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8 April 2019

Summary of the practical workshops on the second day of the ELMC

Problems solved? Fairness guaranteed? Above all – knowledge delivered.

As for goods and capital, the European market is indeed unified. When it comes to services, it is not necessary: if a company from one country wants to provide its services in another country, it will experience a huge number of obstacles

– the President of LMIA, Stefan Schwarz noted during the first day of the VI ELMC. By organizing Congress, the Labour Mobility Initiative Association tries to influence the political dispute over the posting of workers not to be limited to slogans, stereotypes and emotions. How to achieve it? By exchanging views, getting to know the positions and arguments of interested parties and, above all, by providing reliable knowledge. The second day of the VI ELMC served this very purpose. As every year, its participants could choose from a dozen or so practical workshops that were conducted by renowned experts in labour and social security law from home and abroad.

“No theorizing”

As in the case of previous editions of the Congress, on the second day of the 6th EKMP, the organizers prepared a series of workshops for the participants. Their common denominator was the prohibition of theorizing, and instead presenting practical solutions to problems that entrepreneurs and other stakeholders face every day. The other assumptions concerning the workshops were also that they concern the most up-to-date issues of national and EU law, provide the latest knowledge and refer to posting to the countries receiving the largest number of posted workers. According to the research of the laureates of Labor Mobilis 2017 Award, F. De Wispelaere and prof. J. Pacolet, these are Germany, France and Belgium.

The lawful posting of a third-country national made simple

The morning block started with the workshop of Anna Siwiecka (a Department Head at the Head Office of the Social Security Institution ), which in the form of the Q & A session (traditionally enjoying great popularity) led the participants through the intricacies of procedures for applying for A1 PD. An important part of her workshop were also issues concerning the posting of nationals from outside the European Union, especially in the light of the latest case law of the Court of Justice of the EU. This topic, undoubtedly one of the “hottest” issues in the field of cross-border labour mobility, has indeed been present in many workshops. Each of them discussed this issue from a slightly different perspective. A perfect prelude was the workshop of Paweł Kułaga, who from the position of the Chairman of the Committee for Labour-related Migration of the Polish-Ukrainian Chamber of Commerce presented the considerations regarding the migration of citizens of our eastern neighbour to Poland.

Marta Zięba-Szklarska in turn worked especially on the issue of legalisation of the stay and employment of such persons and on making their posting legal. She analyzed these issues in particular from the perspective of Polish law and accounting practice. In particular, she paid attention to the necessary documents in the sending Member State and the duration of her stay in the host Member State. There were also practical indications regarding the so-called “Vander Elst visa”, which is particularly disturbing for many entrepreneurs, especially those who post workers to Germany.

This issue was not to be missed in the workshop of attorney-at-law Steffen Pasler. At the request of the organizers, he focused on showing practical problems related to the perspective of German law and practice. The need to obtain the very visa and its compliance with German and European law has given rise to many myths and the workshop of Mr. Pasler was an opportunity to verify them in practice.

How to legally send an employee to Germany (also after the entry into force of Directive 2018/957)?

Workshops by M. Zięba-Szklarska and attorney S. Pasler were not, of course, the only ones regarding the posting of workers to Germany. Participants of the VI ELMC had the opportunity to attend the unique workshop of DLA Piper – VI ELMC Partner. For the first time in the history of the Congress, it was carried out by a duet of lawyers-practitioners from two different EU countries Attorney-at-law Dominika Nowak, Senior Associate from the Polish office of DLA Piper and Dr. Bernd Borgmann, Partner from the German DLA office. The speakers shared their experience and the perspective of lawyers practicing on both sides of the Oder River. They presented, on the example of “real life” matters that they themselves carried out, the procedures and obligations of entrepreneurs posting employees to Germany. They also took good care to include in their workshop references to Directive 2018/957, which amended the provisions on the posting of workers. Workshop participants received instructions on what measures should be taken by the entrepreneurs executing contracts in Germany before 30 July 2020, and those who will start them before that date.

Posting of workers to Germany

This subject was also discussed by attorney-at-law Beata Donay. In her interactive workshop (there were a lot of questions from the participants and the speaker answered them at ease), she presented cross-border hiring out workers to Germany, in particular new obligations on the hirers after the amendment of the German Hiring Out Workers’ Act (AÜG) due to the limited period of hiring out to the same user undertaking up to 18 months and the introduction of the principle of “equal pay after 9 months of hiring out”. The changes introduced thereto and the new responsibilities of hiring out companies have shifted the centre of gravity of the controls carried out by the German authorities.

