Study supporting the Monitoring of the Posting of Workers Directive 2018/957/EU and of the Enforcement Directive 2014/67/EU : the situation of temporary cross-border mobile workers and workers in subcontracting chains.
Date: 2024-04-26
Institutions: Directorate-General for Employment, Social Affairs and Inclusion
Subjects: application of the law, directive (EU), free movement of workers, frontier migration, frontier worker, labour law, labour mobility, labour shortage, single market, subcontracting, temporary employment

Study supporting the Monitoring of 
the Posting of Workers Directive 
2018/957/EU and of the Enforcement 
Directive 2014/67/EU 

The situation of temporary cross-border mobile workers and 
workers in subcontracting chains 

Monica Andriescu, Sophie Buckingham, Andrea Broughton (Ecorys), Frederic De Wispelaere, Lynn De Smedt  
(HIVA-KU Leuven), Oriana Gascon, Alexandra Ongono Pomme (Spark Legal and Policy Consulting), Eckhard 
Voss and Katrin Vitols (wmp consult) 

 
EUROPEAN COMMISSION 

Directorate-General for Employment, Social Affairs and Inclusion 
Directorate E — Labour Mobility and International Affairs 
Unit E.1 — Labour Mobility, Public Employment Services, ELA 

Contact: Secretariat EMPL E1 

E-mail:  Empl-E1-unit@ec.europa.eu  

European Commission 
B-1049 Brussels 

 
 
EUROPEAN COMMISSION  

Study supporting the Monitoring of 
the Posting of Workers Directive 
2018/957/EU and of the Enforcement 
Directive 2014/67/EU 
The situation of temporary cross-border mobile workers and 
workers in subcontracting chains 

Directorate-General for Employment, Social Affairs and Inclusion 

 
 
 
 
Manuscript completed in May 2023 

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Luxembourg: Publications Office of the European Union, 2024 

© European Union, 2024 

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PDF 

ISBN 978-92-68-14996-6 

doi:10.2767/531736 

KE-02-24-462-EN-N 

Please quote this report as: Ecorys, HIVA-KU Leuven, Spark Legal and Policy Consulting, and wmp consult (2023) Study 
supporting the Monitoring of the Posting of Workers Directive 2018/957/EU and of the Enforcement Directive 2014/67/EU – 
The situation of temporary cross-border mobile workers and workers in subcontracting chains, Directorate-General for 
Employment, Social Affairs and Inclusion. 

STUDY SUPPORTING THE MONITORING OF THE POSTING OF WORKERS DIRECTIVE  
2018/957/EU AND OF THE ENFORCEMENT DIRECTIVE 2014/67/EU  

Executive Summary 

The free movement of workers is one of the cornerstones of the European single market 
and  is  enshrined  in  the  European  Union  (EU)  Treaties.1  Intra-EU  labour  mobility 
enhances  economic  efficiency  by  enabling  the  allocation  of  labour  where  it  is  most 
needed, addressing the challenges of labour shortages and critical skills gaps, as well as 
supporting industries that require additional workforce during peak seasons. In this way, it 
helps  to  mitigate  demographic  challenges  such  as  ageing  populations,  thus  aiding  in 
sustaining vital sectors like healthcare and caregiving.  

This study provides key information about the prevalence, drivers and features of different 
types of temporary cross-border mobility across the EU within specific economic sectors, 
namely  construction,  live-in  care,  meat  processing,  agriculture  and  horticulture,  and  the 
hotel-tourism-catering  sector.  Its  key  focus  area  is  identifying  typically  problematic 
aspects  related  to  the  working  conditions  of  posted  workers  and  other  types  of 
temporary  cross-border  mobile  workers  (including,  for  example,  seasonal  workers). 
Crucially  therefore,  this  study  does  not  assess  how  well  temporary  cross-border  labour 
mobility functions in the EU in general, nor does it provide an assessment of the national 
implementation  of  EU  legislation.  Rather,  it  identifies  challenges  and  explores  potential 
additional measures to address these situations and improve the protection of temporary 
cross-border workers in the EU.  

The EU has engaged in policy actions related to the protection of the working conditions of 
temporary  cross-border  workers  for  many  years.  To  that  end,  the  Posting  of  Workers 
Directive (PWD) (Directive 96/71/EC, amended by Directive 2018/957/EU) as well as the 
Enforcement  Directive  (Directive  2014/67/EU)  aim  to  ensure  fair  working  conditions, 
protect  the  rights  of  workers  and  maintain  a  level  playing  field  for  businesses  operating 
across EU borders. The main objective of the PWD is to guarantee that workers temporarily 
posted by their employer to another EU member state are provided with a set of core labour 
rights  and  conditions  equivalent  to  those  applicable  in  the  host  country.  These  rights 
include,  among  others,  remuneration  with  all  its  mandatory  elements,  maximum  working 
periods, minimum rest periods, and health and safety regulations. The PWD also aims to 
prevent  social  dumping,  where  companies  exploit  wage  differentials  and  undercut  local 
labour  standards.  The  Enforcement  Directive  complements  the  PWD  by  introducing 
administrative requirements and control measures, increasing provision of information and 
enhancing cooperation between Member States to effectively enforce the rules and combat 
abuses related to the posting of workers.  

Whilst  acknowledging  the  strong  legal  basis  that  these  Directives  create  in  terms  of 
protecting workers’ rights and ensuring fair competition between companies in the single 
market,  differences  in  implementation  in  the  national  legal  frameworks,  their  application 
(i.e., the extent to which provisions are complied with), as well as their enforcement impacts 
the  extent  to  which  rights  and  working  conditions  are  guaranteed  to  posted  workers  in 
practice. The study aims to better understand these and, in this context, focuses on three 
key  situations:  i)  posted  workers in  subcontracting  chains,  ii) temporary  cross-border 
mobility  of  workers  involving  temporary  work  agencies  (posting  situations)  or  other 
labour  market  intermediaries  (non-posting  situations)  and  iii)  posted  third-country 
nationals (TCNs). 

1 European Union, Treaty on European Union (Consolidated Version), Article 3(2) available at: 

http://data.europa.eu/eli/treaty/teu_2012/oj, and European Union, Consolidated version of the Treaty on the Functioning 
of the European Union, Articles 45-48, available at: http://data.europa.eu/eli/treaty/tfeu_2012/oj.  

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In terms of methodology used, this study draws on an analysis of qualitative and quantitative 
information, gathered by way of desk research of available literature, legal research into 
EU and national measures and enforcement mechanisms, and quantitative analysis of 
available data, including from the prior declaration tools, Portable Documents A1 (PD A1), 
and labour inspections. In terms of primary data collection, expert stakeholder interviews 
and a consultation workshop were conducted.  

The legal research and analysis focused on the review of EU and national legal provisions 
and relevant case law applicable to protecting temporary cross-border mobile workers, of 
non-legislative measures relating to access to information, enhanced administrative cross-
border cooperation, prevention and monitoring measures, and of enforcement mechanisms 
related  to  the  identified  measures.  An  in-depth  analysis  was  conducted  in  nine  key 
sending  (Poland,  Spain,  Germany  and  Slovenia)  and  receiving  countries  (Germany, 
France, Belgium, the Netherlands, Luxembourg and Denmark). 

The analysis results in the identification of several sectors that are relevant for posting 
and  non-posting  situations:  construction,  road  freight  transport,  logistics,  long-term 
care/live-in  care,  hotel-tourism-catering,  meat  processing,  manufacturing  (e.g.,  metal 
industry, shipbuilding), industrial cleaning, agriculture and horticulture, live performance and 
aviation.  Considering  the  sectors  where  most  problematic  situations  are  typically 
encountered,  the research then  focused  on five key  sectors:  construction, live-in  care, 
meat processing, agriculture and horticulture, and the hotel-tourism-catering sector. 
Notwithstanding  the  significance  of  posting  in  road  freight  transport,  this  sector  was  not 
included in the in-depth analysis due to the very recent nature of legislative changes in the 
sector,2 whose impact could not be analysed in the timeline of this study. 

On the basis of the evidence gathered from the mapping of the in-depth country analysis 
and  the  sectoral  situation,  a  typology  of  problematic  or  potentially  problematic 
situations  involving  temporary  cross-border  mobility  was  developed.  The  analysis  is 
presented  in  the  report  in  the  form  of  eight  case  studies,  focusing  on:  1)  The  role  of 
temporary  work  agencies  and  labour  market  intermediaries  in  temporary  cross-border 
mobility: key legal and enforcement challenges, 2) Non-payment and underpayment in the 
case of temporary cross-border workers in posting and non-posting situations, 3) Seasonal 
workers  in  the  agriculture  sector,  4)  Bogus  self-employment  in  temporary  cross-border 
work,  5)  Posted  TCNs  in  the  construction  sector,  6)  Key types  of OSH-related  violations 
and  enforcement  challenges  in  temporary  cross-border  work,  7)  The  role  of  ‘letterbox 
companies’ in complex subcontracting chains involving posted and non-posted workers and 
enforcement challenges, and 8) Key challenges in the live-in care sector. Two additional 
case studies were developed about examples of promising practices in areas that are 
key  to  the  improvement  of  temporary  cross-border  workers’  protection:  cross-border 
cooperation  between  relevant  authorities  in  the  Member  States  in  enforcing  existing 
regulations, and the involvement of social partners. 

As  the  case  studies  allude  to,  the  most  common  problems  identified  in  the  study  are 
linked  to  non-payment  and  under-payment,  illegal  wage  deductions,  violations  of 
occupational safety and health regulations, poor accommodation, lack of statutory sick pay, 
missing health and social insurance coverage, and falsified working time documents (e.g., 
timesheets). They tend to occur in specific sectors, such as construction, agriculture and 
horticulture, road transport, live-in care and meat processing, which are price competitive 
and  affected  by  significant  labour  shortages.  They  are  recurrent  in  the  case  of  (long) 
subcontracting chains, which often involve the use of temporary work agencies and other 
labour intermediaries, as well as the posting of TCNs. 

2 New rules on posting of drivers in road transport (Directive 2020/1057), which were adopted in July 2020 as part of the 
Mobility Package, with Member States having until 2 February 2022 to adopt and publish the necessary measures.  
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The key factors that drive problematic situations (aside from the structural features of 
the analysed sectors), include: 

•  A highly complex set of regulations at national level and limited opportunities for 
employers  to  receive  clear  guidance  about  which  rules  apply  to  their  specific 
situation in a cross-border context. 

•  The  limited  control  and  enforcement  of  existing  regulations,  which  enable 
fraudulent behaviour and allow for such practices to go undetected or unsanctioned. 

•  The nature of the work itself, which in some cases is less visible than in others, 
and hence renders workers more vulnerable to rights violations. For example, live-
in care and work on isolated farms constrain opportunities for labour inspectorates 
to control the application of existing legislation.  

• 

Insufficient  information  exchange  and  cooperation  between  authorities  to 
ensure the enforcement of rules in a cross-border perspective. 

•  The prevalence of undeclared work (including partially declared or under-declared 

labour contracts, fully undeclared work, and bogus self-employment).  

The public debate on the working conditions of temporary cross-border mobile workers has 
been shaped by the focus on abusive situations detected by labour inspections, leading to 
a  potential  overestimation  of  the  scale  of  the  problem.  However,  limited  comparable 
statistical data hinders a systematic assessment of the extent to which existing rules and 
regulations are breached across sectors and for different types of temporary cross-border 
workers, also hampering the identification of non-compliant employers.  

to 

implement 

taken  actions 

While there are regulatory measures in place at EU and national levels, their enforcement 
depends  on  complex  implementation  processes.  As  the  legal  mapping  highlights, 
Member  States  have 
legislative,  non-legislative  and 
enforcement  measures at  national  level  with the  aim  of  improving  working  conditions  for 
posted  workers  and  other  temporary  cross-border  workers.  To  this  end,  Member  States 
have  transposed  the  PWD  and  Enforcement  Directive  into  national  law.  Differences  in 
implementation  among  Member  States  may  occur  due  to  a  ‘softer’  or  ‘stronger 
implementation  of  the  Directive.  It  may  also  concern  an  incorrect  implementation  of  the 
provisions, given that on 26 January 2023, the Commission sent reasoned opinions to 17 
Member States for failing to bring various national provisions in line with the Enforcement 
Directive.  The  key  challenge  in  ensuring  equal  protection  for  temporary  cross-border 
workers lies in the limited enforcement of existing legislation and the identification of 
non-compliant employers. National authorities, social partners, and NGOs play a crucial 
role  in  this  process.  Actions  to  enhance  enforcement  include  investment  to  increase  the 
number  and  effectiveness  of  labour  inspections,  improving  recovery  mechanisms,  and 
monitoring  and  evaluating  the  implementation  of  regulations.  Improved  data  collection 
mechanisms,  information  exchange,  cross-border  cooperation  and  coordination  among 
Member States are also vital for effective enforcement. 

The  study  finds  that  subcontracting  is  often  used  to  reduce  costs  and  increase  profits, 
leading to lower pay levels and poorer working conditions. The complexity of subcontracting 
chains, combined  with  the  presence  of  letterbox  companies that  evade  liability,  hampers 
transparency  and  accountability.  The  effectiveness  of  subcontracting  liability  rules 
depends on the scope that Member States have chosen to implement them at national 
level  and  their  enforcement.  Some  Member  States  have  extended  liability  beyond  the 
construction sector (applying a sector neutral approach) and others have put in place full 
chain  liability.  There  is  a  need  for  better  regulation,  implementation,  and  enforcement  at 
national  and  EU  levels  to  combat  fraudulent  subcontracting  practices  and  protect  cross-
border  workers.  Preventive,  deterrent,  and  protective  measures  should  be  implemented 
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proportionately  and  not  hinder  temporary  cross-border  mobility.  Suggestions  for  further 
action  include  imposing  full  chain  liability,  enhancing  checks  at  national  level  of  PD  A1 
certificates, improving awareness-raising and information strategies, and digitising business 
registers across the EU to create more transparency in the subcontracting chain.  

Indeed,  access  to  clear  and  transparent  information  is  fundamental  to  inform  not  only 
temporary cross-border workers about their rights, but also companies and labour market 
intermediaries  about  their  obligations.  As  shown  by  one  of  the  promising  practice  case 
studies, social partners can contribute significantly to this provision of information. The study 
finds that information is not always easily accessible, and national websites on posting vary 
in  terms  of  completeness  and  clarity.  It  is  recommended  that  Member  States,  with  EU 
support,  ensure  clear  and  multilingual  availability  of  information,  both  on  national 
websites and through other channels (e.g., information, guidance and support provided 
by social partners and NGOs). Efforts should be made to improve information flow, develop 
practical guides and tools (e.g., an EU remuneration calculator), and conduct sustained and 
targeted information and awareness raising campaigns.  

Temporary work agencies and labour market intermediaries play a dual role in facilitating 
worker-employer  relations  and  matching  supply  and  demand.  However,  this  study  has 
revealed problematic situations involving these actors which are prevalent in sectors that 
rely on a mobile or temporary workforce (e.g., construction, agriculture and service sectors). 
The  complexity  of  the  existing  regulations  involving  posted  agency  workers 
contributes  to  non-compliance  with  legislation.  For  example,  the  principle  of  equal 
treatment  foreseen  in  the  Temporary  Work  Agency  Directive3  and  the  PWD  is 
operationalised differently in practice between the Member States, as it is linked to national 
legislation and collective agreements, for example those relating to remuneration packages. 
Due to differences between remuneration packages across countries and employers, it can 
be difficult for temporary work agencies to determine what all the constituent elements of 
remuneration are. User undertakings should also inform the temporary work agencies they 
cooperate  with  to  post  workers  about  the  applicable  working  conditions  in  terms  of 
remuneration, however this process is not always straightforward. The user undertakings 
themselves may not be aware of the complex national legislation and collective agreements 
that apply to posted workers.  

Moreover, bogus self-employment, linked to these intermediaries in the live-in care sector, 
for example, hampers workers' rights and fair competition and undermines investment 
in  skills.  Due  to  the  grey  areas  that  exist  between  dependent  employment  and  self-
employment, labour inspectorates and enforcement bodies face limitations in dealing with 
fraudulent  activities  associated  with  bogus  self-employment.  Considerable  investment  in 
enhancing enforcement and monitoring capacities targeting temporary work agencies and 
other intermediaries at national level is thus needed, together with improved cross-border 
data exchanges and reporting mechanisms at national and EU levels. Strengthening legal 
and  administrative  actions,  better  engaging  social  partners  by  creating  cross-border 
sectoral  networks  that  can  systematically  support  the  work  of  labour  inspectorates  to 
enforce compliance and conducting further empirical studies about the role and importance 
of  temporary  work  agencies  (in  posting  situations)  and  also  other  labour  market 
intermediaries (in non-posting situations) are essential for addressing these challenges. 

Finally, it is worth noting that the number of posted TCNs is increasing rapidly, particularly 
in countries like Slovenia, Poland, Lithuania, Spain, and Portugal, as well as in sectors such 
as construction, road transport, live-in care, and agriculture. In all sectors, posted TCNs are 
more  vulnerable  to  abusive  employer  or  labour  market  intermediary  practices, 
including violations of working rights, underpayment, and precarious conditions compared 
to local workers and EU posted workers. Varying interpretations and applications of EU law 

3 Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work, 

available at: http://data.europa.eu/eli/dir/2008/104/oj.  

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among Member States complicate cross-border cooperation and enforcement. To address 
these issues, further actions should include better informing posted TCNs about their rights 
in a coordinated, consistent and accessible manner. Improving transnational cooperation 
among enforcement bodies, collecting more accurate data about the profile of posted TCNs, 
clarifying  posting  conditions,  and  evaluating  the  flexible  bilateral  agreements  and 
permissive  entry  regimes  in  some  Member  States  are  important  further  actions  to  be 
considered. 

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Synthèse 

La  libre  circulation  des  travailleurs  est  l'une  des  pierres  angulaires  du  marché  unique 
européen et est inscrite dans les traités de l'Union européenne (UE).4 La mobilité de la 
main-d'œuvre au sein de l'UE renforce l'efficacité économique en permettant d'affecter 
la  main-d'œuvre  là  où  elle  est  le  plus  nécessaire,  en  relevant  les  défis  posés  par  les 
pénuries de main-d'œuvre et les déficits de compétences critiques, ainsi qu'en soutenant 
les industries qui nécessitent des effectifs supplémentaires pendant les périodes de pointe. 
Elle  contribue  ainsi  à  atténuer  les  défis  démographiques  tels  que  le  vieillissement  des 
populations, ce qui permet de soutenir des secteurs vitaux tels que les services de santé et 
la prestation de soins.  

Cette  étude  fournit  des  informations  clés  sur  la  prévalence,  les  moteurs  et  les 
caractéristiques des différents types de mobilité transfrontalière temporaire au sein de l'UE 
dans  des  secteurs  économiques  spécifiques,  à  savoir  la  construction,  les  soins  par  des 
prestataires logés à domicile, la transformation de la viande, l'agriculture et l'horticulture, et 
le secteur de l'hôtellerie, du tourisme et de la restauration. Son principal domaine d'action 
est  l'identification  des  aspects  problématiques  liés  aux  conditions  de  travail  des 
travailleurs  détachés  et  d'autres  types  de  travailleurs  mobiles  transfrontaliers 
temporaires (y compris, par exemple, les travailleurs saisonniers). Il est donc essentiel de 
noter  que  cette  étude  ne  fournit  pas  une  évaluation  du  fonctionnement  de  la  mobilité 
transfrontalière temporaire de la main-d'œuvre dans l'UE en général. Elle s’attache plutôt à 
identifier les défis et à explorer les mesures supplémentaires potentielles pour faire face à 
ces situations et améliorer la protection des travailleurs transfrontaliers temporaires au sein 
de l'UE.  

L'UE  met  en  œuvre  depuis  de  nombreuses  années  des  initiatives  politiques  liées  à  la 
protection des conditions de travail des travailleurs temporaires transfrontaliers. À cette fin, 
la  directive  sur  le  détachement  des  travailleurs  (directive  96/71/CE,  modifiée  par  la 
directive 2018/957/UE) ainsi que la directive d'exécution (directive 2014/67/UE) visent à 
garantir  des  conditions  de  travail  équitables,  à  protéger  les  droits  des  travailleurs  et  à 
maintenir des conditions de concurrence équitables pour les entreprises opérant dans les 
différents  pays  de  l'UE.  Le  principal  objectif  de  la  directive  sur  le  détachement  des 
travailleurs est de garantir que les travailleurs détachés temporairement par leur employeur 
dans un autre État membre de l'UE bénéficient d'un ensemble de droits et de conditions de 
travail fondamentaux équivalents à ceux qui sont applicables dans le pays d'accueil. Ces 
droits comprennent, entre autres, la rémunération avec tous ses éléments obligatoires, les 
périodes  de  travail  maximales,  les  périodes  de  repos  minimales  et  les  règlements  en 
matière  de  santé  et  de  sécurité.  La  directive  sur  le  détachement  des  travailleurs  vise 
également à prévenir le dumping social, une pratique en vertu de laquelle les entreprises 
exploitent  les  écarts  de  salaire  et  ne  respectent  pas  les  normes  de  travail  locales.  La 
directive  d'exécution  complète  la  directive  sur  le  détachement  des  travailleurs  en 
introduisant des exigences administratives et des mesures de contrôle, en augmentant la 
fourniture  d'informations  et  en  renforçant  la  coopération  entre  les  États  membres  afin 
d'appliquer  efficacement  les  règles  et  de  lutter  contre  les  abus  liés  au  détachement  de 
travailleurs.  

Même  si  la  base  juridique  solide  que  ces  directives  créent  en  termes  de  protection  des 
droits des travailleurs et de garantie d'une concurrence loyale entre les entreprises au sein 
du marché unique est effectivement reconnue, les différences de mise en œuvre dans les 
cadres  juridiques  nationaux,  leur  application  (c'est-à-dire  la  mesure  dans  laquelle  les 

4 Union européenne, traité sur l'Union européenne (version consolidée), article 3, paragraphe 2, disponible à l'adresse 
suivante: http://data.europa.eu/eli/treaty/teu_2012/oj, et Union européenne, version consolidée du traité sur le 
fonctionnement de l'Union européenne, articles 45 à 48, disponible à l'adresse suivante: 
http://data.europa.eu/eli/treaty/tfeu_2012/oj.  

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dispositions sont respectées), ainsi que leur application ont une incidence dans la pratique 
sur  la  mesure  dans  laquelle  les  droits  et  les  conditions  de  travail  sont  garantis  aux 
travailleurs détachés. Dans ce contexte, l'étude se concentre sur trois situations clés : i) les 
travailleurs détachés dans les chaînes de sous-traitance, ii) la mobilité transfrontalière 
temporaire des travailleurs impliquant des agences de travail temporaire (situations de 
détachement)  ou  d’autres  intermédiaires  du  marché  du  travail  (situations  de  non-
détachement) et iii) les ressortissants de pays tiers (RPT) détachés. 

En  termes  de  méthodologie,  cette  étude  s'appuie  sur  une  analyse  d'informations 
qualitatives  et  quantitatives,  recueillies  par  le  biais  d'une  recherche  documentaire, 
d’études  juridiques  sur  les  mesures  européennes  et  nationales  et  les  mécanismes 
d'application, et d'une analyse quantitative des données disponibles, y compris les outils 
de déclaration préalable, les documents portables A1 (DP A1), et les inspections du travail. 
En ce qui concerne la collecte de données primaires, des entretiens avec des experts des 
parties prenantes et un atelier de consultation ont été organisés.  

Les recherches et les analyses juridiques ont porté sur l'examen des dispositions juridiques 
européennes et nationales et de la jurisprudence pertinente applicables à la protection des 
travailleurs mobiles transfrontaliers temporaires, des mesures non législatives relatives à 
l'accès  à  l'information,  au  renforcement  de  la  coopération  administrative  transfrontalière, 
aux mesures de prévention et de suivi, et des mécanismes d'application liés aux mesures 
identifiées. Une analyse approfondie a été menée dans neuf pays d’origine (Pologne, 
Espagne, Allemagne et Slovénie) et de destination (Allemagne, France, Belgique, Pays-
Bas, Luxembourg et Danemark). 

L'analyse  permet  d'identifier  plusieurs  secteurs  pertinents  pour  les  situations  de 
détachement et de non-détachement : la construction, le transport routier de marchandises, 
la  logistique,  les  soins  de  longue  durée/soins  à  domicile,  le  secteur  de  l'hôtellerie,  du 
tourisme et de la restauration, la transformation de la viande, l'industrie manufacturière (par 
exemple,  l'industrie  métallurgique,  la  construction  navale),  le  nettoyage  industriel, 
l'agriculture et l'horticulture, le spectacle vivant et l'aviation. Compte tenu des secteurs qui 
présentent  généralement  les  situations  les  plus  problématiques,  l’étude  s'est  ensuite 
concentrée  sur  cinq  secteurs  clés :  la  construction,  les  soins  à  domicile,  la 
transformation de la viande, l’agriculture et l'horticulture et le secteur de l’hôtellerie, 
du tourisme et de la restauration. Malgré l'importance du détachement dans le transport 
routier de marchandises, ce secteur n'a pas été inclus dans l'analyse approfondie en raison 
de la nature très récente des changements législatifs dans le secteur,5 dont l'impact n'a pas 
pu être analysé dans le cadre de cette étude. 

Une  typologie  des  situations  problématiques  ou  potentiellement  problématiques 
impliquant une mobilité transfrontalière temporaire a été élaborée sur la base des éléments 
recueillis  à  partir  de  la  cartographie  de  l'analyse  approfondie  des  pays  et  de  la  situation 
sectorielle. L'analyse est présentée dans le rapport sous la forme de huit études de cas 
portant sur: 1) Le rôle des agences de travail temporaire et des intermédiaires du marché 
du  travail  dans  la  mobilité  transfrontalière  temporaire :  les  principaux  défis  juridiques  et 
d'application,  2) le  non-paiement  et  le  sous-paiement  dans  le  cas  des  travailleurs 
transfrontaliers temporaires détachés et non détachés, 3) les travailleurs saisonniers dans 
le secteur agricole, 4) le faux travail indépendant dans le travail transfrontalier temporaire, 
5) les RPT détachés dans le secteur de la construction, 6) les principaux types de violations 
liées à la SST et les défis d'application dans le travail transfrontalier temporaire, 7) le rôle 
des  « sociétés  fictives »  dans  les  chaînes  de  sous-traitance  complexes  impliquant  des 
travailleurs  détachés  et non  détachés  et  les  défis  d'application,  et  8) les principaux  défis 
dans  le  secteur  des  soins  à  domicile.  Deux  études  de  cas  supplémentaires  ont  été 
élaborées sur des exemples de pratiques prometteuses dans des domaines essentiels 

5 De nouvelles règles sur le détachement des conducteurs dans le secteur du transport routier (directive 2020/1057), qui 

ont été adoptées en juillet 2020 dans le cadre du Paquet Mobilité, les États membres ayant jusqu'au 2 février 2022 pour 
adopter et publier les mesures nécessaires.  

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à l'amélioration de la protection des travailleurs transfrontaliers temporaires : la coopération 
transfrontalière entre les autorités compétentes des États membres dans l'application des 
réglementations existantes et l'implication des partenaires sociaux. 

Comme l'indiquent les études de cas, les problèmes les plus courants identifiés dans 
l'étude sont liés au non-paiement et au sous-paiement, aux déductions salariales illégales, 
aux  violations  des  réglementations  en  matière  de  sécurité  et  de  santé  au  travail,  aux 
mauvaises  conditions  de  logement,  à  l'absence  de  prestations  de  maladie  légales,  à 
l'absence de couverture d'assurance médicale et sociale et à la falsification des documents 
relatifs au temps de travail (par exemple, les fiches de temps). Ces problèmes ont tendance 
à  se  produire  dans  des  secteurs  spécifiques,  tels  que  la  construction,  l'agriculture  et 
l'horticulture, le transport routier, les soins à domicile et la transformation de la viande, qui 
sont compétitifs en termes de prix et affectés par d'importantes pénuries de main-d'œuvre. 
Ils  sont  récurrents  dans  le  cas  des  (longues)  chaînes  de  sous-traitance,  qui  impliquent 
souvent  le  recours  à  des  agences  de  travail  temporaire  et  à  d'autres  intermédiaires  du 
travail, ainsi que le détachement de RPT. 

Les  principaux  facteurs  à  l'origine  des  situations  problématiques  (outre  les 
caractéristiques structurelles des secteurs analysés) sont les suivants: 

•  Un  ensemble  très  complexe  de  réglementations  au  niveau  national  et  des 
possibilités limitées pour les employeurs d’obtenir des conseils clairs sur les règles 
qui s'appliquent à leur situation spécifique dans un contexte transfrontalier. 

•  Le  contrôle  et  l'application  limités  des  réglementations  existantes,  qui 
favorisent les comportements frauduleux et permettent que de telles pratiques ne 
puissent pas être détectées ou sanctionnées. 

•  La nature même du travail, qui dans certains cas est moins visible que dans 
d'autreset rend donc les travailleurs plus vulnérables aux violations des droits. Par 
exemple, les soins à domicile et le travail dans des exploitations agricoles isolées 
limitent les possibilités pour les inspections du travail de contrôler l'application de la 
législation existante.  

•  L’échange d'informations et la coopération entre les autorités sont insuffisants 

pour garantir l'application des règles dans une perspective transfrontalière. 

•  La  prévalence  du  travail  non  déclaré  (y  compris  les  contrats  de  travail 
partiellement déclarés ou sous-déclarés, le travail entièrement non déclaré et le faux 
travail indépendant).  

Le  débat  public  sur  les  conditions  de  travail  des  travailleurs  mobiles  transfrontaliers 
temporaires a été marqué par l'attention portée aux situations abusives détectées par les 
inspections  du  travail,  ce  qui  a  conduit  à  une  surestimation  potentielle  de  l'ampleur  du 
problème.  Toutefois,  le  manque  de  données  statistiques  comparables  empêche  une 
évaluation  systématique  de  la  mesure  dans  laquelle  les  règles  et  réglementations 
existantes  sont  enfreintes  dans  les  différents  secteurs  et  pour  les  différents  types  de 
travailleurs  transfrontaliers  temporaires,  ce  qui  entrave  également  l'identification  des 
employeurs qui ne respectent pas les règles.  

Bien que des mesures réglementaires soient en place aux niveaux européen et national, 
leur  application  dépend  de  processus  de  mise  en  œuvre  complexes.  Comme  le 
souligne la cartographie juridique, les États membres ont pris des mesures législatives, non 
législatives et d'exécution au niveau national dans le but d'améliorer les conditions de travail 
des travailleurs détachés et des autres travailleurs transfrontaliers temporaires. À cette fin, 
les  États  membres  ont  transposé  la  directive  sur  le  détachement  des  travailleurs  et  la 

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directive d’exécution dans leur législation nationale. Les différences de mise en œuvre entre 
les États membres peuvent être dues à une application plus ou moins stricte de la directive. 
Cela pourrait également être dû à une application incorrecte des dispositions, sachant que 
le  26 janvier  2023,  la  Commission  a  envoyé  des  avis  motivés  à  17  États membres  pour 
avoir  omis  de  mettre  différentes  dispositions  nationales  en  conformité  avec  la  directive 
d'exécution. Le principal défi à relever pour garantir l'égalité de la protection des travailleurs 
transfrontaliers temporaires réside dans l’application limitée de la législation existante 
et  dans  l'identification  des  employeurs  qui  ne  la  respectent  pas.  Les  autorités 
nationales, les partenaires sociaux et les ONG jouent un rôle crucial dans ce processus. 
Les  mesures  visant  à  renforcer 
législation  comprennent  des 
l'application  de 
investissements destinés à augmenter le nombre et l'efficacité des inspections du travail, à 
améliorer les mécanismes de recouvrement, ainsi qu'à contrôler et évaluer l’application des 
réglementations.  L'amélioration  des  mécanismes  de  collecte  de  données,  l'échange 
d'informations,  la  coopération  transfrontalière  et  la  coordination  entre  les États  membres 
sont également essentiels pour une application efficace de la législation. 

la 

L'étude  constate  que  la  sous-traitance  est  souvent  utilisée  pour  réduire  les  coûts  et 
augmenter les bénéfices, ce qui entraîne une baisse des salaires et une dégradation des 
conditions de travail. La complexité des chaînes de sous-traitance, combinée à la présence 
de  sociétés  fictives  qui  échappent  à  toute  responsabilité,  nuit  à  la  transparence  et  à  la 
responsabilisation.  L’efficacité  des  règles  de  responsabilité  en  matière  de  sous-
traitance dépend du champ d'application que les États membres ont choisi de leur 
assigner au niveau national. Certains États membres ont étendu la responsabilité au-delà 
du secteur de la construction (en appliquant une approche sectorielle neutre) et d'autres 
ont  mis  en  place  une  responsabilité  totale  de  la  chaîne.  Il  est  nécessaire  d'améliorer  la 
réglementation, la mise en œuvre et l'application aux niveaux national et européen afin de 
lutter  contre  les  pratiques  frauduleuses  de  sous-traitance  et  de  protéger  les  travailleurs 
transfrontaliers.  Les  mesures  de  prévention,  de  dissuasion  et  de  protection  doivent  être 
mises en œuvre de manière proportionnée et ne pas entraver la mobilité transfrontalière 
temporaire.  Parmi  les  suggestions  relatives  à  des  actions  futures,  nous  pouvons  citer 
l'imposition  d'une  responsabilité  totale  de  la  chaîne,  le  renforcement  des  contrôles  au 
niveau  national  des  certificats  PD A1,  l'amélioration  des  stratégies  de  sensibilisation  et 
d'information et la numérisation des registres des entreprises dans l’ensemble de l'UE pour 
renforcer la transparence dans la chaîne de sous-traitance.  

En effet, l'accès à des informations claires et transparentes est fondamental pour informer 
non seulement les travailleurs transfrontaliers temporaires de leurs droits, mais aussi les 
entreprises  et  les  intermédiaires  du  marché  du  travail  de  leurs  obligations.  Comme  le 
montre  l'une  des  études  de  cas  sur  les  pratiques  prometteuses,  les  partenaires  sociaux 
peuvent contribuer de manière significative à la fourniture d'informations. L'étude constate 
que  les  informations  ne  sont  pas  toujours  facilement  accessibles  et  que  les  sites  Web 
nationaux sur le détachement des travailleurs varient en termes d'exhaustivité et de clarté. 
Il  est  recommandé  que  les  États  membres,  avec  le  soutien  de  l'UE,  garantissent  la 
disponibilité  d'informations  claires  et  multilingues,  à  la  fois  sur  les  sites  Web 
nationaux et par le biais d'autres canaux (par exemple, les informations, les conseils et 
le soutien fournis par les partenaires sociaux et les ONG). Des efforts devraient être faits 
pour  améliorer  le  flux  d'informations,  élaborer  des  guides  et  des  outils  pratiques  (par 
exemple, un calculateur de rémunération de l'UE) et mener des campagnes d'information 
et de sensibilisation soutenues et ciblées.  

Les  agences  de  travail  temporaire  et  les  intermédiaires  du  marché  du  travail  jouent  un 
double rôle en facilitant les relations entre les travailleurs et les employeurs et en adaptant 
l'offre  à  la  demande.  Toutefois,  cette  étude  a  révélé  des  situations  problématiques 
impliquant  ces  acteurs, qui  sont  courantes  dans  les  secteurs  qui  dépendent  d'une main-
d'œuvre mobile ou temporaire (par exemple, les secteurs de la construction, de l'agriculture 
et  des  services).  La  complexité  des  réglementations  existantes  concernant  les 
travailleurs  intérimaires  détachés  contribue  au  non-respect  de  la  législation.  Par 

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exemple, le principe de l'égalité de traitement prévu dans la directive sur les agences de 
travail temporaire 6 et dans la directive sur le détachement des travailleurs est mis en œuvre 
différemment dans la pratique entre les États membres, car il est lié à la législation nationale 
et  aux  conventions  collectives,  notamment  celles  qui  concernent  aux  rémunérations.  En 
raison des différences de rémunération entre les pays et les employeurs, il peut être difficile 
pour  les  agences  de  travail  intérimaire  de  déterminer  quels  sont  tous  les  éléments 
constitutifs de la rémunération. Les entreprises utilisatrices doivent également informer les 
agences  de  travail  temporaire  avec  lesquelles  elles  coopèrent  pour  détacher  des 
travailleurs  des  conditions  de  travail  applicables  en  termes  de  rémunération,  mais  ce 
processus n'est pas toujours simple. Les entreprises utilisatrices elles-mêmes peuvent ne 
pas  connaître  la  complexité  de  la  législation  nationale  et  des  conventions  collectives  qui 
s'appliquent aux travailleurs détachés.  

En outre, le faux travail indépendant, lié à ces intermédiaires dans le secteur des soins à 
domicile, par exemple, entrave les droits des travailleurs et la concurrence loyale et 
compromet l'investissement dans les compétences. En raison des zones grises qui existent 
entre le travail salarié et le travail indépendant, les inspections du travail et les organismes 
de  contrôle  sont  confrontés  à  des  limitations  lorsqu'il  s'agit  de  lutter  contre  les  activités 
frauduleuses  liées  au  faux  travail  indépendant.  Des  investissements  considérables  sont 
donc nécessaires pour renforcer les capacités d'application et de contrôle des agences de 
travail temporaire et d'autres intermédiaires au niveau national, ainsi que pour améliorer les 
échanges  de  données  transfrontaliers  et  les  mécanismes  de  communication  de 
l’information aux niveaux national et européen. Pour relever ces défis, il est essentiel de 
renforcer  les  mesures  juridiques  et  administratives,  de  mieux  impliquer  les  partenaires 
transfrontaliers  capables  de  soutenir 
sociaux  en  créant  des  réseaux  sectoriels 
systématiquement le travail des inspections du travail pour faire respecter la législation et 
de  mener  d'autres  études  empiriques  sur  le  rôle  et  l'importance  des  agences  de  travail 
temporaire (dans les situations de détachement) et d'autres intermédiaires du marché du 
travail (dans les situations de non-détachement). 

Enfin,  il  convient  de  noter  que  le  nombre  de  RPT  détachés  augmente  rapidement,  en 
particulier  dans  des  pays  comme  la  Slovénie,  la  Pologne,  la  Lituanie,  l'Espagne  et  le 
Portugal, ainsi que dans des secteurs tels que la construction, le transport routier, les soins 
à  domicile  et  l'agriculture.  Dans  tous  les  secteurs,  les  RPT  détachés  sont  plus 
vulnérables  aux  pratiques  abusives  des  employeurs  ou  des  intermédiaires  du 
marché du travail, notamment aux violations des droits du travail, aux sous-paiements et 
aux conditions précaires, que les travailleurs locaux et les travailleurs détachés de l'UE. Les 
différences d'interprétation et d'application du droit communautaire entre les États membres 
compliquent la coopération et l'application transfrontalières. Pour résoudre ces problèmes, 
d'autres  actions  devraient  inclure  une  meilleure  information  des  RPT  détachés  sur  leurs 
droits d’une manière coordonnée, cohérente et accessible. L'amélioration de la coopération 
transnationale entre les organismes d’application, la collecte de données plus précises sur 
le  profil  des  RPT  détachés,  la  clarification  des  conditions  de  détachement  et  l'évaluation 
des  accords  bilatéraux  flexibles  et  des  régimes  d'entrée  permissifs  dans  certains  États 
membres sont autant de mesures supplémentaires importantes à adopter. 

6 Directive 2008/104/CE du Parlement européen et du Conseil du 19 novembre 2008 relative au travail intérimaire, 

disponible à l'adresse : http://data.europa.eu/eli/dir/2008/104/oj.  

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Zusammenfassung 

Die  Freizügigkeit  der  Arbeitnehmer 
ist  einer  der  Eckpfeiler  des  europäischen 
Binnenmarktes  und  in  den  Verträgen  der  Europäischen  Union  (EU)  verankert.7  Die  EU-
interne  Arbeitskräftemobilität  steigert  die  wirtschaftliche  Effizienz,  indem  sie  den 
Einsatz von Arbeitskräften dort ermöglicht, wo sie am dringendsten benötigt werden, sich 
den Herausforderungen des Arbeitskräftemangels und kritischer Qualifikationsdefizite stellt 
und  Industrien  unterstützt,  die  während  der  Hochsaison  zusätzliche  Arbeitskräfte 
benötigen. Auf diese Weise trägt sie dazu bei, demografische Herausforderungen wie die 
Überalterung  der  Bevölkerung  abzufedern  und  dadurch  wichtige  Sektoren  wie  das 
Gesundheitswesen und die Pflege zu erhalten.  

Diese  Studie  liefert  wichtige  Informationen  über  die  Verbreitung,  treibenden  Kräfte  und 
Merkmale der verschiedenen Arten von vorübergehender grenzüberschreitender Mobilität 
in der EU in bestimmten Wirtschaftssektoren, und zwar im Baugewerbe, in der häuslichen 
Pflege, in der Fleischverarbeitung, in der Landwirtschaft und im Gartenbau sowie im Hotel-
,  Tourismus-  und  Gastronomiegewerbe.  Das  Hauptaugenmerk  liegt  dabei  auf  der 
Identifizierung  typischer  problematischer  Aspekte  im  Zusammenhang  mit  den 
Arbeitsbedingungen  von  entsandten  Arbeitnehmern  und  anderen  Arten  von 
vorübergehend  grenzüberschreitend  tätigen  Arbeitnehmern  (einschließlich  z.  B. 
Saisonarbeitern). Entscheidend ist daher, dass in dieser Studie nicht bewertet wird, wie gut 
die  vorübergehende  grenzüberschreitende  Mobilität  von  Arbeitskräften  in  der  EU  im 
Allgemeinen  funktioniert.  Vielmehr  werden  Herausforderungen  aufgezeigt  und  mögliche 
zusätzliche Maßnahmen untersucht, um diesen Situationen zu begegnen und den Schutz 
von vorübergehend grenzüberschreitend tätigen Arbeitnehmern in der EU zu verbessern.  

Die EU führt seit vielen Jahren politische Maßnahmen zum Schutz der Arbeitsbedingungen 
von vorübergehend grenzüberschreitend tätigen Arbeitnehmern durch. Zu diesem Zweck 
zielen  die  Entsenderichtlinie  (Richtlinie  96/71/EG,  geändert  durch  die  Richtlinie 
2018/957/EU) sowie die Durchsetzungsrichtlinie (Richtlinie 2014/67/EU) darauf ab, faire 
Arbeitsbedingungen  zu  gewährleisten,  die  Rechte  der  Arbeitnehmer  zu  schützen  und 
gleiche Wettbewerbsbedingungen für Unternehmen zu schaffen, die grenzüberschreitend 
in  der  EU  tätig  sind.  Das  Hauptziel  der  Entsenderichtlinie  besteht  darin,  sicherzustellen, 
dass  Arbeitnehmer,  die  von  ihrem  Arbeitgeber  vorübergehend  in  einen  anderen  EU-
Mitgliedstaat 
und 
Arbeitsbedingungen  treffen,  die  denen  des  Gastlandes  entsprechen.  Zu  diesen  Rechten 
gehören  u.  a.  ein  Arbeitsentgelt  mit  all  seinen  obligatorischen  Bestandteilen,  die 
Höchstarbeitszeit, die Mindestruhezeiten und Vorschriften zu Gesundheit und Sicherheit. 
Die  Entsenderichtlinie  zielt  auch  darauf  ab,  Sozialdumping  zu  verhindern,  bei  dem 
Unternehmen  Lohnunterschiede  ausnutzen  und  lokale  Arbeitsnormen  umgehen.  Die 
Durchsetzungsrichtlinie  ergänzt  die  Entsenderichtlinie  durch  die  Einführung  von 
Verwaltungsvorschriften  und  Kontrollmaßnahmen,  die  verstärkte  Bereitstellung  von 
Informationen und die Verbesserung der Zusammenarbeit zwischen den Mitgliedstaaten, 
um die Vorschriften wirksam durchzusetzen und Missbräuche im Zusammenhang mit der 
Entsendung von Arbeitnehmern zu bekämpfen.  

grundlegende  Arbeitnehmerrechte 

entsandt  werden, 

auf 

Auch wenn die solide Rechtsgrundlage anerkannt wird, die diese Richtlinien zum Schutz 
der Arbeitnehmerrechte und zur Gewährleistung eines fairen Wettbewerbs zwischen den 
Unternehmen im Binnenmarkt schaffen, wirken sich die Unterschiede bei der Umsetzung 
in  den  nationalen  Rechtsrahmen,  ihrer  Anwendung  (d.  h.  dem  Ausmaß,  in  dem  die 
Bestimmungen eingehalten werden) und ihrer Durchsetzung auf das Ausmaß aus, in dem 

7 Europäische Union, Vertrag über die Europäische Union (konsolidierte Fassung), Artikel 3 Absatz 2, verfügbar unter: 

https://eur-lex.europa.eu/eli/treaty/teu_2012/oj, und Europäische Union, konsolidierte Fassung des Vertrags über die 
Arbeitsweise der Europäischen Union, Artikel 45–48, verfügbar unter: https://eur-lex.europa.eu/eli/treaty/tfeu_2012/oj.  
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die Rechte und Arbeitsbedingungen für entsandte Arbeitnehmer in der Praxis gewährleistet 
sind. Die Studie zielt darauf ab, dies besser zu verstehen und, konzentriert sich in diesem 
Zusammenhang  auf  drei  zentrale  Situationen:  i)  entsandte  Arbeitnehmer  in  Unterver-
gabeketten, ii) vorübergehende grenzüberschreitende Mobilität von Arbeitnehmern unter 
Beteiligung von Zeitarbeitsfirmen (Entsendungssituationen) oder anderen Arbeitsmarkt-
vermittlern (Nicht-Entsendungssituationen) und iii) entsandte Drittstaatsangehörige. 

Methodisch  stützt  sich  diese  Studie  auf  eine  Analyse  qualitativer  und  quantitativer 
Informationen,  die  durch  Literaturrecherche,  juristische  Recherche  zu  EU-  und 
nationalen  Maßnahmen  und  Durchsetzungsmechanismen  sowie  eine  quantitative 
Analyse verfügbarer Daten, u. a. aus den Instrumenten zur Voranmeldung, den Mobilen 
Dokumenten  A1  und  Arbeitsinspektionen,  gewonnen  wurden. 
Im  Rahmen  der 
Primärdatenerhebung  wurden  Interviews  mit  Experten  und  ein  Konsultationsworkshop 
durchgeführt.  

Die juristische Recherche und Analyse konzentrierte sich auf die Überprüfung der EU- und 
nationalen Rechtsvorschriften und der einschlägigen Rechtsprechung, die für den Schutz 
von vorübergehend grenzüberschreitend tätigen mobilen Arbeitnehmern gelten, der nicht 
legislativen  Maßnahmen  in  Bezug  auf  den  Zugang  zu  Informationen,  der  verstärkten 
grenzüberschreitenden 
und 
Überwachungsmaßnahmen  sowie  der  Durchsetzungsmechanismen  im  Zusammenhang 
mit  den  ermittelten  Maßnahmen.  Eine  eingehende  Analyse  wurde  in  neun  wichtigen 
Entsendeländern (Polen, Spanien, Deutschland und Slowenien) und Empfängerländern 
(Deutschland,  Frankreich,  Belgien,  Niederlande,  Luxemburg  und  Dänemark) 
durchgeführt. 

Zusammenarbeit, 

administrativen 

Präventions- 

(z.  B.  Metallindustrie,  Schiffbau), 

Die Analyse führt zur Identifizierung mehrerer Sektoren, die für Entsendungs- und Nicht-
Entsendungssituationen  relevant  sind:  Baugewerbe,  Straßengüterverkehr,  Logistik, 
Langzeitpflege/häusliche  Pflege,  Hotel-Tourismus-Gastronomie,  Fleischverarbeitung, 
Industriereinigung, 
verarbeitendes  Gewerbe 
Landwirtschaft  und  Gartenbau,  Live-Darbietungen  und  Luftfahrt.  In  Anbetracht  der 
Sektoren, in denen die meisten problematischen Situationen auftreten, konzentrierte sich 
fünf  zentrale  Sektoren:  Baugewerbe,  häusliche  Pflege, 
die  Untersuchung  auf 
Fleischverarbeitung,  Landwirtschaft  und  Gartenbau  sowie  Hotel-Tourismus-
Gastronomie. Ungeachtet der Bedeutung der Entsendung im Straßengüterverkehr wurde 
dieser Sektor nicht in die eingehende Analyse einbezogen, da in diesem Sektor erst kürzlich 
Gesetzesänderungen  vorgenommen  wurden,8  deren  Auswirkungen  im  Rahmen  dieser 
Studie nicht analysiert werden konnten. 

Auf  Grundlage  der  Erkenntnisse  aus  der  Bestandsaufnahme  der  eingehenden 
Länderanalyse und der sektoralen Situation wurde eine Typologie problematischer oder 
potenziell  problematischer  Situationen  im  Zusammenhang  mit  vorübergehender 
grenzüberschreitender Mobilität  entwickelt.  Die Analyse  wird  in  dem  Bericht  in  Form  von 
acht Fallstudien vorgestellt, die sich auf folgende Themen konzentrieren: 1) die Rolle von 
Zeitarbeitsfirmen  und  Arbeitsmarktvermittlern  bei  der  vorübergehenden  grenzüber-
schreitenden  Mobilität:  zentrale  Herausforderungen  in  Recht  und  Durchsetzung,  2) 
Nichtbezahlung und Unterbezahlung von entsandten und nicht entsandten vorübergehend 
grenzüberschreitend tätigen Arbeitnehmern, 3) Saisonarbeitskräfte in der Landwirtschaft, 
4)  Scheinselbstständigkeit  in  der  vorübergehenden  grenzüberschreitenden  Arbeit,  5) 
entsandte Drittstaatsangehörige im Baugewerbe, 6) die wichtigsten Arten von Verstößen 
im  Zusammenhang  mit  Gesundheit  und  Sicherheit  am  Arbeitsplatz  und  die 
Herausforderungen bei der Durchsetzung in der vorübergehenden grenzüberschreitenden 
Arbeit,  7)  die  Rolle  von  „Briefkastenfirmen“  in  komplexen  Untervergabeketten,  in  die 
entsandte und nicht entsandte Arbeitnehmer involviert sind, und die Herausforderungen bei 

8 Neue Regelungen für die Entsendung von Kraftfahrern im Straßenverkehr (Richtlinie 2020/1057), die im Juli 2020 als Teil 

des Mobilitätspakets verabschiedet wurden, wobei die Mitgliedstaaten bis zum 2. Februar 2022 Zeit hatten, die 
erforderlichen Maßnahmen zu ergreifen und zu veröffentlichen.  

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der  Durchsetzung  und  8)  die  wichtigsten  Herausforderungen  im  Bereich  der  häuslichen 
Pflege. In zwei weiteren Fallstudien wurden Beispiele für vielversprechende Praktiken 
in  Bereichen  aufgezeigt,  die  für  die  Verbesserung  des  Schutzes  von  vorübergehend 
grenzüberschreitend 
tätigen  Arbeitnehmern  von  zentraler  Bedeutung  sind:  die 
grenzüberschreitende  Zusammenarbeit  zwischen  den  zuständigen  Behörden  in  den 
Mitgliedstaaten bei der Durchsetzung der bestehenden Regelungen und die Einbeziehung 
der Sozialpartner. 

Wie in den Fallstudien angedeutet, stehen die am häufigsten festgestellten Probleme im 
Zusammenhang mit Nicht- und Unterbezahlung, illegalen Lohnabzügen, Verstößen gegen 
Bestimmungen der Gesundheit und Sicherheit am Arbeitsplatz, schlechter Unterbringung, 
fehlender  gesetzlicher  Lohnfortzahlung  im  Krankheitsfall,  fehlendem  Kranken-  und 
Sozialversicherungsschutz und gefälschten Arbeitszeitunterlagen (z. B. Stundenzettel). Sie 
treten  in  der  Regel  in  bestimmten  Sektoren  auf,  wie  z.  B.  im  Baugewerbe,  in  der 
Landwirtschaft und im Gartenbau, im Straßenverkehr, in der häuslichen Pflege und in der 
Fleischverarbeitung, die preislich umkämpft sind und in denen ein erheblicher Mangel an 
Arbeitskräften herrscht. Sie treten immer wieder bei (langen) Untervergabeketten auf, die 
häufig  den  Einsatz  von  Zeitarbeitsfirmen  und  anderen  Arbeitsvermittlern  sowie  die 
Entsendung von Drittstaatsangehörigen beinhalten. 

Zu  den  zentralen  Faktoren,  die  für  problematische  Situationen  verantwortlich  sind 
(abgesehen von den strukturellen Merkmalen der analysierten Sektoren) gehören: 

•  Ein  sehr  komplexes  Regelwerk  auf  nationaler  Ebene  und  begrenzte 
Möglichkeiten für Arbeitgeber, klare Hinweise darauf zu erhalten, welche Regeln für 
ihre spezifische Situation in einem grenzüberschreitenden Kontext gelten. 

•  Die eingeschränkte Kontrolle und Durchsetzung bestehender Vorschriften, die 
betrügerisches  Verhalten  ermöglichen  und  dazu  führen,  dass  solche  Praktiken 
unentdeckt bleiben oder nicht sanktioniert werden. 

•  Die  Art  der  Arbeit  selbst,  die  in  einigen  Fällen  weniger  sichtbar  ist  als  in 
anderen und die Arbeitnehmer daher anfälliger für Rechtsverletzungen macht. So 
schränken  beispielsweise  die  häusliche  Pflege  und  die  Arbeit  in  abgelegenen 
Betrieben  die  Möglichkeiten  der  Arbeitsaufsichtsbehörden  ein,  die  Anwendung 
bestehender Rechtsvorschriften zu kontrollieren.  

•  Unzureichender Informationsaustausch und unzureichende Zusammenarbeit 
in  einer 

zwischen  den  Behörden,  um  die  Durchsetzung  der  Vorschriften 
grenzüberschreitenden Situation zu gewährleisten. 

•  Das Ausmaß von nicht angemeldeter Erwerbstätigkeit (einschließlich teilweise 
gemeldeter oder nicht gemeldeter Arbeitsverträge, vollständig nicht angemeldeter 
Arbeit und Scheinselbstständigkeit).  

über 

öffentliche  Debatte 

die  Arbeitsbedingungen 

Die 
vorübergehend 
grenzüberschreitend tätigen Arbeitnehmern ist von der Konzentration auf missbräuchliche 
Situationen  geprägt,  die  von  Arbeitsinspektionen  aufgedeckt  wurden.  Dies  führt  zu  einer 
möglichen Überschätzung des Ausmaßes des Problems. Die begrenzten vergleichbaren 
statistischen Daten erschweren allerdings eine systematische Bewertung des Ausmaßes, 
in  dem  gegen  die  bestehenden  Vorschriften  und  Regelungen  in  den  verschiedenen 
Sektoren und für die verschiedenen Arten von vorübergehend grenzüberschreitend tätigen 
Arbeitnehmern verstoßen wird, sowie die Ermittlung von Arbeitgebern, die die Vorschriften 
nicht einhalten.  

von 

Zwar  gibt  es  auf  EU-  und  nationaler  Ebene  Regulierungsmaßnahmen,  doch  ihre 
Durchsetzung  hängt  von  komplexen  Umsetzungsprozessen  ab.  Wie  die  rechtliche 

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Bestandsaufnahme zeigt, haben die Mitgliedstaaten Schritte unternommen, um legislative 
und nicht legislative Maßnahmen sowie Maßnahmen zur Durchsetzung der Vorschriften auf 
nationaler  Ebene  umzusetzen.  Ihr  Ziel  ist  es,  die  Arbeitsbedingungen  für  entsandte 
Arbeitnehmer  und  andere  vorübergehend  grenzüberschreitend  tätige  Arbeitnehmer  zu 
verbessern.  Zu  diesem  Zweck  haben  die  Mitgliedstaaten  die  Entsenderichtlinie  und  die 
Durchsetzungsrichtlinie  in  nationales  Recht  überführt.  Unterschiede  in  der  Umsetzung 
zwischen den Mitgliedstaaten können auf eine „strenge“ oder „weniger strenge“ Umsetzung 
der Richtlinie zurückzuführen sein. Auch könnte eine nicht ordnungsgemäße Umsetzung 
der  Bestimmungen  in  Betracht  kommen,  da  die  Kommission  am  26. Januar  2023  mit 
Gründen versehene Stellungnahmen an 17 Mitgliedstaaten gerichtet hat, die es versäumt 
haben, verschiedene nationale Bestimmungen mit der Durchsetzungsrichtlinie in Einklang 
zu bringen. Die größte Herausforderung bei der Gewährleistung des gleichen Schutzes für 
vorübergehend  grenzüberschreitend 
in  der  begrenzten 
Durchsetzung  der  bestehenden  Rechtsvorschriften  und  der  Ermittlung  von 
Arbeitgebern, die die Vorschriften nicht einhalten. Nationale Behörden, Sozialpartner 
und NGOs spielen in diesem Prozess eine entscheidende Rolle. Zu den Maßnahmen zur 
Verbesserung der Durchsetzung gehören Investitionen, um die Anzahl und Wirksamkeit der 
Arbeitsinspektionen zu erhöhen, die Mechanismen zur Geltendmachung zu verbessern und 
die  Umsetzung  der  Vorschriften  zu  überwachen  und  zu  bewerten.  Verbesserte  Daten-
erhebungsmechanismen,  Informationsaustausch,  grenzüberschreitende  Zusammenarbeit 
und  Koordinierung  zwischen  den  Mitgliedstaaten  sind  ebenfalls  von  entscheidender 
Bedeutung für eine effiziente Durchsetzung. 

tätige  Arbeitnehmer 

liegt 

Der Studie zufolge dient die Vergabe von Unteraufträgen häufig dazu, die Kosten zu senken 
und  die  Gewinne  zu  steigern,  was  zu  einem  niedrigeren  Lohnniveau  und  schlechteren 
Arbeitsbedingungen führt. Die Komplexität der Untervergabeketten in Verbindung mit der 
Existenz von Briefkastenfirmen, die sich der Haftung entziehen, erschwert die Transparenz 
und  die  Rechenschaftspflicht.  Die  Wirksamkeit  der  Haftungsvorschriften  für  die 
Vergabe von Unteraufträgen hängt davon ab, in welchem Umfang die Mitgliedstaaten 
sie auf nationaler Ebene umsetzen. Einige Mitgliedstaaten haben die Haftung über den 
Bausektor hinaus ausgedehnt (sektorneutraler Ansatz), andere wiederum eine vollständige 
Kettenhaftung  eingeführt.  Es  bedarf  einer  besseren  Regulierung,  Umsetzung  und 
Durchsetzung auf nationaler und EU-Ebene, um betrügerische Praktiken bei der Vergabe 
von  Unteraufträgen  zu  bekämpfen  und  grenzüberschreitend  tätige  Arbeitnehmer  zu 
schützen.  Vorbeugende,  abschreckende  und  schützende  Maßnahmen  sollten 
in 
angemessener Weise durchgeführt werden und die vorübergehende grenzüberschreitende 
Mobilität  nicht  behindern.  Zu  den  Vorschlägen  für  weitere  Maßnahmen  gehören  die 
Auferlegung  der  vollständigen  Kettenhaftung,  die  Verstärkung  der  Kontrollen  von 
Bescheinigungen  (Mobile  Dokumente  A1)  auf  nationaler  Ebene,  die  Verbesserung  von 
Sensibilisierungs- 
von 
in  der 
Unternehmensregistern 
Untervergabekette zu schaffen.  

in  der  gesamten  EU,  um  mehr  Transparenz 

Informationsstrategien 

die  Digitalisierung 

sowie 

und 

Der  Zugang  zu  klaren  und  transparenten  Informationen  ist  in  der  Tat  von  grundlegender 
Bedeutung, um nicht nur vorübergehend grenzüberschreitend tätige Arbeitnehmer über ihre 
Rechte,  sondern  auch  Unternehmen  und  Arbeitsmarktvermittler  über  ihre  Pflichten 
aufzuklären. Wie eine der vielversprechenden Fallstudien zeigt, können die Sozialpartner 
einen wichtigen Beitrag zu dieser Bereitstellung von Informationen leisten. Aus der Studie 
ergibt  sich,  dass  die  Informationen  nicht  immer  leicht  zugänglich  sind  und  dass  die 
nationalen  Websites  zur  Entsendung  in  puncto  Vollständigkeit  und  Klarheit  variieren.  Es 
wird empfohlen, dass die Mitgliedstaaten mit Unterstützung der EU sowohl auf nationalen 
Websites als auch über andere Kanäle eine klare und mehrsprachige Verfügbarkeit 
von Informationen gewährleisten (z. B. Informationen, Beratung und Unterstützung durch 
Sozialpartner  und  NGOs).  Es  sollten  Anstrengungen  unternommen  werden,  um  den 
Informationsfluss zu verbessern, praktische Leitfäden und Instrumente zu schaffen (z. B. 
einen  EU-Vergütungsrechner)  und  nachhaltige  und  gezielte 
Informations-  und 
Sensibilisierungskampagnen durchzuführen.  

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In  der  Studie  werden 

für  entsandte  Leiharbeitnehmer 

Zeitarbeitsfirmen  und  Arbeitsmarktvermittler  spielen  eine  doppelte  Rolle,  indem  sie  die 
Beziehungen  zwischen  Arbeitnehmern  und  Arbeitgebern  erleichtern  und  Angebot  und 
Nachfrage  aufeinander  abstimmen. 
jedoch  problematische 
Situationen  im  Zusammenhang  mit  diesen  Akteuren  aufgezeigt,  die  in  Sektoren 
vorherrschen,  die  auf  mobile  oder  befristete  Arbeitskräfte  angewiesen  sind  (z.  B. 
Baugewerbe,  Landwirtschaft  und  Dienstleistung).  Die  Komplexität  der  bestehenden 
Regelungen 
trägt  zur  Nichteinhaltung  der 
Rechtsvorschriften  bei.  So  wird  beispielsweise  der  in  der  Leiharbeitsrichtlinie9  und  der 
Entsenderichtlinie  vorgesehene  Grundsatz  der  Gleichbehandlung  in  der  Praxis  in  den 
einzelnen  Mitgliedstaaten  unterschiedlich  umgesetzt,  da  er  mit  nationalen  Rechts-
vorschriften und Tarifverträgen verknüpft ist, z. B. in Bezug auf die Vergütungspakete. Da 
sich  die  Vergütungspakete  von  Land  zu  Land  und  von  Arbeitgeber  zu  Arbeitgeber 
unterscheiden, kann es für Zeitarbeitsfirmen schwierig sein, alle Bestandteile der Vergütung 
zu bestimmen. Die entleihenden Unternehmen sollten auch die Zeitarbeitsfirmen, mit denen 
sie  bei  der  Entsendung  von  Arbeitnehmern  zusammenarbeiten,  über  die  geltenden 
Arbeitsbedingungen  in  Bezug  auf  die  Vergütung  informieren,  was  jedoch  nicht  immer 
einfach  ist.  Die  entleihenden  Unternehmen  selbst  kennen  möglicherweise  nicht  die 
komplexen nationalen Rechtsvorschriften und Tarifverträge, die für entsandte Arbeitnehmer 
gelten.  

Darüber  hinaus  behindert  die  Scheinselbstständigkeit,  die  mit  solchen  Vermittlern 
beispielsweise im Bereich der häuslichen Pflege im Zusammenhang steht, die Rechte der 
Arbeitnehmer und den fairen Wettbewerb. Dies wiederum beeinträchtigt Investitionen in 
Qualifikationen.  Aufgrund  der  Grauzone  zwischen  abhängiger  Beschäftigung  und 
Selbstständigkeit stoßen die Arbeitsaufsichtsbehörden und die Vollzugsbehörden bei der 
Bekämpfung betrügerischer Aktivitäten im Zusammenhang mit Scheinselbstständigkeit an 
ihre  Grenzen.  Daher  sind  neben  einem  verbesserten  grenzüberschreitenden  Daten-
austausch  und  Berichtsmechanismen  auf  nationaler  und  EU-Ebene  beträchtliche 
Investitionen  in  den  Ausbau  der  Durchsetzungs-  und  Überwachungskapazitäten  für 
Zeitarbeitsfirmen und andere Vermittler auf nationaler Ebene erforderlich. Die Stärkung der 
rechtlichen  und  administrativen  Maßnahmen,  die  bessere  Einbindung  der  Sozialpartner 
durch  die  Schaffung  grenzüberschreitender  sektoraler  Netzwerke,  die  die  Arbeit  der 
Arbeitsaufsichtsbehörden bei der Durchsetzung der Vorschriften systematisch unterstützen 
können, und die Durchführung weiterer empirischer Studien über die Rolle und Bedeutung 
von Zeitarbeitsfirmen (in Entsendungssituationen) und auch anderer Arbeitsmarktvermittler 
(in Nicht-Entsendungssituationen) sind für die Bewältigung dieser Herausforderungen von 
wesentlicher Bedeutung. 

Abschließend ist anzumerken, dass die Zahl der entsandten Drittstaatsangehörigen rapide 
ansteigt,  insbesondere  in  Ländern  wie  Slowenien,  Polen,  Litauen,  Spanien  und  Portugal 
sowie in Sektoren wie dem Baugewerbe, dem Straßenverkehr, der häuslichen Pflege und 
der Landwirtschaft. In allen Sektoren sind entsandte Drittstaatsangehörige anfälliger für 
missbräuchliche  Praktiken  seitens  Arbeitgebern  oder  Arbeitsmarktvermittlern, 
einschließlich  Verletzungen  von  Arbeitsrechten,  Unterbezahlung  und  prekären 
Bedingungen,  als  einheimische  Arbeitnehmer  und  entsandte  Arbeitnehmer  aus  der  EU. 
Unterschiedliche  Auslegungen  und  Anwendungen  des  EU-Rechts  in  den  Mitgliedstaaten 
erschweren  die  grenzüberschreitende  Zusammenarbeit  und  Durchsetzung.  Um  diese 
Probleme  anzugehen,  sollten  weitere  Maßnahmen  darin  bestehen,  die  entsandten 
Drittstaatsangehörigen  auf  eine  koordinierte,  kohärente  und  zugängliche  Weise  besser 
über 
länderübergreifenden 
Zusammenarbeit zwischen den Durchsetzungsstellen, die Erhebung genauerer Daten über 
das 
der 
Entsendungsbedingungen und die Evaluierung der flexiblen bilateralen Abkommen und der 
Regelungen  für  die  erleichterte  Einreise  in  einigen  Mitgliedstaaten  sind  wichtige  weitere 
Maßnahmen, die erwogen werden müssen. 

informieren.  Die  Verbesserung  der 

Drittstaatsangehörigen, 

ihre  Rechte  zu 

entsandten 

Klärung 

Profil 

der 

die 

9 Richtlinie 2008/104/EG des Europäischen Parlaments und des Rates vom 19. November 2008 über Leiharbeit, verfügbar 

unter: http://data.europa.eu/eli/dir/2008/104/oj.  

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Table of Contents 
Executive Summary ......................................................................................... 4 

Synthèse ........................................................................................................... 9 

Zusammenfassung ......................................................................................... 14 

Acknowledgements ........................................................................................ 24 

List of acronyms and abbreviations ............................................................. 25 

1. 

Introduction ............................................................................................ 27 

1.1.  Background and importance of the study ............................................ 27 

1.2.  Study objectives, scope and duration .................................................. 28 

1.3.  Structure of the report .......................................................................... 29 

2.  Policy context, study objectives and methodology ............................ 31 

2.1.  Developments in the EU legal and policy context ................................ 31 

2.2.  The focus of the study in this context ................................................... 32 

2.3.  Overview of study methodology and rationale for choice of sectors  

and problematic situations ................................................................... 34 

3. 

Types of temporary cross-border mobility in the EU: Key trends ..... 37 

3.1.  EU movers ........................................................................................... 38 

3.2.  Posted workers .................................................................................... 40 

3.3.  Frontier workers ................................................................................... 43 

3.4.  Seasonal workers ................................................................................ 44 

3.5.  Other mobile workers ........................................................................... 44 

3.6.  Summary overview of different forms of cross-border intra-EU labour 

mobility ................................................................................................ 45 

4.  Overview of EU and national legal provisions and enforcement 

mechanisms applicable to cross-border workers in posting and non-
posting situations .................................................................................. 47 

4.1.  EU legislation ....................................................................................... 49 

4.2.  National legislative provisions applicable to posted workers and other 

temporary cross-border mobile workers .............................................. 50 

4.3.  Non-legislative measures applicable to posted workers and other 

temporary cross-border mobile workers .............................................. 66 

4.4.  Enforcement mechanisms ................................................................... 70 

5.  Posted and other temporary cross-border workers in situations 

involving subcontracting chains and labour market intermediaries  
in key sectors: Drivers, characteristics and persisting challenges .. 83 

5.1.  Construction ........................................................................................ 84 

5.2.  Long-term and live-in care ................................................................... 91 

5.3.  Meat processing ................................................................................ 103 

5.4.  Agriculture and horticulture ................................................................ 114 
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5.5.  The hotel-tourism-catering sector ...................................................... 120 

6. 

Typically problematic situations related to the working conditions  
of posted workers and other temporary cross-border workers ....... 127 

6.1.  Case study 1: The role of temporary work agencies and labour market 
intermediaries in temporary cross-border mobility: key legal and 
enforcement challenges ..................................................................... 127 

6.2.  Case study 2: Non-payment and underpayment in the case of temporary 
cross-border workers in posting and non-posting situations .............. 144 

6.3.  Case study 3: Seasonal workers in the agriculture sector ................. 152 

6.4.  Case Study 4: Bogus self-employment in temporary cross-border work161 

6.5.  Case Study 5: Posted TCNs in the construction sector ..................... 168 

6.6.  Case Study 6: Key types of OSH-related violations and enforcement 

challenges in temporary cross-border work ....................................... 176 

6.7.  Case Study 7: The role of ‘letterbox companies’ in complex  

subcontracting chains involving posted and non-posted workers  
and enforcement challenges .............................................................. 191 

6.8.  Case Study 8: Key challenges in the live-in care sector .................... 199 

7.  Promising practices in addressing key challenges related to the 

working conditions of temporary cross-border workers ................. 210 

7.1.  Promising practices involving cooperation between Member States  
in enforcing rules in situations involving temporary workers in  
posting and non-posting situations .................................................... 210 

7.2.  Good practices involving social partners regarding the protection  

of posted workers or other temporary cross-border workers ............. 220 

8.  Conclusions and considerations for further actions relating to  

the protection of temporary cross-border workers .......................... 230 

8.1.  Enforcement of existing regulations ................................................... 232 

8.2.  The protection of temporary cross-border mobile workers in  

subcontracting chains ........................................................................ 242 

8.3.  Access to clear and transparent information for employers, labour 

intermediaries and workers ................................................................ 245 

8.4.  The role of different types of labour market intermediaries in  

temporary cross-border mobility and problematic aspects ................. 248 

8.5.  Posting of TCNs................................................................................. 251 

Annexes ........................................................................................................ 253 

Annex 1: Overview of legal measures at EU level, EU case law and  

national case law ................................................................................. 254 

Annex 2: Bibliography ................................................................................. 284 

Sources: Case study on the Role of temporary work agencies and  

other labour intermediaries ................................................................ 301 

Sources: Case study on Non-payment and under-payment ....................... 304 

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Sources: Case study on Seasonal workers in the agriculture sector .......... 306 

Sources: Case study on Bogus self-employment ....................................... 308 

Sources: Case study on Posted TCNs in the construction sector ............... 310 

Sources: Case study on Key types of OSH-related violations .................... 312 

Sources: Case study on the Role of Letterbox companies ......................... 315 

Sources: Case study on Live-in care .......................................................... 318 

Sources: Case study on Promising practices involving cooperation  

between Member States .................................................................... 320 

Sources: Case study on the Role of social partners ................................... 322 

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Tables 

Table 1. Overview of (temporary) intra-EU cross-border labour mobility ..................... 46 

Table 2. The German Occupational Health and Safety Enforcement Act 
(Arbeitsschutzkontrollgesetz) .................................................................................... 111 

Table 3. The regulations of the German Occupational Health and Safety  
Enforcement Act (Arbeitsschutzkontrollgesetz) ......................................................... 184 

Table 4. Content of transnational information exchange, breakdown by stage of the 
enforcement chain (non-exhaustive overview) .......................................................... 212 

Table 5. Overview of national case law ..................................................................... 267 

Figures 

Figure 1. Main receiving and sending Member States of posted workers, based on 
number of posted persons and number of postings, 2021 ........................................... 41 

Figure 2. Number of postings in national declaration tools in the EU,  
by nationality, 2021 ..................................................................................................... 42 

Figure 3. Number of postings in national declaration tools in the EU,  
by sector of activity, 2021 ........................................................................................... 42 

Figure 4. Overview of Section 4 .................................................................................. 49 

Figure 5. Level at which collective agreements are applicable to posted workers ....... 52 

Figure 6. Overview of the rules addressing the risk of poor protection of the rights of 
posted workers in subcontracting chains..................................................................... 55 

Figure 7. Actors of Enforcement ................................................................................. 72 

Figure 8. Main challenges identified in key sectors and the issues faced  
by temporary cross-border workers ............................................................................. 77 

Figure 9. Typical posted worker relationships for Polish care workers employed  
via agencies ................................................................................................................ 99 

Boxes 

Box 1. Collective agreements in the 9 Member States ................................................ 52 

Box 2. Ceiling on the number of subcontracting levels within subcontracting chains ... 55 

Box 3. The Labour Market Fund for Posted Workers in Denmark ............................... 56 

Box 4. Expansion of the subcontracting liability to other sectors ................................. 57 

Box 5. Examples of joint and several liability schemes for unpaid wages in  
EU Member States ..................................................................................................... 57 

Box 6. Full versus limited chain liability ....................................................................... 58 

Box 7. Due diligence provisions in subcontracting chains ........................................... 59 

Box 8. Posted temporary agency workers in 9 Member States ................................... 61 

Box 9. (Posted) TCNs ................................................................................................. 64 

Box 10. Cooperation between Member States, cooperation between actors within  
their own Member State, and other initiatives ............................................................. 68 

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Box 11. Examples of approaches taken by labour inspectorates ................................ 73 

Box 12. Limitations faced by national enforcement authorities .................................... 73 

Box 13. Data related to inspections ............................................................................. 74 

Box 14. Levels of engagement of social partners in enforcement ............................... 75 

Box 15. Enforcement Issues ....................................................................................... 78 

Box 16. Prevalence of posting in the construction sector in the EU ............................. 85 

Box 17. Self-employment of temporary cross-border live-in care workers in Austria ... 96 

Box 18: The role of temporary work agencies in the case of live-in care workers  
posted to Germany ..................................................................................................... 99 

Box 19: Mass infections in meat process factories during the COVID pandemic ....... 105 

Box 20. The circumvention of standards by less-favourable collective bargaining 
agreements or workers' cooperatives. ....................................................................... 108 

Box 21. Challenges in tackling infringements involving temporary work agencies  
and other labour market intermediaries in cross-border contexts .............................. 135 

Box 22. The ‘Mall of Berlin’ case ............................................................................... 138 

Box 23. Good practice examples on overcoming language barriers .......................... 178 

Box 24. OSH challenges in the meat sector .............................................................. 181 

Box 25. National multidisciplinary inspection taskforces in Belgium .......................... 185 

Box 26. Consolidation Act concerning the Posting of Workers in Denmark - use of 
collective industrial action ......................................................................................... 223 

Box 27. The German trade union project “Fair Mobility” ............................................ 223 

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Acknowledgements 

This  study  was  commissioned  by  the  Directorate-General for  Employment,  Social  Affairs 
and Inclusion of the European Commission (DG EMPL) and undertaken by Ecorys, HIVA – 
KU Leuven, Spark Legal and Policy Consulting and wmp consult.  

The  research  was  led  by Monica  Andriescu,  Andrea  Broughton  and  Sophie  Buckingham 
from Ecorys.  

The authors would like to thank the research team that supported the study, in particular 
Anna Linter, Irene Biundo, Danae Nicosia, Lucija Kilic, and Jasminka Michalcakova.  

The authors gratefully acknowledge the valuable support of the Inter-service Steering Group 
of the European Commission throughout the study and, in particular, the main contacts for 
the study: Sigried Caspar and Carita Rammus at DG EMPL, Unit E1. 

The  authors  are  also  indebted  to  the  representatives  of  the  national  authorities,  EU 
institutions,  social  partners,  research  organisations  and  experts  who  gave  their  valuable 
time to contribute to the interviews, workshop and presentations organised throughout the 
study. 

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List of acronyms and abbreviations 

Acronym/Abbreviation 

Explanation 

CJEU 

ELA 

EU 

IMI 

LTC 

PWD 

TAWD 

TCNs 

AT 

BE 

BG 

CY 

CZ 

DE 

DK 

EE 

ES 

FI 

FR 

GR 

HR 

IE 

IT 

Court of Justice of the European Union 

European Labour Authority 

European Union 

Internal Market Information System 

Long-term care 

Posting of Workers Directive 

Temporary Agency Work Directive 

Third Country Nationals 

Austria 

Belgium 

Bulgaria 

Cyprus 

Czechia 

Germany 

Denmark 

Estonia 

Spain 

Finland 

France 

Greece 

Croatia 

Ireland 

Italy 

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LT 

LU 

LV 

MT 

NL 

PL 

PT 

RO 

SE 

SI 

SK 

UK 

UA 

BY 

BiH 

Lithuania 

Luxembourg 

Latvia 

Malta 

Netherlands 

Poland 

Portugal 

Romania 

Sweden 

Slovenia 

Slovakia 

United Kingdom 

Ukraine 

Belarus 

Bosnia and Herzegovina 

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1.  Introduction 

The report supports the monitoring of the Posting of Workers Directive 2018/957/EU and of 
its Enforcement Directive 2014/67/EU. It provides key information about the prevalence of 
different types of temporary cross-border workers across the European Union (EU) and in 
specific  economic  sectors  and  an  analytical  overview  of  EU  and  national  legal  and 
enforcement arrangements set up to support temporary cross-border labour mobility.  

The  report  focuses  on  identifying  typically  problematic  aspects  related  to  the  working 
conditions  of  temporary  cross-border  mobile  workers,  including  posted  workers10  in 
subcontracting  chains  (also  involving  temporary  work  agencies  and  other  labour  market 
intermediaries) and other types of temporary cross-border mobile workers in non-standard 
employment relationships. It also outlines considerations about further measures needed 
to ensure the protection of workers in posting and non-posting situations. 

The study does not assess how well temporary cross-border labour mobility functions in the 
EU  in  general.  It  rather  examines  its  most  problematic  aspects  to  identify  existing  and 
potential  measures  to  address  these  situations  and  improve  the  protection  of  temporary 
cross-border  workers.  Existing  data  gaps  pose  significant  challenges  to  establishing  the 
scale of non-compliance with and infringements of relevant rules and regulations. This has 
been the key limitation of this study.  

Notwithstanding,  the  drivers,  characteristics  and  consequences  of  working  conditions 
violations  are  important  to  determine,  as  they  enable  an  assessment  of  how  good  the 
protection of temporary cross-border mobile workers is and what further actions are needed 
at  various  levels  to  improve  the  situation.  Furthermore,  they  highlight  the  serious 
consequences that infringements have not only for workers, but also their impact on social 
security, tax and labour law fraud. 

The  report  draws  on  its  findings  to  reflect  on  the  importance  of  clear  and  consistent 
legislation, supported by effective enforcement mechanisms and pragmatic communication 
and awareness raising strategies that inform employers, intermediaries and workers about 
their rights and obligations in highly complex legal settings.    

1.1.  Background and importance of the study 

The free movement of workers and services is key to the single market and one of 
the  cornerstone  achievements  of  the  EU.  It  benefits  countries  of  origin  and  receiving 
countries, workers and service providers, enables a better matching of supply and demand 
across the bloc, provides extended opportunities for training and professional development, 
as  well  opportunities  for  economic  operators  to  conduct  business  activities  in  other  EU 
Member  States.  It  is,  however,  a  complex  phenomenon,  and  despite  its  many  proven 
benefits  at  all  levels,  challenges  continue  to  exist.  Some  of  these  negatively  impact  the 
rights and working conditions of intra-EU mobile workers.   

The EU has engaged in policy actions related to the protection of the working conditions of 
temporary  cross-border  workers  for  many  years.  To  that  end,  the  Posting  of  Workers 
Directive (PWD) (Directive 96/71/EC, amended by Directive 2018/957/EU) as well as the 
Enforcement  Directive  (Directive  2014/67/EU)  aim  to  create  a  level  playing  field  for 

10 Posted workers are employees who are sent by their employers to carry out a service in another EU Member State on a 
temporary basis, in the context of a contract of services, an intra-group posting or a hiring out through a temporary agency. 
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businesses  while  protecting  the  (labour)  rights  of  the  posted  workers,  in  areas  such  as 
wages, working time, paid annual leave, safety and health at work, posting by temporary 
work  agencies,  protective  measures  of  employment  for  pregnant  women  or  women  who 
have  recently  given  birth    and  of  children  and  young  people  and  equality  of  treatment 
between men  and  women. In  addition, the  Enforcement  Directive  establishes  a  common 
framework of a set of appropriate provisions, measures and control mechanisms necessary 
for better and more uniform implementation, application and enforcement in practice of the 
PWD.  

Other  policy  actions  at  the  EU  level  taken  to  support  better  working  conditions  for 
temporary cross-border workers include – among others – Regulation 883/2004 on the 
coordination of social security systems (and implementing Regulation 987/2009); Directive 
2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for 
minimum standards on sanctions and measures against employers of illegally staying third-
country  nationals;  the  Seasonal  Workers  Directive  2014/36/EU;  and  Directive  (EU) 
2019/1152 on transparent and predictable working conditions. These provide an enhanced 
framework  of  provisions  that  support  the  protection  of  workers  and  have  contributed  to 
legislative developments at the Member State level.  

1.2.  Study objectives, scope and duration 

The study maps and assesses developments since the adoption of the revised Posting of 
Workers  Directive  and  the  Enforcement  Directive,  identifying  trends  and  providing 
indications where there is a need for further actions.  

While acknowledging the multitude of proven benefits of free movement of services in 
the EU, this study focuses on mapping sectoral specificities and challenges and provides a 
comparative analysis of national legal measures and enforcement mechanisms. In so doing, 
it  focuses  on  identifying  and  analysing  typically  problematic  aspects  related  to  the 
working conditions temporary cross-border mobile workers (including posted workers, 
seasonal workers, and live-in carers).  

The study’s specific objectives included an overview and analysis of: 

• 

• 

• 

the key sectors where posting and other forms of temporary cross-border work take 
place and indications of the scale of this phenomenon, including the prevalence of 
subcontracting chains; 

the role of temporary work agencies and other labour intermediaries in temporary 
cross-border mobility; 

the key factors that drive and shape cross-border labour mobility at sectoral level 
(including contextual factors such as labour market and sectoral characteristics, as 
well  as  specific  legal  and  enforcement  arrangements  related  to  the  posting  of 
workers); 

•  key measures and legal provisions taken by the EU27 Member States (as countries 
of origin and/or destination), to ensure workers in posting and non-posting situations 
are protected (in particular in subcontracting situations, in cases involving temporary 
work  agencies  and  other  intermediaries,  and  where  there  is  a  systematic 
involvement of posted Third Country Nationals - TCNs); 

• 

the  liability  provisions  (Article  12(2)  of  Directive  2014/67/EU)  implemented  in 
practice; 

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• 

typically problematic situations involving temporary cross-border mobility, including 
their sectoral prevalence, key features, determining factors and implications for the 
protection of workers in posting and non-posting situations.  

Drawing  on  its  findings,  the  report  outlines  considerations  related  to  how  the  working 
conditions of temporary cross-border mobile workers in different situations can be improved 
in the future. These focus on the following areas: (long) subcontracting chains, the role of 
temporary work agencies and other labour market intermediaries, TCNs posted temporarily 
to other Member States and the implementation of relevant posting rules in their case, the 
importance  of  effective  enforcement  mechanisms  and  systematic  data  that  identifies  the 
prevalence  and  characteristics  of  infringements,  and  cross-border  cooperation  and 
exchange of information. 

In so doing, the report also draws attention to key contextual factors that influence the 
functioning  of  cross-border  labour  mobility  in  the  EU  and  the  implementation  of  relevant 
rules  and  regulations:  competitive  strategies  to  drive  labour  costs  down,  high  labour 
demand in the sectors where posting and other types of temporary cross-border mobility 
are prevalent, and the increasingly important role of (long) subcontracting chains in the EU 
(and global) economy, ensuring outsourcing of labour costs and flexibility for employers.  

1.3.  Structure of the report 

The report includes the following sections: 

•  Section 2 provides a brief overview of the policy context related to the movement 
of  temporary  cross-border  mobile  workers  in  the  EU.  It  also  briefly  outlines  the 
methodology  of  the  study  and  considerations  about  the  selection  of  economic 
sectors the research focuses on. 

•  Section 3 introduces the different types of temporary cross-border labour mobility 
in the EU, including posted workers, frontier workers, seasonal workers, and other 
mobile  workers.  It  also  discusses  the  trends  and  data  gaps  in  relation  to  the 
movement of temporary cross-border workers and linkages between these workers 
and specific sectors of the economy. 

•  Section  4  focuses  on  the  overview  of  the  relevant  legislative  frameworks  and 
enforcement mechanisms relating to different types of temporary cross-border work 
across the Member States. 

•  Section 5 builds on the analysis in previous sections to identify construction, long 
term  and  live-in  care,  meat  processing,  agriculture  and  horticulture,  and  hotel-
tourism-catering  as  the  sectors  are  most  affected  by:  subcontracting  situations 
involving  posting  or  other  forms  of  temporary  cross-border  labour  work;  the 
involvement  of  temporary  work  agencies  and  other  intermediaries;  and  the 
systematic involvement of posted TCNs. The section assesses the main features of 
temporary cross-border work in these sectors, focusing on problematic aspects and 
their drivers.  

•  Section 6 complements the sectoral and legal analysis by discussing 8 case studies 
of  typically  problematic  situations  involving  workers  in  posting  and  non-posting 
situations  in  the  sectors  analysed  in  Section  5.  These  include:  1)  the  role  of 
temporary work agencies and other labour intermediaries in temporary cross-border 
mobility; 2) non-payment and under-payment; 3) seasonal workers in agriculture; 4) 
bogus self-employment; 5) posted TCNs in the construction sector; 6) key types of 
occupational safety and health (OSH) violations and enforcement challenges; 7) the 

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role of letterbox companies in complex subcontracting chains; and 8) the situation 
of live-in carers.  

•  Section 7 presents two additional case studies identifying examples of promising 
practices related to the cooperation between Member States and the role of social 
partners. 

•  Section  8  summarises 

the  main  conclusions  of  the  report  and  outlines 
considerations  for  further  actions  that  can  ensure  the  protection  of  the  working 
conditions of temporary cross-border workers.  

The Annexes include: 

•  An overview of EU legislative measures, EU case law and national case law (Annex 

1). 

•  Bibliography (Annex 2). 

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2.  Policy context, study objectives and methodology 

2.1.  Developments in the EU legal and policy context 

The freedom to provide services is laid down in Article 56 of the Treaty on the Functioning 
of  the  European  Union  (TFEU)  and  guarantees  the  mobility  of  businesses  and 
professionals in the EU. Together with the freedom of movement for workers (laid down 
in Article 45 TFEU), it has been one of the founding principles of the EU. 

The posting of workers is a topical situation where additional legal instruments were 
needed to find the right balance between promoting the freedom to provide services 
and protecting the labour rights of the workers concerned. The PWD establishes which 
provisions of the host state’s employment law should be applied to posted workers (self-
employed  persons  are  not  covered).  The  Directive  distinguishes  between  three  types  of 
postings: between two companies under a ‘contract of services’, through temporary work 
agencies, and ‘intra-group postings’.  

In  2016,  the  Commission  submitted  a  proposal  for  a  revised  PWD.11  Mid-2018,  after 
politically challenging negotiations,12 the Parliament and the Council reached an agreement 
on the matter (Directive 2018/957/EU).13 The main amendments are the change to the list 
of so-called ‘hard core provisions’, e.g., the replacement of the concept of ‘minimum wages’ 
with the concept of ‘remuneration’; the introduction of rules for long-term postings (longer 
than  12/18  months);  and  amended  rules  for  posted  temporary  agency  workers.  These 
revisions sought to address challenges with the application and implementation of the initial 
PWD, which were deemed to have enabled situations of non-compliance, abusive practices 
and circumvention of posting regulations at EU and national levels.14  

The  Enforcement  Directive  2014/67/EU,  on  the  other  hand,  aims  to  strengthen  the 
application of the posting rules and addresses issues linked to tackling fraud, circumvention 
of rules, access to information, and administrative cooperation between the Member States. 
With a view to tackling abuses in subcontracting situations, Member States should take 
appropriate measures (in accordance with Art. 12 of the Enforcement Directive), to ensure 
subcontracting liability. This enables Member States to take measures to ensure that in 
subcontracting chains, the contractor to which the employer is a direct subcontractor can, 
in  addition  to  or  in  place  of  the  employer,  be  held  liable  by  the  posted  worker.  Member 
States  are  required  to  introduce  such  sub-contracting  liability  in  the  construction 
sector, but they may provide for it in any sector. Several Member States indicated that the 
introduction  of  these  rules  increased  the  effective  protection  of  the  workers’  rights  in 
subcontracting chains.15 In July 2021, the Commission opened an infringement procedure 
against 24 Member States for not complying with some of the provisions of the Enforcement 

11 See: https://ec.europa.eu/social/main.jsp?langId=en&catId=89&newsId=2488&furtherNews=yes.   
12 This resulted in a ‘Yellow Card Procedure’ and Hungary and Poland’s request before the Court of Justice to annul 
Directive 2018/957 (Case C-620/18 Hungary v European Parliament and Council, and Case C-626/18, Poland v European 
Parliament and Council).   
13 Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018, amending Directive 96/71/EC 
concerning the posting of workers in the framework of the provision of services, available at https://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:32018L0957&from=EN.  
14 European Parliament, Posting of Workers Directive – Current situation and challenges, available at 
https://www.europarl.europa.eu/RegData/etudes/STUD/2016/579001/IPOL_STU%282016%29579001_EN.pdf  
15 COM(2019) 426 final, at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52019DC0426&from=EN.  

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Directive.16 In January 2023, the Commission sent reasoned opinions to 17 Member States 
for failing to bring various national provisions in line with the Enforcement Directive.17 

As  discussed  in  detail  in  Section  3, there  are  several  other types  of  temporary  cross-
border workers, who are not in posting situations and thus not covered by the PWD. These 
include frontier workers, seasonal workers as well as other mobile workers (who cannot be 
classified  under  previous  categories).  They  also  benefit  from  the  principle  of  non-
discrimination and equal treatment in respect of employment conditions applicable to posted 
workers and have also frequently been at the centre of reports about violations of working 
conditions  involving  intra-EU  mobile  workers  and  TCNs.  Various  EU  and  national 
regulations  apply  to  these  temporary  cross-border  workers  (as  discussed  in  Section  4), 
including  those  related  to  the  coordination  of  social  security  systems  within  the  EU, 
seasonal work, transparent and predictable working conditions, and irregular work.  

2.2.  The focus of the study in this context 

This  study  focuses  on  the  working  conditions  of  posted  workers  in  subcontracting 
chains,18  temporary  cross-border  workers  involving  temporary  work  agencies  and 
other intermediaries and posted TCNs. It also considers other types of temporary cross-
border mobile workers as short frequent, or repetitive movements abroad have an important 
share in total intra-EU labour mobility and are in continuous expansion.19  

The  COVID-19  pandemic  has  revealed  the  fundamental  importance  of  all  types  of 
temporary cross-border labour mobility in several economic sectors across the EU, but also 
the  challenges  confronting  these  workers.  Nevertheless,  the  topic  of  the  protection  of 
temporary  cross-border  mobile  workers  remains  insufficiently  researched  and  significant 
data gaps persist.  

Heightened by the COVID-19 pandemic, policy debates at European20 and national level 
have focused in recent years on the violations of temporary cross-border mobile workers’ 
working  and  living  conditions.  Notwithstanding  the  existing  EU  and  national  legal 
frameworks,  including  the  recent  changes  introduced  by  the  PWD,  several  groups  of 
temporary cross-border mobile workers might be treated (legally and/or in practice) 
differently  than  local  workers  and  permanent  EU  movers  as  regards  their  terms  and 
conditions of employment, and access to social security in the host Member State. These 
differences are mainly the result of a different treatment in EU and national law and/or are 
the  result  of  employers’  non-compliance  with  the  legal  framework.  Moreover,  due  to  the 
atypical characteristics of the employment models and the complex subcontracting chains 
that are often involved in temporary cross-border work, it is challenging to determine the 
exact labour and social rights of individuals working abroad on a temporary basis.  

Notwithstanding  the  challenges  raised  by  complex  regulations  and  issues  with  their 
enforcement in practice, which contribute to the failure to respect terms and conditions of 
employment  for  temporary  cross-border  workers  at  times,  there  are  wider  contextual 
factors at play that are external to the legal regime related to posting and other types of 
temporary  cross-border  labour  mobility.  They  nonetheless  shape  the  characteristics  of 
situations involving cross-border workers in posting and non-posting situations.  

16 See: https://ec.europa.eu/commission/presscorner/detail/EN/INF_21_3440.  
17 https://portal.ieu-monitoring.com/editorial/eu-posting-of-workers-eu-commission-calls-on-17-member-states-to-comply-
with-directive/398985  
18 Subcontracting chains involve a client, or principal contractor, externalising single specialities or tasks to other companies 
or self-employed workers.  
19 OECD, International Migration Outlook 2019, OECD Publishing Paris, available at: https://www.oecd-ilibrary.org/social-

issues-migration-health/international-migration-outlook-2019_c3e35eec-en. 

20 See, for instance, Committee on Employment and Social Affairs – European Parliament, Draft report on impacts of EU 
rules on the free movements of workers and services: intra-EU labour mobility as a tool to match labour market needs 
and skills (2020/2007(INI)), European Parliament, Brussels. 

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As highlighted in this report, these include: the expansion over the past decades of complex 
subcontracting chains in the EU (and globally) as core business models whereby risks are 
externalised  and  labour  costs  are  kept  at  bay;  high  price  competition  in  sectors 
characterised by high labour demand, labour-intensive and low-paying jobs; the regulation 
of  different  types  of  private  labour  market  intermediaries  across  the  EU  and  the 
challenges associated to monitoring their activities, which enable loopholes leading to the 
circumvention of rules; and the overall limited capacity of national authorities to ensure 
legislation is enforced effectively.  

In this context shaped by factors specific to temporary cross-border labour mobility as well 
as  external  factors,  the  study  assesses  the  sectoral  specificities  and  problematic 
aspects related to the working conditions of temporary cross-border mobile workers 
in the EU and whether further measures are needed to ensure the labour rights of these 
workers  are  respected  (and  the  principle  of  equal  treatment  is  applied  relative  to  local 
workers and permanent movers).  

Given the increase in the number of posted TCNs in recent years, the study also focuses 
on identifying and assessing the key problematic situations involving these workers. TCNs 
who hold a valid work and residence permit in one Member State may be posted across the 
EU.  This  has  been  described  as  the  group  of  temporary  cross-border  workers  that  is 
currently  growing  most  quickly.21  TCNs  also  constitute  an  important  group  of  seasonal 
workers in some Member States, mainly in the agricultural sector.22 Triggered by shortages 
in  labour  intensive  sectors  (homecare,  road  freight  transport,  hotels,  restaurants  and 
catering) the posting of TCNs has been also a rapidly emerging trend in Central and Eastern 
European countries.23 

Notwithstanding the fact that the public debate has focused on the risks of social dumping24 
and cross-border social fraud, temporary cross-border work continues to have important 
benefits  for  sending  and  receiving  Member  States  as  well  as  for  the  individuals 
concerned. Some of its key advantages include avoiding permanent brain drain, enhanced 
fiscal transfers through labour tax and revenues, and decreasing unemployment rates for 
the countries of origin.25 From the perspective of receiving countries, cross-border workers 
contribute with skills and knowledge which may otherwise be in short supply, and support 
the  local  economy.  From  the  perspective  of  employers,  temporary  cross-border  work 
enables  flexibility,  access  to  skills  that  are  in  shortage  at  times  of  peak  demand,  and 
increase  productivity.  For  workers,  temporary  cross-border  work  can  increase  income, 
further develop skills and enhance contributions to social security.  

However,  there  are  clear  challenges  linked  to  temporary  cross-border  work,  from  the 
perspective of individuals’ working conditions, but also wider considerations related to social 
security,  labour  law  and  tax  fraud.  It  is  such  aspects  this  study  focuses  on  and  thus 
contributes to a nuanced debate about the costs and benefits of temporary cross-border 

21 D. Lens., N. Mussche, and I. Marx, ‘A hole in the wall of fortress Europe: The trans

European posting of third

country 

labour migrants. International Migration’, 2021, available at: https://onlinelibrary.wiley.com/doi/abs/10.1111/imig.12867 .  
‐
See also the comprehensive project Con3Post on the posting of TCN in the construction sector, available at: 
https://www.migracje.uw.edu.pl/projects/con3post-posting-of-third-country-nationals-mapping-the-trend-in-the-
construction-sector/.  

‐

22 T. Fries-Tersch, L. Siöland, M. Jones,C. Mariotti, and M. Malecka, ‘Intra-EU Mobility of Seasonal Workers Trends and 

Challenges, European Commission’, 2021.  

23 E. Voss, & K. Vitals, ‘Social Conditions in Logistics in Europe: Focus on road transport, European Transport Workers 

Federation’, European Transport Workers‘ Federation, 2019, available at: https://www.wilke-maack.de/wp-
content/uploads/2020/07/report_social_conditions_in_logistics.pdf.  

24 There is no generally accepted definition of social dumping, but it can be described as “the practice whereby workers are 
given pay and / or working and living conditions which are sub-standard compared to those specified by law or collective 
agreements in the relevant labour market, or otherwise prevalent there.” See https://home-
affairs.ec.europa.eu/networks/european-migration-network-emn/emn-asylum-and-migration-glossary/glossary/social-
dumping_en#:~:text=The%20practice%20whereby%20workers%20are,market%2C%20or%20otherwise%20prevalent%2
0there.  

25 F. De Wispelaere, ‘Intra-EU posting: Costs and Benefits’, 2018, available at https://lirias.kuleuven.be/retrieve/505894.  

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mobility,  aiming  to  propose  suggestions  for  actions  that  improve  workers’  situation  and 
enhance the benefits of labour mobility.  

2.3.  Overview of study methodology and rationale for 
choice of sectors and problematic situations 

The report draws on an analysis of quantitative and qualitative information and has involved 
several stages: 

•  The development of the conceptual framework of the study, including defining the 
concepts of temporary cross-border mobile workers; the main forms of temporary 
cross-border labour mobility in the EU, and those within the scope of the study; and 
the scope of the legal analysis;  

•  Mapping and assessment of legislative and enforcement arrangements taken in the 
Member States to ensure workers in posting and other forms of temporary cross-
border mobility involving subcontracting are protected; 

•  Mapping and assessment of the sectoral situation involving posting of workers and 

other forms of temporary cross-border work; 

•  Assessing typically problematic forms of temporary cross-border labour mobility; 

•  Assessing how the protection of temporary cross-border mobile workers functions 

in the EU and what can be improved.  

The  data  collection  methods  included  desk  research  of  available  literature  and  legal 
research  of  EU  and  national  measures  and  enforcement  mechanisms;  quantitative 
evidence from data available at the EU and national level (e.g. data deriving from labour 
inspections); 72 expert and stakeholder interviews with representatives of EU institutions, 
national labour inspectorates, ministries, and social partners; and a consultation workshop 
with experts.  

The analysis of the types of temporary cross-border movement (Section 3) defines the 
main types of cross-border workers in the scope of this study, outlines their prevalence in 
specific sectors and identifies the key sending and receiving countries.  

The  analysis  of  legal  arrangements,  non-legislative  measures  and  enforcement 
mechanisms (Section 4) focus on the review and analysis of: 

•  EU  and  national  legal  provisions  applicable  to  protecting  workers  in  temporary 
in 
cross-border  mobility  and 
subcontracting/chains, due diligence, the regulation of temporary agency work and 
labour market intermediaries);   

regulation 

relevant 

(liability 

case 

law 

•  non-legislative measures relating to access to information, enhanced administrative 

cross-border cooperation, prevention and monitoring measures; 

•  enforcement  mechanisms  related 

in  practice, 
infringements and their sanctioning, as well as data gathering/monitoring methods. 

identified  measures 

the 

to 

An in-depth analysis is conducted in 9 key sending (Poland, Spain, Germany and Slovenia) 
and  receiving  countries  (Germany,  France,  Belgium,  the  Netherlands,  Luxembourg  and 

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Denmark). The selection of these countries was informed by the findings outlined in Section 
3.  

The sectoral analysis (Section 5) includes: 

• 

• 

the mapping of the current sectoral situation, i.e., the prevalence of posted workers 
(including TCNs) and other cross-border workers in different economic sectors; the 
use  of  subcontracting  chains  and  labour  market  intermediaries  and  problematic 
situations linked to them; 

the  identification  of  key  drivers  of  problematic  situations  as  well  as  examples  of 
promising  practices  (e.g.,  legislation  and  enforcement  mechanisms;  collective 
agreements; social partner involvement; company practices; and awareness about 
existing regulations); 

•  an  assessment  of  how  cross-border  temporary  mobility  systems  function  in  the 

selected sectors and their key features.  

long-term  care/ 

The analysis conducted in Sections 3 and 4 results in the identification of several sectors 
that are relevant for posting and non-posting situations: construction, road freight transport, 
live-in  care,  hotel-tourism-catering,  meat  processing, 
logistics, 
manufacturing  (e.g.,  metal  industry,  shipbuilding),  industrial  cleaning,  agriculture  and 
horticulture, live performance and aviation. Considering the sectors where most problematic 
situations  are  typically  encountered,  the  research  then  focused  on  5  key  sectors: 
construction,  long-term  care/  live-in  care,  meat  processing,  agriculture  and 
horticulture, and the hotel-tourism-catering sector. The analysis is presented in Section 
5 of this report.  

Posted  workers  are  mainly  employed  in  construction  and  road  freight  transport.  Several 
recent developments occurred in reference to the transport sector, including the new rules 
on posting of drivers in road transport (Directive 2020/1057),26 which were adopted in July 
2020 as part of the Mobility Package (with Member States having until 2 February 2022 to 
adopt and publish the necessary measures.). Directive 2020/1057 responded to the need 
for regulating the situation of drivers in the road transport sector (a specific case of posted 
workers due to their high level of mobility). The provisions of the PWD and its Enforcement 
Directive  still  apply,  but  the  new  Directive  sets  specific  administrative  requirements  and 
control measures (before, during and after posting) for foreign employers that post drivers 
–  thus  seeking  to  clarify  situations  where  drivers  are  in  a  posting  situation  and  ensure 
compliance with regulations. Notwithstanding the significance of posting in road freight 
transport, this sector was not included in the in-depth analysis due to the very recent 
nature of these legislative changes, whose impact could not be analysed in the timeline of 
this study. 

The in-depth legal (Section 4) and sectoral analysis (Section 5) revealed several key types 
of problematic situations involving temporary cross-border workers in posting and non-
posting situations (which are likely to continue and potentially increase in the foreseeable 
future). Eight such situations were selected for in-depth analysis. The analysis is presented 
in the form of case studies in Section 6. The case studies focus on: 

•  The  role  of  temporary  work  agencies  and  labour  market  intermediaries  in  cross-

border mobility 

26 Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020 laying down specific rules with 
respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector and amending 
Directive 2006/22/EC as regards enforcement requirements and Regulation (EU) No 1024/2012, available at https://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32020L1057.  

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•  Non-payment and underpayment in the case of temporary cross-border workers in 

posting and non-posting situations 

•  Seasonal workers in agriculture 

•  Bogus self-employment in temporary cross-border work 

•  Posted TCNs in the construction sector 

•  Key types of OSH-related violations and enforcement challenges  

•  The role of ‘letterbox companies’ in complex subcontracting chains  

•  Employment models of live-in caregivers: working conditions and key enforcement 

challenges 

Two  additional  case studies  were  developed  about  examples  of  promising  practices  in 
two areas that are key to the improvement of temporary cross-border workers’ protection: 
cross-border  cooperation  between  relevant  authorities  in  the  Member  States  in 
enforcing existing regulations and the involvement of social partners.  

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3.  Types of temporary cross-border mobility in the EU: 

Key trends 

Summary of key findings 

There  are  several  forms  of  cross-border  intra-EU  labour  mobility,  making  it  a 
heterogenous phenomenon. In addition to ‘permanent’ EU movers, there are, inter alia, 
posted workers, frontier workers, and seasonal workers. In 2021, there were about 10 
million EU movers, 1.9 million posted workers, 1.6 million cross-border workers, and at 
least 600 000 seasonal workers. Furthermore, around 9.7 million trips for professions 
reasons were carried out within the EU.  

To grasp the concept of labour mobility in its entirety, the use of a broad and exhaustive 
definition  is  needed.  This  is  provided  by  the  United  Nations  Economic  Commission  for 
Europe, stating that international labour mobility includes “all movements of natural 
persons from one country to another for the purpose of employment or the provision 
of services”.27 This definition does not impose any limitation on the frequency or duration 
of the employment abroad. Furthermore, it includes all different types of freedoms in the 
EU: the free movement of workers (Article 45 TFEU), the freedom of establishment (Article 
49  TFEU),  and  the  freedom  to  provide  services  (Article  56  TFEU).  This  is  important,  as 
cross-border intra-EU labour mobility has many different facets, as shown below. 

Persons of working age have increasingly become more mobile in the EU over the past two 
decades through different forms of intra-EU labour mobility. Therefore, labour mobility in the 
EU is large in its scope, while also being present in all sectors of activity. This showcases 
the added value of free movement, and the benefits of the common labour market in 
the EU.28 Moreover, results from a Special Eurobarometer ‘on intra-EU labour mobility after 
the pandemic’, show that 18% of EU-citizens envisage working abroad in the future.29 Of 
those who envisage working abroad, a majority (60%) are planning to do so within the next 
five years. 

There  are  several  key  types  of  temporary  cross-border  intra-EU  labour  mobility: 
frontier  workers  who  have  a  job  in  a  Member  State  other  than  their  Member  State  of 
residence, posted workers, seasonal workers, and ‘other’ mobile workers. The information 
is mainly based on quantitative data and presents for each type of intra-EU labour mobility 
the key drivers, its prevalence and evolution, its main flows, and the key sectors of activity. 
Although  it  should  be  acknowledged  that  the  size  of  migration  from  TCNs  to  the  EU  is 
significant, this chapter focusses on intra-EU labour mobility. The topic of TCNs is covered 
in several other sections of this report. 

To  situate  the  trends  related  to  temporary  cross-border  workers  in  the  wider  context  of 
freedom of movement of workers in the EU, the section opens with a brief overview about 
overall  intra-EU  mobility,  looking  also  at  EU  movers  who  have  (permanently)  moved  to 
another Member State and who are not otherwise covered by this study.  

27 UNECE, Measuring International Labour Mobility, United Nations Economic Commission for Europe, 2018, p. 3. 
28 E. Sjödin & E. Wadensjö, 'Intra-European Labour Migration for a Resilient EU', in A. Bakardjieva Engelbrekt, P. Ekman, A. 
Michalski and L. Oxelheim (eds.), ‘Routes to a Resilient European Union’, Interdisciplinary European Studies, 2022.   

29  European Commission, Special Eurobarometer 528: Intra-EU labour mobility after the pandemic, 2022. 

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3.1.  EU movers 

EU movers are “persons [who] move their residence to a country of which they are not a 
citizen, for at least one year”.30,31 There are several drivers for the mobility of EU movers.32 
Some specific drivers are mentioned here to get an idea of the diversity of factors which 
drive  EU  movers.  Free  movement  in  itself  is  an  important  driver  of  intra-EU  labour 
mobility.33  However,  other  drivers,  such  as  wage  differentials  and  distance 
(geographical,  linguistic,  and  cultural)  tend  to  be  even  more  important.  Additionally, 
seeking a job abroad remains an important driver of persons moving abroad.34  

Drivers can be classified as pull or push factors, depending on whether they pull movers 
towards the country of destination or push persons out of the country of origin. Pull factors 
for EU movers are greater availability of work in the country of destination, availability of 
jobs corresponding to the mover’s field and level of education, and other socio-economic 
conditions of the receiving country such as economic growth, higher wages, or quality of 
social  security.35  The  gross  income  advantage  of the  receiving  country  over the  sending 
country is a pull factor, as well as social networks of EU movers in the destination country,36 
and  cultural  similarities  between  the  sending  and  receiving  country,37  for  instance,  a 
common language.38  

Furthermore, push factors are present such as economic crises in the sending country or 
a high unemployment rate.39 When there is an expectation of worse economic conditions in 
the country of origin, greater numbers of people may decide to move abroad.40 In addition, 
general life satisfaction seems to be a push factor, as individuals who perceive their income 
and life standards to be less satisfying have a higher probability of wishing and planning to 
move abroad. Moreover, different drivers are possible for different types of EU movers. 
For instance, mass mobility is generally defined by push factors, while high-skilled labour 
mobility is primarily defined by pull factors.41  

In 2021, the total population in the EU-27 amounted to 447 million persons, of which 264 
million persons, or 59%, were of working age (20-64 years).42 When analysing the group of 
EU  movers,  only this  last  group, the  persons  of working  age,  are  considered. Overall,  in 
2021, 89.8% of working age citizens in the 27 Member States live in the same country as 
their  citizenship.  The  remaining  10.2%  consists  of  a  group  of  EU-27  movers  (3.8%)  and 
TCNs (6.4%).  

30 Figures presented in this section are mainly based on E. Hassan, L. Siöland, B. Akbaba, D. Cinova, M. Gasperini, & M. 
Geraci,  'Annual  Report  on  Intra-EU  Labour  Mobility  2022',  European  Commission  Directorate-General  for  Employment, 
Social Affairs & Inclusion, 2023, p. 19.   

31 “The main EU-wide data sources – the EU-LFS and Eurostat population/migration statistics – count people who live, or 
intend to live, in a certain country for at least one year.” (Hassan et al., 'Annual Report on Intra-EU Labour Mobility 2022', 
2023). 

32 These drivers can be classified under different dimensions: demographic, economic, environmental, human development, 
individual, politico-institutional, security, socio-cultural, and supranational (see M. Czaika & C. Reinprecht. ‘Why do people 
stay  put  in  environmentally  stressful  regions?  Cognitive  bias  and  heuristics  in  migration  decision-making’.  Regional 
Environmental Change, 22(3), 84., 2022). For an overview of the main motivations see also European Commission, Special 
Eurobarometer 528: Intra-EU labour mobility after the pandemic, 2022. 

33 H. Rojas-Romagosa, & J. Bollen, 'Estimating migration changes from the EU’s free movement of people principle', CPB 

Discussion Paper 385, 2018a. 

34 S. Migali & M. Scipioni, 'A global analysis of intentions to migrate', 2018, European Commission, JRC, 2018. 
35 Hassan et al., 'Annual Report on Intra-EU Labour Mobility 2022', 2023. 
36 S. Migali & M. Scipioni,  'A global analysis of intentions to migrate', 2018.  
37  E.  Bonin,  W.  Eichhorst,  C.  Florman,  M.  Okkels  Hansen,  S.  Skiöld,  J.  Stuhler,  K.  Tatsiramos,  H.  Thomasen,  &  K.  F. 
Zimmermann, 'Geographic Mobility in the European Union: Optimising its Economic and Social Benefits', IZA Research 
Report, 2018. 

38 S. Migali, & M. Scipioni, 'A global analysis of intentions to migrate', 2018. 
39 Hassan et al., 'Annual Report on Intra-EU Labour Mobility 2022', 2023. 
40 S. Migali & M. Scipioni, 'A global analysis of intentions to migrate', 2018.  
41 Hassan et al., 'Annual Report on Intra-EU Labour Mobility 2022', 2023. 
42 Based on Eurostat [MIGR_POP1CTZ]. 

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This share differs strongly between Member States. For instance, only 48% of working age 
persons living in Luxembourg are Luxembourgish citizens. By contrast, more than 98% of 
persons  living  in  Slovakia,  Poland,  and  Romania  have  the  citizenship  of  their  country  of 
residence. Member States on the periphery of the EU’s borders receive more TCNs, while 
those Member States in the centre of the EU receive a higher share of EU-27 movers.43 In 
the analysis which follows, only EU-27 movers of working age are taken into account.  

In 2021, there were 10 million EU-27 movers of working age in the EU-27, or 3.8% of 
the  total  working  age  population.  Around  3.3  million  of  them  reside  in  Germany,  1.3 
million  in  Spain,  1.1  million  in  Italy,  and  898 000  in  France.  Furthermore,  Belgium  and 
Austria are home to more than 500 000 EU movers each. Member States from which the 
highest  number  of  EU-27  movers  come  are  Romania,  with  2.2  million,  and  Italy  with 
910 000. Additionally, 529 000 movers come from Bulgaria, 473 000 from Germany, and 
326 000 from Portugal.  

Eurostat  data  allows  us  to  analyse  the  direction  of  EU  movers  between  EU-27  Member 
States.44  In  absolute  numbers,  the  stock  of  EU  movers  coming  from  Romania  and 
going  to  Italy  is  highest,  as  around  811 000  working  age  persons  residing  in  Italy  are 
Romanian citizens. Furthermore, approximately 621 000 persons residing in Germany are 
Polish citizens, 575 000 persons residing in Germany are Romanian citizens, and 504 000 
persons  residing  in  Spain  are  Romanian  citizens.  Additionally,  in  relative  terms,  when 
comparing the number of EU-27 movers to the total working-age population of a country, 
important  countries  of  destination  are  discovered  as  well.  For  instance,  42%  of  the 
population of working age in Luxembourg concern EU-27 movers, of which 16.1% are 
Portuguese citizens, 8.4% French citizens, 3.8% Italian citizens, and 3.2% Belgian citizens. 
Also in Cyprus, Malta, and Austria more than 10% of the working-age population are EU-
27 movers.  

Most often, EU movers go from east to west. Eastern European countries have been the 
major sending countries since they joined the EU, while only 7% of EU mobile citizens reside 
in  Eastern  Europe,  corresponding  to  1%  of  the  Eastern  European  population.45  For 
instance, many Romanians moved to Italy and Spain (three times as many as those who 
moved to Germany and the United Kingdom combined), and many persons from Croatia, 
Slovenia,  and  Hungary  moved  to  Austria.46  Nevertheless,  labour  mobility  should  not  be 
narrowed  to  this  direction  only.  South-north  mobility  is  also  notable.  Especially  since 
2013, this direction of mobility has increased. Nevertheless, while there is indeed a rapid 
increase in south-north mobility, east-west mobility is still larger, both in absolute numbers, 
and in relative terms compared to the total population.  

The  main  sector  of  activity  for  EU  movers  is  manufacturing  with  17%  or  more  EU-27 
movers  working  in  this  sector.47  Relatively  speaking,  compared  to  nationals,  EU  movers 
were most overrepresented in construction, and accommodation and food services.  

43 For instance, while 81% of all working-age movers in Luxembourg are EU-27 movers, more than 85% of movers arriving in 

Estonia, Latvia, Lithuania, and Slovenia are TCNs.  

44 The breakdown of the stock of EU movers in Estonia, Greece, France, Croatia, Cyprus, Malta, and Poland as Member State 
of residence by Member State of citizenship are not available for 2021. Therefore, this analysis is not complete and should 
be regarded with caution. Eurostat [MIGR_POP1CTZ]. 

45 A. Parenti and C. Tealdi, ’Cross-Border Labour Mobility in Europe: Migration Versus Commuting’, University of Pisa, 2021.  
46 U. Batsaikhan, Z. Darvas ,& I. Gonçalves Raposo, ‘People on the move: migration and mobility in the European Union’, 

Bruegel Blueprint Volume XXVIII, 2018. 

47 Hassan et al., 'Annual Report on Intra-EU Labour Mobility 2022', 2023, p. 13. 

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3.2.  Posted workers 

As  set  out  in  the  PWD  (Directive  96/71/EC),  a  ‘posted  worker’  is  a  worker  who,  “for  a 
limited  period,  carries out  his  or  her work in the  territory  of  a  Member  State  other 
than the State in which he or she normally works”.48 Posted workers are and remain 
employed by the sending company throughout their posting and, in contrast to long-term 
EU  movers,  who  integrate  into  the  labour  market  of  the  host  country  on  an  extended  or 
permanent basis, the presence of posted workers in the host Member State is strictly related 
to the execution of the service that they are performing on their employer’s behalf. 

In contrast to other discussed forms of (temporary) intra-EU labour-mobility, posted work is 
mainly  employer-driven,  as  it  falls  under  the  freedom  to  provide  services  (Article  56 
TFEU).  Therefore,  the  main  drivers  of  posting  do  not  come  from  the  worker  itself,  but 
primarily  from  the  employer.  There  is  a  strong  link  between  the  export  and  import  of 
services  and  the  use  of  intra-EU  posting,  as  the  former  may  require  the  physical 
presence of workers. Consequently, the evolution of intra-EU posting may depend on the 
evolution of cross-border trade of services. 

Different types of posting are categorised based on the different drivers of posting.49 Intra-
EU posting takes place for various reasons, both from a sending and receiving perspective. 
It takes place because of labour cost differences, but also because of quantitative and 
qualitative  labour  shortages.  Therefore,  not  only  the  need  for  flexibility  but  also  for 
expertise  are  important  drivers  of  posting.  This  shows  that  posting  is  a  varied 
phenomenon with many different drivers. To what extent the above reasons manifest 
themselves  strongly  depends  on  the  sector  concerned,  but  also  within  a  specific  sector 
different motives can arise depending on the subsector or profession as well as a shift of 
the main reasons over time (e.g., from cost-driven towards labour-shortage driven). 

The provision of services by intra-EU posting has several benefits compared to other 
types of intra-EU labour mobility. For instance, there are concerns that permanent intra-
EU  labour  mobility  may  lead  to  ‘brain  drain’,  labour  shortages,  and  a  worsening  of  the 
demographic  outlook  in  the  Member  State  of  origin.  Such  costs  may  be  reduced  when 
persons are posted temporarily to another Member State. Finally, intra-EU posting can be 
considered well suited to absorb economic shocks. In such an event, people are temporary 
moving from high to low unemployment regions in the EU.  

In  2021,  based  on  data  from  the  prior  declaration  tools  in  the  receiving  Member  States, 
there were around 1.9 million registered posted workers and 5.9 million postings in the 
EU.50 This is a small increase from 2020, when 1.8 million posted workers and 5.5 million 
postings  were  registered.  The  main  receiving  Member  States  of  posted  workers  are 
Germany, Austria, Belgium and France, while the main sending Member States of posted 
workers  are  Poland,  Lithuania,  and  Germany  (see  the  figure  below).  The  main  flow  of 
postings goes from Poland to Germany.  

48 Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers 

in the framework of the provision of services, Art. 2. 

49  See  for  instance  Lens  et  al.  ‘A  hole  in  the  wall  of  fortress  Europe:  The  trans

country  labour 
migrants’, International Migration, 2021. The article distinguishes between three types of posting based on different drivers 
of posting: ‘competition posting’, ‘specialisation posting’, and ‘expert posting’.  

European  posting  of  third

‐

‐

50  Figures presented in this section are based on F. De Wispelaere, L. De Smedt, & J. Pacolet, 'Posting of workers Collection 
of data from the prior declaration tools Reference year 2021', European Commission DG EMPL, 2023. Member States’ 
policies  on  exempting  posting  undertakings  from  declaration  may  have  an  impact  on  the  number  of  ‘reported’  posted 
workers in the prior declaration tools. In that respect, these data only show the number and characteristics of the ‘reported’ 
posted workers. Data from the Portable Document A1 is another relevant data source. See De Wispelaere, F., De Smedt, 
L., and Pacolet, J., Posting of workers Report on A1 Portable Document issued in 2021, Network Statistics FMSSFE, on 
behalf of the European Commission – DG EMPL, 2023. However, for various reasons, data from the two data sources are 
not fully comparable. Therefore, data from the PD A1 is not used in this section. 

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Figure 1. Main receiving and sending Member States of posted workers, based on 
number of posted persons and number of postings, 2021 

* BE: based on the number of declarations. 

Source: F. De Wispelaere, L. De Smedt, & J. Pacolet, 'Posting of workers - Collection of data from the prior 
declaration tools Reference year 2021', European Commission DG EMPL, 2023. 

