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

Abstract

The posting of employees within the European Economic Area (EEA) has been the subject of political and legal discussion for years. Recently, this has been fuelled by the increase in posting within the EEA of employees from third countries. This article addresses the legal aspects of this kind of posting. It will show that the conditions under which third-country nationals can be posted within the EEA are not entirely clear. This is also true for the measures that Member States can take to control this form of posting. Therefore, this article argues in favour of a legislative initiative that specifies and clarifies these conditions. First, it briefly recalls the legal context of posting. It also provides some figures and discusses why these employees are particularly vulnerable. Next, this article examines the case law of the Court of Justice regarding the measures taken by Member States to control the posting of third-country nationals. It addresses the questions that have remained open following this case law. Finally, it elaborates on the idea of a legislative initiative and indicates what this could consist of.