Opinion of the Advocate General — ECLI:EU:C:2015:15
Date: 2015-01-15
Language of the case: Hungarian
Subject matter: Accession;Freedom to provide services;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Hungary

Summary — Judgment of the Court (Fourth Chamber), 18 June 2015 1. Accession of new Member States — Act of Accession 2003 — Transitional measures — Freedom to provide services — Posting of workers — National law of an existing Member State limiting the hiring out of Hungarian workers on its territory— Lawfulness (Act of Accession 2003, Annex X, Chapter 1(2) and (13)) 2. Freedom to provide services — Restrictions — Posting of workers in the framework of the provision of services — Directive 96/71 — Scope — Concept of making available of labour — Criteria for assessment (European Parliament and Council Regulation No 96/71, Art. 1(3)(c)) 1. Chapter 1, paragraphs 2, and 13, of Annex X 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 must be interpreted as meaning that the Republic of Austria is entitled to restrict the hiring-out of workers on its territory, in accordance with Chapter 1, paragraph 2 of that annex, even though that provision does not concern a sensitive sector, within the meaning of Chapter 1, paragraph 13, thereof. The fact that the Federal Republic of Germany and the Republic of Austria have negotiated a specific derogation, set out in Chapter 1, paragraph 13, of Annex X to that act, concerning certain sensitive sectors for which those two Member States are entitled to restrict the freedom to provide services involving a movement of workers cannot, be regarded as leaving them less room for manoeuvre than the other Member States which have not negotiated such a derogation to regulate the influx of Hungarian workers on their territory. (see paras 27, 29, 30, operative part 1) 2. Where there is a contractual relationship governing a provision of service, in order to determine whether that contractual relationship must be classified as a 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, it is necessary to take into consideration each element indicating whether the movement of workers in the host Member State is the very purpose of the supply of services on which the contractual relationship is based. In principle, evidence that such a movement is not the very purpose of the supply of services at issue are, inter alia, the fact that the service provider is liable for the failure to perform the service in accordance with the contract and the fact that that service provider is free to determine the number of workers he deems necessary to send to the host Member State. By contrast, the fact that the undertaking which receives those services checks the performance of the service for compliance with the contract or that it may give general instructions to the workers employed by the service provider does not, as such, lead to the finding that there is a hiring-out of workers. (see para. 41, operative part 2)