Construction sector: Issues in information provision, enforcement of labour mobility law, social security coordination regulations, and cooperation between Member States

Construction sector:

Issues in information

provision, enforcement

of labour mobility

law, social security

coordination regulations,

and cooperation between

Member States

2023 | ELA Strategic Analysis

#EULabourAuthority

Construction

sector: Issues in

information provision,

enforcement of labour

mobility law, social

security coordination

regulations, and

cooperation between

Member States

2023 | ELA Strategic Analysis

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Contents

List of abbreviations ....................................................................................................................................................................6

Abstract ............................................................................................................................................................................................7

Executive summary .....................................................................................................................................................................8

1. Introduction ..............................................................................................................................................................................9

2. The construction sector: Key characteristics and challenges .............................................................................. 11

2.1 The construction sector in the EU economy .................................................................................................... 12

2.2 Subcontracting and the role of temporary work agencies ......................................................................... 13

2.3 Posted workers and key mobility patterns ....................................................................................................... 15

2.3.1 Data from portable documents A1 ........................................................................................................ 16

2.3.2 Data from prior declaration tools and micro-data ............................................................................ 19

2.3.2.1 Austria .............................................................................................................................................. 20

2.3.2.2 Belgium ........................................................................................................................................... 20

2.3.2.3 France .............................................................................................................................................. 21

2.3.2.4 Germany ......................................................................................................................................... 21

2.3.2.5 Italy ................................................................................................................................................... 21

2.3.2.6 Luxembourg .................................................................................................................................. 22

2.3.2.7 The Netherlands ........................................................................................................................... 22

2.3.2.8 Poland .............................................................................................................................................. 23

2.3.2.9 Slovenia ........................................................................................................................................... 23

2.3.2.10 Spain ................................................................................................................................................. 23

2.3.2.11 Other Member States ................................................................................................................. 24

2.4 Intra-EU posting of TCNs in the construction sector ..................................................................................... 24

2.5 Abusive practices in the context of the posting of workers in the construction sector ................... 25

Letterbox companies in sending countries ...................................................................................................... 25

Fake posting by means of permanent/rotating posting ............................................................................. 25

Bogus self-employment ........................................................................................................................................... 26

Overtime and underpayment as non-respect of working conditions .................................................... 26

Fraudulent PD A1 form ............................................................................................................................................. 26

Illegal employment of TCNs or fraudulent posting of TCNs ....................................................................... 26

3. Information needs of workers and employers and measures to address them ........................................... 28

3.1 Legal framework on information and relevant tools and actors .............................................................. 29

3.2 Information needs ...................................................................................................................................................... 34

3.3 Suggested way forward to better inform posted workers and their employers in the

construction sector .................................................................................................................................................... 35

4. Preventive measures .......................................................................................................................................................... 38

4.1 The role of social ID cards in the EU construction sector ............................................................................. 39

4.2 Subcontracting chain liability schemes in the EU construction sector .................................................. 41

4.3 Limits on subcontracting to improve the implementation of liability schemes ................................. 45

4.4 The role of public procurement in the compliance with EU labour mobility rules applying

to posted workers in the construction sector .................................................................................................. 45

4.5 Portable Documents A1: the administrative tie of the EU social security coordination................... 47

4.5.1 Legal framework ........................................................................................................................................... 47

4.5.2 Gaps and criticalities relating to portable documents A1 ............................................................. 48

4.6 Prior declaration tools .............................................................................................................................................. 49

5. Enforcing EU labour mobility and social security rules in the EU construction sector .............................. 52

5.1 Challenges in the enforcement of EU labour mobility and social security rules in the EU

construction sector .................................................................................................................................................... 53

5.2 Sanctioning mechanisms ........................................................................................................................................ 56

5.3 Resources allocated to labour inspectors and inspection tools ................................................................ 57

5.4 Cross-border cooperation between social security and enforcement institutions ........................... 58

5.5 The role of trade unions in supporting the enforcement of posted workers’ rights in the

construction sector .................................................................................................................................................... 60

5.6 Conclusions on enforcement ................................................................................................................................. 62

6. Cross-border matching initiatives to address labour market imbalances in the EU construction

sector........................................................................................................................................................................................ 63

6.1 Introduction and context ........................................................................................................................................ 63

6.2 Trends and state of the art ...................................................................................................................................... 65

6.3 The impact of Russia’s war of aggression against Ukraine on labour market imbalances in

the EU construction sector ...................................................................................................................................... 66

6.4 Cross-border matching/recruitment initiatives to address labour market imbalances in the

EU construction sector ............................................................................................................................................. 67

6.5 Conclusions .................................................................................................................................................................. 71

7. Operational conclusions ................................................................................................................................................... 72

1. Information provision ............................................................................................................................................... 72

2. Concerted and joint inspections ........................................................................................................................... 72

3. Cooperation between Member States ............................................................................................................... 73

4. Data collection ............................................................................................................................................................ 73

Bibliography ................................................................................................................................................................................ 74

EU documents ...................................................................................................................................................................... 78

Annex1– Interviews ................................................................................................................................................................ 79

Annex2– Case study interviews ......................................................................................................................................... 81

Annex3– Single ocial national websites ..................................................................................................................... 83

Annex4– Bilateral agreements between Poland and other Member States ..................................................... 84

List of tables

Table1: Case studies overview ............................................................................................................................................ 10

Table2: Roles and responsibilities of the contracting business and temporary work agency ..................... 14

Table3: Main receiving/sending Member States of postings in the construction sector, based on

PDs A1 issued under Article 12, 2021. .......................................................................................................................... 17

Table4: Member States where construction is the primary sector for incoming/outgoing posted

workers, 2021 ........................................................................................................................................................................ 18

Table5: Main corridors of postings in the construction sector between Member States, 2021 .................. 18

Table6: Posted workers in the construction sector as a share of total employment according to

Art. 12 PDs A1 data, 2021 .................................................................................................................................................. 19

Table7: Typology of abusive practices in the construction sector ......................................................................... 27

Table8: Overview of the dierent social ID cards in the 17 Member States covered in this study ............. 39

Table9: National measures on subcontracting liability in the construction sector in force in the17

Member States covered under this study according to the Commission Communication on the

implementation of Directive 2014/67/EU .................................................................................................................. 43

Table10: Typology of measures and examples of countries .................................................................................... 68

List of boxes

Box1: Case study on construction companies’ initiatives to inform posted workers in the

construction sector in sending and receiving Member States ........................................................................... 29

Box2: Case study on the role of social partners in provision of information to workers and employers . 32

Box3: Case study on employer practices in accessing information ....................................................................... 36

Box4: Case study on the role of public procurement in compliance with EU labour mobility rules

applying to posted workers in the construction sector. ...................................................................................... 46

Box5: Case study on labour inspectorates’ access to databases ............................................................................. 50

Box6: Case study on good practices and key issues in enforcement by labour inspectorates of

labour mobility rules and social security coordination regulations.................................................................. 54

Box7: Case study on bilateral agreements between Poland and receiving Member States ........................ 59

Box8: Case study on the enforcement of workers’ rights in sending Member States .................................... 61

Box9: Ukrainians in the Polish construction sector ...................................................................................................... 66

Box10: Initiatives targeting TCNs........................................................................................................................................ 70

List of gures

Figure1: Number of employed and growth rate of employment (in%) in the construction sector,

2021 .......................................................................................................................................................................................... 12

Figure2: Temporary work agency workers in the construction sector (% of total employees), 2021 ....... 14

Figure3: Causes of quantitative and qualitative shortages....................................................................................... 64

Figure4: Example of factors creating imbalances in the construction sector .................................................... 65

List of abbreviations

BUAK Bauarbeiter-Urlaubs- und Abfertigungskasse [Construction Workers’ Annual Leave and Severance Pay Fund]

Cedefop Centre for the Development of Vocational Training

CJEU Court of Justice of the European Union

CNV Christelijk Nationaal Vakverbond [Christian National Trade Union Federation]

ECSO European Construction Sector Observatory

EFBWW European Federation of Building and Woodworkers

EFTA European Free Trade Association

ELA European Labour Authority

ETUC European Trade Union Confederation

EU European Union

EU-BCS European Business and Consumer Surveys

EURES European Employment Services

EGD European Green Deal

FIEC European Construction Industry Federation

FNV Federatie Nederlandse Vakbeweging [Federation of Dutch Trade Unions]

GVA Gross value added

ILO International Labour Organisation

IMI Internal Market Information System

ISCED International Standard Classication of Education

Limosa Cross-Country Information System for Migration Research at the Social Administration

OSH Occupational safety and health

PD A1 Portable Document A1

PDT Prior declaration tool

PROMO Protecting Mobility through Improving Labour Rights Enforcement project

SME Small and medium-sized enterprise

SOKA BAU Sozialkassen der Bauwirtschaft

TCN Third Country National

Urssaf Unions de recouvrement des cotisations de sécurité sociale et d’allocations familiales [Organisations for the

Collection of Social Security and Family Benet Contributions]

UWV Uitvoeringsinstituut Werknemersverzekeringen [Institute for Employee Insurance]

Abstract

This study analyses challenges related to the enforcement of labour mobility and social security laws in the construction

sector, with a specic focus on the posting of workers. Despite measures in place in the European Union Member States to

ensure compliance with posting rules, their enforcement has been challenging in the construction sector. Posted workers

and their employers are also not always fully aware of their rights and obligations despite several initiatives to improve

the communication of relevant information by social partners, Member States and the European Commission. The sector

also struggles with labour and skill shortages, and although some cross-border initiatives exist to address these shortages,

they are often hindered by language and cultural dierences, along with limited recognition of skills and qualications.

The ndings in this study suggest that the European Labour Authority (ELA) could play a more active role in supporting the

improved enforcement of posting rules in the construction sector in Member States, the communication of information

to workers and employers concerned, and contributing to the improvement of data collection on labour mobility in the

construction sector.

The ELA Strategic Analysis series keeps track of emerging trends, challenges and loopholes in the areas of labour mobility

and social security coordination. It includes in-depth analyses and studies that investigate specic issues, recurring

problems and sector-specic challenges. The analyses contribute to risk assessment to inform ELA’s operational activities as

well as the work of national competent authorities, and, where appropriate, the social partners.

Executive summary

This report addresses challenges related to the enforcement of labour mobility and social security law in the construction

sector, with a focus on the posting of workers. It is based on the review of literature, statistical analysis and empirical work in

Member States most aected by labour mobility in the construction sector that was conducted between October 2022 and

May 2023.

The construction sector plays a vital role in the EU economy, employing approximately 13million people and contributing

around 5.5% to the gross value added (GVA). In 2021, around one in four portable documents A1 (PDs A1) issued was

granted for services in the EU construction sector. This amounts to an approximate estimate of 833000 PDs A1 issued in

the sector. Germany was the primary receiving country for posted workers in the EU construction sector, while Poland was

the main sending country. The 2021 gures indicated a recovery from the COVID-19 pandemic in most Member States as

far as the number of postings was concerned. A relatively high rate of third country nationals (TCNs) are employed in the

EU construction sector and posted to other Member States than their own Member State of residence. These TCNs face

some specic challenges compared to other posted workers, such as dependence on employers for work permits, language

barriers, irregular employment, non-payment of social contributions and more exposure to occupational health and safety

risks.

The enforcement of legislation on the posting of workers in the construction sector poses several challenges. The most

prevalent violations and abusive practices include the establishment of letterbox companies, non-compliance with working

conditions, bogus self-employment, fraudulent PD A1 usage and fraudulent posting of TCNs. Labour inspectorates have the

necessary inspection and sanctioning regulatory tools to address these violations and abusive practices, but lack sucient

nancial and sta resources, and experience diculties in identifying some factual elements in such posting contexts (e.g.

place of registration of undertakings, number of contracts performed, whether or not the posted workers return to or are

expected to resume working in the sending Member State) to properly carry out their inspection activities. Furthermore, the

imposition of sanctions and their eective implementation can be dicult in a cross-border situation.

The report identies several relevant measures to prevent non-compliance with posting rules in the construction sector.

These include social ID cards, subcontracting chain liability schemes, limitations on subcontracting and specic public

procurement rules. The Member States, together with social partners and the European Commission, also launched several

measures to better diuse information to workers and employers about their rights and obligations in a posting context.

Despite these measures, workers and employers in the construction sector are still not considered to be well informed.

Moreover, major deciencies in the communication tools and methods were agged, leading to confusion and diculty

in accessing relevant information. These shortcomings included a use of complex legal language, lack of translations, and

scattered sources of information.

The EU construction sector is also facing signicant labour and skill shortages. To address such shortages, Member States

have implemented various cross-border initiatives, including enhancing skills development, oering training opportunities

and fostering cross-border cooperation. Several initiatives are also targeted at the recruitment of TCNs, often through

bilateral agreements with third countries.

Based on the ndings of this study and taking ELA’s mandate into consideration, some operational conclusions have been

drawn. These conclusions highlight the need for more support from ELA to improve the enforcement of posting rules within

Member States in the construction sector, to better communicate information at the EU and Member State level to workers

and employers in the construction sector, and to contribute to the improvement of data collection on labour mobility in the

construction sector.

1. Introduction

The construction sector in the European Union directly employs around 13million people and is an essential part of its

economy. The EU construction sector has experienced persistent labour and skill shortages over the years along with

signicant worker mobility ows between Member States, in particular from eastern to western Member States. These

shortages are often eased through the posting of workers. Due to its characteristics, notably the prevalence of complex and

labour-intensive projects relying on subcontracting chains, the construction sector is more susceptible to abusive practices

that lead to infringements of the EU legal framework on labour mobility and social security coordination.

The European Labour Authority (ELA), which plays an essential role in facilitating and enhancing cooperation between

Member States to help ensure that EU rules on labour mobility and social security coordination are enforced, selected the

construction sector as one of its priorities for 2023.

Within this context, this study aims to assist ELA and Member States in addressing challenges arising in the construction

sector relating to the enforcement of labour and social security law (such as information exchange and cooperation). The

study focuses primarily on the posting of workers in the construction sector. It provides an overview of the construction

sector labour market and its key characteristics, including a detailed analysis of the number of posted workers in the

construction sector and key mobility patterns (Section2). It maps the information needs of posted workers and employers

and the measures taken to address these needs (Section3). It analyses measures in place to prevent infringement of EU

mobility rules in the construction sector (Section4) and explains how these rules are enforced in Member States sending

and receiving posted workers (Section5). The study also outlines cross-border matching initiatives to address labour and

skill shortages in the EU construction sector (Section6). Finally, based on the ndings in these sections, the study develops

operational conclusions, taking ELA’s mandate into account (Section7).

This study is based on the following ve main research streams carried out between October 2022 and May 2023.

• A comprehensive review of the literature including peer-reviewed articles, conference papers and reports from

representatives of social partners at the EU level were mapped, selected and analysed. The review considered literature in

English, prioritising the literature covering the period from 2014 onwards.

• A quantitative data analysis showing key mobility patterns in the construction sector with a focus on 2019–2021, using

the European Commission’s annual reports on portable documents A1 (PDs A1) and the POSTING.STAT project from

HIVA– Research Institute for Work and Society KU Leuven as the main data sources.

• Seven exploratory interviews with selected stakeholders to better understand the situation of posted workers in the

construction sector and the issues at stake (e.g. challenges in the enforcement of EU labour mobility legislation in the

construction sector). See Annex1 for the full list of interviewees.

• 21 interviews with either a representative of a central inspection authority or another relevant stakeholder in

the 17 main sending countries (Czechia, Germany, Croatia, Hungary, Poland, Portugal, Romania, Slovenia and Slovakia)

and receiving countries (Belgium, Germany, Spain, France, Italy, the Netherlands, Austria, Finland and Sweden) of posted

workers in the construction sector. Interviewees were identied in cooperation with ELA national liaison ocers. The

interviews covered the information needs of these workers and their employers, the challenges linked to the application

and enforcement of EU labour mobility rules in the construction sector, and the identication of cross-border matching/

recruitment initiatives of public authorities or social partners to address labour and skill shortages in the construction

sector. They also focused on good practices(

) and areas for improvement under these three aspects.

• 10 case studies covering selected Member States(

) that receive posted workers in the construction sector, namely

Belgium, Germany(

), France, the Netherlands and Austria, and Member States that posted workers in the construction

sector, namely Germany, Croatia, Poland, Portugal, Slovenia and Slovakia, based on interviews with key actors (i.e. social

partners, labour inspectorates, labour court representatives and authorities in charge of public procurement). The 10 case

studies are detailed in the table below. The case studies were selected in cooperation with national liaison ocers and

based on the preliminary ndings of the study. Their aim was to provide an in-depth understanding of the situation of

posted workers in the construction sector in relevant Member States.

(

) Good practices to be defined according to ELA criteria: https://www.ela.europa.eu/en/call-good-practices-2022#bcl-inpage-item-780.

(

) These countries were selected based on available information on the total number of PDs A1 issued under Article 12 of Regulation (EU)

2018/1139 (the Basic Regulation). As a result, certain Member States where construction is a highly significant sector among posted workers

(e.g. Estonia and Romania) may be excluded from this list.

(

) Germany is covered both as a receiving country and as a sending country.

Table1: Case studies overview

Case studies

Sending Member State Receiving Member State

HR PL PT SI SK BE DE FR NL AT

Construction companies’ initiatives

to inform posted workers in the

construction sector in sending and

receiving Member States

X X X X X X X X X X

Employers’ practices in accessing

information

X X X X X X X X X X

The role of social partners in provision

of information to workers and

employers

X X X X X X X X X X

Good practices and key issues in

enforcement by labour inspectorates

of labour mobility rules and social

security coordination regulations

X X X X X

Labour inspectors’ access to other

databases to cross-check data (e.g. PD

A1, tax records)

X X X X X

Public procurement in compliance with

EU labour mobility rules applying to

posted workers in the construction

sector

X X X X X

Enforcement of workers’ rights in

sending countries

X X X X X

Bilateral agreements between Poland

and receiving Member States

X X X X X X

Cross-border matching/recruitment

initiatives to address labour and skills

shortages in the construction sector

X X X X X X X X X X

Chain liability and posted workers

in subcontracting schemes in the

construction sector

X X X X X

The methodology for this study was designed to be feasible, considering its scope and timeline and the sources of

information available. Therefore, the ndings under this study must be read considering the following limitations.

• The study covers 17 Member States.

• Case studies cover 10 Member States.

• Posted workers and employers were not directly consulted; instead, their representatives (i.e. social partners) were

interviewed.

• There is limited up-to-date academic literature and quality data on some of the topics discussed. Additionally, gures for

2020 and 2021 should be approached with caution due to potential disruptions created by COVID-19.

Despite these constraints, signicant eorts were made to consult the most relevant stakeholders and to include a large

representative sample of Member States.

2. The construction sector: Key characteristics and

challenges

Main ndings

• The construction sector is essential for the EU economy, adding signicant value and employing

around 13million people. The average growth rate of employment in 2021 was around 3%. The

gross value added (GVA) share of the sector in the EU was around 5.5% in 2021.

• The construction sector is characterised by the signicant presence of posted workers and by

distinct mobility patterns across Member States. Based on available data on PDs A1 issued in

2021, around one out of four PDs A1 issued (under Article 12) in the EU are granted for services

in the construction sector, with a signicant dierence observed between western and southern

(15%) and central and eastern Member States (49%). Germany is both a main receiving and

sending country for posted workers in the construction sector, whereas Poland is the primary

sending country–the corridor from Poland to Germany is the primary corridor in the EU. Posted

construction workers also play an important role in Belgium from a receiving perspective and

in Slovenia from a sending perspective. Figures from 2021 also indicate a recovery from the

COVID-19 pandemic in most of the Member States that have national-level data available.

• Subcontracting is a prevalent practice in the construction sector in the EU, enabling access to

cheap labour and specialised skills and oering a way to manage market uctuations and labour

shortages. Subcontracting chains in this sector can become complex, especially when they involve

multiple companies from dierent Member States, creating diculties for labour enforcement

authorities and trade unions to identify the ‘actual employer’ and protect workers’ rights.

• Temporary work agencies play a pivotal role in subcontracting chains by providing workers

for dierent stages of construction projects, including both unskilled and highly specialised

workers. National labour inspectorates face diculties in monitoring and inspecting these

agencies, often due to their use of virtual oces or letterbox companies to evade inspections.

Ensuring compliance and preventing abuses in the construction sector requires regular

inspections, improved information sharing between labour authorities, and access to national

databases on posted workers, tax and social security.

• The construction sector is one of the main sectors employing posted third country nationals

(TCNs), together with (road freight) transport and agriculture. There are, however, notable

dierences between Member States. For instance, Malta and Romania have low numbers of

posted TCNs in the construction sector; in contrast, incoming TCNs represent a signicant share

of posted workers in Belgium and Austria. Posted TCN workers are more vulnerable than EU

posted workers due, inter alia, to their dependency on their employer for the renewal of the

work and residence permits, language barriers, more exposure to irregular employment, and

subsequent non-payment of social contributions and health insurance. Such vulnerability is

most likely to be enhanced in the construction sector considering, inter alia, the occupational

health and safety risks inherent to this sector.

• The setting up of letterbox companies, the non-respect of working conditions, bogus self-

employment, fraudulent PD A1 forms and illegal employment of TCNs or their fraudulent

posting represent the most signicant and recurrent violations and abusive practices.

Providing an introductory overview of the construction sector labour market in the EU, this section will rst detail the

relevance of the construction sector in the EU economy (Section2.1). It will then describe the key characteristics of the EU

construction sector relevant to this study, focusing in particular on the use of subcontracting practices and temporary work

agencies (Section2.2), the number of posted workers in the construction sector and key mobility patterns (Section2.3),

the role of posted TCN workers (Section2.4) and the abusive practices related to postings in the construction sector

(Section2.5).

2.1 The construction sector in the EU economy

With more than 3million enterprises, the EU construction sector has an annual turnover of more than EUR1500billion. One

way to assess its size is by looking at the GVA, which is a measure of the sector’s contribution to the overall economy(

According to the latest available Eurostat data, the GVA share of the construction industry was around 5–6% between 2010

and 2021. This gure reached its peak of 5.8% in 2010, but fell to 5.1% during 2014–2017, before increasing again to 5.5%

between 2020 and 2021(

). During this period, several Member States experienced a decrease in the GVA share from the

construction sector, with the main reductions being in Bulgaria, Greece, Spain and Slovakia. In contrast, Denmark, Germany,

Lithuania, Hungary and Finland experienced the highest growth. In 2021, the GVA share was particularly high in Lithuania,

Austria, Romania and Finland, in all of them contributing to 7% or more of the total GVA(

In addition to GVA, employment gures can also provide insights into the size of the sector. Overall, the EU construction

sector directly employs around 13million people(

) and had an average employment growth rate of employment (between

2020 and 2021) of around 3%(

). The map in Figure1 shows these gures by Member State. Germany had the highest

number of workers employed in the construction sector in 2021, followed by France, Italy, Spain and Poland. Relative to the

total workforce, Luxembourg has the highest share of workers in construction (around 17%), followed by Lithuania (9.5%),

Cyprus (9%) and Austria (8.5%)(

). When it comes to employment growth rates between 2020 and 2021, Greece, Hungary

and Italy had the highest gures. In Scandinavian and Baltic states, the growth rates have been decreasing and, considering

the high GVA, a lower level of employment may indicate an increase in productivity, further conrmed by the high extent of

digitalisation adopted in the construction sector within these countries(

Figure1: Number of employed and growth rate of employment (in%) in the construction

sector, 2021

NB:Figures for total persons employed are shown only for countries with numbers above 1million. Growth rate of employment (in%) is relative to the

previous year.

Source: Eurostat, enterprise statistics, SBS_SC_OVW

(

) Eurostat defines GVA as ‘output (at basic prices) minus intermediate consumption (at purchaser prices)’. Eurostat, ‘Statistics Explained’ (https://

ec.europa.eu/eurostat/statistics-explained/index.php?title=Glossary:Gross_value_added&lang=en).

(

) Data for 2020 and 2021 may be subject to limitations and distortions due to the impact of the COVID-19 pandemic. Figures for these years

should be interpreted with caution.

(

) Eurostat, annual national accounts, NAMA_10_A10. See also: https://ec.europa.eu/eurostat/cache/digpub/housing/bloc-3a.html?lang=en.

(

) Eurostat, labour force survey data, LFSA_EGAN2, and Eurostat, structural business statistics– industry and construction, SBS_NA_CON_R2.

(

) Eurostat, enterprise statistics, SBS_SC_OVW. Data for 2020 and 2021 may be subject to limitations and distortions due to the impact of the

COVID-19 pandemic. Figures for these years should be interpreted with caution.

(

) Eurostat, enterprise statistics, SBS_SC_OVW; Eurostat, labour force survey, LFSA_EGAN22D.

(

) European Construction Sector Observatory (ECSO), Digitalisation in the construction sector: Analytical report, European Commission, 2021.

In the EU, most of the construction industry (99%) is composed of small and medium-sized enterprises (SMEs), namely

enterprises with fewer than 250 employees(

). Among those, micro-enterprises (with fewer than 10 workers) represent the

largest share in the EU, accounting for around 94% of the construction sector(

2.2 Subcontracting and the role of temporary work agencies

As further detailed in Section4(2), subcontracting is a prevalent practice in the construction sector in the EU, enabling

access to cheap labour and specialised skills and oering a way to manage market uctuations and labour shortages.

A subcontracting chain forms when a large contractor, hired by an investor or the investor itself, engages one or more

subcontractors who bring their own personnel or engage another legal entity, such as a temporary employment agency(

These chains can become complex, especially when they involve multiple companies from dierent Member States,

increasing uncertainty around employment arrangements. This complexity can result in an erosion of workers’ rights, and it

is particularly challenging at the lower levels of the chain for labour enforcement authorities and trade unions to identify the

‘actual employer’ and protect workers’ rights.

The growth of labour market intermediaries in the form of temporary work agencies has created additional complexity

in the subcontracting chain. Temporary work agencies play a pivotal role in subcontracting chains by providing workers

for the dierent stages of construction projects. This can include both unskilled labour and highly specialised workers

such as architects and engineers. In doing so, they can help promote labour mobility within the EU by making it easier for

companies to hire temporary workers from other Member States. Within the EU legal framework, temporary work agencies

are regulated by the Directive on Temporary Agency Work (Directive 2008/104/EC)(

), which ensures the protection of

temporary agency workers and the principle of equal treatment(

). The directive does not set standards on pay, working

conditions or occupational health and safety for temporary agency workers, but requires that temporary agency workers

are entitled to the same rights as directly hired workers in areas such as the duration of working time, overtime, breaks, rest

periods, night work, holidays and public holidays and pay(

). The revision of the Posting of Workers Directive(

) ensures

equal treatment of posted temporary workers. The same conditions applicable to national temporary work agencies will

also apply to cross-border agencies hiring workers.

Article 3 of the directive denes temporary work agencies as ‘any natural or legal person who, in compliance with national

law, concludes contracts of employment or employment relationships with temporary agency workers in order to assign

them to user undertakings to work there temporarily under their supervision and direction’. The relationships between the

temporary work agency (supplier/lender of workers’ services), the temporary agency worker and the contracting business

(user/borrower of workers’ services) are established via two contracts: one between the agency and the worker, and a

second between the agency and the business. Therefore, the worker is a formal employee of the temporary work agency

and there is no contract between the contracting business and the worker(

). Even though the specic responsibilities

of the temporary work agency and contracting business may vary depending on the national regulations and collective

agreements, the table below provides a general outline of their distribution between the two parties.

(

)

Eurostat, enterprise statistics, SBS_SC_OVW.

(

)

Ibid.

(

) European Parliament, Directorate-General for Parliamentary Research Services, Heinen,A., Kessler,B., and Müller,A., Liability in subcontracting

chains: national rules and the need for a European framework, European Parliament, 2017.

(

) Directive 2008/104/EC of the European Parliament and of the Council of 19November 2008 on temporary agency work (OJ L327, 5.12.2008,

p.9).

(

) Article 2 of Directive 2008/104/EC.

(

) Further instruments shaping the legal framework for temporary work agencies are the International Labour Organisation (ILO) Convention

No181 and the European Social Charter. The former provides guidelines for the operation of private employment agencies (an umbrella group

that includes temporary work agencies) and emphasises the importance of protecting the rights of workers who are placed through such

agencies. Although no explicit reference to temporary work agencies is made in the provisions of the 1961 and 1996 ESC, the charter requires

Member States to ensure that the social and economic rights are applied to all workers, regardless of the nature of their contracts. See:

Countouris,N., Deakin,S., Freedland,M., Koukiadaki,A., and Prassl,J., Report on temporary employment agencies and temporary agency work,

ILO, 2016, pp.29–35.

(

) Directive 96/71/EC of the European Parliament and of the Council of 16December 1996 concerning the posting of workers in the framework of

the provision of services (OJ L18, 21.1.1997, p.1)

(

) Kessler,B., et al., 2017.

Table2: Roles and responsibilities of the contracting business and temporary work

agency

Contracting business Temporary work agency

Providing a safe working environment for temporary agency

workers, including any necessary safety equipment or training.

They must also comply with the legal framework relevant to

occupational health and safety.

Providing temporary agency workers with access to the same

collective facilities and amenities as permanent workers, such

as sta canteens, childcare facilities and transport services.

Ensuring equal treatment of temporary agency workers so that

they receive the same basic working and employment conditions

as if they had been recruited directly by the user company,

including pay, working hours, and any other relevant terms and

conditions. They must not discriminate against temporary agency

workers on the grounds of their employment status or any other

characteristic.

Supervising and managing temporary agency workers. They

must ensure that the workers receive adequate training and

support to perform their job, and that they are treated fairly and

respectfully.

Recruiting and selecting temporary agency workers for user

companies, and ensuring that the workers have the necessary

skills and qualications for performing the job and all the

necessary documentation and permits (including PD A1 in the

case of posted workers) for working in the relevant country.

Entering into contracts with temporary agency workers.

These contracts should specify the terms and conditions of

employment, including the duration of the assignment, the rate

of pay, working hours and any other relevant details.

Providing information to temporary agency workers about their

employment conditions, including their pay, working hours and

any other relevant terms and conditions.

Paying temporary agency workers, including any overtime

or additional compensation required by law. They must also

deduct and remit any taxes, social security contributions or other

mandatory deductions required by law.

Source: Author’s elaboration, based on Kessler,B., et al., 2017; and Countouris,N., Deakin,S., Freedland,M., Koukiadaki,A., and Prassl,J., Report on temporary

employment agencies and temporary agency work, ILO, 2016, p.35.

According to Eurostat data, in 2021, 3.4% of employees in the EU construction sector worked for a temporary work agency.

This gure is one percentage point higher than for the rest of the economy and has stayed relatively stable over that last

6years (3.1% in 2015)(

). The map below provides a breakdown by Member State. Spain, the Netherlands, and France

report the highest shares of workers employed by temporary work agencies: around 9%, 8% and 7%, respectively.

Figure2: Temporary work agency workers in the construction sector (% of total

employees), 2021

NB:No data for Bulgaria, Estonia, Cyprus, Malta and Romania. Greece excluded due to a break in time series. Figures are in percentage of total employees

between 20–64years old.

Source: Eurostat, LFS, LFSA_QOE_4A6R2.

(

) Eurostat, Labour Force Survey (LFS), LFSA_QOE_4A6R2.

Temporary work agencies, although very exible and cost-eective, may be subject to fraudulent use(

). As temporary

work agencies are not directly linked with the activities of construction businesses, they may take advantage of the complex

employment relationships and context in which they operate to avoid legal wage payments, and bypass vocational

education and training and occupational safety and health (OSH) requirements. Certain studies further suggest that

fraudulent agencies have created business models that generate income from charging high recruitment fees(

), oering

exploitative arrangements when it comes to the posting of workers, or disguising employment as business trips(

). Some

of the temporary work agencies may be unregistered, unlicensed or underreporting the economic activities undertaken

and can force EU mobile workers into undeclared work(

). In general, all Member States have in place a clear statutory

framework that regulates and limits the terms of use of temporary work agencies to prevent fraudulent practices(

). In

Germany, for instance, temporary work agencies are strictly forbidden in the construction sector(

In Poland, an issue persists regarding temporary work agencies. According to the Polish Ministry of Family and Social Policy,

approximately 9000 temporary work agencies are registered in the country, yet they exhibit a high annual turnover rate–

with over 20% disappearing each year– which signals potential fraudulent activities within these companies. To address

this problem, the Polish Labour Inspectorate suggests regular inspections of cross-border postings from these temporary

work agencies. Such measures are crucial in preventing abuses, particularly in the construction sector, and ensuring

compliance inter alia with OSH requirements.

Diculties in monitoring and inspecting temporary work agencies were reported by several national labour inspectorates,

as those agencies often set up ‘virtual oces’ or letterbox companies to evade inspections and legal consequences for

non-compliance(

). Often, there is also a lack of tools to monitor the labour relations of workers who are posted to other

Member States. Addressing these issues may include prompt and ecient access by national authorities to information

from other Member States’ national databases regarding posted workers, tax and social security, and also an increased

accessibility of information ow between labour authorities and workers(

2.3 Posted workers and key mobility patterns

This section examines the number and share of posted workers in the construction sector and their key mobility patterns.

This is based on data from the portable documents A1 (PDs A1)(

) and on data obtained from prior declaration tools (PDTs)

and other micro-data sources.

Based on available data on postings in 2021, around one in four PDs A1 issued were granted for services in the EU

construction sector. The estimated total number of PDs A1 issued in the EU construction sector was approximately 833650.

Germany was the primary receiving country for posted workers in the EU construction sector, while Poland was the main

sending country. These Member States also made up the primary corridor in the EU, namely from Poland to Germany. At the

same time, posted construction workers played an important role in Belgium from a receiving perspective and in Slovenia

from a sending perspective. Moreover, gures from 2021 indicated a recovery from the COVID-19 pandemic in most

Member States when national-level data were available.

As for posted workers in general, it is important to rst highlight the challenges and gaps in terms of data collection

regarding posted workers in the construction sector(

). The availability of data on intra-EU posting depends mainly on

the extent to which companies eectively declare their posting activities in both the sending and receiving Member State,

alongside the reporting mechanisms in place. Nevertheless, there is a lack of uniformity in data collection approaches

(

) Pavlovaite,I., ‘Tools and approaches to tackle fraudulent temporary agency work, prompting undeclared work’, European Platform Tackling

Undeclared Work, 2020; Pavlovaite,I., ‘Tools and approaches to tackle fraudulent temporary agency work, prompting undeclared work’,

European Platform Tackling Undeclared Work, 2021; Stefanov,R., et al., 2021.

(

) Although Directive 2008/104/EC and ILO Convention No181 prohibit temporary work agencies from charging any fees for recruitment,

placement or providing information about job vacancies, there may be certain exceptions to this rule in some Member States (e.g. fees

related to the processing of work permits or visas). This also depends on the transposition of the directive provisions in Member States. See:

Schömann,I., and Guedes,C., Temporary Agency Work in the European Union: Implementation of Directive 2008/104/EC in EU Member States,

European Trade Union Institute (ETUI), 2012.

(

) Pavlovaite,I., 2020, p.5.

