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Document 62003CC0445

Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 15 July 2004.
Commission of the European Communities v Grand Duchy of Luxemburg.
Failure of a State to fulfil obligations - Freedom to provide services - Requirements imposed by the host Member State on undertakings which deploy within its territory salaried workers who are nationals of non-member countries.
Case C-445/03.

European Court Reports 2004 I-10191

ECLI identifier: ECLI:EU:C:2004:469

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Conclusions

OPINION OF ADVOCATE GENERAL
RUIZ-JARABO COLOMER
delivered on 15 July 2004(1)

Case C-445/03

Commission of the European Communities
v
Grand Duchy of Luxembourg

(Failure to fulfil obligations – Freedom to provide services – Requirements imposed on undertakings of another Member State temporarily posting workers who are nationals of non-member countries)

1. In the present proceedings the Commission seeks a declaration that the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 49 EC by reason of the requirements it imposes on undertakings established in another Member State which post workers who are nationals of non-member countries for the purpose of supplying services in Luxembourg.

I – The Community legal framework

2. The first paragraph of Article 49 EC provides that, ‘within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended’.

II – The relevant national law

3. The Règlement grand-ducal of 12 May 1972 (hereinafter, ‘the 1972 Regulation’ (2) ) lays down the general principle that a foreign national shall not be employed on Luxembourg territory without the requisite authorisation. This is not applicable to workers who are nationals of a Member State of the European Union or of a State which is party to the Agreement on the European Economic Area (Article 1).

4. Such authorisation takes the form of a permit, of which there are four types, each subject to different requirements (Articles 2 and 3). It is prohibited to employ a foreign worker without a permit and without having previously informed the authorities of the post to be filled (Article 4).

5. The permit may be granted, refused or withdrawn by the Minister for Employment or the Minister’s representative, taking into consideration the state of the labour market, its development and organisation (Article 8).

6. The legislation contemplates, in exceptional cases, a collective authorisation for workers temporarily posted to Luxembourg by an undertaking, including a Luxembourg undertaking. For such a collective authorisation there must be a contract of employment of unlimited duration commencing at least six months prior to the posting. In any event the authorisation cannot exceed eight months, inclusive of any extension, and cannot be extended more than once (Article 9).

7. Individual permits and collective authorisations are granted upon provision by the undertaking in question of a bank guarantee in the minimum amount of LUF 60 000 (3) per worker (Article 9a).

8. The penalty for failure to comply with the requirements set out in the 1972 Regulation is a fine and, in certain circumstances, a term of imprisonment (Article 12). (4)

III – Pre-litigation procedure

9. On 19 May 1999 the Commission drew the attention of the Luxembourg Government to the fact that the conditions imposed for the cross-border supply of services using foreign workers were, in its view, incompatible with Article 49 EC.

10. Luxembourg’s Permanent Representation drew up written observations dated 16 September 1999 requesting clarification of the Commission’s position. Once this had been provided, it submitted a further response on 8 April 2002, by which time the reasoned opinion had been delivered to it on 21 March 2002. Luxembourg’s Permanent Representation did not reply to this.

IV – Defining the problem

11. The foregoing account of the legal framework clearly shows that the Commission is calling into question the compatibility with the Treaty of the requirements of the 1972 Regulation for undertakings established in other Member States which employ non-member country nationals to supply services in Luxembourg.

12. This case is not therefore concerned with establishing the existence of discrimination contrary to Community law, since Luxembourg undertakings employing foreign workers must also fulfil the requirements. (5) Instead it concerns a potential restriction on the freedom to provide services, which is prohibited by Article 49 EC.

13. For that reason we can dismiss certain arguments put forward by the defendant Member State to the effect that an inequality of treatment to the detriment of Luxembourg undertakings could arise. However, the situations are not comparable as undertakings established in other Member States have already satisfied the legal requirements for the employment of workers from non-member countries whilst those established in Luxembourg have not.

14. Nor is the treatment accorded to workers who are not Member State nationals and who are lawfully in Community territory in question here.

