migration in and to
the European Union
EBoP Project
The European Birds of Passage project investigates the legal framework for temporary labour migration in the European Union and to the European Union, and in particular, the way in which labour and/or social rights of temporary labour migrants are treated under EU and national law. The project covers three types of temporary labour migration, namely posting of workers, seasonal work, and intragroup transfers. While usually analysed separately by legal scholarship these are united by their empirical similarities, as well as by the “less-than-equal” treatment they are awarded by the EU legal framework when it comes to working conditions and/or access to social security in the country of arrival. These differences in treatment are at the heart of multiple debates. They sparked an open conflict between the standards of the European Social Charter and EU law in the field of posting of workers, and they underpin political struggles concerning the risks of social dumping or protectionism.
Types of temporary labour migration
Posting of workers
Posted workers are temporarily sent by their employer to a Member State other than the State in which they normally work to carry out a provision of services. The most recent data indicate that in 2020 there were 1.4 million of individual postings in the EU, continuing the previous upward trend notwithstanding the impact of COVID-19. Posted workers in the EU are covered by the wages and working conditions of the Member State where they habitually work, that is, their home state. However, the Posting of Workers Directive provides for a closed list of conditions in force in the Member State of arrival which must be applied to posted workers, including important aspects such as remuneration and maximum working time. Posted workers also remain affiliated to the social security system of their home country as long as the duration of posting does not exceed 24 months.
Seasonal work
Seasonal workers under EU law are third-country workers residing in non-EU countries who stay legally and temporarily in the territory of an EU Member State to carry out an activity dependent on the passing of the seasons. Although seasonal work is highly concentrated in some sectors, such as agriculture and tourism, the Directive covers all economic activities. Data from Eurostat indicates wide differences between Member States when it comes to the number of seasonal workers admitted each year, which in 2019 went from around 46000 in Poland to a few hundred in Latvia. Seasonal workers are covered by the principle of equal treatment with local workers concerning their working conditions. However, they can be excluded from social security benefits such as family and unemployment benefits, study and maintenance grants or loans, and housing benefits.
Intragroup transfers
Intra-corporate transferees are third-country nationals residing in non-EU countries sent by their employer, also established outside of the EU, to work in an undertaking or company established in the EU and part of the same economic group. The scheme is limited to some broadly defined professional figures, notably trainees, specialists, and managers. Data concerning intra-corporate transfers are limited and missing for several Member States. In 2010, that is, before the adoption of the new Directive, the European Commission estimated that around 15000 intra-corporate transfers were arriving in the EU per year. Intra-corporate transferees enjoy the same treatment as posted workers in terms of working conditions. A guarantee of equal treatment with comparable local workers as regards remuneration also features in the relevant Directive. However, Member States can exclude intra-corporate transfers from the payment of family benefits if their period of stay does not exceed nine months.
EBoP Analysis
E-BoP brings together legal and quantitative analysis of the phenomenon of temporary labour migration to analyse how the law uses concepts which are either legally undefined (“labour market”) or are used in a way which seems to be at odds with their empirical reality (“temporariness”) to underpin said “less-than-equal” treatment. The project is motivated by the growing importance of the phenomenon of temporary labour migration, both from a quantitative and a political point of view. Indeed, the fact that temporary labour migration has been less impacted than permanent one, at a time when international mobility was greatly reduced by the COVID-19 pandemic, has been one of the key inspirations for the project.