(

) Stefanov,R. et al., 2021.

(

) Kessler,B., et al., 2017, p.20.

(

) Temporary Employment Act (LS 1972– Ger. F.R. 2), Section1. More information can also be found here: https://www.zoll.de/EN/Businesses/

Work/Foreign-domiciled-employers-posting/Temporary-work-temporary-worker-assignment/Requirements/requirements_node.html.

(

) Stefanov,R., et al., 2021.

(

) Ibid.

(

) The PD A1 is a document that must be requested by the posting undertaking or the self-employed person to prove that a worker or a self-

employed person remains subject to the social security system of the sending Member State.

(

) De Wispelaere,F., De Smedt,L., and Pacolet,J. Posted workers in the European Union: Facts and figures. Leuven: POSTING.STAT project

VS/2020/0499, 2022b, pp.17–19.

among Member States (including dierences in information requested, type of procedure, etc.). In practice, authorities in

both countries may not always be informed about posting activities, partially due to notable dierences in terms of the use,

methodology and scope of declaration tools and prior declaration forms. The available posting data from both PDs A1 and

PDTs might therefore not always reect reality(

). Some countries have recently taken measures to increase compliance

by imposing stricter conditions on the PD A1 requirements for being legally posted. France and Austria, for example, have

implemented penalties or sanctions for companies that are not able to present a valid PD A1, and authorities are conducting

more frequent and thorough checks on whether posted workers possess the necessary PD A1(

Despite these limitations, PD A1 statistics remain the most useful source for comparing Member States at the EU level and

provide a good estimation of postings/ posted workers in the construction sector. At the national level, PDTs and other

micro-data can help complement the information, lling in some gaps and revealing potential trends within Member States.

2.3.1 Data from portable documents A1

At the EU level, data from 2021 are used and focus specically on PDs A1. The available statistics distinguish between PDs

A1 issued under Article 12 (i.e. employees/ the self-employed who normally carry out activities in one Member State and are

posted to another) and Article 13 (i.e. employees/ the self-employed engaged in activities in two or more Member States)

of the Basic Regulation(

). As such, the dierent types of PDs A1 data collected provide valuable insights into the mobility

patterns of posted workers within the EU.

It is important to note that several Member States– including signicant net receiving and sending countries– lack available

data on PDs A1 issued from a sending perspective under Article 12 in the sector in 2021. These are Bulgaria, Denmark,

Ireland, Greece, Spain, Italy, Hungary and the Netherlands(

). Additionally, under Article 13, information on PDs A1 is

unavailable for the countries mentioned above as well as for Czechia, Germany, Portugal and Romania. This data gap partly

stems from the absence of information about the location of cross-border activities for these individuals, resulting in data

regarding the receiving Member States being unobtainable, and also from countries not fully sharing the requested data.

The main Member States receiving and sending construction services in 2021, based on the total number of PDs A1 issued

under Article 12 of the Basic Regulation(

), are shown in Table3. While Germany was the main receiving country in terms

of absolute numbers, Poland was the main sending EU Member State. In order to indicate the signicance of postings in the

workforce of each Member State’s construction sector, the table also shows an estimation of the PDs A1 issued as a share of

all workers in the sector. Notably, Slovenia and Slovakia stand out with remarkably high proportions of outgoing postings at

52% and 28% respectively. This may suggest a widespread use of and reliance on a possible ‘business model’ by employers

in these countries’ construction sectors whereby workers do not get employed in the country but are immediately posted

to another Member State(

). At the same time, the share for Belgium (17%) indicates a high level of posted workers in its

construction sector from a receiving perspective.

(

) The reported figures only indicate the intention to provide services in the Member State, without confirming the actual provision of these

services. There are also differences in the definition of ‘posted’ between the Basic Regulation and the Posting of Workers Directive, which may

result in workers (not) being counted in the PDs A1 statistics. Moreover, while undertakings are required to inform competent institutions

before a posting, this may not always happen, resulting in further discrepancies between the number of PDs A1 issued, postings of which

Member States have been notified and the actual number of persons being sent abroad as posted workers. These tools may therefore over- or

underestimate the actual number of posted workers, making it challenging to directly compare or extrapolate the data.

(

) De Wispelaere,F., De Smedt,L., and Pacolet,J., Posted Workers in the European Union: Facts and figures. Leuven: POSTING.STAT project

VS/2020/0499, 2022b, pp.16–19.

(

) Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29April 2004 on the coordination of social security systems (OJ

L166, 30.4.2004, p.1).

(

) In 2020, Hungary and the Netherlands did have data available in this context.

(

) De Wispelaere,F., De Smedt,L. and Pacolet,J., Posting of Workers: Report on A1 Portable Documents issued in 2021, HIVA-KU Leuven, 2023,

pp.55–56.

(

) De Wispelaere,F., De Smedt,L. and Pacolet,J., Posted workers in the European Union: Facts and figures. Leuven: POSTING.STAT project

VS/2020/0499, 2022b, p.36.

Table3: Main receiving/sending Member States of postings in the construction sector,

based on PDs A1 issued under Article 12, 2021

Receiving Member State Sending Member State

Member State

No. of PDs

A1 issued

under

Article 12

Estimated postings

as% of total

employment in the

construction sector

Member State

No. of PDs

A1 issued

under

Article 12

Estimated postings

as% of total

employment in the

construction sector

DE 151146 5% PL 104308 10%

BE 54852 17% DE 64813 2%

FR 47125 3% SI 41785 52%

AT 36923 10% SK 41209 28%

NL 24549 4% PT 34635 9%

NB:Data unavailable for Bulgaria , Denmark, Ireland, Greece, Spain, Italy and Hungary.

Source: De Wispelaere et al., 2023; ECSO 2021 employment data (number of persons employed in construction); author’s calculations.

From a sending perspective, in the EU in 2021, 25.9% of all PDs A1 issued under Article 12 were granted for services in the

construction sector(

). This has increased from 23.9% in the previous year. Excluding Germany, this share signicantly rises

to 42.8%, highlighting the greater number of posted workers in construction for the rest of the sending Member States.

Moreover, there is a notable dierence between mostly western and southern Member States (15%)(

) and mostly central

and eastern European Member States (48.9%)(

). This indicates that the posting of workers in the construction sector has a

stronger geographical dimension compared to the more evenly distributed phenomenon of posting across various sectors

of Member States. Under Article 13, 19.3% of PDs A1 issued were applicable to the construction sector(

) (compared to

18.3% in 2020).

Using these average shares and the total number of PDs A1 issued in each Member State, an estimation can be made of the

total number of PDs A1 issued in the EU construction sector (under both Articles 12 and 13). As mentioned earlier, from a

sending perspective, there are missing gures for eight Member States regarding PDs A1 issued under Article 12, and for 12

Member States for those issued under Article 13. After making a number of inevitable assumptions due mainly to missing

data(

), the estimated total number of PDs A1 issued in the EU construction sector in 2021 is approximately 833650,

comprised of 590728 PDs A1 under Article 12 and 242922 PDs A1 under Article 13. Nonetheless, it is important to note that,

rather than exact numbers, these gures represent estimates relying on several assumptions.

Table4 provides information on the Member States where the construction sector has the highest share across all sectors

for incoming and outgoing posted workers in 2021. The table is based on PDs A1 issued under Article 12 for incoming

posted workers and PDs A1 issued under both Articles 12 and 13 for outgoing posted workers in the construction sector,

expressed as a share of the total incoming/outgoing postings(

). The data suggest again that western Member States were

mainly represented among incoming posted workers, whereas central and eastern Member States were mostly observed

as having outgoing postings. More than one out of four incoming posted workers were active in the construction sector

in Belgium, Germany, France, Croatia, Luxembourg, Finland and Sweden. From a sending perspective, Estonia is the only

Member State with available data that shows the construction sector as the largest among those posted under Article 13.

(

) De Wispelaere,F., De Smedt,L. and Pacolet,J., Posting of Workers: Report on A1 Portable Documents issued in 2021, HIVA-KU Leuven, 2023,

p.33. This figure excludes Bulgaria, Denmark, Ireland, Greece, Spain, Italy and Hungary, and includes European Free Trade Association (EFTA)

member states Iceland and Liechtenstein.

(

) Belgium, Denmark, Germany, Ireland, Greece, Spain, France, Italy, Luxembourg, the Netherlands, Austria, Portugal, Finland and Sweden.

(

) Bulgaria, Czechia, Estonia, Croatia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Romania, Slovenia and Slovakia.

(

) De Wispelaere,F., De Smedt,L., and Pacolet,J., Posting of Workers: Report on A1 Portable Documents issued in 2021, HIVA-KU Leuven, 2023, p.42.

This figure excludes Bulgaria, Czechia, Denmark, Germany, Ireland, Greece, Spain, Italy, Hungary, the Netherlands, Portugal, and Romania, and

includes the EFTA member state Liechtenstein.

(

) For Article 12, the missing values are calculated by assigning the missing Member States the average construction shares of western and

southern (i.e. Denmark, Ireland, Greece) and central and eastern (i.e. Bulgaria) Member States, which are 15% and 48.9% respectively.

However, in the cases of Spain and Italy, it is assumed that they are main sending countries, and therefore the share of 48.9% is used. For

Hungary and the Netherlands, the average construction shares in 2020 are taken, which were 44.2% and 13.8% respectively. For Article 13,

the average EU construction share (19.3%) is used for all missing Member States.

(

) De Wispelaere,F., De Smedt,L., and Pacolet,J., Posting of Workers: Report on A1 Portable Documents issued in 2021, HIVA-KU Leuven, 2023,

pp.33–34 and 42.

Table4: Member States where construction is the primary sector for incoming/outgoing

posted workers, 2021

Incoming posted workers Outgoing posted workers

Member State

Construction as% of total

PDs A1 issued under Art.

Member

State

Construction as% of

total PDs A1 issued

under Art. 12

Member

State

Construction as% of total

PDs A1 issued under Art.

DE 55.1% PT 60.3% EE 54.4%

HR 44.2% RO 53.9%

SE 44.1% EE 53.6%

LU 38.7% SK 52.5%

BE 38.6% PL 46.7%

FI 29.1% HR 45.8%

FR 25.6% HU 44.2%

AT 22.2% CZ 43.4%

SI 21.4% LU 42.7%

SI 41.4%

LV 41.2%

LT 39.7%

AT 28.5%

NB:Only the Member States that reported construction as the sector with the largest share among all sectors are included in the table. 2020 gures were

used for HU and NL. Data unavailable under Art. 12 for BG, DK, EL, ES, IE, and IT. Data unavailable under Art. 13 for BG, CZ, DE, DK, EL, ES, HU, IE, IT, NL, PT,

and RO.

Source: De Wispelaere et al., (2023)

The primary corridor of postings in the construction sector in 2021, similar to 2020, was from Poland to Germany, with

a total of 53914 PDs A1 issued by Poland under Article 12(

). This represents a 17% increase compared to 2020, which

was a recovery from the 11% decrease following the COVID-19 pandemic. Table5 presents the other main ows between

Member States in the construction sector. Following the Poland–Germany corridor, signicant ows included Slovakia–

Germany (23148 PDs A1) and Slovenia–Germany (22374 PDs A1). Belgium and France mainly hosted posted construction

workers from Portugal and Poland, whereas Austria primarily received workers from Germany and Slovenia. Nonetheless, it

is important to note that data for several major sending Member States, including Italy and Spain, were unavailable.

Table5: Main corridors of postings in the construction sector between Member States,

2021

Sending Member State Receiving Member State Number of PDs A1

PL DE 53914

SK DE 23148

SI DE 22374

DE AT 17097

PT FR 12383

PL FR 12358

PL SE 11011

PT BE 10886

PL BE 9501

SI AT 9193

NB:Data unavailable for BG, DK, EL, ES, HU, IE, and IT.

Source: De Wispelaere et al., (2023)

(

) Ibid, p.32.

When looking at the division of both types of PD A1 granted to individuals employed in the construction sector in the EU,

74% were issued under Article 12, while 26% were issued under Article 13 in 2021. This represents a wider gap compared

to previous years, when the percentages had been converging every year between 2017–2020 to reach 65% and 35%

respectively in 2020. This shift may suggest an increase in the signicance of Article 12 across the EU as a consequence of

the COVID-19 pandemic, but these gures should be treated as tentative(

). Only six Member States reported more PDs A1

issued in construction under Article 13 compared to Article 12: Cyprus (97%), Latvia (75%), Estonia (72%), Sweden (70%),

Finland (53%) and Lithuania (51%)(

2.3.2 Data from prior declaration tools and micro-data

The other sources of data to be examined, collected mainly from PDTs, are at the national level. The national declaration

systems, implemented by all 27 Member States, assist competent authorities in identifying posted workers and complement

the information provided by PDs A1. Other micro-data sources can assist with complementing and conrming previously

made reections. There are signicant dierences found between Member States in terms of the implementation,

procedures, and requirements of their respective tools(

This section focuses on a selection of net receiving countries (Austria, Belgium, France, Germany, Luxembourg, and the

Netherlands) and net sending countries (Italy, Poland, Slovenia, and Spain). To the extent that data are available, these

Member States are presented from both the receiving and sending perspective (in alphabetical order). The primary source is

the POSTING.STAT study conducted by HIVA-KU Leuven. Some key sending countries (e.g. Portugal, Slovakia, Romania) were

not included in the study due to a lack of data.

Table6 summarises the data for the Member States that are covered in the rest of the section regarding posted workers as a

share of total employment in the construction sector. In comparison to the PDs A1 data presented in Table 3, the PDT data

and micro-data suggest a signicantly dierent share of posted workers on the workforce in construction. While both types

of data are valuable as proxies for evaluating the scope of postings and ows of posted, an advantage of PDT data is that, as

opposed to PDs A1, for the sector of construction, national PDTs normally require a separate declaration for every envisaged

posting. Belgium appears to rely signicantly on incoming posted workers in the construction sector, whereas gures from

Slovenia suggest again a high share of outgoing posted workers relative to the workforce.

Table6: Posted workers in the construction sector as a share of total employment

according to Art. 12 PDs A1 data, 2021

Receiving Member State Sending Member State

Member State

Estimated posted workers as% of total

employment in the construction sector

Member State

Estimated posted workers as% of total

employment in the construction sector

BE 26% SI 27%

DE 10% PL 26%

NL 7% ES 4%

AT 5%

FR 5%

LU 1%

NB:2019 gures for AT and FR. 2020 gures for DE, ES, LU, PL, and SI. 2021 gures for BE and NL.

Source: POSTING.STAT project; ECSO (2021) employment data (Number of persons empIoyed in construction); author’s calculations.

Furthermore, the data conrm that construction was a signicant sector for posted workers, accounting for a large share of

all posted workers across Member States. As observed from the PD A1 data, the PDT data show that Germany was the main

receiving country, while Poland was the primary sending country. When gures from 2021 are available, Member States

(

) Drawing definitive conclusions is not feasible as these shares are based on a short time frame and (somewhat) different sets of countries each

year. For 2021, coverage was limited to 15 EU Member States (Belgium, Estonia, France, Croatia, Cyprus, Latvia, Lithuania, Luxembourg, Malta,

Austria, Poland, Slovenia, Slovakia, Finland and Sweden) and one EFTA member state (Liechtenstein).

(

) De Wispelaere,F., De Smedt,L., and Pacolet,J., Posting of Workers: Report on A1 Portable Documents issued in 2021, HIVA-KU Leuven, 2023,

pp.42–43.

(

) De Wispelaere,F., De Smedt,L., and Pacolet,J., Posting of Workers: Collection of data from the prior declaration tools– Reference year 2020, HIVA-

KU Leuven, 2022a, pp.11–17.

often report a recovery from the COVID-19 pandemic compared to 2020 gures. There was also a regional dimension at

play, as posting activities appeared to hold particular importance between neighbouring countries (e.g. Poland–Germany

and Spain–France). In addition, TCNs, such as Ukrainians and Bosnians, played a vital role in the labour force of the

construction sector in the EU, and their presence among posted workers was increasingly prominent.

2.3.2.1 Austria

The Austrian construction sector was a signicant receiver as well as sender of posted workers. According to the Zentrale

Koordinationsstelle des Bundesministeriums für Finanzen forms from the Austrian Financial Police, 83634 postings were

recorded in 2019 by prior declarations in the construction sector (8% of all postings), whereas there were 20717 individual

posted workers (3% of all individual posted workers)(

). The number of posted workers was estimated at 16561, which was

around 5% of the total 309440 people employed in the Austrian construction sector(

). The share of EU citizens (including

Austrians) in the construction sector in Austria was 88% and the share of TCNs was 12%(

In the aftermath of the COVID-19 pandemic, postings in the construction sector recovered quickly as construction sites

remained open during the lockdowns and the Austrian social partners in the construction sector negotiated arrangements

to facilitate the return of foreign workers. In 2021, posting activity rose considerably compared to 2020 (+33%), while the

average number of postings also increased above the pre-pandemic 2019 level (+7%)(

). Furthermore, 3214 individually

posted TCNs worked in construction in 2021, and these accounted for 25% of all incoming posted TCNs(

). The countries

most commonly represented among the TCNs included Bosnia and Herzegovina, Kosovo(

), Serbia and Türkiye(

2.3.2.2 Belgium

Belgium was a net receiving country in terms of posted workers in the construction sector. According to the ‘Cross-

Country Information System for Migration Research at the Social Administration’ declaration tool (Limosa)(

), the Belgian

construction sector received 87470 posted workers (63530 posted employees and 23940 self-employed persons) in 2021,

representing around 26% of total employment in the sector(

). As there were around a quarter of a million posted persons

reported in total, nearly one in three persons posted to Belgium was active in the construction sector, making it the most

signicant sector for incoming posted workers. These gures might be a (strong) over- or underestimation of the reality, due

to the changes made since 2017 in the declaration tool on which they are based(

). However, in the Belgian construction

sector, data provided in Limosa are matched by the inspection authorities with data from ‘checkinatwork’, which is an online

registration system of presence at a work site. The information from digitally checking in is automatically transferred to the

Belgian authorities, which can then determine whether the information provided in Limosa matches the actual work by the

posted worker(

In terms of the main sending-countries of posted workers employed in the Belgian construction sector in 2021, these

included the Netherlands (11%), Portugal (10%), Ukraine (9%), Poland (9%), and Romania (8%)(

). For posted TCNs,

the main mobility ows were Ukrainians and Belarusians through Poland and Lithuania, Brazilians through Portugal, and

(

) These shares rise significantly to 28% and 18% respectively when excluding the transport sector from the total postings. Additionally, it

should be noted that the figures should be interpreted with caution, as there is a financial incentive for companies to declare postings in a

different sector due to a supplementary insurance for construction workers.

(

) Geyer,L., Premrov,T. and Danaj S., Posted Workers from and to Austria: Facts and figures, Leuven: POSTING.STAT project VS/2020/0499., 2022,

pp.28–29.

(

) Ibid, p.31.

(

) Ibid, pp.50–51.

(

) Information gathered through an interview with Austrian administration, as part of the following study: Vancauwenbergh et al., Report on the

cooperation practices, possibilities and challenges between Member States– specifically in relation to the posting of third-country nationals, 2023.

(

) This designation is without prejudice to positions on status, and is in line with UNSCR 1244/1999 and the ICJ Opinion on the Kosovo declaration of

independence.

(

) Geyer,L., Premrov,T. and Danaj,S., Posted Workers from and to Austria: Facts and figures, Leuven: POSTING.STAT project VS/2020/0499, 2022,

p.31. It should be noted that this may include TCN workers posted directly from the third country.

(

) Limosa is a declaration to be filled in by employers before the work begins if they employ people sent to work on a temporary or part-time

basis in Belgium. It is also required for self-employed workers who come to Belgium to pursue a temporary or partial self-employed activity

in a high-risk sector (including construction). The declaration contains data on the employer and worker, such as identification details of the

employer and of the employee, nature of the services, the place where the work is performed, the anticipated start and end date, etc.

(

) ECSO, Data mapper– Number of persons empIoyed in construction (Belgium), European Commission, 2021.

(

) De Wispelaere,F., De Smedt,L., Muñoz,M., Gillis,D., and Pacolet,J., Posted Workers from and to Belgium: Facts and figures, Leuven: POSTING.

STAT project VS/2020/0499, 2022c, p.36.

(

) Vancauwenbergh et al., Report on the cooperation practices, possibilities and challenges between Member States– specifically in relation to the

posting of third-country nationals, 2023, pp.71–72.

(

) Belgian legislation also mandates workers sent from third countries to register in Limosa as posted workers.

Bosnians through Slovenia(

). Moreover, the Belgian construction sector employed more than half (53%) of all posted TCNs

in the country(

2.3.2.3 France

France was a net receiving country of posted construction workers. According to data from the national PDT ‘SIPSI’,

as collected by the French labour inspectorate direction générale du travail, most postings to France occurred in the

construction sector, with nearly 45% of all postings declared in 2020. Compared to the fact that only around 7% of all

French workers were employed in this sector, it points to the importance of construction as a sector for incoming posted

workers. In 2019, companies located in southern Europe (Spain, Italy and Portugal) and central and eastern Europe reported

shares of postings in the French construction sector of 45% and 43% respectively, which were above the aggregate

level (39%). The main activity was the construction of residential and non-residential buildings (18% of all postings to

France)(

). Additionally, the impact of the posted workers on French employment can be estimated using census data from

the National Institute of Statistics and Economic Studies of France. With 66143 posted workers in the construction sector in

2019, the share of total employment of the French construction sector was estimated at 4.7%(

2.3.2.4 Germany

Germany was the main receiving country of posted workers in the EU construction sector. According to 2021 data from the

German minimum wage registration portal, construction was the second largest sector for incoming posted workers (after

‘shipping, transport, and related logistics industry’) with a share of 39%. The largest shares of posted construction workers

were from Poland (46%), followed by Romania (8%), Austria (8%), Hungary (5%) and Slovenia (4%). In addition, among

the ve main sending countries of all posted workers to Germany(

), nearly half of the postings (48%) took place in the

construction sector(

Furthermore, according to data from the Sozialkassen der Bauwirtschaft (SOKA BAU)(

), there were 82351 posted workers in

the construction sector in 2020. This decreased from 86014 in 2019, but was followed by a recovery in 2021 (83112)(

). The

impact of the COVID-19 pandemic on incoming posted workers in the sector appeared to be limited, as postings decreased

only by 4% between 2019 and 2020. In the German construction sector, around 10% of all employees were estimated to be

posted workers. Regarding the main sending countries of the posting companies, Poland, Austria, and Czechia were top of

the list. The most performed tasks included building construction work, concrete work, reinforcement work, carpentry work,

assembly of building components and other construction work(

At the same time, Germany was one of the main sending countries of posted workers. According to disaggregate micro-data

provided by German health insurance agencies Techniker Krankenkasse, Barmer, and Deutsche Rentenversicherung Bund,

when looking at the total number of employee postings under Article 12(

), construction was among the main sectors.

2.3.2.5 Italy

The construction sector was one of the few sectors for which some quantitative data on posting were available in Italy. In

addition, some qualitative studies have indicated that construction is one of the sectors in which Italy is a signicant sending

country, whereas it is not a relatively signicant receiving country. It has been suggested that this could be explained by

(

) De Wispelaere,F., De Smedt,L., Muñoz,M., Gillis,D., and Pacolet,J., Posted Workers from and to Belgium: Facts and figures, Leuven: POSTING.

STAT project VS/2020/0499, 2022c, pp.31–33.

(

) Lens,D., Mussche,N., and Marx,I., ‘A hole in the wall of fortress Europe: The trans‐European posting of third‐country labour migrants’,

International Migration, Vol.60, No2, 2022, p.15.

(

) Muñoz,M., Posted Workers from and to France: Facts and figures, Leuven: POSTING.STAT project VS/2020/0499., 2022, pp.25–28.

(

) Ibid, p.40.

(

) Croatia, Austria, Poland, Slovenia and Slovakia.

(

) Albrecht,C., Duran,S., Giesing,Y., Niederhoefer,B., Rude,B., and Steigmeier,J., Posted Workers from and to Germany: Facts and figures, Leuven:

POSTING.STAT project VS/2020/0499, 2022, pp.22–26.

(

) SOKA BAU is the umbrella organisation for the holiday and wage compensation fund and the supplementary pension fund of the

construction sector. It is a paritarian institution established by the social partners of the German construction industry: Zentralverband

Deutsches Baugewerbe, and Hauptverband der Deutschen Bauindustrie, as employer organisations, together with the trade union IG Bauen-

Agrar-Umwelt. SOKA BAU unites two institutions under one roof: Urlaubs- und Lohnausgleichskasse der Bauwirtschaft [Paid Leave Scheme and

Vocational Training Scheme of the German construction industry] and Zusatzversorgungskasse der Bauwirtschaft [Pension Fund of the German

construction industry]. Together these two institutions protect the leave entitlements for domestic and posted blue-collar workers, manage

the pension fund and co-fund the vocational training for workers and companies in the construction industry. For posted workers, SOKA BAU

provides only the paid leave scheme, because of the Posting of Workers Directive 96/71/EC in the revised form of 2018/957/EU.

(

) European Market Environment in the Construction Sector, Final Report, 2022a, p.10.

(

) Albrecht,C., Duran,S., Giesing,Y., Niederhoefer,B., Rude,B., and Steigmeier,J., Posted Workers from and to Germany: Facts and figures, Leuven:

POSTING.STAT project VS/2020/0499, 2022, pp.27–28.

(

) Ibid, p.45.

the widespread use of other equivalents of posting in the country, such as forms of relatively cheap labour and irregular

and informal employment(

). Postings from Italian construction companies were mainly registered in border regions, with

Germany, France and Austria as the principal receivers(

The quantitative data on incoming postings originate from the available questionnaires based on the Italian PDT, the

UNI_Distacco_UE form. In 2020, the number of reported incoming posted persons in the construction sector decreased

signicantly, by 81% from 4413 to 825, reecting the impact of the COVID-19 pandemic measures. This slightly rebounded

to 1458 persons in the rst quarter of 2021, based on data provided by the Ministero del Lavoro e delle Politiche Sociali

[Italian Ministry of Labour and Social Policies](

). This translates to approximately less than 1% of total employment in the

construction sector(

), reecting again the relatively low level of posted workers in the sector as a whole. As a receiving

country, construction was the third largest sector for posted workers (11% of all posted workers), with workers originating

mainly from Romania (49% of all posted workers in the construction sector), Spain (16%) and Germany (6%)(

2.3.2.6 Luxembourg

Luxembourg was a net receiving country, with construction being the most signicant sector for incoming posted workers

in 2019 (54% of all posted workers) and 2020 (49%)(

). In 2020, the number of posted workers in the sector could then be

estimated at approximately 14340(

), which was equivalent to around 1.2% of total employment(

). The main sending

countries included Germany (44%), Belgium (24%), Poland (10%), France (9%) and Portugal (4%). When comparing these

gures with those based on nationality concerning all posted workers(

), it suggests that posted TCNs likely contributed

signicantly to these percentages. While the total number of workers posted to Luxembourg continued to grow in 2020, the

construction sector was heavily impacted by the COVID-19 pandemic. It experienced the largest decline of posted workers

in absolute numbers among all sectors, with a decrease of 802 workers (or approximately –7%)(

According to data provided by the General Inspectorate of Social Security, construction was the second largest sector for

posted employees in 2019 from a sending perspective. Approximately 16% of those posted abroad were employed there.

Moreover, more than half of workers posted from Luxembourg worked in specialised construction activities (57%), followed

by civil engineering (22%) and construction of buildings (21%)(

2.3.2.7 The Netherlands

The Netherlands was a net receiving country for posted workers in the construction sector in 2021. According to data from

the national PDT Meldloket WagwEU, as collected by the Social Insurance Bank, construction was the second largest sector of

employment for posted employees with 24769 declarations, accounting for 7% of all declared employees (5% in 2020)(

In contrast, construction was the primary sector of the self-employed, with 47% of all declared self-employed workers (35%

in 2020), totalling 3365 persons(

). Declared construction workers accounted for 6.6% of the total employment in the

Dutch construction sector in 2021(

Among the ve main sending Member States in the construction sector, the largest shares of declared employees were

from Poland (22%), Germany (14%), Belgium (13%), Lithuania (10%), and Romania (5%)(

). In 2021, out of all declared

(

)

Dorigatti,L., Pallini,M., and Pedersini,M., Posted Workers from and to Italy: Facts and figures. Leuven: POSTING.STAT project VS/2020/0499.,

2022, pp.10–18.

(

) Ibid, p.19.

(

) European Market Environment in the construction sector, Country report– Italy, 2022b, p.7.

(

) ECSO, Data mapper– Number of persons empIoyed in construction, European Commission, 2021.

(

) Dorigatti,L., Pallini,M., and Pedersini,M., Posted Workers from and to Italy: Facts and figures. Leuven: POSTING.STAT project VS/2020/0499, 2022,

pp.22–23.

(

)

The data for incoming workers are based on annual reports from the Labour and Mines Inspectorate and on European reports.

(

) Clément,F., and Hauret,L., Posted Workers from and to Luxembourg: Facts and figures. Leuven: POSTING.STAT project VS/2020/0499, 2022,

pp.16–18.

(

) ECSO, Data mapper– Number of persons empIoyed in construction (Luxembourg), European Commission, 2021.

(

) Clément,F. and Hauret,L., Posted Workers from and to Luxembourg: Facts and figures. Leuven: POSTING.STAT project VS/2020/0499, 2022, p.16.

(

) Ibid, p.31.

(

) Ibid, pp.23–25.

(

) It should be noted that the significantly higher number of declared employees in the road freight transport sector causes the shares of all

other sectors to dwindle. For instance, excluding road freight transport, the share of declared employees in the construction sector in 2021

would rise to 31%.

(

) Heyma,A.,Bussink,H., and Vervliet,T., Posted Workers to the Netherlands: Facts and figures. Leuven: POSTING.STAT project VS/2020/0499, 2022,

pp.28–30.

(

)

Ibid, p.43.

(

)

Ibid, pp.31–32.

employees in the sector 86% were EU nationals (including nationals of the Netherlands) and 14% were TCNs (2020: 88%

versus 12%)(

2.3.2.8 Poland

Poland has been the primary sending country of posted workers in the construction sector in the EU. According to data from

the Polish Social Insurance Institution, there were 203678 PDs A1 issued in 2021 in the construction sector, which declined

signicantly by more than 63000 PDs A1 compared to 2020. As a share of total employment in the sector, these gures

translate to 26% in 2020 and 19% in 2021. About 51% were issued under Article 12 and 49% under Article 13 in 2021,

whilst the division was 35% and 65% in 2020.

Despite the decline in total issued PDs A1, the number of postings issued to TCNs in the construction sector more than

doubled in 2021 (21605), compared to 2020 (10216). Out of all posted TCNs, nearly four out of ve had Ukrainian

nationality. Moreover, the share of EU nationals (including Polish nationals) was 89% and the share of TCNs was 11%,

compared to 96% and 4% in 2020. This indicates a signicant increase of TCN workers being posted from Poland(

2.3.2.9 Slovenia

Similarly to Poland, Slovenia has been one of the main sending countries. Based on data from the Health Insurance Institute

of Slovenia, workers posted from Slovenia in 2020 amounted to 27% of national employment in the Slovenian construction

sector, which was the main sector of activity among posted workers. There were 42472 PDs A1 recorded in the construction

sector in total, of which 42392 were under Article 12 (43% of total PDs A1 issued under Article 12) and 50 under Article 13

(<1% of total PDs A1 issued under Article 13)(

). Additionally, among the main receiving countries, construction was the

main sector of activity in Germany (23359), Austria (7994), Belgium (5101), and Croatia (2557)(

Out of all PDs A1 issued under Article 12 in the construction sector, nearly half were issued to nationals of Bosnia and

Herzegovina (20864), whereas 19% were issued to Slovenian nationals (7919). Other signicant nationalities included

Kosovars (12%), Serbs (8%) and North Macedonians (3%), indicating the signicance of TCNs in the construction sector.

Moreover, 60% of all workers employed in the Slovenian construction sector were Slovenian nationals, whereas the share

of non-nationals (mainly from Bosnia and Herzegovina) was 40%(

). The fact that outgoing posted TCNs represented more

than double the number of postings compared to incoming posted TCNs is an indication of a possible ‘business model’

whereby TCNs are never employed in the country where they gained EU entry but are immediately posted to another

Member State(

2.3.2.10 Spain

Although there were no data available on PDs A1, the national administrative micro-data suggest that Spain was one of

the main sending Member States of posted construction workers in the EU. In 2019, construction was a signicant sector

in which posted workers from Spain were employed under Article 12 in France (25%, and 26% in 2020), Germany (23%),

and Portugal (18%). Under Article 13, only 4% were posted to France and other Member States in 2020(

). Among the

non-nationals, Spain posted primarily Romanian construction workers to France(

). As a sending country, the share of sent

workers in construction activities increased from 45% in 2019 to 60% in 2020(

). In terms of shares of total employment in

the sector(

), these are equivalent to 4.6% and 4.2% respectively.

(

) Ibid, p.39.

(

) Kiełbasa,M., Szaraniec,M., Mędrala,M., and Benio,M., Posted Workers from and to Poland: Facts and figures. Leuven: POSTING.STAT project

VS/2020/0499, 2022, pp.109–111.

(

) The remaining 30 PDs A1 were issued under Article 11 and/or Article 16.

(

) Vah Jevšnik,M., Cukut Krilić,S. and Toplak,K., Posted Workers from Slovenia: Facts and figures. POSTING.STAT project, 2022, pp.18–19.

(

) Ibid, pp.31–32.

(

) De Wispelaere,F., De Smedt,L., and Pacolet,J., Posted Workers in the European Union: Facts and figures. Leuven: POSTING.STAT project

VS/2020/0499, 2022b, p.36.

(

) Usually, PDs A1 issued under Article 13 do not allow the receiving Member States to be tracked. However, Carrascosa and Contreras were able

to collect quantitative data specifically for the French case.

(

) Carrascosa,M.D. and Contreras,Ó., Posted Workers from and to Spain: Facts and figures, Leuven: POSTING.STAT project VS/2020/0499, 2022,

pp.36–42.

(

) European Market Environment in the Construction Sector, Final Report, 2022a, p.10.

(

) ECSO, Data mapper– Number of persons empIoyed in construction (Spain), European Commission, 2021.

From a receiving perspective, available data from regional PDTs show that construction remained the main sector (52% in

2019, 48% in 2020), with posted workers coming in mostly through Portugal(

2.3.2.11 Other Member States

Data from other Member States on posted workers in the construction sector are rather limited. In Lithuania, there were

599 posted workers reported in the construction sector in 2021 (less than 1% of total employment in the sector(

)), which

increased from 390 in 2020(

). According to representatives from the respective national administrations, construction was

the main sector for incoming posted TCNs in Estonia, Latvia, Portugal and Finland. Construction was also the primary sector

for TCNs posted from Latvia, who were mostly posted to Sweden.

