Directive 2014/67/EU of 15 May 2014, published in the Official Journal of the European Union (OJEU) L 159 of 28 May 2014, establishes provisions, measures and control mechanisms aiming to ensure a better and more uniform implementation, application and enforcement in practice of Directive 96/71/EC of 16 December 1996 concerning the posting of workers in the framework of the provision of services. The new framework includes measures to prevent and sanction any abuse and circumvention of applicable rules under Directive 96/71/EC.
Directive 96/71/EC establishes a set of clearly defined terms and conditions of employment which are required to be complied with by workers temporarily posted to provide services in another Member State than the one in which they habitually carry out their work. Such terms and conditions aim to ensure the minimum protection of the posted workers concerned.
The objective of the new Directive 2014/67/EU is “to guarantee respect for an appropriate level of protection of the rights of posted workers for the cross-border provision of services, in particular the enforcement of the terms and conditions of employment that apply in the Member State where the service is to be provided in accordance with Article 3 of Directive 96/71/EC, while facilitating the exercise of the freedom to provide services for service providers and promoting fair competition between service providers, and thus supporting the functioning of the internal market” (Article 1).
For the purpose of implementing, applying and enforcing Directive 96/71/EC, the new Directive mainly requires the competent authorities to make an overall assessment of all factual elements that are considered to be necessary in order to identify a genuine posting and prevent abuse and circumvention. “Those elements are intended to assist competent authorities when carrying out checks and controls and where they have reason to believe that a worker may not qualify as a posted worker under Directive 96/71/EC” (Article 4). The assessed elements should primarilly include those listed in paragraphs 2 and 3 of Article 4.
Furthermore, with regard to the defence of rights and facilitation of complaints, Directive 2014/67/EU provides, for the enforcement of the obligations under Directive 96/71/EC, that Member States must ensure that “there are effective mechanisms for posted workers to lodge complaints against their employers directly, as well as the right to institute judicial or administrative proceedings, also in the Member State in whose territory the workers are or were posted, where such workers consider they have sustained loss or damage as a result of a failure to apply the applicable rules, even after the relationship in which the failure is alleged to have occurred has ended.” (Article 11(1)).
Directive 2014/67/EU must be transposed into the national legislation of Member States by 18 June 2014.
Sources : Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System ( ‘the IMI Regulation’ ), OJEU L 159 of 28 May 2014, p. 11–31
Red-on-line EHS legal counsel