The judicialization of the EU posted workers regime through the CJEU case law

Abstract

This article examines the judicialization of the EU posted workers regime and its evolution across three distinct phases: the pre-Directive period, during the 1996 Directive, and the post-2018 amendment period. Using a longitudinal doctrinal analysis of Court of Justice case law, the study investigates how judicial interpretation has shaped the balance among the freedom to provide services, social protection concerns, and Member State regulatory autonomy.

The findings demonstrate that judicialization in this case is neither linear nor uniformly expansionist. In the foundational phase, the Court constitutionally embedded posting within the freedom to provide services, effectively restructuring national competence over labour market access. During the Directive period, the Laval line of case law subjected collective labour rights and public procurement social clauses to a proportionality test. In the post-amendment phase, however, the Court validated the 2018 reform’s strengthened protective rationale while simultaneously delimiting its scope through territorial criteria and by reaffirming Member State discretion concerning third-country nationals in shifting geopolitical and migratory contexts.

Overall, the study concludes that judicialization in the posted workers regime is contingent, path-dependent, and politically mediated. Rather than producing uniform regulatory expansion, judicial governance operates through iterative doctrinal stabilization shaped by institutional constraints, economic integration pressures, and evolving social policy objectives.