35 Amendments of Andreas SCHWAB related to 2012/0061(COD)
Amendment 82 #
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, taking into consideration the principles of proportionality and non-discrimination.
Amendment 86 #
Proposal for a directive
Recital 4 a (new)
Recital 4 a (new)
(4a) All measures introduced by the Directive must be justified, proportionate and non-discriminatory so that they do not create administrative burdens and do not lock the potential that companies, in particular small and medium enterprises have in creating new jobs, while protecting posted workers.
Amendment 104 #
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 and ensuring the right of undertakings to provide services in another Member State, 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 neglecting the important role of labour inspectorates and the social partners in this respect.
Amendment 135 #
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, taking into consideration the principles of proportionality and non-discrimination.
Amendment 138 #
Proposal for a directive
Recital 4 a (new)
Recital 4 a (new)
(4 a) All measures introduced by the Directive must be justified, proportionate and non-discriminatory so that they do not create administrative burdens and do not lock the potential that companies, in particular small and medium enterprises have in creating new jobs, while protecting posted workers.
Amendment 148 #
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 and ensuring the right of undertakings to provide services in another Member State, 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 neglecting the important role of labour inspectorates and the social partners in this respect.
Amendment 188 #
Proposal for a directive
Article 1 – paragraph 1 – subparagraph 2
Article 1 – paragraph 1 – subparagraph 2
This Directive aims to facilitate the exercise of the freedom to provide services for service providers and promoting fair competition between service providers, while guaranteeing respect for an appropriate level of minimum protection of the rights of posted workers for the cross-border provision of services, while facilitating the exercise of the freedom to provide services for service providers and promoting fair competition between service providers.
Amendment 203 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – introductory part
Article 3 – paragraph 1 – subparagraph 1 – introductory part
For the purpose of implementing, applying and enforcing Directive 96/71/EC the competent authorities shall take into account factual elements characterising the activities carried out by an undertaking in the State in which it is established in order to determine whether it genuinely performs substantial activities, other than purely internal management and/or administrative activities. Such elements may include:
Amendment 207 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point a
Article 3 – paragraph 1 – subparagraph 1 – point a
(a) the place where the undertaking has its registered office and administration, uses office space, pays taxes, or according to national law has a professional licence or is registered with the chambers of commerce or professional bodies,
Amendment 208 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point b a (new)
Article 3 – paragraph 1 – subparagraph 1 – point b a (new)
(b a) the place from which workers are posted,
Amendment 212 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point d
Article 3 – paragraph 1 – subparagraph 1 – point d
(d) the place where the undertaking performs its substantial business activity and where it employs administrative staff,
Amendment 213 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point e
Article 3 – paragraph 1 – subparagraph 1 – point e
Amendment 216 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 2
Article 3 – paragraph 1 – subparagraph 2
The assessment of these elements shall be adapted to each specific case and take account of the nature of the activities and/or period of time in which these activities were carried out by the undertaking in the Member State in which it is established.
Amendment 219 #
Proposal for a directive
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
2 a. In any case, the possession of a certificate concerning social security such as form A1 is an indication that an undertaking genuinely performs its activities.
Amendment 220 #
Proposal for a directive
Article 3 – paragraph 2 b (new)
Article 3 – paragraph 2 b (new)
2 b. The elements determining whether an undertaking in the Member State in which it is established genuinely performs activities and assessing whether a posted worker temporarily carries out his or her work in a Member State other than the one in which he or she normally works, shall be interpreted in a balanced way, in accordance with the rules concerning freedom to provide services included in the Title IV, Chapter III of the Treaty on Functioning of the European Union.
Amendment 221 #
Proposal for a directive
Article 3 – paragraph 2 c (new)
Article 3 – paragraph 2 c (new)
Amendment 232 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 3
Article 3 – paragraph 2 – subparagraph 3
Amendment 259 #
Proposal for a directive
Article 7 – paragraph 4 a (new)
Article 7 – paragraph 4 a (new)
4 a. During the period of posting a worker to another Member State, the inspection of the working conditions to be complied with according to Directive 96/71/EC lies within the responsibility of the authorities of the host Member State. They can carry out factual checks and controls on their own initiative and are not bound by any results of checks or controls carried out by the authorities of the Member State of establishment.
Amendment 261 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – introductory part
Article 3 – paragraph 1 – subparagraph 1 – introductory part
1. For the purpose of implementing, applying and enforcing Directive 96/71/EC the competent authorities shall take into account factual elements characterising the activities carried out by an undertaking in the State in which it is established in order to determine whether it genuinely performs substantial activities, other than purely internal management and/or administrative activities. Such elements may include:
Amendment 274 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point a
Article 3 – paragraph 1 – subparagraph 1 – point a
(a) the place where the undertaking has its registered office and administration, uses office space, pays taxes, or according to national law has a professional licence or is registered with the chambers of commerce or professional bodies,
Amendment 281 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point b a (new)
Article 3 – paragraph 1 – subparagraph 1 – point b a (new)
(b a) the place from which workers are posted,
Amendment 282 #
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 and sufficient effectiveness 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 establishment of common principles or standards for inspections in the field of the posting of workers as well as technological, social and economic developments of posting, with a view to proposing, where appropriate, any necessary amendments or modifications to ensure effective controls of employment conditions by the competent authorities of the host Member State.
