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Posted workers, judges and smokescreens: Narrowing the gap in judicial control

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JournalEuropean law review
DateSubmitted - 3 Jan 2022
DateAccepted/In press (current) - 9 May 2022
Original languageEnglish

Abstract

Posted workers cannot challenge administrative decisions about which social security law applies to them in the courts of the State of destination. This lack of jurisdiction is all the more problematic as (i) such decisions are regularly made without checking whether the conditions for being posted are actually fulfilled and (ii) judicial protection in the State of origin is found wanting. These weaknesses in the administrative and judicial enforcement of the posting rule facilitate non-compliance, enabling employers to choose a relatively cheap social security system. Such social dumping affects workers, competitors, and social security systems. Despite recent ECJ case-law on fraud, all too often administrators bind judges rather than the other way around. This article proposes a fundamental rethinking of adjudicative jurisdiction, premised on the idea that if no administrative decision is to be unchallengeable in practice, at least one actor should have an incentive and the capacity to bring judicial proceedings.

Bibliographical note

Due for publication in August issue.

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