15. In order to tackle the question arising in this case it is helpful to examine briefly some aspects of the supply of cross-border services using foreign workers and to look at the state of development of Community law, in view also of the fact that, as will be explained below, this is not the first time the Court of Justice has had occasion to rule on such matters.

V – Some aspects of the provision of cross-border services using foreign workers

16. According to Article 3(1)(c) EC, one of the objectives of the Community is the abolition, as between Member States, of obstacles to the free movement of services and this includes the right to provide services in any of the Member States by posting staff there, even if they are non-member country nationals who are lawfully present in the Community.

17. Suppliers of services wishing to exercise this right encounter various difficulties. One relates to the requirement to obtain an authorisation, the granting of which is not only discretional but problematic, involving bureaucratic procedures which may be lengthy, complex or costly. Another difficulty relates to having to undergo checks over and above (or duplicating) those imposed by the Member State of establishment. These procedures often lead to the supplier withdrawing from supplying the service or having to put up with damaging delays.

18. However, it is also true that the Member State in which the services are to be provided has no guarantee that the workers to be posted are in compliance with applicable legal requirements, that their work is mainly carried out in the Member State where the supplier is established or that at the end of the job they will return from whence they came.

19. In this regard, the Member State in which the service is to be supplied cannot be prevented from exercising some control over how it is carried out, basically in order to prevent illegal immigration, fraudulent and abusive employment practices or in the interests of public policy, public security or public health.

20. Lastly, it goes without saying that the nature of the services to be supplied is relevant to the terms and duration of the posting.

VI – The state of development of Community law

A – Legislation

21. Community involvement with issues arising from the supply of services by undertakings from one Member State in another using workers who are not nationals of the second Member State dates back a long way.

22. Leaving aside questions of social security, there are several possible scenarios in which, as mentioned above, various different interests co-exist. The two most important concern, firstly, the position of workers who are nationals of Member States other than that in which the service is supplied, and, secondly, that of workers coming from non-member countries.

23. The first case is governed by Directive 96/71/EC, (6) since, although it makes no distinction between workers who are nationals of Member States and foreign workers, its scope appears to be limited to Community workers, judging by the reasons given for adopting the Directive and its objectives.

24. On the other hand, there is no similar legislation on the posting of workers who are non-member-country nationals for the cross-border provision of services.

25. There is, however, a proposal for a directive on the subject. (7) This centres around a temporary document known as an ‘EC service provision card’, issued by the Member State of establishment, which would guarantee that the service provider and the worker to be posted are in compliance with applicable legal requirements, that the worker will be readmitted at the end of the provision of services and that the Member State in which the service is provided will not impose its own requirements in relation to entry, residence and access to a temporary paid activity, in particular a visa, residence permit, work permit or other similar condition. That Member State, however, retains the right to require notification of the presence of the worker being posted and the service being provided and the right to adopt such measures as may be necessary on grounds of public policy, public security or public health.

B – Case-law

26. As I said, the Court of Justice has already addressed some of the issues arising in this case in connection with the temporary posting of workers in the framework of the cross-border provision of services. (8)

27. According to settled case-law Article 59 of the Treaty ‘requires not only the elimination of all discrimination on grounds of nationality against providers of services who are established in another Member State, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less attractive the activities of a provider of services established in another Member State in which he lawfully provides similar services’, (9) to the extent that such application ‘involves expense and additional administrative and economic burdens’. (10)

28. Even in the absence of Community rules, as in this case, the Court of Justice has stated that ‘the freedom to provide services, as one of the fundamental principles of the Treaty, may be restricted only by rules justified by overriding requirements relating to the public interest and applicable to all persons and businesses operating in the territory of the State where the service is provided, in so far as that interest is not safeguarded by the rules to which the provider of such a service is subject in the Member State where he is established’, (11) thus invoking, albeit implicitly, the principle of proportionality, given that ‘the application of the national rules of a Member State to providers of services established in other Member States must be appropriate for securing the attainment of the objective which those rules pursue, and must not go beyond what is necessary in order to attain it’ . (12)

