Posting of Workers : Enforcement, Compliance, and Reform

This article analyses the enforcement deficit plaguing the posting of workers. The rule subjecting posted workers to the social security system of their State of origin is enforced almost exclusively, but rather poorly, by that State. Because of its limited incentive and capacity to enforce the requirements for being posted, it often issues posting certificates without adequate verification. These rubber-stamped certificates bind the social security institutions and courts of the State of destination, thus hindering its enforcement machinery. The resulting gap in administrative enforcement enables employers to unilaterally choose the applicable social security legislation, quite possibly depriving their workers of the more generous social security protection of the State of destination while gaining an unfair competitive advantage over undertakings based there. Helpful though they may be, pending reforms of Regulation 883/2004 and Regulation 987/2009 are held back by an incomplete problem definition. Building on rationalist and managerial theories, I argue that the effectiveness of administrative enforcement depends on whether each posting requirement can be monitored by a State that is both willing and capable of doing so. The existing and envisaged allocation of administrative enforcement powers suffers from a misalignment between incentives, capacities and competences to monitor, which can be addressed by heightening incentives, by enhancing capacities, and by transferring competences to the State of destination

The emergence of a parallel system of social security coordination

The ECJ grants migrant citizens an increasingly wide access to the social security schemes of Member States lacking competence. This line of case-law is conceptualised as creating a parallel system of social security coordination. Its foundations lie in the doctrine of pre-emption and the case-law on Union citizenship, both of which remodel the constitutional relationship between the free movement provisions of the TFEU on the one hand, and, on the other, secondary EU legislation (in particular Regulations 1408/71 and 883/2004) and national law. The system adds a layer of social security protection for migrants under the legislation of Member States with which they have a privileged connection. As a corollary, it imposes additional duties upon these States, which until recently were entirely free of social security responsibilities. The uncertain position of the employer generates a tension between the freedom to provide services and the free movement of workers

Shopping for social security law in the EU

This article explores the extent to which EU law does and should enable undertakings to control which Member State’s contribution rate applies to them. By relying on posted workers, for example, undertakings can “shop” for the cheapest social security law, lowering their labour costs; this is, however, to the detriment of workers, competitors, and social security systems. The article seeks to determine when conflict rules excessively facilitate law shopping. It then discusses how legislators and courts can complicate law shopping by framing it as abuse, redesigning rules, interpreting them teleologically, and improving their enforcement

The legal status and rights of the family members of EU mobile workers

This report analyses the legal status and rights of the family members of EU mobile citizens in general and workers in particular. It describes the legal regime applicable to family members, whilst also highlighting some remaining issues. Since Directive 2004/38 has brought about a common regime for all EU mobile citizens, the authors refer generally to Union citizens unless they are examining regimes that are only applicable to workers (and self-employed persons). This approach also has the advantage of recognizing the economic reality of statuses that are no longer fixed as they were in the past. It should be noted that information and views set out in this report are those of the authors and do not necessarily reflect the official opinion of the European Commission. As announced in the 2020 Citizenship report, the Commission will issue in 2022 guidance on the right of free movement of EU citizens and their families. These guidelines should provide updated guidance for all interested parties, in particular EU citizens, and support the work of national authorities dealing with citizens’ rights, as well as courts and legal practitioners

Posted Workers, Judges and Smokescreens : Narrowing the Gap in Judicial Control

Posted workers may not generally challenge administrative decisions about which social security law applies to them in the courts of the state of destination. This lack of jurisdiction is all the more problematic as such decisions are regularly made without checking whether the conditions for being posted are actually fulfilled, and judicial protection in the state of origin is found wanting. These weaknesses in the administrative and judicial enforcement of the posting rule facilitate non-compliance, enabling employers to choose a relatively cheap social security system. Such social dumping affects workers, competitors and social security systems. Despite recent ECJ case law on fraud, all too often administrators bind judges rather than the other way around. This article proposes a rethinking of adjudicative jurisdiction

De Cuyper: platentektoniek in het Europa van de Burgers

The De Cuyper case stands at the crossroads between the European Citizenship provisions and the social security Regulations. Searching for a balance between these at times dissonant approaches, the Court reshaped the constitutional relationship between the free movement provisions of the TFEU, the social security Regulations and national social security law through the principle of proportionality. Thereby, it introduced a test which would reverberate across European social security law and other domains of EU internal market law. The Court's application thereof on the facts of the case is criticised on the grounds that it does not do justice to the atypical nature of the unemployment benefit at stake