Drawing on research conducted by the authors in the frame of the POSTING.STAT research project, this article explores the legal fiction that posted workers do not, at any time, ‘gain access’ to the labour market of a host State where they are in fact (temporarily) working. Hence, it analyses following question: at what point and under which circumstances are posted workers considered as working in a given Member State? To do so, it considers the use of the concept of ‘labour market’ across the case law of the Court of Justice concerning posting workers, to identify the constitutive elements of the implicit definition adopted by the Court. This analysis is compared with economic/statistical assumptions applied when measuring employment in a country. From a statistical point of view, the labour market appears to be demarcated by the place of establishment of the employer, thus excluding work (i.e., services) carried out through non-established employers. Consequently, cross-border labour mobility through the freedom to provide services does not fall within these boundaries and means that posted workers are counted in the employment statistics of their Member State of origin. The approach to posted workers in the labour market of the host State is therefore not only a legal, but also a statistical/economic, fiction. Based on an empirical reality that shows a strong concentration of posted workers in certain sectors, Member States or regions, we argue that courts and legislators, and also national statistical offices, should reconsider this approach.
This article discusses challenges relating to the social security and employment status of highly mobile workers in the live performance sector. These are persons whose place of employment is not a particular Member State but Europe. As such, these challenges arise from their often-weak connection to a specific Member State. The article provides an overview of a number of problems that mobile artists and their employers encounter under the EU legal framework for posting of workers and social security coordination, and explores some possible solutions.
Keywords Highly mobile workers • Posting of workers • Live performance sector 1 From labour migration to (short-term) labour mobilityIn 2017 there were approximately 19 million EU/EFTA movers in the EU/EFTA, 1,2 including 14 million persons of working age (20-64 years) (Eurostat data). They made up 3.6% of the total population in the EU/EFTA and 4.5% of the total working age population in the EU/EFTA. Consequently, some scholars conclude that the
The European Union appears to be promoting at the same time both cross-national mobility of workers and an increased role for occupational pensions. There is, however, a potential tension between these two objectives because workers risk losing (some of) their pension rights under an occupational scheme as a consequence of their mobility. After long negotiations, the EU has addressed this issue through a minimum standards Directive. Shortly before the adoption of this Directive, the Court of Justice also delivered an important decision in the same field, in the case of Casteels v British Airways. By analysing the resulting legal framework for safeguarding pension rights under occupational schemes in the context of workers' mobility, we argue that the application of the case law developed by the Court of Justice in the field of free movement of workers has the potential to offer superior protection compared to the Directive. We also highlight the fact that the present legal framework seems to afford a much fuller protection to the intracompany cross-national mobility of workers employed by multinational companies, while also seemingly favouring mobility for highly specialised workers.
After sketching out the current legal framework for fundamental rights protected under EU law this article discusses the role of free movement law in delimiting the scope of application of EU fundamental rights, the balancing of fundamental rights and free movement, and finally the possible horizontal direct effect of EU fundamental rights on private economic actors, in particular employers, exercising their right of free movement.
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