The EU Free Movement of Services and the growing mobility of Third-Country Nationals as posted workers

Over the past decades, a rich literature developed discussing the remarkably strong role the European Court of Justice (CJEU) played in shaping a deeply integrated single market and European society. Scholars labelled the CJEU’s influence on Europe’s institutional evolution as the judicialization of the European regime. Some decried this influence as a problem of democratic deficit, others claimed that the CJEU actually adjusts more to state preferences than often assumed. This article empirically 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 need to apply for work permits in the countries of posting – and this on the basis of the free movement of services. Making use of unique Belgian data on posting (LIMOSA registration system), we evaluate the degree to which the CJEU’s case law designed a mobility regime for TCN posted workers. Our data demonstrate that this mobility regime – exclusively created by case-law starting 25 years back – is a ‘grand success’ in two ways: 1) data show that this migration regime is successfully used by a growing number of posted TCNs; 2) the same data indicate that the number of TCNs entering based on posting even outnumbers the TCNs entering through the classic national migration route of work permit and visa. This small regime – carved out through the cooperation of the Court and the EU Commission – further lessens the migration sovereignty of Member States. At the same time, the rising use of posting indicates the increasing role of the free movement of services in developing a single European labour market.