Posting of third-country nationals in the EEA: Need for clarification of the conditions in a legislative initiative

1. Introduction: The legal context of the posting of workers

The posting of workers within the European Economic Area (EEA) has been the subject of legal and political discussions for several decades. Legally, the posting of workers to a Member State by employers established in another Member State is part of the right to free movement of services within the meaning of Art. 56 TFEU. This free movement gives a service provider the right to temporarily offer services in another Member State with its own employees. ¹

For this reason, posted workers are distinguished from workers who exercise the right to free movement of workers and who, on their own initiative, go to work for an employer in another Member State (Art. 45 TFEU). ² According to the Court of Justice, posted workers do not enter the labour market of the host Member State, unlike the ‘classic’ migrant worker. ³ This has important consequences for the rights of these workers. ‘Classic’ migrant workers have the same social rights as workers in the host country. ⁴ However, this does not apply to posted workers who, in principle, remain subject to the labour and social security law of the sending country.

In order to prevent these workers from forming unfair competition to local workers in the host Member State, Directive 96/71/EC (Posting of Workers Directive) was adopted in 1996. This Directive does not impose the application of the entire labour law of the host state, but only the so-called ‘hard core’ provisions, including those regarding minimum wage, maximum work and minimum rest periods and the minimum number of paid holidays. This Directive was amended in 2018 by Directive 2018/957/EU with an extension of these hard core provisions (the concept of ‘minimum wage’, for instance, was replaced by ‘remuneration’) and a strengthening of the legal protection of posted workers, including in the case of long-term posting. However, recital 20 of this Directive explicitly states that the Directive is without prejudice to national laws relating to the entry, residence and access to employment of third-country nationals. More recently, Directive 2020/1057/EU further specified how the posting Directive applies to workers in road transport.

In order to ensure the effective enforcement of these rules, the so-called Enforcement Directive 2014/67/EU was adopted in 2014. This Directive formulates, among other things, criteria that must be met for a posting to be valid, more specifically whether the sending company actually carries out substantial activities in the sending State (no letterbox companies) and that the posted worker indeed only carries out temporary work in the host Member State. ⁵

As regards social security, the coordination of Regulation (EC) 883/2004 provides that, in principle, migrant workers are subject to the social security of the country where they work (country of employment principle). ⁶ Still, workers posted from one Member State to another remain subject to the social security of the sending country. ⁷ A number of conditions apply to the application of this provision, though. The expected duration may not exceed 24 months, nor can the worker be sent to replace another posted worker. However, it is possible for the posted worker to be recruited with a view to being posted to another Member State, for example by a temporary employment agency. ⁸ In addition, the posted worker must have been subject to the legislation of the sending state prior to the posting. ⁹ An additional condition is that an ‘organic link’ must continue to exist between the company established in one Member State and the workers it has posted to the territory of another Member State. ¹⁰ Furthermore, the sending company must normally operate in the territory of the state in which it is established. ¹¹ This condition is intended to prevent so-called ‘letterbox companies’ from making use of the posting provisions.

As regards the monitoring of the application of this coordination, the A1 declaration plays a key role in verifying whether or not the conditions for derogations from the State of employment principle are met. This is a document issued by the competent body of the sending State which proves that the persons concerned remain subject to the legislation of this Member State. The body issuing the document is obliged to assess the relevant facts correctly and must guarantee the accuracy of the data that have been entered. ¹² However, the receiving Member State may dispute this assessment via a dialogue and conciliation procedure, or even before courts. ¹³

So, the application of these rules means that posted workers are not fully subject to the labour law of the Member State to which they are posted, and not subject at all to the social security legislation of that Member State. This may create a competitive advantage for the sending employer compared to employers established in the host Member State.

