The EU Commission has sent letters of formal notice to 24 Member States, for non-conformity of national legislation with the Directive 2014/67/EU on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services.

Only three Member States are not concerned by the infringement procedure: Spain, Portugal, and Sweden.

The Member States concerned by the infringement procedure have not correctly transposed some or all (!) the provisions of Directive 2014/67/EU.

Directive 2014/67/EU was due to be transposed by Member States by 18 June 2016.

In its report of 25 September 2019 on the application and implementation of Directive 2014/67, the EU Commission upheld its intention to “continue working with the Member States to ensure that the Directive continues to be correctly transposed and applied, in particular as regards the administrative requirements and control measures and subcontracting liability”.

The report underlines certain incorrect transpositions and applications of the said directive.

Certain ECJ rulings on the incorrect application of Directive 2014/67/EU are disregarded by the Member State concerned and gave rise to additional questions referred to the ECJ by an administrative court of the same Member State.

Pursuant to Preamble (4), Directive 2018/957/EU, “To ensure that the rules are applied uniformly and to bring about genuine social convergence, alongside the revision of Directive 96/71/EC, priority should be given to the implementation and enforcement of Directive 2014/67/EU of the European Parliament and of the Council”.

The letter of formal notice represents the second stage out of a three administrative stage infringement procedure under Art 258TFEU. The initial stage (informal discussions) allows the EU Commission to determine if there is a breach, and whether there is sufficient evidence. Member States are under an obligation to co-operate.

After receiving the formal notice, the Member States concerned have two months to take the necessary measures, otherwise the Commission may decide to send reasoned opinions (the third stage of the administrative procedure).

It is likely that most of the procedures will be settled before being referred to the ECJ (judicial stage).

The aim of an infringement procedure is to grant compliance, and consequently market integration (EU policy objective).

24 infringement procedures initiated for non-conformity of national legislations with the Directive 2014/67/EU on the enforcement of Directive 96/71/EC, might lead to the conclusion that the concepts of “posting of workers” and “market integration” are mutually exclusive.

In the same context, the amended Posting of Workers Directive (Directive 96/71/EC as amended by Directive 2018/957/EU) reflects the intention to review the concept of posting of workers in the light of “current circumstances”. The question is to what extent the amended directive is genuinely enforceable.