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Notes
COM (2016) 128 final.
See its position of 29 May 2018.
France swiftly transposed the Directive. See Ordonnance 2019-116 of 20 February 2019.
Articles 53 and 62 TFEU.
Let’s notice though that an employee who crosses the border to attend a business meeting with colleagues can be considered as posting although there is no service contract. This type of posting is however not in the scope of the directive.
CJEU 27 mars 1990, Rush Portuguesa, case C-113/89.
“The comparability of different situations must be assessed with regard to all the elements which characterise them. These elements must in particular be determined and assessed in the light of the subject-matter and purpose of the European Union act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account” (CJEU 12 May 2011, case C-176/09, Luxembourg v. European Parliament and Council).
If we assume that this is the right comparator.
Which amounts to applying the principle of non-discrimination provided for in Article 45 TFEU on free movement of workers.
“It is therefore necessary to ascertain whether, when a number of factors are taken into account, such as the nature of the activities actually entrusted to each of the employees in question in the case, the training requirements for carrying them out and the working conditions in which the activities are actually carried out, those persons are in fact performing the same work or comparable work” (case C-381/99, Brunnhofer).
Case C-396/13.
CJEU 7 November 2013, Isbir, case C-522/12.
CJEU 14 April 2005, Commission v. Germany, case C-341/02.
Among many unlawful practices: the posted worker receives the remeuneration and afterwards must give back part of it.
The concept of “the same task at the same place” referred to in the fourth subparagraph of this paragraph shall be determined taking into consideration, inter alia, the nature of the service to be provided, the work to be performed and the address(es) of the workplace.
As long as the worker meets the posting definition of Article 2 of the directive.
If the choice of law may not have the result of depriving the employee of the protection afforded to him by provisions that cannot be derogated from by agreement under the law that, in the absence of choice, would have been applicable, the country work is habitually carried out, which determines the law that would have been applicable, is not deemed to have changed if he is temporarily employed in another country.
The classification of “mandatory provisions” is narrowly controled by the Court of Justice: “While the Member States are still, in principle, free to determine the requirements of public policy in the light of their national needs, the notion of public policy in the Community context, particularly when it is cited as justification for a derogation from the fundamental principle of the freedom to provide services, must be interpreted strictly, so that its scope cannot be determined unilaterally by each Member State without any control by the European Community institutions”. See CJEU 19 June 2008, case C-319/06, Commission v. Luxembourg.
Case C-346/06. See also Case C-341/05, Laval.
“In the absence of, or in addition to, a system for declaring collective agreements or arbitration awards to be of universal application within the meaning of the first subparagraph, Member States may, if they so decide, base themselves on…”.
Accords collectifs étendus.
France already transposed the directive and did not make us of this possibility. See Ordonnance 2019-116 of 20 February 2019.
“The absence of (…) a system for declaring collective agreements will not prevent from including in the scope of the directive collective agreements or arbitration awards which are generally applicable to all similar undertakings in the geographical area and in the profession or industry concerned and/or collective agreements which have been concluded by the most representative employers’ and labour organisations at national level and which are applied throughout national territory”.
CJEU 15 March 2011, case C-29/10, Koelzsch.
Basic working and employment conditions” cover remuneration, working time, breaks, rest periods, night work, paid leave, collective facilities…
CJEU 18 Dec. 2007, Case C-341/05, Laval.
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Lhernould, JP. Directive (EU) 2018/957 of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services. ERA Forum 20, 249–257 (2019). https://doi.org/10.1007/s12027-019-00573-x
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DOI: https://doi.org/10.1007/s12027-019-00573-x