To prevent and penalise the circumvention of rules on posting of workers in the EU, the European Commission wishes to make the principle of joint and several liability' of main contractors and intermediary subcontractors the general rule. This principle is already applied by eight member states plus Norway. The idea is to tackle abuse in cross-border subcontracting that leads to circumvention of the rules. The principle is introduced in a draft directive (seen by Europolitics social) drawn up by the staff of Commissioner Laszlo Andor (employment and social affairs) to clarify implementation of Directive 96/71/EC on the posting of workers.

A posted worker' means any worker who, for a limited period and in the framework of providing services, carries out his work in the territory of a member state other than the state in which he normally works. This phenomenon, which concerns a million European citizens a year, is governed by Directive 96/71/EC, which sets a number of minimum working and employment conditions.

Given certain identified weaknesses, the Commission agreed in the Single Market Act to revise these rules adopted 16 years ago. "Our task is to provide more advice on a number of problems that have caused difficulties and to improve the text's legal certainty so that it will be applied and implemented uniformly across member states," said Andor, on 28 June 2011, at a conference on fundamental social rights and the posting of workers in the single market.

The draft directive addresses this dual objective by proposing tangible measures to clear up certain ambiguities, prevent abuse and make it easier to transfer information. It is being analysed by the European Commission's staff along with a draft regulation clarifying exercise of the right to collective action in the context of economic freedoms in the single market (see separate article).


The most important change made to the 1996 rules concerns joint and several liability for the entire subcontracting chain.

The text obliges member states to ensure that the contractor, of which the employer is a direct subcontractor, can be considered liable for non-payment of outstanding net minimum rates of pay concerned and/or contributions due to common funds or to social partner institutions and for back payments of outstanding remuneration or any unduly withheld taxes or social security contributions.

Likewise, the main contractor and all intermediary subcontractors may be held...

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