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Our law firm Navas & Cusí with offices in Madrid and Barcelona has a multidisciplinary character and with an international vocation (based in Brussels), specializes in banking, financial and commercial law.
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In order to ensure the protection of posted workers and fair labour mobility in the European single market, the European Union regulates all aspects of labour mobility, in particular working conditions, health protection and safety of workers.

The basis for labour mobility of workers within the European area lies in Articles 56 to 62 of the Treaty on the Functioning of the European Union (TFEU), which provide for the freedom to provide services within the Union. Specifically, article 57 of the TFEU specifies that the provider of a service may, for the purpose of providing that service, temporarily exercise his activity in the Member State where the service is provided, but must do so under the same conditions as those imposed by the State of destination on its own nationals.

By virtue of this, the European Commission has been developing the following directives in order to regulate this matter:

  • Directive 96/71/EC concerning the posting of workers in the framework of the provision of services.
  • Directive 2014/67/EU on ensuring compliance with Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (“IMI Regulation”).
  • Directive 2018/957/EU amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services. The provisions of this Directive will only apply from 30 July 2020.

In order to understand precisely the applicability of these directives, it must be assumed that the posting must always be temporary, i.e. companies may only post workers for a limited period of time, and an employment relationship must exist between the parties for the entire period of posting. In addition, such labour mobility must take place in one of the following contexts:

  • Where the employing undertaking has a service contract of services with a party for whom the services are intended operating in another Member State.
  • Where the employer wishes to post a worker to an establishment or to an undertaking owned by the same group in the territory of another Member State.
  • Where the employer undertaking is a temporary employment or placement agency, and plans to hire out a worker to a user undertaking established or operating in the territory of another Member State.

During the temporary posting to another EU Member State, posted workers may benefit from the employment conditions of the country of posting, if these are more advantageous than those of the country of origin. If this is not the case, they may maintain the conditions of their usual country of employment for the duration of the posting. Specifically, we refer to the main working conditions, among which we highlight:

  • All the basic elements of remuneration.
  • Allowances or reimbursement of travel, expenses to cover travel, board and lodging costs, in cases where travel is necessary.
  • Maximum work periods and minimum rest periods.
  • Health, safety and hygiene conditions at work.
  • Conditions on hiring workers, in particular through agencies providing temporary staff- The conditions for workers’ accommodation when the employer provides it to his workers.

It should also be noted that posted workers do not need to register with the social security system of the country of posting, as they remain insured in the country of habitual employment. However, it is a prerequisite that the company posting a worker to another Member State contacts the competent social security institution in the State of origin, requesting the issuance of nava, which confirms that the social security legislation of the Member State is applicable to the worker during the posting.


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