34 Amendments of Thomas MANN related to 2012/0061(COD)
Amendment 80 #
Proposal for a directive
Recital 4
Recital 4
(4) In order to prevent, avoid and combat circumvention and/or abuse of the applicable rules by companies taking improper or fraudulent advantage of the freedom to provide services enshrined in the Treaty and/or the application of Directive 96/71/EC the implementation and monitoring of the notion of posting should be improved. To this end, monitoring procedures to ensure compliance with minimum terms and conditions of employment are the most important instrument, being necessary as an effective means of preventing undeclared employment; monitoring by Member States must not be hampered in any way, since otherwise the enforcement of Directive 96/71/EC cannot be guaranteed.
Amendment 97 #
Proposal for a directive
Recital 8
Recital 8
(8) TIn many Member States, trade unions play an important role in the context of the posting of workers for the provision of services since social partners may, in accordance with national law and/or practice, determine the different levels (alternatively or simultaneously) of the applicable minimum rates of pay.
Amendment 98 #
Proposal for a directive
Recital 8 a (new)
Recital 8 a (new)
(8a) The supervisory authorities in the Member States have the most important part to play in enforcing Directive 96/71/EC. Undeclared employment can only be contained by means of effective and efficient checks on compliance with minimum terms and conditions of employment. Monitoring by Member States must not be hampered in any way.
Amendment 102 #
Proposal for a directive
Recital 10
Recital 10
(10) Adequate and effective implementation and enforcement are key elements in protecting the rights of posted workers, whereas poor enforcement undermines the effectiveness of the Union rules applicable in this area. Close cooperation between the Commission and the Member States is therefore essential, without in any circumstances neglecting the importantcentral role of labour inspectorates and the social partners in this respect. Undeclared employment can only be combated by means of effective and efficient checks on compliance with minimum terms and conditions of employment. Monitoring by the Member States must not be hampered in any way.
Amendment 124 #
Proposal for a directive
Recital 13
Recital 13
(13) Administrative cooperation and prompt and far-reaching mutual assistance between the Member States should comply with the rules on the protection of personal data laid down in Directive 95/46/EC, and with regard to administrative cooperation through the Internal Market Information System (IMI), it should also comply with Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the EU institutions and bodies and on the free movement of such data12 and Regulation (EU) xxx (IMI Regulation) on administrative cooperation through the Internal Market Information System (IMI) . 1 2Or. de OJ L 8, 12.1.2001, p. 1. OJ L 8, 12.1.2001, p. 1.
Amendment 139 #
Proposal for a directive
Recital 16
Recital 16
(16) In order to ensure the correct application of, and to monitor compliance with, the substantive rules on the terms and conditions of employment to be respected with regard to posted workers, Member States should apply only certain control measures or administrative formalities to undertakings posting workers for the provision of services. Such measures and requirements may only be imposed provided that the competent authorities cannot carry out their supervisory task effectively without the requested information and the necessary information cannot be obtained easily from the employer of posted workers or the authorities in the Member State of establishment of the service provider within a reasonable delay and/or less restrictive measures would not ensure that the objectives of the national controls measures deemed necessary are attainedt all times apply to undertakings posting workers for the provision of services all control measures or administrative formalities considered by them to be effective and necessary for the intended purpose. Effective and efficient monitoring procedures must not be hampered in any way, since it will otherwise be impossible to combat undeclared employment.
Amendment 157 #
Proposal for a directive
Recital 18
Recital 18
(18) To ensure better and more uniform application of Directive 96/71/EC as well as its enforcement in practice, and to reduce, as far as possible, differences in the level of application and enforcement across the Union, Member States should ensure that effective and adequate inspections are carried out on their territory. To this end, Member States must at all times be authorised to carry out all control measures and administrative formalities they judge effective and necessary for the purpose in respect of undertakings posting workers for the provision of services. This helps prevent undeclared employment.
Amendment 158 #
Proposal for a directive
Recital 19
Recital 19
(19) National labour inspectorates, social partners and other monitoring bodies are of paramount importance in this respect and should continue to play a crucial role. The work of the supervisory authority must not be hampered in any way whatsoever.
Amendment 161 #
Proposal for a directive
Recital 22
Recital 22
(22) Member States are particularly encouraged to introduce a more integrated approach to labour inspections. The need to develop common standards in order to establish comparable methods, practices and minimum standards at Union level should equally be examined. However, the development of common standards must not cause Member States to be hampered in their efforts to combat undeclared employment effectively.
Amendment 207 #
Proposal for a directive
Recital 31
Recital 31
(31) This Directive does not aim to establish harmonised rules for judicial cooperation, jurisdiction, or the recognition and enforcement of decisions in civil and commercial matters, or to deal with applicable law or restrict control mechanisms used by Member States.
