156 Amendments of Emilie TURUNEN related to 2012/0061(COD)
Amendment 59 #
Proposal for a directive
Citation 1
Citation 1
Having regard to the Treaty on European Union, and in particular Article 3(3), and to the Treaty on the Functioning of the European Union, and in particular Article 26(2), Article 45, Article 46, Article 53(1) and Article 62 thereof,
Amendment 64 #
Proposal for a directive
Citation 1 a (new)
Citation 1 a (new)
Having regard to the Charter of Fundamental Rights of the European Union,
Amendment 66 #
Proposal for a directive
Recital 2
Recital 2
(2) The free movement of workers gives every citizen the right to move freely to another Member State to work and reside there for that purpose and protects them against discrimination as regards employment, remuneration and other working conditions in comparison to nationals of that Member State. It needs to be distinguished frombalanced with the freedom to provide services, which includes the right of undertakings to provide services in another Member State, for which they may send (‘'post’') their own workers temporarily to carry out the work necessary to provide these services there. This posting has to happen without violating non- discrimination provisions for both undertakings and workers as set out in Article 45(2) and 49 TFEU.
Amendment 70 #
Proposal for a directive
Recital 2 a (new)
Recital 2 a (new)
(2a) A genuine posting situation requires that the worker is habitually employed with the service provider prior, during and after the period of posting and not hired solely for the posting.
Amendment 71 #
Proposal for a directive
Recital 2 b (new)
Recital 2 b (new)
(2b) Based on Art. 3(6) of Directive 96/71/EC, if one posted workers replaces another or if the same position is repeatedly filled with a posted worker by the same services providers in a short/quick succession, and if these succeeding contracts add up to 12 month, the assumption that it is not a posting situation is justified.
Amendment 73 #
Proposal for a directive
Recital 3
Recital 3
(3) With respect to workers temporarily posted to carry out work in order to provide services in another Member State than the one in which they habitually carry out their work, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services establishes a core set of clearly defined terms and conditions of work and employment which must be complied with by the service provider in the Member State to which the posting takes place to ensure the minimum protection of the posted workers concerned. This Directive and Directive 96/71/EC do not prevent legal or collectively agreed standards from providing the posted workers with more favourable conditions, as long as equal treatment and non-discrimination of local and foreign companies and workers is ensured. This Enforcement Directive aims at improving the implementation of the Directive 96/17/EC in full respect of Article 53(1) and 62 Art. 45(1), 45(2) and Art. 26(2) TFEU and the Charter of Fundamental Rights.
Amendment 76 #
Proposal for a directive
Recital 3 a (new)
Recital 3 a (new)
(3a) This directive aims at better enforcement of Directive 96/71/EC. Therefore, the provision laid down in this directive shall be applicable without prejudice to the provisions laid down in Directive 96/71/EC.
Amendment 81 #
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 improvedmust be enforceable and should be improved and any circumvention of the rules must be sanctioned, especially regarding all terms and conditions of employment.
Amendment 85 #
Proposal for a directive
Recital 4 a (new)
Recital 4 a (new)
(4a) In case of non-compliance such as when a worker is found not to be genuinely posted, an undertaking shall be covered by the relevant legislation applicable in the country of service provision, and all persons posted by the undertaking concerned shall be deemed workers exercising their freedom of movement within the Union.
Amendment 87 #
Proposal for a directive
Recital 5
Recital 5
(5) Therefore, the constituent factual elements characterising the temporary nature inherent to the notion of posting, which implies that the employer should be genuinely established in the Member State from which the posting takes place, as well as the relationship between Articles 45, 46, 49 TFEU, Directive 96/71/EC and Regulation (EC) No 593/2008 on the law applicable to contractual obligations (hereinafter the ‘'Rome I Regulation’')need to be further clarified.
Amendment 89 #
Proposal for a directive
Recital 6
Recital 6
(6) As is the case with Directive 96/71/EC, this Directive should not prejudice the application of the law which, under Article 8 of the Rome I Regulation, applies to individual employment contracts, or the application of Regulation No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems and Regulation No 987/2009of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems or Article 45 and 46 TFEU. The provisions in this Directive are without prejudice to Member States providing for and enforcing more favourable conditions for posted workers.
Amendment 92 #
Proposal for a directive
Recital 7
Recital 7
(7) Respect for the diversity of national industrial relations systems as well as the autonomy of social partners is explicitly recognised by the Treaty. This respect has to be transferred into provisions which enable Member States to use a wide range of arrangements in line with their national law and practice for ensuring compliance with and enforcement of 96/71/EC and this Directive.
Amendment 93 #
Proposal for a directive
Recital 8
Recital 8
(8) Trade unions play an important role in the context of the posting of workers for the provision of servicehis Directive and Directive 96/71/EC respect the different national industrial relations systems and recognise the important role of collective bargaining. This 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 ludes the right of trade unions to engage in judicial and administrative proceeding on behalf of the worker and where applicable to control and enforce working conditions.
Amendment 106 #
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 thereforeMember States and supported by the Commission is essential, without neglecting the important role of labour inspectorates and the social partners in this respect.
Amendment 112 #
Proposal for a directive
Recital 10 a (new)
Recital 10 a (new)
(10a) Posted workers shall not be used to replace striking workers.
Amendment 114 #
Proposal for a directive
Recital 10 b (new)
Recital 10 b (new)
(10b) Competent authorities shall make an overall assessment of all factual elements in order to determine if an undertaking is performing a genuine activity. If proof cannot be produced it shall be presumed that the undertaking is established in the country where it provides the service.
Amendment 115 #
Proposal for a directive
Recital 10 c (new)
Recital 10 c (new)
(10c) Member States are entitled to perform any controls needed in order to fully comply with Article 5 in 96/71/EC and the provisions in this Directive. Strong, regular and flexible inspections in the Member States are essential and adequate funding must be provided in order for the competent authorities to detect and combat circumvention.
Amendment 122 #
Proposal for a directive
Recital 12
Recital 12
(12) In order to facilitate better and more uniform application of Directive 96/71/EC, it is appropriate to provide for an electronic information exchange system to facilitate administrative cooperation and competent authorities should use the Internal Market Information System (IMI) as much as possible. However, this should not prevent the application of bilateral agreements or arrangements concerning administrative cooperation as these established mechanisms of cooperation have proven fruitful.
Amendment 129 #
Proposal for a directive
Recital 14
Recital 14
(14) Member States obligations to make information on terms and conditions of employment generally available and to provide effective access free of charge to it, not only to service providers from other Member States, but also to the posted workers concerned, should be further concretised. Non-compliance must be sanctioned as it seriously hinders enforcement and undermines fair competition in the Single Market.