Amendment 284 #
Proposal for a directive
Article 10 – paragraph 2 – subparagraph 1 (new)
Article 10 – paragraph 2 – subparagraph 1 (new)
At the end of each inspection, the competent authority shall provide a document which includes at least the name and address of the inspected undertaking, data identifying the competent authority, the days in which the inspection was carried out, the legal ground for the control measure applied, a justification on necessity and proportionality, upon request of the undertaking inspected - information that there are matters covered by trade secrets, a description of fraud identified or information that no fraud was identified, as well as any other relevant information. The inspected undertaking has the right to submit remarks with regard to the findings included in the document. The inspected undertaking receives a copy of the document.
Amendment 289 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point d
Article 3 – paragraph 1 – subparagraph 1 – point d
(d) the place where the undertaking performs its substantial business activity and where it employs administrative staff,
Amendment 291 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point e
Article 3 – paragraph 1 – subparagraph 1 – point e
Amendment 298 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 1 – introductory part
Article 12 – paragraph 1 – subparagraph 1 – introductory part
With respect to the construction activities referred to in the Annex to Directive 96/71/EC, for all posting situations covered by Article 1(3) of Directive 96/71/EC, the Member States shallmay ensure on a non– discriminatory basis with regard to the protection of the equivalent rights of employees of direct subcontractors established in its territory, that the contractor of which the employer (service provider or temporary employment undertaking or placement agency) is a direct subcontractor can, in addition to or in place of the employer, be held liable by the posted worker and/or common funds or institutions of social partners for non- payment of the following:
Amendment 310 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 2
Article 3 – paragraph 1 – subparagraph 2
The assessment of these elements shall be adapted to each specific case and take account of the nature of the activities and/or period of time in which these activities were carried out by the undertaking in the Member State in which it is established.
Amendment 311 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 2
Article 12 – paragraph 1 – subparagraph 2
The liability referred to in the present paragraph shallmay be limited to worker's rights acquired under the contractual relationship between the contractor and his subcontractor.
Amendment 315 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
2. Member States with liability systems in accordance with paragraph 1 shall provide that a contractor who has undertaken due diligence shall not be liable in accordance with paragraph 1. Such systems shall be applied in a transparent, non discriminatory and proportionate way. They may imply preventive measures taken by the contractor concerning proof provided by the subcontractor of the main working conditions applied to the posted workers as referred to in Article 3 (1) of Directive 96/71/EC, including pay slips and payment of wages, the respect of social security and/or taxation obligations in the Member State of establishment and compliance with the applicable rules on posting of workers.
Amendment 320 #
Proposal for a directive
Article 12 – paragraph 4
Article 12 – paragraph 4
Amendment 324 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. Without prejudice to the means which are or may be provided for in Union legislation, the principles of mutual assistance and recognition as well as the measures and procedures provided for in this Article shall apply to the cross-border enforcement of administrative fines and penalties regarding posting of workers situations in accordance with this Directive and Directive 96/71, imposed for failure to comply with the applicable rules in a Member State on a service provider established in another Member State.
Amendment 375 #
Proposal for a directive
Article 3 – paragraph 2 b (new)
Article 3 – paragraph 2 b (new)
2 b. The elements determining whether an undertaking in the State in which it is established genuinely performs activities and assessing whether a posted worker temporarily carries out his or her work in a Member State other than the one in which he or she normally works, shall be interpreted in a balanced way, in accordance with the rules concerning freedom to provide services included in the Title IV, Chapter III of the Treaty on Functioning of the European Union.
Amendment 376 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 3
Article 3 – paragraph 2 – subparagraph 3
Amendment 396 #
Proposal for a directive
Article 3 – paragraph 2 b (new)
Article 3 – paragraph 2 b (new)
2b. The elements determining whether an undertaking in the State in which it is established genuinely performs activities and assessing whether a posted worker temporarily carries out his or her work in a Member State other than the one in which he or she normally works, shall be interpreted in a balanced way, in accordance with the rules concerning freedom to provide services included in the Title IV, Chapter III of the Treaty on Functioning of the European Union.
Amendment 398 #
Proposal for a directive
Article 3 – paragraph 2 c (new)
Article 3 – paragraph 2 c (new)
2c. All the factual elements enumerated in paragraph 1 and 2 are only indicative factors in the overall assessment to be made and may therefore never be considered in isolation. The criteria shall be adapted to each specific case and take account of the specificities of the situation. The non-meeting of one or more of the criteria does not necessary preclude the situation of posting, but should help in the evaluation of genuine posting. The criteria in paragraphs 1 and 2 are intended to assist a competent authority in cases where the competent authority has reason to believe that a worker may not qualify as posted under Directive 96/71/EC. In such cases the competent authority may apply the criteria and factual elements in paragraphs 1 and 2 which it considers are relevant to the circumstances under consideration. There is no requirement that evidence must be supplied in respect of each criteria or that each criteria must be satisfied in every instance of a posting.