LA MOBILITÀ TRANSNAZIONALE DEI LAVORATORI. CONTRIBUTO ALLO STUDIO DEI PROFILI GIUSLAVORISTICI E DI SICUREZZA SOCIALE

The object of this final dissertation is to provide an analysis of the evolving and debated phenomenon of transnational posting of workers. At first, posting of workers is analysed in a private international law dimension, since the rules established by directive 96/71/CE are mandatory rules as described in art. 9 of Rome I regulation (chapter I). Posting of workers is then investigated in its relevant EU regulatory framework, starting from the case by case approach of the European Court of Justice in the 80s. The jurisprudence of the early stage and its implication are dealt with in chapter II. According to directive 96/71/EC, a “posted worker” is an employee who is sent by his employer to carry out a service in another EU Member State on a temporary basis, in the context of a contract of services, an intra-group posting or a hiring out through a temporary agency. The scope of the directive is to provide, in addition to the application of the sending State law, i.e. the habitual place of work, a set of mandatory rules of the host State so that to grant the posted worker an “hard core of minimum protection”. On the other hand, the directive aims at providing a level-playing field in the market of the provision of services. The above described rules have proved not to be effective to prevent social dumping and therefore the European legislator promoted the recent adoption of the Directive 2018/957/EU amending the Posting of Workers Directive 96/71/EC. The new approach undertaken by the EU legislator with the establishment of the principle of ‘same pay for the same work at the same workplace’ for posted and local workers is evaluated deeply in chapter III. The exam of the legal framework of the social security provisions in the EU is followed by a critical definition of the consequences of those provisions on the effectiveness of the social protection of posted workers (chapter IV). As to the conclusive remarks, a selection of possible legal instruments which would help to build a better protection of the posted workers are analysed, taking in consideration the suggestions of the European trade Unions and the academic community.