Cross-border posting in light of the draft legislative decree No. 296/2016

The draft legislative decree No. 296/2016 redefines the rules on cross-border posting, being an obstacle to the so-called “unlawful triangulation of staff”, often used by entrepreneurs to benefit from more advantageous contributory regimes. The draft decree, drawn up for the purposes of implementing EU Directive 67/2014 (the deadline for implementation is fixed on 18 June 2016) not only encourages cooperation amongst States, but also grants a set of powers to the supervisory bodies in order to face the companies’ possible ‘fraudulent’ conducts. In the case at issue, such bodies may take initiatives aimed at checking the posting’s authenticity, by inquiring into both the company’s modus operandi and each worker’s own characteristics, in particular, by looking at the place in which the undertaking has its own legal seat, headquarters and registered office, at the place in which the workers were hired and at the place from which they are ‘posted’, at the ways of carrying out the respective work, and at the date of commencement of the posting. Finally, the draft legislative decree provides for information obligations towards the Ministry of Labour and Social Policies, with heavy penalties in the event of failure to fulfil same. In short, the draft at issue makes us expect a new season for ‘authentic‘ cross-border posting.