The Enforcement of Posted Workers' Rights Across the European Union

Abstract

The phenomenon of posting of workers is increasing across the European Union Member States and contributes to the development of the internal market. In the framework of transnational provision of services, the Directive 96/71 was adopted with the aim of establishing minimum working terms and conditions, and determining as applicable the law of the host country, in respect of the principles of non-discrimination based on nationality and equal treatment. However, according to European institution studies and Court of Justice case law, the Directive did not grant effective remedies for employees seeking protection of their rights. Against this background, the Directive 2014/67 intervened in order to complement and introduce mechanisms to control the authenticity of posting, to enforce sanctions and impose the duty to inform upon competent authorities. One provision, Article 11, recognises the right to institute judicial or administrative proceedings for the defence of posted workers’ rights, also by trade unions. Its transposition into the Italian legal order raises some doubts as to the effectiveness of such remedies. Given that specific EU private international law rules are lacking, it is wondered whether collective redress may be successfully promoted, and which rules apply to cross-border judicial proceedings. In the end, judicial cooperation in civil and commercial matters is closely linked to the free movement of persons, and the general principle of mutual recognition of judgments is necessary for proper functioning of the internal market.