Amendment 133 #
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 improvedmust be enforceable and should be improved and any circumvention of the rules must be sanctioned, especially regarding all terms and conditions of employment.
Amendment 134 #
Proposal for a directive
Recital 14 a (new)
Recital 14 a (new)
(14a) Posted workers have a right to information and advice regarding the relevant working and employment conditions. It is up to the Member States, to establish such information and advice centres that posted workers can turn to and provide financial support for them.
Amendment 137 #
Proposal for a directive
Recital 15 a (new)
Recital 15 a (new)
(15a) In order to improve and facilitate mutual assistance and crossborder cooperation between the competent authorities in the Member States, an EU- wide notification or registration system based on and compatible with existing systems in Member States should be developed in accordance with the rules on the protection of personal data. In order for such a system to be in line with the principle of non-discrimination and fair competition, the Commission shall present to the European Parliament and the Council an impact assessment regarding the feasibility of such a system.
Amendment 138 #
Proposal for a directive
Recital 16
Recital 16
(16) It is of paramount importance that the host Member State continues to control and monitor as outlined in Article 5 Directive 96/71/EC. 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 shouldall apply only certainnecessary 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 attained.
Amendment 150 #
Proposal for a directive
Recital 16 a (new)
Recital 16 a (new)
(16a) Any risk assessment should aim at identifying 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 special problems and needs of specific sectors, the past record of infringement, the information provided by social partners on the ground, the practices of circumvention as well as the vulnerability of certain groups of workers should be taken into account.
Amendment 155 #
Proposal for a directive
Recital 17 a (new)
Recital 17 a (new)
(17a) In order to combat circumvention and bogus self-employment, the Commission shall examine the possibility to set up a European register ("black list") for companies who repeatedly have violated the rules laid down in this Directive and Directive 96/71/EC. The purpose of such a black list should be to ensure fair competition among companies.
Amendment 159 #
Proposal for a directive
Recital 16 a (new)
Recital 16 a (new)
(16 a) Any risk assessment should aim at identifying 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 special problems and needs of specific sectors, the past record of infringement, the information provided by social partners on the ground, the practices of circumvention as well as the vulnerability of certain groups of workers should be taken into account.
Amendment 160 #
Proposal for a directive
Recital 20
Recital 20
(20) In order to cope in a flexible way withrespect the diversity of labour markets and industrial relations systems, by way of exception,Member States are, in line with their national law and practice, entitled to task other actors and/or bodies maywith monitoring certain terms and conditions of employment of posted workers, provided these offer the persons concerned an equivalent degree of protection and exercise their monitoring in a non- discriminatory and objective manner.
Amendment 162 #
Proposal for a directive
Recital 23
Recital 23
(23) To facilitate the enforcement of Directive 96/71/EC and ensure more effective application of it, effective complaint mechanisms should exist through which posted workers may lodge complaints or engage in proceedings either directly or through relevant designated third parties, such as trade unions or other associations as well as common institutions of social partners. Associations, organisations and other legal entities which have a legitimate interest in the enforcement of Directive 96/71/EC may engage in any judicial and administrative proceeding on behalf of the worker. This should be without prejudice to national rules of procedure concerning representation and defence before the courts.
Amendment 173 #
Proposal for a directive
Recital 24
Recital 24
(24) In view of the prevalence of subcontracting in the construction sector,With a view to reducing abuses in subcontracting situations and in order to protect posted workers‘' rights, it is necessary to ensure that in suchall sector at least the contractor of which the employer is a direct subcontractor can be held liable to pay to posted workers the net minimum rates of pay due, any back- payments of outstanding remuneration and/or contributions due to common funds or institutions of social partners regulated by law or collective agreement in so far as these are covered by Article 3 (1) of Directive 96/71/EC in addition to or in place of the employer. The contractor shall not be held liable if he/she has undertaken due diligence. The latter may imply preventive measures concerning proof provided by the subcontractor, including where relevant based upon information emanating from national authoritiess, all contractors down the chain can be held liable for paying to the posted workers all entitlements due to them.
Amendment 183 #
Proposal for a directive
Recital 25
Recital 25
Amendment 195 #
Proposal for a directive
Article 3 a (new)
Article 3 a (new)
Article 3 a Non-compliance In case of non-compliance with Article 3 of Directive 96/71/EC or relevant Articles of this Directive, an undertaking and its workers shall be covered by the relevant legislation applicable in the country of service provision as place of habitual employment and all persons posted by the undertaking concerned shall be deemed workers exercising their freedom of movement within the Union. The host Member State may then request immediate proof that concerned workers receive equal treatment to nationals of the host Member State for all terms and conditions of employment and related social rights in line with Article 45 TFEU.
Amendment 196 #
Proposal for a directive
Recital 26
Recital 26
(26) The obligation to impose a liability requirement on the contractor where the direct subcontractor is a service provider, established in anotherExisting systems of supply chain compliance already in place in Member State,s postroviding wforkers is justified in the overriding public interest of the social protection of workers. Such posted workers may not be in the same situation as workers employed by a direct subcontractor established in the Member State of establishment of the contractor with regard to the possibility to claim outstanding pay or refunds of taxes or social security contributions unduly withheld better conditions and protection for workers shall in no way be restricted by the provisions in this Directive.
Amendment 199 #
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 includean undertaking posting workers shall supply to the competent authorities upon request proof of at least the following:
Amendment 201 #
Proposal for a directive
Recital 27
Recital 27
(27) The disparities between the systems of the Member States for enforcing imposed administrative fines and/or penalties in cross-border situations are prejudicial to the proper functioning of the internal market and risk making it very difficult, if not impossible, to ensure that posted workers enjoy an equivalent level of protection throughout the Union. Where such fines and penalties are imposed due to non-compliance with the employment conditions established by labour courts or collective agreements, these must be enforceable.
Amendment 205 #
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 undertakingcountry of establishment is the place where it performs its substantial quantifiable business activity and has its registered office and administration, uses office space, and pays taxes, and has a professional licence or is registered with the chambers of commerce or professional bodies,
Amendment 210 #
Proposal for a directive
Recital 32
Recital 32
(32) Member States should take appropriate measures in the event of failure to comply with the obligations laid down in this Directive, including administrative and judicial procedures, and should provide for effective, dissuasive and proportionate penalties for any breaches of the obligations under this Directive. Insufficient cooperation between Member States remains unfortunately a problem in enforcing Directive 96/71/EC and hinders the creation of a level playing field for companies and the protection of workers.
