Areas of expertise

Posting of workers directive

A source of European Union secondary legislation aimed at regulating the conditions of employment of posted workers in the framework of the provision of services in the internal market of the European Union. Under this designation are the following three pieces of legislation.

Due to increased mobility in the EU internal market and the need for appropriate standards, Directive 96/71/EC of the European Parliament and of the Council of 16.12.1996 concerning the posting of workers in the framework of the provision of services (the so-called “Basic Directive”) was created. It has been amended twice: by EP and Council 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 (the so-called Implementation Directive) and EP and Council Directive 2018/957/EU amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services (the so-called Revision Directive).

Coordination of social security systems

Coordination of social security schemes refers to legal regulations, complementing the national law of a given EU Member State, which protect people working (on different legal bases and in different forms – not only posted workers) abroad from losing social security protection. Their purpose is to protect the interests of persons moving within the EU internal market for the purpose of employment and having periods of employment/insurance obtained in different countries.
The basic regulations in this respect include the so-called Basic Regulation (Regulation (EC) No 883/2004 of the European Parliament and of the Council on the coordination of social security systems) and the so-called Implementing Regulation (Regulation (EC) No 987/2009 of the European Parliament and of the Council laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems). These are supplemented by Regulation (EU) No 1231/2010 of the European Parliament and of the Council extending the above-mentioned regulations to nationals of third countries. One should also bear in mind the so-called bilateral coordination of social security systems – by means of bilateral agreements concluded by individual states.

Boundaries of the European freedom to provide services

Article 56 of the Treaty on the Functioning of the European Union (TFEU) prohibits restrictions on the free provision of services within the Union. However, this prohibition is not absolute – EU Member States may impose such restrictions on grounds of public policy, public security, public health and overriding reasons of public interest (also known as imperative requirements).
The rulings of the Court of Justice of the EU (CJEU) make it possible to reconstruct the limits that the Court has set for the Member States in the context of introducing restrictions, including in particular administrative procedures restricting the exercise of this freedom. The CJEU takes the view that any such procedure must be subjected to a ‘test’ built on the Court’s long-standing jurisprudence, requiring answers to a number of questions – including whether the national provision impedes service providers in other Member States from exercising their freedom to provide services, whether such provision can be justified and whether it prevents a real and sufficiently serious risk, and whether such a national measure can be considered proportionate.

European labour law

European labour law encompasses the legal norms on employment and labour relations created by the institutions of the Council of Europe and the institutions of the European Union. These rules are to be interpreted taking into account the different legal situation and practice in the various European countries (including EU and EEA Member States). They also take into account the fact that the notion of employee may, in certain situations and countries, include not only persons employed under a contract of employment.

Of particular relevance within the framework of European labour law are the secondary legislation of the European Union. They are characterised, inter alia, by features such as the autonomy of the EU legal order, the primacy of EU law over national law (involving the overruling of national regulations that are in conflict with EU law), the principle of direct application/application before national law, or the need to interpret national law in accordance with the objectives and purposes of EU law provisions.

Cross-border home care services for senior citizens

The demand for home care services in the European Union countries is enormous and institutional care is seen by many families as a last resort (‘ultima ratio’). Over the past years, the care industry has emerged from many oppositions and is growing all the time. During COVID-19, entrepreneurs employing caregivers were able to adapt quickly and families could rest assured of uninterrupted care. When faced with temporary financial problems due to the economic downturn, among other things, families gave up care services as a last resort. Similar phenomena were observed after the outbreak of war in Ukraine and during the inflationary crisis, demonstrating the universality of home care services.

A carer is not a domestic helper. He or she cannot be used to clean, look after the garden or cook and do the laundry for the client’s family. The most important task of the caregiver is to accompany the mentee during daily activities and only replace him or her when he or she cannot cope on his or her own due to a disability, deteriorating condition with age, mobility, illness or dementia.

Cross-border employment agency services

Exercising freedom to provide services in the Internal Market of the European Union may involve challenges that are not easy for individual entrepreneurs to grasp. However, neither the provisions of EU nor Polish law stand in the way of a temporary employment agency, operating in accordance with the law, having an entry in the National Register of Emploment Agencies (KRAZ) and a certificate issued by a province marshal, hiring out a worker to a company operating in the territory of another EU/EEA’s Member State.

Such an entrepreneur must comply with the rules set out, inter alia, in the Polish Act on the Employment of Temporary Workers and the Act on the Promotion of Employment and Labour Market Institutions, but also with the rules in force in the country to which the employees are posted, which results from the provisions of the Directives on posting of workers; as well as from the Regulations on the coordination of social security systems. Tax issues should also be taken into account, including, above all, the rules on the taxation of temporary workers’ salaries arising from double taxation agreements.

Cross-border construction services

According to the representative European studies, most entrepreneurs take advantage of the freedom to provide services in the EU by posting their workers precisely in the context of their construction activities. Providing services in this way, however, requires knowledge of a number of provisions that form the overall legal framework for this activity.

The most important provisions include: EU labour law (in particular the Posting of Workers Directives), labour law of the sending and host Member State (including collective agreements for the construction sector), EU social security coordination Regulations (and national regulations in this respect), as well as tax law, including national laws, as well as double taxation agreements, provisions concerning so-called “tax establishment”, VAT regulations or provisions on construction tax.

An important issue that posting entrepreneurs in this industry also have to deal with are the so-called ‘holiday registers’ in the construction industry. The best-known institution of this type is the German SOKA-BAU, but similar ones also exist in Austria, Belgium, France and Italy, among others.

Cross-border industrial services

According to EU provisions on the freedom to provide services, the very freedom covers activities that are temporary and cross-border in nature and at the same time are services normally provided for remuneration, in so far as they are not covered by the provisions relating to freedom of movement for goods, capital and persons. Pursuant to the provision of Article 57 of the Treaty on the Functioning of the European Union (TFEU), among the areas that comprise services, activities of an industrial character are listed first (Article 57(a) TFEU).

According to representative European studies, cross-border industrial services are the area in which the largest number of PD A1 certificates are issued in the so-called “new” EU Member States.