Transgovernmental Labour Standards Enforcement in a Pan‐European Labour Market : An Arms Race Between Institutional Alignment and Regulatory Arbitrage

This is a self-archived version of an original article. This version may differ from the original in pagination and typographic details. Author(s): Title: Year: Version: Copyright: Rights: Rights url: Please cite the original version: CC BY-NC 4.0 https://creativecommons.org/licenses/by-nc/4.0/ Transgovernmental Labour Standards Enforcement in a Pan‐European Labour Market : An Arms Race Between Institutional Alignment and Regulatory Arbitrage © 2024 The Author(s). JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons Ltd. Published version Lillie, Nathan; Brzozowska, Anita; Kall, Kairit; Salamońska, Justyna; Matuszczyk, Kamil Lillie, N., Brzozowska, A., Kall, K., Salamońska, J., & Matuszczyk, K. (2024). Transgovernmental Labour Standards Enforcement in a Pan‐European Labour Market : An Arms Race Between Institutional Alignment and Regulatory Arbitrage. JCMS: Journal of Common Market Studies, Early online. https://doi.org/10.1111/jcms.13650 2024 Transgovernmental Labour Standards Enforcement in a Pan- European Labour Market: An Arms Race Between Institutional Alignment and Regulatory Arbitrage NATHAN LILLIE, 1 ANITA BRZOZOWSKA, 2 KAIRIT KALL, 3 JUSTYNA SALAMOŃSKA 4 and KAMIL MATUSZCZYK 2 1 University of Jyväskylä, Jyväskylä 2 University of Warsaw, Warsaw 3 Tallinn University, Tallinn 4 Kozminski University, Warsaw Abstract Transgovernmental co-operation is an important European Union (EU) regulatory method, but it imposes transaction costs on the organizations involved. Regulatory requirements under conditions of European free movement drive transgovernmentalism, but transaction costs also shape transgovernmental regulation and regulatory outcomes. We investigate co-operation around labour standards regulation for posted construction workers, focusing on bilateral co-operation of labour inspectorates between Estonia and Finland and comparing it with co-operation efforts between Poland and Finland, and Ukraine via Poland to Finland. The shifting patterns of labour mobility and employer efforts to recruit from less regulated sources mean that investment in bilateral relations can be undermined by the dynamic character of the pan-European labour market. This article contributes to debates on EU regulatory governance by showing how transaction costs from co-operation can decrease the effectiveness of transgovernmental network-based governance; in the case of labour regulation, employers exploit this to undermine the effectiveness of labour inspection co-operation. Keywords: institutional alignment; labour inspection; labour mobility; posted workers; TCE; transgovernmentalism Introduction European free movement means that actors regulating national labour conditions, that is, unions and labour inspectorates (LIs) (hereinafter, regulators), 1 feel pressure to constantly renew their enforcement strategies and cross-national alliances. For this reason, ‘worker posting’, or intra-European Union (EU) 2 labour mobility through employers sending dependent workers from one EU country to work in another EU country, is one of the EU’s most controversial and active regulatory arenas (Jorens, 2022). Posting is particularly important in the construction sector, allowing firms to employ workers on foreign contracts, mixing and matching regulatory frameworks to find more favourable ones, raising the costs of protective regulation for posted workers and forcing transnational co-operation between unions and LIs. This is in part driven by the subcontracted character 1 Unions are seldom regarded as regulatory bodies, in the same sense as government enforcement agencies. Through ‘co-en- forcement’with labour inspectors, however, they have an important role in the labour standards regulatory process (Amengual and Fine, 2017). Where we are concerned with this aspect, we use the term ‘regulators’to mean unions as well as labour inspectors. 2 The free movement principle applies to 27 EU + 3 European Economic Area (EEA) countries. JCMS 2024 pp. 1–17 DOI: 10.1111/jcms.13650 © 2024 The Author(s). JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons Ltd. This is an open access article under the terms of the Creative Commons Attribution-NonCommercial License, which permits use, distribution and reproduction in any medium, provided the original work is properly cited and is not used for commercial purposes. of production organization, which facilitates transnational subcontracting to small transnational firms, which often try to evade regulatory enforcement. 