29. Overriding requirements relating to the public interest which have been acknowledged by the Court include the protection of workers, (13) whereas it has rejected considerations of a purely administrative nature as justifying ‘derogation … from the rules of Community law, especially where the derogation in question amounts to preventing or restricting the exercise of one of the fundamental freedoms’ of the European Union. (14)

30. The Court of Justice has also held that ‘workers employed by a business established in one Member State who are temporarily sent to another Member State to provide services do not, in any way, seek access to the labour market in that second State if they return to their country of origin or residence after completion of their work’, (15) and consequently they should not be regarded as ‘belonging to the job market in that State’. (16)

31. Nevertheless, the Court has warned that since the concept of the provision of services covers different activities, the same consequences do not necessarily follow in all cases. The Court thereby allows the possibility of Member States imposing checks provided that they observe the requirements of Community law and, in particular, those stemming from the freedom to provide services, which cannot be rendered illusory and whose exercise may not be made subject to the discretion of the authorities. (17)

VII – Legal analysis

32. In the light of the above, it is necessary to consider the following questions in turn: does the Luxembourg legislation constitute a restriction on the freedom to provide services; if so, is it justified by overriding requirements relating to the public interest and is that interest already protected by the laws of the Member State of establishment of the supplier; and, lastly, is it possible to achieve the same result by means of less restrictive rules?

33. The analysis should be applied to the requirements set out in the 1972 Regulation, namely a prior authorisation, a contract of employment of unlimited duration entered into at least six months prior to the posting and the provision of a bank guarantee.

A – The existence of a restriction on the freedom to provide services

34. The starting point is the situation where an undertaking established in one Member State provides services in another Member State using its own workers, some or all of whom are nationals of non-member countries, thus giving rise to a temporary posting of such workers. If in this situation the host Member State applies employment legislation which hinders such posting then this indirectly hinders the activities of the undertaking employing the workers. (18)

35. There seems to be no doubt that the abovementioned requirements of the 1972 Regulation, whether viewed together or independently, amount to a restriction on the freedom to provide services since they require a Community undertaking wishing to use its foreign workers to comply with certain formalities which it would not be required to comply with if it was supplying the services in its Member State of establishment.

B – Justification and proportionality

36. The 1972 Regulation falls within the field of employment law, although it is related to the Luxembourg legislation on foreign nationals. (19) The Luxembourg Government itself believes that this legislation makes local social legislation more effective by reinforcing it in areas such as minimum wages, safety at work and the duration of contracts of employment. (20)

37. It can be deduced from reading the 1972 Regulation that one of its primary objectives is to regulate the labour market. It should be noted that the granting, refusal and withdrawal of individual permits falls within the competence of the Minister for Employment or his representative, taking into consideration ‘the state of the labour market, its development and organisation’ (Article 8). (21)

38. The prior authorisation, the requirement for specific types of contract and the provision of a guarantee all contribute to the protection of workers, which, as previously mentioned, (22) constitutes an overriding requirement relating to the public interest which would justify the restriction. They also act as a means of preventing fraud by, for example, preventing the service provider employing foreign workers for the sole purpose of making them available to other undertakings.

39. In this regard, as mentioned above, (23) the Court of Justice has acknowledged the legality of checks introduced for such purposes, provided that they observe the limits imposed by Community law, and in particular those stemming from the freedom to provide services, and that they are proportionate to the objectives to be attained.

40. It is therefore essential to look at the proportionality of the Luxembourg legislation in relation to the protection of foreign workers and to ascertain whether the same result could be achieved by using other legislative means which are less restrictive of the freedom of establishment.

41. In the absence of Community legislation in the field, it is not appropriate to advocate removing all national law restrictions in Member States where services are provided by undertakings using foreign workers. Nor is it correct to allow the Member State of establishment to exercise all the control. Community law appears to have chosen a third path in view of the interests at stake. (24)

42. At present, in the absence of an organised system of cooperation or exchange of information between Member States, Article 49 EC does not require Member States to repeal measures that are proportionate and justified by the protection of workers posted, provided that they do not duplicate those of the Member State of establishment or, as the case may be, they are taken for reasons of public policy, public security or public health.