Specific instructions for entrepreneurs on how to fulfill their obligations were also present in the workshop of Attorney-at-law Piotr Kozłowski. The lecturer discussed the “thin red line” separating construction and assembly services in German law. He used many practical examples and references from his practice, including before German courts.

France: (civil servants’) arrogance? And what about Belgium?

Control less – yet control more effectively: these are the current demands of the French legislator. As part of the transposition of the revision directive 2018/957/EU, the Law No 2018-771 of 5 September 2018 (“Loi Avenir”) was adopted in France. It has two goals: to control and sanction. Taking into account such goals, it is not surprising that the workshop of Attorney-at-law Marta Bledniak and Agnieszka Paszkowski (with the participation of Zuzanna Piotrowska of HSG Avocats) has attracted the attention of many participants posting workers to France.

On the one hand, Loi Avenir facilitates declaratory obligations for legal entities that post workers in a permanent manner and who take good care for the legality of their activities. On the other hand, it is aimed at allowing audit institutions to focus on cases of serious violations of law within the scope of posting. Therefore, workshops on what to do in when faced with a control were an obvious choice. Attorney-at-law Christophe Wilner, using specific examples from his practice, showed how to keep cool in the case of French entrepreneurial control – including what steps to take and what to remember of in such an uncomfortable situation and how to ‘return victorious’ from such events.

Bruno De Pauw in turn told about the struggle with obtaining A1 Portable Documents and with making notifications in the LIMOSA system when posting workers to Belgium. Actually, it is difficult to find the more appropriate person to talk about tit – B. De Pauw is a general adviser at the Belgian Social Insurance Institution (RSZ / ONSS) and one of the architects of the LIMOSA system.

Where is the success of the posting of workers process?

According to Magdalena Grygorowicz, the success of the posting of workers does not lie in Brussels, Strasbourg or the ZUS Head Office, but on the HR desk in a given undertaking. It is where all the problems and intricate matters related to posting actually focus. In practice, it depends on the HR and payroll departments whether hiring and sending employees to work abroad will run smoothly and efficiently, or whether the entire undertaking gets stuck in a jungle of ambiguities, mistakes and costly penalties. In the dynamic workshop, the speaker discussed how best to effectively send workers abroad.

The workshop of the second of the Congress Partners – CRIDO was also of a very practical nature (and was very well received ). Marek Gadacz, tax advisor and Partner in the CRIDO tax advisory team, proposed to the participants of his speech three (or indeed, as he himself remarked, “three and a half”) case studies. Taking them as the example, he analyzed, among others, the issue of differences between business trip and posting and their practical, including tax-related consequences.

The challenge raised by the Employee Capital Plans for posted workers (and their employers)

Employee Capital Plans (ECP) will become one of the biggest challenges, both in administrative and cost-related terms for most employers in Poland as from July 2019. The government programme for additional long-term savings is to cover up to 11 million people, and the ECP should be offered by almost every employer in Poland. The workshop of Dr. Marcin Wojewódka, one of the most eminent specialists in this respect in Poland, enjoyed understandable attention, despite its late hour. The participants’ comments were unequivocal – dr Wojewódka introduced this extensive and comprehensive subject matter in a model way.

KISS (Keep It Simple and Strict) ELA?

On the second day of the 6th EKMP, straight from the European Parliament came Iwona Kasprzyk-Sowa and Margareta Przybyła – the substantive advisors to the MEP Danuta Jazłowiecka. The latter, due to the urgent issues in her constituency, unfortunately could not reach the Congress. Her advisors, however, certainly made the grade. They presented (in a nutshell) the most important changes concerning the legal environment of the freedom to provide services – including the amendment of the Posting of Workers Directive, assumptions of the revision of the Regulations on the coordination of social security systems in the EU, which may still be voted in the current parliamentary term and, last but not least, the notorious European Labour Authority.

At the same time, this workshop was an excellent prelude to the Citizens’ Dialogue with Commissioner Elżbieta Bieńkowska (read its account here).

We invite you to browse through the VI ELMC photo gallery .

MK + AK

VI European Labour Mobility Congress- summary of the plenary session

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'What we are interested in is solving everyday problems. The problems of both workers employed in companies and the ones who run these companies' Stefan Schwarz at the ELMC 2019

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