Posting of Workers in the EU: Tension between the ‘Social’ and ‘Economic’ Dimension of the Internal Market

Posting of workers has always been a controversial issue in the EU. It is characterised by the tension between the freedom to provide services within the internal market on the one hand and employment protection and right to equal treatment with workers in the host Member State on the other hand. Even though based on the freedom to provide services, the Posting of Workers Directive 96/71 not only aims at promoting the cross-border provision of services, but also at providing protection to posted workers and ensuring a level-playing field between foreign and local competitors. Finding a balance between the ‘economic’ and ‘social’ dimension of the internal market has been a European concern for a considerable time.

At present, the posting of workers is regulated within the context of the freedom to provide services; social protection of posted workers is provided by a ‘hard-core set’ of mandatory terms and conditions of employment of the host Member State which foreign service providers must apply during the period of posting. In 2018, the Posting of Workers Directive has been revisited; the transposition period ends by 30th July 2020. The revisited Directive 2018/957 maintains the concept of posting of workers under the legal base of free movement of services, but strenghens the ‘social’ dimension through significant changes concerning the employment protection. Particularly, it promotes the principle of ‘equal pay for equal work at the same place’, extends the validity of universally binding collective agreements to posted workers in all economic sectors, introduces a maximum duration limit of twelve months to posting and provides for equal treatment of posted temporary agency workers with agency workers recruited locally in the host Member State.

However, despite the changes in the revisited Directive, some of the major challenges in the context of posting of workers still remain unsolved: bogus self-employment, social security fraud and unlawful transnational temporary agency work. In the presentation, special focus will be put on bogus self-employment that is widespread not only in the context of cross-border labour mobility, but in labour law in general. In the context of posting of workers, one of the biggest incentives for bogus self-employment is the link between the employment relationship and the social security system. Therefore, bogus self-employment is often related to the inconsistencies between the Posting of Workers Directive and Regulation 883/2004 on the coordination of social security systems. Since the EU legislator has not addressed the relationship between these two legal instruments, the fight against the circumvention of the Posting of Workers Directive through bogus self-employment persists to be one of the major challenges at European level.

A sandwich lunch will be available friom 12.30. The meeting will begin at 1pm