C – How this reasoning applies to the measures contained in the 1972 Regulation

1. The prior authorisation

43. The first of the requirements imposed by Luxembourg for foreign nationals to work in its territory in the context of the provision of services by an undertaking from another Member State (25) is to obtain, in advance, an individual or collective work permit.

44. It is difficult to understand how this measure contributes to the protection of workers. If the objective is, quite legitimately, to have a record of the presence of the workers, the services provided and the conditions under which they are provided in order to make them subject to the applicable legislation of the Member State, (26) this would not necessitate such an extreme measure. A notification containing the relevant details would be sufficient. (27)

45. If the objective is to ensure that such workers are subject to local social legislation, then the requirement for prior authorisation, as currently drafted, does not have this effect. Nor does Community law prevent it since, as the Court of Justice has stated, there is nothing to prevent the laws of the Member State to which the workers have been posted applying to them. (28)

46. The principle of priority for Community nationals as regards employment enshrined in Regulation (EEC) No 1612/68 (29) and invoked by the Luxembourg Government (30) also remains unaffected, since what is under discussion here is not workers being taken on and hence gaining access to the labour market, (31) but the provision of services by an undertaking from another Member State which has such workers on its staff and which has had to fulfil a series of requirements.

47. Furthermore, it should be kept in mind that the work permit is granted or refused on a discretionary basis. Although, as the Luxembourg Government points out, this is not inconsistent with judicial review at a later stage, the decision should be taken on legal grounds rather than for reasons of expediency and the only general legal concepts set out in the 1972 Regulation for the purposes of such decision in relation to the individual permit refer to the ‘state of the labour market, its development and organisation’ (Articles 8 and 10). (32)

48. In any event, the fact that a form of judicial review exists does not undermine the statements made above. On the contrary, if an undertaking from another Member State which wishes to post its foreign workers is refused authorisation by the Luxembourg authorities under their discretional powers and is forced to go to court, it will encounter another obstacle to the freedom to supply services. This would clearly be less of an obstacle if the authorisation were made less discretionary or replaced by a prior notification containing the information relevant to the checks permissible under Community law. (33)

49. Furthermore, if one of the main objectives of the prior authorisation is to control access by workers of non-member countries to the Luxembourg labour market, then, as case-law in similar circumstances has indicated, the requirement exceeds what is necessary for the supply of services. Staff of an undertaking established in one Member State who are temporarily sent to work in another Member State are not seeking access to the labour market of the second Member State as they return to their country of origin or residence once the work is completed. (34)

2. The requirements relating to contracts of employment

50. In the case of the collective authorisation, the Luxembourg legislation requires not only prior authorisation but also that the undertaking established in another Member State shall have entered into a contract of employment of unlimited duration, dating back at least six months prior to the posting, with the foreign workers posted to the country (Article 9, paragraph 1).

51. Such requirements, whether or not they are acceptable in other respects, no doubt afford greater protection to foreign workers sent to work in Luxembourg and prevent fraudulent activities such as ad hoc employment contracts or the kind of contracts described by the Luxembourg Government which exploit the workforce coming from outside the Community or distort competition through social ‘dumping’. However, leaving aside such considerations, given the broad and general terms in which they are framed, such requirements are disproportionate for the protection of foreign workers posted by Community undertakings for the cross-border provision of services. It is not clear to me why, in these circumstances, a contract of unlimited duration or one which dates back a certain time gives protection which is any greater than or any different to any other kind of contract simply because the service is provided in Luxembourg. (35) Contracts of this type might well promote stability of employment but this is always going to be the case, and not only when workers travel to another Member State to make a cross-border supply of services.