Amendment 210 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point c
Article 3 – paragraph 1 – subparagraph 1 – point c
(c) the law applicable to the contracts concluded by the undertaking with its workers, on the one hand, and withclients and proof that the law of the country of establishment its clients, on the other handapplicable to the contracts concluded with its workers,
Amendment 214 #
Proposal for a directive
Recital 33
Recital 33
(33) This Directive respects the fundamental rights and observes the principles recognised in the Charter of Fundamental Rights of the European Union, notably protection of personal data (Article 8), the freedom to choose an occupation and right to engage in work (Article 15), the freedom to conduct a business (Article 16), the right to collective bargaining and action (Article 28), fair and just working conditions (Article 31), and the right to an effective remedy and to a fair trial (Article 47) and the relevant ILO Conventions and has to be implemented in accordance with those rights and principles.
Amendment 219 #
Proposal for a directive
Article 1 – paragraph 1 – subparagraph 1
Article 1 – paragraph 1 – subparagraph 1
1. This Directive establishes a general common framework of appropriateset of specific provisions, measures and control mechanisms necessary for better and more uniformso as to aid Member States in the 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 and without prejudice to the scope of Directive 96/71/EC.
Amendment 222 #
Proposal for a directive
Article 1 – paragraph 1 – subparagraph 2
Article 1 – paragraph 1 – subparagraph 2
Amendment 229 #
Proposal for a directive
Article 1 – paragraph 2
Article 1 – paragraph 2
2. This Directive shall not affect in any way the exercise of fundamental rights as recognised in Member States and by Uninternational law, ILO Conventions and the Fundamental Rights Charter 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 233 #
Proposal for a directive
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
2a. Where there is conflict between Directive 96/71/EC and this Directive the principles of Directive 96/71/EC shall prevail.
Amendment 234 #
Proposal for a directive
Article 1 – paragraph 2 b (new)
Article 1 – paragraph 2 b (new)
2b. This directive aims to support the functioning of the internal market and improve implementation of Directive 96/71/EC. A Member State shall take all action required to enforce the terms and conditions of employment at the place where the service is performed and to abolish any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
Amendment 235 #
Proposal for a directive
Article 1 – paragraph 2 c (new)
Article 1 – paragraph 2 c (new)
2c. This Directive does not affect in any way the competences of the Member States to define mandatory labour standards and working conditions for all workers pursuing labour on their territory (as formulated by Article 3(10) of Directive 96/71) as long as these standards are not protectionist or discriminatory.
Amendment 240 #
Proposal for a directive
Article 2 – paragraph 1 – point a
Article 2 – paragraph 1 – point a
(a) ‘'competent authority’' means any body or authority designated by a Member State to perform functions under this Directive; or under Directive 96/71/EC.
Amendment 243 #
Proposal for a directive
Article 2 – paragraph 1 – point b
Article 2 – paragraph 1 – point b
(b) ‘'requesting authority’' means the competent authority of a Member State which makes a request for assistance, information, notification or recovery concerning a penalty or fine as referred to in Chapter VI;
Amendment 251 #
Proposal for a directive
Article 3 – title
Article 3 – title
Amendment 256 #
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 administrativan undertaking posting workers shall supply to the competent authorities upon request proof that it genuinely performs substantial activities, other than purely internal management activities, in the territory of the Member State of establishment. The competent authorities shall take into account all factual elements characterising these activities. Such elements may include: but are not limited to:
Amendment 257 #
Proposal for a directive
Article 7 – paragraph 1 a (new)
Article 7 – paragraph 1 a (new)
1 a. In accordance with Article 5 of the Directive 96/71/EC the host Member State has the responsibility and shall therefore continue to control, monitor and take all the necessary supervisory or enforcement measures, in accordance with its national law and/or practice and administrative procedures, with respect to workers posted to its territory.
Amendment 271 #
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 undertakingcountry of establishment is the place where it performs its substantial quantifiable business activity and has its registered office and administration, uses office space, pays taxes, and pays taxes and social contributions and has a professional licence or is registered with the chambers of commerce or professional bodies,
Amendment 280 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point b
Article 3 – paragraph 1 – subparagraph 1 – point b
(b) the place where posted workers are recruited and where they are habitually employed,
Amendment 280 #
Proposal for a directive
Article 9 – paragraph 2 a (new)
Article 9 – paragraph 2 a (new)
2 a. Member States shall ensure that all administrative requirements are publicly available to the service providers and regularly updated.
Amendment 284 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point c
Article 3 – paragraph 1 – subparagraph 1 – point c
(c) the law applicable to the contracts concluded by the undertaking with its workers, on the one hand, and withclients and proof that the law of the country of establishment its clients, on the other handapplicable to the contracts concluded with its workers,
Amendment 299 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point e
Article 3 – paragraph 1 – subparagraph 1 – point e
(e) the abnormally limited number of contracts performed and/or size of turnover realised in the Member State of establishment or the place where the majority of contracts with clients are performed.
Amendment 307 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 2
Article 3 – paragraph 1 – subparagraph 2
Amendment 313 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 2 a (new)
Article 3 – paragraph 1 – subparagraph 2 a (new)
Activities of purely administrative nature or undertakings only holding personnel in the host member state fall outside the scope of directive 96/71/EC or this directive.
Amendment 315 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 1
Article 3 – paragraph 2 – subparagraph 1
In order to better implement Articles 3 and 5 of Directive 96/71/EC and to assess 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, all factual elements characterising such work and the situation of the worker shall be examined by the competent authorities.
Amendment 319 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 2 - introductory part
Article 3 – paragraph 2 – subparagraph 2 - introductory part
Such elements may include, but are not limited to:
Amendment 323 #
Proposal for a directive
Article 12 – paragraph 4
Article 12 – paragraph 4
4. Within three years after the date referred to in Article 20, the Commission shall,council and the European Parliament in consultoperation with the Member States andCommission and after consultation of the social partners at EU leveshall, review the application of this Article with a view to proposing, where appropriate, any necessary amendments or modifications.
Amendment 325 #
Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1
Article 13 – paragraph 2 – subparagraph 1
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 decisionsretroactive social security contributions in accordance with 987/2009/EC or notify a decision imposing a penalty or a fine or retroactive social security in accordance with 987/2009/EC.
Amendment 330 #
Proposal for a directive
Article 18 – paragraph 1
Article 18 – paragraph 1
1. The administrative cooperation and mutual assistance between the competent authorities of the Member States provided for in Articles 6, 7, 10(3), 13, 14 and 15 shall be implemented through the Internal Market Information System (IMI), established by [reference to IMI Regulation]89 as far as possible and be accompanied by other established means of cooperation such as bilateral agreements.