3 Worker posting divides the regulation of the employment relationship between two or more countries, encouraging regulators to co-operate across borders. The pressure to co-operate arises from practical enforcement work in the field, following the needs of investigating violations or enforcing judgements and fines against violators across country borders [European Labour Authority (ELA), 2023]. From the perspective of a specific national enforcement agency, the impetus to co-operate can, in principle, emerge with any EU/EEA country but most often tends to follow patterns related to migration flows. To facilitate co-operation, many LIs have invested in co-operation ‘regimes’, 4 with partners in the countries that most often send workers. These regimes reduce the high transaction costs inherent in ad hoc regulatory co-operation and include both bilateral and multilateral transgovernmental linkages and supranational EU-level co-operation. Bilateral regimes favour higher levels of institutional alignment, allowing for successful enforcement cooperation, but suffer from the instability of migration flows. There is a ‘Red Queen’effect in that migration flows shift more quickly than regulators can adapt their strategies and transgovernmental relationships by forming new organizational networks and alliances. The Red Queen effect in evolutionary biology refers to situations where an organism must adapt as fast as possible to survive but not get ahead, referring to Lewis Carroll’sThrough the Looking Glass and What Alice Found There.In the book, Alice is frustrated by her inability to walk from one place to another. She meets the Red Queen, who informs her that ‘It takes all the running you can do to keep in the same place. If you want to get somewhere else, you have to run twice as fast.’This metaphor is often used to describe a situation so unstable that there is no way actors can adapt quickly enough. Our goal is to show how network-based governance can lead to a situation in which the required investment in transactional institutional alignment cannot be made quickly enough to gain a pay-off before the situation changes again and the institutions need to be revised yet again. The EU makes extensive use of transgovernmental network-based governance because it holds important regulatory competences but lacks the administrative resources and authority to implement and enforce this regulation in practice (Eberlein and Newman, 2008). We show how this method of regulation is susceptible to the Red Queen effect because of the possibility for employers to evade enforcement by escalating transaction costs. In bilateral relationships, the degree to which transaction cost escalation allows employers to evade enforcement depends on the stability of the labour flows, the degree to which LI preferences can be quickly aligned and LI’s ability to engage in identity work: if preferences are similar, if it is possible to meet and make personal contacts and if flows remain stable, re-establishing effective labour market control through co-operation is easier than if these conditions do not hold. Multilateral relationships cover more jurisdictions and are less vulnerable to the ‘Red Queen’effect, but they do not favour the deep institutional alignment possible in bilateral co-operation because it is more difficult and time-consuming to align preferences when there are many actors. In this way, 3 For an extended discussion of industrial relations and migration in the European construction industry and how this relates to worker posting, see Wagner (2018). 4 Young (1996)defines regimes as common sets of implicit or explicit principles, norms, rules and decision-making procedures. Nathan Lillie et al.2 © 2024 The Author(s). JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons Ltd. 14685965, 0, Downloaded from https://onlinelibrary.wiley.com/doi/10.1111/jcms.13650 by University Of Jyväskylä Library, Wiley Online Library on [14/08/2024]. See the Terms and Conditions (https://onlinelibrary.wiley.com/terms-and-conditions) on Wiley Online Library for rules of use; OA articles are governed by the applicable Creative Commons License we draw attention to the importance of transaction costs in transgovernmental co-opera- tion, in particular in the EU context. We first describe the EU posted work regime and show how the dilemma labour inspectors face with EU free movement both incentivizes and supports transgovernmental co-operation. We discuss how transaction costs emerge from and shape transnational regulatory co-operation. Next, we outline our research method of sustained observation and interviews with LI over time to chart the development of co-operative relationships. We then compare regulatory co-operation concerning posting flows from Estonia, from Poland and from Ukraine via Poland to Finland in the construction sector. Three types of co-operative relations emerge: bilateral, multilateral and ad hoc –these do not always map onto regulatory co-operation around each flow but describe specific interactions and pathways. The regulatory dynamic in Estonia is mostly bilateral, relying on intensive personal relationships and an alignment of methods and preferences within the inspectorates concerned, even in the face of deregulatory obstacles. Estonian and Finnish LIs share common goals and are able to mutually adjust their activities to fit the changing landscape of posting. They have better co-operation and enforcement outcomes. In contrast, regulatory co-operation between Finland and Poland occurs in the multilateral framework by default, with ad hoc union co-operation, but appears only occasionally to be effective. LI relies on impersonal contacts via information technology [notably the Internal Market Information (IMI) system]. For Ukrainian posted workers, the situation is even worse with no detectable institutional alignment