If this is Europe. The indecent legal framework governing the posting of third-country nationals

Abstract

This article critically examines the European Union legal framework governing the posting of third-country nationals (TCNs) in the context of the cross-border provision of services. It argues that the case law of the Court of Justice of the European Union has consistently privileged the freedom to provide services over the protection of migrant workers. By distinguishing between in-employment mobility and mobility in search of employment, the Court has allowed undertakings established in one Member State to post lawfully resident TCNs to another Member State without requiring compliance with the host State’s residence permit regime, except in case of temporary agency work. The article analyses the evolution of the Court’s jurisprudence, culminating in the SN judgment, which partially departs from previous case law by accepting residence permit requirements for postings exceeding three months, primarily on grounds of public policy. However, this shift fails to address the fundamental weaknesses of the existing legal framework. In cases of unlawful posting, TCNs risk losing both their employment and their lawful migration status, making access to justice largely illusory and discouraging the reporting of labour exploitation. The article concludes that the current EU regime institutionalises the exploitation of posted TCNs and remains difficult to reconcile with the Union’s commitment to fundamental rights and effective judicial protection.