A Rights-Based Approach to the Protection of Third-Country Posted Workers in the European Internal Market

It is no exaggeration to claim that over the past four decades the European Court of Justice has systematically crafted a free mobility regime for Third Country Nationals on the basis of the free movement of services. The rapidly increasing use of this legal channel by employers in search of cheap labour has been much to the discontent of (some) Member States, which ought themselves exclusively competent to admit third-country workers to their labour market under the Treaties. They now miss out on a key control point for regulating the presence and verifying employers’ compliance with national labour and social legislation. What is often overlooked in academic discussions is the fact that EU law does not only allow, but even obliges Member States to enforce a wide range of labour and social rights in order to protect posted workers from exploitation and prevent unfair competition in the internal market. Paradoxically, however, case law by the European Court of Justice leaves the remaining options for Member States of destination to monitor and prevent abuse of posting third-country nationals extremely limited. This paper addresses this conundrum and considers ways out of it: how can – and should – Member States effectively protect the rights of posted third-country workers? While largely doctrinal in nature, the paper empirically draws on unique case files archived by the Dutch Federation of Trade Unions in order to illustrate the (precarious) legal position of posted third-country workers and analyses the recent policy responses by the Dutch government to a surprisingly high increase in the number of third-country nationals posted to the Dutch labour market.