because
they are not harmonised (some have much information that is hard to navigate; other lack
sectoral information etc.) and rules can differ from one country to another. The determination
of the remuneration applicable to the posted worker is quite tricky.
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