Introduction
The legal framework governing the posting of third-country nationals within the European Union (EU) is rooted in the EU’s freedom to provide services and the rights of these nationals to reside and work in the EU.
Directive 96/71 defines a ‘posted worker’ as someone temporarily working in an EU Member State other than their usual workplace. The CJEU, notably in the Van Der Elst case, affirmed that employers can lawfully send third-country nationals to work in another Member State without additional work permits. The Posting of Workers Directive (PWD) serves as the primary legal instrument, setting minimum employment conditions for posted workers.
For an overview of the regulatory framework for posting workers in Europe, take a look at our guide on EU Posted Workers Directives.
Although it does not explicitly address third-country nationals, CJEU case law establishes their right to be posted without additional work permits. Decisions, such as in the Vander Elst case, ensure that lawfully employed third-country nationals do not require work permits in the host country.
CJEU rulings further struck down disproportionate requirements, emphasizing that ‘lawful and habitual employment’ does not necessitate a predetermined period of residence in the sending Member State. The Court challenged measures like individual working permits for non-EU personnel, asserting the principles of freedom of services.
In essence, CJEU decisions establish that third-country nationals may work in an EU Member State without a host country’s working permit if lawfully employed in the sending Member State.
Enforcement of EU rules on posted workers, particularly third-country nationals, demands effective application across diverse national legal frameworks. While the EU provides core requirements, differences in inspection authorities, investigatory powers, and enforcement mechanisms present challenges. The Enforcement Directive aims to harmonize administrative procedures, fostering mutual assistance. Combatting abuses like social fraud, fake posting, and letterbox companies is crucial.
Challenges in Enforcing Posting Rules for Third-Country Nationals
When it comes to posted third-country nationals, challenges intensify due to the intersection of posting rules with migration regulations.
Vulnerability arises from:
- precarious situations;
- fear of reprisals;
- language barriers, and
- economic dependency.
Complexities like fake posting and involvement of letterbox companies lead to potential abuses, including unequal pay and circumvention of social security regulations. Stakeholders stress the need for multilingual information dissemination and better access to rules for improved compliance.
Administrative Requirements for Posted Third-Country Nationals
Administrative requirements for posting third-country nationals vary across Member States, covering employment and social security aspects.
While employment-related obligations include posting notification and document maintenance, social security requirements involve obtaining PD A1 forms from the sending Member State.
Administrative rules, applicable to both EU and third-country nationals, encompass registration with authorities. However, challenges include discrepancies and non-adherence to posting duration rules.
Right of Stay Administrative Requirements
The administrative requirements for the right of residence of posted third-country nationals vary between EU Member States. The CJEU has ruled that third-country nationals holding work and residence permits issued by EU Member States are covered by the rules on the free movement of workers and may be posted temporarily in the framework of transnational service provisions.
Most Member States exempt permits/visas for postings shorter than 90 days, but some impose such regardless of duration. Specific rules on duration, maximum periods, and linkage to permits in the sending Member State vary across countries.
Enforcement Practices at the National Level
Despite comprehensive regulations, challenges persist, particularly for specific categories like seasonal workers and Intra-Corporate Transferees (ICT) trainees. Stakeholders stress the importance of nuanced cooperation between Member States’ authorities and an in-depth understanding of migrants’ statuses. Recent legislative updates, such as the Transparent and Predictable Working Conditions Directive (DTPWC), aim to enhance information rights for all workers, including posted third-country nationals.
Enforcement practices at the national level involve:
- competent authorities overseeing compliance;
- inspections triggered by complaints or risk assessments;
- varied investigatory powers, and
- sanctions for breaches.
Challenges include low numbers of complaints, practical difficulties, and general issues impacting enforcement. Stakeholders call for improved coordination, technological enhancements, and streamlined verification processes.
Cooperation Among Member States
Cooperation among Member States is critical, involving data exchange through platforms like the IMI system and EESSI, bilateral agreements, and informal contacts. Challenges include language barriers and varying enforcement capacities. Differences in legal frameworks and inspection landscapes pose complexities, requiring harmonization efforts.
Enforcing Administrative Penalties or Fines
Enforcing administrative penalties or fines for posted third-country nationals faces challenges, including procedural limitations and differences in court jurisdictions. Stakeholders suggest a unified system with harmonized procedural regulations for efficient enforcement.
The exchange of data through dedicated platforms encounters challenges, with stakeholders emphasizing improvements to the IMI system. Suggestions include sanctions for non-compliance, common performance standards, and expanding the scope of the IMI system.
Enhancing Cooperation – Stakeholder Proposals
To enhance cooperation, stakeholders suggest capacity-building, awareness, and good practice dissemination.
Proposals involve:
- EU-wide tools for joint inspections;
- a unified platform for data/information interconnection, and
- transnational databases accessible to liaison offices.
Involving third countries is recommended to combat labor exploitation, inform posted third-country nationals about their rights, and enhance cooperation.