Amendment 216 #
Proposal for a directive
Recital 34
Recital 34
(34) Since the objective of this Directive, namely to strengthen comprehensively the control mechanisms and measures used by the Member States and establish a general common framework of appropriate provisions, measures and control mechanisms necessary for better and more uniform implementation, application and enforcement in practice of Directive 96/71/EC, cannot be sufficiently achieved by the Member States, and can therefore, by reason of the scale and effects of the action, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty of the European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective,
Amendment 218 #
Proposal for a directive
Article 1 – paragraph 1 – subparagraph 1
Article 1 – paragraph 1 – subparagraph 1
1. This Directive comprehensively strengthens Member States’ control mechanisms and measures and establishes a general common framework of appropriate provisions, measures and control mechanisms necessary for better and more uniform implementation, application and enforcement in practice of Directive 96/71/EC, including measures to prevent and sanction any abuse and circumvention of the applicable rules, while endeavouring not to restrict Member States’ control mechanisms and measures in any way whatsoever.
Amendment 231 #
Proposal for a directive
Article 1 – paragraph 2
Article 1 – paragraph 2
2. This Directive shall not affect in any way the exercise of control and inspection activities by the Member States with a view to ensuring compliance with minimum terms and conditions of employment and combating undeclared employment; Neither shall it affect in any way the exercise of fundamental rights as recognised in Member States and by Union law, including the right or freedom to strike or to take other action covered by the specific industrial relations systems in Member States, in accordance with national law and practices. Nor does it affect the right to negotiate, conclude and enforce collective agreements and to take collective action in accordance with national law and practices.
Amendment 459 #
Proposal for a directive
Article 5 a (new)
Article 5 a (new)
Article 5a The Commission and the Member States shall support joint initiatives by the relevant social partners at European and national level to create joint instruments with the aim of informing undertakings and workers, pursuant to Directive 96/71/EC, about the conditions and provisions applicable.
Amendment 462 #
Proposal for a directive
Article 6 – paragraph 1
Article 6 – paragraph 1
1. Member States shall work in close cooperation and provide each other mutual assistance as swiftly as possible in order to facilitate the implementation, application and enforcement in practice of this Directive.
Amendment 467 #
Proposal for a directive
Article 6 – paragraph 2
Article 6 – paragraph 2
2. The cooperation of the Member States shall in particular consist in replying rapidly to reasoned requests for information and to carry out checks, inspections and investigations from competent authorities with respect to the situations of posting referred to in Article 1 (3) of Directive 96/71/EC, including investigation of any abuses of applicable rules on the posting of workers or possible cases of unlawful transnational activities.
Amendment 472 #
Proposal for a directive
Article 6 – paragraph 3
Article 6 – paragraph 3
3. For the purpose of responding to a request for assistance from competent authorities in another Member State, Member States shall rapidly ensure that service providers established in their territory supply their competent authorities with all the information necessary for supervising their activities in compliance with their national laws.
Amendment 490 #
Proposal for a directive
Article 6 – paragraph 7
Article 6 – paragraph 7
7. Member States shall ensure thestrict confidentiality of the information which they exchange. Information exchanged shall be used onexclusively in respect of the matter(s) for which it was requested.
Amendment 514 #
Proposal for a directive
Article 7 a (new)
Article 7 a (new)
Article 7a During the period of posting a worker to another Member State the inspection of the working conditions is the responsibility of the authorities of the host Member State. The host State can control on its own initiative and is not bound to any results or controls carried out by the authorities of the Member State of establishment.
Amendment 523 #
Proposal for a directive
Article 9 – paragraph -1 (new)
Article 9 – paragraph -1 (new)
-1. Member States shall be free to choose and apply their administrative requirements and control measures.
Amendment 537 #
Proposal for a directive
Article 9 – paragraph 1 – introductory part
Article 9 – paragraph 1 – introductory part
1. Member States may onlyfor example impose the following administrative requirements and control measures:
Amendment 541 #
Proposal for a directive
Article 9 – paragraph 1 – point a
Article 9 – paragraph 1 – point a
(a) an obligation for a service provider established in another Member State to make a simple declaration in the language of the Member State of destination to the responsible national competent authorities at the latest atprior to the commencement of the service provision, whereby the declaration may only cover the identity of the service provider, the presence of one or more clearly identifiable posted workers, their anticipated number, the anticipated duration and location of their presence, and the services justifying the posting; ust contain the following information: (i) the identity of the service provider (ii) the identity of the posted worker (iii) their anticipated number (iv) the anticipated duration of the posting and the anticipated location where the service will be provided (v) the accessible and clearly identified place in which the audit documents (such as employment contracts, pay slips, time sheets and proof of payment of wages or equivalent documents) are to be kept or made available in paper or electronic form (vi) name, forename and address of the person authorised to accept service in the country of destination, i.e. the person on whom administrative decisions or official documents with legal effect for the service provider established in another Member State may be served (vii) the services justifying the posting. The service provider established in another Member State shall be required to inform the competent national authorities immediately of any changes to the information contained in the declaration.
