Point 2.4 of the Practical Guide on Posting recently released by the European Commission, contains a non-exhaustive enumeration of activities fail under the “business trip” category, and which are not covered by the Posting of Workers Directive and by Directive 2014/67/EU : “This is the case, for example, of workers on business trips (when no service is provided), attending conferences, meetings, fairs, following training etc”.
Such situations would rule out any obligation related to the posting of workers in the framework of the provision of services, such as but not limited to complying with the nucleus of mandatory rules for minimum protection to be observed in the host country, and the obligation to make a declaration of posting and to keep or make available and/or retain certain documents.
The following questions must be addressed in context:
– when no service is provided, in the sense of Articles 56 and 57TFEU
– whether or not, such activities fail within the scope of Directive 96/71/EC
– the legal ground for eventual exemptions from the applicability of Directive 96/71/EC and its enforcing Directive 2014/67/EU
It must be distinguished between (e.g.) on the one hand, attending conferences, fairs and following trainings on the individual’s own initiative, and on the other hand, “a journey made somewhere and back again for business purposes in one’s working capacity” (Collins Dictionary). The former situation is equivalent to tourism characteristic activities (unless about self-employed workers), and although covered by Article 56TFEU (see C-186/87 Cowan v Trésor Public, [1989], paragraph 15), does not fail within the scope of Directive 96/71/EC.
Indeed, the provisions of Directive 96/71/EC, do not automatically apply for all and any transnational provision of services. Inter alia, self-employment activities, certain activities in the transport sector, and certain situations of highly mobile workers (see inter alia Opinion in Michael Dobersberger, C-16/18 paragraph 65), do not fail within the scope of Directive 96/71/EC.
In regard to other situations, the first ratio decidenti is the “working capacity”, and the second, “the context of cross-border provision of services”.
The activities mentioned in point 2.4, fail within the scope of Article 57TFEU : “Services shall be considered to be ‘services’ within the meaning of the Treaties where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons”.
Organisation of professional training courses, if “provided to nationals of a Member State on the territory of another Member State, irrespective of the place of establishment of the provider or recipient of services”, fails within the scope of Article 56TFEU (see C-55/98 Vestergaard [1999], paragraph 18).
Organisation of trade fairs,” when is carried on by a national of one Member State who moves to another Member State in order to carry on that activity on a temporary basis”, fails within the scope of Article 56TFEU (see to that context C-439/99, Commission v Italy [2002], paragraph 21).
It is hard to exclude “business meetings” from the scope of Article 57TFEU.Such an activity is of economic character, and it is not carried out “for nothing”. Invoking an eventual non-lucrative character of certain business meetings, would not rule out its economic character (see to that context, C-281/06 Jundt [2007] paragraphs 32 and 33).
The specificity of certain activities referred to in point 2.4, is that the worker crosses the border, on behalf of his employer, in view of receiving a service (to attend conferences, fairs, follow trainings). It is settled ECJ case-law, that such situations fail within the scope of Article 56TFEU (see Joined Cases C-286/82 and C-26/83 Luisi and Carbone [1984], paragraph 10).
According to Article 2.1 Directive 96/71/EC, posted worker “means a worker who, for a limited period, carries out his work in the territory of a Member State other than the State in which he normally works”.
The Commission’s services report on the implementation of Directive 96/71/EC, underlines that “if the definition of a posted worker set out in the Directive were to diverge from the general definition of the provision of services set out in the Treaty, this would not only make the legal situation more complicated, but would be likely to reduce the level of protection provided to those working on a temporary basis in another Member State” (COM(2006)159 final).
In relation to training activities, in Edgard Jan De Clercq and Others, the ECJ upheld : “it must be stated at the outset that, although, in its question, the referring court refers to both workers and trainees posted to Belgian territory, the national provisions applicable to them are, mutatis mutandis, identical. Therefore, the reasoning which follows with regard to posted workers also applies to trainees, since their training period is completed under the conditions of a genuine and effective activity as an employee” (C-315/13 [2014], paragraph 36).
As a matter of principle, business meetings fail within the scope of Directive 96/71/EC. Employees carry out their work, in the territory of a Member State other than the State in which they normally work, in the context of cross-border provision of services. The concept is often misunderstood. Business meetings take the form of business trips, that sometimes-last months, merely because under certain corporate international mobility policies, a deployment below three months, is not considered an assignment.
In Danieli & C. Officine Meccaniche SpA, AG Wahl has underlined that : “the directive applies to a wide array of situations in which workers are transferred from one Member State to another in the context of cross-border provision of services” (Opinion,C-18/17 [2018], paragraph 40).
In addition, it must be assessed whether the conditions of a genuine and effective activity as an employee are met (Edgard Jan De Clercq and Others, C-315/13 [2014], paragraph 36).
Pursuant to Recital (5), Directive 96/71/EC, “any such promotion of the transnational provision of services requires a climate of fair competition and measures guaranteeing respect for the rights of workers”.
Where in the context of activities on a small scale, the climate of fair competition is not brought into discussion, the respect for the rights of workers cannot be disregarded.
Having regard to the above considerations, as a matter of principle, such activities fail under the scope of Directive 96/71/EC.
“However, there may be circumstances in which the application of such rules would be neither necessary nor proportionate to the objective pursued, namely the protection of the workers concerned” (André Mazzoleni, C-165/98 [2001], paragraph 30).
The legal ground for eventual exemptions from the applicability of Directive 96/71/EC and its enforcing Directive 2014/67/EU
The only mandatory exemption under Directive 96/71/EC, is laid down in Article 3.2: initial assembly and/or first installation of goods, if the posting period does not exceed eight days, under the conditions laid down in the said article.
Pursuant to Articles 3.3 to 3.5 Directive 96/71/EC, Member States’ national legislation may provide for certain exemptions, taking in consideration the length of the posting and the amount of work to be done.
Pursuant to Article 9(1) Directive 2014/67/EU, Member States may impose administrative requirements and control measures, provided that these are justified and proportionate in accordance with Union law (see to that context Maksimovic and Others ,Joined Cases C-64/18, C-140/18, C-146/18 and C-148/18, and the request for preliminary ruling in QM/PL/OK , Joined Cases C-492/19, C-493/19 and C-494/19).
National legislations transposing Directive 96/71/EC and its enforcing Directive 2014/67EU, represent the legal ground for eventual exemptions.
We strongly advise to read point 2.4, in conjunction with the national legislations of the Member States, and where relevant, the ECJ case-law.
Where the national legislation is silent or unclear, it is advisable to address the competent labour authority, or merely to presume that no exemptions are provided for.
Author: Tanel Feldman, Immigration Law AssociatesPoint 2.4 of the Practical Guide on Posting recently released by the European Commission, contains a non-exhaustive enumeration of activities fail under the “business trip” category.