Amendment 331 #
Proposal for a directive
Article 18 – paragraph 1 a (new)
Article 18 – paragraph 1 a (new)
1 a. The mutual assistance between the competent authorities of the Member States provided for in the relevant article of this Directive and Directive 96/71/EC shall be implemented where possible with use of the Internal Market Information System (IMI), established by [reference to IMI Regulation] and via the existing established means of cooperation such as bilateral agreements
Amendment 332 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 2 – point a
Article 3 – paragraph 2 – subparagraph 2 – point a
(a) the work of the posted workers is carried out for a limited period of time in another Member State than the one in which the employee normally carries out his work and starts on a specified day; In accordance with Art 3(6) of Directive 96/71/EC, for the calculation of this limited time, account shall be taken of any previous periods for which the post has been filled by a posted worker;
Amendment 336 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 2 – point a a (new)
Article 3 – paragraph 2 – subparagraph 2 – point a a (new)
(a a) The posting takes place from the Member State in or from which the employee normally carries out his work;
Amendment 345 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 2 – point c
Article 3 – paragraph 2 – subparagraph 2 – point c
(c) the posted worker returns or is expected to resume working to the Member State from which he/she is posted after completion of the work ois habitually employed during the period of posting, and is employed with the undertaking prior to and after the perovisiond of services for which he or she was posteding;
Amendment 351 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 2 – point c a (new)
Article 3 – paragraph 2 – subparagraph 2 – point c a (new)
(c a) the posted worker has a valid A1 form to certify which social security legislation applies; the A1 form is solely an informative indicator for the social security status of the worker. It shall not be retroactive and must be provided from the beginning of the posting period and prior to any inspections;
Amendment 365 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 2 – point e
Article 3 – paragraph 2 – subparagraph 2 – point e
(e) any repeated previous periods during whichthat the post was not filled by the same or another (posted) worker during repeated previous periods.
Amendment 381 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 3
Article 3 – paragraph 2 – subparagraph 3
All the factual elements enumerated above are indicative factors in the overall assessment to be made and may not therefore be considered in isolation. The criteria shall be adapted to each specific case and take account of the specificities of the situation. Art 3(6) of the Directive 96/71/EC need to be taken into account when evaluating whether a posting is temporary or not.
Amendment 387 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 3 a (new)
Article 3 – paragraph 2 – subparagraph 3 a (new)
The absence or lack of document(s), such as the document(s) referred to in Article 3 of Directive 91/533 or the certificate concerning the social security legislation (form A1 as prescribed for posted workers by Regulation 883/2004 and its implementing Regulation 987/2009) which applies to him/her, having been issued is an indication that the situation should not be characterised as one of 'temporarily posting' to another country than the one in which the worker concerned habitually works.
Amendment 389 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 3 b (new)
Article 3 – paragraph 2 – subparagraph 3 b (new)
For the purpose of implementing, applying and enforcing Directive 96/71/EC, the competent authorities shall make an overall assessment of all factual elements relevant for assessing the posting, the establishment of the undertaking and the status of the worker. In case of non-compliance for any one of the above-mentioned criteria, further verification by the concerned Member State is obligatory.
Amendment 390 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 3 c (new)
Article 3 – paragraph 2 – subparagraph 3 c (new)
The list of criteria is non-exhaustive. The Member States have the right to stipulate other binding elements. The assessment of these elements shall be adapted to each specific case.
Amendment 391 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 3 d (new)
Article 3 – paragraph 2 – subparagraph 3 d (new)
In accordance with Article 4 of the Directive 96/71/EC and in the context of the administrative cooperation the Member States of establishment shall provide upon request the relevant information to the requesting authority.
Amendment 399 #
Proposal for a directive
Article 3 a (new)
Article 3 a (new)
Amendment 408 #
Proposal for a directive
Article 4 – title
Article 4 – title
Role of competent authorities and liaison offices
Amendment 409 #
Proposal for a directive
Article 4 – paragraph -1 (new)
Article 4 – paragraph -1 (new)
In accordance with Directive 95/46/EC, Member States shall remain ultimately responsible for safeguarding data protection and the legal rights of affected persons and shall put in place appropriate mechanisms in this respect.
Amendment 411 #
Proposal for a directive
Article 4 – paragraph 2
Article 4 – paragraph 2
Contact details of the competent authorities shall be communicated to the Commission and the other Member States and be available to the public. The Commission shall publish and regularly update the list of the competent authorities and liaison offices. Other Member States and EU institutions shall respect each Member State's choice(s) of competent authorities.
Amendment 414 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Member States shall take the appropriate measures to ensure that the information on the terms and conditions of employment referred to in Article 3 of Directive 96/71/EC which are to be applied and complied with by service providers are made generally available in a clear,free of charge in a clear, transparent comprehensive and easily accessible way at a distance and by electronic means, in formats and by web standards that ensure access to persons with disabilities and to ensure that the liaison offices or the other competent national bodies referred to in Article 4 of Directive 96/71/EC are in a position to carry out their tasks effectively.
Amendment 418 #
Proposal for a directive
Article 5 – paragraph 2 – introductory part
Article 5 – paragraph 2 – introductory part
2. In order to bring about further improvements with respect to access to information, Member States shall in accordance with the principles established in Article 4 of Directive 96/71/EC:
Amendment 423 #
Proposal for a directive
Article 5 – paragraph 2 – point a a (new)
Article 5 – paragraph 2 – point a a (new)
(aa) ensure that bodies are tasked by the Member State with providing posting undertakings and posted workers with all required information relating to their rights and obligations under Directive 96/71/EC. According to national traditions, also social partners can be tasked entirely or partially, or can support the tasked bodies;
Amendment 426 #
Proposal for a directive
Article 5 – paragraph 2 – point b
Article 5 – paragraph 2 – point b
(b) take the necessary measures to make generally available on internet sites and by other means information on which collective agreements are applicable (and to whom), and which terms and conditions of employment have to be applied by service providers from other Member States in accordance with Directive 96/71/EC, whereby, where possible, links to existing internet sites and other contact points, in particular the relevant social partners, shall be provided;
Amendment 430 #
Proposal for a directive
Article 5 – paragraph 2 – point c
Article 5 – paragraph 2 – point c
(c) make the information available to workers and service providers in languages other than the national language(s) of the country in which the services are provided, if possible in summarised leaflet form indicating the main labour conditions applicablthe most relevant languages, the choice being left to the host Member State, if possible in summarised leaflet form indicating the main labour conditions applicable as well as describing the procedures to lodge complaints and the judicial proceedings and sanctions applicable in case of non- compliance and upon requests in formats accessible to persons with disabilities;
Amendment 438 #
Proposal for a directive
Article 5 – paragraph 2 – point c a (new)
Article 5 – paragraph 2 – point c a (new)
(ca) further detailed information on labour and social conditions including Health and Safety at the workplace shall be easily made available by different means of communication including contact points;
Amendment 444 #
Proposal for a directive
Article 5 – paragraph 2 – point e a (new)
Article 5 – paragraph 2 – point e a (new)
(ea) inform about and provide resources for other contact points such as provided by the social partners;
Amendment 445 #
Proposal for a directive
Article 5 – paragraph 3
Article 5 – paragraph 3
3. The Commission under supervision of Council and the European Parliament shall continue to support the Member States in this area.
