Free provision of services and cross-border labour recruitment

Abstract

This article identifies how the use of the European Union (EU) mobility rules, as formulated by the EU's Posting Directive, has been linked to the temporary provision of services in practice. It demonstrates how this linkage, legitimised by European Court rulings, undermines the Directive's original intent to provide rights-based regulation of labour mobility in the Union. In the assessment of posting practices, striking findings of two studies co-conducted by the author in 2003 and 2010 are discussed. In the first section, the origins of the Directive are described, followed by sections that contextualise the posting rules in the framework of the fundamental economic freedoms of EU Treaties, and discuss the problems related to implementation and enforcement. Based on the Directive's definition of posting, three issues of governance and practice are raised: (a) regulation of the employment relationship, (b) application of labour conditions and (c) respect for collective agreements. A final section offers policy recommendations in order to deal with the ways in which posting governance and practices currently impede any vision of rights-based mobility in the EU. It is argued that current minimalist interpretation of the posting rules can neither guarantee equal treatment nor protect the rights of temporary migrant workers.

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