The secondment of workers within the EU is a phenomenon that is increasingly apparent in today's legal world, given that between 2010 and 2014 the number of workers on secondment within the EU increased by approximately 45%.

The freedom to provide services, as recognised in Article 56 of the Treaty on the Functioning of the European Union (TFEU), is, together with the free movement of goods, individuals and capital, one of the four fundamental freedoms that make up the European Single Market. The freedom to provide services is the very framework in which we should place the cross-border phenomenon of the temporary secondment of workers in the European Union. Nevertheless, this issue has not been immune from problems throughout the creation and development of the single market, since workers placed on secondment as part of the supply of services continue to adhere to, in principle, their original working conditions.

In contrast to the free movement of workers (Article 45 TFEU), which is governed by the principle of non-discrimination on the grounds of nationality between workers of the Member States, in the event of the temporary secondment of workers the working conditions of the country from where they have been transferred – save for certain minor changes – are still applicable. The consequence of this is that conflicts arise due to the great disparity that exists between the working conditions of the various Member States.

This situation obviously creates conflicts between seconded workers and those of the host State, as well as between the very companies that operate in the single market.

As a result of the problems described and of the concerns expressed by States with better working conditions, Directive 96/71/EC concerning the secondment of workers in the framework of the provision of services, more widely known as the Directive on seconded workers, was approved on 16 December 1996. The aim of Directive 96/71/EC was, regardless of the legislation applicable to the employment relationship, to guarantee seconded workers a set of minimum conditions in accordance with the standards of the Member State in which the work is carried out, i.e. the State to which they have been seconded, and in matters of, for example, working hours and breaks, holiday periods, minimum rates of pay or standards of health, safety and hygiene at work, inter alia (Article 3(1)).

However, one of the main problems when it came to applying the regulations concerning seconded workers was the Directive's lack of effectiveness and the lack of mechanisms in order to monitor compliance with the regulations. Directive 2014/67/EU was rightly approved with the intention of ensuring compliance with, and the practical effectiveness of, Directive 96/71/EC, by introducing new provisions in the regulations concerning seconded workers and, in particular, concerning the control mechanisms to ensure compliance with the regulations in this area.

As can be seen from the interpretation of Community case law made in Directive 96/71/EC, there exists merely a core provision of protection. Beyond this no improvements are allowed, not even to place national and seconded workers on an equal footing. An expansive interpretation of case law, not of the rights of workers but rather of the freedoms of movement and establishment, has allowed certain operators, de facto, to use different national working conditions in order to compete.

It is precisely as a result of this issue that the European Commission presented a review of the regulations on the secondment of workers, based on the commitment of its members to promote the principle of equal pay for the same job in the same place.

Three areas came under review: the rules concerning workers supplied by temporary employment agencies, long-term secondments and the wages of seconded workers. With regard to the latter, it was suggested that seconded workers should benefit from the same pay and employment regulations as local workers, even when they have been subcontracted.

One important consideration is that the reform was intended to include in the concept of remuneration not just the minimum wage but also benefits and allowances, where applicable,.

Although Directive 96/71/EC established that workers seconded to another Member State are still employed by the company which has placed them on secondment, and are therefore subject to the latter's employment regulations, a series of minimum rights had to be applied in accordance with the regulations of the host State. Among these, the Directive established that any minimum wage in the host State had to be respected, though this did not prevent companies that place their workers elsewhere from establishing more favourable conditions via their payslips.

The European Commission's aim of reinforcing Directive 96/71/EC concerning issues regarding wages meant preventing wage discrepancies that were appearing between local workers and seconded workers providing the same services, especially where the employees came from Member States whose wage levels were particularly high.

For this reason, the Commission's intention as regards this single rate of pay was to improve the performance of the single market, thereby preventing the social and economic inequalities that were being found in host countries. This disparity in terms of pay could be as high as 50% in some sectors.

To do so, the new Directive, the term "minimum rate of pay" which appeared in Directive 96/71/EC was replaced by the term "remuneration". This decision was made in circumstances in which the globalisation of markets and lack of jobs made expatriation not an option but a necessity in some cases.

What problems will changing this term cause for future secondments?

Some countries such as Poland, Hungary, Lithuania and Latvia have pointed out the problems with the concept of identical pay for the same work performed in the same place. According to what these countries, and others, have stated, this concept of a single rate of pay will inevitably affect the competitive advantage that secondments in Europe afford companies and workers. Furthermore, they have shown their concern that the secondment of workers and the application of the levels of renumeration of the host State might affect future workers' benefits and their Social Security contributions.

However, this insertion by the Commission has been well received by other countries such as France, Germany, Belgium and Luxembourg which will obviously benefit from this reform of the Directive, taking into account the conditions concerning work and pay laid down in their employment laws.

In light of this, we wonder to what extent the European Union can influence the free will and autonomy of the parties when it comes to negotiating a secondment by a private company of one of its employees. For the seconded worker, secondment involves an complete change both in the supply of their services and also in their private life, which must necessarily be accompanied by an attractive pay package that does not reduce the rights they would enjoy in their country of origin. A strict application of Directive 2014/67/EU could disincentivise workers and cause difficulties for companies when it comes to workers accepting the secondment and working in the State to which they are to be seconded on the best terms (available).

The deadline for transposing Directive 2014/67/EU is 18 June 2016 which will, undoubtedly, eliminate the inequalities that the Commission has found, but it will certainly affect current business practices in an ever more globalised and highly skilled market.

The authors are Associates in the Employment Department of Roca Junyent

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