The so-called 'Posting of Workers Directive' was an integral part of the European Commission (EC) Action programme linked to the Community Charter of Fundamental Rights of Workers and was meant to establish a legal frame for labour conditions of workers posted for a temporary period to another Member State. Its content is about equal treatment, a guarantee of minimum protection, fair competition and respect for the regulatory frame in the host country. In the cases included in this article, increased divergence can be observed with respect to the role of the state versus the social partners with regards to regulation and control. The over-riding challenge nowadays is to develop effective mechanisms of enforcement compatible with the constraints of European Union principles and regulations. In the EC documents, any reference to the Community Charter of Basic Rights of Workers has disappeared and the weight of power has shifted in favour of the free market hardliners, who seem to regard the Directive as an oddity in breach with the logic of the four freedoms.

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This article identifies how the use of the European Union (EU) mobility rules, as formulated by the EU's Posting Directive, has been linked to the temporary provision of services in practice. It demonstrates how this linkage, legitimised by European Court rulings, undermines the Directive's original intent to provide rights-based regulation of labour mobility in the Union. In the assessment of posting practices, striking findings of two studies co-conducted by the author in 2003 and 2010 are discussed. In the first section, the origins of the Directive are described, followed by sections that contextualise the posting rules in the framework of the fundamental economic freedoms of EU Treaties, and discuss the problems related to implementation and enforcement. Based on the Directive's definition of posting, three issues of governance and practice are raised: (a) regulation of the employment relationship, (b) application of labour conditions and (c) respect for collective agreements. A final section offers policy recommendations in order to deal with the ways in which posting governance and practices currently impede any vision of rights-based mobility in the EU. It is argued that current minimalist interpretation of the posting rules can neither guarantee equal treatment nor protect the rights of temporary migrant workers.

Industrial relations in most European countries are based on a national regulatory framework consisting of both labour legislation and provisions laid down in collective agreements. This institutional framework provides rules and procedures for working conditions and social security. These rules and procedures are important contributions to a general feeling of justice and fair treatment, and are perceived as powerful instruments to defend workers’ rights. The introduction of free market principles has brought new challenges for the functioning of this framework, as liberalization and deregulation became the leading principles for the modelling of labour markets. Recent ECJ rulings and European Commission infringement procedures assert the primacy of the supranational principle of free movement in the business environment. The author discusses the inconsistencies in the EU approach.