Amendment 447 #
Proposal for a directive
Article 5 – paragraph 4
Article 5 – paragraph 4
4. Where, in accordance with national law, traditions and practices and with full respect for the autonomy of social partners, the terms and conditions of employment referred to in Article 3 of Directive 96/71/EC are laid down in collective agreements in accordance with aArticle 3 paragraphs 1 and 8 of that Directive, Member States shouldall ensure that the social partners shall identify these and make tse terms and conditions are made available in an accessible and transparent way to service providers from other Member States and to posted workers, and may involve the social partners in this respect. The relevant information should, in particular, concerningver the different minimum rates of pay and their constituent elements, the method used to calculate and/or classify the remuneration due and the qualifying criteria for classification in the different wage categories, , available in an accessible and transparent way for service providers from other Member States and posted workersvailable to the competent authorities. Terms and conditions of employment should be made available in an accessible and transparent way.
Amendment 466 #
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 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 469 #
Proposal for a directive
Article 6 – paragraph 2 a (new)
Article 6 – paragraph 2 a (new)
2a. The cooperation of the Member States may, also include the sending and service of documents of the requesting authority.
Amendment 471 #
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 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 and Directive 96/71/EC.
Amendment 476 #
Proposal for a directive
Article 6 – paragraph 4
Article 6 – paragraph 4
4. In the event of difficulty in meeting a request for information or in carrying out checks, inspections or investigations, the Member State in question shall rapidly inform the requesting Member State with a view to finding a solution. Any permanent refusal to provide the requested data constitutes an infringement to the EU law, as defined in TFEU Articles 258 and following.
Amendment 477 #
Proposal for a directive
Article 6 – paragraph 4 a (new)
Article 6 – paragraph 4 a (new)
4a. Any long-term refusal to supply the data requested shall entitle the requesting Member State to draw up a publicly accessible list of authorities that have refused to cooperate and to inform the Commission thereof. The Commission shall set up a publicly accessible list of those authorities reported to have not been willing to cooperate.
Amendment 481 #
Proposal for a directive
Article 6 – paragraph 5 – subparagraph 2
Article 6 – paragraph 5 – subparagraph 2
A specific urgency mechanism shall be used for special situations where a Member State becomes aware of particular circumstances requiring urgent action. In such circumstances, the information shall be submitted within 24 hours. This urgency mechanism shall be used in case the criteria in Article 3 lead to the suspicion that the posted worker is employed by a non-genuine company or is not a worker or is not genuinely posted. This shall not preclude the national authorities and/or inspectorates of the host country to take immediate measures preventing, investigating and sanctioning social fraud.
Amendment 489 #
Proposal for a directive
Article 6 – paragraph 7
Article 6 – paragraph 7
7. Member States shall ensure the confidentiality of the information which they exchange. Information exchanged shall be used only in respect of the matter(s) for which it was requested, in accordance with European law and national law and practices.
Amendment 492 #
Proposal for a directive
Article 6 – paragraph 9
Article 6 – paragraph 9
9. TIn accordance with the principle established in Article 4 of Directive 96/71/EC, the Commission and the competent authorities shall cooperate closely in order to examine any difficulties which might arise in the application of Article 3(10)implementation of Directive 96/71/EC.
Amendment 494 #
Proposal for a directive
Article 6 – paragraph 9 a (new)
Article 6 – paragraph 9 a (new)
9a. To facilitate mutual assistance and crossborder cooperation, the Commission shall within 2 years from entry into force of this directive present to the European Parliament and the Council an impact assessment on the feasibility of an EU- wide notification or registration system based on and compatible with existing systems in Member States.
Amendment 497 #
Proposal for a directive
Article 7 – title
Article 7 – title
Role of the Member State of establishments
Amendment 498 #
Proposal for a directive
Article 7 – paragraph -1 (new)
Article 7 – paragraph -1 (new)
-1. In accordance with Articles 4 and 5 of the Directive 96/71/EC, inspection of the working conditions to be complied with is the responsibility of the authorities of the host Member State and that Member state shall therefore continue to control, monitor and take all the necessary supervisory or enforcement measures, in accordance with its national law and/or practice and administrative procedures, with respect to workers posted to its territory. The competent authorities can, on their own initiative, undertake factual checks and are not bound by any results of checks carried out by the authorities of the Member State of establishment.
Amendment 501 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. The Member State of establishment of the service provider shall continue to control, massist the Member State to which the posting takes place to ensure compliance with the conditor and take the necessary supervisory or enforcement measures, in accordance with its national law, practice and administrative procedures, with respect to workers posted to another Member Stateions applicable under Directive 96/71/EC and this Directive by providing in due time information on whether posting undertakings fulfil the minimum criteria outlined in Art. 3 of this directive and in directive 96/71/EC. This responsibility shall not in any way reduce the possibilities of the Member State to which the posting takes place to monitor, control and take any necessary supervisory or enforcement measures in accordance with this Directive and Directive 96/71/EC.
Amendment 503 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
2. In the circumstances referred to in Article 3 (1) and (2) and Article 9(1), the Member State of establishment of the service provider shall assist the Member State to which the posting takes place to ensure compliance with the conditions applicable under Directive 96/71/EC and this Directive. The Member State of establishment of the service provider shall, on its own initiative, communicate to the Member State to which the posting takes place any relevant information as specified in Articles 3 (1) and (2) and 9(1), where the Member State of establishment of the service provider is aware of specific facts which indicate possible irregularitiThe Member State of establishment of the service provider shall immediately, on its own initiative, or on demand of the host Member State communicate to the latter any relevant information as specified in this directive or needed for compliance with Article 3 of Directive 96/71/EC. Competent authorities may request information for any overriding reason of public interest.