In addition, the application of this legislation has given rise to many disputes, fuelled mainly by practices that make clever use, or even abuse, of the opportunities offered by the free movement of services to gain competitive advantages from differences in labour costs and social contributions between the Member States. The rights of these posted workers are not always respected. Monitoring compliance with the legal protection of posted workers often leaves much to be desired. This may lead to unfair competition or ‘social dumping’. ¹⁴

The posting of employees within the EEA has now become a structural form of labour migration within the EEA. One could rightly wonder whether this still meets the original objective of temporarily and occasionally making employees available to customers in another Member State. Does it not, in fact, concern workers who are part of the labour market of the so-called host Member State and who, for that reason, should also be able to rely on the application of the labour and social security law of that Member State, such as ‘classic’ migrant workers? ¹⁵ The latter are subject to the labour and social security legislation of the host Member State from day one. This does not apply to posted workers, meaning that a (growing) part of the labour market falls outside the social protection of this Member State. ¹⁶

In this contribution, I shall not delve further into this general theme, but I will focus on an increasingly important group within the posted workers, in particular, third-country nationals who are posted from an EEA Member State to another Member State. This group of posted workers is very vulnerable to abuse and exploitation for various reasons (see below), which means that in practice they do not even benefit from the protection offered to them by Union and national law.

Section 2 outlines what it is all about, and why these workers are particularly vulnerable. Section 3 discusses the specific case law of the Court of Justice on the posting of third-country nationals. Section 4 addresses the questions that have remained unanswered following this case law. Next, section 5 argues for a legislative initiative and indicates what this could consist of. Finally, a conclusion is made in section 6.

2. Posting of third-country nationals

Third-country workers can be posted within the EEA as well, regardless of the fact that they personally cannot exercise the right to free movement of workers, which is limited to nationals of the Member States. The posting of third-country workers by an employer established in a Member State is also seen as part of the right to freedom to provide services by the employer. ¹⁷

Indeed, the Posting of Workers Directive 96/71/EC also applies if the posted employee is not a Union citizen. After all, no nationality conditions are included in this Directive. The social security coordination of Regulation (EC) 883/2004 also applies to third-country workers posted within the EEA. The personal scope of this regulation has been extended via Regulation (EU) 1231/2010 to all third-country nationals legally residing in a Member State. Moreover, the Court of Justice has given a broad application to this condition of legal residence by also including third-country nationals temporarily residing in a Member State on the basis of a temporary visa within the scope of the social security regulation. ¹⁸

Until a few years ago, the number of third-country nationals posted within the EEA was rather limited, but in recent years the number of posted third-country nationals has increased sharply.

A recent report with figures from 2021 ¹⁹ shows that third-country nationals are mainly posted to other Member States from Slovenia, Poland, Spain and Lithuania. From Slovenia, 60% of the posted workers are third-country nationals, mainly from van Bosnia and Herzegovina. From Poland, 17% of the posted workers are third-country nationals, mainly from Ukraine. ²⁰ From Spain, approximately 10% of the posted workers are third-country nationals, mainly from Morocco and Ecuador. These often concern third-country nationals for whom a work permit was very easily granted by the sending Member State on the basis of agreements with the countries of origin. ²¹ It also appears that in a number of sending countries the share of third-country nationals among posted workers is increasing, so one could say that, for posting, these Member States’ own nationals are gradually being replaced by third-country nationals. ²²

As for the host Member States, 26% of workers posted to Belgium are third-country nationals, mainly posted from Poland and Lithuania (Ukrainians and Belarusians), Portugal (Brazilians) and Spain (Moroccans). Approximately 20% of the people posted to Austria are third-country nationals, mainly from Slovenia (Bosnians and Serbs), Poland and Lithuania (Ukrainians and Belarusians). In France, more than 20% of the posted workers are third-country nationals, mainly from Spain. In the Netherlands, this is the case for more than a third of the posted workers, mainly Ukrainians and Belarusians who are posted via Poland and Lithuania. ²³

