Towards a clear EU framework for the posting of third-country nationals (TCNs): Ensuring genuine posting, legal certainty and fair competition

Key points

The EESC:

• highlights the particular vulnerability of posted third-country national (TCN) workers, which is exacerbated by problems linked to the interpretation and implementation of the existing legal framework and insufficient enforcement across Members States;
• calls for greater clarity on interpretation and implementation and more consistent application of the existing EU framework, including a clearer and more accessible guidance to the relevant case law, in order to ensure legal certainty, a level playing field and effective protection of workers as well as businesses;
• emphasises that the posting of TCNs must correspond to genuine cross-border service provision and may never grant access to the labour market of the receiving Member State or to place workers at the disposal of another undertaking;
• welcomes the recent political agreement on the revision of social security coordination regulations which requires three months of prior affiliation to the social security system of the sending Member State before posting. The agreement provides an important reference point for how to assess the link with the employment market of the sending Member State;
• underlines that a genuine posting presupposes a real and verifiable link between the worker and the labour market of the sending Member State, and calls for ensuring clear and operational criteria for assessing such a link, including elements such as effective employment, coverage by social security systems and, where applicable, compliance with taxation obligations and the existence of real economic activity in the sending Member State by the employer to avoid letterbox companies;
• highlights the growing role of intermediaries, recruitment chains and temporary work agencies in the posting of TCNs and calls for improved enforcement of the rules to ensure that such arrangements correspond to genuine service provision and are not abused to facilitate irregular migration and do not amount to the mere supply of labour, including through stricter application of criteria relating to substantial activities and the prevention of letterbox companies;
• stresses the importance of strengthening the role of the European Labour Authority, including by reinforcing its mandate and ensuring that it is equipped with adequate resources and better use of digital tools to detect and prevent abuse;
• welcomes the upcoming Fair Labour Mobility Package as an opportunity to further strengthen fair labour mobility, including through the development of the European Social Security Pass (ESSPASS) to support the digitalisation and cross-border verification of social security attestations, in particular PD A1 certificates;
• calls for improved access to information on rights and obligations, including through targeted information measures and cooperation with social partners as well as appropriate EU support, including funding and programmes, to ensure effective and accessible information and guidance for posted TCN workers, with the active involvement of the social partners, and for appropriate support measures to facilitate the effective exercise of these workers’ rights.