Opinion of the Advocate General — ECLI:EU:C:2006:135
Date: 2006-02-23
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Freedom to provide services
Procedure: Action for failure to fulfil obligations - successful
Origin: Austria

Summary of the Judgment 1. Freedom to provide services – Restrictions – Posting of workers who are nationals of non-member States by an undertaking in another Member State (Art. 49 EC) 2. Freedom to provide services – Restrictions – Posting of workers who are nationals of non-member States by an undertaking in another Member State (Art. 49 EC) 1. A Member State which makes the posting of workers who are nationals of non‑Member States by an undertaking established in another Member State subject to obtaining an ‘EU Posting Confirmation’, the issue of which requires, first, that the workers concerned must have been employed for at least one year by that undertaking or must have concluded an employment contract of indefinite duration with it and, secondly, evidence that the national employment and wage conditions are complied with, has failed to fulfil its obligations under Article 49 EC. In so far as that confirmation must be issued before the posting can be carried out and is made only after verification by the competent national authorities of compliance with those requirements, it is an authorisation procedure. However, national provisions which make the provision of services within national territory by an undertaking established in another Member State subject to the issue of an administrative authorisation constitute a restriction on the freedom to provide services within the meaning of Article 49 EC. (see paras 40-41, 68, operative part 1) 2. A Member State laying down a ground for the automatic refusal of an entry and residence permit, without exception, which does not allow the situation of workers from a non‑Member State, lawfully posted by an undertaking established in another Member State, to be regularised when those workers have entered the national territory without a visa, has failed to fulfil its obligations under Article 49 EC. (see para. 68, operative part 1)