2.4 Intra-EU posting of TCNs in the construction sector

Intra-EU posting of TCNs is covered by the EU directives on the posting of workers. According to the Court of Justice of the

European Union (CJEU), TCNs legally employed in one Member State (e.g. with a work permit) can be posted to another

Member State without needing an additional work permit in this Member State(

). The Court also considered that a

visa request from receiving Member States targeting posted TCNs was disproportionate, as it would be excessive for the

receiving Member State to require a separate visa application solely for TCNs who are already legally employed in another

Member State and are being temporarily posted for work(

One of the most signicant trends in the construction sector across Member States over the last few years is the increased

prevalence of labour shortages(

). While the construction industry has grown, it has not been accompanied by an

equivalent growth in members of the domestic workforce who are qualied and available to work in that sector. The intra-

EU posting of TCNs is one of the responses to address such shortages, together with other policy and legal initiatives (e.g.

relaxing immigration rules for certain workers from third countries or by having specic bilateral treaties that allow posting

directly from third countries).

Indeed, the construction sector is one of the main sectors employing posted TCNs together with (road freight) transport

and agriculture(

). There are, however, some disparities between Member States on their use (e.g. Malta and Romania have

low numbers of posted TCNs in the construction sector, while in Belgium and Austria TCNs represent a signicant share of

posted workers)(

100

Posted TCN workers tend to present a higher degree of vulnerability than EU posted workers due, inter alia, to their

dependency on their employer for the renewal of the work and residence permits, language barriers, more exposure to

irregular employment and subsequent non-payment of social contributions and health insurance(

101

). Such vulnerability

is most likely to be enhanced in the construction sector considering, inter alia, the occupational health and safety risks

inherent to this sector (e.g. posted TCN workers are more likely to be less equipped and trained than workers from

Member States)(

102

). Furthermore, the complex transnational employment chains common in the construction sector (e.g.

subcontracting, cross-border mobility and temporary service provision) make it dicult to determine which company

is responsible for certain OSH obligations and related breaches involving posted TCN workers(

103

). Such ndings were

endorsed by several labour inspectors interviewed as part of this study, as detailed in the following sections.

(

)

Carrascosa,M.D., and Contreras,Ó., Posted Workers from and to Spain: Facts and figures, Leuven: POSTING.STAT project VS/2020/0499, 2022,

pp.50–53. Page49 of the text also states: ‘Although data about nationality of the posted workers were requested to the Autonomous

Communities, very few reported this information. Therefore, representative and conclusive results on the nationality of persons posted to

Spain cannot be provided. However, the data available confirms that in many cases the country of origin of the posted workers is similar to the

nationality of the posted worker.’

(

) ECSO, Data mapper– Number of persons empIoyed in construction (Lithuania), European Commission, 2021.

(

)

Information gathered through an interview with a Lithuanian administrative organisation, as part of the following study: Vancauwenbergh et

al., Report on the cooperation practices, possibilities and challenges between Member States– specifically in relation to the posting of third-country

nationals, 2023.

(

) CJEU, Judgment of the Court of 9August 1994, Raymond Vander Elst v Office des Migrations Internationales, C-43/93, EU:C:1994:310.

(

) CJEU, Judgment of the Court (First Chamber) of 21September 2006, Commission of the European Communities v Republic of Austria, C-168/04,

EU:C:2006:595, paragraph 67.

(

) Con3Post, ‘Posting of Third Country Nationals: Mapping the trend in the construction sector– project VP/2018/011/0019’, 2020, p.24.

(

) Vancauwenbergh,S., De Keyser,L., Lhernould,J., Homem,F., Dorval,J., and Akbaba,B., Report on the cooperation practices, possibilities and

challenges between Member States– specifically in relation to the posting of third-country nationals, ELA, 2023, pp.95–96.

(

100

) Ibid, see in particular Table10: Main sectors of posted third-country nationals.

(

101

) Con3Post, ‘Posting of Third Country Nationals. Mapping the trend in the construction sector– project VP/2018/011/0019’, p.15.

(

102

) Vah Jevšnik,M., POOSH Country Report in Slovenia, 2018, p.17. Available at: http://www.poosh.eu/resources/poosh-country-reports/.

(

103

) Con3Post, ‘Posting of Third Country Nationals. Mapping the trend in the construction sector– project VP/2018/011/0019’, p.57.

2.5 Abusive practices in the context of the posting of workers in the construction sector

The construction sector is a price- and labour-intensive sector, with a high prevalence of subcontracting arrangements and

strong competition among actors. Posting of workers in this sector is common and it applies in a cross-border situation

where rules regarding labour law, social security contributions, income tax levels and the cost of living vary signicantly

between the net sending and receiving Member States. Posting of workers is therefore more likely to be exposed to

abusive practices in the construction sector, leading to infringements and violations of Member State legislation. In the

questionnaire targeting representatives of labour inspectorates, interviewees were requested to list and provide comments

on the type of abusive practices they were experiencing related to posted workers in the construction sector. According

to their feedback, the most signicant and recurrent violations and abusive practices concern the setting up of letterbox

companies, the non-respect of working conditions, bogus self-employment, fraudulent PD A1 forms and illegal employment

of TCNs. However, these are only the views reected during interviews and are not based on statistical data being collected

within Member States. This points to a need for improving focused data collection and data sharing regarding inspections,

violations, and the application of sanctions. It should be noted that these abusive practices are often interlinked (e.g.

fraudulent PDs A1 in the case of fake posting or bogus self-employment or illegal employment of TCNs linked to letterbox

companies), as further detailed in the following paragraphs.

Letterbox companies in sending countries

The European Commission’s study on letterbox companies(

104

) highlights that there is no single or agreed denition of

letterbox companies(

105

). Within the context of posting, letterbox companies are considered as companies registered in a

sending Member State but that de facto do not perform any activity in that Member State except hiring workers and posting

them to other Member States. These posted workers do not, or hardly, work in the sending Member State. The aim of this

practice is to benet from cost savings (e.g. lower social security costs on posted workers aliated to sending countries).

The use of letterbox companies to circumvent the rules on posting of workers has been identied as an issue of paramount

importance by interviewees. Enforcement actors at the national level encounter signicant diculties in assessing whether

a company sending posted workers in the construction sector could be considered a letterbox company. As highlighted by

a representative of the labour inspectorate in Spain(

106

), such a practice was one of the most common fraudulent practices

involving posted workers in the construction sector (e.g. letterbox companies established in Spain sending workers to

France, or letterbox companies established, for instance, in Poland and Romania sending posted workers to Spain).

Fake posting by means of permanent/rotating posting

Fake or permanent rotating of posting goes against the ‘temporary’ feature of the posting of workers. Notably, it is meant

to circumvent the rule established by Article 3(1)(a) of the Posting of Workers Directive, according to which postings lasting

for more than 12months entail the application, on the basis of equality of treatment, of all the terms and conditions of

employment established by applicable legislation and collective agreements. As mentioned in the impact assessment

accompanying the revision of the legislative framework on the posting of workers in the context of provision of services,

to justify the dierence in treatment between posted workers (core protection) and migrant workers (equal treatment),

the posting must be of a temporary nature. If the duration of the posting is excessive, the presumption behind the

dierence in legal status between these two categories of workers is no longer valid. The same situation occurs if the same

or dierent employees are repeatedly recruited by an undertaking with the purpose of being posted to another Member

State for carrying out the same job (rotational postings)(

107

). Such an abusive practice is considered quite common in the

construction sector by representatives of labour inspectorates, to the point that in Spain, for instance, it was reported that

posted workers in the construction sector were staying several years without going back to the sending Member States(

108

(

104

) European Commission, Directorate-General for Justice and Consumers, De Wispelaere,F., Schuster,E., Morel,S., et al., Letterbox companies:

Overview of the phenomenon and existing measures– Final report, Publications Office of the European Union, 2021 (https://data.europa.eu/

doi/10.2838/41247).

(

105

) Note that such a definition does not seem plausible in the foreseeable future, due to Member State discretion regarding their own company

law and registration rules for companies.

(

106

) Official of the Labour Inspectorate of Spain, interview held in January 2023.

(

107

) Commission Staff Working Document– Impact Assessment– Revision of the legislative framework on the posting of workers in the

context of provision of services (SWD(2012) 63 final– APP/2012/0064), available at: https://eur-lex.europa.eu/legal-content/EN/TXT/

HTML/?uri=CELEX:52012SC0063&from=EN.

(

108

) Official of the Labour Inspectorate of Spain.

Bogus self-employment

Bogus self-employment (also known as ‘sham self-employment’) is referred in Recital 10 of the Enforcement Directive(

109

)

as ‘workers falsely declared as self-employed’(

110

). In the literature, it is dened as somebody voluntarily assuming or being

forced to assume the status of self-employed, while the person can or should be dened as an employee subordinated to

an employer(

111

). Such a fake self-employment status allows cost savings for posting companies, by avoiding the payment

of social security contributions and taxes for their workers, by providing more exibility in hiring and dismissing posting

workers, by reducing administrative burden associated with managing posted workers and by bypassing the application

of occupational health and safety and working conditions (e.g. minimum or collectively agreed income, working time). As

agged by interviewees, it is very dicult for enforcement authorities to demonstrate cases of bogus self-employment

in a posting context, considering the temporary nature of the work and the diculty of verifying their proper status in

the sending Member States. This practice has a very negative impact on the posted workers concerned since, as outlined

by a representative of the Construction Workers’ Annual Leave and Severance Pay Fund (BUAK) in Austria (in charge of

distributing benets to construction workers(

112

)), they cannot receive the benets they are entitled to under labour law

(e.g. holiday pay, bad weather compensation).

Overtime and underpayment as non-respect of working conditions

In this abusive practice, minimum employment and working conditions set by law in the receiving Member State are

not respected by employers, particularly regarding wages, working hours and the occupational health and safety legal

framework. The interviewee in Austria(

113

) considered that underpayment was a main concern, detailing that the amount

of underpayment in the case of non-compliance with the national wages was extremely high, representing around 60%

of the salary amount due. In the same vein, the interviewee in Spain(

114

) stressed that underpayment practices were quite

common for wages that were below the minimum wages set under sectoral collective agreements. The interviewees

in Italy mentioned that very often workers have to return to their employers what they have accrued and been paid by

the construction funds (e.g. holidays, 13th month pay). They also identied that levels of posted workers are adjusted

downwards, with lower job proles, while in fact they are carrying out the work of specialised workers(

115

Fraudulent PD A1 form

A PD A1 form can be fraudulent if it contains false or misleading information or if it has been obtained through fraudulent

means. For example, a company could fraudulently obtain PD A1 forms for their workers by falsely claiming that the

workers are still employed in their home country and are not subject to the social security system of the receiving Member

State. This is often linked to the abusive practice of fake posting by means of permanent/rotating posting. In Belgium(

116

several public authority representatives are of the view that fake PD A1 forms are common mostly among posted TCNs.

As highlighted by labour inspectors in Spain(

117

), the fraudulent use of PD A1 forms is a major problem in the construction

sector, in particular where companies are being granted PD A1 forms for all of their workforce, implying that in the country

where companies are established there is no activity due to the lack of sta being posted. Likewise, labour inspectors in the

Netherlands have noted recurrent instances where posted workers were unaware of the PD A1 form and did not have such a

document with them. This suggests that their employers were likely withholding this information fraudulently(

118

Illegal employment of TCNs or fraudulent posting of TCNs

This refers to the situation where a company employs a worker from a third country to work in a receiving Member State

without obtaining the necessary work and residence permits, or without complying with the applicable labour laws

and regulations or posting rules. This was raised by labour inspectors as a very common practice in the construction

(

109

) Directive 2014/67/EU of the European Parliament and of the Council of 15May 2014 on the enforcement of Directive 96/71/EC concerning the

posting of workers in the framework of the provision of services and amending Regulation (EU) No1024/2012 on administrative cooperation

through the Internal Market Information System (‘the IMI Regulation’) (OJ L159, 28.5.2014, p.11).

(

110

) Recital 10 of Directive 2014/67/EU.

(

111

) Werner,B. (ed.), Self-employment and bogus self-employment in the European construction industry: Part 2– Abstracts of 11 country reports, 2009.

(

112

) Staff member of BUAK of Austria, interview held in January 2023.

(

113

) Ibid.

(

114

) Official of the Labour inspectorate in Spain, interview held in January 2023.

(

115

) European Employment Services (EURES) National Coordinator Italy reporting a position of the Italian trade union Confederazione Italiana

Sindacati Lavoratori, interview held in December 2022.

(

116

) Official of the Ministry of Labour of Belgium, Official of the Office National de Sécurité Sociale [National Office of Social Security] of Belgium,

Staff member of the National Institute for the Social Security of the Self-Employed of Belgium, interviews held in January 2023.

(

117

) Ibid.

(

118

) Officials of the Nederlandse Arbeidsinspectie [Dutch Labour Inspectorate], interviews held in February and December 2022.

sector. SOKA BAU(

119

) specied that fraudulent postings of TCNs in the construction sector occurred, for instance, via

the establishment of a branch or subsidiary of a third-country company (e.g. from Bosnia and Herzegovina) in a sending

Member State (e.g. Slovenia) with limited or no economic activity in that Member State, pointing to a situation where the

TCN workers never really worked in the sending Member States but only in the receiving Member State (e.g. Germany);

hence avoiding fully applying the legislation and collective agreements of the Member State where the work was performed

according to Article 8(2) of Regulation (EU) 593/2008 on the law applicable to contractual obligations (Rome I)(

120

Table7: Typology of abusive practices in the construction sector

Type of abusive practices Proposed denition in the construction context

Letterbox companies in sending

countries

Companies registered in a sending Member State but that de facto do not or hardly perform

construction work activities in that Member State apart from hiring workers and posting

them to other Member States, in order to benet from cost savings (e.g. lower social security

costs on posted workers aliated in sending countries).

Fake posting by means of

permanent/rotating posting

Practice which goes against the ‘temporary’ feature of the posting of workers, as long-term

postings should not exceed 12months. If the duration of the posting is excessive due to

permanent/rotating posting, the presumption behind the dierence in legal status between

posted workers (core protection) and migrant workers (equal treatment) is no longer valid.

Bogus self-employment Workers voluntarily assuming or being forced to assume the status of self-employed, while

the person can or should be dened as an employee subordinated to an employer.

Non-respect of working conditions Minimum employment and working conditions set by law in the receiving Member State

are not respected by employers, particularly regarding wages, working hours and the

occupational health and safety legal framework.

Fraudulent PD A1 form A PD A1 form is fraudulent when it contains false or misleading information or if it has been

obtained through fraudulent means. For example, a construction company falsely claiming

that the workers are still employed in their home country and are not subject to the social

security system of the receiving Member State.

Illegal employment of TCNs or

fraudulent posting of TCNs

A company employs a worker from a third country to work in a receiving Member State

without obtaining the necessary work and residence permits or without complying with the

applicable labour laws and regulations.

(

119

) Staff Member of the SOKA BAU of Germany, interview held in January 2023.

(

120

) Article 8(2) reads as follows: ‘To the extent that the law applicable to the individual employment contract has not been chosen by the

parties, the contract shall be governed by the law of the country in which or, failing that, from which the employee habitually carries out his

work in performance of the contract. The country where the work is habitually carried out shall not be deemed to have changed if he is

temporarily employed in another country’ (bold added).

3. Information needs of workers and employers and

measures to address them

Main ndings

• The Enforcement Directive and the revised Posting of Workers Directive require workers and

employers to be adequately informed about their rights and obligations during posting. Several

measures have been implemented by Member States to support this requirement. Furthermore,

initiatives have been put in place by social partners to inform workers and employers. Despite

these measures, there still appears to be a deciency in the level of information held by posted

workers and their employers in the construction sector.

• This lack of awareness and need for information is even more pronounced for posted

TCN workers. These workers are more likely to be socially, geographically and culturally

marginalised, and having less access to trade unions.

• Several shortcomings are identied in the quality of provided information communication

methods can be identied, leading to confusing duplication and diculties in identifying the

relevant information. These include dicult legal wording, language that is not easy to read and

very complex, a lack of translations into relevant languages in particular for posted TCNs, and

multiple sources of information that are not standardised or consistent.

• Workers need to be properly informed on applicable remuneration, clear working time limits,

overtime regulations, number of leave days, and the OSH legal framework and its scope. In

addition, employers must be properly informed about necessary administrative formalities

related to posting.

• Information needs are less likely to be addressed in SMEs that do not have the capacities or

resources to employ or hire legal experts to explain the rules and obligations to them.

• Direct interaction with posted workers is crucial to ensure that they are well informed. This

interaction facilitates a better understanding of the workers’ individual legal situations and

allows for tailored information to meet their specic needs. Entities responsible for carrying out

these tasks should be given sucient funding. This would include nancing for legal training for

personnel and provision of multilingual services via mediators and interpreters.

• Centralised eorts at the EU level, including a common website and a helpdesk at the EU level,

could foster a concrete advancement in workers’ and employers’ awareness of rights and

obligations in the construction sector.

This section provides a comprehensive discussion around the critical issue of informing posted workers and their employers

within the construction sector about their rights and obligations. Section3.1 details the EU legal framework that mandates

the provision of information and examines the measures and tools developed by Member States, social partners and the

Commission to provide this information. Section3.2 identies the specic information needs within the sector, highlighting

the gaps in knowledge that persist among posted workers and their employers and considering the type of information

they need and in which form. Finally, Section3.3 proposes some suggestions to better inform posted workers and their

employers in the construction sector, with the aim of enhancing their understanding of their rights and obligations. This

section contains three illustrative case studies:1) on construction companies’ initiatives in sending and receiving Member

States to inform posted workers in the construction sector; 2) on employer practices when accessing information; and 3) on

the role of social partners in the provision of information to workers and employers.

3.1 Legal framework on information and relevant tools and actors

Inadequate or absent information poses a barrier to exercising rights and fullling obligations. The eectiveness and proper

implementation of law and regulations largely rely on the dissemination of information to all relevant actors. Within the

context of posted workers, the provision of information encompasses three distinct dimensions.

• Article 7 of Directive (EU) 2019/1152(

121

) establishes that Member States shall ensure that employers inform workers,

including in the context of posting, on the terms and conditions of employment.

• Article 3 of the Posting of Workers Directive establishes the applicable terms and conditions of work and employment that

undertakings must guarantee to workers posted to their territory. Such terms and conditions of work and employment

relate to several matters (explicitly listed in Article 3 of the Posting of Workers Directive), as laid down by law or collective

agreements. Among these matters, the provision of information is not mentioned. However, there are some subjects

(e.g. health, safety and hygiene at work) whereby information obligations are imposed on the company (in favour of the

worker).

• Article 4 of the Posting of Workers Directive and Article 5 of the Enforcement Directive establish several obligations

for Member States to inform all the players involved in the framework of posting on the terms and conditions of

employment(

122

The European Pillar of Social Rights action plan sets out 20 principles and rights to ensure fair and well-functioning labour

markets and social protection systems(

123

). Principle No7 of the European Pillar of Social Rights provides that workers

have the right to be informed in writing at the start of employment about their rights and obligations resulting from the

employment relationship, and also that prior to any dismissal, workers are entitled to be informed of the reasons and given

a reasonable period of notice(

124

Article 7(2) of Directive 2019/1152 implements principle No7 of the European Pillar of Social Rights in the posting context.

It establishes that Member States must ensure that posted workers receive additional information from their employers that

is specic to their situation. This includes essential information on the terms and conditions of employment and on working

conditions, remuneration, allowances, and any arrangements for reimbursing expenditure on travel, board and lodging,

along with a link to the single ocial national website provided for by Article 5(2) of the Enforcement Directive.

Box1: Case study on construction companies’ initiatives to inform posted workers in

the construction sector in sending and receiving Member States

This case study aimed to identify whether in 10 Member States(

125

) there were any relevant

practices implemented by construction companies within their employers obligations to inform

posted workers.

The following initiatives were identied.

• Educational workshops and seminars to inform workers about their work rights and obligations

applicable to posting schemes. These events may include presentations by experts and lawyers,

and question and answer sessions.

(

121

) Directive (EU) 2019/1152 of the European Parliament and of the Council of 20June 2019 on transparent and predictable working conditions in

the European Union (OJ L186, 11.7.2019, p.105).

(

122

) Article 5 of the Enforcement Directive aims to improve access to information and introduces an obligation for Member States to set up single

official national websites, including the terms and conditions of employment to be applied to workers posted to their territory, according

to the applicable collective agreement. The information must be available free of charge to workers and service providers in the official

language of the receiving Member State and in the most relevant languages (taking into account the demand of the Member State’s labour

market). Article 5(3) of the Enforcement Directive provides that the European Commission shall continue to support Member States in the

area of access to information. Member States are also obliged to publish all the terms and conditions of employment laid down in collective

agreements for service providers and posted workers, and to make information available with regard to bodies and authorities which could

provide general information to workers.

(

123

)

European Commission, Directorate-General for Employment, Social Affairs and Inclusion, The European Pillar of Social rights Action Plan, 2022.

(

124

) Principle No7 also establishes that workers have the right of access to effective and impartial dispute resolution and, in the case of unjustified

dismissal, a right to redress, including adequate compensation.

(

125

) Belgium, Germany, France, Croatia, the Netherlands, Austria, Poland, Portugal, Slovenia and Slovakia.

• Manuals or brochures that contain information about rights and obligations applicable to

posting schemes. These materials can be made available both on digital tools or in printed form

and can be distributed to workers during training or through internal communication channels.

• Advisory activities led by professionals such as lawyers, human resources advisors or consultants

who can provide advice and support to workers regarding their rights and obligations

applicable to posting schemes. These support services may be available by phone, email or

through an in-person exchange (e.g. helpdesks).

• Online platforms to provide workers with access to information about their employment

rights and obligations applicable to posting schemes. These platforms can include online

manuals, interactive learning modules, and even chatbots that can provide answers to common

questions.

• Training sessions, frequently facilitated by external agencies or rms(

126

Such initiatives mostly come from large companies and not SMEs.

Trade unions have nonetheless emphasised that it is not necessarily the case that large-

scale structured information systems deliver information of a higher quality or that it is more

widely disseminated among workers. In a similar way, an ocial of the Federatie Nederlandse

Vakbeweging [Federation of Dutch Trade Unions] (FNV) observed that while larger companies

might have more legal expertise or human and nancial capacity, it is not guaranteed that the

information will be eectively disseminated to posted workers at the ground level(

127

). The

causes vary, and can include, inter alia, more complex organisational structures in these larger

companies that can potentially hinder such dissemination. Trade unions consulted at the national

level further emphasised that measures aimed at informing workers very often come from

initiatives such as Faire Mobilität, from labour inspectorates or liaison oces, or from the trade

unions, and therefore not necessarily from employers.

Member State competent authorities are also responsible for providing accessible information regarding posting

regulations. According to Article 4 of the Posting of Workers Directive, each Member State must take appropriate measures

to make available the information on the terms and conditions of employment. Such terms and conditions are listed in

Article 3 of the Posting of Workers Directive, including the law applicable to the employment relationship laid down by

regulation or administrative provisions, and/or by collective agreements or arbitration(

128

The Enforcement Directive has expanded into the obligations set forth by the Posting of Workers Directive, enhancing

elements related to information accessibility. Member States must take the appropriate measures to ensure that the

information on the terms and conditions of employment referred to in Article 3 of the Posting of Workers Directive is made

available free of charge in a clear, transparent, comprehensive, and easily accessible way at a distance and by electronic

means as detailed in its Article 5(

129

One of the requirements under Article 5 of the Enforcement Directive is to establish, and keep up to date, a single ocial

national website with information on the terms and conditions of employment that apply to workers posted to their

territory. The role of single ocial national websites has been further strengthened by Directive (EU) 2018/957 amending

the Posting of Workers Directive(

130

). Article 3 of the Posting of Workers Directive now requires Member States to ensure

(

126

) Trade union official– FNV construction sector and trade union official of the Christelijk Nationaal Vakverbond [Christian National Trade Union

Federation] (CNV), the Netherlands, interview held in April 2023. Regional representative Trade Union of Construction Industry of Croatia,

interview held in April 2023.

(

127

) Trade union official– FNV construction sector and Trade union official– CNV, the Netherlands, interview held in April 2023.

(

128

) Concerning (a) maximum work periods and minimum rest periods; (b) minimum paid annual holidays; (c) the minimum rates of pay, including

overtime rates (this point does not apply to supplementary occupational retirement pension schemes); (d) the conditions of the hiring-out

of workers, in particular the supply of workers by temporary employment undertakings; (e) health, safety and hygiene at work; (f) protective

measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children

and of young people; (g) equality of treatment between men and women and other provisions on non-discrimination.

(

129

) Article 5(1) of Directive 2014/67/EU.

(

130

) Directive (EU) 2018/957 of the European Parliament and of the Council of 28June 2018 amending Directive 96/71/EC concerning the posting of

workers in the framework of the provision of services.

that the information provided on the single ocial national website is accurate and up to date. Furthermore, contrary to

Article 5 of the Enforcement Directive, where the information on the single ocial national website does not indicate which

terms and conditions of employment are to be applied, that circumstance must be considered when determining penalties

in the event of infringements of the national provisions adopted pursuant to this directive. Annex3 provides the complete

list of single ocial national websites. In a report on the application and implementation of the Enforcement Directive

released in 2019, the Commission(

131

) stated that all Member States have set up their websites and these largely full the

conditions provided in the directive, including the language requirements, and that many websites go further as regards

the scope of information presented. The views of the labour enforcement authorities and paritarian institutions consulted

in the framework of this study were in line with this statement and described examples of useful features on these national

websites. In Austria, the Posting of Workers Platform(

132

) informs workers who are posted to Austria about their rights and

entitlements in dierent languages, facilitating the identication of the Austrian collective agreement potentially covering

that activity(

133

). In Spain, in recent years the Directorate General of Labour increased the number of languages in which the

information is available on the website(

134

), due to the funds made available by ELA(

135

). In Italy, the website has recently

been translated into Romanian(

136

). France and Norway provide high-quality information in Polish that makes it easy for

employers and employees to access and grasp the rules with which to comply(

137

). In Germany, SOKA BAU has a website

and hotlines in 14 languages regarding information on the paid leave scheme(

138

In Finland, extensive information regarding workers’ rights is available on the Occupational Safety and Health Authority’s

webpage(

139

). According to a senior advisor of an EU organisation representing employers, the Limosa website developed

in Belgium is appreciated among employers, as it is considered as a relevant support for the preparation of the prior

declaration(

140

On the contrary, some representatives of employer organisations and paritarian organisations consulted under this

study are of the view that most of the single ocial national websites are still only available in the language of the

receiving Member States or in English and thus present barriers to access for some posted workers and employers(

141

On the completeness of information, Jorens and De Wispelaere stressed that national websites do not always refer to the

application/declaration procedure of posted workers in both sending and receiving Member States(

142

). Furthermore, many

of them do not contain information on social security law and tax law, or even on the applicable collective agreements(

143

Kall and Lillie arm that it is dicult to assess whether the single ocial national website is eective in its mandate,

specifying that it is also crucial that stakeholders and workers have knowledge of which websites are relevant and how to

nd them(

144

The responsibility for informing workers and posting undertakings lies not only with Member States, but also with the

Commission, as established by Article 5(3) of the Enforcement Directive. The Commission must publish on its website the

addresses of the single ocial national websites. The Commission currently fulls this obligation by providing, via the

Your Europe website, the basic information on posting and links to ocial national websites, as well as other national

websites providing information on applicable legislation and collective labour agreements. In addition, the Your Europe

website provides a question and answer section where clear and simple clarications on specic aspects are provided. The

Commission also has a dedicated page entitled ‘Posted Workers’, which covers, inter alia, basic information on the role of

ELA, information on employment rights and working conditions for posted workers, and the EU legislation on posting of

workers and coordination of social security systems, and also a hyperlink to the Your Europe website.

(

131

) Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee on the application

and implementation of Directive 2014/67/EU of the European Parliament and of the Council of 15May 2014 on the enforcement of Directive

96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) 1024/2012 on

administrative co-operation through the Internal Market Information System ('the IMI Regulation'), COM(2019) 426 final of 25September 2019.

(

132

) Available at: www.entsendeplattform.at.

(

133

) Official of the Finance Police in the Ministry of Finance of Austria, interview held in January 2023.

(

134

) Now available in Bulgarian, English, French, German, Italian, Polish, Portuguese and Romanian.

(

135

) Labour Inspectorate of Spain, interview held on 13January 2023.

(

136

) Officials from the Italian Labour Inspectorate, interview held in January 2023.

(

137

) Polish Department of Legality of Employment, Chief Labour Inspectorate, Acting Director, interview held in January 2023.

(

138

)

Staff member of BUAK of Austria, interview held in January 2023.

(

139

) Available at: https://www.tyosuojelu.fi/web/en.

(

140

)

Senior advisor of an EU organisation representing employers, interview held on 15December 2022.

(

141

) Senior advisor of an EU organisation representing employers, interview held on 15December 2022. Staff Member of SOKA BAU in Germany,

interview held in January 2023.

(

142

) Jorens,Y., and De Wispelaere,F., ‘Intra-EU posting: Looking for solutions– a herculean or a sisyphean task?’, Belgisch tijdschrift voor sociale

zekerheid-ministerie van tewerkstelling en arbeid, No1, 2019, pp.113–137.

(

143

) Ibid, p.117.

(

144

) Kall,K. and Lillie,N., Protecting Mobility through Improving Labour Rights Enforcement in Europe (PROMO) Project, Protection of Posted

Workers in the European Union: Findings and Policy Recommendations based on existing research, 2017, p.28.

Tools that are complementary to national-level websites have been implemented by transnational organisations at the EU

level. For example, the European Construction Mobility Information Net webpage, developed by the European Federation of

Building and Woodworkers (EFBWW), provides basic information to posted workers on the (minimum) wages and working

conditions in the construction industry of all Member States. The webpage also allows direct communication between

the posted worker and the local trade unions. Given the increasing relevance of TCNs in posting schemes, one of the main

challenges lies in the need to increase the number of non-EU languages for posted TCNs in which information is presented

on the website. The data were updated for most Member States in 2022, but some countries’ data were last updated in

2017. Before this initiative, the European Construction Industry Federation (FIEC) and the EFBWW created a joint website on

the posting of workers in the construction industry(

145

A questionnaire targeting labour inspectors in 17 countries contained an open question to identify good examples of

measures in place for improving workers’ and employers’ awareness of their rights and obligations in the construction

sector. The inspectors responded that websites with multiple language versions, awareness-raising campaigns and

provision of informative materials (handbooks, posters, leaets, visuals, etc.) were the most relevant tools for informing such

workers and employers. They also highlighted the crucial role of social partners as key actors in diusing such information in

a posting context. This is the theme of the following case study.

Box2: Case study on the role of social partners in provision of information to

workers and employers

This case study covers information gathered in Belgium, Croatia, the Netherlands, Austria and

Poland.

Trade union initiatives and activities

In the construction sector, trade unions provide information to workers on two dierent levels:

EU and national. The provision of information at the EU level is mainly developed by the EFBWW,

through awareness-raising campaigns addressing workers, civil society and policymakers on a

range of dierent topics, including cross-border social fraud, subcontracting chains, temporary

work agencies, human tracking and organised crime. Additionally, the EFBWW carries out joint

campaigns with the FIEC.

At the national level, trade unions carry out a variety of activities to inform posted workers,

despite the diculties that exist in unionising such workers. The following three cases illustrate

the activities carried out by trade unions in the construction sector in Austria, the Netherlands

and Poland, demonstrating how the nature and scope of trade union initiatives targeting posted

workers in the sector varies considerably across Member States. In Austria, the trade union with

a mandate on the construction sector implements specic initiatives targeting posted workers,

including in particular the establishment of oces at key places on the Austrian border. For

instance, since 2017 an oce has been established between Austria and Slovenia in Spielberg,

where many posted workers, including from third countries, arrive. The Austrian trade union of

building and woodworkers considers this oce to have been very successful, as posted workers

are informed directly at the border and in their native language of their rights and the applicable

legislation relating to the posting. Moreover, workers can access this information anonymously.

The Austrian trade union is planning to establish other oces at the borders with Czechia and

Slovakia(

146

). In parallel to this activity, the Austrian trade union of building and woodworkers

distributes information brochures about rights, entitlements and obligations derived from EU

labour mobility legislation (notably posting and social security issues) in dierent languages.

In the Netherlands, limited initiatives targeting posted workers in the construction sector have

been identied, as trade unions usually try to reach out to posted workers only on an ad hoc

basis. Trade unions employ sta that can speak the main languages of sending Member States

(

145

) The website is not updated due to a lack of financing. Following the changes to the EU legislation on the posting of workers, in particular the

entry into force of Directive 2018/957, the information presented on the website is no longer up to date.

(

146

) Members of the Austrian trade union of building and woodworkers, interview held in April 2023.

and can, in addition to their everyday work and mission, support posted workers. Posted workers

can also benet from more cross-sectoral initiatives, such as union visits to migrant workers in the

workplace, which target dierent categories of workers, including posted workers(

147

In Poland, the majority of posted workers in construction are not unionised. Posted workers

normally contact trade unions only when a violation has already happened.

Cross-border initiatives and support between trade unions

A specic aspect of trade union activity that is particularly relevant in the context of labour

mobility and social security coordination is cross-border initiatives, in which the sectoral trade

union at the EU level, the EFBWW, plays a key role. Along the same lines, representatives

of trade unions in Austria and the Netherlands consider that, in particular, the website

constructionworkers.eu (managed by the EFBWW) is very relevant. The website provides concise

information on wages, working conditions and rights of construction workers for all Member

States in all EU languages. In general, the area of labour mobility and all the connected challenges

(fake posting, cross-border social fraud and the posting of bogus self-employed workers, along

with social abuses such as the use of letterbox companies) is indeed one of the main priorities

of the EFBWW Strategic Plan 2020–2023. Alongside this, the EFBWW has a key role in facilitating

cooperation among its national members, including through the creation of networks to help

share best practices in capacity building and organisation(

148

In Poland, the interviewed trade union representative mentioned that posted workers were

redirected to trade unions in receiving countries if they experience problems, but also to other

institutions such as SOKA BAU. Some trade unions, for example in Belgium and the Netherlands,

have Polish sta on the helpdesks and others prepare information sheets for posted workers

in Polish (and other languages such as Romanian). Some other Member State trade unions are

keeping the Polish trade unions (e.g. ZZ Budowlani) up to date regarding changes in collective

agreements.

Employer organisations support to construction companies

Employer organisations implement several measures to support companies in the construction

sector. These include a range of dierent initiatives including helpdesks, seminars, workshops and

conferences with relevant experts and representatives of institutions. Employer organisations also

inform members via informative materials, such as brochures and easy-to-read documents about

their rights and obligations related to postings(

149

). Employer organisations also provide direct

assistance to their members, undertaking advisory activities on specic cases.

Some EU-level employer organisations and trade unions in the construction sector have

advocated for the creation of a single online access point that would list all applicable provisions,

by country of posting at the EU level in dierent languages. Such a platform would facilitate the

role of employer organisations in providing information to employers.

Initiatives and activities implemented by advisory organisations and paritarian institutions

The advisory activities provided by Faire Mobilität(

150

) allow workers to know what their

expectations should be in dierent Member States and oer legal advice to the workers on an

individual level(

151

). A project implemented by Faire Mobilität which deserves attention (although

not specically targeting the construction sector) is the ‘Fair European Labour Mobility’ project,

nanced by the European Union European Social Fund Plus. The project envisages trade unions

(

147

) Trade union official– FNV construction sector and trade union official– CNV, the Netherlands, interview held in April 2023.

