1 March 2020: entry into force of the notification obligation in case of trans-national provision of services
On 1 March the so-called ‘notification obligation’ has entered into force in the Netherlands. This notification obligation follows from the WagwEU, the Dutch implementation of the Posted Workers Directive (Directive 96/71/EG) and the Enforcement Directive (Directive 2014/67/EU), and applies to service providers from other Member States (EU, EEA or Switzerland) that provide transnational services by means of posted workers in the Netherlands.
As of 1 March, these service providers have to notify all posted workers to the Dutch government prior to the date that the services in the Netherlands will actually commence. In this Benefit Bit we explain (i) when the notification obligation applies, (ii) to whom the notification obligation applies and (iii) in what way compliance with the notification obligation will be enforced.
When will the notification obligation apply?
The notification obligation only applies in case of transnational provision of services by a service provider to a service recipient.
Therefore, there are three central terms:
- Service provider: is someone (natural person or company) from another Member State (EU, EEA or Switzerland) that posts his worker to work temporary in the Netherlands on the basis of the transnational provision of services.
- Service recipient: can be a natural person or a company. If the service recipient is a company, this company must either be located in the Netherlands or the company must perform work in the Netherlands. Furthermore it is required that the posted worker performs work for the service recipient.
- Transnational provision of services applies in each of the 3 following situations:
Situation 1: The posting of a worker by the service provider to the Netherlands, whereby the worker will work under the supervision of the service provider. For this situation to apply there has to be a contract between the service recipient and the service provider;
Situation 2: The posting of a worker by a company (outside the Netherlands) to a branch of that company in the Netherlands or to another company within the group in the Netherlands, whereby the worker will work under the supervision of the receiving company. It is not required that the receiving company pays for such worker to the posting company.
Situation 3: The posting of a worker by a service provider to a service recipient in the Netherlands whereby the worker will work under the supervision of the service recipient. It is required that the service recipient pays for such worker to the posting company.
Who should make the notification?
The service provider has to make the notification. We note that the notification obligation also applies to self-employed workers from another Member State (EU, EEA or Switzerland) who intend to perform temporary activities in the Netherlands.
When should the notification be made?
The notification has to be made prior to the date that the activities in the Netherlands will actually commence. In the event of changed circumstances during the actual activities in the Netherlands, the original notification should be modified as soon as possible. That will also be the case if the activities in the Netherlands exceed the expected duration that was specified in the original notification.
Where should the notification be made?
The notification should be made via the online notification portal of the Dutch government.
What information should be included in the notification?
The information that should – in any event - be included in that notification can be found on this online checklist. For self-employed workers, another checklist is applicable.
In this regard, we note that a service provider, who intends to post a group of workers to the Netherlands, can suffice by making one notification in which reference is made to the identity of all workers that will be posted.
The service recipient’s obligation to verify the notification
The service recipient has an obligation to verify if the notification has been made (correctly) by the service provider. This verification can be done via the online notification portal as well. Please note that this verification should be more than a simple check whether the notification has been made. The service recipient also has to check whether the provided information is correct. This check must be completed at the latest on the day that the posted worker starts performing services for the service recipient.
What is the risk if no notification has been done?
If the supervisory authority (the Inspectorate SZW) concludes that a service provider has omitted to make a (correct) notification, then both the service recipient and the service provider can be fined. The amount of such fine will range between EUR 1,500 and EUR 4,500. We note that the abovementioned penalties can increase with 100% and - under circumstances - even 200% in case of a second breach within 5 years after the first breach.
Please beware that – while the notification will primarily be received by the Inspectorate SZW - the Dutch Tax Authorities and the Social Insurance Bank will also be allowed to inspect the notification. Further to this, the IND (Immigration Services) can request information from the notification as well. In that regard, non-compliance with the obligations of the WagwEU (including the notification obligation) could have consequences for a company’s status as ‘recognised sponsor’ (‘erkent referent’). Lastly, also the social partners (such as trade unions) can request to receive information from the notification to verify compliance with collective agreement provisions. The foregoing makes it all the more relevant to verify critically (and with due care) if a concrete situation does indeed fall under the scope of the notification obligation.
Small employers (with a maximum of 9 employees) in certain sectors (and under certain conditions) may have the possibility to do a so-called ‘annual notification’. We also note that, for certain incidental work activities (such as scientific conferences or business meetings) and under strict circumstances, no notification obligation will apply.
The situation in reverse: transnational provision of services from the Netherlands
In this Benefit Bit we have assumed that there is transnational provision of services where the activities will be performed in the Netherlands, since that is the situation that triggers the obligation to notify the Dutch government. That is not to say that the situation in reverse – a transnational provision of services from the Netherlands – is irrelevant. In the event you intend to provide transnational services of a temporary nature in another Member State then the Netherlands, then it could very well be that that Member State has also implemented a notification obligation. In that regard, we would advise you to seek advice from legal advisors in that Member State as well.
Please feel free to reach out to the experts of our Employment & Benefits team if you have any questions regarding the applicability of the notification obligation (and/or the obligation to verify the notification) in which case we would gladly provide you with a tailor-made assessment.