52. On the contrary, as the Commission cautions, such requirements lead to sectors in which temporary employment is common being excluded. This makes the requirements disproportionate and renders illusory the Community freedom to supply services, in so far as services of an occasional or short-term nature are concerned. (36) In addition, they would be likely to prevent, for example, a newly established undertaking from operating in Luxembourg using foreign workers since the requirement that the contract date back at least six months means, in effect, that the undertaking must have been in existence for at least that period.

53. Whilst, as the defendant Government submits, it is true that the Vander Elst judgment (37) interpreted Articles 59 and 60 of the Treaty ‘as precluding a Member State from requiring undertakings which are established in another Member State and enter the first Member State in order to provide services, and which lawfully and habitually employ nationals of non-member countries, to obtain work permits for those workers from a national immigration authority and to pay the attendant costs, with the imposition of an administrative fine as the penalty for infringement’, (38) this statement does not mean that lawful and habitual employment can be equated with a particular type of contract such as one of unlimited duration dating back at least six months prior to the posting.

54. Although the existence of a contract which fulfils the requirements of the 1972 Regulation is evidence of ‘lawful and habitual’ employment, there are other types of contract which also fall within that description and which should not be disregarded without further consideration. Each case should be assessed on the basis of the notification referred to above, which would include all these matters. (39)

3. The bank guarantee

55. The final and cumulative requirement for both individual permits and collective authorisations is a bank guarantee provided by the undertaking for a given amount per worker (Article 9a).

56. This requirement constitutes a restriction on the freedom to provide services, irrespective of the amount of the guarantee and the costs of issuance and renewal (40) and of the fact that, according to the Luxembourg Government, in practice the guarantee is rarely called in. Nor is it, in my opinion, proportionate to the objectives which it seeks to achieve. According to the legislation itself, the guarantee covers the cost of repatriating the worker posted. However, it is excessive because the Member State undertaking which has agreed to the posting is responsible for the worker’s return and there are means of enforcing this which are more consistent with that Community freedom, such as the issue of a summary order to pay the costs arising, without the need to guarantee their payment in advance.

The defendant Member State is itself aware of this and has tabled a legislative amendment to repeal the provision. (41)

VIII – Final consideration

57. I therefore consider that, by making the supply of services in its territory by undertakings established in another Member State using foreign workers subject to the abovementioned requirements of the 1972 Regulation, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 49 EC.

58. These conditions constitute a restriction on the freedom to provide services which, although it may sometimes be justified on grounds of the protection afforded to those workers, are disproportionate given that there are alternative means of doing so which are more consistent with Community law.

59. The foregoing is without prejudice to the fact that, as far as legislation is concerned, progress is being made in the direction indicated by the existing proposal for a directive (42) and that rules governing the various aspects of the employment relationship apply to foreign workers sent to the Grand Duchy of Luxembourg. (43)

IX – Costs

60. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if the other party has applied for them. Since the application of the Commission should be upheld and it has applied for the legal costs to be borne by the Grand Duchy of Luxembourg, the latter should be ordered to pay the costs.

X – Conclusion

61. In the light of the foregoing I propose that the Court:

(1): Declare that, by making the supply of services in its territory by undertakings established in another Member State using foreign workers subject to: (a) the obtaining of an individual work permit, whose granting is discretionary, or of a collective authorisation which may be granted on an exceptional basis, provided that the contracts of employment in question are of unlimited duration and date back to at least six months prior to the posting; and (b) the provision, in either case, of a bank guarantee, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 49 EC;

(2): Order the Grand Duchy of Luxembourg to pay the costs.

1 –: Original language: Spanish.

2 –: Grand-Ducal Regulation of 12 May 1972 on measures applicable to the employment of foreign workers in the Grand Duchy of Luxembourg, (Mém. A. 1972, p. 945), amended by Grand-Ducal Regulations of 29 July 1977 (Mém. A. 1977, p. 1345), 17 June 1994 (Mém. A. 1994, p. 1034) and 29 April 1999 (Mém. A. 1999, No 48). Its legal basis is the Law of 28 March 1972 on entry, residence, health checks and employment of foreign nationals, (Mém. A. 1972, p. 818).

3 –: Approximately 1 487 euros.