(

148

) See EFBWW, ‘Strategic Plan: Main Priorities 2020‐2023’, available at: https://www.efbww.eu/activities/strategic-plan-2020-2023/1-a.

(

149

) Regional representative of the Trade Union of Construction Industry of Croatia, interview held in April 2023.

(

150

) https://www.faire-mobilitaet.de/en

(

151

) Staff members of the EFBWW, interview held in December 2022.

in sending countries (Hungary, Slovenia, Poland and Romania) and receiving countries (Austria)

cooperating with Faire Mobilität. Among other activities, the project aims to reinforce the

transnational cooperation of sector-specic cooperation centres within trade unions in sending

and receiving Member States. The goal is to provide transparent access to information on

working conditions and administrative requirements(

152

The paritarian organisation SOKA BAU has been mentioned as a key player in the provision of

information, for both employers and workers in the German construction sector(

153

). SOKA BAU

has its own infrastructure for informing posted workers, including a website and hotlines in 14

languages(

154

3.2 Information needs

The Enforcement Directive and the revised Posting of Workers Directive require workers and employers to be adequately

informed about their rights and obligations during posting. In addition to these, several measures have been implemented

by Member States to support this requirement. Furthermore, initiatives have been put in place by social partners to inform

workers and employers. Despite these measures, the research and interviews conducted for this study reveal that in the

construction sector, posted workers and employers are still not consistently well-informed. This nding mainly comes from

the opinion of the majority of labour inspectors interviewed under this study who are in contact with posted workers and

their employers in the construction sector in their everyday work and are therefore considered well-placed to assess their

degree of awareness and related information needs. Nevertheless, a comprehensive survey targeting posted workers and

their employers in the construction sector across the EU would be necessary to properly assess these information needs.

Examples of information needed by employers

• Applicable remuneration, notably as regards complementary elements which are now

mandatory after the 2018 revision of the Posting of Workers Directive.

• Clear working time limits, overtime regulations and number of leave days.

• the OSH legal framework and its scope.

• Clear indication of necessary formalities for posting declarations, document retention and

indication of the person of contact.

• Contacts with chambers of commerce/ employer organisations that can provide helpdesk

support.

• Information translated in their language and easy to read.

Examples of information needed by workers

• Applicable remuneration, notably as regards complementary elements which are now

mandatory after the 2018 revision of the Posting of Workers Directive.

• Clear working time limits, overtime regulations and number of leave days.

• Contact details and ways to get in touch with trade unions, labour inspectorates and other

providers of information and advice.

• Rights and rules related to accommodation.

(

152

) Information available at: https://www.fair-labour-mobility.eu/

(

153

) Coordinator of the construction sector for an organisation providing advice on labour mobility rules, interview held in December 2022.

(

154

) Staff Member of SOKA BAU in Germany, interview held in January 2023.

Main drawbacks identied in the quality of information provided

• Information using legal wording and thus not easy to read and very complex.

• Not in all relevant languages, in particular for posted TCNs.

• Multiple sources of information not standardised, leading to confusing duplication and

diculties in identifying the relevant information.

3.3 Suggested way forward to better inform posted workers and their employers in the

construction sector

Section3.2 illustrates that information needs related to posting in the construction sector are dierent for employers and

employees, in particular regarding the nature of the information and its delivery method. Within this study’s framework,

European and national employer and trade union organisations have been solicited for their input on how to enhance

the present information delivery system. Based on these recommendations, it appears that future improvements should

consider these distinctive needs since currently, at both the EU and the Member State level, the manner in which

information is disseminated and the type of information oered to employers and workers is undierentiated.

Regarding the provision of information to workers, representatives of trade unions at the EU and national level consulted

under this study raised the importance of complementing the information on single ocial national websites and other

websites with an in-person interaction between posted workers and employers. It is only through in-person interaction

that the legal status of the worker can be framed in all its legal facets(

155

). Especially when it comes to posting schemes,

targeted information on the ground (e.g. the network for Faire Mobilität in Germany) should be provided, for example, by

recruiting native speakers in cooperation with trade unions. The provision of information on the ground for the benet

of workers could be strengthened by the role of trade unions. No specic measures have been formulated, but the main

suggestions focused on the deployment of funds. At the level of trade unions, given the public purpose of this activity,

the entities performing this service could receive public funds, therefore including trade unions that provide information

to non-aliated workers. Thus, the European Union should provide additional funds and resources for the provision of

information, promoting the dissemination of information on posting and social security coordination rules with face-to-face

interaction(

156

Concerning information to be provided to employers, an EU employer organisation considers that a concrete advancement of

employers’ awareness can only be achieved with a centralised eort at the EU level, through initiatives led by ELA(

157

). First, the

creation of a common website at the EU level would facilitate the understanding of the national legal frameworks, as currently

the dierent websites implemented at the Member State level are dicult to navigate(

158

). Secondly, an approach that goes

beyond mere information published on websites and including a more interactive way of providing information through a

helpdesk set up within ELA could facilitate access to information(

159

). This helpdesk should be able to provide information and

advice to employers, as the single ocial national websites implemented in the framework of the Enforcement Directive are

not easy to navigate and understand, especially for those not familiar with the EU legal system or the language of the Member

States concerned(

160

). In the same vein, as detailed in case study No3, several representatives of employer organisations but

also some trade unions in the construction sector advocated for the creation of a single online access point at the EU level that

would list all applicable provisions, by country of posting (single portal) in dierent languages.

The potential role played by ELA in the provision of information appears crucial, both in the receiving and sending Member

States. ELA could be the promoter not only of centralised digital tools such as the ELA helpdesk on labour mobility,

interactive guides addressing companies posting workers, but also of the implementation of long-term strategies for the

standardisation of the presentation of collective agreements on the way they are communicated.

Furthermore, ELA could play a role in facilitating cooperation between trade unions and the organisations of employers at

the cross-border level in the exchange of information on working conditions and standards in the construction sector(

161

(

155

) Ibid.

(

156

) Staff member of the European Trade Union Confederation (ETUC), interview held in December 2022.

(

157

) Senior advisor of an EU organisation representing employers, interview held in December 2022.

(

158

) Ibid.

(

159

) Ibid.

(

160

) Ibid.

(

161

) A more in-depth analysis is provided in Chapter7– Operational recommendations.

Box3: Case study on employer practices in accessing information

The most relevant sources of information for employers are:

• single national ocial website (managed by ministries of labour and social aairs);

• the Commission website (Your Europe);

• primary legislative sources;

• paritarian organisation websites (e.g. SOKA BAU website);

• employer organisation websites;

Construction companies often rely on the chamber of commerce or employer organisation in

their Member State to access information on posting and social security coordination regulations.

The request for information may come directly from employers to the chamber or employer

organisation. This mostly occurs when construction companies need information prior to the

start of the posting period, to verify the terms and conditions that are to be applied to the

posted scheme under the law and collective agreements of the receiving Member State. In other

cases, however, the employer organisations themselves provide information to their members,

especially in cases of amendments to the legislative framework.

The seeming absence of communication between companies in the sending Member States and

employer organisations in the receiving Member States also stands out as a unique feature. In

fact, across all sectors, connections only occur between companies and employer organisations

within the same Member State. In contrast, intra-EU relations are solely nurtured by the

connections established between employer organisations and chambers of commerce in both

sending and receiving Member States, enabling a seamless and ecient exchange of information.

Construction companies possessing signicant nancial resources can also rely on internal sta

dedicated to mobility to get informed about the posting process.

Way forward on new communication tools suggested by employer organisations

In the consultation process carried out as part of this study, several suggestions for new

communication tools targeting employers have been identied.

• The Polish Organisation of Employers in Construction proposes developing an updated

database that includes regulations related to worker postings, especially for cross-border

postings between frequently occurring routes (e.g. Poland–Denmark or Poland–Germany).

Such a database should also cover sector-specic collective agreements and rules applicable

to professions. The classication of applicable legislation and collective agreements in a

single digital space would simplify the navigation of the complex legal framework applicable

to posting schemes. While this proposal seems relevant considering the need to streamline

information for employers, it poses some diculties in relation to its design, especially when it

comes to the diculties that might arise in the standardisation of collective agreements. The

latter, in fact, may not oer the basic similarities necessary for a potential grouping exercise

within databases.

• A Croatian employer organisation proposes several tools to improve and modernise access

to information, ranging from apps that would enable quick and easy access to information

on labour mobility and social security coordination regulations to online seminars and

workshops. The digitalisation process of information tools seems to be fully in line with one of

the objectives of the Digital Agenda for Europe 2020–2030, namely the development of digital

public services operating in a transnational context(

162

(

162

) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the

Committee of the Regions– A Digital Agenda for Europe (COM(2010) 245 final).

• According to the Croatian employer organisation, awareness-raising campaigns aimed at a

broader public could also be considered. In particular, what could represent added value is a

public campaign carried out through traditional media, such as newspapers, television and

radio, but also through social networks and other digital platforms, aiming to inform employers

and employees about their rights and obligations regarding labour mobility and social security

coordination.

All three proposals listed above could be implemented either by public bodies (labour ministries

or labour law enforcement authorities) or by other parties, and in particular by employer

organisations. Furthermore, the creation of standardised databases containing information

on collective agreements seems to be a more achievable task for employer organisations, if

supported by adequate public funding.

4. Preventive measures

Main ndings

• Social ID cards are a very useful preventive tool, with some reservations on their eectiveness a)

on small construction sites due to a poor cost-benet ratio and b) in identifying underpayment

practices.

• Subcontracting and employment through temporary work agencies is widespread in the EU

construction sector. A provision of the Enforcement Directive introducing liability requirements

in subcontracting chains in the construction sector was transposed in all Member States

covered by this study. In some Member States, concerns were raised about these schemes.

Most notably, there are very short timelines for workers to enforce their rights and the existing

schemes do not apply to past wages.

• The German liability scheme was considered as a good practice by several scholars and

interviewees consulted, because of its extensive scope (covering all the links of the

subcontracting chain) and its ability to incentivise monitoring by main contractors.

• Limiting the number of subcontractors in the construction sector can be considered a practical

and eective approach to ensure better compliance of, inter alia, EU posting rules. However, this

would require careful consideration of the specic circumstances and needs of the construction

industry within each Member State. Such limitation could indeed hinder the agility and

exibility of construction companies by reducing their access to specic expertise, increasing

their operational costs and work delays.

• There are no specic public procurement rules and procedures in place in the main receiving

countries concerning posted workers in the construction sector. However, bidders must

demonstrate that they comply with social security and labour laws, including those pertaining

to posting. If they fail to do so, they may be excluded from the tendering procedure. Some

countries have developed guidelines in cooperation with employer associations in the

construction sector to support construction companies in public procurement procedures,

among other things, in demonstrating compliance with posting rules.

• Withdrawal of PDs A1 is a major cause of concern for labour inspectorates. The procedure for

the withdrawal of PDs A1 is cumbersome and time-consuming even in cases of manifest issues,

leading to under-enforcement.

• The PDT for incoming posting undertakings is considered an essential instrument for labour

inspectorates in Member States targeted by this study.

This section analyses the main preventive measures employed by Member States to inhibit or restrict violations of EU

labour mobility and social security rules within the EU construction sector in the context of posting. Section4.1 explores

the use of social ID cards in the construction sector and their role as a certication tool to, inter alia, conrm the legal

status of posted workers and thus help in detecting undeclared work. Section4.2 discusses the role and implementation of

subcontracting chain liability schemes, which aim to ensure responsibility throughout the entire chain of subcontracting in

the construction industry to protect posted workers’ rights. Section4.3 describes the use of limitations on subcontracting

within the construction sector in Member States and provides some suggestions on the use of such measures. Section4.4

details examples in Member States of public procurement mechanisms ensuring better compliance with posting rules on

construction sites subject to public contracts. Section4.5 rst provides an overview of the legal framework of the PDs A1 as

an ‘administrative tie’ in the context of posting of workers, while identifying the main shortcomings and critical issues. The

role of the PDT is the focus of Section4.6, which provides an overview of the main dierences in the scope of declaration

tools among Member States, along with a brief overview of its centrality when it comes to the mandates of labour

inspectorates.

This section contains two illustrative case studies, on the role of public procurement in the compliance of EU labour mobility

rules applying to posted workers in the construction sector and on labour inspectorates’ access to databases respectively.

4.1 The role of social ID cards in the EU construction sector

A social ID card in the construction sector can be dened ‘as an individualised worker certication tool which contains

visible and safely stored electronic data that aims to attest that specic social and/or other (e.g. professional qualications,

OSH training, social protection/security issues) requirements have been met by the worker’s employer and/or the worker

him/herself’(

163

). These cards are checked during inspections on construction sites to conrm the legal status of (posted)

workers and thus help in detecting undeclared work(

164

). Social ID cards are also intended to record and certify OSH training,

accredited training and qualications, and also to document work experience, control access to sites and/or assist in the

prevention or detection of undeclared work(

165

There are several studies stressing the link between the adoption of digital tools and lower levels of undeclared work (and

abusive practices in general) and highlighting how digital technologies can limit the scope of undeclared work(

166

). A

well-articulated and consolidated literature argues that Member States with low levels of adoption of digital technologies,

including electronic identication, have high levels of undeclared work and shadow economy(

167

). There are several reasons

why social ID cards are extensively used in the construction industry, including the temporary nature of the construction

sites, the high mobility of workers, the higher level of work accidents compared with other sectors and the high prevalence

of undeclared work. All these features increase the need for the use of social ID cards to facilitate the identication of

(posted) workers on construction sites by labour enforcement authorities, and for the establishment of a dataset to enable

this to occur(

168

The latest study by Williams on the dierent social ID cards developed throughout the Member States underlined that

there has been little post hoc formal evaluation of the outcomes of the use of social ID cards(

169

). Table8 briey describes

the dierent social ID cards adopted at the national level, based on the study carried out by Williams in 2022 and on the

feedback gathered in the context of the interviews carried out as part of this study(

170

Table8: Overview of the dierent social ID cards in the 17 Member States covered in this

study

Member State Date and acts of implementation

Belgium The ConstruBadge was introduced in 2014. However, it is still not mandatory. The card includes dierent

information, including on training, safety and health certication, and employee identication number.

Czechia Social ID cards have not been introduced by collective agreement or legislation.

Germany In Germany, a social ID card has not been adopted at the legislative level nor at the level of collective

agreements, nor at the level of the social partners. Pursuant to section 2a, paragraph 1, no1 of the Act to

Combat Clandestine Employment, persons working in the construction industry are obliged to carry their

identity card, passport, substitute passport or substitute identity card with them and to present these to the

customs authorities upon request. The Central Customs Authority has the ability to obtain further information,

e.g. from the A1 database or from the declarations for mobile activity.

(

163

) Briganti,F., Machalska,M., Steinmeyer,H-D. and Buelen,W., Social identity cards in the European Construction industry, EFBWW/FIEC, Brussels.,

2015, p.5.

(

164

) Williams,C., ‘Comparative study of the use of social identity cards in the construction sector in various European countries’, ID CARDS for

Decent Work in the Construction Industry, 2022, p.6.

(

165

) Ibid. p. 6.

(

166

) See for instance: Chacaltana,J., Leung,V. and Lee,M., ‘New technologies and the transition to formality: The trend towards e–formality’,

Employment Working Paper No247, ILO, Geneva, 2018. See also: Elbahnasawy,N.G., ‘Can e-government limit the scope of the informal

economy?’ Home Development, 139, 2021. See also: Goel,R.K. and Saunoris,J.W., ‘Virtual Versus Physical Government Decentralization: Effects

on Corruption and the Shadow Economy’, Public Budgeting and Finance, 36 (4), 2016, pp.68–93.

(

167

) See: Williams,C.C., et al., An evaluation of the scale of undeclared work in the European Union and its structural determinants: estimates using

the Labour Input Method (LIM), 2017; https://digital-agenda-data.eu/datasets/desi/indicators. See also: Medina,L., Schneider,F., ‘Shedding

Light on the Shadow Economy: A Global Database and the Interaction with the Official One’, CESifo Working Paper No7981, 2019; https://

digital-agenda-data.eu/datasets/desi/indicators.

(

168

) Williams,C., ‘Comparative study of the use of social identity cards in the construction sector in various European countries’, ID CARDS for

Decent Work in the Construction Industry, 2022, p.8.

(

169

) Williams,C., ‘Comparative study of the use of social identity cards in the construction sector in various European countries’, ID CARDS for

Decent Work in the Construction Industry, 2022, p.65.

(

170

) Ibid.

Member State Date and acts of implementation

Spain The Tarjeta Profesional de la Construcción was introduced through the National Collective Agreement in the

Construction Sector in 2007. The card shows the name of the worker, and a photo, and accredits the training

in health and safety received by the worker through an approved entity and other training programmes

completed. It also accredits the worker’s professional category/occupation and experience in the sector.

France Law No2015 990 for growth, activity and equality of economic opportunities, also called the Macron Law,

introduced the Carte Professionnelle BTP(171). The card includes the rst and last name of workers, an ID

picture, the name of their employers and a QR code.

Croatia Croatia does not have a social ID card on construction sites and its introduction has not been considered so far.

Italy Italy has not introduced a social ID card specically targeting the construction sector(172). Legislative Decree

no81/2008 establishes that company identication cards apply to all employees of contracted or subcontracted

companies.

Luxembourg The ‘social badge’ applies only to posted workers, and it does not specically target the construction sector. The

card includes the full name of the posted worker, the name of their employer and a QR code.

Netherlands In the Netherlands, a social ID card has not been adopted at the legislative level nor at the level of collective

agreements, nor at the level of the social partners.

Austria In Austria, a social ID card has not been adopted at the legislative level nor at the level of collective agreements,

nor at the level of the social partners. Recently, BUAK has introduced what is known as the BAU-ID, which is a

card gathering important information about the posted workers (e.g. registration with BUAK and social security

institutions). All this information is available on a daily basis (not only on a monthly basis).

Poland In Poland, a social ID card has not been adopted at the legislative level nor at the level of collective agreements

nor at the level of the social partners.

Portugal In Portugal, a social ID card specically targeting the construction sector has not been adopted at the legislative

level nor at the level of collective agreements nor at the level of the social partners.

Romania In Romania, a social ID card specically targeting the construction sector has not been adopted at the legislative

level nor at the level of collective agreements nor at the level of the social partners.

Slovenia In Slovenia, a social ID card specically targeting the construction sector has not been adopted at the legislative

level nor at the level of collective agreements nor at the level of the social partners.

Slovakia No information available.

Finland The Valttiälykortti has been introduced by the Confederation of the Finnish Construction Companies. The card

includes the name of the worker, their tax number, the name of their employer and a photo. According to the

Occupational Safety and Health Act, it is mandatory to have an ID card with the above-mentioned information,

but it is not mandatory to have the Valltiälykortti specically.

Sweden Introduced in 2007 by social partners and in 2016 by the Law on Electronic Registration of Workers on

Construction Sites (Section5 of the Tax Procedure Ordinance (2011: 1261) and the Swedish Tax Agency’s

regulations SKVFS 2015: 6). The Swedish Tax Agency’s 2015 regulation on electronic registration of workers on

construction sites was introduced from 1January 2016. ID06 is not a mandatory card, nor is there a legislative or

collective agreement that makes it mandatory on construction sites. The visual information on the ID06 includes

the name of the worker, an ID image, the current employer and the number of the ID06 card.

Employer associations, trade unions and labour enforcement authorities consulted within this study identied social ID

cards as a very useful preventive tool, including in Member States where they have not been in use. Several Member States

are considering and/or are in the process of introducing them in the construction sector. In Austria, BUAK is planning

to establish a ‘BUAK-service-card’ in 2023, which will provide the identity of the construction worker, all periods of

employment of the worker completed in Austria and his/her rights and entitlements according to Austrian law(

173

). Social

partners in Italy are also considering the introduction of social ID cards(

174

). In Poland, identity cards in the construction

sector are not in use. However, the Polish Labour Inspectorate considers it to be an interesting and potentially eective tool

to tackle abuse, as it would help to identify employees and their respective employers(

175

). In the Netherlands, a working

group was established in 2013 with the aim of exploring the feasibility of the introduction of an ID card in the construction

(

171

) BTP is the acronym in French of Bâtiment et Travaux Publics [Buildings and Public Works].

(

172

) In the last collective agreement for the construction sector for 2022–2024, it was decided to give the mandate to Commissione Nazionale

paritetica per le Casse Edili [Italian paritarian institution] to establish the Carte d’Identitá Professionale Edile [ID Professional Construction Card].

Nevertheless, it seems not to be in operation yet.

(

173

) Staff member of BUAK of Austria, interview held in January 2023.

(

174

) Staff members of the Commissione nazionale paritetica per le Casse Edili in Italy, interview held in December 2022.

(

175

) In particular, the Polish Labour Inspectorate cites the solutions used in Finland as potentially worth copying. Staff members of the Department

of Legality of Employment of Poland, interview held in January 2023.

sector (which included trade unions and employer federation representatives). Even though resources have been allocated,

the project has not yet been implemented(

176

In Germany, the introduction of a social ID card is not considered needed for construction sites, as construction workers are

obliged to carry their identity card, passport, substitute passport or substitute identity card with them and to present them

to the customs authorities upon request(

177

According to a representative of an EU-level confederation of trade unions, social ID cards are of great support to trade

unions and labour inspectorates in getting a better view of who does what on a construction site, but also benecial for

the employers to ensure better transparency and monitoring in subcontracting chains, especially when chain liability

applies(

178

Belgium has set up a new identication tool via a QR code on the Limosa declarations that can be checked by inspectors

with an application on their phone(

179

). In Spain, social ID cards have a function that is not necessarily framed for inspective

purposes, and is not related to social security, but serves to accredit the worker’s compulsory training and compulsory

medical tests. It is a tool designed to facilitate the recruitment of workers with the right level of training and not really to

facilitate inspections(

180

Labour enforcement authorities of dierent Member States agged some gaps and key issues related to the use of social ID

cards on construction sites. A representative of the Labour Inspectorate in Czechia argued that the benets of such cards

used on small construction sites would not outweigh the costs they entail. This stakeholder stressed that manual records

were usually sucient in such circumstances(

181

). The Finance Police in the Ministry of Finance of Austria raised the issue of

fake social ID cards(

182

), as also highlighted in the report ‘Tackling undeclared work in the construction industry’ based on a

seminar on 3May 2017 organised by the European Platform Tackling Undeclared Work(

183

). While this report acknowledges

the possibility of abuse concerning social ID cards, it concludes that such risk should not be a deterrent for their use, as they

are eective in the majority of cases. However, measures to ensure that social ID cards are secured against abuses are also a

key element to be put in place.

4.2 Subcontracting chain liability schemes in the EU construction sector

The construction industry is characterised by the interplay between EU labour mobility regulations, cross-border service

provision and national labour market rules(

184

). Subcontracting and employing temporary work agencies are widespread

practices in the EU construction sector.

Subcontracting serves various purposes(

185

). Construction companies use it to access the specialised expertise they lack in-

house, as main contractors on large projects often do not possess the specic knowledge needed for every aspect of the job,

such as electrical and plumbing work, bricklaying, or pavement installation. As mentioned in Section6, the growing labour

shortages in the construction sector also contribute to the prevalence of subcontracting chains; subcontracting serves as a

primary tool to address these shortages and recruit workers.

The subcontracting working structure also poses challenges to the inspection tasks of labour enforcement authorities as

well as to trade unions and workers’ representation, as it becomes challenging for them to pinpoint the ‘actual employer’

at the top of the subcontracting chain, to assess each one’s responsibility and take targeted action. A series of studies

on the construction sector in Germany and the Netherlands have observed a recurring pattern where large companies

(

176

) Briganti,F., Machalska,M., Steinmeyer,H-D. and Buelen,W., Social Identity Cards in the European Construction Industry, FIEC/EFBWW, 2015, p.33.

(

177

) Official of the Federal Ministry of Finance and Central Customs Authority transferred by the Ministry of Labour and Social Affairs of Germany,

interview held in January 2023.

(

178

) Staff member of ETUC, interview held in December 2022.

(

179

) Staff member of the National Institute for the Social Security of the Self-Employed of Belgium, interview held in January 2023.

(

180

) Official of the Labour Inspectorate of Spain, interview held in January 2023.

(

181

) Official of the State Labour Inspection Office of Czechia, interview held in February 2023.

(

182

) Official of the Finance Police in the Ministry of Finance of Austria, interview held in January 2023.

(

183

) Cremers,J., Williams,C., Hawley-Woodall,J. and Nikolova,N., ‘Tackling undeclared work in the construction industry: A learning resource’,

from the Construction Seminar of the European Platform Tackling Undeclared Work, 2017, pp.8–9.

(

184

) Lillie,N. and Wagner,I., ‘Subcontracting, insecurity and posted work: evidence from construction, meat processing and ship building’, in The

outsourcing challenge: Organizing workers across fragmented production networks, 2019, p.163.

(

185

) Caro,E., Berntsen,L., Lillie,N. and Wagner,I., ‘Posted Migration and Segregation in the European Construction Sector’, Journal of Ethnic and

Migration Studies, Vol.41, No10, 2015, p.1605.

(main contractors) subcontract work to temporary agencies or small and medium-sized subcontractors(

186

). Along these

subcontracting chains, principal contractors often pass business risks down the chain, fostering competition among lower-

tier subcontractors and exerting pressure on workers’ conditions. At the lower levels of the chain, temporary work agencies

and construction subcontractors compete based on labour costs(

187

), and within this context, principal contractors might

lack the legal tools and/or the will to exert sucient control over the lower chain levels(

188

The concentration of business risks towards the end of the subcontracting chain and downward competition, combined

with the fragmentation of chains of companies engaged in subcontracting sites, create signicant challenges for labour

inspectorates involved in the protection of posted workers(

189

). Long posting chains have an impact on the identication

of liability, compliance with OSH rules, and the safety of workers in general, especially for those employed at the end of the

chain, who are the more vulnerable(

190

). In addition, long chains lead to a fragmentation of the construction site, which

also poses challenges to trade unions, as they have to determine with which company they have to conclude a collective

agreement and for which workers(

191

The Enforcement Directive introduced a provision on liability in subcontracting chains in the construction sector precisely

to tackle these criticalities. Article 12(2) of the Enforcement Directive indeed obliges Member States to introduce

subcontracting liability in the construction sector, aimed at protecting posted workers’ rights. In light of this provision,

posted workers may hold liable the contractor of which the employer is a direct subcontractor, in addition to or instead of

the employer, for the respect of net remuneration corresponding to the minimum rates of pay and/or contributions due to

common funds or institutions of social partners.

All Member States considered under this study (except Finland and Luxembourg) have at least transposed into their

national law the minimum requirement (or ‘rst tier’) that contractors in the construction industry be held generally liable

in the event of the employer (or subcontractor) failing to comply with the payment of minimum wages and social security

contributions(

192

). Finland and Luxembourg have made use of Article 12(6) of the Enforcement Directive, which foresees the

possibility for Member States to take other appropriate enforcement measures and sanctions to tackle fraud and abuse in

situations when workers have diculties in obtaining their rights in subcontracting relations. In Finland, such ‘appropriate

enforcement measures’ require the general contractor to act immediately if a posted worker communicates irregularities

on wage payments. In Luxembourg, if the inspectorate informs the main contractor, in writing, of the non-payment of the

remuneration due to the worker, it must immediately oblige the subcontracting company to eradicate the violation(

193

(

186

)

Wills,J., ‘Subcontracted Employment and its Challenge to Labor’, Labor Studies Journal, 2009, p.456. See also: Lillie,N. and Wagner,I.,

‘Subcontracting, insecurity and posted work: evidence from construction, meat processing and ship building’, in The Outsourcing Challenge:

Organizing workers across fragmented production networks, 2015, p.163. See also: DeakinN. and Walsh,K., The enabling state: the role of

markets and contracts, Public Administration, 74 (1), 33–47, 1996.

(

187

) Wagner,I. and Berntsen,L., ‘Restricted rights: Obstacles in enforcing the labour rights of mobile EU workers in the German and Dutch

construction sector’, Transfer: European Review of Labour and Research, Vol.22, No2, 2016, p.196.

(

188

) WagnerI., ‘Posted work and rule enactment in the German construction sector’, British Journal of Industrial Relations, Vol.53, No6, 2015a,

pp.692–710.

(

189

) Policy Department for Citizens’ Rights and Constitutional Affairs, Directorate General for Internal Policies of the Union, European Parliament,

‘Liability in Subcontracting chains: national rules and the need for a European framework’, PE 596.798, 2017, p.20.

(

190

) Staff Members of the EFBWW, interview held in December 2022.

(

191

)

Staff member of ETUC, interview held in December 2022.

(

192

) Report From the Commission To The European Parliament, The Council And The European Economic And Social Committee on the application

and implementation of Directive 2014/67/EU of the European Parliament and of the Council of 15May 2014 on the enforcement of Directive

96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) 1024/2012 on

administrative cooperation through the Internal Market Information System (‘the IMI Regulation’) (COM(2019) 426 final), p.16.

(

193

) Commission Staff Working Document accompanying the document Report from the Commission to the European Parliament, the Council and

the European Economic and Social Committee on the application and implementation of Directive 2014/67/EU of the European Parliament and

of the Council of 15May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision

of services and amending Regulation (EU) No1024/2012 on administrative cooperation through the Internal Market Information System (‘the

IMI Regulation’) (SWD(2019) 337 final).

Table9: National measures on subcontracting liability in the construction sector in

force in the17 Member States covered under this study according to the Commission

Communication on the implementation of Directive 2014/67/EU(

194

)

Key features of subcontracting liability measures in the construction sector in selected Member States

Belgium • Joint and several liability of the direct contractor in the case of construction activities.

• The employee is entitled to obtain subsidiary payment of the remuneration due from third parties.

• Only the direct contractual link between the employer of the unpaid workers and his or her direct contractor, or

the person jointly and severally liable, is addressed by the special system in the case of building activities.

Czechia • According to Section319 paragraph 3 of the Labour Code, the service recipient is liable for payment of the

minimum or guaranteed wage, if; a) the minimum remuneration has not been paid by the employer which

posted the employee to Czechia; b) this employer has been ned for the oences regulated by the Labour

Inspection Act; and c) the service recipient was or must have been aware of the fact that the remuneration had

not been paid.

Germany • Liability for subcontracting is applicable in situations where the general minimum wage is applied to the

construction sector, as well as in situations where there is a specic, prevailing and universally applicable

collective agreement on a minimum wage in the sector.

• The general contractor, at the top of the chain, is responsible for its subcontractors on the entire construction

site.

• If a company hires another company to do a signicant amount of work or provide services, and that hired

company fails to pay the proper wages or contributions to a common fund, then the rst company may be

committing an administrative oence, even if they were unaware of the hired company’s negligence.

• This is the case if the general contractor knows, or negligently does not know, at the time of choosing a

subcontractor that this subcontractor in the performance of this order does not pay the remuneration referred

to therein or does not pay it on time, or that his or her subcontractor also uses a subcontractor or permits a

subcontractor to act who does not pay the remuneration specied therein, or does not pay it on time.

Spain • The purpose of Law 32/2006 of 18October is to prevent occupational accidents in subcontracting chains in the

construction industry and ensure that construction companies carry out their activities on a transparent basis.

• Law 32/2006 stipulates that construction companies must have production organisation and sta with the

necessary training in occupational risk prevention. In addition, subcontractors must prove compliance to the

contracting company and to the labour authority through registration in the register of accredited businesses.

• Article 42 of the consolidated text of the Law of the Workers’ Statute approved by Royal Legislative Decree

2/2015 of 23October regulates the subcontracting of works and services in all sectors. Principal contractors

must verify the payments of social security of subcontractors. The principal contractor is jointly and severally

liable for the social security obligations of subcontractors (within 3years), and for the wages for the year

following the end of the contract.

France • In the event of non-payment by subcontractors, the main contractor may be held accountable for part, or all, of

the statutory or contractual minimum wage owed to the posted worker.

Croatia • The contractor must be jointly and severally liable for the obligations which a subcontractor has in its capacity

as employer of its posted workers for claims concerning overdue minimum rate of pay, including increased

wages for overtime, to which a posted worker is entitled.

Italy • Joint and several liability in contracting, labour outsourcing and transport in the construction sector covering

matters pertaining to remuneration, and contributions.

• In the case of posting, the client undertaking or employer is held jointly liable with the contractor and with any

subcontractors with respect to any outstanding remuneration.

Luxembourg No subcontracting liability:

• where the project owner or contracting authority is informed by the Labour Inspectorate in writing of the non-

payment of part or all of the legal or contractual wages due to the employees, it shall immediately, by registered

letter with acknowledgement of receipt, instruct the undertaking to put an end to this behaviour.

Netherlands • Successive or sequential liability in place.

• Chain liability rules apply to posting based on a service contract: i) posting within multinational groups; ii)

temporary agency employment.

• All links in the subcontracting chain can be held liable for unpaid wages as long as the main customer is not

responsible.

• Before the employee can move to the next link in the chain, certain conditions must be met.

• The chain liability rules cover wages due by law, collective agreement, and labour contract.

Austria • Posted workers can make salary claims against both their (foreign) employer and their (Austrian) client.

• Customers are only liable when they knew, or reasonably should have known, prior to employing a company

that the wages would not be paid or would be underpaid.

• All related services, such as painting or installation, in addition to construction services are covered.

(

194

) Ibid.

Key features of subcontracting liability measures in the construction sector in selected Member States

Poland • The contractor is jointly and severally liable with the employer posting workers in Poland for any obligations

that arise during that posting regarding compensation and benets.

Portugal • The service provider (i.e. the entity that is ultimately responsible for hiring the posted worker) is responsible for

ensuring that the subcontractor also meets these minimum standards.

• If the subcontractor fails to pay the minimum wage owed to the posted worker, the service provider may be

held liable for any unpaid compensation.

Romania • Contractors in the construction industry are to be held generally liable in the event that the employer

(or subcontractor) fails to pay wages at least equal to the applicable minimum wage and social security

contributions.

Slovenia • No information.

Slovakia • A posted worker to whom the host employer has not paid wages is entitled to demand payment from the

natural or legal person who is the service provider within Slovakia and whose direct subcontractor is the host

employer.

Finland No subcontracting liability:

• Finnish law does not hold multiple companies in the construction sector responsible for ensuring that proper

wages and working conditions are provided to posted workers;

• instead, if a posted worker reports anomalies related to wages or working conditions, the builder or general

contractor (who hired the subcontractors) is responsible for taking prompt action to address the issue;

• the worker can choose at the initial stage who she/he can contact (e.g. the builder or general contractor);

• the generally applicable collective agreement species that the contractor is responsible for the unpaid wage if

the employee makes a claim within 14days from the salary day; the responsibility is between the contractor and

the employees of the subcontractor.

Sweden • Contractors in the construction industry are held generally liable in the event that the employer (or

subcontractor) fails to pay wages at least equal to the applicable minimum wage and social security

contributions.

