CHAPTER V

ENFORCEMENT

Defence of rights — facilitation of complaints — back-payments
Article 11
1
For the enforcement of the obligations under Directive 96/71/EC, in particular Article 6 thereof, and this Directive, Member States shall ensure that there are effective mechanisms for posted workers to lodge complaints against their employers directly, as well as the right to institute judicial or administrative proceedings, also in the Member State in whose territory the workers are or were posted, where such workers consider they have sustained loss or damage as a result of a failure to apply the applicable rules, even after the relationship in which the failure is alleged to have occurred has ended.
2
Paragraph 1 shall apply without prejudice to the jurisdiction of the courts in the Member States as laid down, in particular, in the relevant instruments of Union law and/or international conventions.
3
Member States shall ensure that trade unions and other third parties, such as associations, organisations and other legal entities which have, in accordance with the criteria laid down under national law, a legitimate interest in ensuring that this Directive and Directive 96/71/EC are complied with, may engage, on behalf or in support of the posted workers or their employer, and with their approval, in any judicial or administrative proceedings with the objective of implementing this Directive and Directive 96/71/EC and/or enforcing the obligations under this Directive and Directive 96/71/EC.
4
Paragraphs 1 and 3 shall apply without prejudice to:
a
national rules on prescription deadlines or time limits for bringing similar actions, provided that they are not regarded as capable of rendering virtually impossible or excessively difficult the exercise of those rights;
b
other competences and collective rights of social partners, employees and employers representatives, where applicable, under national law and/or practice;
c
national rules of procedure concerning representation and defence before the courts.
5
Posted workers bringing judicial or administrative proceedings within the meaning of paragraph 1 shall be protected against any unfavourable treatment by their employer.
6
Member States shall ensure that the employer of the posted worker is liable for any due entitlements resulting from the contractual relationship between the employer and that posted worker.
Member States shall in particular ensure that the necessary mechanisms are in place to ensure that the posted workers are able to receive:
a
any outstanding net remuneration which, under the applicable terms and conditions of employment covered by Article 3 of Directive 96/71/EC, would have been due;
b
any back-payments or refund of taxes or social security contributions unduly withheld from their salaries;
c
a refund of excessive costs, in relation to net remuneration or to the quality of the accommodation, withheld or deducted from wages for accommodation provided by the employer;
d
where relevant, employer's contributions due to common funds or institutions of social partners unduly withheld from their salaries.
This paragraph shall also apply in cases where the posted workers have returned from the Member State to which the posting took place.

Subcontracting liability
Article 12
1
In order to tackle fraud and abuse, Member States may, after consulting the relevant social partners in accordance with national law and/or practice, take additional measures on a non–discriminatory and proportionate basis in order to ensure that in subcontracting chains the contractor of which the employer (service provider) covered by Article 1(3) of Directive 96/71/EC is a direct subcontractor can, in addition to or in place of the employer, be held liable by the posted worker with respect to any outstanding net remuneration corresponding to the minimum rates of pay and/or contributions due to common funds or institutions of social partners in so far as covered by Article 3 of Directive 96/71/EC.
2
As regards the activities mentioned in the Annex to Directive 96/71/EC, Member States shall provide for measures ensuring that in subcontracting chains, posted workers can hold the contractor of which the employer is a direct subcontractor liable, in addition to or in place of the employer, for the respect of the posted workers' rights referred to in paragraph 1 of this Article.
3
The liability referred to in paragraphs 1 and 2 shall be limited to worker's rights acquired under the contractual relationship between the contractor and his or her subcontractor.
4
Member States may, in conformity with Union law, equally provide for more stringent liability rules under national law on a non-discriminatory and proportionate basis with regard to the scope and range of subcontracting liability. Member States may also, in conformity with Union law, provide for such liability in sectors other than those referred to in the Annex to Directive 96/71/EC.
5
Member States may in the cases referred to in paragraphs 1, 2 and 4 provide that a contractor that has undertaken due diligence obligations as defined by national law shall not be liable.
6
Instead of the liability rules referred to in paragraph 2, Member States may take other appropriate enforcement measures, in accordance with Union and national law and/or practice, which enable, in a direct subcontracting relationship, effective and proportionate sanctions against the contractor, to tackle fraud and abuse in situations when workers have difficulties in obtaining their rights.
7
Member States shall inform the Commission about measures taken under this Article and shall make the information generally available in the most relevant language(s), the choice being left to Member States.
In the case of paragraph 2, the information provided to the Commission shall include elements setting out liability in subcontracting chains.
In the case of paragraph 6, the information provided to the Commission shall include elements setting out the effectiveness of the alternative national measures with regard to the liability rules referred to in paragraph 2.
The Commission shall make this information available to the other Member States.
8
The Commission shall closely monitor the application of this Article.