The main sectors involved are road transport, construction and agriculture. ²⁴ Sometimes, the posting involves employees who were employed in the so-called sending country for a short period of time only, or even fictitiously, before being posted to another Member State, including via a branch of a company from the third country concerned in the sending Member State. ²⁵ These figures show that posting of third-country nationals within the EEA has become an important form of labour migration for this group of employees who gain indirect access to the labour market of the Member States through posting. In the case of Belgium and the Netherlands, for instance, this concerns a multiple of the number of labour migrants coming from outside the EU. ²⁶ In this way, the rules and policies regarding labour migration from third countries in the receiving Member States are circumvented, including the sometimes long and difficult procedures to be admitted to the labour market of a Member State from a third country. ²⁷

At the same time, it appears that the application of the legal protection provided for posted workers is even more problematic when it concerns third-country nationals. They appear to be very vulnerable to non-compliance by their employer with the protection offered by Union and national law of the Member States, especially as regards wages and other employment conditions, such as working and rest times and safety at work. This vulnerability is partly due to limited knowledge of their rights, not having the necessary language knowledge, very precarious housing situations and dependence on the work permit that has been obtained for them by the employer in the sending country. The fact that their stay in the host country is at risk of becoming illegal if the conditions for posting are not met also increases their dependence on the employer, which means that they will not be quick to enforce their rights. In a number of cases, this has even given rise to forms of economic exploitation. Moreover, it appears that monitoring compliance with the conditions for this form of posting is difficult. ²⁸ This means that owing to the labour law of the host Member State not being fully applicable and the social security law of this Member State not being applicable, failure to comply with applicable legislation offers even more opportunities to reduce costs for the employer and to circumvent the application of social protection in the host country.

3. Case law of the Court of Justice: The Vander Elst and subsequent judgments

One of the problems associated with this monitoring is the fact that the conditions under which third-country nationals can be posted within the EEA were only formulated in general terms through the case law of the Court of Justice. The possibility of posting third-country nationals within the EEA is legally based on this case law only, and not on legislation. It is therefore important to analyse the scope of this case law precisely and to point out the questions that remain open.

The starting point of that case law is the Vander Elst judgment from 1994. ²⁹ This case concerned a Brussels demolition company that carried out demolition work in France for one month, with a team of eight permanent employees, including four Belgians and four Moroccans. The employer had obtained short-term visas in advance for the Moroccan employees in France. However, he had not applied for or obtained a work permit there, and the French social inspectorate considered this a violation of French labour migration legislation and imposed a special penalty on this company as a sanction. Vander Elst challenged this sanction in court, which in turn submitted the case to the Court of Justice. The Court held that imposing a work permit on third-country workers posted within the internal market constituted an obstacle to the free movement of services. Obstacles to the freedom to provide services can only be justified by overriding reasons in the general interest in so far as that interest is not safeguarded by the rules in the Member State where the service provider is established (para. 16). For the Court, the posted workers were employees who legally resided in the sending country (Belgium) and for whom their employer had obtained a work permit (para. 18). According to the Court, these workers had no intention of entering the labour market of the host country since, after completion of their duties, they would return to their country of origin or residence (para. 21). The Court also emphasised that this case concerned third-country nationals who were permanently employed by the employer in question on a regular basis. Therefore, imposing a work permit was an unjustified obstacle to the freedom to provide services.

Based on this judgment, the European Commission initiated a number of infringement proceedings against Member States that, according to the Commission, did not correctly apply this case law. In a number of cases, the Commission has taken these Member States to the Court of Justice, which has had the opportunity to further develop its case law.

