CELEX: 62009CJ0245
Freedom to provide services
Article 49 EC
Contractor established in a Member State
Recourse to contracting partners established in the same Member State
Purely internal situation
Inadmissibility of the reference for a preliminary ruling

This reference for a preliminary ruling concerns the applicability and interpretation of Article 49 EC.
The reference has been made in the course of proceedings between Omalet NV (‘Omalet’) and the Rijksdienst voor Sociale Zekerheid
(National Social Security Office) (‘the Rijksdienst’) concerning, firstly, Omalet’s joint and several liability, in its capacity
as principal contractor, for part of the social security debts of an unregistered subcontractor established in Belgium, and,
secondly, Omalet’s obligation to withhold payments to that subcontractor.

Legal context
Article 30a of the Law of 27 June 1969 revising the Decree-Law of 28 December 1944 on social security for workers, in the
version applicable at the material time in the main proceedings (‘the Law of 1969’), stated as follows:
‘…
3.       A principal who, for work covered by paragraph (1), has recourse to a contractor who is unregistered at the time the contract
is concluded, shall be jointly and severally liable for the payment of that contractor’s social security debts.
A contractor who, for work covered by paragraph (1), has recourse to a subcontractor who is unregistered at the time the contract
is concluded, shall be jointly and severally liable for the payment of that subcontractor’s social security debts.
…
Joint and several liability shall be limited to 50% of the total price, excluding value added tax, of the work commissioned
from an unregistered contractor or subcontractor.
…
4.      A principal who pays a contractor who is unregistered at the time of payment for all or part of the cost of work covered by
paragraph (1) must, at the time of payment, withhold 15% of the sum invoiced, excluding value added tax, and pay that amount
to [the Rijksdienst], in accordance with the detailed rules laid down by the King.
A contractor who pays a subcontractor for all or part of the cost of work covered by paragraph (1) must, at the time of payment,
withhold 35% of the sum invoiced, excluding value added tax, and pay that amount to [the Rijksdienst], in accordance with
the detailed rules laid down by the King.
The contractor is, however, excused from the obligation to withhold and pay laid down in the previous subparagraph, if, at
the time of payment, in accordance with the detailed rules laid down by the King, the subcontractor does not owe debts to
[the Rijksdienst] or to a subsistence fund or has obtained for the sums due deadlines for payment, without legal proceedings
or by a judicial decision with the authority of res judicata, and strictly adheres to those deadlines and is registered as
a contractor. To that end, [the Rijksdienst] shall create a database accessible to the public, which has the weight of evidence
for the application of this subparagraph.
Where a contractor is an employer not established in Belgium, who does not have any social security debts in Belgium and all
of whose employees are in the possession of a valid posting certificate, the withholding provisions in this paragraph are
not applicable to the payment owed to that contractor’.

The dispute in the main proceedings and the questions referred for a preliminary ruling
Omalet, in its capacity as a project developer, had recourse to a subcontractor established but unregistered in Belgium. The
subcontractor drew up two invoices, the first on 2 April 2003 for a sum of EUR 4 136.10, and the second on 29 April 2003 for
a sum of EUR 4 493.69. Both invoices were paid.
The subcontractor was declared insolvent on 25 September 2003 and at that time owed EUR 57 593.87 to the Rijksdienst. Pursuant
to Article 30a(3) of the Law of 1969, the Rijksdienst sought payment from Omalet of the sum of EUR 4 314.90 on the basis that
it was jointly and severally liable for the social security debts of the subcontractor, limited to 50% of the total price
of the work. Pursuant to Article 30a(4) of that law, payment of a further sum of EUR 6 040.85 was sought on the ground that
Omalet had failed to make the deduction required under that article.
Having failed to reach an amicable settlement, the Rijksdienst, by summons issued on 25 April 2007, requested Omalet to appear
before the Arbeidsrechtbank te Brussel (Brussels Labour Court). By a ruling of 25 April 2008, that court held that the Rijksdienst’s
claim was well founded and ordered Omalet to pay the sum of EUR 10 355.75, together with statutory late payment interest from
1 February 2006 and interest relating to the judicial proceedings.
By an application of 23 May 2008, Omalet appealed against that ruling before the Arbeidshof te Brussel (Brussels Higher Labour
Court), claiming, inter alia, that Article 30a of the Law of 1969 was incompatible with Articles 49 EC and 50 EC.
In those circumstances, the Arbeidshof te Brussel decided to stay the proceedings and refer the following questions to the
Court for a preliminary ruling:
‘(1)  Must a national court apply Article 49 EC to a dispute between [the Rijksdienst] and a principal contractor established in
Belgium, where judgment is sought against that principal contractor pursuant to Article 30a(3) of [the Law of 1969] (in the
version applicable prior to the amendment of that article by Article 55 of the Programme Law of 27 April 2007) as being jointly
and severally liable for a portion of the debts of a subcontractor who is unregistered and established in Belgium, or where
judgment is sought against that principal contractor because he has not complied with the withholding obligation laid down
by Article 30(4) of the Law of 1969?
(2)       In the alternative, is Article 49 EC incompatible with a rule such as that laid down by Article 30a(3) and (4) of [the Law
of 1969] (in the version applicable prior to the amendment of that article by Article 55 of the Programme Law of 27 April
2007)?