Amendment 506 #
Proposal for a directive
Article 7 – paragraph 3
Article 7 – paragraph 3
3. Competent authorities of the host Member State may equally ask the competent authorities of the Member State of establishment, for each instance where services are provided or for each service provider, to provide information to verify full compliance with both Directive 96/71/EC and this directive, including as to the legality of the service provider's establishment, the service provider's good conduct, and the absence of any infringement of the applicable rules. . The competent authorities of the Member State of establishment shall provide this information in accordance with Article 6.
Amendment 509 #
Proposal for a directive
Article 7 – paragraph 4
Article 7 – paragraph 4
4. The obligation laid down in paragraphs 1 and 2 shall not entail a duty on the part of the Member State of establishment to carry out factual checks and controls in the territory of the host Member State where the service is provided. Such cChecks and controls shall, if need be, be carried out by the authorities of the host Member State at the request of the competent authorities of the Member State of establishment, in accordance with Article 10 and in conformity with the powers of supervision provided for in the host Member State's national law, practice and administrative procedures and which respect Union law.
Amendment 515 #
Proposal for a directive
Article 8 – paragraph 1
Article 8 – paragraph 1
1. Member States shall, with the assistance of the Commission, take accompanying measures to develop, facilitate and promote the exchange between social partners, officials in charge of the implementation of administrative cooperation and mutual assistance, as well as monitoring the compliance with and enforcement of the applicable rulesto ensure that organisations providing information to posted workers are supported.
Amendment 519 #
Proposal for a directive
Article 8 – paragraph 1 a (new)
Article 8 – paragraph 1 a (new)
1a. The competent authorities in the member state of establishment and the host member state collect the data registered regarding the posting process and evaluate them. Member States need to regularly report to the European Commission. The European Commission compiles the information and regularly publishes reports .
Amendment 521 #
Proposal for a directive
Article 8 – paragraph 2
Article 8 – paragraph 2
2. The Commission shall assess the necessity forensure adequate financial support in order to further improve administrative cooperation and increase mutual trust through projects, including promoting exchanges of relevant officials and training, as well as developing, facilitating and promoting best practice initiatives, including those of social partners at Union level, such as the development and updating of databases or joint websites containing general or sector- specific information concerning terms and conditions of employment to be respected.
Amendment 535 #
Proposal for a directive
Article 9 – paragraph 1 – introductory part
Article 9 – paragraph 1 – introductory part
1. Member States may only impose the following administrative requirements and control measures:In order to improve the enforcement of Directive 96/71/EC, Member States, fully respecting the principle of non- discrimination, may control all elements necessary to verify compliance with Articles 3 and 5 of Directive 96/71/EC and Art. 3 of this Directive.
Amendment 538 #
Proposal for a directive
Article 9 – paragraph 1 – point a
Article 9 – paragraph 1 – point a
Amendment 554 #
Proposal for a directive
Article 9 – paragraph 1 – point b
Article 9 – paragraph 1 – point b
Amendment 566 #
Proposal for a directive
Article 9 – paragraph 1 – point c
Article 9 – paragraph 1 – point c
Amendment 580 #
Proposal for a directive
Article 9 – paragraph 1 – point d
Article 9 – paragraph 1 – point d
Amendment 602 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
Amendment 605 #
Proposal for a directive
Article 9 – paragraph 3
Article 9 – paragraph 3
Amendment 618 #
Proposal for a directive
Article 10 – title
Article 10 – title
Amendment 629 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
1. 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 inIn order to improve compliance with Art. 3 and 5 of Directive 96/71/EC and to guarantee its propereffective application and enforcement. Such inspections shall be based primarily on a risk assessment to be drawn up regularly by the competent authorities. The risk assessment shall 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 shall be taken into account., host Member States shall ensure that effective checks and monitoring mechanisms are put in place and that effective and adequate inspections are carried out on their territory. In order to make effective checks and controls possible, Member States may in particular impose the following requirements:
Amendment 630 #
Proposal for a directive
Article 10 – paragraph 1 – point a (new)
Article 10 – paragraph 1 – point a (new)
(a) an obligation for a service provider established in another Member State to make a declaration in paper or electronic form in the language of the host Member State to the responsible national competent authorities prior to the commencement of the service provision, whereby the declaration must at least provide the necessary information in order to allow factual controls at the working place. This includes in particular information that allows doubtless identification of the service provider, the designated contact person referred to under (e), the posted workers as well as information regarding the beginning and the anticipated duration of the posting, the location of their working place and the services justifying the posting; information if the posted worker has been assigned by his employer to another undertaking in the Member State of establishment in particular in the event of transfers of undertakings or mergers needs to be included. Subsequent changes concerning these data have to be declared without delay; these duties shall also apply to enterprises within the meaning of Art. 1 3c) of directive 96/71/EC.
Amendment 631 #
Proposal for a directive
Article 10 – paragraph 1 – point b (new)
Article 10 – paragraph 1 – point b (new)
(b) an obligation to keep or make available and/or retain copies in paper or electronic form of the necessary employment documents, in order to allow factual controls at the working place. This includes in particular the employment contract (or an equivalent document within 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 stating the beginning, end and duration of the daily working time, the A1 form as proof of social security coverage in the home member state, documents on health and safety at work, including the required assessment of the risks to safety and health at work in accordance with 89/391/EC, where the posted worker is a third country national, copies of the work permit and of the residence permit and proof of payment of wages or copies of equivalent documents during the period of posting in an accessible and clearly identified place in its territory, such as 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 632 #
Proposal for a directive
Article 10 – paragraph 1 – point c (new)
Article 10 – paragraph 1 – point c (new)
(c) an obligation to deliver, at the request of the authorities of the host Member State, and within a reasonable period of time after the posting, the documents referred to under (b);
Amendment 633 #
Proposal for a directive
Article 10 – paragraph 1 – point d (new)
Article 10 – paragraph 1 – point d (new)
(d) a translation of the documents referred to under (b) into the language of the host Member State;
Amendment 634 #
Proposal for a directive
Article 10 – paragraph 1 – point e (new)
Article 10 – paragraph 1 – point e (new)
(e) an obligation to designate a legal or mandated representative to negotiate and where required conclude, if necessary, on behalf of the employer with the relevant social partners in the Member State to which the posting takes place, in accordance with national legislation and practice, or with the relevant public authorities and/or who can be contacted by the competent authorities of the host Member State and who is authorized to receive service;
Amendment 635 #
Proposal for a directive
Article 10 – paragraph 1 – point f (new)
Article 10 – paragraph 1 – point f (new)
(f) other administrative requirements and control measures without which the competent bodies in the Member States cannot carry out their supervisory task effectively and where the task could not be fulfilled using less restrictive measures.
