FES BRIEFING LABOUR INTERMEDIARIES AND LABOUR MIGRATION IN THE EU – A FRAMING PUZZLE TO RULE THE MARKET(AND AVOID THE MARKET OF RULES) October 2024 SUMMARY BACKGROUND Third-country nationals often rely on labour intermediaries for assistance when trying to obtain a work permit in EU Member States because the procedures can be onerous. These interme­diaries are often involved in long and opaque subcontracting chains that companies use to cut labour costs. The many exploitative practices that labour intermediaries engage in suggest that it would be a good idea to switch from a repressive to a preventive approach. The purposes would include, among other things: promoting direct employment by clarifying who the employer is; increasing labour market transparency by introducing an EU registration and licensing system for temporary work agencies and private employment agencies; and forbidding practices that negatively affect working conditions and trade union rights by banning or limiting temporary agency work and subcontracting. ABOUT THE AUTHOR Silvia Borelli is Professor of Labour Law at the University of Ferrara. She belongs to the Editorial Committees of Lavoro e Diritto and Rivista giuridica del lavoro(journal members of the International Association of Labour Law Journals) and is a member of the Academic Network on the European Social Charter and Social Rights(Réseau académique sur la charte sociale européenne et les droits sociaux). She has been involved in many research projects at national and European level, including the ETUC project Securing Workers Rights in Subcon­tracting Chains; the EFBWW project Cross-border Social Fraud / A  buse in Social Security; and the ETUI project Mapping the Rules on Posting and Short-term Migration of Third Country Nationals. Third-country nationals(TCNs) seeking employment in the European Union(EU) face numerous challenges because of the absence of unified recruitment procedures. Each Member State imposes different conditions and requirements, creating confusion among third-country nationals regarding how to obtain a work permit. Often unfamiliar with their rights, they are exposed to exploitation, particularly when relying on labour intermediaries for assistance with visas, accommodation and transportation. Different labour intermediaries step in to‘facilitate’ the recruitment process for third-country nationals, making these workers dependent on them for various services. Furthermore, third-country nationals posted by their employers to other EU Member States are especially vulnerable. In fact, posted third­country nationals are doubly dependent on their employer because they have permission to reside as long as they are posted by him/her. 1 Therefore,‘posted third-country national workers are generally more exposed to abusive practices, such as fraudulent posting, labour rights violations, precarious working conditions or irregular payment or non-payment of social contributions’(European Commission, 2024: 33; Milieu Consulting SRL and EFTHEIA, 2023: 8). Often, they accept remuneration below what they are entitled to, but which is still much higher than what they can obtain in their country of origin(Ecorys, HIVA-KU Leuven, Spark Legal and Policy Consulting, and WMP Consult, 2024: 169). Furthermore, in the case of posting of workers, third-country nationals ben­efit from the right to equal treatment only with home state nationals(Article 12 Directive 2024/1233). On many occasions, labour intermediaries operate in long and opaque subcontracting chains, often set up to separate 1 A state can require a residence permit for posted third-country na­tionals only after a three-month period of residence, if this is in the public interest and does not go beyond what is necessary in order to attain that objective(ECJ, 20.6.2024, C-540/22,§ 102). 1