Some labour enforcement authorities (and paritarian institutions) are of the view that these liability schemes are not always

eective in properly protecting workers. For instance, under the Austrian scheme, workers have to enforce their rights

themselves within very short timelines(

195

). In Belgium, it has been observed that although liability for past wages exists, in

practice it is not often enforced(

196

). In the Netherlands, according to an ocial from the Labour Inspectorate, the regulation

could be made more eective by extending the chain liability to remuneration and working hours.

The chain responsibility rules in force in Germany were considered eective by a range of dierent stakeholders consulted

as part of this study, including scholars, representatives of paritarian organisations and social partners. These rules concern

situations where the general minimum wage is applied to the construction sector, and to situations where there is a specic,

prevailing, and universally applicable collective agreement on a minimum wage in the sector. For the civil liability and

the act of committing an administrative oence, it is irrelevant whether the employer is domiciled in Germany or abroad.

The general contractor, at the top of the chain, is responsible for their subcontractors over the entire construction site.

Furthermore, the general contractor can be held liable for an administrative oence if he/she knows, or does not know

due to negligence, that the subcontractor does not pay the proper remuneration to workers or does not pay it on time.

This also applies if the subcontractor in turn uses another subcontractor who fails to comply with the same payment terms.

Therefore, the general contractor needs to be diligent in selecting subcontractors and must ensure that all subcontractors,

whether directly or indirectly contracted, honour the agreed-upon remuneration terms and deadlines.

According to a coordinator of the construction sector for an organisation providing advice on labour mobility rules, this

general contractor’s ‘due diligence’ in the selection of subcontractors is a relevant tool to ensure compliance with posting

rules in the construction sector since the general contractor, at the top of the chain, is responsible for the entire construction

site and can be held liable(

197

). According to Bogoeski, the German chain liability scheme ‘has been employed in out-of-

court negotiations, and many times dierent stakeholders (e.g. SOKA BAU) have achieved success in ning misbehaviour,

which would be unimaginable without such a regulation’(

198

). Nonetheless, a representative of SOKA BAU has observed that

German law provides for the instrument of principal liability in the event of non-payment of SOKA BAU contributions by the

(

195

) Official of the Finance Police in the Ministry of Finance of Austria, interview held in January 2023. Staff Member of BUAK of Austria, interview

held in January 2023.

(

196

) Official of the Ministry of Labour of Belgium, interview held in January 2023.

(

197

) Coordinator of the construction sector for an organisation providing advice on labour mobility rules, interview held in December 2022.

(

198

) Bogoeski,V., ‘Protection of posted workers in the European Union’, Advancing Social Justice in Europe and Worldwide, 2017, p.190.

contractor, so it is necessary for SOKA BAU to know the contractors to enforce their liability. To address this issue, it would

be necessary to include the name of the contractor in the country of activity in the prior posting declaration(

199

4.3 Limits on subcontracting to improve the implementation of liability schemes

Subcontracting chains have a very important role in the construction sector, as they allow the use of labour force with

specialised expertise along with lling labour shortages themselves. At the same time, subcontracting chains can pose

numerous challenges for labour enforcement authorities (and trade unions), particularly when they are used to reduce costs

and to escape legal responsibilities (see Section2.2).

Limiting the number of subcontractors in the construction sector is considered as a relevant measure to facilitate the

enforcement of labour mobility rules in this sector, as it would avoid complex bureaucratic procedures that often arise when

trying to ascertain who is responsible for an accident or non-payment of wages(

200

Limitation of the subcontractors and

better regulation of subcontracting (with rules on public procurement, for instance) also means a better liability scheme

where the main contractor can be more easily held liable in case of non-payment of wages or social contributions on the

immediate next level(

201

). Among the Member States considered under this study, only Belgium and Spain introduced such

a subcontracting limitation.

In Spain, the law on subcontracting applies to public and private contracts and establishes that subcontracting is limited

to three levels as a general rule and that self-employed workers are not allowed to subcontract. The liability rules cover all

labour and social security obligations (thus, both wages and social security contributions)(

202

). Spanish law also provides

for the obligation to register companies in the subcontracting book at the worksite. In Belgium, the limit for subcontracting

is three levels for the public sector, while a proposal to introduce the same limit for the private sector is being discussed at

the federal level(

203

). In France, there is no limit to the level of subcontracting in the construction sector as such. However,

the main contractor who intends to carry out a contract or a project using one or more subcontractors must, at the time of

conclusion and throughout the duration of the contract or project, have each subcontractor get their payment agreement

accepted by the project owner. The main contractor is required to provide the subcontract(s) to the project owner upon

request(

204

Limiting the number of subcontractors in the construction sector could therefore be a practical and eective approach to

ensure better compliance of, inter alia, EU posting rules. However, this would require careful consideration of the specic

circumstances and needs of the construction industry within each Member State. Such a limitation could indeed hinder the

agility and exibility of construction companies by reducing their access to specic expertise, increasing their operational

costs and work delays. The Member State limitation rules described in this section show that such rules should not be too

stringent (e.g. three levels of subcontracting allowed), in order to limit the negative impact on construction companies and

to ensure they have enough exibility to properly provide their services.

4.4 The role of public procurement in the compliance with EU labour mobility rules

applying to posted workers in the construction sector

Public procurement plays a crucial role in the construction sector, providing a signicant portion of the industry’s overall

business. It represents the process by which government entities, including local, regional, national and international

bodies, contract private sector companies to complete public projects. Public procurement rules and procedures could

therefore play a signicant role in ensuring compliance with EU labour mobility rules applying to posted workers in the

construction sector. A case study was developed based on this premise. Its aim was to identify measures and/or inspection

mechanisms/requirements in the context of public procurement procedures in ve Member States (Belgium, Germany,

France, the Netherlands and Austria) to ensure that EU labour mobility rules applying to posted workers on public

construction sites are respected.

The measures identied in this case study and further detailed in Box 4 concern the following.

(

199

)

Staff Member of BUAK of Austria, interview held in January 2023.

(

200

)

Staff Members of the EFBWW, interview held in December 2022. Coordinator of the construction sector for an organisation providing advice

on labour mobility rules, interview held in December 2022.

(

201

) Staff Members of the EFBWW, interview held in December 2022.

(

202

) Houwerzijl,M. and Peters,S., Liability in Subcontracting Processes in the European Construction Sector, Eurofound, Dublin, 2008, p.20.

(

203

) Royal Decree of 14January 2013 determining the general execution rules of public procurement, Article 12/3, §2, 1°, to be read in conjunction

with Article 4 of the Royal Decree of 26September 1991 establishing certain implementing measures of the Law of 20March 1991 regulating

the approval of works contractors.

(

204

) Law No3113-34 of 31December 1975 governs the use of subcontracting.

• The obligation for participants in public procurement procedures to comply with all labour law provisions, including those

on posting, and to demonstrate that they have monitored whether posted rules were respected during the completion of

services on construction sites.

• The development of guidelines to support tenderers in showing that posted workers in the construction sector are in line

with labour and posting rules.

• The imposition of sanctions in cases where these posting rules are not respected by construction companies involved

in public procurement procedures (e.g. exclusion of public tendering). These measures are further detailed and put into

context in the case study detailed in Box4.

• The development of a charter of good practices related to public procurement rules, developed by a national association

of construction companies and to be signed between the said association and the relevant contracting public authorities.

Contracting public authorities that signed the charter must require that construction companies inform them about the

use of posted workers on construction sites and must check and request documents to prove the legality of such posting.

Limited feedback was received from interviewees on the eectiveness of such measures.

Box4: Case study on the role of public procurement in compliance with EU labour

mobility rules applying to posted workers in the construction sector.

In Austria, public procurement plays a crucial role in ensuring that posting in the construction

sector is carried out in line with the rules, even though Austrian public procurement laws do not

include specic requirements related to the posting of workers. Tenderers must comply with all

labour law provisions and also therefore with the provisions applicable to the posting of workers.

Furthermore, the name of each subcontractor must be indicated by tenderers(

205

In Belgium, the employer association of construction companies mentioned that at both

the federal level and the regional level, good practice guides were provided to construction

companies applying for public tenders including information on the posting of workers and

on how to prove that posting rules are being complied with(

206

). Such guidelines are also

prepared in France between competent authorities and the employer association of construction

companies(

207

). Under German law, bidders can be excluded if obligations to pay taxes and

duties along with social security contributions have not been duly fullled, if the company is not

registered with the employers’ liability insurance association or if serious misconduct has been

committed which calls into question the reliability of the candidate or bidder. Such an exclusion

can concern violations, inter alia, of the German Posted Workers Act. In the same vein, in France,

construction companies participating in public procurement tendering procedures may be asked

to demonstrate that they have veried that posting rules are respected by showing, inter alia, the

acknowledgement of receipt of the SISPI(

208

) posting declaration.

The French Federation of Buildings developed a charter of good practices in public procurement

procedure that must be signed by potential contracting public authorities in procurement

procedures involving construction work. Contracting public authorities that have signed the

charter must require construction companies to inform these authorities about the use of posted

workers on construction sites, and these authorities must check and request proof of the legality

of such postings(

209

(

205

) Member of the Chamber of Commerce of Austria, Association of the Building Industry, interview held in April 2023, and lay judge and national

expert in public procurement procedures in the construction sector at the Federal Administrative Court, interview held in April 2023.

(

206

) Information retrieved from questionnaire received from Constructiv, April 2023.

(

207

) Staff member, National Federation of Public Works, European Service, France, interview held in April 2023.

(

208

) French prior declaration tool software.

(

209

) Information retrieved from staff member, National Federation of Buildings in France, interview held in May 2023.

4.5 Portable Documents A1: the administrative tie of the EU social security coordination

4.5.1 Legal framework

The European Union provides common rules to ensure the equal treatment of economically active persons moving within

the EU. The coordination of social security is governed by the Basic Regulation currently under revision(

210

), and Regulation

(EC) 987/2009(

211

The Basic Regulation establishes the general principle of the lex loci laboris, according to which the legislation applicable

to economically active citizens is the one of the Member State where they work. Instead, Article 12(1) of the Basic

Regulation(

212

) denes an exception when it comes to posted workers, as those mobile workers continue to be subject to

the legislation of the rst Member State (the sending Member State).

The exception to the lex loci laboris rule provided for posted workers is intended ‘not only to avoid the simultaneous

application of several systems of national legislation and the complications that that might entail, but also to ensure that

persons falling within the scope of that regulation do not remain deprived of social protection because of the absence of

legislation applicable to them’(

213

). This exception thus serves to protect the posted workers from unnecessary shifts of

responsibilities for their social security requirements in situations where work abroad is of a genuinely temporary nature and

also to ensure that they can actually claim their benets and do not have to do it in a foreign system where they have spent

only a very limited amount of time.

Due to the exceptional nature of the posting rule, a number of requirements are established to ensure that the exception

remains narrowly dened, hence, to secure the genuine nature of the posting situation and its temporary character(

214

). Two

requirements arising from Article 12 of the Basic Regulation need to be fullled for an employed person to be posted(

215

the period of posting shall not exceed 24months, and the posted worker shall not be sent to the receiving Member State

to replace another posted person(

216

). The PD A1 certies the legislation applicable to the holder, replacing the previous

E101 form in this mandate. The certicate establishes that the holder is aliated to the social security system of the Member

State which has issued the certicate(

217

). The PD A1 certicate is issued by the competent authority of the sending Member

State at the request of the employer or the person concerned(

218

). When issuing the PD A1, the authority of the sending

Member State shall check that the conditions of Article 12 of the Basic Regulation are complied with. On that certicate,

the competent institution of the sending Member State in which an undertaking employing the workers concerned is

established declares that its own social security system will remain applicable to the posted workers. By virtue of the

principle that workers must be registered with only one social security system, the certicate thus necessarily implies that

the receiving Member State’s social security system cannot apply(

219

There is some discretion allowed regarding the moment when the PD A1 is issued, paving the way for some problematic

issues(

220

). Indeed, in Alperind GmbH and Others, the CJEU conrmed (once again) the retroactive eect of the PD A1, ruling

(

210

) On 13December 2016, the European Commission proposed a revision of Regulation (EC) No883/2004 on the coordination of social security

systems and Regulation (EC) No987/2009 laying down the procedure for implementing Regulation (EC) No883/2004.

(

211

) Regulation (EC) No987/2009 of the European Parliament and of the Council of 16September 2009 laying down the procedure for

implementing Regulation (EC) No883/2004 on the coordination of social security systems (OJ L284, 30.10.2009, p.1).

(

212

) Article 12(1) of Regulation (EC) No883/2004.

(

213

) Judgment of the Court (Grand Chamber) of 3June 2021, C-784/19, ‘TEAM POWER EUROPE’ EOOD v Direktor na Teritorialna direktsia na

Natsionalna agentsia za prihodite– Varna.

(

214

) Jorens,Y., ‘Cross-Border Employment and Labour Law: The Legal Framework’, in Cross-border EU Employment and its Enforcement: An Analysis of

the Labour and Social Security Law Aspects and a Quest for Solutions, Cham: Springer International Publishing, 2022, pp.287–288.

(

215

) According to Rennuy,N., ‘Posting of workers: Enforcement, compliance, and reform’, European Journal of Social Security, Vol.22, No2, 2020,

p.215, another element should be taken into account when issuing a PD A1: the posted worker must have been subject to the legislation

of the sending Member State prior to being posted. According to CJEU case-law, the worker must be bound by ‘a direct link’ to the posting

undertaking throughout the period of posting. The former must be an employee of the latter and remain under its authority. Finally, the

employer must ‘normally carry out its activities’ in the sending Member State. See: Case C-202/97 Fitzwilliam Executive Search Ltd v Bestuur van

het Landelijk instituut sociale verzekeringen [2000] ECR I–883, paragraph 24.

(

216

) Article 12(1) of Regulation (EC) No883/2004.

(

217

) Article 19 of Regulation (EC) No987/2009.

(

218

) Regulation (EC) No987/2009.

(

219

) See, to that effect, judgments of 26January 2006, Herbosch Kiere, C 2/05, EU:C:2006:69, paragraph 21, and of 27April 2017, A-Rosa Flussschiff,

C 620/15, EU:C:2017:309, paragraph 38. See also: C-359/16, Judgment of the Court (Grand Chamber) of 6February 2018, Criminal proceedings

against Ömer Altun and Others.

(

220

) Judgement of the Court (Fifth Chamber) of 30March 2000, Banks and Others, C-178/97, EU:C:2000:169, paragraphs 52-57.

that ‘while it is preferable that such a certicate is issued before the beginning of the period concerned, it may also be

issued during that period or indeed after its expiry’(

221

Pursuant to Article 5 of Regulation (EC) No987/2009, PDs A1 bind the institutions of the other Member States until they

have been withdrawn or declared invalid by the Member State in which they were issued. According to the CJEU, the PD

A1 ‘is binding on both the social security institutions of the Member State in which the activity is carried out and the courts

of that Member State’(

222

). Even if the authorities of the receiving Member State nd fraudulent behaviour, as in the case

of bogus self-employment, the social security institutions and courts of the receiving Member State may not unilaterally

withdraw the PD A1, as pointed out by the CJEU in A-Rosa Flussschi GmbH(

223

). In particular, the CJEU ruled that the ‘E 101

certicate issued by the institution designated by the competent authority of a Member State pursuant to Article 14(2)

(a) of Regulation No1408/71… is binding on both the social security institutions of the Member State in which the work

is carried out and the courts of that Member State, even where it is found by those courts that the conditions under which

the worker concerned carries out his activities clearly do not fall within the material scope of that provision of Regulation

No1408/7’(

224

). In the Vueling case, the Court made it mandatory for the authorities of the receiving Member State to use

the dialogue procedure of Article 76(6) of the Basic Regulation before being able to declare the fraudulent nature of PD A1

(or E101) certicates, even in the case of manifest issues (such as the situation in Vueling, where workers were declared as

residing at the same address as their employer). This results in further delays and uncertainty being added to the (already

dicult) task of identifying fraudulent PDs A1(

225

The connection between sending and receiving Member States embedded in the PD A1 has been dened in academic

literature as an ‘administrative tie’, as ‘the host administration cannot (unilaterally) question the validity or appropriateness

of the measures of other States(

226

). The PD A1 represents a key element embedded at the very core of the relationship

between the authorities of sending and receiving Member States when it comes to enforcing EU labour mobility rules

and social security coordination regulations. The PD A1 indeed concerns the interests of all parties involved, Member

States, workers, and employers. The aim of this section is to investigate the main issues arising around PDs A1 issued in the

framework of Article 12 of the Basic Regulation, related to posting.

4.5.2 Gaps and criticalities relating to portable documents A1

The use of fraudulent PDs A1 is a common abusive practice in the eld of EU social security coordination, alongside cases of

incomplete or incorrect PDs A1(

227

Despite the obligations arising from CJEU case-law(

228

) on the principle of sincere cooperation(

229

), according to a recent

Eurofound report, nine out of 13 Member States considered under the study do not verify whether three important

elements of the posting (the existence of a genuine activity in the sending Member State, the existence of an employment

relationship, and the prohibition on replacement) are respected in the specic case before issuing a PD A1(

230

). This is

(

221

) Judgment of the Court (First Chamber) of 6September 2018, Salzburger Gebietskrankenkasse and Bundesminister für Arbeit, Soziales und

Konsumentenschutz v Alpenrind GmbH and Others, paragraph 70. See also: judgment of the Court 30March 2000, Banks and Others, C-178/97,

EU:C:2000:169, paragraph 52–57.

(

222

) Judgment of the Court (First Chamber) of 6September 2018 Salzburger Gebietskrankenkasse and Bundesminister für Arbeit, Soziales und

Konsumentenschutz v Alpenrind GmbH and Others, ECLI:EU:C:2018:669, paragraph 77. See also: Case C-202/97 Fitzwilliam Executive Search Ltd v

Bestuur van het Landelijk instituut sociale verzekeringen [2000] ECR I–883, paragraph 53.

(

223

) Judgment of the Court (First Chamber) of 27April 2017, A-Rosa Flussschiff GmbH v Union de recouvrement des cotisations de sécurité sociale et

d’allocations familiales d’Alsace (Urssaf), venant aux droits de l’Urssaf du Bas-Rhin and Sozialversicherungsanstalt des Kantons Graubünden.

(

224

) Ibid, p.34.

(

225

) Judgment of the Court (Grand Chamber) of 2April 2020, Caisse de retraite du personnel navigant professionnel de l’aéronautique civile (CRPNPAC)

v Vueling Airlines SA v Vueling Airlines SA and Jean-Luc Poignant.

(

226

) De Lucia,L., ‘From mutual recognition to EU authorization: A decline of transnational administrative acts?’, Italian Journal of Public Law, Vol.8,

No1, 2016, p.100.

(

227

) A broad and well-articulated literature focuses on the main issues related to administrative cooperation among Member State authorities

on PD A1. See inter alia: Eurofound, Exploring the fraudulent contracting of work in the European Union, Publications Office of the European

Union, Luxembourg, 2016. See also: Houwerzijl,M.S. and van Hoek,A.A.H., Complementary comparative study on the legal aspects of the

posting of workers in the framework of the provision of services in the European Union, November 2011, Amsterdam University Press, 2011. See

also: European Commission, Directorate-General for Employment, Social Affairs and Inclusion, Jorens,Y., De Smedt,L., De Wispelaere,F., et al.,

Fraud and error in the field of EU social security coordination: Reference year– 2019, Publications Office of the European Union, 2021.

(

228

) Case C-202/97 Fitzwilliam Executive Search Ltd v Bestuur van het Landelijk instituut sociale verzekeringen [2000] ECR I–883.

(

229

) E.g. Fitzwilliam (note 3 above: paragraph 51); Case C-620/15 A-Rosa Flussschiff v Urssaf [2017] 4 WLUK 505, paragraph 39.

(

230

) Eurofound, Improving the monitoring of posted workers in the EU, Publications Office of the European Union, Luxembourg, 2020. An additional

concern might also lie in the incentive that the authorities of the sending Member States might have in issuing PDs A1 under Article 13 of the

Basic Regulation in which fewer elements have to be considered, compared to PDs A1 issued under Article 12.

considered as a major concern by labour inspectorates of receiving Member States, as the CJEU case-law(

231

) prevents the

social security authorities and courts of the receiving Member States from unilaterally deciding that they are not bound

by the PD A1 form and subsequently subject the persons concerned to their own social security legislation, potentially

increasing the risk of social dumping(

232

Even though the PD A1 only covers the sphere of social security, the impact of the certicate may also aect the labour law

dimension. This is the case for bogus self-employment, whereby labour inspectorates and courts in the receiving Member

State may have diculties in classifying a bogus self-employed person as an employee if the PD A1 states that the person is

self-employed. This issue has been highlighted by several interviewees, including an ocial from BUAK in Austria, an ocial

from the Finance Police in the Ministry of Finance of Austria, and the Belgian National Oce of Social Security(

233

). An ocial

from the Finance Police in the Ministry of Finance of Austria stressed that, in some cases, companies do not undertake any

activities in the sending Member States and the workers should be aliated with the Austrian social security system, but

as the PD A1 certicate has been issued by the social security institutions in the sending Member State, the authorities of

the receiving Member State cannot enforce it(

234

), in particular when it concerns bogus self-employment(

235

). This same

issue has been reported in Belgium. Despite the jurisprudence of the Altun case(

236

), Belgian judges are still restricted when

deciding on the withdrawal of a PD A1, as it is necessary to prove the existence of fraud(

237

Another problematic aspect is that the PD A1 can be issued even after the end of the posting period. This principle has

been highlighted as a problem for the Italian inspectorate because it creates diculties in inspection activities. When this

certicate is issued during the posting, or even at the end of the posting, the inspectorate cannot consider it as a useful

element of assessment to prove the genuine nature of the posting. An ocial from the Italian labour inspectorate expressed

the impression that if the company asks for this at the time it is subject to inspection, it is perhaps only asking for it to avoid

having to pay social security contributions later(

238

In Austria and Poland, the absence of some relevant information on the PD A1 concerning the specic sector in which this

work is performed, and the status of the worker (part time or full time), was also agged as a concern(

239

4.6 Prior declaration tools

Article 9 of the Enforcement Directive establishes that Member States may impose an obligation on service providers

established in another Member State ‘to make a simple declaration to the responsible national competent authorities’. The

prior declaration may be used by Member States at their discretion, together with the choice of the information required

therein. Thus, the format for national declarations is not standardised. The relevant information that Member States may

impose on the service provider is established by Article 4(1)(a) of the Enforcement Directive. The information required in the

declarations must be reasonable, proportionate, and required for factual monitoring to request information beyond what is

mentioned in Article 9(1)(a). Member States have dierent declaration processes and dierent information required in the

declarations.

All 17 Member States considered under this study implement a PDT for incoming posting undertakings. As extensively

reported by a study conducted in 2020 by Eurofound, the scope of the declaration tools varies considerably among Member

States. In some Member States, the obligation to register applies not just to posted workers, but also to self-employed

persons, as is the case in Belgium, Denmark, Ireland, the Netherlands and Slovenia(

240

). Most Member States also require

the registration of posting undertakings from countries outside of the EU/EFTA. Several Member States (Belgium, Czechia,

Denmark, Germany, France, Italy, Luxembourg, the Netherlands, Austria, Poland, Slovakia and Finland) exempt certain

(

231

) See: Judgment of the Court (First Chamber) of 27April 2017, A-Rosa Flussschiff GmbH v Union de recouvrement des cotisations de sécurité sociale

et d’allocations familiales d’Alsace (Urssaf), venant aux droits de l’Urssaf du Bas-Rhin and Sozialversicherungsanstalt des Kantons Graubünden. See

also: Case C-202/97 Fitzwilliam Executive Search Ltd v Bestuur van het Landelijk instituut sociale verzekeringen [2000] ECR I–883.

(

232

) See also: Verschueren,H., The CJEU’s case law on the role of posting certificates: A missed opportunity to combat social dumping, 2020.

(

233

) On this aspect see also: European Parliament, Giubboni,S., Iudicone,F., Mancini,M. and Faioli,M., Coordination of social security systems in

Europe, Study for the EMPL Committee, European Parliament, 2017, pp.60–61.

(

234

) Official of the Finance Police in the Ministry of Finance of Austria, interview held in January 2023.

(

235

) The Bauarbeiter-Urlaubs- und Abfertigungskasse [Construction Workers’ Annual Leave and Severance Pay Fund] (BUAK), member performing

leadership function in the coordination of BUAK Austria.

(

236

) C-359/16, Judgment of the Court (Grand Chamber) of 6February 2018, Criminal proceedings against Ömer Altun and Others.

(

237

) Official of the Office National de Sécurité Sociale [National Office of Social Security] of Belgium, interview held in January 2023.

(

238

) Official of the Italian Labour Inspectorate of Italy, interview held in January 2023.

(

239

) Official of the Finance Police in the Ministry of Finance of Austria, interview held in January 2023. Staff members of the Department of Legality

of Employment of Poland, interview held in January 2023.

(

240

) De Wispelaere,F., De Smedt,L. and Pacolet,J., Posted Workers in the European Union: Facts and figures, Leuven: POSTING.STAT project

VS/2020/0499, 2022b, p.39.

activities or sectors from declaration (persons attending business meetings, academic conferences, international truck

drivers, professional artists, athletes, etc.)(

241

Some Member States (Belgium, Germany, Spain and France) require additional information for posting undertakings that

provide services in the construction sector(

242

). In Spain, for instance, companies posting construction workers register on

the Registro de Empresas Acreditadas [Registry of Accredited Companies] in the region where the user company is based(

243

Meanwhile, construction companies that post workers in Belgium must adhere to the sector-related loyalty stamp scheme

that is provided by the collective labour agreement(

244

According to the labour enforcement authorities consulted under this study, the PDT is an essential instrument for labour

inspectorates. In Finland, the sta member of the Regional State Administrative Agency of Southern Finland stressed that

all the information collected on the prior declaration, such as workplace, posting employer, period of posting, number of

workers and personal information regarding the workers, were relevant(

245

). In Poland, the interviewee considered the

data relating to the employee replacement, the duration of the posting, and in particular the indication of the workplace

(construction site) very relevant(

246

). In Croatia, the crucial information needed to plan inspections is the place of work,

the information about the employer, the period of posting and the information about the posted person. In Slovenia, the

information relating to the period during which the workers will be working in the Member State and their location(s) along

with the number of PDs A1 issued are considered relevant.

In Austria, a sta member of BUAK considered that the PDT should include the number of employees of the company

posting workers to Austria, since the amount of the penalty in the case of underpayment depends on this number(

247

The German construction industry(

248

) advocates for the implementation of structured, EU-standardised reporting portals

and websites. These platforms would oer users the ability to upload documents to a registered account, enabling them to

save data and documents for multiple applications.

Box5: Case study on labour inspectorates’ access to databases

The exchange of information and data within the EU between all the dierent actors involved,

both in receiving and sending Member States, is crucial for the eective enforcement of labour

mobility and social coordination rules. As part of this case study, the labour inspection authorities

of four receiving Member States have been interviewed, namely Belgium, Germany, France and

Austria. During these consultation activities, several labour enforcement authorities stressed the

importance of having in-house capacity to access dierent databases of other public authorities,

especially those managing data in the social security domain(

249

). Labour inspectors in all

Member States considered under this case study have access to the Electronic Exchange of Social

Security Information (EESSI)(

250

) database with the exception of the Austrian labour inspectors.

They therefore have to address a request to the institution that manages the social security

database, slowing down the entire inspection process.

The ability to access dierent databases is particularly important, as EU labour mobility

patterns and posting schemes are characterised by an intersection of three dierent legislative

frameworks, namely labour law, social security law and tax law. The intersections of the three

domains are not fully covered by the activities of any of the enforcement authorities. Very often,

enforcement authorities operate on the three domains with separate mandates and databases.

(

241

) De Wispelaere,F. and Pacolet,J., Posting of workers: Collection of data from the prior notification tools– Reference year 2019, 2021, p.11.

(

242

) Eurofound, Improving the monitoring of posted workers in the EU, Publications Office of the European Union, Luxembourg, 2020, p.17.

(

243

) Ibid., p.25.

(

244

) Ibid., p.19.

(

245

) Staff Member of the Regional State Administrative Agency of Southern Finland, interview held in December 2022.

(

246

) Official of the National Labour Inspectorate of Slovakia, Department of Labour Relations of Slovakia, interview held in January 2023.

(

247

)

Staff member of BUAK of Austria, interview held in January 2023.

(

249

) Official of the Finance Police in the Ministry of Finance of Austria, interview held in April 2023. The Finance Police in the Ministry of Finance of

Austria pointed out regarding this aspect this aspect that EESSI can still not be used, and that the exchange of social security data between

sending and receiving Member States does not work at all in practice.

(

250

) EESSI is an IT system through which the Member State systems with a social security mandate can exchange information on different areas

covered by the EU social security coordination rules more quickly and securely.

This creates some issues in the case of inspection, investigation or sanctioning activities that

are carried out by an actor other than those who manage databases and have access to data. In

such cases, the authority that must carry out inspections or sanctions will be required to obtain

data from three dierent entities, thus potentially slowing down enforcement activities(

251

). It is

also worth mentioning that in all Member States considered in the framework of this case study,

information-sharing processes between social security databases and institutions seem to have

been established. In light of the consultations, it seems that access to PD A1 data is a key element

for the inspection activities of the labour enforcement authorities. It also seems clear that the

main problems primarily arise in relation to the exchange of information between, rather than

within, Member States.

The Finance Police in the Ministry of Finance of Austria suggested establishing an EU system

where all information/data concerning labour law and especially social security law regarding a

posted worker is automatically exchanged, in the framework of posting. The establishment of this

system would enhance the eciency of inspections, especially in the context of social security

law(

252

(

251

) Official of the Finance Police in the Ministry of Finance of Austria, interview held in January 2023.

(

252

) Official of the Finance Police in the Ministry of Finance of Austria, interview held in January 2023.

5. Enforcing EU labour mobility and social security

rules in the EU construction sector

Main ndings

• The construction sector is a priority sector for labour enforcement authorities as it is an area at

risk of non-compliance, with a high proportion of posted workers and a high rate of undeclared

work, and is prone to occupational accidents.

• Labour inspectors have the necessary sanctioning tools to carry out their statutory duties. The

areas of improvement in their respective sanctioning regimes include the lack of cooperation

and knowledge at the Member State level about sanctions imposed in another Member State

(Spain and Poland), lengthy procedure in the case of criminal nes (Poland) and lack of expert

support for inspectors in more complex infringements (Slovenia).

• At the same time, labour inspectors have diculties identifying almost all of the factual

elements referred to in Article 4(2) and (3) of the Enforcement Directive. This concerns, in

particular, Article 4(2) points (a) on the place where the undertaking has its registered oce and

administration, pays taxes and social security contributions and (e) on the number of contracts

performed and/or the size of the turnover realised, along with Article 4(3) points (a) on the

nature of activities and (d) on whether or not the posted workers return to or are expected to

resume working in the sending Member State.

• Moreover, labour inspectors are of the opinion that they do not have sucient nancial and

sta resources to properly check abusive practices and violations involving posted workers in

the construction sector. Cross-border inspections are eective tools in enforcing EU mobility

rules in the construction sector, as they can foster improved information sharing between

Member State authorities and are able to address illegal conduct occurring in multiple Member

States.

• The determination of liability and the diculty of imposing sanctions in an intra-EU (cross-

border) context are major challenges when enforcing posting rules in the construction sector.

When courts are involved, judges must cope with a very complex legal environment, in which

it is often dicult to identify the correct applicable legal basis. Such complexity is further

enhanced when intra-EU TCNs are concerned.

The eective enforcement of posting rules in the construction sector across Member States is essential for protecting

workers’ rights and ensuring fair competition among market actors in this sector. It is therefore relevant to identify the

enforcement challenges encountered by labour inspectors, in particular those on the identication of the factual elements

under Article 4 of the Enforcement Directive (Section5.1), and to gather their views on the sanctioning mechanisms

(Section5.2), on the inspection tools they can use and the nancial and human resources dedicated (Section5.3) to

addressing infringements of posting rules in the construction sector in Member States. This chapter also contains some

paragraphs on the cooperation between authorities across Member States (Section5.4), as this is an important aspect to

consider when enforcing such rules in a cross-border context. Finally, it details the role of trade unions in supporting the

enforcement of posted workers’ rights in the construction sector (Section5.5). To illustrate this section, three case studies

have been developed respectively on good practices and key issues in the enforcement of labour mobility rules and social

security coordination regulations by labour inspectorates, on bilateral agreements between Poland and receiving Member

States and on the enforcement of workers’ rights in sending Member States.

5.1 Challenges in the enforcement of EU labour mobility and social security rules in the

EU construction sector

The enforcement of EU labour mobility and social security rules in the construction sector is a challenging exercise. It

requires, inter alia, strong cooperation between Member States in a cross-border context in a sector with a high number

of posted workers. Furthermore, the posting of workers in the construction sector is prone to a wide array of abusive

practices (i.e. the establishment of letterbox companies, non-compliance with working conditions, bogus self-employment,

fraudulent PD A1 usage and fraudulent posting of TCNs), which complicates the work of enforcement authorities.

Within the framework of this study, a questionnaire was submitted to the competent national enforcement authorities of

the 17 Member States considered as part of this study with the aim of investigating which of the elements of Article 4(2) and

4(3) of the Enforcement Directive are the most dicult to identify in inspections. The following is a brief description of the

scope of the two provisions considered in the questionnaire.

• Article 4(2) of the Enforcement Directive provides some criteria to determine if an undertaking genuinely performs

substantial activities. In such an exercise, the enforcement authority shall make an overall assessment of all factual

elements characterising those activities carried out by an undertaking in both sending and receiving Member States.

• Article 4(3) of the Enforcement Directive aims to assess whether a posted worker temporarily carries out his or her work

in a Member State other than the one in which the posted worker normally works.

The results of the interviews with representatives of the enforcement authorities show that almost all of the factual

elements referred to in Article 4(2) and (3) of the Enforcement Directive are dicult to identify. In particular, the competent

national enforcement authorities of sending and receiving Member States stress the challenges in identify the factual

elements of Article 4(2) points (a) and (e) and Article 4(3) points (a) and (d).

• Article 4(2) point (a) concerning the place where the undertaking has its registered oce and administration, uses oce

space, pays taxes and social security contributions, has a professional licence and is registered within the chambers of

commerce.

• Article 4(2) point (e) on the number of contracts performed and/or the size of the turnover achieved in the Member State

of establishment, taking into account the specic situation of, inter alia, newly established undertakings and SMEs.

• Article 4(3) point (a) on the work carried out for a limited period of time in another Member State.

• Article 4(3) point (d) on whether or not the posted worker returns to or is expected to resume working in the Member

State from which he or she is posted after completion of the work or the provision of services for which he or she was

posted.

The State Labour Inspection Oce of Czechia is the only one that considers that labour inspectors do not encounter any

specic issues related to the identication of elements under 4(2) and (3) of the Enforcement Directive, despite some

complications during the inspection process(

253

). The Federal Ministry of Finance and Central Customs Authority of Germany

and the State Inspectorate at the Service for the supervision of employment, posting and international cooperation of

Croatia underline that all such factual elements pose challenges when it comes to their identication.

