Keywords
Summary

Keywords

1. Actions for failure to fulfil obligations – Pre-litigation procedure – Purpose

(Art. 226 EC)

2. Actions for failure to fulfil obligations – Right of the Commission to bring judicial proceedings – Time-limit

(Art. 226 EC)

3. Actions for failure to fulfil obligations – Proof of failure – Burden of proof on Commission

(Art. 226 EC)

4. Freedom to provide services – Restrictions – Posting of workers

(Art. 49 EC)

5. Freedom to provide services – Restrictions – Posting of workers

(Art. 49 EC)

Summary

1. The purpose of the pre-litigation procedure provided for in Article 226 EC is to give the Member State concerned an opportunity to comply with its obligations under Community law or to avail itself of its right to defend itself against the complaints made by the Commission.

(see para. 25)

2. The rules set out in Article 226 EC must be applied, without the Commission being obliged to act within a specific period, save where the excessive duration of the pre-litigation procedure in that provision is capable of making it more difficult for the Member State concerned to refute the Commission’s arguments and of thus infringing the rights of the defence. It is for the Member State concerned to provide evidence that it has been so affected.

(see para. 26)

3. In the context of an action for failure to fulfil obligations brought under Article 226 EC, the Commission is required to prove the allegation that the obligation has not been fulfilled. It is the Commission which must provide the Court with the necessary evidence for the Court to establish that the obligation has not been fulfilled, and it may not rely on any presumption.

Furthermore, the scope of national laws, regulations or administrative provisions must be assessed in the light of the interpretation given to them by national courts.

(see paras 48-49)

4. A Member State which requires foreign employers employing workers in the national territory to translate into the language of that Member State certain documents required to be kept at the place of work for the duration of the posted workers’ stay does not thereby fail to fulfil its obligations under Article 49 EC.

It is true that the obligation thereby imposed constitutes a restriction on the freedom to provide services in that it involves additional expenses and an additional administrative and financial burden for undertakings established in another Member State, so that those undertakings do not find themselves on an equal footing, from a competitive point of view, with employers established in the host Member State and may thus be dissuaded from offering services in that Member State.

That obligation may however be justified by a general-interest objective linked to the social protection of workers, since it enables the competent authorities of the host Member State to carry out the monitoring necessary to ensure compliance with relevant national provisions. In so far as it requires the translation of only a few documents and does not involve a heavy financial or administrative burden for the employer, it does not go beyond what is necessary to achieve the objective sought, which is social protection.

(see paras 66, 68-72, 76)

5. A Member State requiring foreign temporary employment agencies to declare not only the start and end dates of the placement of a worker with a user of his services in the Member State concerned, but also the place of employment of that worker and any changes in that place, while similar undertakings established in that Member State are not required to fulfil that supplementary obligation, fails to fulfil its obligations under Article 49 EC.

(see paras 85, 89, operative part)