The posting of TCNs has been an increasing phenomenon in recent years. The posting 
of  TCNs  does  generally  not  happen  directly  from  outside  the  EU,  but  through  another 
Member State. This is possible seeing that TCNs who are legally residing and who hold a 
valid work permit in one Member State are free to be posted in any other Member State 
across the EU. In several Member States, more than one out of five incoming posted 
workers  are  TCNs  (mainly  in  Austria,  Belgium,  Bulgaria,  France,  Luxembourg,  the 
Netherlands  and  Poland).  Employers  of  posted  TCNs  are  mostly  established  in  Poland, 
Lithuania and Slovenia. TCNs who are posted often come from a neighbouring country of 
these Member States or have strong historical ties with the country. They often have the 
Ukrainian, Belarusian and Bosnian nationality. Belgium, France and Austria, among others, 
are hosting an increasing number of posted TCNs.  

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Figure 2. Number of postings in national declaration tools in the EU, by nationality, 
2021 

Breakdown by nationality

Germany
11,5%

Lithuania
5,2%

Poland
12,9%

Romania
7,7%

Other
33,5%

Non-EU/EFTA
29,1%

Source: De Wispelaere et al., 2023. 

Road freight transport, construction, and manufacturing are the most popular sectors 
for posted workers to be employed in (see the figure below).51 For instance, the construction 
sector  is  the  most  common  sector  for  Belgium,  France,  Cyprus,  Luxembourg,  the 
Netherlands, and Finland, while the transport sector has the highest share in Germany and 
Austria. Intra-EU posting mainly occurs in the context of contract of services. In most 
reporting  Member  States,  the  importance  of  intra-group  posting  and  temporary  agency 
posting  was (very)  low. Only  in  France  and  in  Italy  about  20%  of the  postings  related to 
temporary agency posting. 

Figure 3. Number of postings in national declaration tools in the EU, by sector of 
activity, 2021 

Other  
9,0%

Other services 
activities
9,5%

Manufacturing
9,9%

Construction
22,3%

Transporting 
and storage
49,3%

Source: De Wispelaere et al., 2023. 

The share of intra-EU posting in the national workforce of the receiving Member State 
amounted  to  around  1%.  Nevertheless,  the  impact  of  posting  is  more  substantial  in 
Luxembourg,  Austria,  Belgium,  and  Germany.  In  addition,  the  impact  on  the  national 
workforce  differs  significantly  between  sector  of  activity.  In  the  construction  sector  in 

51 Member States may have exempted certain activities and sectors from the requirement to report in the prior declaration 

tools. This reality has an impact on the sectoral breakdown. In that regard, certain activities and sectors will be 
overrepresented. 

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particular, the impact is relatively high in the case of several Member States, especially in 
Belgium. 

3.3.  Frontier workers 

Cross-border  mobility  also  includes  workers  who  live  in  one  country  and  work  in 
another,52 thus not moving their place of residence permanently, but permanently moving 
their place of work to another EU Member State. A specific type of cross border workers 
are frontier workers, who return to their country of residence “as a rule daily, or at least 
once a week”.53 This group of workers is mainly concentrated within a number of border 
regions  (e.g.,  the  Alpine  and  Greater  Region,  the  Upper  Rhine  region,  the  Meuse-Rhine 
region, the Tri-border region and the Centrope region). 

Drivers for frontier workers are higher wages in the receiving country, job opportunities, 
and lower housing prices. Additionally, both fiscal and social security advantages can be 
pull factors for frontier workers.54 Consequently, cross-border workers in general are said 
to fill labour gaps in many industrial regions, although their potential to ease labour market 
imbalances is not yet fully exploited.55 Furthermore, a common language is an important 
facilitator for cross-border workers and might even outweigh a better economic context in 
the receiving country (although the opposite can occur as well).56  

Although the definition of frontier worker is rather clear in legal terms, there is no general 
EU  data  on  this  type  of  worker.57  In  general,  however,  one  can  consider  the  number  of 
cross-border workers to generate a broad estimation of the number of frontier workers. In 
2021,  there  were  around  1.6  million  cross-border workers  in the  EU-27  and  EFTA,  a 
number which picked up again after the COVID-19 pandemic in 2020.58  

France  (424 000),  Germany (213 000)  and  Poland  (190 000)  are  the  largest  countries  of 
origin, and Germany (378 000), Switzerland (345 000) and Luxembourg (212 000) are the 
largest  countries  of  destination.  In  general,  cross-border  workers  make  up  a  very  small 
proportion  of  the  total  workforce,  namely  less  than  1%.  Nevertheless,  in  Switzerland 
(8%)  and  Luxembourg  (44%),  cross-border  workers  make  up  a  significant  part  of  the 
workforce. The most important flows of cross-border workers take place in the Alpine region 
(incl.  bordering  regions  between  France,  Switzerland  and  Italy),  the  Upper-Rhine  region 
(France, Switzerland and Italy) and the Greater Region (France, Belgium, Luxembourg and 
Germany). Together they account for almost 50% of all flows. Further, the data shows that 
the majority of cross-border workers in 2021 were male (70%) and a high share is employed 
in manufacturing and construction (46%). 

52 Hassan et al., 'Annual Report on Intra-EU Labour Mobility 2021', 2023., p. 7. 
53 As defined in Article 1(f) in Regulation (EC) No 883/2004. 
54 Y. Jorens, P. Minderhoud, & J. De Coninck, 'Comparative Report – Frontier workers in the EU', European Commission DG 

EMPL, 2015. 

55  E.  Fries-Tersch &  V. Mabilia,  '2015  Annual  Report  on  Labour Mobility Final  Report',  European  Commission  DG EMPL, 

2015, available at:  

56 E. Fries-Tersch, T. Tugran, L. Rossi, & H. Bradley, '2017 annual report on intra-EU labour mobility', European Commission 

DG EMPL, 2018. 

57  The EU Labour Force Survey data (EU-LFS) does not distinguish frontier workers from other types of workers, as the 

frequency of commuting, an essential part of the definition of frontier workers, is not measured. 

58 It concerns EU-27 or EFTA citizens living in one EU/EFTA country and working in another EU/EFTA country. For more 
information on cross-border work in the EU/EFTA see Hassan et al., 'Annual Report on Intra-EU Labour Mobility 2022', 
2023.   

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3.4.  Seasonal workers 

Seasonal workers “undertake temporary work abroad during seasonal increases in 
labour  demand,  without  changing  permanent residence”.59  There  are many  different 
drivers  for  seasonal  work,  such  as  economic,  social,  environmental,  policy-related,  and 
psychological factors.60 A clear pull factor is the demand for labour on specific occasions, 
for  instance  weather  conditions,  harvesting  season,  holidays,  or  cultural  festivals.61  In 
addition, higher wages and job opportunities are pull factors for seasonal workers.62 On the 
other  hand,  environmental  factors  such  as  resource  depletion  and  natural  disasters  are 
important push factors for seasonal mobility.  

Once  more,  there  is  little  statistical  information  about  this  group,  especially  when 
considering intra-EU seasonal workers.63 A recent report on intra-EU mobility of seasonal 
workers  provides  us  with  some  interesting  insights.64  Seasonal  work  often  takes  place 
using a fixed-term contract in the country of work (either concluded directly at the workplace 
or with a temporary work agency), and less frequently under the posting of workers. The 
report considers the two main sectors in which seasonal work takes place: agriculture, and 
accommodation  and  food  services.  It  is  estimated  there  are  between  650 000  and 
850 000  intra-EU  mobile  seasonal  workers  in  the  EU27,  including  posted  intra-EU 
seasonal workers.65 Out of eight key destination countries (AT, BE, CZ, DE, ES, FR, IT, and 
NL), the highest numbers of intra-EU seasonal workers are found in Germany, Italy, and 
France.66  On  the  other  hand,  Romania,  Poland,  and  Bulgaria  are  identified  as  the  most 
prolific sending countries in the EU. 

The  travel  restrictions  imposed  in  order  to  stop  the  spread  of  the  COVID-19  virus  had 
serious  effects  on  cross-border  workers,  and  seasonal  workers  in  particular.  As  a 
consequence, it became clear that seasonal workers play a crucial role in the food supply 
of  the  EU  Member  States,67  seeing  that  especially  in  the  agricultural  sector,  a  severe 
shortage  of  foreign  labour  was  noted.68  In  March  2020,  the  Commission  published 
guidelines  defining  seasonal  workers  (and  especially  those  in  agriculture)  as  “critical 
workers”  and  encouraging  Member  States  to  implement  fast  cross-border  procedures  in 
order not to interrupt food chain supplies.69 

3.5.  Other mobile workers 

Several  forms  of  intra-EU  labour  mobility  cannot  be  classified  under  above 
categories.  For  instance,  workers  who  are  sent  temporarily  to  work  in  another  Member 
State, but do not provide services there, are not considered as ‘posted workers’ under the 
PWD.  This  is  the  case,  for  example,  of  workers  on  business  trips  when  no  service  is 

59 They are short-term cross-border workers as, by definition, the work they carry out is limited to less than one year. 
60  S.  S.  Panda  &  N.  R.  Mishra,  'Factors  affecting  temporary  labour  migration  for  seasonal  work:  a  review',  Management 

Research Review, 41(10), pp. 1176-1200, 2018. 

61 Fries-Tersch et al., ‘Intra-EU Mobility of Seasonal Workers Trends and Challenges, European Commission’, 2021. 
62  S.  S.  Panda  &  N.  R.  Mishra,  'Factors  affecting  temporary  labour  migration  for  seasonal  work:  a  review',  Management 

Research Review, 41(10), pp. 1176-1200, 2018. 

63  E. Fries-Tersch, L. Siöland, M. Jones, C. Mariotti, and M. Malecka, M. ‘Intra-EU Mobility of Seasonal Workers Trends and 

Challenges. Final Report March 2021, European Commission, 2021.  

64  L.  Siöland,  E.  Hassan,  & M.  Geraci,  ‘Report  on  seasonal  workers and  intra-EU  labour mobility,  European  Commission, 

2023. 

65 This estimation is based on calculations deriving from national data from eight key destination countries (AT, BE, CZ, DE, 
ES, FR, IT, NL) referring to different years between 2015 and 2020. Then data were extrapolated to the EU-27. It has to be 
noted that this estimate largely refers to the agricultural sector, since national data for accommodation and food services 
could only be estimated for AT, DE, and NL. See Fries-Tersch et al., ‘Intra-EU Mobility of Seasonal Workers Trends and 
Challenges. Final Report March 2021, for the full methodology. 

66 Fries-Tersch et al., ‘Intra-EU Mobility of Seasonal Workers Trends and Challenges, European Commission’, 2021. 
67 Fries-Tersch et al., 'Annual Report on Intra-EU Labour Mobility 2021', 2022. 
68 M. L. Augère-Granier, ‘Migrant seasonal workers in the European agricultural sector’, European Parliament Briefing. 
69 https://ec.europa.eu/info/news/coronavirus-seasonal-workers-included-new-guidelines-ensure-free-movement-critical-

workers-2020-marzo-30_en 

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provided.  This  could  be  attending  conferences,  meetings,  fairs,  following  training,  etc. 
These workers are not covered by the Posting of Workers Directive.  

Therefore, these types of mobile persons do not fall under one of the categories previously 
discussed in this report (EU movers, posted workers, frontier workers, or seasonal workers). 
Consequently,  this  group  of  persons  is  considered  as  ‘other  mobile  workers’.  Tourism 
statistics can provide a sense of the size of the phenomenon (a proxy for labour mobility) 
by  showing  the  number  of  arrivals  of  persons  travelling  for  business  or  professional 
purposes.70  Eurostat  data  reports  the  main  purpose  of  the  trip  using  four  categories: 
personal  (leisure,  recreation,  holidays),  personal  (visiting  friends  and  relatives),  other 
personal (e.g., pilgrimage, health treatment), and business/professional.71 The category of 
‘business/professional’ can include a wide range of trips. In 2021, around 9.7 million trips 
for  professions  reasons  were  carried  out  from  EU-27  Member  States  to  other  EU-27 
Member  States,  excluding  withing  the  same country. Most  of  these  trips  for  professional 
reasons are from/go to Germany and France.  

Finally, in 2021, roughly 1.35 million Portable Documents A1 were issued to persons active 
in two or more Member States, with Poland as the main issuing Member State.72 Overall, 
about 42.2% of the forms were issued for persons working in road freight transport.  

3.6.  Summary overview of different forms of cross-border 

intra-EU labour mobility 

As shown in the sections above, many different forms of (temporary) cross-border intra-EU 
labour  mobility  exist.  Several  of  these  forms  overlap  and  lack  a  standardised  definition. 
Therefore, the quantification of this type of labour mobility is severely hampered, not least 
because EU-wide data is also often fragmented and partial. In sum, mapping (temporary) 
cross-border intra-EU labour mobility remains a difficult exercise.  

In the table below three main variables for each type of temporary intra-EU labour mobility 
are identified, in addition to the quantification. First, the main sending and receiving Member 
States  are  identified.  Second,  the  main  flows  of  temporary  cross-border  workers  are 
determined. Finally, the main sectors in which these workers are active are included. The 
table  below  provides  a  concise  overview  of  the  most  important  findings  for  each  type  of 
(temporary) cross-border mobility.  

While there are around 10 million EU movers and 1.6 million cross-border workers, there 
are  also  around  9.7  million  trips  for  professional  reasons  performed,  1.9  million  posted 
workers,  and  a  minimum  of  650 000  seasonal  workers.  This  further  illustrates  the 
importance  and  diversity  of  temporary  cross-border  intra-EU  labour  mobility, 
particularly in light of persistent labour shortages in many Member States. The main sending 
and receiving Member States differ per type of labour mobility. Nevertheless, Poland is a 
frequently recurring sending Member State, while Germany is a common receiving Member 
State. Many flows go between neighbouring Member States, which is not surprising.  

Finally, the most prevalent sectors are varied and sometimes hard to pin down. Many of 
the sectors in which temporary cross-border labour mobility take place are labour-intensive, 
such as construction, transport, manufacturing (e.g., pipefitting), and agriculture. 

70 UNECE 2011, The impact of globalization on national accounts, United Nations, New York and Geneva. 
71 Eurostat [tour_dem_ttw], see also https://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:32011R0692&from=EN.  

72 F. De Wispelaere, De Smedt, L., and Pacolet, J., Posting of workers Report on A1 Portable Document issued in 2021, 
Network Statistics FMSSFE, on behalf of the European Commission – DG EMPL, 2023. Data based on the number of 
PDs A1 issued according to Article 13 of Regulation 883/2004.    

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Table 1. Overview of (temporary) intra-EU cross-border labour mobility 

Type of labour 
mobility 

Number 

Important sending 
Member States (of 
residence) 

Important receiving 
Member States (of 
work) 

Important flows 

Important sectors and countries  

EU movers  

10.0 million (2021) 

Absolute figures: RO, IT, 
BG, DE and PT 

Absolute figures: DE, 
ES, IT, FR, BE and AT 
Relative figures: AT, 
LU, CY and MT 

RO toIT 
PL to DE 
RO to DE 
RO to ES 

Posted workers* 

1.9 million posted 
workers (2021) 
5.9 million postings 
(2021) 

Absolute figures: PL, DE 
and LT 

Absolute figures: DE, 
AT, BE and FR, 
Relative figures: LU, 
AT, BE and DE 

PL to DE 

                        * Of which, posted TCNs 

Posted by PL, LT and SI 
Nationality: Ukraine (UA), 
Belarus (BY) and Bosnia 
and Herzegovina (BiH) 

Relative figures: AT, FR 
and BE 

UA to PL to AT 
UA to PL to BE 
BY to LT to AT 
BiH to SI to AT 

Frontier workers / Cross-
border workers 

1.6 million (2021) 

Absolute figures: FR, PL 
and DE 

Absolute figures: DE, 
CH and LU 
Relative figures: LU 

FR to CH 
PL to DE 
FR to LU 

Seasonal workers 

650 000 – 850 000 
(2020)  

Absolute figures: RO, PL 
and BG 

Absolute figures: DE, IT 
and FR 

Other mobile workers 

9.7 million trips for 
professional reasons 
(2021) 

Absolute figures: DE and 
FR 

DE, FR and BE 

Source: Authors’ compilation, 2023 

•  Manufacturing 
•  Construction 
•  Accommodation 
services 

and 

food 

•  Road freight transport 
•  Construction 
•  Manufacturing 
•  Road freight transport 
•  Construction 
•  Agriculture 
•  Construction 
•  Manufacturing 

•  Agriculture 
•  Accommodation 
services 

•  Business trips 

and 

food 

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4.  Overview of EU and national legal provisions and 

enforcement mechanisms applicable to cross-border 
workers in posting and non-posting situations 

Summary of key findings 

•  The  Member  States  have  implemented  a  range  of  legislative  measures,  non-
legislative  measures  and  enforcement  mechanisms  to  reduce  the  risk  of  poor 
working conditions for posted and other workers.  

Legislative measures 

•  The conditions of workers who are posted by temporary work agencies  

o  Temporary  work  agencies  must  guarantee  posted  temporary  agency 
workers  the  terms  and  conditions  of  employment  applicable  to  temporary 
agency  workers  hired  out  by  temporary  work  agencies  established  in  that 
Member State (principle of equal treatment). Member States may derogate 
from this through collective bargaining. 

o  Generally,  no  differences  exist,  in  law,  in  the  protection  between  posted 
workers employed by temporary work agencies and local workers employed 
by temporary work agencies in the Member States. 

o  Registration  and  licensing  obligations  are  in  place  to  increase  traceability 
and  accountability  of  temporary  work  agencies.  Additional  safeguards  for 
temporary agency workers, such as specific rules for subcontracting chains 
involving temporary work agencies, are in place in some Member States. 

•  Subcontracting chains and liability provisions 

o  Member States use various mechanisms to regulate subcontracting chains, 
including:  (1)  imposing  a  ceiling  on  the  number  of  subcontracting  levels 
within a subcontracting chain, and (2) liability mechanisms, such as direct 
subcontracting  liability  within  the  construction  sector,  joint  and  several 
liability  or  subsidiary  liability,  full  chain  liability,  and  direct  subcontracting 
liability in other sectors.  

o  The use of due diligence mechanisms has also been observed as potentially 

providing more protection for workers. 

o  Some  Member  States  (e.g.,  FI,  DK)  have  not  implemented  direct 
subcontracting liability, however have implemented alternative measures. 

•  Role and applicability of collective agreements in these situations  

o  Collective  agreements  can  be  applied  to  posted  workers  and  other 
temporary cross-border mobile workers, depending on the conditions of the 
collective  agreement  and  the  legal  tradition  and  social  structure  of  the 
Member States. 

o 

In  practice,  most  Member  States  apply  collective  agreements  to  these 
workers, however they are often applied at different levels (e.g., universally 
or  generally  applicable  collective  agreements,  sectoral  collective 
agreements). 

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o  Collective  agreements  can  often  offer  more  protections  to  posted  workers 

than those entailed in the national legislation. 

•  Systematic involvement of TCNs 

o  TCNs  are  more  likely  to  find  themselves  in  precarious  working  and  living 

conditions, in comparison to EU posted workers. 

o  TCNs  can  often  be  seasonal  workers  and  some  Member  States  have 

measures in place for their protection.  

Non-legislative measures  

•  Member  States  have  implemented  non-legislative  measures  such  as  the  single 
official  national  website,  have  compiled  guidelines  and  information  materials,  and 
often provide legal advice to posted workers.  

•  Cooperation  in  non-legislative  form  takes  place  between  Member  States  (e.g., 
through the Internal Market Information System (IMI), bilateral agreements, projects), 
within  the  Member  State  (e.g.,  cooperation  between  national  authorities,  national 
authorities and social partners), and other initiatives at Member State level. 

•  How social partners are involved: 

o  Social  partners  are  involved  in  various  ways:  as  actors  of  enforcement, 
directly  or 
for  example, 
indirectly  enforcing  posting  provisions  by, 
representing  posted  workers  in  proceedings,  or  receiving  complaints  from 
posted workers or employees.  

o  Social partners are also key in cooperating with national authorities as well 

as other actors inside or outside of the Member State. 

Enforcement mechanisms 

•  Key enforcement challenges: 

o  Lack  of  respect  for  terms  and  conditions  of  employment,  social  dumping, 
illegal work, labour exploitation, unfair competition, omission/falsification of 
mandatory declarations. 

• 

Instances  of  undertakings  working  outside the  law  and  avoiding  detection  through 
(1) the use of unlawful/bogus postings, (2) the use of letterbox companies and (3) 
non-compliance  with  obligations  imposed  by  national  law.  As  a  consequence,  the 
affected workers receive insufficient or no protection during their posting and are not 
able to benefit from the full extension of their rights. At the same time, enforcement 
bodies  struggle  with  capacity  and  competence  issues,  which  affect  detection  of 
problematic situations.  

Section 4 provides an overview of the provisions (legislative and non-legislative) at EU and 
national  levels,  as  well  as  enforcement  mechanisms  applicable  to  temporary  cross-border 
mobile workers in posting and non-posting situations.  

Within this Section, sub-section 4.1 identifies and describes the relevant legal framework at 
EU level. Sub-section 4.2 considers the national legal frameworks, non-legislative measures 
and enforcement mechanisms across the 27 EU Member States, which aim to reduce the risk 
of poor working conditions for posted workers (under Article 56 TFEU) and other temporary 
cross-border mobile workers (under Article 45 TFEU). 

According  to  the  established  methodology  (Section  2.3),  an  in-depth  analysis  has  been 
conducted in 9 main sending (Poland, Spain, Germany and Slovenia) and receiving countries 
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Netherlands,  Luxemburg  and  Denmark).  These 
(Germany,  France,  Belgium,  the 
findings are presented in boxes (indicated with     ) and incorporated throughout Section 4. The 
in-depth  analysis  assesses  the  reasons  and  arrangements  put  into  place  to  ensure  the 
protection  of  workers,  and  focuses  particularly  on  the  role  of  collective  agreements,  posted 
workers in subcontracting chains, posted temporary agency workers and TCNs. 

Section 4 follows the following structure: 

Figure 4. Overview of Section 4 

Section 4

4.1. EU legislation

4.2. National legal 
framework

4.2.1.1. Collective 
agreements

4.2.1.2. Subcontracting 
chains

4.2.1. Legislative 
measures

4.2.1.3. Posted 
temporary agency 
workers

4.2.2. Non-legislative 
measures

4.2.3. Enforcement

4.2.1.4. (Posted) Third 
Country Nationals

4.2.1.5. Other temporary 
cross-border mobile 
workers

4.2.3.1. Subcontracting 
liability

4.2.3.2. Actors of 
enforcement, 
competences

4.2.3.3. Enforcement 
challenges

Through this overview, relevant key sectors and typically problematic situations are identified, 
which are subsequently analysed in Sections 5 and 6. Annex 1 complements the information 
analysed  in  Section  5  by  summarising  key  examples  of  case  law  at  EU  and  national  level, 
which are relevant for the protection of cross-border intra-EU workers. 

4.1.  EU legislation 

The cornerstones of the protection of posted workers at EU level are two important pieces of 
legislation: the PWD and the Enforcement Directive. These Directives form the foundations of 
the rights and protections attributed to posted workers at EU level and build on the freedom to 
provide services.73 

The PWD guarantees the rights and working conditions of posted employees, by defining a 
set  of  mandatory  rules  regarding  the  terms  and  conditions  of  employment  to  be  applied  to 
posted workers. These establish that even though posted workers are still employed by the 
sending company, and subject to the law of the sending Member State, they are entitled to a 
set of rights in force in the host Member State. The 2018 amended PWD essentially requires 

73 Article 56, Treaty on the Functioning of the European Union.  

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the application of all the mandatory elements of remuneration74 and the rules of the receiving 
Member State on workers’ accommodation and allowances or reimbursement of expenses to 
posted  workers,  as  well  as  the  application  of  an  extended  set  of  terms  and  conditions  of 
employment of the receiving Member State to long-term postings. The Enforcement Directive 
is an essential part of the posting of workers regulatory framework as it establishes the practical 
implementation of the rules provided in the PWD. The Enforcement Directive aims at ensuring 
compliance with the PWD and guaranteeing respect for an appropriate level of protection of 
the rights of posted workers for the cross-border provision of services. 

The  PWD  and  the  Enforcement  Directive  are  not  the  only  pieces  of  legislation  aimed  at 
ensuring  the  protection  of  posted  workers.  These  are  accompanied  by  other  relevant  legal 
measures,  for  example  Directive  2008/104/EC  on  temporary  agency  work75  which 
guarantees for those working through temporary work agencies equal pay and conditions with 
employees  hired  directly  by  the  user  undertaking  to  do  the  same  work.  The  PWD  extends 
these  conditions  to  posted  temporary  agency  workers  as  well.  Another  relevant  piece  of 
legislation  is  the  Seasonal  Workers  Directive76  which  establishes  a  separate  protection 
regime for TCN seasonal workers and regulates the movement of TCNs who perform seasonal 
work  in  the  EU  Member  States.77  Other  legislation  exists  at  EU  level  which  concerns,  for 
example,  transparent  and  predictable  working  conditions,78  coordination  of  social  security 
systems,79 and minimum standards on sanctions and measures against employers of illegally 
staying third country nationals,80 which Member States implement at national level and apply 
to temporary cross-border mobile workers in non-posting situations. Whilst this legislation goes 
beyond  the  scope  of  this  study,  it  belongs  to  the  acquis  which  supports  the  protection  of 
workers and their working conditions.  

Moreover,  the  jurisprudence  of  the  Court  of  Justice  of  the  European  Union  (hereafter 
CJEU)  has  been  essential  in  developing  the  principles  enshrined  in  the  legislation  and 
providing useful clarifications on the application of the rules on posting. For instance, in the 
Sähköalojen  ammattiliitto  ry  case  (C-396/13),  the  CJEU  ruled  that  categorising  workers  in 
different pay groups which are universally binding and transparent in a collective agreement 
should also be applied to posted workers. For a more detailed account of the relevant EU legal 
acts and key examples of case law, Annex 1 may be consulted. 

4.2.  National legislative provisions applicable to posted 
workers and other temporary cross-border mobile 
workers 

Section 4.2 explores the collective agreements and national legislative provisions applicable 
to posted workers, specifically posted workers in subcontracting chains and posted temporary 
agency workers, as well as those legal provisions applicable to other temporary cross-border 

74 Instead of just “minimum rates of pay”. 
75 Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work, 

available at: http://data.europa.eu/eli/dir/2008/104/oj. 

76 Directive 2014/36/EU of the European Parliament and of the Council of 26 February 2014 on the conditions of entry and stay 
of third-country nationals for the purpose of employment as seasonal workers, available at: https://eur-lex.europa.eu/legal-
content/en/ALL/?uri=celex%3A32014L0036; (hereinafter: Seasonal Workers Directive). Please note that the legal basis for 
this Directive is Article 45 TFEU (freedom to provide services).  

77 It should be noted that, according to Recitals 54 and 55, Denmark and Ireland do not participate in the adoption process of the 

Seasonal Workers Directive, hence its binding force and application is not relevant to those two countries.  

78 Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable 

working conditions in the European Union, available at: http://data.europa.eu/eli/dir/2019/1152/oj.  

79 Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social 

security systems, available at: http://data.europa.eu/eli/reg/2004/883/2014-01-01. 

80 Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on 

sanctions and measures against employers of illegally staying third-country nationals, available at: 
http://data.europa.eu/eli/dir/2009/52/oj.  

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mobile  workers.  The  national  legal  framework  applicable  to  these  workers  is  extremely 
important, as it sets the basis for the protection and rights that these workers are entitled to at 
the national level. The actions that Member States have taken, at legislative level, to reduce 
the risks of poor working conditions for these types of workers are outlined in this section. 

Analysis conducted on the 9 in-depth countries (BE, DE, DK, ES, FR, LU, NL, SI, PL) zooms 
in on the key dimensions relevant for posted workers and other temporary cross-border mobile 
workers, namely collective agreements, subcontracting chains, posted temporary agency work 
and specific provisions for posted TCNs. The in-depth insights consider receiving structures 
and  sending  structures,  where  the  availability  of  data  allows.  Poland,  Spain,  Germany  and 
Slovenia have high numbers of outgoing postings, whereas Germany, France, Belgium, the 
Netherlands,  Luxembourg  and  Denmark  are  the  Member  States  receiving  most  posted 
workers.  These  9  countries  are  also  key  sending  or  receiving  countries  of  other  temporary 
cross-border workers (e.g., seasonal workers, live-in carers). 

4.2.1.  Collective agreements 

This sub-section outlines the applicability of collective agreements to temporary cross-border 
mobile workers in posting and non-posting situations and the implications therein. Collective 
agreements, together with the national legislative measures, comprise the landscape of rights 
and protections which, if applicable, posted and non-posted workers can avail themselves of. 

Initially, it is paramount to define collective agreements: collective agreements are the result 
of collective bargaining, which entails the negotiations between workers’ organisations (e.g., 
trade  unions)  and  employers  or  their  organisations.  Collective  agreements  regulate  the 
content of the individual employment contracts and the relationship between employers 
and workers, and may be concluded at different levels, such as the regional level, sectoral 
level, or company level.  

The EU legal framework related to posted workers81 establishes that generally, it is possible 
to  apply  collective  agreements  to  posted  workers  where  those  collective  agreements  are 
universally applicable,82 or where an alternative system83 is in place.84 Member States can use 
one or both of these possibilities to apply the standards and the conditions set in said collective 
agreements to posted workers. 

81 Article 3(8) PWD, as amended.  
82 A universally applicable collective agreement is a collective agreement which must be observed by all undertakings in the 

geographical area and in the profession or industry concerned.  

83 Generally applicable collective agreements or arbitration awards applicable to all similar undertakings in the geographical 

area and in the profession / industry concerned; and collective agreements concluded by the most representative employers’ 
and labour organisations at national level and which are applied throughout national territory. 

84 As per Article 3(8) of the PWD.  

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Figure 5. Level at which collective agreements are applicable to posted workers 

Universally / generally 
applicable collective 
agreements 

Industrial / sectoral 
collective agreements 

Company level collective 
agreements 

• Belgium 

(if 

compulsory) 

• Denmark 
•
France 
• Germany 
• Spain  

• Belgium (if 

compulsory) 

• Denmark 
•
France 
• Germany 
•
Luxembourg 
• Netherlands 
• Slovenia 
• Spain 

• Belgium (if 

compulsory) 
•
France 
• Netherlands 

Nevertheless,  once  workers  are  posted  from  the  sending  country  to  the  receiving  country, 
posted workers and other temporary cross-border mobile workers will be covered by 
the collective agreements of the receiving state, should the conditions be applicable.   

Box 1. Collective agreements in the 9 Member States 

All Member States considered in the in-depth analysis apply collective agreements 
to posted workers and other temporary cross-border mobile workers, except for Poland, 
which  does  not  apply  collective  agreements.85  By  contrast,  in  the  rest  of  the  selected 
Member States (BE, DE, DK, ES, FR, LU, NL, SI), collective agreements are applicable 
to  posted  workers  and  other  temporary  cross  border  mobile  workers,  however  under 
different  circumstances  in  each  Member  State.  Given  that  legal  traditions  and  social 
structures  differ  between  Member  States,  whether  and  the  extent  to  which  collective 
agreements  protect  posted  workers  and  other  temporary  cross-border  mobile  workers 
varies across the Member States.  

In  Spain,  for  instance,  collective  agreements  are  applicable  erga  omnes  and  therefore 
apply  to  posted  workers,  who  may  benefit  from  the  terms  safeguarded  under  them,  if 
employers apply them as intended. Collective agreements exist at company, sectoral and 
territorial86  level  in  Spain.  The  2021  Spanish  Labour  Reform87  avoids  the  priority 
application  of  company  collective  agreements  over  sectoral  collective  agreements  in 
remuneration  matters.  This  is  beneficial  for  posted  workers  and  other  temporary cross-
border mobile workers, as sectoral agreements offer better protection.  

In Slovenia, collective agreements are applicable to posted workers and other temporary 
cross-border mobile workers in specific sectors, such as construction or road passenger 
transport.  Workers  in  those  sectors  may  benefit  from  the  protections  offered  by  the 
collective  agreements.  In  Germany,  collective  agreements  that  have  been  declared 

85 Additionally, in Poland, social partners are not involved in drafting legislation either. 
86 This refers to the state, regional or provincial level in Spain. 
87 Real Decreto-ley 32/2021, de 28 de diciembre, de medidas urgentes para la reforma laboral, la garantía de la estabilidad en 
el empleo y la transformación del mercado de trabajo (Royal Decree- Law 32/2021, of 28 December, on urgent measures for 
labor reform, the guarantee of employment stability and the transformation of the labor market), available at: 
https://www.boe.es/eli/es/rdl/2021/12/28/32/con  

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generally  binding  throughout  Germany  are  applicable  to  posted  workers.  Nevertheless, 
regional-level collective agreements do not apply to posted workers, if the posting lasts 
less than 12 months. 88 It should be noted that on average postings in the EU last less than 
12 months,89 and therefore, in practice, the regional collective agreements only apply in 
those limited cases where the posting is extended beyond 12 months.   

In  France,  collective  agreements  are  largely  applicable  and  apply  to  posted  workers at 
regional  and  sectoral  level,  depending  on  the  activity  and  choices  of social  partners.  A 
similar  situation  exists  in  Belgium,  where  collective  agreements  that  have  been  made 
compulsory  by  Royal  Decree  must  be  applied  to  posted  workers.  On  the  contrary,  in 
Luxembourg, collective agreements at the sectoral level apply to posted workers, whereas 
collective  agreements  at  company  level  do  not  apply  to  them.90  Nevertheless,  sectoral 
agreements in Luxembourg aim to limit potential competition on wages from new entrants 
into the specific sector,91 and would therefore offer protection to posted workers and other 
temporary cross-border workers as regards remuneration. It should, however, be noted 
that  there  are  many  more  company  level  than  sectoral  collective  agreements  in  place, 
therefore posted and other temporary cross-border mobile workers would only benefit from 
collective agreements if they are employed in specific sectors covered by them.  

The situation in the Netherlands is more complicated, as 700 collective agreements are in 
place, concluded at sectoral or company level. Collective agreements in the Netherlands 
are either approved by social partners (“publicly approved collective agreements” – “ABB”) 
or related to specific ‘branches’ that do not necessarily need to be publicly approved.92  
Individual employment contracts must refer to the applicable collective agreement in order 
to be enforced, as this allows enforcers to decide which collective agreements apply in a 
certain situation. Whilst this may imply that at times posted workers can be covered by 
collective agreements which grant them more favourable terms, it can often be difficult to 
determine which collective agreement is applicable.  

Lastly, the  case  of  Denmark  differs from the rest  of  the  Member  States,  as the  Danish 
labour market model is built on a division of labour between the state and social partners. 
The  latter  have  a  large  influence  over  employment  policy  and  wage  setting,  as  well  as 
working  conditions,93  and  engage  in  collective  bargaining  every  3  years.  In  the  Danish 
Model,  wages  and  working  hours  are  primarily  regulated  by  collective  agreements  or 
individual employment contracts, as there is no statutory minimum wage. Nevertheless, 
neither  Danish  nor  foreign  undertakings  are  legally  required  to  comply  with  collective 
agreements or to conclude one. Foreign undertakings can be contacted by trade unions 
to enter into an agreement for their posted workers or can join an employers’ organisation 
that  can  negotiate  on  their  behalf.  In  effect,  the  state  refrains  from  intervening  in  the 
regulation of pay and working conditions as far as possible.  

88 Also 18 months, should be posting be extended. 
89 J. Pacolet & F. De Wispelaere, ‘Posting of workers Report on A1 portable documents issued in 2014’,European Commission 

DG EMPL, available at: https://hiva.kuleuven.be/nl/nieuws/docs/posting-of-workers-2014.pdf. See also:  
https://www.mobilelabour.eu/wp-content/uploads/2020/02/PD-A1-report-Reference-year-2018.pdf. 

90 Article  L. 141-1 refers to L. 010-1, Labour Code. 
91 Luxembourg: an instance of eroding stability? By Adrien Thomas, Vassil Kirov and Patrick Thill, in Collective bargaining in 

Europe: towards an endgame, edited by Torsten Müller, Kurt Vandaele and Jeremy Waddington, ETUI, 2019. 

92 FNV v. Van den Bosch Transports BV (CJEU 1 December 2020, case C-815/18): CJEU held, amongst other things, that a 

foreign subcontractor is bound to comply with a collective labour agreement that is not declared universally binding.  

93 See also: https://workplacedenmark.dk/working-conditions/the-danish-labour-market/.  

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4.2.2.  Posted workers in subcontracting chains 

This section presents the legislative framework Member States have in place to protect posted 
workers in subcontracting chains. The protection of posted workers is particularly challenging 
in subcontracting chains which are widely used in labour intensive industries.94  

In  terms  of  national  legal  frameworks,  Member  States  attribute  the  same  protection  to 
posted workers in subcontracting chains as to local workers in subcontracting chains, 
with  the  exception  of those Member  States  where the  applicability  of  collective  agreements 
may  change  this  (e.g.,  where  only  generally  binding  collective  agreements  apply  to  posted 
workers where posting lasts less than 12(18) months, whereas the regional generally binding 
collective  agreements  would  apply  to  posted  workers  only  if  the  posting  lasts  longer  than 
12(18) months).95  Similarly,  national  legal  frameworks  of  the  Member  States  attribute the 
same protection to TCNs in subcontracting chains and local workers in subcontracting 
chains  with  the  exception  of  those  Member  States  where  the  applicability  of  collective 
agreements may affect this or where different levels of protection are prescribed in terms of 
worker’s accommodation.96 Usually, the applicability of collective agreements results in better 
conditions for the workers covered by them.97    

In practice however, compliance with these rules in the field of posting and effective protection 
of posted workers' rights (e.g., terms and conditions of employment) in subcontracting chains 
is  rendered  difficult  to  achieve.98  Particularly  the  intrinsic  nature  of  subcontracting  chains 
characterised  by  often  complex  and  lengthy  tiers  affect  the  working  conditions  of  posted 
workers, including the aggravation of social dumping.99 Thus, Member States have adopted 
mitigating measures aiming at tackling the risk of non-compliance and ensuring an effective 
protection of posted workers in subcontracting chains.  

Two key types of rules have been implemented in the Member States to address the risk 
of poor protection of the rights of posted workers in subcontracting chains: 

1.  A ceiling on the number of subcontracting levels within subcontracting chains 

which can be further subdivided into 2 approaches: 

a.  Ceiling on the number of subcontracting levels imposed in a specific sector 
b.  Ceiling on the number of subcontracting levels imposed in several sectors 

2.  The use of liability mechanisms which can be further subdivided into 5 forms: 

a.  Direct subcontracting liability within the construction sector 
b.  Direct subcontracting liability in other sectors than the construction sector 
c.  Joint and several liability scheme for unpaid wages 
d.  Subsidiary liability 
e.  Full chain liability 

94 Policy Department for Citizens’ Rights and Constitutional Affairs, Directorate General for Internal Policies of the Union, European 
Parliament, Liability in Subcontracting chains: national rules and the need for a European Framework‘, PE 596.798, July 2017, 
p. 20. Please note that some Member States have prohibited subcontracting chains in specific sectors, for example, for contracts 
linked to defence and security (FR) and the meat industry (DE). 

95 This information stems from national desk research across the 27 EU Member States. 
96 Ibid. 
97 For a more detailed explanation, please consult Section 4.2.1 “Collective agreements”. 
98 Recital (36), Enforcement Directive. 
99 Directorate General for Internal Policies, Policy Department for Citizens’ Rights and Constitutional Affairs, ‘Liability in 

Subcontracting Chains: National Rules and the Need for a European Framework’, available at: 
https://www.europarl.europa.eu/RegData/etudes/STUD/2017/596798/IPOL_STU(2017)596798_EN.pdf.  

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Figure 6. Overview of the rules addressing the risk of poor protection of the rights of 
posted workers in subcontracting chains 

Rules addressing the 
risk of poor protection 
of rights of posted 
workers in 
subcontracting chains

Imposing a ceiling on 
the number of 
subcontracting levels 
within subcontracting 
chains

The use of liability 
mechanisms

Ceiling on the number 
of subcontracting levels 
imposed in a specific 
sector

Ceiling on the number 
of subcontracting levels 
imposed in several 
sectors

Direct subcontracting 
liability within the 
construction sector

Direct subcontracting 
liability in other sectors 
than the construction 
sector

Joint and several 
liability scheme for 
unpaid wages

Subsidiary liability

Full chain liability

4.2.2.1.  Ceiling on the number of subcontracting levels within 

subcontracting chains 

Applying a ceiling on the number of subcontracting levels within subcontracting chains 
leads to avoid long subcontracting chains which tend to add opacity to whole chains. However, 
most  Member  States  do  not  prescribe  a  maximum  ceiling  for  the  levels  in  subcontracting 
chains. Desk research has shown that 4 Member States (BE, ES, FR, IT) prescribe a maximum 
number of subcontracting tiers.  

Box 2. Ceiling on the number of subcontracting levels within subcontracting 
chains 

Spain  has  adopted  legislation  prescribing  a  maximum  of  4  subcontracting  tiers  in  the 
construction sector.  

Belgium, France and Italy prescribe a maximum number of subcontracting tiers in relation 
to  public  contracts.  More  specifically,  in  Belgium,  in  the  case  of  public  procurement  in 
fraud-sensitive sectors, a maximum of 2 or 3 levels100 are prescribed.  

This  approach  has  not  been  followed  by  Poland,  Germany,  Slovenia,  Luxembourg, 
Denmark, and the Netherlands, which do not prescribe any limitation to the subcontracting 
levels regardless the sector.  

100 Whether it is 2 or 3 levels depends on the type of assignment. 
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4.2.2.2.  The use of liability mechanisms 

The use of liability101 mechanisms imposed on different actors within subcontracting chains 
enhances the protection of posted workers’ rights as well. There are different forms of liability 
engaging to different degrees the liability of actors within subcontracting chains.  

A majority of Member States have introduced subcontracting liability which allows posted 
workers  to  hold  the  contractor  of  which  the  employer  is  a  direct  subcontractor  liable  for 
respecting the terms and conditions of employment applicable to posted workers.102 In line with 
EU law, and in particular Article 12(2) of the Enforcement Directive, most of the EU Member 
States have introduced subcontracting liability within the construction sector, except for 
Denmark and Finland.  

The  Enforcement  Directive  allows  Member  States  to  take  “other  appropriate  enforcement 
measures” aimed at ensuring effective and proportionate sanctions against the contractor, in 
a  direct  subcontracting  relationship.103  Based  on  this,  Finland  has  adopted  an  Act104  which 
applies to all sectors where subcontracting or temporary work is utilised. It requires that before 
entering into an agreement, the contractor must ensure that its contracting partners comply 
with their statutory obligations, which is verified by providing certain required documents, that 
must be retained for a minimum period of 2 years after the work has ended. Each contractor 
is responsible for obtaining the reports from their own contracting partners. The contractor has 
the obligation of requesting the reports and the contracting partner must deliver them to the 
contractor. Ultimately, failing to comply with the Act can result in the imposition of a negligence 
fee.  

Box 3. The Labour Market Fund for Posted Workers in Denmark 

Whereas  Belgium,  France,  Germany,  Luxembourg,  the  Netherlands,  Poland,  Slovenia, 
and  Spain  have  introduced  a  direct  subcontracting  liability  in  the  construction  sector, 
Denmark has not followed this approach.  

Denmark  has  established  a  special  fund,  the  Danish  Labour  Market  Fund  for  Posted 
Workers105  which is not sector specific and is funded by contributions from all employers 
providing  services  in  Denmark,  both  Danish  and  foreign.  Posted  workers  who  do  not 
receive their remuneration can get compensation from the Fund.  

However, they have to fulfil some conditions before being able to receive remuneration 
from the Fund: they have to be posted from an EU/EEA country, they need to be covered 
by  a  Danish  collective  agreement,  they  need  to  have  their  wage  claim  upheld  in  the 
industrial dispute settlement system, and they need to have unsuccessfully attempted to 
receive the wage from the employer.  

If workers manage to obtain the missing wage paid from the Fund, the employer, as well 
as the Danish service recipient, are imposed to pay an extraordinary contribution to the 

101 Liability concerns the obligation on a contracting party who fails to fulfil all or part of the obligations under the contract to 

make good the damage cause to the other party. 

102 In light of Article 3 of the PWD, as amended. 
103 As per Article 12(6) of the Enforcement Directive. 
104 Laki tilaajan selvitysvelvollisuudesta ja vastuusta ulkopuolista työvoimaa käytettäessä (Act on the Contractor’s Obligations and 
Liability  when  Work  is  Contracted  Out)  1233/2006,  adopted  on  22  December  2006  as  amended,  available  at 
https://finlex.fi/fi/laki/ajantasa/2006/20061233.  

105  The  Danish  Fund  for  Posted  Workers,  available  at:  https://workplacedenmark.dk/working-conditions/danish-labour-market-
fund/; Lov om Arbejdsmarkedets Fond for Udstationerede (The Act on the Labour Market Fund for Posted Workers), available 
at: https://www.retsinformation.dk/eli/lta/2016/613. 

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Fund. Foreign employers in violation of the provision of wages are included in a public list, 
on which they will remain for 36 months after the date of the payment of wages by the 
Fund. 

Additionally,  some  Member  States  have  expanded  the  subcontracting  liability  to  other 
sectors than the construction sector. Around half of the Member States opted for applying the 
provisions  on  subcontracting  liability  to  all  sectors  i.e.,  they  adopted  a  sector  neutral 
subcontracting liability (AT, BE, BG, CZ, DE, FR, HU, IT, LU, MT, NL, PT, SK).  

Box 4. Expansion of the subcontracting liability to other sectors 

Belgium, France, Luxembourg and the Netherlands adopt a sector neutral subcontracting 
liability.  

Germany  adopts  a  hybrid  approach  in  that  regard.  Whereas  there  is  a  minimum  wage 
liability  in  all  sectors,  a  general  contractor  liability  for  the  payment  of  social  security 
contributions is foreseen in the construction industry, meat industry and parcel services.   

Poland, Slovenia, and Spain limit subcontracting liability to the construction sector. 

Furthermore, a majority of Member States (AT, BE, BG, CY, DE, EE, EL, ES, FR, HR, HU, 
IE, IT, LU, MT, NL, PL, PT, RO, SE, SK) have put in place a joint and several liability scheme 
for unpaid wages. In that case, when the employer does not pay the worker’s wage, the latter 
can obtain payment of their wage from all the parties that are jointly and severally liable. The 
Croatian  provision,  for  example,  illustrates  the  joint  and  several  liability  scheme:  both  the 
contractor and the employer are liable for unpaid compensation for work performed, to which 
the posted worker is entitled.106 Hence, the mechanism of joint and several liability holds the 
employer (posting workers to another country), as well as the contractor, legally responsible 
towards the posted worker.  

An alternative form of liability, the subsidiary liability, where the obligation to pay the worker 
the unpaid remuneration falls on solely the contractor, is included in the legislation of 4 Member 
States (CZ, LT, LV, SI). With the exception of Czechia, the subsidiary liability in these Member 
States is limited to the construction sector.  

Box 5. Examples of joint and several liability schemes for unpaid wages in EU 
Member States  

In  Spain,  both  contractors  and  subcontractors  are  jointly  and  severally  liable  and  are 
obliged to monitor compliance with the rules on the protection of workers.  

In  Germany,  contractors  and  subcontractors  are  jointly  and  severally  liable  for  the 
statutory  minimum  wage  or  the  minimum  wage  pursuant  to  applicable  collective 
agreements.  

In  the  Netherlands,  with  the  implementation  of  the  Bogus  Schemes  Act  in  2015, 
employees can hold not only the direct employer but all the employer’s clients liable for 
the payment of the wages.  

106 Zakon o upućivanju radnika u Republiku Hrvatsku i prekograničnoj provedbi odluka o novčanoj kazni od 1. siječnja  2021. 
godine (Act on Posting Workers in the Republic of Croatia and cross-border implementation of fines of 1 January 2021), 
Official Journal No. 128/20, available at https://narodne-novine.nn.hr/clanci/sluzbeni/2020_11_128_2438.html (last accessed 
on 19 May 2022). 

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In Belgium, two systems of subcontracting liability coexist: (i) a general system of joint 
and several liability, and (ii) a specific system exclusively concerning the joint and several 
liability of the direct contractor in the construction sector.  

Slovenia  has  opted  for  an  alternative  liability  called  subsidiary  liability  which  concerns 
unpaid  wages  in  the  construction  sector.  According  to  the  subsidiary  liability,  the  user 
undertaking is subsidiary liable for the payment of wages and other employment benefits 
to the worker in respect of the period during which the worker performed work for the user. 
Thus,  the  liability  falls  on  the  sole  contractor.  In  that  sense,  subsidiary  liability  is  less 
protective of the posted worker’s rights in terms of unpaid wages than the joint and several 
liability scheme. 

Moreover, several Member States have chosen to expand the scope of the subcontracting 
liability.  As  such,  some  Member  States  (AT,  BE,  BG,  ES,  FR,  IT,  LT,  LU,  NL,  PL),  have 
introduced a full chain liability, i.e., a subcontracting liability that is not limited to one link up 
the chain.107  

Box 6. Full versus limited chain liability 

Whereas Slovenia limits the subcontracting liability to one link up the chain, Spain, Poland, 
Luxembourg,  Germany,  France,  and  the  Netherlands  have  opted  to  adopt  a  full  chain 
subcontracting liability i.e., each of the actors in the chain can be held liable, which extends 
the posted worker’s remedies.108 However, among those countries opting for a full chain 
liability, the conditions of its applicability differ. Polish legislation limits it to the construction 
sector, whereas in Spain, Luxembourg, and France, the full chain liability is foreseen for 
all the sectors which provides maximum protection to posted workers. 

Finally, liability in subcontracting chains may be limited via provisions on due diligence, 
setting  out  the  notion  that  a  contractor  will  not  be  liable  if  due  diligence  obligations  are 
undertaken. Due diligence obligations potentially add a layer of protection to posted workers, 
as they require undertakings to comply with certain administrative requirements and control 
measures in relation to posting of workers,109 in order to be able to avail of the due diligence 
defence. Nevertheless, is should be noted that the level of protection to posted workers would 
possibly vary, as the notion of “due diligence” is defined at national level and is not harmonised 
throughout the EU.110 

12 Member States (AT, BG, CY, CZ, EE, ES, FR, HR, HU, IE, NL, SE) have implemented a 
clause on due diligence, whilst 1 Member State (IT) has limited the ability to avail of the due 
diligence exemption within the road transport sector only. 12 Member States (BE, DE, EL, LT, 
LU, LV, MT, PL, PT, RO, SI, SK) do not have due diligence exemptions in place.111 

107 This also means that a majority of Member States have implemented subcontracting liability, limit the liability to one link up the 
chain (DE, SI, CY, CZ, EE, EL, HR, IE, LV, MT, PT, SE, SK). 
108 Belgium has adopted a hybrid regime where full chain subcontracting liability is in place in the construction sector but only (1) 
if a client, contractor or subcontractor does not have a declaration in writing proving that they have communicated to the other 
contracting party the address of the Federal Service's website Employment, Work and Social Dialogue in which information 
relating to remuneration is included and (2) if the other contracting party has not certified that it has paid and will pay the 
wages due. (art. 35/6/3 of the law on the protection of the remuneration of workers of 12.4.1965 available at: 
http://www.ejustice.just.fgov.be/eli/loi/1965/04/12/1965041207/justel) 

109 Recital 37, Enforcement Directive. 
110 Article 12(5), Enforcement Directive. 
111 Please note that DK and FI have not introduced subcontracting liability within the construction sector, but have used the 

provision of the Enforcement Directive allowing Member States to take ‘other appropriate enforcement measures’, as seen 
above. 

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Box 7. Due diligence provisions in subcontracting chains 

In France, all companies posting employees to France, as well as subcontractors, have 
to comply with the due diligence declaration obligation. Moreover, if a French undertaking 
is informed in writing by one of the control officers about the non-payment of an employee 
by a subcontractor, it immediately should demand in writing the end of the violation. In 
case of non-compliance, the undertaking is equally liable.  

In Spain, even if there is no specific legislation for corporate due diligence on human rights 
and the environment, Spanish companies are directly or indirectly required to fulfil due 
diligence obligations found in EU or Spanish regulations. An obligation or reciprocal good 
faith between worker and employee is also prescribed by the Statute of Workers.  

Moreover, Belgium and Luxembourg do not have explicit due diligence provisions, but in 
practice contractors may not be liable if they have undertaken certain actions. In Belgium, 
the subcontractor is not liable if they are in possession of a written declaration, signed by 
the  contractor,  in  which  information  on  the  wage  is  provided  and  the  subcontractor 
certifies that the wage is/will be paid; 112 in Luxembourg, if a contractor acts diligently, they 
will not be held liable. Poland and Slovenia do not have due diligence exemptions in place. 
Finally,  in  Germany  new  legislation  on  supply  chain  due  diligence  came  into  force  in 
January  2023,  imposing  due  diligence  obligations  on  companies.  Companies  are  now 
required to establish a due diligence system that identifies, prevents and mitigates human 
rights and environmental risks in their supply chains. 

4.2.3.  Posted temporary agency workers 

This  sub-section  outlines  the  legislative  measures  applicable  to  posted  temporary  agency 
workers, and the protection that they receive therein.  

Temporary  agency  workers  are  those  workers  with  a  contract  of  employment  (or  an 
employment relationship) with a temporary work agency with a view to being assigned to a 
user  undertaking  to  work  temporarily  under  its  supervision  and  direction.113  As  such,  a 
temporary work agency is a natural or legal person which concludes contracts of employment 
(or employment relationships) with temporary agency workers, in order to assign them to user 
undertakings  to  work  there  temporarily  under  their  supervision  or  direction.114  Temporary 
agency  workers  may  be  posted  to  a  user  undertaking  established  in  another  Member 
State, with the result that such a posting falls under the scope of the PWD.  

In the context of the current study, when reference is made to temporary work agencies, it 
is in their capacity as employers. This has an impact on the working conditions of the 
workers  concerned:  whilst  Article  5(1)  of  the  Temporary  Agency  Work  Directive  (hereafter 
TAWD)  provides  for  the  principle  of  equal  treatment  (i.e.,  the  working  and    employment 
conditions  of  temporary  agency  workers  shall  be  at  least  those  that  apply  if  they  had  been 
recruited directly by the undertaking to occupy the same position), Article 5(3) allows Member 
States  to  derogate  from  this  principle  via  collective  bargaining.  Should  the  Member  States 
choose  to  derogate  from  5(1),  the  must,  nevertheless,  respect  the  “overall  protection  of 

112 Please refer to footnote 98 for more information and to Art. 35/6/3 of the law on the protection of the remuneration of workers 

of 12.4.1965 available at: http://www.ejustice.just.fgov.be/eli/loi/1965/04/12/1965041207/justel). 

113 Article 3(1)(c), Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary 

agency work, OJ L 327, 5.12.2008, available at: http://data.europa.eu/eli/dir/2008/104/oj.  

114 Article 3(1)(b), Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary 

agency work, OJ L 327, 5.12.2008, available at: http://data.europa.eu/eli/dir/2008/104/oj. 

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temporary agency workers”.115 Pursuant to Article 5(3), several Member States have adopted 
provisions  allowing  collective  labour  agreements  deviating  from  equal  treatment  of  agency 
workers.116 Only national provisions in Austria, Ireland and Sweden refer to the need for the 
collective  agreements  not  to  prejudice  the  overall  protection  of  temporary  agency  workers, 
whilst in Denmark this protection has been guaranteed by case law.  

In this context, the PWD117 stipulates that temporary work agencies must guarantee posted 
workers  the  terms  and  conditions  of  employment  applicable  to  temporary  agency 
workers hired out by temporary work agencies established in the Member State where the 
work is carried out, as per Article 5 of the TAWD.  

Member States are also allowed, if they so wish, to guarantee temporary agency workers other 
terms and conditions that apply to temporary agency workers in the Member State where the 
work is carried out, in addition to the terms and conditions of employment referred to in the 
TAWD.  

The  desk  research  has  shown  that  all  Member  States  regulate  temporary  agency  work, 
although through different regulations or laws in each case. In some Member States, the same 
rules  as  posted  workers  apply  (e.g.,  EE,  MT),  meaning  that  there  are  not  different  rules  in 
relation  to  posted  temporary  agency  workers  in  place.  In  other  Member  States  there  are 
specific acts or laws which regulate temporary agency work (e.g., AT, CY, DE, DK, EL, ES, FI, 
HR, IE, IT, NL, PL, PT, RO, SE, SI).  

Generally,  no  differences  in  the  protection  between  posted  workers  employed  by 
temporary  work  agencies  and  local  workers  employed  by  temporary  work  agencies, 
were found in the law. No differences were similarly identified in terms of TCN posted workers 
employed by temporary work agencies relative to local workers employed by temporary work 
agencies.  Concerning  differences  between  rules  applicable  to  posted  workers  and  workers 
posted by temporary work agencies, in Denmark, a new reform118 extended rules applicable 
to posted workers as regards workers’ accommodation and the allowance or reimbursement 
of expenditure to workers posted by temporary work agencies.  

The majority of the Member States do not apply additional terms and conditions to these 
workers (as per Article 3(9) of the PWD, as amended). However, 4 Member States (ES, FI, 
FR, PT) do. Among these, Portugal prescribes that a temporary work agency that enters into 
contracts for the posting of workers must (i) provide, in favour of the public employment service, 
a specific deposit amounting to 10% of the wages for the duration of the contract; (ii) guarantee 
medical, medication and hospital services whenever they do not receive the same services in 
the host country; and (iii) ensure the repatriation of the workers. In Finland, a foreign employer 
posting workers to Finland is required to provide the posted workers with statutory occupational 
health care for the duration of their work in Finland.119 

Lastly, in the area of temporary agency work, it is important to consider the occurrence of civil 
law contracts. Civil law contracts are a category of atypical contracts used to contract labour 
and they are based on civil law and not on labour law, thus not offering standard protections 
against dismissals or workers’ rights. Generally, civil law contracts are much less regulated 

115 Article 5(3), Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary 
agency work, OJ L 327, 5.12.2008, available at: http://data.europa.eu/eli/dir/2008/104/oj; Case C-311/21 TimePartner 
Personalmanagement, ECLI:EU:C:2022:983, available at: 
https://curia.europa.eu/juris/liste.jsf?lgrec=fr&td=%3BALL&language=en&num=C-311/21&jur=C.  
116 Austria, Bulgaria, Denmark, Finland, Germany, Hungary, Ireland, Italy, the Netherlands and Sweden. 
117 Article 3(1b), Posting of Workers Directive.  
118 The new reform in the Bekendtgørelse af lov om udstationering af lønmodtagere m.v. nr. 1144 af 14. September 2018, as 
amended (Udstationeringsloven) https://www.retsinformation.dk/eli/lta/2021/2566; Posting of Workers Act nr. 1144 of 14 
september 2018, unofficial translation available at: https://bm.dk/media/7024/consolidation-act-concerning-the-posting-of-
workers-etc.pdf. 

119 Act of Posting Workers; Occupational Health Care Act. 

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than other temporary contracts. In Poland, for instance, civil law contracts are not regulated in 
the Labour Code and therefore do not provide employees with protections or rights guaranteed 
in the Labour Code.120 Moreover, individuals working under civil law contracts are not entitled 
to  paid  leave,  sick  leave,  severance  pay  or  maternity  leave,  whilst  the  notice  period  is  not 
guaranteed. The Civil code does not restrict the number of civil contracts a worker can enter 
into, therefore it is possible that individuals may find themselves entering into multiple civil law 
contracts over a long period of time.121  

The desk research has shown that in 4 Member States (AT, EE, PL, SE) civil law contracts 
may be relied upon to establish a relationship between the posted worker and the temporary 
work  agency.  In  practice,  however,  the  research  indicates  that  civil  law  contracts  are  a 
frequently  used  instrument  within  temporary  agency  work  in  Poland.  By  contrast,  in  the 
remaining Member States, civil law contracts are not commonly used.  

Box 8. Posted temporary agency workers in 9 Member States 

Posted temporary agency workers often provide labour at the lowest levels in the supply 
chain, frequently under low-pay and flexible employment conditions, being susceptible to 
fraudulent  behaviours  by  temporary  work  agencies.  An  analysis  of  such  situations  and 
their impact on workers is conducted in Sections 5 and 7. To counter fraudulent practices, 
the  Member  States  have  implemented  certain  requirements  in  order  to  improve  the 
traceability  and  accountability  of  temporary  work  agencies,  through  registration  and 
licensing obligations for these agencies. These are important instruments through which 
national authorities may keep track and police the activities of temporary work agencies 
in  their  Member  States.  This,  in  turn,  facilitates  the  protection  of  the  rights  granted  to 
posted  workers  through  national  legislation.  Moreover,  some  Member  States  have 
implemented  additional  safeguards  for  posted  temporary  agency  workers  which  aim  to 
further reduce the risk of poor working conditions.  

Sending countries 

In  terms  of  the  sending  countries,  temporary  work  agencies  must  fulfil  administrative 
requirements (in order to post workers from these countries), with the aim of increasing 
the  accountability  of  temporary  work  agencies  to  enforcement  entities  and  generally 
improve the traceability of their activities. In 3 Member States (DE, PL, SI) temporary work 
agencies must be registered. In Germany, there is a special obligation to register with the 
customs  administration  for  employers  who  hire  labour  from  foreign  temporary  work 
agencies. In Poland, a similar registration requirement applies, providing that temporary 
work agencies do not have financial debts, were not punished for labour crimes and the 
business  owners  did  not  have  previous  companies  that  were  liquidated  or  declared 
bankrupt. In Slovenia, all temporary work agencies can be found in a public register, with 
additional requirements to submit statistical data and a report from an independent revisor 
every year. This requirement is in place to be able to monitor the activities of temporary 
work agencies on a yearly basis.   

Additionally,  in  3  Member  States  (DE,  ES,  SI),  temporary  work  agencies  must  obtain 
special permissions or licences. Specifically, in Spain, temporary work agencies have to 
fulfil a number of conditions, including special administrative permissions, availability of a 
minimum organisational structure, the sole involvement in temporary work activities or the 
fulfilment  of  salary  and  social  security  obligations.  With  these  licencing  requirements, 
Spain seeks to permit the operation of those temporary work agencies that intend to fulfil 

120 European Commission, Directorate-General for Employment, Social Affairs and Inclusion, Lewandowski, P., ‘Gaps in access 
to social protection for people working under civil law contracts in Poland : case study’, Publications Office, 2018, available at: 
https://data.europa.eu/doi/10.2767/809502.  

121 Ibid.  

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the requirements that are set by the national legislation. Moreover, in Germany, temporary 
work  agencies  must  have  a  licence  that  allows  the  supply  of  workers  as  part  of  their 
business  activities,  irrespective  of  whether  the  supply  of  workers  is  the  main  or  a 
secondary activity.  

In  addition  to  the  administrative  requirements,  additional  safeguards  are  in  place  for 
posted  temporary  agency  workers  in  some  Member  States.  For  instance,  the  Spanish 
legislation  requires  temporary  work  agencies  to  compare  the  worker’s  salary  (in 
accordance  with their  contract  or  agreement  or foreign  law)  with the  total  remuneration 
established  for  the  job  to  be  performed,  pursuant  to  the  Spanish  collective  agreement 
applicable to the user company. This remuneration must cover the proportional share of 
weekly rest, special payments, public holidays, and holidays. The user company should, 
thus, make sure that the appropriate salary is included in the worker’s contract, which has 
the effect of ensuring that posted temporary agency workers are receiving the appropriate 
remuneration. 

Spanish legislation additionally prescribes that if a temporary work agency posts a worker 
in  the  context  of  a  subcontracting  chain,  the  agency  assumes  full  responsibility  for  the 
fulfilment  of  the  obligations  of  the  PWD,  as  amended.  Thus,  Spanish  legislation  offers 
additional  safeguards  to  posted  temporary  agency  workers,  especially  as  regards 
remuneration  and  establishes  a  clear  line  of  responsibility,  providing  clarity  as  to  the 
entities that the workers may turn to where obligations are not fulfilled.  

Similarly,  in  Slovenia,  there  are  specific  rules  for  subcontracting  chains  involving 
temporary  work  agencies,  aiming  to  ensure  that  posted  temporary  agency  workers  are 
able to claim their rights effectively, through a direct line of contact with the agency. The 
rules  stipulate that the  user  undertaking may post temporary  agency  workers  providing 
that  there  is  an  agreement  between  the  agency  and  the  user  undertaking  and  that  the 
employment  relationship  between  the  agency  and  the  posted  employee  is  maintained 
throughout the posting. 

Receiving countries 

As with the sending countries, in the receiving countries, administrative requirements are 
in  place  to  ensure  that  foreign  temporary  work  agencies  posting  workers  into  those 
Member  States  are  traceable  and  accountable,  vis-à-vis  the  state,  as  well  as  their 
obligations  towards  posted  temporary  agency  workers.  In  two  Member  States  (NL  and 
DK), foreign temporary work agencies posting workers to those Member States must be 
registered in the respective countries. In France, a special declaration must be made by 
the  foreign  temporary  work  agency  posting  workers  to  the  Member  State.  In  Denmark, 
foreign temporary work agencies must be registered122 in the Register for Foreign Service 
Providers (RUT) and are required to notify the RUT of the work that will be conducted by 
the temporary agency worker and to make sure that such worker possesses the health 
certificates and statutory qualifications to conduct the work. Along with Denmark, other 2 
Member States (LU and BE) require a permit or accreditation from foreign temporary work 
agencies.  

In Germany, temporary agency work in mainstream construction is not allowed and has 
been prohibited since 2017. 123 The high incidence of poor working conditions in the sector, 

122 The duty to register in RUT is sanctioned separately with a fine: VestreLandsretsdom (Western High Court Ruling), 22 

September 2014, V.L. S-2220-13 https://at.dk/domme/2014/uforsvarlig-brug-stige-vld-22-09-14/hele-dommen/.   

123 § 1b, Temporary Workers Act, available at: https://www.gesetze-im-internet.de/a_g/__1b.html.  

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prompted the legislator to prohibit temporary agency work with the aim of tackling these 
issues.  

As regards additional safeguards for posted temporary agency workers, 3 Member States 
(NL, LU, DK) have some mechanisms in place. For instance, in the Netherlands, the two 
largest  associations  of  temporary  work  agencies  have  concluded  collective  labour 
agreements  with  the  unions  specifically  for  temporary  agency  workers.  Nevertheless, 
there is no guarantee that the collective labour agreements are appropriately balanced to 
ensure  that  they  do  not  prejudice  the  overall  protection  of  (posted)  temporary  agency 
workers. Consequently, posted temporary agency workers may find themselves worse off 
than they would have been, had the collective agreement not been in place, potentially 
placing workers in more precarious conditions and not necessarily reducing the risks of 
poor working conditions.  

In Germany, the remuneration of temporary agency workers is not standardised, nor is the 
pay in the companies that use them.  The user companies can be in a variety of different 
sectors and the workers are paid differently: a minimum wage applies in temporary agency 
work124  which  is  negotiated  by  the  social  partners  and  is  made  binding  by  law.  The 
minimum  wage may  not  be  undercut  in  the  case  of  posted  temporary  agency  workers. 
Nevertheless, if temporary agency workers are deployed in user companies covered by 
(other) minimum wages under the Posted Workers Act, they must be paid according to 
these minimum wages (which are based on the generally binding collective agreements 
in  the  industries  concerned).  If  no  collective  agreement  applies  to  the  employment 
relationship with the temporary work agency, then the principle of "Equal Pay" applies.125 

In Denmark, posted temporary agency workers may also be covered by, and benefit from, 
collective agreements entered into by the most representative parties in the Danish Labour 
Market (covering the entire Danish area). Despite the fact that Denmark derogates from 
the  principle  of  equal  treatment126  in  the  TAWD,  established  case  law  imposes  the 
obligation  for  collective  labour  agreements  to  ensure  overall  protection  of  (posted) 
temporary agency workers.127  

4.2.4.  (Posted) Third Country Nationals 

This section takes a closer look at posted TCNs. TCNs with a valid work and residence permit 
in one Member State can be posted freely across the EU.128  

TCNs  are  more  likely  to  find  themselves  in  precarious  working  and  living  conditions  as 
compared  to  EU  posted  workers,  as  they  more  often  engage  in  undeclared  work  and  are 
exposed  to  exploitation  and  social  dumping.129  For  these  reasons,  Member  States 
implement rules around the protection of posted TCNs.  

124 Fifth Regulation on a Wage Floor in Temporary Employment. 
125 It should be noted that since January 2023, there is a new collective agreement for temporary agency work in place: 

https://ig-zeitarbeit.de/neuer-tarifabschluss-in-der-zeitarbeit/.  

126 In Article 3(1) PWD, as amended. The principle of equal treatment was recently reaffirmed in Case C-428/19 Rapidsped, 

available at: https://curia.europa.eu/juris/document/document.jsf;jsessionid=6535EBB5ED8D45A05E3E0FA93B24880F?text 
=&docid=243861&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1144389.  

127 For example, Case No. AR2014.0103; FV2019.0126 available at: 

https://arbejdsretten.dk/afgoerelser/afgoerelser/2021/kendelse-af-29-april-2021-i-fv20190126/. 

128 Case C-43/93 Vander Elst v Office des Migrations Internationales [1994] ECR I-3803. 
129 Counteracting undeclared work and labour exploitation of third-country national workers, available at: 

https://ec.europa.eu/social/BlobServlet?docId=23573&langId=en.  

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Box 9. (Posted) TCNs 

From  the  perspective  of  Member  States  sending  a  high  number  of  TCNs,  Poland  has 
implemented  special  provisions  for  workers  from  specific  third  countries.  Citizens  from 
Armenia, Belarus, Georgia, Moldova and the Russian Federation, who work for a period 
not exceeding 6 months within the next 12 months, are exempt from the obligation to have 
a work permit because the declaration of entrustment of work is sufficient.130 Further, in 
relation to the outbreak of the war in Ukraine in February 2022, Ukrainian nationals have 
been additionally granted a special status in Poland that allows them to work without the 
need to obtain a work permit or a declaration of entrustment of work. This applies also to 
those Ukrainian citizens who were legally residing in Poland before the war.131 Whilst some 
of these provisions have been implemented as a response to a humanitarian crisis, they 
facilitate the legality and visibility of workers from these third countries in the EU market, 
potentially exposing them less to the risks of undeclared work and illegal practices. 

Additionally, Member States have obligations in place that ensure that posted TCNs are 
better protected by making them more visible within the labour system. In Slovenia, prior 
to  posting,  employers  must  obtain  an  A1  certificate  for  each  posted  worker  from  the 
competent  authority,  providing  that  the  employer  continues  to  apply  Slovenian  social 
security regulations during the cross-border provision of the service in the posted country. 
This  action may  also  contribute  to  combatting  undeclared  work, as these  TCN  workers 
may be traced and should receive the applicable protections before being posted. 

As  for  the  receiving  perspective,  rules  in relation  to  TCNs  are  stricter  in  some Member 
States.132 For instance, TCNs can be posted to Germany only if they are in the possession 
of the ‘Vander Elst’ Visa.133 This is a type of work permit for third-country nationals who 
are employed for work by a company in another EU/EEA Member State. This is discussed 
further in the case study on posted TCNs in the construction sector (section 6.5). TCNs 
can be posted to the Netherlands only if they are in possession of a work permit. Moreover, 
foreign employers shall indicate in the notification that the worker’s nationality is that of a 
third country. If the posting is more than three months, the third-country worker shall also 
apply  to  the  Immigration  Service  in  order  to  obtain  a  temporary  residence  permit.  This 
measure ultimately increases the visibility of posted TCNs and allows them to benefit from 
(temporary) rights of residence in that Member State. 

Examples of infringements in relation to posted TCNs are discussed in Sections 5 and 6 (see 
in  particular  the  case  study  on  seasonal  workers  in  agriculture  and  on  posted  TCNs  in  the 
construction sector). 

4.2.5.  Legal provisions applicable to other temporary cross-

border mobile workers (as per Article 45 TFEU) 

In accordance with Article 45 TFEU, free movement of workers is secured within the Union, 
requiring the abolition of discrimination based on nationality between workers of the Member 

130 Art. 87 ust. 3 and Art. 88z of Act of 20 April 2004 on employment and promoting and work market institutions, Journal of 

Laws 2004 No 99 Item 1001 (Ustawa z dnia 20 kwietnia 2004 o promocji zatrudnienia i instytucjach rynku pracy), available at: 
https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU20210001100/U/D20211100Lj.pdf.  

131 Act of 12 March 2022 on assistance to Ukrainian citizens in connection with armed conflict on the territory of this state 
(Ustawa z dnia 12 marca 2022 r. o pomocy obywatelom Ukrainy w związku z konfliktem zbrojnym na terytorium tego 
państwa), available at: https://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20220000583.  

132 Please see the European Labour Authority ‘Report on the cooperation practices, possibilities and challenges between 

Member States – specifically in relation to the posting of third-country nationals’, available at: 
https://www.ela.europa.eu/sites/default/files/2023-04/ela-report-posting-third-country-nationals.pdf  

133 Case C-43/93 Raymond Vander Elst v Office des Migrations Internationale, available at : https://eur-lex.europa.eu/legal-

content/EN/TXT/?uri=CELEX%3A61993CJ0043.   

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States  “as  regards  employment,  remuneration  and  other  conditions  of  work  and 
employment”.134  As  such,  temporary  cross-border  mobile  workers,  who  are  not  posted,  fall 
within the scope of this Article.  

One type of temporary cross-border mobile workers, as identified in Section 4, are seasonal 
workers. Movement of TCNs who perform seasonal work in EU Member States is regulated 
by  the  Seasonal Workers  Directive. When  considering  the rights  of  TCN  seasonal  workers, 
desk research has identified that, in several Member States (e.g., AT, LU, MT, SI), general 
rules on the rights of TCNs were relied upon (rather than being covered by specific rules in 
relation to posting), namely in relation to residence permits and the need for visas to work.  

Other  specific  provisions  concerning  the  protection  of  rights  of  the  seasonal  workers  were 
observed  in  Greece,  where,  e.g.  in  the  tourism  sector  seasonal  workers  have  their  re-
employment guaranteed during the following season, provided they apply for it within a specific 
timeline.  If  the  employer  denies  the  renewal  of  the  work  contract,  the  seasonal  worker  is 
entitled to compensation.135 In other Member States, no specific legal framework applicable to 
seasonal workers exists (e.g., AT,136 CZ, FI, HU, IE, LT, LV, SI). The Netherlands and France 
regulate specific fixed-term contracts for seasonal workers: in the Netherlands these contracts 
may not exceed the duration of 24 weeks; in France, fixed-term contracts must exclusively be 
used  on  a  non-permanent  basis  and  contain  precise  mandatory  information.  In  France, 
seasonal workers enjoy the principle of equal treatment in relation to remuneration, working 
time and vacation. In Belgium, seasonal workers do not have normal employment contracts, 
as they have daily ones. Special rules, thus, apply. 

The  desk  research  indicates  that  in  some  Member  States  the  rules  applicable  to  seasonal 
workers  in  relation  to  working  conditions  are  the  same  as  those  applied  to  posted  workers 
(e.g., DK, HR).  Additionally, the desk research has identified no differences in protection 
between temporary cross-border mobile workers and local workers in law, in the majority 
of  Member  States.  However,  collective  agreements  and  their  applicability  may  cause 
differences in this regard (e.g., DE, IE, SE).137 

As  enshrined  in  Article  45  TFEU,  labour  mobility  within  the  internal  market  is  vital  for 
employment  advancement  and  economic  growth.138  Labour  mobility  is  reliant  to  a  certain 
degree  upon  the  quality  of  legal  and  administrative  assistance  provided  by  the  national 
authorities and private entities to employers seeking to hire posted or other types of temporary 
cross-border  workers.  Within  the  framework  of  temporary  cross-border  mobile  work,  third 
actors are often involved in the recruitment and employment process and can be categorised 
as labour market intermediaries. The literature describes them as “private or public entities 
or  institutions  mediating  between  the  individual  seeking  employment  and  the  employer, 
[mainly]  operating  either  as  Employment  Placement  Agencies  (EPAs)  or  Temporary  Work 
Agencies (TWAs)“.139  

There is no harmonised definition of “labour market intermediaries” across the Member States, 
however. Some Member States refer to having the possibility, within the national legislation, 
of establishing employment placement agencies (e.g., BG, CY, ES, HU, IE, PT). In Luxem-

134 Article 45, Treaty on the Functioning of the European Union. 
135 See also for further details: Hellenic Manpower Employment Organization, “Seasonal Work in Greece: Guide about 

employment and social security of seasonal workers in Greece”, available at: https://www.google.gr/url?sa=t&rct=j&q=&esrc= 
s&source=web&cd=&ved=2ahUKEwiJ5rTM68_3AhWSHuwKHcGnBdQQFnoECAIQAQ&url=https%3A%2F%2Foaed.gr%2Fst
orage%2Feures%2Fseasonal-work-in-greece-en-11.pdf&usg=AOvVaw3UI4uNQADXBmO2Q7jvzs0d. 

136 However, in Austria, the Federal Minister of Labour may set quotas for the employment of seasonal workers if the demand 
for such workers cannot be met by the available local labour force. Please see, Act Governing the Employment of Foreign 
Nationals (AuslBG), Chapter II Employment permit, Conditions, paragraph 4(4), available at: 
https://www.migration.gv.at/fileadmin/downloads/gesetzestexte/AuslBG_englisch_1_10_2017.pdf 

137 Please note that collective agreements are discussed in detail in Section 4.2.1. 
138 Eurofound, ‘Regulation of labour market intermediaries and the role of social partners in preventing trafficking of labour, 2016, 
p.  3,  available  at:  https://www.eurofound.europa.eu/publications/report/2016/labour-market-industrial-relations/regulation-of-
labour-market-intermediaries-and-the-role-of-social-partners-in-preventing-trafficking.  

139 Ibid, p. 1. 

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bourg, a labour market intermediary is the Agence pour le développement de l'emploi (Agency 
for the development of employment ADEM),140 which is part of the government administration, 
offering  personalised  and  free  services  for  jobseekers  and  employers.  In  the  Netherlands, 
internet  platforms  have  been  identified  as  a  potential  new  category  of  labour  market 
intermediaries. In Austria, if live-in care workers are employed on labour contracts, supporting 
organisations often act as intermediaries, hence being subject to the Hausbetreuungsgesetz 
(Home Care Act).141 One such organisation in Austria is DREPT-Interessenvertretung der 24-
Stunden-Betreuer_innen (Representative of the interests of 24 hour caregivers in Austria), a 
self-organised interest group for migrant live-in care workers in Austria, consisting mainly of 
Romanian care workers and activists working or living in Austria.142 Fundamentally, the lack of 
a  harmonised  definition  of  labour  market  intermediaries,  as  well  as  the  different  types  of 
intermediaries  may  affect  the  way  in  which  these  are  regulated  at  national  level,  impacting 
workers’  rights.  In  several  Member  States,  additional  types  of  labour  market  intermediaries 
were not identified.  

4.3.  Non-legislative measures applicable to posted workers 
and other temporary cross-border mobile workers 

This sub-section considers the non-legislative measures put in place by the Member States 
which  are  applicable  to  posted  workers  and  other  temporary  cross-border  mobile  workers. 
Non-legislative  measures  in  the  Member  States  have  been  established  to  complement  the 
legal framework that is in place at national level. The aim of these non-legislative measures is 
to  reduce  poor  working  conditions,  by  improving  access  to  information,143  implementing 
monitoring  mechanisms,144  and  establishing  administrative  cooperation  across  the  Member 
States.145  

In  pursuit  of  ensuring  that  posted  workers  and  other  temporary  cross-border  workers  are 
sufficiently  protected,  and  pursuant  to  the  obligations  encompassed  in  the  Enforcement 
Directive,  the  Member  States  have  sought  to  improve  access  to  information,  by  aiming  to 
provide  clear,  transparent,  comprehensive  and  easily  accessible  information  for  posted 
workers and service providers, in relation to terms and conditions of employment. The Member 
States have achieved this through actions including (1) implementing a single official national 
website,  (2)  disseminating  information  materials,  (3)  compiling  guideline  materials  and  (4) 
providing advice to posted workers.  

All Member States have established a single official national website, where they provide 
information  on the  posting  of  workers. Overall, the  single  official  national  website  has  been 
implemented positively in the Member States. However, the desk research has shown that  the 
websites of some Member States are not up to date (e.g., AT, EL, IT). The Italian website does 
not include the latest information on collective agreements, an issue which is also reflected in 
other  Member  States.  Some  websites  are  reported  by  national  legal  experts  to  lack 
transparency and intuitiveness (e.g., BG, ES, FI, HR, LV, PT) which is caused by the reliance 
on hyperlinks when referencing national law. This lack of clarity results in the user searching 
for  specialised  help  to  understand  or  investing  a  great  amount  of  time  in  searching  for  the 
necessary information. 

140 Law of 8 March 2017 amending the amended law of 29 August 2008 on free movement of persons and immigration. 
141 Bundesgesetz, mit dem Bestimmungen über die Betreuung von Personen in privaten Haushalten erlassen werden (Federal 
Act enacting provisions on the care of persons in private households), Federal Law Gazette I No. 33/2007 last amended by 
Federal Law Gazette I No. 57/2008, available at https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&G 
esetzesnummer=20005362&FassungVom=2022-05-19 (last accessed 19 May 2022). 

142 See also: https://ltccovid.org/wp-content/uploads/2020/09/Flavia-Matei-DREPT-2020-09-Presentation-LTC.pdf.  
143 As per Article 5 , Enforcement Directive. 
144 As per Article 9, Enforcement Directive. 
145 As per Articles 6-8, Enforcement Directive. 

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Beyond the single official national websites, Member States generally aim to inform posted 
workers about their rights. Information is also disseminated through the websites of other 
national  authorities  and  social  partners  and  by  other  means,  such  as,  for  example,  the 
distribution of leaflets by trade unions (e.g., IT). Several Member States rely on the diffusion 
of information, legal advice services and contact/complaint points to support posted workers. 

Another  measure  adopted  in  some  Member  States  is  the  compilation  of  guidelines, 
checklists and templates that might guide both posted workers and posting employers 
through the regulatory and administrative requirements of posting (e.g., BE, CY, IE, MT, PT, 
SE). 

The  provision  of  legal  advice  to  posted  workers  is  available,  for  example,  in  Austria, 
Germany, Slovenia and Italy. In Germany, counselling centres have been set up by the DGB 
(the German Trade Union Confederation), with the participation of certain trade unions, to help 
improve  working  conditions  and  fair  wages  in  the  German  labour  market,  particularly  for 
workers  from  Central  and  Eastern  European  EU  countries.  In  Slovenia,  mediation  is  also 
available in case of labour law disputes. 

When  it  comes  to  the  monitoring  and  collection  of  data,  as  well  as  the  publication  of 
statistics, trends are difficult to identify:  

• 

In several Member States, it was not possible to identify any measures in general (e.g., 
BG, HU, IE, LT, MT) or measures relating to posted workers (e.g., CZ, FI, HR, SE). 
Throughout  the  EU,  Member  States  entrust  different  national  bodies  with  the  role  of 
gathering data, specifically the labour inspectorates or statistics offices. Accordingly, in 
some  Member  States,  statistics  on  postings  and  other  information  within  the  labour 
market derive from the reports of activity of labour inspectorates (e.g., EL, LU, NL, PT, 
SI, SK). 

•  Furthermore, Member States rely on the notification of incoming postings (e.g., AT, BE, 
CY, CZ, DE, FI, FR), the recording of foreign service providers (e.g., CY, DK, RO) and 
information from PD A1 certificates (e.g., FI, FR) to analyse the cross-border temporary 
labour market. 

The box below outlines the actions that are utilised by the 9 Member States looked at in-
depth, to reduce the risks of poor working conditions of posted workers and other temporary 
cross-border  mobile  workers  in  their  Member  State.  Through  these  non-legislative 
measures,  Member  States  aim  to  uncover  problematic  practices,  provide  information  to 
posted  workers  (and  other  relevant  actors)  and  facilitate  cooperation.  As  non-legislative 
measures  are  implemented  at  the  national  level,  and  are  more  geared  towards  receiving 
structures, no strict distinction between sending and receiving Member States is made in the 
analysis. 

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Box  10.  Cooperation  between  Member  States,  cooperation  between  actors 
within their own Member State, and other initiatives  

Cooperation between Member States 

The  practice  of  concluding  bilateral  agreements  is  common  across  all  Member  States 
subject  to  this  in-depth analysis.  Naturally,  this practice facilitates  cooperation  between 
the  Member  States  that  are  parties  to  the  agreement,  and  in  sending  and  receiving 
settings.  They  can  support  the  identification  and  tackling  of  precarious  situations  for 
posted and other temporary cross-border mobile workers. Often, Member States conclude 
bilateral agreements with the labour inspectorates (or competent national authorities) of 
other  Member  States.  Germany,  for  example,  has  concluded  bilateral  agreements  and 
treaties  on  cooperation  in  combating  cross-border  undeclared  work  and  unlawful 
employment with France and the Netherlands, amongst others. The BENELUX countries 
have  also  developed  extensive  cooperation  through  joint  site  inspection  visits  and 
agreements.  

Moreover,  in  posting  cases  Member  States’  competent  authorities  can  request 
information, provide support during inspections and inform of illegal practices by virtue of 
the  cooperation  that  is  facilitated  through  the  Internal  Market  Information  System  (IMI). 
The  available  data  shows  that  the  highest  number  of  IMI  requests  are  received 
predominantly by sending Member States (e.g., SI, PL, DE), whilst the greatest number of 
IMI requests are made mainly by receiving Member States (e.g., BE, DK, FR).146 Poland, 
for example, has cooperated frequently with numerous Member States via IMI, receiving 
700 requests in 2020.147  

Poland  also  frequently  cooperates  outside  of  IMI  with  Member  States  to  which  it  posts 
workers (e.g., BE, DE and the NL). This phenomenon is observed throughout the Member 
States. Spain, for instance, has close contact with labour inspectorates of other Member 
States (e.g., France), with which it has also conducted joint inspections. This cooperation 
and  exchange  of  information  often  brings  to  light  poor  working  conditions  for  posted 
workers and illegal practices. 

Other  forms  of  cross-border  cooperation  are  also  in  place,  which  improve  cooperation, 
exchange of best practices and can lead to better handling of situations concerning posted 
workers and other temporary cross-border mobile workers. Slovenia, for instance, holds 
one-to-one meetings at regular intervals with other Member States, with which it closely 
collaborates. In Germany, cross-border cooperation with the relevant authorities takes the 
form of bilateral dialogues, regular updates on key statutory changes affecting efforts to 
combat  undeclared  work,  and  cooperation  in  administrative  procedures.  Moreover, 
Member States organise joint projects with other Member States. In terms of safety and 
health  at  work,  Denmark  is  part  of  a joint  project  with  the  labour  inspectorates  of  the  5 
Nordic  countries  (DK,  FI,  IS,  NO,  SE)  concerning  cooperation,  exchange  of  ideas  and 
information. The project was enlarged to include the Baltic countries (EE, LT, LV) as well, 
creating the “Nordic-Baltic Project on Undeclared Work”, supported by the EU Programme 
for Employment and Social Innovation (EaSI).148  

146 Data available at: https://ec.europa.eu/internal_market/imi-net/statistics/2020/07/requests/index_en.htm.  
147 Reported by the national authority during the interview conducted for this study, in 2022. Such requests refer to the exchange 

of information or any action that allows cross-border cooperation (e.g. performing an inspection, collecting fines).  

148 Reported by the national authority during the interview conducted for this study, in 2022. Also see Inspection Activities 

Report: https://www.vinnumalastofnun.is/media/3014/nordbalt-udw-final-inspection-report.pdf  

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Non-legislative  cooperation  additionally  takes  place  through  multilateral  programmes. 
Examples  include  the  European  Platform  against  undeclared  work,149  the  senior  labour 
inspectors committee (SLIC),150 which operate a Knowledge Sharing Site, and cooperation 
facilitated  by  the  European  Labour  Authority.151  The  exchange  of  information  through 
European  level  stakeholders152  has  also  been  reported  by  employer  organisations  and 
trade  unions  in  the  stakeholder  consultation  as  being  highly  useful.  Through  these 
programmes and exchanges, Member States may learn from one another and exchange 
information in relation to the situation of posted workers and other temporary cross-border 
mobile workers in their Member State. 

Cooperation within Member State 

The  desk  research  and  interviews  conducted  in  various  Member  States  indicate  the 
importance of good cooperation between national authorities and social partners. A variety 
of relevant stakeholders are included in the exchange of important information concerning 
posted  workers,  often  with  the  aim  of  resolving  problems  concerning  poor  working 
conditions.  

Within the same Member State, different national authorities may cooperate in relation to 
the exchange of information regarding posted workers and other temporary cross-border 
mobile  workers.  In  Germany,  for  instance,  the  Financial  Investigation  Office  for 
Clandestine  Employment  (FKS)  cooperates  closely  with  revenue  authorities,  social 
security authorities and the Federal Employment Agency, amongst others, to exchange 
information. On occasion, the FKS and Federal Employment Agency may conduct joint 
inspections in relation to temporary agency work.153 

In terms of actions of social partners, these often give advice to posted workers (e.g., in 
SI), receive questions from them (e.g., in PL) and from social partners from other Member 
States.  As discussed in the case study on promising practices involving social partners 
(see  Section  7),  in  Denmark,  for  example,  the  Danish  Working  Environment  Agency 
(WEA)  holds  dialogue  meetings  with  employer  organisations  and  trade  unions  on  a 
regional basis twice a year and on national level every second year, with ad hoc meetings 
taking place if necessary. In this way, vital exchange of information between the public 
and private actors takes place, which may inform the actions of these actors in the future.  
Moreover, employer organisations and trade unions campaign against social dumping and 
have a key role in the fight against social dumping. They are equally important in providing 
information to posted workers: a foreign undertaking posting workers in Denmark should 
consult the social partners in relation to wages and salary conditions. This ensures that 
posted workers receive the remuneration and conditions that they are entitled to. 

Notwithstanding  these  positive  examples,  the  cooperation  between  public  and  private 
actors is not always effective and often proves difficult. In the Netherlands, for example, it 
is  reported  that  private  actors  receive  limited  information  from  the  public  actors.  Whilst 
there is a website where the Labour Inspectorate provides information on inspections and 
outcomes, some stakeholders perceive it as lacking transparency, not updated frequently 
and unreliable.154 

149 Currently housed under ELA, available at: https://www.ela.europa.eu/en/undeclared-work.  
150 See also: https://ec.europa.eu/social/main.jsp?catId=148&intPageId=685  
151 See also: https://www.ela.europa.eu/en  
152 E.g., ETUC, Business Europe.  
153 Deutsche Bundesregierung, “14th report by the German Federal Government on the impact of the Act to Combat Unlawful 
Employment (Gesetz zur Bekämpfung der illegalen Beschäftigung)”, 2021, p. 28, available at:  https://www.bundesfinanzminis 
terium.de/Content/EN/Downloads/14th-report-impact-act-to-combat-unlawful-employment.pdf?__blob=publicationFile&v=2 

154 This issue was emphasised in an interview conducted for this study in 2022, with a representative of an employer 

organisation. 

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Other actions at Member State level 

Further  initiatives  have  been  put  in  place  at  the  national  level,  in  order  to  prevent 
occupational risks for posted workers and establish a direct contact for the provision of 
information to posted workers. In France, for example, the 2016-2020 Health and Safety 
at Work Plan155 was targeted at posted workers and aimed to develop the communication 
adapted  to  people  with  little  or  no  command  of  French.  The  Plan  conveys  simple  and 
understandable  messages  to  posted  workers  about  the  main  occupational  risks  (e.g., 
working  at  heights,  chemical  risks,  manual  handling,  use  of  work  equipment)  to  which 
many of them are exposed. These messages, in the form of posters, were translated into 
8 languages.156 Another example is Belgium, where the social inspection services of the 
Federal Public Service Employment, Labour and Social Dialogue (Directorate-General for 
Supervision of Social Law) have set up the ‘point of contact for Fair Competition’,157 which 
posted workers may contact via email with their queries.  

Moreover, specifically in relation to the issues found in the construction sector, Belgium,158 
Denmark, France159 and the Netherlands are piloting or using a form of ID for workers in 
the  construction  sector.  The  aim  is  to  enable  the  identification  of  workers,  which  will 
facilitate monitoring  on  site,  as  well  as  contain  information  on the  employer,  employee, 
user company and host organisation, depending on the Member State.  

Through  these  initiatives,  Member  States  aim  to  improve  the  provision  of  information 
available  to  posted  workers  and  other  cross-border  workers  and  enhance  awareness 
about their rights. This is hoped to contribute to proactive behaviour and actions from the 
workers, ensuring they can better claim their rights.  

4.4.  Enforcement mechanisms 

As  seen  in  the  Enforcement  Directive,160  enforcement  mechanisms  encourage  compliance 
with  the  PWD.  To  this  end,  the  current  section  explores  mechanisms  established  in  the 
Member States in pursuit of compliance with the legal regulations, in the form of subcontracting 
liability  provisions,  the  actors  of  enforcement  and  actions  taken  by  them.  The  section  also 
reviews  actions  Member  States  take  to  ensure  enforcement  with  the  rules  established  at 
national level and outlines the main problems identified by enforcement bodies and challenges 
regarding enforcement in specific sectors, and the challenges faced by the 9 Member States 
analysed in-depth. 

4.4.1.  Subcontracting liability 

In  case  there  are  breaches  of  working  conditions  of  posted  workers  within  subcontracting 
chains,  administrative  and/or  criminal  sanctions  and/or  alternative  ways  of  resolution  are 
foreseen by the Member States.  

In terms of procedures, these vary across the Member States, but generally rely on the 
posted workers to initiate the claim. In most Member States, the posted worker either needs 

155 Ministère du Travail, du Plein emploi et de l'Insertion, Plans santé au travail (PST), available here: https://travail-

emploi.gouv.fr/sante-au-travail/plans-gouvernementaux-sante-au-travail/article/plans-sante-au-travail-pst.  

156 Posters, available at: https://travail- emploi.gouv.fr/IMG/pdf/kit_de_communication_sante_et_securite_anglais-2.pdf.  
157 See also: https://www.meldpuntsocialefraude.belgie.be/en/#:~:text=You%20can%20call%20the%20Contact,y 

ou%20the%20next%20working%20day 

158 See also: https://www.constructiv.be/nl-BE/Werkgevers/ConstruBadge.aspx.  
159 See also: https ://www.cibtp.fr/carte-btp/accueil.   
160 Specifically, Chapter IV ‘Monitoring Compliance’ and Chapter V ‘Enforcement’. 

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to present a complaint to the competent authority161 or bring a claim before the court. In the 
former  scenario,  this  may  lead  to  an  inspection.  In  other  countries,  the  posted  worker  can 
request that the employer immediately remedies the breach (e.g., CZ, IT, RO, SI). It is worth 
noting that in Denmark and Finland where other appropriate enforcement measures are used 
in the place of subcontracting liability, the procedure differs. In Denmark, where posted workers 
fulfil  the  required  conditions  stipulated  by  the  Labour  Market  Fund,  the  collection  of 
contributions  from  enterprises  is  based  on  notification  to  the  Register  of  Foreign  Service 
Providers  (RUT).  The  unpaid  wages  are  subsequently  paid  to  the  posted  worker  from  the 
Danish Labour Market Fund.  

A panoply of administrative penalties are put in place in the Member States, ranging from 
the possibility to be temporarily excluded from public procurement procedures (e.g., DE), to 
the  closing  of  operations  (e.g.,  BE,  FR,  LU),  or  inclusion  in  a  public  list  of  companies  that 
breach the applicable provisions (e.g., DE, DK,162 NL). Most Member States (18) foresee the 
possibility of imposing administrative fines where a breach is found. However, in some Member 
States (EE, PL), it is not possible to impose sanctions. In Denmark, higher fees for participation 
in the Labour Market Fund for Posted Workers are charged if violations occur. The value of 
the fines varies greatly and fines are increased in case of repeated breach. Belgium, in addition 
to  administrative  fines,  introduced  a  criminal  fine  and,  exceptionally,  Cyprus  allows  for  the 
possibility of imprisonment of up to 2 years.  

In some Member States, alternative means of resolution, before committees, mediators or 
through negotiation are also foreseen (e.g., IT, LT, SE, SI). Both France and the Netherlands 
have  in  place  the  possibility  to  issue  warning  systems,  allowing  the  company  in  breach  to 
remedy the breach.  

4.4.2.  Actors of enforcement and competences 

Prior to assessing the key enforcement issues in the Member States it is important to identify 
the “actors  of  enforcement”.  There  are two  key  types  of  actors  of  enforcement: (1)  national 
authorities, and (2) social partners.  

161 Many MS provide for the complaint forms through the single official national website. If the posted worker is able to locate the 

single official national website, identifying the competent authority should not pose a challenge. 

162 In DK for example, the company can be removed from the list only 36 months after the date of payment of wages.  

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Figure 7. Actors of Enforcement 

4.4.2.1.  National authorities 

The key enforcement actors are typically national authorities (either labour inspectorates or 
Ministries) whose role is to carry out labour inspections, check the working conditions of 
posted workers and other temporary cross-border mobile workers, as well as to monitor and 
collect data on enforcement.  

Inspections  enable 

Inspections  are  one  of  the  main  tools  to  monitor  compliance  with  the  national  legal 
framework  concerning  the  posting  of  workers  and  other  temporary  cross-border  mobile 
workers. 
legality  of  working 
inspectorates 
arrangements  and  identify  any  infringements,  ultimately  with  the  aim  of  “reacting”  to  a 
problematic situation, by adjusting inspection priorities, or taking action against non-complying 
entities. Fundamentally, inspections allow national authorities to verify that posted workers do 
not find themselves in poor working conditions. The Enforcement Directive obliges the Member 
States to put in place inspections on their territory in order to control and monitor compliance 
with the provisions laid down in the PWD.163 

to  check 

labour 

the 

Generally, the enforcement actors set the strategy for labour inspections. Inspections are 
triggered  in  different  ways  in  the  Member  States.  In  order  to  decide  where  to  carry  out 
inspections and which sectors or companies to target, risk assessments are carried out in 
most Member States.164 The data collected during inspections in the Member States tend to 
inform  the  work  and  strategic  plans  of  the  national  authorities  for  the  following  years.  Risk 
assessments  or  strategies  are  generally  based  on  data  collected  regarding  enforcement,165 

163 Article 10, Enforcement Directive.  
164 As per Article 10(1), Enforcement Directive: “Notwithstanding the possibility of conducting random checks, inspections shall 

be based primarily on a risk assessment by the competent authorities.” 

165 Information is also collected from notification systems and company registers. It should be noted that the duty to monitor data 

may be decentralised and within the competencies of regional bodies as is the case in Spain and Finland. 

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and which are published by national authorities in their annual reports166 (e.g., AT, BE, DE, 
DK, LU, HU, NL, MT, PL, PT, RO, SI, SK).167  

Box 11. Examples of approaches taken by labour inspectorates  

In Germany, national authorities follow a ‘risk-based’ approach in determining the strategy 
for  labour  inspections,  particularly  in  areas  affected  by  undeclared  work.  In  the 
Netherlands,  the  Inspection  Control  Framework  (ICF)  prioritises  inspections  regarding 
unfair work. Furthermore, in Spain and Slovenia, the relevant authorities offer arbitration 
and mediation services to posted workers. In Denmark, the Working Environment Agency 
(WEA) is also responsible for running the RUT, which is the notification scheme for service 
providers  regarding  the  use  of  posted  workers.  The  Slovenian  labour  inspectorate 
similarly  keeps  a  register  of  temporary  work  agencies.  Moreover,  as  seen  above,  the 
national authorities cooperate with other authorities in and outside the country. 

The commencement of inspections is often also triggered by complaints (e.g., AT, BE, CY, 
CZ, DK, EE, FR, HR, IE, IT, LU, LT, LV, MT, NL, PL, SI, SK) from social partners (e.g., DK, 
FR,  NL,  HR),  foreign  authorities  (e.g.,  AT,  CY,  CZ,  PL)  –  including  via  the  IMI  System  –, 
employers (e.g., FI, HR) or employees (e.g., FI, HR). For example, in Malta, workers whose 
contract was recently terminated or workers with an ongoing contract can file a complaint which 
may lead to the inspection authority initiating an inspection. 168  

Within the realm of labour inspections, inspectors possess various powers, which stem from 
the  competences  attributed  by  law  to  the  competent  authorities.  In  some  Member  States, 
labour inspectors are limited to checking safety and health at work (e.g., SE, FI), or working or 
employment  conditions  (e.g.,  IT,  EE),  or  provisions  applicable  to  posted  workers  (e.g.,  AT, 
HR). Often, other authorities are in charge of inspecting social security aspects (e.g. BE, IT), 
remuneration (e.g., AT), or the legal status of workers or available documentation (e.g., AT, 
EE).  In  most  Member  States  inspections  can  be  carried  out  at  workplaces  and  business 
premises (e.g., BG, CY, DE, DK, FR, HR, IE, LU, LV, MT, PT, SE, SK), with the exceptional 
option of inspections in private homes (e.g., ES). Usually, inspectors can request cooperation 
from other authorities and employers. Additionally, some Member States allow inspectors to 
issue  warnings  (e.g.,  BE,  NL,  FI)  where  infringements  are  identified  and  either  impose 
preventive measures (e.g., PT) or impose fines (e.g., CZ, FI, HU, LV, NL). 

 Box 12. Limitations faced by national enforcement authorities 

At the same time, the enforcement actors face limitations. Whilst inspections play a vital 
role in enforcement, the task is not without challenge. In the Netherlands, for instance, the 
labour  inspectorate  is  only  competent  to  enforce  the  statutory  minimum  wage  and  not 
those wages established under collective agreements.  

As  Sections  4,  5  and  6  repeatedly  emphasise,  another  significant  key  challenge  is  the 
limited capacity and lack of human resources of labour inspectorates and similar national 
authorities to conduct inspections and monitor the applicability of regulations. This directly 

166 In the majority of Member States no figures or specific data on infringements rates were found. Where data on infringement 

rates was available, the data was most often not disaggregated and, therefore, not specific to posting situations only 

167 Desk research, in some Member States, did not provide any information in relation to the mechanisms to monitor and collect 

data on enforcement (e.g., EE, EL, IE, LV, SE). 

168 The number of inspections carried out, per year, varies greatly across the Member States. In most Member States, more 

than 3000 labour inspections were carried out. It is unclear how many of these relate to posting of workers situations as such 
data is generally not available. Reportedly, Lithuania inspected 61 companies with posted workers. In some Member States 
more than 20 000 inspections were carried out in a year (e.g., DK, AT, FI, PT, SK, BG, IT, RO, SE). 

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impacts  the  scale  and  depth  of  the  enforcement  actions,  and  the  extent  to  which  they 
incentivise compliance with the legislation and curtail fraudulent practices.  

The majority of the identified sectoral challenges appear to happen within the construction 
sector, according to desk research (e.g., AT, BE, BG, CZ, DK, NL). Several issues pertaining 
to  the  construction  sector  were  identified  through the  research  and  are further  discussed  in 
Section 5.1:  

• 

• 

• 

• 

the existence of new business models, not complying with the rules, to which there are 
still no enforcement tools available (e.g., NL);  

required documentation not available (e.g., BG);  

issues in relation to health and safety conditions (e.g., BG, CZ).  

labour exploitation and illegal employment among posted TCN (e.g., BE).  

In  line  with  this,  specific  measures  for  TCNs  and  posted  temporary  agency  workers  were 
identified in the Netherlands through the findings of the Monitor Labour Exploitation (annual 
preview) and the Bogus Scheme Programme. For example, the working methods of the Labour 
Inspectorate have been developed, through (re)training inspectors in recognising and reporting 
signals  of  labour  exploitation.  To  this  end,  a  new  training  course  on  labour  exploitation  has 
been developed for less experienced investigators (or those more experienced ones wishing 
to refresh their knowledge). Moreover, the Monitor Labour Exploitation report states that the 
labour inspectorate aims to encourage as many companies as possible to register their posted 
workers in order to tackle labour exploitation.169 

Box 13. Data related to inspections 

As  inspections  are  a  vital  instrument  of  enforcement,  the  number  of  inspections  and 
infringements found in the Member States should, in theory, shed light on the situation of 
posted workers. Nevertheless, the desk research and stakeholder consultation revealed 
a distinct lack of data in relation to inspections and infringements found therein. This is 
because: 

•  Data is not disaggregated: it often includes all inspections carried out by the labour 
inspectorate without identifying the inspections that related to posted workers; 

•  There is no central data registry to monitor and collect data at national level; 
•  No specific data is made available in relation to TCNs and posted temporary agency 

workers.  

Nevertheless, some data is available, but it should be considered that it is not necessarily 
comparable, given that each labour inspectorate sets its own strategy and priorities for 
labour inspections and data collected therein.170 The existing data does, however, offer 
some insights: 

169 Monitor Arbeidsuitbuiting En Ernstige Benadeling 2020-21 (Labour Exploitation And Serious Disadvantage Monitor 2020-21), 

available at: https://open.overheid.nl/repository/ronl-045864e5a98085d255918bf3dd69cee6b13ecaf6/1/pdf/monitor-
arbeidsuitbuiting-en-ernstige-benadeling.pdf, pp. 32-33.   

170 It should also be noted that, the Covid-19 pandemic in 2020 has impacted the numbers identified. 

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• 

• 

• 

• 

• 

In Poland, in 2020, 156 inspections were carried out by the labour inspectorate, most 
commonly in the construction sector.171 

In Slovenia, in 2020 10 031 inspections were carried out by the labour inspectorate 
in the field of labour relations control (this excludes occupational safety and health, 
occupational accidents and dangerous occurrences). From these inspections, 8 708 
offences were identified. This data, however, is not specific to posting.  

In Spain, between 2018 and 2020, 469 185 inspections to control compliance with 
legal obligations in the field of labour relations were completed. Only 0.3% of this 
number  (1  543  inspections)  concerned  posted  workers.  315  proceedings  were 
opened, affecting 4 000 posted workers. The most frequently inspected sectors were 
construction, road transport and agriculture.  

In Belgium, in 2020, 2 639 inspections were performed; infringements were found in 
1  out  of  every  4  inspections.  Roughly  4%  of  the  inspections  carried  out  by  the 
Belgian  labour  inspectorate related to the cross-border  dimension  of  social  fraud, 
amounting to some 5 270 inspections in 2020.  

In Luxembourg, in 2020, 4 297 checks were carried out by the Labour and Mines 
inspectorate in cooperation with the Customs and Excise Administration, exclusively 
in relation to posted workers. This number includes 780 unexpected checks.172  

A final limitation with this data, is that once workers are posted from the sending Member 
State, there is limited follow up and even more limited data collection from the sending 
country. Consequently, much fewer data are available on the sending structures and it is 
therefore  clear  that  Member  States  are  focused  on  the  receiving  mechanisms  in  their 
Member  States.  Follow-up  data  and  observation  of  workers  that  are  posted  abroad  is 
limited. 

4.4.2.2.  Social partners 

In  addition  to  national  authorities,  social  partners  are  also  involved  in  enforcement  in  the 
Member States, directly or indirectly. This is discussed in further detail in the Case study on 
promising practices involving social partners (see section 7.2). Social partners, including trade 
unions  and  employer  organisations,  often  play  a  role  in  representing  posted  workers  in 
proceedings  (high  engagement),  in  receiving  complaints  from  posted  workers  or 
employees and in cooperating with national authorities (moderate engagement).  

Box 14. Levels of engagement of social partners in enforcement 

High engagement of social partners in enforcement 

In  a  few  Member  States  (e.g.,  ES,  FR,  NL),  social  partners  engage  in  judicial  or 
administrative  proceedings.173  In  Spain,  social  partners  support  posted  workers  or 
employers by engaging in, with their approval, any judicial or administrative proceedings. 

171 For Poland, the 2022 Action Plan of the National Labour Inspectorate has assumed carrying out 52,000 inspections, 

including in the construction sector, and for 2020-2024 the Plan includes as one of three key strategies: Strategy of control 
and preventive actions for the construction sector. Available at: 
https://www.pip.gov.pl/pl/f/v/252630/Program%20dzialania%20PIP%20na%202022%20rok.pdf.  

172 Inspectorate of labour and mines Luxembourg, ‘Annual report 2020’, available at: https://itm.public.lu/fr/publications/rapports-

annuels/rapport-annuel-2020.html?msclkid=d1a332a8d07e11ecb816144efb7842e5. 

173 By contrast, in 5 Member States (DE, NL, LU, BE, DK), social partners play a role in the legislative process. 

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In France, trade unions can exercise legal action on behalf of the posted workers, whilst 
providing information to the worker, specifically on the nature and purpose of the action. 
Workers  can  notify  trade  unions  of  their  opposition  within  a  15-day  period  and  can 
intervene  in  the  proceedings.  Trade  unions  may  exercise  appeal  themselves.  In  the 
Netherlands, trade unions are accorded a standing in court in relation to collective claims 
for unpaid wages. 

Moreover, in several Member States, social partners may enforce collective agreements 
and  control  working  conditions.  In  Denmark,  trade  unions  focus  on  the  protection  of 
workers’ rights, so long as there an underlying collective agreement that is applicable. As 
the Danish WEA is only competent for policing occupational safety and health aspects, 
whereas  all  other  aspects,  such  as  wages,  working  conditions,  workers’  rights  are  the 
responsibility  of  social  partners  to  enforce.174  Similarly  in  the  Netherlands,  some  trade 
unions play a role in the enforcement of collective agreements, however this is limited to 
the construction sector. In France, trade unions have a right to have access to work places 
and control working conditions.  

Moderate involvement of social partners in enforcement 

In all Member States, social partners can submit complaints to the labour inspectorate. In 
the  Netherlands,  the  trade  unions  may  request  the  labour  inspectorate  to  investigate. 
Complaints submitted to labour inspectorates by social partners often form the basis of 
investigations  –  in  many  cases  the  cooperation  between  social  partners  and  labour 
inspectorates  is  vital  for  detecting  issues  and  enforcing  the  law  (e.g.,  in  DK,  SI).  In 
Denmark  in  particular,  the  national  authorities  have  a  close  relationship  with  social 
partners, given their significant role in enforcement.175  

Other enforcement actions taken by social partners, include agreements with competent 
authorities.  In  this  sense,  social  partners  in  Belgium  have  concluded  a  ‘Plan  for  fair 
competition’ with the competent administrations to take concrete measures to tackle social 
fraud in specific sectors, including construction.176 

Limited role of social partners in enforcement 

By contrast, in Luxembourg trade unions do not take part in the enforcement of measures. 
It should be noted that in Poland, trade unions do not have a formal role in the enforcement 
of  measures,  especially  given  that  there  are  no  universally  applicable  collective 
agreements  in  place.  Thus,  trade  unions  in  Poland  act  independently,  have  no 
competence  to  carry  out  inspections  and  are  involved  with  workers  on  a  case-by-case 
basis. 

4.4.3.  Main problems identified in relation to enforcement and 

main challenges in specific sectors 

The research has identified key problems regarding the enforcement of regulations regarding 
workers  in  posted  and  non-posted  situations.  Sections  4,  5  and  6  reflect  instances  of 
enforcement challenges in key economic sectors and in typically problematic situations.  

A  common  problem  among  the  Member  States  is  related  to  remuneration  (including  non-
payment  or  underpayment)  which  was  identified in  several Member  States (e.g.  in  BE,  BG, 

174 Reported during stakeholder interview with national authorities.  
175 Reported during stakeholder interview with national authorities.  
176 See also: https://www.siod.belgie.be/nl/publicaties/protocollen.  
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CZ, DE, DK, FI, HU, IT, RO), followed by not respecting maximum working hours (e.g. in 
BE,  BG,  CZ,  HR,  HU,  IT)  and  unlawful  posting  (e.g.  in  BE,  BG,  DE,  NL,  SI).  Bogus  self-
employment, undeclared work, and difficulty in identifying the employer or workplace were also 
reported  by  national  authorities.  Of  note  are  also  the  lack  of  a  ‘genuine  connection’  to  the 
Member State posting workers and problematic accommodation conditions. 

The  research  revealed  problems  affecting  posted  workers  in  subcontracting  chains  in 
several  Member  States  in  the  construction  sector  and  the  agriculture  and  horticulture 
sector. These issues relate to the failure to comply with terms and conditions of employment 
(e.g.,  BE,  DE,  FR,  FI,  PT,  RO)  but  also to social  dumping (e.g.,  DK), unfair  competition 
(e.g.,  ES),  and  the  omission/falsification  of  mandatory  declarations  (e.g.,  AT,  FR), 
amongst others. 

As for posted workers, and other temporary cross-border mobile workers employed by 
temporary  work  agencies  and  labour  market  intermediaries,  the  same  challenges  as 
posted  workers  in  subcontracting  chains  can  be  observed,  with  the  construction  and 
agriculture and horticulture sectors most affected by these challenges. Live-in care is also 
one of the sectors where desk research revealed breaches in working conditions (e.g., AT, DE, 
FR, PL). Most issues concern not respecting terms and conditions of employment (e.g., 
BE, DE), social dumping (e.g., DK), illegal work (e.g., FR), and omission/falsification of 
mandatory  declarations  (e.g.,  AT,  FR).  In  particular,  evidence  available  from  Bulgaria 
indicates issues within the agriculture sector, where Bulgarian seasonal agriculture workers 
are increasingly hired directly by local employers, which limits the possibilities for control by 
the Bulgarian Labour Inspectorate. 

Enforcement issues have also been observed in relation to posted TCNs. Again, and reflecting 
the  already  established  trend,  the  concentration  of  these  challenges  is  mostly  in  the 
construction  and  agriculture  sectors.  These  concern  the  lack  of  compliance  with  work 
conditions (e.g., RO), and labour exploitation (e.g., FI, PT). In Portugal, labour exploitation 
of TCNs happens within fruit production as the employment status of the workers is unclear 
and many of these are employed through temporary work agencies. 

Figure 8. Main challenges identified in key sectors and the issues faced by temporary 
cross-border workers 

Source:  Authors’  own  analysis  based  on  national  desk  legal  research,  national  legal  experts’  analysis  and 
professional knowledge, and interviews with relevant stakeholders. 

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Box 15. Enforcement Issues 

The main enforcement issues are cross cutting and affect all types of temporary cross-
border mobile workers. The desk research and stakeholder consultations have identified 
working  outside  the  law  and  avoiding  detection  as  the  overarching  issue.  Limited 
monitoring, inspections and a lack of detection of fraudulent practices results in a lack of 
effective  enforcement  of  the  rights  of  these  workers  and  further  aggravates  existing 
problems.  

Overarching issue: working outside the law and lack of detection 

The  overarching  issue  identified  is  that  of  undertakings  working  outside  the  law  which 
leads  to  the  lack  of  detection  of  any  illegal  structures  or  practices.  This  occurs  through 
practices such as (1) unlawful or bogus postings, (2) the use of letterbox companies and 
(3) non-compliance with obligations imposed by national law. Examples from the Member 
States illustrate instances of these three practices. 

Unlawful or bogus posting 

• 

• 

In Slovenia, unlawful posting occurs in the following way: companies whose main 
registered activity is to supply workers to other companies, are not authorised to 
provide TCN workers to user undertakings. Nevertheless they provide a secondary 
or additional registered activity, that of a “service” (instead of workers) in order to 
be able to provide these TCNs to user undertakings within the permitted “registered 
activities”.177  

In  Germany,  temporary  work  agencies  based  in  the  country  facilitate  the  illegal 
provision  of  temporary  workers  through  fictitious  work  and  services  contracts. 
Infringements include pretending to perform service or work contracts in order to 
disguise  illegal  temporary  agency  work,  concealing  the  hiring  out  of  individual 
workers or entire groups of workers by posing workers as self-employed, deceiving 
user companies by using forged copies of already expired permits for the provision 
of workers of small and medium-sized temporary work agencies. 

•  False posting practices are also observed in the agriculture and horticulture sector. 
In France, there have been reports that false intra-group mobility was being used 
to  circumvent  the  rules  on  direct  employment  by  the  client.  In  this  arrangement, 
posted  workers  were  fictitiously  posted  to  empty  shell  branches  of  the  same 
(posting)  employer  hiding  the  real  final  client,  who  was  a  different  undertaking 
altogether. 

Letterbox companies 

The operation of letterbox companies is a common problem across the Member States. 
Experts from Poland and Slovenia explicitly stressed this and explained the practices in 
their countries: 

• 

In Poland and Slovenia, letterbox companies are usually only uncovered through 
IMI requests, or requests from the national authorities of other Member States. This 
means that once the national authorities attempt to inspect the premises of these 

177 Yearly Report of the Slovene Labour Inspectorate for 2022, p. 80, available at: 

https://www.iusinfo.si/Priloge/PRIPDZ/PRIPDZ101E1994VIIIN3_7_1.PDF#page=26&zoom=100,109,206.  

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companies (upon the request of other Member States), they discover that they do 
not exist and the inspections are therefore not carried out.  

•  The lack of detection by law enforcement of letterbox companies, contributes to the 
difficulty in quantifying the incidence of this type of practice, the number of posted 
workers affected, and the extent of illegal practices carried out therein.  

Non-compliance with legal obligations 

This practice has also been uncovered during the research:  

• 

• 

In Slovenia, desk research and interviews with public authorities indicated that in 
relation to the posting of construction workers, often the obligation to have worked 
in that Member State before being posted is not fulfilled. This is also observed in 
Belgium as a receiving country.  

In  Belgium,  a  high  share  of  foreign  temporary  work  agencies  have  not  acquired 
accreditation  from  the  Belgian  region  to  which  they  post  workers  and  where  the 
work is performed. Since 2017, the “accreditation number” of the foreign temporary 
work agency is requested by LIMOSA, however, in practice only workers posted by 
foreign  temporary  work  agencies  with  accreditation  are  reported  under  this 
category.  

•  There  is  no  obligation  for  Belgian  user  undertakings  to  report  foreign  temporary 
work agencies that do not acquire an accreditation number, meaning that there is 
insufficient incentive for these agencies to acquire the accreditation. This has led 
to  significant  underreporting  of  workers  posted  by  (de  facto)  temporary  work 
agencies.  

•  Foreign  temporary  work  agencies  must  pay  a  deposit  to  the  Social  Fund  for 
Temporary Workers178 in Belgium, as well as all compulsory contributions, unless 
they can prove that equivalent obligations apply to temporary work agencies in the 
country  of  origin.  According  to  Federgon,  the  Belgian  federation  of  Human 
Resources service providers, many foreign temporary work agencies do not comply 
with this obligation either.179 

These three practices reveal numerous instances of companies working outside the law, 
with the consequence of evading detection by enforcement bodies. This means that there 
is a real risk that illegal practices are perpetuated and continue to harm workers, as well 
as diminish the positive contributions of temporary cross-border work to the EU’s economy. 

Consequent issue (1): Limited protection for the workers affected  

One significant issue of working outside the law and the lack of detection, is that posted 
workers are offered (1) insufficient or no protections during their posting, and (2) do not 
benefit from the full extension of their rights.  

Insufficient or no protection 

This  issue  has  been  detected  across  the  Member  States.  Posted  workers  and  other 
temporary  cross  border  workers  may  find  themselves  at  a  higher  risk  of  occupational 
safety and health-related accidents. For instance: 

•  Foreign  temporary  work  agencies  in  Denmark  have  been  reported  to  be  using 
outdated  working  methods,  carrying  out  tasks  requiring  more  physical  work  and 

178 Reported during interview with Employer Organisation, 2022. 
179 See also: https://federgon.be/fileadmin/media/pdf/fr/Federgon_-_Rapport_annuel_2020.pdf.   

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using a lower level of technological equipment, when compared to that usually used 
in the Danish Labour market.180  

Adding to this, the lack of accident insurance is a serious issue faced by posted workers, 
particularly in accident-prone circumstances:  

•  As  reported  in  Germany,  illegal  companies  do  not  offer  (sufficient)  insurance 
coverage.181 In the industries where the risk of accidents is particularly high (such 
as  construction),  there  is  often  a  lack  of  accident  insurance  for  those  posted 
workers.  In  a  step  to  improve  working  conditions  for  workers  in  the  construction 
sector, temporary agency work is forbidden in the sector in Germany since 2017.182 
The growing complexity of subcontracting chains and use of illegal and bogus forms 
of contracted work and self-employment at construction sites led to many issues, 
which culminated in the prohibition of temporary agency work in the sector.183  

Other protections, such as guarantees for maximum working hours and working conditions 
are  compromised  by  undertakings  working  outside  the  law  and  not  providing  these  for 
posted  workers  and  other  temporary  cross-border  mobile  workers.  Thus,  problematic 
working conditions are common, as reported by the Member States, in all the sectors184 
analysed by this study:  

• 

• 

• 

In  the  Netherlands,  poor  working  conditions  have  been  reported  among  posted 
TCN workers.  

In  Spain,  the  non-compliance  with  the  maximum  working  hours  by  posted  TCN 
workers has been reported.  

In  Belgium,  the  Netherlands  and  Poland,  the  meat  processing  sector  has  been 
reported  as  being  prone  to  systematic  issues  related  to  non-respect  of  working 
conditions. Similar problems led in Germany, to legislation which forbids postings 
and contracts for work185 in the sector.186 Nevertheless, it is reported by trade unions 
that transitional issues still exist.  