The Italian labour inspectorate pointed out the importance of cooperation with the authorities of the sending Member

States when it comes to the identication of the factual elements of Article 4(2) of the Enforcement Directive(

254

). Also, as

mentioned by the ocial of the labour inspectorate of Slovakia, the diculties in identifying the elements of the posting are

directly determined by the real participation or cooperation of the posting employer with the inspection authorities of the

sending Member State(

255

(

253

) Official of the State Labour Inspection Office of Czechia, interview held in February 2023.

(

254

) Official of the Italian Labour Inspectorate of Italy, interview held in January 2023.

(

255

) Official of the National Labour Inspectorate of Slovakia, Department of Labour Relations of Slovakia, interview held in January 2023.

Box6: Case study on good practices and key issues in enforcement by labour

inspectorates of labour mobility rules and social security coordination regulations

In the framework of this case study, labour enforcement authorities of four receiving Member

States (with dierent mandates) have been consulted, with the aim of outlining best practices

and the main issues involving both inspection and sanctioning activities.

Good inspection practices

One aspect that deserves specic attention concerns cooperation in inspection activities, at

both the internal and the cross-border level. Cross-border inspection activities coordinated by

the enforcement authorities of Belgium, Germany, France and Luxembourg have for instance

been identied as good practice. These inspections require good preparation in advance, that

is to say identication of the building sites, of the intervening companies and also of the entity

or person who nances and commissions the construction project(

256

). A coordinated approach

to inspections appears to be good practice not only when it involves enforcement authorities of

dierent Member States, but also when it involves several authorities with dierent mandates

within the same Member State. In Belgium, the Social Dumping & Organised Fraudulent Networks

at the National Oce for Social Security carries out inspections with theRijksdienst voor Sociale

Zekerheid[National Social Security Oce] and theToezicht Sociale Wetten[Supervision of the

social legislation] and with the National Institute for the Social Security of the Self-employed,

sometimes supplemented by other inspection services. The advantage is that, by working

together at the same time on a construction site, all aspects are checked(

257

The inspection activities then involve a considerable portion of work taking place directly at the

construction sites. In this context two main good practices were identied to support labour

inspectors in their activities. The Finance Police in the Ministry of Finance of Austria pointed out

that a software programme(

258

) developed by a private company, which allows companies to

upload all the information such as the PD A1, the declaration according to the Austrian Anti-Wage

and Social Dumping Act and other relevant information about the posted workers, is an example

of good practice. Thanks to this document storage, the Finance Police has easy digital access

to all relevant documents and has an overview of the workers posted to Austria and of all the

subcontractors in the chain. According to the Finance Police, this software has been identied as

a good tool for inspection activities, especially on big construction sites(

259

). Another key element

is the use of mediators and interpreters during construction site inspections(

260

Representatives of labour enforcement authorities in France stressed that for inspections on

major and complex construction sites, the number of inspection agents is adapted to the work

being done. The intervention of the labour inspectorate can be carried out across ministries,

particularly under the control of the anti-fraud committees(

261

) in connection with the public

prosecutor’s oce, the labour inspectorate, Urssaf and police services(

262

(

256

) Staff member of the National Group for Monitoring, Support and Control in the Directorate General of Labour in France, interview held in April

2023.

(

257

) Staff member of the Social Dumping & Organised Fraudulent Networks at the National Office for Social Security of Belgium, interview held in

April 2023.

(

258

) Official of the Department of the Finance Police in the Ministry of Finance of Austria, interview held in April 2023.

(

259

) Official of the Department of the Finance Police in the Ministry of Finance of Austria, interview held in April 2023.

(

260

) Official from the Social Intelligence and Investigation Service, Belgium, interview held in April 2023.

(

261

) These committees are co-chaired by the departmental prefect and the prosecutor of the capital of the department. Their mandate is to

provide a response to fraud phenomena, whether they concern compulsory deductions or social security benefits. The local committees for

combating public finance fraud were established on an experimental basis by the decree of 18April 2008, and after 2years, in March 2010,

the departmental anti-fraud operational committees were created at the end of the pilot scheme. More information available at: https://www.

economie.gouv.fr/codaf-comites-operationnels-departementaux-anti-fraude#.

(

262

) Staff member of the National Group for Monitoring, Support and Control in the Directorate General of Labour in France, interview held in April

2023.

Good sanctioning practices

The Federal Ministry of Labour and Social Aairs of Germany mentioned that the freezing of

assets of foreign employers without a branch in Germany was good practice, since access to

the assets of the perpetrators or the legal entity involved is signicantly more dicult or even

impossible in these cases after the termination of business activities in Germany. The freezing

order can be applied for at the competent district court even before the investigation is

completed. The assets then frozen can later be used to satisfy the sanctions, even if the business

activity (in Germany) has been discontinued(

263

Representatives of labour enforcement authorities in France consider that administrative

sanctions are very ecient and rapid(

264

). They are entitled, as part of the administrative

sanctions, to suspend the services of companies that are not compliant, which is also an ecient

measure(

265

Key issues in inspections

Considering the results of the consultations, it also appears that both small and large construction

sites have their own characteristics that make inspection activities challenging. In Belgium,

construction sites under EUR500000 do not have the checkinatwork requirement, and thus there

is not a daily worker registration duty at the site(

266

). However, according to the German Ministry

of Finance, the personnel and organisational eort required for large construction sites is usually

higher than for small sites(

267

It has been noted by representatives of labour enforcement authorities in France that

inspection diculties relate mainly to the complexity of the construction site set-up and the

lack of knowledge that the contracting authority may have of the construction companies

involved, due to multiple layers of subcontracting with companies with dierent legal entities.

The representatives are of the opinion that these diculties do not, however, apply only to

construction sites where workers are posted; posting of workers nevertheless adds an additional

layer of complexity. They also ag the non-respect of the obligation to display on the site, for

the duration of the permit, their name, trade name or corporate name, and address. It is often

observed that this obligation is not respected, particularly by subcontracting companies that

assign employees to construction sites(

268

Key issue in imposing sanctions

The two main diculties aecting the inspection phase are inextricably linked to the nature

of posting and the nature of the construction sector; the determination of liability(

269

) and the

diculty of imposing sanctions in an intra-EU (cross-border) context(

270

Labour enforcement authorities in France stress that in cases of criminal proceedings involving

proven fraud in posting rules, the procedures can take several years(

271

(

263

) Staff member of the Federal Ministry of Finance and staff member of the Federal Ministry of Labour and Social Affairs of Germany, interviews

held in April 2023.

(

264

) Staff member of the National Group for Monitoring, Support and Control in the Directorate General of Labour in France, interview held in April

2023.

(

265

) Staff member of the National Group for Monitoring, Support and Control in the Directorate General of Labour in France, interview held in April

2023.

(

266

) Staff member of the Social Dumping & Organised Fraudulent Networks at the National Office for Social Security of Belgium, interview held in

April 2023.

(

267

) Staff member of the Federal Ministry of Finance and staff member of the Federal Ministry of Labour and Social Affairs of Germany, interviews

held in April 2023.

(

268

) Staff member of the National Group for Monitoring, Support and Control in the Directorate General of Labour in France, interview held in April

2023.

(

269

) Social inspector of the National Institute for the Social Security of the Self-employed in Belgium, interview held in April 2023.

(

270

) Official of the Finance Police in the Ministry of Finance of Austria, interview held in April 2023.

(

271

) Staff member of the National Group for Monitoring, Support and Control in the Directorate General of Labour in France, interview held in April

2023.

Key issues with temporary work agencies

One of the main problems faced by the Finance Police in the Ministry of Finance in Austria in

this context is that temporary employment agencies in the sending Member States hire workers

from Austrian temporary employment agencies, which then post these workers to Austrian

undertakings (service recipients). In the case of the cross-border recruitment of workers, service

recipients are regarded as employers as far as the availability of documents and sanctions under

the Austrian Wage and Social Dumping Act is concerned, so that it is easier for control bodies

to carry out inspections, impose sanctions and enforce labour mobility rules against an Austrian

enterprise (and not the enterprise of the sending Member State, where the enforcement of rules

and sanctions usually does not work very well). To circumvent this provision of the law against

wage and social dumping, which regulates situations of cross-border recruitment of workers

more strictly than ‘normal’ posting situations, companies from the home Member State ‘post’

and do not ‘hire’ workers from the home Member State to the Austrian temporary employment

agency, which then hires the workers from the Austrian user companies. In this situation, since

the recruitment of the workers does not take place in a cross-border context, but rather in a

national context, it is no longer the Austrian service recipients that must keep the documents,

but rather the Austrian user company. In fact, this is a ‘normal’ posting from the Member State of

origin to the Austrian temporary employment agency, so the stricter rules that apply to situations

of cross-border recruitment of workers do not apply. The ‘employer’ remains the company in

the Member State of origin, so the application of sanctions etc. is more dicult for the Austrian

authorities. This is a way of circumventing the Austrian provisions governing the application of EU

rules on the mobility of mobile workers in situations of cross-border recruitment of workers and

nding a way to carry out ‘normal’ cross-border posting instead of cross-border recruitment of

workers.

In such cases, it is extremely dicult to nd out where the workers work, since information is

only available regarding the Austrian temporary employment enterprise, and not on the user

enterprise in Austria(

272

5.2 Sanctioning mechanisms

Labour inspectors play a vital role in the protection of workers’ rights and the enforcement of employers’ obligations,

particularly in the context of posted workers. When they encounter cases of non-compliance, they and/or the Court are

entitled to issue sanctions. Such sanctions must be eective and dissuasive enough to ensure that employers who might

be inclined to bypass or violate posting rules and related labour conditions to save costs or maximise prot reconsider such

actions if there is a risk of substantial nes, penalties or other adverse consequences.

Labour inspectors consulted under this study appear to have the necessary sanctioning tools to full their statutory duties.

At the same time, they indicated some areas for improvement in their sanctioning regimes:

• introducing a higher ceiling for nes in the case of major breaches of labour laws (Czechia);

• improving access to information in the internal market information system (IMI) module concerning sanctions imposed by

other Member States to facilitate the cross-border enforcement of penalties (Spain and Poland);

• prioritising administrative nes over criminal nes, since the criminal procedure (misdemeanour proceedings) requires

extra work for labour inspectors in gathering clarications from the employer and undertaking all the necessary

declarations, making it a rather lengthy procedure (Poland);

• facilitating access to expert support for inspectors in more complex infringements while improving the specialisation of

the prosecution and the rst instance judiciary (Slovenia).

(

272

) Official of the Finance Police in the Ministry of Finance of Austria, interview held in April 2023.

5.3 Resources allocated to labour inspectors and inspection tools

The construction sector is a sector at risk of non-compliance, with a high proportion of posted workers and a high rate

of undeclared work, and is prone to occupational accidents. According to data collected by BUAK, which carries out

inspections in the construction sector in Austria, out of the 11147 foreign construction companies inspected from 2015

to 2020, 38% were suspected of underpaying their workers. In 12% of the cases, inspectors went further and charged the

inspected company with underpaying its workers. In 2018, nearly half of the companies inspected (47%) in the construction

sector were suspected of some form of underpayment. In addition, posting companies were more than 30 times more likely

to be suspected of underpaying workers than companies located in Austria(

273

). According to the number of violations

identied by Italian enforcement authorities concerning the transnational posting of workers, there were 142 violations

(26% of all violations) in 2019 and 48 violations (15%) in 2020 in the Italian construction sector(

274

). In addition, one

research project carried out among outgoing Italian posted workers in the sector identied irregularities in the working

conditions of 60% of outgoing posted workers(

275

). However, according to interviews carried out under this study,

enforcement authorities in 10 of the 17 Member States(

276

) are considered to have insucient nancial and sta resources

to properly check abusive practices and violations involving posted workers in the construction sector. Only the labour

enforcement authorities of Czechia, Germany and Finland are considered as having enough nancial and human resources.

In Austria, the interviewee stressed that BUAK is equipped with nancial and personnel resources; however, it does not have

the capacity to undertake checks and/or IMI requests after the posting of workers(

277

). On the other hand, the nance police

does not have enough nancial and human resources(

278

In Italy the interviewee pointed out that a large recruitment

process of new inspectors is currently being implemented(

279

In the Netherlands, the interviewee was of the opinion that

not enough resources are dedicated to the ‘construction’ programme within the Dutch Labour Inspectorate, but agged

that the Dutch government was investing in an ‘employment agencies’ programme for the coming years, covering in

particular the construction sector(

280

Most of the interviewees mentioned that they do possess the necessary tools to perform inspections. The following is a list

of tools they consider ecient and useful to ensure proper inspections at construction sites.

• The possibility for inspectors to have in-person exchanges with employees (Portugal, Sweden).

• The development of and access to databases in order to cross-check information (Germany, Spain, Portugal).

• The right to enter construction sites without prior notication (Finland).

• Information sharing in the workers’ mother tongue, using an interpreter when interviewing the workers about their work

conditions during the inspections (Finland).

• The possibility for labour inspectors to enter public or private land considered to be a workplace, to communicate with

anyone who is at the workplace at the time of the labour inspection, to request information from them, and to request the

submission of documentation, the production of photographic documentation or other digital media (Slovakia).

They also agged the following areas for improvement regarding their inspection tools.

• Access to private premises is only possible with the cooperation of the police (Czechia).

• The sharing of data with other national authorities (e.g. tax authorities) is not obvious or easy and could be improved

(Italy, Poland, Finland, Sweden).

According to a representative of BUAK (Austria), more emphasis must be placed on the inspections of the companies in the

sending Member States when issuing the prior posting declarations, not only during and after the posting(

281

(

273

) Geyer,L., Premrov,T. and Danaj,S., Posted Workers from and to Austria: Facts and figures, Leuven: POSTING.STAT project VS/2020/0499, 2022,

pp.38–39.

(

274

) Dorigatti,L., Pallini,M. and Pedersini,M., Posted Workers from and to Italy: Facts and figures, Leuven: POSTING.STAT project VS/2020/0499., 2022,

p.31.

(

275

) Ibid, p.6.

(

276

) Belgium, Spain, Croatia, Italy, the Netherlands, Austria, Poland, Portugal, Slovakia and Sweden.

(

277

) Staff Member of BUAK of Austria, interview held in January 2023.

(

278

) Official of the Finance Police in the Ministry of Finance of Austria, interview held in January 2023.

(

279

) Official of the Italian Labour Inspectorate of Italy, interview held in January 2023. The recruitment of 1249 permanent inspectors is ongoing,

and the recruitment of a further 1600 positions is planned for the next 2years.

(

280

) Officials of the Nederlandse Arbeidsinspectie [Dutch Labour Inspectorate], interviews held in February and December 2022.

(

281

) Staff member of BUAK of Austria, interview held in January 2023.

The representative of a French employer association(

282

) is of the opinion that labour inspections on construction sites

should also be carried out in the evening and over the weekend to better control illegal work and abusive practices related

to non-respect of working conditions (work over the weekend and extra hours), covering construction workers in general

but also posted workers.

5.4 Cross-border cooperation between social security and enforcement institutions

The posting of workers implies the involvement of several actors in two or more Member States. An ecient system of

exchange of information among Member State authorities is a key factor in monitoring posting situations(

283

). ChapterIII of

the Enforcement Directive aims to improve the administrative cooperation among Member State institutions and thus the

enforcement of posted workers’ rights in cross-border situations. Article 6 lays down the principle of mutual administrative

cooperation, which implies replying to reasoned requests for information from competent authorities and cooperation in

carrying out checks, inspections, and investigations with respect to the situations of posting, including the investigation of

any non-compliance or abuse of applicable rules on the posting of workers.

According to a study focusing on the German and Dutch construction sector, one of the circumvention practices which is

dicult to identify due to limited cooperation among Member State enforcement agencies is related to the lowering of

the payment of social security contributions in the receiving Member State(

284

). In the framework of this circumventing

practice, sending companies issue two contracts: one referring to the receiving Member State, which species that country’s

minimum wage with the obligation to pay social security contributions on that amount, and another one in the sending

Member State, which species that country’s minimum wage and the related social security contributions on that amount

which is considerably smaller. Thus, the social contributions are paid (in the sending Member State) on the lower salary

of the sending Member State, instead of on the basis of the higher salary of the receiving Member State(

285

). In addition,

the manipulation of untaxed allowance and the so-called letterbox companies are very dicult to detect, due to the

underdeveloped cooperation between Member States (and also due to low requirements to be met when registering a

construction company in other Member States, in the case of letterbox companies)(

286

In the framework of the interviews carried out under this study, labour enforcement authorities had to provide an

assessment of the cross-border cooperation between national authorities of receiving and sending Member States on the

enforcement of penalties, the cross-border payment of social security contributions, the manipulation of untaxed allowance,

the detection of letterbox companies, cross-border recovery and/or payment of nes.

When it comes to social security coordination, stakeholders from Belgium, Poland, Portugal, Slovenia and Sweden expressed

some concerns. One interviewee from Portugal stressed that the coordination between Member States could be improved

through the participation of the tax administration and the sharing of information regarding the payment/collection

of nes. This interviewee suggested in this context that ELA could play a leading role, namely by carrying out joint and

concerted inspections, along with oering adequate training and promoting the sharing of experiences and good practices

among Member States(

287

In Belgium, Spain, Poland and Sweden, interviewees identied issues with the cross-border enforcement of sanctions.

In Sweden, the interviewee was of the opinion that more ecient implementation of the directive is needed on such

cooperation(

288

). In Poland, the lack of information sent to receiving Member States about detected infringements creates

diculties for the sending Member State when undertaking further steps regarding the employers who post workers.

For example, the National Labour Inspectorate would be able to apply for removal of the temporary agency undertaking

the posting of workers from the list of temporary work agencies if it knew that such an employer continuously violates

the regulation. Without feedback information, such operations are considered complex(

289

). A better ow of information

between Member States on detected infringements could improve the enforcement of sanctions in the sending Member

States.

(

282

) Staff member, National Federation of Buildings in France, interview held in May 2023.

(

283

) Wagner,I., and Berntsen,L., ‘Restricted rights: Obstacles in enforcing the labour rights of mobile EU workers in the German and Dutch

construction sector’, Transfer: European Review of Labour and Research, Vol.22, No2, 2015, pp.193–206.

(

284

) Ibid, pp.198–199.

(

285

) Ibid, pp.198–199.

(

286

) Ibid, p.198.

(

287

) Officials of the Inspection Activity Support Services Department, Authority for Working Conditions of Portugal, interview held in February

2023. Staff members of the International Coordination Unit of Portugal, Social Security, interview held in February 2023.

(

288

) Staff member of the Work Environment Authority of Sweden, interview held in January 2023.

(

289

) Staff members of the Department of Legality of Employment of Poland, interview held in January 2023.

Regular exchange between Member States (as in the case of the liaison oces for posting of workers and/or IMI users, in

particular through ELA’s ‘IMI-PROVE’ programme)(

290

) and the establishment of bilateral agreements have been identied as

good practices.

One of the key tools for communication between dierent labour inspectorates is the IMI module on the posting of

workers, which is regulated by Regulation 1024/2012 applying to all IMI modules(

291

). IMI is an online tool that facilitates

the exchange of information between public authorities involved in the practical implementation of EU law and helps

Member State authorities to full their cross-border administrative cooperation obligations in multiple policy areas(

292

Article 21 of the Enforcement Directive species that the administrative cooperation and mutual assistance between the

competent authorities of the Member States concerning the posting of workers shall be implemented through IMI. This tool

was established to improve the exchange of information across borders, allowing authorities to, inter alia, request specic

information on employment conditions or posting companies(

293

). However, it should be noted that currently IMI does not

cover communication among the authorities (with a mandate on social security) issuing the PDs A1.

According to Article 6(6) of the Enforcement Directive, Member States must supply the information requested by other

Member States (or the Commission) within 2working days in urgent cases for the purpose of checking an establishment in

another Member State, and up to a maximum of 25working days from the receipt of the request, unless a shorter time limit

is mutually agreed between the Member States. A 2020 Eurofound study provides a good overview of the various feedback

from Member States on the use of IMI(

294

In the framework of the interviews carried out under this study, labour enforcement authorities were requested to provide

an assessment of the gaps in the IMI module in the context of the construction sector. The only gap concerning the

construction sector is that IMI requests cannot be ltered per sector, thus hindering the possibility of collecting data on

the number of requests sent and received per sector(

295

). Labour enforcement authorities in Poland also mentioned that

IMI is not set up to take into account the specicities of each Member State(

296

). Finally, according to the Polish labour

inspectorate, the deadlines to provide answers (2 or 25days) are too short(

297

). This appears particularly relevant because

according to the latest data that have been identied, Poland is the Member State that receives the highest number of

requests for information on posting (164 in 2012)(

298

Labour enforcement authorities in Austria agged that, as with the social security area, the exchange of information among

competent authorities is not ecient. One solution could be to open the scope of the IMI module to cover social security

coordination(

299

Box7: Case study on bilateral agreements between Poland and receiving Member

States

Cooperation between the Polish Labour Inspectorate and its counterparts in other Member States

is mainly aimed at safeguarding the labour rights of Polish citizens working for foreign employers

and of workers posted by Polish employers providing services outside Poland. Poland has

concluded bilateral agreements with four of the Member States considered in the case studies:

Belgium, the Netherlands, Portugal and Slovakia. An agreement between Poland and France is

currently being negotiated. These agreements, however, cover all sectors and therefore do not

include any specic provisions or arrangements covering the construction industry.

(

290

) Official of the Federal Ministry of Finance and Central Customs Authority transferred by the Ministry of Labour and Social Affairs of Germany,

interview held in January 2023.

(

291

) Regulation (EU) No1024/2012 of the European Parliament and of the Council of 25October 2012 on administrative cooperation through the

Internal Market Information System and repealing Commission Decision 2008/49/EC (‘the IMI Regulation’) (OJ L316, 14.11.2012, p.1).

(

292

) Information retrieved from the Commission website on IMI, available at: https://ec.europa.eu/internal_market/imi-net/index_en.htm.

(

293

) See the Commission website on IMI: https://single-market-scoreboard.ec.europa.eu/enforcement-tools/imi_en.

(

294

) Eurofound, 2020, Improving the monitoring of posted workers in the EU, Publications Office of the European Union, Luxembourg, 2022.

(

295

) Official of the Italian Labour Inspectorate of Italy, interview held in January 2023.

(

296

) Official of the State Inspectorate, Service for the supervision of employment, posting and international cooperation of Croatia, interview held

in January 2022.

(

297

) Staff members of the Department of Legality of Employment of Poland, interview held in January 2023.

(

298

) Eurodetachment, ‘Détachement des travailleurs: Améliorer les collaborations entre les partenaires sociaux et les autorités publiques en Europe–

Synthèse générale’, 2012, p.62.

(

299

) Official of the Finance Police in the Ministry of Finance of Austria, interview held in January 2023.

The provisions of existing bilateral agreements allow for the exchange of information on

irregularities detected during inspections of the working conditions of posted workers,

cooperation in handling complaints sent to the National Labour Inspectorate of Poland in

connection with the work of Polish citizens abroad. They also allow for the implementation of

other activities related to the application of EU rules in the eld of labour mobility, including

posting. The agreement between Poland and Belgium mainly covers the exchange of information

and also covers, inter alia, infringements found during audits and infringements of workers’

rights. The agreement with Portugal, besides focusing on the exchange of information,

is also aimed at developing cooperation for the exchange of inspectors and experts. The

agreement with the Netherlands is the rst one inducing a provision related to the exchange

of administrative information via the IMI module, related inter alia to the posting of workers (in

particular concerning wages and other benets of the employment contract and costs incurred

by the employee in connection with the posting) or pertaining to abusive practices to the extent

necessary to carry out inspections. Lastly, the agreement with Slovakia covers the operations

pertaining to persons working on the territory of the other party, including dealing with

complaints; preparation of information materials on the OSH and working condition regulations

addressed to posted and migrating workers and employers; and exchange of information.

Most of the existing agreements concluded by the National Labour Inspectorate of Poland

aimed to establish rules for administrative cooperation in the eld of posting of workers prior

to the implementation of the Enforcement Directive, which introduced an eective information

exchange tool in the form of IMI. Currently, the exchange of information between Poland and

the authorities of dierent Member States takes place mainly through IMI. However, there are

bilateral agreements which complement IMI. The fact that an agreement was concluded before

(as the one signed with Belgium) or after the introduction of the IMI module for posting (as in the

case of the Netherlands and Slovakia) appears extremely relevant, as at the moment a signicant

portion of the cooperation between Member States takes place precisely through this IMI

module.

Of the four agreements considered in this case study, the one signed with Belgium in 2007,

is the oldest, while the one with Slovakia is the most recent and was signed in 2019. In the

case of Belgium, for instance, the agreement no longer appears to be of particular practical

relevance, unlike Member States that have a provision in their cooperation agreement regulating

cooperation via the IMI form.

5.5 The role of trade unions in supporting the enforcement of posted workers’ rights in

the construction sector

In many Member States, trade unions have a role in monitoring and enforcing the rights of posted workers. Interviewees

indicated that there are no legal or administrative barriers to accessing trade unions, other than the payment of the trade

union membership fee. However, posted workers are less likely to be organised and represented by trade unions than other

(migrant) workers. Such a situation can be explained by several factors summarised in a PROMO project brieng paper(

300

• They are highly mobile and fall under dierent labour regulatory provisions(

301

• Their employment conditions and standards in the receiving Member States are better than those in the sending Member

State, limiting their need to be aliated to trade unions(

302

(

300

) The literature focusing on the different aspects limiting the access to trade unions is summarised in the final paper of the PROMO Project. See:

Kall,K. and Lillie,N., PROMO Project, Protection of Posted Workers in the European Union: Findings and policy recommendations based on existing

research, 2017, p.30.

(

301

) Kall,K., and Lillie,N., PROMO Project, Protection of Posted Workers in the European Union: Findings and policy recommendations based on existing

research, 2017, p.30.

(

302

) Ibid. See also: Houwerzijl,M.S. and van Hoek,A.A.H., Comparative study on the legal aspects of the posting of workers in the framework of the

provision of services in the European Union, Radboud University Nijmegen, 2011.

• They are very often isolated, without strong relationships with the host communities and domestic workers. They often

have limited language skills and they stay in a workplace for a short period of time(

303

• They are not or scarcely aware of their rights or the means to enforce and defend them, and rarely seek out collective

representation due to the fear of reaction from employers(

304

Danaj and Sippola argue that the methods used by trade unions to recruit long-term, permanent resident migrant workers

are also applicable to the aliation of posted workers. However, due to their very short stays, high mobility and posting

circumstances, aliation strategies for posted workers require ad hoc approaches(

305

). According to their research, the

strategies used by trade unions to unionise posted workers can be clustered into four main categories, including the

availability and accessibility of unions, direct communication (in-person exchange and informative materials on site),

gaining the trust of the workforce and cooperation with other external stakeholders (e.g. media coverage)(

306

). In addition,

the establishment of information centres and the importance of cross-border cooperation between trade unions have been

identied in literature as relevant factors(

307

). Another suggestion raised in the course of the interviews carried out in this

study is that contact with trade unions should be encouraged upon entry into the Member State of destination, and possibly

in the presence of third-party translators, instead of the employers(

308

The degree of cooperation of trade unions with labour inspectors on enforcement aspects diers from one Member

State to another. In Croatia(

309

) and the Netherlands(

310

), the cooperation was perceived by trade unions as very limited,

whereas in Poland it was considered that the cooperation was very close including the organisation of joint initiatives and

activities. In France, cooperation is not on enforcement aspects as such but more on awareness-raising campaigns and the

dissemination of information(

311

Box8: Case study on the enforcement of workers’ rights in sending Member States

Key issues in the enforcement of workers’ rights in sending Member States

The enforcement of posted workers’ rights in EU construction appears to be particularly

challenging. Indeed, in addition to the diculties inherent to posting (i.e. cross-border

employment relationships) there are also diculties posed by the main features of the

construction sector (e.g. long subcontracting chains and high worker mobility).

After the posting period, workers who have experienced a violation of their rights will be

able to enforce them before the courts of their sending Member State. Often posted workers

fear potential retaliation by their employers and, consequently, they usually commence legal

proceedings after nishing working for the employer in question(

312

Courts of the sending Member States experience diculties in identifying the applicable wages

and working conditions based on the receiving country’s legal framework and/or collective

agreements, as they are not used to such legal environments. This is illustrated by the statement

of a Polish judge interviewed under this study who considers that judges in such situations must

(

303

) Ibid. See inter alia: Arnholtz,J. and Hansen,N.W., ‘Labour market specific institutions and the working conditions of labour migrants: The case

of Polish migrant labour in the Danish labour market’, Economic and Industrial Democracy, Vol.34, No3, 2013, pp.401–422; Caro,E., Berntsen,L.,

Lillie,N. and Wagner,I., ‘Posted migration and segregation in the European construction sector’, Journal of Ethnic and Migration Studies, 41(10),

2013, pp.1600–1620.

(

304

) Ibid. See also: Alberti,A. and Danaj,S., ‘Posting and Agency Work in British Construction and Hospitality: The Role of Regulation in

differentiating the Experiences of Migrants’, International Journal of Human Resource Management.

(

305

) Danaj,S. and Sippola,M., ‘Organizing posted workers in the construction sector’, In Drahokoupil, J. (ed.), The outsourcing challenge: Organizing

workers across fragmented production networks, 2015, pp.217–235.

(

306

) Ibid.

(

307

) See: Kall.,K. and Lillie,N., PROMO Project, Protection of Posted Workers in the European Union: Findings and policy recommendations based on

existing research, 2017. See also: Wagner,I. and Berntsen,L., ‘Restricted rights: Obstacles in enforcing the labour rights of mobile EU workers in

the German and Dutch construction sector’, Transfer: European Review of Labour and Research, Vol.22, No2, 2015, pp.193–206; Cremers,J. and

Bulla,M., Collective redress and workers’ rights in the EU, AIAS working paper, 2012, p.118.

(

308

) EURES National Coordinator Italy, reporting a position of an Italian trade union, interview held in December 2022.

(

309

) Regional representative of the Croatian Trade Union of Construction Industry, interview held in April 2023.

(

310

) Trade union official– FNV, construction sector and trade union official– CNV, interview held in April 2023.

(

311

) Staff member of the National Group for Monitoring, Support and Control in the Directorate General of Labour in France, interview held in April

2023.

(

312

) Judge– Labour Court of Portimão in Portugal, interview held in April 2023.

deal with multiple complex aspects, including remuneration, non-cash benets, rules pertaining

to covering the costs associated with posting, and the calculation of working time(

313

). A judge

in Portugal also expressed some diculties in identifying the employer to whom an employee’s

rights can be asserted due to the long subcontracting chains(

314

For the judges of the sending countries, the main diculties also revolve around the

determination of the monetary value of the infringement, which raises issues especially when it

comes to the calculation of overtime(

315

). In all sending countries, no initiatives to support specic

judges have been identied.

The role of trade unions in the sending Member State

In sending Member States (i.e. Croatia, Poland, Portugal, Slovenia and Slovakia), trade unions play

a key role in supporting workers in the enforcement of their rights, but they experience nancial

and human resources constraints and lack the necessary language skills to properly provide this

support.

5.6 Conclusions on enforcement

Overall, labour inspectors can make use of relevant inspection tools and sanctions to full their statutory duties when

dealing with posted workers in the construction sector. However, the identication of some factual elements referred to

in Article 4(2) and (3) of the Enforcement Directive remains challenging, notably aspects concerning the undertaking’s

registered oce, administration, tax and social security contributions payment, performance of contracts, turnover size and

nature of activities, and the return of posted workers to the sending Member State.

The construction sector is a priority for labour enforcement authorities due to its high-risk nature, signicant proportion

of posted workers and susceptibility to non-compliance with labour and the OSH legal framework, including in a posting

context. Nevertheless, labour inspectors often lack sucient nancial and human resources to eectively counter abusive

practices and violations involving posted workers. Enhanced cross-border inspections, fostering improved information

sharing and addressing illegal conduct across multiple Member States emerge as eective tools for enforcing posting rules

in the construction sector.

(

313

) Judge in Białystok District Court, expert in the posting of workers in Poland, interview held in April 2023.

(

314

) Judge– Labour Court of Portimão in Portugal, interview held in April 2023.

(

315

) Judge in Białystok District Court, expert in the posting of workers in Poland, interview held in April 2023.

6. Cross-border matching initiatives to address labour

market imbalances in the EU construction sector

Main ndings

• The construction sector in the EU has been characterised by severe and persistent labour and

skill shortages throughout the years in both qualitative (e.g. lack of skills and qualications

required to support the green and digital transition) and quantitative terms.

• Shortages are common among all Member States, but most prominently within central

and eastern Member States. The reasons behind this trend include the intra-EU mobility

of jobseekers from eastern towards western Member States to leverage the higher living

conditions, and the demographic challenges faced by some Member States.

• Russia’s aggression against Ukraine, and the subsequent return of Ukrainian men to ght for

their country, has amplied shortages in the construction sector in those Member States more

reliant on Ukrainian workers such as Poland. Displaced individuals from Ukraine who moved to

Member States have dierent demographics relative to previous migrant inows from Ukraine,

with a majority being (highly educated) women.

• Given the shortages of (qualied(

316

)) construction workers within the EU, several cross-border

matching initiatives in place within Member States are directed towards the recruitment of

TCNs. Those initiatives are often fostered via bilateral agreements with third countries.

• Language and cultural dierences and the limited recognition of skills and qualications across

Member States are common barriers to the eectiveness of cross-border matching initiatives.

6.1 Introduction and context

Despite a rich literature on labour shortages and surpluses, and increasing reference to these concepts in policy discussions,

there is no widely accepted denition for the concepts(

317

). At its most basic, labour market imbalances can be characterised

by a shortage or surplus of workers and/or skills(

318

). Within the EU, the monitoring of labour and skill shortages and

surpluses lies within the responsibilities of Member States, as outlined in Article 30 of Regulation (EU) 2016/589(

319

). This

chapter of the report focuses specically on labour market imbalances within the EU construction sector, examining current

trends, assessing the prevailing conditions and exploring examples of cross-border matching initiatives that have been put

in place across Member States to address shortages.

In general, labour market imbalances occur when there is a mismatch between labour demand and supply. Employers are

in such cases unable to nd the needed number of workers with a required skill set to ll their vacancies, at a particular

level of wages and working conditions, and at a specic location and point in time(

320

). It is useful to distinguish between

(

316

) The terminology of skilled/qualified labour in this report follows that of the International Standard Classification of Education (ISCED), as

operationalised by Eurostat for example as follows: ‘low’ educational attainment refers to ISCED levels 0–2 (early childhood, primary and lower

secondary education); ‘medium’ refers to ISCED levels 3–4 (upper secondary and post-secondary non-tertiary education); and ‘high’ refers

to ISCED levels 5–8 (short-cycle tertiary education and tertiary education at the bachelor, master’s or doctoral level). Eurostat, International

Standard Classification of Education (ISCED), Luxembourg, 2022.

(

317

) Eurofound, Tackling labour shortages in EU Member States, Publications Office of the European Union, 2021.