The first case concerned Luxembourg, that also required a work permit for the posting of third-country nationals. ³⁰ It also required that, in order to obtain a collective work permit, the employees involved must have an open-ended employment contract with the posting employer that took effect at least six months before the posting. Luxembourg also requested the payment of a bank guarantee for the return of these workers to the sending country. In its judgment, the Court confirmed that measures which are obstacles to the freedom to provide services can only be justified in so far as they are appropriate for securing the attainment of the objective which they pursue and do not go beyond what is necessary in order to attain it (proportionality principle) (para. 21). The Court reiterated that posted workers do not intend to enter the labour market of the host country as, having completed their duties, they return to their country of origin or residence (para. 38). It also indicated that the protection of employees and the prevention of social dumping are reasons of general interest, but that the measures taken by Luxembourg were not appropriate for this purpose. For the Court, prior notification would be possible, but prior permission would certainly not. The six-month period would make recruitment for short-term postings impossible. However, in this judgment the Court did indicate that the freedom to provide services may not be used ‘for a purpose other than the accomplishment of the service in question, for instance, that of bringing … workers for the purpose of placing workers or making them available’ (para. 39). The Court also noted that the obligation for the service provider to demonstrate that the situation of the employees in the sending country ‘is lawful as regards matters such as residence, work permit and social coverage’, which shows that ‘the situation of those workers is lawful and that they are carrying on their main activity in the Member State in which the service-providing undertaking is established’ (para. 46).

In a case against Germany, the Court confirmed that requiring a prior visa (the so-called ‘Vander Elst visa’), and the condition of a prior employment of at least one year by the sending company, constitutes an unjustified obstacle to the free movement of services. ³¹ According to Germany, the requirement of prior employment of at least one year was inspired by the Vander Elst judgment, which referred to third-country nationals who were regularly employed by the employer in question. However, in its judgment the Court qualified this by stating that in the Vander Elst judgment, it had only ruled in the context of the specific circumstances of the case, but had in no way intended to make this an additional condition for the posting of third-country nationals (para. 55). The Court repeated what it had stated in the judgment against Luxembourg, that even a period of prior employment of six months in the sending country goes beyond what can be required of third-country workers on the basis of the aim of social protection (para. 58). Again, the Court reiterated that posted workers do not intend to enter the labour market of the host Member State (para. 59). At the same time, the Court emphasised ‘that a Member State may check that an undertaking established in another Member State, which deploys on the territory of the first-mentioned Member State workers who are nationals of a non-member State, is not availing itself of the freedom to provide services for a purpose other than the accomplishment of the service concerned’ (para. 40). However, the Court did indicate that the host Member State may request the employer to provide a simple declaration prior to the posting ‘that the situation of the workers concerned is lawful, particularly in the light of the requirements of residence, work visas and social security cover in the Member State where that provider employs them’. Such a declaration must ensure that ‘those workers’ situation is lawful and that they are carrying on their main activity in the Member State where the service provider is established’. If necessary, the host Member State may request the necessary documents for this purpose (para. 41).

In a case against Austria, the Court of Justice confirmed this case law. ³² The Court held that the requirement to obtain an ‘EC posting confirmation’ from the Austrian authorities prior to the posting of third-country nationals was contrary to the free movement of services. The conditions for obtaining such a declaration included having already been employed by the posting company for at least one year or having an open-ended employment contract. An additional condition was to respect Austrian wage and employment conditions and social security. A residence visa must also have been obtained in advance and there was a registration requirement. The Court took the view that this in fact concerned a prior authorization, and once again condemned the conditions of prior employment. The mandatory application of Austrian wage and employment conditions and social security, as well as the visa requirement, also went too far for the Court. Again, the Court reiterated that posted workers do not intend to enter the labour market of the host country as, after completion of their duties, they return to their country of origin or residence (para. 51).

The principles of this case law were later confirmed by the Court of Justice in the Essent and Danieli judgments. ³³ However, in these judgments the Court also came to some contradictory conclusions in respect of the question of whether or not workers posted by a temporary work agency intend to enter the labour market of the host Member State. In first instance the Court ruled that, when applying the transitional measures applicable after the accession of a new Member State and under which nationals of that Member State could not yet benefit from the free movement of workers, it is not acceptable for these workers to be posted to another Member State by a temporary work agency because the purpose of this posting ‘is specifically intended to enable workers to gain access to the labour market of the host Member State’, and ‘this worker is typically assigned to a post within the user undertaking which would otherwise have been occupied by a person employed by that undertaking’. This Member State may therefore restrict access to its labour market for workers posted by temporary work agencies on the basis of those transitional measures, because these transitional measures were intended to limit labour migration from new Member States. ³⁴ In other judgments, however, the Court did not apply this reasoning when it came to the posting of third-country nationals. According to the Court, such postings are not postings in which the posted worker enters the labour market of the host Member State. ³⁵