There are also occasions where workers are pressured to appear self-employed in spite 
of  de  facto  working  in  a  dependent  situation  (false  self-employment).  This  is  mostly 
motivated  by  employers  seeking  to  avoid  compliance  with  employment  protection 
legislation and (potentially) to lower the tax wedge.  

• 

In  Poland,  France  and  the  Netherlands187,  this  is  particularly  common  in  the 
construction sector.188  

Inability to avail of the full extension of rights 

When undertakings do not provide for (sufficient) protections for posted working, this has 
the negative consequence on workers as they are unable to benefit from the full range of 
their rights. Underpayment, for example, means that posted workers do not receive their 

180 Reported during desk research and stakeholder interview with national authorities. 
181 Reported during desk research and stakeholder interview with trade union. 
182 § 1b, Temporary Workers Act, available at: https://www.gesetze-im-internet.de/a_g/__1b.html  
183 Eurofound, ‘Germany: Compromise struck on new temporary agency work legislation’, 2016, available at: https://www.eurof 

ound.europa.eu/publications/article/2016/germany-compromise-struck-on-new-temporary-agency-work-legislation.   

184 Construction, live-in/long-term care, meat processing, agriculture and horticulture and hotel/tourism/catering. 
185 A contract for work (“Werkvertrag”) concerns a specific job rather than a period. A freelancer, for example, will produce or 

repair something, in exchange for a one-off fee. The service is usually provided once. 

186 Act on the Implementation of Measures of Occupational Safety and Health to Encourage Improvements in the Safety and 
Health Protection of Workers at Work, (Arbeitsschutzgesetz, ArbSchG), available at: https://www.gesetze-im-internet.d 
e/englisch_arbschg/englisch_arbschg.html  

187 In the Netherlands foreign temporary work agencies are seen to recruit ‘platforms’ to recruit (bogus) self-employed persons. 
188 Reported during the desk research and stakeholder interviews with national authorities. 

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full  remuneration.  It  is  an  issue  affecting  posted  workers,  as  reported  by  the  Member 
States:  

•  TCN  posted  workers  are  at  a  particularly  high  risk  of  social  dumping  and 
underpayment, as detected by the Belgian Labour Inspectorate, for instance, where 
TCN workers were found to be paid only 2-3 EUR per hour.189  

•  TCN  workers  in  Denmark  have  also  been  reported  to  be  treated  unequally  as 
long 

in  subcontracting  chains,  especially 

to  other  workers 

in 

compared 
subcontracting chains.190  

•  The  research  carried  out  during  the  present  study  has  shown  that  in  specific 
instances,  there  is  a  lack  of  application  of  the  relevant  collective  agreements, 
meaning that posted workers are not able to avail of from the full range of rights. 

• 

In  Denmark, for  example,  posting foreign temporary  work  agencies  do  not  apply 
collective agreements, due to the fact that they do not understand how the system 
works  and  the  fact  that  they  do  not  desire  to  do  so.  As  such,  posted  temporary 
agency workers are not able to fully benefit from their rights.  

•  Overall  poor  living  conditions  are  observed  in  other  Member  States,  including 

Luxembourg, Germany and Denmark:  

• 

In  Germany  the  right  of  residence  is  sometimes  exhausted  in  the  hotel-tourism-
catering sector. The sector of live-in/long-term care is also particularly prone to poor 
living conditions, given the difficulty in performing controls.191  

•  Denmark  has  also  reported  instances  of  foreign  temporary  work  agencies  not 
offering  workers  adequate  welfare  measures,  such  as  dining  areas,  a  toilet  or 
bathing facilities. Consequently, the workers are not able to benefit from good living 
conditions whilst being posted. 

Due to the operation of many of these practices outside the law, it is difficult to detect them 
and consequently even more challenging to guarantee the rights of the workers working 
under these conditions.  

Consequent issue (2): Lack of enforcement  

Enforcement  manifests  itself  in  many  forms.  This  includes:  (1)  the  capacity  and  (2) 
competence issues faced by enforcement entities, as well as (3) the ability to enforce a 
decision, particularly in relation to unpaid remuneration. A lack of enforcement has a direct 
impact on posted workers’ ability to enforce and claim their rights. 

Capacity issues of enforcement bodies 

•  Capacity issues in national labour inspectorates are common across the Member 
States.  Enforcement  authorities  often  struggle  with  understaffing,  limiting  their 
capacity  to  conduct  preventive  inspections.  National  labour  inspectorates  are 
frequently unable to complete preventive inspections, meaning that there is a high 
reliance on complaints from posted workers and trade unions and requests from 
authorities in other Member States. 

189 Reported during desk research. 
190 Reported during desk research, 2022. 
191 Poland has reported that, as the professional boundaries are blurred, it is challenging to gather the necessary documentation 

and perform inspections. In Germany, in case BAG, 24.06.2021 - 5 AZR 505/20, the Federal Labour Court dealt with the 
question of whether foreign care workers posted to a private household in Germany are entitled to the statutory minimum 
wage for hours worked. The BAG answered in the affirmative, stating that the minimum wage entitlement also applied to 
periods of on-call duty. 

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•  For instance, in the Slovenian Labour Inspectorate, for instance, in 2021 there were 
53 inspectors in the field of labour law, with around 225 795 entities to be controlled, 
amounting  to  more  than  4 000  inspections  per  inspector,  if  controls  were  to  be 
compulsory for each entity. 

Competence of enforcement bodies 

Moreover, the issue of competence of national authorities comes up: 

• 

In the Netherlands, as regards the rights of posted temporary agency workers, the 
labour inspectorate is competent for enforcement up to the statutory minimum wage 
only. The Foundation for Compliance with the CLA for Temporary Agency Workers 
in 
investigative  or  enforcement 
competences in case of posting by foreign temporary work agencies.192 As such, it 
becomes difficult to enforce a wage that is set by a collective labour agreement for 
posted temporary agency workers.  

the  Netherlands  (SNCU)  does  not  have 

Ability to enforce a decision 

The inability to enforce a decision is especially prevalent where letterbox companies are 
involved: 

• 

In Slovenia it is reported that, after years of hearings and related costs incurred, a 
worker  may  be  able  to  obtain  a  final  and  enforceable  decision,  which  however, 
cannot  be  enforced  because  the  property  to  be  seized  no  longer  exists,  as  the 
company through which the worker was employed was a letterbox company and 
no longer exists.193  

Consequently, the unpaid wages owed to the worker cannot be guaranteed, as there is no 
possible way for the decision to be enforced.  

192 See also: https://www.sncu.nl/en/ .  
193 Reported in stakeholder interview with national authority. 

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5.  Posted and other temporary cross-border workers in 

situations involving subcontracting chains and 
labour market intermediaries in key sectors: Drivers, 
characteristics and persisting challenges 

Sections 3 and 4 point to several key sectors that are particularly relevant for posting and 
non-posting situations. This section assesses the situation of different types of temporary 
cross-border workers in five of these sectors: construction, long-term care/ live-in care, 
meat processing, agriculture and horticulture, and hotel-tourism-catering.  

The selection criteria informing the choice of sectors included: 

• 

• 

• 

• 

• 

• 

the number of temporary cross-border workers in each sector; 

the prevalence of specific forms of cross-border mobility in each sector; 

the  occurrence  of  posting  and  other  types  of  temporary  cross-border  work  in 
subcontracting chains; 

the  role  of  labour  market  intermediaries  in  relation  to  posting  and  other  types  of 
temporary cross-border work; 

the systematic or extensive involvement of posted TCNs; 

the challenges in the sector per given form of temporary cross-border mobility and 
the systematic nature of problems encountered. 

As already mentioned the international road transport sector was not selected for in-depth 
analysis, since the new rules on posting of drivers in road transport (Directive 2020/1057) 
– adopted in July 2021 as part of the Mobility Package – have only started to be applied in 
2022 and their impact could not be expected to be captured in this study’s timeline.    

This  section  focuses  on  the  characteristics  of  temporary  cross-border  work  at  sectoral 
level,  employment  relations 
labour  market 
intermediaries, their main drivers and a range of key issues and practices resulting in 
violations of terms and conditions of employment.  

involving  subcontracting  chains  and 

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5.1.  Construction 

Summary of key findings 

Temporary cross-border intra-EU labour mobility is frequently used in the construction 
sector. Intra-EU labour mobility can be a solution for the labour and skill shortages in 
the sector. However, the use of temporary cross-border intra-EU labour mobility may 
bring  unwanted  effects. For  instance,  precarious  living  and  working  circumstances  of 
posted workers are encountered in the construction sector. Such problematic situations 
seem to arise especially in the case of subcontracting, the use of placement agencies 
as well as the posting of TCNs. 

5.1.1.  Overview of the sectoral context 

The construction sector is one of the largest sectors in the EU, seeing that in 2021, 6.7% 
of  all  employees  were  employed  in  this  sector.194,195  In  2020,  an  estimated  3.5  million 
companies were active in the construction sector, employing around 11 million persons. 196 
This brings the average number of persons employed per enterprise to 3.1 persons. The 
sector is mainly characterised by small and medium-sized enterprises (SMEs) as 95% of 
companies  in  the  EU-27  in  2021  had  less  than  20  employees.197  Furthermore,  in  2021, 
11.1% of the EU-27 GDP was created in the construction sector and total turnover in the 
sector amounted to € 1 715 billion in 2020.198  

The construction sector is known to be cross-border oriented.199 Several drivers of cross-
border provision of construction services can be identified. For instance, the enlargement 
of  the  EU  has  increased  export  and  import  of  services,  as  well  as  price  competition. 
Moreover,  the  construction  sector  is  characterised  by  both  manpower  and  skill 
shortages.200,201 Labour shortages in general can be considered as a global issue, not only 
in the EU construction sector, caused by the sector’s poor image, unclear career paths, lack 
of  training  and  education,  poor  work  environment,  and  an  ageing  workforce  to  name  a 
few.202 Skill shortages are an important issue as well, seeing that skilled manpower is one 
of the critical factors of production in construction projects.203 As a result, the construction 
sector seems to be in constant need of manpower, and thus looking for ways to employ 
workers from abroad. 

Data shows that the construction sector is one of the largest sectors of employment for EU 
mobile  and  cross-border  workers.204  Compared 
these  workers  are 
overrepresented in the construction sector.  

to  nationals, 

194 Eurostat [NAMA_10_A10_E] 
195 For details about labour costs per economic sector, see Eurostat https://ec.europa.eu/eurostat/web/labour-

market/information-data/labour-costs.  

196 Eurostat [SBS_NA_CON_R2] 
197 European Construction Industry Federation, 'Key Figures 2019 Construction Activity in Europe Edition 2020', 2020.  
198 Eurostat [SBS_NA_CON_R2] 
199 E. Sjödin & E. Wadensjö, 'Intra-European Labour Migration for a Resilient EU', 2022. 
200 See the annual report on labour shortages and surpluses in the EU (McGrath, 2022).  
201  For  instance,  the  Belgian  construction  sector,  which  is  said  to  be  mainly  cost-driven,  is  also  facing  labour  shortages. 
Roughly  20,000  additional construction  workers  are  needed.  About  seven  out  of  ten  of  the  (large)  Belgian construction 
companies have one or more vacancies. 

202  A.  Ceric,  and  I.  Ivic,  'Construction  labor  and  skill  shortages  in  Croatia:  causes  and  response  strategies,  Organization, 

Technology and Management in Construction', 2020, pp. 2232-2244.  

203 B., Akomah, L. K., Ahinaquah, & Z. Mustapha, 'Skilled Labour Shortage in the Building Construction Industry within the 

Central Region', 2020, Baltic Journal of Real Estate Economics and Construction Management, 8, 2020, pp. 83-92.  
204 E. Hassan, L. Siöland, B. Akbaba, D. Cinova, M. Gasperini,  & M. Geraci,  'Annual Report on Intra-EU Labour Mobility 

2022', European Commission Directorate-General for Employment, Social Affairs & Inclusion, 2023. 

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This section zooms in on the importance of posted workers, temporary agency work and 
subcontracting in the construction industry (sometimes they can be linked to each other) 
and  the  challenges that arise  for  these  three  dimensions.  Chapter  7  then  discusses  and 
analyses several of these challenges in more detail. In response to the challenges faced in 
the construction sector, recommendations have been formulated by the EFBWW in the fight 
against  cross-border  social  fraud,  to  be  implemented  at  a  European  or  national  level. 205 
These  recommendations  mainly  focus  on  prevention,  inspections  and  sanctioning  (for 
instance, improve cross-border exchange of digital data, efficient tools to control the role of 
intermediary labour suppliers in the construction sector and where needed exclude them, 
stronger rules on subcontracting in public procurement, limit the subcontracting chain both 
vertical  and  horizontal,  full  joint  and  several  liability,  effective  labour  inspections  and 
complaint mechanisms etc.).  

5.1.2.  Posted workers in the construction sector 

In the construction sector, the posting of workers as a specific form of cross-border labour 
mobility  has  become  an  increasingly  prominent  and  competitive  form  of  service 
provision among EU Member States.206 Posted workers seem to be employed mainly on 
large construction sites.207 

The number of posted workers in the construction sector can be estimated by analysing the 
‘Portable Documents A1’ (PDs A1) issued.208 In 2021, about 26% of PDs A1 issued under 
Article 12 were granted to persons providing services abroad in the construction sector. 209 
This  EU-average  of  26%  lies  remarkably  higher  in  several  sending  Member  States.  For 
instance, it is equal to or exceeded 50% in Estonia (54%), Portugal (60%), Romania (54%), 
and  Slovakia  (53%)  in  2021.210  For  these  Member  States,  sending  posted  workers  to 
provide  services  in  the  construction  sector  is  of  great  importance.  The  main  flows  of 
posted workers active in the construction sector go Poland to Germany, from Slovakia 
to Germany, from Slovenia to Germany, from Germany to Austria, from Portugal to France, 
from Poland to France, from Poland to Sweden, from Portugal to Belgium, from Poland to 
Belgium, and from Slovenia to Austria. Furthermore, in terms of notifications made in the 
prior declaration tools of the receiving Member States, construction is the most common 
sector for Belgium, Denmark, France, Cyprus, Luxembourg, Finland, and Sweden.211  

Box 16. Prevalence of posting in the construction sector in the EU  

Incoming  posted  workers  make  up  a  large  part  of  the  workforce  in  the  construction 
sector  in  several  Western  European  Member  States,  mainly  in  Belgium,  France, 
Germany, Austria and Luxembourg (but also to some extent in Denmark and Sweden).  

205 See, for instance, https://www.efbww.eu/campaigns/stop-social-dumping/65-a; 

https://www.efbww.eu/campaigns/subcontracting-campaign/162-a; https://www.efbww.eu/stream/50f52ca6-9dbc-47dd-
91e4-8820dd9b113d; https://www.efbww.eu/campaigns/campaign-3/34-a; M. Houwerzijl., E. Traversa, S. Borelli, M. 
Mesure, M. M., & W. Buelen.. Putting an end to cross-border social security fraud and abuse, EFBWW: Brussels, 2019.  
206 S. Danaj, E. Zólyomi, R. Kahlert, N. Prinz, & V. Sandu, 'Bridging the gap between legislation and practice in the posting of 

workers – POW BRIDGE', 2021, p 11.  

207 For instance, Belgian clients of posted workers are in particular active in the subsectors ‘Construction of residential and 

non-residential buildings’ (NACE 412). 

208  This  document  proves  that  the  social  security  legislation  of  the  issuing  Member  State  applies  and  confirms  that  the 

individual in question has no obligations to pay contributions in another Member State.  

209 De Wispelaere et al., 'Posting of workers Report on A1 Portable Documents issued in 2021', European Commission DG 

EMPL, 2023. 

210  Furthermore,  it  surpasses  the  average  of  26%  in  Czechia  (43%),  Croatia  (46%),  Latvia  (41%),  Lithuania  (40%), 
Luxembourg (43%), Austria (29%), Poland (47%), and Slovenia (41%). (De Wispelaere et al., 'Posting of workers Report 
on A1 Portable Documents issued in 2021', European Commission DG EMPL, 2023.). 

211 F. De Wispelaere, L. De Smedt, & J. Pacolet, 'Posting of workers Collection of data from the prior declaration tools 

Reference year 2021', European Commission DG EMPL, 2023. 

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Posted  workers  represent  about  one-fifth  of  employment  in  the  Belgian  construction 
sector (though one-tenth of employment in the construction sector in FTEs). This shows 
that the Belgian construction sector has become strongly dependent on posted workers. 
In  some  regions  in  France,  posted  workers  account  for  8%  of  the  total  workforce 
employed  in  the  construction  sector.  Furthermore,  some  5%  of  the  workforce  in  the 
Austrian construction sector and some 7% of the workforce in the Dutch construction 
sector  are  posted  workers.  Finally,  approximately  4.5%  of  the  employment  in  the 
German construction sector are incoming posted workers.212   

From  a  sending  perspective,  about  one  in  three  workers  employed  by  a  Slovenian 
construction company are posted to another Member State.  

The posting of TCNs in the construction sector is of particular importance, and is discussed 
in more detail in section 6.5. 

Posting  as  cost  cutting  strategy  is  one  of  the  main  drivers  for  the  use  of  it  in  the 
construction sector.213 Nonetheless, there are also several other factors at play. In general, 
it seems that the nature of the sector aligns with the characteristics of posted work. 
The  main  characteristic  of  the  construction  sector  is  its  high  temporality,  limited  to  the 
completion of the construction process.214 Consequently, a flexible labour force is needed, 
meaning that long-term attachment is often not needed, and posting is ideal to satisfy this 
demand of flexibility. Moreover, posting can provide a solution to local labour and skill 
shortages. When posting workers, specialised expertise that cannot be found on the local 
labour market can be brought in. Furthermore, due to the financial and economic crisis of 
2008, construction companies in some Member States have shifted their horizon from the 
local economy to the internal market.215 

Nevertheless, the construction sector is confronted with several challenges with respect 
to the compliance with the applicable labour law. These challenges are mainly caused 
by the characteristics of the construction sector. For instance, seeing that the sector is highly 
competitive with fierce price competition, labour costs are one of the main areas in which 
costs  are  cut  down,  leading  to  undeclared  work.216  Bogus  self-employment  is 
particularly prevalent in the construction sector (see also section 6.4).217 Furthermore, 
the high level of cross-border posting in the sector has been found to be intrinsically linked 
to cross-border infringements to the applicable labour law.218  

Posted  workers  in  the  construction  sector  often  find  themselves  in  precarious 
circumstances, not only in the receiving Member State, but also often from the start in the 
sending Member State.219 First, from the sending perspective, it is often the case that low 

212 F. De Wispelaere, L. De Smedt, and J. Pacolet, ‘Posted workers in the EU. Facts and figures’, Leuven: POSTING.STAT 

project VS/2020/0499, 2022b. 

213 Lens et al. ‘A hole in the wall of fortress Europe: The trans

European posting of third

country labour migrants,’ International 

Migration, 2021.  

‐

‐

214 Á. Romero, M. de las Nieves González, M. Segarra, B. M. Villena, & Á. Rodríguez, 'Mind the Gap: Professionalization is 
the  Key  to  Strengthening  Safety  and  Leadership  in  the  Construction  Sector',  International  Journal  of  Environmental 
Research and Public Health, 16(11), 2019.  

215 See e.g., Dorigatti et al. 'Posted workers from and to Italy. Facts and figures', 2022, Leuven: POSTING.STAT project, 2022 
for Italy: “According to our interviewees, the increased presence of small firms abroad, also through posting, is linked to the 
effects of the 2008 economic crisis on the internal market, which have pushed many businesses of the Italian construction 
sector to the EU construction market.” 

216 European Federation of Building and Woodworkers & European Construction Industry Federation, 'Tackling Undeclared 
Work in the Construction Industry Toolkit with Concrete Cases from Belgium, France, Bulgaria, Italy, Spain, Romania and 
Austria', 2020.  

217 Eurofound, ‘Exploring the fraudulent contracting of work in the European Union’, Publications Office of the European Union, 

Luxembourg, 2016. 

218 European Federation of Building and Woodworkers and European Construction Industry Federation, 'Tackling 

Undeclared Work in the Construction Industry Toolkit’, 2020. 

219 Defined by Standing (2011, p. 10) as workers missing some of the following seven forms of security: that of the labour 
market, employment security, job security, work security, skill reproduction security, income security, representation 
security.  

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wages in the country of origin, often associated with insecurity and poor working conditions, 
drive these workers to engage in posted work.220 Second, when being posted, wages of the 
posted workers are often lower than those of local workers doing the same job (e.g., posted 
workers earn on average 30% less than comparable French workers employed at the same 
workplace).221 Section 6.2 goes deeper into underpayment as well.  

In addition to possible wage problems, comparative research has found that the employers 
of  posted  workers  in  the  construction  sector  are  found  by  labour  inspections  to  be 
particularly  prone  to  occupational  safety  and  health  (OSH)  violations,222  compared  with 
other sectors.223 Posted workers are entitled to a set of core rights, including minimum rates 
of pay, maximum work periods, minimum paid annual leave, and health, safety, and hygiene 
at work. However, a study examining nine Member States found that “the temporary, mobile 
and transnational character of posting affects the health and safety of posted workers in 
multiple  ways”.224  There  is  a  tradition  that  many  construction  workers  live  on-site  in 
collective accommodation, and it was found that posted workers sometimes face economic 
vulnerability  and  an  increased  dependence  on  their  employer,  which  may  lead  them  to 
accept  poor  working  and  living  conditions.  Moreover,  cases  where  injuries  have  been 
reported have revealed irregularities in posted workers' health insurance and care. 

There is a certain labour market segmentation of the European construction labour 
market.225 This indicates that posted workers are kept separate from nationals in the host 
country  or  other  migrants.  On  the  one  hand,  this  is  the  result  of  the  work-focused  and 
employer-dominated  nature  of  posted  construction  workers’  social  world  abroad.  For 
instance, as they are often housed on-site, all efforts of posted construction workers are 
channelled into earning and saving money, resulting in isolation from the broader society. 226 
On the other hand, building political, social, and economic resources in host Member States 
is less necessary/possible for posted workers compared to more permanent migrants in the 
sector.227  

Furthermore, the sector is prone to abuse of the posting rules.228 In Belgium in 2021, 
76% of inspections in the construction sector found an infringement, while the share was 
50% in 2020. In the Italian construction sector, irregularities in the terms and conditions of 
employment  among  60%  of  the  outgoing  posted  workers  were  found.229  The  sharp 
increase in the number of TCNs posted to several Member States is also observed by 
labour inspectors. This reality and other challenges have led to some problematic situations 
and rights violations. For instance, in some cases, wages are paid far below the minimum 
wage. Finally, despite more efforts on enforcement, companies keep on finding loopholes, 
for  instance  by  using  posted  self-employed  persons  because  they  do  not  fall  under  the 
PWD.  

Labour inspections aimed at enforcing the posting rules take place to a large extent 
in  the  construction  industry.  In  France,  59%  of  controls  in  2017  took  place  in  the 
construction sector,230 while in Belgium 68% of inspections in 2019 and 57% of inspections 

220 A. Voivozeanu, ‘Precarious posted migration: the case of Romanian construction and meat-industry workers in 

Germany’, Central and Eastern European Migration Review, 8(2), 2019, pp. 85-99.  

221 M. Muñoz, 'Posted workers from and to France. Facts and Figures', Leuven: POSTING.STAT project, 2022.  
222 In Belgium, the importance of health and safety at work in case of the posting of workers has come to the fore, 

unfortunately, due to the deadly accident of five posted construction workers that occurred on 18 June 2021 on a 
construction site in Antwerp. 

223 Danaj et al., 'Bridging the gap between legislation and practice in the posting of workers – POW BRIDGE', 2021, p. 5.  
224 S. Danaj & E. Zólyomi, 'Occupational Health and Safety of Posted Workers in the EU: a Comparative Report', European 

Centre for Social Welfare Policy and Research, 2018, p. 6.   

225 E. Caro, L. Berntsen, N. Lillie & I. Wagner, ‘Posted migration and segregation in the European construction sector’, 

Journal of Ethnic and Migration Studies, 41(10), 2015, pp.1600-1620. 

226 Oso et al., 2022. 
227 Caro et al., ‘Posted migration and segregation in the European construction sector’, Journal of Ethnic and Migration 

Studies, 2015. 

228  
229 L. Dorigatti, M. Pallini, & M. Pedersini, 'Posted workers from and to Italy. Facts and figures', 2022, Leuven: 

For instance, in October 2019, EFBWW together with ETUC submitted ten problematic cases to ELA.   

POSTING.STAT project, 2022. 

230 M. Muñoz, 'Posted workers from and to France. Facts and Figures', Leuven: POSTING.STAT project, 2022.  

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in 2020 related to cross-border social fraud were carried out in the construction sector. 231 
Despite this strong focus on the construction sector, the infringement rate remains very high 
as shown above. 

5.1.3.  Temporary agency work in the construction sector  

In 2021, 2.5% of employed persons between 20 and 64 years were temporary employment 
agency workers in the EU-27.232 While no separate data for the construction sector (NACE 
F) is available, the share of temporary employment agency workers in manufacturing 
industry  and  construction  together  lay  remarkably  higher  at  3.4%  in  2021  in  the 
EU--27.  In  some  Member  States,  the  difference  between  the  share  of  temporary 
employment  agency  workers  in  all  sectors  and  the  share  in  industry  and  construction  is 
remarkable.  For  instance,  in  Spain  4.1%  in  total  is  employed  as  temporary  employment 
agency worker, while the share in industry and construction amounts to 8.7%. Furthermore, 
in  France,  7.4%  of  persons  employed  in  industry  and  construction  are  temporary 
employment agency workers, while the share only amounts to 2.6% in general.  

In Europe, 9% of agency workers are active in the construction sector.233 However, in 
Eastern Europe the share amounts to 2%,234 in Southern Europe to 1%,235 and in Central 
and Northern Europe to 13%.236 This shows that the share can differ considerably between 
regions. The main reason for this is the diverging regulatory framework for temporary 
employment  agency  work  in  the  Member  States.  For  instance,  there  are  sectoral 
restrictions in place on temporary agency work in the German construction sector, in Spain 
further  restrictions  on temporary  agency  work  in  the  construction  sector can  be  imposed 
through collective bargaining, and in Greece, in the case of agency workers in construction, 
the temporary work agency has the duty of submitting a report to the authorities and paying 
the social security contributions.  

However,  above  figures  say  nothing  about  the  importance  of  temporary  agency  work  in 
temporary  cross-border  mobility.  Such  figures  are  not  available  for  the  construction 
sector. In any case, infringements in case of temporary employment agency work within a 
cross-border context are frequently identified in the construction sector. See also section 
6.1 for a general overview of the challenges of temporary agency work in temporary cross-
border mobility. 

5.1.4.  Sub-contracting involving posted workers and other 

temporary cross-border mobile workers 

Subcontracting in the construction sector is very common due to the fragmented nature of 
the work. Seeing that the sector is highly volatile, and a high degree of labour flexibility is 
necessary,  subcontracting  has  always  been  important  in  the  construction  sector,  even 
increasing over the last two to three decades.237 Especially in price-sensitive and labour-
intensive parts of the sector subcontracting is used.238,239 A further issue are (overly) long 

231 F. De Wispelaere et al., 'Posted workers from and to Belgium. Facts and figures', Leuven: POSTING.STAT project, 

2022d. 

232 Eurostat [LFSA_QOE_4A6R2].  
233 World Employment Confederation, 2021a. 
234 Eastern Europe concerns Croatia, Czechia, Estonia, Poland, Romania, and Russia.  
235 Southern Europe concerns Greece, Italy, Portugal, and Spain.  
236 Central and Northern Europe concerns Austria, Belgium, Denmark, Finland, France, Germany, the Netherlands, Norway, 

Sweden, and Switzerland.  

237 M. Buckley, A. Zendel, J. Biggar, L. Frederiksen, & J. Wells, 'Migrant Work & Employment in the Construction Sector', 

2016, Geneva: International Labour Organization. 

238 F. De Wispelaere et al., 'Posted Workers in the EU A Quantitative Comparative Analysis', 'Posted Workers in the EU A 

Quantitative Comparative Analysis', Leuven: POSTING.STAT project, 2022e.  

239 European Federation of Building and Woodworkers and European Construction Industry Federation, 'Tackling 

Undeclared Work in the Construction Industry Toolkit’, 2020. 
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chains of subcontractors. There are  several reasons for using subcontracting such 
as looking for expertise and know-how which does not belong to the company’s core activity, 
labour shortages, looking for increased efficiency, a traditionally evolved division of labour 
with partners based on mutual trust, routine, or historical reasons.240  

In the construction sector in 2017, payments to subcontractors accounted for 23.5% of total 
turnover,  and  even  for  36.6%  in  the  construction  of  buildings.241  In  this  sector,  large 
companies function as main contractors or as building service providers, while small and 
medium enterprises (SMEs) assume the role of subcontractors. The use of subcontracting 
has long been a normal situation in the industry,242 and it can be considered as one of its 
permanent and predominant features.243,244  

Combining  subcontracting  with  posting  allows  “employers  to  access  alternative 
regulatory regimes in a legal sense, as well as in an employment relations sense, in that 
company  boundaries  and  practices,  as  well  as  the  expectations  of  the  subcontractors’ 
workers relate back to their home country”.245 Lowering of costs appears to be the main 
reason for the use of subcontracting involving posted workers. Because of the high 
cost pressure in the construction sector, the use of posting can be found in all layers of 
subcontracting, spreading from large companies to SMEs.246  

Not only has posting benefitted subcontracting, but also the other way around: the use of 
posting  has  favoured  the  lengthening  of  the  subcontracting  chain,  and  the  subsequent 
transition  from  outsourcing  on  the  national  market  to  outsourcing  on  the  international 
market, “leading to a transnationalisation of the subcontracting system”. Another trend in 
the  construction  sector  because  of  the  lowering  of  labour  costs  is  the  change  from 
subcontracting  between  companies  to  subcontracting  to  temporary  employment 
agencies.247  

Consequently, the growing number of posted workers, workers recruited through temporary 
employment agencies, and bogus self-employed persons in subcontracting chains can lead 
to  several  problems,  one  of  which  concerns  occupational  safety  and  health  (OSH).  It  is 
found that a reduced attention for OSH is the result of fierce  competition between lower-
level contractors for contracts, which puts pressure on work standards248 and makes that 
subcontracted workers are often less informed about important policies and procedures. 249 
Additionally, subcontracted workers are found to be more vulnerable to OSH risks due to 
longer  hours,  intensity  of  work,  economic  stress,  and  their  concentration  in  higher-risk 
segments of a supply chain.250 

Not only are there problems regarding OSH, but also regarding undeclared work. Because 
of  long  and  complex  subcontracting  chains,  undeclared  work  and  labour  exploitation 

240 J. Cremers, 'In search of cheap labour in Europe: Working and living conditions of posted workers', 2011, p. 177. 
241 Eurostat [SBS_NA_CON_R2], [SBS_NA_IND_R2], and [SBS_IS_SUBC_R2] 
242 N. Lillie and I. Wager, ‘Subcontracting, insecurity and posted work: evidence from construction, meat processing and ship 

building’, in ‘the outsourcing challenge: organizing workers across fragmented production networks’, ETUI, 2015.    
243 J. Cremers, 'In search of cheap labour in Europe: Working and living conditions of posted workers', 2011, available at: 

CLR/EFBWW/International Books, ISBN 978 90 5727 105 2.   

244 G. Alberti, & S. Danaj, 'Posting and agency work in British construction and hospitality: the role of regulation in 

differentiating the experiences of migrants', 2017, The International Journal of Human Resource Management, 28(21), pp. 
3065-3088.  

245 N. Lillie and I. Wager, ‘Subcontracting, insecurity and posted work: evidence from construction, meat processing and ship 

building’, 2015, p. 158. 

246 R. Cillo, 'Mandatory mobility? The case of immigrant posted workers sent from Italy to Belgium in the construction sector', 

International Migration, 2021, 59, pp. 156-171, available at: doi: 10.1111/imig.12935. 

247 RIbid.  
248 L. E. Berntsen & N. Lillie, 'Hyper-mobile migrant workers and Dutch trade union representation strategies at the Eemshaven 

construction sites', Economic and Industrial Democracy, 37(1), pp. 1714-187, 2014.  

249 S. Choe, W. Seo, & Y. Kang, 'Inter- and intra-organizational safety management practice differences in the construction 

industry', Safety Science128, 2020.  

250 P. James, D. Walters, H. Sampson, & E. Wadsworth, 'Protecting workers through supply chains: Lessons from two 

construction case studies', Economic and Industrial Democracy, 36(4), 2015, pp. 727–747.  

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occur more often.251 Labour exploitation concerns for instance non-payment of wages, the 
deduction of fees from salaries, unpaid overtime, no social protection, no health and safety 
protection for workers, poor accommodation, and social isolation.  

As  a  result  of  long  subcontracting  chains,  there  is  a  major  lack  of  transparency  and 
accountability.252 This means that supply chains become ‘opaque’, with firms up the chain 
only having limited control over what happens in lower-level subcontracts, and firms trying 
to push business risks down the supply chain.253 This problem especially arises when cross-
border labour such as posting comes into play in the subcontracting chain. For instance, it 
occurs that companies transfer the recruitment of labour to small subcontractors, leading to 
multiple levels of recruitment, which hinders compliance to the rules even further.254 In the 
worst case, there can be an illegal supply of cheap labour through agencies or letterbox 
companies (see also section 6.7).  

The  construction  sector  is  well-known  for  its  problems  with  complex  subcontracting 
networks.  This  phenomenon  of  subcontracting  and  temporary  work  agencies  makes 
enforcement even harder, especially in cross-border situations involving posted workers. 
Seeing  that  there  are  long  chains  of  interconnected  companies,  the  direct  (social) 
responsibility  and  liability  of the  contractor  is  considerably  reduced.255  As a  result,  “even 
well-resourced  unions  can,  at  best,  improve  employment  conditions  for  a  limited  set  of 
workers  and  only  for  a  limited  period  of  time”.256  Therefore,  the  enforcement  of  rules  is 
particularly  hard  for  subcontracting  chains  (possibly  involving  posted  workers  and 
temporary employment agencies) as responsibility is often passed on to the next ‘link in the 
chain’.  

251 P. van Nierope, L. Schönenberg, & P. Terziev, 'Counteracting undeclared work and labour exploitation of third-country 

national workers', 2021, European Platform tackling undeclared work.  

252 European Federation of Building and Woodworkers and European Construction Industry Federation, 'Tackling 

Undeclared Work in the Construction Industry Toolkit’, 2020. 

253 L. E. Berntsen & N. Lillie, 'Hyper-mobile migrant workers and Dutch trade union representation strategies at the 

Eemshaven construction sites', Economic and Industrial Democracy, 2014.  

254 J. Cremers, 'In search of cheap labour in Europe: Working and living conditions of posted workers', 2011, 2011 and: 
European Platform tackling undeclared work, ‘Tackling undeclared work in supply chains’, Learning Resource Paper, 
2023, https://www.ela.europa.eu/sites/default/files/2023-03/Tackling-undeclared-work-in-supply-chains.pdf . 

255 M.S. Houwerzijl, S.S.M. Peters, ‘Liability in subcontracting processes in the European construction sector (comparative 

report)’, European Foundation for the Improvement of Living and Working Conditions, 2008.  

256 L. E. Berntsen & N. Lillie, 'Hyper-mobile migrant workers and Dutch trade union representation strategies at the 

Eemshaven construction sites', Economic and Industrial Democracy, 2014, p. 171. 

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5.2.  Long-term and live-in care 

Summary of key findings 

•  Live-in care work is particularly common in seven EU Member States: Austria, 
Cyprus, Germany, Greece, Italy, Malta and Spain. It is a phenomenon that is on 
the rise: with underdeveloped long-term care systems being a feature of many 
EU  Member  States  and  people 
increasingly  preferring  home-care  and 
community-based services, more households are likely to start employing live-in 
carers when they can afford to do so. Due to the difficult working conditions in 
the  sector,  characterised  by  long  hours  and  relatively  low  pay,  many 
(predominantly  Western)  EU  Member  States  are  increasingly  relying  on  EU 
mobile workers and TCNs to provide live-in care services. 

•  One of the overarching challenges in the sector is that the very nature of live-in 
care  renders  it  virtually  impossible  to  separate  working  and  recreational  time, 
making it difficult to reduce the health and safety impacts of working too many 
hours  per  week.  This  is  compounded  by  the  fact  that,  if  and  when  abuses  of 
working time occur, enforcement authorities have limited powers to act given that 
the  ‘workplace’  in  question  is  an  individual’s  home.  Temporary  cross-border 
carers are thus rather 'invisible' workers in private households. 

•  One of the measures to counter the degree of undeclared work is the Austrian 
solution of regularisation. However, while 99% of live-in care workers in Austria 
are formally self-employed, the reality is that intermediary (placement) agencies 
determine most aspects of the employment relationship. This is a problem given 
that it represents bogus self-employment. Although EU nationals represent the 
predominant share of temporary cross-border live-in carers, the share of PDs A1 
issued to TCNs has been increasing in recent years, and is expected to continue 
to do so. TCNs are more likely to experience precarious working conditions, are 
more vulnerable to undeclared work, and tend to be more excluded from social 
protection and welfare assistance than EU workers. 

This section will address temporary cross-border labour mobility in a particular sub-sector 
of long-term care: the live-in care sector. Work within this sub-sector is largely provided by 
mobile foreign nationals, including but not exclusively limited to posted workers. We focus 
on  the  role  of  intermediaries  in  the  live-in  care  sector,  as  well  as  third-country  nationals 
working  as  live-in  carers  (a  relatively  small,  but  growing,  segment  of  the  sectoral  labour 
force). 

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5.2.1.  Overview of the sectoral context: the increasing 

phenomenon of cross-border (live-in) care workers 

5.2.1.1. 

Long-term care 

The care sector is currently a priority area for the European institutions. The European Care 
Strategy, launched in September 2022, sets as a core priority the provision of high-quality, 
affordable and accessible care services with better working conditions and work-life balance 
for carers.257  

The COVID-19 pandemic brought to light the fundamental importance of a well-functioning 
care system, as well as the vital role that caregivers play. It also bolstered the ‘care crisis’ 
that many  countries  are experiencing, caused  by  ageing  populations,  a  shortage  of  care 
workers, the inadequate quality and elevated cost of long-term care facilities, overburdened 
family carers and, at the same time, (the image of) inordinate public expenditure.258 Indeed, 
on average, 1.5% of the GDP of OECD countries was spent on long-term care services in 
2018, with this percentage as high as 3.9% in the Netherlands and around 3.5% in Denmark 
and  Sweden.259  In  an  attempt  to  counter  these  issues,  many  EU  Member  States  are 
increasingly relying on EU mobile workers and TCNs to provide long-term care (LTC) 
work.  

In the EU27, around 6.3 million people work in LTC, amounting to around 3.2% of the 
EU’s total workforce.260 In 2019, 71% of LTC workers in the EU worked in residential care 
and  29%  in  non-residential  care  (the  latter  representing  an  increase  of  3%  since  2009). 
Sweden, the Netherlands and Belgium have the highest shares of LTC workers compared 
to their total workforce (7.1%, 6.4% and 5.5% respectively). In 2019, 7.9% of the EU’s LTC 
workforce  was  made  up  of  foreign  nationals,  with  more  TCNs  (4.5%)  than  mobile 
workers  from  within  the  EU  (3.4%).261  These  rates  are  very  similar  to  those  of  the  EU 
workforce as a whole, with 8% of foreign national workers. However, they differ considerably 
to those of the healthcare sector, where only 4.8% of the workforce are foreign nationals.262 
Of these, the share of TCNs is the same as that of mobile workers from within the EU. 

The Member States with the highest share of foreign workers in the long-term care sector 
are Malta (43%), Luxembourg (21%), Ireland (19%) and Austria (14%). In response to the 
COVID-19 pandemic, and in recognition of the high numbers of cross-border workers active 
in  the  sector,  the  Luxembourgish  State  offered  the  possibility  of  temporary,  free 
accommodation  in  Luxembourg  to  frontier  workers  in  the  hospital  and  care  sectors  who 
reside in Germany, Belgium or France.263 Meanwhile Cyprus, Germany, Italy and Norway 
(all  12%),  Sweden  (11%)  and  Belgium  (10%)  all  have  above  average  rates  of  foreign 
workers in the sector.264 There is a significant gender imbalance in the sector: 81% of the 
EU’s LTC workforce was female in 2019.265 

257 European Commission, ‘A European Care Strategy for caregivers and care receivers’, 07 September 2022, available at: 

https://ec.europa.eu/commission/presscorner/detail/en/ip_22_5169. 

258 V. Horn & C. Schweppe, ‘Transnational mobilities of care in old age’, International Journal of Ageing and Later Life, 

December 2019, p. 11.  

259 OECD, ‘Spending on long-term care’, November 2020, available at: https://www.oecd.org/health/health-

systems/Spending-on-long-term-care-Brief-November-2020.pdf. 

260 Eurofound, ‘Long-term care workforce: employment and working conditions’, 2020, p. 8, available at: 
https://www.eurofound.europa.eu/sites/default/files/ef_publication/field_ef_document/ef20028en.pdf. 

261 Ibid, p. 11. 
262 Ibid, p. 11. 
263 See: https://guichet.public.lu/en/actualites/2020/novembre/20-faq-logement-travailleurs-frontaliers.html.  
264 Eurofound, ‘Long-term care workforce: employment and working conditions’, 2020, p. 11. 
265 Ibid. 

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5.2.1.2. 

Live-in care 

Although  there  is  no  occupational  definition  of  a  live-in  carer,  these  workers  are  “paid 
professionals,  with  or  without  formal  care  training,  whose  work  primarily  involves  LTC 
provision  while  living  in  a  private  residence  with  the  care  receiver.”266  Live-in  care  is 
therefore a sub-category of long-term care provision; one in which precarious employment 
relationships  are  common  and  data  is  difficult  to  gather.  This  is  in  part  due  to  the 
volume  of  unregulated  and  undeclared  live-in  care  work,  as  well  as  the  challenge  of 
collecting  data  or  conducting  inspections  in  a  private  home.  As  temporary  cross-border 
carers  are  rather  'invisible'  workers  in  private  households  and  because  there  are  many 
different channels of recruitment other than posting, it is extremely difficult to monitor the 
situation and ensure effective enforcement of provisions.267 

Moreover, the very nature of live-in care renders it virtually impossible to separate working 
and recreational time, making it difficult to reduce the health and safety impacts of working 
too many hours per week. There are also physical risks involved in working in a home that 
may  be  ill-adapted (for example  beds  which  are  not  designed to  be raised  and  lowered, 
unlike those in a residential care setting or other facility that can support caring for patients 
with limited mobility), a high degree of emotional strain due to isolation and often also the 
nature of the patients’ health conditions, and sometimes pressure from the care recipient to 
extend the scope of work beyond care-giving, for example to housekeeping, cleaning and 
cooking  for  the  entire  family.268  All  of  these  factors  mean  that  there  are  multiple 
occupational health and safety risks for workers in the live-in care sector. 

5.2.1.3.  Prevalence of temporary cross-border live-in care 

workers 

The phenomenon of live-in care work is relatively common in seven EU Member States: 
Austria,  Cyprus,  Germany,  Greece,  Italy,  Malta  and  Spain.269  Especially  in  Austria, 
Germany and Italy, carers tend to live in the household of the person they are caring for, 
whereas in other countries like the Netherlands, it is more common to find live-out carers.270  

There is sparse data as to the number of live-in care workers, and even less when it comes 
to temporary cross-border live-in carers. In Austria, data shows that in 2015, there were on 
average 21 900 cases per month of people using their LTC allowance for live-in care 
(compared to only 3,200 cases per month in 2008).271 At the time, around 5% of the Austrian 
population received a care allowance,272 therefore around 432,000 individuals.273 However, 
other data which includes estimates of undeclared live-in carers suggests that ‘there were 
26,500 Slovaks [alone] working as live-in carers in Austria in 2015, which has since declined 
to around 23,000. Similarly, Croats make up only 2% of registered live-in carers, but the 
real number of live-in carers may be higher’.274 Although official estimates of monthly users 

266 Ibid, p. 26. 
267 L. Maihuber & B. Allinger, ‘Transnationale Betreuungs- und Pflegekräfte in euorpäischen Privathaushalten‘, 2021, 

https://wien.arbeiterkammer.at/service/studienundzeitschriften/studien/gesundheitundpflege/Transnationale_Betreuungsk
raefte_20210420.pdf. 

268 EESC, ‘The future of live-in care work in Europe, Report on the EESC country visits to the United Kingdom, Germany, 

Italy and Poland following up on the EESC opinion on “The rights of live-in care workers”’, 2020, p. 13, available at: https: 
//www.eesc.europa.eu/sites/default/files/files/report_on_the_eesc_country_visits_to_uk_germany_italy_poland_0.pdf. 

269 Eurofound, ‘Long-term care workforce: employment and working conditions’, 2020, p. 26. 
270 L. Maihuber & B. Allinger, ‘Transnationale Betreuungs- und Pflegekräfte in europäischen Privathaushalten‘, 2021, p. 1, 

https://wien.arbeiterkammer.at/service/studienundzeitschriften/studien/gesundheitundpflege/Transnationale_Betreuungsk
raefte_20210420.pdf.  

271 WIFO, U. F. Mühlberger, ‘Die Bedeutung der 24-Stunden-Betreuung für die Altenbetreuung in Österreich‘, Juli 2017, p. 

26, available at: https://www.wifo.ac.at/jart/prj3/wifo/resources/person_dokument/person_dokum 
ent.jart?publikationsid=60718&mime_type=application/pdf.  

272 Ibid, p. 4. 
273 Based on a population in Austria in 2015 of 8,642,699 – available at: 

https://data.worldbank.org/indicator/SP.POP.TOTL?end=2021&locations=AT&start=2013.  
274 Eurofound, ‘Long-term care workforce: employment and working conditions’, 2020, p. 27. 

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of  live-in  care  services  based  on  those  using  their  LTC  allowance  for  live-in  care  are 
relatively  conservative,  other  estimates  which  consider  undeclared  live-in  carers  suggest 
that there are many more individuals involved. 

In Austria, around 80% of live-in care workers travel to Austria to work on short-term 
cyclical rotas, usually ranging from two to four weeks.275 95% of live-in carers are women, 
and three in four are over 45 years of age.276 The main countries of origin of these 24-
hour caregivers going to Austria are from Romania (42.5%) and Slovakia (39.3%).277 Since 
2007,  the  proportion  of  Slovakian  caregivers  has  been  declining,  while  the  share  of 
Romanians has increased significantly.278  

Available data indicates that Germany in particular receives a high number of posted 
health and LTC workers, while Poland is by far the main ‘sending’ Member State of 
health and LTC posted workers to Germany.279 Contrary to the situation in Austria, live-in 
migrant  carers  typically  commute  between  Germany  and  their  country  of  origin  for 
periods of between one and three months.280 In 2020, 74 876 PDs A1 were issued for 
outgoing  workers  posted  from  Poland  in  the  ‘human  health  and  social  work  activities 
sector’,281 which includes live-in carers. A further 20 706 PDs A1 were issued for outgoing 
workers posted from Poland to a temporary employment agency (although this number is 
not limited to the ‘human health and social work activities sector’). 

However, the available administrative data for both Poland (as a sending Member State) 
and  Germany  (as  a  receiving  Member  State)  seems  to  underestimate  the  importance  of 
‘short-term mobile workers’ active in the live-in care sector.282 One of the reasons for this is 
the number of undeclared cross-border workers in the sector; the ‘personal services’ 
sector being the most affected by undeclared work.283 

In Germany, it is thought that there are between 300 000 and 350 000 undeclared live-
in carers.284 Another estimate suggests that 80-90% of caregivers from Eastern Europe in 
Germany  are  employed  informally.285  In  Spain,  meanwhile,  an  estimated  32%  of 
employment  in  personal  household  services  was  undeclared  in  2019,  amounting  to 
around 185 000 workers.286 Although both Cyprus and Malta also have live-in care workers, 
many of whom are TCNs, undeclared work is largely avoided in these Member States by 
policies which grant migrants residence permits for care work.287 

It is also important to consider the effects of the COVID-19 pandemic on the live-in care 
sector. On the one hand, given that this form of care implies limited contacts with multiple 
different  carers,  thus  contributing  to  feelings  of  safety  with  regard  to  the  likelihood  of 
catching the virus, some Member States saw increases in the number of live-in carers in 

275 M. Leiblfinger et al., ‘Confronted with COVID-19: Migrant live-in care during the pandemic’, 09 April 2021, available at: 

https://journals.sagepub.com/doi/full/10.1177/14680181211008340.  

276 Ibid. 
277 M. Leiblfinger & V. Prieler, ‘Elf Jahre 24-Stunden-Betreuung in Österreich‘, Katholische Privat-Universität Linz, 2018, 
p.13, available at: https://kidoks.bsz-bw.de/frontdoor/deliver/index/docId/1319/file/LiWiRei_9-Leiblfinger-Prieler.pdf. 

278 Ibid. 
279 De Wispelaere et al., 2022c. 
280 V. Horn et al., ‘Live-in migrant care worker arrangements in Germany and the Netherlands: motivations and justifications 

in family decision-making’, International Journal of Ageing and Later Life, 2019, 13(2): 83–113, p. 87. 

281 POSTING.STAT conference, Leuven, 20 May 2022. 
282 Using data from the Minimum Registration Portal, over 85% of incoming posted workers in Germany are employed in two 
sectors – the shipping, transport and related logistics sector and the construction sector. For posted workers from Poland, 
the main sectors of activity of these outgoing workers are construction and road transport, with human health and social 
work activities in third place. Source: POSTING.STAT conference, Leuven, 20 May 2022.  

283 ELA, ‘Different forms of cross-border undeclared work, including through third-country nationals’, September 2021, p. 2, 
available at: https://www.ela.europa.eu/sites/default/files/2022-01/Study-report-on-different-forms-of-cross-border-UDW. 
2021_EN.pdf?utm_source=icf&utm_medium=email&keywords=&utm_content=Undeclared%20work%20-%20Platform% 
20Newsletter%20-%20May%202022&utm_campaign=European%20Platform%20tackling%20undeclared%20work. 

284 V. Horn, & C. Schweppe, ‘Gewaltpotentiale und Gewaltschutz in Privathaushalten mit 24-StundenPflegekräften’, 

Zeitschrift für Sozialpädagogik, Vol. 17, No. 4, 2019, pp. 394–413. 

285 European Parliament, EMPL Committee, ‘Policies for long-term carers’, November 2021, p. 24. 
286 Eurofound, ‘Long-term care workforce: employment and working conditions’, 2020, p. 25.  
287 Ibid, p. 57. 

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2020 and 2021. In Cyprus, an estimated 14 825 carers were employed by households in 
2019, compared to 15 947 in 2020 and 18 754 in the second quarter of 2021.288 Although 
many of these carers were TCNs, most lived (semi-) permanently in Cyprus. 

On the other hand, in Austria and Germany, where temporary cross-border mobility of live-
in  carers  is  much  more  frequent,  travel  restrictions  during  the  pandemic  resulted  in 
care gaps for users, and income gaps for workers.289 Although Germany took measures 
to  ease  travel  restrictions  for  (highly  mobile)  cross-border  care  workers,  many  of  these 
individuals did not have the legal contracts needed to show at the border. Whereas Austrian 
live-in  care  workers  tended  to  have  (self-employed)  documents  to  show,  an  issue  they 
encountered was that they needed to travel further into Austria than the stipulated distance 
permitted over the border under national law.290 Furthermore, to prevent the collapse of the 
care system in Austria, special flights and train rides for live-in care workers from Romania 
and Bulgaria were provided during the COVID outbreak.291 

5.2.1.4.  Drivers and enabling factors 

The drivers of temporary cross-border mobility in the live-in care sector need to be examined 
from both a supply and demand perspective. From the supply side, one of the key push 
factors is a lack of (attractive) employment opportunities in the country of origin. Linked 
to this is the risk of age and sex-based discrimination in the home labour market;292 a factor 
that  explains  the  overwhelmingly  female  live-in  carer  workforce  aged  over  45  in  Austria. 
Live-in  care  work  also  provides  an  easier  entry  point  into  a  country  than  many  other 
professions,  given  that  there  are  often  no  formal  training  requirements  (unlike  with  the 
formal healthcare sector, for example), and there is no need for the worker to look and pay 
for accommodation. In Poland, this makes working as a live-in carer more common among 
migrants who have recently arrived in the country than for those who are already established 
there.293  Finally,  for  many  workers,  salaries  can  be  considerably  higher  than  in  their 
country of origin. For example, “Croatian live-in carers working in Austria or Italy can earn 
in two weeks what they would earn in three to four months for similar work in Croatia.”294 In 
fact, some studies have shown that income appears to be one of the most important 
determinants of job satisfaction for live-in caregivers,295 suggesting that many of these 
individuals are, first and foremost, labour migrants.296 

On the demand side, there is an increasing need for live-in care services in many Member 
States, especially those with a higher average GDP. With underdeveloped long-term care 
systems (good quality residential LTC being very costly and frequently associated with long 
waiting lists) and people increasingly preferring home-care and community-based services, 
more households are likely to start employing live-in carers when they can afford to do so. 297 
According to some academics in Austria, “Without cheap labour from abroad, costs in the 
Austrian and German elderly care systems would explode”.298 

288 Eurofound, ‘COVID-19 and older people: Impact on their lives, support and care’, 2022, p. 51, available at: 

https://www.eurofound.europa.eu/sites/default/files/ef_publication/field_ef_document/ef21053en.pdf.  

289 Ibid. 
290 Interview conducted on 24/05/2022 with a long-term care expert at the European level. 
291 A. Heindlmaier and C. Kobler, ‘Essential, lonely and exploited: why mobile EU workers’ labour rights are not enforced’, 
2022, Journal of Ethnic and Migration Studies, p. 2, available at: https://doi.org/10.1080/1369183X.2022.2102971.  
292 M. Leiblfinger et al., ‘Confronted with COVID-19: Migrant live-in care during the pandemic’, 09 April 2021, available at: 

https://journals.sagepub.com/doi/full/10.1177/14680181211008340. 

293 Eurofound, ‘Long-term care workforce: employment and working conditions’, 2020, p. 28. 
294 Ibid. 
295 E. Barbiano di Belgiojoso & L. Ortensi, ‘Satisfied after all? Working trajectories and job satisfaction of foreign-born female 

domestic and care workers in Italy’, Journal of Ethnic and Migration Studies, 24 April 2018, p. 18, available at: 
https://doi.org/10.1080/1369183X.2018.1465401.  

296 M. Bahna & M. Sekulová, ‘Does the Family Suffer?’ in Crossborder Care: Lessons from Central Europe, 2019, Palgrave 

Macmillan, Cham, p. 85, available at: https://doi.org/10.1007/978-3-319-97028-8_4. 

297 Eurofound, ‘Forthcoming European Care Strategy must look towards the future’, Blog, 05 May 2022, available at: 

https://www.eurofound.europa.eu/publications/blog/forthcoming-european-care-strategy-must-look-towards-the-future.  
298 A. Heindlmaier & C. Kobler, ‘Essential, lonely and exploited: why mobile EU workers’ labour rights are not enforced’, 02 

August 2022, p. 12, available at: https://doi.org/10.1080/1369183X.2022.2102971.  

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However, this demand is highly dependent on an individual country’s national care 
strategy. In Germany for example, where live-in care is most common in the EU, there is 
a  system  whereby  those  in  need  of  long-term  care  can  benefit  from  a  care  allowance 
(Pflegegeld) which can also be used to finance private services for support in the home.299 
The choice of caregiver is thus left to the user, facilitating the live-in care model.  

This situation can be contrasted with the one in Denmark, where live-in care is uncommon. 
Given that  undeclared  work  in the  LTC  sector  and  in  domestic  care  was  common  in  the 
1970s,  a  benefits  system  was  set  up,  allowing  individuals  to  choose  between  registered 
providers.300 Moreover, in the early 1980s, the Danish government phased out traditional, 
large nursing institutions in favour of smaller nursing homes and residential care facilities.301 
Now, the waiting time for residential care must not exceed two months, and the introduction 
of a ‘free choice of provider’ rule compels municipalities to ensure a choice of residential 
facilities providing LTC.302  These measures reduce the need for live-in carers. 

5.2.1.5.  Employment models 

Live-in  care  is  organised  under  various  employment  models.  In  some  Member  States, 
including Germany, live-in carers are often employed directly (on an informal basis) by the 
care recipient.303 In other Member States, they are usually self-employed (for example in 
Austria, where 99% of 24-hour caregivers are self-employed).304 Reasons behind the 
dominance of the self-employment model are the lower costs and higher flexibility for the 
recipients  of  care.305  The  result  of  this  is  that  “a  (significant)  part  of  the  'posted’  self-
employed live-in carers may receive remuneration that is (significantly) below the minimum 
wage of the country of employment.”306 

Box  17.  Self-employment  of  temporary  cross-border  live-in  care  workers  in 
Austria 

The legal basis for 24-hour care arrangements (live-in care) was introduced in Austria 
in 2007 through the adoption of the Home Care Act  and the amendment of the Code of 
Trade and Commerce. This allowed people in need of care, or their relatives, to enter 
into a contract with a self-employed caregiver. However, self-employed live-in carers in 
Austria  are  not  subject  to  working  time  regulations,  are  excluded  from  collective 
bargaining arrangements concerning minimum wages, and are entitled neither to paid 
holiday nor full social security benefits.  

Two of the key characteristics applicable for a 24-carer’s work to be deemed as self-
employment are that there are no concrete instructions as to how and in what form the 
contractually agreed services are to be performed, and that the carer has the right to 
have another carer take over his or her work.  However, in the (frequently occurring) 
case that a care recipient becomes more dependent on their live-in carer, caregivers 
who  are  officially  self-employed  may  no  longer  meet  the  aforementioned  criteria.  A 
consequence of this is that the work may be considered as bogus self-employment, with 

299 L. Maihuber & B. Allinger, ‘Transnationale Betreuungs- und Pflegekräfte in europäischen Privathaushalten‘, 2021, p. 36, 

available at: https://wien.arbeiterkammer.at/service/studienundzeitschriften/studien/gesundheitundpflege/Trans 
nationale_Betreuungskraefte_20210420.pdf.  

300 Interview conducted on 24/05/2022 with a long-term care expert at the European level. 
301 Denmark is now the only country in the EU in which the construction of traditional old-age and nursing institutions has 
been legally banned – see WHO, ‘Denmark – Country case study on the integrated delivery of long-term care’, 2019, p. 
32, available at: https://apps.who.int/iris/handle/10665/352847   

302 Ibid. 
303 V. Horn et al., ‘Live-in migrant care worker arrangements in Germany and the Netherlands: motivations and justifications 

in family decision-making’, International Journal of Ageing and Later Life, 2019, 13(2): 83–113, p. 86. 

304 M. Leiblfinger & V. Prieler, ‘Elf Jahre 24-Stunden-Betreuung in Österreich‘, Katholische Privat-Universität Linz, 2018, 
p.13, available at: https://kidoks.bsz-bw.de/frontdoor/deliver/index/docId/1319/file/LiWiRei_9-Leiblfinger-Prieler.pdf.  

305 Ibid. 
306 European Parliament, EMPL Committee, ‘Policies for long-term carers’, November 2021, p.25. 

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the caregiver being technically entitled to the status of being employed (and with it a 
number of financial and social advantages).  

On the one hand, the Home Care Act meant that the long-term care system in Austria 
moved from what was previously a grey economy of care to a system that is legalised.  
This  means  that  the  recruitment  of  live-in  care  workers  is  no  longer  the  domain  of 
informal  social  networks  or  commercial  agencies  operating  at  the  national  and 
transnational level. Now, self-employed live-in carers (‘Selbständige Personenbetreuer’) 
have to register with the WKO Austrian Chamber of Commerce, which has the role of 
statutory  industry  representative.    Thanks  to  the  high  proportion  of  self-employed 
workers, there is also a lower administrative burden for the care receiver.  

On  the  other  hand,  rather  than  significantly  affecting  (or  improving)  the  working 
conditions  of  temporary  cross-border  live-in  care  workers  in  Austria,  the  2007  Home 
Care Act rather legalised existing conditions, which are frequently characterised by high 
degrees of precarity.  Furthermore, given that the overwhelming majority of live-in care 
workers are self-employed, there is thus no statutory control over the working conditions 
of these individuals. 

Another option is for live-in carers to be employed by specialised agencies or private 
employment agencies, established in either the Member State of residence of the care 
recipient or in another Member State (this is discussed in more detail in section 5.2.2 below). 
Consequently, some live-in carers have an employment contract in the Member State where 
they provide live-in care, while others have an employment contract in their Member State 
of  origin  and temporarily  provide  live-in  care through  the  free  movement of  services  (i.e. 
posted LTC workers). 

The  degree  of  regulation  in  the  sector  varies  considerably,  with  France,  the 
Netherlands and Sweden having regulated regimes and Austria, Germany and Italy being 
much  less  regulated.  For  example,  in  Germany,  although  there  is  a  legal  basis  for 
sanctioning employers (the 2004 Law Against Illegal and Irregular Employment),307 very 
few  inspections  are  made  in  the  private  household  sphere.  Instead,  “workplace 
inspections as a measure to detect irregular employment are largely limited to the country’s 
construction  and  catering 
irregular 
employment.”308 This is the case in other Member States too, given the difficulties labour 
inspectorates  face  in  entering  private  households  without  a  warrant,  and  the  resource 
intensive nature of such visits when they are allowed.309 

two  other  sectors  well  known 

industry, 

for 

Meanwhile in Italy, where it is estimated that some 75% of live-in care work is done by non-
national women (many of them coming from Eastern Europe),310 the sector is “plagued by 
many  irregularities,  such  as  inadequate  recognition  of  social  and  labour  rights  of  carers, 
undeclared  work  and  insufficient  public  spending  on  care”.311  Although  a  collective 
bargaining  framework  covering  homecare  was  negotiated  in  2013,  the  agreement 
exempts  workers  from  certain  protections  including  sick  leave  and  pay  for  additional 
hours worked, as well as limiting maternity leave to 3 months instead of the standard six.312 
In addition, given that wages stipulated by the bargaining framework are too high for many 

307 Gesetz zur Bekämpfung der Schwarzarbeit und illegalen Beschäftigung (Schwarzarbeitsbekämpfungsgesetz - 

SchwarzArbG) vom 23. Juli 2004, available at: https://www.gesetze-im-
internet.de/schwarzarbg_2004/BJNR184210004.html.  

308 V. Horn et al., ‘Live-in migrant care worker arrangements in Germany and the Netherlands: motivations and justifications 

in family decision-making’, International Journal of Ageing and Later Life, 2019, 13(2): 83–113, p. 86. 

309 EESC, ‘The future of live-in care work in Europe, Report on the EESC country visits to the United Kingdom, Germany, 

Italy and Poland following up on the EESC opinion on “The rights of live-in care workers”’, p. 62. 

310 Ibid. 
311 EESC, Press Release, ‘If we wish to meet our growing demands for live-in care, we must recognise the rights of care 

workers’, 17 May 2018. 

312 EESC, ‘The future of live-in care work in Europe, Report on the EESC country visits to the United Kingdom, Germany, 

Italy and Poland following up on the EESC opinion on “The rights of live-in care workers”’, p. 8. 

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care receivers to afford, a large amount of live-in care work falls outside the framework 
and  is  unregulated  in  the  informal  economy.313  Indeed,  a  European  Economic  and 
Social Committee (EESC) conference in Rome in 2018 saw speakers agree that more than 
half of the country’s live-in care workforce were not legally employed.314  

When considering different employment models, it is also relevant to look at the legislative 
entitlements of this category of workers. Sadly, many live-in carers face exclusions from 
social  security  protections,  including  sick  leave,  payment  for  extra  hours  worked,  and 
maternity leave.315 These exclusions are frequently justified on the basis of the ‘specificity 
of  care  work’,  for  example  the  fact  that  the  work  takes  place  in  a  private  household. 
However, this exclusion has recently been challenged by the European Court of Justice 
in Case C-389/20, who considered that the ‘special characteristics’ of live-in care work are 
not  enough  to  justify  the  full  exclusion  of  this  category  of  workers  from  social  security 
benefits,  deeming  it  indirectly  discriminatory  on  the  ground  of  sex.316  This  situation  is 
examined in greater detail in section 6.8 in the case study related to the live-in care sector. 

5.2.2.  The role of intermediaries in the live-in care sector 

Although a lot of the work in the LTC and live-in care sectors takes place on an informal 
basis,  there  is  a  parallel,  formal  market  for  these  workers,  with  placement  agencies 
operating as the main actors.317 In Germany, for example, in 2017 there were more than 
250 live-in migrant care placement agencies active in the country, primarily operating at 
the local or regional level.318 The number of these agencies has increased significantly in 
Germany since the EU’s 2004 enlargement wave.319 They frequently work with providers or 
temporary  work  agencies  in  Poland,  but  also  other  –  predominantly  Eastern  European  – 
countries, including Croatia, Hungary and Slovakia.  

Germany  is  certainly  the  Member  State  where  there  are  the  highest  numbers  of  live-in 
migrant care placement agencies active on the market. In the Netherlands, although there 
are  far  fewer  live-in  migrant  carers,  most  care  recipients  hire  their  care  workers  through 
placement  agencies.  As  of  2019,  there  were  around  20  such  agencies  active  in  the 
Netherlands, the majority of which were founded after 2010. 

As discussed in the case study on the live-in care sector (see section 6.8), Austria also 
provides an interesting example of the operation of intermediary agencies. As previously 
mentioned, 99% of 24-hour caregivers in Austria are self-employed. Given this fact, these 
individuals should be able to agree on their working hours and renumeration directly with 
the care recipient. However, the reality in practice is that intermediary agencies determine 
most  aspects  of  the  employment  relationship.320  These  agencies  often  charge 
registration and service fees of up to €800, which may be taken in advance or deducted 
from a care worker’s salary in monthly instalments. The working time is generally oriented 
towards the needs of the care recipient, frequently resulting in 24 hour on-call duty.321 The 

313 Ibid. 
314 EESC, Press Release, ‘If we wish to meet our growing demands for live-in care, we must recognise the rights of care 

workers’, 17 May 2018. 

315 EESC, ‘The future of live-in care work in Europe, Report on the EESC country visits to the United Kingdom, Germany, 

Italy and Poland following up on the EESC opinion on “The rights of live-in care workers”’, p. 8. 

316 C-389/20, CJ v Tesorería General de la Seguridad Social (TGSS), available at: https://eur-lex.europa.eu/legal-

content/en/TXT/?uri=CELEX:62020CJ0389. 

317 V. Horn et al., ‘Live-in migrant care worker arrangements in Germany and the Netherlands: motivations and justifications 

in family decision-making’, International Journal of Ageing and Later Life, 2019, 13(2): 83–113, p. 87. 

318 Stiftung Warentest, ‘Trautes Heim, da will ich sein‘, Stiftung Warentest 5/17, 2017, pp. 86–95. 
319 L. Maihuber & B. Allinger, ‘Transnationale Betreuungs- und Pflegekräfte in euorpäischen Privathaushalten‘, 2021, p. 39, 

available at: https://wien.arbeiterkammer.at/service/studienundzeitschriften/studien/gesundheitundpflege/Trans 
nationale_Betreuungskraefte_20210420.pdf.  

320 Ibid, p. 29. 
321 A. Heindlmaier and C. Kobler, ‘Essential, lonely and exploited: why mobile EU workers’ labour rights are not enforced’, p. 

11.  

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result of this is that there is a great deal of bogus self-employment within the live-in care 
sector in Austria.   

Box 18: The role of temporary work agencies in the case of live-in care workers 
posted to Germany  

Figure 9. Typical posted worker relationships for Polish care workers employed 
via agencies 

Source: Authors’ own, based on EESC, ‘The future of live-in care work in Europe’, 2020, p. 7. 

In this model, the live-in carer is rarely formally employed directly by the care recipient, 
but  rather  intermediaries  (in  this  case  Polish  placement  agencies  and  German  care 
service providers) act as employers for live-in care workers and service providers for 
care  recipients.322  One  of  the  issues  with  this  structure  is  that  there  is  a  lack  of 
accountability for both the care delivery, and the working conditions of the live-
in carer.323 These issues relate to work beyond legal working time (e.g. an excessive 
number of consecutive days, insufficient break or rest periods, statutory minimum wage 
not  being met,  etc.).  However,  the  Polish  Labour Inspectorate  reported  in  June  2018 
that 90% of cases in which they provide phone counselling services to temporary Polish 
workers in Germany are related to lack of payment for hours worked.324   

Indeed, in June 2021, Germany’s Federal Labour Court ruled that foreign caregivers 
posted  to  Germany to work in  a  private  household  are  entitled  to  the  statutory 
minimum wage for the hours they have worked, including on-call duties.325 The case 
concerned a Bulgarian national, residing in Bulgaria, who was posted to Berlin to provide 
live-in  care.  Despite  her  employment  contract  (issued  by  a  company  in  Bulgaria) 
stipulating a working time of 30 hours per week, the applicant claimed to have worked 
24  hours  a  day  to  provide  care  or  be  on  call.  The  Labour  Court  upheld  the  claim, 
estimating a working time of 21 hours per day. This represents an important ruling for 
live-in carers in recognising their on-call duties. 

322 EESC, ‘The future of live-in care work in Europe, Report on the EESC country visits to the United Kingdom, Germany, 

Italy and Poland following up on the EESC opinion on “The rights of live-in care workers”’, 2020, p. 6, available at: https: 
//www.eesc.europa.eu/sites/default/files/files/report_on_the_eesc_country_visits_to_uk_germany_italy_poland_0.pdf. 

323 Ibid, p. 8.  
324 Ibid, p. 21. 
325 Bundesarbeitsgericht, Urteil vom 24. Juni 2021 – 5 AZR 505/20, available at: 

https://www.bundesarbeitsgericht.de/entscheidung/5-azr-505-20/.  

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Platform work (paid labour that is provided through, on, or mediated by online platforms) 
is also emerging in the long-term and live-in care sectors. This entails the creation of 
online  marketplaces  which  match  those  individuals  or  organisations  with  care  needs 
('clients')  to  individuals  or  organisations  providing  care  services  ('platform  workers')  in 
clients' homes in exchange for payment.326 

An example of such a platform is Curafides,327 a start-up that originated in Austria in 2016 
and  has  since  expanded  to  Germany,  the  Czech  Republic  and  Switzerland.  A  particular 
focus lies in attracting carers from Eastern and Central European countries to the Austrian 
market  to  work  as  24-hour  caregivers.328  In  addition  to  providing  a  matching  service 
between care recipients and caregivers, the platform also provides the possibility for care 
agencies to present themselves. 

Although platform work offers a number of possibilities in the sector, one of these being 
that platform workers on care platforms can often set their own pay, there are a number 
of challenges associated with the phenomenon. One such issue is the heightened risk of 
undeclared work, with scarce data currently existing as to the scale of undeclared work in 
the long-term and live-in care sectors.329  

In  this  regard,  UNI  Europa  has  reported  that  in  the  care  sector,  the  visible  extent  of 
undeclared  work  mediated  through  fraudulent  labour  market  intermediaries  at  the 
national  and  cross-border  levels  is  only  the  ‘tip  of  the  iceberg’.330  In  addition  to  the 
challenge  of  assessing  the  extent  of  the  issue,  it  is  difficult  to  reach  vulnerable  mobile 
workers in this sector, as many of them are unregistered and, due to the nature of the work, 
are isolated in people’s homes, as well as reluctant to come forward with grievances about 
their working conditions due to various factors (including limited language knowledge, lack 
of knowledge of applicable legislation and redress mechanisms, and dependency on the 
income provided by the care services they offer). 

5.2.3.  TCNs as live-in carers 

As  mentioned  in  section  5.2.1.3  ,  Poland  is  the  main  sending  Member  State  of  posted 
workers in the long-term and live-in care sectors. Of the 74 876 PDs A1 Poland issued in 
2020 under Articles 12 and 13 of the Basic Regulation in the ‘human health and social work’ 
sector, 97.3% of these were issued to EU nationals, including Polish citizens.331 332 Of 
the  2 025  PDs A1 issued  to TCNs,  90.6%  of  these  (1 836) were issued  to  Ukrainian 
nationals. The share of PDs A1 issued to TCNs has been increasing in recent years,333 
and is expected to continue to do so. 

However, the numbers above only indicate the share of TCN’s posted legally. As previously 
discussed,  a  significant  proportion  of  live-in  care  work  is  undeclared,  and  this  is 
particularly true for TCNs, who may find themselves working informally without a contract 
and  suffering  from  a  lack  of  regular  migration  options.334  In  the  specific  case  of  TCNs 
temporarily  rendering  services  in  Germany  (for  example  those  who  are  posted),  a 

326 European Parliament, EMPL Committee, ‘Policies for long-term carers’, November 2021, p. 27. 
327 See: https://curafides-pflege.business.site/.   
328 EESC, ‘Towards the “Uber-isation” of Care? - Platform work in the sector of long-term home care and its implications for 
workers’ rights’, 2020, p. 12, available at: https://www.eesc.europa.eu/sites/default/files/files/qe-02-20-092-en-n.pdf.  

329 European Parliament, EMPL Committee, ‘Policies for long-term carers’, November 2021, p. 31. 
330  European  Platform  tackling  undeclared  work,  ‘Tools  and  approaches  to  tackle  fraudulent  temporary  agency  work, 
prompting undeclared work’, Learning resource paper from the thematic review workshop on fraudulent temporary agency 
work prompting undeclared work, 12-13 November 2020, p. 5. 

331 POSTING.STAT conference, Leuven, 20 May 2022. 
332 It should be noted that the majority of PDs A1 were issued under Article 13 of Regulation 883/2004 as opposed to Article 

12. 

333 POSTING.STAT conference, Leuven, 20 May 2022. 
334 EESC, ‘The future of live-in care work in Europe, Report on the EESC country visits to the United Kingdom, Germany, 

Italy and Poland following up on the EESC opinion on “The rights of live-in care workers”’, 2020, p. 9, available at: https: 
//www.eesc.europa.eu/sites/default/files/files/report_on_the_eesc_country_visits_to_uk_germany_italy_poland_0.pdf.  
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“Vander  Elst  visa”  is  required.335  When  granted,  the  visa  is  only  valid  for  rendering  the 
service  specified  in  the  application.  This  application  must  include  the  service  contract 
between the employer posting the individual and the third party in Germany, as well as the 
planned start and end date of the deployment to Germany, the place of deployment, a short 
description of the services to be rendered, and proof of health insurance valid in both the 
sending country and Germany for the whole period of the stay. 

This issue was the subject of a case before the European Court of Justice in 2006,336 where 
the Commission sought a declaration from the Court that by subjecting TCN workers 
posted by service providers in other EU Member States to the requirement to obtain 
a work visa, Germany had infringed Article 49 of the EC Treaty relating to the freedom 
to provide services. One of the requirements for the issuance of the visa was that the TCN 
worker must have been employed by the service provider for a minimum of one year prior 
to  the  posting.  This  latter  point  was  deemed  by the  Court  to  be  a  clear  restriction  of the 
freedom to provide services, and the Court held that Germany had indeed failed to comply 
with its obligations under Article 49. 

The  law  as  it  now  stands  in  Germany  is  that  TCN  employees  can  be  posted  from  other 
Member States to Germany without the need for an additional visa if the TCN holds long-
term residence in another Member State, and if the temporary activity in Germany does not 
last longer than 3 months within a period of 12 months. If this is not the case, however, a 
Vander  Elst  visa  is  required;  a  clear  additional  administrative  burden  for  TCNs  and  their 
employers. 

Equally, given that temporary cross-border TCNs in the LTC and live-in care sectors are 
more  likely  to  experience  precarious  working  conditions,  are  more  vulnerable  to 
undeclared  work,  and  tend  to  be  more  excluded  from  social  protection  and  welfare 
assistance  than  EU  workers,337  it  is  important  to  consider  the  intersecting  inequalities 
between employment in the live-in care sector as a temporary cross-border worker, TCN 
status, and also gender. A 2020 study has shown a high incidence of workplace stress 
among live-in migrant carers in German households, based around the need for constant 
availability, issues with insomnia, communication difficulties and interpersonal conflicts. 338 
Failing to fully acknowledge the mental health risks of working in the sector predominantly 
affects women, there being vast greater numbers of female workers employed in the LTC 
and live-in care sectors than males.339 

5.2.4.  How temporary cross-border mobility functions in the 

live-in and long-term care sector 

Although live-in care work is “only” a prevalent phenomenon in seven EU Member States 
based  on  available  data,  it  is  an  important  sector  to  consider  in  the  context  of 
temporary cross-border mobility due to the specificities of the sector, which make it 
somewhat hidden. Although we have an idea of scale in countries such as Germany and 
Austria, the amount of unregulated and undeclared live-in care work, together with the home 

335 Deutsche Vertretungen in Polen, ‘Visa for third-country nationals for temporarily rendering services in Germany (“Vander 

Elst“-Visa)‘, January 2021, available at: 
https://polen.diplo.de/blob/488744/3badc8ebe31039cb43f2a9d0ebd27788/vanderelst-eng-data.pdf.  

336 Commission of the European Communities v. Federal Republic of Germany, Case C-244/04, Judgment of the Court 

(First Chamber) of 19 January 2006, available at: https://eur-lex.europa.eu/legal-
content/en/TXT/?uri=CELEX:62004CJ0244.  

337 ELA, ‘Different forms of cross-border undeclared work, including through third-country nationals’, September 2021, p. 2, 
available at: https://www.ela.europa.eu/sites/default/files/2022-01/Study-report-on-different-forms-of-cross-border-UDW. 
2021_EN.pdf?utm_source=icf&utm_medium=email&keywords=&utm_content=Undeclared%20work%20-%20Plat 
form%20Newsletter%20-%20May%202022&utm_campaign=European%20Platform%20tackling%20undeclared%20work.  
338 B. Schilgen et al, ‘Arbeitsplatzbezogene Belastungen und Ressourcen von ausländischen 24-Stunden-Betreuungskräften 

in deutschen Privathaushalten – eine qualitative Studie‘, February 2020, available at: 
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7906836/.  

339 Eurofound, ‘Long-term care workforce: employment and working conditions’, 2020, p. 60. 

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environment  being  difficult  to  regulate,  render  monitoring  and  enforcement  extremely 
challenging  across  the  Member  States.  This  is  particularly  the  case  where  the 
household/care recipient is the employer, the work of temporary cross-border workers being 
frequently undeclared and outside the remit of inspectorates. 

One of the measures to counter the degree of undeclared work is the Austrian solution of 
regularisation.  By  having  to  register  with  the  WKO  Austrian  Chamber  of  Commerce,  a 
relatively clear picture can be made of the situation involving self-employed live-in carers. 
That said, there is no evidence that regularisation has led to an improvement in the working 
conditions of temporary cross-border workers in the sector, which are frequently precarious 
in nature; rather, it has legitimised existing conditions. Although the Austrian model may be 
an attractive solution in some ways, there is a more structural issue in that such a precarious 
form of temporary cross-border work is so common in certain EU Member States (Austria, 
Cyprus,  Germany,  Greece,  Italy,  Malta  and  Spain).  Despite  Germany  having  one  of  the 
highest per capita health expenditures in the world,340 it has more live-in carers than any 
other EU Member State. Given that so much public money is put into the sector, access to 
home and community care in EU Member States must be improved. This is in line with 
EU action in the field, with one of the key focuses of the 2022 European Care Strategy being 
the  provision  of  quality,  affordable  and  accessible  care  services  across  the  European 
Union.341 

Moreover, the risk of not prioritising reform in this sector is that live-in care could become 
problematic in other Member States too, with more households employing temporary cross-
border  live-in  carers  if  they  can  afford  to  do  so.  Russia’s  invasion  of  Ukraine  and  the 
ongoing  war,  which  has  led  to  millions  of  Ukrainian  refugees  having  crossed  borders, 
increases the urgency of this concern. A significant number of Ukrainians are already 
providing domestic and live-in care services,342 in particular being posted from Poland, with 
many more refugees likely to end up working in this precarious sector. 

Finally, it is important that live-in care workers become more ‘visible’, in order to reduce 
the phenomenon of abuses going unnoticed. Given that enforcement authorities such as 
labour  inspectorates  have  very  little  remit  when  it  comes  to  the  private  household,  it  is 
perhaps  advantageous  for  the  role  of  trusted  intermediaries  in  the  sector  to  be 
strengthened.  The  first  step  in  this  process  is  that  agencies  that  provide  live-in  care 
workers must meet certain quality standards.343 In this regard, social security, health and 
safety  at  work  and  decent  working  conditions  must  be  guaranteed.  These  agencies 
(perhaps  in  addition  to  providers  of  ambulatory  care,  as  well  as  organisations  such  as 
Caritas, who are involved in the placement and support of live-in carers) could then conduct 
checks  on  a  voluntary  basis  to  ensure  that  their  workers  are  sufficiently  protected.  This 
would come with certain financial implications, both in terms of the checks themselves and 
investment in training individuals to look out for certain signs / indications that abuses of 
working  conditions  are  occurring.  It  would  also  require  the  creation  of  a  contact  point  to 
provide live-in carers with a recourse, outside of the household in which they work. Despite 
the costs involved, this measure would help to ensure high-quality care standards and the 
protection of social security, health and safety at work for live-in carers.  

340 See: https://www.statista.com/statistics/236541/per-capita-health-expenditure-by-country/.  
341 European Commission, ‘A European Care Strategy for caregivers and care receivers’, available at: 

https://ec.europa.eu/social/main.jsp?langId=en&catId=89&furtherNews=yes&newsId=10382.  

342 Eurofound, ‘Forthcoming European Care Strategy must look towards the future’, Blog, 05 May 2022, available at: 

https://www.eurofound.europa.eu/publications/blog/forthcoming-european-care-strategy-must-look-towards-the-future. 

343 See: https://www.caritas.eu/live-in-care-workers-need-to-be-better-protected-and-accompanied/.  

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5.3.  Meat processing 

Summary of key findings 

•  The meat processing sector is characterised by a few very large meat companies 
and a high number of small and micro enterprises. The European meat market 
is considered to be largely saturated and business growth is often only possible 
by squeezing out the competition. As a consequence, there is a general trend 
towards fewer and larger companies. Meat processing is a competitive and price 
driven  sector.  Attempts to  cut  labour  costs  exist  in many  Member  States.  Low 
pay coupled with other poor working conditions make work unattractive for many 
workers. In many countries, the sector is therefore shifting to workers who have 
fewer opportunities to find work elsewhere. 

•  External flexibilisation plays a major role in the meat processing sector in many 
Member States, but the forms of employment are diverse: subcontracting (with 
or  without  posting),  temporary  agency  work  (with  or  without  posting)  or  self-
employment are being used in specific Member States. In addition, the workforce 
in the sector consists of cross-border mobile workers including TCNs, as well as 
workers with a migrant background who are already in the country. 

•  Statistical and other quantitative data on the extent of subcontracting in the sector 
or on posting can be seldom found. Based on available data, in Austria, Belgium, 
France,  Italy,  Ireland,  and  Spain,  the  meat  sector  utilizes  subcontracting 
practices to a substantial degree. Posting occurs in Austria, Belgium and France 
while  the  subcontractors  in  the  other  countries  seem  to  be  local  companies. 
Temporary work agencies play a role in Belgium, Ireland and the Netherlands. In 
Belgium temporary agency work involves posted workers while in Ireland or the 
Netherlands,  local  agencies  are  contracted.  The  industry’s  workforce  in  high-
income  countries  partially  consists  of  cross-border  or  migrant  workers  from 
Central and Eastern EU Member States and third countries. 

•  Whether  employed  through  subcontracting  practices,  as  temporary  agency 
workers, posted workers or (bogus) self-employed, the working, employment and 
housing  conditions  of  meat  workers  are  problematic.  Low  wages,  undefined 
working hours and zero-hours contracts, no overtime or statutory sick pay, poor 
accommodation  (for  which  workers  usually  pay  excessive  rents),  falsified 
timesheets and second-class health and safety conditions are common.  

•  The  German  meat  industry  was  characterised  by  particularly  difficult  working 
conditions. After numerous attempts to regulate the situation and as a response 
to  those  specific  circumstances,  it  was  possible  to  improve  the  situation  by 
banning subcontracting and temporary agency work in the sector altogether. 

5.3.1.  Overview of the sectoral context: the competitive and 
cost-driven environment in meat processing 

The meat processing sector is characterised by a few very large meat companies and a 
high number of small and micro enterprises. The ten largest companies dominate almost 
all markets around the world and have a presence in all the main meat-producing regions. 

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While major market players come from Brazil, the USA, China, and Japan, European firms 
also have revenues in the billions.344 

According to Eurostat, the meat industry (processing and preserving of meat and production 
of  meat  products)  in  the  EU  27  is  made  up  of  33 885  companies  (2019,  EU-27).345  The 
highest  number  of  companies  exist  in  Germany  (9 452),  followed  by  France (4 519), 
Spain (3 450) and Poland (3 134).  Most other European countries have significantly fewer 
than a thousand companies in the sector. Many companies are small and medium-sized 
businesses. The share of companies with 0 to 9 employees is 67%. While companies with 
250 persons employed or more account for only 1.5% of all companies. In 2019 the number 
of employees in the sector reached almost one million workers (945 825, EU 27). In 
2020  the  highest  number  of  employees  were  to be  found  in Germany  (219 418),  France 
(126 222,  data  for  2019),  Spain  (115 042),  and Poland  (111 781). In  the  other  European 
countries, the number of employees is much lower. Germany ranks first in Europe for pork 
production (ahead of Spain), France for beef (ahead of Germany) and Poland for poultry 
(ahead of France).346 

Globally,  per  capita  meat  consumption  is  increasing.  However,  it  is  decreasing  in  some 
European  countries  such  as  Belgium,  Germany,  Greece,  and  the  Netherlands.347  The 
reasons for this are the increasing proportion of consumers who are critically questioning 
meat consumption (whether it be due to animal welfare considerations, ecological footprint 
concerns or disapproval of poor working conditions in the sector) and increasingly turning 
to alternatives in the form of plant-based products. In 2020, meat consumption in Europe 
also dropped significantly due to the loss of sales in the food service sector (especially in 
restaurants) because of the lockdowns348.     

The European meat market is considered to be largely saturated and business growth 
is  often  only  possible  by  squeezing  out  the  competition.  Important  markets  with 
increasing  export  opportunities  for  European  companies  are  China,  Japan,  Mexico  and 
countries in southern Africa.  

In addition to pressure from global competition, the pressure from retailers in the food value 
chain as the main sales channel leads to high price and cost pressure for meat companies. 
As  a  consequence,  there  is  a  general  trend  towards  fewer  and  larger  companies. 
However,  in  most  countries,  a  parallel  but  much  smaller  trend  of  small-scale  production 
focusing on quality, eco-friendly production and animal welfare is also visible.349  

5.3.2.  Poor working conditions as a result of cost-cutting 

Competition based on costs and price led to the adoption of a low-cost business model 
in the past, which had an impact on working conditions, especially labour costs. Meat 
processing  plants  are  usually  labour-intensive.  Many  jobs  involve  highly  repetitive  and 
monotonous tasks, but also ones which are dangerous and carry a high risk of injury. In 
addition, the work environment is cold and noisy. At least for the lower-paid positions, no 
lengthy  training  is  required.  Working  arrangements  can  be  extremely  flexible,  as  meat 
companies face just-in-time demands from large retailers. Wages are often lower than in 

344 S. Sharma, ‘Meat Atlas 2021: Facts and figures about the animals we eat’, Heinrich-Böll-Stiftung, Friends of the Earth 

Europe and BUND, 2021, available at: https://eu.boell.org/en/MeatAtlas. 

345 Eurostat, ‘Annual enterprise statistics by size class for special aggregates of activities’, 2022, available at: 

https://appsso.eurostat.ec.europa.eu/nui/submitViewTableAction.do. 

346 S. Stracke, ‘Branchenmonitor Schlachten- und Fleischverarbeitung’, Hans-Böckler-Stiftung, 2021, available at: 

https://docplayer.org/105928031-Branchenmonitor-schlachten-und-fleischverarbeitung.html. 

347 Statista, ‚Entwicklung des jährlichen Fleischkonsums in Europa in den Jahren 2010 bis 2020 (in Kilogramm pro Kopf)‘, 

2022, available at:  https://de.statista.com/statistik/daten/studie/768884/umfrage/entwicklung-des-jaehrlichen-
fleischkonsums-pro-kopf-in-europa/. 

348 S. Stracke,‘Branchenmonitor Schlachten- und Fleischverarbeitung’, Hans-Böckler-Stiftung, 2021, available at: 

https://docplayer.org/105928031-Branchenmonitor-schlachten-und-fleischverarbeitung.html. 

349 Eurofound, ‘The Future of manufacturing - Meat processing workers: Occupational report’, Dublin, 2018, available at: 

https://euagenda.eu/upload/publications/untitled-178347-ea.pdf. 

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other sectors of the economy. In addition, there were mass infections in meat processing 
factories during the COVID 19 pandemic (see the box below). 

Box 19: Mass infections in meat process factories during the COVID pandemic 

Workers in the meat industry were particularly affected by COVID 19 in many European 
countries, but also in Australia, Brazil and the USA. The reasons for the mass infections 
at meat processing sites are seen in the working conditions, including a lack of social 
distancing, as workers often work in close proximity to one another on the processing 
chain,  with  companies  not  having  increased  the  distance  between  workplaces.  In 
addition, foreign workers often live together because housing is directly linked to their 
work  contract  and  their  wages  are  too  low  to  find  accommodation  elsewhere.  It  was 
reported that some companies also lacked the necessary data to be able to trace the 
outbreak.  Other  health  and  safety  measures  adopted  to  protect  workers  during  this 
emergency  period  were  not  implemented,  for  example  protective  equipment  was  not 
provided. On the production sites, insufficient ventilation contributed to the spread of the 
virus. Moreover, certain parts of meat processing plants are inevitably very cold and the 
virus transmits more easily in colder temperatures. Workers showed up for work despite 
being sick with COVID for fear of losing their job. 

Source: EFFAT, 2020350; McSweeney, E./ Young, H., (2021)351 

Low  pay  coupled  with  other  poor  working  conditions  make  work  unattractive  for  many 
workers. Not surprisingly, turnover rates are high and there is a labour shortage resulting 
from less-attractive working conditions in many European countries.352,353,354 The sector 
is therefore shifting to workers who have fewer opportunities to find work elsewhere. These 
include  EU  migrant  workers  and  TCNs.  These  workers  often  have  difficulties  to  get  a 
foothold in the primary labour market in the host country and therefore must resort to other 
forms of employment. They remain in such jobs due to worse working conditions in their 
country of origin or very high unemployment.355356 Precarious conditions of workers in the 
meat processing sector are especially visible in higher-income Member States. 

5.3.3.  The forms of employment for cross-border or migrant 

workers 

External flexibilisation plays a major role in the meat processing sector in many Member 
States, but the forms of employment are diverse: subcontracting (with or without posting), 
temporary  agency  work  (with  or  without  posting)  or  self-employment  are  being  used  in 

350 EFFAT, ‘Covid-19 outbreaks in slaughterhouses and meat processing plants: State of affairs and proposals for policy 
action at EU level.’, EFFAT report, 30 June 2020, available at: https://effat.org/wp-content/uploads/2020/09/Covid-19-
outbreaks-in-slaughterhouses-and-meat-processing-plants-State-of-affairs-and-demands-for-action-at-EU-level-
7.09.2020.pdf. 

351 E. McSweeney and H. Young, ‘The whole system is rotten’: life inside Europe’s meat industry’, in: The Guardian, 

28.09.2021, available at: https://www.theguardian.com/environment/2021/sep/28/the-whole-system-is-rotten-life-inside-
europes-meat-industry.   

352 EFFAT, ‘Covid-19 outbreaks in slaughterhouses and meat processing plants: State of affairs and proposals for policy 
action at EU level.’, EFFAT report, 30 June 2020, available at: https://effat.org/wp-content/uploads/2020/09/Covid-19-
outbreaks-in-slaughterhouses-and-meat-processing-plants-State-of-affairs-and-demands-for-action-at-EU-level-
7.09.2020.pdf. 

353 EFFAT, ‘Hungry for fairness: raising standards in the meat sector: EFFAT’s 10 demands for action at EU level, adopted 
by the Executive Committee on 10 September 2020’, Brussels, European Federation of Food, Agriculture and Tourism 
Trade Unions, 2020, available at: https://effat.org/wp-content/uploads/2020/09/Hungry-for-fairness-raising-standards-in-
the-meat-sector-10-demands-EN.pdf.  

354 Eurofound, ‘Future of manufacturing: Meat processing workers occupational report’, Dublin, 2018, available at: 

https://euagenda.eu/upload/publications/untitled-178347-ea.pdf. 

355 A. Voivozeanu, ‘Precarious posted migration: the case of Romanian construction and meat-industry workers in 

Germany’, in: Central and Eastern European Migration Review, 8(2), 2019, pp. 85-99. 

356 E. McSweeney and H. Young, ‘The whole system is rotten’: life inside Europe’s meat industry’, in: The Guardian, 

28.09.2021, available at: https://www.theguardian.com/environment/2021/sep/28/the-whole-system-is-rotten-life-inside-
europes-meat-industry. 

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specific  Member  States.  In  addition,  the  workforce  in  the  sector  consists  of  cross-border 
mobile  workers,  as  well  as  workers  with  a  migrant  background  who  are  already  in  the 
country. The subcontracts are usually onsite work contracts, which differ from conventional 
subcontracting in that they are carried out on the client's premises and in core value adding 
processes. In meat processing, cases of subcontracting chains with several tiers or chain 
posting were not mentioned in the interviews, country case studies or the analysed literature 
(except for Italy).  

The available statistical data on the number of posted workers or the share of cross-border 
workers in other forms of employment does not include a sectoral breakdown with enough 
detail  to  provide  numbers  for  these  types  of  workers  specifically  in  the  meat  processing 
industry  in  EU  Member  States.  Statistical  and  other  quantitative  data  on  the  extent  of 
subcontracting  in  the  sector  or  on  posting  were  also  seldom  found  at  the  country  level. 
Based  on  the  results  of  the  literature  available,  interviews  and  country  case  studies 
conducted  in the  framework  of this  project,  it  can  be  concluded  that  in Austria,  Belgium, 
France, Italy, Ireland, and Spain, the meat sector utilises subcontracting practices to a 
substantial degree.  

Posting occurs in Austria,357 Belgium358 and France,359 while the subcontractors in the other 
countries seem to be local companies. Temporary work agencies play a role in Belgium,360 
Ireland and the Netherlands.361 In Belgium temporary agency work involves posted workers 
while in Ireland or the Netherlands, local agencies are contracted. Some 80 per cent of the 
workers  –  mostly  from  Central  and  Eastern  Europe  –  in  the  Dutch  meat  industry  are 
employed via temporary work agencies.362 Self-employment with regard to posting plays a 
role in Belgium.363 The data on the reported incoming posted workers in Belgium is collected 
via the LIMOSA (Cross-Country Information System for Migration Research at the Social 
Administration)  data  base.  The  data  shows  that  in  the  meat  processing  sector,  posted 
workers employed in Belgium are mainly Polish (34%), Brazilian (20%), Romanian (19%), 
Portuguese  (7%),  and  French  (4%).364  Interestingly,  a  case  study  on  a  Belgian  meat 
processing  company  that  relies  on  posted  workers  showed  that  posting  affects  the 
company’s  ability  to  manage  personnel.  365  The  case  study  came  to  the  conclusion  that 
there was a high level of turnover among Eastern European posted workers employed by 
foreign subcontractors, making it necessary to constantly train new workers. In addition, the 
workers failed to meet quality standards in the production process.  

Some information is available for Germany before subcontracting was prohibited: In 2012, 
approximately  38%  of  the  workers  known  to  be  working  in  meat  processing  in  Germany 

357 Result of the country case study.  
358 EFFAT, ‘Covid-19 outbreaks in slaughterhouses and meat processing plants: State of affairs and proposals for policy 
action at EU level.’, EFFAT report, 30 June 2020, available at: https://effat.org/wp-content/uploads/2020/09/Covid-19-
outbreaks-in-slaughterhouses-and-meat-processing-plants-State-of-affairs-and-demands-for-action-at-EU-level-
7.09.2020.pdf. 

359 Ibid. 
360 Result of the country case studies. 
361 EFFAT, ‘Covid-19 outbreaks in slaughterhouses and meat processing plants: State of affairs and proposals for policy 
action at EU level.’, EFFAT report, 30 June 2020, available at: https://effat.org/wp-content/uploads/2020/09/Covid-19-
outbreaks-in-slaughterhouses-and-meat-processing-plants-State-of-affairs-and-demands-for-action-at-EU-level-
7.09.2020.pdf. 

362 Ibid. 
363 F. De Wispelaere, L. De Smedt, M. Munoz, D. Gillis and J. Pacole, ‘Posted Workers from and to Belgium: facts and 
figures,’ POSTING.STAT: Enhancing the collection and analysis of national data on intra-EU posting, 2022, p. 33, 
available at: 
https://hiva.kuleuven.be/en/news/docs/ZKD9978_POSTING_STAT_Belgium_Posted_workers_from_and_to_Belgium_fac
ts_and_figures. 

364 F. De Wispelaere, L. De Smedt, M. Munoz, D. Gillis and J. Pacole, ‘Posted Workers from and to Belgium: facts and 
figures,’ POSTING.STAT: Enhancing the collection and analysis of national data on intra-EU posting, 2022, p. 33, 
available at: 
https://hiva.kuleuven.be/en/news/docs/ZKD9978_POSTING_STAT_Belgium_Posted_workers_from_and_to_Belgium_fac
ts_and_figures.  

365 A. Theunissen, P. Zanoni, and K. Van Laer, ‘Fragmented Capital and (the Loss of) Control over Posted Workers: A Case 

Study in the Belgian Meat Industry’; in: Work, Employment and Society, 2022, available at: 
htps://journals.sagepub.com/doi/pdf/10.1177/09500170211059733. 

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were posted workers.366 By 2013, approximately 70% of the workforce in the four largest 
meat  companies  were  posted  workers.367    The  meat  sector  was  the  biggest  receiver  of 
posted workers after construction. After the Law for the Protection of Workers' Rights in the 
Meat  Industry  (Gesetz  zur  Sicherung  von  Arbeitnehmerrechten  in  der  Fleischwirtschaft, 
GSA-Fleisch) was adopted, introducing a general contractor liability for the meat industry 
according to information from the federal government, contracting companies accounted for 
63% of the industry's workforce in 2019; 7.5% of the workforce were temporary workers. 368 
The German trade union NGG points out that the share of contract workers at that time was 
90%  in  some  companies  and  up  to  30  contract  companies  were  active  at  each  site.  In 
contrast,  postings  played  a  limited  role  in  this  setting:  data  from  the  Minimum  Wage 
Registration  Portal  shows  that  posted  workers  in  the  meat  industry  only  accounted  for 
0.23% of all postings in 2020, and for 0.02% in 2021.369  

Literature on other Western European countries generally points to a high proportion of 
foreign  workers in the sector.  To  deal  with  labour  shortages,  governments  issue  work 
permits to TCNs to be employed in the industry. For example, in Italy workers in the sector 
come  from  Eastern  European  Member  States  and  non-EU  countries  such  as  Albania, 
Ghana, Ivory Coast and China.370 In France, workers in the meat-processing sector seem 
to  a  large  extent  to  come  from  Central  and  Eastern  Europe,  but  also  from  African 
countries.371 In Ireland, the sector depends on migrant workers particularly from Brazil and 
South Africa. There are also many cross-border and migrant workers coming from Central 
and  Eastern  Europe.372  In  Denmark,  non-Danish  employees  in  the  sector  come  from 
Poland, but also Myanmar, Sri Lanka, and Vietnam.373 Poland is both a sending country of 
workers to other EU Member States, and a receiver from non-EU countries such as Ukraine 
(at least before the war started) or Belarus.374 In Germany, there are indications that more 
and more people from Kosovo, Georgia, Ukraine and Belarus are being employed in meat 
processing  –  however  also  here  no  concrete  data  exist.375 About  a  third  of Spain's  meat 
sector workforce are migrants, mostly from north Africa and Eastern Europe.376  

366 B. Wagner and A. Hassel, ‘Posting, subcontracting and low-wage employment in the German meat industry,’ in: 

European Review of Labour and Research, 22(2), 2016, pp.163-178. 

367 V. Bogoeski, ‘Chain liability as a mechanism for strengthening the rights of posted workers: the German chain liability 

model’, in ‘Protecting Mobility through Improving Labour Rights Enforcement in Europe (PROMO)’, VS/2016/0222, funded 
by European Union Programme for Employment and Social Innovation ‘EaSI’ (2014-2020), 2017. 

368 S. Stracke, ‘Branchenmonitor Schlachten- und Fleischverarbeitung’, Hans-Böckler-Stiftung, 2021, available at: 

https://docplayer.org/105928031-Branchenmonitor-schlachten-und-fleischverarbeitung.html. 

369 C. Albrecht, Y. Giesing and B. Rude, ‘Posted Workers in Germany – Developments and New Legislations’, CESifo 

Forum 3/2022, Volume 23, 2022, pp. 12-13, available at: https://www.cesifo.org/DocDL/CESifo-Forum-2022-3-albrecht-
rude-giesing-posted-workers-germany.pdf. 

370 S. Battistelli, P. Campanella, D. Dazzi and D. Freddi, ‘Structural characteristics and industrial relations in the pork value 

chain: the case of Italy’, in: Piera Campanella, Davide Dazzi (ed.), “Meat-up Ffire: Fairness, freedom and industrial 
relations across Europe: up and down the meat value chain”, 2020, pp. 139-194. 

371 EFFAT, ‘Covid-19 outbreaks in slaughterhouses and meat processing plants: State of affairs and proposals for policy 
action at EU level.’, EFFAT report, 30 June 2020, available at: https://effat.org/wp-content/uploads/2020/09/Covid-19-
outbreaks-in-slaughterhouses-and-meat-processing-plants-State-of-affairs-and-demands-for-action-at-EU-level-
7.09.2020.pdf. 

372 Ibid. 
373 S. Navrbjerg, ‘Structural characteristics and industrial relations in the pork value chain: the case of Denmark,’ in: Piera 
Campanella, Davide Dazzi (ed.), ‘Meat-up Ffire: Fairness, freedom and industrial relations across Europe: up and down 
the meat value chain’, 2020, pp. 75-101, available at: 
https://series.francoangeli.it/index.php/oa/catalog/download/496/303/2399-1. 

374 I. Buchowicz, I. Florczak, H. Kinowska, M. Otto, Ł. Sienkiewicz, ‘Structural characteristics and industrial relations in the 
pork value chain: the case of Poland’, in: Piera Campanella, Davide Dazzi (ed.) “Meat-up Ffire: Fairness, freedom and 
industrial relations across Europe: up and down the meat value chain” 2020, pp. 249-25, available at: 
https://series.francoangeli.it/index.php/oa/catalog/download/496/303/2399-1.  

375 Interview conducted for this study with German trade union representative for the meat processing sector, in June 2022. 
376 J. Rankin, “EU ‘failing to stop meat industry exploiting agency workers”, in: The Guardian, 5.10.2021; available at: 

https://www.theguardian.com/global-development/2021/oct/05/eu-failing-to-stop-meat-industry-exploiting-agency-workers. 
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5.3.4.  How temporary cross-border mobility functions in the 

meat processing sector 

Whether employed through subcontracting practices, as temporary agency workers, posted 
workers or (bogus) self-employed, representatives from the trade union side point out that 
the working, employment and housing conditions of a large proportion of meat workers are 
problematic:  low  wages,  poor  accommodation  (for  which  workers  usually  pay  excessive 
rents), falsified timesheets and second-class health and safety conditions.377 A Guardian 
article on working conditions in the meat industry lists undefined working hours, zero-hours 
contracts and no overtime or statutory sick pay as further problems. In addition, workers 
have  to  pay  agencies  high  costs  for  overcrowded  housing,  and  housing  and  pay  are 
generally insecure.378 

EFFAT notes that illicit practices exist for all these forms of employment, including illegal 
posting of workers or use of temporary agency work, bogus self-employment and the use 
of letterbox companies.379 Some temporary work agencies use a “phased” contract system, 
where  agencies  can  keep  workers  on  the  lowest  pay  for  extended  periods.  In  the 
Netherlands, for example, workers allege they are often let go before they are legally due a 
pay increase or pension contributions, then rehired on a similar contract. 380 

Furthermore,  ineffective  enforcement  and  control  of  relevant  regulations  on  minimum 
working standards lead to infringements going unchecked.381 In addition, leeway concerning 
collective agreements is misused, with workers in subcontracting being paid according to 
the less-favourable agreements (see the box below): 

Box 20. The circumvention of standards by less-favourable collective bargaining 
agreements or workers' cooperatives. 

In  Spain  the  companies  that  act  as  subcontractors  in  the  meat  industry  are  mainly 
multiservice  companies.  These  companies  are  covered  by  a  collective  agreement, 
which is lower than the collective bargaining agreement that applies to the Spanish meat 
sector. Sometimes temporary work agencies establish multiservice companies to avoid 
employer’s obligation to ensure equal treatment as per the Temporary Agency Workers 
Directive.   

Similarly in Belgium, some workers are paid according to the less-favourable collective 
agreements for logistics or the food commerce sectors. In addition, temporary workers 
are  sometimes  placed  in  the  lowest  wage  groups  or  work  under  a  less-favourable 
collective agreement than the core workforce.  

377 NGG and DGB, ‘Für faire Arbeitsbedingungen in der Fleischindustrie’, 2021, available at: https://www.faire-

mobilitaet.de/fleischindustrie/++co++081535ae-d0dd-11ea-a2d9-001a4a160123. 

378 E. McSweeney and H. Young, ‘“The whole system is rotten”: life inside Europe’s meat industry’, in: The Guardian, 

28.09.2021, available at: https://www.theguardian.com/environment/2021/sep/28/the-whole-system-is-rotten-life-inside-
europes-meat-industry.  

379 EFFAT, ‘Covid-19 outbreaks in slaughterhouses and meat processing plants: State of affairs and proposals for policy 
action at EU level.’, EFFAT report, 30 June 2020, available at: https://effat.org/wp-content/uploads/2020/09/Covid-19-
outbreaks-in-slaughterhouses-and-meat-processing-plants-State-of-affairs-and-demands-for-action-at-EU-level-
7.09.2020.pdf. 

EFFAT, ‘Hungry for fairness: raising standards in the meat sector: EFFAT’s 10 demands for action at EU level, adopted by 

the Executive Committee on 10 September 2020’. Brussels, European Federation of Food, Agriculture and Tourism Trade 
Unions, 2020, available at: https://effat.org/wp-content/uploads/2020/09/Hungry-for-fairness-raising-standards-in-the-
meat-sector-10-demands-EN.pdf. 

380 E. McSweeney and H. Young, “‘The whole system is rotten’: life inside Europe’s meat industry”, in: The Guardian, 

28.09.2021, available at: https://www.theguardian.com/environment/2021/sep/28/the-whole-system-is-rotten-life-inside-
europes-meat-industry. 

381 A. Weltin “The German Meat Industry and Posted Work: Cost-Cutting, Precarious Working Conditions, and Emerging EU 

and German National Level Policy Change”, Australian National University’s Centre for European Studies, 2020. 

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for 

the  responsibility 

In Italy, the dominant business model is based on workers' cooperatives, to which tasks 
in slaughtering and meat processing are outsourced. Companies in the meat processing 
sector in Italy do not commission the cooperatives themselves, but interpose a so-called 
the  orders  and 
consortium  (Consorziata),  which  bears 
commissions  various  subcontractors.  The  consortium then  retains  a  large  part  of  the 
payment of the contracting company, so that the workers ultimately performing the work 
are often paid low wages. According to trade unions, workers’ co-operatives can cost 
meat  companies  up  to  40%  less  than  their  directly  employed  counterparts.    Other 
working conditions are also precarious. It is common, that the consortium only consists 
of one or two people.  The cooperatives involved in the meat processing sector in Italy 
can  be  seen  as  mainly  bogus  workers'  cooperatives,  fraudulently  set  up  by  meat 
companies  to  make  use  of  their  labour  flexibility  and  tax  advantages.  In  fact,  Italian 
cooperatives were originally meant as a form of establishing solidarity amongst workers, 
shared decision-making and special rights in cases of economic hardships. Spain also 
had a similar model of cooperatives operating with bogus self-employment before it was 
banned.382   

With  regard  to  posting  in  the  Austrian  meat  industry,  a  decision  of  the  ECJ  on  the 
prohibition of replacement regarding the posting of workers is worth mentioning. In 2018, 
the ECJ (Case No.: C-527/16) ruled that the repeated use of posted workers to fill the 
same job, even if different employers (and employees) carry out the postings, does not 
constitute a posting within the meaning of the Posted Workers Directive. The decision 
is based on a case where the Austrian company Alpenrind had meat cut and packed in 
its  slaughterhouse  in  Salzburg  by  workers  posted  to  Austria  by  various  Hungarian 
companies.  For  the  workers  A1  certificates  were  issued,  according  to  which  the 
Hungarian  social  security  regulations  applied.  However,  the  court  decision  ruled  that 
due  to  the  non-replacement  condition,  the  Austrian  social  security  system  applied  to 
these workers.  

It  is  important  to  note,  however,  that  there  are  differences  between  the  higher-income 
countries regarding employment and working conditions in the meat processing: in many 
Western  and  also  Northern  European  countries  there  are  extensive  collective 
bargaining agreements in the meat industry, which provide protection for at least some 
of  the  workers,  mainly  those  who  are  directly  employed.  Often,  the  underlying  industrial 
relations systems have shaped actors' responses to the use of migrant and cross-border 
labour. This is in particular the case in Denmark.383  

5.3.5.  Regulatory change in Germany and its impact on 

problematic practices 

In  Germany,  the  meat  industry  tried  relatively  early  –  in  the  context  of  the  eastward 
enlargement of the EU in 2004 and in combination with the EU PWD of 1996 – to reduce 
labour costs through a combination of posted work, temporary agency work and the use of 
self-employed  foreign  subcontractors.  Many  subcontractors  were  based  in  Central  and 
Eastern  Europe,  but  the  work  was  performed  on-site  in  Germany.  This  resulted  in  the 
replacement of the core workforce with a flexible low-cost employment layer. With only a 
few exceptions, collective agreements did not apply to this external workforce, as there was 
also  no  statutory  minimum  wage  in  Germany  and,  until  mid-2014,  the  meat  processing 

382  A.  Riesco-Sanz,  “Food  Sector:  Bogus  Cooperatives  and  Bogus  Self-Employment  in  the  Subcontracting  Chain  of  the 
Spanish Meat Industry”, in: ETUC, “Securing Workers’ Rights in Subcontracting Chains: Case studies”, Brusssels, 2021, 
pp.62-87; available at: https://www.etuc.org/sites/default/files/2021-10/Securing%20workers%20rights_EN_LR.pdf. 
383 S. Navrbjerg, “Structural characteristics and industrial relations in the pork value chain: the case of Denmark,” in: Piera 
Campanella, Davide Dazzi (ed.), “Meat-up Ffire: Fairness, freedom and industrial relations across Europe: up and down 
the meat value chain”, 2020, pp. 75-101; available at: 
https://series.francoangeli.it/index.php/oa/catalog/download/496/303/2399-1. 

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sector was also not one of the minimum wage-sectors listed in the German Posting Law 
(Arbeitnehmerentsendegesetz).  

For a long time, there was no wage floor at all for these workers, so they often received the 
conditions and pay of the sending country, thus extremely low hourly wages. In those years, 
low  pay  rates,  excessively  long  working  times,  a  poor  quality  of  accommodation  made 
available  by  the  meat  processing  companies,  and  a  lack  of  social  security  coverage 
(including unemployment, sick and pension benefits) characterised the working conditions 
in German meat processing. In addition, meat processing companies contracted work to a 
chain of subcontractors, involving a web of letterbox companies to abdicate responsibility. 
In 2014 and 2015 there were two voluntary commitments made by German employers 
to change these practices. Besides a code of conduct, a voluntary commitment stipulated 
that employers should stop using posted workers by July 2016 and conclude subcontracts 
with  German  firms  or  German  subsidiaries  of  foreign  companies  instead.384  As  a  result, 
large  meat  processing  companies  in  Germany  stopped  using  posted  workers  and  used 
migrant workers from subcontractors (from Eastern European countries) with a home base 
in Germany instead.  

However, the conditions for the workers in the meat industry barely changed and another 
attempt to strengthen the protection of workers was launched in 2017 by the Law for the 
Protection  of  Workers'  Rights  in  the  Meat  Industry  (Gesetz  zur  Sicherung  von 
Arbeitnehmerrechten  in  der  Fleischwirtschaft,  GSA-Fleisch),  which  introduced  a  general 
contractor liability for the meat industry and required the contracting company to check that 
subcontractors comply with the minimum wage and also pay social security contributions. 
Despite  the  new  regulation,  working  conditions  did  not  improve.  On  the  contrary,  while 
earning the same amount of money, namely the industry-level minimum wage, and due to 
the introduction of electronically recorded working hours, the employees were conducting 
the same workload in less time. Housing conditions were also still extremely poor. In order 
to  combat  the  ongoing  malpractices  in  the  meat  industry  and  in  connection  with  major 
COVID 19 outbreaks at large meat processing plants, the Occupational Health and Safety 
Enforcement Act (Arbeitsschutzkontrollgesetz) came into force on 1 January 2021. The Act 
provides  amendments  to  various  laws  and  generally  prohibits  the  use  of  subcontracting 
(including  temporary  agency  work)  in  slaughtering,  cutting  and  meat  processing  in 
companies with more than 49 employees.  

384 K. Jaehrling, I. Wagner and C. Weinkopf, “Reducing precarious work in Europe through social dialogue”, in: IAQ-Forschung, 
https://www.researchgate.net/publica 

2016, 
2016-03, 
tion/311102911_Reducing_precarious_work_in_Europe_through_social_dialogue_The_case_of_Germany  

Duisburg-Essen, 

University 

available 

at: 

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Table 2. The German Occupational Health and Safety Enforcement Act (Arbeitsschutzkontrollgesetz) 

Area  

Contents 

Laws 

Ban on contracts for work and services (from 1.1.2021). 

Ban on temporary agency work (from 1.4.2021) in the areas of slaughtering, cutting and meat 
processing. For a transitional period of three years, by way of derogation, the following may be permitted 
by collective agreement under certain conditions in meat processing (but not in slaughtering and 
cutting): 

Employment 
relationships 

•  Maximum of 8% temporary agency workers; 
•  Maximum temporary employment period of the individual temporary worker for 4 months. 
•  Same pay and working conditions as for permanent employees from the first day of work apply. 

Law for the Protection of Workers' 
Rights in the Meat Industry (Gesetz zur 
Sicherung von Arbeitnehmerrechten in 
der Fleischwirtschaft, GSA-Fleisch) 

Working time 

Obligation to record working time electronically. 
Clarification that set-up time, changing time and washing time are part of working time. 

Act to Combat Clandestine Work  
(Schwarzarbeitsbekämpfungsgesetz, 
SchwarzArbG) 

Inspections 

Annual minimum inspection quota of 5 % per federal state for establishments in the meat industry. 
Establishment of a federal office for health and safety at the Federal Institute for Occupational Safety and 
Occupational Medicine (BAuA). 

Occupational Health and Safety Act 
(Arbeitsschutzgesetz, ArbSch) 

Penalties 

The fines for violations of the Working Hours Act were doubled to EUR 30,000. 

Accommodation 

Minimum requirements for community accommodation (also outside the premises of the company). 

Working Time Act (Arbeitszeitgesetz, 
ArbZG) 

Workplace Regulation 
(Arbeitsstättenverordnung, ArbStättV) 

Source: Erol and Schulten 2021, p. 17385 

385 S. Erol, T. Schulten, „Neuordnung der Arbeitsbeziehungen in der Fleischindustrie: Das Ende der „organisierten Verantwortungslosigkeit“?“ Hans-Böckler-Stiftung, Report No. 61, 2021, 

available at: https://www.wsi.de/fpdf/HBS-007924/p_wsi_report_61_2021.pdf. 

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In addition, since January 2023 a sector-wide minimum wage of EUR 12.80, negotiated 
through collective bargaining, has been in force for the meat industry. The overall opinion in 
Germany is that the Occupational Health and Safety Enforcement Act (Arbeitsschutzkontroll-
gesetz) has triggered a structural change in the industry. The legal situation of workers 
has improved. External workers have been taken over by the meat processing companies; 
many have been able to use this opportunity to negotiate higher wages and more attractive 
conditions. However, there are still some points of criticism:386,387 

•  The definition of the meat processing industry is based on the Posting of Workers Act, 
which  does  not  include  administration,  goods  receiving,  spice  room,  packaging,  etc. 
According  to  the  NGG,  companies  now  try  to  restructure  to  not  fall  under  the 
regulations. 

•  Recruitment companies in Eastern European Member States and elsewhere are still 
responsible  for  transport,  on-the-job  training,  personnel  accounting,  distribution  to 
accommodation, etc. at many locations, despite the fact that workers are now direct 
employees at the plants. The accommodation situation has also not yet been clarified 
in many points. 

•  Working time  recording  is  not  always  clear,  especially  when  it  comes to  the  starting 
time (before the changing room) and the recording of the beginning and ends of breaks 
as well as wayside times within the production site. 

5.3.6.  Conclusions: Understanding different approaches to 

regulation 

Several  conclusions  can  be  drawn from the  sectoral  study  of  the meat  processing  industry. 
First,  it must  be  recognised  that  a  variety  of  different forms  of  employment  in  the meat 
processing sector exist in Europe. In addition, the workforce in the sector consists of cross-
border workers, as well as workers with a migrant background who are already in the country. 
Germany has reacted to malpractices with a complete ban on subcontracted and temporary 
work,  but  the  extent  to  which  such  a  ban  is  practicable  for  other  countries  must  be 
examined.    However,  other  attempts  to  regulate  the  sector  in  Germany,  such  as  the 
introduction  of  a  minimum  wage,  subcontractor  liability  and  industry  self-regulation,  do  not 
appear to have led to changes.  

Trade unions have a list of demands in terms of legislative amendments. According to EFFAT, 
amendments  should  address  the  misuse  of  subcontracting  and  other  business  practices  to 
escape employer liability, illegal labour brokering and gangmaster practices, the use of bogus 
cooperatives,  workers  forced  to  work  as  self-employed,  wage  dumping  and  illegal  wage 
deductions and the lack of decent housing conditions for cross-border and migrant workers.388 
EFFAT’s ten demands for action at EU level also include an EU initiative on subcontracting 
focused on regulating the use of subcontracting in the meat sector instituting a system of full 
chain liability covering both cross-border and domestic situations. It states that the initiative 
should also aim to tackle the use of less-favourable collective bargaining agreements.389 

The German Meat Industry Association (Verband der Fleischwirtschaft, VDF) rejects general 
accusations of the entire industry by trade unions and others. For example, they point out that 

386 NGG, KWA – Evangelischer Verband Kirche-Wirtschaft-Arbeitswelt, „Abschlusserklärung der Vierten bundesweiten 
Initiativen- und Betriebsrätekonferenz Fleischindustrie“, Rheda-Wiedenbrück, 20. November 2021, available at: 
https://www.kwa-ekd.de/wp-content/uploads/2021/11/Abschlusserklaerung-Vierte-Initiativenkonferenz-
Fleischwirtschaft_Rheda-201121_fin.pdf. 

387 Interview conducted for this study with German trade union representative for the meat processing sector, in June 2022. 
388 EFFAT, “Covid-19 outbreaks in slaughterhouses and meat processing plants: State of affairs and proposals for policy action 

at EU level’. 

389 EFFAT, “Hungry for fairness: raising standards in the meat sector: EFFAT’s 10 demands for action at EU level, adopted by the 

Executive Committee on 10 September 2020”. 

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official investigations in some German federal states regarding Covid-19 outbreaks come to 
the conclusion that this is not a general industry problem of the meat industry.390 

Overall, the research carried out for this study has shown that the degree to which working 
conditions in the sector are challenging varies across Europe and the strategies and 
business concepts of the employers regarding the use of subcontracting differ greatly. 
A one-size-fits-all-approach in Europe for controlling and regulating employment relationships 
may thus not be feasible.  

390  Verband  der  Fleischwirtschaft,  „Fleischwirtschaft  legt  der  Bundesregierung  5-Punkte-Plan  vor“,  2020,  available  at: 

https://www.v-d-f.de/news/pm-20200518-0137. 

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5.4.  Agriculture and horticulture 

Summary of key findings 

•  Despite  a  decreasing  overall  workforce, the  agri-  and  horticulture  is  an  important 
sector for the European Union with about 9 million workers and employees in 2021. 

