Poland failed to implement the new posting directive within deadline. What rules apply past the deadline?

The Polish parliament still works on the bill amending the Act on the posting of workers in the framework of the provision of services, aimed at the implementation the EU Directive 2018/957 of 28 June 2018.

Although works on this bill have clearly gained momentum recently, it is already known that the entry into force of the proposed changes within the deadline provided in the directive, i.e. on 30 July is unreal.

Consequences for foreign employers. No direct effect of the EU directive.

Polish government’s failure to implement the EU Directive 2018/957 in a timely manner has no impact on the foreign employers posting employees to Poland. Until the implementation enters into force, the posting of employees to Poland will remain to be subjected the current rules.

In particular, until the Polish implementation of the Directive enters into force, employees posted to Poland will not be able to pursue any claims against their employers based directly on the Directive which Poland has failed to implement in a timely manner.

Even though the settled case-law of the Court of Justice of the EU sometimes allows for direct application of an EU Directive once a member state has failed to implement it into its national law, such possibility is limited to relations between individuals and the state. As such, the possibility to apply the Directive directly does not apply to relations between workers posted to Poland and their employers.

Therefore, if the Directive 2018/957 is not implemented on time, employers posting employees to Poland will be able to continue to follow Polish domestic provisions inconsistent with this directive. They will have the new duties only from the date of entry into force of the Polish act amending the Act on the posting of workers in the framework of the provision of services.

Consequences for employers in Poland.

The untimely implementation of the EU Directive 2018/957 into the Polish domestic law does not mean that Polish employers will also be able to continue posting employees from Poland abroad in accordance with current rules.

Employers from Poland should be aware that other EU Member States may implement the Directive on time. Appropriate provisions have already been prepared, among others in France and Belgium, and are now only awaiting to enter into force. Therefore, already starting from 30 July 2020 Polish employers may be obliged to ensure additional terms of employment and comply with additional duties with regard to their employees posted from Poland to other EU countries