Recently, the Court was asked to rule once again on certain measures taken by Member States to control the posting of third-country nationals, particularly by the Netherlands. Case C-540/22 concerned Ukrainian employees who were posted to the Netherlands by a Slovak employer to carry out metal work for a Dutch company in the port of Rotterdam. These employees had Schengen visas issued by Slovakia. The duration of the posting turned out to exceed the period of 90 days within a 180-day period during which these workers were allowed, under the Schengen scheme, to move freely within the territory of Member States other than the Member State that issued the Schengen visa. ³⁶ The Dutch regulation that was at issue requires that for a posting of more than three months, a residence permit must be applied for per individual employee, the validity of which cannot exceed the residence and work permit granted by the sending Member State and which, in any case, may not exceed two years. The Netherlands also requested payment of a fee, equal to the fee payable for a regular permit for the labour migration of third-country nationals to the Netherlands, but five times higher than the fee for proof of lawful residence of a Union citizen. This fee amounted to 345 EUR. The implementation of the Dutch legislation was disputed before a Dutch Court, which asked the CJEU for a preliminary ruling on its compatibility with Article 56 and 57 TFEU.

In its judgment of 20 June 2024 ³⁷ the Court came to the following conclusions. First, it declared that third-country workers who are posted to a Member State must not automatically be recognised as having a ‘derived right of residence’ based on the posting, either in the Member State where they are employed or in the Member State to which they are posted (para. 55). This means that both the sending and the receiving Member State may check whether the residence of the posted worker on their territory is lawful, and that being posted does not make this residence lawful. The lawfulness of the residence only depends on the compliance with the applicable migration law.

Second, the Court confirmed the compatibility with EU law of the requirement under Dutch law that for a posting of more than three months that is no longer covered by the Schengen scheme, a residence permit must be applied for per individual employee, the validity of which cannot exceed the residence and work permit granted by the sending Member State and which, in any case, may not exceed two years, even if this requirement is combined with the obligation to declare the supply of services (notification procedure). It stated that the fact that a third-country worker has a residence permit and a work permit in one Member State does not necessarily mean that said worker may stay in another Member State, even though he has been posted there (para. 88). The Court confirmed that the Dutch legislation merely requires service providers, for the purpose of obtaining residence permits for third-country workers who they intend to post for more than three months, to have previously declared the supply of services in question to the competent authorities and to have communicated to those authorities the residence permits which those workers have in the Member State where they are established, as well as their employment contracts (para. 89). In this respect, the Court recalled its previous case law that the host Member State may require the submission of documents needed to verify that the situation of the posted workers is lawful, in particular with regard to the conditions of residence, authorisation to work and social security cover, in the Member State where the undertaking concerned employs those workers (para. 91). Therefore, the Dutch requirement to apply for a residence permit is justified by the objective of increasing legal certainty for posted workers and of facilitating administrative checks and is proportionate (para. 92). For the Court, this requirement is also necessary to allow the host Member State to check that the worker concerned does not represent a threat to public policy since the residence permit procedure, insofar as it requires the person concerned to report to the premises of a competent authority in person, may enable the identity of that person to be verified in detail, which, in the sphere of combating risks of threats to public policy, is of particular importance (para. 101).

Thirdly, the Court accepted that the fact of providing that the period of validity of the residence permits granted may not, in any event, exceed a certain duration (in this case two years), does not in itself appear to be contrary to EU law. This is also the case if that period is shorter than the period needed to carry out the service for which those workers are posted, unless that initial period of validity is manifestly too short to meet the needs of the majority of service providers or, in any event, if it is not possible to renew that period of validity without meeting excessive formal requirements (paras 115-116). The same goes for the limitation of the period of validity of the residence permits to the period of validity of the work permits which the posted workers hold in the sending Member State (para. 118). Regarding the fee, the Court decided that the amount of such fees cannot be excessive or unreasonable, assessed in the light of the costs which are generated by the processing of the application (paras 119-120).

