Under the terms of Directive 96/71/EC on the posting of workers, the employment law of the Member State in which an undertaking is established continues to apply for the period in which cross-border workers are being posted by it to another Member State. Given that this is an exception to the rules applicable regarding the free movement of workers, those concerned must apply in advance for an A1 certificate to be shown at the border crossing as evidence that the employment law of one or other country applies for the period of the posting. Even a period of hours spent in another EU Member State is sufficient to constitute a posting within the meaning of the directive.
In practice, however, there are wide differences between the Member States regarding the extent to which it is implemented. Members of the business and scientific community in varying constituencies are complaining that they and their employees are being systematically required to produce their A1 certificates for examination by excessively zealous airport customs officials, even for brief cross-border trips. This is significantly hampering the movement of workers between the Member States, creating avoidable additional bureaucracy and undermining the internal market.
On 07 October 2020, German Member of the European Parliament (MEP) Sven Simon of the Group of the European People’s Party tabled a written parliamentary question to the European Commission. MEP Simon enquired “what action is the Commission taking to ensure that the directive is being interpreted by the Member States in such a way as to preserve the unity of the internal market and avoid creating excessive bureaucratic obstacles for members of the business and scientific community?”
On 12 November, Jobs and Social Rights Commissioner Nicolas Schmit responded on behalf of the European Commission. In his answer, he reported that “Directive 96/71/EC, as amended by Directive 2018/957, concerns the posting of workers” and that “regulation 883/2004 and implementing Regulation 987/2009 determine the social security coordination rules”. He added that “under Article 15 of Regulation (EC) No 987/2009, in case of work carried out in another Member State, the employer or the self-employed person concerned is under the obligation to notify the competent (home) Member State, whenever possible in advance, and to obtain a Portable Document A1 (PDA1)”.
Commissioner Schmit clarified that “the purpose of the PDA1 certificate is to show that its holder is already affiliated to a social security scheme of a Member State” and that “the PDA1 is issued based on the rules on social security coordination and it has, therefore, no direct link to the Enforcement Directive on Posting of Workers, as seemed to be implied in the question”.
Commissioner Schmit expressed that “it is of the competence of the national authorities to implement the rules of the regulation” and that “it is therefore not up to the Commission to react on the different procedures in different Member States”.
Finally, he declared that “in 2016, the Commission launched a proposal to revise the regulations on social security coordination” and that “the negotiations are still ongoing, including in relation to the prior notification issues”.
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