Posting of workers in the framework of the provision of services: revision of the Directive of 16 December 1996

A certain number of European countries, including France, wished to see the European Directive of 16 December 1996 on the posting of workers amended to adapt to the realities of the European job market. This has now been accomplished by way of a legislative process initiated in 2016. European members of parliament voted in favour of revising this directive on 29 May of this year.

Please recall that the posting of workers within the EU is governed by two directives (Directive 96/71/EC of 16 December 1996 and Directive 2014/67/EU of 15 May 2014).

The principal revisions of the directive, aimed at fighting posting fraud and illegal work, are as follows:

Extension of the labour law rules applicable to posted employees

Posted employees currently enjoy, in certain specific matters, a set of rights in force in the country where they perform their services (known as the “hard core”). The draft directive would supplement the content of this “hard core”, in particular by:

  • Providing that the generally applicable collective agreements concerning the matters constituting the “hard core” apply to posted employees, irrespective of the sector of activity in which they perform their services. Please note that France already applies these provisions to all sectors of activity by virtue of this capacity granted by the directive
  • Adding the following themes to the matters covered by the “hard core”: the conditions of accommodation of the workers and the allowances or the reimbursement of expenses for travel, accommodation or food for workers kept away from their residence for professional reasons
  • Changing the notion of remuneration paid to posted employees: the companies posting employees would not only be required to pay their employees the minimum wage applicable in the host country (as is currently the case), but also all components of remuneration the payment of which would be made mandatory by all of the provisions and collective agreements applicable to such employees taken together

Term of posting and applicable law

  • While posting is required to be temporary, no maximum term is currently provided for under French labour law (as opposed to under existing legislation governing matters of social security)
  • The revision of the directive would, in a certain sense, impose a maximum term of posting by specifying that, where the effective length of posting is in excess of 12 months, all of the conditions of work and employment in force in the host country would apply to the posted employees “on grounds of equal treatment” and subject to certain conditions, by way of application of the totality of the aforementioned provisions and collective agreements. This term could be extended to 18 months by the host country on the basis of justified notice served by employer posting these employees

This draft directive should be definitively adopted by the Council on 21 June, before being published in the Official Journal of the European Union. Member States will have two years to transpose the provisions of this directive into their respective national laws.

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Eric Guillemet

Eric Guillemet is a lawyer and partner in labor law. For over 16 years, he has been assisting companies with their development and their day-to-day management to help them reach […]