with Ukrainian institutions, inhibiting enforcement of labour norms and collective agreements on behalf of Ukrainian workers. We conclude from comparing the three flows that transaction costs of co-operation shape the regulatory behaviour of the actors, and investing in bilateral institutional alignment –i.e., co-operation infrastructure –reduces costs and improves outcomes. However, employers can and do base their recruitment strategies on escalating regulatory costs, undermining this investment and fuelling the Red Queen effect. The EU’s active investment in co-operation infrastructure may eventually reduce transaction costs in multilateral co-operation sufficiently to subsume existing bilateral co-operation, but for the near term, at least we expect these frameworks to exist side by side. I. EU’s Posting Institutions and Infrastructure EU regulations share regulatory responsibility for posted work between the host and the sending country because the employment relationship and associated social insurance are governed by a combination of both regulatory regimes (ELA, 2023). Work contracts, wages and social security payments occur in the home country or in the employer’s country of incorporation (which can be different). LI organizations lack authority beyond the national border, and even when the work is in their jurisdiction, their capacity and authority to interpret foreign laws and enforce foreign decisions are limited. As posted workers’ contracts, salary deposits and social security contributions occur in the sending country, sending country LI is better positioned to monitor them (ELA, 2023). They are also familiar with the laws, contracts and practices of firms from their country, and posted work contracts are concluded under sending country terms [subject to certain host country standards, as per the Posted Workers’Directive (PWD)]. However, sending country LIs lack capacity and authority abroad, so they must rely on host country LIs to inspect the work Transgovernmental labour standards enforcement 3 © 2024 The Author(s). JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons Ltd. 14685965, 0, Downloaded from https://onlinelibrary.wiley.com/doi/10.1111/jcms.13650 by University Of Jyväskylä Library, Wiley Online Library on [14/08/2024]. See the Terms and Conditions (https://onlinelibrary.wiley.com/terms-and-conditions) on Wiley Online Library for rules of use; OA articles are governed by the applicable Creative Commons License sites, talk with the workers and see the context of relationships with other firms. They are not familiar with the laws and collective agreements in force on the work sites and thus have difficulty interpreting how these standards should be applied. The overall effect of the system is that enforcement is patchy, facilitating employer fraud, and in this sense, it is not a fully functional LI system (Wagner, 2018). In typical integrative EU fashion, the policy response has spilled over into transgovernmental regulation, subsidizing and encouraging multilateral transgovernmentalism. Whilst there is a deregulatory trend to restrict the ability of national regulators to regulate foreign service providers, exemplified by the so-called ‘Laval Quartet’, the EU has also favoured certain types of regulatory interventions and sought to build a transgovernmental infrastructure. Directive 2014/67/EU (hereinafter the Enforcement Directive) specifies tools and sanctions for enforcing the PWD. Directive (EU) 2018/957 updates the original 1996 PWD, including language to protect the right to strike, and allows unions to apply certain extended collective agreement provisions. EU legislation has complex interactions with national systems, so comprehensive analysis is not possible here, but the trend is to encourage regulatory actors to use tools compatible with free movement and to develop a transnational enforcement infrastructure, creating conditions for an EU-level enforcement regime (Arnholtz and Lillie, 2019). Hartlapp and Heidbreder (2018) characterize EU administrative co-operation as information co-operation (exchanging data between competent authorities), procedural co-operation (joint administrative practices) and organizational co-operation (establishment of stable co-operation networks and infrastructures). All three types result from front-line inspection requirements, following demands such as the results of investigations, as well as EU initiatives (Hartlapp and Heidbreder, 2018). Since the 1990s, the European Commission has supported the Senior Labour Inspectors Committee (SLIC), and since 2016, a European platform tackling undeclared work (EU UDW) has synchronized inspection processes and worked on common problems. The ELA is a permanent bureaucratic EU institution founded in 2019 that develops sector-specific inspection tools and facilitates transgovernmental co-operation on inspections to improve enforcement outcomes. 