30 Amendments of Piotr BORYS related to 2012/0061(COD)
Amendment 37 #
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 and more uniform criteria, facilitating a common interpretation, should be introduced at Union level.
Amendment 39 #
Proposal for a directive
Recital 6 a (new)
Recital 6 a (new)
(6a) Competent authorities should make an overall assessment of all factual elements in order to determine whether the worker is genuinely posted. If the proof cannot be produced, Member States involved should collaborate closely and without delay in order to choose which law is applicable to the employment contract, basing their decision on the Rome I Regulation.
Amendment 42 #
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 requirementsFor the purpose of legal clarity, possible control measures and requirements should be uniform at the Union level and 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 47 #
Proposal for a directive
Recital 24
Recital 24
(24) In view of the prevalence of subcontracting in the construction sector, and in order to protect posted workers’ rights, it is nrecessary to ensureommended that in such 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 shallmay 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 authorities.
Amendment 54 #
Proposal for a directive
Recital 26
Recital 26
Amendment 58 #
Proposal for a directive
Article 2 – paragraph 1 – point a
Article 2 – paragraph 1 – point a
(a) ‘competent authority’ means anpublic authorityies designated by a Member State to perform functions under this Directive;
Amendment 60 #
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 61 #
Proposal for a directive
Article 2 – paragraph 1 – point c
Article 2 – paragraph 1 – point c
(c) ‘requested authority’ means the competent authority of a Member State to which a request for assistance, information, notification or recovery is made, as referred to in Chapter VI.
Amendment 68 #
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 activitiosts workers to the territory of another Member State in the framework of transnational provision of services. Such elements may only include:
Amendment 70 #
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 from which they are posted
Amendment 71 #
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, which in a wider time-frame assessment is not limited to purely internal management and/or administrative staff,activities
Amendment 73 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point e
Article 3 – paragraph 1 – subparagraph 1 – point e
Amendment 76 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 2 – introductory part
Article 3 – paragraph 2 – subparagraph 2 – introductory part
Such elements may only include :
Amendment 82 #
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 without delay 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 84 #
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. In the event of any persisting problems in the exchange of information, the Commission should intervene in order to assist Member States in solving the problem.
Amendment 89 #
Proposal for a directive
Article 6 – paragraph 5 – subparagraph 1
Article 6 – paragraph 5 – subparagraph 1
5. Member States shall supply the information requested by other Member States or the Commission by electronic means as soon as possible and at the latest within 2 weeks from the reception of a request or within one month if the answer requires an on-the-spot inspection.
Amendment 92 #
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 hourtwo working days.
Amendment 93 #
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 and in accordance with data protection rules.
Amendment 100 #
Proposal for a directive
Article 9 – paragraph 1 – point c
Article 9 – paragraph 1 – point c
(c) athe possibility to request the translation of the documents referred to under (b), may be justified provided these documents are not excessively long and/or standardised forms are generally used for suchthese documents;
Amendment 101 #
Proposal for a directive
Article 9 – paragraph 1 – point d
Article 9 – paragraph 1 – point d
(d) an obligation tothe possibility to request the designateion of a contact person to negotiate, if necessary, on behalf of the employer with the relevant social partners in the host Member State to which the posting takes place, in accordance with national legislation and practice, durwithing the period in which the services are provided.
Amendment 110 #
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, the 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, thatare encouraged to introduce a system in which 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 111 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
2. Member States shallmay provide that a contractor who has undertaken due diligence shall not be liable in accordance with paragraph 1. Such systems, if introduced, 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 113 #
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 ArticleChapter shall apply to the cross-border enforcement of financial administrative fines and penalties imposedpenalties and/or fines imposed on a service provider established in a Member State, for failure to comply with the applicable rules ion a Member State on a service provider establishedposting of workers in another Member State.
Amendment 115 #
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 124 #
Proposal for a directive
Article 14 a (new)
Article 14 a (new)
Article 14a Grounds for refusal The competent authorities in the requested Member State may refuse a request for recovery or notification of a decision if the request is incomplete or manifestly does not correspond to the underlying decision or the costs required to recover the penalty/fine are disproportionate in relation to the amount to be recovered.
Amendment 126 #
Proposal for a directive
Article 16 – paragraph 1 – subparagraph 1
Article 16 – paragraph 1 – subparagraph 1
1. The requested authority shall remit to the requesting authority the amounts recovered with respect to the fines or penaltipenalties and/or fines referred to in this Chapter shall remain at the requested authority.
Amendment 128 #
Proposal for a directive
Article 16 – paragraph 1 – subparagraph 2
Article 16 – paragraph 1 – subparagraph 2
Amendment 130 #
Proposal for a directive
Article 16 – paragraph 2 – subparagraph 2
Article 16 – paragraph 2 – subparagraph 2
Amendment 131 #
Proposal for a directive
Article 16 – paragraph 3
Article 16 – paragraph 3
Amendment 133 #
Proposal for a directive
Article 16 a (new)
Article 16 a (new)
Article 16a Review clause Within three years after the date referred to in Article 20, the Commission shall, in consultation with the Member States, review the application of this Chapter in particular in light of the experiences with and effectiveness of the system of cross- border enforcement of administrative penalties and/or fines with a view to proposing, where appropriate, any necessary amendments or modifications.