•  Though there is a strong trend towards concentration, agriculture and horticulture 
still is characterised by a high share of micro and small farms, often family owned.  

• 

In  terms  of  employment  development,  the  sector  is  characterised  by  a  (strong) 
reduction of the national workforce employed in agriculture and a steady increase 
in  the  number  of  foreign  workers,  whereby  the  number  of  third  country  nationals 
shows stronger growth than workers from other EU Member States. 

•  Drivers of cross-border mobility are related to the seasonal nature of many activities 
in agriculture and horticulture as well as related to the agriculture and food value 
chain that is characterised by a strong pressure on production costs. 

•  The organisation of cross-border mobility in agri- and horticulture has very specific 
features  whereby  direct recruitment  and  employment  by  farms  and  employers  as 
well  as  informal  organisation  by  foremen,  private  intermediaries  and  agencies  as 
well  as  online  platforms  and  social  media  are  most  prevalent.  Formalised 
subcontracting and registered temporary agency work are not relevant. 

•  Key  problematic  aspects  of  cross-border  mobility  in  agriculture  are  related  to  the 
short-term nature of seasonal work and the largely informal character of recruitment: 
Lack  of  transparency  of  the  employment  status  and  wage  entitlements,  often 
missing  coverage  by  health  and  social  insurance,  unlawful  wage  deductions  for 
accommodation or brokerage fees, working time documentation, as well as quality 
of accommodation or sanitary infrastructure. 

5.4.1.  Overview of the sectoral context 

The agriculture sector is estimated to have employed around 9.1 million people in 2021391, 
which equals about 4.4% of total employment in the EU-27. However, in terms of workforce, 
agriculture is a shrinking sector: its share of total EU-27 employment has decreased by 3.8 
percentage points since 2000. One of the key characteristics of employment in the agricultural 
sector is the fact that a high share (64.8%) of the workforce is self-employed and only about 
one-third of the workforce are employed. 

It should be noted that a characteristic trend of employment in the agriculture sector in the last 
decade has been the steady decrease of nationals working in the sector that contrasts to a 
slight increase of employees from and an increase of employees from other EU Member States 
and  an  even  stronger 
third  country 
nationals.392This structural feature relates to the subsistence or semi-subsistence function of 
farming for many farm owners: in 2016 (latest data available393, there were more than 10 million 
farms in the EU, and by far most of these were very small, run as family farms. In 2016 on 

the  number  of  employees 

increase  of 

from 

391 Eurostat [NAMA_10_A10_E] 
392 See Nori, M. and Farinelia, D. (2020). Migration, Agriculture and Rural Development. See also EU Commission: Report on 

seasonal workers and intra-EU labour mobility. 

393 Eurostat Eurostat [ef_m_farmleg] 

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93% of farms in the EU, the only workers on the farm were family workers (the farmer 
and his/her family members). Family farms are the dominant type of farm in all EU Member 
States  but  there  are  relatively  sizeable  shares  of  non-family  farms  in  France  (27.3%)  and 
Estonia  (21.0%).394  In  2016,  one  third  (32.7%)  of  the  EU's  farms  were  located  in  Romania 
followed by Poland (13.5% of the EU-28 total), Italy (10.9%) and Spain (9.0%).395 

The agriculture sector is characterised by a strong trend towards concentration. According 
to Eurostat figures, the number of farms decreased by about 4.1 million between 2005 and 
2016,  and  most  of  these  were  small  or  very  small  farms.  The  only  size  segment  that 
experienced growth were farms with more than 100 hectares of farmland. As the overall land 
used  for  agricultural  production  did  not  change  during  this  period,  this  figure  indicates  an 
ongoing process of mergers and takeovers.396 

While horticulture only accounts for about 2% of all farms in the EU,397 the production output 
of  this  sector  is  much  higher,  accounting  for  14%  of  the  total  value  of  the  EU’s  agricultural 
production in 2018. Horticulture is an important sector for many EU Member States, such as 
in the Mediterranean region and in some northern and eastern European countries. Moreover, 
all  EU  Member  States  produce  at  least  a  few  types  of  fruit  and  vegetables.  Apples  and 
tomatoes are the main products of the richly diversified produce of the EU's fruit and vegetable 
farms. Mostly small-sized with relatively high labour input, these farms earn incomes ranging 
from average (for fruit specialists) to very high (for horticulture specialists, including flower and 
ornamental plant production).398 

With regard to terms and conditions of employment, the agriculture sector differs from the 
overall workforce in the EU in a number of aspects. In terms of working status, as mentioned 
above, the proportion of family workers is significantly higher than the average for the whole 
EU workforce, at more than 15% compared to just 1%. The levels of self-employment are also 
significantly  higher  than  the  average  for  the  whole  EU  workforce,  at  53.7%  compared  to 
14.1%).399 Further differences are related to working hours: the proportion of workers working 
49 hours per week (21.7%) or more is three times higher than the proportion in the total EU 
workforce (7.5%). Illustrating the seasonal character of large parts of agri- and horticulture, a 
further characteristic of employment is the comparatively high share of short-term employment: 
In 2020 having a short-term contract of up to three months was 3.6 times as common in 
the agriculture workforce.400  

Research  conducted  by  the  European  Platform  of  Undeclared  work401  has  highlighted  a 
concentration of problematic aspects of employment in agriculture. For example, the proportion 
of employees without a written contract is three times higher than in the overall EU workforce. 
Also,  the  issue  of  a  comparatively  high  share  of  dependent  self-employment  has  been 
highlighted by the European Platform as well as by EU agencies such as Eurofound (European 
Working Conditions Survey)402.  

These characteristics contribute to agriculture being characterised in a recent position paper 
from the European trade union federation organising agricultural workers, EFFAT, as “one of 

394 Eurostat, Farms and farmland in the European Union – statistics, Eurostat 2018: Farms and farmland in the European Union 

– statistics.  

395 Eurostat. https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Farms_and_farmland_in_the_European_Union_-

_statistics#Farms_in_2016 

396 Eurostat, ‘Key figures on the European Food chain’, 2021 Edition, available at, https://ec.europa.eu/eurostat/web/products-

key-figures/-/ks-fk-21-001. 

397 Ibid. 
398 See also: https://www.europarl.europa.eu/RegData/etudes/BRIE/2019/635563/EPRS_BRI(2019)635563_EN.pdf  
399 See: Eurostat, ‘Key figures on the European Food chain’, 2021 Edition, available at, 

https://ec.europa.eu/eurostat/web/products-key-figures/-/ks-fk-21-001., p. 19 

400 Ibid, p. 19. 
401 C.C. Williams & A. Horodnic, ‘Tackling undeclared work in the agricultural sector’, 2018: 
402 Eurofound, ‘Sixth European Working Conditions Survey – Overview Report’, 2016, available at: https://www.eurofou 

nd.europa.eu/publications/report/2016/working-conditions/sixth-european-working-conditions-survey-overview-report.  

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the most precarious and challenging sectors of the economy”, which relies to a large extent on 
EU seasonal, as well as third country, migrant workers, including undocumented.403  

5.4.2.  Seasonal workers and other forms of temporary cross-

border labour mobility  

Agriculture  and  horticulture  in  the  EU  depend  heavily  on  migrant  workers  as  labour 
shortage is a major problem in this sector, and in particular when it comes to seasonal work. 
According to a study published in 2021 by the EU Commission, there are around 650 000 – 
850 000  EU  citizens  that  carry  out  seasonal  work  in  another  EU  country,  most  of  which  in 
agriculture.404 

1.  As  highlighted  in  recent  research  on  seasonal  work,405  measuring  the  extent  of  this 
type  of  work  is  challenging  for  a  number  of  reasons:  Seasonal  workers  that  are  EU 
nationals benefit from free movement and are not recorded in official statistics and also 
data on third-country seasonal workers cannot be used as a proxy as the share of EU 
and non-EU seasonal workers differs significantly between Member States.  

2.  In  addition,  there  is  an  unknown  number  of  undeclared  seasonal  workers.  It  is 
estimated by the European agricultural workers trade union EFFAT that around one-
third of the EU agriculture workforce are not recorded 

According to a study of the European Migration Network (EMN)406, seasonal workers from non-
EU countries mostly originate from the neighbouring regions of the receiving Member States. 
In  2018,  the  Ukraine  was  the  most  frequent  country  of  origin  across  the  Member  States, 
followed by Bosnia and Herzegovina, Serbia, North Macedonia, Moldova and Belarus.   

In some Member States, key countries of origin of seasonal workers are outside the European 
continent, namely from Africa and South America. In France, the top five countries of origin for 
seasonal workers in 2018 were Morocco, Mali, Guinea, Tunisia and Ivory Coast. In Spain the 
main country of origin in 2018 was Morocco.  

There is limited data available on the age of seasonal workers. According to the EMN research, 
the majority of seasonal workers are young, between 18 and 39 years old. Only a small 
percentage of seasonal workers are 50 or older. Reliable data on the gender distribution of 
seasonal workers is not available.   

Due to their short stay in the host country, mobile seasonal workers and TCNs are more 
exposed to labour market changes, face language and cultural barriers and are often 
unaware of their rights and obligations. This has led to a significant share of these workers 
being trapped in undeclared work.  

In  the  agricultural  sector,  undeclared  work  is  driven  by  the  seasonal  character  of  the 
production processes as well as specificities of the value-chain of production:  Products are 
not typically delivered directly to the consumer but sold to manufacturing industries or to retail 
businesses. Competition in the retail food and food processing industries results in pressure 
on agricultural and horticultural producers to keep production costs low while maintaining high 
quality. This is achieved mainly by decreasing labour costs, using technological innovations 
and  increasing  productivity  but  also  illegitimate  labour  practices  such  as  undeclared  work, 

403 EFFAT 2021: Towards inclusion and equal treatment for all mobile and migrant workers; EFFAT Demands for action. 

Adopted at the EFFAT Executive Committee on 1 June 2021, p. 3. 

404 European Commission, ‘Intra-EU Mobility of Seasonal Workers: Trends and Challenges. Final Report March 2021’. It should 

be noted that the figure in intra-EU seasonal workers are based on calculation of eight countries only. 

405 EU Commission: Report on seasonal workers and intra-EU labour mobility. 
406 European Migration Network, ‘Attracting and protecting the rights of seasonal workers in the EU and United Kingdom’, 

Synthesis Report, 2020, available at: https://home-affairs.ec.europa.eu/system/files_en?file=2020-
12/00_eu_seasonal_workers_study_synthesis_report_en_1.pdf.  

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bogus self-employment, gang mastering and trafficking. This includes country-specific forms, 
for  example  the  well-documented  forms  of  exploitation  such  as  the  “Caporale”  system  in 
Italy.407  

Illegal or criminal practices affect native and foreign workers alike but due to their migration 
status, EU and particularly (due to their unsecure residence status) non-EU foreign workers 
are found to be particularly vulnerable and disproportionately affected. While undeclared 
work  in  the  agriculture  sector  affects  both  EU  and  third  country  nationals,  participants  in  a 
workshop organised in 2019 by the European Platform of Undeclared Work408 highlighted that 
TCNs are more vulnerable to multiple forms of rights violations and trafficking.  

EFFAT  estimates  that  40%  of  agricultural  workers  are  internal  EU  or  third  country 
migrants.409 Differentiating between EU mobile workers and TCNs, moreover, it is estimated 
that 20% of migrants working in agriculture are from third countries and 80% are EU mobile 
workers.  In  some  Member  States  and  regions,  a  large  proportion  of  these  migrants  are 
engaged in undeclared work. They not only suffer from a lack of access to social security but 
also access to information about their rights and a lack of support to help them to improve their 
situation. According to stakeholders at national level, there is also evidence that suggests a 
specific gender dimension410 where women are more at risk of being employed without a formal 
contract and with lower wages.  

5.4.3.  The role of labour market intermediaries and 

subcontracting  

According to stakeholder interviews and national evidence,411 EU and third-country seasonal 
workers are most likely to be recruited and employed either directly be farmers or via informal 
channels.  Labour market intermediaries, including fraudulent agencies, however, also 
play an important role in providing users in agriculture and horticulture with seasonal 
workers from the EU and non-EU countries. Temporary work agencies play a major role in 
organising short-term cross-border labour in countries such as Slovenia, Slovakia, Spain, the 
Netherlands and Malta.412 As with other sectors, high cost pressures on economic actors in 
agriculture  and  horticulture  incentivise  cost-cutting  strategies,  which  result  in  the  use  of 
intermediaries in the supply chain and the prevalence of undeclared work.  

In Germany for example, it has been reported that most of the 275,000 seasonal workers in 
agriculture have been recruited through the following three channels:413  

1.  Personal contacts and private networks: Workers who have had a good experience in 
a company recommend it to others. Often workers from the same locality take up work 
in a company in Germany as a group. Companies also specifically use their foremen 
to recruit workers in their region of origin. 

407 See for example: Eurispes and UILA, 2014: Undeclared work, Survey on undeclared work in agriculture, (Sommerso, 

Indagine sul lavoro sommerso in agricoltura) Rome. Also: FLAI CGIL, Osservatorio Placido Rizzotto 2014: Agromafie e 
Caporalato, Secondo Rapporto. 

408 C.C Williams, ‘Tackling undeclared work in the agricultural sector, with a focus upon seasonal workers and horticulture’, 24 

January 2019, Brussels, Belgium.  

409 Interview with EFFAT, May 2022. See also: Williams, Colin C. 2019: Tackling undeclared work in the agricultural sector: a 

learning resource, p. 3. 

410 There is a lack of data on the gender distribution of seasonal workers in general and no data for agriculture exist. However, a 
recent study on third-country seasonal workers revealed that there seem to be significant differences between EU Member 
States. While on average the distribution between men and women seems to be quite equal, data from Spain for 2019 
indicate that 88% of third country seasonal workers are female. See European Migration Network 2020: Attracting and 
protecting the rights of seasonal workers in the EU and United Kingdom, p. 11. 

411 In particular EFFAT. See also: Palumbo, L; Corrado, A; Triandafyllidou, A. 2022: Migrant Labour in the Agri-Food System in 
Europe: Unpacking the Social and Legal Factors of Exploitation, European Journal of Migration and Law 24 (2022), p. 179–192 
On Germany see: Initiative Faire Landwirtschaft (2023): Saisonarbeit in der Landwirtschaft. Jahresbericht 2022 

412 R. Stefano & D. Minerva, ‘Tackling undeclared work among seasonal (including mobile) workers: Developments, trends and 

good practices’, 2021, p. 4. 

413 See Initiative Faire Landwirtschaft (2023): Saisonarbeit in der Landwirtschaft. Jahresbericht 2022, p. 10. 

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2.  Agencies: In the countries of origin, such as Romania, there are informal placement 
agencies that place seasonal workers in German companies. These agencies are often 
criticised. The Romanian government tried to regulate the placement by law in 2021, 
but many of the agencies continue to work informally.414 

3.  Digital:  Recruitment  is  increasingly  taking  place  digitally,  on  the  one  hand  via  social 
media  such  as  Facebook,  on  the  other  hand  via  private  placement  portals,  the 
seriousness of which is to be assessed very differently. 

In  the  placement  of  seasonal  workers  from  third  countries,  state  placement  agreements 
between  Germany  and  the  countries  of  origin  Georgia  and  the  Republic  of  Moldova  play  a 
special role. However, so far, they only cover a small proportion of workers. Apart from these 
placement agreements, placement takes place through informal channels.  

Job placement via the European Employment Services (EURES) platform does not seem to 
play a major role in the placement of seasonal workers.415 

Informal  intermediaries,  be  they  foremen  or  intermediaries,  often  charge  a  fee,  sometimes 
directly from the workers, sometimes from the employer, who in turn deducts it from the wages. 

The evidence from the organisation of seasonal work in agriculture in Germany seems to also 
match  the  experience  of  other  countries,  in  particular  when  it  comes  to  the  prevalence  of 
informal ways of recruitment and different forms of labour intermediaries that are not formal 
temporary work agencies.  

Case  law  suggests  that  fraudulent  practices  are  quite  widespread  where  agencies  or 
intermediaries aim to avoid declaration to the public authorities. For example, some fraudulent 
agencies  regularly  change  their  company  status  or  names  of  owners  in  order  to  evade 
regulations  in  countries  such  as  Germany,  Belgium  and  Norway  or  as  mentioned  above, 
Romania.  

As discussed in the case study on seasonal workers in the agriculture sector (see Section 6.3), 
some  of  the  existing  practices  undermine  the  working  conditions  and  rights  of  seasonal 
workers  and  encourage  undeclared  work.  In  Italy,  many  find  seasonal  work  through  the 
‘caporalato’ practice,416 which is a form of illegal intermediation between farmers and workers. 
As a result, there is limited legal and social protection for the workers which leads to precarious 
working conditions and few avenues of redress.   

5.4.4. 

 How temporary cross-border mobility functions in the 
agriculture and horticulture sector  

Seasonal work provided by cross-border mobile workers either from other EU countries or from 
outside the EU has long been a constant feature of the workforce in the EU agriculture sector. 
Cross-border  mobile  workers  are  important  and  likely  to  continue  due  to  significant  labour 
shortages in both agriculture and horticulture. Direct relationships by employing farms, informal 
intermediaries,  agencies  as  well  as  increasingly  social  media  play  a  key  role  in  organising 
seasonal work within and across borders.  

While evidence of precarious forms of employment and working conditions in the sector has 
long been highlighted by the social partners in the agricultural sector, the COVID-19 pandemic 
as well as research conducted under the umbrella of EU institutions such as the Platform for 
Undeclared  Work  or  the  ELA  have  raised  awareness  of  the  situation  of  EU  workers  and 

414 Ibid. 
415 Ibid. 
416 Ibid. 

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seasonal  TCN  workers  in  this  sector.  Further,  migrant  seasonal  workers  are  at  high  risk  of 
facing multiple forms of rights violations and trafficking.   

Key challenges in this sector relate to the difficulties in carrying out workplace inspections due 
to  limited  access  (size  and  dispersion  of  workforce,  lack  of  access  to  premises)  and  the 
prevalence of verbal contracts. Inspectors may face communication and language issues. The 
lack  of  data  related  to  identifying  undeclared  work  in  the  agricultural  sector  is  another  key 
challenge. Further challenges relate to undocumented or intransparent working time, lack of 
health insurance and underpayment. 

In addition to a fragmented landscape in terms of the implementation of the Seasonal Workers 
Directive, trade unions have in particular highlighted the need for a stronger framework relating 
to subcontractors as well as user company liability.  

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5.5.  The hotel-tourism-catering sector 

Summary of key findings 

•  There is limited data available on temporary cross-border workers employed in the 
hotel, tourism  and  catering  sector,  partially  due  to  the  challenge  of  distinguishing 
between temporary cross-border workers as opposed to workers generally, and also 
due  to  available  statistics  focusing  only  on  one  sub-sector  (i.e.  accommodation, 
‘travel  and  tourism’  or  ‘food  and  beverage’).    whether  it  be  the  extent  of 
subcontracting that takes place, the number of intra-EU seasonal workers, or the 
prevalence of TCNs employed in the sector. 

•  That  said,  the  European  Parliament  notes  in  a  2017  report  on  the  issue  of 
subcontracting chains that the phenomenon has been widely reported in the hotels 
sector. As in other sectors, subcontracting practices have been found to lead to a 
worsening of working conditions, as the responsibility of employers can be blurred. 
It can also undermine the rights of workers to information and consultation and to 
collective  representation,  as  workers  are  likely  to  be  working  for  smaller, 
subcontracted, companies. 

•  While the number of temporary cross-border TCN workers employed in the hotel, 
tourism and catering sector remains largely unknown, as in other sectors, TCNs are 
particularly  vulnerable  to  violations  of  working  conditions  due  to  concerns 
surrounding obtaining or retaining a visa. 

5.5.1.  Overview of the sectoral context 

5.5.1.1.  Prevalence of temporary cross-border workers 

There are no EU-wide statistics as to the number of temporary cross-border workers employed 
in the hotel, tourism and catering sector. This is partially due to the challenge of separating the 
data  specifically  applicable  to  temporary  cross-border  workers  as  opposed  to  all  persons 
employed in the sector, but also the fact that the sector has a number of component parts: 
accommodation, ‘travel and tourism’ and ‘food and beverage’.  

Considering  the  travel  and  tourism  sub-sector,  in  absolute  terms,  Germany  had  the 
highest employment level in tourism industries (2.6 million people), followed by Italy (1.7 
million) and Spain (1.6 million).417 In terms of tourism industries as a share of the total non-
financial business economy, Greece had the highest share (27.8%), followed by Cyprus and 
Malta.418  

The  share  of  female  workers  employed  both  in  ‘selected  tourism  industries’419  and 
accommodation is around 60%.420 The workforce in the sector is fairly young, as it is an 

417 Eurostat, Statistics explained, ‘Tourism industries – employment’, data extracted in January 2022, available at: 

https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Tourism_industries_-
_employment&oldid=552036#In_2019.2C_the_tourism_industries_employed_over_12.5_million_people_in_the_EU.  

418 Ibid. 
419 Taken here to mean the three industries that rely almost entirely on tourism: accommodation, travel agencies/tour operators, 

air transport. 

420 Eurostat, Statistics explained, ‘Tourism industries – employment’, data extracted in January 2022, available at: 

https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Tourism_industries_-
_employment&oldid=552036#In_2019.2C_the_tourism_industries_employed_over_12.5_million_people_in_the_EU. 

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industry  through  which  it  is  relatively  easy  to  enter  the  labour  market.  The  fact  that  it  is 
frequently used by people who are also engaged in education and/or training means that the 
turnover of the workforce is high. Although the figures above relate to all workers, not solely 
temporary cross-border workers, they can be understood to apply also to mobile workers. 

In 2020, around 13% of the labour force in tourism industries was made up of foreign 
citizens,  6% coming  from  other  EU  Member  States  and  7%  from  non-EU  countries.421  The 
share of foreign citizens increases for certain sub-sectors; for example, 15% of workers in the 
accommodation sub-sector were foreign citizens. What is not known is whether these workers 
reside permanently in the country in which they work, or whether they are temporary cross-
border  workers.  However,  temporary  employment  (whether  or  not  cross-border)  is 
common in the tourism sector (18% of workers have a temporary job, as opposed to 12% 
of  employed  people  in  the  non-financial  business  economy).422  There  are,  however,  large 
differences between Member States, with more than 30% of tourism work contracts in Greece, 
Italy, Cyprus and Poland being temporary. 

In terms of the features of the work itself, working hours are long and typically based on 
shift  work.  This  means  that  much  of  the  work  deviates  from  standard  working  times. 
Historically,  the  sector  has  witnessed  high  levels  of  non-compliance  with  working  time 
regulations, particularly in the field of youth employment.423 Hourly earnings are also below 
the average for the economy as a whole, which can be explained by the relatively young 
labour  force,  high  proportion  of  temporary  contracts  and  low  job  security.  This  is  the  case 
particularly in the accommodation sub-sector, where gross-hourly earnings in 2018 were €11, 
compared to €15.70 for the EU economy as a whole.424 

5.5.1.2.  Drivers and sectoral constraints 

From  a  supply  perspective,  the  hotel,  tourism  and  catering  sector  offers  dynamic 
opportunities  for  professional  mobility,  with  workers  being  able  to  gain  a  diverse 
experience  in  another  country.  It  is  for  this  reason  that  much  of  the  workforce  is  relatively 
young, as the sector provides an interesting opening to the labour market. 

From a demand point of view, parts of the sector (particularly the ‘travel and tourism’ sub-
sector) are very seasonal in nature, with periods of high and low demand. This depends on 
factors such as weather conditions (e.g. ski tourism), but also school holidays and cultural or 
regional  events/festivals.  It  is  also  a  sector  in  which  there  are  comparatively  high  relative 
labour  shortages  (i.e.  where  positions  are  difficult  to  fill,  based  on  the  conditions  being 
offered). This means that the externalisation of services across borders (with a general pattern 
of workers coming from low-wage countries towards high-wage countries) is a commonplace 
practice.  

The COVID-19 pandemic has undoubtedly exacerbated these labour shortages and the 
difficulties of recruiting and retaining workers, with hospitality businesses being forced to close, 
and many workers being laid off. Similarly, there was no longer a demand for intra-EU seasonal 
workers  in  the  sector.  The  result  of  this  were  severe  shortages  in  the  sector.  In  France, 
300 000 job vacancies were to be filled at the start of the 2021 season.425 In Austria, the 
number of employees in the tourism sub-sector fell from 230 000 in 2019 to 132 000 during 

421 Ibid. 
422 Eurostat, ‘Share of employees by economic activity and permanency of the job, EU, 2020’, available at: 

https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Tourism_industries_-
_employment&oldid=552036#In_2019.2C_the_tourism_industries_employed_over_12.5_million_people_in_the_EU.  

423 Eurofound, ‘Working conditions – the dark side of tourism’, 2012, available at: 

https://www.eurofound.europa.eu/publications/article/2012/working-conditions-the-dark-side-of-tourism.  

424 Eurostat, ‘Hourly labour cost (2016) and gross hourly earnings (2018), by economic activity, EU, (euro)’, available at: 

https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Tourism_industries_-
_employment&oldid=552036#In_2019.2C_the_tourism_industries_employed_over_12.5_million_people_in_the_EU.  

425 EFFAT, Position Paper, ‘Fight labour shortages in hospitality-tourism by improving the attractiveness of jobs’, 23 May 2022. 

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the  pandemic,  with  50 000  employees  missing  for  the  2021  winter  season  alone.426  A 
representative  from  the  Austrian  trade  union,  Vida,  mentioned  that  in  order  to  improve  the 
image of the sector, companies would need to ensure better salaries, more flexible working 
hours, more days off, as well as training and career progression opportunities.427 Otherwise, 
people will continue to switch sector. 

5.5.2.  Subcontracting 

There  is  not  a  great  deal  of  information  available  on the  incidence  of  subcontracting  in this 
sector, nor the extent to which cross-border workers are involved in such practices. However, 
the European Parliament notes in a 2017 report on the issue of subcontracting chains428 that 
the  phenomenon  of  subcontracting  chains  has  been  widely  reported  in  the  hotels 
sector, among others. Some data relating to individual Member States reflects this trend for 
some parts of the hotel, tourism and catering sector. For example, in Spain, it is reported that 
the sub-sector of outsourced catering services has increased its share of the overall industry, 
growing by 2.36% between 2013 and 2014.429 

From interviews carried out with sectoral stakeholders, there was a view from the European 
Federation of Food, Agriculture and Tourism Trade Unions (EFFAT) that subcontracting and 
the existence of subcontracting chains are a problematic issue for this sector. This takes 
the form of companies subcontracting certain types of services, such as hotels that engage in 
outsourcing housekeeping services, which largely entails the cleaning of rooms, and also the 
provision  of  catering  services.  Another  form  of  subcontracting  in  the  sector  involves  high 
levels of franchising, particularly in the fast-food part of the sector, and in the hotels sector.  

The view from EFFAT is that subcontracting can lead to a worsening of working conditions 
as this can blur the responsibility of employers. It can also undermine the rights of workers 
to information and consultation and to collective representation, as workers are likely to 
be working for smaller, subcontracted, companies. EFFAT also noted that subcontracting is 
often linked to higher pressure, with incidences of outsourced workers being given unrealistic 
targets, for example in terms of the number of hotel rooms that they have to clean in a day, 
and also incidences of relatively low pay and lower levels of working conditions compared to 
directly employed workers.  

The trade union view is that working conditions for subcontracted workers can be improved 
through collective agreement, and there is an example of a national collective agreement in 
the  catering  sector  in  Spain,430  which  is  reported  to  have  resulted  in  the  improvement  of 
working conditions for outsourced workers in this sector, particularly in the case of workers 
with few regular working hours. 

In order to analyse in more depth the situation of the contracting out of services in the context 
of the privatisation of many parts of public service sector, a two-year European project entitled 
Workers’ influence on outsourcing, tender processes and transfer of employment contracts: 
watch the gap! was carried out by EFFAT, ETF, EPSU, UNI Europa and Syndex, with the final 
report issued in February 2021.431 The aim of this project was to analyse the implementation 

426 Kurier, ‘Fachkräftemangel: Fünf Unternehmer erzählen, wie sie damit umgehen‘, 20 November 2021, available at: 

https://kurier.at/wirtschaft/karriere/fachkraeftemangel-fuenf-unternehmer-erzaehlen-wie-sie-damit-umgehen/401810884.  

427 Ibid. 
428 European Parliament, ‘Liability in subcontracting chains: National rules and the need for a European framework’, July 2017, 

available at: https://www.europarl.europa.eu/RegData/etudes/STUD/2017/596798/IPOL_STU(2017)596798_EN.pdf. 

429 R. Muñoz de Bustillo Llorente & F. Pinto Hernández, ‘Reducing precarious work in Europe through social dialogue. The case 

of Spain’, 2016, available at: https://documents.manchester.ac.uk/display.aspx?DocID=48965. 

430 Resolución de 24 de febrero de 2016, de la Dirección General de Empleo, por la que se registra y publica el Convenio 
colectivo estatal del sector laboral de restauración colectiva (BOE, 22/March/2016). Reported in: R. Muñoz de Bustillo 
Llorente & F. Pinto Hernández, ‘Reducing precarious work in Europe through social dialogue. The case of Spain’, 2016, 
available at: https://documents.manchester.ac.uk/display.aspx?DocID=48965.  

431 UNI Europa et al., ‘Workers’ influence on outsourcing, tender processes and transfer of employment contracts: watch the 
gap!’, February 2021, available at: https://www.etf-europe.org/wp-content/uploads/2021/04/Syndex-Report-EN-02-2021-
final_0.pdf.  

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of EU legislation with regard to workers’ rights in the context of transfers of undertakings in a 
range of sectors, including contract catering and cleaning and security services. One of the 
key conclusions of this project was that sub-contracting has increased significantly over 
the past two decades, and in the view of the researchers often at the expense of workers’ 
rights and jobs. EFFAT, EPSU, ETF and UNI Europa ask the European Commission to carry 
out  an  updated  impact  assessment  of  the  European  Directive  2001/23/EC  on  safeguarding 
employees’ rights in the event of transfers of undertakings in order to help European Sectoral 
social dialogue Committees in relevant sectors, including the hospitality and catering sectors, 
to address this issue in an efficient manner. 

5.5.3. 

Intra-EU seasonal workers 

As  with  temporary  cross-border  workers  employed  in  the  hotel,  tourism  and  catering  more 
generally,  the  specific  group  of  EU  citizens  living  in  one  Member  State  and  carrying  out 
seasonal  work  in  another  Member  State  (‘intra-EU  seasonal  workers’)  is  infrequently 
studied.432  When  it  is,  figures  are  usually  combined  with  those  for  the  agriculture  sector. 
However,  national  data  for  intra-EU  seasonal  workers  has  been  estimated  for  three  EU 
Member States in the accommodation and food sub-sector: 35 000 of these workers in 
Austria, 94 500 in Germany and 3 200 in the Netherlands.433 

In general terms, posting constitutes the exception rather than the rule among seasonal 
workers.434  In  the  accommodation  and  food  services  sub-sector,  data  from  PDs  A1  issued 
according to Article 12 indicates that in 2019, only Austria (2 406), Belgium (1 ,166) and France 
(1 024) sent more than 1 000 posted workers.435 However, data for several sending countries 
(DK,  DE,  EL,  ES,  IE,  IT)  is  not  available  for  this sector.  The main  receiving  countries  were 
Germany (1 455 workers), Italy (835) and Denmark (815).436 In total in 2019, there were only 
7 546 workers posted according to Article 12 in accommodation and food services (for 
the  Member  States  where  this  sectoral  information  was  available).  This  number  includes 
posted third-country nationals, the precise number of which it is not possible to determine from 
the available statistics.437 

Data for 2020 also indicates the number of persons, declarations and postings registered in 
the  national  declaration  tools  by  sector  of  activity.  For  accommodation  and  food  service 
activities,  France  reported  the  largest  share  of  each,  with  5  695  out  of  a  total  of  5  983 
persons across 9 Member States, 4 047 out of a total of 4 388 declarations across 13 Member 
States, and 10 595 postings out of a total of 11 881 posting across 12 Member States.438 

In the context of the COVID-19 pandemic, the European Commission published guidelines 
on  seasonal  workers  in  the  EU.439  In  order  to  protect  seasonal  workers,  the  guidelines 
stipulate  that  once  in  employment,  these  workers  are  “subject  to  the  laws  and  relevant 
collective agreements of the host Member State and must be treated the same as nationals 
as  regards  their  working  conditions  including  remuneration,  dismissal  and  occupational 
safety and health. They also have the right to access the same social and tax advantages as 

432 European Commission, DG EMPL, ‘Intra-EU Mobility of Seasonal Workers – Trends and Challenges’, March 2021, available 

at: https://ec.europa.eu/social/main.jsp?catId=738&langId=en&pubId=8400&. 

433 Ibid, p. 34. 
434 European Commission, DG EMPL, ‘Intra-EU Mobility of Seasonal Workers – Trends and Challenges’, March 2021, p. 25, 

available at: https://ec.europa.eu/social/main.jsp?catId=738&langId=en&pubId=8400&. 

435 Ibid, p. 84. 
436 Ibid, p. 83. 
437 Ibid, p. 17. 
438 European Commission, ‘Posting of workers, Collection of data from the prior declaration tools, Reference year 2020’, June 

2022. 

439 European Commission, Communication, ‘Guidelines on seasonal workers in the EU in the context of the COVID-19 

outbreak’, 16/07/2020, available at: https://ec.europa.eu/info/sites/default/files/guidelines_on_seasonal_workers_in_th 
e_eu_in_the_context_of_the_covid-19_outbreak_en.pdf.  

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nationals.”440  These  guidelines  represent  an  important  step  forward  in  the  protection  of  the 
rights of seasonal workers in the hotel, tourism and catering sector. 

However, one of the challenges of seasonal work in the hotel, tourism and catering sector is 
undeclared  work.  The  most  common  undeclared  practices  relate  to  unregistered  work, 
under-reported  working  hours,  underpayment,  withholding  wages  or 
improper 
deductions from wages for food, transport or accommodation.441 Again, data is very limited 
as to the extent of undeclared work in the sector, with estimates only being possible for two 
EU  Member  States.  In  Austria,  it  is  thought  that  an  additional  20%  of  the  35 000  intra-EU 
seasonal workers in the accommodation and food services sub-sector are undeclared (7 000 
workers),  while  in  Germany,  the  figure  stands  at  12 285  undeclared  workers  (an  additional 
13%).442 

Measures  are  being  taken  to  address  this  issue,  with  the  European  Platform  tackling 
undeclared work having recently organised a seminar on ‘Tackling undeclared work in the 
HORECA  sector’,443  to  explore  existing  practices,  tools  and  approaches  that  deal  with 
undeclared work. This involved labour and social security inspectorates, ministries of labour, 
European level and national social partners and representatives from EU agencies. 

Moreover, the Commission’s 2020 Guidelines on seasonal workers call on Member States to 
take necessary steps to tackle undeclared work of seasonal workers and to make extensive 
use  of  the  European  Platform  tackling  undeclared  work,  including  engaging  in  cross-border 
cooperation,  conducting  better  risk  analysis  for  more  effective  inspections,  and  also  taking 
preventative measures.444 In relation to the issue of decent housing conditions for seasonal 
workers,  the  Guidelines  acknowledge  that  while  “the  Seasonal  Workers  Directive  includes 
rules on accommodation [applicable to TCN  seasonal workers], and the revised PWD makes 
host country rules on the conditions of accommodation, where they exist, applicable to posted 
seasonal workers, there is no Union act in place to guarantee accommodation conditions 
for other seasonal workers.”445 

5.5.4.  TCNs in the sector 

As previously mentioned, it is very difficult to determine the number of TCNs active in the 
hotel,  tourism  and  catering  sector.  What  is  known,  however,  is  that  the  issues  faced  by 
many workers in the sector are exacerbated for TCNs. 

In  hotels,  tasks  undertaken  by  TCNs  are  often  cleaning  services  and  laundry,  mostly 
carried  out  by  female  workers.446  There  are  reports  of  exploitative  working  conditions:  long 
inappropriate 
hours, 
accommodation.447 An example of this is Ukrainian workers holding Polish visas, working on a 
seasonal  basis  in  Czech  hotels  with  payments  made  to  them  based  on  the  speed  of 

few  breaks,  a  high  workload,  no  safety 

instructions  and 

440 Ibid, p. 2. 
441 European Platform tackling undeclared work, ‘Platform seminar: Tackling undeclared work among seasonal (including 

mobile) workers: developments, trends and good practices’, Online seminar, 16 March 2021. 

442 European Commission, DG EMPL, ‘Intra-EU Mobility of Seasonal Workers – Trends and Challenges’, March 2021, p. 38, 

available at: https://ec.europa.eu/social/main.jsp?catId=738&langId=en&pubId=8400&. 

443 See: https://www.ela.europa.eu/en/events/platform-seminar-tackling-undeclared-work-horeca-sector.  
444 European Commission, Communication, ‘Guidelines on seasonal workers in the EU in the context of the COVID-19 

outbreak’, 16/07/2020, available at: https://ec.europa.eu/info/sites/default/files/guidelines_on_seasonal_wor 
kers_in_the_eu_in_the_context_of_the_covid-19_outbreak_en.pdf. 

445 Ibid. 
446 European Platform tackling undeclared work, ‘Counteracting undeclared work and labour exploitation of third-country national 

workers’, November 2020, p.39, available at: http://www.eurodetachement-
travail.eu/datas/files/EUR/UDW_and_labour_exploitation_among_TCN.PDF.  

447 Ibid. 

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cleaning.448 As in other sectors, TCNs are therefore particularly vulnerable to violations of 
working conditions due to concerns surrounding obtaining or retaining a visa. 

Moreover, Eurofound reports that “the fraudulent contracting of work in certain cases seems 
to significantly involve migrant workers, such as those involved in seasonal work in agriculture 
and tourism.”449 For example, the Belgian labour inspectorate has found that, while TCNs are 
mostly  found  in  very  small  scale  undertakings,  when  illegal  work  in  larger  scale 
undertakings occurs, it is often in the hotel sector, particularly the provision of cleaning 
services.450  In  the  experience  of  the  inspectorate,  it  is  most  common  for  TCNs  to  be 
employed  illegally  in  labour  situations  not  requiring  a  high  level  of  qualification, 
including in restaurants, night shops and cleaning services.451  

In Italy, the ‘quota system’452 allowing non-EU citizens to enter Italy permits entry according to 
single entry work permits (only in the tourism, construction and transport sectors), seasonal 
work permits (in only tourism and agriculture) and permits for self-employment.453 One of the 
issues  with  this  system  is  that  the  official  process  requires  a  work  permit  application  to  be 
submitted by an Italian employer to ‘the One-Stop-Shop for Immigration in the Prefettura where 
the job will take place’454 concerning an (unknown) TCN while the individual is still in his or her 
home country. This requirement is “unrealistic and not respected”,455 leading to a situation 
whereby an individual has to come from a third country to Italy on a tourist visa, (unofficially) 
obtain a work permit there, return to their country of origin and then be officially granted the 
permit once they are in their home country.456  

The seasonal work permit is valid for between 20 days and nine months, depending on the 
specified duration of employment.457 However, a second issue is that, unlike the single entry 
work permit, if a TCN holds a seasonal work permit in Italy and loses the job, the TCN also 
loses the right to reside regularly and temporarily, and is obliged to leave the country.458 This 
leads to a situation whereby TCNs tend not to denounce any violation of their working or 
OSH rights, and accept dangerous working conditions for fear of bringing attention to 
themselves and losing their job.459 

5.5.5.  How temporary cross-border mobility functions in the 

hotel-tourism-catering sector 

More than for the other sectors examined in detail in this report, there is not a great deal of 
information available on temporary cross-border workers employed in the hotel, tourism and 
catering sector, whether it be the extent of subcontracting that takes place, the number of intra-
EU seasonal workers, or the prevalence of TCNs employed in the sector. 

448 M. Trčka et al., ‘Employment of Ukrainian Workers with Polish Visas in the Czech Republic: From the Main Patterns of 
Labour Exploitation towards Points of Intervention’, 2018, pp. 27-28, available at: https://www.solidar.org/system/down 
loads/attachments/000/000/841/original/Employment_of_Ukrainian_Workers_through_Polish_visas.pdf?1542195590.  

449 Eurofound, ‘Exploring the fraudulent contracting of work in the European Union’, 2016, p. 12, available at: 

https://www.eurofound.europa.eu/sites/default/files/ef_publication/field_ef_document/ef1639en.pdf.  

450 European Migration Network, ‘Illegal employment of third country nationals in Belgium’, July 2017, p. 16, available at: https: 
//emnbelgium.be/sites/default/files/publications/FINAL%20BE%20study%20Illegal%20Employment%20of%20TCNs_1.pdf.  

451 Ibid. 
452 See: https://integrazionemigranti.gov.it/en-gb/Altre-info/e/4/o/6///id/7/Recruitment-of-foreign-workers-resident-abroad.  
453 ETUI, Seminar on ‘Challenges associated with short-term labour mobility: third-country nationals, posted workers, seasonal 

workers, and refugees’, 13-14th June 2022.  

454 See: https://immigration-portal.ec.europa.eu/italy-seasonal-

worker_en#:~:text=Your%20future%20employer%20must%20submit,quota%20for%20non%2DEU%20workers. 

455 Ibid. 
456 Ibid. 
457 See: https://ec.europa.eu/immigration/italy-seasonal-worker_en.  
458 ETUI, Seminar on ‘Challenges associated with short-term labour mobility: third-country nationals, posted workers, seasonal 

workers, and refugees’, 13-14th June 2022. 

459 ILO, ‘Towards a fair deal for migrant workers in the global economy’, 92nd session, 2004, para. 208, available at: 

https://www.ilo.org/public/english/standards/relm/ilc/ilc92/pdf/rep-vi.pdf.  

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That said, several challenges can be identified, notably that subcontracting and the existence 
of  subcontracting  chains  are  a  problematic  issue  for  this  sector,  that  undeclared  work  is  a 
problem  that  is  being  addressed,  and  that  TCNs  are  especially  vulnerable  to  the  already 
challenging working conditions in the sector, including long, atypical hours and below average 
wages.  These  generally  poor  working  conditions  mean  that  few  people  with  alternative 
employment opportunities are willing to work in the sector. For this reason, it is of fundamental 
importance to ensure that all jobs in the sector provide decent working conditions, wages that 
workers can live on, adequate social protection, and the respect of workers’ rights.460 

460 EFFAT, Position Paper, ‘Fight labour shortages in hospitality-tourism by improving the attractiveness of jobs’, 23 May 2022. 

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6.  Typically problematic situations related to the 

working conditions of posted workers and other 
temporary cross-border workers 

This section complements the sectoral and legal analysis in Sections 4 and 5 by discussing 
8  case  studies  of  typically  problematic  situations  involving  workers  in  posting  and  non-
posting situations. These include: 1) the role of temporary work agencies and other labour 
market  intermediaries  in  temporary  cross-border  mobility;  2)  non-payment  and  under-
payment; 3) seasonal workers in agriculture; 4) bogus self-employment; 5) posted TCNs in 
the construction sector; 6) key types of occupational safety and health (OSH) violations and 
enforcement  challenges;  7)  the  role  of  letterbox  companies  in  complex  subcontracting 
chains; and 8) the situation of live-in carers. 

6.1.  Case study 1: The role of temporary work agencies 

and labour market intermediaries in temporary cross-
border mobility: key legal and enforcement 
challenges 

6.1.1. 

Introduction 

One  of  the  study’s  key  objectives  is  to  analyse  the  situation  of  cross-border  workers  in 
posting  and  non-posting  situations  involving  temporary  work  agencies  and  other  labour 
market intermediaries.  

Agency  work  can  play  a  role  in  reducing  unemployment,  supporting  labour  market 
transitions, meeting flexibility needs for employers and workers alike, and matching demand 
and supply in certain segments of the labour market and across borders within the EU. In 
certain  conditions,  it  can  provide  a  stepping-stone  type  of  job  experience  that  enables 
access to the labour market and further transitions into permanent employment. Existing 
research indicates this does not tend to happen, however, but also emphasises that not all 
workers  are  looking  to  leave  temporary  agency  work,  due  to  the  flexibility  it  offers 
(notwithstanding limitations to job security).461 National legislation in some Member States 
does  allow  the  possibility  for  temporary  agency  workers  to  enter  into  permanent 
employment  relationships  with  temporary  work  agencies,  however,  which  may  support 
transitions into permanent employment.  

Despite the positive role that temporary work agencies and labour market intermediaries 
can play, there are also problematic issues linked to their involvement in cross-border work 
across  key  sectors  and  Member  States.  While  the  amended  PWD  defined  several  new 
provisions on posted temporary agency work (in essence, to ensure equal treatment with 
local temporary agency workers) there is a real risk that these are not applied in practice.  

Complementing the analysis in the report, this case study assesses the role of temporary 
work agencies and labour market intermediaries in problematic situations involving different 
types of temporary cross-border mobility, discusses enablers of this phenomenon and the 

461 S. Fuller and N. Stecy-Hildebrandt, ‘Career pathways for temporary workers: exploring heterogeneous mobility dynamics 
with sequence  analysis’,  Social  Science  Research,  2015,  50:  76–99;  O.  Reichenberg  and  T. Berglund,  ‘Stepping  up  or 
stepping  down?:  the  earnings  differences  associated  with  Swedish  temporary  workers’  employment  sequences',  Social 
Science Research, 2019, 82: 126–36. 

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key types of legal and enforcement challenges, and reflects on further actions to ensure 
improvements in the situation of cross-border workers. 

6.1.2.  Overview  

Agency work is a complex phenomenon, as the regulations governing it, its share and role 
in  different  sectors  of  the  economy,  its  characteristics,  and  the  labour  market  context  in 
which it operates are highly diverse across the EU. The challenges in regulating this field at 
the  EU  level  have  been reflected  in the  lengthy policy  debates that  eventually  led  to  the 
adoption of the EU Directive on Temporary Agency Work (2008/104/EC).462 The Directive 
sets out a framework applicable to the working conditions of temporary agency workers and 
aims to guarantee a minimum level of protection. It also aims to contribute to job creation 
and to participation and integration in the labour market (Article 2). 

The  Directive  on  Temporary  Agency  Work  defines  temporary  work  agencies  as 
employers:  they  are  “any  natural  or  legal  person  who,  in  compliance  with  national  law, 
concludes  contracts  of  employment  or  employment  relationships  with  temporary  agency 
workers in order to assign them to user undertakings to work there temporarily under their 
supervision  and  direction”  (Article  3.1.b).  In  cases  where  they  do  not  employ  workers 
directly, agencies are referred to as labour market intermediaries at EU level. In reality, 
however, the same agency can be a temporary work agency as per the definition included 
in the Temporary Agency Work Directive, as well as a labour market intermediary, in cases 
in  which  it  only  provides  placement  services  for  employers,  without  establishing  an 
employment contract/ relationship with the workers.  

The  situation  is  even  more  complex  when  considering  that  despite  the  existing  EU-level 
legal  definition  included  in  the  Temporary  Agency  Work  Directive,  in  practice  across  the 
Member  States  there  are  many  terms  used  to  refer  to  temporary  work  services  and  the 
respective agencies/ intermediaries that provide them. There are also many types of labour 
intermediaries. In the literature as well, one of the most common terms used to generally 
discuss  services  that  intermediate  between  user  undertakings  (clients)  and  workers  is 
‘temporary work agencies’ (although not necessarily as per the definition in the Directive), 
or ‘temporary employment agencies’. In many cases when these situations are discussed, 
it is not clear whether these agencies are merely acting as intermediaries or establishing 
direct employment contracts/ relationships with the workers.  

Temporary  cross-border  work  within  the  EU  has  increased  over  the  past  two 
decades,  along  with  the  role  of  temporary  work  agencies  in  the  posting  and 
placement of cross-border workers. The revised PWD463 – among other changes – aims 
to  address  challenges  related  to  the  treatment  of  temporary  agency  workers  in  posting 
situations:  it  states  that  the  same  terms  and  conditions  that  apply  to  temporary  workers 
hired in the country where the work is conducted should also apply to posted workers. These 
changes are recent, and the evidence of their impact is therefore limited.  

Due to the Temporary Work Agency Directive and the PWD, the fact that temporary work 
agencies establish direct employment relationships with workers has – in theory – 
an impact on their working conditions, given that the agencies are subject to the same 
obligations  as  other  employers  in  ensuring  the  equal  treatment  of  temporary  agency 
workers (including in cross-border situations). The directive (Article 5.3) also allows Member 
States  to  authorise  derogations  to  this  principle  via  collective  bargaining.  Ten  Member 
States (AT, BG, DK, FI, DE, HU, IE, IT, the NL and SE) have adopted provisions allowing 

462 See: https://ec.europa.eu/social/main.jsp?catId=706&langId=en&intPageId=207 and https://eur-lex.europa.eu/legal-

content/EN/TXT/HTML/?uri=CELEX:32008L0104&from=EN.  

463 Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018 amending Directive 96/71/EC 
concerning the posting of workers in the framework of the provision of services, available at: https://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:32018L0957&from=EN.  

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collective labour agreements deviating from equal treatment of temporary agency workers. 
Only national provisions in Austria, Ireland and Sweden refer to the need for these collective 
agreements to be appropriately balanced to ensure that they do not prejudice the overall 
protection of temporary agency workers. And in Denmark such overall protection has been 
granted by case law. While temporary work agencies are bound by the rules established in 
the  Temporary  Work  Agency  Directive  and  the  PWD,  in  the  case  of  workers  recruited 
through labour market intermediaries, working conditions may be less favourable both in 
theory and in practice.  

The  evidence  is,  however,  limited  as  to  the  extent  of  the  impact  of  these  legal 
provisions  –  alongside  national  regulations  –  and  whether  they  offer  the  intended 
protection for workers. The challenges in understanding the extent and range of problems 
that affect the working conditions of temporary cross-border workers are compounded by 
the  lack  of  systematic  data  on  the  infringements  for  which  temporary  work  agencies  (as 
employers) are responsible, relative to those committed by labour market intermediaries; 
as well as the often reported lack of awareness of workers about their contractual conditions 
and a clear understanding of who they enter into an employment relationship with.  

The challenges involved in understanding the functioning of temporary agency work, as 
well  as  its  benefits  and problematic  aspects  increase  in  a  cross-border  work  context. 
Agency work involves a three-sided relationship between the worker, the agency and the 
company  for  which  the  work  is  conducted.  On  the  one  hand,  there  is  an  employment 
relationship (the temporary agency worker and the agency) and, on the other hand, there 
is  a  commercial  relationship  (between  the  temporary  work  agency  and  the  user 
undertaking). In  cases  involving  subcontracting chains, there  are more than  three  actors 
involved, which adds further uncertainty about who is responsible for ensuring that workers’ 
rights are protected. In a cross-border setting, the actors involved in recruiting and using 
workers’ services can often be in different countries (sometimes more than two) and operate 
under complex legal systems.  

Temporary  work  agencies  are  also  an  important  intermediary  in  placing  other  types  of 
temporary  cross-border  workers  (e.g.  seasonal  workers),  but  also  in  recruiting  self-
employed  people  working  in  sectors  such  as  live-in  care.  In  cross  border  situations 
concerning posting and non-posting situations alike, the involvement of temporary work 
agencies has often been linked to patterns of circumvention of relevant employment 
and/or social security legislation, which result in violations of workers’ rights. The 
role of temporary work agencies (and other labour market intermediaries) thus remains a 
matter of concern in cross-border work contexts.  

A  complex  legal  system  regulating  temporary  agency  work  in  different  countries 
adds to existing challenges in enforcement, as regulations are often difficult to navigate 
for  businesses  and  workers,  but  also  paradoxically  appear  to  enable  loopholes  to 
circumvent them.  

Posted  agency  workers  are  sent  to  carry  out  work  in  the  context  of  a  contract  of 
services  with  a  temporary  work  agency  established  in  one  Member  State  on  a 
temporary basis, to a company (“user undertaking”) that is established or operating 
in  another  Member  State.  The  workers  are  therefore  posted  by  the  temporary  work 
agency, with which there is a direct employment relationship, and the agency should comply 
with  the  provisions  included  in  the revised  PWD. In  chain  posting,  further  complexity  is 
added. In such situations, a temporary work agency established in one Member State posts 
workers  to  companies  that  use  the  workers’  services  in  another  Member  State  (a 
commercial relationship is established between the temporary work agency and the user 
undertaking in this case). But these companies can further send the same workers to yet 
another Member State (a third one) through a service contract.  

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An example of how temporary agency posting works is the following: a temporary work 
agency established in one Member State posts workers to a second Member State, but the 
company that uses the workers’ services is actually established in a third Member State.  
Even in such cases, however, it is the temporary work agency in the sending country that 
is responsible for posting and the obligations set out in the revised PWD. The rights that 
apply  in  theory  are  those  which  are  more  favourable  to  the  workers  (either  in  the  initial 
country  of  posting,  or  in  the  second  one).  Certain  practices,  however,  may  result  in 
situations  where  the  least  favourable  rights  are  applied  to  the  workers  in  reality.  This 
outcome may be driven by actual intention to circumvent the legal regulations, but may also 
be triggered by the lack of or limited awareness of the temporary work agencies and the 
user undertaking(s) about the relevant rules that apply in different countries, particularly in 
situations where sectoral and/or regional collective agreements are also applicable.  

temporary  work  agencies  and  other 

In  non-posting  situations, 
labour  market 
intermediaries are one of the key intermediaries between labour demand and supply. They 
have  an  important  role  in  recruiting  and  placing  seasonal workers  in  the  agriculture 
and  horticulture  sector,  as  well  as  in  the  live-in  care  sector.  These  sectors  are  often 
affected by in-country labour and/or skills shortages across the EU, which drives the need 
to recruit from abroad (either from other EU Member States, or from third countries). Since 
the need for such workers may be seasonal, the reliance on temporary work agencies is 
further increased due to the occasional yet recurrent need for these skills, which supports 
employers’ need for flexible work and enables costs to be cut.464   

6.1.3.  Key problematic aspects 

Data  about  infringements  involving  temporary  work  agencies  and  other  labour  market 
intermediaries  is  not  readily  available,  but  the  existing  evidence  points  consistently 
towards  some  recurrent  problematic  situations.  These  are  discussed  below  and  include 
various types of legal and enforcement issues that result in working conditions violations 
with  serious  implications  for  temporary  cross-border  agency  workers,  in  relation  to 
guaranteeing equal pay and working conditions.  

These problematic areas are recurrently encountered in specific economic sectors 
(e.g.,  construction,  live-in  care,  agriculture,  the  meat  sector,  logistics,  and  other  service 
sectors) and primarily in relation to low- to middle-skilled jobs. These situations tend 
to affect cross-border workers from EU Member States in Central-Eastern Europe and 
TCNs  the  most.  These  groups  are  over-represented  (relative  to  EU  workers  from  older 
Member States in the West, North and South of Europe) in low- and medium-skilled jobs in 
the sectors mentioned above.  

The  main  drivers  include:  the  structure,  characteristics  and  labour/skills  needs  of  the 
sectors themselves; national regulatory frameworks that encourage the use of temporary 
agency work by being permissive as regards requirements to set up these agencies; the 
blurred  boundaries  that  characterise  employment  relationships  in  which  labour  market 
intermediaries are involved in cross-border work; cost-cutting strategies; as well as a weak 
bargaining position of the (temporary cross-border) workers relative to their employers.  

The presence of subcontracting chains is a common indicator of situations in which 
infringements  may  occur  in  temporary  cross-border  work,  as  the  complexity  of 
employment  relationships  facilitates  non-compliance  with  regulations.  The  incentives  for 
is  propelled  by  sectoral  structures  and 
behaviours 
characteristics,  which  drive  competitive  business  strategies  to  enhance  profits,  reduce 
liability,  and  cut  costs  linked  to  taxes  and  social  security  payments.  These  problematic 
situations  often  involve  both  larger  and  smaller  economic  actors.  Temporary  work 

that  circumvent  regulations 

464 See: https://www.weceurope.org/uploads/2019/07/2013_WECEU_Study-TAW-Role-Labour-Transitions.pdf.  

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agencies  and  other  intermediaries  are  often  involved  in  subcontracting  chains,  and  their 
purpose  is  to  recruit  workers  for  the  users  of  their  services,  while  not  having  their  own 
activities in the respective sectors. The remaining differences between economic contexts 
and the cost of labour across the Member States contribute to maintaining this system, as 
well as the limited enforcement capacities of national authorities. 

In these situations, temporary work agencies and other labour market intermediaries 
play a key role in the recruitment, placement and posting of temporary cross-border 
workers,  supporting  quicker  demand-supply  matching.  The  characteristics  of  (long) 
subcontracting  systems  enable  opportunities  for  non-compliance  with  the  law,  for 
operations  to  be  conducted  under  the  radar  and  not  picked  up  through  monitoring 
mechanisms, and for breaches of employment terms and conditions to occur.  

6.1.3.1.  Key legal challenges  

Member  States  implement  rules  applicable  to  workers  posted  by  temporary  work 
agencies  which  are  consistent  with  EU  legislation.  No  significant  differences  in  the 
protection of posted temporary agency workers and local temporary workers were found in 
the national legal provisions assessed for this study. Notwithstanding, the regulatory system 
around  temporary  (cross-border)  agency  work  and  its  implementation  is  highly  complex, 
and  enforcement  is  often  problematic.  This  is  augmented  by  the  wide  range  of  types  of 
labour  market  intermediaries  that  operate  across  the  Member  States  and  the  resulting 
difficulties in monitoring their activities and obtaining an accurate understanding of which 
types  of  intermediaries  are  more  prone  to  bypassing  the  rules.  This  situation  creates 
opportunities for agencies/intermediaries to take advantage of any legal ambiguities, as well 
as  the  limited  oversight  and  reduced  enforcement  capacities  available  in  the  Member 
States.  

Rules applicable to posted agency workers are different across the Member States 
and subject to national regulatory frameworks. In some Member States, the same rules 
as  for  other  posted  workers  apply  (e.g.,  EE,  MT),  whilst  in  many  other  Member  States 
temporary agency work is regulated by specific legislative items (e.g., AT, CY, DE, DK, EL, 
ES,  FI,  HR,  IE,  IT,  NL,  PL,  PT,  RO,  SE,  SI).  In  some  other  cases,  the  relevant  legal 
provisions are part of the labour code (e.g., BG, CZ, DE, FR, HU, LT, LU, LV, NL, PT, RO, 
SK), often in addition to specific legislation. In several other Member States (e.g., AT, EE, 
DE, PL, SE), civil law contracts are used to establish employment relationships between 
posted workers and temporary work agencies. This has been problematic in some situations 
because civil law contracts do not offer the standard protection against dismissals or offer 
paid leave.465  

In some countries, the conditions for the establishment of a temporary work agency 
and other labour market intermediaries are permissive, which enables them to be easily 
set up and to operate. For instance, temporary work agencies can operate in Poland on the 
condition that they are registered as temporary work agencies. They can be established by 
anyone, provided that they do not have financial debts, have not been punished for labour 
crimes and have not had any previous companies which have been liquidated or declared 
bankrupt.  

An  appropriate  level  of  sanctions  and  enhanced  labour  inspection  activities  can 
effectively incentivise compliance and dissuade illicit behaviour. Penalties in the form 
of administrative or criminal sanctions in the case of infringements of regulations linked 
to  temporary  cross-border  mobility  (and  affecting  infringements  carried  out  by  temporary 
work  agencies)  exist  across  the  Member  States.  Penalty  levels  vary  depending  on  the 
country and the type of infringement: there tend to be low levels of financial sanctions for 

465 According to desk research conducted for the study, confirmed by the consulted legal experts.  

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minor infringements, but sanctions can reach significant levels for more serious breaches. 
For example, in Poland, fines can be as low as EUR 200 – 400 but a higher sanction is 
possible in principle (up EUR 6400) if applied through the courts. In Germany, fines can be 
much  higher  and  reach  up  to  EUR  500,000  (e.g.,  violations  of  the  Minimum  Wage  Act 
(MiLoG), the Posted Workers Act (AEntG), the Temporary Employment Act (AÜG) and the 
Act on Securing Workers’ Rights in the Meat Industry (GSA Fleisch)).466  

Sanctions  and  fines  have  often  been  criticised  as  too  low  to  make  a  difference.467 
However, administrative penalties and sanctions that are too high may not be considered 
proportional  to  the  infringement,  as  illustrated  by  a  case  law  example  (C-205/20 
Bezirkshauptmannschaft  Hartberg-Fürstenfeld).468  A  recent  example  which  shows  the 
extent  of  sanctions  that  can  be  applied  in  cases  of  infringement,  however,  is  the  Terra 
Fecundis case. Severe financial sanctions (over 80 million euros in damages) and prison 
sentences were imposed by the Marseille court (in June 2022) on the Spanish temporary 
work  agency  Terra  Fecundis,  for  the  illegal  posting  and  undeclared  work  on  agricultural 
farms in France of over 25,000 workers (most TCNs from Ecuador) and the non-payment 
of social security contributions during 2012-2015.469  

The revised PWD and the Enforcement Directive (Article 12) aim to create the conditions 
for stronger cross-border enforcement of financial and administrative penalties. Evidence 
about the impact of the revised provisions is limited to date, but the examples identified in 
this study indicate that significant challenges remain. Many are linked to the enforcement 
of existing legislation, but they may also indicate a need for legal actions to ensure that 
administrative  and  criminal  sanctions  are  indeed  adequate  and  proportional.  Some 
significant barriers to understanding whether the existing penalties and sanctions in the 
law are sufficient to dissuade unlawful practices include:  

• 

• 

• 

• 

limited data about the type of penalties applied, in which sectors, and for what type 
of workers;  

the  low  share  of  labour  inspections  conducted to  control  compliance  with  posting 
regulations  and  others  affecting  temporary  cross-border  workers  out  of  the  total 
inspections  conducted  to  check  compliance  with  employment  and  social  security 
law;  

the  financial  value  of  penalties  that  are  applied  in  relation  to  infringements  (and 
whether they can be considered proportionate but also incentivise compliance);  

the difficulty of enforcing sanctions given the often volatile functioning of (smaller) 
temporary work agencies and other labour market intermediaries, which can be set 
up, dismantled and then set up again elsewhere relatively easily. 

As  part  of  the  wider  contextual  factors  that  contribute  to  the  increasing  demand  for 
temporary cross-border workers and the role of temporary work agencies and other labour 
market  intermediaries  in  their  recruitment  and  placement,  there  are  also  other  policies, 
measures and provisions that can impact the use of temporary cross-border agency 
work  and  may  contribute  to  problematic  situations  directly  or  indirectly.  These  are 

466 Information based on desk research conducted by legal experts in the Member States.   
467 Stakeholder interviews with representatives of trade unions, conducted June 2022. 
468 In this case, a fine of EUR 54,000 had been issued by an Austrian administrative authority on a company based in Slovakia 
that  had  posted  workers  to  Austria,  for  failure  to  comply  with  obligations  included  in  the  Austrian  employment  law, 
specifically in relation to wage and social security records. The Court of Justice of the European Union decided in June 
2022  that  in  conformity  with  EU  law,  administrative  penalties  for  non-compliance  should  be  proportional.  See 
https://curia.europa.eu/jcms/upload/docs/application/pdf/2022-03/cp220043en.pdf.  

469  S.  Robin-Olivier,  ‘Posting  of  workers  in  the  European  Union:  an  exploitative  labour  system’,  European  Law  Open, 
https://www.cambridge.org/core/journals/european-law-

Press, 

Cambridge  University 
open/article/posting-of-workers-in-the-european-union-an-exploitative-labour-
system/6E5C77B02FD2A7841FADECCFC05A3CC6#fn9.  

available 

2022, 

at 

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discussed in detail elsewhere in this study (see for instance Section 5.2 on live-in care), in 
particular  the  references  to  Germany’s  care  allowance  (Pflegegeld)  and  Austria’s  Home 
Care  Act470  and  how  labour  market  intermediaries  consistently  recruit  and  place  self-
employed live-in carers in the patients’ homes, playing an active and constant role in the 
relationship between the workers and the clients.  

Recurrent  examples  of  practices involving labour  market  intermediaries which  are 
linked to violations of working conditions indicate that the legal regimes that are in 
place  may  not  be  sufficient  in  preventing  such  situations.  There  are  certainly  many 
examples of situations in which posting activities or the placement of other temporary cross-
border workers are within legal bounds and do not lead to violations of rights or working 
conditions. It is not possible to estimate the share of posting and other temporary cross-
border work that results in infringements, but it is certain that there is a variety of practices 
and  business  models  that  systematically  circumvent  regulations  and  expose  workers  (in 
particular  those  in  low-skilled  work  in  labour-intensive  sectors)  to  precarious  situations. 
Equally,  as  shown  in  other  sections  of  this  report,  organisations  representing  employers 
and  temporary  work  agencies  emphasise  that  the  complexity  of  the  legal  system 
regulating  temporary  cross-border  work  may  lead  to  inadvertent  non-compliance. 
This is particularly the case of smaller companies and temporary work agencies that do not 
have branches in more than one Member State and thus cannot access legal information 
about other countries’ legislation internally, as would be the case with larger multinational 
companies or agencies.471 This does not diminish the negative impact of such practices on 
working  conditions,  but  can  be  addressed  through  tailored  and  more  widespread  and 
effective efforts to enforce the existing legislation.  

These practices were widespread before the adoption of the PWD. The recent nature of the 
revised  Directive  (which  entered  into  force  on  30  July  2020)  makes  its  impact  to  date  is 
difficult to estimate, but the research conducted for this study indicates that at least 
some of the incentives that contributed to the development of these practices remain 
and are strongly linked to the functioning of the key sectors where workers in posting and 
non-posting  situations  work  in  low-  and  medium-skilled  jobs,  the  high  demand  for 
intermediaries  such  as  temporary  work  agencies,  the  increasing  demand  for  temporary 
work,  and  the  pull  incentives  for  workers  from  countries  with  lower  wages  to  engage  in 
temporary cross-border work.   

6.1.3.2.  Key enforcement challenges  

There are several enforcement challenges related to temporary cross-border work where 
temporary work agencies and other labour market intermediaries are involved. Their main 
driving factor is overall the difficulty to identify and establish infringements, e.g. in 
cases when fraudulent practices exploit differences and/or weaknesses in legislation (e.g., 
choosing  the  least  favourable  legal  regime  for  the  worker  if  it  is  more  favourable  for  the 
employers) and in national and cross-border data exchanges and enforcement frameworks.  

•  Monitoring  and  labour  inspections  related  to  temporary  work  through 

agencies and other labour market intermediaries 

Monitoring the activities of temporary work agencies and other labour market intermediaries 
– in general and in a cross-border context – is a difficult endeavour. The gaps in knowledge 
about the inner workings of the system creates huge challenges to tackling the root causes 
of the observed problems. The complex employment relationships that are usually formed 
when  temporary  work  agencies  and  labour  market  intermediaries  are  involved  make 
monitoring and enforcement even harder, especially as labour inspectorates have limited 

470 Home Care Act, Federal Law Gazette I No. 33/2007, available at: 

https://www.ris.bka.gv.at/Dokumente/BgblAuth/BGBLA_2007_I_33/BGBLA_2007_I_33.pdfsig.  

471 Interview conducted for this study with an organisation representing temporary work agencies, February 2023. 

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mandates and capacity to conduct inspections, and in some cases only do so when a 
complaint  is  lodged.  In  cross-border  work  contexts,  inspections  are  also  often  limited  to 
checking administrative requirements (e.g., the posting notification) and are only carried out 
on the territory of one Member States, rather than taking a cross-border approach.  

In  some  sectors  which  also  often  experience  infringements,  carrying  out  workplace 
inspections is challenging due to limited access to premises, the dispersion of the 
workforce and the mobile nature of the workers (e.g. in the live-in care, construction and 
agriculture  sectors).  Labour  inspectors  also  face  communication  issues,  as  many  cross-
border workers do not speak the local language. This renders monitoring and ensuring the 
enforcement  of  existing  legal  provisions  very  difficult.472  Notwithstanding,  ineffective 
monitoring  and  enforcement of  relevant  regulations  result  in  recurrent  infringements473 
and favour the further development of practices that reinforce the status quo. In Spain, for 
example, a key barrier to effective inspections is the lack of a national database, as well 
as differences between the posting period stated in the notification document and 
the actual period of posting. Many of the inspections carried out on posted workers are 
unsuccessful (at a rate of 5 unsuccessful inspections out of every 6 inspections) for these 
reasons.474 

Complex  subcontracting  networks  make  enforcement  of  regulations  even  harder  in 
cross-border situations.475 Given the often long chains of interconnected companies and 
temporary work agencies or other labour market intermediaries, responsibility and 
liability are blurred and responsibilities are passed to other actors in the chain, which 
can often be based abroad.476  

Examples from the Member States illustrate the potential size of the problem. In Belgium, 
for example, in 2020, infringements were identified in half of the inspections carried out in 
relation  to  cross-border  social  fraud,  showing  an  increase  of  the  infringement  rate  of  14 
percentage points compared to 2019.477 In 2021, the rate increased further (infringements 
were  found  in  66%  of  the  inspections  conducted)  and  shows  that  the  problem  is  more 
extensive in a cross-border context than in the national context.478 Extensive violations were 
also  found  in  inspections  focusing  on  labour  law  aspects  related  to  posting  (40%  of 
inspections in 2019).479  

In  Poland,  in  2018,  the  Labour  Inspectorate  identified  irregularities  in  83%  of  the  360 
temporary work agencies that were inspected, including the fact that some were operating 
outside  the  law,  missing  written  agreements  between  them  and  the  user  undertaking 
relating  to  the  employment  conditions  of  the  workers,  the  payment  of  remuneration,  and 
undeclared work.480  

472 L. Maihuber & B. Allinger, ‘Transnationale Betreuungs- und Pflegekräfte in euorpäischen Privathaushalten‘, 2021, available 
https://wien.arbeiterkammer.at/service/studienundzeitschriften/studien/gesundheitundpflege/Transnationale_Betreu 

at: 
ungskraefte_20210420.pdf.  

473 Lillie and Wagner 2015; Weltin 2020. 
474 Interview with a representative of a public authority in Spain conducting activities relevant to identifying infringements of 

posting regulations, 2022.  

475 Ibid.  
476 Houwerzijl and Peters, 2008. 
477 F. de Wispelaere et al.,  ‘Posted workers from and to Belgium: Facts and Figures’, POSTING.STAT, 2022, available at: 
https://lirias.kuleuven.be/retrieve/656943#:~:text=Based%20on%20recent%20figures%20published,national%20dimensio
n%20of%20social%20fraud. 

Brussels, 

478 SIOD-SIRS (Belgium), ‘Jaarverslag sociale fraudebestrijding 2021 – Rapport annuel Lutte contre la fraude sociale 2021’, 
SIOD-SIRS, 
https://www.siod.belgie.be/sites/default/files/2022-
02/Jaarverslag%20Sociale%20Fraudebestrijding%202021%20-%20Summary%20_S.pdf ; ‘Annual  report  of the  Direction 
générale Contrôle des lois sociales du Service public fédéral Emploi in Belgium’, 2018, Travail et Concertation Sociale, 
available 
https://emploi.belgique.be/sites/default/files/content/publications/FR/Rapport%20annuel%202018.pdf; 
Strategic  plan  2022  –  2025  (Belgium),  ‘Lutte contre  la fraude  sociale  et  le  dumping  social  -  Gouvernement  De  Croo  I’, 
available at https://www.siod.belgie.be/sites/default/files/2022-01/SIOD_StrategischPlan_2022_25_FR_0.pdf  

available 

2022, 

at 

at 

479 F. de Wispelaere et al.,  ‘Posted workers from and to Belgium: Facts and Figures’. 
480 I. Pavlovaite at al., Tools and approaches to tackle fraudulent temporary agency work, prompting undeclared work, 

European Platform tackling undeclared work, 2021, pp. 26-27, at 
https://ec.europa.eu/social/BlobServlet?docId=23627&langId=en 

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Inspections to detect abusive working conditions for posted and other cross-border 
workers effectively facilitate the identification of violations and can take measures to 
remove them. For example, in Belgium, as part of actions days against labour exploitation 
organised with the support of Europol in May and June 2021, the focus was on detecting 
labour exploitation among posted TCNs in the construction sector. The Inspectorate of the 
National Social Security Office (NSSO) organised these actions, in close cooperation with 
the specialised unit from the Directorate-General for Supervision of Social Laws.481 Similar 
activities, if organised frequently and systematically across the EU, and targeting all types 
of cross-border work, would support counteracting similar practices.  

Preventive  inspections  would  also  support  the  tackling  of  infringements  and 
disincentivise companies from engaging in illicit practices, but they are not common 
in  the  Member  States.  Staff  shortages  are  once  again  highlighted  as  one  of  the  key 
reasons why labour inspectorates focus on reactive rather than preventive inspections. In 
Slovenia, for example, the labour inspectorate is divided into the health, labour, and social 
departments. Around 40 inspectors are working on posting, making it difficult to carry out 
preventive  inspections  (in  addition  to  inspection  carried  out  in  cases  of  reported 
infringements).482 

The box below outlines some examples of challenges in enforcing existing regulations.  

Box 21. Challenges in tackling infringements involving temporary work agencies 
and other labour market intermediaries in cross-border contexts 

In Belgium, in order to post agency workers, a foreign temporary work agency should 
have accreditation from the Belgian region in which the work is performed. There might 
nevertheless  be  a  high  number  of  foreign  temporary  work  agencies  without  an 
accreditation. Since the end of 2017, the ‘accreditation number’ of the foreign temporary 
work  agencies  is  requested  in  LIMOSA    and  thus  only  agency  workers  posted  by  a 
foreign  temporary  employment  agency  with  an  authorisation  are  reported  under  this 
category.  The  number  of  reported  posted  agency  workers  was  much  higher  before 
2018, which may indicate that many of these ‘agency workers’ were posted by foreign 
temporary work agencies without an authorisation (and many could continue to be).   

In Germany, following debates around labour inspections and the need to improve their 
effectiveness, on 18 July 2019, the Act to Combat Unlawful Employment and Benefit 
Fraud  entered into force. The Act gives the Unit for the Financial Control of Undeclared 
Work  (Finanzkontrolle  Schwarzarbeit  –  FKS)  additional  responsibilities  and  powers, 
significantly reinforcing its staff (by creating 3,500 additional posts by 2029), creating 
new  administrative  offences  liable  for  fines,  and  enhancing  cooperation  and  data 
exchange between the participating authorities.  In order to carry out the inspections, 
the authorities can enter the business premises of the employer, the client of services, 
or the hirer of the employer. Private homes are excluded, however, thus making it highly 
challenging to verify working conditions of live-in carers.  

In  Poland,  the  difficulty  in  accessing  private  homes  intersects  with  the  challenges  in 
tackling letter box companies (which have often been associated with fraudulent practices 
in  cross-border  work),  as  some  are  based  in  private  houses,  therefore  making  it 
challenging to contact the company owners and conduct proper inspections.  

Source: Authors’ assessment based on desk research and stakeholder interviews 

481 See: https://www.onss.be/actualites/2021/06/16/lonss-coordonne-des-controles-communs-dans-le-secteur-de-la-

construction-divers-constats-de-fraude-et-dexploitation; and https://www.rsz.be/nieuws/2021/06/16/rsz-coordineert-
gezamenlijk-onderzoek-in-de-bouwsector-diverse-vaststellingen-uitbuiting-en-fraude  

482 Interview with a representative of a public authority in Slovenia conducting activities relevant to identifying infringements of 

posting regulations, 2022.  

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• 

Infringements related to terms and conditions of employment 

Problematic  aspects  related  to  temporary  work  involving  temporary  work  agencies  and 
other labour market intermediaries (in posting and non-posting situations) that are usually 
reported in the literature or through labour inspections are related to: low wages or 
non-payment  of  hours  worked,  failure  to  respect  minimum  wage  levels  and  maximum 
working  hours,  poor/unhygienic  accommodation  (for  which  workers  may  be  paying 
excessive  rents),  falsified  timesheets,  inadequate  health  and  safety  conditions,  failure  to 
pay  social  security  contributions,  and  falsified  A1  Portable  Documents.483  Violations  of 
working conditions also occur in situations where workers voluntarily agree to a wage that 
is below the minimum wage with their employer; employees assert, for fear of losing their 
job, that they are paid certain wages although they are in fact paid less; concealment of the 
scope  of  application  of  the  relevant  collective  agreements  in  order  to  circumvent  sector-
specific  minimum  wages;  bogus  self-employment;  or  excessive  salary  deductions  for 
accommodation, transport and meals.484  

One of the key types of problematic situations is related to the non-payment of actual time 
worked. In many cases, these situations go unreported and/or unsolved, but some of them 
are taken to court. For example, in June 2021, Germany’s Federal Labour Court ruled that 
foreign caregivers posted to Germany to work in a private household are entitled to 
the statutory minimum wage for the hours they have worked, including on-call duties.485 
This was a noteworthy ruling, which formally recognised live-in carers’ on-call duties and 
their much longer working hours, relative to what is formally included in their contracts. In 
some  cases,  these  situations  are  resolved  (often  just  temporarily)  as  a  result  of  worker 
protests. In the case of the building of the Rive Gauche shopping centre in Charleroi 
(Belgium),  workers  from  Egypt  and  Romania  protested  openly  in  2016  and  2017  and 
requested their salaries be paid. Egyptian workers climbed onto a crane and threatened to 
jump during their protest. The building site was temporarily closed and the employers paid 
the  workers’  salaries  voluntarily.486  In  addition,  court  cases  were  initiated  in  relation  to 
doubtful  subcontracting  practices,  which  involved  large  construction  companies  in 
Belgium  and  a  range  of  smaller  subcontractors,  including  temporary  work  agencies  and 
other  temporary  labour  market  intermediaries,  many  of  which  ceased  to  operate  when 
suspicions about their activities were raised, only to be replaced by others.487  

There  are  recurrent  examples  of  situations  in  which  workers  in  posted  or  non-posted 
situations  are  dependent  on  the  temporary  work  agency  or  the  labour  market 
intermediary  that  recruits  them  for  information  about  their  contracts,  payment,  health 
insurance, rights and obligations, which increases the likelihood of their isolation from other 
sources of information. This risk is enhanced when the recruited workers do not speak the 
language of the host country, which is often the case in low- and medium-skilled jobs in the 
sectors  on  which  this  study  focuses.  For  example,  there  are  documented  cases  of 
intermediaries using targeted recruitment strategies for workers from Moldova and Ukraine, 
for  work  in  Finland.488  The  dependency  on  the temporary  agency  also  contributes  to  the 
workers not having contact with the company for which they provide services and potentially 

483Für 

faire  Arbeitsbedingungen 

in  der  Fleischindustrie!;  NGG;  DGB;  2020,  available  at:  https://www.faire-

mobilitaet.de/fleischindustrie/++co++081535ae-d0dd-11ea-a2d9-001a4a160123.  

484 Deutsche Bundesregierung, ‘14th report by the German Federal Government on the impact of the Act to Combat Unlawful 
  available  at: 

Employment 
https://www.bundesfinanzministerium.de/Content/EN/Downloads/14th-report-impact-act-to-combat-unlawful-
employment.pdf?__blob=publicationFile&v=2  (last accessed on 10 May 2022).  

illegalen  Beschäftigung)’,  2021,  p.  25, 

zur  Bekämpfung  der 

(Gesetz 

485 This case involved a Bulgarian national who was posted to Berlin to provide live-in care. The Labour Court ruled in favour 
of  the  plaintiff,  estimating  a  working  time  of  21  hours  per  day,  while  the  employment contract  (issued  by  a company in 
Bulgaria) indicated a working time of 30 hours per week. Bundesarbeitsgericht, Urteil vom 24. Jun 2021 – 5 AZR 505/20, 
available at: https://www.bundesarbeitsgericht.de/entscheidung/5-azr-505-20/.  

486 S. Borelli, ‘Securing workers‘ rights in subcontracting chains’, Rive Gaughe Report, University of Ferrara (Italy), in ETUC, 

2021, pp. 8-27, at https://www.etuc.org/sites/default/files/2021-10/Securing%20workers%20rights_EN_LR.pdf.  

487 Ibid. 
488 Q. Ndomo and N. Lillie, ‘Secure Mobility: Uncovering Gaps in the Social Protection of Posted Workers – SMUG’, August 

2022, available at 
https://jyx.jyu.fi/bitstream/handle/123456789/82455/SMUG%20final%20report%20_%2001082022.pdf?sequence=1  

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also  not  with  labour  inspectors,  as  relations  tend  to  be  mediated  through  the  agency.  In 
situations where there are violations of working conditions, this dependency increases the 
risk of problematic employment relations and reduces the opportunities for the workers to 
lodge complaints with the relevant authorities.  

Case  law  has  supported  the  tackling  of  violations  in  some  cases.  For  example,  in 
Denmark, in a case (case FV2010.0139) involving Lithuanian temporary agency workers 
posted to Denmark, the ruling found a significant risk of abuse and circumvention of labour 
rules  enabled  by  using  temporary  agency  workers.  The  court  decision  led  to  the  hired 
Lithuanian workers being remunerated in accordance with the Danish collective agreement 
in  force  at  the  user  company.  Effective  enforcement  of  Danish  collective  agreements  by 
posting companies would contribute significantly towards enabling better (equal) working 
conditions with local in the view of stakeholders interviewed for this study in Denmark. The 
key barrier is the limited capacity to enforce the application of these agreements through 
long subcontracting chains.489  

•  The  activities  performed  by 

temporary  work  agencies  and 

labour 

intermediaries 

One of the situations that is often reported as problematic in connection with cross-border 
work involving temporary work agencies and other intermediaries is related to the nature 
of the activities performed by these agencies in the country where they are formally 
established (i.e., have a registered office). Assessing whether “substantial activities” are 
being conducted is not straightforward and can result in situations where working conditions 
violations occur. Regulations and case law indicate that a temporary employment agency 
should “carry out a significant part of its activities of assigning temporary agency workers 
for  the  benefit  of  user  undertakings  established  and  carrying  out  their  activities  in  the 
territory of that Member State” where the agency is established.490  

One of the most often reported situations of non-compliance is when agencies and other 
intermediaries do not conduct substantial activities on the territory of the Member 
State  in  which  they  are  formally  registered  and  from  which  they  supposedly  post 
workers.  

In  Belgium,  for  example,  there  is  evidence  of  Brazilians  posted  by  Portuguese  labour 
intermediaries. These individuals do not work in Portugal and were already living in Belgium 
before ‘posting’ occurred, on the basis of falsified documents. Individuals in these situations 
are  at  high  risk  of  exploitation.  TCNs  are  even  more  at  risk  if  their  status  in  the  EU  is 
irregular. The company that posted these workers also shows no activities in Portugal.491 

The  lower  the  levels  in  the  subcontracting  chain  where  labour  intermediaries  are 
involved,  the  more  difficult  it  is  to  detect  them  and  hold  them  accountable  for 
infringements.  One  such  example  occurred  in  Belgium,  where  more  than  440 
subcontractors were identified by the Belgian Labour Inspectorate on a construction site in 
Brussels.492 Some of the issues included temporary work agencies and other intermediaries 
operating without licenses and in connection to letterbox companies. The subcontracting 
chain included a recruitment agency from Portugal and a letterbox company established in 
Romania  that  did  not  perform  economic  activities  there,  which  posted  Romanian  and 
Bulgarian  workers  to  Belgium.  Inspections  found  that  the  workers’  wages  were  not 

489 Interview with representative of a trade union in Denmark, conducted in 2022.  
490 CJEU, 3 June 2021, Team Power Europe. 
491 See: https://www.siod.belgie.be/sites/default/files/2022-01/SIOD_StrategischPlan_2022_25_FR_0.pdf. 
492 I. Pavlovaite at al., Tools and approaches to tackle fraudulent temporary agency work, prompting undeclared work, 

European Platform tackling undeclared work, 2021, pp. 23-24, at 
https://ec.europa.eu/social/BlobServlet?docId=23627&langId=en 

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compliant with the regulations, but the letterbox company was promptly disbanded and the 
payment of lost wages was not fully possible.493   

The ECJ ruling in the TeamPower Europe case (C-784/19) was a key decision. According 
to  existing  regulations,  a  worker  posted  by  a  temporary  work  agency  established  in  a 
Member State to a user undertaking established in another Member State is subject to the 
social  security  system  of  the  sending  Member  State,  if  there  is  a  existence  of  a  direct 
relationship between the temporary work agency and the worker during the posting period; 
and if the temporary work agency habitually carries out its activities in the Member State 
where it is established. In this case, the temporary work agency was established in Bulgaria 
and posting workers to other Member States, including Germany. The ECJ ruling indicated 
that a temporary work agency established in a Member State must carry out a significant 
part of its activities in the territory of that Member State, but simply selecting and recruiting 
temporary agency workers for posting purposes does not qualify. This ruling is an important 
step towards curbing the establishment of letterbox companies which act as temporary work 
agencies (due to their direct employment contract with the workers).  

•  Lengthy court proceedings 

In many cases, cross-border workers face multiple risks, as existing evidence shows a 
tendency  for  temporary  work  agencies  to  overlay  work  and  accommodation 
contracts  in  labour-intensive  sectors.  In  cases  where  employment  violations  occur,  the 
workers are also at risk of becoming homeless if they take action against their employer. 
Such pressures further reduce incentives for workers to lodge complaints, for fear of losing 
their livelihoods. The Box below summarises a court case in Germany and illustrates the 
vulnerable position of the workers, even when the ruling is in their favour. 

Box 22. The ‘Mall of Berlin’ case 

Various subcontracting companies, involving temporary work agencies, were involved 
in  the  construction  of  the  shopping  and  residential  complex  ‘Mall  of  Berlin’  (which 
opened in 2014). Violations of working conditions linked to hundreds of workers from 
Eastern  Europe (primarily  Romania)  were  brought  forward,  including  working  beyond 
the  maximum  number  of  hours  allowed,  under-  and  non-payment,  lack  of  written 
employment  contracts  and  inadequate  and  high-priced  sleeping  quarters,  or  no 
accommodation at all. 

Most of the court cases brought against the subcontractors were successful, but many 
declared  bankruptcy  or  went  underground,  thus  making  it  impossible  to  collect  the 
payment of the wages sanctioned by the court. A similar situation occurred with regard 
to the owner of the construction project that had subcontracted work: according to the 
Minimum Wage Act – MiLoG and the Posted Workers Act  - AEntG,  this company was 
also  liable  if  a  subcontractor  had  not  paid  the  wages  of  its  workers,  but  it  filed  for 
insolvency  and,  due  to  the  particularities  of  the  case,  was  not  deemed  to  be  a 
“developer”, which was necessary for the court case to proceed.  

Source: Authors’ summary based on desk research 

Similar  situations  were  revealed  by  the  research  conducted  for  this  study  in  Slovenia. 
Administrative and court procedures are very lengthy, thus diminishing the chances for an 
effective  redress  for  workers  even  when  complaints  are  lodged.  The  literature  indicates 
recurring examples where cross-border workers file claims, leading to court cases that may 
take years of hearings and lead to high costs being incurred by plaintiffs. When the final 

493 More details about this case are available in ibid., pp. 23-24, at 

https://ec.europa.eu/social/BlobServlet?docId=23627&langId=en  

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and  enforceable  judgment  is  obtained,  this  is  often  too  late,  as  the  companies  or  labour 
market intermediaries in question no longer exist and thus cannot be held accountable.494  

• 

Illegal use of temporary agency work  

Problematic situations have often been flagged in relation to illegal posting of workers and 
bogus  self-employment,  which  often  in  reality  involves  temporary  work  agencies  or 
intermediaries.495  Case  law  indicates  that  fraudulent  practices  are  rife  in  cases  where 
agencies  or  intermediaries  aim  to  avoid  declaration  of  posting  situations  to  the  public 
authorities. Some fraudulent agencies frequently change their company status or owners in 
order to evade regulations (e.g. this has been reported as a practice in DE, BE, NO).  

Bogus  self-employment  is  a  common  practice  used  to  circumvent  national  legislation 
applying to posted workers or other temporary cross-border mobile workers. This practice 
is encountered across sectors, predominantly in labour-intensive sectors.  

In Germany, for example, this is one form of illegal posting or undeclared work and leads to 
violations related to minimum wage requirements and social security protection. The trade 
authorities  have  also  identified  an  increase  in  business  registrations  by  non-resident 
individuals, for example from Romania, Poland and Latvia. German business people make 
their  office  available  to  foreign  business  people  (often  several  at  a  time)  for  use  as  a 
permanent establishment and support them in dealing with the authorities. It seems likely 
that this involves bogus self-employment as the activities registered simultaneously include 
acting as an intermediary providing workers in the area of home help, care and qualified 
work  from  Eastern  Europe,  and  the  performance  of  business  registrations  on  behalf  of 
clients,  the  provision  of  on-demand  offices  services  and  co-working  offices,  and  similar 
services. Then, only foreign nationals register as commercial home help service providers 
at the same business address.496 Practices encountered in Germany involve pressure on 
workers to present themselves as self-employed persons or members of a partnership such 
as  a  civil-law  partnership  (Gesellschaft  bürgerlichen  Rechts)  or  a  general  partnership 
(offene Handelsgesellschaft). 497  

the 

recently 

Measures to counteract clandestine employment have been taken in Germany, including 
through 
(May  2021)  approved  Accessibility  Reinforcement  Act 
(Barrierefreiheitsstärkungsgesetz) and an amendment to section 7a of the German Social 
Code  Book  IV  (Sozialgesetzbuch  IV,  SGB  IV)  on  employment  status  determination 
assessments (the latter came into force on 1 April 2022). The new inquiry process aims to 
bindingly  determine  whether  a  person  is  a  dependent  employee  liable  to  insurance 
contributions or is self-employed.  

A key phenomenon that is on the rise is fictitious posting of TCNs. In Poland, for example, 
this happens when a company is established in Poland and posts TCNs to other countries, 
but  these  individuals  do  not  fulfil  the  requirements  of  posting,  as  they  have  not  had  any 
professional activity in Poland before posting. The labour inspectorate and other relevant 
authorities  can  tackle  these  situations  by  removing  work  permits  and  notifying  the 
competent foreign authorities about the suspicion of fake posting. The legal framework in 

494 N. Rogelja et al., ‘Napotitve delavcev iz slovenije: nekatere specifike in problem’, 2016, available at 

http://twohomelands.zrc-sazu.si/uploads/articles/1475074433_Rogelja_Toplak_Jevsnik_Mlekuz_DD_TH_44.pdf.  

495 Sectoral study; ‘Covid-19 outbreaks in slaughterhouses and meat processing plants: State of affairs and proposals for 
policy action at EU level’, EFFAT report, EFFAT, 2020, available at: https://effat.org/wp-content/uploads/2020/09/Covid-
19-outbreaks-in-slaughterhouses-and-meat-processing-plants-State-of-affairs-and-demands-for-action-at-EU-level-
7.09.2020.pdf  

496 Deutscher Bundestag, ‚Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Beate Müller-Gemmeke, 
Brigitte  Pothmer,  Corinna  Rüffer,  weiterer  Abgeordneter  und  der  Fraktion  BÜNDNIS  90/DIE  GRÜNEN  -  Drucksache 
18/9470: Entsendungen - Umsetzung der Durchsetzungsrichtlinie, BT-Drs. 18/9597 vom 9. September 2016’, 2016, p.22, 
available at: https://dserver.bundestag.de/btd/18/095/1809597.pdf, (last accessed on 9 May 2022).  

497 Deutsche Bundesregierung, “14th report by the German Federal Government on the impact of the Act to Combat Unlawful 
illegalen  Beschäftigung)’,  2021,  pp.  29-31,  available  at: 

Employment 
https://www.bundesfinanzministerium.de/Content/EN/Downloads/14th-report-impact-act-to-combat-unlawful-
employment.pdf?__blob=publicationFile&v=2  (last accessed on 10 May 2022).  

(Gesetz  zur  Bekämpfung  der 

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Poland in relation to the employment of certain TCNs from neighbouring countries (including 
Ukraine,  Belarus,  Armenia,  Moldova)  simplifies  the  procedures  required  to  legalise  their 
work in Poland. This can in practice result in service providers abusing these regulations to 
fictitiously post TCNs workers abroad. As is often the case, these practices involve several 
actors, including temporary work agencies or other labour intermediaries, some of whom 
are based in third countries.498    

6.1.4.  The scale and impact of the problem  

On average, temporary agency work has been on the rise over the past two decades and 
this trend is likely to continue. In relative terms, however, it represents a relatively low share 
of total employment in the EU 27 (2.5% of employed persons between 20 and 64 years in 
2020).499 It nonetheless contributes to the rising trends in the share of the workforce that is 
engaged in temporary/non-standard work. There is very little reliable data however about 
the market share of other labour market intermediaries.  

Subcontracting is especially common in price-sensitive and labour-intensive sectors (e.g. 
construction,  shipbuilding,  meat  industry,  manufacturing,  cleaning,  etc.).  Posting  via 
temporary work agencies is frequent, as is also the recruitment of other forms of temporary 
cross-border  workers  (e.g.  seasonal  workers) 
these  agencies  or  other 
intermediaries.   

through 

The existing data and other information that is available about agency work shows that there 
are  clear  sectoral  patterns  and  that  the  role  of  temporary  work  agencies  is  more 
significant in some countries than in others. EU-wide data does not indicate specifically 
which agencies conduct cross-border activities, but the general data shows that in Europe, 
9%  of  agency  workers  are  active  in  the  construction  sector500.  However,  in  Eastern 
Europe501, the share amounts to 2%, in Southern Europe502 1%, and in Central and Northern 
Europe503 13%. In some countries, such as Germany, Spain and Greece, there are sectoral 
restrictions in place on temporary agency work in the construction sector504.  

Seasonal  work  is  often  conducted  through  fixed-term  contracts  in  the  country  of  work 
(concluded directly at the workplace or with a temporary work agency), and less frequently 
under  the  posting  of  workers regulations.  Seasonal  work  is most  common  in  agriculture, 
forestry, and fishing, and accommodation and food services. There are between 650,000 
and 850,000 intra-EU seasonal workers in the EU-27, including posted intra-EU seasonal 
workers.505  This  estimation  excludes  those  involved  in  undeclared  work,  however,  which 
indicates  that  the  real  number  may  be  significantly  higher.  Live-in  care  jobs  are 
predominantly carried out by migrant women, but there is limited data on the real number 
of  live-in  care  workers,506  also  due  to  the  tendency  towards  informal  employment  in  this 
sector. Approximately 6.3 million people work in the formal long-term care sector, or about 

498 Interview with representative of a public authority in Poland with relevant competencies in inspections related to temporary 

cross-border work, 2022.  

499  Eurostat  [LFSA_QOE_4A6R2].  No  data  is  available  for  Bulgaria,  Estonia,  and  Cyprus,  while  for  Sweden  data  on  the 

industry and construction sector is not available.  

500 World Employment Confederation, 2021a. 
501 Eastern Europe concerns Croatia, Czechia, Estonia, Poland, Romania, and Russia.  
502 Southern Europe concerns Greece, Italy, Portugal, and Spain.  
503 Central and Northern Europe concerns Austria, Belgium, Denmark, Finland, France, Germany, the Netherlands, Norway, 

Sweden, and Switzerland.  

504 Ibid.  
505 This estimation is based on calculations deriving from national data from eight key destination countries (AT, BE, CZ, DE, 
ES, FR, IT, NL) referring to different years between 2015 and 2020. Then data were extrapolated to the EU-27. It has to be 
noted that this estimate largely refers to the agricultural sector, since national data for accommodation and food services 
could only be estimated for AT, DE, and NL. See Fries-Tersch et al. (2021) for the full methodology. 

506 A. Rogalewski and K. Florek, ‘The future of live-in care work in Europe, Report on the EESC country visits to the United 
Kingdom,  Germany,  Italy  and  Poland  following  up  on  the  EESC  opinion  on  “The  rights  of  live-in  care  workers”’,  2020, 
available at: 
https://www.eesc.europa.eu/sites/default/files/files/qe-03-20-090-en-n.pdf.  

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3.2%  of  the  total  workforce  in  the  EU.507  This  figure  does  not  capture  a  potentially  large 
number of live-in carers that are working informally and who can be involved with temporary 
work agencies during recruitment stages.  

Quantifying the exact scale of the problems affecting cross-border temporary agency 
workers (and the share of workers that are affected) is very difficult, however, as there 
is  very  limited  comparable  data  available  and  labour  inspections  do  not have  systematic 
coverage across sectors, countries and types of cross-border work. This phenomenon is 
encouraged by a set of factors that are unlikely to diminish in the foreseeable future, 
and  which  are  not  directly  linked  to  the  legislation  in  place  to  regulate  posting  or 
other  forms  of  temporary  cross-border work.  This  includes,  as mentioned  previously, 
the  increasing  need  for  flexible/temporary  work  in  labour-intensive  sectors;  labour/skills 
shortages  in  specific  sectors,  which  benefit  from  a  low-paid,  temporary  workforce  that 
provides flexibility to employers; the limited appeal of low-skilled jobs in construction, live-in 
care  or  agriculture  for  local  workers;  and  broader  policies  promoting  the  role  of  labour 
market intermediaries.  

An  accurate  estimation  of  the  degree  to  which  the  involvement  of  temporary  work 
agencies and other labour market intermediaries is linked to  non-compliance with working 
conditions for temporary cross-border workers (in terms of the number of people impacted) 
is not possible with the existing data. But such an estimation is critical for deciding effective 
and proportionate policy and enforcement actions. The seriousness of the breaches of 
rights and working conditions should also be considered, alongside their scale, however, 
as  the  examples  of  violations  of  working  conditions  that  have  been  identified  by  labour 
inspections and court cases throughout Europe indicate that these tend to have very serious 
consequences for workers’ livelihoods and should not be discounted regardless of the scale 
of the phenomenon.  

6.1.5.  Conclusions and recommendations 

The situation of posted and other types of temporary cross-border mobile workers has been 
addressed by EU initiatives such as the revised PWD and the Enforcement Directive, the 
Temporary  Agency  Work  Directive,  the  2020  Guidelines  on  Seasonal  Workers,  and  the 
creation of authorities such as the European Labour Authority.508 At national level, measures 
have  been  taken  in  the  past  years  to  strengthen  the  implementation  of  the  regulatory 
framework,  its  harmonisation  to  EU  policies,  and  the  improvement  of  cross-border 
information systems.  

Extensive policy debates and actions over the past two decades have contributed to 
setting  up  a  legal  framework  that  lays  down  the  conditions  for  the  freedom  to  provide 
services  within  the  EU  as  a  fundamental  freedom  leading  to  economic  growth  and 
guaranteeing the mobility of businesses and workers within the EU. Within this framework, 
there is increasing attention on ensuring that the protection of workers is on a par with (and 
a fundamental part of) the freedom to provide services. The revised PWD for example calls 
for stricter requirements for employers (e.g. the prior notifications of posting, preservation 
of relevant documents), enhanced scrutiny, and administrative and criminal sanctions for 
failure to comply. 

An  evaluation  of  the  impact  of  the  revised  PWD  and  the  Enforcement  Directive  will 
contribute to showing the extent to which its key objective of enabling equal treatment has 
been met. There are, however, other types of temporary cross-border workers who are not 
covered  by  the  Directives  and  who  are  often  at  the  centre  of  practices  that  lead  to  non-

507 Eurofound, ‘Long-term care workforce: Employment and working conditions’, Publications Office of the European Union: 

Luxembourg, 2020.  

508 For example, the Campaign “Rights for all Seasons” of the European Labour Authority, ELA in 2021. 

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compliance  with  legal  regulations  (e.g.  non-posted  seasonal  workers  in  several  sectors, 
live-in carers, as well as other cross-border workers in service sectors). 

Complex legal regimes at EU and national levels regulate cross-border work, which 
strive  to  ensure  a  solid  legal  framework  of  protection  for  workers.  The  regulatory 
framework in place, however, also enables loopholes that can be used to circumvent it. The 
use  of  subcontracting  chains  and  agency  work  in  cross-border  settings  is  one  key 
mechanism  that  enables  cost-cutting  (in  terms  of  recruitment,  hiring  and  social  security 
coverage)  and  provides  the  necessary  flexibility  to  address  business  fluctuations  and 
challenges caused by high turnover and labour/ skills shortages.  

Many examples of practices that evade compliance with legal regulations protecting 
working conditions have been identified through labour inspections, court cases, research 
and media inquiries. They do not indicate that these situations are the norm of posting 
and  other  types  of  cross-border  work,  but  they  do  raise  serious  concerns  about  the 
possible  scale  and  severity  of  the  breaches  of  cross-border  workers’  rights  and  working 
conditions (many of which are estimated to go unreported and thus reinforce the existing 
practices).  Their  mere  existence  indicates  that  there  are  parts  of  the  enforcement 
mechanisms and potentially legal frameworks that can be misused (or misunderstood) by 
employers  and  labour  market  intermediaries,  to  the  disadvantage  of  some  of  the  most 
vulnerable workers.  

These  concerns  that  should  be  addressed  through  more  effective  and  extensive 
enforcement  efforts  at  national  level,  more  efficient  cross-border  cooperation 
systems  and  potentially  legal  reviews  of  existing  legislation  at  the  national  level 
(should these prove necessary). In view of already complex legal frameworks, the first step 
would be to invest considerably in enhancing enforcement and monitoring capacities 
at  national  level  (particularly  labour  inspections),  to  improve  cross-border  data 
exchanges through the use of comparable data, and to create mechanisms to facilitate 
the  reporting  of  infringements  by  workers,  trade  unions,  and  other  organisations 
representing workers’ interests. The importance of EU-level mechanisms that support the 
monitoring of activities of temporary work agencies should also not be underestimated, as 
financial support and a platform at EU level would bring together and incentivise national 
efforts. In the past, the European observatory on cross-border temporary agency work was 
such a tool, whose main aims and activities could be revived and updated as part of the 
ELA’s activities. 

Equally,  further  consideration  should  be  given  to  the  power  of  preventive  inspections, 
rather  than  focusing  only  on  situations  where  a  complaint  is  lodged.  Swift  legal  and 
administrative actions resulting in sanctions that are proportional to the violations and 
provide higher incentives to respect the law rather than break it would go a long way towards 
reinforcing  the  effectiveness  of  the  existing  legal  framework  before  considering  further 
regulatory  actions.  In  the  longer  term,  once  the  information  about  infringements  is  more 
systematic  and  active  steps  are  taken  to  apply  existing  regulations,  further  legislative 
changes can be considered, to address any remaining barriers. 

The role of social partners and relevant organisations that have access to information 
on the ground about infringements should be better capitalised, for example through 
cross-border  sectoral  networks  that  can  systematically  support  the  work  of  labour 
inspectorates  to  enforce  compliance  (e.g.  through  the  frequent  provision  of  information 
about cases of breaches of rights and working conditions, and raising awareness about the 
negative  impact  and  consequences  of  undeclared  work  and  unlawful  employment). 
Improved  coordination  of  the  actions  taken  at  EU,  national  and  local  levels  by  different 
stakeholders can also be facilitated through frequent meetings of these dedicated networks. 
Learning from pilot projects on data sharing in cross-border cooperation aimed at detecting 
and  tackling  social  fraud  should  be  used  to  inform  approaches  at  scale  (e.g.  the  project 

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developed in Benelux countries starting 2015). 509 The European Labour Authority (ELA) 
has an essential role in encouraging this coordination and facilitating mutual learning and 
exchanges between national authorities and stakeholders, for the purposes of enforcing EU 
rules on labour mobility and social security coordination.  

temporary  work  agencies’) 

Finally,  employers’  (including 
limited  awareness  and 
understanding of the existing rules and regulations that apply in a cross-border context is a 
reality which calls for further efforts to provide clarity about the application of the rules 
in general, and also provide tailored assistance. In this respect, the relevant national 
authorities (supported by the ELA) could consider setting up specialised assistance services 
for employers, to provide tailored support with understanding the application of rules to their 
particular situations (e.g. how remuneration packages are defined in the receiving Member 
State and which elements are included). 

509 Benelux Cross-border cooperation in detecting and tackling social fraud and error – pilot project in the Construction sector, 

available at https://www.ela.europa.eu/sites/default/files/2021-09/GP%20fiche%20Benelux_0.pdf.  

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6.2.  Case study 2: Non-payment and underpayment in the 
case of temporary cross-border workers in posting and 
non-posting situations 

6.2.1.  Overview  

This case study focuses on the situations of non-payment or underpayment that may arise for 
posted workers. The underpayment (or even non-payment) of posted workers has recurrently 
been one of the key violations of the working conditions applicable to workers in posting and 
non-posting situations. The underpayment of posted workers gives posting undertakings an 
unfair  competitive  advantage  over  local  companies  and  other  posting  undertakings  and 
means that the workers concerned are not paid what they are legally entitled to. Further, it can 
create a downward pressure on the wages of the local workers.   

The  rights  and  working  conditions  for  posted  workers  are  regulated  by  Directive  (EU) 
2018/957.510 Included in this Directive are rules on the remuneration of posted workers (self-
employed workers fall outside the scope of the Directive).  

One of the major changes in the revised PWD is the change from the concept of ‘minimum 
rates  of  pay’  to  ‘remuneration’.  Posted  workers  are  now  entitled  from  day  one  to  all  the 
elements of remuneration of the host Member State rendered mandatory by law or by collective 
agreement made universally applicable.511 As a result of this amendment, all wage elements 
have  to  be  taken  into  account,  including  supplements  to  wages  such  as  overtime  rates, 
allowances  for  working  at  night,  allowances  for  working  on  Sundays  or  on  public  holidays, 
holiday remuneration, end-of year-bonuses and 13th month bonuses.512 It should be noted that 
the  amounts  paid  by  the  employer (or the reimbursements  made)  concerning  travel,  board, 
and lodging are not part of remuneration. 

This  change  in  the  concept  of  remuneration  aims  to  bring  posted  workers’  wages  closer  to 
those that apply to local workers but also to other groups of mobile workers who make use of 
their freedom of movement (announced by the Commission under the slogan of “equal pay 
for equal work in the same workplace”). The revised PWD aims to increase the protection 
of  the  posted  worker  by  introducing  a  stronger  social  dimension,  while  at  the  same  time 
preserving  legal  certainty  for  undertakings  providing  services  in  the  internal  market.513  For 
example, it eliminates to a large extent wage competition between posted workers and local 
workers, and thus reduces risks of unfair competition. It would also entail a wage increase for 
posted workers, and in particular those being posted from a low-wage to a high-wage Member 
State.  

Nevertheless,  questions  can  arise  around  whether  the  introduction  of  this  new  concept  of 
remuneration has eliminated all the problems associated with this element of posted workers’ 
employment  conditions. As  is  seen  in the  next  paragraph, the  underpayment  (or  even  non-
payment) of some groups of posted workers has always been a troubling reality. Therefore, 
this case study focuses on the challenging situations in relation to underpayment that can still 
arise  for  posted  workers,  even  with  the  introduction  of  this  remuneration  concept.  In  the 

510 Directive (EU) 2018/957 of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of 

the provision of services.  

511 However, some provisions of the Directive are not applicable to a short-term posting or allow host Member States not to apply 
their rules to postings of short duration. For instance, there is a mandatory exception in cases of initial assembly and/or first 
installation of goods when the posting does not exceed eight days. In these cases, the rules of the Directive on minimum paid 
annual leave and remuneration do not apply (the exception does not concern the construction sector).  

512 European Commission, ‘Practical Guide on Posting’, 2019.   
513  P. Van  Nuffel,  and  S. Afanasjeva,  ‘The  Posting  of  Workers  Directive  Revised:  Enhancing the Protection  of  Workers  in  the 

Cross-border Provision of Services’, European Papers 3(3), 2018, pp. 1401-1427. 

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absence  of  data  and  information  about  how  the revised  PWD  has  affected  posted  workers’ 
remuneration in practice, the change from ‘minimum rates of pay’ to ‘remuneration’ may 
increase the risk and level of underpayment. Therefore, measures are needed to avoid this 
risk as far as possible.  

6.2.2.  Analysis of the problem 

The main problem with regard to the underpayment of posted workers is the underpayment 
itself. When the remuneration of a posted worker is lower than that of a local worker, this goes 
against  the  principle  of  equal  treatment.  Moreover,  the  underpayment  of  posted  workers 
creates unfair competition. 

If the risks of ‘underpayment’ are to be assessed, it is first necessary to know the minimum 
level of the remuneration to be paid. Any amount below this threshold is then considered to be 
an  underpayment.  However,  this  threshold  is  not  so  easy  to  determine.  Indeed,  one  of  the 
the  understanding  of  the  concept  of 
underlying  problems  of  underpayment 
‘remuneration’.514 The PWD does not actually define remuneration, but states that only the 
elements of remuneration mandatorily applicable515 to all workers in the geographical area or 
sector are to be considered as remuneration.516 Consequently, the remuneration to be paid to 
a posted worker differs between Member States as well as between sectors of activity. As a 
result,  it  can  be  a  burdensome  task  for  employers  to  accurately  determine  the 
remuneration  level  to  be  applied.  This  has  been  repeatedly  emphasised  by  employer 
organisations and experts interviewed for this study.  

is 

Further,  ‘underpayment’  may  occur  under  various  forms  and  is  often  not  limited  to 
merely paying less than the wage one is entitled to. Beyond just ‘undercutting’ the hourly 
wage, it can for instance mean not paying overtime rates or allowances for working at night or 
on  Sundays;  paying  part-time  wages  for  full-time  work;  wrongly  classifying  skilled  work  as 
unskilled  to  apply  a  lower  pay  grade.  Another  tactic  is  to  pay  the  full  remuneration  but 
afterwards subtracting substantial fees, for example for accommodation, which is not allowed. 
Not only should the payslip be controlled, but also the hours worked, and the social security 
contributions  paid,  among  others,  seeing  that  underpayment  can  also  occur  through 
interference  with  these  elements.  For  example,  there  is  a  risk  that  for  the  same  monthly 
remuneration  posted  workers  have  to  work  (many)  more  hours  compared  to  local  workers 
employed at the same workplace.517 

Furthermore,  there  is  an  issue  of  enforcement,  as  it  is  a  complex  task  for  inspection  and 
enforcement authorities to find out whether the correct remuneration was paid, and if all other 
conditions in relation to remuneration are met. For example, checks should include not only 
the payslip (difficult enough), but also the hours worked and the social security contributions 
paid, among other things, given that underpayment can also result from interference with these 
elements. The expert workshop organised as part of this study confirmed this illegal practice. 
Moreover, even if the wage requirements may seem to be respected on paper, underpayment 
can also occur if overtime is not paid and deductions are made, e.g. for recruiting costs, with 
the result that workers start their position with a debt. Such practices and reductions are illegal 
and should also be examined when examining the pay component. 

The  drivers  of  underpaying  posted  workers  should  also  be  considered.  It  is  possible  that 
employers are not aware518 or are not informed about the applicable remuneration in relation 

514 The notion of ‘underpayment’ may also be defined as the difference in remuneration between a posted worker and a local 

worker. Although this is probably too broad of an approach. 

515 “Mandatorily applicable are considered those elements, which are stated by national law or by collective agreements made 
universally  applicable  or  that  otherwise  apply to  all  local  workers  in  the  geographical  area  or  sector concerned”  (European 
Commission, ‘Practical Guide on Posting’, 2019, p.12). 

516 European Commission,’ Practical Guide on Posting’. 
517 Remark made by Jan Cremers at the ETUI-conference ‘Challenges associated with short term labour mobility’ (June 2022). 
518 For instance, the lack of knowledge about the rules was clearly reflected by the results of an online survey organised within 
the  frame  of  a  study  for  the  live  performance  sector  as  only  one  out  of  four  of  the  respondents  was  aware  of  the  recent 

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to posted workers. Moreover, determining the applicable remuneration is a complex task, as 
noted above. In this regard, single official national websites might fail to provide the necessary 
information  and  clarity.  Moreover,  given  that  national  courts  have  already  experienced 
problems in determining the previous ‘minimum rates of pay’ concept, it is not yet clear whether 
they  will  find  it  easier  to  determine  the  ‘remuneration’  of  the  host  Member  State.519  Finally, 
malicious intent of the employer is also possible, in light of the fact that underpaying posted 
workers gives the employer a competitive advantage.  

When  the  amended  PWD  is  compared  with  the  old  version,  there  are  still  risks  of 
underpayment after the revision of the PWD. Indeed, the change from ‘minimum rates of 
pay’ to ‘remuneration’ implies that additional elements of remuneration should be taken into 
account.  Furthermore,  a  difference  in  the  assessment  should  be  made  between  workers 
posted by a temporary work agency versus all other posted workers. Directive 2018/957/EU 
lays down specific rules for posted temporary agency workers. The temporary work agency 
must guarantee to its posted employees the terms and conditions of employment which apply 
pursuant to article 5 of Directive 2008/104/EC on temporary agency work, i.e., in principle at 
least  those  that  would  apply  if  they  had  been  recruited  directly  by  the  user  undertaking  to 
occupy the same job.  

6.2.3.  Quantifying the scale of the problem 

Large  differences  between  the  wage  applicable  in  the  sending  and  in  the  receiving 
Member State increase the risk of underpayment. For instance, when a posted worker is 
supposed to receive five times the wage they would receive at home, it is ‘easy’ to only pay 
the posted worker three or four times the wage, as they would probably still be willing to accept 
this wage. In that regard, there might be a practice of paying posted workers more than they 
would receive in the sending Member State, but less than the mandatory remuneration in the 
host Member State. Posted TCNs are particularly vulnerable to such practices. Estimates show 
that posted workers from Lithuania (96% of posted persons from Lithuania are at high risk as 
the minimum wage in the host Member State is more than double compared to the minimum 
wage in Lithuania, the Member State of origin), Bulgaria (95%), Poland (94%), Croatia (93%), 
Hungary (93%), and Romania (93%) are potentially at risk, as they should receive more than 
double the wage they would normally receive in the Member State of origin.520,521 

There is no exhaustive view on the extent to which non-payment and underpayment occurs in 
case  of  posting  situations  in  the  EU.  It  is  estimated  that  around  10%  (upper  bound)  of  all 
individuals posted to Austria were underpaid in 2019, with an upper bound of around 10% of 
posted  persons  being  underpaid.522  Furthermore,  data  for  2019  suggest  that  posting 
companies were almost 15 times more likely to underpay their workers than companies located 
in Austria.523 In Belgium, € 20.3 million of additional wages and allowances were claimed in 
2021  to  posting  undertakings  involved  in  cases  of  underpayment  or  non-payment  of  their 
workers.524 This figure is the ‘tip of the iceberg’ as a high number of underpayments are not 

amendment of the Posting of Workers Directive (F. De Wispelaere et al., 2021, p.12). This knowledge/ awareness gap may 
result into a regulatory compliance gap. Not least because the sector is not being considered a priority for labour inspectorates. 
For instance, only one out of five respondents to the online survey indicated that they had already came into contact with the 
competent labour inspectorate. 

519 M. Bernaciak and Z. Rasnača, ‘Not as simple as it should be? Why the judicial enforcement of posted workers’ rights needs 

improvement’, LSE European Politics and Policy (EUROPP) Blog, 2020.  

520 F. De Wispelaere, L. De Smedt, and J. Pacolet, ‘Posted workers in the EU. Facts and figures’, Leuven: POSTING.STAT project 

VS/2020/0499, 2022b.  

521 These percentages are based on the number of PDs A1 issued under Article 12 BR by the Member State of origin (data 2020) 

and the monthly minimum wages (data 2020, Eurostat [earn_mw_cur]). 

522 Geyer et al., 'Posted workers from and to Austria. Facts and figures', Leuven: POSTING.STAT project, 2022. 
523 S. Danaj & L. Geyer, ;’Posted Workers to Austria: An Unstoppable Trend?’, 2022.  
524 F. De Wispelaere, L. De Smedt, & J, Pacolet, 'Cross-border healthcare in the EU under social security coordination Reference 

year 2020', European Commission DG EMPL, 2022a. 

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detected by labour inspectorates. Underpayment can go as far as non-payment of wage or an 
hourly wage of only € 2 as data from Belgium show.525  

The occurrence of underpaying posted workers also differs between sectors of activity. 
For  instance,  in  2019,  inspections  in  the  Austrian  construction  sector  revealed  that  36%  of 
posting construction companies were suspected of underpaying their workers, while this share 
only  amounted  to  1%  for  non-posting  construction  companies  located  in  Austria.526 
Nevertheless, these data do not show the extent of the underpayment (whether posted workers 
are  paid  5%  less  than  they  should  earn  or  50%).  That  the  construction  sector  is  prone  to 
underpayments  also  becomes  clear  from  other  evidence.  For  instance,  in  October  2019, 
EFBWW together with ETUC submitted ten problematic cases to ELA.527 Finally, such risks 
may occur also in other price-sensitive sectors such as agriculture and horticulture, and live-in 
care. In that  respect,  sectors  considered  prone to  undeclared  work  can also  be  considered 
prone to underpayment of posted workers, seasonal workers, etc. 

In  addition  to  differences  between  sectors,  there  are  differences  between  types  of  posted 
workers  in  terms  of  (under)payment.  It  is  found  that  especially  posted  third-country 
nationals (TCNs) are vulnerable to underpayments. For instance, in Belgium cases have 
been found by the inspection services in which posted TCNs were paid far below the minimum 
wage  (sometimes  to  be  qualified  as  ‘labour  exploitation’528).529  In  2019  in  France  posted 
Moroccan and Senegalese workers earned € 4 less than Spanish workers  and Bosnians being 
posted  to  France  earned  about  € 2  less  than  Slovenians.530  Nevertheless,  posted  workers 
being  paid  less  than  local  workers  does  not  necessarily  mean  that  posted  workers  are 
underpaid, as they can also be paid less but still enough, for instance the minimum wage. For 
example, it was found that almost 25% of posted workers to France were paid the minimum 
wage in 2019, while this was the case for 75% of posted workers in the agriculture sector.531 
However, posted workers are still paid 30% less than French workers at the same workplace, 
even after accounting for potential differences in workers’ age and hours worked at the French 
firm.532 Although this indicates that there are substantial pay differences between national and 
posted workers, it does not provide proof of underpayment per se, which is a crucial nuance 
to keep in mind, as being paid less does not equal being underpaid.  

When looking at underpayment, investigations should consider not only the wage itself, but 
also  social  security  contributions,  as  the  circumvention  of  social  security  is  a  significant 
problem  as  well.533  Thus,  underpayment  has  to  be  looked  at  not  only  from  the  labour  law 
perspective, but also from the social security law perspective, an issue which is often forgotten. 
It can  be the case that either the  level  of  social  security  contributions  paid  by  employers  is 
incorrect, or the timing of the payment is not correct. For example, in Belgium, some € 15.3 
million claims in 2021 were related to unpaid social security contributions within a cross-border 
context.534 A specific case in this regard is Slovenia. In this Member State, the law stipulates 
that social security contributions need to be calculated based on the wage that would have 
been paid for comparable work in Slovenia, instead of on the actual wage earned of the posted 

525See also:  https://www.myria.be/files/MYRIA_Jaarlijks_evaluatierapport_2020_Mensenhandel_en_mensensmokkel-3.3_RSZ-

inspectiedienst.pdf      

526 Geyer et al., 'Posted workers from and to Austria. Facts and figures', Leuven: POSTING.STAT project, 2022. 
527 https://www.etuc.org/en/pressrelease/eu-labour-authority-failed-act-its-first-worker-abuse-cases  
528 E.g., in July 2022, more than 50 underpaid and undocumented workers have been found working on a construction site of 
Borealis at the port of Antwerp (BE). They received € 650 per month. This is just a quarter of what they should have been paid. 
See also J. Davies, ‘Labour Exploitation and Posted Workers in the European Construction Industry’, in N. Lord, E. Inzelt, W. 
Huisman, and R. Faria (Eds.), European White-Collar Crime Exploring the Nature of European Realities, 2020.   

529 F. de Wispelaere et al., ‘Posted workers in the EU. Facts and figures’, 2022b. 
530 M. Muñoz, ‘Posted workers from and to France. Facts and Figures’, Leuven: POSTING.STAT project VS/2020/0499, 2022.  
531 This concerns data from before the implementation of the amended PWD. 
532  This  observation  is  not  new.  Already  ten  years  ago,  in  the  Impact  Assessment  of  the  Commission  on  the  revision  of  the 
legislative framework on the posting of workers in the context of provision of services (SWD(2012) 63 final) (2012: 20), it was 
stated that “In France, a report delivered by the French Senate in 2006 estimated wage differences between foreign posted 
workers and French workers to be around 50%. In Denmark, a study of the construction sector indicated that, in the mid-2000s, 
workers from Eastern European countries were paid on average 25-28% less than Danish building workers.” 