4 –: Such penalties are provided for in Article 34 of the Law of 28 March 1972 referred to in footnote 2.

5 –: In my view, the reasoning adopted by the Court of Justice in paragraph 12 of its judgment in Case C-113/89 Rush Portuguesa [1990] ECR I-1417 is not applicable here. There the Court stated that ‘Articles 59 [of the EC Treaty (now, after amendment, Article 49 EC)] and 60 [of the EC Treaty (now Article 50 EC)] therefore preclude a Member State from prohibiting a person providing services established in another Member State from moving freely on its territory with all his staff and preclude that Member State from making the movement of staff in question subject to restrictions such as a condition as to engagement in situ or an obligation to obtain a work permit. To impose such conditions on the person providing services established in another Member State discriminates against that person in relation to his competitors established in the host country who are able to use their own staff without restrictions, and moreover affects his ability to provide the service’. In the present case the situation is different in that a Luxembourg undertaking wishing to use its foreign workers must also fulfil the same requirements as the undertaking from another Member State. The difference is only one of timing: one has already done so while the other must do so prior to the supply of services. It should not be forgotten that, as mentioned previously, the undertaking from the other Member State will have had to fulfil the relevant requirements applying to the employment of foreign workers.

6 –: Directive of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1).

7 –: Proposal for a directive of the European Parliament and of the Council on the posting of workers who are third-country nationals for the provision of cross-border services (OJ 1999 C 67, p. 12), submitted by the Commission on 12 February 1999. On the same date a further proposal for a Council directive was submitted extending the freedom to provide cross-border services to third-country nationals established within the Community. Amended proposals for both directives are dated 8 May 2000.

8 –: These issues were also addressed in my Opinion in Joined Cases C-369/96 and C-376/96 Arblade and Leloup [1999] ECR I-8453.

9 –: Paragraph 16 of the judgment in Case C-164/99 Portugaia Construções [2002] ECR I-787. Also along similar lines are the judgments in Joined Cases C-49/98, C-50/98, C-52/98 to C-54/98 and C-68/98 to C-71/98 Finalarte and Others [2001] ECR I-7831 and Arblade and Leloup, cited previously. The latter judgment cites Case C-76/90 Säger [1991] ECR I-4221, Case C-43/93 Vander Elst [1994] ECR I-3803, Case C-272/94 Guiot [1996] ECR I-1905, Case C-3/95 Reisebüro Broede [1996] ECR I-6511 and Case C-222/95 Parodi [1997] ECR I-3899.

10 –: .Finalarte, paragraph 30, which in turn relies on the judgment in Case C-165/98 Mazzoleni and ISA [2001] ECR I-2189.

11 –: .Finalarte, paragraph 31. See also the judgments in Portugaia Construções, Arblade and Leloup, Säger, Vander Elst and Guiot, cited above, and in Case 279/80 Webb [1981] ECR 3305, Case C‑180/89 Commission v Italy [1991] ECR I-709 and Case C-198/89 Commission v Greece [1991] ECR I-727.

12 –: .Finalarte, paragraph 32. This line of reasoning also appears in the Portugaia Construções, Arblade and Leloup, Säger, Guiot, Commission v Italy and Commission v Greece judgments cited above and in Case C-19/92 Kraus [1993] ECR I-1663 and Case C-55/94 Gebhard [1995] ECR I-4165.

13 –: Joined Cases 62/81 and 63/81 Seco and Desquenne & Giral [1982] ECR 223 as well as Finalarte, Mazzoleni and ISA, Arblade and Leloup, Rush Portuguesa and Webb, cited above.

14 –: Paragraph 37 of the judgment in Arblade and Leloup, which refers to Case C-18/95 Terhoeve [1999] ECR I-345.

15 –: Paragraph 22 of the judgment in Finalarte, cited in footnote 9, which refers to Rush Portuguesa and Vander Elst, also cited above.

16 –: Paragraph 47 of the abovementioned Finalarte judgment.

17 –: Paragraphs 16 and 17 of the judgment in Rush Portuguesa, cited above.

