Judgment — ECLI:EU:C:2013:711
Date: 2013-11-07
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Seventh Chamber), 7 November 2013 1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits —Interpretation sought owing to the applicability, to purely internal situations, of provisions of a directive transposed into national law after the treatment of internal situations has been aligned with EU law — Jurisdiction to provide such an interpretation — Assessment of the precise scope of the reference to EU law by national law — Exclusive jurisdiction of the national courts (Art. 267 TFEU) 2. Freedom to provide services — Posting of workers in the framework of the provision of services — Directive 96/71 — Terms and conditions of employment — Minimum wage — Constituent elements — Scope — Determination by the national court (European Parliament and Council Directive 97/71, Art. 3(1), second indent, (c)) 1. See the text of the decision. (see paras 28-31) 2. Article 3(1), second indent, (c) of Directive 96/71 concerning the posting of workers in the framework of the provision of services must be interpreted as not precluding the inclusion in the minimum wage of elements of remuneration which do not alter the relationship between the service provided by the worker, on the one hand, and the consideration which he receives by way of remuneration for that service, on the other. It is for the national court to ascertain the elements of remuneration on a case-by-case basis. Since Directive 96/71 does not itself provide any substantive definition of the minimum wage, the task of defining what are the constituent elements of the minimum wage, for the application of that directive, therefore comes within the scope of the law of the Member State concerned, but only in so far as that definition does not have the effect of impeding the free movement of services between Member States. Accordingly, lump sum payments, determined in the context of collective bargaining, appear as consideration for the usual work of the workers, taking into account the national practice, during the negotiation of such a collective agreement, and upon expiry of the previous collective agreement, of anticipating, by those lump sum payments, the application of the new salary scale. By contrast, with regard to a capital formation contribution, such as the employer contribution to a multiannual savings plan for the benefit of its employees, that is distinguishable from the salary itself and cannot be regarded, for the application of Directive 96/71, as forming part of the usual relationship between the work done and the financial consideration for that work from the employer. Such a contribution aims, by the formation of a capital amount that the worker will benefit from in the longer term, to achieve an objective of social policy supported, in particular, by a financial contribution from the public authorities. (see paras 32, 37, 40-42, 44, 45, operative part)