The Court’s jurisdiction
The reference for a preliminary ruling concerns the interpretation of the provisions of the EC Treaty relating to the freedom
to provide services in a situation in which, as the referring court itself points out, all of the facts of the dispute in
the main proceedings are confined within a single Member State.
In those circumstances, the Court must assess whether it has jurisdiction to rule on the interpretation of those provisions
(see, to that effect, Case C-380/05
Centro Europa 7
[2008] ECR I-349, paragraph 64, and Case C-384/08
Attanasio Group
[2010] ECR I-0000, paragraph 22).
The Court has declined jurisdiction where it was obvious that the provision of European Union law referred to the Court for
interpretation was incapable of applying (Case C‑567/07
Woningstichting Sint Servatius
[2009] ECR I-9021, paragraph 43).
It is settled case-law that the Treaty provisions relating to the freedom to provide services do not apply to situations where
all the relevant facts are confined within a single Member State (see, inter alia, Case C-108/98
RI.SAN
[1999] ECR I-5219, paragraph 23, and Case C-97/98
Jägerskiöld
[1999] ECR I-7319, paragraph 42).
In the present case, it is clear from the case-file submitted to the Court that all the facts relating to the dispute in the
main proceedings are indeed confined within a single Member State, in that both the principal contractor and the subcontractor
are established in Belgium and all of the facts took place within that Member State.
It is therefore clear that the dispute in the main proceedings does not present any link to the situations envisaged by Article
49 EC, and so that provision does not apply.
It is true that, according to the Court’s case-law, even in such a purely internal situation, the Court’s answer may nevertheless
be useful to the referring court, in particular if its national law required it to grant the same rights to a national of
a given Member State as those which a national of another Member State in the same situation would derive from European Union
law (see, inter alia, Case C‑448/98
Guimont
[2000] ECR I-10663, paragraph 23; Case C-451/03
Servizi Ausiliari Dottori Commercialisti
[2006] ECR I-2941, paragraph 29; Joined Cases C-94/04 and C-202/04
Cipolla and Others
[2006] ECR I-11421, paragraph 30; and Joined Cases C-570/07 and C-571/07
Blanco Pérez and Chao Gómez
[2010] ECR I-0000, paragraph 36).
However, that does not apply in the present case. In its reference for a preliminary ruling, the referring court itself cited
a judgment of the Grondwettelijk Hof (Constitutional Court) in which that court found that Article 49 EC did not apply where
the case pending before the court was situated entirely within the domestic legal system. In answer to the question of whether
Article 30a(1) of the Law of 1969 was incompatible with the principles of equality and non-discrimination enshrined by the
Belgian Constitution in that it envisaged different treatment as between, on the one hand, principals and developers established
in Belgium and having recourse to foreign contracting parties unregistered in Belgium, who can rely on Articles 49 and 50
EC, and, on the other, those having recourse to service providers established in Belgium, who cannot rely on those provisions,
that court found that situations relating exclusively to the domestic legal system could not be compared with those falling
within the jurisdiction of European Union law.
Consequently, it does not appear from the reference for a preliminary ruling that, in circumstances such as those of the dispute
in the main proceedings, the referring court has a duty to grant undertakings established in Belgium the same rights that
undertakings established in other Member States in the same situation would derive from European Union law.
Accordingly, in circumstances such as those of the dispute in the main proceedings, where all of the facts are confined within
the Member State in question, the Court does not have jurisdiction to answer the questions referred for a preliminary ruling
by the Arbeidshof te Brussel.
Therefore, the request for a preliminary ruling submitted by the Arbeidshof te Brussel must be regarded as inadmissible.

Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.
On those grounds, the Court (First Chamber) hereby rules:
The reference for a preliminary ruling from the Arbeidshof te Brussel (Belgium), made by decision of 25 June 2009, is inadmissible.
[Signatures]
*
Language of the case: Dutch.