In May 2014 the European Parliament and Council passed Directive n.67/2014 with the aim to strengthen the rules contained in previous Directive n.71/1996 on cross-border postings. In these days it is being examined by the Italian Council of Ministers a special legislative decree to incorporate and unify the European Lawgiver’s directives by the end of June 2016.

It seems useful to recall the Italian legislation from article 30 c.1, D.Lgs. 276/2003: “The hypothesis of posting occurs where an employer, to suit its own interests, temporarily puts one or more workers available for another person in order to perform a given work.” So, as specified by circular 4/2004 from the Labor Ministry, the essential requirements of the job posting are: the existence of an objective interest of the posting employer and the element of temporariness in the posting of the workers.

Directive n.71/1996 was originally conceived as a sort of “core” of binding fundamental rights for the workers: maximum work periods, rest periods, minimum paid holidays, minimum rates of pay, safety and hygiene at work, protection of pregnant workers, equality between men and women and non-discrimination principles. On the other hand, however, the Court of Justice, through its judgments has often reiterated some attention more towards the protection of the economic freedom in the internal market (arts. 26 and 28 TFEU) and than to the protection of workers.

The need of a renewal in the matter has been felt since a long time and on several fronts: in other words, there’s a need of providing more effective tools to counter issues such as shell companies, simulated postings, and to provide certainty of rights for posted workers. However, if the Western European countries advocate for the modernization of the legislation, those of Eastern Europe claim it is still premature. Moreover, countries which occupy the highest number of posted workers are infact: Germany, France and Belgium[1]. It appears clear there’s a danger of social dumping and circumvention of Community Labor Law. The tool of posting if used inappropriately may become a ploy to benefit from less restrictive regulatory conditions and a lower labor cost: it is emblematic the Rüffert judgement in 2008 from European Court of Justice[2].

The issue is wide open. The European lawgiver is proceeding with great care: the need of harmonizing the various systems of the Member States is increasing. It is needed a “compromise approach” that may balance opposing interests and conflicts, not only between the various European countries, but also between economic freedom and labor law.

Muche of the debate, and tensions, is about the remuneration of posted workers and related contributions. The European Commission is trying to settle the issue by promoting the principle of “equal pay for equal work in the same place” regarding Labor discipline. For the social security rules, instead, the obligation to pay social security contributions remains for the posting corporation in the country where the company is legally established and not in the country where the work is done. This in order to not to disrupt the relationship between the posted workers and the social security system of their own country.

Moreover, another problem is the judicial interpretation (and the consequent application) of Community rules into national law. It has been up to national courts the attempt to fill the grey areas of an ever-changing matter. The Italian courts, applying their interpretative parameters (sometimes in an extensive way), has been repeatedly criticized by the European Commission.

It is now necessery to wait for the next few weeks in order to know about how the Italian lawgiver intends to deem and transpose the new EU directive into the national Decree.