The Right Not to Have Rights: Posted Worker Acquiescence and the European Union Labour Rights

Free movement plays a fundamental role both in the institutional construction and normative expectations of EU citizenship. Not only has the emergence of the EU citizenship agenda mainly taken place along the evolution of mobility rights, but also the exercise of free moment rights by European citizens is crucial to the construction of a European civil and political society.  However, the Arendtian dilemma of the ‘right to have rights’ – a dilemma derived from the claim that rights depend on the existence of a political community, which until now is the territorially exclusive nation-state, rather than universal personhood – emerges in relation to industrial citizenship, in particular in relation to the international. By severing the relationship between state, territory and citizen on which industrial citizenship has been built, European institutions undermine worker collectivism, with the stated intention of freeing up markets and reducing barriers to free movement.  This article will show that these allegedly market enabling measures neither enable markets, nor are they meant to, but rather have the purpose and effect of weakening both collective labour institutions, and workers’ ability to act as autonomous market actors.  The same factors which prevent mobile workers from collectively negotiating working conditions, and from accessing labour rights and collective agreements in host countries also prevent them from negotiating their individual contracts effectively, and from enforcing those contracts in the face of systematic employer fraud and wage theft.  This study will develop this argument through an investigation of how the right to have rights is resolved in the EU for mobile “posted” workers in practice.