With this last judgment, the Court strengthened the host Member State's ability to check that all conditions for a valid posting of third-country workers are indeed met and that the workers concerned do not pose a threat to public security. For this purpose, this Member State may thus require that for postings which are no longer covered by the Schengen scheme, a residence permit is applied for and that this permit is limited in time. Taking into account the previous case law, this application should only serve to verify that the conditions for posting are met, and should not be considered as an authorisation for the posting and residence of the posted worker, per se. In addition, the host Member State must not impose unnecessary procedural, administrative and financial obstacles that would be disproportionate to this objective.

4. Uncertainties regarding the application of this case law

It is apparent from the above case law that third-country nationals who have a valid work and residence permit in a Member State can simply be posted by their employer to another Member State. The latter cannot require any additional permits, only a prior notification. Still, the receiving Member State may check whether the residence and employment of the posted worker in the sending Member State is lawful, that this worker has social coverage there and is habitually employed in that Member State, and that the posting is temporary. The host Member State may also require a residence permit in cases of posting of more than 90 days.

At present, in absence of any legislative harmonisation of the matter, this case law of the Court of Justice forms the legal basis for the posting of third-country nationals within the EEA. However, as a result of the recent large increase in the number of postings of third-country nationals within the EEA and the reports of non-compliance with the rights of these workers and abuses, the discussion on the application of this case law has reignited. It appears that the Member States interpret and apply this case law in different ways. ³⁸ This leads to legal uncertainty, which in turn is the source of abuse.

It remains unclear, for instance, what exactly the Court means by the comment that the posted workers concerned have their main activity in the sending Member State. This case law implies that these workers cannot be required to have already worked in the sending Member State for a certain period of time. However, if they have to exercise their main activity in that Member State, surely there must be a certain continuity in this activity. I have previously highlighted practices whereby third-country workers are posted to another Member State quite quickly or even immediately after their recruitment and arrival in the sending country. Can one still speak of exercising a main activity in the sending Member State then?

Additionally, it is not clear what exactly the Court means by the statement that the posting may not be used for a purpose other than the accomplishment of the service in question, for instance, that of bringing workers for the purpose of placing workers or making them available. The Court's statement that posted workers do not intend to enter the labour market of the host Member State is debatable as well. Indeed, it has become clear that the posting of third-country nationals can have a major influence on the labour market of some Member States. It appears that in many situations posted workers are a structural part of the labour market of the host Member State, particularly in sectors such as construction, transport and agriculture and horticulture.

This question particularly arises when the posting is done by a temporary work agency or by a number of ‘intermediaries’. The case law of the Court of Justice is itself contradictory on this point, making a distinction between nationals of new Member States during the transitional period for the free movement of workers on the one hand, and third-country nationals on the other. ³⁹

Furthermore, the Court apparently assumes that the posted workers return to their country of origin or residence once their task has been completed. But what if this is not the case, for instance as with third-country nationals who are repeatedly posted from a certain Member State to other Member States and actually never return to the sending Member State?

Additionally, according to the Court, the host Member State can verify through a declaration from the employer that the workers concerned comply with all requirements in the Member State where they are employed by that employer, in particular with regard to residence, work permit and social security. Such a declaration must ensure that those workers are in a lawful situation and that they exercise their main activity in the Member State where the service provider is established. It is unclear, however, how far this burden of proof extends for the employer. One could deduce that the posting employer must definitely demonstrate that he has a valid work permit in the receiving Member State, which also enables the posted worker to resume his so-called main activity in the sending Member State after the posting. Therefore, this permit should cover a period longer than the expected duration of the posting. The same applies to the residence permit. It is not clear, though, whether all types of work or residence permits are sufficient for this. Some sending Member States allow some categories of third-country nationals to enter their labour market on the basis of bilateral agreements with the home state of the workers, without requiring a specific kind of work permit. And what about, for instance, third-country nationals who have a permit in the sending Member State as a seasonal worker, au pair, asylum seeker or student, or a third-country national with only a visa for temporary stay in that Member State?

