Italian Legislative Decree no. 136/2016 (the “Decree“), implementing the European Directive 2014/67/EU, regulates transnational posting of workers as part of service provision.

Article 10 of the Decree places several administrative obligations on the foreign company (“the Posting Company“) that intends to post one or more workers to a company based in Italy (“the Host Company“).

The legislation provides for three different types of posting:

• by a company based in a foreign country to a branch in Italy;
• by the above company to an Italian company in the group to which it belongs (intra-group posting);
• as part of a commercial contract (e.g. service contract) entered into with a principal (company or other recipient) having its registered or executive office in Italy.

Whenever one of the above cases occurs, the Posting Company is required to:

1. collect and keep the documentation relating to employment;

1. appoint a contact person electively domiciled in Italy, responsible for exhibiting, sending and receiving documents (e.g. requests for information and documentation, notification of access reports and assessment of violations) in the name and on behalf of the posting company, including the formal notification of deeds to the company by supervisory personnel (Art. 10, paragraph 3, letter a).

1. appoint a person, who may be the same as above, to act as legal and trade union representative, to put the social partners in contact with the service provider for possible collective bargaining (art. 10 paragraph 4).

1. make the prior notification of the posting of personnel employed in Italy to the Ministry of Labour and Social Policy (UNI_Distacco_UE Form) by midnight the day before the posting’s start.

Art. 1, paragraph 1, letter d), of Legislative Decree. 122/2020, transposing EU Directive 2018/957, introduced into the Decree art. 4-bis, having as its object “long-term posting.” It states that “if the posting duration exceeds 12 months, working and employment conditions provided for in Italy by regulatory provisions and national and local collective agreements entered into by workers’ and employers’ organisations that are comparatively more representative at national level shall apply to the posted workers if more favourable […], except for those concerning:

1. a) the procedures and conditions for signing and terminating employment contracts;
2. b) non-competition clauses;
3. c) supplementary occupational pension schemes.

[…]

If one or more posted workers performing the same tasks in the same place are replaced, the duration of the posting, to calculate the period referred to in paragraph 1, shall be determined by total work periods performed by the individual workers. Identifying duties performed in the same place is assessed based on the nature of the service provided, work performed and job location.”

Compulsory communication – UNI_Distacco_UE Form

The UNI-Distacco_UE form is made up of several sections in which the following data must be reported:

• Posting and host companies and the data of both legal representatives;
• contact person (Art. 10, paragraph 3, letter b), i.e. the person in charge of producing, sending and receiving documents on behalf of the posting company;
• contact person (Art. 10, paragraph 4), i.e. the person who acts as the trade union representative;
• posting place and duration;
• personal data of the worker posted to Italy.

The Ministry of Labour and Social Policies, implementing the changes introduced by Legislative Decree no. 122/2020, on 6 August 2021, published its Decree no. 170. This sets new standards and rules for the electronic transmission of communications from service providers to the Ministry for workers under long-term posting in Italy.

In addition to confirming the need to enter the data listed above, the decree introduces two new sections in the UNI_Distacco_UE mandatory communication.

• the section on the communication of the reasoned notification for long-term postings: within this section, the posting company must justify the “long-term posting” to guarantee the posted worker the greater protections provided by art. 4 bis of Legislative Decree 136/2016 and reported in the previous paragraph;
• the section in which the posting company communicates the replacement of one or more posted workers to perform the same tasks in the same place. In this section the posting company shall provide information about the replaced worker and consider the period during which the worker was posted.

The renewed UNI_Distacco_UE form will be operational on the institutional website of the Ministry of Labour and Social Policies once the Ministerial Decree in question is registered by the Court of Auditors and subsequently published.

In the European Court of Justice’s 15 July 2021 ruling on two separate proceedings, it has observed that the rules concerning the country’s minimum wage by which the posted worker habitually carried out their activities could not be derogated from by agreement.

Case C–152/20

Two workers sued their employer before the relevant Romanian court to pay the difference between their wages and the minimum wages. In their view, they were entitled to the minimum wages under the Italian legislation set out in the collective sector agreement.

