The debate on the posting of workers in the European Union (EU) shows no sign of resolution 15 years after the controversial Laval quartet of judgements by the ECJ. The majority view has it that the judgements gave social dumping the backing of EU law, thus undermining national achievements in the social sphere. From this perspective the 2018 Revised Posted Workers Directive is a step in the right direction. The critique from the periphery, on the other hand, alleges that what looks like social dumping from the centre amounts to equality of opportunity for workers of the periphery, thus seeing the judgements in a more ambiguous or even positive light. The Revised PWD is here seen as a reassertion of national dominance from the EU’s centre. In this paper I engage with Christodoulidis’s constitutional approach to this complex problem which he develops in The Redress of Law, arguing against his embrace of the majority position in Part 3 of his work while building on his radical democratic proposals from Part 4. From the latter’s perspective, both the majority view as well as the critique from the periphery are to be rejected, since the very opposition between the two options is inimical to workers’ rights in the EU. Radical democratic action is necessary to overcome this impasse, to open the space within which rights and interests of workers from across the Union can be properly protected and advanced.

Temporary labor migration (TLM) constitutes a significant trend of migration movements within the European Union, especially after the 2004 and 2007 EU enlargements. However, compared to other forms of TLM, intra-EU TLM has received scant attention from normative theorists. By drawing on Iris Marion Young's conception of structural injustice, this article analyzes the injustice of TLM within the EU. It argues that purely rights-based approaches are deficient and that a structural injustice approach is needed. The latter sheds light on the formal and informal processes that place EU temporary migrants in a condition of vulnerability and reveals the multiple individual and collective agents participating in such processes. Moreover, such an approach offers important insights into the agency of migrants by showing how they themselves reinforce structural processes that put not only (i) individual temporary migrants but also (ii) similarly positioned migrants and (iii) other members of the sending and receiving countries in a vulnerable position. A structural injustice approach does not deny that intra-EU temporary labor migrants should enjoy the rights and entitlements that they currently have in the host country as European citizens. Nor does it dispute that reducing the vulnerability of temporary migrants may require “special rights” accommodating the specific nature of their life plans. Instead, though such rights may be necessary, a structural injustice approach demonstrates how they are insufficient to tackle the injustice of intra-EU TLM and other forms of temporary labor migration more broadly.

This article places the current legal framework governing posted work within the debate on ‘Europeanisation’ in order to assess to what extent the Posted Workers Directive may be seen as a successful tool to ‘Europeanise’ national labour law systems as assessed against its dual objectives of promoting the transnational provision of services while also guaranteeing respect for the rights of workers. In doing so, the article contextualises and analyses the Posted Workers Directive which allows for the identification of remaining gaps in protection. The article concludes with an assessment of the European Commission’s most recent proposal to amend the Directive.