The information on the position of the posted worker in the sending Member State could be included in the posting declaration that Member States may require on the basis of Article 9 of the Enforcement Directive 2014/67. ⁴⁰ As far as social security is concerned, the A1 declaration demonstrates that the posted worker is subject to the social security of the sending Member State. The body issuing the document is obliged to assess the relevant facts correctly and must guarantee the accuracy of the data that have been entered. Yet the receiving Member State may dispute this assessment via a dialogue and conciliation procedure or even before courts. ⁴¹

In any case, if it turns out that these conditions are not met, the posting will not be valid. This means that the employment of the third-country worker concerned in the so-called host Member State will be subject to the conditions regarding access to the labour market in that Member State, as well as to the labour law and social security law of that Member State. The employer risks sanctions for employing third-country nationals without having the necessary permit to that end. ⁴² The employee in question risks being convicted for illegal employment and residence and being deported from the country. ⁴³

5. Need for legislation

The sometimes very different application of the so-called Vander Elst case law between Member States within the context of the rapidly increasing phenomenon of posting of third-country nationals within the EEA, and the increasingly frequent reports of abuse and social exploitation of these vulnerable workers, raise the question whether or not it is necessary for the European legislator to intervene and lay down in legislation the conditions under which these employees can be posted. The case law of the Court of Justice leaves many questions unanswered. Thus, it is necessary to tighten the conditions under which this can be done, as well as the monitoring of compliance.

The European Commission had already attempted this in 1999, with a proposal for a Directive on the posting of third-country nationals in the context of the freedom to provide services. ⁴⁴ The Commission proposed to introduce an ‘EC service provision card’ which would be issued by the Member State where the employer is established and which could be issued if the posted employee resided in that Member State in accordance with legislation and if this employee was insured against the risks of illness and accidents at work. The period of validity would be a maximum of 12 months in the case of regular and actual work for more than 12 months prior to the issue, or six months in the case of regular and actual work for more than six months. Recital 7 of the proposal specified that the worker concerned must have his main activity in the Member State where the provision of services was established. The card also had to contain details of the employer and the employee involved, the period of validity and the authority that would issue the card. The issuing Member State could not refuse to admit the posted worker back to its territory after the posting. The host Member State had to allow the entry and stay of a worker holding such a card and a valid identity card or passport. These Member States were not allowed to require any additional visas, residence permits, work permits or any equivalents. They would only be allowed to request prior notification of the posting, its duration and the services for which the person concerned was posted. If the total duration of the posting would exceed six months over a 12-month period, that Member State would have to issue a temporary residence permit in order to establish authorisation to stay. Deviations were possible for reasons of public order, public safety and public health.

The European Parliament and the Council of Ministers negotiated this proposal for several years, but the necessary majority for its approval was not reached. ⁴⁵ The main problems were the nature and duration of prior residence and employment in the sending Member State, the maximum duration of the validity of the card, the possibility for the host Member State to require a visa or residence permit, the limitation of the validity of the card to a prior determination of the service for which the posting was being made, the application of the Directive to posting by temporary employment agencies and the obligation for the sending Member State to readmit third-country workers after the posting. The European Commission withdrew the proposal in 2004. ⁴⁶

Twenty years later, however, the need to clarify the conditions under which third-country nationals can be posted within the EEA, and even to include them in a Directive, remains. ⁴⁷ There is, for instance, a need for more clarity regarding the nature and employment in the sending country on the basis of which a third-country national can be posted to another Member State. It can be deduced from the case law of the Court that this should concern employment that can be regarded as the main employment of these third-country nationals. In that case, temporary employment in the sending country solely for the purpose of posting to another Member State would not be accepted. The introduction of a period of prior employment could prevent this. The Court of Justice has also stated that such a posting may not be used to allow these employees to actually enter the labour market of the host Member State. In order to prevent this, more clarity is needed on how long such a posting should last and for which activities. The posting of third-country nationals by temporary work agencies might be excluded. In addition, there should be a clear regulation regarding the residence status of the posted third-country national in the sending Member State and the host Member State. The CJEU emphasised that this concerns employees who, after completion of their task, return to their country of origin or residence. This is only possible if they still have a right of residence there.