533 Questionnaire Germany.  
534 Questionnaire Belgium.  

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worker.535  This  results  in  an  unfair  competitive  advantage  for  Slovenian  companies  as  their 
labour  costs  will  be  lower,  paying  social  security  contributions  on  a  lower  wage  than  was 
actually  earned.  Although  this  is  advantageous  for  Slovenian  companies,  it  means  that  the 
Slovenian state itself loses an estimated € 49 million in social security contributions compared 
to  when  the  wage  of  the  host  country  is  taken  into  account.536  Furthermore,  this  is 
disadvantageous  for  the  posted  worker,  seeing  that  their  old  age  pension  base  is  to  be 
calculated on the basis of the same, lower level of a comparable wage. Therefore, this can 
also be seen as a kind of underpayment of the posted worker. The EFBWW, later assisted by 
the Austrian trade union GBH and the German DGB, has submitted a formal complaint against 
Slovenia for this policy of (wrongly) calculating social security contributions. However, on 22 
March  2023,  the  National  Assembly  approved  a  new  Act  on  the  Transnational  Provision  of 
Services. The second paragraph of Article 144 of Pension and Disability Insurance Act (ZPIZ-
2) will be deleted, thus abolishing the lower basis for calculating social security contributions. 
This amendment will enter into force on 1 January 2024. 

The  government  of  the  Netherlands  initiated  the  monitoring  and  evaluation  of  the 
implementation of the revised PWD. The first monitoring report and the evaluation covers 
the  period  from  March  2020  up to the  end  of  December  2021.  The research  included  desk 
research  and  interviews  with  social  partners,  analyses  of  the  registration  data  of  the 
postedworkers.nl reporting desk and draws on the results of a survey targeting employers and 
posted  workers  from  Belgium,  Germany,  Poland,  Romania  and  Spain.  In  the  Netherlands, 
since 1 March 2020, the freedom to provide services is part of the Employment Conditions Act 
related  to  posted  workers  in  the  European  Union  (WagwEU),  which  includes  a  notification 
requirement  for  cross-border  employment.  Employers  who  bring  posted  workers  to  the 
Netherlands should submit a notification, which is a prerequisite for posted workers to enjoy 
employment  protection  as  per  the  existing  legal  provisions.  The  monitoring  tool  and  the 
evaluation report focus on the notification duty. The evaluation, however, also investigated the 
implementation  of  various  provisions  linked  to  the  remuneration  of  posted  workers, 
subcontracting and key types of infringements. Initial findings highlight the challenges involved 
in monitoring the implementation of the existing legislation and providing a reliable quantitative 
assessment,  such  as  measuring  the  effects  of  the  revised  PWD  in  relation  to  workers’ 
remuneration  or  identifying  all  responsible  actors  in  subcontracting  chains.  The  report  also 
noted  the  likelihood  that  several  postings  may  go  unreported,  the  limited  awareness  of 
employers about their obligations, the limited awareness of posted workers themselves about 
the contents of their remuneration package, as well as the challenges involved in raising the 
awareness of companies or temporary work agencies based in other countries about the Dutch 
legislation.  

In  Sweden,  a  similar  endeavour  took  place  during  2022  –  2023.  The  government 
commissioned  a  special  investigator  to  evaluate  and  present  proposals  for  possible 
amendments  to  the  Contractor  Liability  Act  (applicable  to  wage  claims),  which  entered  into 
force  on  1  January  2019.  The  Act  implements  Article  12  of  the  Enforcement  Directive 
concerning  the  posting  of  workers.  Subcontracting  liability  is  applicable  in  Sweden  to  the 
construction and civil engineering sectors and requires that user undertakings may be liable to 
pay wages that a subcontractor (acting as employer) has not paid to a worker. The results of 
the  inquiry  (based  mainly  on  consultations  with  social  partners,  including  small  companies) 
indicate  that the  Act supported  worker representatives  in  ensuring  workers  are  paid.537  The 
report also indicates that user undertakings are more careful about using subcontractors and 
considering  whether  to  limit  their  number,  and  have  also  adjusted  their  administrative 
procedures. However, due to the implementation of other initiatives that have sought to reduce 
abusive  practices  in  the  construction  and  civil  engineering  sectors,  it  was  not  possible  to 
determine to what extent the observed changes can be attributed to the 2019 Act. Proposals 

535 M. Vah Jevšnik, S. Cukut Krilić, and K. Toplak, ‘Posted workers from Slovenia. Facts and Figures’, Leuven: POSTING.STAT 

project, 2022.  

536 Estimation for 2020. 
537 Government of Sweden, Review of contractor liability (Översyn av entreprenörsansvaret), May 2023, available at 
https://www.regeringen.se/contentassets/282bbee54e60444aa302b0d1842245e2/sou-2023_26_webb.pdf 

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for  legislative  amendments  to  the  Act  include  the  application  of  its  provisions  to  cover  the 
wages of posted agency workers. However, the report does not recommend the extension of 
subcontracting liability to other sectors (e.g., transport, healthcare, social care), because long 
subcontracting  chains  are  not  as  frequently  encountered  in  these  sectors.  The  report 
acknowledges the lack of quantitative data on the cases in which the provisions of the Act have 
been implemented as one of its limitations. Impact of the problem 

The underpayment of posted workers gives advantages to posting undertakings, as they gain 
an unfair competitive advantage over local companies and other posting undertakings. 
Moreover, practices of underpayment also erode the objectives of the amended PWD. Recital 
4 of Directive (EU) 2018/957 states that “More than 20 years after its adoption, it has become 
necessary  to  assess  whether  Directive  96/71/EC  still  strikes  the  right  balance  between  the 
need to promote the freedom to provide services and ensure a level playing field on the one 
hand and the need to protect the rights of posted workers on the other.” Such a level playing 
field for companies as well as “equal pay for equal work in the same workplace” for posted 
workers will not be achieved if underpayments continue. Finally, the underpayment of posted 
workers  may  also  have  a  negative  impact  on  local  workers.  If  employers  underpay  posted 
workers, this can create downward pressure on the wages of the local workers, because 
they are becoming less competitive.538 

6.2.4.  Conclusions and recommendations 

One of the main issues that needs to be addressed is the understanding of the concept of 
remuneration. Under the PWD, the host Member States do not have an obligation to provide 
the  actual  remuneration  to  be  paid  to  the  posted  worker.539  Nevertheless,  they  have  the 
obligation to provide the information on the terms and conditions of employment, including the 
constituent  elements  of  remuneration  to  be  applied  to  workers  posted  to  their  territory. 
Afterwards, it is the responsibility of the employer to establish the correct remuneration in each 
individual case, based on this information provided.  

An  essential  tool  in  this  regard  is  the  single  official  national  website,  which,  under  the 
Directive, should be set up by each Member State. The information on this website must be 
accurate and up-to-date, and the information on the terms and conditions of employment, in 
accordance with national law and/or practice, should be published without undue delay and in 
a transparent manner. Moreover, if this is not the case, this circumstance will be taken into 
account when determining penalties in the event of infringements of the national provisions 
adopted  pursuant  to  the  PWD.540  This  means  that  when  information  on  the  single  official 
national  website  on  the  terms  and  conditions  of  employment  is  unavailable  or  incomplete, 
courts can take this into account when determining the proportionality of penalties in cases of 
infringement of the posting rules.541  

Therefore, it is of utmost importance that the information provided on this official website is 
clear, complete and easily accessible. However, it was found that the way in which Member 
States have developed their website varies greatly. Some only provided information in their 
mother tongue, or only provided part of the information needed by the posting undertaking, for 
instance  there  is  no  information  available  on  social  security  law,  tax  law,  or  the  applicable 
collective  agreements.  Furthermore,  stakeholders  report  that  the  official  website  might  be 
useful  for  employers  and  consultants,  or  social  secretariats,  but  (posted)  employees 
themselves will rarely go look for information through this channel.  

538 L. Geyer et al., ‘Posted workers from and to Austria. Facts and figures’. 
539 European Commission, ‘‘Practical Guide on Posting’. 
540 Ibid; M. Rocca, ‘Stepping Stones Over Troubled Waters. Recent Legal Evolutions and the Reform of the Posting of Workers 
Directive’,  2019,  in  J.  Arnholtz  and  N.  Lillie  (Eds.),  Posted  Work  in  the  European  Union  The  Political  Economy  of  Free 
Movement, New York: Routledge. 

541 F. de Wispelaere et al., ‘Cross-border employment in the live performance sector, Exploring the social security and employment 

status of highly mobile workers’. 

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through  different  other  channels 

Therefore, besides the single official national website, the provision of information should take 
place 
such  as  public  authorities,  other 
companies/colleagues, employers’ organisations or workers’ organisations.542 Posted workers 
are indeed found to be mostly informed by the client company, an affiliated company, or they 
search for information inside the community of posted workers.  

A  next  step  in  the  information  process  could  be  that  collective  agreements  are  also  easily 
consultable in all or at least several official EU languages (for instance, based on the template 
developed  by  ELA).543,544  A  final  step  could  be  the  development  of  an  EU  remuneration 
calculator (for instance, by ELA or the social partners in a specific sector, who possess key 
knowledge about sectoral agreements and remuneration packages).545 

Further,  the  importance  of  Directive  (EU)  2019/1152  on  transparent  and  predictable 
working conditions should be highlighted. Article 7.2 of this Directive states that “Member 
States shall ensure that a posted worker covered by Directive 96/71/EC shall in addition be 
notified  of:  (a)  the  remuneration  to  which  the  worker  is  entitled  in  accordance  with  the 
applicable  law  of  the  host  Member  State;  (b)  where  applicable,  any  allowances  specific  to 
posting and any arrangements for reimbursing expenditure on travel, board and lodging; (c) 
the link to the single official national website developed by the host Member State pursuant to 
Article  5(2)  of  Directive  2014/67/EU  of  the  European  Parliament  and  of  the  Council.”546 
However, it is hard to say whether this will happen in practice. In any case, it is important 
that  the  worker  concerned  is  informed  about  the  remuneration  they  are  entitled  to, 
ideally through various reliable channels. It is a crucial step in terms of them being able to 
enforce their rights. 

Participants  at  the  expert  workshop  suggested  that  local  user  undertakings  should  have 
more  responsibility,547  as  they  know  the  exact  terms  and  conditions  that  need  to  be 
applied,  including  collective  agreements.  In  this  regard,  Article  12  of  the  Enforcement 
Directive,  might  (in  some  cases)  be  the  ‘secret  weapon’  for  sending  companies  to  obtain 
information  by  the  user  undertaking.  For  instance,  mechanisms,  such  as  those  in  the 
Netherlands, where user undertakings have an obligation to inform about applicable collective 
agreements,  could  be  considered.  In  terms  of  information  provision,  two  crucial  elements 
cannot be overlooked: language and personal contact. First, language can be considered as 
the most important aspect when transferring information. This can be a challenge certainly in 
posting situations with many nationalities present. Second, personal contact is one of the most 
important  information  channels  concerning  posting  information,  be  it  through  information 
sessions, a reliable intermediary, or a contact person.  

It was noted by one of the participants at the expert workshop that at the beginning stages of 
the  PWD,  ‘package  deals’  between  collective  actors  of  different  Member  States  were 
completed (e.g., the package deal between the Netherlands and Belgium in the construction 
sector).548  These  deals  made  an  overall  comparison  between  levels  of  pay  between  the 
Netherlands  and  Belgium  for  the  construction  sector.  The  participant  suggested  that  these 
package  deals  could  be  a  helpful  tool  to  address  underpayment  besides  providing  better 
information. 

542 A good example is the website designed by the European Federation of Building and Woodworkers which provides concise 
information  on  wages,  working  conditions  and  rights  of  construction  workers  for  all  the  European  Member  States  in  all  the 
European languages. See: https://www.constructionworkers.eu/en/al. 

543  See: https://www.ela.europa.eu/sites/default/files/2021-01/ELA-Approach-to-presenting-collective-agreements.pdf.  
544 Within the frame of a research project on the live performance sector, this template has been applied to the two collective 
agreements  applicable  to  the  live  performance  sector  in  France.  See:  https://hiva.kuleuven.be/nl/nieuws/docs/collective-
agreements-in-the-live-performance.pdf. 
545 Input from Hilde Thys (Agoria and Ceemet).  
546 See also a report of an Expert Group on the transposition of Directive (EU) 2019/1152.  
547  Which is already the case for temporary agency posting.  
548 For  more  information  about this package  deal, see M.  Houwerzijl and  F.  Pennings, ‘Double  Charges  in  case  of Posting  of 
Employees: the Guiot Judgment and its Effects on the Construction Sector’, European Journal of Social Security, 1999, Vol. 1, 
No. 1, pp. 91-112.  

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to  consider  measures 

Finally,  in  addition  to  focusing  on  measures  that  might  prevent  underpayment,  such  as  the 
provision and exchange of information so that the concept of remuneration is clear, it is also 
necessary 
to  discover  and  sanction  underpayment.  Hence, 
enforcement (both in terms of number of inspections and in sanctioning) is also of critical 
importance. It makes sense to focus on the main flows at risk, namely postings from low-wage 
Member  States  to  a  high-wage  Member  States  as  well  as  posted  TCNs.  Furthermore, 
transnational exchange of information might be useful. For example, a red flag could be 
that social security contributions remain unchanged when a worker is posted abroad, on the 
basis that in most cases, the posted worker will earn more in the receiving Member State and 
will therefore have to pay more social security contributions.549 

549 Unless there is a ceiling installed on taxable earnings and the posted worker earns above this ceiling both before being posted 
and during the posting. Additionally, this might not be the case in Slovenia, where the social security contributions are calculated 
based on the wage that would have been paid for comparable work in Slovenia, instead of on the actual wage earned of the 
posted worker. Therefore, a difference in social security contributions might also not be noticed when comparing the social 
security contributions before the posting versus during the posting.  

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6.3.  Case study 3: Seasonal workers in the agriculture 

sector 

6.3.1.  Overview  

This  section  provides  an  introduction  to  seasonal  work  in  the  agriculture  sector:  how  many 
workers there are, where they come from and their basic working conditions.  

By  definition,  the  agriculture  sector  is  very  seasonal,  with  periods  of  high  and  low  demand. 
Given  the  high  degree  of  labour  intensity  of  much  of  the  work  in  the  sector,  tasks  such  as 
tending, harvesting and packaging require high numbers of agricultural workers for a limited 
period  of  time.550  There  is  a  growing  reliance  on  temporary  hired  workers  to  carry  out  the 
majority of these labour intensive operations,551 and so it is unsurprising that the agriculture 
sector is the one with the highest number of seasonal workers. 

Seasonal workers may be defined as “a group of mobile workers who retain their main place 
of residence in their home country and move temporarily to another Member State to carry out 
an activity dependent on the passing of the seasons.”552 It is estimated that between 800,000 
and 1,000,000 seasonal workers are hired each year in the EU, with the vast majority of 
these  in  the  agri-food  sector  (the  rest  are  work  the  accommodation  and  food  services 
sector).553 EU Member States with the highest numbers of seasonal workers recruited each 
year are Italy (370,000), Germany (300,000), France (276,000) and Spain (150,000). 

6.3.2. 

Intra-EU seasonal workers in the agriculture sector 

Of the 800,000 to 1,000,000 seasonal workers employed annually in the EU, it is estimated 
that between 650,000 and 850,000 of these are intra-EU seasonal workers.554 Although 
these figures include seasonal workers in the accommodation and food services sector, given 
that national data for this sector is only estimated for Austria, Germany and the Netherlands 
(amounting to a total of 132,700 workers), the vast majority of these 650,000 to 850,000 intra-
EU seasonal workers are active in the agriculture sector.555 Furthermore, most of the posting 
of intra-EU seasonal work relates to agriculture (67%).556  

Key  destination  countries  for  seasonal  workers  in  the  agriculture  sector  are  Austria, 
Belgium, Czechia, France, Germany, Italy, the Netherlands and Spain. It is estimated that 
there around 700,000 seasonal workers hold the nationality of another EU Member State in 
these eight key destination countries.557 Prior to the outbreak of COVID-19, Germany received 
around 300,000 seasonal workers per year, who were employed in agricultural, horticultural 
and forestry work.558 “Between 1991 and the early 2000s, Polish seasonal workers constituted 

550 European Parliamentary Research Service, ‘Migrant seasonal workers in the European agricultural sector’, February 2021, p. 

2, available at: https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/689347/EPRS_BRI(2021)689347_EN.pdf.  
551 ILO, ‘Migrant Workers in Commercial Agriculture’, 2016, p. 35, available at: https://www.ilo.org/wcmsp5/groups/public/---

ed_protect/---protrav/---migrant/documents/publication/wcms_538710.pdf.  

552 European Labour Authority, ‘Action Plan on Seasonal Workers’, June 2021, available at: 
https://www.ela.europa.eu/sites/default/files/2021-06/Action-Plan-Seasonal-Workers.pdf.  

553 European Parliament, ‘Bold measures needed to protect cross-border and seasonal workers in EU, MEPs say’, 19/06/2020, 
available at: https://www.europarl.europa.eu/news/en/press-room/20200615IPR81233/bold-measures-needed-to-protect-
cross-border-and-seasonal-workers-meps-say.  

554 European Commission, ‘Intra-EU mobility of seasonal workers: Trends and challenges’, 15/06/2021, p. 34, available at: 

https://ec.europa.eu/social/main.jsp?catId=738&langId=en&pubId=8400&. 

555 Ibid. 
556 Ibid. 
557 Ibid. 
558 Open Society European Policy Institute, ‘Are agri-food workers only exploited in Southern Europe? Case studies on migrant 

labour in Germany, the Netherlands, and Sweden’, 15 July 2020, p. 5, available at: https://www.opensocietyf 
oundations.org/publications/are-agri-food-workers-only-exploited-in-southern-europe#publications_download.  

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the  vast  majority  of  foreign  seasonal  workers  in  Germany.  However,  from  2006  their  share 
rapidly decreased to about 60% in 2010 while the share of workers from Romania increased 
from  about  8%  in  2004  to  nearly  35%  in  2010”.559  Today,  many  of  the  intra-EU  seasonal 
workers in Germany still come from Central and Eastern Europe.  

Although  no  longer  an  EU  Member  State,  it  is  interesting  to  look  at  the  origin  of  seasonal 
workers employed in the agriculture sector in the United Kingdom. In 2017, when the UK was 
still  a  Member  State,  around  75,000  seasonal  workers  were  thought  to  be  employed  every 
summer in the sector, with 98% of them originating from another EU Member State.560  

6.3.2.1.  Third-country national seasonal workers 

In 2014, the Seasonal Workers Directive was adopted in order to harmonise the rules for 
admission,  residence  and  rights  of  third-country  national  (hereinafter  ‘TCN’)  seasonal 
workers.561 Under the Directive, a seasonal worker is defined as “a TCN who retains his or her 
principal place of residence in a third country and stays legally and temporarily in the territory 
of a Member State to carry out an activity dependent on the passing of the seasons, under one 
or  more  fixed-term  work  contracts  concluded  directly  between  that  TCN  and  the  employer 
established in that Member State”.562  

Based on the Seasonal Workers Directive, EUROSTAT collects statistics on seasonal workers 
who migrate from non-EU countries to work in the EU. The number of TCN seasonal workers 
across  all  sectors  differs  greatly  between  Member  States,  with  more  than  46,000  in 
Poland compared to around 300 in Latvia in 2019.563 As of 2020, Germany, Luxembourg, 
Malta  and  the  Netherlands  had  not  admitted  any  TCN  seasonal  workers,  despite  having 
transposed the Directive.564,565   

The working conditions for TCN seasonal workers also differ considerably between Member 
States.  As  of  the  end  of  2020,  11 Member  States  had  a legally  defined  gross  minimum 
wage for these workers (BG, CY, CZ, EL, HU, IT, LU, LT, MT, PL and SI).566 This ranged 
from a minimum salary of €312 per month in Bulgaria, to €2,142 per month in Luxembourg. 
Equally,  there  is  a  wide  variation  between  Members  States  in  terms  of  the  length  of 
validity of permits for TCN seasonal workers. When considering permits from 1 to 90 days, 
91 days to 5 months, and 6 to 9 months, Poland (by far the primary issuer of such permits) has 
a  relatively  even  distribution  between  the  three  categories.567  However,  over  91%  of  the 
permits issued by Finland and more than 98% of those of Bulgaria have a length of validity of 
1 to 90 days, whereas in Spain and Croatia, the vast majority were valid from 91 days to 5 
months.  Conversely,  62%  of the  permits  issued  by  Estonia  and  almost 58%  of Italian  ones 
were valid from 6 to 9 months. 

When looking at the agriculture, forestry and fishing sector specifically, there is a lack of data 
in many Member States concerning authorisations for the purpose of seasonal work under the 

559 Ibid, p. 5.  
560 House of Commons, ‘Briefing Paper: Migrant workers in agriculture’, 4 July 2017, p. 6, available at: 

https://researchbriefings.files.parliament.uk/documents/CBP-7987/CBP-7987.pdf.  

561 Directive 2014/36/EU of the European Parliament and of the Council of 26 February 2014 on the conditions of entry and stay 

of third-country nationals for the purpose of employment as seasonal workers, available at: https://eur-
lex.europa.eu/eli/dir/2014/36/oj.  

562 Ibid, Article 3(b).  
563 European Migration Network, ‘Attracting and protecting the rights of seasonal workers in the EU and the United Kingdom’, 

2020, p. 9, available at: https://home-affairs.ec.europa.eu/system/files_en?file=2020-
12/00_eu_seasonal_workers_study_synthesis_report_en_1.pdf.  

564 Ibid, p. 9. 
565 As mentioned in the previous sub-section, Germany relies on intra-EU labour migrants to undertake seasonal work in the 

agriculture sector. 

566 European Migration Network, ‘Attracting and protecting the rights of seasonal workers in the EU and the United Kingdom’, 

2020, p. 9. 

567 Eurostat, ‘Authorisations for the purpose of seasonal work by status, length of validity, economic sector and 

citizenship[migr_ressw1_1] Last update: 12-09-2022’, available at: 
https://appsso.eurostat.ec.europa.eu/nui/submitViewTableAction.do. 

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Seasonal  Workers  Directive.  Between  2018  and  2021,  Poland  reported  5,477  such 
authorisations, Estonia 1,274, Italy 630 and Latvia 200.568 However, this data is missing for 
so many Member States that it is difficult to draw conclusions as to the number of TCN 
seasonal  workers  in  the  agriculture,  forestry  and  fishing  sector.  Moreover,  as  will  be 
explored in more detail in the following section, undeclared work, particularly among TCNs, is 
thought to be extremely high. This means that, even in those countries where data exists, the 
numbers above are likely to be underestimations of the real number of seasonal TCN workers 
in the agriculture sector.  

6.3.3.  Analysis of the key challenges 

Some of the challenges in the sector are explored in this section, namely undeclared work, 
sub-standard living and working conditions, and recruitment through informal practices.  

6.3.3.1.  Undeclared work 

As already noted, undeclared work is a considerable challenge in the agriculture sector. Two 
of the key sector-specific drivers of undeclared work are: 

•  Significantly  different  levels  of  bargaining  power  and  economic  imbalances  in 
individual  trade  relations  between food  processers  and  retailers  on the  one  hand, 
and agricultural producers on the other.569 

o  For example, “a survey by the Italian Competition Authority shows that 57% of 
agricultural producers often or always accept retroactive unilateral changes [to 
contract  terms],  because  they  are  afraid  of  commercial  retaliation  in  case  of 
refusal of the changes.”570 

•  The  labour  intensiveness  of  the  sector  and  severe  cost  pressure  from  large 
conglomerates  in the food  processing  industry  and  food retailers to keep  production 
costs low. 

o  Prior to measures to counter this, employing seasonal workers on a declared 
basis  in  Croatia  was  often  very  expensive  given  that  agricultural  employers 
were  generally  required  to  pay  for  a  full  month’s  work,  whereas  the  actual 
number of working days was more limited.571 The result of this was that many 
employers turned to undeclared work solutions.  

Undeclared work can have different characteristics, including having no written contract 
of  employment,  being  in  dependent  self-employment,  or  receiving  envelope  wages. 
Section 6.3.4.2 considers the scale of these challenges within the agriculture sector; although 
it should be noted that disaggregated statistics looking at seasonal workers specifically are not 
available.  

In  order  to  improve  the  situation  in  the  sector,  in  2020  the  European  Commission  adopted 
Guidelines on seasonal workers in the EU.572 In these Guidelines, Member States are called 

568 Ibid.  
569 European Platform Undeclared Work, ‘Tackling undeclared work in the agricultural sector’, September 2018, p. 32, available 

at: https://www.ela.europa.eu/sites/default/files/2021-
10/Tackling%20undeclared%20work%20in%20the%20agricultural%20sector%20report.pdf. 

570 Ibid. 
571 European Platform Undeclared Work, ‘Fourth Plenary meeting of the European Platform tackling undeclared work: Final 

report on a preventative approach, focusing upon service vouchers and awareness raising’, March 2018, p.4, available at: 
https://ec.europa.eu/social/BlobServlet?docId=20206&langId=en.  

572 European Commission, ‘Guidelines on seasonal workers in the EU in the context of the COVID-19 outbreak’, 17 July 2020, 

available at: https://ec.europa.eu/info/sites/default/files/guidelines_on_seasonal_workers_in_the_eu_in_the_con 
text_of_the_covid-19_outbreak_en.pdf. 

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on to “take the necessary steps to tackle undeclared work of seasonal workers and to 
make extensive use of the European Platform tackling undeclared work. Actions under 
the Platform such as tripartite partnerships and cross-border cooperation, better risk analysis 
and data mining for more effective inspections, combined with preventive measures such as 
listing  of  compliant  companies  may  effectively  contribute  to  fighting  undeclared  work  of 
seasonal workers.”573 

Cooperation  is  a  key  element:  in  order  to  tackle  undeclared  work  in  the  sector,  there  is 
recognition that a holistic and multi-stakeholder approach is needed. The fields of labour, 
tax and social security law need to be joined together both strategically and operationally, with 
cross-border  and  intra-national  cooperation  needed  between  these  authorities,  as  well  as 
between state authorities and social partners.574  

At national level, demand-side incentive schemes have been introduced in certain Member 
States  to  tackle  undeclared  work.  In  Croatia,  for  example,  the  government  introduced  a 
service voucher scheme in 2012 for seasonal and occasional work in the sector, with the aim 
of  encouraging  agricultural  employers  to  use  the  service  voucher  as  opposed  to  relying  on 
undeclared work.575 The scheme allows the unemployed and pensioners to work for up to 90 
days  per  year  in  various  agricultural  jobs,  with  rights  such  as  maximum  working  hours, 
minimum rest breaks and a minimum daily wage. As well as tackling undeclared labour, the 
system  thus  has  the  dual  benefit  of  helping  to  secure  fair  working  conditions  for  seasonal 
workers in the sector (something that will be discussed in more detail in Section 6.3.5 below).  

6.3.3.2.  Entitlements, working and living conditions 

Another major challenge facing seasonal workers in the agriculture sector is that of weaker 
ties to social security systems and protection. In some cases this is due to the fact that 
workers  are  not  entitled  to  such  rights  owing  to  the  nature  of  their  contract,  while  in  other 
instances, they may face practical barriers in accessing benefits related to the transfer of such 
benefits from their country of residence to the place of work.576 One stakeholder interviewed 
for this  study  underlined  that  while  many  workers  in  the  sector struggle  to  understand  their 
social  security  rights,  the  same  is  also  true  for  employers,  who  may  be  unaware  of  how  to 
comply  with  national  and  EU  level  obligations  regarding  the  social  security  entitlements  of 
employees recruited on a seasonal basis.577  

An example of contractual social security limitations can be found in Germany, where those 
employed in ‘marginal employment’ (meaning that which is less than 70 days in a calendar 
year) are exempt from mandatory social security contributions, according to the German Social 
Code.578  Employment  of  seasonal  migrant  workers  almost  entirely  relies  on  this  ‘70-day 
regulation’.579 Although this means that both employers and employees initially face savings 
as that they do not have to pay these contributions, it is estimated that “a significant number 
of cases would actually have to be subject to contributions”580 due to workers staying longer 
than 70 days. In these instances, employees lose out on their potential right to a pension in 
Germany. 

573 Ibid, p. 3. 
574 European Platform Undeclared Work, ‘Tackling undeclared work in the agricultural sector: a learning resource from the 

Agricultural Seminar of the European Platform Undeclared Work Brussels, 24th January 2019’, 2019.  

575 European Platform Undeclared Work, ‘Fourth Plenary meeting of the European Platform tackling undeclared work: Final 

report on a preventative approach, focusing upon service vouchers and awareness raising’, p. 4. 

576 European Commission, ‘Intra-EU mobility of seasonal workers: Trends and challenges’, p. 50. 
577 Interview conducted for the purposes of this study, February 2022. 
578 Sozialgesetzbuch (SGB) - Viertes Buch (IV) - Gemeinsame Vorschriften für die Sozialversicherung (Social Code - Book IV - 

General Rules for Social Security), Bundesgesetzblatt, 2006-01-26, vol. 4 , pp. 86-137, availabe at: 
https://www.ilo.org/dyn/natlex/natlex4.detail?p_isn=77191&p_lang=en.  

579 Open Society European Policy Institute, ‘Are agri-food workers only exploited in Southern Europe? Case studies on migrant 

labour in Germany, the Netherlands, and Sweden’, p. 6. 

580 Ibid. 

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In addition to challenges in relation to social security coverage, “labour inspectors repeatedly 
report violations of seasonal farm workers' rights as regards working hours, remuneration, 
living conditions, and health and safety standards in the workplace.”581 Given that much 
of the work in the sector is extremely labour intensive, requires working outdoors in all kinds 
of  weather  conditions  and  frequently  involves  atypical  working  hours  with  very  early  starts, 
there  are  a  multitude  of  job-related  risks  that  go  along  with  this.  The  European  Labour 
Authority is drawing attention to the need to promote fair and safe working conditions 
for  seasonal  workers,  including  through  its  awareness  raising  campaign,  ‘Rights  for  all 
seasons’.582  They  have  published  guidance  for  mobile  seasonal  workers,583  and  for 
employers,584 in all 24 official EU languages.  

A recent study from October 2022 found that payment-related issues are the most frequent 
problem  cited  when  seasonal  migrant  workers  reached  out  to  counselling  centres.585  
Irregularities with payment were found to occur due to several practices that are widespread 
among famers, including untransparent documentation and compensation of working hours, 
as  well  as  paying  out  a  significant  amount  of  the  overall  wage  only  immediately  prior  to  a 
worker’s  return  to  their  home  country.586  Language  barriers  are  something  that  only 
exacerbate these difficulties related to a lack of transparency.  

Equally, wages in the sector are often very low, and minimum wages are not always respected. 
Although a lot of seasonal agricultural work is low-skilled, “in Member States where a general 
or a sector-specific minimum wage exists, […] in reality, seasonal workers are often paid 
significantly  below  that  level.”587  In  Spain,  when  the  national  minimum  wage  (SMI)  was 
increased in 2020, salaries in the agriculture sector were raised to €7.41 per hour.588 However, 
a 2020 report found that despite the SMI, in the city of Lleida, there is an unwritten agreement 
that workers are paid €6 per hour instead.589  

Moreover,  in  the  same  city,  a  collective  bargaining  agreement  related  to  agriculture  and 
livestock  stipulates  that  workers  who  live  further  than  75km  from  their  place  of  work  must 
receive  accommodation.590  However,  a  10%  discount  is  then  applied  to  payslips  for 
accommodation costs. This practice is one which poses a risk to seasonal workers: given that 
they are usually unable to check the accommodation in advance, they risk ending up in sub-
standard  accommodation  while  having  unreasonable  sums  deducted  from  their 
salaries.  

This practice has recently been the subject of debate in the Netherlands, where it has been 
found  that  temporary  labour  migrants  (not  exclusively  in  the  agriculture  sector)  are  being 
employed in the Netherlands and housed just over the border in Germany in unacceptable 
living conditions.591 This follows on from Dutch reports of Ukrainian workers, employed on 
three-month contracts in the horticulture industry, specifically in plant nurseries in the province 
of Westland, who face numerous penalty clauses in their contracts.592 For example, workers 

581 European Parliamentary Research Service, ‘Migrant seasonal workers in the European agricultural sector’, p. 6. 
582 European Labour Authority, ‘Rights for all seasons: European Labour Authority supports fair work for seasonal workers’, 15 
June 2021, available at: https://www.ela.europa.eu/en/news/rights-all-seasons-european-labour-authority-supports-fair-work-
seasonal-workers.  

583 European Labour Authority, ‘Rights for all seasons: your guide to fair seasonal work’, available at: 

https://www.ela.europa.eu/sites/default/files/2021-08/ELA_leaflet_A42folds_ready%20to%20print.pdf.  

584 European Labour Authority, ‘Seasonal work: a guide for employers’, available at: 

https://www.ela.europa.eu/sites/default/files/2022-03/ela-infographic-seasonal-work-guide-EN.pdf.  

585 V. Bogoeski, ‘Continuities of exploitation: seasonal migrant workers in German agriculture during the COVID-19 pandemic’, 

28 October 2022, p. 14, available at: https://doi.org/10.1111/jols.12389. 

586 Ibid. 
587 European Commission, ‘Intra-EU mobility of seasonal workers: Trends and challenges’, p. 53. 
588 B. Güell, ‘Agricultural seasonal workers in times of Covid-19 in Spain’, December 2020, available at: 

https://www.researchgate.net/publication/349427832_Agricultural_seasonal_workers_in_times_of_Covid-19_in_Spain.  

589 Ibid. 
590 Ibid. 
591 NRC, ‘”The Netherlands earns the money and we have the problems», says the German mayor’, 5 September 2022, 
available at: www.nrc.nl/nieuws/2022/09/05/nederland-deserved-het-geld-en-wij-zit-met-de-gedrag-zegt-de-duitse-
burgemeester-a4140820. 

592 RTL nieuws, ‘Oekraïense arbeiders in Westland uitgebuit: 'Verwerpelijk'’, 02 June 2022, available at: 

https://www.rtlnieuws.nl/nieuws/nederland/artikel/5312575/oekraiense-werknemers-westland-uitgebuit.  

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can be fined €500 if they contact their employer reporting labour issues, have to forfeit 20% of 
their salary if they want to stop working before the end of their three-month contract, and can 
be deported to Ukraine if they violate the rules. 

A  factor  that  compounds  the  issues  mentioned  above  is  that  enforcing  policies  against 
labour  exploitation  remains  a  key  challenge  across  the  EU.  In  Germany,  it  has  been 
reported that despite labour violations in the agriculture sector being frequently mentioned in 
reports by the German Federal Criminal Police Office, “the number of cases in which charges 
are pressed or perpetrators are sentenced for labour exploitation is fairly small, suggesting that 
unreported incidents are widespread.”593 Part of the reason for this is that farms are often very 
isolated, with access to workers proving to be a challenge for labour inspectorates. However, 
it is precisely in these isolated situations that occupational safety and health (OSH) violations 
can  go  undetected,  and  unreported.  Given  that  seasonal  agricultural  workers  are  usually 
accommodated in the place that they are working, they risk losing not only their work but also 
their place to live if they report violations.   

6.3.3.3.  Recruitment issues 

A third key concern regarding seasonal workers in the agriculture sector is the manner in which 
they are recruited. As mentioned in the course of interviews conducted for this study, a high 
level  of  recruitment  in  the  sector  occurs  by  way  of  private  contacts  and  informal 
networks, or through labour market intermediaries.594 In the case of seasonal workers who 
are recruited  by  private employment  agencies  acting  as  intermediaries  between  clients  and 
workers,  the  reality  is  that  “power  relationships  are  often  skewed  to  the  detriment  of 
workers.”595  In  Italy,  for  example,  where  around  500,000  migrants  work  in  the  agricultural 
sector, it is estimated that 40% are irregular workers, many finding seasonal work through the 
‘caporalato’  practice.596  This  system  constitutes  a  form  of  illegal  intermediation  between 
farmers and workers. The caporale is often a former worker made responsible by the farmer 
for the recruitment and transport of the labour force, who takes a fee that is normally deducted 
directly from the wages of workers.597 As reported by the European Parliament: 

“In many cases migrant workers [who are part of the caporalato practice] enjoy no 
legal  or  social  protection,  are  forced  to  accept  extreme  working  and  living 
conditions and are underpaid. They live under the threat of losing their jobs, being 
repatriated or suffering physical or psychological violence. Women in particular are 
at risk of being exploited and sexually abused.”598 

During the COVID-19 pandemic, there were many challenges in recruiting seasonal workers 
due to EU-wide travel restrictions. In some instances, job offers were published on social media 
channels,  the  challenge  with  this  being  that  there  was  no  legal  security  behind  the 
recruitment. 599 

The  COVID-19  pandemic  required  other  drastic  measures  to  be  taken  in  order  to  preserve 
food  security.  In  Germany,  for  example,  during  the  first  pandemic  harvest  season,  80,000 
seasonal farmworkers were flown in from Central and Eastern Europe – one of the only 
exceptions to the EU-wide travel ban.600 This decision to transport, house, and provide canteen 
facilities  for  workers  in  such  close  proximity  to  one  another,  “at  a  time  when  the  ‘social 

593 Open Society European Policy Institute, ‘Are agri-food workers only exploited in Southern Europe? Case studies on migrant 

labour in Germany, the Netherlands, and Sweden’, p. 10. 

594 Interview conducted for the purposes of this study, February 2022. 
595 European Parliamentary Research Service, ‘Migrant seasonal workers in the European agricultural sector’, p. 6. 
596 Ibid. 
597 S. Meret & S. Goffredo, ‘Subverting neoliberal slavery: migrant struggles against labour exploitation in Italy’, 25 March 2017, 
available at: https://www.opendemocracy.net/en/can-europe-make-it/subverting-neoliberal-slavery-migrant-struggles-agains/.  

598 European Parliamentary Research Service, ‘Migrant seasonal workers in the European agricultural sector’, p. 6. 
599 Interview conducted for the purposes of this study, February 2022.. 
600 Fair Farming Initiative, ‘Initiative Faire Landarbeit Bericht 2020: Saisonarbeit in der Landwirtschaft‘, 2020, p. 8, available at: 

https://igbau.de/Binaries/Binary15315/InitiativeFaireLandarbeit-Bericht2020.pdf.  

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distancing’ measures for the majority of the population applied in the strictest manner, raised 
serious ethical concerns about the treatment of an entire category of workers.”601 

Another example of questionable recruitment practices of seasonal workers in the agriculture 
sector  has  been  reported  in  north-east  Germany  (specifically  Mecklenburg-Western 
Pomerania and Brandenburg). A significant part of the seasonal workforce there comes from 
Ukraine, officially recruited either as part of a holiday job or a study-related internship. 
However, investigations by the PECO Institute found that the registered student internships 
often have neither an organisational nor content-related connection to the course in Ukraine.602 

Certain  Member  States  have  put  in  place  measures  to  fight  against  informal  practices  like 
those  mentioned  above.  For  example,  the  Spanish  Trade  Union  Confederation  of  Workers’ 
Commissions (Confederación Sindical de Comisiones Obreras) has drafted an agreement to 
combat  fraud  in  the  recruitment  of  Spanish  seasonal  workers  in  France,  and  has 
published a guide to better inform seasonal workers about their rights.603  

In  Finland,  meanwhile,  recent  amendments  to  the  national  Seasonal  Workers  Act  will 
strengthen the position of seasonal workers by making it possible for them to change employer 
more easily.604 Prior to this change, temporary cross-border seasonal workers were bound to 
the employer registered in their seasonal work permit. At the same time, employers will benefit 
as they will be able to hire familiar employees more easily, thus reducing their administrative 
burden of having to notify authorities of the arrival of each seasonal worker separately. 

6.3.4.  Scale of the phenomenon 

Multiple data gaps exist in relation to the number of seasonal workers in the agriculture sector, 
making it very difficult to assess the extent of undeclared work. 

6.3.4.1.  Data gaps as to the number of seasonal workers in the 

sector 

As previously discussed, it is difficult to provide a precise number of intra-EU seasonal workers 
in the agriculture sector, as existing data combines the agriculture and accommodation and 
food services sectors. Although monitoring of the Seasonal Workers Directive allows for the 
collection  of  some  country-specific  data  on  seasonal  workers  who  migrate  from  non-EU 
countries to  work  in  the EU, this  data  is  not  comprehensively  disaggregated per  sector 
either.  

6.3.4.2.  Extent of undeclared work in the sector 

It is also a challenge to estimate the proportion of intra-EU and TCN seasonal workers engaged 
in  undeclared  work,  although  reports  acknowledge  the  “large  proportion  of  migrant 
seasonal  workers  engaged  [in]  undeclared  work.”605  When  looking  at  agricultural 
employees in the EU in general (therefore not necessarily seasonal workers), according to a 
2018  study  conducted  for  the  European  Platform  tackling  undeclared  work,  15%  of  the 
agricultural workforce (and 32% of all employees in the agriculture sector) had no written 

601 V. Bogoeski, ‘Continuities of exploitation: seasonal migrant workers in German agriculture during the COVID-19 pandemic’, 

p. 2.  

602 Initiative Faire Landarbeit, ‘Saisonarbeit in der Landwirtschaft Bericht 2021‘, Oktober 2021, pp. 7-8, available at: 

https://igbau.de/Binaries/Binary16991/2021-InitiativeFaireLandarbeit-Saisonarbeitsbericht.pdf.  
603 European Commission, ‘Intra-EU mobility of seasonal workers: Trends and challenges’, p. 50. 
604 Ministry of Economic Affairs and Employment of Finland, ‘Improvements to seasonal workers’ right to change employers and 
to employers’ amount of administrative work’, 08/04/2012, available at: https://tem.fi/en/-/improvements-to-seasonal-workers-
right-to-change-employers-and-to-employers-amount-of-administrative-work.  

605 European Parliamentary Research Service, ‘Migrant seasonal workers in the European agricultural sector’, p. 7. 

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contract of employment.606 This is in comparison to 5% for the overall EU workforce. One 
half (50.8%) of EU employees in the agriculture sector with no written contract were located in 
just two Member States: Poland (38.1%) and Italy (12.7%).607 

Moreover, in 2018, 27% of the EU’s agricultural workforce was in dependent self-employment 
(23 percentage points higher than the EU-average) and 9% of agricultural employees in the 
EU received envelope wages608 (compared with an EU-average of 5%).609 The only sector 
with a higher proportion of employees receiving envelope wages was the construction sector 
(10%). 

6.3.5. 

Impact 

Given that Member States remain responsible for determining the number of admissions of 
TCN seasonal workers by way of the Seasonal Workers Directive on the basis of the demand 
for seasonal work in a given year, it is very difficult to assess how seasonal work will evolve in 
the  coming  years.  Estimating  the  total  numbers  of  seasonal  workers  also  becomes  more 
complex given that there are several other legal pathways through which TCNs can enter 
EU  Member  States  to  conduct  seasonal  work.  Some  Member  States  have  bilateral 
agreements  in  place  with  non-EU  countries  to  facilitate  the  entry  of  seasonal  workers.  For 
example, France has concluded a number of agreements with countries including Morocco, 
Tunisia610 and Senegal. In 2022, 797 work permits were received concerning the migration of 
Senegalese workers to France, 32% of which (255 permits) were for seasonal workers.611 The 
main sectors concerned were hotels and catering, and IT. 

Similarly, it is difficult to determine how the challenges associated with seasonal work in the 
agriculture sector are likely to develop. However, given that many of the key drivers identified 
are structural in nature, the expectation is that the challenges will remain.  

It is relevant to consider the impact of some of the measures that have been taken to address 
the key challenges in the sector. For example, in Croatia the perceived outcome of the service 
voucher  scheme  was  a  decline  in  undeclared  work,  as  measured  by  a  reduction  in  the 
number of complaints received by those working in the sector.612 However, another study613 
suggests  that  in  the  years  following  the  introduction  of  the  scheme  in  2012,  there  was  a 
reduction  in  the  use  of  seasonal  vouchers  due  to  a  shift  of  such  work  back  into  the 
undeclared  economy614  ‘This  is  due  to  a  low  perceived  risk  of  being  caught  since  the 
agricultural  high-season  coincides  with  the  tourist  season,  at  which  labour  inspections  are 
primarily aimed.’615 Additionally, there were criticisms of a lack of information targeted both at 
agricultural employers and seasonal workers on the benefits of the scheme.616 

606 European Platform Undeclared Work, ‘Tackling undeclared work in the agricultural sector’, September 2018, p. 15, available 

at: https://www.ela.europa.eu/sites/default/files/2021-
10/Tackling%20undeclared%20work%20in%20the%20agricultural%20sector%20report.pdf.  

607 Ibid, p. 1. 
608 I.e. Cash-in-hand wages. 
609 European Platform Undeclared Work, ‘Tackling undeclared work in the agricultural sector’, p. 1. 
610 European Migration Network (EMN), ‘Attracting and protecting the rights of seasonal workers in the EU and United Kingdom’, 

December 2020, p. 11, available at: 
https://emnbelgium.be/sites/default/files/publications/Seasonal_workers_study_synthesis_report_en.pdf.  

611 See: https://sn.ambafrance.org/L-Office-francais-de-l-immigration-et-de-l-integration-OFII-3179. 
612 European Platform Undeclared Work, ‘Fourth Plenary meeting of the European Platform tackling undeclared work: Final 

report on a preventative approach, focusing upon service vouchers and awareness raising’, p. 4. 

613 C. Williams et al., ‘Preventative Policy Measures to Tackle Undeclared Work in Croatia’, Zagreb: Croatian Ministry of Labour 

and Pension System, 2017, p. 77, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3003538.  

614 European Platform Undeclared Work, ‘Tackling undeclared work in the agricultural sector’, p. 61.  
615 Ibid. 
616 C. Williams et al., ‘Preventative Policy Measures to Tackle Undeclared Work in Croatia’, p. 77. 

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6.3.6.  Conclusions and recommendations 

It is estimated that between 800,000 and 1,000,000 seasonal workers are hired each year 
in the EU, the agriculture sector being the one in which the vast majority of seasonal workers 
are found. It is thought that around 80% of these workers are intra-EU seasonal workers, with 
the  remaining  portion  being  TCNs.  However,  these  figures  are  likely  to  be  significant 
underestimates of the true number of seasonal workers in the agriculture sector, as data is 
missing for many EU Member States, and the number of undeclared workers is thought to be 
high.  

As undeclared work is a phenomenon that is more prevalent in the agricultural, forestry and 
fishing sector than in many other areas of the EU economy, there is “a strong rationale for an 
emphasis to be placed upon this sector when seeking to tackle undeclared work.”617 National 
enforcement  authorities  have  a  key  role  to  play  in  this  regard.  Given  the  relatively  low 
efficacy of workplace inspections in the agriculture sector (due to a large cluster of the work in 
many  Member  States  taking  place  in  remote  regions,  often  with  poor  accessibility),618  the 
European Platform tackling undeclared work recommends that authorities should rely more on 
notification  letters  based  upon  data  mining  to  identify  risky  agricultural  holdings.619  For 
seasonal workers in particular, ‘service vouchers’ (e.g. vouchers purchased by employers in 
the agricultural sector, which can then be used to pay for seasonal and occasional workers) 
are a potentially useful tool, although again, the use of these must be properly enforced.  

As  noted  by  Eurofound,  seasonal  workers  are  often  treated  less  favourably  than 
permanent  workers  concerning  legal  entitlements,  benefits  offered  by  employers  and  other 
employment  conditions.620  Collective  bargaining  agreements  can  help  to  ensure  that 
workers receive a fair minimum wage and that their rights in terms of working hours, leave, 
etc. are met. Although the Seasonal Workers Directive sets out conditions for non-EU citizens 
which ensure that they will not be exploited during their stay, the rights of many TCN workers 
are not fully respected in practice. The European Trade Union Confederation, among others, 
calls for an assessment of the transposition of the Directive in order to ensure that it adequately 
protects  TCN  seasonal  workers.621  Furthermore,  awareness  raising  campaigns  like  the 
European Labour Authority’s ‘Rights for all seasons’ are important in drawing attention to the 
need  to  promote  fair  and  safe  working  conditions  for  seasonal  workers  and  for  providing 
information to workers about the potential risks to which they are exposed.  

Finally,  recruitment  of  seasonal  workers  through  informal  means,  including  dubious 
practices of labour market intermediaries, constitutes a challenge in the agriculture sector. 
This  practice  was  particularly  common  during  the  COVID-19  pandemic,  when  cross-border 
mobility was severely restricted. In order to remedy  this, one recommendation is to further 
promote the use of the EURES platform for such vacancies, along with providing toolkits for 
employers to assist them in providing all the necessary information for a vacancy.622 Moreover, 
it is important to ensure that the information on EURES and the vacancy notices are translated 
into more languages, in order to have maximal reach. Another recommendation is for better 
enforcement  of  regulations,  including  monitoring  and  inspection  of  activities  conducted  by 
temporary work agencies and other labour market intermediaries.  

617 European Platform Undeclared Work, ‘Tackling undeclared work in the agricultural sector’, p. 68. 
618 European Parliament, ‘The EU farming employment: current challenges and future prospects’, October 2019, p. 65, available 

at: https://www.europarl.europa.eu/RegData/etudes/STUD/2019/629209/IPOL_STU(2019)629209_EN.pdf.  

619 Ibid, p. 68. 
620 Eurofound, ‘Seasonal worker’, 01 December 2021, available at: 

https://www.eurofound.europa.eu/observatories/eurwork/industrial-relations-dictionary/seasonal-worker.  

621 ETUC, ‘ETUC Comments on the Commission Guidelines on Seasonal Workers’, 08 September 2020, available at: 

https://www.etuc.org/en/document/etuc-comments-commission-guidelines-seasonal-workers.  

622 Interview conducted for the purposes of this study, February 2022. 

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6.4.  Case Study 4: Bogus self-employment in temporary 

cross-border work  

6.4.1.  Overview  

‘Bogus  self-employment’  is  a  term  used  to  describe  the  practice  of  disguising  direct 
subordinated  employment  as  self-employment.623  Given  that  differentiation  between  an 
employee and a self-employed person has consequences for the regulations, policies, rights 
and principles that apply to an individual, this is a fundamental distinction to draw.  

‘subordination’.624  However,  the 

In  all  EU  Member  States,  the  distinction  between  employment  and  self-employment  is 
based  on  the  concept  of 
legal  definition  of 
subordination varies considerably between Member States, with European law playing 
a limited role in harmonising the definition of this notion;625 no definition of bogus self-
employment  has  yet  been  agreed  at  European  level.  In  2000,  the  OECD  noted  the 
phenomenon of those “who declare themselves (or are declared) as self-employed simply to 
reduce  tax  liabilities,  or  employers’  responsibilities”.626  In  Ireland,  the  practice  is 
understood  as  referring  to  “situations  where  a  worker,  who  is  acting  as  an  employee,  is 
misclassified  as  self-employed 
Insurance] 
purposes”.627 

largely  for  PRSI  [Pay  Related  Social 

The  two  definitions  above  clearly  point  to  some  of  the  factors  motivating  bogus  self-
employment.  The  key  factor  relevant  for  temporary  cross-border  workers  is  employers  who 
wish to circumvent restrictions resulting from a standard employment relationship and 
employment regulations, stemming from the transposition of the Posted Workers Directive.628 
Self-employed workers are not employees and are therefore not covered by provisions relating 
to issues such as minimum rates of pay, maximum working hours or minimum rest periods or 
minimum paid annual leave. They are also insured in their home country rather than the one 
in which they work; in practice these individuals are often affiliated to a cheaper social security 
regime than the one of the country in which they are providing a service.  

In order to address the question of bogus self-employment, in 2014 the European Commission 
issued a proposal for a ‘decision on establishing a European Platform to enhance cooperation 
in  the  prevention  and  deterrence  of  undeclared  work’.629  Today,  the  European  Platform 
tackling undeclared work is a permanent working group at the European Labour Authority 
(ELA), working to enhance cooperation between Member States' relevant authorities and other 
actors involved to fight undeclared work more effectively and efficiently.630 

Bogus self-employment is by its nature difficult to recognise and to quantify. Very little data 
is available as to the likely number of individuals subject to bogus self-employment in the EU 
as  a  whole,  let  alone  for  temporary  cross-border  workers  affected  by  the  phenomenon. 

623  Eurofound,  ‘Fraudulent  contracting  of  work:  Bogus  self-employment  (Czech  Republic,  Spain  and  UK)’,  Dublin,  2017,  p.2, 

available at: https://www.eurofound.europa.eu/sites/default/files/ef_publication/field_ef_document/ef1717en1_0.pdf.  

624 Eurofound, ‘Exploring the fraudulent contracting of work in the European Union’, Publications Office of the European Union, 
Luxembourg,  2016,  p.  13,  available  at:  https://www.eurofound.europa.eu/sites/default/files/ef_publication/field_ef_docu 
ment/ef1639en.pdf.  

625 Ibid, p. 14. 
626 OECD, OECD Employment Outlook, Paris, June 2000, p. 156. 
627  Houses  of  the  Oireachtas,  Joint  Committee  on  Social  Protection,  Community  and  Rural  Development  and  the  Islands, 
at: 

‘Examination 
https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/joint_committee_on_social_protection_community_and_rural_devel
opment_and_the_islands/reports/2021/2021-06-16_report-on-examination-of-bogus-self-employment_en.pdf.  

Self-Employment’, 

available 

Bogus 

2021, 

June 

of 

628  F.  Muller,  ‘Cross-border  mobility  of  'bogus'  self-employed  workers:  a  lack  of  legal  framework  coupled  with  protection  of 

economic rights’, Université de Strasbourg, September 2014, p.3.  

629  Proposal  for  a  decision  on  establishing  a  European  Platform  to  enhance  cooperation  in  the  prevention  and  deterrence  of 

undeclared work, COM/2014/0221 final. 

630 See: https://www.ela.europa.eu/en/undeclared-work.  

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However, a 2020 report for the European Platform tackling undeclared work estimates that the 
prevalence of bogus self-employment in the EU varies from a lower bound estimate of 0.5% 
to a higher bound estimate of 4.3% of total employment.631 It also appears that there is a 
north-south divide in the EU, with bogus self-employment being more prevalent in southern 
European Member States.632  

In the Netherlands, estimates from the Stichting Econmisch Onderzoek Rotterdam (SEOR) 
put the level of bogus self-employment at up to 15% of the total number of those who are 
self-employed633  (equating  to  around  112,000  individuals).  Meanwhile,  a  Eurofound  article 
from 2012 cited research conducted by the Czech Research Institute for Labour and Social 
Affairs,  which  estimated  that  in  2007,  between  13%  and  26%  of  those  describing 
themselves as self-employed in Czechia should have been classed as employees.634 15 
years on, there are no more up-to-date estimates. 

In Portugal meanwhile, although there are no estimates of the total number of people involved 
in  bogus  self-employment,  the  Authority  for  Working  Conditions  (ACT)  is  reported  to  have 
conducted nearly half a million labour inspections in 2017 aimed at uncovering practices of 
bogus  self-employment.635  Unofficial  data  disclosed  by  the  Portuguese  press  revealed 
approximately 330 case of bogus self-employment, leading to 294 formal complaints filed 
by ACT with the Public Attorney’s Office. 

6.4.2.  Analysis of the key sectoral challenges 

Given that self-employment implies the non-application of employment protection legislation, 
“the bogus use of self-employment appears to be significant in competitive markets with narrow 
profit margins”.636 Some of these sectors are outlined below. The construction and live-in care 
sectors have been highlighted due to the focus this study places on these sectors, while media, 
arts  and  entertainment  and  aviation  were  both  sectors  that  emerged  as  being  somewhat 
problematic  in  terms  of  bogus  self-employment  both  through  desk  research  and  during  the 
course of interviews conducted for the purposes of this study. 

6.4.2.1.  Construction 

The  construction  sector  has  historically  been  home  to  a  large  number  of  self-employed 
workers: in 2005, around 14% of construction workers in the EU were self-employed, with this 
percentage  being  as  high  as  40%  in  Greece  and  29%  in  Poland.637  According  to  the  latest 
Eurostat figures, the construction sector accounted for 11.8% of the total proportion of self-
employed  people  in  the  EU  in  the  third  quarter  of  2021.638  In  the  same  period,  the  sector 
(specifically ‘craft and related trades workers’) was the one with the highest number of people 
working outside of their country of origin, with 215,100 workers.639 It is therefore clear that the 
construction  sector  has  a  high  number  of  self-employed  people  who  conduct  cross-
border work. 

631 C. Williams, M. Llobera & A. Horodnic, ‘Tackling undeclared work in the collaborative economy and bogus self-employment’, 

March 2020, p. 22, available at: https://www.ela.europa.eu/sites/default/files/2021-
09/Report%20UDW%20in%20collaborative%20economy%20and%20BSE.pdf. 

632 Ibid, p. 24. 
633 C. Aerts, ‘Tackling false self-employment in the Netherlands: A comparative study between the Netherlands and Belgium’, 

Tilburg University, October 2019. 

634 Eurofound, ‘New regulations aim to fight bogus self-employment’, 26 February 2012, available at: 

https://www.eurofound.europa.eu/publications/article/2012/new-regulations-aim-to-fight-bogus-self-employment.  

635 U. Menéndez, ‘Recent developments in employment disputes in Portugal’, The Law Reviews, 27 February 2019, available at: 

https://www.lexology.com/library/detail.aspx?g=da11d99f-8dc3-4a6f-8262-52affa8986e5.  

636 Eurofound, ‘Exploring the fraudulent contracting of work in the European Union’, p. 14. 
637  Y.  Jorens,  ‘Self-employment  and  bogus  self-employment  in  the  European  construction  industry’,  2009,  available  at: 

https://biblio.ugent.be/publication/1144944/file/1201538.pdf.  

638  Eurostat, 

in  February  2022,  available  at: 
https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Employment_in_detail_-_quarterly_statistics&oldid=553470.  

in  detail  –  quarterly  statistics’,  data  extracted 

‘Employment 

639 Ibid. 

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Social partners consulted for the purposes of a 2017 study on behalf of the European Platform 
tackling undeclared work agreed that construction is the sector most affected by bogus 
self-employment.640  One  of  the  reasons  behind  this  is  that  bogus  self-employment  is  a 
phenomenon  that  is  traditionally  found  in  labour-intensive,  manual  sectors.  More  recently  it 
has  spread  from  traditional  blue  collar  sectors  into  new  industries,  including  aviation, 
journalism and transportation.641 A Eurofound report from 2017 found that in the UK (when it 
was still an EU Member State), bogus self-employment in the construction sector, especially 
in large companies, had become “endemic”.642 

Statistics  at  the  European  level  estimating  the  number  of  people  involved  in  bogus  self-
employment in the construction sector are not available. However, some Member States have 
tried to produce estimates. In 2013, the Dutch Ministry of Economic Affairs commissioned a 
study looking at four sectors of the economy. There the percentage of bogus self-employed 
construction workers was estimated to be between 3% and 5%.643 However, these figures are 
contested: the Bouwend Nederland, a body which represents the construction industry, has 
claimed that 98% of TCN self-employed workers in the Dutch construction sector are actually 
in bogus self-employment.644  

6.4.2.2. 

Live-in care 

Live-in  care  work  is  particularly  common  in  seven  EU  Member  States:  Austria,  Cyprus, 
Germany, Greece, Italy, Malta and Spain. A recent report from the European Platform tackling 
undeclared  work  notes  that  there  is  “a  considerable  amount  of  bogus  self-employment, 
especially in live-in care provision.”645 It also points to the role of intermediary agencies, 
whose activities in setting rates for care workers amount to being a significant source of bogus 
self-employment in the sector.646 

Unlike  in  other  countries,  Austria  has  a  legalised  system  of  self-employed  live-in  migrant 
carers, as set out under the Home Care Act647 and the amendment of the Code of Trade and 
Commerce.  This  model  means  that  99%  of  24-hour  caregivers  in  Austria  are  self-
employed,648  although  according  to  ELA,  “the  caregivers  are  almost  always  bogus  self-
employed and more than 90% are women”.649 Legally speaking, these care workers have a 
trade  licence  for  the  independent  business  of  personal  care:  two  of  the  key  characteristics 
applicable for a 24-hour carer’s work to be deemed as self-employment being that there are 
no concrete instructions as to how and in what form the contractually agreed services are to 
be performed, and that the carer has the right to have another carer take over their work.650 
However, in the (frequently occurring) case that a care recipient becomes more dependent on 
their  live-in  carer,  caregivers  who  are  officially  self-employed  may  no  longer  meet  the 
aforementioned  criteria.  This  expansion  in  the  scope  of  their  tasks,  combined  with  care 
workers’  lack  of  discretion  as  to  how  to  organise  their  own  working  time,  means  that  their 
position is frequently one of bogus self-employment.   

640  J.  Heyes  and  T.  Hastings,  ‘The  Practices  of  Enforcement  Bodies  in  Detecting  and  Preventing  Bogus  Self-Employment’, 
European  Platform  Undeclared  Work,  June  2017,  available  at:  https://www.ela.europa.eu/sites/default/files/2021-
09/Study%20Practices%20of%20enforcement%20bodies%20detecting%20preventing%20bogus%20self%20employment.pdf
.  

641 Ibid, p. 48. 
642 Eurofound, ‘Fraudulent contracting of work: Bogus self-employment (Czech Republic, Spain and UK)’, p. 5.  
643 J. Heyes and T. Hastings, ‘The Practices of Enforcement Bodies in Detecting and Preventing Bogus Self-Employment’, p. 8. 
644 Y. Jorens, ‘Self-employment and bogus self-employment in the European construction industry’, p. 149. 
645 European Platform tackling undeclared work, ‘Tackling undeclared work in the personal and household services sector’, March 

2022, p. 23, available at https://www.ela.europa.eu/sites/default/files/2022-03/UDW_Study_report_on_PHS_2022.pdf. 

646 Ibid, p. 29. 
647 Home Care Act, Federal Law Gazette I No. 33/2007, available at: 

https://www.ris.bka.gv.at/Dokumente/BgblAuth/BGBLA_2007_I_33/BGBLA_2007_I_33.pdfsig.  

648 M. Leiblfinger & V. Prieler, ‘Elf Jahre 24-Stunden-Betreuung in Österreich‘, Katholische Privat-Universität Linz, 2018, p.13, 

available at: https://kidoks.bsz-bw.de/frontdoor/deliver/index/docId/1319/file/LiWiRei_9-Leiblfinger-Prieler.pdf.  

649 European Platform tackling undeclared work, ‘Tackling undeclared work in the personal and household services sector’, p. 28. 
650 See: https://www.bmdw.gv.at/en/Topics/Enterprise/Trades/Personal-care-services.html.  

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6.4.2.3.  Media, arts and entertainment sectors 

It is estimated that in the EU-27, around 45% of ‘performing artists, authors, journalists 
and linguists’ are self-employed.651 The share is much higher in certain EU Member States: 
62% of all artists and writers were self-employed in the Netherlands in 2019, 60% in Italy, 58% 
in Czechia, and 53% in Germany and Ireland.652  

The sector has, especially in the past decade, been the subject of concerns in relation to bogus 
self-employment.  A  Eurofound  report  from  2016  cites  the  media,  arts  and  entertainment 
sectors as being those “where bogus self-employment seems to be greatly present”.653 This is 
due to the fact that many people active in these sectors fall in between subordination 
and independence; they are “semi-dependent or economically dependent workers who are 
difficult  to  characterise  as  employees  or  self-employed  persons  according  to  the  traditional 
definitions  of  these two  legal  categories.”654  In  Italy, for  example,  labour  reforms  introduced 
forms of employment between dependent and autonomous work: so-called parasubordinati, 
defined  as  “those  who  perform  a  continuous,  coordinated  and  mainly  personal  form  of 
collaboration with the same employer”.655 In many countries, the legal uncertainty and technical 
difficulty in classification tends to mean that an employment relationship is categorised as ‘self-
employment’.656  

6.4.2.4.  Aviation 

In the aviation sector, the phenomenon of bogus self-employment has ‘flourished’ in the past 
decade. In a study published in 2019, 6,000 pilots, 2,200 cabin crew, 9 labour inspectorates, 
12 employment ministries and 27 airlines were consulted about the employment and working 
conditions of aircrew in Europe.657 It was found that around 9% of pilots are self-employed, 
whereby this percentage varies significantly depending on the country, the type of carrier and 
the business model. For example, pilots working for low-cost carriers were most likely to be 
affected, with 59% of the surveyed self-employed pilots working for Ryanair. 

In order to assess the degree of bogus self-employment in the aviation sector, self-employed 
pilots were asked about (i) the extent to which they were free to work with more than one air 
carrier, and (ii) the flexibility they had to decide when and how many hours they fly. A large 
majority – 90% - of self-employed pilots disagreed with the first statement, and 93% with the 
second.658 This can be considered as an indication that “the self-employment schemes that 
these pilots have in place are not in line with the criteria required to be genuinely self-
employed and therefore place them in the position of an economically dependent worker.”659 

651 F. De Wispelaere, Y. Jorens, M. Rocca et al., ‘Cross-border employment in the live performance sector: exploring the social 
security  and  employment  status  of  highly  mobile  workers’,  HIVA  –  Research  Institute  for  Work  and  Society,  2021,  p.  80, 
available at: https://hiva.kuleuven.be/en/news/newsitems/Cross-border-employment-in-the-live-performance-sector.  

652 Ibid. 
653 Eurofound, ‘Exploring the fraudulent contracting of work in the European Union’, Publications Office of the European Union, 

Luxembourg, p. 11. 

654 Ibid, p. 14. 
655 International Federation of Actors (FIA), EFJ, FIM and UNI Europa, ‘Tackling Dependent and Bogus Self-Employment in the 
Live Performance and Media Entertainment Sectors’, Discussion Note prepared for Workshop 3, ‘Improving social rights and 
working  conditions  for  atypical  workers’,  Ljubljana,  Slovenia,  26  &  27  January  2016,  p.  4,  available  at:  https://fia-
actors.com/fileadmin/user_upload/News/Documents/2016/January/FINAL-Discussion-Note-Ljubljana.pdf. 

656 Eurofound, ‘Exploring the fraudulent contracting of work in the European Union’, Publications Office of the European Union, 

Luxembourg, p. 14. 

657  European  Commission,  DG  MOVE,  ‘Study  on  employment  and  working  conditions  of  aircrews  in  the  EU  internal  aviation 
market’,  January  2019,  available  at:  https://www.eurocockpit.be/sites/default/files/2019-06/Study%20on%20employ 
ment%20and%20working%20conditions%20of%20aircrew%2C%20EU%20Commission%202019.pdf.  

658 Ibid, p. 106. 
659 Ibid, p. 107. 

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6.4.3. 

Impact 

6.4.3.1. 

Impact on working conditions and workers’ rights  

Given  that  employees  traditionally  enjoy  more  employment  rights  than  those  who  are  self-
employed, bogus self-employment has negative implications for elements such as a person’s 
wage  and  salary  protection,  working  hours,  supplementary  pensions,  remuneration  during 
periods  of  sick  leave  and  special  leave  and  protection  against  dismissal.  Additionally,  “the 
voice  of  self-employed  people  may  not  be  heard  and  does  not  play  an  important  role, 
contrary to employees who through the worker’s committees of the company are in a position 
to negotiate on working conditions.”660 

This misclassification is frequently deliberate, with workers being falsely categorised as self-
employed  in  order  to  enable  employers  to  circumvent  labour  laws,  collective  agreements, 
employment tax and other employer liabilities that are part of a ‘standard’, dependent contract 
of employment.661 There are clear monetary implications associated with the avoidance 
of employer contributions. In Ireland, a submission by the Irish Congress of Trade Unions 
in 2016 estimated that the avoidance costs of employer contributions to Pay Related Social 
Insurance  amounted  to  a  loss  for  the  Exchequer  of  “approximately  €600  million  in  recent 
years.”662 

Another example of precarity related to bogus self-employment can be found in the aviation 
sector, where a 2019 study reported that up to 6% of all pilots have been involved in ‘pay-
to-fly’ schemes.663 As defined by the European Cockpit Association, these schemes are “an 
aviation industry practice whereby a professional pilot, whether in training or not, operates an 
aircraft in commercial service, i.e. on a regular revenue-earning flight – as any other qualified 
crewmember  –  but  instead  of  receiving  a  salary  they  pay  for  the  cost  of  gaining  flight 
experience.”664  This  particular  situation  has  been  subject  to  a  prohibition  in  France.  French 
labour law requires that work for the benefit of a third party is either carried out as an employee, 
or as a self-employed individual. Given that a pilot involved in such a scheme is performing 
regular tasks without pay, and indeed paying for that experience, the pilot is considered to be 
an employee. However, France is the only EU Member State to have put into place a ban 
on these schemes; in other Member States, pay-to-fly schemes remain a challenge, and one 
that can be found alongside bogus self-employment. 

6.4.3.2. 

Impact on business competition  

Bogus self-employment may be viewed as a form of social dumping, in which employers rely 
on migrant workers as a source of cheaper labour than would normally be available to them in 
their  place  of  work.  A  study  by  Eurofound  focusing  on  bogus  self-employment  in  Czechia, 
Spain and the UK found that in the UK, there was a degree of undercutting in the use of 
bogus self-employment.665 This not only negatively affects competition in the labour market, 
but also undermines investment in skills, training and apprenticeships at a societal level.666 

660 Y. Jorens, ‘Self-employment and bogus self-employment in the European construction industry’, p. 26. 
661 C. Williams, M. Llobera & A. Horodnic, ‘Tackling undeclared work in the collaborative economy and bogus self-employment’, 

p. 18.  

662  Houses  of  the  Oireachtas,  Joint  Committee  on  Social  Protection,  Community  and  Rural  Development  and  the  Islands, 

‘Examination of Bogus Self-Employment’, p. 5. 

663  European  Commission,  DG  MOVE,  ‘Study  on  employment  and  working  conditions  of  aircrews  in  the  EU  internal  aviation 

market’, pp. 74-75. 

664 Definition of the European Cockpit Association – see European Commission, DG MOVE, ‘Study on employment and working 

conditions of aircrews in the EU internal aviation market’, p. 70. 

665 Eurofound, ‘Fraudulent contracting of work: Bogus self-employment (Czech Republic, Spain and UK)’, p. 10. 
666 Ibid. 

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The  aviation  sector  provides  a  clear  example  of  how  the  use  of  bogus  self-employment 
provides carriers using this model with an unfair competitive advantage over socially compliant 
carriers. Due to unfair gains resulting from this practice, for example the avoidance of employer 
contributions, some carriers are able to price dump within the market. Indeed, in the above-
mentioned 2019 consultation of pilots in Europe, 19% of consulted pilots in the low-cost sub-
sector identified themselves as self-employed, higher than any other sub-sector (e.g. freight, 
charter, business aviation).667 

6.4.3.3.  Sanctions targeting the issue 

Certain Member States have put into place measures to actively combat this form of fraudulent 
contracting  of  work.  These  are  mainly  ‘deterrence’  measures:  Czechia,  Finland,  France, 
Germany,  Ireland,  Luxembourg,  Portugal  and  Sweden  all  have  in  place  sanctions  to 
requalify bogus self-employment into the appropriate form of contractual relationship.668  

Although ‘positive sanctions’ (i.e. compliance measures) are much less frequently adopted, in 
2015  Italy  introduced  a  labour  market  reform669  amounting  to  an  “amnesty  regarding 
possible  fines  and  compensations  for  paying  lower  salaries  and  contributions  if  the 
employer transformed an existing self-employed contract (including those suspected as being 
bogus self-employment) into an open-ended subordinate employment contract by the end of 
2015.”670 

Meanwhile,  in  Germany,  Ireland,  Poland,  Slovenia  and  Slovakia,  trade  unions  have 
campaigned  for  regulatory  reforms  to  tackle  bogus  self-employment  specifically,  in 
addition  to  other  fraudulent  forms  of  contracting  work.671  Portugal  and  Romania  have  both 
introduced  legislative  measures  to  combat  bogus  self-employment:  Portugal  through  Law 
63/2013,  which  created  a  specific  procedure  for  the  prosecution  of  bogus  self-
employment,672 and Romania through a 2015 revision to the definition of ‘self-employed’.673 
Finally, the Slovenian Labour Inspectorate has carried out targeted inspections specifically on 
bogus  self-employment  in  sectors  such  as  construction,  bars  and  restaurants,  food  retail, 
transport, education and health.674  

6.4.4.  Conclusions and recommendations 

Given that one of the major drivers for misclassifying dependent employees as self-employed 
is to circumvent labour laws and collective agreements, “Member States require clear legal 
definitions of dependent employment, self-employment and bogus self-employment.”675 As of 
2019,  only  85%  of  EU  Member  States  (excluding  Luxembourg  and  Romania)  had  a  legal 
definition of self-employment, with only 50% having a definition of dependent employment and 
25%  of  bogus  self-employment.676  Without  clear  definitions,  misclassification  continues  to 
remain likely.  

667  European  Commission,  DG  MOVE,  ‘Study  on  employment  and  working  conditions  of  aircrews  in  the  EU  internal  aviation 

market’, p. 102. 

668 Eurofound, ‘Exploring the fraudulent contracting of work in the European Union’, pp. 23-24. 
669  Legislative  Decree  No.  81  of  15  June  2015,  Organic  Regulations  of  Employment  Contracts  and  Revision  of  the  Norms 
Concerning  Labour,  in  Accordance  with  Article  1,  Paragraph  7,  of  Law  No.  183  of  10  December  2014,  available  at: 
https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2015-06-15;81.  
670 Eurofound, ‘Exploring the fraudulent contracting of work in the European Union’, p. 25. 
671 Ibid, pp. 29, 31, 32, 33, 34.  
672 European Commission, ‘Factsheet on Undeclared Work – Portugal’, available at: 

https://ec.europa.eu/social/ajax/BlobServlet?docId=18174&langId=en.  

673 Eurofound, ‘Exploring the fraudulent contracting of work in the European Union’, p. 33. 
674 Ibid, p. 33. 
675 European Platform tackling undeclared work, Ninth plenary meeting of the European Platform tackling undeclared work, 
‘Report on tackling undeclared work in the collaborative economy and related to new forms of work’, October 2020, p. 4, 
available at: https://www.ela.europa.eu/sites/default/files/2021-09/Thematic%20report%20UDW%20Plenary%205-
6%20Oct%202020_final_0.pdf.  

676 Ibid, pp. 4-5.  

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Another important consideration is monitoring and enforcement. Labour inspectorates and 
enforcement bodies face limitations in dealing with fraudulent activities associated with bogus 
self-employment,  precisely  because  of  the  grey  area  that  exists  between  dependent 
employment and self-employment. In 2019, only 78% of labour inspectorates in responding 
countries and 52% of social security/insurance authorities possessed the legal competence to 
tackle  bogus  self-employment.677  In  order to  be  effective,  enforcement  bodies  need to  be 
sufficiently resourced to conduct their activities and to cooperate with one another in a 
more  systematic  manner,  sharing  information  and,  where  relevant,  conducting  joint 
inspection activities specifically aimed at bogus self-employment.678 The work of the European 
Platform tackling undeclared work in enhancing cooperation between actors is crucial in this 
regard. 

The effectiveness of enforcement authorities is further hampered by the lack of precise data 
about  the  extent  of  bogus  self-employment.  To  improve  the  situation,  the  Irish  Joint 
Committee on Social Protection, for example, recommends that the Irish national Department 
of  Social  Protection,  in  conjunction  with  the  country’s  Central  Statistics  Office,  “develops  a 
framework for collecting data on areas of employment where there is a potential or known risk 
of  bogus  self-employment  in  the  medium  to  long-term”.679  This  kind  of  data  collection  is 
important in concentrating the focus area of enforcement actions.  

Deterrence  and  incentive  measures  are  also  important  to  actively  combat  this  form  of 
fraudulent  contracting  of  work.  Several Member States,  including  Czechia,  Finland,  France, 
Germany,  Ireland,  Luxembourg,  Portugal  and  Sweden,  have  sanctions  in  place  to  requalify 
bogus self-employment into the appropriate form of contractual relationship; a potential ‘good 
practice’ example for other Member States. In Ireland, there are discussions about extending 
the scope of these sanctions, for example by increasing the period employers are required to 
pay backdated Pay Related Social Insurance contributions that have previously been avoided 
from six months to six years.680  

677 Ibid, p. 5. 
678  J.  Heyes  and  T.  Hastings,  ‘The  Practices  of  Enforcement  Bodies  in  Detecting  and  Preventing  Bogus  Self-Employment’, 

European Platform Undeclared Work, p. 20. 

679  Houses  of  the  Oireachtas,  Joint  Committee  on  Social  Protection,  Community  and  Rural  Development  and  the  Islands, 

‘Examination of Bogus Self-Employment’, p. 3. 

680 Ibid, p. 4.  

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6.5.  Case Study 5: Posted TCNs in the construction 

sector 

6.5.1.  Overview  

In June 2021, a joint statement of the European social partners of the construction sector 
(FIEC-EFBWW)  was  made  on  TCN681  workers  and  companies  in  the  EU  construction 
market.682 This joint statement explains that “despite the fact that there are no official figures 
on  the  number  of  TCN  workers,  over  the  years,  many  studies  have  observed  a  steep 
increase of TCN workers in the EU construction industry.” Reasons why TCNs come 
to the EU include economic discrepancies and wage disparities between third countries683 
and  EU/EFTA  Member  States,  as  well  as  political  and  economic  instabilities  in  third 
countries.684 

This case study does not address the different migration schemes of TCNs (employed in 
the construction sector). The focus is rather on the group of TCNs who migrate to the EU 
and  who  are  subsequently  posted  to  another  EU  Member  State  in  order  to  provide 
services in the construction sector. Direct postings from a third country to the EU (mostly 
on the basis of a bilateral agreement) are also outside the scope of this case study. This 
case study first analyses and quantifies the main problems, and then discusses their impact 
and possible solutions. 

The Vander Elst case685 as well as subsequent cases of the Court of Justice of the EU 
(CJEU)686 make it possible for TCNs to be posted freely across the EU on the condition that 
they  hold  a  valid  work  and  residence  permit  of  the  Member  State  from  which  they  are 
posted.687 Unlike TCNs migrating to Member State B, TCNs posted from Member State A 
to  Member  State  B  do  not  need  a  'single  permit'  from  Member  State  B,  nor  will  they  be 
subject to a ‘labour market test’688 in this Member State.  

The consequences of the so-called 'VanderElst' route are highly contentious in academic 
and political debate (it is even called “the hole in the wall of fortress Europe”689) not least 
due to a huge increase of the number of posted TCNs as well as due to the high number of 
labour 
terms  and  conditions  of  employment 
infringements 
inspectorates,  such  as  underpayments,  labour  right  violations  and  precarious  working 
conditions. It has for example been found that posted TCNs to the EU have outnumbered 

identified  by 

their 

to 

681 Any person who is not a citizen of the EU or the EFTA. 
682 See: https://ec.europa.eu/social/BlobServlet?mode=dsw&docId=12147&langId=en.  
683 Any country outside the EU/EFTA. 
684 S.C. Krilić, K. Toplak, and M.V. Jevšnik, ‘Posting of Third Country Nationals. Mapping the trend in the construction sector’, 
ZRC SAZU, 2020; see also S.Danaj, ‘The posting of third country nationals via EU Member States’, Training module 3 - EU 
labour mobility regulatory framework (FMW, PoW), ELA - 28 January 2021; S. Danaj and L. Geyer, ‘Here, not to stay – The 
posting of third-country nationals between Bosnia and Herzegovina, Slovenia, and Austria’, Policy Brief 2020/6, 2020, for 
an overview of ‘push’ and ‘pull’ factors. See for instance: “The principal pull factors are the relatively better employment 
opportunities – in terms of both pay and employment conditions – in richer European countries. Up until the outbreak of the 
COVID-19 crisis, the discouraging economic conditions in Bosnia and Herzegovina were contrasted by high labour demand 
in  Slovenia  and  Austria,  especially  for  construction  workers.  In  the  case  of  Slovenia,  other  pull  factors  include  the 
aforementioned historical ties, geographical proximity, and the relatively simpler migration procedures in place.” 

685 Case C-43/93 Vander Elst v Office des Migrations Internationales [1994] ECR I-3803. 
686 For instance, Case C-18/17 Danieli or Case C-477/17 Balandin. 
687 N. Mussche and D. Lens, ‘The EU Free Movement of Services and the growing mobility of Third-Country Nationals as 
posted  workers’,  Working  Paper  No.18.13,  University  of  Antwerp,  2018  ;  European  Commission,  ‘Practical  Guide  on 
Posting’, 2019, doi: 10.2767/664838.  

688 Mechanism that aims to ensure that migrant workers are only admitted after employers have unsuccessfully searched for 
national workers, EU citizens (in EU Member States this also means EEA workers) or legally residing TCNs with access to 
the labour market according to national legislation. 

689 D. Lens, N. Mussche, and I. Marx, ‘A hole in the wall of fortress Europe: The trans-European posting of third-country labour 

migrants?’ International Migration, 2021, 60, pp. 160-176. 

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TCNs  entering  through  the  classic  national  migration  route  of  work  permit  and  visa. 690 
However, the  phenomenon  of  posted  TCNs  seems to  be  concentrated in  a  number  of 
sending  Member  States  (e.g.,  Slovenia,  Poland,  and  Lithuania,  and  to  a  lesser  extent 
Spain and Portugal) and receiving Member States (e.g., Austria, Belgium, France, and 
the  Netherlands)  as  well  as  in  specific  sectors  of  activity  such  as  construction,  road 
transport, live-in care, and agriculture.691 Therefore, in this case study the focus is on the 
posting of TCNs in the construction sector,692 with Slovenia (this mainly concerns Bosnian 
posted  workers)  and  Poland  (this  mainly  concerns  Ukrainian  posted  workers)  taken  as 
examples of main sending Member States of posted TCNs active in the construction sector 
and Belgium as an example of a main receiving Member State. 

6.5.2.  Analysis of the problem 

The main problems relating to posted TCNs in the construction sector concern the situation 
for the posted TCNs themselves. Whereas most employers claim that posting TCNs has 
become necessary to fill labour and skill shortages, other stakeholders argue that it mostly 
concerns the recruitment of cheap migrant workers. Posted TCNs often find themselves in 
a more vulnerable position693 than local workers, other mobile workers, and even other 
posted EU workers. Consequently, there is a risk of ‘double segmentation’, first between 
locally hired and posted workers, and second between EU and TCN posted workers. This 
more vulnerable position is caused by the fact that TCNs are often posted through multiple 
countries, they have a weak or unclear migration status, they are frequently interwoven into 
a complex chain of companies, they might lack training, it can be difficult to understand from 
which country they receive their social security, and they might be unaware of their rights 
and how to enforce them.694 Moreover, employment criteria for temporary residence permits 
can bind TCNs to their employer of the host Member State, a dependence that might make 
them quite vulnerable to exploitation and willing to accept lower wages (called a ‘double 
dependence’:  for  a  single  permit  and  employment).695  The  reality  of  multiple  layers  of 
vulnerability was confirmed by several participants at the expert workshop. 

An important example of their vulnerable position are wage underpayments. TCNs are a 
group of workers that is likely to accept a 'remuneration' below what should be paid but still 
much higher than the salary they are used to receiving. Research indicates that Moroccan 
and Senegalese workers posted from Spain to France earn € 4 less per hour than posted 
Spanish workers.696 Similarly, posted Bosnians from Slovenia to France were paid € 2 less 
than posted Slovenians to France. In October 2019, the European Federation of Building 
and Woodworkers (EFBWW) together with the ETUC submitted 10 problematic cases to 
ELA.697 One of the cases reads as follows:  

“A  company  registered  at  an  accountancy  office  in  Slovenia  has  posted  391 
workers, almost all of whom are Bosnian, to Germany since 2011. It is believed the 
workers  are  not  receiving  the  minimum  wage  or  paid  holiday.  Despite  that  the 
workers fear losing the work because they are heavily dependent on the jobs. The 

690 Ibid.  
691 F. De Wispelaere, L. De Smedt., and J. Pacolet, ‘Posted workers in the EU. Facts and figures’, Leuven: POSTING.STAT 

project VS/2020/0499, 2022.  

692 The posting of TCN workers in the construction sector mainly concerns low-and medium skilled workers (Cörvers et al., 
2021; Lens et al., 2021). It is even stated to be a requisite for construction companies to remain competitive (Lens et al., 
2022). 

693 See for examples e.g., S.C. Krilić et al., ‘Posting of Third Country Nationals. Mapping the trend in the construction sector’; 
Q. Ndomo, and N. Lillie, ‘(In)Secure Mobility: Posted workers’ acquiescence, social insurance, and economic rationality, 
Secure Mobility: Uncovering Gaps in the Social Protection of Posted Workers (SMUG)’, 2022. 

694 D. Lens et al., ‘‘A hole in the wall of fortress Europe: The trans-European posting of third-country labour migrants?’. 
695 S. Danaj, ‘The posting of third country nationals via EU Member States’, 
696 M. Muñoz, ‘Posted workers from and to France. Facts and Figures’, Leuven: POSTING.STAT project VS/2020/0499, 2022. 
697 See: https://www.etuc.org/en/pressrelease/eu-labour-authority-failed-act-its-first-worker-abuse-cases.  

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company  has  not  registered  any  economic  activity  in  Slovenia  and  the  unions 
believe this is a case of bogus posting.”698 

Furthermore,  there  are  also  cases  of  labour  right  violations  and  precarious  working 
conditions  regarding  posted  TCNs  in  the  construction  sector.699,700  These  workers  are 
regularly exposed to high occupational safety and health (OSH) risks on construction sites, 
while often being abandoned to their fate in the case of injury and especially illness. These 
OSH risks are frequently the result of a complete lack of training or superficial training in the 
third  country,  a  lack  of  equipment  and  protective  gear  they  sometimes  have  to  pay  for 
themselves, as well as language barriers to understanding warning signs and information, 
and poor and crowded accommodation. 

Disguising direct employment by posting is also particularly relevant for TCNs. These 
individuals  are  hired  under  fraudulent  schemes  and  portrayed  as  being  posted  workers, 
despite neither the employer nor the individual having any real connection with the alleged 
posting  country.701  Fraudulent  posting  involving  migrant  workers  seems  to  occur 
frequently in construction. For example, the Portuguese syndicate reports that clandestine 
work within the construction sector is on the rise, with increasing numbers of workers from 
other EU Member States and TCNs arriving in Portugal.702 

The high vulnerability of this group of workers is partly due to the fact that posted TCNs 
are less inclined to seek help or report their employers, seeing that they are not only 
dependent on their employer for their employment, but also for the renewal of their work 
and residence permit in the sending country.703 In addition, unfavourable experiences with 
institutions  that  provide  collective  protection  in  their  home  country  might  lessen  the 
likelihood  of  posted  TCNs  searching  for  help  when  they  find  themselves  in  a  vulnerable 
position. Finally, even though there are EU mechanisms for control and enforcement, the 
vulnerable  position  of  posted  TCNs  in  the  construction  sector  is  often  disguised.  This  is 
caused by the many levels of subcontracting, cross-border mobility, and temporary service 
provision in the construction sector specifically. 

Second,  the  posting  of  TCNs  (in  the  construction  sector)  seems  to  have  become  a 
‘business model’  for companies, in which TCNs are never employed in the Member States 
where they gained access to the EU but are immediately posted to another Member State, 
as they are “hired to be posted”.704 Being hired to be posted is allowed regarding the terms 
and conditions of employment, as long as there is an employment relationship during the 
whole period of posting between the worker posted and the employer posting the worker. 705 
However, in contrast to labour law, this is more difficult under social security law, as there 
the  posted  worker  only  remains  affiliated  to  the  sending  Member  State  when  they  are 
already subject to legislation of that Member State, which means that in practice it concerns 
at  least  one  month  before  the  start  of  the  posting.  This  business  model  (i.e.,  ‘posting 
industry’) for profit maximisation entails companies which have become active in providing 
services through the posting of TCNs in the EU.706 For instance, there are intermediaries/ 

698 See: https://www.etuc.org/en/pressrelease/eu-labour-authority-failed-act-its-first-worker-abuse-cases. 
699 S.C. Krilić et al., ‘Posting of Third Country Nationals. Mapping the trend in the construction sector’. 
700 See also S. Danaj & L. Geyer ‘Here, not to stay – The posting of third-country nationals between Bosnia and Herzegovina, 
Slovenia, and Austria’, p. 5: “Posted workers from third countries, moreover, are even more likely than other posted workers 
to not have their labour rights guaranteed. In other words, being posted creates the risk of being exploited and of suffering 
from dangerous working conditions and being a posted third country national further exacerbates those risks.” 

701  P. van Nierop, L. Schönenberg, and P. Terziev, ‘Counteracting undeclared work and labour exploitation of third-country 

national workers’, European Platform tackling undeclared work, 2021. 

702  Legal desk research conducted in Portugal, 2022.  
703 S.C. Krilić et al., ‘Posting of Third Country Nationals. Mapping the trend in the construction sector’; S. Danaj & L. Geyer, 

‘Here, not to stay – The posting of third-country nationals between Bosnia and Herzegovina, Slovenia, and Austria’. 

704 F. De Wispelaere et al., ‘Posted workers in the EU. Facts and figures’. 
705 European Commission, ‘Practical Guide on Posting’. 
706 S.C. Krilić et al., ‘Posting of Third Country Nationals. Mapping the trend in the construction sector’; 

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gang masters who recruit TCNs (without having ‘genuine activities’ in the Member 
State of establishment).707,708 

It would be interesting to better understand what makes the ‘man in the middle’ situation 
actually interesting when it comes to TCNs. As such TCNs could also be recruited directly 
without  the  need  to  be  posted.  The  problem  might  be  connected  to  the  fact  that  free 
movement is regulated at EU level, while the access of TCNs to the EU labour market is 
regulated by Member States.709,710 An important aspect in the posting of TCNs in the EU 
are flexible  bilateral  agreements  between  EU  Member  States  and  third countries. In  that 
regard,  flexible  'entry' rules in  Slovenia  and  Poland  give  specific  groups  of  TCNs  not 
only access to the labour market of these Member States, but actually also to the complete 
European labour market by the freedom to provide services. Indeed, Slovenia has signed 
an  agreement  with  Bosnia  and  Herzegovina,  whereas  Poland  has  created  a  special 
migration  regime  for  the  nationals  of  Ukraine,  Belarus,  Russia,  Armenia,  Georgia,  and 
Moldova by allowing them to work in the country through ‘declarations on entrusting work’.711 
It  is  therefore  relatively  common  to  find  Bosnian  workers  posted  from  Slovenia  and 
Ukrainian workers posted from Poland. 

Finally, one can argue that the Vander Elst case has eroded the migration sovereignty 
of Member States.712 Many Member States have tried to enforce conditions and restrictions 
on posted TCNs, but the CJEU has repeatedly condemned these processes.713 As a result, 
this means that the posting of TCNs can be seen as a parallel entry channel in an otherwise 
relatively locked gate to the EU for less privileged workers.714 Some Member States, such 
as Slovenia and Poland, accordingly, act as a ‘gate opener’ for TCNs. However, Germany 
still requires incoming TCNs posted from another Member State to obtain a ‘Vander Elst 
visa’715,  contrarily  to  the  judgments  of  the  CJEU.716  However,  this  does  not  exclude  that 
TCNs are still being sent to Germany without applying for such visa. 

6.5.3.  Quantifying the scale of the problem 

The  joint  statement  of  the  European  social  partners  of  the  construction  sector  (FIEC-
EFBWW) states that they “observe a sharp increase of TCN workers who migrate to work 
in an EU Member State. Most of these workers enter the EU labour market on the basis of 
an  employment  and  residence  permit,  issued  by  a  host  EU  Member  State.  A  large 
proportion  of  TCN  workers  is  employed  in  the  EU  host  Member  State,  while  others  are 

707 See Danaj & Geyer (2020: 4): “Over the years, Slovenia has seen growing numbers of consultants, law firms and letterbox 
companies which specialise in facilitating the posting of workers, often third-country nationals, from Slovenia to other EU 
countries  like  Austria.  A  representative  of  an  Austrian  trade  union  and  a  representative  of  the  Austrian  financial  police 
describe these companies as a whole ‘posting industry’ providing a ‘full service’ to companies looking to hire posted workers 
from Slovenia.” 

708 See also  Q. Ndomo, and N. Lillie, ‘(In)Secure Mobility: Posted workers’ acquiescence, social insurance, and economic 
rationality, Secure Mobility: Uncovering Gaps in the Social Protection of Posted Workers (SMUG)’ p.18: “The other type of 
common  intermediary  in  the  recruitment  of  posted  workers  in  the  construction  sector  in  the  EU  is  the  temporary  work 
agencies. These are especially active at the lower end of the labour market, and in the posting of third country nationals. 
Useful in sustaining the practice of recruitment for direct posting, these agencies tend to serve only as nominal employer, 
and have only a weak relationship with the worker.” 

709 However, Directive 2011/98/EU on a single permit for third-country nationals to reside and work in the EU (i.e., the Single 

Permit Directive) is a key instrument in EU immigration policy. See: https://eur-lex.europa.eu/eli/dir/2011/98/oj.  

710 Moreover, there is ambivalence concerning the special rules for Ukrainians to enter the EU labour market. The special 
rules  provide  opportunities  but  can  also  lead  to  vulnerability  and  labour  exploitation,  which  has  already  been  observed 
(remark made at the expert workshop). See: https://www.ela.europa.eu/en/support-people-fleeing-ukraine. 

711  For  more  information,  see  M.  Vah  Jevšnik,  S.  Cukut  Krilić,  and  K.  Toplak,  ‘Posted  workers  from  Slovenia.  Facts  and 
Figures’, Leuven: POSTING.STAT project, 2022 (Slovenia), and M. Kiełbasa, M. Szaraniec, M. Mędrala, and M. Benio, 
‘Posted workers from and to Poland. Facts and Figures’, Leuven: POSTING.STAT project VS/2020/0499, 2022 (Poland). 
712 N. Mussche and D. Lens, ‘The EU Free Movement of Services and the growing mobility of Third-Country Nationals as 

posted workers’, Working Paper No.18.13, University of Antwerp, 2018.  

713 ELA commissioned a study on how Member States apply this case law in practice. 
714 D. Lens et al., ‘A hole in the wall of fortress Europe: The trans-European posting of third-country labour migrants?’ .  
715See: 

https://www.zoll.de/EN/Businesses/Work/Foreign-domiciled-employers-posting/Residence-title/Nationals-of-third-

countries/uebersicht_aufenthaltstitel.html?nn=206562&faqCalledDoc=206566.   

716C-244/04  Commission  v  Germany 

(https://ec.europa.eu/commission/presscorner/detail/en/IP_02_563),  C168/04 
Commission v Austria and C-219/08 Commission v Belgium. See also VG Potsdam, decision of 02 November 2020 (re 8 L 
660/20). 

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posted to another EU Member State. Overall, […] ‘labour supply agencies/companies’ play 
an important role in the immigration and employment of the TCN workers in the EU.”  

To quantify the posting of TCNs in the construction sector, Slovenia and Poland are taken 
as the main example of sending Member States, and Belgium as receiving Member State.  

An important question is whether there is an overrepresentation of outgoing posted TCNs 
compared to the share of TCNs in the labour market of the Member State of origin. This 
exercise717 is performed for Slovenia (the legislative changes coming into force in January 
2024 (see Section 6.2) may have an impact on below figures) and Poland based on four 
indicators: 

•  First,  Slovenia  issued  a  total  of  38 444  work  permits  in  2020,  of  which  36 383  or 
94.6% for nationals from Bosnia and Herzegovina.718 This is the result of the bilateral 
agreement  between  Slovenia  and  Bosnia  and  Herzegovina,  which  states,  among 
others, that after a year of being employed on the Slovenian job market, the national 
of Bosnia and Herzegovina gains free access to the labour market in Slovenia.  

•  Second,  the  share  of  TCNs  in  the  Slovenian  labour  market  can  be  calculated.  In 
2020, they made up almost 10% of total employment in Slovenia, and even 39% in 
the Slovenian construction sector.719  

•  Third, out of all the workers posted abroad from Slovenia, 60% were TCNs in 2020. 
In  the  construction  sector  specifically,  of  all  postings,  19%  related  to  Slovenian 
nationals,  while  81%  related  to  TCNs,  of  which  49%  to  Bosnia  and  Herzegovina 
nationals.  

•  Fourth, it is estimated that over 40% of all TCNs employed in Slovenia were posted 
to another Member State in 2020. This figure contrasts with only 2% of Slovenians 
of working age who were posted to another Member State.  

Therefore, it can be stated that there seems to be an overrepresentation of posted TCNs 
from  Slovenia  compared  to  their  share  in  the  Slovenian  labour  market.  This  is 
especially  the  case  in  the  construction  sector  (81%  vs  39%).  Partly  because  of  this 
reality, many construction companies and workers appear to actually be operating in other 
Member States. For instance, it is estimated that three out of 10 construction workers are 
posted to another Member State. Moreover, it appears that 60% to 90% of the Slovenian 
construction companies generate 75% or more of their income from abroad. 

In Poland, almost 2 million ‘declarations of entrusting work to a foreigner’ and 502 300 work 
permits were issued to TCNs in 2021. Out of these 2 million declarations, 1.6 million were 
issued to Ukrainian citizens.720 It is estimated that TCNs correspond to around 16% of total 
employment in the Polish construction sector. Further, some 11% of the outgoing posted 
workers  active  in  the  construction  sector  are  TCNs.  This  seems  to  suggest  that  not  an 
abnormally  high  percentage  of  TCNs  are  posted  compared  to  their  share  in  the  Polish 
construction sector. 

On the other side, the quantification can also be looked at from the receiving side. For 
example, in Belgium, 26% of incoming posted workers are TCNs.721 Of all posted workers 
in  the  Belgian  construction  sector  in  2021,  9.3%  originate  from  Ukraine  and  3.5%  from 
Brazil.722 Two important routes for posted workers in the construction sector are indeed from 

717 F. De Wispelaere et al., ‘Posted workers in the EU. Facts and figures’. 
718 M. Vah Jevšnik et al., Posted workers from Slovenia. Facts and Figures’. 
719 Ibid. 
720 M. Kiełbasa et al., ‘Posted workers from and to Poland. Facts and Figures’. 
721 F. De Wispelaere et al., ‘Posted workers in the EU. Facts and figures’. 
722 De Smedt, 2022. 

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Ukraine  through  Poland  to  Belgium,  and  from  Brazil  through  Portugal  to  Belgium. 
Furthermore, around 53% of posted TCNs in Belgium deliver services in the construction 
sector,  indicating  that  the  posting  of  TCNs  is  especially  prevalent  in  the  construction 
sector.723 

6.5.4. 

Impact  

The phenomenon of posted TCNs has recently been increasing and it is expected to grow 
even further in the future as an important intra-EU mobility channel.724 Further, the posting 
of  TCNs  is  more  widespread  than  previously  recognised.725  The  future  growth  of  posted 
TCNs  is  likely  to  be  particularly  the  case  in  the  construction  sector.  One  of  the  main 
problems  in  this  sector  is  the  mismatch  between  demand  and  supply  of  workforce  with 
construction  sector  skills,  causing  both  manpower  and  skill  shortages.726,727  These 
shortages  are  certainly  one  of  the  main  problems,  seeing  that  even  with  a  modest  price 
markup, mobile workers in the EU might not be available and employers will have to look 
for  TCNs.  Furthermore,  since  the  construction  sector  is  a  labour-intensive  and  price 
sensitive sector, posting in this sector is seen as a cost cutting strategy.728 And as was noted 
above,  there  are  wage  differences  between  posted  TCNs  and  other  mobile  workers  or 
posted EU workers, which indicates that posting TCNs in the construction sector is often 
cheaper than employing other EU mobile workers. These factors enable the conclusion that 
the posting of TCNs in the construction sector is not expected to diminish in the foreseeable 
future. Therefore, it is very important that several solutions are analysed and further actions 
are taken to ensure a better protection of working conditions for TCNs and the curtailment 
of infringements. 

6.5.5.  Conclusions and recommendations 

As  there  are  different  problems  concerning  posted  TCNs  in  the  construction  sector,  as 
discussed in this case study, multiple solutions are also necessary.  

First,  to  counter  the  problem  of  the  vulnerable  position  of  posted  TCNs,  these  workers 
should be better informed about their labour rights.729,730 Often, language barriers and 
cultural  differences  are  key  obstacles  in  this  regard  to  build  trust  and  communicate  with 
posted  TCNs  in  both  the  sending  and  receiving  Member  State.731  For  example,  in  the 
Belgian  strategic  plan  2022-2025  of  the  Social  Information  and  Investigation  Service 
(SIRS/SIOD) it is noted that TCNs are an important risk group, and they should therefore 
be properly informed about their rights and obligations.732 A good example is the website 

723 D. Lens et al., ‘A hole in the wall of fortress Europe: The trans-European posting of third-country labour migrants?’.  
724 M. Vah Jevšnik et al., Posted workers from Slovenia. Facts and Figures’. 
725 D. Lens et al., ‘A hole in the wall of fortress Europe: The trans-European posting of third-country labour migrants?’. 
726 See the recent report on labour shortages and surpluses (McGrath, 2021). A total of 28 occupations, employing 14% in 
the  EU  workforce  in  2020,  were  classified  as  shortages  –  and  19  occupations  were  classified  as  shortages  of  high 
magnitude. The list of shortages is dominated by just four groups of occupations; healthcare related occupations; software 
professionals; construction, and engineering craft workers. These four occupation groups account for 21 of the 28 identified 
shortage occupations and for 64% of the total employment in the 28 occupations. 

727 The Belgian construction sector, which is said to be mainly cost-driven, is also facing labour shortages. Roughly 20 000 
additional construction workers are needed. About seven out of ten of the (large) Belgian construction companies have one 
or more vacancies. 

728 D. Lens, I. Marx, and N. Mussche, ‘Posted work: what is it economic importance in Belgium?’, 2022. 
729 S.C. Krilić et al., ‘Posting of Third Country Nationals. Mapping the trend in the construction sector’; S. Danaj & L. Geyer, 

‘Here, not to stay – The posting of third-country nationals between Bosnia and Herzegovina, Slovenia, and Austria’. 

730 See also  Q. Ndomo, and N. Lillie, ‘(In)Secure Mobility: Posted workers’ acquiescence, social insurance, and economic 
rationality, Secure Mobility: Uncovering Gaps in the Social Protection of Posted Workers (SMUG), p.18: “In some focus 
group discussions by stakeholders and experts, they noted that often, not enough information is made available to posted 
workers. In other cases, it was felt that there is plenty of information in various languages and presented through multiple 
media,  such  as  websites,  brochures,  workplace  information  sessions,  and  even  personal  contacts  with  union 
representatives. However, posted workers rarely availed themselves of this information.” 

731 K. Kall, A. Brzozowska, N. Lillie, K. Matuszczyk, and J. Salamońska, ‘Regional Study From Ukraine to Finland and Estonia 
via Poland: Migration and posting of third country nationals’, University of Jyväskylä and University of Warsaw, 2020.  

732 Legal desk research conducted in Belgium, 2022.  

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designed  by  the  European  Federation  of  Building  and  Woodworkers733  which  provides 
concise information on wages, working conditions and rights of construction workers for all 
the  European Member States  in  all  the  European  languages.734  Informing  these  workers 
can be the responsibility of both the employers, the trade unions735, as well as the sending 
and receiving Member State. Coordination between these different actors is important and 
necessary, to ensure as many workers as possible are reached and that the content of the 
information provided is as accessible as possible.  

The literature notes that one of the issues is the “workers’ passivity, which means that “the 
workers’ role  in  terms  of  monitoring  and  enforcing  their  own  employment  conditions  was 
fairly  passive.”736  Measures  could  be  put  in  place  to  turn  such  passive  attitudes  into  a 
more  critical  attitude  regarding  the  wages  and  working  conditions  to  which  the  posted 
TCN is entitled. “Segregation and exploitation are not inevitable consequences of posted 
working”  and  workers’  individual  decisions  and  personal  circumstances  of  migration  can 
help curtail abusive practices.737 As discussed above however, the vulnerable posted TCN 
status,  often  prevents  complaints,  as  workers  are  economically  dependent  on  their 
employer and fear losing their income as well as their status in the country if they lose their 
jobs.738  

To improve the position of posted TCNs in the construction sector, it is not only a matter of 
focusing on the posted TCNs, as the construction sector itself must deal with several issues. 
It  is  characteristic  of  this  sector  to  have  many  levels  of  subcontracting  due  to  the 
fragmented nature of the work, more so than in other industrial sectors.739 As a result, there 
is a major lack of transparency and accountability,740 which makes enforcement even 
harder.  Therefore,  enforcement  of  the  posting  rules741  in  this  sector  in  general  and 
specifically  concerning  TCNs  is  critical.742  Moreover,  there  is  a  need  to  improve 
transnational cooperation among enforcement bodies.743 

There  is  also  a  need  to  clarify  the  conditions  under  which  TCNs  belonging  to  the 
labour market of a Member State can be legally posted to another Member State, as 
Member  States  have  developed  varying  practices  (see for  example  Germany). It  can  be 
examined whether it is expedient to transpose the conditions under which TCNs can be 
posted within the EU into European legislation, for example in a Directive.744,745 This would 
not  be  something  new,  as  such  proposal  was  already  prepared  once  in  1999  by  the 
Commission.746  Such  a  Directive  could  also  provide  for specific control  mechanisms  and 
sanctions and include guarantees for the safeguarding of the rights of these workers.  

733 See : https://www.constructionworkers.eu/en/al  
734 Legal desk research conducted in Italy, 2022.  
735  However,  “the  hyper-mobility  of  both  workers  and  firms,  as  well  as  the  sheer  size  of  the  construction  labour  force  at 
particular sites, makes it impossible for local unions to maintain labour standards for all workers employed there. At best, 
they can manage to improve conditions for a limited set of workers, through active and well-resourced efforts” (L. Berntsen, 
and N. Lillie, ‘Hyper-mobile migrant workers and Dutch trade union representation strategies at the Eemshaven construction 
sites’, Economic and Industrial Democracy, 2016,  37(1), p.184. 

736 Ibid, p.185. 
737  J.  Davies,  ‘Labour  Exploitation  and  Posted  Workers  in  the  European  Construction  Industry’,  In  European  White-Collar 

Crime, Bristol University Press, 2020, p. 168. 

738  S.  Danaj  and  L.  Geyer,  ‘Here,  not  to  stay  –  The  posting  of  third-country  nationals  between  Bosnia  and  Herzegovina, 

Slovenia, and Austria’, p.6. 

739 Legal desk research conducted in Denmark for this study, 2022.  
740  European  Federation  of  Building  and  Woodworkers  and  European  Construction  Industry  Federation  2020,  Tackling 
Undeclared Work in the Construction Industry Toolkit with Concrete Cases from Belgium, France, Bulgaria, Italy, Spain, 
Romania and Austria.  

741 However, Danaj (2021) defines ‘human resources challenges’ (insufficient personnel, TCN language barriers) and ‘cross-

border collaboration challenges’ two of the biggest challenges in enforcing rules.  

742 S.C. Krilić et al., ‘Posting of Third Country Nationals. Mapping the trend in the construction sector’. 
743 S. Danaj & L. Geyer, ‘Here, not to stay – The posting of third-country nationals between Bosnia and Herzegovina, Slovenia, 

and Austria’. 

744 Suggested during expert interviews conducted for this study in 2022.  
745 See also S. Danaj, ‘The posting of third country nationals via EU Member States’, last slide: “The solution could be to find 

a way to re-regulate or restrict TCN posting.” 

746  

European Commission (1999), Proposal for a Directive of the European Parliament and of the Council on the 

posting of workers who are third-country nationals for the provision of cross-border services (1999/C 67/09). https://eur-
lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:51999PC0003(01)&qid=1675861207418&from=EN  

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Finally, an evaluation of the flexible bilateral agreements in some Member States (e.g., 
in  Slovenia  and  Poland)  seems  particularly  relevant,  as  this  phenomenon  is  highly 
concentrated in a number of sending Member States. For instance, additional conditions 
could be added to ensure that TCNs are first integrated in the labour market of the Member 
State concerned (and thus meet the needs of the labour market) before they can be posted 
to another Member State. 

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6.6.  Case Study 6: Key types of OSH-related violations 

and enforcement challenges in temporary cross-
border work 

6.6.1.  Overview 

The research conducted for this study has repeatedly identified OSH-related violations, both 
at the place of work and at the location of residence, for workers in posted and non-posted 
situations,  across  countries  and  sectors.  This  case  study  provides further  analysis  about 
the key types of OSH-related violations revealed by our sectoral and country-level research, 
focusing on TCNs as well as potentially other workers in the scope of the study.  

Dealing  with  OSH-related  challenges  involves  a  range  of  key  stakeholders,  such  as  EU 
policymakers, national governments, enforcement authorities and social partners. This case 
study  examines  the  situation  in  individual  EU  Member  States  and  sectors,  based  on 
available data.  

6.6.2.  Analysis of the key challenges 

The health and safety of those engaged in temporary cross-border work is a policy concern 
at EU and national level, and something that is linked to the monitoring and enforcement of 
regulations  and  legislation  governing  the  working  conditions  of  these  workers  in  many 
sectors across the EU.  

Key issues of concern, which this case study attempts to address, include:  

•  posted  workers  often  carry  out  tasks  which  are  of  higher  risk  than  non-posted 

workers;  

•  subcontracting  and  self-employment  among  posted  workers  can  diffuse 

responsibility for OSH; and  

•  communication  can  be  difficult,  due 

to 

language  barriers  and  cultural 

misunderstandings;  

there are a range of OSH issues related to the accommodation of posted workers; 

• 
•  psychosocial  risks  can  be  higher  for  posted  workers,  and  this  can  be  linked  to 
accommodation  and  the  intrinsic  nature  of  postings.  However,  enforcement 
authorities often do not address this issue. Overall, it should be noted that the focus 
when talking about OSH risks for posted workers tends to be on physical risks rather 
than psychosocial risks, although it is clear that psychosocial risks are present; and 

•  posted workers may not always be given the best and most up-to-date equipment; 

From the literature, there is limited evidence that relates specifically to the OSH challenges 
as relevant to posted and cross-border workers. Danaj and Zólyomi (2018) in their review 
of the literature as part of the POOSH project note, for example, that “although there is an 
extended literature on OSH and a growing one on posting, both strands hardly intersect”747. 
However,  this  study  goes  on  to  give  an  overview  of  the  specific  vulnerabilities  of  cross-

747 S. Danaj. and E. Zólyomi ‘Occupational Health and Safety of Posted Workers in the EU: A Comparative Report. POOSH 
–  Occupational  Safety  and  Health  of  Posted  Workers:  Depicting  the  existing  and  future  challenges  in  assuring  decent 
working conditions and wellbeing of workers in hazardous sectors’, Vienna: European Centre for Social Welfare Policy and 
Research, 2018, p.21. 

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border  workers  in  terms  of  OSH.  It  notes  that  there  is  a  negative  correlation  between 
precarity and migration and OSH vulnerabilities, citing studies748 that show that there is a 
higher  incident  of  workplace  accidents,  including  fatalities  among  migrant  workers, 
compared with host country workers.  

The types of jobs in which cross-border workers are engaged also plays a role, with migrant 
workers  tending  to  work  more  frequently  in  physically  demanding  and  hazardous  jobs, 
which are also more likely to be associated with poor working conditions. These workers 
are also more likely to experience discrimination, bullying, social exclusion and have limited 
access to services such as social security and sick pay. Below, some of the key problematic 
situations that create OSH challenges for posted workers and other types of cross-border 
workers  are explored. 

6.6.2.1.  Subcontracting 

The practice of subcontracting poses a number of indirect OSH risks, as highlighted by the 
literature  in  this  area.  For  example,  one  study  notes  that  the  growing  number  of  posted 
workers, workers recruited through temporary work agencies oo other intermediaries, and 
bogus self-employed persons in subcontracting chains can cause a number of problems, 
one of which concerns OSH. In particular, this study notes that reduced attention to OSH 
could  be  a  result  of  fierce  intra-firm  competition  between  lower-level  contractors  for 
contracts  in  the  construction  sector,  which  in  turn  puts  pressure  on  working  conditions 
standards749  and  means  that  subcontracted  workers  can  be  less  well-informed  about 
significant and relevant OSH policies and procedures750.  

Other studies point to the risk that subcontracted workers could be more vulnerable to OSH 
risks  due  to  longer  hours,  intensity  of  work,  economic  stress,  and  their  concentration  in 
higher-risk segments of supply chains751. The literature also notes that long and complex 
subcontracting  chains  can  harbour  practices  such  as  undeclared  work  and  labour 
exploitation752. For example, labour exploitation can take the form of non-payment of wages, 
the  deduction  of  fees  from  salaries,  excessive  or  involuntary  overtime,  little  or  no  social 
protection,  compromised  health  and  safety  protection  for  workers,  poor  accommodation, 
and social isolation.  

6.6.2.2. 

Language competence 

One central issue that is linked to potential OSH-related challenges is that of the language 
skills of posted workers. These workers may not possess the necessary language skills of 
the  host  country  to  enable  them  to  understand  safety  briefings  or  read  OSH-related 
information  about  procedures  and  processes.  If  they  have  limited  interaction  with  host 
country workers, they may also not understand the host country’s safety culture. This can 
then lead to a greater risk of work-related accidents and injuries.  

748  J.  Benach,  A.  Vives,  M.  Amable,  C.  Vanroelen,    G.  Tarafa,  C.  Muntaner,  ‘Precarious  Employment:  Understanding  an 
Emerging Social Determinant of Health’, Annual Review of Public Health, 2014, 35, pp. 229–253; EU-OSHA,  ‘Literature 
Study 
at: 
https://osha.europa.eu/en/publications/literature_reviews/migrant_workers.  

EU-OSHA 

Workers’ 

available 

Migrant 

Bilbao, 

2007, 

on 

- 

749 L. Berntsen & N. Lillie, 'Hyper-mobile migrant workers and Dutch trade union representation strategies at the Eemshaven 
Industrial  Democracy,  2014,  37(1),  pp.  1714-187,  available  at: 

construction 
https://doi.org/10.1177/0143831X14537357.  

sites',  Economic  and 

750 S. Choe, W. Seo, & Y. Kang, 'Inter- and intra-organizational safety management practice differences in the construction 

industry', Safety Science, 2020, 128, available at: https://doi.org/10.1016/j.ssci.2020.104778.  

751 P. James, D. Walters, H. Sampson, & E. Wadsworth, 'Protecting workers through supply chains: Lessons from two 

construction case studies'Economic and Industrial Democracy, 2015, 36(4), pp. 727–747, available at: 
https://doi.org/10.1177/0143831X14532296. or: European Platform tackling undeclared work, ‘Tackling undeclared work 
in supply chains’, Learning Resource Paper, 2023, https://www.ela.europa.eu/sites/default/files/2023-03/Tackling-
undeclared-work-in-supply-chains.pdf  

752  P.  van  Nierop,  L.  Schönenberg,  &  P.  Terziev,  'Counteracting  undeclared  work  and  labour  exploitation  of  third-country 

national workers', European Platform tackling undeclared work, 2021. 

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There  are,  however,  some  initiatives  that  aim  to  improve  the  language  skills  of  posted 
workers. In the cleaning sector, for example, an interviewee from the European Cleaning 
and  Facilities  Services  Industry  (EFCI)  noted  that  this  organisation  devotes  a  significant 
level of resources to providing posted workers with at least the skills they need in terms of 
language to protect their health and safety753. The box below highlights some good practice 
examples that aim to overcome language barriers for non-national workers. 

Box 23. Good practice examples on overcoming language barriers 

Trade unions in Italy attempt to overcome language barriers in the case of non-nationals 
through the use of union officials of immigrant origin who speak the same languages 
used by posted workers and who have received specific training relating to the posting 
of  workers.  These  officials  offer  assistance  and  protection  to  posted  workers  by 
providing:  

•  general information on working conditions in Italy through trade union;  

•  delegates in the workplace;   

•  general information on working conditions through leaflets in various languages;   

• 

• 

information on posting regulation through provincial or regional union officers who 
have specific training on these issues;   

legal assistance in disputes with employers or in the case of labour disputes. In 
addition,  Italian  trade  unions  cooperate  with  the  trade  unions  of  the  sending 
countries in order to collect information on employers and non- payment of social 
contributions. 

Source: Cillo, R., 2021, Bridging the gap between legislation and practice in the posting of workers: Italy 
Country report, available at: https://www.euro.centre.org/downloads/detail/4004 , p. 23  

This  website  for  the  construction  sector754  also  offers  information  in  30  different 
languages regarding: working conditions in the receiving countries. 

In  Austria,  the  Posting  of  workers  platform,755  a  website  dedicated  to  providing 
information for companies and employees concerning posting to Austria, is accessible 
in several languages. In addition to English, the website is available in the languages of 
the  main  source  countries  including  Slovakian,  Slovenian,  Polish,  Hungarian  and 
Czech. The platform offers information covering a wide range of specific topics relevant 
to  posting:  labour  law,  minimum  wage,  collective  agreements,  formal  requirements, 
enforcement  as  well  as  sections  with  special  rules  that  apply  in  posting  and  hiring 
workers  in  the  construction  and  transport  sector.  Working  time,  annual  leave  and 
occupational health and safety are found under the Labour Law heading. Links to the 
main  institutions  and  authorities  involved  in  posting  can  also  be  found  for  further 
information and assistance. 

Source: Danaj, S. and Zólyomi, E. (2018). Occupational Health and Safety of Posted Workers in the EU: A 
Comparative Report. POOSH – Occupational Safety and Health of Posted Workers: Depicting the existing 
and future challenges in assuring decent working conditions and wellbeing of workers in hazardous sectors. 
Vienna: European Centre for Social Welfare Policy and Research, p.44 

753 Interview with an industry representative, conducted in February 2022. 
754 https://www.constructionworkers.eu  
755 http://www.entsendeplattform.at or http://www.postingofworkers.at  

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6.6.2.3.  Housing 

A number of other issues can have some impact on the health and safety of posted workers. 
For example, posted workers are living and working in a location which is not their native 
country,  which  can  create  stress  due  to  isolation  and  loneliness.  Posted  workers  are 
therefore exposed to risks that are intrinsic to their posting situation and which for the host 
country  workforce  would  not  usually  be  considered  to  be  work-related  risks  in  the  same 
way.  This  means  that  these  types  of  risks  are  unlikely  to  be  picked  up  by  labour 
inspectorates.  

Further,  housing  itself  can  be  a  key  consideration  in  terms  of  having  an  indirect 
impact  on  OSH:  poor  housing  can  have  a  negative  impact  on  the  physical  and  mental 
health  of  workers.  In  Belgium,  for  example,  housing  was  held  by  one  stakeholder 
interviewee  to  be  a  challenge  in  the  case  of  TCNs  coming  from  Poland,  largely 
Ukrainians756.  Danaj and Zólyomi (2018)757 also found that lack of affordable and adequate 
housing is an issue that can affect the health of posted workers. This in turn could make 
these workers more susceptible to work-related accidents and injuries. 

Housing costs are likely to be high in the host country, and posted workers are likely to lack 
knowledge about the local housing market. This means that they are more vulnerable to 
practices such as the deduction of accommodation costs from their salaries, a practice that 
was highlighted in Belgium and Spain. Accommodation provided by employers can be of 
poor  quality  and  overcrowded,  leading  to  issues  such  as  lack  of  sleep,  which  in  turn 
increases  the  risk  of  work-related  accidents.  This  research  interviewed  workers  in  the 
transport sector, some of whom stated that they were obliged to sleep in their vehicles due 
to employers not covering accommodation costs.758 This lack of quality sleep could have an 
impact on the concentration levels of drivers. 

6.6.2.4.  Out-of-date equipment 

There are also issues related to the use of equipment that is old and contains a low level 
of technology. For example, as noted by research carried out for this study, in Denmark, 
the Danish Working Environment Authority highlights that foreign companies operating in 
Denmark are more likely than their Danish counterparts to use outdated working methods, 
in  addition  to  relying  more  heavily  on  physical  work  and  a  lower  level  of  technological 
equipment. This in turn creates a greater risk of work-related injuries and accidents.  

The Danish Working Environment Authority also highlighted examples of foreign workers in 
Denmark  not  being  offered  facilities  such  as  proper  dining  areas,  toilets  and  washing 
facilities,  in  addition  to  living  in  poor  conditions.  These  types  of  issues  are  found  by  the 
Authority to be particularly prevalent in the construction sector, among airport staff, those 
involved in the transport of good, cleaning, IT and in catering759. 

6.6.2.5.  Sectoral challenges 

On a sectoral basis, there are OSH-related challenges in all of the sectors covered by this 
study. Below, issues that are specific to individual sectors are examined.  

756 Interview with an academic expert, conducted in February 2022. 
757 S. Danaj. and E. Zólyomi ‘Occupational Health and Safety of Posted Workers in the EU: A Comparative Report. POOSH 
–  Occupational  Safety  and  Health  of  Posted  Workers:  Depicting  the  existing  and  future  challenges  in  assuring  decent 
working conditions and wellbeing of workers in hazardous sectors’. 