18 –: As explained by Advocate General Tesauro in Vander Elst at point 1 of his Opinion.

19 –: Article 1 of the 1972 Regulation substantially repeats Articles 26 and 28 of the Law of 28 March 1972 on entry, residence, health checks and employment of foreign nationals referred to in footnote 2. As a further example, the grounds for Article 10(1) can be found in Article 27 of that Law.

20 –: It argues that the 1972 Regulation should be interpreted in accordance with the Law of 24 May 1989 on contracts of employment.

21 –: Such criteria do not apply to the granting or refusal of the collective authorisation, which is for exceptional cases (Article 9).

22 –: At point 29 of this Opinion.

23 –: At point 28 of this Opinion.

24 –: As noted at point 25 above, the proposal for a directive on the posting of workers who are third-country nationals for the provision of cross-border services also tends towards a different approach.

25 –: It is true that this requirement, like the others, is applicable to all undertakings, including Luxembourg undertakings, in relation to any foreign worker. However, what is relevant here is the impact on the freedom to provide services.

26 –: Especially as regards minimum wages and safety at work, which legislation is stricter in Luxembourg, according to the Luxembourg Government. Although the terms of the comparison are not stated, they appear to relate to the legislation of any other Member State. No evidence was produced in support of such a statement.

27 –: Advocate General Tesauro made the same point in his Opinion in the Vander Elst case, cited above. Moreover, such a notification could be required to include information about the workers in question, their contracts with the undertaking and the purpose and conditions of the posting, among other things.

28 –: According to the judgment in the Vander Elst case, cited above, at paragraph 23, ‘Community law does not preclude Member States from extending their legislation, or collective labour agreements entered into by both sides of industry relating to minimum wages, to any person who is employed, even temporarily, within their territory, no matter in which country the employer is established; nor does Community law prohibit Member States from enforcing those rules by appropriate means’, which do not, in my opinion, include the prior authorisation required by the 1972 Regulation. Similar reasoning can be found in the judgments in the Rush Portuguesa and Seco cases, cited above. Directive 96/71, which is cited by the Luxembourg Government, is also consistent with this approach, although it does not require a prior authorisation as a means of applying laws or collective labour agreements.

29 –: Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475).

30 –: It is also referred to in Article 10 of the 1972 Regulation.

31 –: See point 49 of this Opinion.

32 –: Although those concepts may comprise aspects relating to matters such as salaries, vacancies, irregular employment and employment priority, according to what can be inferred from the judgments of the Luxembourg Tribunal Administratif (Administrative Court) lodged with the defence.

33 –: In the same vein, Advocate General Tesauro stated at point 27 of his Opinion in the Vander Elst case, cited in footnotes 18 and 27, that ‘checks carried out to that end must be formal in nature and must not lead to a discretionary assessment; this means that, once it has been established that a lawful contract of employment exists, authorisation for the workers to move must automatically be given’. However, it would perhaps be appropriate to verify whether such a lawful contract demonstrates lawful and habitual employment in the terms set out in paragraph 26 of the Vander Elst judgment (cited). This issue is dealt with in more detail at points 53 and 54 of this Opinion.

34 –: See Rush Portuguesa, Vander Elst and Finalarte, cited above. See also, in this respect, point 30 of this Opinion.

35 –: Directive 96/71 requires an employment relationship between the undertaking of origin or making the posting, the temporary employment undertaking or placement agency, as the case may be, and the worker during the period of posting (Article 1(3)).

36 –: A similar concept to contracts for ‘non-significant’ work, referred to in Directive 96/71, Article 3(5).

37 –: See footnote 9.

38 –: My emphasis.

39 –: See point 44 of this Opinion.

40 –: According to the information provided by the defendant, these amount to 25 euros every six months.

41 –: Defence, page 15, paragraph 2.

42 –: See point 25 of this Opinion.

43 –: See paragraph 25 of the Vander Elst judgment, cited above. Similarly, Article 3 of Directive 96/71. See point 45 of this Opinion.

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