In addition to recording these conditions, it is important to establish how compliance can be monitored and determined, and by whom. The Commission's proposal mentions this as a task primarily for the sending Member State, which would have to check whether these conditions are met and then issue a document confirming this. The host Member State must then assume that these conditions are met. This implies that the issuing Member State actually does check compliance with those conditions. Experience with the A1 declarations, however, which confirm that the person concerned remains subject to the social security legislation of the sending country upon posting and that the conditions for this have been met, teaches us that the issuing Member State is not always strict with this control. ⁴⁸ Anyway, the document issued by the sending Member State should give the host Member State the possibility to check that the conditions for posting are met, and more specifically that the situation of the workers concerned is lawful, particularly in the light of the requirements of residence, work visas and social security cover in the Member State where that provider employs them. In addition, for postings longer than three months, the Court considered, in its recent judgment in Case C-540/22 (SN), the requirement by the host Member State to apply for a residence permit justified by the objective of increasing legal certainty for posted workers, of facilitating administrative checks, and by the need to check that the worker concerned does not represent a threat to public policy.

Finally, such a Directive could also include provisions that guarantee posted third-country nationals effectively obtaining the wage and employment conditions and social security rights to which they are entitled. Information about their rights plays an important role in this. In any case, the provisions in the Posting of Workers Directive 96/71/EC (more specifically, Articles 5 and 6) and the Enforcement Directive 2014/67/EC (in particular, Articles 11 and 12) relating to the enforceability of rights and the facilitation of complaints apply to them.

The legal position of these employees must also be considered should it turn out that the conditions for posting from another Member State are not met. In that case, they risk being considered as illegally employed and illegally staying third-country nationals in the host Member State, and not only the employer, but they too risk being sanctioned for this.

6. Conclusion

The posting of employees has been the subject of political and legal debate for decades. This is no less the case with the large increase in third-country nationals posted within the EEA, on the contrary. Through posting, particularly from Member States that readily grant work and residence permits to nationals of certain third countries, these workers in fact have access to the labour market of any other Member State and thus circumvent labour migration rules. The number of posted third-country workers in some Member States exceeds the number of third-country workers admitted by these Member States in the context of their labour migration policy from third countries. As a result, these Member States partly lose control over the number of third-country nationals present on their labour market, and the provision in Article 79(5) TFEU, on the basis of which Member States can determine themselves how many third-country nationals they admit to their labour market, is jeopardised. Furthermore, in practice these third-country workers appear to be in a vulnerable position, as a result of which their rights are not guaranteed, or they may even end up in an illegal situation. This can lead to a double segmentation of the labour market: first, between ‘classic’ migrant workers and posted workers, and second, between posted workers themselves, i.e., between workers who are nationals of a Member State and those who are third-country nationals. ⁴⁹

That is the reason why it is necessary to clarify the conditions under which such postings are possible, so the original objective of posting is respected, notably the temporary posting of workers from a Member State to whose labour market they structurally belong. This can be done by further clarifying the case law of the Court of Justice, with the recent judgment of 20 June 2024 being a first step. In addition, the conditions for posting third-country nationals could be further regulated in legislation, particularly in a Directive. As a priority, there should be clearer rules on the position of posted third-country nationals on the labour market of the sending country, to prevent these Member States from merely being used as an intermediate station in which to, in fact, organise labour migration from a third country. Stricter conditions must also be imposed on the residence status of these third-country nationals in the sending Member State, thus ensuring that they can effectively return to this Member State after the posting period. More generally, the regulations for posting of both Union citizens and third-country nationals should also include restrictions on or even the exclusion of posting by temporary work agencies, and a shortening of the maximum period of posting.