(

318

) Organisation for Economic Co-operation and Development, ‘Getting Skills Right’, Skills for Jobs Indicators, 2017.

(

319

) Regulation (EU) 2016/589 of the European Parliament and of the Council of 13April 2016 on a European network of employment services

(EURES), workers' access to mobility services and the further integration of labour markets, and amending Regulations (EU) No492/2011

and (EU) No1296/2013 (OJ L107, 22.4.2016, p.1). Article 30 states that ‘each Member State shall, in particular, collect and analyse gender-

disaggregated information on: (a) labour shortages and labour surpluses on national and sectoral labour markets…’.

(

320

) European Commission, Directorate-General for Employment, Social Affairs and Inclusion, Labour Market and Wage Developments in Europe,

Annual Review, Brussels, 2022. ELA, Report on Labour Shortages and Surpluses 2022, Bratislava, 2023.

quantitative and qualitative shortages(

321

). Quantitative shortages arise when the overall supply of labour, across all sectors

and occupations, falls short of the total demand for labour, resulting in a large share of vacancies that are dicult to ll

and a low unemployment rate. Qualitative shortages occur when labour demand surpasses labour supply within a specic

sector, occupation or skill level, resulting in a large share of unlled vacancies together with a high unemployment rate.

Some examples of factors that may cause labour shortages are depicted in Figure3.

Figure3: Causes of quantitative and qualitative shortages(

322

)

Decrease in the number of workers, e.g. due to adecline in the working-age

population, demographic trends, emigration, adecrease in the participation rate,

inactivity of marginal groups and early retirement.

Increase in labour demand due to an increase in economic growth and/or

achange in consumer behaviour.

Quantitative shortages

Skills mismatch which can depend on several factors, including for instance

technological change, and change in supply.

Preference mismatch which can depend on the divergence between features

of the vacancies unlled and preferences of workers, which may also result from

employers’ challenges in clearly expressing their HR needs.

Informational mismatch which can depend on the lack of information.

Qualitative shortages

Despite disparities in assessments, classication and measurement approaches among Member States(

323

), there is

mounting evidence that the construction sector in the EU is facing signicant (qualied) workforce shortages. The Centre for

the Development of Vocational Training (Cedefop), for instance, estimates that the EU will need around 1million new and

replacement workers in the construction sector by 2025(

324

The persistent decrease in the number of workers, which is a trend characterising all sectors, represents a key factor when it

comes to the quantitative labour shortages seen in the EU construction sector. As the population ages, fewer young people

enter this industry, while the number of experienced workers reaching retirement age is increasing. In addition, the mobility

trends characterising the construction sector, with mobile workers moving from eastern to western Member States, create

shortages in the former, which seek to address them by recruiting construction workers from outside the EU(

325

This demand for construction workers is driven not only by a shortage of workers, but also by evolving requirements

for knowledge and skills. For instance, factors such as the shift towards green and energy-ecient buildings (boosted

by the European Green Deal (EGD)(

326

)) or the integration of digital technologies and processes are contributing to the

qualitative labour shortages in the sector(

327

). Those factors result in a growing demand for workers with skills in sustainable

construction practices, such as energy-ecient building design and the use of renewable materials, and digital skills to

foster the adoption of the so-called Construction 4.0 technologies.

(

321

) Reymen,D., Gerard,M., et al., Labour market shortages in the European Union, study for the European Parliament’s Committee on Employment

and Social Affairs, 2015, p.20. See also: Adams,J., Greig,M. and McQuaid,R.W., ‘Mismatch unemployment and local labour-market efficiency:

the role of employer and vacancy characteristics’, Environment and Planning A, 32(10), 2017, pp.1841–1856. Zimmer,H., ‘Labour market

mismatches’, Economic Review, Brussels: National Bank of Belgium, 2012, pp.55–68. Eurofound, Measures to tackle labour shortages: Lessons for

future policy, Publications Office of the European Union, Luxembourg, 2023.

(

322

) Ibid. ELA, 2023.

(

323

) The lack of a common definition for labour market imbalances translates into a wide range of approaches used to calculate labour and skill

shortages and surpluses. In general, instruments used to measure them involve the analysis of employment-based, volume-based, or price-

based indicators, or indicators of imbalance. Each of those has its own advantages and limitations. Eurofound, 2021.

(

324

)

Brucker Juricic,B., Galic,M. and Marenjak,S., ‘Review of the Construction Labour Demand and Shortages in the EU’, Buildings, Vol.11, No1,

2021. Cedefop, Sectoral trends, available online: https://www.cedefop.europa.eu/en and https://www.cedefop.europa.eu/en/tools/skills-

online-vacancies/sectors/skills.

(

325

)

Brucker Juricic,B., et al., 2021.

(

326

) Under the EGD, the EU aims to achieve climate neutrality (thus reaching net zero greenhouse gas emissions) by 2050. This shift towards

sustainability and a net-zero economy has significant implications for the construction sector, e.g. by raising the demand for energy-efficient

buildings. More information on the EGD can be found on the Commission website: https://commission.europa.eu/strategy-and-policy/

priorities-2019-2024/european-green-deal_en.

(

327

)

Brucker Juricic,B., et al., 2021.

6.2 Trends and state of the art

Labour shortages in the EU peaked just before the COVID-19 crisis. Data from the European Business and Consumer Surveys

(EU-BCS)(

328

) reveal a signicant increase in the proportion of employers in the construction sector who identied labour

shortages as a major constraint on their business activities. Between 2013 and 2019, this share rose vefold, marking

the most substantial surge compared to other sectors. The upward trend was then interrupted by the pandemic, but it

fully bounced back afterwards. In spite of a slight decrease in the second half of 2022, the prevalence of shortages in the

construction sector remains relatively high; 31% of employers conrm that labour shortages are one of the major factors

hindering their production in 2022(

329

The 2021 Eurofound study(

330

) uses data from EU-BCS to analyse disparities in labour shortages across countries and shows

that eastern European Member States record the highest perceived shortages in the manufacturing and construction

sectors(

331

). There are several factors behind the trend, including the increase in economic growth following the COVID-19

pandemic crisis and the resulting expansion of company production capacities, a signicant outow of workers to western

Europe and the ageing of the population. In contrast, northern and western European countries recorded the highest labour

shortages for companies in the service sector, while southern Europe reported less severe shortages overall(

332

Further evidence is given by ELA’s yearly publications on labour shortages and surpluses(

333

). In the 2021 report(

334

ELA found that the list of shortages is dominated by just four groups of occupations: construction, healthcare-related

occupations, software professionals, and engineering craft workers. These four occupation groups account for 21 out of the

28 most widespread occupations with shortages, and for 64% of the total employment in these 28 occupations. Those four

occupations also remained at the top of the list in the 2022 version of the report, conrming the structural nature of those

shortages(

335

). A non-exhaustive list of factors that are creating and amplifying the imbalance between demand and supply

in construction-related occupations (including skilled jobs) is provided in Figure4.

Figure4: Example of factors creating imbalances in the construction sector(

336

)

• Increase in sustainable and environmentally friendly buildings.

• Increase in ageing population, requiring homes to be adapted to the

needs of older people.

• Reduction in average household size.

• Reduction in working age population.

• Limited skills or qualications among jobseekers for higher-level

construction occupations.

• Migration and mobility patterns. (including the outow of Ukrainian

male workers from the EU returning to Ukraine to ght against the

Russian aggression).

• Working and employment conditions (e.g. relative wages).

Factors increasing the demand

for construction workers

Factors decreasing the supply

ofconstruction workers

Delving deeper into country and regional disparities, the 2022 ELA report on labour market imbalances(

337

) conrms

the presence of signicant shortages in the construction sector of eastern European countries. Poland, for instance,

(

328

) EU-BCS is an important source for the analysis of labour shortages. The surveys target (quarterly) employers in manufacturing, services and

construction with questions on the extent to which labour shortages are hindering their production.

(

329

) However, the high level of labour shortages is not limited to the construction sector and can also be found in the other two sectors analysed;

26% of employers in industry and 30% in services recorded labour shortages as the main factor preventing the continuation of business

activities. European Commission, 2022.

(

330

) Eurofound, 2021.

(

331

)

In 2019, 39% of companies in manufacturing and 42% of companies in construction in eastern Europe indicated labour shortages as a main

factor limiting production. Ibid.

(

332

) Ibid.

(

333

) ELA has taken on the responsibility of producing the EU report on labour shortages and surpluses in 2021 from the Commission’s Directorate-

General for Employment, Social Affairs, and Inclusion to ensure the implementation of Article 30 of Regulation (EU) 2016/589.

(

334

) McGrath,J., Report on Labour Shortages and Surpluses 2021, ELA, Bratislava, 2021.

(

335

) ELA, 2023.

(

336

) Ibid.

(

337

) Ibid.

experiences shortages in northwestern regions (e.g. Lubuskie, Pomorskie, Dolnośląskie, Wielkopolskie), southern regions

(e.g. Opolskie, Małopolskie, Świętokrzyskie, Śląskie) and northern regions (e.g. Kujawsko–Pomorskie, Zachodniopomorskie).

In Lithuania, shortages are instead felt throughout the country and are primarily due to intra-EU labour mobility patterns

of Lithuanian workers emigrating to other Member States. Consequently, the country has implemented robust policies to

attract skilled workers (especially from non-EU countries, such as Ukraine, Russia and Belarus). Even though the situation in

western Member States is comparatively more favourable (also thanks to a more prosperous business environment, higher

investments and more education facilities), labour market imbalances persist in several countries. Germany, for instance,

reports signicant shortages of skilled construction workers nationwide. Scandinavian countries also face shortages, albeit

with regional variations, typically impacting on the less populated northern regions.

6.3 The impact of Russia’s war of aggression against Ukraine on labour market

imbalances in the EU construction sector

The Russian invasion of Ukraine in February 2022 has strongly impacted the EU labour market by altering the supply of

workers. Between February and November 2022, around 12.5million people crossed the EU–Ukraine border(

338

). These

ows are not unidirectional, in that they do not entail only people displaced from Ukraine, but also Ukrainians (previously

established in Member States) who returned to ght for their home country. The outows and inows of Ukrainians have

repercussions on the extent and severity of shortages in several sectors, including in the construction sector.

By the end of April 2023, 4million people displaced from Ukraine benetted from temporary protection in Member States,

with the main countries hosting beneciaries (in absolute terms) being Germany and Poland (around 1million each)(

339

Temporary protection grants beneciaries access to the EU labour market and can thus represent an opportunity for

countries facing labour shortages(

340

). However, those benets hardly have any eect on the construction sector, since

many workers are not well-suited to ll the job vacancies in the sector due to their young age or caring duties(

341

). In

addition, the Russian invasion of Ukraine resulted in thousands of Ukrainian men, who had been relocating to central

Europe in the past decade, returning to their home country, thus exacerbating shortages on construction sites, on factory

assembly lines and in warehouses. Their departure is leading to rising costs and delays in manufacturing orders and

construction work, which have a knock-on eect on economies already weakened by the COVID-19 pandemic and increases

in ination and energy prices(

342

). Poland provides a case in point(

343

), which is further described in Box 9: Ukrainians in the

Polish construction sector.

Box9: Ukrainians in the Polish construction sector

The Polish construction sector has developed a strong dependency on migrant labour from

Ukraine throughout the years. In 2020–2021 around 70% of all work permits went to Ukrainians

and the largest number of the permits concerned the construction sector (17%), followed by

industrial processing (15%) and transport and storage (14%)(

344

). A large number of Ukrainian

workers in Poland are posted to other Member States. Between 2018 and 2021, around 80%

of all PDs A1 issued in Poland to TCNs went to Ukrainians. When it comes to the construction

sector, Ukrainians were the top nationality among posted TCNs; in 2021, around 17000 PDs A1

were issued to Ukrainians in the sector, which represents 80% of all forms issued to TCNs in the

sector(

345

(

338

) European Commission, 2022.

(

339

) Eurostat, ‘Temporary protection for persons fleeing Ukraine– monthly statistics’.

(

340

) Krzysztoszek,A., Zachova,A., Hudec,M. and Vanttinen,P., ‘EU states competing to attract Ukrainian workers’, Euractiv, 2023 (https://www.

euractiv.com/section/politics/news/eu-states-competing-to-attract-ukrainian-workers/).

(

341

) Brodersen,F., Koper,A. and Kahn,M., ‘Exodus of Ukrainian workers hits Europe’s emerging economies’, Reuters, 2022 (https://www.reuters.

com/markets/emerging/exodus-ukrainian-workers-hits-europes-emerging-economies-2022-07-25/). Indicative evidence suggests that sectors

such as accommodation and catering (also affected by labour shortages in several Member States) have benefitted more from the inflow of

labour, ELA, 2023.

(

342

) Ibid.

(

343

) The relevance of such issues for Poland was confirmed by the interviews conducted in the context of this study. Out of all national

stakeholders interviewed, only Polish stakeholders raised strong concerns about the impact of the Russian war of aggression against Ukraine

on the sector.

(

344

) Lesniak,G., ‘W pandemii ponad 70 proc. zezwoleń na pracę dla obcokrajowców zostało wydanych Ukraińcom’, Prawo, 2021.

(

345

) Kiełbasa,M., Szaraniec,M., Mędrala,M. and Benio,M., Posted Workers from and to Poland: Facts and figures, Leuven: POSTING.STAT project

VS/2020/0499, 2022, p.111.

Despite contributions from the migrant workforce, the Polish construction sector has been

facing signicant and persistent labour shortages. According to the EU-BCS, almost half of the

rms in industry and construction reported labour shortages as a factor limiting production in

2019, among the highest in the EU(

346

). During the years when it has been conducted, the Polish

Occupational Barometer(

347

) also shows that the construction industry in Poland has consistently

reported the highest number of occupations experiencing shortages. This trend continues in the

2023 projection(

348

). The onset of the Russian invasion of Ukraine has exacerbated the situation.

Although precise data are not available, estimates indicate that around a quarter of Ukrainian

workers have left Poland since February 2022 (mostly to go back to Ukraine to ght) and the

construction sector has been particularly impacted by those departures(

349

On the other hand, Poland is receiving a large inux of people displaced from Ukraine. The

prole of these people is however dierent from those workers leaving the country. While

before the Russian war of aggression against Ukraine Ukrainian workers were mainly men

employed in manufacturing and construction sectors, today almost 80% of adult citizens from

Ukraine with a Powszechny Elektroniczny System Ewidencji Ludności [Universal Electronic System

for Population Registration] number(

350

) are women(

351

), and most of them have completed

tertiary education(

352

). Those issues were also raised by the Polish Organisation of Employers in

Construction and the Ministry of Family and Social Policy during the interviews conducted in the

context of this study. Both stakeholders indicated that the departure of Ukrainian men working

in the sector and the loss of the usual supply of workers from Belarus and Russia is amplifying the

severity of the shortages and pushing employers to hire from central and eastern Asia(

353

6.4 Cross-border matching/recruitment initiatives to address labour market imbalances

in the EU construction sector

To tackle the issue of labour and skill shortages, Member States have adopted several measures aimed at attracting workers

with the needed skill sets. While several of these measures look beyond EU borders (see Box 10), this section primarily

focuses on initiatives targeting workers who have the right to freely move within the EU. The identication of the dierent

measures was primarily based on the outcomes of the interviews with national stakeholders (e.g. employer organisations,

public employment services, governmental bodies), conducted in the context of the case study on cross-border matching/

recruitment initiatives to address labour and skills shortages in the construction sector.

Table10 provides an overview of the dierent cross-border measures, clustering them according to their aim(

354

): i)

enhancing skills development and training opportunities in the construction sector; ii) oering training opportunities at the

company level; iii) improving the attractiveness of living and working conditions in a country/region; and iv) fostering cross-

border cooperation.

(

346

) European Commission, ‘European Construction Sector Observatory’, Country profile Poland, 2021.

(

347

) Available at: https://barometrzawodow.pl/en.

(

348

) Antończak-Świder,K. and Biernat,A., Occupational Barometer 2023– report summarising the study in Poland, Regional Labour Office in Krakow

and Ministry of Family and Social Policy Republic of Poland, 2023.

(

349

) Labour shortages in the construction sectors in Poland have been put forward by several sources and articles. See for instance, Rfi, ‘Polish

businesses face labour shortage after Ukraine war’, RFI, 2022. Forbes, ‘Odpływ pracowników budowlanych na Ukrainę– co może zrobić

wykonawca?’, Forbes.pl, 2022. Euractiv, ‘Labour shortages felt all over Europe’, Euractiv, 2022. Ciobanu,C. and Gosling,T., ‘Labour Pain in

Central Europe’, Reporting Democracy, 2022.

(

350

) This is a unique personal identification number assigned to each Polish citizen, and also to foreign nationals residing in Poland.

(

351

) Office for Foreigners, Citizens of Ukraine in Poland– current migration data, 2023, https://www.gov.pl/web/udsc/obywatele-ukrainy-w-

polsce–aktualne-dane-migracyjne (last accessed April 2023).

(

352

) Chmielewska-Kalińska,I., Dudek,B. and Strzelecki,P., ‘The living and economic situation of Ukrainian refugees in Poland’, Narodowy Bank

Polski, Warszawa, 2022. It is true, however, that despite being highly educated, Ukrainians most often find work in elementary occupations

and especially in manufacturing, administrative and support services and transport and storage. Antończak-Świder,K. and Biernat,A., 2023.

Gromadzki,J. and Lewandowski,P., ‘Refugees from Ukraine on the Polish labour market’, Ubezpieczenia Społeczne, Teoria i praktyka, no. 4/2022,

2022.

(

353

) Director at Polski Związek Pracodawców Budownictwa [Polish Association of Construction Industry Employers], interview held in April 2023.

(

354

) Eurofound, 2021.

Table10: Typology of measures and examples of countries

Type of measure Description

Examples of countries using this

approach

Enhancing skills development and

training opportunities

Strengthening skills and capabilities

of workers in the construction sector

by providing training opportunities,

promoting vocational education and

supporting the development of technical

and managerial skills.

Germany, France, Malta, the Netherlands,

Portugal

Oering training opportunities at the

company level

Providing company-level examples of

enhanced (practical) training in line with

business needs.

Austria, Poland

Improving the attractiveness of living

and working conditions in a country/

region

Attracting specic groups of workers and

assisting their integration (and that of

their families) into the labour market and

society.

The Netherlands, Austria

Fostering cross-border cooperation Cooperating within the EURES Network

and via intergovernmental agreements.

Croatia, the Netherlands, Slovakia

In relation to enhancing the skills of workers in the sector, the Netherlands has in place a cross-border recruitment project

to support skills development. The Netherlands Uitvoeringsinstituut Werknemersverzekeringen [Institute for Employee

Insurance] (UWV), which is part of the EURES Network, is collaborating with IW Netherlands (leading provider of electrical

and installation technology) and training organisations to recruit and train prospective installation technicians from Spain

and Italy. The training lasts for 3years and includes on-the-job-training. After this period, workers are fully independent

technicians already integrated in the Dutch labour market(

355

). Additionally, Dutch employers often participate in trade

fairs and meetings organised within the EU with the aim of recruiting candidates for professions with a shortfall in the

Netherlands, including for the construction sector(

356

In France, even if the labour market seems to have fully recovered from the shock of COVID-19, national trends hide regional

and sectoral disparities. The net nancial situation of SMEs in the construction and manufacturing industry has in fact

weakened. In addition, the mismatch between supply and demand in several sectors remains a persistent issue(

357

). To

tackle this, the government, together with social partners, launched a plan in 2021 to reduce recruitment pressures. Among

other things, the plan includes an increased training oer for the construction and manufacturing industry (mainly in

technical and middle-management types of occupations)(

358

In Germany, the Deutscher Handwerkskammertag (German Confederation of Chambers of Skilled Trades) launched an

image campaign in 2010 to highlight the positive aspects of the skilled trades sector, which includes several industries

facing labour shortages, such as construction. The Deutscher Handwerkskammertag initiative is still active at the point

of writing (June 2023)(

359

) and aims not only to promote the benets of pursuing a career in skilled trades but also to

provide information on various trade professions and their respective vocational training programmes through television

advertisements, billboard campaigns and events. Additionally, initiatives aiming to develop the required skills or foster

qualication recognition are often put in place at the local level and often entail partnerships between German universities/

employers and other Member States(

360

In Portugal, there have been several events entitled ‘Work in Portugal’ designed to foster a match between the needs

of employers, including in the construction sector, and jobseekers from all over Europe. In the vocational training

eld, Portugal has had an ongoing collaboration with Switzerland since the 1980s(

361

). This experience involves direct

cooperation between the Instituto do Emprego e Formação Prossional [Institute of Employment and Vocational Training]

and its training centres, namely Centro de Formação Prossional da Indústria da Construção Civil e Obras Públicas do Norte

[Centre for the Professional Education and Training of Civil Construction and Public Works of the North] and Centro de

(

355

) Staff Member of the UWV, the Netherlands, interview held in April 2023.

(

356

) Ibid.

(

357

) Fontaine,F., and Rathelot,T., ‘Le marché du travail français à l’épreuve de la crise sanitaire’, Notes du conseil d’analyse économique, 2022/2,

No71, 2022, pp.1–12.

(

358

) BusinessEurope, ‘Labour force and skills shortages: how to tackle them?’, Policy Orientation Note, 2022.

(

359

) More information can be found here: https://www.zdh.de/ueber-uns/imagekampagne-handwerk/.

(

360

) Social and labour law officer, German Construction Industry Federation representing construction companies, interview held in April 2023.

(

361

) More information available at: https://www.construir.pt/2023/03/01/ciccopn-da-formacao-a-profissionais-da-construcao-que-trabalham-na-

suica.

Formação Prossional da Indústria da Construção Civil e Obras Públicas do Sul [Centre for the Professional Education and

Training of Civil Construction and Public Works of the South](

362

). Under this project, Portuguese workers who have been

working in Switzerland for at least 6months, with some training gaps, are eligible to receive specic professional training

at these training centres in Portugal. The programmes oered are agreed upon with the Swiss business confederations and

materials are provided by them. The project has been successful, and approximately 40 professionals are trained each year,

with 38 trainees participating in the 2022 edition(

363

In Malta, a construction industry skill card system has been developed to address the lack of training and certication in the

construction sector. The system is believed to contribute to addressing labour shortages in the sector(

364

Training opportunities at the company level are also common among Member States. For instance, to tackle the signicant

labour shortages in the construction industry, PORR, an Austrian construction company, established an internal training and

education centre in 2019. This full-service provider oers every apprentice an additional 3weeks of practical training per

year, including practice blocks in areas such as bricklaying, formwork construction, civil engineering and paving. PORR also

provides individual courses to prepare apprentices for their nal exams(

365

In Poland, Erbud, one of the largest employers in the domestic construction industry, has initiated a sponsored classes

programme in several vocational schools throughout the country. Under this cooperation model, the school is responsible

for organising workshops, trips and apprenticeships and provides teaching and workshop rooms for classes. Erbud serves

as the sponsor, providing students with the opportunity to gain practical experience on a construction site, substantive

support for vocational subjects, and classroom modernisation/renovation. Students in the sponsored classes can pursue

apprenticeships at the company’s construction sites, where they have a good chance of obtaining employment after

completing their apprenticeship(

366

In the context of attracting specic groups of workers, the Austrian Association of the Building Industry mobilised an

employment agent to Romania. The latter provided information about the opportunities and working conditions in the

Austrian labour market to nd local workers who were willing to relocate to Austria for employment opportunities. The

approach resulted in the hiring of around 30 workers. However, due to the outbreak of the pandemic, the initiative was

halted and has not resumed since(

367

). In Austria, the Welcome Tyrol service oers support to workers who are relocating

to the region. The service helps them nd suitable accommodation, as well as services such as doctors and childcare. It

also supports their partners in nding new career opportunities in the area. If necessary, the service can refer workers to

language acquisition services and help them engage with the community(

368

Post-recruitment services, in the form of assistance and support with fostering integration into the new working

environment and local societies, are often oered by members of the EURES Network. The Dutch UWV, for instance,

provides information, advice and extensive onboarding support (e.g. resources, guidance, material and support tailored

to the needs of the person) to both employers and new hires, to overcome challenges such as cultural dierences and

disparities in working methods on the construction sites(

369

). To enhance the eectiveness of their services and better

understand the realities of the territory, UWV is setting up employer service points to support employers and job seekers at

the local level(

370

Cross-border cooperation also plays an important role when it comes to addressing labour market imbalances. Several

countries, such as Croatia, the Netherlands and Slovakia, leverage the EURES Network to cooperate, align and share good

practices with other Member States. For instance, the Dutch UWV uses the network extensively to promote vacancies and

facilitate job matching, especially with EURES stakeholders in Spain and Italy. Although the focus is on the overall economy,

this channel has proven useful in addressing the ongoing labour and skill shortages within the construction sector in those

countries(

371

). Similarly, the National Coordination Oce for EURES Croatia highlights the benets of promoting vacancies

related to the construction sector via EURES(

372

). The Slovak Ústredie práce, sociálnych vecí a rodiny [Central Oce of Labour

(

362

) Centro de Formação Profissional da Indústria da Construção Civil e Obras Públicas do Norte and Centro de Formação Profissional da Indústria da

Construção Civil e Obras Públicas do Sul provide professional training in the civil construction and public work sectors. More information can be

found on their websites: https://www.ciccopn.pt/ and https://www.cenfic.pt/.

(

363

) Director of the Employment Department of Portuguese Employment Services, Institute of Employment and Vocational Training, interview

held in April 2023.

(

364

) Ibid.

(

365

) Eurofound, 2021.

(

366

) Ibid.

(

367

) Member of the Chamber of Commerce of Austria, Association of the Building Industry, interview held in April 2023.

(

368

) Ibid.

(

369

) Dutch UWV EURES, interview held in April 2023.

(

370

) More information is available on their website: https://www.uwv.nl/nl/over-uwv/organisatie/samenwerkingen.

(

371

) Dutch UWV EURES, interview held in April 2023

(

372

) Head of National Coordination Office for EURES Croatia, interview held in April 2023.

Social Aairs and Family] holds regular meetings with experts from Czechia, Hungary and Poland, in the context of the

EURES Network and intergovernmental agreements with those countries, to exchange good practices in recruitment and

share information on gaps in the labour market, including in the construction sector(

373

Box10: Initiatives targeting TCNs

Labour and skill shortages in the construction sector are a common issue in all Member States. As

a result, many countries are turning to recruiting TCNs.

In Poland(

374

), cross-border initiatives aiming to attract EU workers are taken at low levels

of administrative structure, mostly districts but also voivodships. Employers and employer

organisations mostly focus on either domestic action (e.g. improving the image of the

construction sector among Polish workers) or on the recruitment of TCNs (recently expanding

to central and eastern Asia, India and the Philippines). Given the high extent of governance

decentralisation, the national government is not usually involved in specic matters related

to labour migration. Flexibility in deciding the type of workers and how to recruit is left to

employers according to their needs. Even when prompted by a number of non-EU countries (e.g.

Kazakhstan, Uzbekistan, Belarus), Poland ruled out entering into any bilateral agreement, in order

to support the employer-centred approach.

In Portugal(

375

), the construction sector is primarily hiring TCN workers mainly from Angola, Brazil,

Cabo Verde and more recently from India and Pakistan. The Portuguese government has been

negotiating bilateral labour mobility agreements with several non-EU countries, such as India,

Cabo Verde, Morocco and Mozambique, to foster recruitment in those countries and streamline

procedures. Similarly, Slovenia focuses mainly on hiring from Balkan countries (e.g. Bosnia and

Herzegovina, North Macedonia, Serbia). Cross-border matching initiatives within the EU related to

the construction sector are thus rather limited in both Portugal and Slovenia.

In Slovakia(

376

), if an employer is unable to ll a vacancy with national or EU workers, the job is

identied as having a shortage and thus an accelerated process can be used for lling the vacancy

via TCNs. In addition, the Zväz stavebných podnikateľov Slovenska [Association of Construction

Entrepreneurs of Slovakia] prepared a strategy(

377

) to address the massive labour shortage in the

construction sector, which is key to the national economy. The proposed solutions entail, among

other things, active migration policies (bridging the shortage by facilitating access to the labour

market for professionals from third countries).

Several barriers which hamper the eective implementation of cross-border matching initiatives in the EU construction

sector were identied during the interviews with national stakeholders. These include the following.

• Language barriers and cultural dierences. Language was indicated as being one of the strongest barriers limiting

cross-border matching or the successful integration of workers in the host-country workplace. In addition, dierences in

working methods on construction sites and cultural norms between countries can create further challenges.

• Lack of skills and qualication recognition. Dierent countries have dierent qualication systems and requirements,

making it dicult for both employers and workers to understand what they need to do to properly recognise workers’

qualications. Additionally, skills acquired via experience (without formal qualications) are often not recognised.

(

373

) Central Office of Labour Social Affairs and Family/ Department of Citizen and Employer Services | Department of Intermediary Services |

Employment Services Section of Slovakia, interview held in April 2023.

(

374

) Director at Polski Związek Pracodawców Budownictwa and Polish Department of Labour Market at the Ministry of Family and Social Policy,

interviews held in April 2023.

(

375

) Labour law advisor of Associação de Empresas de Construção e Obras Públicas e Serviços in Portugal, and Director of the Employment

Department of Portuguese Employment Services, Institute of Employment and Vocational Training, interviews held in April 2023.

(

376

) Senior Field Advisor in the Employment of Foreigners Department at the Employment Service of the Republic of Slovenia, interview held in

April 2023.

(

377

) Sektorovo riadená inovácia, Sektor stavebníctva má plán na riešenie výziev trhu práce do roku 2030, 2022, https://www.sustavapovolani.

sk/2022/02/sektor-stavebnictva-ma-plan-na-riesenie-vyziev-trhu-prace-do-roku-2030/ (last accessed April 2023).

• Shortage of (qualied) workers. The shortage of qualied workers is a major challenge across many industries, including

in the construction sector. This can make it dicult for cross-border matching to occur, as employers may struggle to nd

suitable candidates.

• Poor working conditions. In some countries, the wages and working conditions oered by national companies may not

be as attractive as those oered in other countries (especially in central and northern Europe), making it dicult to attract

non-native workers.

6.5 Conclusions

The construction sector in the EU faces signicant labour market imbalances, encompassing not only a scarcity of workforce

but also a deciency in the necessary skill sets needed to support crucial ongoing trends, such as the green and digital

transitions. By 2030, it was indeed estimated that an additional 3 to 4million workers will need training in the construction

sector to meet the targets set by the transition to net zero emissions (in the context of the EGD)(

378

). Despite the potential

for new opportunities presented by the green and digital transitions, these advancements cannot be fully concretised in

a context of persistent labour and skill shortages. On the contrary, the increased demand is only exacerbating the existing

labour market imbalances within the construction sector.

Shortages are relatively more prevalent in central and eastern Member States. The Russian war of aggression against

Ukraine has further intensied workforce shortages, particularly in countries more reliant on Ukrainian workers (such as

Poland).

To address labour market imbalances, cross-border matching initiatives and measures to facilitate intra-EU recruitment have

been implemented across several Member States. These include prioritising skills development and strengthening the link

between education and vocational training to meet the needs of the labour market, improving the attractiveness of the host

region including providing post-recruitment support to attract and facilitate the integration of EU workers and their families,

and leveraging existing cross-border networks (such as EURES). As shortages are common across Member States, intra-EU

mobility is often deemed insucient to address these challenges. Consequently, several Member States are redirecting their

focus towards recruiting TCNs, as a means of providing short- to medium-term solutions to the problem.

(

378

) Cedefop, The green employment and skills transformation: Insights from a European Green Deal skills forecast scenario, Publications Office of the

European Union, Luxembourg, 2021.

7. Operational conclusions

The following operational conclusions were developed based on the outcome of the study and its main ndings. These

conclusions were developed considering ELA’s mandate, but may be relevant for informing a broader set of actors.

1. Information provision

• More concrete focus on the information provision is needed in the sending Member States. While there are many

information provision rules and incentives in the receiving Member States, they do not seem to be as prevalent in the

sending Member States (except for Croatia). At the same time, actors in the sending Member States can potentially be

better placed to bridge the language and other barriers between the worker and receiving Member States’ rules, and

potentially provide more accessible information. This should be supported and further encouraged or even actively

enabled by ELA activities.

• Explore the ways in which user undertakings and main contractors should be encouraged to play a proactive role in

informing posting employers about the wages and working conditions applicable to posted workers. This is based on

the assumption that users and main contractors are likely to have a much better understanding of their own system and

hence be able to guide foreign employers in navigating this set of rules. While this might be an unfamiliar role for users

and main contractors, public authorities, and social partners, both at national and European level, could play a pivotal role

in this endeavour, notably by raising awareness.

• Encourage development of common template complying with common standards for providing information to

companies posting workers and the posted workers. In the beginning its use might be voluntary. At the very least, further

harmonisation of the national websites should be encouraged by ELA since the ndings in this report reveal the very

diverse nature of the information provided on the national websites at the moment.

• Development of user-friendly interactive tools giving workers specic information about their rights and entitlements in

the receiving Member State(s). A similar tool might be envisioned also for companies posting workers (this might help

SMEs to better navigate the host country’s legal framework).

• Facilitate the cooperation between trade unions and employer organisations across borders in exchanging information

on working conditions and rules in the construction sector. Dedicated support for social partners to enable and encourage

their cooperation in this regard (e.g. covering their costs for translations and development of certain resources).

• Continue to facilitate the cooperation of Member States via EURES on the sharing of information and good practices to

help alleviate labour and skills’ shortages and surpluses as well as existing successful cross-border matching initiatives.

• Create step by step interactive guides addressed to employers posting workers to provide for dynamic checklists

covering the employers’ obligations. Ideally, these should integrate country and sector specicities in the steps (e.g. those

mentioned in the interviews, such as Italy’s compulsory training prior to entering building sites).

• Promote translation facilities at national and EU level as language barriers and the lack of translation of relevant

documents remain an obstacle to accessing information regarding wages and working conditions applicable to posted

workers. This also concerns information on collective agreements, as these are generally only made available in the ocial

languages of the sending MS.

2. Concerted and joint inspections

• Promote and support targeted joint inspection in the construction sector.

• Encourage and support organisation of general joint inspections in the construction sector. Considering importance of

the sector in terms of posting, the cost of organising joint inspections even when no specic risk is highlighted should

be balanced against the creation of a ‘culture’ of joint inspections among national authorities. This will contribute to

raising the awareness of the tool and make it easier for national authorities to participate in the organisation of further

inspections in the future when problematic cases do arise.

• Support the development of data-driven risk assessment systems to detect targets for inspections in the construction

sector. There are several possible criteria agged by the study that might point towards companies being more likely

to breach the rights of workers. Models could be developed to help detect such characteristics that would then, in turn,

make the job of choosing inspection targets potentially easier for national enforcement authorities considering the

existing lack of resources.

• Ensure a closer follow up to joint inspections to have a feedback loop informing ELA of the results and lessons learnt

during previous inspections and also in order to make sure that any breaches discovered have been adequately remedied,

especially from the perspective of the workers who had endured inadequate application of their EU-based rights

following from instruments within ELA’s mandate.