Amendment 636 #
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 disproportion shall allocate the necessary resources to ensure inspections and controls; they shall ensure that the procedures and formalities relating to the posting of workers can be completed by undertakings, at a distance and by electronic means as far as possible and that all administrative requirements are publicly available to the service providers and regularly updated.
Amendment 645 #
Proposal for a directive
Article 10 – paragraph 2 a (new)
Article 10 – paragraph 2 a (new)
2a. Within three years after the date referred to in Article 20, the necessity, appropriateness and sufficient effectivity 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 646 #
Proposal for a directive
Article 10 – paragraph 2 b (new)
Article 10 – paragraph 2 b (new)
2b. During the period of posting a worker the inspection of the working conditions lies within the responsibility of the authorities or body in charge of the host Member state. They can carry out factual checks and controls on their own initiative and are not bound to any results of checks or controls carried out by the Member State of establishment.
Amendment 647 #
Proposal for a directive
Article 10 – paragraph 2 c (new)
Article 10 – paragraph 2 c (new)
2c. Inspection methods and mechanism that aim to control the rules laid down in Directive 96/71 and to detect breaches of the posting rules or the abuse for other purposes than the free provision of services, belong to the core part of the public policy provisions, as formulated in declaration 10 of the Council. Mandatory rules of the Member States to fight against undeclared labour and to avoid social dumping, related to cross border labour recruitment, cannot be restricted solely because these rules could hinder the free provision of services.
Amendment 649 #
Proposal for a directive
Article 10 – paragraph 3 a (new)
Article 10 – paragraph 3 a (new)
3a. In accordance with the rules on administrative cooperation the Member State of establishment has an obligation to deliver required information. Continuing non-compliance with this will be treated as infringement under EU-law.
Amendment 654 #
Proposal for a directive
Article 10 – paragraph 4
Article 10 – paragraph 4
4. In Member States where, in accordance with national law and practice, the setting of the terms and conditions of employment of posted workers referred to in Article 3 of Directive 96/71/EC, and in particular the minimum rates of pay, including working time, is left to management and labour they may, at the appropriate level and subject to the conditions laid down by the Member States, also the monitor the application of the relevant terms and conditions of employment of posted workers, provided that an adequate level of protection equivalent to that resulting from Directive 96/71/EC and this Directive is guaranteed.
Amendment 657 #
Proposal for a directive
Article 10 – paragraph 5
Article 10 – paragraph 5
5. Member States where labour inspectorates have noIn competeliance with respect to the control and monitoring of the working conditions and/or terms and conditions of employment of posted workers may, by way of exception, after consulting the social partners at national level, establish or maintain arrangements guaranteeing the respect of these terms and conditions of employment, provided that the arrangements offerArt. 5 of 96/71/EC and in full respect of different labour market models, Member States are entitled to use a wide range of arrangements in line with their national law and practice to ensure compliance with 96/71/EC so as to guarantee the persons concerned an adequate degree of protection equivalent to that resulting fromas defined by Directive 96/71/EC and this Directive.
Amendment 660 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
1. For the enforcement of the obligations under Article 6 of Directive 96/71/EC and this Directive, Member States shall 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, alsobe it 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,of establishment of the undertaking or the host Member State even after the relationship in which the failure is alleged to have occurred has ended.
Amendment 670 #
Proposal for a directive
Article 11 – paragraph 3
Article 11 – paragraph 3
3. Member States shall ensure that trade unions and other third parties, such as associations, organisations and other legal entities which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive and Directive 96/71/EC are complied with, may engage, on behalf or in support of the posted workers or their employer, with their approval in any judicial or administrative proceedings provided for with the objective of implementing this Directive and/or enforcing the obligations under this Directive.
Amendment 672 #
Proposal for a directive
Article 11 – paragraph 4
Article 11 – paragraph 4
4. Paragraphs 1 and 3 shall apply without prejudice to national rules on prescription deadlines or time limits for bringing similar actions and to national rules of procedure concerning representation and defence before the courts, if they are more favourable than the stipulation in point a) and to national provisions according to which the parties to the collective agreements enforce these agreements.
Amendment 676 #
Proposal for a directive
Article 11 – paragraph 4 a (new)
Article 11 – paragraph 4 a (new)
4a. Posted workers taking judicial or administrative proceedings shall not receive any unfavourable treatment by the employer. Posted workers of third national countries shall be given the right to reside in the EU until proceedings are terminated.
Amendment 678 #
Proposal for a directive
Article 11 – paragraph 5 – subparagraph 1 – introductory part
Article 11 – paragraph 5 – subparagraph 1 – introductory part
Member States shall ensure that the necessary mechanisms are in place to ensure that posted workers are able to receiveor bodies acting on their behalf are able to claim and receive any entitlements due to him/her including but not limited to:
Amendment 685 #
Proposal for a directive
Article 11 – paragraph 5 – subparagraph 1 – point a
Article 11 – paragraph 5 – subparagraph 1 – point a
(a) any outstanding remuneration which, under the applicable terms and conditions of employment covered by Article 3 of Directive 96/71/EC, would have been dueand related benefits, social security payments etc. including interest;
Amendment 707 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 1 – introductory part
Article 12 – paragraph 1 – subparagraph 1 – introductory part
1. 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, theEach Member States shall 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 cantake the necessary measures to ensure that an undertaking which appoints another undertaking to provide services is liable, in addition to and/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 offor the obligations of that undertaking or subcontractor or hirer of labour appointed by that undertaking regarding the following:
Amendment 732 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 1 a (new)
Article 12 – paragraph 1 – subparagraph 1 a (new)
This shall not in any way preclude the application of already existing more stringent rules on national level nor the introduction of those.
Amendment 738 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 2
Article 12 – paragraph 1 – subparagraph 2
Amendment 746 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
Amendment 757 #
Proposal for a directive
Article 12 – paragraph 3
Article 12 – paragraph 3
Amendment 767 #
Proposal for a directive
Article 12 – paragraph 4
Article 12 – paragraph 4
4. Within three years after the date referred to in Article 20, the Commission shall,uncil and the European Parliament in consultoperation with the Member States andCommission and after consultation of the social partners at EU leveshall, review the application of this Article with a view to proposing, where appropriate, any necessary amendments or modifications.
