Judgment — ECLI:EU:C:2005:220
Date: 2005-04-14
Language of the case: German
Court formation: First Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Freedom to provide services
Concepts: General
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Germany

Summary of the Judgment 1. Actions for failure to fulfil obligations — Proof of failure — Burden of proof on the Commission — Presumptions — Not permissible (Art. 226 EC) 2. Freedom to provide services — Posting of workers in the framework of the provision of services — Directive 96/71 — Conditions of work and employment — Minimum wage — Constituent elements — National legislation which fails to take account of allowances and supplements that do not alter the relationship between the service provided by a worker and the consideration received in return — Not permissible (European Parliament and Council Directive 96/71, Art. 3) 1. In an action for failure to fulfil obligations it is for the Commission to prove the allegation that the obligations have not been fulfilled. It is the Commission which must provide the Court with the evidence necessary for the Court to establish that the obligations have not been fulfilled, and it may not rely on any presumption. (see para. 35) 2. A Member State the legislation of which does not recognise as constituent elements of the minimum wage allowances and supplements which do not alter the relationship between the service provided by a worker and the consideration which that worker receives in return, and which are paid by employers established in other Member States to their employees in the construction industry who are posted to the first Member State, with the exception of a general bonus granted to workers in that industry, is in breach of its obligations under Article 3 of Directive 96/71 concerning the posting of workers in the framework of the provision of services. (see para. 43, operative part)