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Key compliance in EU cross-border services provisions.

Since 1 March 2020, service providers from the European Union and Switzerland who come to the Netherlands to perform work with their personnel are subject to the notification requirement under the Terms of Employment for Seconded Employees in the European Union Act (WagwEU), the Dutch implementation of the European Posted Workers Directive and the Enforcement Directive.

A “posted worker” is an employee who is sent by his employer to carry out a service in another EU Member State on a temporary basis, in the context of a contract of services, an intra-group posting or a hiring out through a temporary agency.

Posted workers who fall under the definition are entitled to at least the hard core of employment conditions under Dutch law and collective agreements declared generally binding, such as minimum wage, holidays, working hours and equal treatment. After one year, there is even an ‘extended hard core’, including all employment conditions from which certain pension entitlements and dismissal law are excluded. This applies as far as the conditions in the ‘host state’ are more favourable of course.

This legislation has been in place for some time, yet we see that service providers do not always have a clear view of these obligations. The consequences of missing the obligations from the WagwEU can be considerable. The Inspectorate SZW can impose substantial fines. The recipient of the services (in this case a company established in the Netherlands) may also be fined.

The Inspectorate SZW provides a handy folder with a step-by-step plan on its website. Anyone who sends personnel across the border from a Union Country to the Netherlands should make sure they are aware of the obligations in this area: https://www.valegis.com/wp-content/uploads/2021/10/Important-information-about-the-WagwEU-for-employers.pdf .

The same applies vice versa for Dutch-based companies going cross-border, links to national website on postings can be found here: https://europa.eu/youreurope/citizens/work/work-abroad/posted-workers/index_en.htm#national-websites.

For more information, contact Reinier Wolters, r.wolters@valegis.com.