Opinion of the Advocate General — ECLI:EU:C:2010:510
Date: 2010-09-09
Language of the case: Dutch
Subject matter: Accession;Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 1. Accession of new Member States to the European Union – 2003 Act of Accession – Transitional measures – Freedom to provide services – Posting of workers (Arts 56 TFEU and 57 TFEU; 2003 Act of Accession, Art. 24 and Annex XII, Chapter 2, paragraph 2; European Parliament and Council Directive 96/71, Art. 1(3)(c)) 2. Freedom to provide services – Restrictions – Posting of workers in the framework of the provision of services – Directive 96/71 – Posting of workers – Meaning (European Parliament and Council Directive 96/71, Art. 1(3)(c)) 1. Articles 56 TFEU and 57 TFEU do not preclude a Member State from making subject to the obtaining of a work permit the hiring-out, within the meaning of Article 1(3)(c) of Directive 96/71 concerning the posting of workers in the framework of the provision of services, in its territory, of workers who are Polish nationals, during the transitional period provided for in Chapter 2, paragraph 2, of Annex XII to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded,. Such a national measure must be considered to be a measure regulating access of Polish nationals to the labour market of the Member State concerned within the meaning of Chapter 2, paragraph 2, of Annex XII to the 2003 Act of Accession. Such a finding also necessarily follows from the purpose of that paragraph, which is intended to prevent, following the accession to the European Union of new Member States, disturbances on the labour market of the existing Member States due to the immediate arrival of a large number of workers who are nationals of those new States. (see paras 32, 34, 41, operative part 1) 2. The hiring-out of workers, within the meaning of Article 1(3)(c) of Directive 96/71 concerning the posting of workers in the framework of the provision of services, is a service provided for remuneration in respect of which the worker who has been hired out remains in the employ of the undertaking providing the service, no contract of employment being entered into with the user undertaking. It is characterised by the fact that the movement of the worker to the host Member State constitutes the very purpose of the provision of services effected by the undertaking providing the services and that that worker carries out his tasks under the control and direction of the user undertaking. (see para. 51, operative part 2)