5 Day-to-day co-operation is facilitated by the IMI system software platform. Inspectors can submit requests for information or action via the system in their own language to inspectorates in other countries. Requests go to an IMI contact person, who determines how to respond and who to ask for help from in their own organization. This allows labour inspectors who may not know each other and may not share a language to transmit labour inspection requests to any other EU country. The system is generally considered useful, though limited, by the inspectors we interacted with. As co-operation between national regulatory bodies improves, employers seek out new labour sources where regulation is still weak. One option for employers is to recruit workers from outside the EU, called ‘Third Country Nationals’(TCNs) in EU parlance, as intra-EU posted workers (Danaj et al., 2023; Lens et al., 2022). The employer recruits TCNs in an EU member state where they can gain entry but sends the TCN to any desired EU member state to work, offering a cheaper and more vulnerable workforce. The introduction of TCNs makes established co-operation irrelevant or insufficient. TCNs within the EU do not have free movement rights under the free movement of labour, and each 5 https://www.ela.europa.eu/en/road-transport. Nathan Lillie et al.4 © 2024 The Author(s). JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons Ltd. 14685965, 0, Downloaded from https://onlinelibrary.wiley.com/doi/10.1111/jcms.13650 by University Of Jyväskylä Library, Wiley Online Library on [14/08/2024]. See the Terms and Conditions (https://onlinelibrary.wiley.com/terms-and-conditions) on Wiley Online Library for rules of use; OA articles are governed by the applicable Creative Commons License member state is entitled to decide which TCNs it will admit (Cillo, 2021). However, if one member state allows a TCN to reside and work, that TCN can be posted as a dependent employee, as Court of Justice of the European Union (CJEU) Case C-43/93 Vander Elst vOffice des Migrations Internationales (1994) clarified. Using the metaphor of ‘a hole in the wall of fortress Europe’, Lens et al. (2022) document that TCN re-posting is becoming a new way for employers to circumvent national restrictions on the employment of labour migrants. II. Regulatory Arbitrage, Transaction Costs and Institutional Alignment Some employers use posting as a way to arbitrage between labour regulatory regimes. This ‘regulatory arbitrage’(Fleischer, 2010) is a social technology to reduce labour costs. Both firms and LI are active in developing new strategies around it (Cremers, 2019), so that it takes on the character of an arms race. Although other forms of migration and employment construction are also used, posting is often favoured by employers because it provides an easy opportunity to confound regulation by arbitraging across multiple regulatory jurisdictions, raising the cost of regulation (Arnholtz and Lillie, 2019). This is possible because the terrain of regulation is determined in part geographically, in part by the nationality of people and companies and in part by legal choices, of which some are fictitious circumlocutions. As both regulators and firms strategize around each other’s actions, the regulatory terrain is dynamic. Firms actively seek opportunities to increase transaction costs for regulators, for example, by exploiting rules from foreign jurisdictions to escape inspectors’authority (Cremers, 2019). The implication for LI is that, whilst ideally, under free movement, they would have deep bilateral co-operation with every other LI in the EU, this is too costly, time-consuming and organizationally challenging. In diverse regulatory environments, co-operation strategies cannot be easily mimicked and transplanted between regulatory regimes; that is, they are ‘bespoke’(Spiller, 2013). Instead, transaction cost economics (TCE) leads us to believe that LIs will deepen bilateral co-operation with those easiest to work with and/or more important to their work and rely on more superficial EU-organized multilateral co-operation with the rest. Both multilateral and bilateral transgovernmental co-operation are motivated by practical concerns. The main driver is that host countries’LIs want information from sending countries about firms under investigation, assistance in collecting fines and follow-up on cases after the worker returns to the sending country to ensure host country rules are fully and effectively applied (Čaněk et al., 2018). Furthermore, sometimes sending country LI organizations want to protect ‘their’workers working for firms under their jurisdiction. Others feel that when these workers leave, they are no longer the sending country LI’s responsibility, and their limited resources are best focused domestically rather than on helping foreign organizations. How they define their organizational mission and professional role as labour inspectors is important in determining the reaction of sending country LI to co-operation initiatives. There is, therefore, a potential, though not a guarantee, for a mutual interest in regulatory co-operation. However, even when both sides are willing, TCE suggests that it probably occurs less often in practice than one might otherwise expect in the absence of transaction costs. Transgovernmental labour standards enforcement 5 © 2024 The Author(s). JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons Ltd. 14685965, 0, Downloaded from https://onlinelibrary.wiley.com/doi/10.1111/jcms.13650 by University Of Jyväskylä Library, Wiley Online Library on [14/08/2024]. See the Terms and Conditions (https://onlinelibrary.wiley.com/terms-and-conditions) on Wiley Online Library for rules of use; OA articles are governed by the applicable Creative Commons License Transaction costs can be reduced through investment in regulatory co-operation infrastructure. In TCE literature, regulation is described as an incomplete form of long-term contracting (Williamson, 1985), and most research has analysed it in terms of the relations between regulators and regulated organizations (Marjosola, 2021). Interorganizational costs arise from planning, adapting and monitoring task completion; these costs can be reduced through investment in the relationship (Williamson, 1985). This reduction is possible because most costs arise from information asymmetry, bounded rationality and the hazards of opportunism, which tend to be larger factors when the relationship is recent and superficial but decline with deepening co-operation (Spiller, 2013). LIs can reduce costs and risks by investing in co-operation, but they are constrained by the need to devote time and resources to each relationship. Co-operation is costly, requiring time and resources to realize. This is the fundamental insight of TCE: to successfully co-operate, co-ordination problems must be resolved, information learned, organizational changes made and identities and interests aligned (Williamson, 1985). The LI co-ordination we observe follows functional requirements, but our cases are also consistent with prioritizing the ‘low-cost’options. We show that just because co-operation is necessary does not mean it will happen or be effective. Eggertsson (1990) classifies transaction costs as (1) searching for information, (2) bargaining, (3) making contracts, (4) monitoring partners, (5) enforcing the contract and collecting damages and (6) protecting property rights. The first three are ex ante, meaning devoted to establishing the relationship, that is, institutional alignment, and serve to reduce the later three types of ex post costs. For LI, there are legal and information protection risks related to sharing information about firms’finances and activities and individual financial and social security data from workers. Assuming partner agencies will treat the workers and firms involved in their cases justly requires trust. In other words, for LIs to co-operate, they must not only know whom to contact but also know what is likely to happen when they do. Opportunistic behaviour by regulators can undermine co-operation, such as providing information only when it is to their advantage or underinvesting in the relationship. Furthermore, differences between the role of LI in a sending versus receiving state and the political and economic interests of the states themselves are possible barriers to co-op- eration. As far as the former is concerned, LI may regard its jurisdiction as ending at the border and might be less interested in enforcing foreign legal decisions than in enforcing its own. Either sending or receiving country LI organizations may regard the protection of posted workers as important, but if either or both do not, this becomes a barrier to regulatory co-operation. Martinsen et al. (2021) note that co-operation in networked welfare governance in the EU tends to be ‘homophilous’: similar states and actors co-operate more easily. Homophilous co-operation amongst LIs could manifest both in terms of similar types of LI’bureaucracies interacting more smoothly (as Walters et al., 2011, show, LIs are not homogenous in design or areas of responsibility) but also could reflect labour-sending versus labour-receiving state interests. Although all EU countries are both sending and host countries to every other EU member state, there are major discernable flows, reflecting underlying economic differences (De Wispelaere et al., 2022). Furthermore, political cleavages between sending and receiving member states are mirrored in welfare agency network interactions. Some EU countries see cheap posting as an export opportunity, and labour-exporting firms form an influential lobby. Nathan Lillie et al.6 © 2024 The Author(s). JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons Ltd. 14685965, 0, Downloaded from https://onlinelibrary.wiley.com/doi/10.1111/jcms.13650 by University Of Jyväskylä Library, Wiley Online Library on [14/08/2024]. See the Terms and Conditions (https://onlinelibrary.wiley.com/terms-and-conditions) on Wiley Online Library for rules of use; OA articles are governed by the applicable Creative Commons License Formally, the process of building transgovernmental LI co-operation is one of contracting, that is, producing documents, procedures and possibly legislation, but informally, the functionality of these arrangements is embedded in interorganizational identity work. Institutionalization of the relationship, in this context, means the creation of predictable processes and procedures between the contracting parties. It is the most visible part of the process, but in some ways, it is also the easiest part. Underlying it is also a less visible process of institutional alignment, which involves forming common norms, multi-level organizational links and personal relationships. Institutional alignment is both