Opinion of the Advocate General — ECLI:EU:C:2007:541
Date: 2007-09-20
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Freedom to provide services – Posting of workers in the framework of the provision of services – Directive 96/71 (European Parliament and Council Directive 96/71, Art. 3(1) and (8)) 2. Freedom to provide services – Posting of workers in the framework of the provision of services – Directive 96/71 (European Parliament and Council Directive 96/71, Art. 3) 3. Freedom to provide services – Posting of workers in the framework of the provision of services – Directive 96/71 (European Parliament and Council Directive 96/71) 4. Freedom to provide services – Restrictions – Posting of workers in the framework of the provision of services (Art. 49 EC; European Parliament and Council Directive 96/71, Art. 3(1)) 1. Legislation requiring the contracting authority to designate as contractors for public works contracts only contractors which, when submitting their tenders, agree in writing to pay their employees, in return for performance of the services concerned, at least the wage provided for in the collective agreement in force at the place where those services are performed, without that collective agreement being capable of being treated as universally applicable, does not fix a rate of pay according to one of the procedures laid down in the first and second indents of the first subparagraph of Article 3(1) and in the second subparagraph of Article 3(8) of Directive 96/71 concerning the posting of workers in the framework of the provision of services. Therefore, such a rate of pay cannot be considered to constitute a minimum rate of pay within the meaning of Article 3(1)(c) of Directive 96/71 which Member States are entitled to impose, pursuant to that directive, on undertakings established in other Member States, in the framework of the trans‑national provision of services. (see paras 26, 30‑31) 2. Article 3(7) of Directive 96/71 concerning the posting of workers in the framework of the provision of services cannot be interpreted as allowing the host Member State to make the provision of services in its territory conditional on the observance of terms and conditions of employment which go beyond the mandatory rules for minimum protection. As regards the matters referred to in Article 3(1), first subparagraph, (a) to (g), Directive 96/71 expressly lays down the degree of protection for workers of undertakings established in other Member States who are posted to the territory of the host Member State which the latter State is entitled to require those undertakings to observe. Therefore – without prejudice to the right of undertakings established in other Member States to sign of their own accord a collective labour agreement in the host Member State, in particular in the context of a commitment made to their own posted staff, the terms of which might be more favourable – the level of protection which must be guaranteed to workers posted to the territory of the host Member State is limited, in principle, to that provided for in Article 3(1), first subparagraph, (a) to (g), of Directive 96/71, unless, pursuant to the law or collective agreements in the Member State of origin, those workers already enjoy more favourable terms and conditions of employment as regards the matters referred to in that provision. (see paras 33‑34) 3. A Member State is not entitled to impose, pursuant to Directive 96/71, on undertakings established in other Member States, a rate of pay provided for by a collective agreement in force at the place where the services concerned are performed and not declared to be of general application, by requiring, by a measure of a legislative nature, the contracting authority to designate as contractors for public works contracts only contractors which, when submitting their tenders, agree in writing to pay their employees, in return for performance of the services concerned, at least the wage provided for in the collective agreement. (see para. 35) 4. Directive 96/71 concerning the posting of workers in the framework of the provision of services, read in the light of Article 49 EC, precludes an authority of a Member State from adopting a measure of a legislative nature requiring the contracting authority to designate as contractors for public works contracts only contractors which, when submitting their tenders, agree in writing to pay their employees, in return for performance of the services concerned, at least the wage provided for in the collective agreement in force at the place where those services are performed, where that remuneration was not determined by one of the means laid down in Article 3(1) and (8) of the directive. By requiring undertakings performing public works contracts and, indirectly, their subcontractors to apply the minimum wage laid down by such a collective agreement, such legislation may impose on service providers established in another Member State where minimum rates of pay are lower an additional economic burden that may prohibit, impede or render less attractive the provision of their services in the host Member State. Therefore, such a measure is capable of constituting a restriction within the meaning of Article 49 EC. Such a restriction cannot be considered to be justified by the objective of ensuring the protection of workers inasmuch as the rate of pay fixed by such a collective agreement is applicable, as a result of the legislation at issue, only to a part of the construction sector, since, first, that legislation applies solely to public contracts and not to private contracts and, second, that collective agreement has not been declared universally applicable, and inasmuch as there is no evidence to support the conclusion that the protection resulting from such a rate of pay is necessary for a construction sector worker only when he is employed in the context of a public works contract but not when he is employed in the context of a private contract. For the same reasons, the restriction also cannot be considered to be justified by the objective of ensuring protection for independence in the organisation of working life by trade unions. (see paras 36‑43, operative part)