AG Szpunar delivered this week (29 July 2019) his opinion in case C‑16/18 (Michael Dobersberger joined parties: Magistrat der Stadt Wien), which is about (notably) Directive 96/71:
“Article 1(3) of 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 does not cover services such as the provision of food and drink to passengers, on-board service or cleaning services by the workers of a service-providing undertaking established in the Member State of posting in performance of a contract with a railway undertaking established in the host Member State when these services are provided on international trains which also travel through the host Member State.
Article 56 TFEU precludes a provision of national law which also mandatorily requires undertakings which post workers to the territory of another Member State for the purpose of providing a service to comply with terms and conditions of employment within the meaning of Article 3(1) of Directive 96/71 and to comply with accompanying obligations (such as, in particular, the obligation to provide a notification regarding the cross-border posting of workers to a public authority in the host Member State and the obligation to retain documents relating to the level of remuneration and to the social security registration of these workers) in situations in which:
– firstly, the workers posted across borders form part of the mobile staff of a railway undertaking that is active on a cross-border basis or of an undertaking which provides services typical for a railway undertaking (provision of food and drink to passengers, on-board service) on that undertaking’s trains that cross the borders of the Member States;
– secondly, the posting is based either on no service contract at all or at least on no service contract between the undertaking making the posting and the recipient of the services which is active in another Member State, because the posting undertaking’s obligation to provide services to the recipient of the services which is active in another Member State is established by way of subcontracts (a subcontracting chain); and
– thirdly, the posted worker is not in an employment relationship with the undertaking making the posting but rather is in an employment relationship with a third-party undertaking which has hired out its workers to the undertaking making the posting back in the Member State in which the posting undertaking is established”.