a formal process of agreements and an informal one. It can be initiated both from the top of the hierarchy and from the ground level, making it a multi-level process. Personal contacts bring life to formal institutional agreements by creating mutual norms and feelings of shared obligations (Kall et al., 2019). This minimizes opportunistic behaviour and facilitates activities extending beyond those immediately foreseen in the institutional arrangements. Identity work is slow and expensive (Snow and McAdam, 2000), making it easier to invest bilaterally rather than multilaterally because, as the bespoke nature of regulatory alignment implies, each relationship entails its own identity work and institutional alignment process. Deep transnational regulatory co-operation requires bespoke assets tailored for relationship-specific needs, which cannot easily be redeployed to other relationships. This is a difference between a multilateral regime and a bilateral one: bilateral regimes can be built on specific assets to make the relationship function, whilst multilateral ones are built on generalized infrastructure. As our cases demonstrate, regulatory co-operation outside of established personal relationships is relatively expensive and generally superficial. Substantive bilateral relationships, aligning institutions to move co-operation to ex post, are expensive to establish. Once established, however, activities become routine, so the cost of co-operation declines. III. Case Selection, Methods and Data This article studies three posting flows: intra-EU posting from Estonia to Finland; that from Poland to Finland; and TCN re-posting from Ukraine via Poland to Finland. Whilst most posted workers from Estonia are posted to Finland, Poland is a leading posting country in Europe due to its relatively low wages and large workforce (De Wispelaere et al., 2022). Poland is also a centre for TCN re-posting, especially from Ukraine to other member states. Between 2018 and 2021, the number of Ukrainian workers posted from Poland increased more than four times, from 18,000 to 80,000 (Danaj et al., 2023), reflecting an ongoing process of liberalizing migration from neighbouring countries, which began in 2006. This is also fostered by the rapidly developing infrastructure for the posting of workers (Matuszczyk et al., 2022). We focus on transnational LI co-operation, and in Finland and Poland, where trade unions are occasionally involved, we discuss their role as well. There is close and deep ‘co-enforcement’co-operation (to borrow the term of Amengual and Fine, 2017) between the Finnish construction union [Rakennusliitto (RL)] and the Finnish LI, whose capacities are complementary. The union and LI work together to enforce labour law and collective agreements. As a government body, the Finnish LI is better situated to manage formal co-operation with other state actors and with the Estonian LI, whilst the RL has more capacity to negotiate and force compliance by employers in Finland. LI is concerned with, Transgovernmental labour standards enforcement 7 © 2024 The Author(s). JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons Ltd. 14685965, 0, Downloaded from https://onlinelibrary.wiley.com/doi/10.1111/jcms.13650 by University Of Jyväskylä Library, Wiley Online Library on [14/08/2024]. See the Terms and Conditions (https://onlinelibrary.wiley.com/terms-and-conditions) on Wiley Online Library for rules of use; OA articles are governed by the applicable Creative Commons License and limited to, enforcing the law, whilst the union is concerned with enforcing the (legally extended) collective agreement. Although the Finnish LI is well resourced compared with other countries, their resources are limited compared with the union, which not only has paid officials but also relies on shop stewards and active members. The Polish construction union is not active amongst posted workers, and in Estonia, the construction sector is practically without union presence. The analysis relies on data from a series of research and social engagement projects funded by Directorate-General (DG) Employment and Social Affairs. As a whole, the trajectory of our social engagement projects could be regarded as an extended participatory action research project, in which we involved unions, LI and other actors in managing the research as a way for them to reflect on and improve their worker protection strategies. This extended proximity to our research participants allows us to reflect on long-term developments, triangulate facts, actions and motives from multiple directions and observe interactions rather than only hear about them. We are aware that it brings us close to the participants in a way that could make us more sympathetic to them; this bias, however, is not relevant to the analysis at hand, as our conclusions do not reflect normatively on our participants. We held seminars, focus groups and interviews with unions, employers’associations, employment agencies, border patrol, police, government ministries, LIs, law firms, the third sector and academics from 2017 to 2022. We observed the development of relationships and strategies around posting. The main project here was Con3post (Posting of Third Country Nationals: Mapping of