Keywords
Summary

Keywords

1. Freedom to provide services – Restrictions – Posting of workers in the framework of the provision of services

(Arts 56 TFEU and 57 TFEU)

2. Freedom to provide services – Restrictions – Posting of workers in the framework of the provision of services

(Arts 56 TFEU and 57 TFEU)

Summary

1. Articles 56 TFEU and 57 TFEU preclude legislation of a Member State requiring an employer, established in another Member State and posting workers to the territory of the first Member State, to send a prior declaration of posting, in so far as the employer must be notified of a registration number for the declaration before the planned posting may take place and the national authorities of that first State have a period of five working days from receipt of the declaration to issue that notification.

Since such a notification must be issued before the posting can be carried out by an employer and is made only after verification by the national authorities of the conformity of the prior declaration of posting, a procedure of that kind must be regarded as an administrative authorisation procedure, which may, in particular by reason of the period laid down for issuing the notification, impede the planned posting and, consequently, the provision of services by the employer of the workers who are to be posted, in particular where the services to be provided necessitate a certain speed of action. It follows that the requirement to send a prior declaration of posting and for notification of the registration number for that declaration constitutes a restriction on the freedom to provide services within the meaning of Article 56 TFEU.

Such a restriction is not justified by the aim of protecting workers. Admittedly, sending a prior declaration of posting is a suitable means of communicating the necessary information to the national authorities. However, a registration and notification procedure, by virtue of which the declaration in question assumes the nature of an administrative authorisation procedure, goes beyond what is necessary in order to ensure that posted workers are protected, since a prior declaration enables compliance with the social welfare and wages legislation of the host Member State to be monitored during the posting, thus constituting a more proportionate means of attaining that objective than such authorisation or a prior check.

(see paras 34, 36, 40, 52-53, 61, operative part)

2. Articles 56 TFEU and 57 TFEU do not preclude national legislation requiring an employer, established in another Member State and posting workers to the territory of the first Member State, to keep available to the national authorities of the latter, during the posting, copies of documents equivalent to the social or labour documents required under the law of the first Member State and also to send those copies to the authorities at the end of that period.

Admittedly, it cannot be ruled out that those obligations give rise to additional expenses and administrative and economic burdens for undertakings established in another Member State, with the result that such undertakings may not be on an equal footing, from the standpoint of competition, with undertakings employing persons normally working on national territory. However, keeping copies of the equivalent documents is appropriate to enable the authorities to monitor compliance with the terms and conditions of employment of posted workers as set out in Article 3(1) of Directive 96/71, concerning the posting of workers in the framework of the provision of services and, therefore, to ensure that the latter are protected. Such measures are therefore proportionate to the aim of protecting workers.

(see paras 42, 57, 60-61, operative part)