The workers considered that the Italian legislation on the minimum wage was applicable to them under Article 8 of the “Roma I” Regulation. Although the contracts were stipulated in Romania, they carried out their duties in Italy. They argued that the place from which they carried out their missions, received instructions, and returned was Italy, where most of the transport activities were carried out.

In objecting, the employer observed that:

• the two employees worked on lorries registered in Romania and based on transport licences issued under applicable Romanian legislation; and
• the communication of instructions and organisation on the activity carried out took place in Romania.

Case C–218/20

The main proceedings in Case C-218/20 concern the law applicable to the remuneration of a Romanian lorry driver employed by a Romanian company who worked exclusively in Germany.

Two clauses were attached to the employment contract

• one under which the contract contents were supplemented by the provisions of Law no. 53/2003 and
• one under which disputes relating to this contract were to be dealt with by the court having ratione materiae and ratione loci (by topic and by place) jurisdiction.

The employment contract did not expressly mention the place where the worker was to carry out his work. He argued that the location from which he carried out his work and received instructions was Germany. In addition, he argued that the lorries used were parked in Germany, and the transport missions carried out took place within the country borders.

By an action brought before the referring court, the Romanian trade union of which the worker was a member requested that the employer be ordered to pay him the difference between the wage received and the minimum wage to which he would have been entitled under German law.

According to the union, the German legislation on the minimum wage applied to the employment relationship under Article 8 of the “Roma I” Regulation. Although the contract was stipulated in Romania, the worker habitually carried out his duties Germany and was entitled to the minimum wage under German law.

However, according to the employer, it was explicitly agreed that the individual employment contract would be governed by Romanian labour law.

The European Court of Justice opinion

As a preliminary point, the Court found that, in both cases, it was not clear whether the lorry drivers were posted workers as a provision of services or workers who, although not having this status, habitually carried out their work in a country other than that in which the employer was established.

The Court noted that Article 8 of the “Roma I” Regulation lays down special conflict-of-law rules on individual employment contracts.  These rules apply where, during contract performance, the work is carried out in at least one country other than that of the chosen law. Paragraph 1 of that Article states that:

• the individual employment contract shall be governed by the law chosen by the parties under Article 3 of that Regulation, and
• that choice may not have the result of depriving the worker of the protection given by provisions from which it is impossible to derogate by agreement under the law which would be applicable to the contract in the absence of such a choice.

“If those provisions give the worker better protection than those provided by the chosen law,” the Court observed, “they prevail over the latter, whereas […] the chosen law remains applicable to the remainder of the contractual relationship.”

Article 8 para. 2 of the “Roma I” Regulation refers to the law of the country worker habitually works under the employment contract.

The regulation “thus seeks to ensure compliance with provisions guaranteeing the worker protection laid down by the law of the country where they carry out professional activities.”

The correct application of this regulation implies that the national court:

• first, identifies the law which would have been applicable in the absence of choice and determines the rules from which it is not permitted to derogate by agreement; and
• secondly, it compares the level of protection for the worker under those rules with that provided for by the law chosen by the parties. If the level provided for by those rules guarantees better protection, they must be applied.

In this case, the referring court considered that, due to the places where the drivers habitually carried out their work, specific provisions of Italian and German law on the minimum wage could apply instead of the Romanian law chosen by the parties, under Article 8 paragraph 1 of the “Roma I” Regulation.

As for the issue of whether those rules constitute provisions from which it is impossible to derogate by agreement under that article, the Court noted that “From the wording of that provision, that issue must be assessed under the law which would have been applied in the absence of a choice. The referring court will interpret the national rule in question.”

According to the Court, the rules on the minimum wage of the country where the worker habitually works may, in principle, be classified as “provisions from which it is not permitted to derogate by agreement” under the law which, in the absence of a choice, would have been applicable”, under Article 8 paragraph 1 of the “Roma I” Regulation.

Considering the above, for both proceedings, the Court held that Article 8 paragraph 1 of the “Roma I” Regulation “must be interpreted as meaning that, the law governing the individual employment contract has been chosen by the parties to that contract and is different from the applicable law […. ], the application of the latter is to be excluded, except for “provisions from which it is impossible to derogate by agreement” under Article 8 paragraph 1 of that regulation, which may include minimum wage rules.”