Amendment 559 #
Proposal for a directive
Article 9 – paragraph 1 – point b
Article 9 – paragraph 1 – point b
(b) an obligation to keep or make available and/or retain copies in paper or electronic form of the employment contract (or an equivalent document withindicating the meaning of Directive 91/533, including, where appropriate or relevant, the additional information referred to in Article 4 of that Directive), payslips, time-sheets and proof of payment of wagesterms of employment), payslips, time-sheets and proof of payment of wages, work permit and residence permit for third countries, the A1 certificate by way of evidence of social insurance cover in the home Member State or copies of equivalent documents during the period of posting in an accessible and clearly identified place in its territory, such as for example the workplace or the building site, or for mobile workers in the transport sector the operations base or the vehicle with which the service is provided;
Amendment 570 #
Proposal for a directive
Article 9 – paragraph 1 – point c
Article 9 – paragraph 1 – point c
(c) a translation of the documents referred to under (b), may be justified provided these documents are not excessively long and standardised forms are generally used for such documents;
Amendment 596 #
Proposal for a directive
Article 9 – paragraph 1 – point d a (new)
Article 9 – paragraph 1 – point d a (new)
(da) Member States may, pursuant to Article 56 of the Treaty on the Functioning of the European Union and in accordance with the relevant national laws, lay down further administrative requirements and control measures.
Amendment 608 #
Proposal for a directive
Article 9 – paragraph 3
Article 9 – paragraph 3
3. Within three years after the date referred to in Article 20, the necessity and appropriateness of the application of national control measures shall be reviewed in the light of the experiences with and effectiveness of the system for cooperation and exchange of information, the development of more uniform, standardised documents, the establishmentrecommending of common principles or standards for inspections in the field of the posting of workers as well as technological developments, with a view to proposing,recommending to the Member States where appropriate, any necessary amendments or modifications.
Amendment 617 #
Proposal for a directive
Article 9 a (new)
Article 9 a (new)
Article 9a To ensure the sustained implementation of national control measures, it is necessary for service providers established in another Member State and posting workers to designate an authorised agent in the host country. Notices and official documents with legal effect may be delivered to the authorised agent of service providers established in another Member State.
Amendment 627 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
1. The competent national authorities in the Member States shall ensure that appropriate checks and monitoring mechanisms are put in place and that effective and adequate inspections are carried out on their territory in order to control and monitor compliance with the provisions and rules laid down in Directive 96/71/EC and to guarantee its proper application and enforcement. Such inspections shallmay be based primarily on a risk assessment towhich may be drawn up regularly by the competent authorities. The risk assessment shallmay identify the sectors of activity in which the employment of workers posted for the provision of services is concentrated on their territory. When making such risk assessment the realisation of big infrastructural projects, the special problems and needs of specific sectors, the past record of infringement, as well as the vulnerability of certain groups of workers shallmay be taken into account. This provision shall be without prejudice to the right of Member States to carry out inspections without any basis for suspicion.
Amendment 640 #
Proposal for a directive
Article 10 – paragraph 2
Article 10 – paragraph 2
2. Member States shall ensure that inspections and controls of compliance with Directive 96/71/EC are not discriminatory and/or disproportionate. This provision shall be without prejudice to inspections and controls without any basis for suspicion.
Amendment 768 #
Proposal for a directive
Article 12 – paragraph 4 a (new)
Article 12 – paragraph 4 a (new)
4a. The remaining paragraphs of Article 12 shall not apply to Member States which have already introduced general company liability in respect of labour law in their legislation, which can demonstrate that procedures are in place to provide compliance documents for undertakings, and which have set a legally binding minimum value above which general company liability applies in all sectors of social security.
Amendment 776 #
Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1
Article 13 – paragraph 2 – subparagraph 1
2. The requesting authority may, in accordance with the laws, regulations and administrative practices in force in its own Member State, request the competent authority in another Member State to recover a penalty or fine or notify a decision imposing a penalty or a fine, in so far as the relevant laws, regulations and administrative practices in force in the requested authority’s Member State allow such action for similar claims or decisions.
Amendment 780 #
Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1 a (new)
Article 13 – paragraph 2 – subparagraph 1 a (new)
The principle of mutual assistance shall not apply in the case of criminal or administrative offences which are punishable in a Member State in accordance with the obligations laid down in the Posting of Workers Directive.
Amendment 790 #
Proposal for a directive
Article 14 – paragraph 1 – subparagraph 1
Article 14 – paragraph 1 – subparagraph 1
1. Further to the request by the requesting authority for recovery of a penalty or a fine or notification of a decision imposing a penalty or fine, the requested authority shall rapidly provide any information and mutual assistance which would be useful to the requesting authority in the recovery of a fine and/or penalty, as well as, to the extent possible, for the underlying claim.
Amendment 803 #
Proposal for a directive
Article 15 – paragraph 1 – subparagraph 1
Article 15 – paragraph 1 – subparagraph 1
1. If, in the course of the recovery or notification procedure, the fine, penalty and/or underlying claim is contested by the service provider concerned or an interested party, the cross-border enforcement procedure of the fine or penalty imposed shall be suspended pending the decision of the appropriate national authority in the requesting Member State in the matter.