The Revision of the Posted Workers Directive as a Meaningful Way to Curb Regulatory Competition in the Social Domain?

The paper addresses the issue of regulatory competition in the social domain, by dealing with the case of posted workers, which is now the most controversial aspect of the debate on this form of regulatory competition, despite it being just one of the possible ways in which undertakings established in countries with lower labour costs can exploit their competitive advantage. More in detail, the analysis focuses on the debate concerning regulatory competition in the light of the revision of the Posted Workers Directive (‘PWD’). The revision of the PWD is presented as an exercise of reactive law-making. On the one hand, it sought to react to a mutated economic landscape, which incentivizes the recourse to posting as a way to hire cheap labour. On the other, the revision aimed at rebalancing the relationship between the promotion of free movement of services and the safeguard of social objectives in the context of posting, reacting to the one-sided approach adopted by the Court. The paper argues that the Revised PWD is more favourable to the position of receiving Member States and it offers greater protection to posted workers’ rights than the original version of the PWD and also of the Commission’s Proposal. However, it is far from certain whether such revision will prove enough to avoid, or at least significantly reduce, the recourse to posting as a tool for unfair regulatory competition. This will largely depend on how some of the key elements of novelty of the Revised PWD will be interpreted by the CJEU and implemented by national authorities.