‘What a Ride!’: The Freedom of Services and Posted Workers in the EU

Posted workers are somewhat of an anomaly in the free movement of persons, as they – or rather their sending company – rely on the freedom of services to perform work in another Member State. While the freedom of services ideally contributes to an effective allocation of services in a borderless European market, there is of course a genuine tension with national social and labour regulation. This is what Swedish trade unions and public authorities famously found out in the 2007 Laval case. The desire to create a European ‘level playing field’ for businesses – as expressed, for example, by European public procurement law – clashes with the desire to ensure a national ‘level-playing field’ with respect to social services and labour standards. This paper first analyses the historical development of this tension in both primary and secondary law and in the case law of the European Court of Justice. It then traces national and European level responses to this legal constellation, taking the Netherlands as a case study. Claiming an undermining of its labour and social standards, the Dutch government, by means of its ambitious Minister of Social Affairs, took the active lead in campaigning for an adaptation of the Posted Workers Directive, claiming success after tough negotiations. But is merely changing secondary legislation enough to address concerns about ‘social dumping’ in both law and practice?