Opinion of the Advocate General — ECLI:EU:C:2007:291
Date: 2007-05-23
Language of the case: Swedish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Freedom to provide services;Social Policy;Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Sweden

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. Community law – Principles – Fundamental rights – Right to take collective action (Art. 49 EC) 4. Freedom to provide services – Restrictions (Art. 49 EC; European Parliament and Council Directive 96/71, Art. 3(1)) 5. Freedom to provide services – Restrictions (Arts 49 EC and 50 EC) 1. A Member State in which the minimum rates of pay are not determined in accordance with one of the means provided for in Article 3(1) and (8) of Directive 96/71 concerning the posting of workers in the framework of the provision of services is not entitled, pursuant to that directive, to impose on undertakings established in other Member States, in the framework of the transnational provision of services, negotiation at the place of work, on a case-by-case basis, having regard to the qualifications and tasks of the employees, so that the undertakings concerned may ascertain the wages which they are to pay their posted workers. (see para. 71) 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 in its territory. 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 80-81) 3. Although the right to take collective action must be recognised as a fundamental right which forms an integral part of the general principles of Community law the observance of which the Court ensures, the exercise of that right may none the less be subject to certain restrictions. As is reaffirmed by Article 28 of the Charter of Fundamental Rights of the European Union, it is to be protected in accordance with Community law and national law and practices. Whilst the protection of fundamental rights is a legitimate interest which, in principle, justifies a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the Treaty, the exercise of such rights does not fall outside the scope of the provisions of the Treaty and must be reconciled with the requirements relating to rights protected under the Treaty and in accordance with the principle of proportionality. It follows that the fundamental nature of the right to take collective action is not such as to render Community law inapplicable to such action, taken against an undertaking established in another Member State which posts workers in the framework of the transnational provision of services. (see paras 91, 93-95) 4. Article 49 EC and Article 3 of Directive 96/71 concerning the posting of workers in the framework of the provision of services are to be interpreted as precluding a trade union, in a Member State in which the terms and conditions of employment concerning the matters referred to in Article 3(1), first subparagraph, (a) to (g) of that directive, save for minimum rates of pay, are contained in legislative provisions, from attempting, by means of collective action in the form of blockading sites to force a provider of services established in another Member State to enter into negotiations with it on the rates of pay for posted workers, and to sign a collective agreement, the terms of which lay down, as regards some of those matters, more favourable conditions than those resulting from the relevant legislative provisions, while other terms relate to matters not referred to in Article 3 of the directive. The right of trade unions of a Member State to take such collective action is liable to make it less attractive, or more difficult, for undertakings to provide services in the territory of the host Member State, and therefore constitutes a restriction on the freedom to provide services within the meaning of Article 49 EC. Such an obstacle cannot be justified with regard to the objective of protecting workers, into which, in principle, blockading action by a trade union of the host Member State which is aimed at ensuring that workers posted in the framework of a transnational provision of services have their terms and conditions of employment fixed at a certain level, falls, since the employer of such workers is required, as a result of the coordination achieved by Directive 96/71, to observe a nucleus of mandatory rules for minimum protection in the host Member State. Nor can such an objective justify the negotiations on pay which the trade unions seek to impose on undertakings established in another Member State which post workers temporarily to the territory of the host Member State, where such negotiation forms part of a national context characterised by a lack of provisions which are sufficiently precise and accessible that they do not render it impossible or excessively difficult in practice for such an undertaking to determine the obligations with which it is required to comply as regards minimum pay. (see paras 99, 107-111, operative part 1) 5. Articles 49 EC and 50 EC preclude a prohibition in a Member State against trade unions undertaking collective action with the aim of having a collective agreement between other parties set aside or amended from being subject to the condition that such action must relate to terms and conditions of employment to which the national law applies directly. Such a prohibition discriminates against undertakings which post workers to the host Member State in that it does not take account, whatever their content, of collective agreements by which those undertakings are already bound in the Member State in which they are established, and treats them in the same way as national undertakings which have not concluded a collective agreement. Such discrimination cannot be justified either by the aim of allowing trade unions to take action to ensure that all employers active on the national labour market pay wages and apply other terms and conditions of employment in line with those usual in that Member State, or by the aim of creating a climate of fair competition, on an equal basis, between national employers and entrepreneurs from other Member States. Those considerations do not constitute grounds of public policy, public security or public health within the meaning of Article 46 EC, applied in conjunction with Article 55 EC. (see paras 116, 118-120, operative part)