758 Ibid. 
759 See:  https://at.dk/om-os/faelles-myndighedsindsats-mod-social-dumping/arbejdstilsynets-erfaringer/.  

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Construction is arguably the sector with the most prominent challenges to the health 
and  safety  of  posted  workers  and  other  cross-border  workers,  given  the  high-risk 
nature of the work. The desk research carried out for this study found that there were health 
and safety-related challenges in the construction sector, particularly in countries such as 
Bulgaria and Czechia.  During our research, we also found comparative studies highlighting 
that  some  employers  of  posted  workers  in  the  construction  sector  are  found  by  labour 
inspections to be particularly prone to labour law and occupational safety and health (OSH) 
violations760, compared with other sectors.761  

Stakeholders interviewed for this study and relevant studies have highlighted many labour 
rights  violations  regarding  the  posting  of  TCNs  in  all  sectors,  but  especially  in  the 
construction sector, as, they noted that irregular and exploitative employment practices can 
often  be  transferred  from  the  country  of  origin  to  the  sending  and  receiving  EU  Member 
States,  as  a  result  of  subcontracting  chains.762  For  example,  “TCN  posted  workers  are 
exposed to high OSH risks on construction sites and are commonly abandoned to their fate 
in the case of injury and especially illness”.763 This vulnerability is particularly pronounced 
in  the  case  of  posted  TCN  workers  as  they  are  even  more  ‘cloaked’  by  the  posting 
employment, characterised by subcontracting, cross-border mobility, and temporary service 
provision, in comparison with other posted workers.764  

The POOSH study, examining nine Member States, found that “the temporary, mobile and 
transnational character of posting affects the health and safety of posted workers in multiple 
ways”.765 This study examined the tradition that many construction workers live on-site in 
collective  accommodation,  finding  that  posted  workers  in  this  sector  sometimes  face 
economic vulnerability and an increased dependence on their employer, which may lead 
them  to  accept  poor  working  and  living  conditions.766  Moreover,  cases  where  injuries  to 
construction  workers  have  been  reported  have  revealed  irregularities  in  posted  workers' 
health insurance and care. 

Subcontracting  is  also  a  common  practice  in  the  construction  sector,  and  this  can 
exacerbate  health  and  safety  issues  in  that  employers  situated  further  down  the 
subcontracting  chains  may  not  be  as  engaged  in  health  and  safety  issues.  One  of  our 
stakeholder  interviewees  confirmed  that  subcontracting  was  a  common  practice  in  the 
sector, and one that can range from subcontracting to subsidiaries of larger companies, to 
self-employed individuals767.  

In  the live-in  care  sector,  the  very  nature  of the  work  in  this  sector renders  it  virtually 
impossible to separate working and recreational time. This in turn makes it difficult to 
mitigate the  health  and safety  impacts  of  practices  such  as  working  too many  hours  per 
week. There are also physical risks involved in working in a home that may be ill-adapted 
to the needs of workers, for example beds which are not designed to be raised and lowered, 
unlike those in a residential care setting or other facility that can support caring for patients 
with  limited  mobility.  Further,  workers  in  this  sector  may  suffer  from  a  high  degree  of 
emotional strain due to isolation and also the nature of the health conditions of those for 
whom they are caring. There may also sometimes be pressure from the care recipient to 
extend the scope of work, for example to housekeeping and cooking. All of these factors 

760 In Belgium, the importance of health and safety at work in case of the posting of workers has unfortunately been a focus, 
due to the fatal accident of five posted construction workers that occurred on 18 June 2021 on a construction site in Antwerp. 
761 S. Danaj, E. Zólyomi, R. Kahlert, N. Prinz, & V. Sandu, 'Bridging the gap between legislation and practice in the posting of 

workers – POW BRIDGE', 2021, available at: https://www.euro.centre.org/projects/detail/3633.  

762 S. Cukut Krilić,, K. Toplak, and M. Vah Jevšnik, ‘Posting of Third Country Nationals: A comparative study’, 2020,  Ljubljana: 

ZRC SAZU. 
763 Ibid, p. 66. 
764 S. Danaj, L. Geyer, S. Cukut Krilić,, K. Toplak, and M. Vah Jevšnik, ‘From Bosnia and Herzegovina to Austria via Slovenia: 

migration and posting of third country nationals in the EU’, 2020. 

765 S. Danaj. and E. Zólyomi ‘Occupational Health and Safety of Posted Workers in the EU: A Comparative Report. POOSH 
–  Occupational  Safety  and  Health  of  Posted  Workers:  Depicting  the  existing  and  future  challenges  in  assuring  decent 
working conditions and wellbeing of workers in hazardous sectors’, p. 6.  

766 Ibid. 
767 Interview with an industry representative, conducted in February 2022. 

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mean that are multiple occupational health and safety risks for workers in the live-in care 
sector. 

It is also important to consider the effects of the COVID-19 pandemic on the live-in care 
sector. Given that this form of care implies limited contacts with multiple different carers, 
thus contributing to feelings of safety with regard to the likelihood of catching the virus, some 
Member States saw increases in the number of live-in carers in 2020 and 2021. In Cyprus, 
for example, an estimated 14,825 carers were employed by households in 2019, compared 
to  15,947  in  2020  and  18,754  in the  second  quarter  of  2021.768  Although many  of these 
carers were TCNs, most lived (semi-) permanently in Cyprus. 

The meat processing sector has received much attention in recent years in terms of the 
working  conditions  of  its  workforce,  particularly  in  Germany.  Practices  such  as 
subcontracting, the hiring of temporary agency workers, posted workers and (bogus) self-
employed  workers  have  contributed  to  significant  challenges  in  relation  to  the  working 
conditions employment and housing conditions of a large proportion of meat sector workers. 
Specific issues relate to low wages, poor accommodation, for which workers are reported 
to  pay  excessive  rents,  falsified  timesheets  and  below-standard  health  and  safety 
conditions769.  During  the  COVID-19  pandemic,  there  were  mass  infections  in  meat 
processing factories in Europe and beyond. See the box below for details of OSH-related 
challenges in the meat sector. 

Box 24. OSH challenges in the meat sector 

Workers in the meat industry were particularly affected by COVID-19 in many European 
countries, but also in Australia, Brazil and the USA. The reasons for the mass infections 
at  meat  processing  sites  are  seen  to  lie  in  the  working  conditions,  and  a  number  of 
elements  have  been  identified  as  factors  that  contributed  to  the  spread  of  the  virus. 
Firstly,  there  was  a  general  lack  of  social  distancing,  as  workers  often  work  in  close 
proximity to one another on the processing chain, and companies did not increase the 
distance between work stations. In addition, foreign workers often live together because 
housing  is  directly  linked  to  their  work  contract  and  their  wages  are  too  low  to  find 
accommodation elsewhere.  

Other  health  and  safety measures adopted to  protect  workers  during  this  emergency 
period were not implemented: for example, protective equipment was not provided. On 
the production sites, insufficient ventilation also contributed to the spread of the virus. 
Moreover, certain parts of meat processing plants are inevitably very cold and the virus 
transmits more easily in colder temperatures. Finally, it is reported that many workers 
came to work despite being ill with COVID-19 for fear of losing their job or for not being 
able to manage on sick pay.  

Source: EFFAT, 'Covid-19 outbreaks in slaughterhouses and meat processing plants: State of affairs and 
https://effat.org/wp-
level', 
proposals 
content/uploads/2020/09/Covid-19-outbreaks-in-slaughterhouses-and-meat-processing-plants-State-of-
affairs-and-demands-for-action-at-EU-level-7.09.2020.pdf. 

available 

at  EU 

action 

policy 

2020, 

for 

at: 

However,  Germany  has  recently  enacted  new  legislation,  the  Occupational  Health  and 
Safety Enforcement Act (Arbeitsschutzkontrollgesetz), which came into force on 1 January 
2021  and  which  is  aimed  at  countering  some  of  the  main  challenges  in  this  sector.  For 
details of this legislation, which is reported to have done much to change the culture in the 
German meat processing sector, see the section on regulation below.  

768  Eurofound,  ‘COVID-19  and  older  people:  Impact  on  their  lives,  support  and  care’,  2022,  p.  51,  available  at: 

https://www.eurofound.europa.eu/sites/default/files/ef_publication/field_ef_document/ef21053en.pdf.  

769  Für 

faire  Arbeitsbedingungen 

in  der  Fleischindustrie!;  NGG;  DGB;  2020,  available  at:  https://www.faire-

mobilitaet.de/fleischindustrie/++co++081535ae-d0dd-11ea-a2d9-001a4a160123.  

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Agriculture is also a sector with high levels of injuries and accidents due to the nature of 
the work, and in particular work carried out using a variety of machinery. Literature consulted 
for  this  study  points  to  specific  OSH  issues  in  relation  to  older  workers  who  have  been 
farming in the same way for decades, using old tools and/or techniques which can result in 
enhanced risk of accident and injury.  

The practice of self-employment in agriculture is also reported to have serious implications 
for  OSH.  For  example,  Jakob  et  al  2021  note  that  self-employment  in  this  sector,  which 
accounts for nearly 90% of all employment in the sector, leads to serious under-reporting 
of accidents.770 

Most seasonal workers are employed on fixed term contracts rather than on a posted basis 
in the agriculture sector. However, seasonal workers in general may be at greater risk in 
terms of health and safety as they are potentially more likely to be cross-border workers. In 
Spain, for example, there are concerns about the lack of protection for seasonal workers in 
the  countryside,  and  especially  female  workers  in  the  agricultural  sector771.  In  Germany, 
most  seasonal  workers  are  employed  on  a  mini-job  basis,  which  is  exempt  from  social 
security,  although  according  to  an  interview  carried  out  with  the  DGB  trade  union 
confederation in Germany for this study, there are practices of misclassification of workers, 
meaning that these workers are often not covered by health insurance.   

In the hotels, tourism and catering sector, seasonal work is very common, linked to the 
seasonal nature of the sector. A report by EU-OSHA772 confirms that this sector employs a 
high number of migrant workers, through seasonal or casual work. It noted that the jobs that 
these  workers  carry  out  are  in  general  more  precarious  than  those  carried  out  by  host 
country natives, and that migrants more often work in unhealthy environments, and take on 
jobs that are more dangerous. Factors that contribute to poor health and safety for these 
worker  in  this  sector  include  poor  language  skills,  low  levels  of  education,  a  lack  of 
knowledge of their employment rights, a lack of knowledge in terms of who to ask in the 
case of a problem, low levels of pay and difficulties in validating qualifications.  

A large proportion of these seasonal workers are reported to be TCNs, who can be placed 
in a precarious position. In Italy, for example, a seasonal work permit is valid for between 
20 days and nine months, depending on the specified duration of employment.773  

However, if a worker holds a seasonal work permit as a TCN in Italy and loses their job, 
they  lose  the  right  to  reside  regularly  and  temporarily,  and  are  obliged  to  leave  the 
country.774 This leads to a situation whereby TCNs tend not to report any violation of their 
working  or  OSH  rights  and  accept  dangerous  working  conditions  for  fear  of  bringing 
attention to themselves and losing their job.775   

Working  patterns  in  this  sector  are  also  linked  to  OSH  issues,  for  all  workers,  including 
TCNs and seasonal workers. For example, regular non-rotating shift patterns can have a 
detrimental effect on the physical health of workers in the sector. Further OSH risks include 

770 M.C. Jakob, D. Santa, K.A. Holte, I.J. Sikkeland, B. Hilt and P.Lundqvist, ‘Occupational health and safety in agriculture – 
a brief report on organization, legislation and support in selected European countries’, 2021, Lublin : Institute of Agricultural 
Medicine. 

771  D.  Carrascosa  Bermejo  &  O.  Contreras  Hernández, 

‘Posted 

from  and 

to  Spain’,  2022,  available  at: 

https://hiva.kuleuven.be/en/news/docs/posted-workers-from-and-to-spain-facts-and-figures,  p. 75. 

772 EU-OSHA, Protecting workers in hotels, restaurants and catering, 2008, Available at: 

https://osha.europa.eu/en/publications/report-protecting-workers-hotels-restaurants-and-catering  

773 See: https://ec.europa.eu/immigration/italy-seasonal-worker_en.  
774 ETUI, Seminar on ‘Challenges associated with short-term labour mobility: third-country nationals, posted workers, seasonal 

workers, and refugees’, 13-14th June 2022. 

775  ILO,  ‘Towards  a  fair  deal  for  migrant  workers  in  the  global  economy’,  92nd  session,  2004,  para.  208,  available  at: 

https://www.ilo.org/public/english/standards/relm/ilc/ilc92/pdf/rep-vi.pdf.  

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those  related  to  noise,  ergonomic  factors,  temperature,  psychosocial  stress  factors, 
including lack of autonomy, and long working hours776. 

6.6.3.  Role of EU regulation 

There  is  a  large  body  of  legislation  covering  OSH  at  European  level.  This  comprises 
principally the OSH Framework Directive 89/391/EEC and specific Directives on workplace 
requirements (Directive 89/654/EEC), the use of work equipment (Directive 2009/104/EC), 
health  and  safety  signs  at  work  (Directive  92/58/EEC),  minimum  standards  for  personal 
protective equipment (Directive 89/656/EEC), risks from explosive atmospheres (Directive 
99/92/EC),  and  Directives  relating  to  exposure  to  chemical  agents  and  chemical  safety, 
physical hazards and biological agents and Directives relating to workload, ergonomic and 
psychosocial risks.  

In  addition  there  are  a  range  of  sector-specific  and  worker-related  provisions  that  have 
relevance for OSH in the workplace. Danaj and Zólyomi (2018) note that “OSH is considered 
as one of the most developed and successful policies in the EU throughout the decades, 
which has seen impressive transformation from the technical standards of the early times 
prescriptive approach to the more current goal-oriented and social dialogue approaches777”. 
However, they also note that more needs to be done in particular in terms of enforcement. 

The main challenges from a regulatory point of view appear to be related to how these 
Directives are enforced in Member States and particularly in relation to posted and cross-
border workers. For example, the research has found that there are challenges around 
reporting  accidents  and  the  harmonisation  of  this  in  EU  Member  States.  The 
Framework  Directive  89/391  provides  for  the  obligation  to  report  work  accidents  to  the 
authorities, and posting companies do report accidents, but only to the authorities of the 
country of origin rather than also to those in the host country.  

There is also no harmonisation of this aspect in the legislation or administrative practices in 
Member  States.  The research  carried  out  for  this  study found  that  some  Member  States 
require that all companies report accidents in all cases and to all companies, while others 
require  reporting only  to  companies  that  are  covered  by  their  social  security  system 
(Germany, Italy and Spain, among others). Even in countries where a declaration is required 
of all companies in any state (e.g. France), there is reported to be a general failure to comply 
with  this  obligation,  as  was  revealed  in  a  campaign  by  the  Senior  Labour  Inspectors 
Committee (SLIC) in 2018. 

There are examples of new legislation being enacted in individual Member States in order 
to  counter  specific  challenges.  In  Germany,  for  example,  new  regulations  targeted  the 
specific problems in terms of working conditions of workers in the meat processing sector. 
The Occupational Health and Safety Enforcement Act (Arbeitsschutzkontrollgesetz) can be 
seen as an important milestone in ending the exploitative practices sometimes associated 
with contract work and temporary agency work in terms of subcontracting, and in improving 
working  conditions  in  the  longer  term.  This  legislation  and  its  implications  for  OSH  are 
summarised in Table 3 below. It is reported that this legislation has triggered a structural 
change in the meat processing industry in Germany. 

776  ILO,  Hotels,  catering  &  tourism  -  Occupational  safety  and  health.  Briefing  note,  September  2011,  available  at: 

https://www.ilo.org/global/industries-and-sectors/hotels-catering-tourism/WCMS_162190/lang--en/index.htm.  

777 S. Danaj. and E. Zólyomi ‘Occupational Health and Safety of Posted Workers in the EU: A Comparative Report. POOSH 
– Occupational Safety and Health of Posted Workers: Depicting the existing and future challenges in assuring decent 
working conditions and wellbeing of workers in hazardous sectors’. 

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Table 3. The regulations of the German Occupational Health and Safety 
Enforcement Act (Arbeitsschutzkontrollgesetz) 

Area 

Contents 

Laws 

Employment 
relationships 

•  Ban  on  contracts  for  work  and  services  (from 

1.1.2021). 

•  Ban on temporary agency work (from 1.4.2021) in 
the  areas  of  slaughtering,  cutting  and  meat 
processing. For a transitional period of three years, 
by  way  of  derogation,  the  following  may  be 
permitted  by  collective  agreement  under  certain 
conditions 
in 
slaughtering and cutting): 

in  meat  processing 

(but  not 

Law  for  the  Protection 
of  Workers'  Rights  in 
the  Meat 
Industry 
(Gesetz  zur  Sicherung 
von 
Arbeitnehmerrechten 
in 
Fleischwirtschaft, 
GSA-Fleisch) 

der 

•  Maximum of 8% temporary agency workers; 

•  Maximum  temporary  employment  period  of  the 

individual temporary worker for 4 months. 

•  Same pay and working conditions as for permanent 
employees from the first day of work apply. 

Working time  

•  Obligation to record working time electronically. 

•  Clarification  that  set-up  time,  changing  time  and 

washing time are part of working time. 

Combat 
Work  

to 

Act 
Clandestine 
(Schwarzarbeitsbekä
mpfungsgesetz, 
SchwarzArbG) 

Inspections 

•  Annual  minimum  inspection  quota  of  5  %  per 
the  meat 

for  establishments  in 

federal  state 
industry. 

Occupational  Health 
Act 
Safety 
and 
(Arbeitsschutzgesetz, 
ArbSchG) 

•  Establishment  of  a  federal  office  for  health  and 
safety  at  the  Federal  Institute  for  Occupational 
Safety and Occupational Medicine (BAuA). 

Source: Erol and Schulten 2021, p. 17778, 779 

6.6.4.  Challenges related to enforcement 

Enforcement  of  existing  legislation  is  a  key  issue  in  terms  of  tackling  health  and  safety-
related challenges. There are, however, a number of difficulties linked to enforcement of 
legislation in relation to posted workers in the individual Member States. As noted elsewhere 
in this report, a lack of human resources was systematically pointed out as a challenge in 
relation to inspections. In the case of TCNs specifically, and as pointed out elsewhere in 
this report, the biggest cited challenge was the lack of a clear procedure for enforcement. 

778  S.  Erol  and  T.  Schulten,  Neuordnung  der  Arbeitsbeziehungen  in  der  Fleischindustrie:  Das  Ende  der  „organisierten 
Verantwortungslosigkeit?  -  Hans-Böckler-Stiftung,  Report  No.  61,  2021,  available  at:  https://www.wsi.de/fpdf/HBS-
007924/p_wsi_report_61_2021.pdf.  

779 Ibid. 

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Interviewees also cited enforcement as one of the main challenges in terms of protecting 
the health and safety of posted workers. In Belgium, for example, enforcement tends to be 
concentrated  on  the  larger  workplaces  where  there  are  complex  issues  relating  to  non-
compliance  with  social  security  law,  labour  law,  and  the  residence  rights  of  TCNs.780 
Nevertheless,  Danaj,  S.  and  Zólyomi,  E.  (2018)  highlight  a  good  practice  example  of 
national multidisciplinary inspection taskforces in Belgium, which comprise a range of actors 
and which undertake proactive inspections. For details, see the box below.  

Box 25. National multidisciplinary inspection taskforces in Belgium 

Proactive  inspections  based  on  specific  campaigns  of  monitoring  are  carried  out 
periodically by multidisciplinary taskforces which include the labour inspectorates, the 
federal  and  local  police,  the  inspection  services  of  the  Regions  responsible  for  the 
control  of  work  permits,  and  the  financial  police.  Additionally,  based  on  the 
characteristics  of  the  specific  case,  these  taskforces  might  include  the  transport  unit 
(cellule  transport),  which  monitors  and  controls  the  compliance  with  the  regulations 
applicable  to  the  sector  transport,  the  Covron  unit,  which  monitors  and  controls  the 
cross-border companies and foreign companies active in Belgium that employ posted 
workers, the “travail transfrontalier GOTOT” unit, which monitors and controls whether 
posted workers are employed under the statutory conditions concerning social security.  

Based on centralized monitoring, the labour inspectorates can identify the companies 
to be controlled through the LIMOSA and DIMONA databases. The LIMOSA database 
allows access to data on mandatory registrations of posted workers (both subordinated 
and  self-employed).  The  DIMONA  database  allows  access  to  data  related  to  the 
mandatory communications of any entry and exit of service of a worker to the National 
Social Security Office (Office national de sécurité sociale).  

If during the controls social inspectors detect situations not complying with the existing 
regulation, they provide indications to regularize the situation, whether the company is 
employing  Belgian  workers  or  posted  workers,  they  set  a  time  limit  within  which  the 
offenders must regularize their situation and, if this does not happen, they can issue a 
report  (Pro  Justitia)  and  apply  administrative  or  criminal  sanctions.  Furthermore,  if 
workers‘ health and safety are highly at risk, inspectors can order production shutdowns.  

Source: Danaj, S. and Zólyomi, E. (2018). Occupational Health and Safety of Posted Workers in the EU: A 
Comparative Report. POOSH – Occupational Safety and Health of Posted Workers: Depicting the existing 
and future challenges in assuring decent working conditions and wellbeing of workers in hazardous sectors. 
Vienna: European Centre for Social Welfare Policy and Research. 

On  a  sectoral  level,  stakeholders  and  experts  interviewed  for  this  study  reported  that  in 
agriculture, for example, inspection is very limited, with few inspection bodies and limited 
numbers of staff, making it difficult to enforce health and safety legislation adequately781. 

There  are  particular  challenges  surrounding  so-called  letterbox  companies,  as  national 
labour inspectorates have no powers to control enforcement of legislation in other countries. 
This  means  that  health  and  safety  legislation  can  more  easily  be  violated  for  workers 
involved  in  these  types  of  business  models782.  Danaj  and  Zólyomi  (2018)  found  that 
specifically in Austria, Belgium, Germany, Slovakia and Slovenia letterbox companies were 
reported to be an issue, as workers whose posting involves these types of virtual companies 

780 Interview with an academic expert, conducted in February 2022. 
781 Interview with an academic expert, conducted in February 2022.  
782 Interview with an expert in posted workers, conducted in February 2022. 

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will  find  it  harder  to  make  claims  in  relation  to  non-payment  of  ways,  social  security 
contributions and other costs783. 

Related to the difficulties surrounding enforcement is the fact that many posted or cross-
border workers in a vulnerable situation may be reluctant to come forward with concerns. 
In Denmark, for example, the Danish Working Environment Authority reports that foreign 
employees and employers interact with the enforcement authorities to a limited extent only. 
The Danish Working Environment Authority therefore focuses on creating a solid framework 
for dialogue during inspections784.  

There  are  also  issues  around  posted  workers  not  being  aware  of  the  structures  and 
mechanisms that are in place for raising OSH-related complaints and starting grievance 
procedures, or just not feeling that they can make use of them, due to issues such as a fear 
of employer reprisals, language barriers or a precarious employment situation.  

Linked to this is the fact that posted workers are less likely to belong to a trade union or 
have access to collective representation than host country workers, due to their employment 
being  temporary  in  nature  and  the  fact that they may  not  be  as  familiar  with  or  trust the 
social partners and institutions of the host country. This means in turn that they have lower 
levels of protection from potential exploitation and any OSH-related violations.  

6.6.5.  Scale of the phenomenon 

There is little information available overall on the number of accidents and injuries suffered 
by  posted  workers  and  cross-border  workers.  This  is  linked  to  the  diverse  and 
unharmonised  reporting  arrangement  as  characterised  in  the  previous  section.  This  is 
confirmed by various studies, one of which notes that “TCN posted workers are exposed to 
high OSH risks on construction sites and are commonly abandoned to their fate in the case 
of injury and especially illness”785. Relevant information by sector is set out below. 

•  Agriculture:  In  terms  of  working  status,  the  proportion  of  family  workers  in  this 
sector is significantly higher than the average for the whole EU workforce, at more 
than  15%  compared  to  just  1%.  Further,  levels  of  self-employment  are  also 
significantly  higher  than  the  average  for  the  whole  EU  workforce,  at  53.7% 
compared  to  14.1%).786  Further,  the  proportion  of  workers  working  49  hours  per 
week  (21.7%)  or  more  is  three  times  higher  than  the  proportion  in  the  total  EU 
workforce  (7.5%).  In  terms  of  non-standard  employment,  in  2020  having  a  short-
term  contract  of  up  to  three  months  was  3.6  times  as  common  in  the  agriculture 
workforce  (8%)  as  in  total  employment  in  the  EU  (2.2%).787  All  of  these  factors 
increase  the  OSH  risk  for  workers  in  this  sector  in  terms  of  working  in  relatively 
insecure employment or, as a self-employed worker, not being subject to monitored 
OSH procedures. Quantitative analysis of the 2015 European Working Conditions 
Survey  (EWCS)788  reveals  that  the  dependent  self-employed  workers  and 
employees  with  no  written  contract  in  agriculture  are  subject  to  worse  working 
conditions  than  the  rest  of  the  agricultural  workforce.  The  sector  relies  to  a  large 
extent on EU seasonal, as well as third country, migrant workers, including many 

783 Danaj. and E. Zólyomi ‘Occupational Health and Safety of Posted Workers in the EU: A Comparative Report. POOSH – 
Occupational Safety and Health of Posted Workers: Depicting the existing and future challenges in assuring decent working 
conditions and wellbeing of workers in hazardous sectors’. 

784 Source:  https://at.dk/om-os/faelles-myndighedsindsats-mod-social-dumping/arbejdstilsynets-erfaringer/.  
785 S. Cukut Krilić at al., ‘Posting of Third Country Nationals: A comparative study’, 2020,  Ljubljana: ZRC SAZU’, p. 66. 
786 Eurostat, ‘Key figures on the European Food Chain – 2021 Edition’, 15/12/2021, available at: 

https://ec.europa.eu/eurostat/web/products-statistical-books/-/ks-fk-21-001, p.19.  

787 Eurostat, ‘Key figures on the European Food Chain – 2021 Edition’, 15/12/2021, available at: 

https://ec.europa.eu/eurostat/web/products-statistical-books/-/ks-fk-21-001, p.19. 

788 Eurofound, ‘2016: Sixth European Working Conditions Survey – Overview Report’, 2016. 

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who are undocumented.789 There are no consistent figures in relation to the number 
of  accidents  and  injuries  among  posted  workers  in  this  sector,  although  EFFAT 
notes that the sector is characterised by “an extremely high incidence of accidents 
and illnesses and low participation in education and training programmes”790. 

•  Construction:  The  construction  sector  is  known  to  be  cross-border  oriented.  In 
general, it can be said that in this specific sector, intra-EU labour mobility has had a 
significant  importance791.  Incoming  posted  workers  make  up  a  large  part  of  total 
workforce  in  the  construction  sector  in  a  number  of  Western  European  Member 
States, mainly in Belgium, France, Germany, Austria and Luxembourg, but also to 
some  extent  in  Denmark  and  Sweden792.  In  particular,  posted  workers  represent 
about one-fifth of total employment in the Belgian construction sector, although one-
tenth of total employment in FTEs. This shows that the Belgian construction sector 
has  become  strongly  dependent  on  posted  workers.  Bogus  self-employment  is 
particularly prevalent in the construction sector.793 About one-fifth of all undeclared 
work takes place in the construction sector, and in Austria, Luxembourg, Slovenia, 
and Cyprus it even concerns more than 30% of all undeclared work794. This points 
to an increased OSH risk in this sector, as posted workers who are working on the 
basis of the status of bogus self-employment or who are undeclared are less likely 
to be subject to OSH procedures, checks and processes.  

•  Long-term  and  live-in  care:  In  2019,  7.9%  of  the  EU’s  long-term  care  (LTC) 
workforce was made up of foreign nationals, with more TCNs (4.5%) than mobile 
workers from within the EU (3.4%).795 The Member States with the highest share of 
foreign workers in the long-term care sector are Malta (43%), Luxembourg (21%), 
Ireland (19%) and Austria (14%). In response to the COVID-19 pandemic, and in 
recognition  of  the  high  numbers  of  cross-border  workers  active  in  the  sector,  the 
Luxembourgish  State  offered  the  possibility  of  temporary,  free  accommodation  in 
Luxembourg  to  frontier  workers  in  the  hospital  and  care  sectors  who  reside  in 
Germany, Belgium or France.796 Meanwhile Cyprus, Germany, Italy and Norway (all 
12%), Sweden (11%) and Belgium (10%) all have above average rates of foreign 
workers in the sector.797 In the case of live-in care, as temporary cross-border carers 
tend  to  be  'invisible'  workers  in  private  households  and  because  there  are  many 
different channels of recruitment other than posting, it is extremely difficult to monitor 
the  situation  and  ensure  effective  enforcement  of  provisions.798  Live-in  care  is 
organised  under  various  employment  models:  in  some  Member  States,  including 
Germany, live-in carers are often employed directly on an informal basis by the care 
recipient.799 In other Member States, they are usually self-employed (for example in 
Austria, where 99% of 24-hour caregivers are self-employed).800 Reasons behind 
the  dominance  of  the  self-employment  model  are  the  lower  costs  and  higher 

789 EFFAT, ‘2021: Towards inclusion and equal treatment for all mobile and migrant workers. EFFAT Demands for action’, 

Adopted at the EFFAT Executive Committee on 1 June 2021, p.3. 

790 Ibid, p.3 
791  E. Sjödin &  E.  Wadensjö,  'Intra-European  Labour  Migration  for  a Resilient  EU',  2022, in A.  Bakardjieva Engelbrekt,  P. 
Ekman, A. Michalski and L. Oxelheim (eds.), ‘Routes to a Resilient European Union’, Interdisciplinary European Studies.  
792  See  the  EU  report  on  prior  declaration  tools  for  reference  year  2019:  “the  relative  impact  of  intra-EU  posting  in  the 
construction sector amounts to 24% in Luxembourg, 16% in Belgium, 7% in Denmark, 5% in Austria, 5% in Sweden, 5% in 
France.” 

793 Eurofound, ‘2016: Sixth European Working Conditions Survey – Overview Report’.  
794 J. Cremers, C. C. Williams, J. Hawley-Woodall, & N. Nikolova,  'Tackling undeclared work in the construction industry: A 

learning resource', European Platform Undeclared Work, 2017. 

795 Eurofound, ‘Long-term care workforce: employment and working conditions’, 2020, p.11. 
796 See: https://guichet.public.lu/en/actualites/2020/novembre/20-faq-logement-travailleurs-frontaliers.html.  
797 Eurofound, ‘Long-term care workforce: employment and working conditions’, 2020, p.11. 
798 L. Maihuber & B. Allinger, ‘Transnationale Betreuungs- und Pflegekräfte in euorpäischen Privathaushalten‘, 2021, available 
https://wien.arbeiterkammer.at/service/studienundzeitschriften/studien/gesundheitundpflege/Transnationale_Be 

at: 
treuungskraefte_20210420.pdf. 

799 V. Horn et al., ‘Live-in migrant care worker arrangements in Germany and the Netherlands: motivations and justifications 

in family decision-making’, International Journal of Ageing and Later Life, 2019, 13(2): 83–113, p. 86. 

800 M. Leiblfinger & V. Prieler, ‘Elf Jahre 24-Stunden-Betreuung in Österreich‘, Katholische Privat-Universität Linz, 2018, p.13, 

available at: https://kidoks.bsz-bw.de/frontdoor/deliver/index/docId/1319/file/LiWiRei_9-Leiblfinger-Prieler.pdf.  

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flexibility for the recipients of care.801 These types of employment models increase 
the general OSH risks for posted workers working in this sector. 

•  Meat processing: The available statistical data on the number of posted workers or 
the share of cross-border workers in other forms of employment does not include a 
sectoral  breakdown  with  enough  detail  to  provide  numbers  for  these  types  of 
workers specifically in the meat processing industry in EU Member States. Based 
on  the  results  of  the  literature  available  and  interviews  and  country  case  studies 
conducted in the framework of this project, it can be concluded that in Austria, Spain, 
Ireland,  France,  and  Italy,  the  meat  sector  utilizes  subcontracting  practices  to  a 
substantial  degree.802  This  sector  has  been  characterised  by  poor  working 
conditions, inferior health and safety provision and precarious working. Precarious 
conditions of  workers in the meat processing sector are especially visible in higher-
income Member States. One of the reasons behind this is that migrant workers often 
have difficulties in gaining a foothold in the primary labour market and therefore must 
resort to other forms of employment. 

•  Hotels, tourism and catering: In 2020, around 13% of the labour force in tourism 
industries was made up of foreign citizens, with 6% coming from other EU Member 
States and 7% from non-EU countries.803 The share of foreign citizens increases for 
certain sub-sectors; for example, 15% of workers in the accommodation sub-sector 
were  foreign  citizens.  What  is  not  known  is  whether  these  workers  reside 
permanently in the country in which they work, or whether they are temporary cross-
border workers. Overall in this sector, working hours are long and typically based on 
shift work. This means that much of the work deviates from standard working times. 
Historically,  the  sector  has  witnessed  high  levels  of  non-compliance  with  working 
time regulations, particularly in the field of youth employment.804 All of these factors 
increase the OSH risks for the posted workers in this sector. 

6.6.6. 

Impact 

There is little information available on the overall trends in terms of the OSH challenges for 
posted workers. In Germany, however, it is clear that the number of posted workers in the 
meat processing sector has increased rapidly in recent years, and with it, the likelihood 
of  OSH  violations  (although  no  such  statistics  exist).  In  2012,  approximately  38%  of  the 
workers known to be working in meat processing in Germany were posted workers.805 By 
2013, approximately 70% of the workforce in the four largest meat companies were posted 
workers.806  Recent  legislation  has  made  a  significant  difference  to  how  the  previously 
problematic  meat  processing  sector  was  organised  and  there  has  been  a  subsequent 
improvement  in  the  working  conditions  and  consequently  a  decrease  in  OSH  risks  for 
workers in this sector.  

801 Ibid. 
802 P. Campanella and D. Dazzi (ed.):  ‘Meat-up Ffire: Fairness, freedom and industrial relations across Europe: up and 

down the meat value chain’; 2020; pp. 249-257; available at: 
https://series.francoangeli.it/index.php/oa/catalog/download/496/303/2399-1.  

803 Ibid. 
804 Eurofound, ‘Working conditions – the dark side of tourism’, 2012, available at: 

https://www.eurofound.europa.eu/publications/article/2012/working-conditions-the-dark-side-of-tourism.  

805 B. Wagner and A. Hassel, ‘Posting, subcontracting and low-wage employment in the German meat industry’, European 

Review of Labour and Research, 2016, 22(2), pp.163-178. 

806  V.  Bogoeski, ‘Chain  liability  as  a  mechanism  for strengthening  the  rights  of  posted  workers: the  German  chain liability 
model. In ‘Protecting Mobility through Improving Labour Rights Enforcement in Europe (PROMO)’, VS/2016/0222, , 2017, 
funded by European Union Programme for Employment and Social Innovation ‘EaSI’ (2014-2020). 

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In the construction sector, the posting of workers as a specific form of cross-border labour 
mobility has become an increasingly prominent and competitive form of service provision 
among EU Member States.807 

In terms of the policy implications of these impacts, the view from many of the stakeholders 
interviewed  for  this  study  was  that  tightening  the  legislative  framework  around  posted 
workers, including health and safety provisions, is not necessary. Rather, more progress 
would be made by more effective enforcement of existing legislation and regulations. 
In  particular,  the  Member  States  should  enforce  existing  EU  legislation  correctly  and 
encourage employers to abide by this.808  

Linked to enforcement is the issue of bogus self-employment, which stakeholders agreed 
was a factor that needs to be addressed in a health and safety context, in order to ensure 
that cross-border workers are adequately protected.  

A further view was that there is a need for more coordination between Member States 
and more social partner participation at EU-level through the social dialogue process, 
which is organised on a sectoral basis.809   

6.6.7.  Conclusions and recommendations 

It  is  clear  from  the  research  undertaken  for  this  study  that  posted  workers  and  cross-
border  workers  are  more  exposed  to  OSH  risks  than  host  country  workers.  These 
risks  are  particularly  pronounced  in  sectors  such  as  construction  and  to  some  extent 
agriculture, due to the nature of the work in these sectors.  

One  of  the  main  policy  issues  is  around  enforcement  of  the  existing  legislation 
framework.  This  is  something  to  which  all  actors  could  contribute,  including  national 
enforcement authorities, social partners, and regional bodies. However, it is recognised that 
enforcement is difficult given factors such as a lack of enforcement resources, and that risk 
factors are often highest among groups of posted workers who are not visible. 

Reporting of accidents is also a key issue. As has been seen in this case study, posted 
workers  can  be  reluctant  to  come  forward  to  report  incidents,  for  a  range  of  reasons 
connected with their employment status and position and knowledge of the host country’s 
culture and institutions. Awareness-raising campaigns, potentially organised by the social 
partners or other trusted bodies, could play a role in increasing reporting rates. Enforcement 
bodies  could  also  play  a  role  in  ensuring  that  employers  report  incidents  correctly  and 
accurately.  

There  are  also  issues  around  international  harmonisation  of  accident  reporting. 
Although  EU  regulation  requires  accidents  to  be  reported  by  companies  to  the  relevant 
authorities, this is the case only to the authorities of the country of origin rather than also to 
those in the host country. EU policy could play a role here in encouraging or even obliging 
accident reporting to the authorities of the host country.  

Employment practices that can contribute to precarity among posted workers include 
subcontracting,  particularly  where  this  leads  to  long  subcontracting  chains,  fixed  term 
contracting, and illegal practices, such as a lack of a written employment contract, bogus 
self-employment and undeclared work. These can all increase OSH risks and are difficult 
and complex issues to resolve, as their drivers are multiple and varied. Nevertheless, the 
experience in Germany, where specific legislation to regulate the meat processing sector 

807 S. Danaj, E. Zólyomi, R. Kahlert, N. Prinz, & V. Sandu, 'Bridging the gap between legislation and practice in the posting of 

workers – POW BRIDGE', 2021, available at: https://www.euro.centre.org/projects/detail/3633. 

808 Interview with a national minitry, conducted in February 2022. 
809 Interview with an industry representative, conducted in February 2022. 

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has been enacted, shows that regulation can make a difference in some situations. Overall, 
however,  actions  such  as  targeted  inspections  and  enforcement  and  coordination  of 
enforcement efforts at national level, could contribute to the reduction of these practices.  

Practical issues such as obliging employers to provide adequate housing and up-to-date 
equipment will all help to reduce OSH risks among posted workers. Inspection authorities 
can play a role in the case of housing, as can the social partners, and in particular trade 
unions,  via  targeted  campaigns.  Issues  such  as  modernising  the  equipment  used  by 
workers are more difficult to address, as this relies on levels of investment on the part of 
employers. However, governments could exert pressure on employers to modernise and 
offer schemes to help employers to renew their equipment. 

There are already some initiatives in place to address language competence, as a lack of 
this is a recognised risk factor for OSH. Trade unions have been very active in this regard, 
and  should  be  encouraged  to  continue  their  work.  Good  practices  could  be  widely 
disseminated  to  inspire  similar  actions,  such  as  the  setting  up  of  translation  websites  or 
targeted help and advice from native speakers of the languages spoken by posted workers.  

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6.7.  Case Study 7: The role of ‘letterbox companies’ in 

complex subcontracting chains involving posted and 
non-posted workers and enforcement challenges 

6.7.1.  Overview 

Subcontracting occurs especially in price-sensitive and labour-intensive sectors such as 
construction, the meat industry, and manufacturing.810 For instance, in 2017, more than 
€ 330 billion was paid to sub-contractors in the EU who were active in the construction sector, 
representing  about  24%  of  total  turnover  of  the  EU  construction  sector.811  This  case  study 
mainly  focuses  on  the  construction  sector,  as  in  this  sector  the  posting  of  workers  and 
subcontracting frequently go hand in hand.812 

Subcontracting is not a harmful practice per se. It can be useful when the range of required 
capabilities for a project is too diverse to be possessed by a single general contractor, which 
is  why  subcontracting  is  often  used  in  the  construction  sector.  A  construction  project  often 
requires  different  kinds  of  highly  specialised  abilities,  skills,  and  knowledge,  causing 
specialised  companies  to  be  subcontracted  to  perform  specialised  works.813  Furthermore, 
subcontracting  is  used  to  resolve  labour shortages  and  to  look  for  increased  efficiency  and 
flexibility.  As  construction  work  must  be  largely  carried  out  on-site,  companies  cannot 
outsource  production  to  less  expensive  locations.  Therefore,  in  this  sector,  competition  is 
based on labour costs and materials.814 In that regard, subcontracting in the construction 
sector has become the strategy to increase profits by lowering costs.815 It is seen as a 
risk management strategy, as it allows the separation between power and profits on the one 
side and risks and responsibilities on the other.816 As a result, long complex subcontracting 
chains are set up, often involving subcontracted posting undertakings.  

De facto subcontracting frequently leads to irregular practices of not respecting the applicable 
terms  and  conditions  of  employment  (including  occupational  safety  and  health  (OSH) 
regulations), sometimes even leading to ‘labour exploitation’ and ‘human trafficking’. Posted 
workers in subcontracting chains are in a vulnerable situation. This problem has been 
addressed by Article 12 of the Enforcement Directive (i.e., Directive 2014/67/EU) by defining 
rules on ‘subcontracting liability’.817,818 Article 12 allows Member States to take measures to 
ensure  that  in  subcontracting  chains,  the  contractor  to  which  the  employer  is  a  direct 
subcontractor can, in addition to or in place of the employer, be held liable by the posted worker 
to  cover  at  least  the  unpaid  net  remuneration  corresponding  to  the  minimum  rates  of  pay. 
Member  States  are  required  to  introduce  such  subcontracting  liability  in  the  construction 
sector. They are also allowed to do so in any other sector, and to allow for more tiers than only 
the direct contractor, and with a broader scope than minimum rates of pay. Finally, Article 12(6) 

810 F. De Wispelaere, L. De Smedt, and J. Pacolet, ‘Posted workers in the EU. Facts and figures’, Leuven: POSTING.STAT project 

VS/2020/0499, 2022. 
811 Eurostat [sbs_is_sc_r2] 
812 N. Lillie and I. Wagner, ‘Subcontracting, insecurity and posted work: evidence form construction, meat processing and ship 
building’, in J. Drahokoupil (Ed.), The outsourcing challenge Organizing workers across fragmented production networks, 2015, 
pp. 157-174.  

813  A.  Heinen,  A.  Müller,  and  B.  Kessler,  ‘Liability  in  Subcontracting  Chains:  National  Rules  and  the  Need  for  a  European 
Framework’, Directorate General for Internal Policies Policy Department for Citizens’ Rights and Constitutional Affairs, 2017.  
814 J. Davies, ‘Labour Exploitation and Posted Workers in the European Construction Industry’, in N. Lord, E. Inzelt, W. Huisman, 

and R. Faria (Eds.), European White-Collar Crime Exploring the Nature of European Realities, 2020, pp. 163-174.    

815 Heinen et al., ‘Liability in Subcontracting Chains: National Rules and the Need for a European Framework’. 
816 European Trade Union Confederation, ‘Securing Worker’s Rights in Subcontracting Chains Case studies’, 2021.  
817 See also Recital 25 of Directive (EU) 2018/957: “With a view to tackling abuses in subcontracting situations and in order to 
protect  the  rights  of  posted  workers,  Member  States  should  take  appropriate  measures,  in  accordance  with  Article  12  of 
Directive 2014/67/EU, to ensure subcontracting liability.” 

818 Furthermore, Article 8 of Directive 2009/52/EC of 18 June 2019 (i.e., the Employers Sanctions Directive) is providing sanctions 

against illegally staying third-country nationals.  

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stipulates  that  instead  of  the  liability  rules,  Member  States  may  take  other  appropriate 
enforcement  measures  which  enable  effective  and  proportionate  sanctions  against  the 
contractor in situations where workers have difficulties in obtaining their rights.  

Some companies in these subcontracting chains can then turn out to be letterbox companies 
(LBCs). These companies do not perform any economic activity but are set up to lower labour 
costs  or  create  fiscal  optimisation  strategies.  Indeed,  it  was  found  that  the  use  of  LBCs  in 
subcontracting and posting arrangements is common in the construction sector, as well as in 
other  price-sensitive  sectors.819,820  Article  4(2)  of  the Enforcement  Directive  provides  a  non-
exhaustive list of elements which Member States may use when making an overall assessment 
to determine whether an undertaking ‘genuinely performs substantial activities’ in the Member 
State of establishment.821 

Subcontracting  chains  may  become  increasingly  long  and  complex  with  the  involvement  of 
LBCs, causing several additional problematic situations. Nevertheless, it is important to keep 
in mind that one can occur without the other. Moreover, one should be careful to conclude that 
the  absence  of  LBCs  in  complex  subcontracting  chains  eliminates  the  risk  of  irregularities. 
After  analysing  the  problem  of  subcontracting  and  LBCs,  and  their  joint  occurrence  in  the 
construction  sector,  a  quantification  and  impact  of  these  phenomena  is  attempted.  Finally, 
some solutions are proposed. 

6.7.2.  Analysis of the problem 

As this case study covers LBCs in complex subcontracting chains involving posted workers, 
there is not one main problem, but a myriad of problems to analyse. Therefore, the issues with 
the  different  phenomena  (subcontracting  and  LBCs)  are  first  discussed  separately,  before 
bringing them together.  

Subcontracting  chains  can  already  cause  problems  in  a  national  context,  as  they  create  a 
separation  between  the  worker  and  the  end-user.  However,  in  a  transnational  context 
involving posting, this risk is further amplified.822 In long and complex subcontracting chains, 
undeclared work and underpayments may occur more often,823 and there is less attention 
paid  to  OSH  considerations.824  Furthermore,  workers  (to  a  large  extent  third-country 
nationals,  TCNs)  at  the  bottom  of  subcontracting  chains  often  experience  poorer  working 
conditions, such as lower wages, higher work intensity, increased job insecurity, and a higher 
reliance on non-standard employment contracts.825 It can be concluded that the further down 
in the subcontracting chain, the worse the situation becomes. The risk of ‘social dumping’ 
is particularly visible at the lower levels of the subcontracting chain.826  

819 K. McGauran, ‘The impact of letterbox-type practices on labour rights and public revenue Four case studies on the use of 
letterbox companies and conduit entities to avoid labour laws, social premiums and corporate taxes’, European Trade Union 
Confederation, 2016.  

820 Ibid - To illustrate with an example, a typical scenario is described : “The general contractor subcontracts parts of a contract to 
other companies, which themselves work with subcontractors or temporary work agencies. The first subcontractor, at the top 
of the subcontracting pyramid, might recruit workers from abroad, typically from Eastern Europe, and in reality, the workers are 
employed by the top of the pyramid. To avoid regulatory control, however, this first subcontractor passes on the contract to 
another subcontractor, and they pass them on to other subcontractors. As a result, there are several levels of subcontractors, 
who in reality, however, are letterbox companies owned by a proxy, and they are in effect owned by top of the pyramid.” 

821 See M. Houwerzijl, F. Henneaux, and E. Traversa, ‘A hunters game: How policy can change to spot and sink letterbox-type 
practices’, ETUC project, 2017, p.43: “Currently, Art. 4(2) and Art. 4(3) PWD Enforcement Directive are not formulated strong 
enough to make companies comply with such preconditions for bona fide posting.” 

822  A.  Lo  Faro,  ‘Posting  from  a  letterbox:  transnational  mobility  of  workers,  social  dumping  and  the  economic  fundamental 
freedoms’ veil, in A-C. Hartzén, A. Iossa, and E. Karagerogiou (Eds.), Law, Solidarity and the Limits of Social Europe, 2022, 
pp. 22-42. 

823 L. Berntsen, and N. Lillie, ‘Hyper-mobile migrant workers and Dutch trade union representation strategies at the Eemshaven 
construction sites’, Economic and Industrial Democracy, 37(1), 2014, pp.1714-187; S. Choe, W. Seo, and Y. Kang, ‘Inter- and 
intra-organizational safety management practice differences in the construction industry’, Safety Science, 2020, 128.   

824 P. van Nierop, L. Schönenberg, and P. Terziev, ‘Counteracting undeclared work and labour exploitation of third-country national 

workers’, European Platform tackling undeclared work, 2021. 

825 N. Lillie and I. Wagner, ‘Subcontracting, insecurity and posted work: evidence form construction, meat processing and ship 

building’. 

826 Questionnaire Belgium.  

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In (long) subcontracting chains, there is a major lack of transparency and accountability.827 
Those companies at the top of the chain only have limited control over what happens below in 
the chain, and they try to push business risks downward in the subcontracting chain.828 This is 
an issue of liability, which is mentioned in Article 12 of the Enforcement Directive. However, 
Article  12  is  relatively  easy  to  circumvent  by  establishing  an  LBC.829  Additionally,  its 
effectiveness is hampered by an ‘escape clause’ in Article 12(5) where it states that Member 
States themselves may ‘provide that a contractor that has undertaken due diligence obligations 
as defined by national law shall not be liable’. Seeing that any definition of due diligence is 
lacking  in  this  Article,  this  results  in  a  wide  margin  of  interpretation  and  therefore  legal 
uncertainty.830 

Nevertheless, all the tools seem to be present in the Enforcement Directive to lay down strict 
rules on subcontracting liability at the national level. Indeed, the possibility is offered by Article 
12(4) to define more stringent liability rules under national law with regard to the scope and 
range of subcontracting liability. However, there are few Member States that take advantage 
of this freedom provided by the legislator. The report of the Commission on the application and 
the implementation of the Enforcement Directive stipulates that “most Member States limit the 
liability to the direct contractor.”831 Moreover, 16 Member States have introduced the option of 
a  due  diligence  defence.  In  that  respect,  it  can  be  argued  that  the  problem  lies  in  the 
transposition  of  Article  12  by  Member  States  (and  its  enforcement)  rather  than  the 
content of Article 12 itself. 

Another  problematic  issue  concerning  subcontracting  chains  is  enforcement.  The  lack  of 
transparency and accountability mentioned above makes enforcement very difficult (mainly 
because of difficulties in identifying and contacting the liable company and individuals). 
The direct (social) responsibility and liability of the contractor is considerably reduced because 
of  the  long  subcontracting  chain.832  The  longer  the  chain,  the  harder  it  becomes to  enforce 
existing legislation and collective agreements (again, mainly because the liable companies and 
individuals  are  difficult  to  identify  and  contact).  This  reality  will  also  affect  the  recovery  of 
unpaid wages.833 

Regarding LBCs, an important issue is the lack of an official definition of the phenomenon. 
This is the case because an LBC can occur in different forms, depending on its aim and which 
sector in which it is ‘active’.834 For instance, an LBC used for tax avoidance will look different 
to  one  used  for  circumventing  social  security  law.835  In  this  case  study,  in  the  context  of 
subcontracting chains in the construction sector, an LBC can be understood as a company 
formally established in a (low wage) EU Member State (or the Member State with the most 
favourable legislation) without any substantial activity in this Member State.  

Setting  up  a  (virtual)  company  is  very  easy  in  several  Member  States    and  may  allow 
companies  to  take  advantage  of  lower  costs  in  the  country  of  establishment  (called 

827  European  Federation  of  Building  and  Woodworkers  and  European  Construction  Industry  Federation,  ‘Tackling  Undeclared 
Work  in  the  Construction  Industry  Toolkit  with  Concrete  Cases  from  Belgium,  France,  Bulgaria,  Italy,  Spain,  Romania  and 
Austria’, 2020.  

828 L. Berntsen, and N. Lillie, ‘Hyper-mobile migrant workers and Dutch trade union representation strategies at the Eemshaven 

construction sites’. 

829 A. Heinen et al., ‘Liability in Subcontracting Chains: National Rules and the Need for a European Framework’. 
830 Ibid.  
831  Only  ten  Member  States  (Austria,  Germany,  Greece,  Italy,  Lithuania,  Luxembourg,  the  Netherlands,  Slovenia,  Spain  and 
Sweden) provide for the possibility to claim unmet payments also from parties that are not in a direct contractual relationship 
with the posting employer. 

832 M. Houwerzijl and S. Peters, ‘Liability in subcontracting processes in the European construction sector’, European Foundation 

for the Improvement of Living and Working Conditions, 2008. 

833 See for instance, Eurodétachement, ‘Synthesis ‘Transnational workshop: Addressing posting complex cases of fraud. Which 
practices, which lessons to be learnt?’, 12 September 2019, ‘Boosting transnational cooperation on posting of workers: “the 
deployment of virtual offices, a frequent change of ownership, often combined with the impossibility to find a legal representative 
at the address of registration, hinder the organisation of inspections as written demands return undelivered”.  

834 K. McGauran,  ‘Ending regulatory avoidance through the use of letterbox companies’, ETUI Policy Brief, 3, 2020.   
835 S. Morel, C. Mathonet, P. Gounev, F. De Wispelaere, L. De Smedt, and E. Schuster, ‘Letterbox companies: overview of the 

phenomenon and existing measures’, Brussels: Publications Office of the European Union, 2021. 

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‘law/regime/forum shopping’)836 without performing any activities there. Setting up an LBC 
creates a permanent cost-saving business model.837 While the LBC posts workers abroad, it 
does not carry out any significant economic activity in its home Member State, and it takes 
advantage of the lower social security contributions and taxes.838 Whereas ‘legal’ law shopping 
still seems to be interesting because of differences in social security rates and corporate taxes 
in the EU (and because of the applicable coordinating EU rules), this is not the case for wages 
and working conditions, especially since the amendment of the PWD. Wherever the company 
is based, it will have to respect the terms and conditions of employment applicable in the host 
Member State (including all the elements of remuneration of the host Member State rendered 
mandatory  by  law  or  by  collective  agreements  made  universally  applicable).  Thus,  the 
establishment  of  an  LBC  to  exploit  wage  differentials  between  the  country  of 
establishment and the host country is, by definition, unlawful. 

Given  that  LBCs  are  specifically  designed  to  stay  hidden,  it  becomes  difficult  to  identify 
them,  especially  within a  long  and  complex  chain  of  subcontracting.839 It makes tracing  the 
persons liable for unpaid wages (and in some cases for ‘human trafficking’) even more difficult 
if one is confronted with an LBC. For instance, workers have a contract with an LBC, typically 
low in the subcontracting chain.840 When an inspection occurs, the contract is merely shifted 
towards another link in the chain, and the company under inspection files for bankruptcy. Thus, 
an LBC conceals the status of the actual employer. In the combination of subcontracting 
chains and LBCs, the actual employer of the posted worker is very difficult to detect.  

Intermediaries  (without  the  formal  status  of  ‘temporary  work  agency’)  represent  a 
specificity.  They  use  posting  in  cross-border  subcontracting  chains  to  make  a  profit  from 
wages,  social  security,  and  tax  dumping.841  For  instance,  in  Germany,  temporary  work 
agencies are forbidden to operate in the construction sector. However, employers then turned 
to intermediaries which only supply labour, recruitment services and payroll management.842 
A  ‘real’  subcontractor  then  engages  labour  from  this  intermediary  for  flexibility  and  cost 
reduction.  The  question  then  arises  whether  these  intermediaries  (or  gang  masters/‘labour-
only subcontractors’) can be considered an LBC, for which it should be investigated whether 
or not they have a substantial activity.  

A  problematic  situation  with  these  intermediaries  is  that  they  often  vanish  without  paying 
workers  their  wage  after  months  of  employment.843  This  common  practice  is  called 
“disappearing subcontractors”. This means that undertakings, often LBCs, are founded in 
a  Member  State  with  the  most  favourable  wages,  taxes,  and  social  contributions. 844  This 
subcontractor then hires workers to post them abroad. After the workers start the project, the 
subcontractor  gets  paid,  but  refuses  to  pay  the  workers.  When  workers  start  to  claim  their 
wages,  the  subcontractor  disappears  or  goes  bankrupt,845    and  cannot  be  held  liable.  This 
shows once again that control and enforcement become increasingly difficult in these complex 
networks.  

In general, it is clear that problematic cases of subcontracting chains and LBCs worsen the 
situation for the (posted) workers involved, as they facilitate irregular practices whereby paying 

836 J. Cremers, ‘EU company law, artificial corporate entities and social policy’, Brussels: ETUC, 2020; N. Rennuy, ‘Shopping for 

social security law in the EU’, Common Market Law Review, 2021, 58(1). 

837 K. McGauran, ‘The impact of letterbox-type practices on labour rights and public revenue Four case studies on the use of 

letterbox companies and conduit entities to avoid labour laws, social premiums and corporate taxes’. 

838 E. Voss, M. Faioli, J.P. Lhernould, and F. Iudicone, ‘Posting of Workers Directive – current situation and challenges’, European 

Parliament, Directorate General for Internal Policies, Policy Department A: Economic and Scientific Policy, 2016.  

839 L. De Smedt, and F. De Wispelaere,  ‘Road freight transport in the EU. In search of a balance between the economic and 

social dimension of the internal market’, Leuven: HIVA-KU Leuven, 2020. 

840 K. McGauran, ‘The impact of letterbox-type practices on labour rights and public revenue Four case studies on the use of 

letterbox companies and conduit entities to avoid labour laws, social premiums and corporate taxes’. 

841 European Federation of Building and Woodworkers, ‘Who’s the boss? Stop exploitation in subcontracting chains’, 2022a.  
842 N. Lillie and I. Wagner, ‘Subcontracting, insecurity and posted work: evidence form construction, meat processing and ship 

building’.  

843 European Federation of Building and Woodworkers, ‘Who’s the boss? Stop exploitation in subcontracting chains’, 2022a. 
844 A. Heinen et al., ‘Liability in Subcontracting Chains: National Rules and the Need for a European Framework’. 
845 It was remarked at the expert workshop that that letterbox companies use bankruptcy as a ‘business model’ to escape liability 

and responsibility. 

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taxes or social security contributions is avoided. The main issue is the enormous complexity, 
as the large network hinders control and enforcement.  

6.7.3.  Quantification of the scale of the problem  

Quantifying  the  occurrence  of  LBCs  in  subcontracting  chains  is  nearly  impossible. 
Furthermore, in the context of cross-border service provision and posting, there is a lack of 
data as to the extent of subcontracting.846 Finally, empirical evidence about the size (number 
of tiers) and profile of these subcontracting chains is missing. Although such data is available 
in  a  number  of  Member  States,  including  Belgium847  and  Italy848,  it  has  never  been 
systematically analysed. 

As there is no universal definition of LBCs, it is once again complicated to quantify them. The 
main mission in identifying an LBC is determining whether the company has any substantial 
activity in the Member State of establishment. This has been found to be particularly difficult 
to  establish  in  practice.849  Nevertheless,  certain  indicators  may  help  in  this  regard  (for 
instance, Article 4(2) of the Enforcement Directive provides a non-exhaustive lists of elements 
which Member States may use when making an overall assessment to determine whether an 
undertaking 
the  Member  State  of 
establishment).850 Moreover, when multiple companies are located at the same address, it 
could  indicate  that  no  substantial  activities  are  taking  place  at  this  address.  In  that  regard, 
some remarkable data for construction companies established in Slovenia can be reported: it 
appears that 60% to even 90% of Slovenian construction companies generate 75% or more of 
their income from abroad.851 Moreover, 12 addresses were found in Slovenia where 10 or more 
construction  companies  were  located,  with  one  address  even  housing  37  construction 
companies.  

‘genuinely  performs  substantial  activities’ 

in 

In  addition,  real-life  cases  can  also  provide  an  insight  into  complex  subcontracting 
chains in the construction sector, with or without the involvement of LBCs, where serious 
violations were identified (sometimes even human trafficking).852 A recent example (from July 
2022), concerns a case at the Borealis site in the port of Antwerp, Belgium. Belgian inspection 
services discovered a possible case of human trafficking at the construction site, involving at 
least 170 Turkish, Bengali, Ukrainian, and Filipino workers.853 These workers were housed in 
terrible conditions, were paid very low wages (some as low as € 2 per hour), were not covered 
by  social  protection,  and  had  expired  Hungarian  work  permits.854  Almost  all  the  problems 
discussed  above  were  encountered  in  this  case,  which  concerns  an  entire  network  of 
subcontractors. Currently, the Belgian competent institutions are trying to gain insight into the 
companies and individuals who are behind the entire structure.855  

846 E. Voss et al., ‘Posting of Workers Directive – current situation and challenges’. 
847 E.g., data from the ‘Declaration of works’ and ‘presence registration (checkinatwork)’: 

https://employment.belgium.be/en/themes/international/posting/concept-and-formalities/formalities/specific-formalities-case  

848 See below. 
849 Questionnaire France.  
850 Notably, a) the place where the undertaking has its registered office and administration, uses office space, pays taxes and 
social security contributions and, where applicable, in accordance with national law has a professional license or is registered 
with the chambers of commerce or professional bodies; b) the place where posted workers are recruited and from which they 
are posted; c) the law applicable to the contracts concluded by the undertaking with its workers, on the one hand, and with its 
clients,  on  the  other;  d)  the  place  where  the  undertaking  performs  its  substantial  business  activity  and  where  it  employs 
administrative  staff;  e)   the  number  of  contracts  performed  and/or the  size  of the  turnover  realized  in  the  Member State  of 
establishment, taking into account the specific situation of, inter alia, arriestablished undertakings and SMEs. 

851 F. De Wispelaere et al., ‘Posted workers in the EU. Facts and figures. 
852 For such an overview, see for instance, Eurodétachement, ‘Synthesis ‘Transnational workshop: Addressing posting complex 
cases of fraud. Which practices, which lessons to be learnt?’; M. Houwerzijl, et al. ‘A hunters game: How policy can change to 
spot and sink letterbox-type practices’. 

853 De Kamer, ‘Gemeenschappelijke vergadering van de commissie voor justitie en van de commissie voor sociale zaken, werk en 

pensioenen’, 30 August 2022.  

854 European Federation of Building and Woodworkers, ‘Another case of severe exploitation of migrant construction workers: is the 

EU becoming the new Qatar?’, 2022b. 

855 De Kamer, ‘Gemeenschappelijke vergadering van de commissie voor justitie en van de commissie voor sociale zaken, werk 

en pensioenen’. 

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6.7.4. 

Impact of the problem  

The impact of LBCs in subcontracting chains is felt by different actors, as explained above. It 
concerns  individuals  having  to  work  in  poor  conditions,  but  also  governments  losing  out  on 
taxes  or  social  security  contributions.  When  such  an  illegal  construction  is  detected,  the 
(letterbox)  company  in  the  chain  generally  immediately  ceases  its  activities  to  avoid 
prosecution. The workers concerned are sometimes seen again a few months later, working 
for another subcontractor.856 

As this system is so embedded in the construction sector, it is not expected to decrease in the 
near future.  The  European  construction  sector  is  even  expected  to  grow further,  as  will  the 
problems  that  come  with  it,  which  calls  for  a  serious  reflection  on  how  to  counter  these 
issues.857  Furthermore,  as  both  subcontracting  chains  and  LBCs  are  ways  to  cut  costs, 
companies will not automatically stop making use of these structures. Therefore, in the next 
section, some possible solutions are proposed to tackle LBCs in subcontracting chains, and 
all the issues that accompany this structure.   

6.7.5.  Conclusions and recommendations 

A recent publication by Cremers and Houwerzijl proposes several actions for tackling abusive 
subcontracting:  measures  for  enhanced  liability  (e.g.  mandatory  joint  and  several  full  chain 
liability),  practices  for  ensuring  decent  work,  standards  for  increased  transparency  (e.g.  a 
limitation  of  the  number  of  subcontracting  levels),  and  tools  for  effective  enforcement  and 
access  to  justice  (e.g.  dissuasive  and  effective  sanctions).858  However,  many  of  these 
measures depend on (political) willingness and administrative capabilities.859 

Rules on joint and several liability may have three important objectives.860 First, there is a 
preventive effect. It forces the client and contractor(s) to properly select their subcontractors 
and to verify that they comply with their obligations. Second, the deterrent effect makes sure 
that those who profit from activities performed by workers involved in the subcontracting chain 
without respecting labour regulations are punished. Third, this type of liability ensures there is 
a  guaranteeing  effect.  Workers  can  address  the  client  and  the  contractor(s)  when  their 
employer  does  not  fulfil  their  obligations.  For  instance,  as  mentioned  before,  when 
subcontractors suddenly ‘disappear’ because of bankruptcy or company closure, workers are 
still able to address other links in the chain because of this full chain liability. In addition, the 
rules on joint and several liability should generally avoid escape clauses in order to be truly 
effective.  

At EU level, the Employers Sanctions Directive 2009/52/EC provides – at least in theory – 
the most far-reaching subcontracting liability measures.861 Furthermore, subcontracting liability 
is  mentioned  in  Article  12  of  the  Enforcement  Directive.  The  ambition  could  be  to  define 
specific  rules  on  full  joint  and  several  liability.862  However,  there  are  doubts  as  to  the 
political feasibility of this suggestion.863 Moreover, Member States still have the possibility to 

856 Questionnaire Belgium.  
857 J. Davies, ‘Labour Exploitation and Posted Workers in the European Construction Industry’. 
858 J. Cremers and M. Houwerzijl, ‘Subcontracting and social liability’, Tilburg University, ETUC project, 2021, p.5.  
859 See A. Heindlmaier and C. Kobler, ‘Essential, lonely and exploited: why mobile EU workers’ labour rights are not enforced’, 
Journal of Ethnic and Migration Studies, 2022: “the demand for cheap labour by economies and societies of destination has an 
impact on the willingness to see rights guaranteed” … “Control authorities may receive signals from superiors to turn a blind 
eye on several spots, or staff may not be topped up – which links over to capabilities of enforcement actors.” 

860 Heinen et al., ‘Liability in Subcontracting Chains: National Rules and the Need for a European Framework’; European Trade 

Union Confederation, ‘Securing Worker’s Rights in Subcontracting Chains Case studies’. 

861 Article 8(2) of the Employers Sanctions Directive establishes a full chain liability. However, according to Heinen (2017) liability 

is seriously diminished and watered down by several ‘loopholes’ (e.g., Article 8(3) establishes an escape clause).   

862 See for instance the campaign of EFBWW (European Federation of Building and Woodworkers, 2022a, 2022b).  
863 See Heinen et al., ‘Liability in Subcontracting Chains: National Rules and the Need for a European Framework’, p.51: “However, 
it must be taken into consideration that the concept of liability in subcontracting chains is a highly controversial matter within 
the Union. The concept of more stringent liability up to a full chain liability, which was demanded by some trade unions, has 

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define  more  stringent  liability  rules  (Article  12(4)  of  the  Enforcement  Directive).864  A  good 
practice regarding subcontracting liability is seen in Germany, where a posted worker may take 
the claim directly to the top of the subcontracting chain, without the need to go through each 
tier  of the  chain.  Another  example  is  identified  in  the construction  sector in  Italy,  where  the 
collective agreement states that before the start of work, companies must communicate to the 
territorial  building  authorities  the  complete  list  of  companies  involved  in  contracts  and 
subcontracts, including foreign companies sending workers abroad.865 Consequently, officials 
of the building authorities can check whether the companies are registered and have paid their 
contributions.  When  irregularities  are  found,  the  construction  agency  officials  can  deny  the 
company the “document of contribution regularity”, which is essential to be able to start work, 
and report the case to the labour inspectorates. 

A European legal initiative concerning subcontracting liability concerns a directive proposed 
by the European Commission, laying down rules on corporate due diligence obligations 
(including on climate change), directors' duties, civil liability and protection of persons reporting 
breaches.866 It is intended to promote human rights in global supply chains and decent work 
worldwide. The rules would apply to larger companies, with an important element being how 
these  companies  should  integrate  due  diligence  into  their  policies,  as  well  as  monitor  its 
effectiveness.867  

In addition to liability, limiting the number of links in the subcontracting chain is another 
often heard proposal. Trade unions in the construction sector call for limiting subcontracting 
chains  both  vertically  and  horizontally.868  However,  the  question  remains  whether  this  is 
achievable  in  a  sector  such  as  the  construction  sector,  being  highly  fragmented  with  small 
companies. Furthermore, the question arises to what extent the State itself can/should set an 
example by imposing ‘social clauses’ in public procurement869 or by limiting the number of 
subcontracting chains.870 

Creating  a  ‘solidarity  fund’  could  be  another  option.  In  Denmark,  for  example,  there  is  a 
‘Labour Market Fund for Posted Workers’.871 If workers posted to Denmark who are covered 
by a Danish collective agreement have problems receiving their wage from their employer, the 
worker can get the missing wage paid from this fund. The fund is financed by contributions 
from all Danish employers. Posting undertakings also contribute to the fund. 

A proposal concerning both subcontracting chains and LBCs is that only companies pursuing 
a  real  economic  activity  in  their  home  Member  State,  thus  suppressing  possible  LBCs,  are 
allowed  to  post  workers  to  another  Member  State.872  Therefore,  legal  criteria  to  define 
‘substantial activity’ must be solid and leave no loopholes, having at their core the working time 

proven to be too ambitious as some Member States were reluctant to implement a liability scheme in subcontracting scenarios 
into their national legal system. Keeping in mind the different interests of the western (receiving) and eastern (sending) member 
states, this is not surprising. The Enforcement Directive is an act of compromise.” 

864 One of the participants at the expert workshop argued that Member States, when defining more stringent rules in subcontracting 
chains, must apply them to all situations (not just cross-border situations) in a non-discriminatory manner. According to the 
expert, this may explain their reluctance to introduce new rules. 

865 Questionnaire Italy.  
866 S. Spinaci, ‘Corporate sustainability due diligence Could value chains integrate human rights and environmental concerns?’ 

European Parliamentary Research Service, 2022.    

867  See  for  instance  Art.  7:  “A  company  would  be  required  to  take  the  following  actions,  where  relevant:  (b)  seek  contractual 
assurances from a business partner with which it has a direct business relationship, that it would ensure compliance with the 
company's  code  of  conduct  and,  as  necessary,  prevention  action  plan,  including  by  seeking  corresponding  contractual 
assurances from its partners, to the extent that their activities are part of the company's value chain (contractual cascading). 
The contractual assurances would have to be accompanied by the appropriate measures to verify compliance.” (S. Spinaci, 
‘Corporate sustainability due diligence Could value chains integrate human rights and environmental concerns?’ p.7).  
868 European Federation of Building and Woodworkers, ‘Who’s the boss? Stop exploitation in subcontracting chains’, 2022a; 

European Federation of Building and Woodworkers, ‘Another case of severe exploitation of migrant construction workers: is 
the EU becoming the new Qatar?’, 2022b. 

869 See Directive 2014/24/EU on public procurement. 
870 B. Verbrugge & D. Gillis (2021). Public Procurement and Human Rights, HIVA – KU Leuven. See also “Section 5.6 
Procurement: A Remedy Against Social Dumping?” In Y. Jorens, Y. (2022), Cross-border EU Employment and its 
Enforcement: An Analysis of the Labour and Social Security Law Aspects and a Quest for Solutions. Cham: Springer 
International Publishing. 

871 See : https://workplacedenmark.dk/working-conditions/danish-labour-market-fund/. 
872 European Federation of Building and Woodworkers, ‘Who’s the boss? Stop exploitation in subcontracting chains’, 2022a. 

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of the  employees  of  a company, the  services rendered,  and  the  place  of the  turnover.  This 
would eradicate the so-called ‘labour only subcontractors’. 

The  fight  against  LBCs  seems  to  have  become  a  European  priority  by  the  European 
Commission’s DG Taxation. At the end of December 2021, an initiative to fight against the 
misuse of LBCs (i.e. shell entities) for improper tax purposes was announced (COM(2021) 
565  final).873  This  would  require  Member  States  to  ensure  that  undertakings  meet  several 
criteria, as specified in Article 6(1). More stringent provisions in the fight against LBCs could 
also be stipulated in Regulations 987/2009 and 883/2004 on the coordination of social security 
systems.  Finally,  having  consistent  and  aligned  concepts  (e.g.  ‘genuine  establishment’, 
‘substantial activities’, ‘effective and stable establishment’, ‘centre of main interest’) and using 
similar  indicators  for  assessment  could  be  beneficial.874  The  fight  against  fraudulent  LBCs 
should  be  seen  within  a  broader  context  of  the  fight  against  cross-border  social  fraud 
(underpayments of wages and social security contributions, non-respect of working conditions, 
etc). In that respect, the identification of it can be a tool to identify and tackle such abuses. 

A  solution  that  always  comes  up  when  discussing  infringements  in  cross-border  mobility  is 
more stringent enforcement.875 This requires more inspections. As long as the benefits of 
committing violations outweigh the financial penalties, rogue companies will continue 
to  exist.  Furthermore,  a  transnational  context  requires  transnational  enforcement.  In  this 
regard,  cooperation  between  EU  Member  States  is  essential  (by  concerted  and  joint 
inspections,  and  by  exchange  of  information).876  Where  a  complex  multi-level  network  in 
several  Member  States  involving  (posted)  workers  both  from  within  and  outside  the  EU  is 
involved,  it  is  almost  impossible  for  one  Member  State  alone  to  carry  out  controls  or 
inspections, without cooperation from other Member States. The support of ELA, but certainly 
also of Europol, could be particularly helpful in this regard. 

Finally, it was noted at the expert workshop that it would be useful to enhance the possibility 
of trade unions’ access to workplaces and to designate a coordinator who has an overview 
of all the different entities in the chain.877 

873 See: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=COM:2021:565:FIN. 
874 M. Houwerzijl et al. ‘A hunters game: How policy can change to spot and sink letterbox-type practices’. 
875 One of the comments at the expert workshop was that enforcement should be linked to more stringent rules and should have 

a transnational dimension. 

876 J. Cremers and T. Hastings, ‘Developing an approach for tackling letterbox companies. A learning resource from the Seminar 
of the European Platform  Tackling  Undeclared  Work:  How  to  identify  and  tackle  fraudulent  letterbox companies’, European 
Commission: Brussels, 2018; European Trade Union Confederation, ‘Securing Worker’s Rights in Subcontracting Chains Case 
studies’; Eurodétachement, ‘Synthesis ‘Transnational workshop: Addressing posting complex cases of fraud. Which practices, 
which lessons to be learnt?’. For instance, to check the identity and regularity of foreign firms is extremely complicated.  

877 See also Council Directive 92/57/EEC of 24 June 1992 on the implementation of minimum safety and health requirements at 

temporary or mobile construction site.  

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6.8.  Case Study 8: Key challenges in the live-in care 

sector 

6.8.1.  Overview 

The  aim  of  this  case  study  is  to  complement  the  findings  included  in  the  main  report, 
providing  additional  information  concerning  the  key  challenges  in  the  sector.  These  are 
especially important to highlight given the particularities associated with live-in care work, 
especially  the  isolated  nature  of  the  work  in  private  homes,  and  the  tendency  for  long, 
atypical working hours.  

As a sub-category of long-term care (LTC), live-in care workers are “paid professionals, with 
or without formal care training, whose work primarily involves LTC provision while living in 
a  private  residence  with  the  care  receiver.”878  The  phenomenon  of  live-in  care  work  is 
particularly common in seven EU Member States: Austria, Cyprus, Germany, Greece, 
Italy, Malta and Spain. 

Employment models for live-in care vary significantly between these seven countries: 
in Germany, live-in carers are often employed directly (on an informal basis) by the care 
recipient,879 whereas in Austria, 99% of 24-hour caregivers are self-employed.880 Another 
variable is the degree of regulation in the sector, with Austria, Germany and Italy being 
three examples of Member States with relatively unregulated regimes. A consequence of 
this  is  that  very  few  inspections  are  made  in  the  private  household  sphere,  and  so  it  is 
extremely  difficult  to  monitor  the  situation  and  ensure  effective  enforcement  of  legal 
provisions, where they exist.881 

In  terms  of  drivers  behind  temporary  cross-border  mobility  in  the  live-in  care  sector,  it  is 
necessary to look at both supply and demand factors. From a supply perspective, one of 
the key push factors is a lack of (well-paid) employment opportunities in the country 
of  origin.  The  vast  majority  of  live-in  carers  originate  from  Central-Eastern  European 
countries,  with  increasing  numbers  of  workers  being  third-country  nationals  (TCNs). 
However, any estimations as to the number of TCNs working in the sector are likely to be 
underestimates, with a significant proportion of live-in care work being undeclared. This is 
particularly true for TCNs, who may find themselves working informally without a contract 
and suffering from a lack of regular migration.882 There is a clear gender dimension here, 
with the overwhelming majority of the live-in care workforce being female (95% of live-in 
carers in Austria, 91% in Spain, and 87% in Malta).883 

On the demand side, the lack of adequate, affordable and easily accessible formal LTC 
services in many Member States results in unmet care needs. Relative labour shortages 
are  a  significant  issue  in  the  sector  due  to  unattractive  working  conditions,  increasing 
reliance on a migrant labour force. Given the fact that ageing populations are expected to 
lead to a significant increase in the demand for LTC (with the number of people potentially 

878 Eurofound, ‘Long-term care workforce: employment and working conditions’, 2020, p. 26. 
879 V. Horn et al., ‘Live-in migrant care worker arrangements in Germany and the Netherlands: motivations and justifications 

in family decision-making’, International Journal of Ageing and Later Life, 2019, 13(2): 83–113, p. 86. 

880 M. Leiblfinger & V. Prieler, ‘Elf Jahre 24-Stunden-Betreuung in Österreich‘, Katholische Privat-Universität Linz, 2018, p.13, 

available at: https://kidoks.bsz-bw.de/frontdoor/deliver/index/docId/1319/file/LiWiRei_9-Leiblfinger-Prieler.pdf.  

881  L.  Maihuber  &  B.  Allinger,  ‘Transnationale  Betreuungs-  und  Pflegekräfte  in  euorpäischen  Privathaushalten‘,  2021, 
https://wien.arbeiterkammer.at/service/studienundzeitschriften/studien/gesundheitundpflege/Transnationale_Betreuungsk
raefte_20210420.pdf. 

882 EESC, ‘The future of live-in care work in Europe, Report on the EESC country visits to the United Kingdom, Germany, Italy 
and  Poland  following  up  on  the  EESC  opinion  on  “The  rights  of  live-in  care  workers”’,  2020,  p.  9,  available  at:  https:// 
www.eesc.europa.eu/sites/default/files/files/report_on_the_eesc_country_visits_to_uk_germany_italy_poland_0.pdf.  

883 Eurofound, ‘Long-term care workforce: employment and working conditions’, 2020, p. 10. 

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in need of LTC in the EU-27 projected to rise from 30.8 million in 2019 to 33.7 million in 
2030 and 38.1 million in 2050),884 many more households are likely to start employing live-
in carers when they can afford to do so.885  

In terms of patterns of work for temporary cross-border workers in the sector, in Austria, 
around 80% of care workers travel to Austria to work on short-term cyclical rotas, usually 
ranging from two to four weeks.886 In Germany, the situation is different in that live-in migrant 
carers  typically  commute  between  Germany  and  their  country  of  origin  for  periods  of 
between one and three months.887 

This case study explores in more detail some of the key challenges within the live-in care 
sector, as well as the reasons behind why live-in care has developed as a phenomenon in 
certain EU Member States.  

6.8.2.  Analysis of the key challenges 

Some of the challenges in the sector are explored in this section, namely the precarity of 
live-in care work, social security considerations and enforcement challenges.   

6.8.2.1.  Precarity of live-in care work 

Precarious  employment  relationships  in  the  live-in  care  sector  are  common,  although 
regulation  of  the  sector  and  the  employment  models  for  live-in  care  vary  significantly 
between Member States. Generally speaking, the live-in care workforce is characterised by 
a high degree of feminisation and a large share of third country nationals (TCNs) and EU 
cross-border mobile workers, who carry out their work in an isolated manner in a private 
household.888  

Although  the  work  is  emotionally  and  physically  demanding,  there  is  a  lack  of  value 
placed on live-in care work, resulting in low wages and social security contributions.889 The 
very nature of live-in care renders it virtually impossible to separate working and recreational 
time.  Additionally,  the  workplace  may  be  ill-adapted,  and  live-in  care  workers  often 
experience  a  high  degree  of  emotional  strain  due  to  isolation,  the  nature  of  the  patients’ 
health conditions, and the pressure from the care recipient to extend the scope of work, for 
example, to housekeeping and cooking. For instance, Polish labour inspectorates in contact 
with  Polish  live-in  care  workers  in  Germany  reported  issues  related  to  inadequate  living 
conditions,  lack  of  heating,  violence  and  harassment,  and  lack  of  payment  for  hours 
worked.890  

The  vulnerability  of  live-in  carers  is  heightened  by  their  dependency  on  their  direct 
employer or the intermediary agency. For example, in a 2020 study for the EESC, it was 
reported that in Italy, “when workers fall ill, they are often dismissed, and two weeks later 
lose their health insurance and end up with no wage, no home and no healthcare.”891 TCN 

884 European Commission, ‘Long-term care report’, 2021, p. 12, available at: 
https://ec.europa.eu/social/main.jsp?catId=738&langId=en&pubId=8396.  

885  Eurofound,  ‘Forthcoming  European  Care  Strategy  must  look  towards  the  future’,  Blog,  05  May  2022,  available  at: 
https://www.eurofound.europa.eu/publications/blog/forthcoming-european-care-strategy-must-look-towards-the-future.  
886 M. Leiblfinger et al., ‘Confronted with COVID-19: Migrant live-in care during the pandemic’, 09 April 2021, available at: 

https://journals.sagepub.com/doi/full/10.1177/14680181211008340.  

887 V. Horn et al., ‘Live-in migrant care worker arrangements in Germany and the Netherlands: motivations and justifications 

in family decision-making’, International Journal of Ageing and Later Life, 2019, 13(2): 83–113, p. 87. 

888 A. Heindlmaier and C. Kobler, ‘Essential, lonely and exploited: why mobile EU workers’ labour rights are not enforced’, 

2022, Journal of Ethnic and Migration Studies, p. 13, available at: https://doi.org/10.1080/1369183X.2022.2102971.  

889 EESC, ‘The future of live-in care work in Europe, Report on the EESC country visits to the United Kingdom, Germany, Italy 

and Poland following up on the EESC opinion on “The rights of live-in care workers”’, p.9. 

890 Ibid, p. 21. 
891 Ibid, p. 24. 

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live-in  carers  are  in  an  especially  vulnerable  position  in  relation  to  immigration  policies, 
when  their  work  permit depends  on  a  particular employer.  This  restricts their freedom  of 
movement, disincentivises them from lodging formal complaints, and, in some instances, 
places them at risk of deportation if they interact with labour monitoring and enforcement 
bodies.892 

In Austria, employment agencies (Vermittlungsagenturen) play a major role in live-in care, 
especially  in  the  case  of  self-employed  carers.  Although  legally  self-employed  persons 
should agree on working time and remuneration directly with the care recipients, in practice, 
the intermediary agencies determine most aspects of the employment relationship.893 
For this reason, it can be considered that there is a great deal of bogus self-employment 
within  the  live-in  care  sector  in  Austria.  These  agencies  often  charge  registration  and 
service  fees  of  up  to  €800,  which  may  be  charged  in  advance  or  deducted  from  a  care 
worker’s salary in monthly instalments. The working time is generally oriented towards the 
needs of the care recipients, frequently resulting in 24 hour on-call duty.894 In general, the 
contractual arrangements between agencies and caregivers in Austria may include a range 
of unfavourable conditions for the latter, such as disproportionate high agency fees, clauses 
that  give  agencies  the  power  of  attorney,  confidentiality  obligations,  competition  clauses 
and  the  exclusions  of  liability  of  agencies,  of  which  the  latter  two  are  illegal. 895  Some 
agencies require the power of attorney to register or deregister the carer's business and to 
transfer  social  security  contributions  collected  from  the  carer  to  the  relevant  public 
institution. Often, this is done in untransparent or incorrect ways, with carers having to pay 
social security arrears or realising that the agency has kept part of the contributions. The 
power imbalance between agencies and caregivers combined with the freedom of contract 
can strongly disadvantage transnational carers, especially if they lack language skills and 
legal knowledge.896  

Many  of  the  situations  where  live-in  care  is  required  involve  challenging  physical  and/or 
mental health conditions, where the patients are often either partially or fully immobile, and 
thus highly dependent on their carers for any type of movement or activity (during the day 
or night). Since costs are almost always an issue to the persons that need care as well as 
their families, and public funding of home care is limited, employing two or more carers to 
provide support over the 24 hour cycle is almost never a feasible alternative.  

Even  in  countries  where  live-in  care  workers  are  present to  a  lesser  extent,  such  as the 
Netherlands, public authorities such as the ‘Inspectorate SZW’ have decided to pay special 
attention  to  the  phenomenon  of  live-in  care  work,  acknowledging  that  the  isolation  and 
dependency experienced by live-in care workers, as well as the risk of them not being able 
to freely dispose of their time, renders them particularly vulnerable.897 

6.8.2.2.  Social security considerations 

Live-in  care  workers  and  domestic  workers  may  be  excluded  from  social  security 
protections to which other workers are entitled, such as sick leave, pension contributions, 
unemployment benefits, pay for extra hours or maternity leave.898 The explicit exclusion or 
lower  protection  of  these  workers  from  protective  legislation  has  been  described  by 

892 Ibid, p. 28. 
893 L. Maihuber & B. Allinger, ‘Transnationale Betreuungs- und Pflegekräfte in euorpäischen Privathaushalten‘, p. 29. 
894 A. Heindlmaier and C. Kobler, ‘Essential, lonely and exploited: why mobile EU workers’ labour rights are not enforced’, p. 

11.  

895 Federal Ministry Republic of Austria: Social Affairs, Heath care and consumer protection, ‘24-Stunden-Betreuung Verträge 
at: 

mit  Vermittlungsagenturen 
https://broschuerenservice.sozialministerium.at/Home/Download?publicationId=329.  

und  Personenbetreuer:innen 

–  was  Sie  wissen 

sollten’,  Available 

896  Durisova S., Die Organisation der Ausbeutung.Soziale und arbeitsrechtliche Benachteiligung der Pflege- und 
Betreuungskräfte 

im  Rahmen  der  24-Stunden-Pflege,  unter  besonderer  Berücksichtigung  der  Rolle  von 

Vermittlungsagenturen, 2017, p 2, 57, 73-74, availbale at: https://unipub.uni-graz.at/obvugrhs/download/pdf/2287178.  

897 L. Maihuber & B. Allinger, ‘Transnationale Betreuungs- und Pflegekräfte in euorpäischen Privathaushalten, p. 135. 
898 EESC, ‘The future of live-in care work in Europe, Report on the EESC country visits to the United Kingdom, Germany, Italy 

and Poland following up on the EESC opinion on “The rights of live-in care workers”’, p. 8. 

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literature  as  ‘legislative  precariousness’.899  This  exclusion  is  often  justified  by  the 
‘specificity’ of domestic work, such as the nature of the activity and the fact that it takes 
place in a private household. However, this exclusion has recently been challenged by the 
Court of Justice of the European Union, which considered that the ‘special characteristics’ 
of live-in care work are not enough to justify the full exclusion of this category of workers 
from social security benefits, deeming it indirectly discriminatory on the ground of sex.900 
The Court held that exclusion was disproportionate, as it went beyond what was necessary 
to combat illegal work and promote employment in the sector.901 

Domestic  workers,  including  live-in  carers,  in  Spain  (where  the  aforementioned  case 
originated) were traditionally registered under a special social scheme, under which they 
were  not  covered  in  case  of  sickness  and  received  very  low  pension  contributions. 
Moreover, only if the number of working hours exceeded 20 per week was the employer 
required to pay social security contributions. In practice, many contracts for live-in carers 
included fewer hours than those worked in reality, to avoid social contribution payments. 
These arrangements (often done with the agreement of the carer) involved the cash in hand 
payment of additional hours, but also left the workers vulnerable to their employer’s one-
sided decisions (e.g. not paying the extra hours worked). Arguments against reforming the 
system  included  the  consideration  that  unemployment  protection  would  be  unfeasible  in 
practical terms due to the impossibility of enforcing labour inspections in private homes, as 
well  as  the  desire  to  avoid  overregulation,  as  it  could  encourage  households  to  choose 
informal working arrangements over formal ones.902 As of 2011,903 domestic workers were 
granted similar social security benefits to other employees, except for unemployment 
insurance,904  which  was  only  guaranteed  by  a  new  decree  which  entered  into  force  in 
October 2022.905  

In  Italy,  domestic  workers  whose  employers  are  affiliated  with  the  two  employer 
organisations DOMINA or FIDALDO benefit from the terms and conditions regulated by the 
collective  bargaining  framework  negotiated  in  2013.906  However,  the  collective 
agreement does not entitle domestic workers to certain protections such as sick leave, pay 
for extra hours, and maternity leave is limited to three months as opposed to the usual six 
months granted to other workers. Additionally, a large number of live-in carers fall outside 
the framework or are employed in an irregular way.907  

The situation of live-in caregivers in Austria is different, where those who are classed as 
‘employees’ are covered by generous legal provisions regarding wages and working hours. 
In  practice,  however,  99%  of  live-in  care  workers  are  self-employed  and  thus  neither 
entitled to continuous payment of wages in the case of illness, nor to paid leave. A caregiver 
who falls ill is entitled to benefits in kind, but needs to pay 20% of the contribution. In general, 
caregivers themselves must pay the compulsory contributions for pension, accidents and 
illness  insurance,  which  tend  to  be  withheld  and  transferred  by  the  placement  agency. 

899 V. Mantouvalou, ‘Human Rights for Precarious Workers: The Legislative Precariousness of Domestic Labour’, 2012, p. 3, 

available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2115016. 

900  C-389/20,  CJ  v  Tesorería  General  de  la  Seguridad  Social  (TGSS),  available  at:  https://eur-lex.europa.eu/legal-

content/en/TXT/?uri=CELEX:62020CJ0389. 

901 Ibid, para. 70. 
902 M. León, ‘Migration and Care Work in Spain: The Domestic Sector Revisited’, Social Policy and Society’, 2010, (9)409-
428,  p.  415,  available  at  https://www.researchgate.net/publication/232026186_Migration_and_Care_Work_in_Sp 
ain_The_Domestic_Sector_Revisited. 

903 Real Decreto 1620/2011, de 14 de noviembre, por el que se regula la relación laboral de carácter especial del servicio del 

hogar familiar, Official Gazette, available at: https://www.boe.es/buscar/doc.php?id=BOE-A-2011-17975.  

904  ILO,  ‘Making  decent  work  a  reality  for  domestic  workers:  Progress  and  prospects  ten  years  after  the  adoption  of  the 
Domestic  Workers  Convention’,  2011  (No.  189),    p.  126,  available  at:  https://www.ilo.org/wcmsp5/groups/public/---
dgreports/---dcomm/---publ/documents/publication/wcms_802551.pdf. 

905 Real Decreto-ley 16/2022, de 6 de septiembre, para la mejora de las condiciones de trabajo y de Seguridad Social de las 
personas  trabajadoras  al  servicio  del  hogar,  available  at:  https://www.boe.es/boe/dias/2022/09/08/pdfs/BOE-A-2022-
14680.pdf, https://www.thelocal.es/20220907/spains-domestic-workers-and-carers-to-get-landmark-labour-benefits/.  

906 L. Maihuber & B. Allinger, ‘Transnationale Betreuungs- und Pflegekräfte in euorpäischen Privathaushalten, p. 19. 
907 EESC, ‘The future of live-in care work in Europe, Report on the EESC country visits to the United Kingdom, Germany, Italy 

and Poland following up on the EESC opinion on “The rights of live-in care workers”’, p. 8. 

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Lastly, self-employed live-in careers are not entitled to unemployment benefits unless in the 
case of voluntary self-insurance. 908 

6.8.2.3.  The isolated situation of live-in caregivers in private 

households: legal and enforcement challenges 

There are various reasons for enforcement issues when it comes to cross-border mobile 
workers, such as staff shortages, limited resources, language barriers and short-term stays. 
Furthermore, live-in care work is often unregulated and undeclared, and data collection is 
challenging in the case of private households acting as employers. Whilst information on 
undeclared  work  in the LTC  sector  is  usually  provided  by  control  bodies, such  as  labour 
inspectorates, when it comes to live-in care, labour inspectors cannot systematically inspect 
private households. Moreover, the lack of a common occupational definition of a live-in carer 
is  a  challenge  for  data  collection  at  transnational  level,  heightened  by  an  unclear 
demarcation between domestic and care work and the informal nature of the sector.909  

Two factors that are particularly relevant for enforcement issues in the live-in care sector 
are 1) the demand for live-in care work with low labour costs and 2) the isolation of 
foreign  workers.910  Heindlmaier  and  Kobler  argue  that  these  two  factors  need  to  be 
considered together with the capabilities of enforcement actors, such as unions and labour 
inspectorates, and their willingness to enforce social and labour rights. 

Firstly, the demand for live-in care work is very high. This was clearly emphasised by the 
COVID-19  pandemic,  which  brought  to  light  the  demand  for  and  significance  of  these 
‘essential workers’. For example, to prevent the collapse of the care system in Austria, 
special  flights  and  train  rides  for  live-in  care  workers  from  Romania  and  Bulgaria  were 
provided during the COVID outbreak.911 Consequently, the high demand for lower-cost 
labour in essential sectors can reduce the willingness of control authorities to carry out 
inspections and enforce labour and social rights, especially if this would raise financial costs 
for citizens. When combined with the difficulties enforcement authorities face in identifying 
private employers of domestic workers, the limited mandate of the authorities when it comes 
to  self-employed  workers  and  the  difficulties  of  conducting  inspections  in  private 
households, live-in care is not necessarily a sector which is a priority intervention area for 
enforcement bodies.912 

Second, the isolation of mobile workers also hampers the capability of enforcement 
actors to conduct inspections, and of labour unions to reach live-in carers. Live-in carers 
who are mobile workers tend not to have a relationship with the community in which they 
work, and rarely leave their homes in order to save as much money as possible.913 In Italy, 
live-in caregivers are frequently called on to perform additional household services, such as 
gardening and caring for multiple family members and their basic medical needs. The heavy 
workload combined with the limited possibility to leave the house adds to the isolation of 
live-in care workers and their physical and psychological burden. 914 The imbalance of power 
between carers and their employers is compounded by their vulnerable situation, as many 
of the carers are EU mobile workers or TCNs who are alone in the host country and with 
limited (or no) social networks they can rely on. Losing their jobs also means losing their 

908 L. Maihuber & B. Allinger, ‘Transnationale Betreuungs- und Pflegekräfte in euorpäischen Privathaushalten‘, p. 29. 
909 Ibid, p. 7. 
910 A. Heindlmaier and C. Kobler, ‘Essential, lonely and exploited: why mobile EU workers’ labour rights are not enforced’, p. 

4. 

911 Ibid, p. 2. 
912 European Platform tackling undeclared work, ‘Tackling undeclared work in the personal and household services sector’, 

March 2022, p. 2, available at: https://www.ela.europa.eu/sites/default/files/2022-
03/UDW_Study_report_on_PHS_2022.pdf. 

913 A. Heindlmaier and C. Kobler, ‘Essential, lonely and exploited: why mobile EU workers’ labour rights are not enforced’, pp. 

2-6. 

914 L. Maihuber & B. Allinger, ‘Transnationale Betreuungs- und Pflegekräfte in euorpäischen Privathaushalten‘, p. 129. 

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homes, which is a key deterrent to lodging claims against violations of working conditions, 
even more so in cases where they are working informally.  

Furthermore, conducting inspections in the case of individually isolated workers is very cost 
and time intensive for enforcement bodies, who tend to focus on sectors where they can 
observe  a  large  number  of  workers  in  a  limited  time.  Private  households  are  specially 
protected from state intervention and control by public authorities.915 The obligation of the 
state to ensure the respect for privacy (e.g. Art. 8 of the European Convention on Human 
Rights), usually requires the consent of the homeowner or a judicial authorisation for labour 
inspectors to access households916, leaving indirect or unofficial controls often as the only 
option.  

For example, in Germany, virtually no inspections in private households are carried out, as 
they are only possible in presence of the explicit consent of the tenant or a judicial warrant 
whilst  in  Austria,  given  that  the  overwhelming  majority  of  live-in  care  workers  are  self-
employed,  there  is  thus  no  statutory  control  over  the  working  conditions  of  these 
individuals. 917  

Similarly, in Poland, labour inspectorates have no authority to inspect private homes and 
may only summon the employer to the inspectorate’s office, in the presence of a complaint 
from an employee.918 Ireland has developed a successful model to tackle undeclared work 
based on specific rules and procedures, including risk assessments and complemented by 
preventive activities, such as information campaigns and outreach to target communities.  

The  Irish  Labour  Inspectorate  uses  data  from  different  sources,  crosschecking  also 
information from tax offices, employment permit applications and social protection data and 
analysing  recruitment  websites  of  employment  agencies  to  identify  high-risk  employers. 
Inspections can be announced or unannounced, and require a judicial warrant, which can 
be approved within one day, if the judge has all the relevant information. Such measures 
are  especially  important  considering  that  a  complaints  based  systems  seem  to  be 
ineffective, due to fear of employer’s retaliation or deportation.  919  

Trade  unions  and  other  representation  bodies  have  difficulties  reaching  out  to  live-in 
carers, who are rarely members of the competent trade unions in the country where they 
work.  Many  live-in  care  workers  may  also  be  reluctant  to  engage  with  trade  unions  and 
enforcement bodies out of fear of retaliation or even deportation in the case of an insecure 
residence status. In Italy, TCN live-in carers are more likely to accept precarious working 
conditions without reporting them, as five years of regular employment are needed to be 
granted a standard residence permit. Until then, a TCN’s work permit is linked to the length 
of their employment contract, needing to be renewed biannually on the condition that the 
person requesting the renewal is employed at least for 20 hours per week.920  

6.8.3.  Scale of the phenomenon 

As mentioned, the isolated situation of live-in carers in private households makes it very 
difficult to estimate the number of workers in the sector, especially those employed on a 

915 Eurofound, ‘Long-term care workforce: employment and working conditions’, p. 62. 
916 European Labour Authority, Tackling undeclared work in the care and personal and household services sector Learning 
resource  paper  from  the  Platform  seminar,  p  4,  available  at:  https://www.ela.europa.eu/sites/default/files/2022-
06/UDW%20in%20PHS_%20Learning%20resource%20paper_0.pdf 

917 A. Heindlmaier and C. Kobler, ‘Essential, lonely and exploited: why mobile EU workers’ labour rights are not enforced’, p. 

13. 

918 EESC, ‘The future of live-in care work in Europe, Report on the EESC country visits to the United Kingdom, Germany, Italy 

and Poland following up on the EESC opinion on “The rights of live-in care workers”’, p. 29.  

919 European Labour Authority, Tackling undeclared work in the care and personal and household services sector Learning 
resource  paper  from  the  Platform  seminar,  p  12,  available  at:  https://www.ela.europa.eu/sites/default/files/2022-
06/UDW%20in%20PHS_%20Learning%20resource%20paper_0.pdf.  

920 L. Maihuber & B. Allinger, ‘Transnationale Betreuungs- und Pflegekräfte in euorpäischen Privathaushalten‘, pp. 20-21. 

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temporary  cross-border  basis.  In  the  EU’s  non-residential  long-term  care  workforce  as  a 
whole,  numbers  increased  from  1.6  million  in  2014  to  1.9  million  in  2019.921  However,  a 
considerable  proportion  of  live-in  care  workers  may  not  be  included  in  this  statistic,  as 
undeclared work in the sector is rife. In Germany, it is thought that there are between 
300,000 and 350,000 undeclared live-in carers.922 Another estimate suggests that 80-90% 
of  caregivers  from  Eastern  Europe  in  Germany  are  employed  informally.923  In  Spain, 
meanwhile,  an  estimated  32%  of  employment  in  personal  household  services  was 
undeclared in 2019, amounting to around 185,000 workers.924 

In addition to considering the overall scale of live-in care work in the EU, it is interesting to 
explore  why  temporary  cross-border  workers  are  employed  as  live-in  carers  in  a 
subset of Member States, and to a very limited or non-existent extent in others.  

One  of  the  key  factors  here  is  that  demand  is  highly  dependent  on  an  individual 
country’s  national  care  strategy.  In  Scandinavian  countries,  where  temporary  cross-
border workers are not relied upon for the delivery of live-in care, municipalities play a key 
role  in  care  provision.  In  Sweden,  elderly  care  is  largely  funded  by  municipal  taxes  and 
government grants. The municipal cost of elderly care in Sweden in 2020 was SEK 135.3 
billion (EUR 12.4 billion).925 In Denmark too, municipalities maintain responsibilities for long-
term care policies, including the level, content and regulation of service delivery, and the 
organisation of the public provision of services.926 Moreover, the introduction of a free choice 
of home-care provider in 2003 compelled municipalities to ensure a choice between at least 
two  providers  of  LTC.927  This  can  assume  different  modalities,  including  residential  care, 
community services and home care. Importantly though, following a needs assessment, 
eligible  care  recipients  receive  permanent  home  care  free  of  charge,  and 
“municipalities  are  also  responsible  for  funding  the  necessary  home  adaptation  and  the 
extra expenses incurred for medication or nursing supplies.”928 Through this well-developed 
model, reliance on temporary cross-border workers for the delivery of long-term, live-in care 
is not necessary. 

This  can  be  contrasted  to  the  situation  in  Member  States  where  temporary  cross-border 
workers make up the majority of live-in carers. In Germany for example, where live-in care 
is most common in the EU, there is a system whereby those in need of long-term care at 
home can benefit from a care allowance (Pflegegeld) and can be used to finance private 
services for support in the home.929 This means that the choice of caregiver is left to the 
user. However, affordability is an issue: “almost half (49%) of EU households needing long-
term formal home-based care do not have it because they cannot pay for it”.930  

Given the unattractive working conditions live-in carers face, characterised by low pay, high 
work  intensity,  occupational  health  and  safety  risks  due  to  ill-adapted  homes,  atypical 
working hours, shift work and difficult social environments, there is a distinct shortage of 
caregivers  in  many  Member  States,  particularly  those  with  higher  average  wages.  A 
model whereby temporary cross-border workers (usually from Central and Eastern Europe, 
or TCNs) provide live-in care services is therefore very attractive for both the care recipient, 
who can offer a lower wage than to a fellow national, and to the state as a whole, as labour 
and  skills  shortages  are  addressed.  It  is  also  somewhat  attractive  to  the  caregivers 

921 Eurofound, ‘Long-term care workforce: employment and working conditions’, p. 8. 
922 V. Horn, & C. Schweppe, ‘Gewaltpotentiale und Gewaltschutz in Privathaushalten mit 24-StundenPflegekräften’, Zeitschrift 

für Sozialpädagogik, Vol. 17, No. 4, 2019, pp. 394–413. 

923  European  Parliament,  EMPL  Committee,  ‘Policies  for  long-term  carers’,  November  2021,  p.  24,  available  at: 

https://www.europarl.europa.eu/RegData/etudes/ATAG/2021/695477/IPOL_ATA(2021)695477_EN.pdf. 

924 Eurofound, ‘Long-term care workforce: employment and working conditions’, p. 25.  
925 See: https://sweden.se/life/society/elderly-care-in-sweden.  
926  WHO,  ‘Denmark  –  Country  case  study  on  the  integrated  delivery  of  long-term  care’,  2019,  p.  3,  available  at: 

https://www.euro.who.int/__data/assets/pdf_file/0010/424648/Denmark-country-case-study-on-the-integrated.pdf. 

927 Ibid, p. 3. 
928 Ibid, p. 31. 
929 L. Maihuber & B. Allinger, ‘Transnationale Betreuungs- und Pflegekräfte in euorpäischen Privathaushalten‘, p. 36.  
930  EIGE,  ‘Gender  Equality  Index  2022:  The  COVID-19  pandemic  and  care’,  24  October  2022,  available  at: 

https://eige.europa.eu/publications/gender-equality-index-2022-covid-19-pandemic-and-care.  

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themselves, who can earn more working in a household in Austria or Germany than in a 
hospital in their home country.931 

The  consequence  of  the  high  demand  for  live-in  care  workers  from  Central  and  Eastern 
Europe  in  other  Member  States  often  results  in  a  trickle-down  effect,  whereby  labour 
shortages  then  emerge  in  the  care  and  health  sectors  of  sending  countries.932  An 
example  of  this  is  in  Poland,  by  far the main  ‘sending’  Member  State  of health  and  LTC 
posted  workers  to  Germany,933    where  many  Ukrainians,  usually  undeclared,  are  now 
providing live-in care services.934 This situation results in the risk of ‘brain drain’, or indeed 
‘care drain’, in countries which were traditionally sending countries. The impact of the care 
drain metaphor will be examined in the section below. 

6.8.4. 

Impact 

While it is important to consider temporary cross-border mobility of live-in carers as a by-
product of ageing populations and the social and welfare policies of Member States, it is 
also  interesting  to  consider  the  impact  that  this  particular  type  of    cross-border 
movement has on the carers themselves, and the country from which they originate. 
Using the example of Slovak 24-hour live-in carers in Austria, a 2019 study by Bahna and 
Sekulová found that the vast majority (94.5% in 2016) of care workers did not have a 
family member in Slovakia needing care or special assistance similar to the one they 
provided  in Austria.935  Indeed,  interviews  for  the study  found that the  majority  of  live-in 
carers had grown children and either entered care work only after their own parents had 
passed away, or left care work in Austria when their own parents needed assistance back 
home.936 

That said, the interviews in the aforementioned study found that a small minority of care 
workers had young children back home. Surprisingly, even where this was the case, those 
live-in carers with children back in Slovakia under the age of 15 did not evaluate their job 
consistently  less  enthusiastically  than  those  without  dependent  children.937  One  possible 
explanation for this is that in Austria, 80% of care workers travel there to work on short-term 
cyclical  rotas,  usually  ranging  from  two  to  four  weeks.938  This  pattern  of  very  short-term 
temporary  cross-border  mobility  was  found  to  suit  at  least  some  of  the  interviewed  care 
workers,939 meaning that they were less affected by problems experienced by transnational 
families  in  other  cases.  Also,  income  appears  to  be  one  of  the  most  important 
determinants of job satisfaction,940 suggesting that many temporary cross-border live-in 
carers are, first and formerly, labour migrants.941 

When looking at the impact of measures taken to address some of the challenges in the 
sector,  it  is  interesting  to  consider  examples  of  legislative  measures  and  landmark 
decisions, but also advocacy work and projects to raise awareness of and support for live-
in care workers. 

931 M. Bahna & M. Sekulová, Crossborder Care: Lessons from Central Europe, 2019, Palgrave Macmillan, Cham, available 

at: https://link.springer.com/book/10.1007/978-3-319-97028-8.  

932 European Platform tackling undeclared work, ‘Tackling undeclared work in the personal and household services sector’, p. 

29. 

933 De Wispelaere et al., 2022c. 
934 Eurofound, ‘Forthcoming European Care Strategy must look towards the future’.  
935 M. Bahna & M. Sekulová, ‘Does the Family Suffer?’ in Crossborder Care: Lessons from Central Europe, 2019, Palgrave 

Macmillan, Cham, p. 69, available at: https://doi.org/10.1007/978-3-319-97028-8_4.  

936 Ibid, p. 69. 
937 Ibid, p. 80. 
938 M. Leiblfinger et al., ‘Confronted with COVID-19: Migrant live-in care during the pandemic’. 
939 M. Bahna & M. Sekulová, ‘Does the Family Suffer?’ in Crossborder Care: Lessons from Central Europe, pp. 81-82. 
940 E. Barbiano di Belgiojoso & L. Ortensi, ‘Satisfied after all? Working trajectories and job satisfaction of foreign-born female 
domestic  and  care  workers  in  Italy’,  Journal  of  Ethnic  and  Migration  Studies,  24  April  2018,  p.  18,  available  at: 
https://doi.org/10.1080/1369183X.2018.1465401.  

941 M. Bahna & M. Sekulová, ‘Does the Family Suffer?’ in Crossborder Care: Lessons from Central Europe, p 85. 

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The  recent  Spanish  decree  guaranteeing  the  right  to  unemployment  support  for 
domestic  workers  and  providing  that  domestic  staff  can  no  longer  be  dismissed  without 
justification942 is likely to improve the working conditions of 370,000 to 600,000 domestic 
workers in Spain, including live-in carers, the overwhelming majority of whom are female.943 
It will not, however, have an impact on the estimated 200,000 domestic workers who are 
working without an employment contract in the informal economy.944  

Since  the  introduction  of  inspections  in  private  households  in  Ireland  in  2011,  250 
inspections  have  been  carried  out,  and  229  infringements  have  been  identified  in  the 
domestic  work  sector.  The  most  common  type  of  infringement,  around  70%  concerned 
working time. The fact that since 2018 the number dropped due to a priority shift on other 
sectors and the limited capacity of the inspectorates is an important reminder that adequate 
attention and funding is necessary for enforcement measures to be effective.945 

Moreover, the full impact of the aforementioned case (C-389/20, CJ v Tesorería General de 
la Seguridad Social (TGSS)) referred by the Spanish Court to the Court of Justice of the 
European Union (CJEU) has yet to be seen. The case already recognises the gendered 
dimension of domestic work, ruling that since 95.53% of the total workers enrolled in the 
Special Social Security Scheme for Domestic Workers in Spain are women, their exclusion 
from social security places them at a particular disadvantage compared to male workers, 
and is indirectly discriminatory on the grounds of sex. The ruling has the potential to be a 
powerful precedent to further promote domestic workers’ (including live-in carers’) 
rights under labour law and social security systems.946 

For  example,  several  EU  Member  States,  including  Austria,  Germany  and  Italy,  have 
prevented the application of the Working Time Directive to domestic workers. Austria has 
done  so,  for  example,  by  categorising  live-in  carers  as  self-employed,  rather  than 
dependent  workers.  No  relevant  case  from  Austria  has  reached  the  CJEU  until  now, 
although “there are strong indications that this represents bogus self-employment, and such 
a  person  would  be  categorised  as  a  worker  under  EU  law.”947  As  in  case  C-389/20,  EU 
equality legislation thus has the potential to challenge some of these long-standing 
exclusions. 

Finally, bottom-up approaches, awareness raising, and advocacy campaigns can also 
have a positive impact for live-in care workers. For example, CuraFAIR948 operates as a 
central contact and networking point for 24-hour caregivers in Austria. Its advisors support 
live-in carers with social and legal issues, help them to understand services provided by 
institutions (e.g. social security agencies, the tax office, trade unions, etc.) and offer help in 
cases of abuse and violence. In addition, the Interest Association of 24-hour-caregivers 
(Interessensgemeinschaft der 24-h-Betreuer_Innen, (IG 24)) is a self-organised, grassroots 
organisation of migrant live-in caregivers, working to reveal and end rights violations in 24-
hour  care  work.  To  date,  it  has  reached  over  11,000  care  workers  and  has  won  the 

942 Real Decreto-ley 16/2022, de 6 de septiembre, para la mejora de las condiciones de trabajo y de Seguridad Social de las 
personas  trabajadoras  al  servicio  del  hogar,  available  at:  https://www.boe.es/boe/dias/2022/09/08/pdfs/BOE-A-2022-
14680.pdf.  

943 The numbers vary depending on the source and method of calculation. See for example: https://www.ilo.org/global/about-
the-ilo/newsroom/news/WCMS_856397/lang--en/index.htm,  https://www.thelocal.es/20220907/spains-domestic-workers-
and-carers-to-get-landmark-labour-benefits/.   

944 See: https://www.thelocal.es/20220907/spains-domestic-workers-and-carers-to-get-landmark-labour-benefits/.  
945 European Labour Authority, Tackling undeclared work in the care and personal and household services sector Learning 
resource  paper  from  the  Platform  seminar,  p  12-13,  available  at:  https://www.ela.europa.eu/sites/default/files/2022-
06/UDW%20in%20PHS_%20Learning%20resource%20paper_0.pdf.  

946  E.  Chieregato,  ‘The  first  CJEU  decision  on  domestic  workers:  the  role  of  EU  equality  law  in  challenging  unjustified 
labour  rights  and  social  protections’,  8  March  2022,  European  Law  Blog,  available  at: 

exclusions 
https://europeanlawblog.eu/2022/03/08/the-first-cjeu-decision-on-domestic-workers-the-role-of-eu-equality-law-in-
challenging-unjustified-exclusions-from-labour-rights-and-social-protections/.  

from 

947 European University Institute, ‘Domestic Workers, EU Working Time Law and Implementation Deficits in National Law – 
at: 

Change 
https://cadmus.eui.eu/bitstream/handle/1814/70620/LAW_%202021_03.pdf?sequence=1&isAllowed=y.  

available 

Sight?’, 

2021, 

15, 

p. 

in 

948 See: https://www.volkshilfe-ooe.at/die-volkshilfe/stuetzpunkte-bereiche/fluechtlings-und-
migrantinnenbetreuung/sonderprojekte/anlaufstelle-fuer-24-stunden-betreuerinnen/. 

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‘SozialMarie Prize for Social Innovation’ for its lobbying and media work and initiatives  to 
tackle issues in the sector.949  

6.8.5.  Conclusions and recommendations 

This study has highlighted a combination of factors contributing to the challenges that 
temporary  cross-border  live-in  carers  face.  It  has  been  argued  that  the  difficulties 
enforcement authorities face in identifying private employers of live-in carers, the isolation 
of  these  workers,  and  the  protection  afforded  to  the  private  household  from  systematic 
labour  inspections  reduces  the  effectiveness  of  traditional  forms  of  enforcement. 
Collecting  evidence  on  enforcement  legislation  of  EU  member  states  and  sharing  good 
practice examples of cases where legislation allows labour inspection in private households, 
should be supported and encouraged. 950  

Ireland’s approach to enforcement in the domestic work sector can serve as a good practice 
example of how physical visits of households can be carried out, where useful and 
appropriate,  whilst  protecting  the  inviolability  of  the  home.  National  enforcement 
authorities  should  be  encouraged  to  apply  a  holistic  approach,  acknowledging  that 
compliance  and  enforcement  of  domestic  workers’  rights  is  broader  than  access  to 
households. At the same time further regulation is needed to allow for inspections under 
certain  conditions  ensuring  that  the  constitutional  protection  of  private  homes  does  not 
remove employers’ obligations to respect the rights of live-in carers.951 Furthermore, even 
in  the  presence  of  national  legislative  reforms,  the  ratification  of  international  labour 
standards  or  landmark  rulings,  a  systematic  approach  linked  to  the  care  strategy  of  a 
country and its immigration and enforcement system is needed to guarantee the rights of 
these individuals in practice.  

As  people  are  living  longer,  the  need  for  long-term  care  is  increasing,  and  adequate 
funding for national care services is essential. As discussed, the countries where live-in 
care work is not prevalent include those that invest heavily in the care system, particularly 
through  funding  by  municipal  taxes  and  government  grants.  Where  there  is  a  choice 
between providers of long-term care, and particularly when eligible care recipients receive 
permanent home care free of charge, reliance on temporary cross-border workers for the 
delivery of long-term, live-in care is not necessary. The provision of quality, affordable and 
accessible care services across the European Union is a key focus of the 2022 European 
Care Strategy.952 

Given the prevalence of TCN live-in care workers and the need to address exploitation and 
avoid pushing workers further into irregular and clandestine employment, the enforcement 
of employment standards must be separated from immigration enforcement. In other 
words, migrant workers need to be able to file a complaint without fearing deportation.953 
Moreover,  contact  points,  support  provided  to  care-workers  in  their  mother  tongue  and 
anonymised avenues to inform representation bodies and enforcement authorities of labour 
law violations should be ensured. 

949  See:  https://www.sozialmarie.org/de/projects/8537.  See  also:  European  Platform  tackling  undeclared  work,  ‘Tackling 

undeclared work in the personal and household services sector’, p. 29. 

950 European Platform tackling undeclared work, ‘Tackling undeclared work in the personal and household services sector’, p. 
65  ELA,  available  at:  https://www.ela.europa.eu/sites/default/files/2022-03/Study-report-on-personal-and-household-
sector.2021_EN.pdf.  

951  Ibid, see  also  European  Labour Authority,  Tackling  undeclared  work  in the care  and  personal  and household  services 
at: 

sector 
https://www.ela.europa.eu/sites/default/files/2022-06/UDW%20in%20PHS_%20Learning%20resource%20paper_0.pdf  
952 European Commission, ‘A European Care Strategy for caregivers and care receivers’, 07 September 2022, available at: 

available 

resource 

Learning 

seminar, 

Platform 

paper 

from 

-13, 

the 

12 

p 

https://ec.europa.eu/commission/presscorner/detail/en/ip_22_5169.  

953 EESC, ‘The future of live-in care work in Europe, Report on the EESC country visits to the United Kingdom, Germany, Italy 

and Poland following up on the EESC opinion on “The rights of live-in care workers”’, p. 6.  

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In  terms  of  legislative  measures,  the  ratification  of  the  ILO’s  Domestic  Workers 
Convention954 should be encouraged and promoted. This is in line with the Council of the 
European Union’s Decision of 2014.955 The Convention sets labour standards for domestic 
workers and makes special mention of women and girls, as well as migrants and members 
of disadvantaged communities as the main demographic in this sector. Currently only eight 
Member States have ratified it: Belgium, Finland, Germany, Ireland, Italy, Malta, Portugal 
and Sweden. Following on from ratification, it is fundamental that the provisions of the 
Convention are applied; there have been criticisms that although Italy was one of the first 
countries to ratify it in 2012, “this has not resulted in appropriate legislation at the state level 
to adapt to the principles expressed.”956 

It is important to recall that self-employed persons and independent contractors are not 
‘domestic workers’ under the ILO’s Convention and are largely excluded from the mandate 
of labour inspectors. Whilst self-employment can serve to reduce undeclared work in the 
live-in  care  sector,  it  can  also  create  other  challenges  such  as  precarious  working 
conditions,  bogus  self-employment  and  under-declared  work.957  Measures  to  encourage 
formal  employment  should  be  considered  to  prevent  live-in  care  workers  from  falling 
outside  the  scope  of  protective  legislation  and  leading  them  to  accept  unfavourable 
conditions  due  to  the  unequal  bargaining  power  between  them  and  the  employer  or 
employment  agencies.  Finally,  given  the  gendered  nature  of  the  live-in  care  workforce, 
overarching gender equality policies should form part of the solution challenges in the 
sector.  These  policies  should  include  integrated  policy  approaches  to  address  work-life 
balance and access to benefits, pay and pensions.958 The recent decision of the European 
Court  of  Justice  in  Case  C-389/20  is  an  important  reminder  that  EU  equality  law  can  be 
used to challenge unjustified exclusions from labour rights and social protections for live-in 
carers, serving as a powerful precedent to further promote these individuals’ rights.  

954 ILO, C189 - Domestic Workers Convention, 2011 (No. 189), available at: 

https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C189.  

955 European Commission, Press release, ‘Working conditions: time for Member States to implement the ILO domestic workers 

convention’, 28 January 2014, available at: https://ec.europa.eu/commission/presscorner/detail/es/IP_14_82.  

956 EESC, ‘The future of live-in care work in Europe, Report on the EESC country visits to the United Kingdom, Germany, Italy 

and Poland following up on the EESC opinion on “The rights of live-in care workers”’, pp. 24-25. 

957 European Platform tackling undeclared work, ‘Tackling undeclared work in the personal and household services sector’, p. 

34, 38- 39 

958 European Platform tackling undeclared work, ‘Tackling undeclared work in the personal and household services sector’, p. 

64. 

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7.  Promising practices in addressing key challenges 
related to the working conditions of temporary 
cross-border workers 

This  section  discusses  examples  of  good  practices  that  are  implemented  to  address 
challenges  related  to  working  conditions  in  the  Member  States,  focusing  on  cooperation 
between national authorities in enforcing rules and the role that social partners can play for 
a better protection of posted and other temporary cross-border workers.  

7.1.  Promising practices involving cooperation between 
Member States in enforcing rules in situations 
involving temporary workers in posting and non-
posting situations 

7.1.1. 

Introduction 

Intra-European  labour  mobility  entails  a  transnational  dimension  of  enforcement.  In  that 
respect,  “with 
the  growing  numbers  of  services  and  workers  crossing  borders, 
administrations  have  to  rely  on  other  Member  States’  willingness  and  capacity  to 
engage  in  enforcement  in  order  to  ensure  the  application  of  agreed  standards  in  their 
territory  or for  their  citizens”.959,960,961  This  case  study focusses  on  promising  practices  of 
such cooperation between Member States. After discussing different types of cross-border 
cooperation  and  their  (in)formal  implementation,  the  obstacles  to  cooperation  are 
discussed, as well as enabling factors for future cooperation between Member States.  

Several questions arise in relation to transnational cooperation between Member States.962 
First, there is the question of which enforcement actors should be involved. Should the 
scope be limited to only the competent public administrations and their inspection services 
(i.e. with the authority to act as ‘police patrol’) or should other actors such as trade unions 
(i.e.  with  the  authority  to  act  as  a  ‘fire  alarm’)  also  be  involved  in  transnational 
cooperation?963  In  addition,  one  might  ask  what  the  content  of  the  transnational 
cooperation  should  be  and  for  which  legal  matter.  Here,  the  content  may  vary  greatly 
depending  on  the  specific  phase  within  the  ‘enforcement  chain’  (prevention,  detection, 
control,  sanctioning  and  recovery).  Finally,  there  is  the  question  about  how  such 
transnational  cooperation  should  be  formalised,  as  well  as  at  what  level  (bilateral, 
multilateral,  or  European).  For  instance,  at  EU-level,  reference  can  be  made  to  three 
relevant  bodies:  the  Senior  Labour  Inspectors  Committee  (SLIC)964,  the  Administrative 

959 M. Hartlapp, ‘Enforcing Social Europe through Labour Inspectorates: Changes in Capacity and Cooperation across Europe, 

West European Politics’, 2014,  37:4, p. 807. 

