Keywords
Summary

Keywords

1. Actions for failure to fulfil obligations – Application initiating proceedings – Statement of complaints and submissions – Formal requirements

(Art. 226 EC; Statute of the Court of Justice, Art. 21; Rules of Procedure of the Court of Justice, Art. 38(1)(c))

2. Freedom of movement for persons – Freedom to provide services – Restrictions

(Art. 49 EC)

3. Freedom of movement for persons – Freedom to provide services – Restrictions

(Art. 49 EC)

Summary

1. By virtue of Article 21 of the Statute of the Court of Justice and Article 38(1)(c) of the Rules of Procedure, the Commission must, in the heads of claim in an application made under Article 226 EC, indicate the specific complaints on which the Court is asked to rule. Those heads of claim must be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on a complaint.

(see para. 24)

2. By making the grant of a licence to performing artists’ engagements agencies, established in another Member State, subject to the need to engage performers, a Member State fails to fulfil its obligations under Article 49 EC insofar as it fails to give any reason that could justify that restriction.

(see paras 29, 55, operative part)

3. By imposing the presumption of salaried status on performing artists who are service providers and established in their Member State of origin, where they usually provide similar services – a presumption which implies that the performing artists in question are subject to the social security scheme for employed persons and the scheme for paid annual leave – a Member State fails to fulfil its obligations under Article 49 EC.

The social protection of service providers may, in principle, be one of the overriding requirements of public interest which may justify a restriction on the freedom to provide services. However, there are Community measures in place for the coordination of the legislation applicable to the social security of such providers, under which the performing artists in question are entitled to the social security provided by their Member State of origin, so that the Member State in question is not entitled to subject those artists to its own social security system. A right to paid leave on the part of a service provider is difficult to reconcile with the concept of self-employment.

Moreover, the provision in question cannot be justified by the objective of combating concealed employment because the fact that performing artists are normally engaged on an intermittent basis and for short periods by different show organisers cannot, of itself, mean that a general assumption of concealed employment is well founded. That is particularly so where the performing artists in question are recognised as service providers, established in their Member State of origin, where they usually provide similar services.

(see paras 45, 47-49, 51-52, 55, operative part)