Amendment 769 #
Proposal for a directive
Article 12 – paragraph 4 a (new)
Article 12 – paragraph 4 a (new)
4a. Existing systems of supply chain compliance already in place in Member States providing for better conditions and protection for workers shall in on way be restricted by the provision in this Directive.
Amendment 773 #
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 decisionsretroactive social security contributions in accordance with 987/2009/EC or notify a decision imposing a penalty or a fine or retroactive social security in accordance with 987/2009/EC.
Amendment 782 #
Proposal for a directive
Article 13 – paragraph 2 – subparagraph 2
Article 13 – paragraph 2 – subparagraph 2
Amendment 784 #
Proposal for a directive
Article 13 – paragraph 2 – subparagraph 3
Article 13 – paragraph 2 – subparagraph 3
The requesting authority may notshall have to justify makeing a request for recovery of a penalty or a fine or retroactive social security contributions or notification of a decision imposing a penalty or fine if and as long as the fine or penalty, as well the underlying claim and/or the instrument permitting its enforcement in the requesting Member State, are contested in that Member State, except if execution is possible in the requested Member State.
Amendment 787 #
Proposal for a directive
Article 13 – paragraph 2 – subparagraph 3 a (new)
Article 13 – paragraph 2 – subparagraph 3 a (new)
The requesting authority may however request the precautionary freezing and confiscation of assets to limit the risk of non-recovery before the decision is final in accordance with Directive (...) on the freezing and confiscation of proceeds of crime in the European Union. The host Member States may additionally allow for an automatic affiliation of concerned workers into the social security system of the host Member State.
Amendment 789 #
Proposal for a directive
Article 14 – paragraph 1 – subparagraph 1
Article 14 – paragraph 1 – subparagraph 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 without delay provide any information and mutual assistance which would be usefulrequested 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 793 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
2. For the purpose of recovery of a penalty or fine or retroactive social security contributions or notification of a decision imposing a penalty or fine in the requested Member State, any fine or penalty in respect of which a request for recovery or notification has been made shall be treated as if it were a fine or penalty of the requested Member State.
Amendment 796 #
Proposal for a directive
Article 14 – paragraph 3 – subparagraph 1
Article 14 – paragraph 3 – subparagraph 1
3. The requested authority shall promptly inform the requesting authority of the action taken on its request for information, notification or recovery and, more specifically, of the date on which the instrument or decision was forwarded or notified to the addressee.
Amendment 797 #
Proposal for a directive
Article 14 – paragraph 3 – subparagraph 1 a (new)
Article 14 – paragraph 3 – subparagraph 1 a (new)
The same shall apply if there are substantial obstacles to the request being successfully processed.
Amendment 798 #
Proposal for a directive
Article 14 – paragraph 3 – subparagraph 2 a (new)
Article 14 – paragraph 3 – subparagraph 2 a (new)
The provisions on recovery of fines or penalties shall also apply to fines imposed as part of enforceable statutory decisions by labour courts.
Amendment 801 #
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 matter. The requesting authority shall without delay notify the requested authority of the contestation. The requesting authority may however request the precautionary freezing and confiscation of assets to limit the risk of non-recovery before the decision is final in accordance with Directive (...) on the freezing and confiscation of proceeds of crime in the European Union".
Amendment 804 #
Proposal for a directive
Article -17 (new)
Article -17 (new)
Article -17 1. This Directive and Directive 96/71/EC are without prejudice to the Member States' right to apply or introduce legislative, regulatory or administrative provisions, which are more favourable to workers or to promote or permit collective agreements, concluded between the social partners, which are more favourable to workers. 2. The implementation of this Directive shall under no circumstances constitute sufficient grounds for justifying a reduction in the general level of protection of workers in the fields covered by this Directive and Directive 96/71/EC. This is without prejudice to the rights of Member States and/or management and labour to lay down, in the light of changing circumstances, different legislative, regulatory or contractual arrangements to those prevailing at the time of the adoption of this Directive, provided always that the minimum requirements laid down in this Directive are respected.
Amendment 813 #
Proposal for a directive
Article 18 – paragraph 1
Article 18 – paragraph 1
1. The administrative cooperation and mutual assistance between the competent authorities of the Member States provided for in Articles 6, 7, 10(3), 13, 14 and 15 shall be implemented through the Internal Market Information System (IMI), established by [reference to IMI Regulation]89 as far as possible and be accompanied by other established means of cooperation such as bilateral agreements.
Amendment 814 #
Proposal for a directive
Article 18 – paragraph 1 a (new)
Article 18 – paragraph 1 a (new)
1a. The mutual assistance between the competent authorities of the Member States provided for in the relevant article of this Directive and Directive 96/71/EC shall be implemented via the existing established means and be complemented where possible with use of the Internal Market Information System (IMI), established by [reference to IMI Regulation]
Amendment 815 #
Proposal for a directive
Article 18 – paragraph 2
Article 18 – paragraph 2
2. Member States may continueIn accordance with the principles established in Articles 4 and 5 of Directive 96/71/EC Member States are at freedom to apply bilateral arrangements concerning administrative cooperation and mutual assistance between their competent authorities as regards the application and monitoring of the terms and conditions of employment applicable to posted workers referred to in Article 3 of Directive 96/71/EC, in so far as these arrangements do not adversely affect the rights and obligations of the workers and companies concerned.enforcement of Directive 96/71/EC and this Directive
Amendment 822 #
Proposal for a directive
Article 18 – paragraph 3
Article 18 – paragraph 3
3. In the context of bilateral agreements referred to in paragraph 2, competent authorities of the Member States shall use IMI as much as possible. In any event, where a competent authority in one of the Member States concerned has used IMI, it shall be used for any follow-up required and shall take precedence over the mechanism(s) foreseen in such a bilateral agreement with respect to administrative cooperation and mutual assistance.
Amendment 826 #
Proposal for a directive
Article 19 a (new)
Article 19 a (new)
Article 19a EU wide blacklist for serious violations Within three years after the date referred to in Article 20, the Commission shall present to the Council and the European Parliament an impact assessment for the feasibility of an EU wide blacklist for natural and legal persons repeatedly seriously violating the provisions of Directive 96/71/EC and this Directive
Amendment 827 #
Proposal for a directive
Article 20 – title
Article 20 – title
Transposition and non-compliance
Amendment 828 #
Proposal for a directive
Article 20 – paragraph 2 a (new)
Article 20 – paragraph 2 a (new)
2a. Where Member States do not transpose the provisions of this directive, the Commission shall launch an ordinary infringement procedure or be tasked by the European Parliament to consider and where justified launch the infringement procedure