The ECJ's Construction of an EU Mobility Regime‐Judicialization and the Posting of Third‐country Nationals

Abstract

The role of the Court of Justice in furthering the integration of the European Union is an unresolved topic of debate. This article contributes to the judicialization debate by assessing the impact of the Vander Elst Case‐law, which allowed third‐country nationals (TCNs) to be posted freely across the EU without work permits in the countries of posting. Based on Belgian posting data, we demonstrate that the ECJ introduced a mobility regime that is growing in importance and even outnumbers classical labour migration. We argue that judicialization not only results in ‘codification' of its case‐law or ‘modification' of it, but also in ‘Direct Design', whereby the Court creates new economic realities all by itself. While this regime further lessens the migration sovereignty of member states, the rising use of posting indicates at the same time the increasing role of the free movement of services in developing a single European labour market.

Introduction: The Framework of Data Institutionalisation

“…Judicialisation relates to the central role played by courts in political systems, in particular as to the EU. 55 Judicialisation can be defined as the "reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies". 56 Judicialization is national, regional, international and supranational.…”

Forced labour in supply chains: Rolling back the debate on gender, migration and sexual commerce

“…Importantly, short-term posted work is on the rise in Europe and had already become more prevalent than the classic long-term free movement of workers (Mussche and Lens, 2018). The legal classification of large segments of the industrial workforce as 'services' shows the arbitrariness of the neat distinction between the industrial and service economies.…”

A hole in the wall of fortress Europe: The trans‐European posting of third‐country labour migrants

“…They repeatedly put conditions and restrictions on TCN labour migrants as posted workers. But in its case‐law, the ECJ time and again condemned any migration requirements for posted workers (Mussche & Lens, 2019).…”

“…This is particular as TCNs are legally "fixed" by a work and residence permit in the country that granted the permits. The fact that TCNs can also be mobile as posted workers across the EU Member States was enabled by the European Court of Justice (ECJ) in the Vander Elst case of 1994 (Mussche & Lens, 2019). The Court decided that TCNs who have a valid work and residence permit in one Member State are free to be posted in any other Member State across the EU.…”