960 About the ‘willingness’ and the ‘capabilities’ of enforcement actors in enforcing labour rights see A. Heindlmaier and C. 
Kobler,  ‘Essential,  lonely  and  exploited:  why  mobile  EU  workers’  labour  rights  are  not  enforced’,  Journal  of  Ethnic  and 
Migration Studies, 2022.  

961 For instance, inspecting workplaces with a high number of posted workers or seasonal workers can be more effective when 

both receiving and sending state officials are involved. 

962 In a first instance, cooperation at a national level is essential. For instance, think about information exchange between 

national enforcement actors or joint inspections. 

963 Heindlmaier and Kobler (2022) define two types of enforcement actors: ‘police patrol’ executed by control authorities and 

‘fire alarm’ set off by interest representation (e.g., trade unions).  

964 In 1982, national labour inspectorates formed this network which was in 1995 turned into a formal advisory committee for 
the Commission (95/319/EC) (J. Cremers, ‘The European labour authority and enhanced enforcement’, 2018a; J. Cremers, 

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Commission on the Coordination of Social Security Systems, and the European Platform 
tackling  undeclared  work.965  The  principal  role  of  all  three  is  to  promote  enhanced 
cooperation  between  national  competent  authorities.  The  recently  established  European 
Labour Authority (ELA)966 can also be added to this list.  

Both  the  PWD  and  the  Enforcement  Directive  (Directive  2014/67/EU)  highlight  the 
importance  of  transnational  cooperation,  as  well  as  provide  tools  to  develop  such 
cooperation.967 For instance, the importance of transnational cooperation is acknowledged 
in Recital 28 of Directive (EU) 2018/957:  

“The transnational nature of certain situations of fraud or abuses related to the 
posting  of  workers  justifies  concrete  measures  aiming  to  reinforce  the 
transnational dimension of inspections, inquiries and exchanges of information 
between the competent authorities or bodies of the Member States concerned. 
To  that  end,  in  the  framework  of  administrative  cooperation  provided  for  in 
Directives  96/71/EC  and  2014/67/EU,  in  particular  Article  7(4)968  of  Directive 
2014/67/EU,  the  competent  authorities  or  bodies  should  have  the  necessary 
means  for  alerting  on  such  situations  and  exchanging  information  aiming  to 
prevent and combat fraud and abuses.”969  

Different  types  of  cross-border  cooperation  Cross-border  cooperation  between  Member 
States in enforcing rules is mostly expressed through the exchange of information as well 
as  through  concerted  and  joint  inspections.  This  case  study  therefore  elaborates  on 
these two types of cooperation. However, transnational cooperation may also occur in other 
ways, for instance during the recovery of wages, social security contributions and financial 
administrative penalties.970 

7.1.2. 

Information exchange 

Information exchange between Member States can be considered one of the most useful 
forms  of  transnational  cooperation  in  enforcing  labour  rules.971  For  instance,  in  a 

‘Towards a European Labour Authority. Mandate, Main Tasks and Open Questions’, Friedrich-Ebert-Stiftung, 2018b; M. 
Hartlapp, ‘Enforcing Social Europe through Labour Inspectorates: Changes in Capacity and Cooperation across Europe’). 
965 See also Recital 27 of Directive (EU) 2018/957 “In the context of combating fraud related to the posting of workers, the 
European  Platform  to  enhance  cooperation  in  tackling  undeclared  work  (the  ‘Platform’),  established  by  Decision  (EU) 
2016/344 of the European Parliament and the Council, should, in accordance with its mandate, participate in the monitoring 
and  the  evaluation  of  cases  of fraud,  improve the  implementation and  efficiency  of  administrative cooperation  between 
Member States, develop alert mechanisms and bring assistance and support to reinforced administrative cooperation and 
information exchanges between the competent authorities or bodies.” 

966 See Regulation (EU) 2019/1149 of the European Parliament and of the Council of 20 June 2019 establishing a European 
Labour Authority, amending Regulations (EC) No 883/2004, (EU) No 492/2011, and (EU) 2016/589 and repealing Decision 
(EU) 2016/344. See e.g., Recital 17 of Regulation (EU) 2019/1149: “With a view to ensuring the fair, simple and effective 
application and enforcement of Union law, the Authority should support cooperation and the timely exchange of information 
between Member States”. 

967 The principle of ‘sincere cooperation’ is a general principle enshrined in Article 4 (3) TEU that requires from all authorities 
in the Member States, to take all appropriate measures to ensure the fulfilment of the obligations arising out of Union Law. 
968 “Where there are facts that indicate possible irregularities, a Member State shall, on its own initiative, communicate to the 

Member State concerned any relevant information without undue delay.” 

969 Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018 amending Directive 96/71/EC 

concerning the posting of workers in the framework of the provision of services, Recital 28.  

970  See  also  Recital  40  of  Directive  2014/67/EU:  “Effective  enforcement  of  the  substantive  rules  governing  the  posting  of 
workers for the provision of services should be ensured by specific action focusing on the cross-border enforcement of 
imposed financial administrative penalties and/or fines. And Recital 42 “If it emerges that the service provider is indeed not 
established  in  the  Member  State  of  establishment  or  that  the  address  or  the  company  data  are  false,  the  competent 
authorities  should  not  terminate  the  procedure  on  formal  grounds  but  should  investigate  the  matter  further  in  order  to 
establish the identity of the natural or legal person responsible for the posting.” 

971 In social security legislation (outside the scope of this study) as well, information exchange is explicitly mentioned. Decision 
No A1 of 12 June 2009 lays down the rules for the application of a dialogue and conciliation procedure concerning the 
validity of documents, the determination of the applicable legislation and the provision of benefits under Regulation (EC) 
No  883/2004.  Three  phases  are  defined  in  this  procedure.  First,  when  there  is  doubt  about  the  validity  of  a  Portable 
Document A1, or there is a dispute relating to the (provisional) determination of the applicable law, the inspection services 
send a reasoned request to the competent institution(s) in the other Member State concerned. They ask them to provide 
the necessary clarifications concerning its decision and, if necessary, to withdraw the PD A1. Second, if no agreement is 
reached, the competent authorities of both Member States appoint a central contact person, who is tasked with reaching 

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transnational  workshop  organised  by  EuroDétachement  within  the  frame  of  the  project 
“boosting transnational cooperation on posting of workers”,972 the following was stated: “The 
inspection body’s investigation usually begins with an analysis of available data. In some 
cases, the identification of the undertakings concerned indicates the probability of a 
complex case. […] This requires a major investment in time and resources which is difficult 
to assess beforehand. It involves a greater need for information exchange on either side 
of the border.” 

The exchange of information between Member States can occur either before, during, or 
after the period of temporary labour mobility. For example, information exchange between 
Member States before a posting mainly has a preventive character, notably avoiding the 
occurrence of infringements. In that respect, information exchange can be useful for each 
stage of the enforcement chain (prevention, detection, control, sanctioning, and recovery). 
The  direction  of  information  exchange  can  be  from  the  receiving  Member  State  to  the 
sending Member State, as well as vice versa. Finally, transnational exchange of information 
can take place between public authorities (including inspection services), but it is possible 
that exchange of information takes place through trade unions, both between one another 
or towards the competent public authority (including inspection services). The table below 
below  shows  a  non-comprehensive  overview  of  the  content  of  information  that  can  be 
exchanged transnationally. 

Table 4. Content of transnational information exchange, breakdown by stage of the 
enforcement chain (non-exhaustive overview) 

Prevention 

Information on the terms and conditions of employment of posted workers. E.g., 
information about the remuneration to which the posted worker is entitled in accordance 
with the applicable law of the host Member State. This can be useful for the 
implementation of Article 7(2) of Directive (EU) 2019/1152 on transparent and 
predictable working conditions. 

Detection 

E.g., the reporting of facts that indicate possible irregularities. 

Control 

E.g., information about the posting undertaking (e.g., the place where the undertaking 
has its registered office and administration), subsidiaries, natural persons; verification of 
‘genuine activities’ of posting undertakings, the verification of the status of TCNs. 

Sanctioning 

E.g., information about the posting undertaking, subsidiaries and natural persons 

Recovery 

E.g., information about the posting undertaking, subsidiaries and natural persons 

Source: Authors’ own elaboration 

7.1.3.  Concerted and joint inspections 

The  Regulation  establishing  a  European  Labour  Authority  (ELA)  defines  the  terms 
‘concerted  inspections’  and  ‘joint  inspections’  (see  Article  8.2  of  Regulation  (EU) 
2019/1149). Concerted inspections “are inspections carried out in two or more Member 
States simultaneously regarding related cases, with each national authority operating in its 
own territory and supported, where appropriate, by the staff of the Authority.” Consequently, 
these  types  of  inspections  make  it  possible  to  investigate  cases  along  the  entire  supply 
chain  with,  for  instance,  subcontractors  located  in  different  Member  States.  Joint 
inspections  “are  inspections  carried  out  in  a  Member  State  with  the  participation  of  the 
national authorities of one or more other Member States and supported, where appropriate, 

an agreement on the matter. Third, if still no agreement is reached after this second phase, the parties concerned may go 
to the Administrative Commission, with the possibility of a referral to a Conciliation Board if both parties to the dispute and 
the Administrative Commission agree. 

972 EuroDétachement, ‘Boosting transnational cooperation on posting of workers’, 2019. 

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by  the  staff  of  the  Authority.”  These  inspections  mainly  occur  between  national  labour 
inspectorates, but can also involve other enforcement bodies, such as tax authorities, the 
police, but also social partners. Concerted and joint inspections are probably most needed 
in sectors with a high number of EU-movers, seasonal workers, or posted workers, such as 
the  transport  sector,  the  construction  sector,  the  meat  processing  industry,  and  the 
agriculture sector. 

According to a study from Eurofound,973 a regulatory framework for joint cross-border labour 
inspections exists either in the form of statutory provisions or on the grounds of a bi/multi-
lateral  agreement  in  17  EU  Member  States  and  the  United  Kingdom,974  while  in  18  EU 
Member States975 and the United Kingdom, there is a practice of joint cross-border labour 
inspections  and  evidence  gathered  in  their  course.976  These  numbers  indicate  that  the 
occurrence of concerted and joint inspections is still not a practice in every Member 
State.  

Essential elements needed to perform successful cross-border inspections are intercultural 
awareness,  networking  and  teamwork,  as  well  as  knowledge  of  specific  IT  systems, 
languages and legal backgrounds. Undoubtedly, the success of an inspection depends on 
the skills and resources of the enforcement bodies involved. When performing concerted 
and joint inspections, it is important to follow certain steps in order to optimise the process. 
Before  the  inspection  takes  place,  capacity  needs  to  be  built,  support  from  decision-
makers and practitioners is needed, and labour inspectors must be motivated, making sure 
that the importance of cross-border operations is understood. Next, the relevant procedures 
need to be clarified before the inspection, meaning the steps, roles, and procedures. This 
can be achieved by drawing up a ‘roadmap’, ‘cooperation agreement’, or ‘common strategy’. 

During the inspection, other national authorities, as well as social partners or existing EU 
agencies such as Europol (the European Union’s law enforcement agency), Eurojust (the 
European Union Agency for Criminal Justice Cooperation) or ELA, can assist. For instance, 
they can provide economic analysis, legal advice, data and other forms of technical support 
(e.g.  logistical  arrangements,  translations,  IT,  software  tools,  etc.).  Finally,  when  the 
inspection is done, there should be follow-up in the form of information sharing, debriefing 
and liaison sheets, the preparation of post-inspection reports, logging the inspection data 
into  an  online  system,  or  learning  from  past  inspections.  This  last  step  is  particularly 
important to follow, as it can lead to achieving two important objectives: increased capacity 
of  inspectors  and  other  relevant  authorities  to  assess  and  address  the  risks  of  new  and 
complex  cases  of  intra-EU  posting,  and  altered  behaviour  of  employers  and  employees 
(e.g., increases in formally declared workers in the inspected company or sector). These 
inspections  can  empower  labour  inspectorates  and  improve  the  scale  of  inspections  by 
combining resources, staff, and knowledge. Furthermore, when inspectorates cooperate, it 
can improve their inception work and risk assessment, as they can consult one another’s 
findings. 

973  C.  Welz,  I.  Biletta  and  R.  Rodriguez  Contreras,  ‘Joint  cross-border  labour  inspections  and  evidence  gathered  in  their 

course’, Eurofound Working Paper, 2019.  

974 Only a small minority of eight Member States have an explicit legislative basis in place catering for the possibility of joint 
cross-border inspections of labour inspectorates or similar bodies (AT, BE, DE, IE, LU, PL, PT, and RO). These Member 
States also have bilateral agreements in place. In 9 Member States and the UK the basis of joint inspections could only be 
found  in  bilateral  agreements:  BG,  EE,  EL,  ES,  FR,  LT,  LV,  NL,  and  SK.  The  Member  States  with  the  most  bilateral 
agreements in place are BG (seven), FR (nine), and SK (five). Nine Member States do not provide any legal basis for joint 
cross border inspections at all (CY, CZ, DK, FI, HR, HU, IT, MT, and SE). 

975 AT, BE, BG, DK, EE, EL, ES, FI, FR, HR, IE, LT, LU, LV, NL, RO, PT and SE. 
976 C. Welz et al., ‘Joint cross-border labour inspections and evidence gathered in their course’. 

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7.1.4.  Tools to facilitate cross-border cooperation: bilateral 
agreements, Memoranda of understanding, and the 
Internal Market Information System 

It  is  certainly  a  reality  that  transnational  cooperation,  and  in  particular  transnational 
exchange  of  information,  can  have  an  informal  character  (e.g.,  informal  exchange  of 
information between civil servants/labour inspectorates).  Although informal cooperation is 
important and has a role to play, formal cooperation is of great importance as well. Informal 
cooperation works better if it is supported and underpinned by formal arrangements, as the 
cooperation becomes less personal and can develop structurally with support by hierarchy. 
Bilateral  agreements  and  memoranda  of  understanding  are  typical  examples  of  formal 
arrangements.  Moreover,  beyond  these  direct  arrangement,  the  IMI  is  an  example  of  a 
platform which contributes to a formal exchange of information. 

7.1.4.1.  Bilateral agreements and Memoranda of 

understanding  

The activities of the national competent authorities relevant for cross-border labour mobility 
(including  their  inspection  services)  end  at  the  border,  as  their  mandate  of  control  and 
enforcement is limited to the national territory.977 For instance, the competence to check the 
reliability of documents and, if necessary, to withdraw these documents, is missing. In that 
regard,  activities  beyond  national  borders  need  legal  backing.978  One  way  to  ‘formalise’ 
information exchange between Member States is to include it in an agreement. This can 
also happen at sectoral level; for instance the bilateral conventions signed by social partners 
and intermediary bodies in the construction sector in Italy, Austria, Germany, and France 
are reported to be effective in avoiding social dumping.979 

Two  tools that  can  help in  this regard  are  Bilateral  Agreements (BA)  and  Memoranda  of 
Understanding (MoU). Within these agreements, Member States may arrange to exchange 
information  on  irregularities  discovered,  wages,  working  conditions  and  labour  law 
infringements,  and  initiate  joint  and  concerted  inspections.  An  interesting  instrument  for 
Member States to help set-up BAs and MoU is a toolkit including a 21-step plan, which can 
be  used  by  policymakers,  public  authorities,  social  partners,  external  experts,  and 
evaluators.980 They define BAs and MoU as follows:981 

•  Bilateral  Agreements  (BAs)  are  concluded  between  Member  States/EEA 
countries in written form and governed by European and/or international law. BAs 
are agreements between two Member States/EEA countries which describe in detail 
the specific responsibilities of, and actions to be taken by, each of the parties, with 
a  view  to  accomplishing  their  goals  in  the  area  of  undeclared  work.  BAs  create 
legally binding rights and obligations. 

•  A Memorandum of Understanding (MoU) is a less formal instrument than a BA, 
often  setting  out  operational  arrangements  under  a  framework  agreement  on  an 
international level. MoUs entail general principles of cooperation describing broad 
concepts of mutual understanding, goals and plans shared by the parties. They are 

977 J. Cremers, ‘The European labour authority and enhanced enforcement’, 2018a. 
978 SLIC, ‘Consensus paper on cross-border enforcement’, 2012. 
979 EEPOW, ‘EEPOW Peer Review Key massages Bilateral and multilateral cross-border practices: the Italian approach to 

preventing social dumping and enhancing access to the European labour market’, 2019. 

980 R. Stefanov and D. Mineva, ‘Practitioner’s toolkit: drafting, implementing, reviewing and improving bilateral agreements 
and  memoranda  of  understanding  to  tackle  undeclared  work  A  practitioner  toolkit  from  the  thematic  workshop  of  the 
European Platform Undeclared Work’, European Platform Undeclared Work, 2018.  

981 R. Stefanov and D. Mineva, ‘Practitioner’s toolkit: drafting, implementing, reviewing and improving bilateral agreements 
and  memoranda  of  understanding  to  tackle  undeclared  work  A  practitioner  toolkit  from  the  thematic  workshop  of  the 
European Platform Undeclared Work, p.5. 

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usually non-binding. MoUs can cover agreements between enforcement bodies of 
different Member States/EEA countries. 

An  MoU  is  the  best  tool  to  use  when  parties  would  like  to  declare  their  willingness  for 
cooperation  without  entering  into  a  legally  binding  agreement.  There  is  no  parliamentary 
approval needed, and they do not need strict provisions for its enforcement. When legally 
binding  rights  and  obligations  need  to  be  created,  the  activities  are  prompted  by  EC 
legislation or international law, and there is a necessity to describe in detail the foreseen 
actions and division of responsibilities, a BA is the best solution.  

There is an established tradition of BAs and MoUs, notably in the area of posting, but also 
on undeclared work. Article 21(2) of the Enforcement Directive982 recognises the function of 
such agreements or arrangements in institutional cooperation, and requires Member States 
to  inform  the  Commission  of  the  bilateral  agreements  and/or  arrangements  they  apply, 
making the text publicly available. 983 These agreements may complement the information 
exchanged by IMI.984 However, to our knowledge, neither an overview of all bilateral 
agreements nor their content is publicly available. 

Information for 2018 shows that 18 out of the 25 Member States responding to a survey 
reported having BAs or MoUs, with France (13) and Belgium (10) reporting the most.985 
The  most frequent  signatories  were  labour  inspectorates  or Ministries  of labour,  with tax 
administrations  being  less  involved  in  BAs  and  MoUs.  Furthermore,  96%  of  BAs/MoUs 
cover information exchange, 71% cover best practice exchange, 60% cover exchange of 
experts or training, and 53% joint operations. 85% of the BAs/MoUs reported related to the 
posting of workers, over two thirds covered labour law, and over half covered social security 
fraud.  Furthermore,  almost  one  third  of  the  BAs/MoUs  referred  to  health  and  safety 
regulations. The Impact Assessment of the European Commission on the establishment of 
ELA986  presents  several  examples  of  bilateral  cooperation  (e.g.,  between  Belgium  and 
Poland,  France  and  Italy,  Finland  and  Estonia,  and  Spain  and  Romania).  Finally,  on  the 
website  of  the  ‘EuroDétachement’  project,  an  overview  is  provided  of  the  bilateral 
agreements concluded between Member States.987 

7.1.4.2.  The Internal Market Information System (IMI) 

Another tool for administrative cooperation is the IMI. Through this system, Member States 
can transmit and respond to reasoned requests for information from competent authorities. 
One  of  the  aims  of  IMI  is  to  support  administrative  cooperation  and  mutual  assistance 
between the competent authorities of the Member States concerning the application and 
enforcement of the PWD.988 The tool can be used by labour inspectorates to request and 
exchange information.  

In the third quarter of 2020, 1 414 posting information exchanges were recorded in 
IMI. This number has been growing over the years, from 826 posting information exchanges 

982  Directive  2014/67/EU  of the European  Parliament  and  of  the  Council  of  15 May  2014  on the  enforcement  of  Directive 
96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) 
No 1024/2012 on administrative cooperation through the Internal Market Information System (‘the IMI Regulation’).  

983 Ibid, Article 21(2). 
984  Recital  49  of  Directive  2014/67/EU  States  that  “in  order  to  facilitate  better  and  more  uniform  application  of  Directive 
96/71/EC, it is appropriate to provide for an electronic information exchange system to facilitate administrative cooperation 
and competent authorities should use the IMI as much as possible. However, that should not prevent the application of 
existing and future bilateral agreements or arrangements concerning administrative cooperation and mutual assistance.” 
985 C.C. Williams and E. Puts, ‘2018 European Platform Undeclared Work Survey Report: obstacles to tackling undeclared 
work at the cross-border and national levels, bilateral and national agreements, and complaint reporting tools’, European 
Platform Undeclared Work, 2018. 

986 European Commission, Impact Assessment on the establishment of ELA, 2018, p.131. 
987 See:  http://www.eurodetachement-travail.eu/Default.asp?rub=&lang=_en#    (under  ‘Administrative  cooperation’  and 

‘Bilateral agreements’). 

988 Art. 21.1 of Directive 2014/67/EU states that “The administrative cooperation and mutual assistance between the competent 
authorities of the Member States shall be implemented through the Internal Market Information System (IMI), established 
by Regulation (EU) No 1024/2012.” 

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in  the  third  quarter  of  2017.989  In  2020,  the  majority  of  these  requests  (41.5%)  were 
information requests, followed by notifications of a decision (25.7%), and requests to send 
documents (20.8%). Requests to recover penalties or fines (6.9%), urgent requests (5.1%), 
and communication of irregularities (0.1%) were less common. Two Member States stand 
out in terms of sending requests on posting: Austria, with 2 349 requests in the first 
three quarters of 2020, and Belgium, with 840 requests. In addition, Germany and Denmark 
each sent more than 100 requests. On the contrary, Lithuania, Greece, and Slovenia each 
sent  less  than  ten  requests  in  the  first  three  quarters  of  2020.  From  the  receiving  side, 
Slovenia  (787),  Poland  (487),  Slovakia  (441),  and  Romania  (428)  received  the  highest 
number of posting information exchanges during the first three quarters of 2020. In contrast, 
Liechtenstein, Malta, Norway, and Sweden each received fewer than ten requests.  

While  the  IMI  system  is  a  valuable  system  to  exchange  information,  request  additional 
documents, and cooperate on an administrative level, it is important to go further than this. 
To  build  stronger  cooperation  between  Member  States,  other  mechanisms  are 
necessary, as discussed in the following sections.  

7.1.5.  Obstacles to cross-border cooperation 

For  Member  States  to  learn  from  good  practices  of  cross-border  cooperation,  it  is  also 
essential to talk about possible obstacles. For instance, in a report of 2018 on cross-border 
cooperation, it was stated that several Member States “already have bilateral cooperation 
agreements,  including  the  possibility  of  joint  cross-border  inspections,  but  there  are  still 
barriers  preventing  such  cooperation  from  being  widespread,  limiting  its  effectiveness. 
These include legal barriers, financial constraints, differing organisational mandates 
and  areas  of  responsibility,990  language  differences  and  an  unwillingness  to 
cooperate.”991,992 Moreover, “some of the problems are related to the lack of trust and lack 
of knowledge of the foreign organisations they are interacting with”993. 

Another important issue is data. There are not only GDPR994 and data protection rules to 
take  into  account,995  but  often  also  legal,  procedural,  or  institutional  barriers  which  arise 
regarding the exchange of information, both within and outside the Member State.996,997 For 
instance, it was found that the use in national courts of evidence gathered during joint cross-
border  inspections  in  another  Member  State  is  possible  in  14  Member  States,  while  18 

989 See: https://ec.europa.eu/internal_market/imi-net/statistics/2020/10/posting-of-workers/index_en.htm.  
990 For instance, a number of stakeholders highlighted in the Impact Assessment on the establishment of ELA (2018) that 
issues  around  cooperation  and  coordination  between  Member  State  authorities  are  primarily  caused  by  specific  and 
complex national administrative landscapes and the lack of streamlined procedures, often with implications for institutional 
capacity.  

991 M.  Čaněk,  K.  Kall,  N.  Lillie,  N.,  Wallace,  A.,  and  B.  Haidinger,  ‘Transnational  Cooperation  among  Labour  Regulation 
Enforcement  Agencies in Europe:  Challenges  and  Opportunities  Related to the  Posting  of  Workers’,  project  “Protecting 
Mobility through Improving Labour Rights Enforcement in Europe (PROMO)” VS/2016/0222, 2018. 

992 See also European Commission, ‘Commission Staff Working Document, Impact Assessment accompanying the document 
Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  establishing  a  European  Labour  Authority’, 
SWD(2018) 68 final, p.15): “While bi-/ or multilateral cooperation agreements have the advantage of being tailored to the 
specific  needs  of  the  involved  Member  States,  they  also  bear  the  risks  of  non-institutionalisation  and  non-systematic 
approaches. An assessment of existing agreements in the field of undeclared work pointed to key barriers, such as the lack 
of cooperation and enforcement mechanisms, the volatility of political investment in cooperation, and technical barriers to 
the exchange of information (e.g., differing legal competences between the contracting authorities, languages, and data 
collection methods).” 

993 M. Čaněk, et al., ‘Transnational Cooperation among Labour Regulation Enforcement Agencies in Europe: Challenges and 

Opportunities Related to the Posting of Workers’, p.4. 

994 General Data Protection Regulation, see: https://gdpr-info.eu/.   
995 Article 6(8) of the Enforcement Directive states that the information shared by and with the competent authorities in the 

context of Directive 2014/67 “shall be used only in respect of the matter(s) for which it was requested.” 

996 R. Stefanov, D. Mineva, and P. Terziev, ‘Cross-border concerted and joint inspections in the fight against undeclared work, 
Learning  resource  paper  from  the  thematic  review  workshop  on  cross-border  concerted  and  joint  inspections’  Lisbon, 
Portugal, 28 February–1 March 2019, European Platform Undeclared Work, 2019a.  

997 C.C. Williams and E. Puts, ‘2018 European Platform Undeclared Work Survey Report: obstacles to tackling undeclared 

work at the cross-border and national levels, bilateral and national agreements, and complaint reporting tools’.  

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Member  States  accept  using  this  evidence  in  administrative  proceedings.998  Possible 
solutions regarding data issues are to train and appoint data protection officers in relevant 
enforcement  bodies,  to  use  guidelines  (e.g.  the  European  Data  Protection  Board 
guidelines), and to use secure IT systems such as IMI for data transfer. A growing interest 
for the use of databases, e-tools and further ways of data sharing has been observed in 
Member States.  

Another issue is that there is different national legislation in each Member State, which 
can hinder cooperation between them. For instance, considering the possibility for labour 
inspectors from another Member State to participate in inspections, Polish legislation, just 
like in most other countries, allows the presence of foreign authorities during inspections, 
but  they  do  not  have  the  right  to  issue  legal  remedies  or  to  apply  sanctions.999  These 
legislative differences between Member States can of course hamper good cooperation.  

An obstacle specific for concerted and joint inspections is that they are often infrequent 
and ad hoc. Annually, labour inspectorates only engage in these types of inspections once 
or twice. This is the case due to limited human and financial resources, inadequate skills 
and  knowledge,  and  insufficient  IT  and  databases.  This  shows  the  need  for  more 
information and resource sharing and more strategic cross-border inspections.  

A more general issue is that cooperation between Member States does not always align 
with the main pattern of cross-border mobility. Member States mainly cooperate with 
their  respective  immediate  neighbouring  countries.  Consequently,  collaboration  between 
West-East and  North-South  is  rather  weak,  despite  these  being the main  axes  of  labour 
mobility within the EU. There are some strong clusters of cooperating countries, for instance 
between the Nordic states and Baltic states (NO and FI with EE, LV and LT), as well as 
between  Belgium,  France  and  the  Netherlands.  However,  no  joint  and/or  concerted 
inspections  takes  place  between  some  of  the  Member  States  with  the  largest  flows  of 
working-age movers, although ELA is working on this. There are significant gaps in cross-
border cooperation between non-bordering Member States.  

In  the  end,  none  of  the  obstacles  mentioned  above  matter  if  no  cooperation  between 
Member  States  takes  place.  Indeed,  the  most  important  difficulty  is  for  cross-border 
cooperation  to  occur  at  all.  For  instance,  the  Impact  Assessment  of  the  EC  on  the 
establishment  of  ELA1000  pinpoints  insufficient  capacity  of  national  authorities  to 
organise cooperation with authorities across borders (see the synthesis of the results 
of the FreSsco study on the capacities of labour inspectorates in cross-border cases)1001, 
although this is essential for effective and efficient handling of cross-border issues. Indeed, 
the  majority  of  the  controlling  and  monitoring  actions  still  happen  at  national  level.1002  A 
recommendation  could  be  to  look  at  indicators  such  as  the  number  of  incoming  posted 
workers  and  their  share  in  total  employment  for  instance  to  get  an  idea  of  how  many 
inspections should be focused on national employment and cross-border employment. For 
example, in 2020 in Belgium, about 5% of the inspectors within the labour inspectorates 
focused on the fight against cross-border social fraud, while 4% of the inspections related 
to this dimension of social fraud. In France, 5% of the interventions in 2020 were aimed at 
controlling the posting of workers, while only 0.3% of the total inspections in Spain were 
aimed at controlling compliance with the labour and social security obligations of incoming 

998  C.  Welz,  I.  Biletta  and  R.  Rodriguez  Contreras,  ‘Joint  cross-border  labour  inspections  and  evidence  gathered  in  their 

course’.  

999 R. Stefanov, D. Mineva, and P. Terziev, ‘Cross-border concerted and joint inspections in the fight against undeclared work, 
Learning resource paper from the thematic review workshop on cross-border concerted and joint inspections’, 2019a. 

1000 European Commission, Impact Assessment on the establishment of ELA, 2018. 
1001 The Impact Assessment of the EC (2018) states that “Information on the administrative capacities and processes of cross-
border cooperation is scant. To date, there is no comprehensive report providing an overview of the control activities of 
national administrations on companies and workers in cross-border situations, on the required administrative effort (e.g., 
dedicated  staff,  working  days  to  process  a  case),  the  difficulties  encountered,  and  the  needed  capacities)”.  Similar 
conclusions were made in the POSTING.STAT project (De Wispelaere et al., 2022).  

1002 F. De Wispelaere, L. De Smedt, and J. Pacolet, ‘Posted workers in the EU. Facts and figures’, Leuven: POSTING.STAT 
project VS/2020/0499, 2022 ; Y. Jorens, F. De Wispelaere, and J. Pacolet, ‘Fraud and error in the field of EU social security 
coordination Reference year 2020, Network Statistics FMSSFE’, EC-DG EMPL: Brussels, 2021.  

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posted workers. Only 0.4% of Polish inspections checked incoming and outgoing posted 
workers. Only Luxembourg saw a share higher than 16% of the labour inspectors focusing 
on enforcing posting rules. This lack of cross-border inspectors focussing on enforcing the 
posting  rules  can  also  be  attributed  to  a  general  need  for  more  labour  inspectors. 
Considerations about the extent to which the number of inspectors and inspections should 
be  increased  are  dependent  on  existing  needs  at  Member  State  level  (e.g.,  the  scale  of 
temporary cross-border work and problematic situations).  

Often, Member States will first focus on their own territory, and only think about cross-border 
cooperation afterwards (if there are still resources available). Tackling cross-border social 
fraud is often not high on the radar of national enforcement authorities. This can of course 
be a rational decision if it is found that the need for action is higher in terms of national fraud 
and more investment is needed in this area as opposed to focussing on cross-border fraud. 
However,    to  enforce  posting  rules,  it  is  essential  that  a  cross-border  component  is 
included in national strategies. In this regard, the establishment of ELA is certainly a step 
in the right direction to highlight the importance of cross-border cooperation. 

Finally,  it  should  be  kept  in  mind  that  formal  arrangements  are  only  as  good  as  the 
underlying political will. Therefore, when setting up formal arrangements, it should not only 
be  about the  formality  on  its  own,  but  political will  and  personal  relations  need  to  be 
taken into consideration.  

7.1.6.  Future of cross-border cooperation 

Seeing that many cross-border cooperation practices appear to be effective and necessary 
in preventing social dumping and enhancing access to the European labour market, it is 
imperative  to  continue  this  cooperation  in  the  future.  The  importance  of  cross-border 
cooperation  should  be  recognised,  and  funding1003  made  available  to  guarantee  its 
sustainability.  Direct  contacts  between  Member  States  can  be  facilitated  thorough 
multilateral bodies that exist, such as the Senior Labour Inspectors Committee (SLIC), the 
Administrative  Commission  on  the  Coordination  of  Social  Security  Systems,  and  the 
European Platform tackling undeclared work, and more recently of course, ELA. Although 
specific funding for specific topics can strengthen cooperation, it is of utmost importance 
that  cross-border  cooperation  becomes  part of the  national  practices.  Cross-border 
cooperation should be part of the routine functioning of the national authorities, especially 
since  it  becomes  even  more  important  with  the  increasing  occurrence  of  cross-border 
mobility.  Increased  cross-border  mobility  brings  with  it  long  subcontracting  chains  of 
postings and the involvement of TCNs, to name a few, which complicates enforcement even 
further. Seeing that much of the fraud is linked to complex and country specific rules such 
as  social  security,  better  coordinated  legislation  would  facilitate  the  life  of  enforcement 
authorities.  

ELA  is  certainly  an  important  solution  in  this  regard,  as  its  establishment  represents  an 
important  milestone  for  cross-border  cooperation.  ELA  performs  eight  different  tasks,  of 
which  two  are  especially  relevant  for  this  case  study:  1)  facilitating  cooperation  and  the 
exchange  of  information  between  Member  States  and  2)  coordinating  and  supporting 
concerted and joint inspections.1004 Although ELA cannot carry out inspections on its own, 

1003 See for instance the call ‘Posting of workers: Enhancing administrative cooperation and access to information’ within the 
frame of the Employment and Social Innovation (EaSI) programme. Of course, this is project-based funding, and this does 
not make the support sustainable. Therefore, structural changes are necessary like making cross-border cooperation a part 
of national practices.  

1004 See e.g., Article 7 of Regulation (EU) 2019/1149 on ‘Cooperation and exchange of information between Member States’: 
“The Authority shall facilitate the cooperation and acceleration of exchange of information between Member States and 
support their effective compliance with cooperation obligations, including on information exchange, as defined in Union law 
within the scope of this Regulation.” And Article 8 of Regulation (EU) 2019/1149 on ‘Coordination and support of concerted 
and joint inspections’: “At the request of one or more Member States, the Authority shall coordinate and support concerted 
or joint inspections in the areas within the Authority’s competence. The Authority may also, on its own initiative, suggest to 
the authorities of the Member States concerned that they carry out a concerted or joint inspection.” 

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it  can  propose  to  Member  States  to  carry  out  inspections  (based  on  complaints,  data 
provided  by  social  partners,  a  risk  analysis,  etc.).  For  instance,  in  June 2022,  ELA 
coordinated  joint  inspections  in  8  countries  with  the  participation  of  18  Member 
States.1005  

ELA has the possibility to be an important step forward regarding cross-border cooperation 
for  several reasons.  First,  it  can  provide  conceptual, logistical, technical  support  and 
legal  expertise,  as  well  as  interpretation  services  and  translation  of  inspection-specific 
documentation. Second, ELA continues to develop an inspections registry accessible to 
relevant national authorities. This will mean that key information can be viewed online about 
inspections  that  have  been  carried  out  or  are  planned  in  specific  Member  States  and 
sectors, all whilst fully respecting data protection rules. This tool can be especially useful 
for  Member  States  to  learn  from  one  another.  Third,  ELA  will  also  promote  the  use  of 
established  tools  and  procedures  to  facilitate  the  planning,  execution,  and  follow-up  of 
inspections, including the effective and timely handling of cases submitted by national social 
partners.  In  sum,  ELA  can  be  an  important  facilitator  to  cross-border  cooperation 
between Member States to enforce posting rules. Nevertheless, it cannot be forgotten that 
without the support and the acceptance of national authorities, the power of ELA remains 
limited. Thus, ELA itself cannot ensure better cooperation and enforcement of the rules, but 
it can be a promotor to help countries to improve in this regard.  

Finally,  useful  lessons  can  be  learned  from  the  transnational  workshop  organised  by 
EuroDétachement. First, transnational cooperation in posting helps public authorities 
to 1) adapt their organisation and 2) adopt frameworks and tools to simplify information 
exchange/access to data. 1006 Furthermore, there are two key drivers of action: 1) the role 
of  a  key  actor  combined  with  transnational  coordination  and  2)  a  broad  scope  of 
stakeholders who capitalise on a wider network. The transnational dimension can be made 
possible  thanks  to  coordination  by  actors  including  Eurojust  or  Europol.  Lastly,  taking 
action on complex fraud implies involving stakeholders at transnational level. Being 
able to rely on a trusted existing network of actors who have developed working practices 
over time boosts efficiency and simplifies the exchange of information, which is essential 
for the investigation to progress. 

1005 See: https://www.ela.europa.eu/en/news/18-eu-member-states-participated-road-transport-inspections-8-countries-

organised-ela-week.  

1006 Eurodétachement, Synthesis ‘Transnational workshop: Addressing posting complex cases of fraud. Which practices, 
which lessons to be learnt?’, 12 September 2019, ‘Boosting transnational cooperation on posting of workers, 2019.  

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7.2.  Good practices involving social partners regarding 

the protection of posted workers or other temporary 
cross-border workers 

7.2.1. 

Introduction  

The posting of workers and other forms of cross-border work in the European Union are an 
issue  of  strong  concern  for  social  partners  at  national  as  well  as  European  level:  For 
employers, cross-border labour mobility such as posting of workers plays an important tool 
to  improve  business  efficiency  and  provide  companies  with  the  possibility  to  deal  with 
temporary  gaps  in  labour  and  skills  supply  or  to  acquire  contracts  in  other  Member 
States.1007 

While employer organisations regard the freedom of movement and of providing services 
across borders as important in the development of the single market, they differ as regards 
the  needs  of  regulation.  From  the  perspective  of  employer  organisations  in  general,  the 
current  regulatory  framework  –  for  example  on  posting,  subcontracting  or  cross-border 
temporary  agency  work  –  ensures  a  level  playing  field  between  companies  and  equal 
minimum standards for posted and host country workers. 

While also sectoral employer organisations in major sending countries of temporary cross-
border mobile workers share this opinion, employer organisation in receiving countries and 
here in particular in sectors that are very much affected by problematic forms for posting 
and  other  forms  of  temporary  cross-border  labour  mobility  are  more  critical  and  have 
highlighted  loopholes  in  legal  regulation  and  the  need  for  action  in  order  to  avoid  social 
fraud and wage dumping.1008 

Amongst trade unions at EU and national level, there is quite a unanimous position that the 
current  legal  framework  of  cross-border  mobility  is  not  sufficient  and  equal  treatment  of 
workers is not secured efficiently.1009 Trade unions still see the risk of "social dumping" and 
“labour crime”, as well as a pressures towards a downward social convergence.1010 Trade 
unions at European level have a unified approach to the issue of  cross-border mobile work 
and  are  generally  pushing  for  more  efficient  and  better  regulation.1011  The  responses  of 
individual trade unions in the EU Member States in terms of dealing with mobile workers 
seem to be shaped by a complex interplay of national industrial relations systems, sectoral 
dynamics and regulation.1012  

1007  See  for  example  the  position  of  BusinessEurope:  https://www.businesseurope.eu/policies/social/labour-markets-and-

social-policy/equal-opportunities/posting-workers 

1008  B.  Surdykowska  and  D.  Owczarek,  “Posted  workers  regulations  as  a  cohesion  test  in  the  enlarged  European  Union: 
divergent interests of trade unions, employers’ organisations and governments”, Friedrich-Ebert-Stiftung, Institute of Public 
Affairs, Bratislava and Warsaw, 2018. 

1009 In 2021, the Executive Committee of the European Trade Union Confederation, ETUC has adopted a resolutione on the 
topic: ETUC Resolution on Fair Labour Mobility and Migration.Adopted at the Executive Committee Meeting of 22 March 
2021 

1010 B. Furåker and B. Larsson, “Revision of the EU Posting of Workers Directive, Social Dumping and Trade Unions’ Position”, 
in  Europe.  Palgrave  Pivot,  Cham,  2020,  pp.  109-139,  available  at: 

in:  Trade  Union  Cooperation 
https://link.springer.com/chapter/10.1007/978-3-030-38770-9_4.  

1011 More recently European trade unions have been promoting strongly for a European framework on subcontracting in order 
to fight the crime and abuse of legal rules and provisions. See ETUC (2022): Securing workers rights in subcontracting 
chains. At the end of 2022, the EFBWW has also initiatied a compaign on the topic of "labour crime" in the context of posting 
of 
subcontracting:  See:  EFBWW  EXECUTIVE  COMMITTEE  REPORT 
via 
ON MAJOR ABUSES, LABOUR CRIME AND SUBCONTRACTING 

construction  workers 

1012 J. Hardy, L. Eldring and T. Schulten, “Trade union responses to migrant workers from the “new Europe”: A three sector 
comparison  in  the  UK,  Norway  and  Germany”,  in:  European  Journal  of  Industrial  Relations,  18(4),  2012,  pp.  347-363, 
available at: https://journals.sagepub.com/doi/10.1177/0959680112461464 (non-open access). 

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By  contrast,  employer  organisations  often  argue  against  regulation  and  bureaucracy. 
Nevertheless,  discrepancies  can  be  found  between  employer  stances,  mostly  at  the 
sectoral  level,  but  also  between  employers  in the  high-wage  countries  and  those  in  low-
wage countries; the former criticise the competitive advantages of the latter companies and 
claim that they are losing their position in European and local markets as a result.1013 This 
topic is also characterised on the employer side by a division between law-abiding and non-
law-abiding companies.1014 

Embedded in these divergences between and within the groups of actors, our examples of 
good practices in the context of social dialogue show that cooperation works when it creates 
added value for employers and trade unions. Therefore, the creation of a level playing field 
for all businesses must go hand in hand with the effective implementation of equal treatment 
and social rights of mobile workers. 

Concretely, this often means the promotion of the transnational provision of services in a 
climate  of  fair  competition  and  legal  certainty  and  putting  into  place  equal  minimum 
conditions  of  employment  according  to  national  laws  and/or  collective  agreements.  This 
case  study  shows  that  the  social  partners  can  be  involved  through  exerting  political  and 
legal  influence,  concluding  collective  agreements,  but  also  pursuing  other  types  of  non-
legislative  measures,  such  as  supporting  workers  and  companies  and  the  labour 
inspectorate  in  the  fight  against  illegal  employment  practices.  In  addition,  social  partner 
initiatives in this field can also be linked to the exchange of information as well as problem-
solving activities that focus on specific problems. 

Overall, social partners can be an important facilitator. Setting up such initiatives to support 
the  protection  of  working  conditions  is  necessary  because  the  capacity  of  inspection 
services is limited. Moreover, trade unions can be an important actor in the fight against 
cross-border  social  fraud.  They  can  be  'whistle-blowers'  for  the  inspectorates,  reporting 
infringements and thus supporting the identification of problematic situations. 

7.2.2.  The role of the social partners and bipartite as well as 

tripartite social dialogue  

In many Member States the social partners are closely involved in policy dialogue. They are 
often invited to hearings on draft legislation in order to give their opinion. In addition,  trade 
unions  and  employers  influence  policies  and  draft  legislation  through  interaction  with 
parliaments, ministries and political parties. 

Further,  in  some  Member  States,  tripartite  committees  or  councils  that  are  composed  of 
employers'  associations,  trade  unions  and  government  representatives  are  established. 
The  national  research  carried  out  for  this  study  shows  that  the  social  partners  in  many 
countries have issued opinions on the PWD 2018/957/EU and the Enforcement Directive 
2014/67/EU.  For  example,  in  Belgium  the  National  Labour  Council  –  which  is  equally 
divided  between  representatives  of  the  most  representative  employers'  associations  and 
trade  unions  –  has  issued  an  opinion  on  the  implementation  of  PWD  in  national 
legislation.1015  The  main  function  of  the  National  Labour  Council  is  an  advisory  one, 
consisting of delivering opinions to the legislature on general issues of a social nature.  

Particularly  interesting  against  the  background  of  social  partnership  initiatives  in  political 
and  legislative  processes  are  also  the  various  joint  statements  and  positions  in  the 
construction sector: the EU-level social partners in the construction sector, EFBWW and 

1013  B.  Surdykowska  and  D.  Owczarek,  “Posted  workers  regulations  as  a  cohesion  test  in  the  enlarged  European  Union: 

divergent interests of trade unions, employers’ organisations and governments”, p. 9.  

1014 Ibid. 
1015 Nationale Arbeitsraad, “Advies Nr. 2.147”, 2019, available at: https://cnt-

nar.be/sites/default/files/documents/ADVIES/advies-2147.pdf.   

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FIEC, agreed on joint statements regarding the enforcement of the PWD in 2011, 2012 and 
2013  and  developed  joint  proposals  regarding  a  level  playing  field  in  the  European 
construction sector (in 2015). These demand “an effective and efficient implementation” of 
the  Enforcement  Directive  (2014/67/EC)  in  order  to  support  the  fight  against  fraudulent 
practices,  and  call  for  the  direct  involvement  of  the  national  social  partners  in  the 
implementation phase of the Directive as well as the development of bilateral or multi-lateral 
actions (for example for stricter and more efficient controls in the country of origin) between 
the relevant stakeholders.1016  

Other joint actions developed by these social partners include a joint report on the need for 
uniform European social security identity cards for all workers (2015),1017 recommendations 
for  tackling  undeclared  work  and  social  fraud  (2020)1018  and  a  joint  statement  on  TCN 
workers and companies in the EU construction market (2021).1019 The joint statement on 
TCNs calls for, among other things, a “comprehensive legislative framework” to create a 
level playing field with regard to third country companies and TCN workers “to be entitled 
to receive full equal treatment related to the application of collective bargaining agreements, 
wages,  working  conditions,  health  and  safety  standards,  access  to  social  security  and 
protection systems and benefits (including the portability of acquired rights, e.g. with regard 
to pensions), access to educational, training and labour market facilities (according to the 
Posting Directive) and decent accommodation.”1020 

7.2.3.  The impact of collective bargaining agreements 

According to Directive 96/71/EC (as revised by Directive 2018/957/EU) remuneration shall 
be determined by the national law and/or practice of the Member State to whose territory 
the  worker  is  posted  including  collective  agreements  which,  in  that  Member  State,  have 
been  declared  universally  applicable  or  otherwise  apply.  Through  collective  bargaining 
agreements,  social  partners  can  directly  influence  and  shape  the  working  conditions  of 
posted and other cross-border mobile workers. The national research for this study shows  
that generally binding collective agreements exist in many countries. In France, nearly all 
collective agreements have even been declared generally binding.  In the Netherlands, the 
collective agreement for the Construction Industry (CAO Bouw & Infra) contains separate 
paragraphs  and  special  provisions  on  Contract  of  Employment  under  Foreign  Law, 
Subcontracting  and  Engaging  Temporary  Agency  Workers  and  Payrolling  Company 
Workers.  

In Denmark, trade unions may take industrial action to support the demand for payment of 
wages  or  salaries  in  accordance  with  a  collective  agreement  against  a  foreign  company 
posting workers to Denmark as stipulated by the Act concerning the posting of workers (see 
the box below). 

1016 EFBWW and FIEC, “Joint Position: Towards a level playing field in the European construction sector: Joint proposals of 
the EU sectoral social partners EFBWW and FIEC”, 2015, available at: https://www.efbww.eu/stream/91225452-a752-4ee1-
9e83-faf0a6dc9bc6.  

1017 EFBWW and FIEC, “Social identity cards in the European construction industry”,2015, available at: 

https://www.efbww.eu/publications-and-downloads/reports-and-studies/nunc-auctor-elit-sit-amet-accumsan-pretium/36-a.  

1018 EFBWW and FIEC, “EFBWW - FIEC joint statement – tackling undeclared work & social fraud – construction sector: 
Joint statement by the European social partners in the construction sector: Concrete recommendations for tackling 
undeclared work and social fraud in the construction sector”, 2020, available at: https://www.efbww.eu/stream/113072d9-
02b4-468e-9b98-3a8341b1c17c. See also the information on the joint social partners project on the topic: 
https://www.efbww.eu/eu-projects/running/nullam-erat-magna-eleifend-ut-metus-vel/2-a  

1019 EFBWW and FIEC “Joint Statement of the European social partners of the construction industry (FIEC-EFBWW) on third 
country  national  workers  and  companies  in  the  EU  construction  market”,  2021,  available  at:  https://www.fiec.eu 
/application/files/4816/2322/1187/2021-06-09-_FIEC-EFBWW_joint_statement_-_third_countries_TCN_FINAL.pdf.  

1020 Ibid, pp. 3-4. 

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Box 26. Consolidation Act concerning the Posting of Workers in Denmark - use 
of collective industrial action 

6 a. (1) To ensure that posted workers will receive wages that are equal to the rates 
which  Danish  employers  are  obliged  to  pay for  the  execution  of  corresponding  work, 
industrial action against foreign service providers may be taken in the same manner as 
against  Danish  employers  in  support  of  a  demand  for  the  conclusion  of  a  collective 
agreement. […] 

(2) A condition for the initiation of industrial action as described in subsection (1), is that 
the  foreign  service  provider  in  advance  has  been  presented  with  provisions  in  the 
collective agreements concluded by the most representative social partners in Denmark 
and covering the entire Danish area. These collective agreements must indicate with 
the necessary clarity the rate of pay that is payable under the collective agreements. 

Source: Posting of Workers Act nr. 1144 of 14 September 2018 as amended in Consolidation Act of the 
translation:  
Ministry 
2566 
https://bm.dk/media/7024/consolidation-act-concerning-the-posting-of-workers-etc.pdf 

2021,  Unofficial 

of  Employment 

13  December 

nr. 

of 

7.2.4.  Providing information and advice 

Posted and mobile workers are not usually members of trade unions in the host countries 
and these local trade unions might also not be willing or able to represent them. Research 
for the project “Protecting Mobility through Improving Labour Rights Enforcement in 
Europe  (PROMO)”  (2017-2018),  which  examined  national  labour  protection  systems  for 
posted  workers,  looked  at  practices  and  challenges  in  relation  to  enhancing  “posted 
workers’ economic democracy” in Austria, Czech Republic, Italy, Norway and Finland. The 
project report points out that, due to the difficulty in understanding local legal rulings and 
guidelines,  posted  workers  are  exposed  to  a  particular  risk  of  mistreatment  in  the  host 
countries,  which  leads  to  ”their  rights  disregarded  and  unenforced;  their  interests  […] 
ignored;  and  their  voice  unheard  in  collective  action“.1021  However,  the  project  also 
highlights the role of trade unions in terms of influencing the conditions of posted workers 
in the countries examined in this research, and notes that legislation needs to be adapted 
to better represent posted workers.  

At  a  sectoral  level,  in  the  construction  sector,  Houwerzijl  et  al.  examined  trade  union 
support for cross-border mobile workers.1022 This publication lists examples of trade union 
support  from  several  sending  and  host  countries  (Belgium,  Bulgaria,  France,  Italy,  the 
Netherlands,  Portugal,  and  Romania).  Further,  posted  workers  in Germany  receive  help 
from the counselling centres of the Fair Mobility project (see the box below).  

Box 27. The German trade union project “Fair Mobility”  

The  Fair Mobility  project  (Projekt faire  Mobilität) is  part  of the  Fair-Labour-Mobility.eu 
initiative and aims to improve working conditions and enforce fair wages especially for 
workers from Central and Eastern European countries who are working in Germany . 
The political responsibility for the project lies with the German Trade Union Federation 
DGB.  The  project  is  supported  by  a  number  of  German  trade  unions,  the  Federal 
Ministry of Labour and Social Affairs and the Federal Ministry of Economics and Energy. 
It is 90% funded by the Federal Ministry of Labour and Social Affairs and 10% by the 
DGB.  The  project  maintains  12  counselling  centres  throughout Germany,  which  offer 

1021 Ibid. 
1022 M. Houwerzijl, E. Traversa, S. Borelli and M. Mesur, “Putting an end to cross-border social security fraud and abuse”, 
(EFBWW),  2018,  available  at: 

the  European  Federation  of  Building  and  Woodworkers 

published  by 
https://www.efbww.eu/stream/563cabfd-e081-4409-95ea-9760a44dd070.  

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workers  information,  advice  and  support  on  labour  law.  Workers  from  Central  and 
Eastern Europe are offered this mostly in their native languages. In addition, the project 
informs the public about the working conditions of posted workers and offers training for 
works councils and other interested parties on the subject of fair working conditions. The 
counselling  centres  cooperate  with  the  local  trade  unions  and  counselling  centres  of 
other regional organisations. In the past, the fair mobility project had a specific focus on 
“problematic” sectors, but currently the counselling services are available to workers in 
all  sectors.  The  Fair  Mobility  project  has  a  complementary  nature  of  providing 
information and advice for mobile workers. It should not be regarded as a tool that may 
substitute functions and responsibility of public authorities. 

Source: DGB 2022    

The  research  undertaken  for  this  project  on  the  national  legal  frameworks  identified 
relevant trade union activities in which trade unions provide information and advice to cross-
border mobile workers. This work is usually targeted at improving access to information and 
strengthening awareness and transparency regarding rights. In Poland, for example, there 
is a trade union for the largest group of TCNs in the country - the Trade Union of Ukrainian 
Workers.  This  trade  union  focuses  on  combatting  undeclared  work  and  the  labour 
exploitation of Ukrainian workers in the Polish labour market through advocacy, awareness-
raising and legal support.1023 

Employers'  associations  serve  as  a  point  of  contact  for  their  members  on  questions  of 
interpretation  and  practical  implementation  of rules  and regulations  (e.g.,  on  posting  and 
cross-border  service  provisions,  temporary  agency  work,  company  law, health  insurance 
and  other  social  security  regulations).  An  interview  with  the  German  employers' 
association  BDA  revealed  that  the  number  of  inquiries  is  connected  to  legislative 
processes,  with 
legal  regulations  are 
introduced.1024 In addition, the employers' associations also collect and voice opinions on 
legal questions and implementation issues.  

increasing  significantly  after  new 

inquires 

As a joint approach, the project “ENACTING - Enable cooperation and mutual learning 
for a fair posting of workers”, funded by the European Union, had the goal of increasing 
mutual  cooperation  among  trade  unions  (both  confederations  and  sectoral  trade  unions) 
and employers’ associations in the transport and construction sectors in order to find 
more effective ways to inform and support workers and companies on the fair posting of 
workers.1025  The  project,  which  was  carried  out  by  a  transnational  partnership  involving 
ANITA,  ANCE,  Belgian  Ministry  of  Labour,  CARTEL  ALFA,  EFBWW,  FILCA  CISL,  FIT 
CISL, and IG BAU, published Guidelines for social dialogue within posting of workers that 
included a guide for collective bargaining at workplace level and in supply chains, a practical 
checklist  for  trade  unionists  at  workplace  level  in  terms  of  dealing  with  issues  related  to 
posted workers, and a position paper on the state of application of Directive 2014/67/EU 
with a focus on specific sectors in Belgium, Germany, Italy and Romania. 

During  COVID-19,  a  Handbook  on  protecting  posted  workers  in  the  construction 
sector  during  COVID-19  (EMEcs)  was  published  with  support  from  social  partners 
outlining measures implemented in different countries at sectoral level to ensure support 
for posted workers, including: the dissemination of COVID-19-related information among 
workers with little or no knowledge of the local language; information about access to social 
protection for posted workers; protocols to adjust work organisation; measures to ensure 
social  distance  and  safe  transport;  compliance  with  hygiene  requirements;  guidance  on 

1023 P. van Nierop, L. Schönenberg and P. Terziev, “Counteracting undeclared work and labour exploitation of third country 
at: 

European 

pp.46-47, 

workers”, 

available 

2021, 

national 
https://ec.europa.eu/social/BlobServlet?docId=23573&langId=en.  

Commission, 

1024 Interview conducted for this study with German Confederation of German Employers' Associations (BDA), in June 2022. 
1025 Enacting Social Dialogue Working Group, “Guidelines for social dialogue within posting of workers”, Project “ENACTING 
– Enable cooperation and mutual learning for a fair posting of workers”, with financial support of the European Union, 2016, 
available at: http://www.adapt.it/enacting/2_2_7_Enacting%20Guidelines%20for%20Social%20Dialogue.pdf.  

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using  personal  protective  equipment.1026  The  handbook  shows  the  types  of  approaches 
used by social partners (including employers) to reach posted workers in the challenging 
context of the pandemic, including through information provided in their own language or 
through drawings.  

Problems  with  regime  shopping,  non-compliance  with  legal  provisions  and  fraudulent  or 
criminal  practices  in  the context  of  posting,  seasonal  work  and  other  forms  of  temporary 
cross-border mobile work challenge both workers and employers and therefore often form 
the basis of cooperation between the social partners in their social dialogue. Often, these 
issues have been approached in the social dialogue from the angle of undeclared work. 
For  example,  a  Eurofound  study  outlines  the  actions  taken  by  the  social  partners  and 
governments to tackle the fraudulent contracting of work. This also considers cross-border 
contracts for work and the posting of workers.1027 The study shows that the approaches of 
the social partners mainly focus on increasing compliance, notably by providing information 
and  organising  awareness  campaigns.  Furthermore,  in  some  cases,  trade  unions  also 
engage in initiatives aimed at improving the detection capabilities of public authorities, for 
example through developing reporting systems by workers involved in alleged fraudulent 
contracting of work (the Netherlands, Slovenia). On the employer side, the study concludes 
that  employer  associations,  although  they  condemn  fraudulent  contracting  of  work  and 
support the initiatives aimed at combating this, seem in general to be less active, especially 
when  unilateral  actions  are  taken  into  consideration.  However,  there  are  examples  of 
employer associations being involved in joint actions, particularly at the sectoral and local 
levels, as well as in government-driven initiatives.  

The  European  Platform  tackling  undeclared  work,  since  2021  operating  as  a  permanent 
working  group  of  the  ELA,  enables  different  actors,  ,  including  social  partners  and 
enforcement authorities, to exchange information and good practices, learn from each other 
and develop knowledge and evidence and engage in closer cross-border cooperation and 
joint activities, including the publication of a toolkit of good practice of cooperation between 
social inspectorates and social partners.1028 Within the framework of the Platform’s work, 
the  Rights  for  All  Seasons  –  campaign  on  Seasonal  Workers  focused  on  cross-border 
seasonal workers. The main goal of the campaign was to promote declared seasonal work 
and tackle undeclared seasonal work. As part of the work programme of the platform, an 
analysis was carried out of measures undertaken by enforcement authorities, NGOs and 
social partners to address undeclared work and labour exploitation.1029 In terms of specific 
measures carried out by the social partners, the study lists:  

•  Cooperation between the Latvian Free Trade Union Confederation (LBAS) and the 
labour inspectorate to exchange information and prevent and investigate violations 
of labour rights, including violations of migrant workers’ labour rights. 

•  Good  working  relations  between  the  French  trade  union  CGT  and  the  labour 

inspectorates. 

•  A commission in Italy to tackle the caporalato system1030 and labour exploitation in 
agriculture.  The  commission  -  which  consists  of  representatives  of  several 

1026 The handbook Protecting posted workers in the construction sector during COVID-19: limits and promising practices 

EMEcs EU Handbook, 2022, developed under the European market environment in the construction sector - Enhancing 
the free movement of posted workers in EU’ project. Available at https://emecs-project.eu/wp-
content/uploads/2022/11/EU-Handbook.pdf   

1027  Eurofound,  “Exploring  the fraudulent  contracting  of  work  in  the European  Union”,  Publications  Office  of  the European 
Union, Luxembourg, 2016, pp. 26-27, available at: https://www.eurofound.europa.eu/publications/report/2016/industrial-
relations-law-and-regulation/exploring-the-fraudulent-contracting-of-work-in-the-european-union . 

1028  European  Platform  tackling  undeclared  work  and  European  Labour  Authority,  Successful  approache  of  cooperation 

between Labour Inspectorates and Social Partners, 2021 

1029 P. van Nierop et al., “Counteracting undeclared work and labour exploitation of third country national workers’. 
1030  Within  the  caporalato  system,  farmers  outsource  to  recruiters/gangmasters  (caporali)  the  recruitment,  transport,  and 
control of workers in the field. Payment and working time are negotiated informally, remuneration is often on piece-rate 
basis  and  consistently  below  the minimum  wage,  and collective  provincial contracts  and  working time  regulations  are 

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ministries, municipalities, the National Labour Inspectorate and the National Institute 
of  Social  Security  -  works  together  to  develop  joint  actions  against  labour 
exploitation with NGOs and the social partners. As part of these joint actions trade 
unions  provide  insights  from  workplaces,  while  employer  associations  provide 
information on the complex supply chain in agriculture. The aim of this cooperation 
is  to  set  up  management  and  information  systems  and  to  strengthen  the 
implementation and monitoring capacity of national and local institutions.1031  

In Sweden and Denmark the social partners play a strong role in the regulation of the labour 
market  by  collective  bargaining  and  have  the  competence  and  responsibility  to  ensure 
compliance with the applicable wages and working conditions.1032  

At EU sectoral level, the EU-funded social partner project Tackling Undeclared Work in 
the  Construction  Industry  (TUWIC)  aims  to  facilitate  the  implementation  of  a  holistic 
approach on undeclared work in the construction sector.1033 The project gives an overview 
of national measures to tackle undeclared work in Austria, Belgium, Bulgaria, France, Italy, 
Romania and Spain in the construction sector and shows that in each of these countries, 
trade unions, employer federations and enforcement authorities work together in a range of 
policy initiatives to tackle undeclared work. According to the social partners at the European 
level in the construction industry, EFBWW and FIEC, this project “exemplifies what can be 
achieved through tripartite cooperation and how social partners can play a leading role in 
transforming undeclared work into declared work.”1034 In the framework of this project, the 
EFBWW and FIEC also agreed on concrete recommendations for tackling undeclared work 
and social fraud in the construction sector.1035  

In  terms  of  a  more  general  approach,  in  Belgium  cooperation  agreements  between  the 
social partners and the Belgian government have been concluded for various sectors: these 
‘plans  for  fair  competition’  are  agreements  between  the  social  partners  and  the  relevant 
administrations  and  include  concrete  measures  to  tackle  social  fraud  in  the  sectors 
concerned.1036  These  plans  currently  exist  in  sectors  such  as  construction  und  road 
transport. 

Further  examples  of  good  practice  have  been  identified  in  the  project  Fair  working 
conditions:  exploring  the  contribution  of  cooperation  initiatives  between  Social 
Partners and Labour Inspection authorities (SPLIN) (2019-2021).1037 This project lists 
joint actions by labour inspection authorities and social partners to enforce labour standards 
in  the  construction  and  international  maritime  sectors.  For  example,  in  Austria,  the 
Bauarbeiter-Urlaubs-  und  Abfertigungskasse  (BUAK,  Construction  Workers'  Leave  and 
Severance Pay Fund), a social partnership institution, was given wide-ranging powers to 
implement  the  Wage  and  Social  Dumping  Combat  Act  (Lohn-  und  Sozialdumping-
Bekämpfungs-Gesetz)  in  the  construction  industry.  These  powers  include  the  right  to 

largely  not  complied  with. 
;  F.  Bagnardi, 
formality.com/wiki/index.php?title=Caporalato_(Italy).  

“Caporalato 

(Italy)”,  2022,  available  at:  https://www.in-

1031 P. van Nierop, L. Schönenberg and P. Terziev, “Counteracting undeclared work and labour exploitation of third country 

national workers”, pp. 46-47. 

1032 EFBWW and FIEC, “Tackling Undeclared Work in the Construction Industry: Toolkit: with concrete cases from Belgium, 
France,  Bulgaria,  Italy,  Spain,  Romania  and  Austria”.  2020,  p.4,  available  at:  https://www.efbww.eu/publications-and-
downloads/reports-and-studies/toolkit-of-the-efbww-and-fiec-to-tackle-undeclared-work-in-the-c/737-a. 

1033 Ibid. 
1034 Ibid, p. 14.   
1035 EFBWW and FIEC, ‘EFBWW - FIEC joint statement – tackling undeclared work & social fraud – construction sector: Joint 
statement by the European social partners in the construction sector: Concrete recommendations for tackling undeclared 
work and social fraud in the construction sector’.   

1036 SIOD, “Protocollen,” 2022, available at: https://www.siod.belgie.be/nl/publicaties/protocollen.  
1037 Forba, “Fair working conditions: exploring the contribution of cooperation initiatives between Social Partners and Labour 
Inspection  authorities  (SPLIN)”,  2021,  available  at:  https://www.forba.at/en/forba_projekt/fair-working-conditions-
exploring-the-contribution-of-cooperation-initiatives-between-social-partners-and-labour-inspection-authorities-splin/. 
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monitor  wages  at  construction  sites,  to  investigate  suspected  cases  of  wage  and  social 
dumping and to report suspected cases to the district authorities.1038  

7.2.5.  Access to legal representation  

Providing equal rights to representation in the justice system and access to criminal justice 
is a challenge for many cross-border mobile workers. Workers often do not know where to 
find information, advice and legal support, who has this right, who bears the responsibility 
of  representing  them,  or  how  to  pursue  a  case.  In  addition,  the  process  of  pursuing 
employment rights is usually extremely time-consuming.1039 However, trade unions in host 
countries sometimes advocate on behalf of cross-border mobile workers even though they 
are not members of the trade union and therefore not subject to the legal protections that 
some unions offer to their members. There are several such examples of case law involving 
trade unions with regard to cross-border mobile workers.1040 Examples include: 

•  A  case  by the  Dutch  trade  union  FNV  brought  against  a  Dutch  shipyard that  had 
underpaid Romanian workers hired through a string of service contracts. The court 
requalified the service contracts as contracts applicable to the collective bargaining 
agreement for the metal  and  steel  processing  industry  (and  a  penalty  of  €10,000 
daily in case of non-compliance);1041  

•  The  CJEU  judgment  in  case  C-784/19  involving  EFBWW  and  IndustriAll,  the 
company Team Power Europe and a temporary work agency based in Bulgaria that 
was posting workers to Germany.1042 Here the ruling decided that, as the temporary 
agency workers did not perform any work in Bulgaria, the social security legislation 
of Germany applied to the workers.1043 

•  A  2021  judgement  of  the  Federal  Labour  Court  of  Germany  (Az.  21  Sa 
1900/19)1044 in a case regarding the rights of posted workers in the sector of live-
in elderly care. The court ruled that continuous caregivers in German households 
must be paid 24 hours a day and are entitled to minimum wage while on standby. 
The plaintiff, a Bulgarian national who was sent to Germany by her Bulgarian-based 
employer,  was  supported  by  a  counselling  "Fair Mobility"  centre  and  the German 
trade union ver.di. 

7.2.6.  Conclusions 

Social  partners  and  in  particular  trade  unions  are  directly  affected  and  concerned  by 
problematic situations of cross-border labour mobility that results in violations of the terms 
and conditions of employment of temporary cross-border mobile workers. This is not only 

1038  B.  Haidinger,  U.  Papouschek,  “BUAK  Construction  Workers’  Holiday  and  Severance  Payment  Fund  –  social  partner 
strategies to enforce employment standards in the Austrian construction sector,” SPLIN, Austrian report – construction 
sector,  2021,  available  at:  https://www.forba.at/wp-content/uploads/2019/03/SPLIN-Report-Construction-FORBA-AT-
EDITED.pdf.  

1039 B. Haidinger, F. Iannuzzi, D. Sacchetto, N. Lillie and K. Kall, ‘Enhancing Economic Democracy for Posted Workers’.   
1040 See also: ETUI, "Posting of Workers before National courts", 2020. 
1041  Rechtbank  Noord-Nederland,  “Beweerde  (onder)aanneming  is  in  feite  uitzending;  Op  Roemeense  werknemers  op 
at: 

Groningse 
CAO 
https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBNNE:2015:1076.  

Metalelektro 

toepassing”, 

available 

2015, 

werf 

van 

de 

is 

1042 “Judgment of the Court (Grand Chamber) in Case C

784/19”, 3 June 2021, available at: https://curia.europa.eu/juris/doc 
ument/document.jsf?text=&docid=242031&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3749862.  
1043  EFBWW, “Team Power Europe case: CJEU decision is a strong victory for workers,” press release, 03.06.2021, available 
at: 
https://www.efbww.eu/publications-and-downloads/press-releases/team-power-europe-case-cjeu-decision-is-a-
strong-victory-for-wor/1185-a.  EURACTIV,  “EFBWW  and  IndustriAll  Europe  deeply  concerned  about  opinion”,  press 
release,  18.12.2020,  available  at:  https://pr.euractiv.com/pr/efbww-and-industriall-europe-deeply-concerned-about-
opinion-210783.  

‐

1044 LArbG Berlin-Brandenburg 21. Kammer, „24-Stunden-Betreuung - Arbeitnehmerentsendung - gesetzlicher Mindestlohn - 

orde public - widersprüchliches Verhalten“, Aktenzeichen 21 Sa 1900/19, available at: 
https://gesetze.berlin.de/bsbe/document/JURE200014629.  
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due to their goal to improve working conditions in a global scale, fight precarious working 
conditions and solidarity of workers across border but also due to the fact that such forms 
put pressure on wages and working conditions of the workforce in the host countries. 

Whereas the prevention of "social dumping", as well as the protection of workers' rights, are 
important  concerns  for  trade  unions,  employer  associations  often  emphasize  the 
advantages of the economic freedoms of the EU internal market and a European common 
labour  market.  But  here  too  voices  can  be  heard  pointing  to  illegal  practices  and  unfair 
competition that must be prevented.  

Embedded in these divergences between and within the social partners, examples of good 
practices in the context of social dialogue show that cooperation works when there is added 
value for both social partners. This added value is primarily based in issues that are linked 
with  the  creation  of  a  level  playing  field  for  all  businesses  and  the  social  protection  of 
workers.  The  activities  of  the  social  partners  include  legislative  and  non-legislative 
measures, for example by involvement in policy making and regulatory processes. 

However,  as  shown  in  this  case  study,  there  is  quite  a  variety  of  different  practices  and 
types of social partners action and involvement that addresses cross-border mobile work. 

Certainly,  one  of  the  most  effective  and  binding  forms  of  regulation  covering  whole 
economic  sectors  is  collective  bargaining  and  the  conclusion  of  binding  collective 
agreements. But there are other types of actions and practice that highlight the important 
role of social partners – trade unions – as regards the fight of problematic temporary forms 
of cross-border labour mobility: 

•  Trade  unions  are  important  actors  of  public  awareness  raising  as  regards 
problematic forms of cross-border mobile work and the lack of protection of workers.  

•  Trade unions play an important role to provide information and advice on workers 
rights in host countries and other forms of support to cross-border mobile workers 
from other EU Member States as well as other countries. 

•  Trade unions are also supporting posted workers in case of access to legal action 
before  courts.  Providing  equal  rights  to  be  represented  in  the  justice  system  and 
access to criminal justice is a challenge for many cross-border mobile workers.  

•  Employers' federations represent the user and posting companies and provide direct 
advice  on  the  application  and  implementation  of  legal  and  other  regulations  in 
practice.  

•  Social  dialogue  outcomes,  i.e.  joint  recommendations  or  initiatives  of  employer 
organisations and trade unions have also highlighted needs of regulation and legal 
initiatives  to  address  problematic  practices  such  as  regime  shopping,  non-
compliance  or  unfair  competition.  The  approaches  of  the  social  partners  mainly 
focus on increasing the commitment to compliance, notably by providing information 
and organising awareness campaigns.  

•  Furthermore, social partners  engage in initiatives aimed at improving capabilities of 
public authorities in supervision and monitoring of rules, controls and sanctioning of 
illegal and fraudulent practice. In many countries, social partners cooperate with the 
public  authorities  when  it  comes  to  remedying  violations,  and/or  form  joint  issue-
specific bodies, e.g. to combat undeclared work.  

Finally, and not least key activities at EU level such as the establishment of the “European 
Platform tackling undeclared work” and the creation of the European Labour Authority (ELA) 

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have been developed on the basis of initiatives of social partner organisations at EU and 
national level, in particular the trade union movement. 

Against  this,  both  the  involvement  and  participation  social  partners  engagement  in 
legislative  and  non-legislative  initiatives  addressing  the  issue  of  temporary  cross-border 
work  within  the  EU  and  from  third  countries  should  be  acknowledged  and  supported  by 
European and national governments. 

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8.  Conclusions and considerations for further actions 
relating to the protection of temporary cross-border 
workers  

The  freedom  of  movement  of  workers  is  one  of  the  cornerstones  of  the  EU,  guaranteeing 
individuals the right to move, reside and work in another Member State and benefit from equal 
treatment  on  a  par  with  nationals  of  that  Member  State.  The  Single  Market  also  gives 
businesses and professionals the freedom to provide services within the EU.  

Temporary  intra-EU mobility  is increasing within  the  EU.  This  includes  posted  workers, 
seasonal workers and cross-border workers.1045,1046 In contrast to other forms of (temporary) 
cross-border labour mobility, posted work – which falls under the scope of the PWD and its 
Enforcement  Directive  –  is  driven  by  employers  who  make  use  of  their  freedom  to  provide 
services and send workers abroad on a temporary basis. Although ‘posting comprises a minor 
share of the EU labour market in terms of absolute volume, it concentrates in certain places 
and sectors which can accentuate the effects of its overall small volume.’1047 

Evidence  abundantly  shows  the  benefits  of  intra-EU  labour  mobility,  for  example  in 
addressing labour shortages in receiving countries, reducing unemployment levels in sending 
countries,  enabling  access  to  broader  employment  and  skills  development  opportunities  for 
workers, as well as facilitating access to skills and economic opportunities for employers.1048 
While the demand for skills in EU labour markets has evolved in the past decades, including 
following the COVID-19 pandemic, intra-EU movers are likely to continue to be (alongside non-
EU nationals) the pool of skills of first resort for EU economies.  

Intra-EU labour mobility is an important mechanism to support competitiveness and efficiency 
in  the  EU’s  internal  market.  Ensuring  fair  and  decent  working  conditions  for  intra-EU 
workers, including for temporary cross-border workers, is equally important, however, and 
this seeks to safeguard freedom of movement and its intended benefits. This has been a key 
issue on the EU agenda in the past decades, but there is recurrent evidence documenting 
cases of inappropriate working conditions involving temporary cross-border workers. 
These problematic aspects continue to raise questions about whether Europe’s mobile workers 
are adequately protected in law and in practice.  

EU  legislation  on  the  protection  of  working  conditions  and  equal  treatment  has 
expanded considerably in the past decades. The PWD and the Enforcement Directive are 
two  of  many  legal  instruments  in  safeguarding  social  rights  for  intra-EU  mobile  workers, 
alongside others.1049  

Regulation 593/2008 (the so-called Rome I Regulation) is an important instrument in labour 
relations as it generally determines the applicable labour law.1050 The PWD establishes certain 

1045 Furthermore, in 2021, there were approximately 10.2 million ‘permanent’ EU movers of working age in the EU. European 

Commission, 2022 Annual Report on Intra-EU Labour Mobility, 2023, 
https://ec.europa.eu/social/BlobServlet?docId=26778&langId=en  

1046 Moreover, in 2021, around 9.7 million trips for professions reasons were carried out within the EU. 
1047 A. Kyriazi, ‘Making and breaking coalitions for a more ‘Social Europe’: The path towards the revision of the posted workers 

directive’, European Journal of Industrial Relations, 2023, p.2. 

1048 https://ec.europa.eu/info/sites/info/files/strategic-plan-2016-2020-dg-empl_march2016_en.pdf 
1049 Other key examples include: Regulations 883/2004 and 987/2009 on the coordination of social security systems; Directive 
2008/104/EC on temporary agency work; Directive (EU) 2019/1152 on transparent and predictable working conditions;1049 
Directive 2009/52/EC providing for minimum standards on sanctions and measures against employers of illegally staying 
third-country nationals; Directive 2011/98/EU on a single permit for third-country nationals to reside and work in the EU; 
Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at 
work; and Council Directive 92/57/EEC of 24 June 1992 on the implementation of minimum safety and health requirements 
at temporary or mobile construction site. 

1050 In Article 8, this Regulation sets specific conflict of laws rules for cross-border labour relations. If the parties have not opted 
for a specific legislation to be applied to the employment contract, the contract will be governed by the law of the country in 
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overriding mandatory rules in the area of employment contracts that have to be respected.1051 
In that respect, the PWD provides additional protection compared to the Rome I Regulation for 
employees  covered  by the  personnel scope  of the  PWD,  although  this protection  is  not  yet 
equal to that of a ‘standard mobile worker’. Further, the European legislator and the European 
Court  of  Justice  distinguish  the  situation  of  posted  workers  from  that  of  ‘standard’  mobile 
workers.1052  This  approach  has  implications  for  the  transnational  social  rights  of  posted 
workers and may foster differences in their social rights compared to local workers and other 
groups of mobile workers who make use of their freedom of movement under Article 45 TFEU 
(e.g., frontier workers, seasonal workers).1053 

The various regulations and directives, together with other ongoing EU legal initiatives1054, have 
assisted the development of national legislation on the protection of working conditions 
of intra-EU cross-border workers, reinforcing equal treatment between mobile workers and 
local workers. Differences in implementation in the national legal frameworks, their application 
(i.e., non-compliance), but also their enforcement nonetheless impact the extent to which rights 
and working conditions are guaranteed in practice. Limited enforcement actions, large gaps in 
labour costs between Member States, and the structural features of labour intensive and cost-
competitive sectors have continued to give rise to business practices based on avoidance or 
evasion mechanisms.  

In practice, differences in the protection of temporary cross-border mobile workers in 
the EU (relative to local workers) continue to exist. The most common problems identified 
are  linked  to  non-payment  and  under-payment,  illegal  wage  deductions,  violations  of 
occupational safety and health regulations, poor accommodation, lack of statutory sick pay, 
missing  health  and  social  insurance  coverage,  and  falsified  working  time  documents  (e.g., 
timesheets). These issues tend to occur in specific sectors, such as construction, agriculture 
and horticulture, road transport, live-in care and meat processing, which are price competitive 
and affected by significant labour shortages. Across countries, these sectors increasingly use 
intra-EU  workers,  posted  TCNs,  as  well  as  other  migrant  workers  who  are  already  in  EU 
Member States. Business models that use temporary and subcontracted staff (with or without 
posting) are very common, and often represent strategies to reduce labour costs.  

The  range  of  infringements  illustrated  in  this  report  indicate  that  while  existing  rules  and 
regulations  are  comprehensive  and  complex,  their  enforcement  is  limited  across  the 
Member States, which results in some cases in posted workers and other temporary-cross 
border workers being unable to benefit from the full range of their rights. Whilst Member States 
have  legislated  to  establish  administrative  requirements  (e.g.,  the  registration  of  foreign 
temporary work agencies in their country), it remains difficult to detect those undertakings that 
work  outside  the  scope  of  the  law.  Equally,  fraudulent  practices,  such  as  bogus  self-
employment or letterbox companies, might go undetected.  

which the employee ‘habitually’ carries out his/her work. The application of these rules would entail, for a situation where a 
worker is normally employed in the Home State and only temporarily posted to a different Member State, the application of 
the (lower) employment conditions of the Home State. However, Article 9 of the Rome I Regulation includes a deviation from 
this scheme, by the use of ‘overriding mandatory provisions’. 

1051 See also Recital 34 of the Rome I Regulation: “The rule on individual employment contracts should not prejudice the 

application of the overriding mandatory provisions of the country to which a worker is posted in accordance with Directive 
96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the 
framework of the provision of services”. 

1052 Posted workers “return to their country of origin after the completion of their work without at any time gaining access to the 

labour market of the host Member State.” 

1053 The consequence of this position is that the question of what protection under labour and social security law can be invoked 
by posted workers must be answered in the light of the principles underlying the free movement of services, in particular the 
right of their employer to temporarily provide services in another Member State without hindrance (Verschueren, 2021). 

1054 For instance, a proposal for a Directive on corporate sustainability due diligence has recently been adopted by the 

Commission (COM(2022) 71 final).1054 It is intended to promote human rights in global supply chains and decent work 
worldwide. The rules would apply to larger companies, with an important element being how these companies should 
integrate due diligence into their policies, as well as monitor its effectiveness.1054 The fight against letterbox companies also 
seems to have become a European priority. At the end of 2021, an initiative to fight against the misuse of LBCs (i.e. shell 
entities) for improper tax purposes was announced by the Commission (COM(2021) 565 final) – see https://eur-
lex.europa.eu/legal-content/EN/ALL/?uri=COM:2021:565:FIN.  
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The  following  sub-sections  present  conclusions  and  proposals  for  further  actions  at 
national  and  EU  level  to  ensure  the  protection  of  temporary  cross-border  workers  in 
relation to: the enforcement of existing regulations, the role of (long) subcontracting chains, 
access to clear and transparent information, the role of temporary work agencies and other 
labour market intermediaries, posted TCNs, and the role of social partners.   

8.1.  Enforcement of existing regulations  

The public debate about the working conditions of temporary cross-border mobile workers has 
been influenced by the strong focus on case law and examples of abusive situations detected 
by labour inspections (which mostly take place on the basis of a risk assessment and mostly 
in  high  risk  sectors).  This  increases  the  probability  that  the  perception  of  the  number  of 
problematic  situations  is  overestimated.  A  further  challenge  is  that  limited  comparable 
statistical  and  other  quantitative  data  is  available.  This  impedes  a  clear  and  systematic 
cross-country and cross-sectoral assessment of the extent of violations of working conditions, 
also  hampering  identification  of  the  key  characteristics  of  non-compliant  employers 
(companies, as well as temporary work agencies).  

There is a comprehensive and complex regulatory system in place at EU and national level to 
facilitate temporary cross-border work. However, the extent to which these measures are 
enforced  as  intended  depends  greatly  on  the  complex  process  of  implementation, 
application,  and  enforcement.1055  Although  the  Enforcement  Directive  contains  several 
provisions  to  successfully  implement  and  develop  each  of  these  steps  at  national  level, 
Member States have broad discretion to develop the enforcement chain regarding infringement 
to the posting rules. Member States can take several actions within the enforcement chain, 
such as prevention, detection, control, sanctioning and recovery (as discussed in Section 7.1). 
They are most effective when implemented together, as otherwise if one of these actions fails, 
the others are also of little use. For example, there may be very strict sanctions foreseen in the 
national law but if there are hardly any inspections and/or hardly any recovery made, the utility 
of sanctions in practice decreases significantly. The Commission can verify whether sufficient 
efforts are being made by Member States regarding the implementation of the Enforcement 
Directive, and if necessary, launch infringement procedures.  

This report shows that the key challenge in ensuring equal protection for temporary cross-
border workers remains the limited enforcement of existing legislation and the extent to 
which  control  and  redress  mechanisms  within  the  Member  States  and  cross-border 
cooperation  manage  to  identify  employers  that  break  the  rules  and  effectively  apply  the 
necessary sanctions.  

National  enforcement  authorities  and  regulators,  as  well  as  social  partners  and  non-
governmental organisations are key actors in implementing actions to improve the protection 
of  temporary  cross-border  workers.  EU-level  authorities  (including  but  not  limited  to  the 
European Labour Authority) also have a key role in supporting national actors in tackling rights 
violations and fraudulent practices.  

Several key types of enforcement action points are important to consider. These are discussed 
below.  

1055 See also Rennuy (2020: 219): “There is relatively little insight into how European legislation is applied in practice, that is, how 
regulators enforce it and how the regulated comply with it. The same holds for the practical implementation of the posting 
rules, …”.  

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8.1.1. 

Increase the number and effectiveness of labour 
inspections 

Commitments to monitor the working conditions of temporary cross-border workers have been 
made by EU Member States, but the number of labour inspectors and inspections focusing on 
the enforcement of the posting and other relevant rules for temporary cross-border workers 
have remained limited.1056  

As shown in this report, some of the key drivers of fraudulent practices involving temporary 
cross-border workers include the demand for cheap labour in the countries of destination, the 
highly complex legal framework involving cross-border work, the features of the sectors where 
these  are  prevalent,  and  the  isolated  situation  and  limited  rights  awareness  of  the  mobile 
workers themselves.  

Structural  features  of  key  economic  sectors,  the  lack  of  human  resources  of  enforcement 
bodies  and  the  intricacies  of the  legal  environment  may  reduce  the effectiveness  of  control 
mechanisms (e.g., labour inspections), but the workers’ isolation in some sectors also hinders 
the  capabilities  of  the  control  authorities  and  trade  unions  to  reach  mobile  workers.  Labour 
inspectorates  may  have  no  legal  authority,  for  example,  to  access  the  workplace  of  live-in 
carers when their workplace is a private home in some countries, as discussed in this report 
(Section 5.2 and Section 6.8 on live-in carers).  

Temporary cross-border work entails a transnational dimension of enforcement. In this respect, 
public administrations (and their labour inspectorates) have to rely on other Member States’ 
willingness and capacity to engage in the enforcement of the posting rules.  

Possibilities for further actions at Member State and EU level   

•  An increase in the number of labour inspectors and the number and frequency 
of  inspections  is  needed  to  check  compliance  with  the  law  across  sectors  in 
relation  to  the  working  conditions  of  temporary  cross-border  workers.  This  would 
ensure  that  a  sufficient  number  of  inspections  can  be  carried  out  (relative  to  the 
number  of  temporary  cross-border  workers  and  sector  concentration  in  each 
Member State), including preventive inspections. An increase in human resources 
would  also  help  to  increase  the  scope  of  the  inspections  (e.g.,  to  focus  on 
investigating  compliance  with  working  conditions  alongside  administrative 
requirements). This objective could be reached through the checking of documents 
and practices related to key terms of employment, e.g., remuneration, working time, 
rest periods, OSH conditions and training, and sickness benefits.  

•  Ensuring  effective  inspections  throughout  the  subcontracting  chain  is 
necessary  to  identify  employers  and  subcontractors  (including  temporary  work 
agencies and other labour intermediaries) that do not comply with their obligations 
regarding  working  conditions  and  sanction 
the 
prevalence of cross-border subcontracting chains in key economic sectors, the ELA 
is  already  implementing  activities  to  facilitate  effective  cross-border  inspections, 
which should be continued and further developed in agreement with the Member 
States.1057  

them  appropriately.  Given 

1056  Despite  the  fact  that  in  Article  10(1)  of  the  Enforcement  Directive  clearly  states  that  “Member  States  shall  ensure  that 
appropriate and effective checks and monitoring mechanisms provided in accordance with national law and practice are put 
in place and that the authorities designated under national law carry out effective and adequate inspections on their territory 
in order to control and monitor compliance with the provisions and rules laid down in Directive 96/71/EC, taking into account 
the relevant provisions of this Directive and thus guarantee their proper application and enforcement.” 

1057 These activities include tools and procedures for concerted and joint inspections, training material, communication material 
and the activities of the Working Group in Inspections. For more details, see https://www.ela.europa.eu/en/concerted-and-
joint-inspections.  

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•  More  targeted  inspections,  focusing  on  cases  where  compliance  monitoring  is 
necessary in a cross-border perspective in both origin and sending countries of 
posted workers would further support cross-border cooperation and administrative 
processes. The ELA Working Group on Inspections is a good vehicle to continue to 
discuss such situations and agree on concrete cross-border actions. 

•  There is a need for further transparency from national labour inspectorates on 
the types, size,  number and  results  of  enforcement  activities concerning  different 
types  of  temporary  cross-border  mobility.  Such  measures,  any  difficulties  in 
implementing them and the identified solutions should be discussed and agreed in 
the fora facilitated by the ELA as part of its activities. These measures would support 
the development of the role and competencies of labour inspectorate and increase 
their public accountability for the work they conduct, and the results achieved. 

•  Capacity  building  of  competent  authorities  to  enhance  skills  and  technical 
knowledge  is  imperative  in  sending  and  receiving  Member  States,  to  combat  the 
infringement  of  the  posting  and  other  rules  relevant  to  temporary  cross-border 
workers. Training and awareness-raising activities can be implemented in relation 
to:  the  statutory  requirements  linked  to  different  types  of  temporary  cross-border 
workers, including the required administrative procedures required for sending and 
receiving  countries  and  the  penalties  that  can  be  imposed;  the  provision  of  full, 
correct and up to date information about the workplace, work activities, work period, 
accommodation (if relevant); and in general in relation to the rights and obligations 
of employers and workers in a cross-border perspective.  

• 

In the case of temporary cross-border workers in isolated situations, such as 
private  households  where  these  workers  provide  care  services,  alternative 
monitoring mechanisms can be piloted and learnings can support national and EU-
level decisions in the future. For example, if domestic employers do not allow labour 
inspectors to access their homes, alternative meeting locations can be suggested. 
The involvement of other organisations in ascertaining whether working conditions 
are respected and in supporting ways to tackle undeclared work is also desirable. 
For  example,  non-governmental  community  care  organisations  could  visit  private 
households  to  observe  the  living  and  working  conditions  of  workers  and  provide 
information to workers about where they can receive counselling. Such initiatives 
(and their evaluation) would nonetheless require the involvement and the financial 
support of government authorities.   

•  Concrete actions taken by public authorities at Member State level to enhance 
enforcement  efforts  should  include  more  systematic  cooperation  with  social 
partners (through sustained networks and other communication channels) aimed 
at  identifying  situations  where  violations  occur.  The  European  Platform  Tackling 
Undeclared  Work  is  a  good  example  of  cross-border  cooperation,  enabling  the 
exchange  of  information  and  good  practices.1058  It  should  continue  its  role  of  an 
observatory  of  complex  fraudulent  practices  in  cooperation  with  national  liaison 
officers as well as European and national-level social partners, also with a view to 
proposing concrete solutions.1059  

• 

(Cross-border)  cooperation  between  labour  inspectorates  and  other  relevant 
actors (e.g., social partners) is necessary both in the prevention and detection of 

1058 ELA “European Platform tackling undeclared work”, 2022, available at: https://www.ela.europa.eu/en/undeclared-work. Other 
interesting examples exist within ELA, such as the Working Group on inspections, or Posting 360 (Forum on the posting of 
workers). 

1059  See  EFBWW  and  FIEC  2020:  Joint  statement  by  the  European  social  partners  in  the  construction  sector:  Concrete 

recommendations for tackling undeclared work and social fraud in the construction sector. 

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cross-border  social  fraud.  Due  to  the  link  with  other  phenomena,  such  as  labour 
exploitation and the use of letterbox companies, expertise from and collaboration 
with  other  enforcement  bodies  is  required.  A  long-term  strategy  for  cross-border 
cooperation is needed to systematically address the situation of temporary cross-
border  workers.  Such  a  strategy  would  provide  the  conditions  for  long-term 
commitment,  capacity  building,  knowledge  of  how  other  labour  inspectorates 
operate and the flexibility needed for effective cross-border cooperation in concrete 
situations.  

•  The  coordination  and  reinforcement  of  cross-border  cooperation  efforts  by 
EU actors (such as the ELA, Eurojust or Europol) is critical. ELA in particular, given 
its  mandate,  should  intensify  its  activities  and  strategic  role  in  the  field  of  joint 
inspections,  its  cooperation  with  Europol,  and  its  mediation  and  capacity  building 
activities.  The  recently 
launched  ELA  Posting  360  Mutual  Learning  and 
Understanding  Programme1060  provides  a  vehicle  to  discuss  challenges,  share 
solutions, and agree on actions to reinforce cross-border cooperation, exchange of 
information,  improvement  of  data,  and  enforcement  of  posting  rules.  A  range  of 
instruments  can  support  these  objectives,  including  peer  learning  activities,  staff 
exchanges, training programmes, and logistical and technical support for bilateral 
and  multilateral  cooperation.  Similar  fora  should  ensure  that  exchanges  and 
cooperation aiming to protect the equal treatment of other types of temporary cross-
border  workers  are  also  prioritised  (for  example,  the  ELA  Working  Groups  on 
Inspections and Information). 

8.1.2. 

Improve recovery mechanisms 

Recital 38 of the Enforcement Directive states that “it is a matter of concern that there are still 
many  difficulties  for  Member  States  to  recover  cross-border  administrative  penalties  and/or 
fines and therefore the mutual recognition of administrative penalties and/or fines needs to be 
addressed.”1061  

When  imposing  the  payment  of  un(der)paid  wages  (and  additional  financial  sanctions),  the 
question  arises  of  whether  it  is  possible  to  recover  this  in  practice.  The  last  step  in  the 
enforcement chain – recovery – often remains underused, even though this is a crucial step 
(see  Sections  6.7  and  7.1  for  further  details).  In  the  case  of  limited  or  slow  recovery  of 
un(der)paid  wages  and  financial  penalties  within  a  reasonable  timeline,  impunity 
remains.  Moreover,  incentives  for  workers  to  lodge  complaints  are  considerably  reduced  if 
enforcement mechanisms are perceived to be ineffective and too slow.  

The  IMI  is  a  key  instrument  in  supporting  the   cross-border  enforcement  of  penalties 
and fines. Nonetheless, it is not used to its full potential by the Member States and the number 
of  requests  to  recover  a  penalty/fine  is  (very)  low,1062  showing  the  under-usage  of 
administrative  cooperation  for  the  cross-border  enforcement  of  financial  and  administrative 
penalties.1063 Challenges thus persist, and redress mechanisms, including judicial proceedings 
and recovery mechanisms, remain slow across the EU.    

1060 The European Labour Authority, together with the European Commission, launched the Posting 360 Mutual Learning and 

Understanding Programme on 13 March 2023. See https://www.ela.europa.eu/en/news/enhancing-cross-border-
cooperation-area-posting-workers-ela-launches-posting-360-programme.  

1061 See also Recital 39: “The disparities between the systems of the Member States for enforcing imposed administrative penalties 
and/or fines in cross-border situations are prejudicial to the proper functioning of the internal market and risk making it very 
difficult, if not impossible, to ensure that posted workers enjoy an equivalent level of protection throughout the Union.”  
1062  The  current  data  indicates  that  only  Austria  issues  requests  to  recover  penalties/  fines.  See  the  information  on  ‘Posting 
information exchanges by sending Member State – 2020 Q1-Q3’ in IMI – Exchanges in the area of Posting of Workers, at 
https://ec.europa.eu/internal_market/imi-net/statistics/2020/10/posting-of-workers/index_en.htm.  

1063 Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee on 
the application and implementation of Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 
on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and 

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Possibilities for further actions at Member State level 

•  Steps  could  be  taken  by  Member  States  to  make  progress  on  improving  the 
effectiveness and efficiency of recovery mechanisms (ideally at the time when 
the infringer is still providing services in the host country). Such steps involve, for 
example, immediate collection of the financial penalty, seizure (i.e., the process of 
taking possession of any goods by the labour inspectorate) until the fine is paid, or 
not  allowing  workers  to  be  posted  if  the  company  still  has  outstanding  fines. 
Furthermore, enhanced cross-border collaboration is essential for the recovery of 
un(der)  paid  wages  and financial  administrative  penalties. Member  States  should 
also make public the share of fines and recoveries which succeed cross-border and 
the  share  which  does  not.  Discussions  about  challenges,  solutions  identified  and 
exchange  of  lessons  learnt  following  different  approaches  can  be  continued  and 
deepened  through  the  various  activities  and  working  groups  implemented  by  the 
ELA.  

•  The  ELA  can  contribute  to  increasing  the  use  and  efficiency  of  the  IMI  in 
supporting  the  cross-border  enforcement  of  penalties  and  fines  through  actions 
such  as  reviewing  the  challenges  associated  with  its  use  in  the  Member  States, 
increasing the user-friendliness of the system, and continuing to support exchanges 
between the Member States to identify gridlocks and solutions.  

8.1.3.  Sustained efforts at national level to monitor and evaluate 
the implementation of the PWD and Enforcement 
Directive provisions 

The complex legal frameworks that regulate the posting of workers require the development 
of appropriate monitoring and evaluation mechanisms, to assist authorities at national level to 
assess the implementation process and the impact of existing regulations. Such mechanisms 
are to date, however, very limited at national level.  

The  case  study  on  ‘underpayment  and  non-payment  of  temporary  cross-border  workers’ 
(Section 6.2) identifies the example of the monitoring and evaluation programme initiated 
by the government of the Netherlands.1064 The first monitoring and preliminary evaluation 
reports  (published  in  2023)  note the  possible  underreporting  of  posted  workers  due to  non-
compliance  with  the  notification  duty,  as  well  as  difficulties  involved  in  monitoring  the 
implementation of the existing legislation (such as measuring the effects of the revised PWD 
in  relation  to  workers’  remuneration  or  identifying  all  responsible  actors  in  subcontracting 
chains).  While  not  without  its  challenges,  this  type  of  exercise  is  a  critical  and  necessary 
addition to the work of labour inspectorates and to improving data collection and quality.  

One  particular  area  in  which  monitoring  and  evaluation  efforts  are  needed  is  around  the 
application  of  some  of  the  new  provisions  in  the  PWD  in  relation  to  workers’ 
‘remuneration’. This concept was introduced by the revised PWD, replacing the provisions 
related  to  the  ‘minimum  rates  of  pay’.  However,  the  Directive  does  not  define  the  notion  of 
remuneration. Consequently, it can be a burdensome task for employers to determine what 

amending Regulation (EU) 1024/2012 on administrative co-operation through the Internal Market Information System ('the IMI 
Regulation'), SWD(2019) 337 final, p. 19, at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52019DC0426 
&from=EN 

1064 Evaluation of the obligation to notify the Working Conditions of Posted Workers Act in the EU (WagwEU) and Monitoring of 

the Revised Posting of Workers Directive, 2023. Available at 
https://www.tweedekamer.nl/kamerstukken/brieven_regering/detail?id=2023Z01359&did=2023D03198  

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should be understood under this notion in the receiving state (as it varies according to 
the Member State and at times, the sector and employer concerned).1065  

The elements of remuneration packages are defined by national law or practice, as well as 
sectoral  or  regional  collective  agreements  and  can  include  the  salary,  overtime  pay, 
allowances for irregular hours, shift work allowances, work on Sundays and public holidays, 
etc.  Violations  of  workers’  rights  can  occur  not  only  in  situations  of  non-compliance  with 
national  legislation,  but  also  where  national  rules  for  posted  workers  are  different  to  (less 
advantageous than) those established by sectoral or regional collective agreements, which are 
then not applied to posting situations. 

Underpayment  of  posted  workers  is  an  important  problem  as  it  causes  unfair 
competition  and  results  in  violations  of  workers’  rights.  The  existing  data  on 
underpayment is very limited and thus significantly hindering an assessment of what further 
actions  are  needed.  There  was  also  very  limited  information  available  during  this  study’s 
timeline about changes that have been made to enable remuneration uplifts for posted workers 
in response to the revised PWD provisions in the Member States, and whether the revisions 
have  resulted  in  (more)  equal  treatment  between  local  and  posted  workers.  Stakeholders 
interviewed  for  this  study  indicated  limited  awareness  of  the  impact  of  the  revisions,  but 
emphasised the legal complexity of collective agreements and the challenges for employers 
and  temporary  work  agencies  to  understand  which  provisions  apply  in  general  to  posted 
workers, but also in particular to the remuneration issue. This reality raises barriers in reaching 
the  key  objective  of  the  revised  PWD,  notably  “equal  pay  for  equal  work  in  the  same 
workplace”.  

Possibilities for further actions at Member State and EU level 

•  Member  States,  supported  by  the  ELA,  could  take  concrete  steps  to  develop 
monitoring and evaluation frameworks to support systematic and comparable 
data  collection  and  analysis  related  to  the  implementation  of  the  PWD  and 
Enforcement  Directive,  alongside  reinforcing  the  enforcement  data  collected  by 
labour  inspectorates.  The  learnings  can  then  be  used  to  expand  the  monitoring 
system  to  regulations  governing  other  types  of  temporary  cross-border  workers. 
Regular  monitoring  and  evaluation  reports  can  make  an  essential  contribution  to 
increasing  public  trust  and  identifying  challenges  and  developing  measures  to 
further assist the implementation and enforcement of existing rules and regulations 
through targeted measures (e.g., communication campaigns, increasing the number 
and effectiveness of labour inspections, etc.). The ELA working groups provide an 
appropriate setting for agreeing a roadmap on how to set up such monitoring 
and evaluation frameworks, provide expert support, build capacity and share 
learnings.  

8.1.4. 

Improve data collection mechanisms, data quality, and 
cross-border information exchange and administrative 
cooperation 

Accurate  data  would  help  decision-makers  and  practitioners  to  understand  the  scale  and 
patterns  of  the  problems,  and  avoid  recurrent  infringements  on  the  protection  of  temporary 
cross-border mobile workers and on the social and economic benefits of intra-EU mobility.  

1065 See for instance following remark: “It is quite impossible for a foreign company to understand what is the collective agreement 
and the remuneration to apply to posted workers without being helped by an Italian consultant” (Dorigatti et al., 2022: 44). 
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This can be achieved through enhanced publication of data at Member State level, through 
coordination  of  information  and  the  further  development  of  cross-border  cooperation 
through structures (networks) that share knowledge and lessons learnt, as well as through the 
IMI.  Improving  national  IT  tools  and  data  collection  mechanisms  is  a  prerequisite  to 
facilitating more effective and faster data and information exchange.  

Information  exchange  between  Member  States  is  one  of  the  most  useful  forms  of 
transnational cooperation (and mutual assistance) in enforcing labour rules (see section 
7.1  on  promising  practices  involving  cooperation  between  Member  States  in  Section  7).1066 
The exchange of information between Member States can take place either during or after the 
period  of temporary  labour  mobility.  The  direction  of  information  exchange  can  be  from  the 
receiving Member State to the sending Member State, as well as vice versa. The transnational 
exchange  of  information  can  take  place  between  public  authorities  (including  inspection 
services), but it is also possible that information exchange takes place between and through 
trade unions, towards the competent public authority (including inspection services).  

The ambition to collect more and better data was clearly mentioned in the revised PWD.1067 
However, a number of questions remain un(der)explored, for example on the actual terms and 
conditions of employment of posted workers, or the impact of the revised PWD on the evolution 
of the wages paid to posted workers.  

Moreover, there is hardly any empirical evidence about the size (i.e., number of tiers) and 
profile  of  the  subcontracting  chains  across  sectors,  nor  is  there  data  on  the  main 
characteristics  of  temporary  work  agencies  that  post  workers.  This  is  a  significant  gap  that 
limits  the  current  understanding  about  how  these  systems  function  under  the  current  legal 
framework and their impact on workers’ rights.  

With regard to the enforcement of the posting rules, there is no data available at EU level, 
covering all Member States, for a number of basic indicators, such as the 1) number of labour 
inspectors involved; 2) number of inspections; 3) outcome of these inspections; 4) main types 
of infringements; and 5) recovery of un(der)paid remunerations and financial sanctions. Data 
for  these  indicators  are  only  (partially)  available  for  some  Member  States.  Therefore,  the 
conclusion that the lack of statistics indicates a lack of problems1068 should be avoided, as the 
information about infringements (including undeclared work, bogus-self employment, etc.) in 
this report shows.  

Finally, there might be a biased perception about the level of infringements of the posting 
rules and other regulations applicable to other temporary cross-border workers. Case 
law inherently focuses on fraudulent practices and does not provide a good observation post 
for forms of non-problematic posting. Moreover, inspections will mostly take place on the basis 
of a risk assessment (by the labour inspector, by data matching or data mining, or based on a 
complaint),  and  mostly  in  ‘risk  sectors’  (e.g.,  the  construction  sector).  Non-randomised 
inspections will yield higher infringement rates and may therefore also assist in a distorted view 
of the actual scale of infringements related to intra-EU posting.  

Possibilities for further actions at Member State and EU level   

•  Steps  could  be  taken  to  collect  data  and  information  on  the  aspects  outlined 
above  within  a  reasonable  timeframe  and  with  due  consideration  given  to 

1066 See, for instance, Article 6 of the Enforcement Directive.  
1067 Recital 5 of Directive (EU) 2018/957 states that “Sufficient and accurate statistical data in the area of posted workers is of 
utmost importance, in particular with regard to the number of posted workers in specific employment sectors and per Member 
State. The Member States and the Commission should collect and monitor such data.” 

1068 Well reflected by following citation from Heindlmaier and Kobler (2022: 13): “Interestingly, the number of controls of brokering 
agencies for the placement of live in care workers is not statistically recorded by the Financial Control of Undeclared Work 
Unit. This suggests that brokering agencies are rarely monitored and that controls in the live-in care sector are de facto non-
existent. In sum, there is a lack of willingness for police patrol in the live-in care sector.” 

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additional  administrative  burden  at  Member  State  level,  to  ensure  as  far  as 
possible that comparable data is gathered and analysed to determine trends and 
inform further measures.  

•  The  first  step  is  to  collect  the  relevant  data  across  the  Member  States  and 
particularly  in  the  sectors  where  the  research  has  revealed  indications  of 
problematic  practices.  This  involves  agreement  on  key  indicators  and  their 
definition (e.g., what constitutes an infringement), so that the data is comparable 
across  the  Member  States.  Some  of  the  relevant  data  could  be  collected  by  the 
labour  inspectorates  (e.g.,  key  characteristics  of  workers  in  situations  where 
violations  are  most  often  identified,  main  types  of  infringements  and  the  type  of 
employers and subcontractors involved). Guidance at the EU level, provided by the 
ELA, would be critical for the success of such an endeavour.  

the  data  gathered  by 

•  The  Commission  could  also  support  data  collection  at  national  level  based  on 
labour 
to  complement 
comparative  methodologies, 
inspectorates. In order to estimate the real extent of infringements in case of intra-EU 
posting and other cross-border workers, other research methodologies (in addition 
to the analysis of labour inspection results) are also suitable. This could involve an 
overall mapping of service subcontracting in the EU, which would help estimate the 
scale  of  cross-border  subcontracting  across  sectors.  The  digitisation  of  company 
registers  across  the  EU  (see  Section  8.2  below)  and  the  ability  to  link  data  on 
companies  and  their  subcontractors  would  enable  this  information  to  be  gathered, 
analysed and monitored. It would also facilitate the information transfer between EU 
Member States. Smaller scale mapping of services could be conducted in selected 
Member States intially, where company registers are accessible in a digital format, to 
assess the potential of this endeavour and its challenges.  

Another  option  could  bean  EU-level  survey  of  economic  actors  involved  in  posting 
(workers,  self-employed,  posting  undertakings,  clients).  This  method  would  gather 
data from several types of sources and contribute to a broader understanding of the 
phenomenon from the perspective of different actors. It should be supplemented with 
qualitative data collection methods (such as interviews or focus groups) to provide 
further context to the quantitative results and contribute to an in-depth understanding 
of the incentives and barriers to respecting the legislation.  Notwithstanding the added 
value  of  such  data  at  the  EU  level,  this  method  would  likely  face  some  important 
limitations,  such  as  the  inability  to  capture  representative  samples  and  to  obtain 
answers  from  user  undertakings  and  subcontractors  that  knowingly  break  the  law. 
Smaller scale surveys can be piloted in specific countries or sectors initially, to identify 
challenges and adjust the metholdogy for data collection at a larger scale. 

These methodologies could be commissioned as part of national or EU-level research 
initiatives.  Quantitative  research  (analysed  in  the  framework  of  national  and/or  EU 
level studies) on the use of subcontracting chains (ideally targeted to relevant sectors, 
including  the  construction  sector)  will  add  value  to  the  limited  empirical  evidence 
currently available (e.g., published by Eurostat) and to the ongoing debates regarding 
their use in a cross-border context. This type of data could represent a baseline to 
inform  decision-making,  but  a  long-term  approach  to  collect  longitudinal  data  is 
necessary to enable an understanding of the phenomenon over time, and in relation 
to any key changes in EU and/or national legislation.  

•  While data collection should take place at national level, EU institutions can 
provide  conceptual  and  practical  assistance  in  ensuring  data  collection 
approaches are consistent and compatible at the EU level and support cross-border 
cooperation and analysis. 

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• 

In support of the monitoring of the PWD, data collection on several qualitative and 
quantitative  indicators  of  problematic  forms  of  temporary  cross-border 
mobility  can  be  considered  and  undertaken  through  the  different  methodologies 
outlined  above,  once  agreement  on  common  definitions  of  these  indicators  has 
been reached: 

o 

o 

o 

o 

types of temporary cross-border labour mobility and sectors  

forms of temporary cross-border labour mobility and sectors most confronted 
with infringements to the labour rules (based on labour inspection data) 

the  number  of  labour  inspections  carried  out  to  control  the  application  of 
posting rules (and other rules applicable to temporary cross-border workers)  

the profile of workers in situations where violations are most often identified 
(e.g., country of origin and destination, type of job, occupation, sector, type 
of employment relationship, socio-demographic profile)  

o  main  types  of  infringements,  the  type  of  employers  and  subcontractors 
involved, their place of residence, the size of the company, the number of 
subcontractors used 

o 

recovery  of  un(der)paid  remunerations  and  financial  sanctions  (based  on 
labour inspections data) 

•  Transnational exchange of information can be formalised in various ways, for 
instance through bilateral or multilateral agreements, memoranda of understanding, 
and  the  IMI.  Transnational  exchange  of  information  can  also  have  an  informal 
character  (e.g.,  informal  exchange  of  information  between  civil  servants/labour 
inspectorates). The prerequisite for information exchange to be successful is for it 
to be continuous, frequent, efficient, and based on mechanisms that translate into 
concrete actions.  

8.1.5.  Enhanced role for trade unions and employer 

organisations in enforcement 

Preventing pressures for downward social convergence, as well as enforcing the protection of 
workers'  rights  are  important  concerns  for  social  partners  (trade  unions  and  employers 
alike).1069  Problems  related  to  regime  shopping,  non-compliance,  and  unfair  competition 
challenge  both  workers  and  employers  and  are  often  topics  of  concern  in  social  dialogue. 
Cross-border  mobile  workers  are  often  not  part  of  the  membership  base  of  local  trade 
unions.1070 In many Member States, the social partners are highly involved in policy making 
and in regulatory processes and can play an important role in ensuring working conditions are 
respected and/or improved.  

Collective agreements at national and/or regional levels sometimes cover posted workers 
and  other  temporary  cross-border  workers  or  have  an  impact  on  the  use  of  these  forms  of 

1069 B. Furåker and B. Larsson, “Revision of the EU Posting of Workers Directive, Social Dumping and Trade Unions’ Position”, 
in  Europe.  Palgrave  Pivot,  Cham,  2020,  pp.  109-139,  available  at: 

in:  Trade  Union  Cooperation 
https://link.springer.com/chapter/10.1007/978-3-030-38770-9_4. 

1070 J. Cremers, “Economic freedoms and labour standards in the European Union”, in: Transfer - European Review of Labour and 
Research (ETUI), 22(2), 2016, pp. 140-163, available at: https://pure.uvt.nl/ws/portalfiles/portal/12577008/Transfer_Europe 
an_Review_of_Labour_and_Research_2016_Cremers_149_62.pdf. 

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employment.  Collective  bargaining  and  joint  action  at  cross-sectoral  and  sector  level  has 
proved  to  be  an  efficient  instrument  to  define  certain  standards  and  support  the  effective 
implementation  of  equal  pay  principles.  Examples  from  the  Nordic  countries  but  also  from 
Belgium, France and Italy show the strong role of sectoral collective agreements in providing 
both a level playing field from the perspective of companies in receiving countries as well as 
from the perspective of equal pay and decent working conditions. 

The  case  study  on  the  role  of  social  partners  in  the  protection  of  working  conditions  (see 
Section  7.2)  has  shown  that  social  partners  also  participate  in  initiatives  aimed  at 
improving the detection capabilities of public authorities. This has taken place through 
initiatives  such  as  the  development  of  systems  facilitating  workers  involved  in  alleged 
fraudulent  contracting  of  work  to  report  these  issues.  In  many  countries,  social  partners 
cooperate with the public authorities when it comes to remedying violations, and/or form joint 
issue-specific bodies, for example to combat undeclared work.  

In particular, social partners have first-hand knowledge of critical developments on the ground, 
incidences  of  problematic  practices  of  posting  and  other  forms  of  temporary  cross-border 
mobility, new emerging risks and other issues that need to be addressed by policy measures 
or  legal  action.  A  notable  example  here  is  the  meat  sector  in  Germany,  where  persisting 
problems  have  resulted  in  campaigns  of  social  partners  and  other  stakeholders  (churches, 
NGOs, employers) that contributed to the enacting of effective measures against problematic 
practices of subcontracting and agency work. 

Social partners also play a role in enforcement and compliance monitoring, including by 
active participation of trade union officers and shop stewards involved in inspections, reporting 
rights violations to public authorities and labour inspectorates. Furthermore, trade union-led or 
joint social partners projects or campaigns are important for informing cross-border workers 
about their rights, alerting media about irregular practices and other forms of public awareness 
raising  as  well  as  putting  pressure  on  politicians.  Trade  unions  provide  legal  support  and 
representation to help workers to report abusive working conditions and claim compensation 
in civil and criminal procedures, including through trade union cooperation across borders. 

Possibilities for further actions at Member State and cross-national level   

•  Actions could be taken to make collective agreements more easily accessible in 
all  or  at  least  several  official  EU  languages  (for  instance,  based  on  a  template 
developed by ELA). This process would require social partners to have a leading 
role (with support from national and regional authorities and at EU level), including 
in  making  the  content  of  collective  agreements  more  easily  accessible  and 
understandable  in  a  cross-border  setting.  This  could  be  achieved  through  the 
publication of guidance on key provisions regarding the equal treatment of temporary 
cross-border workers in the content of collective agreements and national/ regional 
legislation from a cross-border perspective.  

•  Employer organisations, alongside national authorities, can have a leading role 
in supporting employers with information about the correct implementation of 
provisions.  Employer  organisations  can  also  support  national  authorities  with 
key information about the needs for information of employers in different sectors, 
which are engaged in temporary cross-border work.   

•  The sector-specific and general insights that social partners have should find 
stronger  consideration  in  EU  and  national  policy-making  and  enforcement 
processes.  The  recently  launched  ELA  Posting  360  Mutual  Learning  and 

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Understanding Programme1071 can be such a vehicle for matters concerning posted 
workers, but the situation of other types of temporary cross-border workers should 
also be addressed more systematically.  

• 

In  contexts where  there  is  a  more limited  culture  of  cooperation  and  weaker 
traditions  of  tripartite  social  dialogue,  it  is  important  to  nurture  the 
participation of social partners in cross-border and EU-level initiatives and peer 
learning activities and thus encourage their involvement in identifying challenges and 
formulating and implementing measures.   

8.2.  The protection of temporary cross-border mobile 

workers in subcontracting chains 

Subcontracting  is  an  established  business  model  in  the  sectors  in  which  temporary  cross-
border  mobile  workers  and  posted  TCNs  are  prevalent.  Failure  to  respect  the  applicable 
terms  and  conditions  of  employment  in  subcontracting  chains  has  been  evidenced 
repeatedly.  In  the  construction  sector,  for  example,  subcontracting  has  become  a  practice 
used  to  increase  profits  by  lowering  costs.  It  also  leads  to  overall  lower  pay  levels  and 
downward wage pressure. Long and complex subcontracting chains are established, creating 
a  separation  between  the  individual  (posted)  worker  and  the  end  user.  Due  to  the  lack  of 
transparency  and  accountability  in  these  chains,  practices  such  as  undeclared  work, 
underpayments,  a  lack  of  attention  to  OSH  considerations  and  labour  exploitation  become 
increasingly likely.  

Although Article 12 of the Enforcement Directive defines rules on subcontracting liability, they 
can be entirely undermined if, for example, a letterbox company is established in the chain. 
Letterbox companies do not perform any economic activity but are set up to lower labour costs 
or create fiscal optimisation strategies. Complex subcontracting in combination with letterbox 
companies leads to a lack of transparency and accountability, which systematically hide poorer 
working conditions for temporary cross-border workers. As letterbox companies are difficult to 
identify, enforcement becomes difficult.  

This research has shown that liability rules are an important tool through which posted 
workers may claim their rights (e.g. unpaid remuneration). All the necessary tools seem to 
be present in the Enforcement Directive to lay down strict rules on subcontracting liability at 
the  national  level.  The  possibility  is  offered  by  Article  12(4) to define more  stringent  liability 
rules under national law with regard to the scope of subcontracting liability. However, for some 
stakeholders, the provisions in Article 12 do not go far enough and this has prompted debates 
about  the  need  to  define  specific  rules  on full  joint  and  several  liability. However,  there  are 
doubts about the political feasibility of this suggestion.1072 

The effectiveness of subcontracting liability rules depends on the scope that Member 
States  have  chosen  to  implement  them  at  national  level.  For  example,  whilst  the 
Enforcement Directive stipulates that subcontracting liability exists for one link up the chain, 
some  Member  States  allow  for  full  chain  liability,  which  ultimately  offers better  protection  to 

1071 The European Labour Authority, together with the European Commission, launched the Posting 360 Mutual Learning and 

Understanding Programme on 13 March 2023. See https://www.ela.europa.eu/en/news/enhancing-cross-border-
cooperation-area-posting-workers-ela-launches-posting-360-programme.  

1072 See Heinen et al, 2017:51 “However, it must be taken into consideration that the concept of liability in subcontracting chains 
is a highly controversial matter within the Union. The concept of more stringent liability up to a full chain liability, which was 
demanded by some trade unions, has proven to be too ambitious as some Member States were reluctant to implement a 
liability scheme  in  subcontracting scenarios  into their  national  legal  system. Keeping  in  mind  the  different  interests  of  the 
western  (receiving)  and  eastern  (sending)  member  states,  this  is  not  surprising.  The  Enforcement  Directive  is  an  act  of 
compromise.” 

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workers. Moreover, the extension of subcontracting liability beyond the construction sector is 
a practice adopted by a number of Member States, which enables workers in other sectors to 
also benefit from subcontracting liability. Nevertheless, more evidence would be required to 
conclude  that  full  chain  liability  leads  to  improved  working  conditions  or  less  instances  of 
unpaid remuneration. 

The  longer  subcontracting  chains  become,  the  more  opaque  they  are  and  the  more 
difficult it becomes for workers to claim their rights. Capping the number of levels in the 
subcontracting  chain  can  help  prevent  this,  as  this  would  mean  that  subcontracting  chains 
would be less complex and therefore easier to identify the responsible entities.  Nevertheless, 
few  Member  States  have  currently  implemented  this  form  of  protection.  Stronger  liability 
rules include: 

•  Extending liability rules to the full chain can be more protective as each of the actors 
in the chain can be held liable. In practice, this extends remedies available to posted 
workers.  Similarly,  extending  both  full  chain  liability  and  a  ceiling  on  subcontracting 
levels to all sectors (not only construction) can maximise the protection available for 
posted workers.  

•  Due diligence provisions can add a layer of protection for posted workers, as they 
require undertakings to comply with certain requirements and control measures in order 
to  avail  of  the  due  diligence  defence.  However,  it  should  be  acknowledged  that  the 
effectiveness  of  the  liability  rules  might  be  hampered  by  the  use  of  due  diligence 
provisions  as  an  ‘avoidance  route’  (Article  12  (5)  of  the  Enforcement  Directive). 
Nevertheless, ‘due diligence’ can be considered as an interesting mechanism of ‘self-
regulation’  between  the  private  actors  involved.  Here,  the  actors  involved  (i.e.,  the 
client,  the  main  contractor,  the  sub-contractor),  take  responsibility,  for  example  by 
organising  preventive  inspections.  In  that  regard,  self-regulation  may  complement 
enforcement by inspectorates. 

Weaker  liability  rules  include  limiting  subcontracting  liability  to  one  link  up  the  chain  only, 
limiting it to future unpaid wages (and not to unpaid wages due prior to the period of joint and 
several  liability),  or  confining  the  liability  scheme  to  one  sector  only.  These  arrangements 
ultimately grant lesser protections to posted workers in subcontracting chains. 

There is room for improvement in the regulation and implementation at national level, 
and  enforcement  of  the  liability  rules  across  Member  States  and  sectors.  Long-term 
solutions  involving  more  effective  regulations  and  enforcement  are  necessary  to  deter 
fraudulent  and  abusive  subcontracting  practices  for  all  types  of  cross-border  workers  and 
across sectors.  

Solutions should have a 1) preventive effect: avoiding the occurrence of problems (e.g. by 
implementing  measures  that  force  the  client  and  the  main  contractor  to  verify  that 
subcontractors  comply  with  their  obligations);  2)  deterrent  effect:  ensuring  that  those  who 
profit  from  activities  performed  by  workers  involved  in  the  subcontracting  chain  without 
respecting labour regulation are sanctioned; and 3) protective effect: workers can address 
the  client  and  the  contractor(s)  when  their  employer  does  not  fulfil  their  obligations.  For 
instance,  when  subcontractors  suddenly  ‘disappear’,  workers  are  still  able  to  address  other 
contractors in the chain. These measures should, however, be proportionate and avoid 
deterring entirely subcontracting or temporary cross-border mobility. 

