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Document C2005/045/26

Case C-490/04: Action brought on 29 November 2004 by the Commission of the European Communities against the Federal Republic of Germany

OB C 45, 19.2.2005, p. 13–14 (ES, CS, DA, DE, ET, EL, EN, FR, IT, LV, LT, HU, NL, PL, PT, SK, SL, FI, SV)

19.2.2005   

EN

Official Journal of the European Union

C 45/13

Action brought on 29 November 2004 by the Commission of the European Communities against the Federal Republic of Germany

(Case C-490/04)

(2005/C 45/26)

Language of the case: German

An action against the Federal Republic of Germany was brought before the Court of Justice of the European Communities on 29 November 2004 by the Commission of the European Communities, represented by Enrico Traversa and Horstpeter Kreppel, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

1.

declare that, by providing that

(a)

foreign undertakings are obliged to pay contributions to the German holiday pay fund for their posted workers, even if they enjoy an essentially similar level of protection under the law of the State where their employer is established (Paragraph 1(3) of the Arbeitnehmerentsendegesetz (Law on the Posting of Workers) (‘the AEntG’);

(b)

foreign undertakings are obliged to have the employment contract (or the documents required, pursuant to Directive 91/533/EEC, under the law of the State where the employee is resident), pay slips, time sheets, proof of payment of wages, and all other documents required by the German authorities, translated into German (Paragraph 2 of the AEntG);

(c)

foreign employment agencies are obliged not only to give prior notification each time a worker is posted to a user of the worker's services in Germany, but also each time a worker starts a new job on a building site at the request of the user of his services (Paragraph 3(2) of the AEntG);

the Federal Republic of Germany has failed to fulfil its obligations under Article 49 EC;

2.

order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The Commission contends that furthermore certain provisions of the AEntG which transposed Directive 96/71/EC on the posting of workers into national law do not comply with certain provisions of that directive.

Rules relating to the obligation of employers established in a Member State other than Germany to pay contributions to the German holiday pay fund

In the Commission's view, the obligation to pay contributions to the German holiday pay fund constitutes an inadmissible restriction on the freedom to provide services, within the meaning of Article 49 EC, where employers who post their workers grant them the same paid holiday entitlement as that laid down by the German rules contained in the collective agreements and, under the legal system in the State from which they are posted, such workers enjoy the same or similar protection with respect to holiday pay as is guaranteed in Germany.

Rules relating to the obligation of employers established in a Member State other than Germany to translate documents

In the Commission's view, the requirement for documents to be translated is appropriate to meeting Germany's monitoring needs. However, having regard to the cooperation on information provided for by Article 4 of the Directive on the posting of workers, the obligation to translate all documents is no longer necessary and is therefore too far-reaching.

Rules relating to the obligation of employment agencies established in a Member State other than Germany to notify the competent authorities of the change before each transfer of a posted worker from one building site to another one.

Even if the obligation of employment agencies established outside Germany to notify each change has been slightly amended, the Commission is of the view that there is still unequal treatment, as, in the case of employment agencies established in Germany, the obligation to notify each change falls on the user of the worker's services, while in the case of employment agencies established outside Germany that obligation falls in principle on the supplier of labour and can be transferred to the user of the worker's services only by means of a contractual agreement. This unequal treatment constitutes an inadmissible restriction on the freedom to provide services within the meaning of Article 49 EC.

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