3. Cooperation between Member States

• Support the improvement of existing digital tools to exchange information about PDs A1 between national

administrations (e.g. to make it possible for public authorities in the state of arrival to check elements such as the fact that

a ‘signicant share of economic activity’ is being performed in the state of origin) and to seek synergies with other cross-

border systems of exchange of data involving where relevant national competent authorities for labour social security,

taxation but also paritarian institutions.

• Improve the cooperation between public authorities in the enforcement of nes and sanctions with a cross-border

element. Facilitate discussions between competent public authorities regarding sanctions and remedies with the goal of

improving coherence by encouraging coordination and/or harmonisation. Provide support to Member States to explore

the possibilities to develop digital solutions to check the social security situation of posted workers directly during

inspections. This should be implemented through technical means which minimise the sharing of data and reduce the

diculties in coordinating data protection standards. The experience of the EU Digital Covid Certicate (EUDCC) could

represent a source of inspiration for such a project.

4. Data collection

• ELA should address the lack of data concerning labour mobility and enforcement of applicable legislation in the

construction sector. For instance, there is a need of better data on the distribution of posted workers (NACE digit 2 or

better) and on checks, violations, and sanctions registered by enforcement authorities.

Bibliography

• Adams,J., Greig,M., and McQuaid,R.W., ‘Mismatch

unemployment and local labour-market eciency:

The role of employer and vacancy characteristics’,

Environment and Planning A, Vol.32, No10, 2000,

pp.1841–1856.

• Albrecht,C., Duran,S., Giesing,Y., Niederhoefer,B.,

Rude,B., and Steigmeier,J., Posted Workers from and

to Germany: Facts and gures, Leuven: POSTING.STAT

project VS/2020/0499, 2022.

• Alberti,A. and Danaj,S., ‘Posting and agency work

in British construction and hospitality: The role of

regulation in dierentiating the experiences of migrants’,

International Journal of Human Resource Management,

Vol.28, No21, 2017, pp.3065–3088.

• Antończak-Świder,K., and Biernat,A., Occupational

Barometer 2023: Poland, Regional Labour Oce in Krakow

and Ministry of Family and Social Policy of the Republic

of Poland, 2023.

• Arnholtz,J., ‘Posted work, enforcement capacity and rm

variation: Evidence from the Danish construction sector’,

Economic and Industrial Democracy, Vol.42, No4, 2021,

pp.1149–1164.

• Arnholtz,J., and Hansen,N.W, ‘Labour market specic

institutions and the working conditions of labour

migrants: The case of Polish migrant labour in the Danish

labour market’, Economic and Industrial Democracy,

Vol.34, No3, 2013, pp.401–422

• Berntsen,L., and Lillie,N., ‘Breaking the law? Varieties

of social dumping in a pan-European labour market’, in

Bernaciak,M. (ed.), Market Expansion and Social Dumping

in Europe, Routledge, 2015, pp.43–60.

• Biletta,I., Cabrita,J., and Gerstenberger,B., Improving

the Monitoring of Posted Workers in the EU, Eurofound,

Publications Oce of the European Union, Luxembourg,

2020.

• Bogoeski,V., ‘Protection of posted workers in the

European Union’, Advancing Social Justice in Europe and

Worldwide, 2017.

• Briganti,F., Machalska,M., Steinmeyer,H-D and

Buelen,W., Social Identity Cards in the European

Construction Industry, EFBWW/FIEC, Brussels, 2015.

• Brodersen,F., Koper,A., and Kahn,M., ‘Insight: Exodus of

Ukrainian workers hits Europe’s emerging economies’,

Reuters, 2022 (https://www.reuters.com/markets/

emerging/exodus-ukrainian-workers-hits-europes-

emerging-economies-2022-07-25/).

• Brucker Juricic,B., Galic,M., and Marenjak,S., ‘Review

of the Construction Labour Demand and Shortages

in the EU’, Buildings, Vol.11, No17, 2021 (https://doi.

org/10.3390/buildings11010017).

• BusinessEurope, ‘Labour force and skills shortages: how

to tackle them?’, Policy Orientation Note, 2022.

• Čaněk,M., Kall,K., Lillie,N., Wallace,A., and Haidinger,B.,

‘Transnational Cooperation among Labour Regulation

Enforcement Agencies in Europe: Challenges and

Opportunities Related to the Posting of Workers’,

Protecting Mobility through Improving Labour Rights

Enforcement in Europe, Vol.18(2018), 2018, pp.1600–

1620.

• Capgemini, Deloitte, Ramboll Management, EU Project

on Baseline Measurement and Reduction of Administrative

Costs: Final report, incorporating report on Module 5.2–

Development of reduction recommendations, 2010.

• Caro,E., Berntsen,L., Lillie,N., and Wagner,I., ‘Posted

migration and segregation in the European construction

sector’, Journal of Ethnic and Migration Studies, Vol.41,

No10, 2015, pp.1600–1620.

• Carrascosa Bermejo,D. and Contreras Hernández,Ó.,

Posted Workers from and to Spain: Facts and gures,

Leuven: POSTING.STAT project VS/2020/0499, 2022.

• Cedefop, The green employment and skills transformation:

Insights from a European Green Deal skills forecast scenario,

Publications Oce of the European Union, Luxembourg,

2021.

• Cedefop, Sectoral trends, available online: https://www.

cedefop.europa.eu/en and https://www.cedefop.europa.

eu/en/tools/skills-online-vacancies/sectors/skills.

• Chacaltana,J., Leung,V. and Lee,M., ‘New technologies

and the transition to formality: The trend towards e–

formality’, Employment Working Paper, No247, ILO,

Geneva, 2018.

• Chmielewska-Kalińska,I., Dudek,B., and Strzelecki,P.,

The living and economic situation of Ukrainian refugees in

Poland: Report of the questionnaire survey conducted by

NBP Regional Branches, Narodowy Bank Polski, Warsaw,

2022.

• Cibeles, Convergence of Inspectorates Building a European

Level Enforcement System, 2011.

• Ciobanu,C., and Gosling,T., ‘Labour Pain in Central

Europe’, Reporting Democracy, 2022.

• Clément,F. and Hauret,L. Posted Workers from and to

Luxembourg: Facts and gures, Leuven: POSTING.STAT

project VS/2020/0499, 2022.

• Con3Post, ‘Posting of Third Country Nationals.

Mapping the trend in the construction sector– project

VP/2018/011/0019’, 2020.

• Cremers,J. In search of cheap labour in Europe: Working

and living conditions of posted workers, CLR/EFBWW/

International Books, Brussels, 2011.

• Cremers,J., Construction labour, mobility and non-

standard employment, HesaMag, 2016, pp.17–22.

• Cremers,J., Williams,C., Hawley-Woodall,J., Nikolova, N.,

Tackling Undeclared Work in the Construction Industry: A

learning resource, European Commission, 2017.

• Cremers,J., ‘The European Labour Authority and rights-

based labour mobility’, ERA Forum, Vol.21, 2020, pp.21–

34.

• Cremers,J., Bulla,M., ‘Collective redress and workers’

rights in the EU’, AIAS Working Paper, No118, 2012.

• Cremers,J., Houwerzijl,M., Subcontracting and social

liability: Report & policy recommendations, ETUC, 2021.

• Commission Sta Working Document– Impact

Assessment– Revision of the legislative framework on

the posting of workers in the context of provision of

services (SWD(2012) 63 nal– APP/2012/0064).

• Countouris,N., Deakin,S., Freedland,M., Koukiadaki,A.,

and Prassl,J., Report on temporary employment agencies

and temporary agency work, ILO, 2016.

• Danaj,S., and Sippola,M., ‘Organizing posted workers

in the construction sector’, in Drahokoupil,J. (ed.),

The Outsourcing Challenge: Organizing workers across

fragmented production networks, ETUI, 2015, pp.217–236.

• Danaj, S. & Zólyomi, E. (2018). Occupational Health

and Safety of Posted Workers in the EU: A Comparative

Report. POOSH – Occupational Safety and Health of

Posted Workers: Depicting the existing and future

challenges in assuring decent working conditions and

wellbeing of workers in hazardous sectors. Vienna:

European Centre.

• Deakin,N. and Walsh,K., ‘The enabling state: the role of

markets and contracts’, Public Administration, Vol.74,

No1, 1996, pp.33–47.

• De Lucia,L., ‘From mutual recognition to EU

authorization: A decline of transnational administrative

acts?’, Italian Journal of Public Law, Vol.8, No1, 2016,

pp.90–114.

• De Wispelaere,F., De Smedt,L. and Pacolet,J., Posting of

Workers: Report on A1 Portable Documents issued in 2021,

HIVA-KU Leuven, 2023.

• De Wispelaere,F., De Smedt,L. and Pacolet,J., Posting

of Workers: Collection of data from the prior declaration

tools– Reference year 2020, HIVA-KU Leuven, 2022a.

• De Wispelaere,F., De Smedt,L. and Pacolet,J., Posted

Workers in the European Union: Facts and gures, Leuven:

POSTING.STAT project VS/2020/0499. 2022b.

• De Wispelaere,F., De Smedt,L., Muñoz,M., Gillis,D. and

Pacolet,J., Posted Workers from and to Belgium: Facts and

gures, Leuven: POSTING.STAT project VS/2020/0499,

2022c.

• De Wispelaere,F. and Pacolet,J., Posting of Workers:

Collection of data from the prior notication tools–

Reference year 2019, HIVA-KU Leuven, 2021.

• De WispelaereF., De Smedt,L. and Pacolet,J., Posting of

Workers: Report on A1 Portable Documents issued in 2020,

HIVA-KU Leuven, 2021.

• De Wispelaere,F., Pacolet,J. and De Smedt,L., ‘Social

security coordination at a glance: the hidden European

welfare state’, Belgisch Tijdschrift voor Sociale Zekerheid,

Vol.61, No1, 2019, pp.49–63.

• Dorigatti,L., Pallini,M. and Pedersini,M., Posted Workers

from and to Italy: Facts and gures, Leuven: POSTING.STAT

project VS/2020/0499, 2022.

• Ecorys, Sparl Legal Network, HIVA-KU Leuven, Study

supporting the monitoring of the Posting of Workers

Directive (EU) 2018/957 and of the Enforcement Directive

2014/67/EU: The situation of temporary cross-border mobile

workers and workers in subcontracting chains– Draft

interim report, 2022.

• EFBWW, ‘Stop Social Dumping’ campaign, available

at: https://www.efbww.eu/campaigns/stop-social-

dumping/65-a

• EFBWW, ‘Strategic Plan: Main priorities 2020–2023’,

available at: https://www.efbww.eu/activities/strategic-

plan-2020-2023/1-a

• ELA, EURES Report on Labour Shortages and Surpluses

2022, Publications Oce of the European Union,

Luxembourg, 2023.

• Elbahnasawy,N.G., ‘Can e-government limit the scope

of the informal economy?’, Home Development, Vol.139,

2021.

• Euractiv, ‘Labour shortages felt all over Europe’, 2022.

• European Market Environment in the Construction

Sector, Final Report, 2022a.

• European Market Environment in the Construction

Sector, Country Report: Italy, 2022b.

• Eurodetachement, ‘Détachement des travailleurs:

Améliorer les collaborations entre les partenaires sociaux

et les autorités publiques en Europe– Synthèse générale’,

2012.

• Eurodetachement, Détachement de travailleurs:

Dynamiser les coopérations transnationales, 2019–2021

(http://www.eurodetachement-travail.eu/).

• Eurofound, Exploring the fraudulent contracting of work in

the European Union, Publications Oce of the European

Union, Luxembourg, 2016.

• Eurofound, Improving the Monitoring of Posted Workers

in the EU, Publications Oce of the European Union,

Luxembourg, 2020.

• Eurofound, Tackling Labour Shortages in EU Member

States, Publications Oce of the European Union, 2021.

• Eurofound, Measures to Tackle Labour Shortages: Lessons

for future policy, Publications Oce of the European

Union, Luxembourg, 2023.

• ECSO, Digitalisation in the Construction Sector: Analytical

report, European Commission, 2021.

• ECSO, Data mapper– Number of persons empIoyed in

construction, European Commission, 2021 (https://single-

market-economy.ec.europa.eu/sectors/construction/

observatory/data-mapper_en).

• Eurostat, International Standard Classication of Education

(ISCED), Luxembourg, 2022.

• Eurostat, ‘Temporary protection for persons eeing

Ukraine– monthly statistics’.

• ETUI, ‘The posting of workers saga: A potted version

of the challenges engulng social Europe’, ETUI Policy

Brief– European Economic, Employment and Social Policy,

No6/2018, 2018.

• Fellini,I. and Fullin,G., ‘Employment change, institutions

and migrant labour: The Italian case in comparative

perspective’, Stato e mercato, No2/2018, 2018, pp.293–330.

• Ferro,A., Fullin,G., Fellini,I. and Hunger,U., ‘The

political economy of labour migration in the European

construction sector’, IMIS-Beiträge, 2004, pp.179–200.

• FIEC, FIEC 2021 Statistical Report: European Union, 2021

(https://ec-statistical-report.eu/european-union).

• Fontaine,F. and Rathelot,T., ‘Le marché du travail

français à l’épreuve de la crise sanitaire’, Notes du conseil

d’analyse économique, Vol.71, No2, 2022, pp.1–12.

• Geyer,L., Premrov,T. and Danaj,S., Posted Workers from

and to Austria: Facts and gures, Leuven: POSTING.STAT

project VS/2020/0499, 2022.

• Goel,R.K. and Saunoris,J.W., ‘Virtual versus physical

government decentralization: Eects on corruption

and the shadow economy’, Public Budgeting & Finance,

Vol.36, No4, 2016, pp.68–93.

• Gromadzki,J. and Lewandowski,P. ‘Refugees from Ukraine

on the Polish labour market’, Ubezpieczenia Społeczne,

Teoria i praktyka, Vol.155, No4, 2022, pp.29-40.

• Heyma,A., Bussink,H. and Vervliet,T., Posted Workers to

the Netherlands: Facts and gures, Leuven: POSTING.STAT

project VS/2020/0499, 2022.

• Houwerzijl,M. and Peters,S., Liability in subcontracting

processes in the European construction sector, Eurofound,

Dublin, 2008.

• Houwerzijl,M., Jorens,Y., Peters,S., and Gillis,D., Study on

the protection of workers’ rights in subcontracting processes

in the European Union: Project DG EMPL/B2-VC/2011/0015,

European Commission, 2012.

• Houwerzijl,M.S. and van Hoek,A.A.H., Comparative

study on the legal aspects of the posting of workers in the

framework of the provision of services in the European

Union. Radboud University Nijmegen, 2011.

• Houwerzijl,M.S. and van Hoek,A.A.H., Complementary

comparative study on the legal aspects of the posting of

workers in the framework of the provision of services in the

European Union, Amsterdam University Press, 2011.

• Jorens,Y. ‘Cross-border employment and labour law: The

legal framework’, in Cross-border EU Employment and its

Enforcement: An Analysis of the Labour and Social Security

Law Aspects and a Quest for Solutions, Cham: Springer

International Publishing, 2022, pp.81–226.

• Jorens,Y. and De Wispelaere,F., ‘Intra-EU posting:

Looking for solutions– a herculean or a sisyphean task?’

Belgisch Tijdschrift Voor Sociale Zekerheid– Ministerie Van

Tewerkstelling En Arbeid, No1, 2019, pp.113–137.

• Kall,K. and Lillie,N., PROMO Project, Protection of Posted

Workers in the European Union: Findings and policy

recommendations based on existing research, 2017.

• Kessler,B., Müller,A., Heinen,A., European Parliament

Directorate-General for Parliamentary Research Services,

Liability in subcontracting chains: National rules and the

need for a European framework, 2017.

• Kiełbasa,M., Szaraniec,M., Mędrala,M. and Benio,M.,

Posted Workers from and to Poland: Facts and gures,

Leuven: POSTING.STAT project VS/2020/0499, 2022.

• Krings,T., Bobek,A., Moriarty,E., Salamonska,J.,

Wickham,J., ‘From boom to bust: Migrant labour and

employers in the Irish construction sector’, Economic and

Industrial Democracy, Vol.32, No3, 2011, pp.459–476.

• Krogh,M., ‘Secure Mobility: Uncovering gaps in the social

protection of posted workers (SMUG)’, 2021.

• Krzysztoszek,A., Zachova,A., Hudec,M. and Vanttinen,P.,

‘EU states competing to attract Ukrainian workers’,

Euractiv, 2023 (https://www.euractiv.com/section/

politics/news/eu-states-competing-to-attract-ukrainian-

workers/).

• Lens,D., Mussche,N. and Marx,I., ‘A hole in the wall of

fortress Europe: The trans‐European posting of third‐

country labour migrants’, International Migration, Vol.60,

No2, 2022.

• Lesniak,G., ‘W pandemii ponad 70 proc. zezwoleń na

pracę dla obcokrajowców zostało wydanych Ukraińcom’,

Prawo, 2021.

• Lillie,N., ‘Subcontracting, posted migrants and labour

market segmentation in Finland’, British Journal of

Industrial Relations, Vol.50, No1, 2012, pp.148–167.

• Lillie,N. and Wagner,I., ‘Subcontracting, insecurity

and posted work: evidence from construction, meat

processing and ship building’, in The Outsourcing

Challenge: Organizing workers across fragmented

production networks, 2015, pp.157–174.

• McGrath,J., Report on Labour Shortages and Surpluses

2021, ELA, Bratislava, 2021.

• Medina,L. and Schneider,F., ‘Shedding light on the

shadow economy: A global database and the interaction

with the ocial one’, CESifo Working Paper No7981,

2019.

• Muñoz,M., Posted Workers from and to France: Facts and

gures, Leuven: POSTING.STAT project VS/2020/0499,

2022.

• Organisation for Economic Co-operation and

Development, ‘Getting Skills Right’, Skills for Jobs

Indicators, 2017.

• Pavlovaite,I., ‘Tools and approaches to tackle fraudulent

temporary agency work, prompting undeclared work’,

European Platform Tackling Undeclared Work, 2020.

• Policy Department for Citizens’ Rights and Constitutional

Aairs, Directorate General for Internal Policies of the

Union, European Parliament, ‘Liability in Subcontracting

chains: national rules and the need for a European

framework’, PE 596.798, 2017, p.20.

• Rennuy,N., ‘Posting of workers: Enforcement,

compliance, and reform’. European Journal of Social

Security, Vol.22, No2, 2020, pp.212–234.

• Reymen,D., Gerard,M. et al., Labour market shortages in

the European Union, European Parliament ‘s Committee

on Employment and Social Aairs, 2015.

• R, ‘Polish businesses face labour shortage after Ukraine

war’, RFI, 2022.

• Forbes, ‘Odpływ pracowników budowlanych na

Ukrainę– co może zrobić wykonawca?’, Forbes.pl, 2022

• Schömann,I., and Guedes,C., Temporary Agency Work in

the European Union: Implementation of Directive 2008/104/

EC in EU Member States, ETUI, 2012.

• SloveniaTimes, ‘Two-thirds of employers plan to raise

wages’, 2023 (https://sloveniatimes.com/two-thirds-of-

employers-plan-to-raise-wages/).

• Stefanov,R., Comunale,T., Mineva,D., Yalamov,T.,

Georgiev,G. and Schonenberg,L., Dierent forms of cross-

border undeclared work, including through third-country

nationals, ELA, European Platform Tackling Undeclared

Work, 2021.

• Vah Jevšnik,M., Cukut Krilić,S. and Toplak,K., Posted

Workers from Slovenia. Facts and gures, POSTING.STAT

project, 2022.

• Vah Jevšnik,M., POOSH Country Report in Slovenia, 2018.

Available at: http://www.poosh.eu/resources/poosh-

country-reports/.

• Vancauwenbergh,S., De Keyser,L., Lhernould,J.,

Homem,F., Dorval,J., and Akbaba,B., Report on the

cooperation practices, possibilities and challenges between

Member States– specically in relation to the posting of

third-country nationals, ELA, 2023.

• Van der Vlies,R., Posting of workers within the construction

sector: A comparative study within Belgium and The

Netherlands on the protection of posted workers, Tilburg

University, 2018.

• Verschueren,H., The CJEU’s case law on the role of

posting certicates: A missed opportunity to combat

social dumping, Maastricht Journal of European and

Comparative Law, Vol.27, No4, 2020.

• Voss,E., Faioli,M., Lhernould,J. and Iudicone,F., Posting

of Workers Directive: Current Situation and Challenges, EU

Parliament, 2016.

• Wagner,I., Posted Work and Rule Enactment in the

German Construction Sector, British Journal of Industrial

Relations, Vol.53, No6, 2015a, pp.692–710.

• Wagner,I. and Berntsen,L., ‘Restricted rights: Obstacles

in enforcing the labour rights of mobile EU workers in

the German and Dutch construction sector’, Transfer:

European Review of Labour and Research, Vol.22, No2,

2015, pp.193–206.

• Werner,B. (ed.), Self-employment and bogus self-

employment in the European construction industry: Part

2– Abstracts of 11 country reports, 2009.

• Wills,J., ‘Subcontracted employment and its challenge to

labor’, Labor Studies Journal, Vol.34, No4, 2009, pp.441–

460.

• Williams,C., ‘Comparative study of the use of social

identity cards in the construction sector in various

European countries’, ID CARDS for Decent Work in the

Construction Industry, PA05/2020/510946, 2022.

• Williams, C.C. et al, An evaluation of the scale of undeclared

work in the European Union and its structural determinants:

estimates using the Labour Input Method, European

Commission, 2017.

• Zimmer,H., ‘Labour market mismatches’, Economic

Review, National Bank of Belgium, Noii, 2012, pp.55–68.

EU documents

• Communication from the Commission to the European

Parliament, the Council, the European Economic and

Social Committee and the Committee of the Regions– A

Digital Agenda for Europe (COM(2010) 245 nal).

• European Commission, Directorate-General for

Employment, Social Aairs and Inclusion, Jorens,Y., De

Smedt,L. and De Wispelaere,F., Fraud and error in the

eld of EU social security coordination: Reference year–

2019, Publications Oce of the European Union, 2021.

• European Commission, Directorate General for

Employment, Social Aairs and Inclusion, Labour Market

and Wage Developments in Europe, Publications Oce of

the European Union, 2022.

• European Commission, Directorate-General for Justice

and Consumers, De Wispelaere,F., Schuster,E., Morel,S.,

et al., Letterbox companies: Overview of the phenomenon

and existing measures–Final report, Publications Oce

of the European Union, 2021 (https://data.europa.eu/

doi/10.2838/41247).

• European Commission, Directorate-General for

Employment, Social Aairs and Inclusion, The European

Pillar of Social Rights Action Plan, 2021.

• Report from the Commission to the European Parliament,

the Council and the European Economic and Social

Committee on the application and implementation of

Directive 2014/67/EU of the European Parliament and

of the Council of 15May 2014 on the enforcement of

Directive 96/71/EC concerning the posting of workers

in the framework of the provision of services and

amending Regulation (EU) 1024/2012 on administrative

cooperation through the Internal Market Information

System (‘the IMI Regulation’) (SWD(2019) 337 nal).

• European Commission, ECSO, Country prole Poland,

2021.

• European Parliament, Directorate-General for

Parliamentary Research Services, Kessler,B., Müller,A.

and Heinen,A., Liability in subcontracting chains: national

rules and the need for a European framework, European

Parliament, 2017.

• European Parliament, Giubboni,S., Iudicone,F.,

Mancini,M. and Faioli,M., Coordination of social security

systems in Europe, Study for the EMPL Committee,

European Parliament, 2017.

• Resolution of the European Parliament 2003/2168(INI) of

15January 2004 on posting of workers in the framework

of the provision of services: implementation of Directive

96/71/EC.

• Resolution of the European Parliament 2006/2038(INI) of

26October 2006 on the application of Directive 96/71/EC

on the posting of workers.

Annex1– Interviews

The table below lists the rst round of interviews carried out in January 2023, at the national and EU level in the framework

of this study.

Member State Interviewee, position, institution, date

Austria • Sta member of the Construction Workers’ Annual Leave and Severance Pay Fund (BUAK) of Austria,

interview held in January 2023.

• Ocial of the Finance Police in the Ministry of Finance of Austria, interview held in January 2023.

• Ocial of the Ministry of Labour and Economy of Austria, interview held in December 2022.

Belgium • Ocial of the Ministry of Labour of Belgium, interview held in January 2023.

• Ocial of the Oce National de Sécurité Sociale [National Oce of Social Security] of Belgium, interview held

in January 2023.

• Sta member of the National Institute for the Social Security of the Self-Employed of Belgium, interview held

in January 2023.

Czechia • Ocial of the Státní úřad inspekce práce [State Labour Inspection Oce] of Czechia, interview held in

February 2023.

Germany • Sta member of the SOKA BAU of Germany (Sozialkassen der Bauwirtschaft), interview held in January 2023.

• Ocial of the Federal Ministry of Finance and Central Customs Authority transferred by the Ministry of Labour

and Social Aairs of Germany, interview held in January 2023.

Spain • Ocial of the Labour Inspectorate of Spain, interview held in January 2023.

Finland • Sta member of the Regional State Administrative Agency of Southern Finland, interview held in December

2022.

France • Sta members of the Union de recouvrement des cotisations de Sécurité sociale et d’allocations familiales

[Organisations for the Collection of Social Security and Family Benet Contributions] (Urssaf) (formerly:

Agence Centrale Organismes Sécurité sociale [Central agency for social security bodies]) in France, interview

held in January 2023.

Croatia • Ocial of the State Inspectorate, Service for the supervision of employment, posting and international

cooperation of Croatia, interview held in January 2022.

Italy • Sta Members of the Commissione nazionale paritetica per le Casse Edili in Italy, interview held in December

2022.

• European Employment Services (EURES) National Coordinator Italy, interview held in December 2022.

• Ocial of the Italian Labour Inspectorate, interview held in January 2023.

The Netherlands • Ocials of the Nederlandse Arbeidsinspectie [Dutch Labour Inspectorate], interviews held in February and

December 2022.

Poland • Sta Members of the Department of Legality of Employment of Poland, interview held in January 2023.

Portugal • Ocials of the Inspection Activity Support Services Department, Authority for Working Conditions of

Portugal, interview held in February 2023.

• Sta members of the International Coordination Unit of Portugal, Institute of Social Security, interview held in

February 2023.

Romania • Ocials of the Romanian Labour Inspectorate, interview held in May 2023.

Sweden • Sta member of the Work Environment Authority of Sweden, interview held in January 2023.

Slovenia • Ocial of the Labour Migration Sector at the Ministry of Labour, Family, Social Aairs and Equal Opportunities

of Slovenia, interview held in December 2022.

• Ocial of the Labour Inspectorate at the Ministry of Labour, Family, Social Aairs and Equal Opportunities of

Slovenia, interview held in January 2023.

Slovakia • Ocial of the National Labour Inspectorate of Slovakia, Department of Labour Relations of Slovakia, interview

held in January 2023.

• Sta Member of the Association of Construction Entrepreneurs of Slovakia, interview held in January 2023.

Member State Interviewee, position, institution, date

EU Level • Sta member of BusinessEurope, interview held in December 2022.

• Sta members of the European Federation of Building and Woodworkers (EFBWW), interview held in

December 2022.

• Sta member of the European Trade Union Confederation (ETUC), interview held in December 2022.

• Sta member of Faire Mobilität, interview held in December 2022.

• Sta member of the European Construction Industry Federation (FIEC), interview held in December 2022.

• Sta member of the Labour Mobility Initiative, interview held in December 2022.

• Scholar (professor from Finland), interview held in December 2022.

Annex2– Case study interviews

The table below lists the second round of interviews carried out in April 2023, at the national and EU level in the framework

of the 10 case studies.

Member State Interviewee, position, institution, date

Austria Member of the Chamber of Commerce of Austria, Association of the Building Industry, interview held in April

2023.

Member of the Chamber of Commerce of Austria, Association of the Building Industry, interview held in April

2023 and lay judge and national expert in the public procurement procedures in the construction sector at the

Federal Administrative Court, interview held in April 2023.

Head of Department of the Finance Police in the Ministry of Finance of Austria, interview held in April 2023.

Members of the Austrian Trade Union of Building and Woodworkers, interview held in April 2023.

Belgium Labour market analyst at Actiris, the Brussels Regional Employment Oce in Belgium, interview held in April

2023.

Social inspector of the National Institute for the Social Security of the Self-employed in Belgium, interview held

in April 2023.

Sta member of Constructiv in Belgium, interview held in April 2023.

Ocial from the Social Intelligence and Investigation Service, Belgium, interview held in April 2023.

Sta member of the Social Dumping & Organised Fraudulent Networks at the National Oce for Social Security

of Belgium, interview held in April 2023.

Sta member of EURES Grande Region in Belgium, interview held in April 2023.

Study service advisor– International Department– General Labour Federation of Belgium in Belgium, interview

held in April 2023.

Germany Social and labour law ocer, German Construction Industry Federation representing construction companies,

interview held in April 2023.

Legal advisor– posting of workers scheme in Germany, interview held in April 2023.

Sta member of the Federal Ministry of Finance and sta member of the Federal Ministry of Labour and Social

Aairs of Germany, interviews held in April 2023.

Sta member of SOKA BAU in Germany, interview held in January 2023.

France Sta member, National Federation of Public Works, European Service in France, interview held in April 2023.

Sta member of the National Group for Monitoring, Support and Control in the Directorate General of Labour in

France, interview held in April 2023.

Sta member, National Federation of Buildings in France, interview held in May 2023.

Croatia Judge at the Municipal Labour Court of Croatia, interview held in April 2023.

Head of National Coordination Oce for EURES Croatia, interview held in April 2023.

Regional representative of the Croatian Trade Union of Construction Industry, interview held in April 2023.

Sta member of the regional oce of the Croatian Employers’ Association in Osijek, interview held in April 2023.

The Netherlands Member of the Institute for Employee Insurance of the Netherlands, interview held in March 2023.

Trade union ocial– Federatie Nederlandse Vakbeweging [Federation of Dutch Trade Unions] (FNV)

construction sector and Trade union ocial– Christelijk Nationaal Vakverbond [Christian National Trade Union

Federation] (CNV), the Netherlands, interview held in April 2023.

Policy advisor labour market and social aairs, Bouwend Nederland, interview held in April 2023.

Sta member of the Uitvoeringsinstituut Werknemersverzekeringen [Institute for Employee Insurance] (UWV),

the Netherlands, interview held in April 2023.

Poland Director at the Polish Association of Construction Industry Employers, interview held in April 2023.

Judge in Białystok District Court, expert in the posting of workers in Poland, interview held in April 2023.

Director of the Department of Legality of Employment at the Chief Labour Inspectorate and chief specialist at

the Department of Legality of Employment at the Chief Labour Inspectorate in Poland, interviews held in April

2023.

Vice-director of the Department of Labour Market at the Ministry of Family and Social Policy in Poland, interview

held in March 2023.

Vice-president of the ZZ Budowlani trade union in Poland, interview held in March 2023.

Portugal Labour Law advisor of Associação de Empresas de Construção e Obras Públicas e Serviços in Portugal, interview

held in April 2023.

Judge– Labour Court of Portimão in Portugal, interview held in April 2023.

Services director of the Inspection Activity Support Services Department, Authority for Working Conditions in

Portugal, interview held in April 2023.

Director of the Employment Department of Portuguese Employment Services, Institute of Employment and

Vocational Training, interview held in April 2023.

Member State Interviewee, position, institution, date

Slovenia Senior eld advisor in the Employment of Foreigners Department at the Employment Service of the Republic of

Slovenia, interview held in April 2023.

Migration, labour relations and project work assistant, Association of Free Trade Unions of Slovenia, interview

held in April 2023.

Head of the Labour Migration Division, Ministry of Labour, Family, Social Aairs and Equal Opportunities in

Slovenia, interview held in May 2023.

Slovakia Central Oce of Labour Social Aairs and Family/ Department of Citizen and Employer Services, Department of

Intermediary Services, Employment Services Section of Slovakia, interview held in April 2023.

Annex3– Single ocial national websites

Member State Website

Austria https://www.postingofworkers.at/cms/Z04/Z04_10/home

Belgium https://employment.belgium.be/en/themes/international/posting

Czechia https://www.suip.cz/web/suip/informace-o-vysilani-pracovniku

Germany https://www.zoll.de/EN/Private-individuals/Work/Minimum-conditions-of-employment/minimum-conditions-

of-employment_node.html

Spain https://www.mites.gob.es/es/sec_trabajo/debes_saber/desplazamiento-trabajadores-eng/index.htm

Finland https://www.tyosuojelu./web/en/employment-relationship/posted-worker

France https://travail-emploi.gouv.fr/droit-du-travail/detachement-des-salaries-posting-of-employees/posting-of-

employees/

Croatia https://mrosp.gov.hr/istaknute-teme/information-for-service-providers-performing-temporary-services-in-

croatia-posted-workers-and-service-users-5932/5932

Italy https://distaccoue.lavoro.gov.it/en-gb/

Luxembourg https://guichet.public.lu/en/entreprises/ressources-humaines/mobilite/detachement.html

The Netherlands https://english.postedworkers.nl/

Poland https://www.biznes.gov.pl/en/rma/doing-business-in-poland/posting-of-workers-to-poland

Portugal https://portal.act.gov.pt/Pages/Home.aspx

Romania https://www.e-guvernare.ro/en/informations/2-companies/19-employees/31-posting-of-workers/79-posting-

of-workers-from-other-member-states

Sweden https://www.av.se/en/work-environment-work-and-inspections/foreign-labour-in-sweden/Posting-foreign-

labour-in-sweden/

Slovenia https://www.napotenidelavci.si/en/

Slovakia https://www.ip.gov.sk/posting-workers/?ip=

Source: European Commission website (Your Europe)

Annex4– Bilateral agreements between Poland and

other Member States

• Agreement of 11October 2007 between the State

Labour Inspectorate of the Republic of Poland and

the Social Rights Inspectorate of the Federal Public

Employment, Labour and Social Dialogue Service; the

Working Conditions Inspectorate of the Federal Public

Employment, Labour and Social Dialogue Service with

the Social Inspectorate of the Federal Public Social

Security Service of the Kingdom of Belgium.

• Agreement on cooperation in the exchange of

information between the state inspection of labour in

Poland and the inspection of labour and social security

in Spain. (The date of the signature of the agreement has

not been identied.)

• Agreement on cooperation and exchange of information

between the State Labour Inspectorate of the Republic

of Poland and the Labour and Mining Inspectorate of the

Grand Duchy of Luxembourg. (The date the signature of

the agreement has been not identied.)

• Cooperation Agreement of 18December 2013 between

the state inspection of labour in the Republic of Poland

and the inspection of social aairs and employment in

the Kingdom of the Netherlands.

HP-09-23-367-EN-N

European Labour Authority

Landererova 12, 811 09

Bratislava - Slovakia

https://www.facebook.com/

europeanlabourauthority

info@ela.europa.eu

www.ela.europa.eu

https://www.linkedin.com/company/

european-labour-authority

Luxembourg: Publications Oce of the European Union, 2023

PDF: ISBN 978-92-9401-399-6 | doi:10.2883/9750 | HP-09-23-367-EN-N