Finally, according to Article 71 of Directive 2014/24/EU on public procurement, in the context 
of  subcontracting,  ‘observance  of  the  obligations  referred  to  in  Article  18(2)  by 
subcontractors  is  ensured  through  appropriate  action  by  the  competent  national 
authorities  acting  within  the  scope  of  their  responsibility  and  remit’.1073  This  means  that 

1073 Directive 2014/24/EU of 26 February 2014 on public procurement, Article 71, available at: https://eur-lex.europa.eu/legal-

content/EN/TXT/PDF/?uri=CELEX:32014L0024.  

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competent  national  authorities  must  also  ensure  that  subcontractors  of  Member  States’ 
suppliers comply with social clauses when goods are purchased or services provided by way 
of public procurement. This avoids a situation whereby a contractor could submit a cheaper 
offer  by  outsourcing  the  service  to  subcontractors.  Appropriate    measures    to  ensure 
observance of obligations by subcontractors could include a system of direct payment to the 
subcontractor,  or  joint  and  several  liability.1074  An  international  illustration  of  how  public 
procurement  can  be  adjusted  to  support  better  working  conditions  is  Norway’s  2017  Public 
Procurement Act, which is one of initiatives aiming to ensure that the public sector – as a key 
purchaser of services –  checks whether its suppliers comply with the legislation and ensure 
decent and fair working conditions for workers.1075 In practice, implementation varies across 
municipalities.    

It  should  be  generally  noted  that  the  aforementioned  provision  does  not  create  a  legal 
obligation and Member States are left to decide whether or not to use the possibilities offered 
by  the  Directive.  This  voluntary  approach  has  led  to  slow  and  uneven  progress, 
something  that  should  be  strengthened  in  order  to  better  guarantee  the  rights  of 
workers. 

Possibilities for further actions at Member State and EU level   

•  Seek  to  strengthen  the  enforcement  of  existing  regulations  through  more 
frequent  and  extended  monitoring  and  inspections  and  proportionate  –  yet 
dissuasive – sanctions.  

•  There  are  differences  in  the  extent  to  which  the  posting  conditions  are  checked 
before issuing a Portable Document (PD) A1, as well as the methodology used for 
this. Improving and harmonising checks at national level of PD A1 certificates 
would contribute to a better predeparture assessment.  

•  Enhance  awareness-raising  and  information  strategies  targeting  temporary 
cross-border workers, employers and subcontractors. In cooperation with national 
actors, social partners, EU institutions such as the ELA could significantly support 
such activities.  

•  The  digitisation  of  business  registers  across  the  EU  could  create  more 
transparency in the subcontracting chain. Digitisation would increase transparency 
and facilitate the identification of employers and subcontractors and the checking of 
their activities in their country of establishment. Through digital company registers, 
regulatory oversight and audit would be significantly facilitated and would contribute 
to a much faster exchange of information across borders. 

•  Consider more stringent rules at national level (in light of the possibilities offered 
by  Article  12(4)  under  national  law)  with  regard  to  the  scope  of  subcontracting 
liability, while ensuring that such provisions remain justified and proportionate This 
could include, for example: 

o 

Imposing full chain liability, regulated at national level and evaluating the 
extent to which this leads to better enforcement of working conditions and 
pay.  

1074 Y. Yorens, Cross-border EU Employment and its Enforcement, Springer, 2023, p. 432-433. 
1075 The Ministry of Labor and Inclusion and the Ministry of Trade and Fisheries of Norway, Evaluation of how public 

procurement contributes to promoting seriousness (Evaluering av hvordan offentlige innkjøp bidrar til å fremme seriøsitet), 
2022.  

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o  Extending  joint  and  several  liability  to  other  terms  and  conditions  of 
employment as set out in the PWD (e.g., to compensation for overtime work 
from the contractor, or to the provision of housing by the employer).1076 Since 
joint  and  several  liability  entails  that  a  worker  may  pursue  his/her  claim 
against  any  party  as  if  they  were  jointly  liable,  increasing  the  number  of 
obligations that entities can be liable for may be a disincentive for engaging 
in posting of workers. However, an extension of obligations beyond unpaid 
wages may also encourage entities to carry out “due diligence” procedures 
the other companies they cooperate with and select them more carefully – 
thus  encouraging  access  to  the  market  to  companies  who  comply  with 
regulations.  

•  Art.  12(5)  of  the  Enforcement  Directive mentions  that  Member  States may  provide 
that a contractor that has undertaken due diligence obligations as defined by national 
law shall not be liable. The due diligence provision in the Enforcement Directive is 
optional,  however.  The  more  Member  States  implement  such  due  diligence 
provisions,  the  more  employers  will  need  to  undertake  checks  of  activities  of  key 
subcontractors,  thus  ensuring  the  enforcement  of  subcontracting  liability  and 
promoting transparency in (long) subcontracting chains. More employers would 
be  aware  of  the  regulations  that  apply  throughout  the  subcontracting  chain  and 
cooperate (or even alert) compliance monitoring and enforcement authorities when 
regulations  (including  collective  agreements)  are  not  applied  throughout  the 
subcontracting chain.  

•  Consider a mandatory approach for Member States to include a social clause when 
procuring goods or services, and in the context of subcontracting, for this to include 
a system of direct payment to the subcontractor, or joint and several liability. 

8.3.  Access to clear and transparent information for 
employers, labour intermediaries and workers 

It is necessary and important to inform not only temporary cross-border workers about their 
rights, but also companies and labour market intermediaries about their obligations. This is a 
critical  first  step  in  the  enforcement  chain.  Insufficient  information  is  an  impediment  to 
exercising  one’s  rights  and  duties,  which  endangers  workers’  rights  and  leads  to  an 
incorrect  application  of  the  existing  rules.  Access  to  clear  information  facilitates  the 
transformation of knowledge gaps or gaps in awareness of compliance, and ultimately ensures 
a  system  that  enables  employers  to  post  workers  and  facilitates  other  forms  of  temporary 
cross-border work.  

The research conducted for this study shows that information is not always clear and easily 
accessible. There is still much room for improvement in how well companies, temporary work 
agencies, other labour market intermediaries and their workers are acquainted with their rights 
and obligations.  

Another helpful tool for improving access to information is the single official national website 
on  posting.  The  study  nonetheless  found  that  the  way  in  which  Member  States  have 
developed their national websites where this type of information is available varies greatly and 
the information published on them is sometimes incomplete and/or too complex to understand.  

1076 Ibid, p. 424.  

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The  case  study  on  the  role  of  social  partners  (Section  7.2)  shows  that  trade  unions  and 
employer  organisations  can  contribute  significantly  to  enabling  access  to  information  and 
advice  on  labour  issues to  cross-border  workers (e.g. the German  trade union  project  “Fair 
Mobility”).1077 Due to their direct access to workplaces, social partners also play an important 
role  in  reporting  and  documenting  problematic  cases  to  assist  authorities  and  labour 
inspectorates  in  the  identification  of  risks  and  conducting  risk  assessments.  This  study  has 
shown that cross-border workers are too often dependent on their employers (companies or 
labour intermediaries) and have little access to other sources of information (especially if their 
local language knowledge is limited).  

Moreover,  local  employers  should  have  more  responsibility  to  provide  accurate  and 
complete  information  to  labour  intermediaries  and  workers  about  the  exact  terms  and 
conditions that need to be applied. This, however, requires that they themselves are properly 
informed  and  can  navigate  the  complex  legal  system  regulating  temporary  cross-border 
mobility. As this report shows repeatedly, awareness and understanding of the applicable 
rules  and  regulations 
temporary  work  agency 
is  often  raised  by  employer  and 
representatives as a key challenge in implementing the existing rules.  

Possibilities for further actions at Member State and EU level   

•  Member States, with EU level support, notably from the ELA, should ensure 
that information is made available, in a clear and understandable manner, and 
that easy access to it is provided to employers and subcontractors. Information 
should be made available regarding the terms and conditions of employment to be 
respected  in  situations  involving  different  types  of  cross-border  workers.  This 
information should be made available in multiple languages, rather than simply the 
language of the receiving country.   

•  The information on the single national website on posting must be accurate 
and up-to-date, and the information on the terms and conditions of employment, in 
accordance  with  national  law  and/or  practice,  should  be  published  in  a  clear, 
complete and transparent manner and ideally accessible in several languages (to 
facilitate readability for workers and companies from abroad).  

•  Besides  the  single  official  national  website,  the  provision  of  information  can  take 
place through various other channels, such as information, guidance and support 
(in  the  national  language  of  the  person/company  concerned)  provided  by 
social partners and non-governmental organisations, which can have a key role 
in  supporting the  dissemination  of  accurate  information  and counselling  on  rules, 
rights and procedures to lodge complaints.  

•  Further  efforts  are  needed  to  improve  the  information  flow,  add  clarity  about  the 
application  of the  rules  in  general,  provide  an  overview  of  the  relevant  legislation 
and  also  tailored  assistance.  Relevant  national  authorities  (supported  by  the 
ELA)  and  social  partners  could  consider  setting  up  specialised  guidance 
services  for  employers.  These  could  provide  tailored  assistance  services  that 
explain  the  applicable  rules  to  the  particular  situations  of  employers  (including 
temporary  work  agencies).  Such  support  services  would  cover  laws  as  well  as 
collective  agreements  (which  is  where  the  systematic  involvement  of  the  social 
partners would be critical). While the level of investment in such services might be 
high  at  the  beginning,  it  could  with  time  lead  to  the  development  of  more 
automatised processes, which would increase efficiency and reduce further financial 
investment. For example, based on a range of concrete situations employers face 
and the clarifications provided by personalised assistance in a first stage, practical 

1077 More information about the German trade union project “Fair Mobility” is available at: https://www.faire-mobilitaet.de/  

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guides can then be developed and updated. These could include concrete examples 
of  situations  involving  temporary  cross-border  workers  in  different  sectors  and 
regions,  indicating  which  rules  and  collective  agreements  apply  in  cross-border 
settings and providing answers to the most frequently asked questions. 

•  Simplifying  administrative  procedures  can  improve  the  compliance  and 
decrease administrative burden related to the posting of workers. This can be 
achieved, for example, through additional investments in digitisation. Negotiations are 
ongoing at European level between the Commission and Member States regarding a 
so-called  ‘e-declaration’  at  European  level  that  could  replace  the  27  different  prior 
declaration tools. 

• 

In  addition  to  practical  guidance  on  the  application  of  rules  and  regulations,  the 
development of an EU remuneration calculator would support employers to take 
into account all dimensions of the remuneration package applicable to temporary 
cross-border workers in posting (and non-posting) situations. Based on a mapping 
of remuneration packages in the Member States and at sectoral level, the calculator 
would  include  elements  such  as  the  basic  salary,  allowances  and  benefits.  An 
example of a calculator for posted workers already exists in Switzerland.1078 Lessons 
learnt from its design and use could be used to inform the development of an EU 
remuneration calculator.  

•  Sustained  and  targeted  information  and  awareness  raising  campaigns 
coordinated across countries of origin and destination would increase access to vital 
information and redress mechanisms and encourage workers to report violations. 
Cooperation between trade unions, employers and government authorities as well 
as sustainable funding is critical in ensuring the effectiveness and success of such 
initiatives.  

•  Communication to and with posted workers could also be further improved. First, 
language  can  be  considered  as  the  most  important  aspect  when  transferring 
information.  This  can  be  a  challenge  certainly  in  posting  situations  with  many 
nationalities  present.  Second,  personal  contact  is  one  of  the  most  important 
information channels concerning posting information, and can be improved through 
information  sessions,  a  reliable  intermediary,  or  a  contact  person.  A  variety  of 
communication  channels  should  be  used,  including  printed  materials  (leaflets, 
posters),  communication  sessions,  as  well  as  materials  posted  on  social  media 
channels. Printed and digital materials should be done in the variety of languages 
appropriate to the diversity of workers’ national backgrounds. These activities can 
be large actions implemented at national, regional or local levels implemented by 
government  authorities,  trade  unions  or  other  relevant  organisations,  as  well  as 
small-scale activities in enterprises or on specific (construction) sites.  

•  Awareness  raising  campaigns  such  as  the  ELA’s  ‘Rights  for  all  seasons’  are 
important in drawing attention to the need to promote fair and safe working conditions 
for seasonal workers and for providing information to workers about the potential risks 
that they are exposed to. Equally, the EURES platform could be further utilised to 
help  with  the  placement  of  seasonal  workers,  to  remedy  the  current  problem  of 
recruitment of these workers through informal means, including dubious practices of 
labour  market  intermediaries.  For  this  to  have  most  effect  and  maximal  reach,  the 
provision of toolkits to assist employers in providing all the necessary information for 
a vacancy, as well as vacancy notices being translated into several languages, should 
be foreseen. 

1078 https://entsendung.admin.ch/app/lohn_berechnen?navId=lohn_berechnen  

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8.4.  The role of different types of labour market 

intermediaries in temporary cross-border mobility and 
problematic aspects 

Temporary work agencies and other labour market intermediaries can have a positive role in 
facilitating relations between workers and employers and more effectively matching demand 
and  supply.  However,  their  role  can  also  be  problematic  in  several  situations  involving 
temporary cross-border workers.  

As discussed in Section 4, the fact that temporary work agencies act as employers (as per 
the EU Temporary Work Agency Directive) impacts the working conditions of the workers 
concerned. The principle of equal treatment is to be applied for posted agency workers (i.e., 
the employment conditions of temporary agency workers shall be at least those that apply if 
they had been recruited directly by the undertaking to occupy the same position). However, 
Member States can derogate from this principle via collective bargaining. In cases where other 
labour market intermediaries (i.e., not temporary work agencies as defined by the EU directive) 
are  involved,  there  is  a  higher  risk  of  non-compliance  with  terms  and  conditions  of 
employment because their operation is less strictly regulated and not subject to the same 
requirements as temporary work agencies (as direct employers).  

This  study  shows  that  all  Member  States  regulate  temporary  agency  work.  Generally,  no 
differences in protection between posted workers employed by temporary work agencies and 
local  workers  employed  by  temporary  work  agencies,  were  found  in  the  law.  However,  in 
practice, this  research  has  revealed  problematic  situations involving  temporary  work 
agencies and other labour market intermediaries (that are not employers), linked to non-
compliance with rules on the posting of workers, as well as other types of temporary cross-
border workers. The evidence indicates there is a prevalence of such occurrences in specific 
sectors that rely on a mobile or temporary workforce (e.g., construction, agriculture, service 
sectors).  

This  report  has  highlighted  various  situations  in  which  the  involvement  of  labour  market 
intermediaries  and  temporary  work  agencies  has  been  associated  with  irregular  practices 
resulting in non-compliance with terms and conditions of employment (see in particular Section 
6.1). The situation is highly complex on the ground, as although the legislation distinguishes 
between temporary work agencies (as employers) and other labour market intermediaries, this 
is  a  grey  area  in  practice.  It  is  very  challenging  to  determine  which  company  should  be 
considered a ‘temporary work agency’ and which should not (e.g., based solely on their ‘official 
qualification’ versus what occurs in practice (e.g., a high number of intermediaries involved in 
subcontracting chains). When applying the PWD, the temporary work agency should respect 
the  same  terms  and  conditions  of  employment  that  would  apply  if  these  posted  temporary 
agency workers had been recruited directly by the user undertaking to occupy the same job. 
These conditions are stricter than for agencies that act only as intermediaries (i.e., they do not 
enter  in  a  direct  employment  relationship  with  the  workers  in  order  to  assign  them  to  user 
undertakings to work). In practice, the posting undertaking benefits from not being considered 
a temporary work agency as per its definition in the Directive on Temporary Agency Work and 
the PWD.  This can give rise to evasive behaviours, which are difficult to identify in particular 
in long subcontracting chains. The complexity of the existing regulations involving posted 
agency  workers  contributes  to  non-compliance.  For  example,  the  principle  of  equal 
treatment foreseen in the Temporary Work Agency Directive and the PWD is operationalised 
in  practice  differently  across  the  Member  States,  as  it  is  linked  to  national  legislation. 
Determining what falls under the ‘remuneration’ package foreseen in the PWD is, for example, 
a highly complex undertaking for temporary work agencies as well as ‘regular’ employers.  

There are indications that even for agencies or intermediaries that endeavour to respect the 
legislation, it is challenging to determine what conditions they should comply with in a 
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cross-border perspective. This is particularly the case in relation to legislation in countries that 
differ  from  those  in  which  they  are  based,  and  in  particular,  where  different  collective 
agreements  are  in  place  across  sectors  and/or  regions.  This  situation  appears  to  be  more 
challenging  for  smaller  temporary  agencies/  labour  intermediaries  (similarly  to  small 
companies), which do not have branches in other Member States. This is due to more limited 
resources  and  networks  available  to  support  the  gathering  of  information  about  existing 
regulations  and  their  implementation.  There  are,  nonetheless,  cases  where  the  complex 
legislation and limited control and enforcement create the space for some temporary 
work agencies and labour market intermediaries to evade complying with or to abuse 
regulations (and continue to operate nonetheless). 

Bogus  self-employment  is  a  practice  that  is  particularly  significant  in  competitive  markets 
with narrow profit margins and is at times linked to the involvement of temporary work agencies 
and  other  labour  intermediaries.  This  phenomenon  not  only  results  in  clear  restrictions  to 
individuals’  working  conditions  and  rights,  but  also  has  significant  financial  implications 
associated  with  the  avoidance  of  employer  social  security  contributions.  Further,  this  has  a 
negative  influence  on  competition  and  undermines  investment  in  skills,  training  and 
apprenticeships.  In  terms  of  monitoring  and  enforcement,  labour  inspectorates  and 
enforcement bodies face limitations in dealing with fraudulent activities associated with 
bogus self-employment, due to the grey area that exists between dependent employment 
and self-employment. 

Possibilities for further actions at Member State and EU level 

• 

Invest  considerably  in  enhancing  enforcement  and  monitoring  capacities 
targeting temporary work agencies and other intermediaries at national level 
(particularly labour inspections), improve cross-border data exchanges through 
the use of comparable data, and create mechanisms to facilitate the reporting 
of infringements by workers, trade unions, or employers themselves. These efforts 
should be linked to actions taken to ensure that temporary cross-border workers’ 
rights are respected in (long) subcontracting chains. As discussed in sections 8.1.3. 
and 8.1.4., it is necessary to improve data collection systems in labour inspectorates 
and other relevant government authorities at national level, to capture information 
about  the  characteristics  of  fraudulent  agencies  and  support  the  identification  of 
problematic situations.  

•  At the EU level, efforts to improve mechanisms to support the monitoring of 
the  activities  of  temporary  work  agencies  and  intermediaries  should  be 
intensified.  For  example,  a  platform  at  EU  level  where  these  aspects  could  be 
discussed  would  bring  together  and  incentivise  national  efforts.  In  the  past,  the 
European observatory on cross-border temporary agency work was such a tool, the 
main aims and activities of which could be revived and updated as part of the ELA’s 
current activities and working groups. 

• 

Increase the number and frequency of preventive and cross-border inspections 
at  Member  State  level,  targeting  subcontracting  chains  in  which  temporary  work 
agencies and other labour market intermediaries are involved, rather than focus only 
on situations in which a complaint is lodged. Bilateral cooperation can be an effective 
mechanism  to  pilot  new  approaches  to  detect  fraudulent  agencies  and  other 
intermediaries that operate in a cross-border context, apply sanctions and conduct 
effective  recovery  –  which  can  then  be  implemented  in  other  contexts.  Bilateral 
cooperation can build strong networks between inspection authorities in the Member 
States and facilitate the information flow (including through a more frequent use of 
the  IMI).  Such  instances  of  cooperation  would  also  improve  knowledge  about  the 

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other countries’ regulations, enforcement operations and procedures, and the nature 
of fraudulent agency work in a cross-border context.   

•  The effectiveness of the legal framework in place would be improved through swift 
legal and administrative actions resulting in sanctions that are proportionate to 
the violations and provide higher incentives to respect the law. These are necessary 
to tackle situations when agencies dissolve quickly following inspections that identify 
problematic aspects, which impedes effective sanctions and recovery mechanisms.  

•  The  information  from  pilot  projects  on  data  sharing  in  cross-border 
cooperation aimed at detecting and tackling social fraud should be used to inform 
approaches at scale (e.g., the project developed in 2015 in Benelux countries).1079 
The  ELA  has  an  essential  role  in  encouraging  this  coordination  and  facilitating 
mutual learning and exchanges between national authorities and stakeholders, for 
the  purposes  of  enforcing  EU  rules  on  labour  mobility  and  social  security 
coordination.  

•  The role of social partners can also be better capitalised in such situations, by 
creating cross-border sectoral networks that can systematically support the 
work of labour inspectorates to enforce compliance (e.g., through the frequent 
provision of information about cases of breaches of rights and working conditions, 
and raising awareness about the negative impact and consequences of undeclared 
work and unlawful employment). 

• 

In  relation  to  bogus  self-employment,  deterrence  and  incentive  measures 
should be used to actively combat this form of fraudulent contracting of work. 
Several  Member  States  (including  Czechia,  Finland,  France,  Germany,  Ireland, 
Luxembourg, Portugal and Sweden), have sanctions in place to requalify bogus self-
employment  into  the  appropriate  form  of  contractual  relationship.  Learnings  from 
these measures should be discussed in an EU level forum (e.g. the ELA’s Working 
Group  on 
initiatives  and  more  effective 
enforcement.  

Inspections)  and  support 

further 

•  A study that aims to collect further empirical evidence about the role and importance 
of temporary work agencies (and other labour intermediaries) in posting is needed, 
as there is still little evidence about this specific type of posting. The key areas where 
the  knowledge  base  should  be  further  developed  regard:  the  characteristics  of 
fraudulent  agencies  and  other  labour  intermediaries  (e.g.,  whether  they  are 
registered, they have substantial activities in the country of establishment, pay social 
security  contributions);  how  they  take  advantage  of  the  existing  regulations  (and 
collective agreements) and distinctions between the Member States; the prevalence 
and nature of problematic situations; and which types of regulations tend to inhibit 
or incentivise fraudulent behaviour. The study could also support the collection of 
empirical  evidence  about  the  application  of  the  new  provisions  introduced  by  the 
amended  PWD  in  relation  to  posted  temporary  agency  workers  and  assess  its 
effects,  in  particular  in  situations  involving  complex  cross-border  subcontracting 
chains.  

1079 Benelux Cross-border cooperation in detecting and tackling social fraud and error – pilot project in the Construction sector, 

available at https://www.ela.europa.eu/sites/default/files/2021-09/GP%20fiche%20Benelux_0.pdf.  

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8.5.  Posting of TCNs 

Based on available information, the phenomenon of posted TCNs (those who migrate to the 
EU and who are subsequently posted to another EU Member State in order to provide services) 
is increasing fast, driven by current labour shortages. It seems to be concentrated in a number 
of sending Member States (one could even speak of a ‘hub’), such as Slovenia, Poland and 
Lithuania, and to a lesser extent Spain and Portugal, and a few receiving Member States, such 
as Austria, Belgium, France and the Netherlands. It is also concentrated in specific sectors of 
activity such as construction, road transport, live-in care, and agriculture. TCNs in all sectors 
are,  however,  more  likely  to  be  vulnerable  to  irregular  employer  or  labour  intermediation 
practices.  

Given that their work permit is often linked to their residence permit, TCNs are less inclined to 
report any violation of their working rights, including those related to OSH, and may accept 
lower pay and dangerous working conditions for fear of bringing attention to themselves and 
losing their job. Posted TCNs are in a more vulnerable position compared to local workers but 
even compared to EU posted workers. Risks related to underpayment of wages and precarious 
living and working conditions (see Sections 6.2 and 6.5) seem to be higher for this group of 
workers.  

Different interpretations and applications of EU law and the Court of Justice of the European 
Union case law in different national contexts facilitates non-compliance and raises additional 
challenges  for  cross-border  cooperation  and  enforcement,1080  as  Member  States  have 
developed varying practices. 

Possibilities for further actions at Member State and EU level 

•  Posted TCNs should be better informed about their labour rights (e.g. through 
communication campaigns and legal assistance) in their own languages. This is a 
joint responsibility of employers, trade unions, as well as the sending and receiving 
Member States. These actions could incentivise posted TCNs to actively enquire 
about their rights and submit complains when they suspect that their rights are 
being abused.   

•  Coordination  of  these  actions  is  important,  to  ensure  consistency  and  provide 
information that is accessible and timely. The ELA’s working groups can provide the 
medium  to  discuss  and  agree  common  approaches,  in  particular  to  ensure  that 
communication campaigns reach TCNs across borders. The website designed 
by  the  European  Federation  of  Building  and  Woodworkers1081  could  serve  as  an 
example for other sectors, as it provides information on wages, working conditions 
and rights of construction workers in the Member States and in various EU and non-
EU languages.   

•  Transnational cooperation and information exchange could be improved among 
enforcement bodies as well as national level enforcement activities (as discussed in 
Section  8.1).  Given  the  varying  applications  of  EU  law  and  case  law  relevant  to 
TCNs  in  the  Member  States,  enforcement  authorities  would  benefit  from  clear 
guidance  on  these  varying  practices.  This  could  be  achieved  through  the 

1080 This is also emphasised in a recent report. European Labour Authority (2023). Report on the cooperation practices, 

possibilities and challenges between Member States – specifically in relation to the posting of third-country nationals, 
https://www.ela.europa.eu/sites/default/files/2023-04/ela-report-posting-third-country-nationals.pdf  

1081 See: https://www.constructionworkers.eu/en/al  

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development  of  a  handbook  that  summarises  the  legal  framework  and  provides 
examples of practical situations, on an ongoing basis.1082 

•  Equally,  the  systematic  collection  of  more  accurate  data  about  the  profile  of 
posted TCNs such as nationality and the type of posting1083 (e.g., through existing 
tools such as the prior notification tools) could also contribute to more precise and 
comparable information about their situation at the EU level.  

•  Clarify the conditions under which TCNs belonging to the labour market of a 
Member State can be legally posted to another Member State, as countries have 
developed varying practices. At EU level, discussions could be conducted to discuss 
the feasibility of transposing the conditions under which TCNs can be posted within 
the  EU  into  European  legislation.1084,1085  Such  a  proposal  could  also  provide  for 
specific  control  mechanisms  and  sanctions  and  include  guarantees  for  the 
safeguarding of the rights of these workers.  

•  An  evaluation  of  the  flexible  bilateral  agreements  and  permissive  entry 
regimes in some Member States (e.g., in Slovenia and Poland) could be carried 
out,  as  posting  of  TCNs  is  concentrated  in  a  small  number  of  sending  Member 
States. Additional conditions could be added to ensure that TCNs are first integrated 
in the labour market of the Member State concerned (and thus meet the needs of 
the labour market) before they can be posted to another Member State. 

1082 European Labour Authority (2023). Report on the cooperation practices, possibilities and challenges between Member 

States – specifically in relation to the posting of third-country nationals, p. 122, 
https://www.ela.europa.eu/sites/default/files/2023-04/ela-report-posting-third-country-nationals.pdf 

1083 “Posting between two companies under a service contract (‘contract of services’), posting of workers within the same group 
(‘intra-group posting’) and posting through temporary work agencies”. See Frederic De Wispelaere et al., Posting of workers 
- Collection of data from the prior notification tools - Reference year 2019, at 
https://ec.europa.eu/social/main.jsp?catId=738&furtherPubs=yes&langId=en&pubId=8416  

1084 Suggested during expert interviews conducted for this study in 2022.  
1085 See also S. Danaj, ‘The posting of third country nationals via EU Member States’, last slide: “The solution could be to find a 

way to re-regulate or restrict TCN posting.” 

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Annexes 

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Annex 1: Overview of legal measures at EU level, EU 
case law and national case law 

This annex complements Section 4 by providing a summary of key examples of case law at 
EU and national level. It also lists key EU directives and regulations that are relevant for the 
protection of cross-border intra-EU workers.  

EU measures:  

1.  Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 

concerning the posting of workers in the framework of the provision of services 

2.  Directive  2008/104/EC  of  the  European  Parliament  and  of  the  Council  of  19  November 

2008 on temporary agency work 

3.  Directive  2009/52/EC  of  the  European  Parliament  and  of  the  Council  of  18  June  2009 
providing for minimum standards on sanctions and measures against employers of illegally 
staying third-country nationals 

4.  Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on 
the enforcement of Directive 96/71/EC concerning the posting of workers in the framework 
of the provision of services and amending Regulation (EU) No 1024/2012 on administrative 
cooperation through the Internal Market Information System ( ‘the IMI Regulation’ ) Text 
with EEA relevance 

5.  Directive 2014/36/EU of the European Parliament and of the Council of 26 February 2014 
on the conditions of entry and stay of third-country nationals for the purpose of employment 
as seasonal workers 

6.  Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018 
amending Directive 96/71/EC concerning the posting of workers in the framework of the 
provision of services (Text with EEA relevance) 

7.  Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 

on transparent and predictable working conditions in the European Union 

8.  Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020 
laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for 
posting drivers in the road transport sector and amending Directive 2006/22/EC as regards 
enforcement requirements and Regulation (EU) No 1024/2012 

9.  Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 

2004 on the coordination of social security systems 

10. Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 

2008 on the law applicable to contractual obligations (Rome I) 

11. Regulation  (EC)  No  987/2009  of  the  European  Parliament  and  of  the  Council  of  16 
September  2009  laying  down  the  procedure  for  implementing  Regulation  (EC)  No 
883/2004 on the coordination of social security systems 

12. Regulation (EU) 2019/1149 establishing a European Labour Authority 

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Overview of case law at EU level  

1)  Webb (C-279/80) 

In Webb, the Court of Justice (CJEU) was asked to assess whether the supplying of manpower 
could  be  considered  as  a  ‘service’  within  the  meaning  of  Article  60  (now  Article  57)  of  the 
Treaty.  According  to  the  Treaty,  ‘service’  means  a  service  which  is  normally  provided  for 
remuneration, in so far as it is not governed by the provisions relating to freedom of movement 
for goods, capital and persons. When an undertaking hires out, for remuneration, workers who 
remain in the employ of that undertaking, where there is no contract of employment between 
them and the user, its activities constitute an occupation which satisfies the conditions of Article 
60 (now Article 57) of the Treaty. As such, this constitutes a ‘service’ within the meaning of the 
Treaty.  

Moreover, according to Article 59 (now Article 56), any restrictions to the freedom to provide 
services should be prohibited in respect of nationals of Member States who are established in 
another  Member  States,  unless  duly  justified  by  general  reasons  of  interest  and  only  if  the 
restrictions are imposed to all persons or undertakings operating in that Member State. The 
CJEU, however, recognized that the provision of manpower is a particularly sensitive matter, 
which allows Member States to put in place legislation as to regulate this service. In particular, 
in light of the differences among Member States, the provision of manpower can be subject to 
a system of licensing in order to retain control on the national labour market.   

2)  SECO (C-62-63/81) 

Two  undertakings  based  in  France  carried  out  some  works  in  Luxembourg,  temporarily 
seconding third-country national workers. For the entire duration of the work, those workers 
were affiliated with French social security. According to the Luxembourgish Social Insurance 
Code,  all  employees  working  in  Luxembourg  are  compulsorily  affiliated  for  the  purpose  of 
pension, and have to pay half of the contribution, while the remaining one contribution is up to 
the employer. The French undertakings obtained an exemption for the employees’ share of 
insurance contributions but  were  held  liable  by the  competent  Luxembourgish  institution  for 
the  employer’s  share  of  those  contributions.  The  undertaking  contested  the  requirement 
provided by the Luxembourgish legislation as it was discriminatory and likely to impede the 
freedom to provide services.  

The case was referred the Court of Justice, which agreed with the undertakings. The freedom 
to  provide  services  implies  that  when  a  service  provider  performs  its  activities  in  another 
Member  State, the  service  shall  be  provided  under the  same  conditions  as  imposed  by the 
host Member State. This implies the abolition of all direct and indirect discrimination. In the 
case at stake, the legislation obliges the employer, established in another Member State, to 
pay a share of social security contribution which he already pays in the Member State where 
he is established, for similar contributions in respect of the same workers and the same periods 
of employment. In such a case, the national legislation makes it more onerous for the employer 
established in another Member State to perform the service in that Member State. It should 
also  be  noted  that  legislation  which  requires  employers  to  pay  social  contributions  for  their 
workers which is not related to any social security benefit, may not be justified in light of the 
general interest in providing workers with social security. Furthermore, the Court refused to 
accept the Luxembourgish argument according to which, as Member States are free to refuse 
or allow third-country nationals to enter their territory to work, they may also attach to the work 
permit any conditions or restrictions. In the opinion of the Court, Member States cannot use 
the  power  to  limit  the  entry  of  third-country  nationals  to  impose  a  discriminatory  burden  on 
undertakings established in another Member State.  

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3)  Rush Portuguesa (C-113/89) 

Rush Portuguesa was a company registered in Portugal (which was not yet, at the time of the 
case,  an  EU  Member  State),  which  won  a  contract  in  France  and,  in  order  to  carry  out the 
works, brought its Portuguese workforce from Portugal. The French Labour Inspectorate, after 
inspection,  imposed  a  fine  to  the  company  for  having  employed  foreign  workers  without  a 
permit. Rush Portuguesa contested that the fine infringed its freedom to provide services within 
the Community and that freedom of movement of workers was not at stake. On the contrary, 
the French authority maintained that the freedom to provide services did not extend to all the 
employees  of  the  service  provider,  since  employees  remained  subject  to  the  arrangements 
applicable  to  workers  from  non-EU  countries  under  the  transitional  provisions  of  the  Act  of 
Accession as regards freedom of movement of workers.  

The questions referred to the CJEU were thus related to the relationship between the freedom 
to  provide  services  and  the  derogations  from  the  freedom  of  movement  of  workers.  The 
freedom to provide services precludes a Member State from prohibiting the service provider 
established  in  another  Member  State  from  moving  freely  in  its  territory  with  his  staff  and 
precludes any restrictions such as the obligation to obtain a work permit. The derogations from 
the freedom of movement of workers, on the other hand, pursuant to the Act of Accession, 
apply when Portuguese workers access the employment market of another Member State and 
serve the purpose of avoiding the risk that the employment market of the host Member State 
may be disrupted. The situation is however different when there is a temporary movement of 
workers who are sent to another Member State to carry out construction or public work as part 
of a provision of services by their employer, as the situation in the present case. In fact, as the 
CJEU  noted,  such  workers  return to their  country  of  origin  after the  completion  of  the  work 
without gaining access to the labour market of the host Member State. Moreover, the CJEU 
explained  that  Community  law  does  not  preclude  Member  States  from  extending  their 
legislation or collective labour agreements to any worker who is employed, even temporarily 
within their territory, no matter the country of establishment of the employer, nor are Member 
States prohibited from enforcing those rules by appropriate means. Therefore, it follows that 
the Portuguese undertaking, providing services to another Member State, may move with its 
own labour force for the duration of the work in question. In such a case, the authority of the 
host  Member  State  may  not  impose  on  the  service  provide  any  conditions  relating  to  the 
recruitment of manpower in situ of the obligation to obtain a work permit for the Portuguese 
work-force.  

The  CJEU  established  the  principle  that  domestic  labour  law  may  be  extended  to  posted 
workers.1086  

4)  Vander Elst (C-43/93) 

The issue in the present case is that Moroccan workers, regularly employed in Belgium, posted 
in France to carry out work for one month, were found by the French authorities not to have 
work  permits  in  France.  The  short-stay  visa  provided  by  the  employer  was  not  considered 
sufficient. According to French legislation, the penalty consisted in the payment of a special 
contribution.  

It  should  be  recalled  that  the  Treaty  requires  the  elimination,  against  a  person  providing  a 
service,  of  all  discrimination  on  the  ground  of  nationality  and  the  abolition  of  any restriction 
liable  to  impede  or  make  it  difficult  the  provision  of  the  services,  even  if  applied  without 
distinction  to  all  services  providers.  Any  national  legislation  which  makes the  provision  of  a 
service  on  the  national  territory  by  an  undertaking  established  in  another  Member  States 
subject to an administrative licence or to a payment of a fee constitutes a restriction and has 

1086  Bielinski,  Filip  and  Karla  Žeravčić,  “Posted  Workers  in  the  EU:  Lost  Conflicting  Interests  and  Single  Market  Objectives”, 
Croatian Yearbook of European Law and Policy, 2020, available at: https://www.cyelp.com/index.php/cyelp/article/view/413 
(last accessed on 02/03/2022). 

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to be duly justified by overriding reason in the general interest. In the situation at stake, the 
CJEU noted that the Moroccan workers were lawfully resident in Belgium, with a lawful work 
permit. Moreover, the short-stay visa constituted a valid documentation to remain in France for 
the  duration  of  the  work,  meaning  that  the  national  legislation  of  the  host  Member  State 
concerning  the  immigration  and  residence  of  foreigners  had  been  complied  with.  Finally,  it 
furtherly noted that the French work permits were a mandatory requirement for third-country 
nationals  to  work  in  France  when  hired  by  an  undertaking  established  in  France,  for  the 
purpose of regulating the access to the French labour market. The workers, being hired by a 
Belgian company and only temporary posted in France, were not seeking to enter the French 
labour market.  

The CJEU thus concluded that it is prohibited for a Member State to require an undertaking 
established in another Member State to obtain work permits for a third-country national who is 
lawfully employed in the Member State of origin and has valid documents permitting them to 
remain in the host Member State as long as necessary to carry out the work, if they return to 
the Member State of origin after the completion of the work.  

5)  Wolff & Müller (C-60/03)  

The CJEU ruled that Member States are required to apply appropriate measures to guarantee 
the  payment  of  the  statutory  minimum  wages  applicable  in  the  host  country.  If  national 
regulations give rise to additional administrative and economic costs and burdens, the national 
regulation affects the freedom to provide services in a negative manner. National rules can, 
however, be justified, if they are grounded in overriding requirements concerning the public 
interest. In this case, the German provision offered the posted worker the advantage of being 
able to hold a second debtor liable, who is connected to the employer and is able to pay and 
thus is appropriate to ensure the protection of posted workers. If a provision has the objective 
of  preventing  unfair  competition,  having  a  restriction  on  the  provision  of  services  may  be 
justified provided that there are overriding requirements based on public interest. 

6)  Belgium v Commission (C-433/04) 

This  case  relates  to  a  Belgian  legislation  on  the  withholding  obligation  and  on  joint  liability. 
According  to  the  Belgian  Government,  these  rules  are  part  of  a  broader  system  for  the 
prevention of tax fraud. Contrarily, the Commission considered both measures as unjustified 
and disproportionate. 

As  settled  by  case  law, no  obstacles should  be placed  on  the  freedom to  provide  services. 
However, a national legislation impeding this freedom might be justified if it falls within a non-
harmonised area at Community level, it is applicable without distinction to every persons and 
undertakings in a Member States and it relates to overriding public interests. The CJEU has 
previously  held  that  the  prevention  of  tax  avoidance  and  the  need  for  effective  fiscal 
supervision can be considered as sufficient justification. Nevertheless, the need to combat tax 
evasion does not suffice to justify the application of the withholding obligation and joint liability 
generally and on a precautionary basis to all service providers who are not established and 
not registered in Belgium. Some of those providers could, in fact, in principle not be liable for 
the taxes and deductions whose recovery the measures are designed to ensure. Additionally, 
less restrictive means exist of ensuring the recovery of taxes and deductions. Consequently, 
providers not registered and not established in Belgium might be deterred from having access 
to the Belgian market in order to provide services there, or principals and contractors might be 
deterred as well from using the services of those providers.  

For all these reasons, the CJEU considered the measures at stake as an unjustified restriction 
to the freedom to provide services.  

7)  Laval (C-341/05) and Viking Lane (C-438/05)  

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The two cases are similar and are often considered together, as they illustrate the issue of the 
interface  of  two  opposite  stances:  the  protection  of  the  social  rights  of  workers  and  the 
guarantees of the fundamental freedoms of the internal market.1087 Viking concerned the right 
of establishment, while Laval relates to freedom of establishment and posted workers.  

In the Laval case, a Latvian construction company (Laval) posted workers to Sweden to work 
for  a  Swedish  branch.  Sweden  did  not  transpose  the  Posting  Workers  Directive,  thus  the 
Latvian  posted  workers  were  paid  less  than  their  Swedish  counterparts.  Fearing  that  the 
posting  of  cheap  labour  would  threaten  the  position  of  Swedish  construction  workers,  the 
Swedish trade unions tried to convince Laval to enter into the collective agreement applicable 
to  the  category.  The  negotiations  were  unsuccessful  and  the  Swedish  trade  unions  took 
collective  action  by  blocking  all  Laval  sites,  causing  its  bankruptcy.  Latvia  brought  action 
against Sweden and the case was referred to the Court of Justice, which considered it together 
with the Viking case.  

The Viking case concerned a ferry company (Viking Line) operating a ferry between Finland 
and Estonia under the Finnish flag, which employed its workers under a collective agreement 
applicable in Finland. As the ferry was operating at a loss, Viking Line wished to reflag it as 
Estonian and tried to enter into collective bargaining with Estonian trade unions. However, the 
Finnish trade union objected and started industrial action. The issue of whether Viking Line 
could rely on the right to freedom of establishment to challenge actions taken by a trade union 
was finally referred to the CJEU.  

According to the opinion given by the Advocate General, the blocking of the Laval working site 
could have been considered acceptable because it was motivated by public interest objectives, 
such as the protection of workers and the fight against social dumping, and it was not carried 
out  in  a  disproportionate  manner.  However,  the  CJEU  did  not  follow  the  AG’s  opinion.  It 
considered that the right to take collective action must be recognised as a fundamental right, 
part of the general principles of the Community law and taking actions against social dumping 
may constitute a reason of public interest. Nevertheless, it has to be exercised in a manner 
compatible with Community law. Since the blocking of the working site is seen as a restriction 
of the freedom to provide services and of the freedom of establishment, it could have been 
considered lawful only if it was sufficiently justified and proportionate. The issue of determining 
if the industrial action was justified and proportionate was left to national courts.  

The CJEU came to the same conclusion in the Viking case and it furtherly provided guidance 
on how to assess whether the collective action was justified and proportionate. The CJEU held 
that the right to take collective action for the protection of workers is a legitimate interest, which 
might, in principle, justify a restriction of the fundamental freedoms. However, it should be up 
to  national  courts to  verify  whether  other  less restrictive means  were  available  and  if  those 
have practically been exhausted.  

8)  Commission v Luxembourg (C-319/06) 

The Commission considered that Luxembourg failed to fulfil its obligations under Article 3(1) 
and Article (10) of Directive 96/71, as the national Law of 20 December 2002 was found to be 
incompatible with Community law. In particular, that law was said to: (1) require undertakings 
established  in  another  Member  State  which  posted  workers  to  Luxembourg  to  comply  with 
terms and conditions of employment going beyond the requirements of Article 3(1) and 10 of 
the Directive, (2) fail to ensure that posted workers are afforded any other rest period (daily 
rest  period)  entitlement  apart  from  the  weekly  rest  period,  (3)  lack  clarity  by  requiring 
undertakings  posting  workers  to  Luxembourg  to  make  available  to  the  Labour  and  Mines 
Inspectorate prior to the commencement of work on demand and within as short a period as 
possible the basic information necessary for monitoring purposes, and (4) restrict freedom to 

1087 Ibid. 

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provide services by requiring undertakings whose registered office is outside the territory of 
the Grand Duchy of Luxembourg or which do not have a permanent establishment there to 
keep  the  documents  necessary  for  monitoring  purposes  with  an  ad  hoc  agent  resident  in 
Luxembourg.  

In relation to the first argument, it should  be recalled that Article 3(1) sets out an exhaustive 
list of matters in respect of which the law of the host Member State shall apply, while Article 
3(10) provides that Member States may require of undertakings which post workers to their 
territory, terms and conditions of employment on matters other than those referred to the first 
subparagraph of Article 3(1), in the case of public policy provisions. Luxembourg contested 
that  the  Law  of  20  December  2020  contained  provisions  under  the  national  public  policy. 
However, the public policy exception is a derogation from the main principle of Article 3(1), and 
for this reason, it shall be interpreted strictly. It constitutes also a restriction to the freedom to 
provide  services,  which,  as  a  fundamental  principle  of the  Treaty,  can  be  restricted  only  by 
overriding  requirements  relating  to  the  public  interest  and  applicable  to  all  persons  and 
business. The requirements in place in Luxembourg (i.e., the automatic adjustment of rates of 
remuneration to the cost of living, the rules on part-time and fixed time work, the imperative 
provisions in respect of collective agreements) were not considered by the CJEU to constitute 
public policy exceptions within the meaning of Article 3(10).  

Moreover, in relation to the third and fourth complaints, the CJEU found that both requirements 
had the effect to dissuade undertakings wishing to post workers in Luxembourg to exercise 
their  freedom  to  provide  service.  The  national  law  of  Luxembourg  was  consequently  found 
incompatible with Community law.  

9)  Rüffert (C-346/06) 

This case concerns the definition of ‘universally applicable collective agreements’ (Article 3(8) 
of the PWD). 

Lower  Saxony  had  a  rule  that  obliged  public  authorities  to  award  contract  works  only  to 
undertakings paying at the least the remuneration laid down in the local collective agreement. 
A company that won the public tender contract only agreed to pay half of the amount that was 
stipulated in the applicable collective agreement. The was referred to the CJEU which decided 
that the collective agreement fell outside the scope of the Directive as it had not been declared 
universally  applicable  pursuant  the  Directive.  Germany  did  not,  in  fact,  have  a  system  for 
declaring collective agreements universally applicable and this agreement was not generally 
applicable to all similar undertakings in the geographical area and in the profession/industry 
concerned (as stated in Article 3(8)).  

With this decision, the CJEU narrowed the specific types of collective agreements falling within 
the scope of the Directive, excluding the application of agreements which are generally binding 
only de facto to posted workers.1088  

This  case  is  quite  sensitive  as  it  also relates  the  possibility  of Member  States to  use  public 
procurement as a tool for non-economic objectives. The CJEU, however, specifically stated 
that  minimum  wages’  provisions  contained  in  collective  agreements  which  have  not  been 
declared universally applicable are not applicable to posted workers.1089 

1088 Costamagna, Francesco, “The Revision of the Posted Workers Directive as a Meaningful Way to Curb Regulatory Competition 
the  Social  Domain?”,  Sant’Anna  Legal  Studies,  STALS  Research  Paper  2/2019,  available  at: 

in 
https://ssrn.com/abstract=3422858, (last accessed on 02/03/2022). 

1089 Ibid.  

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10) Sähköalojen ammattiliitto/ESA (C

396/13) 

A Polish company (ESA), with a Finnish branch, hired, under Polish law, workers that were 
subsequently  posted  in  the  Finnish  branch.  ESA  did  not  pay  the  minimum  remuneration 
required under Finnish collective agreements, therefore workers addressed their claims to the 
Finnish trade union (Sähköalojen ammattiliitto).  

‐

The  case  was  referred  to  the  CJEU  for  a  preliminary  ruling.  The  subject-matter  of  the 
proceedings related to the determination of the scope of the concept of ‘minimum rates of pay’ 
pursuant to Directive 96/71. There were no doubts, according to the CJEU, that, as prescribed 
by Article 3(1) of Directive 96/71, the minimum rates of pay are governed by the law of the 
Member States in which the workers are posted, therefore, in the present case, Finland.  

Furthermore,  the  CJEU  was  also  requested  to  determine  if  the  minimum  rates  of  pay,  as 
considered in the Directive, could cover some additional elements as provided in the national 
legislation (i.e., basic hourly pay according to pay groups, guaranteed piecework pay, holiday 
allowance,  flat-rate  daily  allowance  and  compensation  for  daily  travelling  time).  The  CJEU, 
recalling the main objectives of Directive 96/71, the need to ensure a fair competition between 
national and trans-national undertakings and the aim to guarantee the minimum protection of 
posted workers, noted that Directive 96/71 has not provided for an harmonisation of rules, but 
it gives some information concerning the content. In fact, Article 3(1) refers to the national law 
or practice of the Member State in which workers are posted for the definition of the minimum 
rates of pay. Therefore, subject to the specifications provided in Article 3, it is up to Member 
States to define the elements of the minimum rates of pay, as long as this does not have the 
effect  of  impeding  the  freedom  to  provide  services.  After  an  examination  of  the  various 
elements referred to by the national court, the CJEU concluded that the reimbursement of the 
cost  of  accommodation  and  the  meal  voucher  daily  allowance  are  not  to  be  considered  as 
elements of the minimum wage, while daily allowance and the pay for the minimum annual 
holidays are parts of the minimum wage. In relation to compensation for day travelling time, it 
could be considered an element of the minimum wage, provided that the daily journey to and 
from the place of work is more than one hour’s duration, which is up to the national court to 
verify. Lastly, the CJEU expressed its opinion on the Finnish system based on a calculation of 
the minimum wage for hourly work and/or for piecework which is based on the categorisation 
of  employees  into  pay  groups,  noting  that  nothing  in  the  Directive  precludes  its  application, 
provided that the relevant rules applicable to the system are binding and transparent, which is 
for the national court to verify.  

11) Bundesdruckerei GmbH v Stadt Dortmund (C-549/13) 

In the present case, similarly to the one above, the CJEU ruled out the possibility to apply rules 
on  minimum  wages  in  case  of  cross-border  provision  of  services,  as  it  was  considered 
incompatible with the fundamental freedom to provide services.1090 

The case concerned a German law providing that the successful tenderer for a public contract 
should guarantee a minimum wage also for workers employed by a subcontractor established 
in another Member State (in this case, Poland) and who would carry out the work exclusively 
in  that  State.  The  law  constituted  a restriction  of  the freedom  to  provide  services,  as  it  was 
likely to constitute an additional economic burden for the undertaking in question, which would 
render  less  attractive  the  provision  of  services  in  the  other  Member  State.  Such  restriction, 
however, might have to in principle be justified by the objective of protecting employees, but 
as  it  was  only  applicable  to  public  contracts,  it  was  considered  not  appropriate  for  the 
achievement of that objective.  

1090 Ibid. 

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12) Regiopost case (C-115/14) 

The case concerns a German undertaking participating in a public tender in a German city. 
However, the case was referred to the Court of Justice, which confirmed its jurisdiction, as it 
related to a matter of interpretation of a national law in light of Article 56 TFEU.  

The matter, in fact, concerned the interpretation of Directive 2004/18, on procedures for the 
award  of  public  work  contracts.  The  CJEU  was  asked  to  determine  if  a  national  legislation 
requiring  tenderers  and  subcontractors  to  pay  their  workers  a  minimum  wage  should  be 
considered  contrary  to  Article  26  of  Directive  2004/18.  Article  26  stipulates  that  special 
conditions related to the performance of the public work contract are admissible, provided that 
these are compatible with Community law and are indicated in the contract notice. The CJEU 
noticed that, in order to verify if the special condition at stake is compatible with Community 
law  (e.g.,  it  is  not  discriminatory),  it  is  necessary  to  determine  whether,  in  cross-border 
situations, the minimum conditions  of  Directive  96/71  are  observed. It  should  be  noted that 
minimum wage is not the same everywhere, thus there might be Member States with lower 
minimum wage, which could be impeded from having access to the public contract of the host 
Member State. However, the CJEU noted that the requirement, as laid down in law and thus 
generally  applicable  to  any  public  contracts  in  the  specific  region  (contrary  to  the  ruling  in 
Rüffert, see above), conferred a minimum social protection for workers and therefore could be 
justified by the objective of protecting workers.  

13) Danieli (C-18/17)  

Danieli  is  an  Italian  company,  which  accepted  an  order  from  an  Austrian  company  for  the 
construction of a wire rod mill in Austria. Danieli wished to hire out four Croatian workers and 
a  Russian  and  a  Belarusian  to  perform  this  work.  The  company  was  part  of  a  group  of 
companies, which included another Italian and a Croatian company. The Italian company was 
the direct employer of the Russian and Belarusian workers, while the Croatian one was the 
employer of the Croatian workers. Danieli made a request for posting to Austria its workers, 
but  the  competent  Austrian  authority  did  not  authorise  the  posting  on  the  basis  that  Article 
1(3)(a)  of  Directive  96/71  requires  “an  employment  relationship  between  the  undertaking 
making the posting and the worker during the period of posting” and that a work permit was 
thus required. Since all the workers were not directly employed by Danieli, this requirement 
was missing.  

The case reached the CJEU, which was asked to determine if it was possible to require a work 
permit  for  Croatian  posted  workers  employed  by  a  Croatian  company,  where  the  posting 
involves their hiring-out to a company established in Italy (being no employment relationship 
between the latter company and the posted workers) with a view to provide services in Austria. 
The same question was asked in relation to the third-country national posted workers.  

The CJEU firstly noted that Article 1(3)(c) of Directive 96/71 could be considered relevant for 
the case. According to the case-law, this provision of the Directive can be held applicable when 
three  conditions  are  satisfied:  (i)  the  hiring-out  of  manpower  is  a  service  provided  for 
remuneration and the worker remains in the employ of the undertaking providing the service; 
(ii) the hiring-out is characterised by the fact that the movement of workers constitutes the very 
purpose of the provision of the services by the undertaking providing the service; (iii) the user 
undertaking maintains the control and discretion over the employees hired out. In the situation 
at stake, it was evident that the Croatian workers remained contractually bound by the Croatian 
undertaking,  which  posted  them  to  Danieli  against  payment.  In  the  same  way,  it  was  also 
evident that the provision of services agreed by the Croatian company and Danieli was the 
posting of workers for the purpose of performing work in Austria and that during their posting 
to Austrian, the posted workers carried out their tasks under Danieli’s control and direction. 
Therefore, the CJEU confirmed that the operation envisaged in the present case constitutes a 
provision of services involving the temporary movement of workers pursuant Article 1(3)(c) of 
Directive 96/71. However, it should be noted that at the time of the case at stake, Croatia was 

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in the process of accessing the European Union. According to its Act of Accession, Member 
States could restrict the free movement of workers for the purpose of regulating their national 
labour market. In light of this, the CJEU concluded that Austria was entitled to require a work 
permit for the Croatian posted workers.  

Furthermore, the CJEU provided guidance also in relation to the posting of the third-country 
nationals.  It  recalled  that  any  administrative  requirements  making  the  provision  of  services 
more difficult for a service provider established in another Member State constitute a restriction 
to the freedom to provide services. However, since the posting of third-country nationals in the 
framework of the cross-border provision of services has not been harmonised at EU level, such 
measures could be justified if there is a general objective of public interest. A valid justification 
could be the need to avoid disturbances on the national labour markets. Nevertheless, posted 
workers who are hired out by a user undertaking for the purposes of conducting work for a 
specific period and that return to their country of origin after the completion cannot constitute 
a  disturbance  for  the  national  labour  market.  Moreover,  requiring  a  work  permit  for  those 
posted workers, goes beyond what is necessary to achieve the objective of keeping control on 
the labour market, as there are less intrusive measures that could achieve the same goal. On 
this  basis,  the  CJEU  concluded  that  no  restrictions  to  the  posting  of  the  two  third-country 
nationals could have been imposed.  

14) Dobersberger (C-16/18)  

The Austrian Federal Railways awarded for a period a contract for the provision of services to 
an  Austrian  undertaking,  which,  however,  subcontracted  the  work  to  an  Hungarian 
undertaking. All workers employed for the purpose of that contract were Hungarian and carried 
out the main part of the work in Hungary (as they start and finish their shift in Hungary), with 
the  exception  of  some  checks  that  needed  to  be  carried  out  on  trains.  The  director  of  the 
Hungarian undertaking, as the employer of Hungarian workers posted in Austria in order to 
carry out checks on train, was found not compliant with Austrian legislation.  

The  CJEU  was  requested  to  determine  if  Article  1(3)  of  Directive  96/71  also  covers  the 
provisions of on-board services for passengers on trains carried out by workers established in 
the Member State of posting (Hungary) in performance of a contract with a railway undertaking 
established  in  the  host  Member  State  (Austria)  when  these  services  are  provided  in 
international trains, which also travel through the host Member State. Moreover, it was asked 
if Directive 96/71 also covers situations, as the one in the present case, where the undertaking 
providing  the  service  has  a  contract  not  with  the  recipient  undertaking  but  with  another 
undertaking based in the host Member State, which, in turn, is in a contractual relationship with 
the recipient undertaking (situation of subcontracting chain). 

The CJEU recalled that, pursuant to Directive 96/71 workers cannot be considered as posted 
if the performance of their work does not have sufficient connection with the territory of the 
host Member State. In the case at stake, where workers carry out only a very limited part of 
their work in Austria, and they start and finish their shifts in their Member State, workers cannot 
be  regarded  as  ‘posted’,  therefore  Directive  96/71  shall  not  apply.  Therefore,  the  CJEU 
concluded that Directive 96/71 does not apply to employees of an undertaking established in 
a Member State who provide on-board, cleaning or food and drink services on international 
trains crossing the Member State of the railway operator concerned, where those workers carry 
out a significant part of the work inherent in those services in the territory of the Member State 
in which their undertaking is established and where they begin or end their shifts there. 

In light of this, it was irrelevant whether the provision of services is covered, in the context of 
a subcontracting chain, by a contract concluded with an undertaking established in the same 
Member State as that of the railway operator which is contractually linked to the latter. Nor is 
it relevant if the undertaking assigns workers to supply services who have been hired out to it 
by an undertaking established in the same Member State as its own.  

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15) Hungary  v  Parliament  and  Council  (C-620/18)  and  Poland  v  Parliament  and 

Council (C-626/18) 

Hungary and Poland brought actions in front of the CJEU seeking the annulment of Directive 
2018/957.  Directive  2018/957  amended,  inter  alia,  Article  3(1)  of  Directive  96/72/EC,  which 
regulates terms and conditions of employment of posted workers. In light of the new provisions, 
posted workers are entitled to the ‘remuneration’ fixed by the legislation of the host Member 
States,  instead  of  the  ‘minimum  rates  of  pay’.  Moreover,  where  the  effective  duration  of  a 
posting  exceeds  12  or  18  months,  all  the  terms  and  conditions  of  employment  of  the  host 
Member States would become applicable to the posted workers. Consequently, Hungary and 
Poland contested the revision of the Posted Workers Directive, relying on the choice of a wrong 
legal basis (namely Article 53(1) and 62 TFEU) and on the infringement of Article 56 (freedom 
to provide services) and the Rome I Regulation. 

Regarding  the  first  ground,  the  CJEU  held  that  the  revision  is  an  amendment  of  existing 
legislation (the PWD 96/71/EC), thus the legislator could rely on the same legal basis, which 
allows, in particular, the adoption of directives seeking to make it easier to exercise the freedom 
to provide services. It is open to the EU legislature to tweak and adjust the balance inherent in 
the  PWD,  by  enhancing  the  rights  of  posted  workers  in  the  host  Member  State  so  that 
competition  between  the  undertakings  posting  workers  to  that  Member  State,  and  the 
undertakings established in that State, could develop on a more equal and level playing field. 

Secondly, the CJEU found that no infringement to Article 56 occurred. The Directive does not 
remove  any  competitive  advantage  which  might  be  enjoyed  by  services  providers  in  some 
Member States, as it has in no way the effect of eliminating all competition based on costs.   

Thirdly, the CJEU recalled that, in order to challenge a piece of legislation with an action of 
annulment, the law in question shall infringe the EU Treaties or the EU general principles of 
law or it is vitiated by a misuse of powers. However, it shall be noted that the EU legislature 
has  a  broad  discretion  in  an  area  such  as  the  posting  of  workers,  which  involves  political, 
economic and social aspects. Therefore, the CJEU held that no manifest error was committed 
by the EU legislator when regulating the consequences of a posting for more than 12 months. 

Lastly, in relation to the alleged violation of Rome I Regulation, despite the rule providing that 
the individual employment contract is to be governed by the law of the country in which the 
employee  habitually  conducts  the  work,  Article  23  provides for  an  exception.  This  provision 
regulates that where provisions of EU law lay down rules on the law applicable to contractual 
obligations, these should apply.  

16) FNV v Van den Bosch (C-815/18)  

The ruling confirmed that transport workers can also be posted workers, correcting the position 
that it held in Dobersberger (C-16/18). The test of ‘sufficient connection to the territory of the 
receiving state’ needs to be applied and the workers need to fulfil the conditions before they 
can benefit from the protection of the host state.  

The  CJEU  clarified  that  this  test  requires  ‘an  overall  assessment  of  all  the  factors  that 
characterise the activity of the worker concerned’, such as the nature of the activity, the degree 
of  connection  between  the  activity  and  the  territory  of  the  ‘host’  Member  State,  and  the 
proportion  of  this  activity  in  the  entire  transport  service.  For  example,  a  driver  who  merely 
transits through a country cannot be considered posted to it. 

17) Team Power Europe (C-784/19) 

Team  Power  is  an  undertaking  established  under  Bulgarian  law  which  provides  temporary 
employment  and  work  placement  services  (i.e.,  temporary  work  agency)  and  which  posts 
workers  to  Germany.  Concluding  a  contract  of  employment  with  a  Bulgarian  citizen,  it  was 
agreed that the employee’s duties were to be specified by the hirer company but that Team 

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Power would cover his salary. The issue arose from the refusal of the administrative authority 
to issue a certificate confirming that the employee was subject to Bulgarian social security law 
during the period of posting. According to the competent authority, in fact, the two cumulative 
conditions were not met: no direct relationship between the employee and the employer was 
maintained, and the employer could not be considered to pursue a significant proportion of its 
activity in Bulgaria (as its main source of revenue was to post workers in Germany).  

The Court of Justice was thus called to determine whether, in order to assume that a temporary 
work agency normally carries out its activities in the Member State in which it is established, 
the  agency  has  to  perform  a  substantial  part  of the  employee  assignment  activity for  hirers 
established in the same Member State. In order to do so, the CJEU had to interpret the concept 
of ‘the normal carrying out of activities’. The activities should be ‘significant activities’ and not 
‘purely  internal  management  activities’.  A  typical  activity  of  a  temporary  work  agency  is  to 
supply  staff  to  a  user  or  hirer  undertaking,  but  this  activity  implies  selecting,  recruiting  and 
hiring  of  workers.  According  to  the  CJEU,  all  the  activities  which  concern  the  selection  of 
workers to be supplied, are to be considered ‘significant activities’ for a temporary work agency. 
Therefore, in the present case, Team Power Europe was carrying out its substantial activities 
in  the  sending  State,  i.e.,  Bulgaria,  as  that  was  the  location  of  its  staff  and  organisational 
structure. Consequently, the proportion of workers that the agency posts to another Member 
State in relation to those who are assigned to undertakings established in Bulgaria is irrelevant. 
Nevertheless, the CJEU recalled that this should not constitute fraud or abuse of rights, which 
could undermine the right of posted workers to benefit from the social security. In fact, in this 
case, accepting that Team Power Europe carried out a substantial part of its activities in the 
Member State where it is established, would have entailed the risk of encouraging temporary 
agencies to choose the Member State in which they wish to establish on the basis of the most 
favourable social security legislation.  

Therefore,  the  CJEU  concluded  that,  in  order  to  be  considered  as  ‘normally  carrying  out 
activities’ in a certain Member State, a temporary work agency must conduct a significant part 
of its activities, related to making temporary agency workers available to user undertakings, 
established and operating in that Member State.  

18) Rapidsped (C-428/19) 

The applicants in the main proceedings were international transport vehicle drivers who had 
been posted from Hungary to France on a regular basis. The applicants brought a claim before 
the Gyulai Törvényszék (Gyula High Court, Hungary) against their employer, arguing that their 
wage during the posting was much lower than the applicable French minimum wage and thus 
their employer was in contravention of Article 3(1) of Directive 96/71/EC. The Court of Justice 
was thus called to answer the following: (1) whether the Directive needs to be interpreted as 
applicable to the transnational provision of services in the road transport sector; (2) whether 
Article 1(1) of the Directive read in conjunction with Articles 3 and 5 be read to mean that a 
breach by an employer established in one Member State of a different Member State’s laws 
regarding  the minimum wage may be relied upon against the aforementioned employer by 
workers posted by the initial Member State before a court of that State; (3) does the second 
paragraph  of  Article  3(7)  need  to  be  read  to  mean  that  a  daily  allowance  which  covers 
expenditure  incurred  during  the  posting  of  workers  abroad  must  be  deemed  a  part  of  the 
minimum  wage;  (4)  and  lastly  whether  Article  10  of  Regulation  No  561/2006  needs  to  be 
interpreted in such a manner to prevent a road haulage undertaking from granting drivers a 
bonus  calculated  based  on  the  savings  made  in  the  form  of  reduced  fuel  consumption 
concerning  the journey made.  

In relation to the first question, referring to the above mentioned case FNV v Van den Bosch 
(C-815/18), the  CJEU confirmed that the Directive is applicable to the transnational provision 
of services in the road transport sector.  

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Furthermore, the CJEU recalled that, in order to guarantee a minimum protection for posted 
workers, whatever the law applicable to the employment relationship, Member States need to 
ensure that all workers are equally treated. Thus, Articles 3(1) and Article 6 read together in 
conjunction with Article 5 of that Directive must be interpreted to require that a breach by an 
employer established in one Member State of a different Member State’s legislation regarding 
minimum wage can be relied upon against the employer by the workers that have been posted 
from the first Member State before the Court of that Member State, provided that that court 
has jurisdiction, which is up to national courts to determine.   

The second subparagraph of Article 3(7) makes it clear that a daily allowance is ‘specific to the 
posting’  being  part  of  the  minimum  wage  if  it  is  not  paid  to  workers  in  reimbursement  of 
expenditure  actually  incurred  on  account  of the posting.  In  the  present  case, the  allowance 
differs according to the period of posting, it consist in a lump-sum and thus seems to aim at 
providing compensation for the disadvantages of the posting more than covering the actual 
costs  of  posting.  However,  the  CJEU  does  not  have  all  the  information  for  conducting  an 
assessment in this regard. It is thus up to the referring Court to make sure that such allowance 
constitutes an allowance specific to the post and forms part of the minimum wage,  provided 
that it is not paid in reimbursement of expenditure incurred by way of the posting, in the form 
of travel, board or lodging or provided it does not correspond to an allowance which changes 
the relationship between the service provider by the worker and the consideration they receive 
in return.  

Regarding Article 10(1) of Regulation (EC) No 561/2006 has to be interpreted as not preventing 
in  principle  a  road  haulage  undertaking  from  issuing  drivers  a  bonus  based  on  the  savings 
made in the form of reduced fuel consumption regarding the journey made. Such bonus would 
either way, violate the prohibition enshrined in that provision, if instead of it being related for 
the sole purpose of saving fuel, it rewarded said saving based on the distances travelled and/or 
the amount of goods carried in such a manner to encourage the driver to behave in a way that 
could threaten road safety or violates Regulation No 561/2006. 

19) Bezirkshauptmannschaft (C-219/20) 

A  Slovakian  company  posted  workers  to  a  company  established  in  Austria.  Following  an 
inspection,  the  Austrian  authority  imposed  a  fine  on  the  Slovakian  company  for  failure  to 
comply with a number of obligations laid down by Austrian employment law in respect to posted 
workers. In particular, the legislation regulated penalties in case of underpayments covering 
several  pay  periods  and  laid  down  a  limitation  period  for  the  administrative  offence  of  five 
years, which required the retention of evidence of payment of wages for several years.  

The  Court  of  Justice  was  firstly  referred  to  (C-219/20),  in  order  to  determine  if  Article  5  of 
Directive  96/71,  in  conjunction  with  Article  47  of  the  Charter,  should  be  interpreted  as 
precluding national legislation providing for a five-year limitation period for failure to comply 
with obligations relating to the remuneration of posted workers. The national court considered 
the  five-years  period  as  particularly  long  for  such  offence,  additionally  requiring  the 
considerable burden to retain all the proofs of payment. The CJEU noted that Article 5 allows 
Member  States  to  determine  the  appropriate  penalties  and  do  not  lay  down  any  limitation. 
However, Member States have the duty to respect the principle of equivalence in respect of 
similar domestic situations and to comply with the principle to an effective remedy (Article 47 
of the Charter). The right of an effective remedy implies that both parties should have equal 
opportunity  to  present  their  case  in  the  same  circumstances.  In  a  situation  of  cross-border 
nature,  as  the  one  at  stake,  proceedings  are  likely  to  be  longer  and  the  work  of  national 
authorities more complex, which therefore requires a longer limitation period. In light of what 
provided for in Directive 96/71, and of the importance attributed to the minimum wage, service 
providers  can  reasonably  expect  to  be  obliged  to  retain  evidence  of  payment  of  wages  to 
posted  workers  for  several  years.  In  these  circumstances,  the  CJEU  concluded  that  such 
national limitation was not in contrast with EU law.  

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20) Staatssecretaris  van  Justitie  en  Veiligheid  (C-540/22)  –  case  status:  open, 

preliminary question asked 

The applicants, 44 Ukrainian nationals, holding a Slovak temporary residence permits were 
posted by a Slovak company to the Netherlands to carry out the work for the Dutch client. The 
Slovak company informed the Dutch authorities that the duration of the Ukrainian nationals’ 
work  would  exceed  the  duration  of  the  Schengen  circulation  right  (90  days  out  of  180).  In 
addition  to  that,  the  Slovak  company  was  also  required  to  apply  at  for  residence  permits 
Immigratie-  en  Naturalisatiedienst  (Immigration  and  Naturalisation  Service;  “IND”)    for  the 
purposes of cross-border provision of services at the for each of mentioned posted workers 
and to pay the required fees. However, the period of validity of the residence permits granted 
was limited to the period of validity of the applicants’ Slovak residence permits. Therefore, it 
was shorter than the duration of the work for which the applicants were posted. The Ukrainian 
posted  workers  claimed  that  the  State  Secretary  caused  an  unjustified  restriction  on  the 
freedom to provide services by firstly, requiring the application for residence permit based upon 
already provided information that resulted in duplication of the procedures. Secondly, by the 
fact that the required residence permit was not linked to the duration of the right of residence 
in the Member State in which the service provider is established, but to the probable duration 
of the provision of services in the Netherlands. The State Secretary responded that his actions 
were  motivated  by  the  need  to  protect  the  Dutch  nationals  in  the  labour  market  in  the 
Netherlands. Moreover, according to State Secretary, residence permits provide legal certainty 
as they prove the lawfulness of the posting of the workers process. 

Rechtbank  Den  Haag,  zittingsplaats  Middelburg  (Netherlands)  referred  the  following 
preliminary  questions    to  the  Court  of  Justice:  (1)  whether  the  free  movement  of  services 
guaranteed  by  Articles  56  and  57  TFEU  include a  right  derived therefrom  of  residence  in a 
Member  State  for  third-country  workers  who  may  be  employed  in  that  Member  State  by  a 
service  provider  established  in  another  Member  State  (2)  if  not,  where  the  duration  of  the 
provision  of  services  exceeds  three  months,  does  Article  56  TFEU  preclude  an  application 
having to  be made for  a residence  permit  for each  individual  worker  in  addition  to  a simple 
obligation  to  declare  on  the  part  of  the  service  provider  (3)  if  not,  does  Article  56  TFEU 
preclude: a) a provision of national law that the period of validity of such a residence permit 
may  not  exceed  two  years,  irrespective  of  the  duration  of  the  provision  of  services  b)  the 
limitation of the period of validity of such a residence permit to the period of validity of the work 
and  residence  permit  in  the  Member  State  in  which  the  service  provider  is  established  c) 
charging a fee per (renewal) application which is equal to the fee payable for a regular work 
permit for a third-country national, but five times higher than the fee payable for proof of lawful 
residence for a Union citizen. 

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Table 5. Overview of national case law1091 

Country 

legal  provisions  applicable 

Judgements concerning the non- respect 
to 
of 
the 
temporary 
workers 
employed  (posting  situation  and  non-
temporary  work 
posting  situation)  by 
agencies  and/or  other 
labour  market 
agencies 

cross-border 

Judgements concerning the non-respect 
of  legal  provisions  applicable to  posted 
workers in subcontracting chains 

Judgements  concerning 
the  non-
respect  of  legal  provisions  applicable 
to posted third-country nationals 

Other 

BE 

Unpublished  case  law  based  on  Nevens 
(2019):  

Unpublished  case 
Nevens (2019):  

law  based  on 

Unpublished  case 
Nevens (2019):  

law  based  on 

Not identified. 

1)  Corr  Oost-Vlaanderen 

maart 
GE69.98.417-18  

2019, 

nr. 

(Gent)  6 
2019/713, 

Arbeidshof  te  Brussel  -  arrest  nr  N-
(2015/CB/7)  dd.  21 
20161021-4 
oktober 20161093 

Corr.  Oost-Vlaanderen  (Gent)  4  mei 
2016/1456, 
2016, 
GE69.98.2152/20151094 

nr. 

2)  Corr  Oost-Vlaanderen  (Gent)  19 
december  2018,  nr.  2018/3685, 
16RG7706  

3)  Arbrb.  Antwerpen  (Turnhout)  16 

oktober 2017, nr. 16/878/A 

4)  Arbeidshof te Brussel - arrest nr N-
20161021-4  (2015/CB/7)  dd.  21 
oktober 20161092 

5)  Corr. Oost-Vlaanderen (Gent) 4 mei 
2016/1456, 
nr. 

2016, 
GE69.98.2152/2015  

1091 Compiled based on information gathered by national legal experts through desk research in the 27 Member States, consulting national websites. The list of cases does not include those 

which are relevant to social security. The list may not be exhaustive. 

1092 Arbeidshof te Brussel - arrest nr N-20161021-4 (2015/CB/7) dd. 21 oktober 2016 https://www.stradalex.com/nl/sl_src_publ_jur_be/document/ArbeidsH_N-20161021-4 
1093 ‘Belgische rechtspraak over de Detacheringsrichtlijn nr. 96/71 en de ROME I-verordening nr. 593/2008’, in H. Verschueren (ed.), Nieuwe ontwikkelingen in het Europees recht vanuit Belgisch 

en Nederlands perspectief, die Keure: Brugge, pp. 97-146. Available at:   https://www.diekeure.be/nl-be/professional/10170/detachering 

1094 Nevens, K. (2019), ‘Belgische rechtspraak over de Detacheringsrichtlijn nr. 96/71 en de ROME I-verordening nr. 593/2008’, in H. Verschueren (ed.), Nieuwe ontwikkelingen in het Europees 

recht vanuit Belgisch en Nederlands perspectief, die Keure: Brugge, pp. 97-146. Available at:   https://www.diekeure.be/nl-be/professional/10170/detachering 

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DE 

BAG,  24.06.2021  -  5  AZR  505/20: 
Minimum  wage  for  posted  foreign  care 
workers: 
the  Federal  Labour  Court 
(Bundesarbeitsgericht,  BAG)  dealt  with 
the  question  of  whether  foreign  care 
workers posted to a private household in 
Germany  are  entitled  to  the  statutory 
minimum  wage  for  hours  worked.  The 
BAG  answered  in  the  affirmative,  stating 
that  the  minimum  wage  entitlement  also 
applied to periods of on-call duty. 

Mall  of  Berlin  case:    the  scope  of 
the German liability regulations is still 
an 
court 
interpretation 

contested 

object 

of 

Not identified 

Not identified 

DK 

FV2016.0202 Malerforbundet i Danmark 
mod Danske Malermestre for One4 All 
ApS1095 

FV2016.0202  Malerforbundet 
i 
Danmark mod Danske Malermestre 
for One4 All ApS1096 

VestreLandsretsdom (Western High 
Court  Ruling),  22  September  2014, 
V.L. S-2220-131100 

Not identified. 

underpayment, 

Concerning 
Polish 
workers  were  not  subcontractors  but  in 
reality under the instruction and control of 
the receiving entity, which was evidenced 
with  explanations  provided  by  the  Polish 
painters and by the daily manager of the 
receiving entity before the Court as well as 
to the DWEA during a control visit. 

FV2010.0139 

Lithuanian 
temporary  agency  workers 
were  posted  to  work  at  Danish  plant 
nurseries,  where  they  worked  alongside 
domestic  workers  and  under 
the 
instruction  of  the  receiving  entity.  The 
Court  found  that  the  significant  risk  of 
abuse  and  circumvention  by  using 
temporary agency workers in this field of 
work  weighs  more  heavily 
the 
consideration for the employment contract 
of the temporary work agency. The hired 
Lithuanian  workers  had  the  right  to  be 

than 

Concerning  underpayment,  Polish 
workers were not subcontractors but in 
reality under the instruction and control 
of  the  receiving  entity,  which  was 
evidenced with explanations provided 
by the Polish painters and by the daily 
manager of the receiving entity before 
the  Court  as  well  as  to  the  DWEA 
during a control visit. 

 The duty to register in RUT (Register 
for  Foreign  Service  Providers) 
is 
sanctioned separately with a fine. The 
issue  of  the  lawfulness  of  the  RUT 
surfaced for the first time in 2018 as a 
separate  claim.  Until  then,  fines  for 
breach  of 
registration  were  not 
challenged separately but as part of an 
overall fine for breach of the applicable 
Danish legislation.   

FV2017.0114,  Malerforbundet 
i 
Danmark mod Danske Malermestre 
for Quick Service, Skovlunde1097 

In  the  Western  High  Court  Ruling  of 
2014,  the  posting  entity  was  fined for 
failing to register at the RUT.   

Concerning underpayment, the control 
visit  indicated  that  the  workers  were 
under  the  instruction  of  the  receiving 
entity, and as the Polish posting entity 
could  not  produce  the  subcontractor 
agreements, the workers were viewed 
as hired by the receiving entity. 

Earlier,  posted  workers  in  Denmark 
were  required  to carry  a  work  permit, 
which is no longer the case according 
to 
Act 
Danish 
(Udlændingeloven).  

Aliens 

the  

1095 https://www.arbejdsretten.dk/media/1214331/fv2016.0202.pdf  
1096 https://www.arbejdsretten.dk/media/1214331/fv2016.0202.pdf  
1097 https://arbejdsretten.dk/afgoerelser/afgoerelser/2017/tilkendegivelse-af-13-december-2017-i-fv20170114/  
1100 VestreLandsretsdom (Western High Court Ruling), 22 September 2014, V.L. S-2220-13., https://at.dk/domme/2014/uforsvarlig-brug-stige-vld-22-09-14/hele-dommen/  

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remunerated  under  the  Danish  collective 
agreement in force at the user entity. 

FV2019.0126 Fagligt  Fælles  Forbund 
for medlemmerne A og B mod DI Dansk 
og 
for 
Byggeri 
Snedkerværkstedet Løsning A/S 

Tømrer- 

FV2017.0097, 
Fælles 
Forbund mod Dansk Byggeri for CC 
Fliser ApS1098 

Fagligt 

The  Construction  collective  agreement 
covers  the  posting  of  temporary  workers 
from temporary work agency and not the 
hiring out of workers for a temporary work 
in another entity in the sector, performed 
under direction and control. 

regards 

Underpayment  can  also  take  place 
with 
collective 
to 
agreement of the posting entity (arms 
and legs workers). 

the 

FV2013.0014.CO-I 
Forbund  DI  overenskomst 
ThyssenKrupp Elevator A/S1099 

for  Dansk  El-
I  for 

The  arbitrator  found  no  legal  basis  in 
the  collective  agreement  to  establish 
liability for a Danish receiving entity for 
underpayment of posted workers. This 
was in line with Article 3 of the Posted 
Workers  Directive,  as  establishing 
liability  for  the  receiving  entity  was 
viewed as establishing a barrier for the 
principle  of  free  movement  in  the 
Treaty  on 
the 
European Union (TFEU) Article 56.  

the  Functioning  of 

FV2013.0157 Faglig Fælles Forbund 
mod 
for 
Tækkefirmaet Segall 

Byggeri 

Dansk 

of 

constructions 

To sum up, the issue of circumvention 
of  collective  agreements  by  ‘fake’  or 
bogus 
posting 
contracts  is  part  of  the  debate  on 
social  dumping.  In  order  to  uphold 
Danish  working  conditions,  the  court 
assesses  the  contract  as  well  as  all 
other  available  information,  including 
the  relationship  at  the  workplace,  in 

1098 https://arbejdsretten.dk/afgoerelser/afgoerelser/2017/tilkendegivelse-af-27-september-2017-i-fv20170097/ 
1099 https://arbejdsretten.dk/afgoerelser/afgoerelser/2013/kendelse-af-12-august-2013-i-fv20130014/ 
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order  to  classify  the  situation  as  a 
genuine  posting  or  as  hired-in 
workers.    

Not identified 

Terra Fecundis case – Bogus posting: 
Terra 
French  Courts 
Fecundis 
the 
European posted workers clauses. 

condemned 
fraudulently  using 

for 

obliged 

TSJ Cataluña (Social Chamber) of 11 
June  20191101:  The  French  company 
was 
French 
by 
Inspectorate 
the  posted 
to  hire 
workers  directly.  There  were  third-
country  nationals  involved,  who  first 
needed  to  obtain  work  and  residence 
permits in France. 

the 

Vueling, the Court of Appeal (Paris Court 
of  Appeal,  criminal  chamber,  31  January 
2012)1103:  crew  and  technical  staff  of 
Vueling  were  not  falling  under  the  scope 
of  posted  workers,  therefore  Vueling  did 
not exercise a temporary activity. 

Paris  Employment  Tribunal,  31 
January 2012: conduct constituted the 
offence of undeclared work. 

Not identified 

ES 

FR 

LU 

Not identified. 

Not identified. 

Not identified. 

1101 TSJ Cataluña (Social Chamber) of 11 June 2019, available at: https://www.poderjudicial.es/search/AN/openDocument/2cf5208ff4d36ea1/20190814 
1102 TSJ Galicia (Social Chamber), of 1 July 2020, available at: https://www.poderjudicial.es/search/AN/openDocument/a7b9d54b43c678d8/20200917   
1103 Sup. crim. ch.. 11 March 2014, No. 12-81461.  

270 

TSJ Galicia (Social Chamber), 
of  1  July  20201102:  The  ruling 
involves  posting  of  workers 
to  Spain.  A 
from  Portugal 
company  was 
Portuguese 
serious 
issued 
very 
a 
for 
administrative  sanction 
non-payment  of  the  minimum 
wage,  since  the  Portuguese 
company  did  not  consider  the 
higher salary established in the 
sectoral  collective  agreement 
applicable in Spain. 

CA  14  January  2011,  No. 
disguised 
10/01143: 
employment,  exploitation  of 
persons, 
vulnerable 
accommodation 
under 
conditions  contrary  to  human 
dignity, unfair remuneration 

Court  of  Appeal,  October  27, 
2016, No. 40954 of the roll: 

of 

the  parties 
the 

regardless  of  the  qualification 
to  a 
given  by 
contract, 
judge  always 
remains  free  to  assess  the 
nature 
agreed 
contractual relationship. Thus, 
it  is  not  because a  contract  is 
called  
‘open-ended 
employment  contract’  that  the 
qualification  of  secondment 
contract cannot be retained.  

the 

 
 
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NL 

1) 
(ECLI:NL:GHSHE:2021:3776)1105: 

Contrain 

v. 

SNCU 

2) FNV v. Van den Bosch Transports BV 
(CJEU  1  December  2020,  case  C-
815/18): CJEU held that the PWD applies 
also  to  road  transport  sector;  a  foreign 
subcontractor  is  bound  to  comply  with  a 
is  not  declared  universally 
CLA 
binding; 
there  must  be  a  sufficient 
connection with the host member state for 
the definition of posting to apply. 

that 

Ruling  43145  of  1  of  June 
20211104: concerns the amount 
of the fine which was imposed 
on the private company for not 
following  the  provision  of  the 
Labour Code regarding posted 
workers. 

work 
specialised 

ECLI:NL: 
GHSHE:2021:15191108: 
A 
case  involving  a  Lithuanian 
agency 
temporary 
ship-
posting 
building  workers 
to  user 
companies  in  the  Netherlands 
through 
intermediate 
subcontractors, also raised the 
issue  of  evasion  of  social 
security costs 

Not identified. 

1)  Dutch  Postal  Service  (Post  NL) 
case 
(ECLI:RBNNE:NL:2020:4471)1106:  a 
construction  whereby  persons  with  a 
minor intellectual disability, working in 
a  publicly  subsidised  bureau  to  gain 
experience,  were 
some  work 
contracted in through an intermediate 
organisation, 
under 
to 
supervision of Post NL to sort out mail 
against  payment  well  below  the  level 
required  by  the  applicable  CLA.  The 
court  pierced  through  this  artificial 
subcontracting scheme 

work 

the 

2)  AFMB  Ltd  (of  Cyprus)  v.  the 
Insurance  Bank 
Dutch  Social 
(SVB)1107  :  under  EU  law,  it  is  not 
necessarily 
formal  contracting 
party  that  is  to  be  regarded  as  the 
employer,  but  the  entity  exercising 
effective  control,  and  that  bears  the 
wage costs (subject to further findings 
of fact that are for the referring court to 
make).  Merely 
inserting  a  new 
contracting entity abroad between the 
former  employer  and  employee  with 
the aim to secure cost advantages (as 
was the case here) will not ‘pay’. 

1104 Administrative Tribnunal, ruling 43145 of 1 of June 2021, available at https://juricaf.org/arret/LUXEMBOURG-TRIBUNALADMINISTRATIF-20210601-43145 
1105 Contrain v. SNCU (ECLI:NL:GHSHE:2021:3776; https://uitspraken.rechtspraal.nl) 
1106 Dutch Postal Service (Post NL) case (ECLI:RBNNE:NL:2020:4471), available at https://uitspraken.rechtspraak.nl  
1107 AFMB Ltd (of Cyprus) v. the Dutch Social Insurance Bank (SVB), judgment of 16 July 2020, case C-610/18 
1108 ECLI:NL: GHSHE:2021:1519; available at https://uitspraken.rechtspraak.nl 

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PL 

SI 

Not identified. 

Not identified. 

the 

terms  of 

Case no. VSRS Sklep VIII Ips 183/2016 
of 07 March 20171109: it is not possible to 
terminate the need for work of the plaintiff 
the  employment 
under 
contract if the defendant at the same time 
finds that the plaintiff cannot provide work 
for the user, and sends new employees to 
conclude  an 
this 
employment contract for the performance 
of  work  such  as,  which  according  to  the 
employment  contract,  the  plaintiff  could 
also perform. 

same  user 

to 

II  Cpg  1374/2015, 
VSL  sklep 
Judgement of 07 December 20151110: 
in  cases  where  an  employee  who  is 
otherwise employed by one employer 
is posted to work by another employer 
(user),  the  employee  is  liable  for  the 
damage  caused  at  work,  both  the 
employer and the user 

Not identified. 

Not identified. 

Not identified. 

Not identified. 

AT 

VwGH, judgment of 22 August 2017, Ra 
2017/11/0068, 
AT:VWGH:2017:RA2017110068.L00. 

VwGH,  judgement  of 11  November 
2021, Ra 
2020/11/0182, 
AT:VWGH:2021:RA2020110182.L00
1111 

Not identified. 

it  was  also  responsible 

A Hungarian company was contracted by 
an  Austrian  one  to  process  car  parts, 
whereby 
for 
compliance  with  safety  and  accident 
prevention  regulations.  According  to  the 
contract,  the  Hungarian  company  was 
invoiced  on  the  basis  of  the  services 
actually rendered and on an hourly basis, 
assuming full warranty liability for the work 
pieces delivered and being responsible for 

is  subject 

In  a  decision  from  2021,  the  VwGH 
had to clarify who, in the case of hiring 
in  subcontracting 
out  of  workers 
chains, 
legal 
the 
obligations  as  a  user  undertaking  to 
keep 
the  necessary  documents 
available pursuant to Section 22 of the 
LSD-BG.  An  employer  established  in 
Slovenia  had  hired  out  workers  to  an 

to 

judgement  of  30 
VwGH, 
January 
Ra 
2017/11/0093, AT:VWGH:202
0:RA2017110093.L001112 

2020, 

As  a  result  of  the  decision  in 
the  Dobersberger  case,  the 
VwGH denied a violation of the 
national  requirements  for  the 
implementation  of  the  PWD 
with  regard  to  workers  who 
provided  on-board  service  on 
trains,  arguing  a  lack  of  a 

1109 Case no. VSRS Sklep VIII Ips 183/2016 of 07 March 2017, available at 

http://www.sodnapraksa.si/?q=id:2015081111404831&database[SOVS]=SOVS&database[IESP]=IESP&database[VDSS]=VDSS&database[UPRS]=UPRS&_submit=i%C5%A1%C4%8Di&p
age=0&id=2015081111404831   

1110 VSL sklep II Cpg 1374/2015, Judgement of 07 December 2015, available at 

http://www.sodnapraksa.si/?q=id:2015081111391306&database[SOVS]=SOVS&database[IESP]=IESP&database[VDSS]=VDSS&database[UPRS]=UPRS&_submit=i%C5%A1%C4%8Di&p
age=0&id=2015081111391306 

1111 VwGH, judgement of 11 November 2021, Ra 2020/11/0182, AT:VWGH:2021:RA2020110182.L00, available at https://www.ris.bka.gv.at/Dokument.wxe?ResultFunctionToken=29690b6c-61f2-

4bbb-94e7-
c1bc8f06dbd2&Position=1&SkipToDocumentPage=True&Abfrage=Vwgh&Entscheidungsart=Undefined&Sammlungsnummer=&Index=&AenderungenSeit=Undefined&SucheNachRechtssat
z=True&SucheNachText=True&GZ=&VonDatum=&BisDatum=11.05.2022&Norm=&ImRisSeitVonDatum=&ImRisSeitBisDatum=&ImRisSeit=Undefined&ResultPageSize=100&Suchworte=dri
ttstaaten+lsd-bg&Dokumentnummer=JWT_2020110182_20211111L00 (last accessed 19 May 2022).  

1112 VwGH, judgement of 30 January 2020, Ra 2017/11/0093, AT:VWGH:2020:RA2017110093.L00, available at https://www.ris.bka.gv.at/Dokument.wxe?ResultFunctionToken=ed3ec561-7028-

48a7-a7f3-
11fdf3e51489&Position=1&SkipToDocumentPage=True&Abfrage=Vwgh&Entscheidungsart=Undefined&Sammlungsnummer=&Index=&AenderungenSeit=Undefined&SucheNachRechtssatz
=False&SucheNachText=True&GZ=&VonDatum=&BisDatum=13.05.2022&Norm=&ImRisSeitVonDatum=&ImRisSeitBisDatum=&ImRisSeit=Undefined&ResultPageSize=100&Suchworte=ent
sendung+hinreichende+verbindung+eugh&Dokumentnummer=JWT_2017110093_20200130L00 (last accessed 19 May 2022).  

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their timely completion. Its workers carried 
out their work in a separate building on the 
premises  of  the  Austrian  company,  but 
under  the  supervision  of  the  Hungarian 
company.  It  was  disputed  whether  the 
agreement  was  to  be  qualified  as  a 
(‘genuine’) contract for work and services, 
or  whether  the  true subject  matter  of  the 
contract  was  merely  the  cross-border 
transfer  of  the  respective  workers.  The 
VwGH ruled that the previous line of case 
law on Section 4 of the AÜG, according to 
which the fulfilment of only one element of 
hiring-out 
a 
corresponding classification, could not be 
upheld  in  light  of  the  ECJ  case  law 
mentioned above. It is rather necessary to 
take  into  consideration  each  element 
indicating  whether 
the  movement  of 
workers  to  the  host  member  state  is  the 
very purpose of the supply of services on 
which the contractual relationship is based 
on. 

of  workers 

led 

to 

posting  to  Austria,  as  there 
was no sufficient connection. 

on 

the  workers 

Austrian  company  (S).  The  latter  in 
turn hired out the workers in question 
to  another  company  (L)  in  Austria.  L 
employed 
a 
construction  site  in  Austria.  It  was 
disputed  whether  the  obligation  to 
keep documents available pursuant to 
Section  22  LSD-BG  applied  to  L, 
the  workers  had  been 
although 
it  by  an  undertaking 
provided 
to 
the 
in  Austria  within 
established 
process 
The 
subcontracting. 
Administrative  Court  answered  in  the 
affirmative. He stated that pursuant to 
Section 22(2) of the LSD-BG, the user 
undertaking  in  Austria  was  obliged  to 
keep 
the  necessary  documents 
available,  if  the  worker  was  hired  out 
across  borders  at  any  point  in  the 
supply chain. 

BG 

Supreme Court of Cassation, ruling No 
173 of 6 March 20181113 

Not identified. 

Not identified. 

Not identified. 

the 

This  case  concerned  the  question  of 
whether 
regime  of  Article  121, 
paragraph  3  of  the  Labour  Code  applies 
when  carrying  out  transport  services  in 
different  Member  States  for  a  period  of 
less  than  30  calendar  days  spent  on  the 
territory  of  each  of  them.  Тhe  case 
concerned the appeal a posted driver of a 
heavy goods vehicle, a Bulgarian national. 
He was posted by a Bulgarian employer to 
provide transport services for a company 
based in Belgium.  

The Court clarified that only companies in 
the  merchant  navy  were  expressly 

1113 Supreme Court of Cassation, ruling No 173 of 6 March 2018, available at http://domino.vks.bg/bcap/scc/webdata.nsf/Keywords/C4FC919452283D87C2258248002DB186 (lastly accessed on 

17 May 2022). 

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excluded  from  the  scope  of  the  Directive 
with regard to seafarers. Other modes of 
transport 
its  scope.  
remained  within 
Consequently, if the other prerequisites of 
Article  121(3)  of  the  Labour  Code  were 
met,  the  posting of  drivers  for  more  than 
30  calendar  days  to  countries  of  the 
European Union, to countries party to the 
Agreement  on  the  European  Economic 
Area  or  to  the  Swiss  Confederation  was 
covered by the PWD.  

law 

Accordingly, 
rules 
the  national 
stemming  from  EU  law  on  the  posting  of 
workers  were  applicable.  Therefore,  the 
Supreme  Court  of  Cassation  concluded 
that  the  applicant's  remuneration  for  the 
time during his services in Belgium had to 
be 
the 
minimum  rates  for  the  same  work  in 
Belgium. 

in  accordance  with 

formed 

CY 

CZ 

Not identified.  

Not identified. 

Not identified. 

Not identified. 

Not identified. 

Not identified. 

Not identified. 

Judgement  of  the  Czech  Supreme 
Administrative  Court  in  Brno  ref. 
no. 5 Azs 459/2019 dated 16 October 
20201114; 

Judgement  of  the  Czech  Supreme 
Administrative  Court  in  Brno  ref. 
no.  5  Azs  129/2020  dated  20 
November 20201115 

There are several cases of the Czech 
Supreme  Administrative  Court  which 
in each of them point to a very similar 
practice  of 
invoking  regulation  on 
cross-border  posting  of  workers,  who 
are third-country nationals, in order to 

1114 Judgement of the Czech Supreme Administrative Court in Brno ref. no. 5 Azs 459/2019 dated 16 October 2020, available at: 

https://www.nssoud.cz/files/SOUDNI_VYKON/2019/0459_5Azs_1900014_20201016123343_20201103144025_prevedeno.pdf  

1115 Judgement of the Czech Supreme Administrative Court in Brno ref. no. 5 Azs 129/2020 dated 20 November 2020, available at 

https://www.nssoud.cz/files/SOUDNI_VYKON/2020/0129_5Azs_2000016_20201120131811_20201202120026_prevedeno.pdf   

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avoid  requirement  of  obtaining  work 
permits. It needs to be mentioned that 
the Employment Act provides with an 
exception that a work permit (or some 
its equivalents under Czech law) is not 
required  for  an  employee  who  has 
been posted to the Czech Republic as 
part  of  the  transnational  provision  of 
services by an employer established in 
another EU Member State. The Czech 
case law then limits this exception only 
situation pursuant to Article 1 (3) (a) of 
the PWD, as amended.   

The  practise  used  in  the  referred 
cases was that companies established 
in another EU Member state (primarily 
Poland)  were  hiring  employees  from 
third  countries  with  whom 
they 
concluded  employment  contract  and 
acquired for them work permits issued 
in this other EU Member State.  

(based  on 

These employees were then posted to 
a  Czech  company  working  in  the 
the 
Czech  Republic 
services 
concluded 
agreement 
between  the  Czech  and  the  Polish 
company)  claiming 
third-
country  employees  do  not  need  work 
permits in the Czech Republic invoking 
the  exception  under  the  Employment 
Act  (it  is  in  general  more  difficult  to 
obtain  work  permits  in  the  Czech 
Republic than in Poland).  

that 

the 

However, 
the  Czech  Supreme 
Administrative  Court  ruled  in  number 
of  occasions  that  the  company  from 
another  EU  Member  State  acts  as  a 
temporary  work  agency  to  which  the 
exception  under  the  Employment  Act 
does  not  apply  and  that  the  parties 
tried to circumvent the requirement of 
obtaining work permits in these cases. 

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EE 

Not identified. 

Not identified. 

Not identified. 

Supreme  Court,  case:  2-17-
458,  13  February  2019,  A.F. 
vs OÜ Baagest,  

Supreme Court, case: 3-2-1-
176-14, 04 March 2015,  

Supreme Court, case: 3-2-1-
179-12, 16 January 2013 

of 

the 

part 

Supreme 

According  to  the  case  law  of 
Court 
the 
(Riigikohus) 
daily 
allowance should be viewed as 
remuneration. 
a 
Although  the  PWD  does  not 
give  any  strict  regulation  on 
this  point,  the  case  law  of 
Estonian Supreme Court does 
daily 
not 
allowance  as  a  separated 
compensation. 

determine 

the 

EL 

FI 

Not identified. 

Not identified. 

Not identified. 

Decision TT 2019:100 of 28 October 
2019 of the Labour Court 

Not identified. 

Not identified. 

Not identified. 

Not identified. 

in 

Concerns a dispute regarding workers 
posted by a Polish company to work at 
the  Olkiluoto  nuclear  power  plant  in 
2010-2014.  The  claimant,  a  Finnish 
trade  union,  claimed 
eclecticists’ 
the 
unpaid  salaried  on  behalf  of 
workers 
of 
amounts 
the 
EUR800,000  and  EUR700,000.  The 
dispute  stemmed  from  the  claimant’s 
and 
different 
understanding  as  to  what  was  the 
collective  agreement  that  applied  to 
the  workers  in  question.  The  Labour 
Court  sided  with  the  interpretation  of 
the trade union.  

defendant’s 

the 

276 

 
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TT:2009-90 of 9 October 2009 

In  this  decision  so-called  wet  lease 
agreement  had  been  concluded 
between  a  Finnish  airline  and  a 
the 
Spanish  airline,  under  which 
Spanish airline had leased an aircraft 
and its crew for the use of the Finnish 
airline.  The  aircraft 
crew  was 
employed  by  a  Spanish  airline  and 
was subject to Spanish legislation and 
collective agreement. According to the 
lawsuit  by  a  Finnish  trade  union,  the 
Finnish airline had acted in violation of 
the  collective  agreement  concerning 
cabin  crew.  The  company  had  not 
included in the wet lease agreement a 
condition  required  by  the  collective 
agreement, 
the 
under 
subcontractor  undertakes  to  comply 
with 
in 
question and Finnish labor and social 
legislation.  

the  collective  agreement 

which 

it 

However, 

concerned 

The decision of the Labour Court held, 
first,  that  the  agreement  between  the 
airlines 
subcontracting 
within  the  meaning  of  the  collective 
agreement. 
was 
concluded  that  the  application  of  the 
collective  agreement  would  have 
constituted  a 
the 
freedom  to  provide  services  contrary 
to  Article  49  of 
the  EC  Treaty. 
Accordingly,  the  defendant  company 
was not required to include in the wet 
lease a substantive clause demanding 
the application of the Finnish collective 
agreement. 

restriction  on 

HR 

HU 

Not identified. 

Not identified. 

In  most  cases  brought  before  the  Curia, 
is  similar.  The 
the 

legal  situation 

Not identified. 

Not identified. 

Not identified. 

Not identified. 

Not identified. 

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Hungarian  employer  hires  Hungarian 
employees  to  work  abroad,  usually  in 
Germany.  The  work  must  be  carried  out 
for the benefit of a foreign client, under the 
direction  of 
the  Hungarian  employer. 
Parties typically agree on the details of the 
work abroad a separate document at the 
same  time  as  the  employment  contract 
(posting  agreement).  The  subject  of  the 
lawsuit is mostly unpaid wages, but there 
are also cases concerning the termination 
of  illegal  employment  or  the  employer's 
liability.  

A common feature of these cases is that 
neither  the  parties  nor  the  courts  invoke 
the law of the State of posting, the courts 
adjudicate the dispute solely on the basis 
of Hungarian law. 

Examples: Mfv.I.10 047/2015/03; 

Mfv.I.10 057/2009/04;  

Mfv.II.10 166./2015/3; 

Mfv.I.10 343./2014/5; 

Mfv.I.10 344/2012/5; 

Mfv.II.10 388/2014/8; 

Mfv.I.10 568/2016/10; 

Mfv.II.10 609/2013/07; 

Mfv.II.10 752/2013/4. 

IE 

Gama Endustri Tesisleri Imalat Montaj 
A.S. case 

Not identified. 

Not identified. 

McGowan  &  Ors  -v-  Labour 
Court & Ors [2010] IEHC 501 
(30 June 2010) 

A  parent  Turkish  company 
(Gama 
Endustri  Tesisleri  Imalat  Montaj  A.S.) 
Irish 
posting  Turkish  workers 

its 

to 

278 

applicants 

The 
contractors) 

(electrical 
to 

sought 

 
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subsidiary  (Gama  Construction  Ireland 
Ltd.).  In  February  2005,  it  came  to  light 
that  Gama  was  paying 
the  Turkish 
workers, who had come to Ireland to work 
on  a  number  of  public  projects,  rates  far 
below the REA minimum rate (Registered 
Employment  Agreement,  which  governs 
the pay rates and conditions of workers in 
the sector) and, indeed, below the national 
minimum  wage.  These  workers  were 
accommodated offsite by their employers 
and spoke little or no English.”  

and 

Innovation 

An inspection by the Department of Jobs, 
Enterprise 
(DJEI) 
uncovered  “a  complex  tale  of  destroyed 
work  records  and  workers’  money  being 
paid, 
their 
in  some  cases  without 
knowledge, into Irish, Turkish, and Dutch 
bank accounts. The inspectors found that 
Gama  did  pay  workers  less  than  the 
minimum  construction  rate,  that  workers 
not  covered  by  the  REA  (caterers,  for 
example) were paid less than the national 
minimum  wage,  and  that  while  work 
records appeared to have been compiled 
on  an  informal  basis,  they  had  been 
destroyed. It also came to light that Gama 
had benefited substantially from a scheme 
from  payment  of 
whereby  exemption 
social 
for  a  period  not 
exceeding  52  weeks  can  be  granted  in 
respect  of  the  temporary  employment  of 
people  who  are  not  ordinarily  resident  in 
the  state.  Gama  had  employed  1,324  of 
the 1,867 workers covered by the scheme 
since it began in 2003.”  

insurance 

a 

challenge 
Registered 
Agreement 
Employment 
(REA) on grounds of invalidity 
and for unconstitutionality.   

of 

The Court upheld the validity of 
the REA and specifically noted 
the  REA  system  was 
that 
compatible  with 
the  Laval 
judgment. The Court reiterated 
that, in light of the existence in 
universally 
Ireland 
applicable 
collective 
agreements, such as the REA, 
posted  workers  in  Ireland  in 
the  electrical  industry  would 
enjoy  the  same  terms  and 
conditions  as  those  to  which 
domestic 
were 
entitled,  meaning  that  foreign 
low  wage 
from 
contractors 
economies could not undercut 
Irish  contractors.  The  Court 
concluded that the cancellation 
of  the  REA  would  remove  the 
domestic 
for 
protection 
contractors 
being 
against 
undercut  by  posted  workers 
from low wage countries.  

workers 

to 

the 
again 

case  was 
Although 
the 
appealed 
Supreme  Court,  where 
the 
REA  system  was  declared 
unconstitutional,  there  was no 
reference  at  all 
to  posted 
workers, the matter being one 
of Irish constitutional law. 

“The company took legal action to restrain 
the  publication  of  the  DJEI’s  report.  The 
Supreme Court held that the powers under 
which the inspectors had operated did not 
permit them to produce a general report, 
which  could  be  circulated  or  published 
generally,  but  that  a  private  and  limited 

279 

Leictreach 
Naisiunta 
Contraitheoir  Eireann  v  The 
ors 
Court 
Labour 

& 

 
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circulation of the inspector’s report to the 
(with  a 
relevant  statutory  authorities 
prosecutorial  function  in  relation  to  the 
matters  identified)  was  permissible.  As  a 
result,  the  report  has  never  been  made 
public  and  the  information  available  has 
come from media or trade union sources.”  

three 

“The  Gama  dispute,  which  eventually 
involved 
trade  unions  and  a 
protracted series of unofficial, and official, 
industrial  action,  was  finally  resolved  in 
August  2005  through  the  intervention  of 
the Labour Relations Commission (LRC), 
the  State’s 
third-party  mediation  and 
conciliation service, and the Labour Court. 
At this point, almost all of the original 600 
workers had returned to Turkey, with only 
83 left in Ireland. Following a Labour Court 
Recommendation,  Gama  agreed  to  pay 
these  employees  EUR  8,000  per  year  of 
service to cover overtime worked 

1116 Naisiunta Leictreach Contraitheoir Eireann v The Labour Court & ors (Approved) [2020] IEHC 303 (23 June 2020), available at: https://www.bailii.org/cgi-
bin/format.cgi?doc=/ie/cases/IEHC/2020/2020IEHC303.html&query=(N%E1isi%FAnta)+AND+(Leictreach)+AND+(Contraitheoir)+AND+(Eireann)  

280 

(Approved)  [2020]  IEHC  303 
(23 June 2020)1116  

in 

industry. 

a 
order 

the 
This  case  concerned 
sectoral 
validity 
of 
(SEO) 
employment 
made pursuant to the Industrial 
Relations  (Amendment)  Act 
2015,  purporting  to  regulate 
of 
the 
remuneration 
the 
electricians  working 
  The 
construction 
impugned 
legislation 
prescribed (i) minimum rates of 
remuneration; 
the 
requirements  for  a  pension 
scheme  (including a minimum 
daily rate of contribution to the 
scheme  by  an  employee  and 
an employer respectively); and 
(iii) the requirements for a sick 
pay scheme.  

(ii) 

that 

The High Court, finding for the 
Applicant, 
the 
held 
purported SEO was not legally 
valid and that the underpinning 
legislation,  Chapter  3  of  the 
Industrial 
Relations 
(Amendment)  Act  2015  was 
unconstitutional.  

a 
order 

In  relation  to  posted  workers, 
the  High  Court  held  that  “the 
sectoral 
of 
making 
employment 
also 
presents difficult choices as to 
how  to  resolve  the  potentially 
conflicting  objectives  of 
(i) 
promoting fair competition and 
the 
provide 
services  within  the  European 

freedom 

to 

 
 
STUDY SUPPORTING THE MONITORING OF THE POSTING OF WORKERS DIRECTIVE  
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IT 

LT 

LV 

Not identified. 

Not identified. 

Not identified. 

Not identified. 

Not identified. 

Not identified. 

Not identified. 

Not identified. 

Not identified. 

internal  market,  and 
(ii) 
terms 
ensuring  appropriate 
and conditions of employment 
for  domestic  workers  and 
posted workers from other EU 
Member States.” 

Not identified. 

Not identified. 

court  of 

the 
of 
Latvia, 
in  a  matter 

Supreme 
Republic 
judgement 
No SKC-2053/2016 
(C24186212) of 30 December 
20161117;  Supreme  court  of 
the  Republic  of  Latvia, 
judgement 
in  a  matter 
No SKC-952/2015 
(C37108212) of  27  February 
20151118;  Supreme  court  of 
the  Republic  of  Latvia, 
judgement 
in  a  matter 
No SKC-2425/2014 
(C28469512) of 30 
September 20141119 

have 

been 

There 
three 
judgements  of  the  Supreme 
Court of the Republic of Latvia, 
in essence, stating that posting 
of  Latvian  employees  abroad 
is a type of business trip, thus, 
the  employees  in  addition  to 
agreed work remuneration are 
entitled 
daily 
allowances. 

also 

to 

1117 Supreme court of the Republic of Latvia, judgement in a matter No SKC-2053/2016 (C24186212) of 30 December 2016, available 

at https://manas.tiesas.lv/eTiesasMvc/nolemumi/pdf/294264.pdf (lastly accessed on 23 May 2022).  

1118 Supreme court of the Republic of Latvia, judgement in a matter No SKC-952/2015 (C37108212) of 27 February 2015, available at https://www.at.gov.lv/downloadlawfile/2933 (lastly accessed 

on 23 May 2022).  

1119  Supreme  court  of  the  Republic  of  Latvia,  judgement  in  a  matter  No SKC-2425/2014  (C28469512) of 30  September  2014,  available  at https://www.at.gov.lv/downloadlawfile/2981 (lastly 

accessed on 23 May 2022).  

281 

 
 
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MT 

PT 

RO 

Not identified. 

Not identified. 

Not identified. 

Not identified. 

Romania, Timis County, Civil Section 1, 
CIVIL SENTENCE No. 1672 / PI, Public 
meeting from December 7, 20181120 

Timisoara  Court,  Decision  no. 
15327/20211121  

Not identified. 

Not identified. 

Not identified. 

Not identified. 

Not identified. 

Oradea,  Court  of  Apeal, 
Decision no. 449/0191122 

According  to  prev.  art.  95  para.  (2)  The 
Labor  Code,  the  temporary  work  agent 
may  conclude  with 
temporary 
employee  an  employment  contract  of 
indefinite duration, situation in which in the 
period  between 
the 
temporary employee is at the disposal of 
the temporary work agent.  

two  missions 

the 

Temporary  employment  contract  no. 
xxxxxx /30.06.2017 was concluded for an 
indefinite period, so that the defendant, in 
his  capacity  as  a  temporary  work  agent, 
cannot rely on the case provided in art. 95 
para. (4) of The Labour Code as a reason 
the  employment 
for 
contract, because in this situation, even if 
the  user  gives  up  the  services  of  the 
temporary employee, the latter continues 
to  hold  the  status  of  employee  of  the 
temporary employment agent.  

termination  of 

The dismissal of the temporary employee 
by the temporary work agent is regulated 
in  art.  100  of  the  Labour  Code,  the 
the 
temporary  work  agent  having 
obligation 
legal 
the 
to  comply  with 
regulations  regarding  the  termination  of 
the  individual  employment  contract  for 
reasons  not  related  to  the  employee's 

On  the  occasion  of  the  verification  of 
the  documents,  it  was  found  that  the 
employer  did  not  send  in  the  register 
the  element  provided 
in  art.  3 
paragraph  2  letter  m  of  H.G.  no. 
905/2017,  respectively  the  date  on 
which  the  transnational  secondment 
begins and the date on which it ends, 
defined by Law  no.  the  activity  of  the 
employee  seconded  in  the  space  of 
the European Union for the employees 
seconded 
the 
transnationally 
verified period, violating the provisions 
of art. 4 par. 1 letter d) of H.G. nr.905 / 
2017.  

in 

in  art.  3  par.  2 

The  deed  of  the  employer  regarding 
the  data 
the  non-transmission  of 
provided 
.lit.m) 
according  to  art.4  par.  I  letter  d) 
constitutes  a  contravention  according 
to  art.8  par.  2  letter  d)  of  H.G.  no. 
905/2017 (A) and the contested report 
was drawn up in this respect - PVCSC 
________ no. _______ / 14.07.2021.  

the  deficiency 
ordered 

found,  a 
for 
Also, 
measure  was 
the 
company's  management,  within  the 
limits  and  in  compliance  with  the 
provisions  of  Law  no.  108/1999 

to 

of 

of  work 

The Court finds that the Court 
Instance  wrongly 
of  First 
that  sums  of 
established 
money were legally granted as 
a subsistence allowance, since 
during the period that the usual 
place 
the 
respondent-applicant's 
employees  was  in  Italy,  and 
not 
the 
in  Romania,  at 
employer's 
headquarters. 
Consequently, the condition of 
the temporary character of the 
performance  of  the  activity  in 
another  place  /  country  is  not 
fulfilled, 
the 
Even 
respondent's 
employees 
travelled from Romania to Italy 
to  work  for  a  period  of  one 
three  months, 
month 
to 
respectively 
limited 
for  a 
period,  it  is  not  sufficient  to 
retain  the  existence  of  the 
transnational  posting,  which 
also  presupposes 
the 
company's  employees  work 
regularly in Romania. 

that 

if 

1120 Romania, Timis County, Civil Section 1, CIVIL SENTENCE No. 1672 / PI, Public meeting from  December 7, 2018, available at https://sintact.ro/#/jurisprudence/532908105/1/sentinta-nr-1672-

2018-din-07-dec-2018-tribunalul-timis-contestatie-decizie-de-concediere-litigii...?keyword=munca%20temporara&cm=SREST (last accessed on 13 June 2022). 

1121  Timisoara  Court,  Decision  no.  15327/2021,  available  at  https://sintact.ro/#/jurisprudence/535820423/1/sentinta-nr-15327-2021-din-02-dec-2021-judecatoria-timisoara-plangere-

contraventionala-civil?keyword=detasare%20transnationala&cm=SREST (last accessed on 13 June 2022).  

1122  Oradea,  Court  of  Apeal,  Decision  no.  449/019,  available  at  https://sintact.ro/#/jurisprudence/533354500/1/decizie-nr-441-2019-din-21-mai-2019-curtea-de-apel-oradea-anulare-act-

administrativ-contencios...?keyword=detasare%20transnationala%20lucratori%20straini&cm=SREST (last accessed on 13 June 2022). 

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person (other than the disciplinary ones), 
in compliance with the provisions of art. 76 
of the Labour Code regarding the content 
of the dismissal decision and of art. 75 of 
the  Labour  Code  regarding  the  right  to 
notice of at least 20 working days.  

legal 

Section, 

issues,  admitted 

The court notes that by Decision no. 18 of 
June  13,  2016,  the  panel  for  resolving 
certain 
the 
notification formulated by the Iaşi Court of 
Appeal  -  Labour  and  Social  Insurance 
Litigation 
the 
pronouncing of a preliminary decision, and 
established 
the 
dismissal decision can be revoked until its 
communication to the employee, the act of 
to 
revocation 
the 
requirements 
communication 
corresponding 
it  revokes 
(dismissal decision). 

regarding 

following 

the  act 

subject 

being 

that 

the 

to 

republished,  with  deadline  according 
to annex 2 to the Control PV no. _____ 
/  14.07.2021 
this 
(02.08.2021  

-  attached 

to 

for 

The claims of the legal petitioner of the 
REVISAL 
the 
application 
transmission  of  the  data  provided  by 
law  are  also  erroneous,  this  offering 
the 
the  express  possibility 
legal 
to 
employers 
obligations  by  operating  all 
the 
elements required by law.  

their 

fulfil 

to 

In  order  to  prove  this  aspect,  it  has 
generated and submits to the present 
a  report  of  a  fictitious  secondment  in 
the REVISAL program which contains 
the data of the secondment as they are 
required  by  HG500  /  2011  to  be 
operated. 

SE 

SK 

Not identified. 

Not identified. 

Not identified. 

Not identified. 

Not identified. 

Not identified. 

Not identified. 

Not identified. 

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Annex 2: Bibliography 

Primary law 

•  Act  Governing  the  Employment  of  Foreign  Nationals  (AuslBG),  Chapter  II 
at: 

Employment 
https://www.migration.gv.at/fileadmin/downloads/gesetzestexte/AuslBG_englisch_
1_10_2017.pdf   

Conditions, 

paragraph 

available 

permit, 

4(4), 

•  Act  on  the  Implementation  of  Measures  of  Occupational  Safety  and  Health  to 
Encourage Improvements in the Safety and Health Protection of Workers at Work, 
(Arbeitsschutzgesetz, 
https://www.gesetze-im-
internet.de/englisch_arbschg/englisch_arbschg.html   

ArbSchG), 

available 

at: 

•  Bundesarbeitsgericht,  Urteil  vom  24.  Juni  2021  –  5  AZR  505/20,  available  at: 

https://www.bundesarbeitsgericht.de/entscheidung/5-azr-505-20/   

•  Bundesgesetz,  mit  dem  Bestimmungen  über  die  Betreuung  von  Personen  in 
privaten Haushalten erlassen werden (Federal Act enacting provisions on the care 
of persons in private households), Federal Law Gazette I No. 33/2007 last amended 
at 
I 
by 
https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetz
esnummer=20005362&FassungVom=2022-05-19 (last accessed 19 May 2022). 

available 

57/2008, 

Gazette 

Federal 

Law 

No. 

•  Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 
2018  amending  Directive  96/71/EC  concerning  the  posting  of  workers  in  the 
framework  of 
services  https://eur-lex.europa.eu/legal-
the  provision  of 
content/EN/TXT/PDF/?uri=CELEX:32018L0957&from=EN  

•  Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 
2019  on  transparent  and  predictable  working  conditions  in  the  European  Union, 
available at: http://data.europa.eu/eli/dir/2019/1152/oj   

•  Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 
2020  laying  down  specific  rules  with  respect  to  Directive  96/71/EC  and  Directive 
2014/67/EU for posting drivers in the road transport sector and amending Directive 
2006/22/EC  as  regards  enforcement  requirements  and  Regulation  (EU)  No 
1024/2012, 
at 
https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A32020L1057.  

available 

•  Directive  2009/52/EC  of  the  European  Parliament  and  of  the  Council  of  18  June 
2009  providing  for  minimum  standards  on  sanctions  and  measures  against 
employers 
at: 
http://data.europa.eu/eli/dir/2009/52/oj.  

third-country 

nationals, 

available 

illegally 

staying 

of 

•  Directive 2014/24/EU of the European Parliament and of the Council of 26 February 
2014  on  public  procurement  and  repealing  Directive  2004/18/EC,  OJ  L  94, 
at: 
28.3.2014, 
https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=celex%3A32014L0024.  

available 

•  Directive 2014/36/EU of the European Parliament and of the Council of 26 February 
2014 on the conditions of entry and stay of third-country nationals for the purpose 

284 

 
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of  employment  as  seasonal  workers,  Article  14,  available  at:  https://eur-
lex.europa.eu/legal-content/en/ALL/?uri=celex%3A32014L0036   

•  Directive 96/71/EC of the European Parliament and of the Council of 16 December 
1996 concerning the posting of workers in the framework of the provision of services, 
Art. 2. 

•  Gesetz  zur  Bekämpfung  der  Schwarzarbeit  und 

illegalen  Beschäftigung 
(Schwarzarbeitsbekämpfungsgesetz - SchwarzArbG) vom 23. Juli 2004, available 
at: https://www.gesetze-im-internet.de/schwarzarbg_2004/BJNR184210004.html   

•  Home  Care  Act,  Federal  Law  Gazette 

I  No.  33/2007,  available  at: 

https://www.ris.bka.gv.at/Dokumente/BgblAuth/BGBLA_2007_I_33/BGBLA_2007_
I_33.pdfsig   

•  Laki 

tilaajan  selvitysvelvollisuudesta 

työvoimaa 
käytettäessä  (Act  on  the  Contractor’s  Obligations  and  Liability  when  Work  is 
Contracted Out) 1233/2006, adopted on 22 December 2006 as amended, available 
at https://finlex.fi/fi/laki/ajantasa/2006/20061233   

ja  vastuusta  ulkopuolista 

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•  SIOD,  “Protocollen,”  2022,  available  at:  https://www.siod.belgie.be/nl/publicaties/ 

protocollen 

325 

 
 
 
GETTING IN TOUCH WITH THE EU 

In person 

All over the European Union there are hundreds of Europe Direct information 
centres. You can find the address of the centre nearest you at: 
https://europa.eu/european-union/contact_en 

On the phone or by email 

Europe Direct is a service that answers your questions about the European 
Union. You can contact this service: 

–  by freephone: 00 800 6 7 8 9 10 11 (certain operators may charge for 

these calls), 

–  at the following standard number: +32 22999696 or  
–  by email via: https://europa.eu/european-union/contact_en 

FINDING INFORMATION ABOUT THE EU 

Online 

Information about the European Union in all the official languages of the EU is 
available on the Europa website at: https://europa.eu/european-
union/index_en 

EU publications 

You can download or order free and priced EU publications at: 
https://op.europa.eu/en/publications. Multiple copies of free publications may 
be obtained by contacting Europe Direct or your local information centre (see 
https://europa.eu/european-union/contact_en). 

EU law and related documents 

For access to legal information from the EU, including all EU law since 1952 
in all the official language versions, go to EUR-Lex at: http://eur-lex.europa.eu 

Open data from the EU 

The EU Open Data Portal (http://data.europa.eu/euodp/en) provides access to 
datasets from the EU. Data can be downloaded and reused for free, for both 
commercial and non-commercial purposes.