Posting of Workers Directive-the Council of State opposes a non-compliant transposition

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On 17 July, the Council of State of Luxembourg delivered its opinion on the draft bill transposing Directive 2018/957/EU into the national legislation.

Concept of remuneration

The Council of State underlines the ambiguous definition of the concept of remuneration “minimum social wage determined by law or by a collective agreement___” (the minimum social wage is determined exclusively by law).

In the same context, the Council of State observes that the definition of remuneration excludes constituent elements rendered mandatory by collective agreements, and consequently opposes an incomplete transposition of the amended Posting of Workers Directive.

Extension of the initial period of 12 months to 18 months

The Council of State observes that the draft bill provides for a “demand” and not a “reasoned notification” and imposes an additional condition: the performance of the service must justify the extension. The Council of State opposes a non-compliant transposition of the said directive.

Expenditure actually incurred on account of the posting

The Council of State underlines a possible confusion between the expenditure actually incurred on account of the posting, and the allowances or reimbursement of expenditure to cover travel, board and lodging expenses for workers away from home for professional reasons (reference to the latter is made in the article provides for the former).

Interestingly, the Council of State disregards the wording: “the undertaking, which within the meaning of Article L. 141-1 posts employees to the territory of the Grand Duchy of Luxembourg, reimburses these expenses to the seconded employees concerned” (i.e. expenditure actually incurred on account of the posting). There is no reference to the national law and/or practice applicable to the employment relationship. The subsequent paragraph contains reference to the law applicable to the employment relationship, however, prima facie, situations in which the latter legislation does not provide for such reimbursements, and by written agreement between the parties expenditure actually incurred is not reimbursed, are excluded.

The principle of “non bis in idem”

The Council of State observes cumulation of administrative and criminal sanctions, in breach of the European Court of Human Rights’ case-law interpreting Article 4 of Protocol No. 7 to the European Convention on Human Rights.

Conclusion

Assessing the preparatory works of transposition laws across the EU, at first glance, certain Member States override the objectives set out in the Directive 2018/957/EU, and give little importance to the Practical Guide released by the EU Commission. Before the EU Commission will assess national rules transposing the said directive, and if necessary, initiate infringement procedures, employers posting workers must comply with the national law and practice of the Member State to whose territory the worker is posted.

Tanel Feldman

Senior Partner , Immigration Law Associates

Immigration Law Associates provides in-depth advice on rights and obligations triggered by the cross-border element of a given legal situation. Our know-how is built on an extensive experience in EU law and is supported by a network of partners across the EU. Social security coordination : • Autonomous application of the social security coordination regulations and ECJ case-law, to any situation involves a cross-border element EU Company law : • Establishment -permanent activities • Establishment -self-employment activities International Private Law : • Law applicable to the employment relationship Labour and employment law : • Freedom of movement of workers-equal treatment, access to social benefits • Employment contracts and termination of employment • Working conditions • Employee benefits • Transfer of undertakings • Authorisations of work for third-country nationals Special regimes : • Posted workers • Frontier workers • Highly mobile workers • Employment of record • Intra-EU mobility of third-country nationals

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