A position paper signed by several EU member states – Belgium, Denmark, Germany, Italy, Latvia, and Luxembourg, and the Netherlands -- calls for the European Commission to establish a clear and robust legal framework on the posting of nationals of non-EU countries (third-country nationals or TCNs) within the EU. This initiative aims to address the increasing complexities and challenges that have emerged over the years in connection to TCNs.
The free movement of persons and services within the EU has undeniably contributed to the economic vigour and competitive edge of the single market. However, this freedom has also introduced significant challenges, particularly in the realm of labour mobility. Notably, posted TCNs often find themselves in precarious situations, facing unfair, unhealthy, and unsafe working conditions due to the lack of harmonised EU legislation. The growing trend of posting TCNs across member states by cross-border service providers introduces risks such as social dumping, labour exploitation, and inadequate social security coverage.
Recognizing these challenges, the signatory member states are advocating for the European Commission to take decisive action by proposing new legislation specifically focused on the posting of TCNs. Such legislation would provide clarity on the legal conditions required for the legitimate posting of TCNs, ensuring that these workers are genuinely employed and not merely used to circumvent national labour laws.
Some key concepts developed from the current case law are deemed to be insufficiently clear and therefore need to be addressed. The signatory countries call on the EU Commission to introduce clear definitions on the notion of “lawfully and habitually employed,” and to address the mandatory temporary nature of a posting by requiring that the duration of the posted worker’s contract exceeds that of the posting.
Moreover, according to the EU countries that signed the collective statement, it is also critical to enhance cross-border enforcement of labour mobility rules by member states. This should include verifying the actual activities of the sending service provider and ensuring that employment contracts genuinely reflect the temporary nature of postings to avoid exploitation.
The paper concludes that, by establishing a clear legal framework for the posting of TCNs, the EU would create a more equitable and competitive environment that safeguards the rights of all workers and maintains the integrity of the single market.
The position paper is merely a call to action by the EU Commission. If and when the Commission takes legislative action, we will report it in future editions of this newsletter.
For further information on the current rules with respect to Intra-EU postings, please reach out to your regular BDO contact or the author of this article.
Peter Wuyts
BDO in Belgium
The free movement of persons and services within the EU has undeniably contributed to the economic vigour and competitive edge of the single market. However, this freedom has also introduced significant challenges, particularly in the realm of labour mobility. Notably, posted TCNs often find themselves in precarious situations, facing unfair, unhealthy, and unsafe working conditions due to the lack of harmonised EU legislation. The growing trend of posting TCNs across member states by cross-border service providers introduces risks such as social dumping, labour exploitation, and inadequate social security coverage.
Recognizing these challenges, the signatory member states are advocating for the European Commission to take decisive action by proposing new legislation specifically focused on the posting of TCNs. Such legislation would provide clarity on the legal conditions required for the legitimate posting of TCNs, ensuring that these workers are genuinely employed and not merely used to circumvent national labour laws.
Some key concepts developed from the current case law are deemed to be insufficiently clear and therefore need to be addressed. The signatory countries call on the EU Commission to introduce clear definitions on the notion of “lawfully and habitually employed,” and to address the mandatory temporary nature of a posting by requiring that the duration of the posted worker’s contract exceeds that of the posting.
Moreover, according to the EU countries that signed the collective statement, it is also critical to enhance cross-border enforcement of labour mobility rules by member states. This should include verifying the actual activities of the sending service provider and ensuring that employment contracts genuinely reflect the temporary nature of postings to avoid exploitation.
The paper concludes that, by establishing a clear legal framework for the posting of TCNs, the EU would create a more equitable and competitive environment that safeguards the rights of all workers and maintains the integrity of the single market.
The position paper is merely a call to action by the EU Commission. If and when the Commission takes legislative action, we will report it in future editions of this newsletter.
For further information on the current rules with respect to Intra-EU postings, please reach out to your regular BDO contact or the author of this article.
Peter Wuyts
BDO in Belgium