Written by Marketa Pape.
Under EU rules, EU citizens are free to reside and work in any Member State, and can be posted to any other EU country to provide a service job. By contrast, labour migration by third-country nationals (TCNs) is controlled by a different regulatory framework. However, Court of Justice of the European Union (CJEU) case law provides that TCNs with work and residence permits in one Member State may be posted across the EU to perform temporary work. The posting of TCN workers is increasingly being used as a labour mobility channel.
Posting of workers
Key pillars of the EU acquis, the principles of free movement of workers, freedom of establishment and freedom to provide services are rooted in the EU Treaties. The freedom to provide services serves as the basis for the practice of ‘posting’ workers. A ‘posted worker‘ is a worker sent by their employer to provide a temporary service in another EU Member State. While performing work in the receiving/host country, they do not shift their residence there. They remain connected to their sending/home country, where the employment agreement was concluded and where they remain subject to social security rules (under certain conditions). At the same time, while executing a service contract in a host country for their employer or a temping agency, posted workers are subject to the labour law of that country.
The posting of workers is becoming increasingly common and developing in new forms, including posting of TCN workers. While TCNs are legally ‘fixed’ by a work and residence permit in the country that granted the permits, the CJEU decided in 1994 that TCNs who have a valid work and residence permit in one Member State can be posted in any other Member State across the EU without needing another work permit (the Vander Elst case). The CJEU has confirmed this rule in subsequent case law.
Posting offers new migration opportunities to TCNs, especially low-and medium-skilled workers, who might otherwise have difficulty obtaining work and residence permits in Member States that privilege highly skilled labour migrants. Posted TCN workers mainly work in construction, transport and agriculture. The main receiving countries of posted TCN workers are Austria, Belgium, Germany and the Netherlands, while Poland, Slovenia and Spain are among the main sending countries. The nationalities most represented among posted TCN workers are Ukrainian and Bosnian, followed by Serbian and Belarusian.
The combined statuses of ‘posted worker’ and ‘labour migrant’ make posted TCN workers doubly vulnerable, however, as they depend on their employers not only for employment but also for the renewal of their work and residence permits in the sending country. Often used as a business model for profit maximisation, posting of TCN workers has the potential to grow into a mobility channel on an equal footing with ‘traditional’ TCN labour migration.
EU legal framework
The 1996 Posting of Workers Directive (PWD) established a core set of rights in relation to the terms and conditions of employment of posted workers, addressing remuneration, rest periods, annual leave, and occupational health and safety requirements. The directive aimed both to protect these rights within the EU and to facilitate a level playing-field in the Member State of posting.
The 2018 revised PWD strengthened the principle of ‘equal pay for the same work in the same place’ (the original PWD had ensured only ‘minimum rates of pay’); extended to posted workers the rules on workers’ accommodation and on allowances or reimbursement of expenditure to cover travel, board and lodging; and confirmed the equal treatment of posted temporary agency workers.
The PWD applies to both EU and TCN workers. It does not define a minimum duration of posting or any visa or permit requirements. However, after 12 months of posting (18 months, if notified by the employer), all terms and conditions of employment of the host country will apply to the posted worker (except rules on contract termination, supplementary working pensions and social security, which apply after 24 months).
The Enforcement Directive 2014/67/EU sought to increase compliance with the PWD. It addressed issues relating to access to information and circumvention of rules, inspections and monitoring, joint liability in subcontracting chains and exchange of information between Member States.
EU rules on social security coordination (Regulation 883/2004/EC, implementing Regulation 987/2009/EC and Regulation 1231/2010/EU) guarantee posted TCNs the same social security protection received by EU citizens moving within the EU (under certain conditions). It has been observed, however, that despite harmonising efforts at EU level, short-term TCN workers’ access to social security is organised in a fragmented way both within and across national jurisdictions.
The right of residence of the TCN worker in the sending Member State falls under the EU common immigration policy, which is a shared competence between the EU and the Member States. The EU has adopted rules relating to admission criteria, procedures for the application for residence and work authorisations, and the rights of specific categories of legal migrants to the EU (including seasonal workers, workers on intra-corporate transfer, persons under temporary protection – first activated for persons residing in Ukraine fleeing Russia’s war – and highly skilled workers and their families).
National rules applicable to posted TCN workers
While a TCN worker needs a work permit only in the sending Member State, the same does not apply for residence permits. Member States apply various administrative requirements regarding the right of posted TCN workers to stay on their territory. While some do not impose any requirements, most require prospective posted workers to apply for a temporary residence permit or a ‘Vander Elst visa’. For a posting shorter than 90 days – a ‘Schengen visa’ posting – most Member States waive this requirement.
Member States can regulate additional areas, such as the conditions for renewal or withdrawal of work and residence permits. In addition, several Member States have specific bilateral agreements that exempt certain TCNs from the requirement to have a work permit. Slovenia, for instance, allows citizens from Bosnia and Herzegovina and Serbia to obtain a special work permit to work in Slovenia, while TCNs of other nationalities must obtain both a work and a residence permit. This allows Slovenian companies to recruit TCN workers from these Balkan countries swiftly and post them in other EU countries. Similarly, Poland offers some simplified procedures to citizens of Ukraine, Belarus, Moldova, Armenia and Georgia.
Further national legal requirements are complex, fragmented and vary considerably. Compliance is difficult to verify and involves inspections. This requires cooperation from labour, social security and immigration authorities from other EU countries, whose differences in approach, competences, personnel and language capacities may complicate the process.
|Transport sector: Directive 2020/1057/EU sets specific rules for posting drivers in the road transport sector, and clarifies the forms of international road freight transport to which the PWD applies. Drivers performing ‘cabotage’ (national transport undertaken by hauliers from another Member State) or ‘cross-trade’ (transport between two countries performed by a vehicle registered in a third country) are considered posted workers. However, bilateral transport (between the Member State of establishment and another country) and transit transport (crossing a Member State without loading or unloading) are not considered posted work. When a driver is posted, remuneration of the host Member State applies; when not, that of the Member State of establishment applies. While the directive also applies to TCN posted drivers, it does not deal with visas.|
European Parliament initiatives
Since 2014, Parliament has called repeatedly for improvements to the PWD. In 2016, the Commission put forward a proposal for a regulation on better coordination of social security systems, seeking to clarify conflicts between social security coordination rules and the PWD. The file is currently on hold.
In the negotiations on the revision of the PWD, Parliament pushed for ‘equal pay for equal work’ and for Member States to be able to apply regional, sectoral or industry agreements to posted workers. It also sought to enable Member States to place foreign undertakings under the same national obligations in cases of sub-contracting. In 2021, Parliament called on the Commission to research trends affecting working conditions of posted TCNs, with a view to updating policy at EU or national level as appropriate.
Read this ‘at a glance’ on ‘Posting of third-country nationals in the EU‘ in the Think Tank pages of the European Parliament.