The Court of Justice of the European Union (CJEU) has defined the posting of workers as follows: “Hiring-out of workers, within the meaning of Article 1(3)(c) of Directive 96/71, is a service provided for remuneration in respect of which the worker who has been hired out remains in the employ of the undertaking providing the service, no contract of employment being entered into with the user undertaking. It is characterised by the fact that the movement of the worker to the host Member State constitutes the very purpose of the provision of services effected by the undertaking providing the services and that that worker carries out his tasks under the control and direction of the user undertaking.”
An undertaking whose registered office is located abroad is thus entitled, in the context of providing cross-border services, to post (hire out) workers temporarily for a specific task to the party for whom the services are intended and which is located in the Grand Duchy of Luxembourg provided that there is an employment relationship between the posting undertaking and the worker during the posting period.
The posting of workers is carried out:
- either on behalf of and under the direction of the posting undertaking, within the framework of a contract concluded between the posting undertaking and the party for whom the services are intended, established or operating on the territory of the Grand Duchy of Luxembourg;
- or in an establishment belonging to the posting undertaking or in an undertaking belonging to the group of which the posting undertaking is a member;
- or by a temporary work agency or by an undertaking which, under a temporary loan of workers, makes a worker available to a user undertaking established or operating on the territory of the Grand Duchy of Luxembourg.
Moreover, the temporary work agency or the undertaking, which, under a temporary loan of workers, makes a worker available, established outside the territory of the Grand Duchy of Luxembourg, may post a worker to a user undertaking established outside the territory of the Grand Duchy of Luxembourg and temporarily carry out an activity on the national territory, provided there is an employment relationship between the temporary work agency or the undertaking, which, under a temporary loan of workers, makes a worker available and the posted worker throughout the posting period.