Trends in the Construction Sector), about re-post- ing TCNs in the EU, involving three focus group interviews (FGIs) with 8–12 participants and three seminars in Finland (with Finnish and Estonian stakeholders) and Poland (with Polish stakeholders and Ukrainian community representatives in Poland) in 2019 (for methodological details of Con3Post, see Kall et al., 2020). From the PROMO project (Protection of Posted Workers in the European Union, 2017–2018), we use a 2017 focus group with LI from various countries, including Estonia and Finland. We draw on selected interviews from the POW-Bridge project 6 (‘Bridging the Gap between legislation and practice in the posting of workers’) of stakeholders and representatives of posting companies (for methodological details, see Matuszczyk et al., 2021). Finally, we rely on an FGI with Finnish LI and unionists and interviews with two Ukrainian posted workers from the SMUG project (‘Secure Mobility’) in 2022. These projects used purposive sampling, selecting participants to address particular research questions. All participants were informed of the project’s aims and consented to take part. Interviews were conducted in-person or online. All interviews (see Appendix A) were audio recorded, transcribed and thematically analysed. Interviews varied in length between 20 min and 2 h, whilst the FGIs lasted between 2 and 4 h. Documents and agreements also informed our co-operation taxonomy, but actions on specific cases, statements of inspectors about the character of the relationship and the costs and advantages involved are at the centre of our analysis. A limitation of our data as it relates to TCNs is that we collected it prior to the increased Russian aggression in Ukraine in February 2022, and since then, Ukrainian 6 POW-Bridge was co-financed in 2021 by funds from the Ministry of Science and Higher Education (Poland) programme ‘PMW’(ID 5204/EASI/2021/2). Nathan Lillie et al.8 © 2024 The Author(s). JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons Ltd. 14685965, 0, Downloaded from https://onlinelibrary.wiley.com/doi/10.1111/jcms.13650 by University Of Jyväskylä Library, Wiley Online Library on [14/08/2024]. See the Terms and Conditions (https://onlinelibrary.wiley.com/terms-and-conditions) on Wiley Online Library for rules of use; OA articles are governed by the applicable Creative Commons License Correspondence: Nathan Lillie, Department of Social Sciences and Philosophy, University of Jyväskylä, Ylistönmäentie 33 PL35, Jyväskylä 40014, Finland. email: nathan.a.lillie@jyu.fi References Amengual, M. and Fine, J. (2017) ‘Co-enforcing Labor Standards: The Unique Contributions of State and Worker Organizations in Argentina and the United States’.Regulation & Governance, Vol. 11, No. 2, pp. 129–142. Arnholtz, J. and Lillie, N. (eds) (2019) Posted Work in the European Union: The Political Economy of Free Movement (New York and Abingdon: Routledge). Čaněk, M., Kall, K., Lillie, N., Wallace, A. and Haidinger, B. (2018) Transnational Cooperation Among Labour Regulation Enforcement Agencies in Europe: Challenges and Opportunities Related to the Posting of Workers. 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See the Terms and Conditions (https://onlinelibrary.wiley.com/terms-and-conditions) on Wiley Online Library for rules of use; OA articles are governed by the applicable Creative Commons License Appendix A: List of Interviews Code Type of interview Participant Date In-person/ telephone/ remote = video conference Language POW- Bridge_01_WAR Expert Social partner/employers’ association 08-09-2020 Telephone Polish POW- Bridge_02_WAR Expert Union 21-09-2020 In-person Polish POW- Bridge_03_WAR Expert Public administration 09-09-2020 In-person Polish POW- Bridge_04_WAR Expert Employer 01-10-2020 Remote Polish POW- Bridge_05_WAR Expert Public administration 02-10-2020 In-person Polish POW- Bridge_13_WAR Expert Employer 25-11-2020 Remote Polish SMUG_14_HEL FGI Unions, LI 14-03-2022 In-person Finnish SMUG_15_JYV Interview Ukrainian posted worker 27-10-2021 Telephone Russian SMUG_16_JYV Interview Ukrainian posted worker 27-10-2021 Telephone Russian Con3Post_17_HEL FGI LI, unionists, researchers, police and border guards 19-09-2019 In-person English Con3Post_18_WAR FGI Employment agency, third sector 10-10-2019 In-person Polish Con3Post_19_WAR FGI LI, employment agencies, law firms, third sector organization, unions, academics 21-10-2019 In-person Polish Con3Post_20_WAR FGI Employment agency, third sector 10-10-2019 In-person Polish Con3Post_21_WAR FGI LI, employment agencies, law firms, third sector organization, unions and academia 21-10-2019 In-person Polish PROMO_22_HEL FGI LI 24-05-2017 In-person English Abbreviations: FGI, focus group interview; LI, labour inspectorate. Transgovernmental labour standards enforcement 17 © 2024 The Author(s). JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons Ltd. 14685965, 0, Downloaded from https://onlinelibrary.wiley.com/doi/10.1111/jcms.13650 by University Of Jyväskylä Library, Wiley Online Library on [14/08/2024]. See the Terms and Conditions (https://onlinelibrary.wiley.com/terms-and-conditions) on Wiley Online Library for rules of use; OA articles are governed by the applicable Creative Commons License