Opinion of the Advocate General — ECLI:EU:C:2020:319
Date: 2020-04-30
Language of the case: Dutch
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary C-815/18 — 1 
Case C-815/18 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
21 December 2018 
Referring court: 
Hoge Raad der Nederlanden (Netherlands) 
Date of the decision to refer: 
14 December 2018 
Appellant: 
Federatie Nederlandse Vakbeweging 
Respondents: 
Van den Bosch Transporten B.V. 
Van den Bosch Transporte GmbH 
Silo-Tank Kft 
  
Subject of the action in the main proceedings 
In the main proceedings, FNV claims that Van den Bosch et al should be ordered 
to comply with the cao Goederenvervoer (collective labour agreement (‘CLA’) 
Goods Transport) in so far as it concerns the application of the basic conditions 
laid down in that Dutch CLA to German and Hungarian drivers who have an 
employment contract with Van den Bosch Transporte GmbH and Silo-Tank Kft, 
respectively, and who mainly work for international transport operations outside 
the Netherlands.  
Subject and legal basis of the request for a preliminary ruling 
The present request is based on Article 267 TFEU and concerns the question 
whether, and if so, under what conditions, Directive 96/71/EC of the European 
Parliament and of the Council of 16 December 1996 concerning the posting of 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-815/18 
 
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workers in the framework of the provision of services is applicable to drivers 
working in international transport operations.  
Questions referred 
1 Must Directive 96/71/EC of the European Parliament and of the Council of 
16 December 1996 concerning the posting of workers in the framework of the 
provision of services [OJ 1997 L 18, p. 1; ‘the Posting of Workers Directive’] be 
interpreted as meaning that it also applies to a worker who works as a driver in 
international road transport and thus carries out his work in more than one 
Member State?  
2(a) If the answer to Question 1 is in the affirmative, what criterion or 
considerations should be used to determine whether a worker working as a driver 
in international road transport is posted ‘to the territory of a Member State’ as 
referred to in Article 1(1) and (3) of the Posting of Workers Directive, and 
whether that worker ‘for a limited period, carries out his work in the territory of a 
Member State other than the State in which he normally works’ as referred to in 
Article 2(1) of the Posting of Workers Directive?  
2(b) When answering question 2 (a), should any significance be attached to the 
fact that the undertaking posting the worker referred to in question 2(a) is 
affiliated — for example, in a group of companies — to the undertaking to which 
that worker is posted and, if so, what should that significance be?  
2(c) If the work undertaken by the worker referred to in question 2(a) relates 
partly to cabotage transport — that is to say: transport carried out exclusively in 
the territory of a Member State other than that in which that worker habitually 
works — will that worker then in any case for that part of his work, be considered 
to be working temporarily in the territory of the first Member State? If so, does a 
lower limit apply in that regard, for example, in the form of a minimum period per 
month in which that cabotage transport takes place?  
3(a) If the answer to Question 1 is in the affirmative, how should the term 
‘collective agreements ... which have been declared universally applicable’, as 
referred to in Article 3(1) and the first subparagraph of Article 3(8) of the Posting 
of Workers Directive, be interpreted? Is that an autonomous concept of European 
Union law and is it therefore sufficient that the conditions laid down in the first 
subparagraph of Article 3(8) of the Posting of Workers Directive have for 
practical purposes been met, or do those provisions also require that the collective 
labour agreement was declared universally applicable on the basis of national 
law?  
3(b) If a collective labour agreement cannot be regarded as a universally 
applicable collective labour agreement within the meaning of Article 3(1) and the 
first subparagraph of Article 3(8) of the Posting of Workers Directive, does 
Article 56 TFEU preclude an undertaking which is established in a Member State 
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and which posts a worker to the territory of another Member State from being 
obliged by contractual means to comply with the provisions of such a collective 
labour agreement which is in force in the latter Member State?  
Provisions of Union law and international law cited 
Article 56 TFEU 
Article 1(1) and 1(3), Article 2(1) and Article 3(1) and the first subparagraph of 
Article 3(8) of Directive 96/71/EC of the European Parliament and of the Council 
of 16 December 1996 concerning the posting of workers in the framework of the 
provision of services  
Article 8(1) and 8(2), and Article 9 of Regulation (EC) No 593/2008 of the 
European Parliament and of the Council of 17 June 2008 on the law applicable to 
contractual obligations (Rome I) (OJ 2008 L 177, p. 6) 
Article 6(2)(a) and Article 7 of the Convention on the law applicable to 
contractual obligations 
Provisions of national law cited 
Article 44 of the collectieve arbeidsovereenkomst Goederenvervoer (collective 
labour agreement Goods Transport) and Article 73 of the collectieve 
arbeidsovereenkomst Beroepsgoederenvervoer over de weg en verhuur van 
mobiele kranen (collective labour agreement Professional Goods Transport By 
Road and Mobile Crane Rental) 
Brief summary of the facts and the procedure in the main proceedings 
1 Van den Bosch Transporten operates a transport undertaking from Erp. Van den 
Bosch Transporten, Van den Bosch GmbH (a company under German law) and 
Silo-Tank (a company under Hungarian law) are subsidiaries and belong to the 
same group. They have the same director and shareholder, and use the same 
service provider based in the Netherlands in the field of ICT and finance.  
2 Van den Bosch Transporten is a member of the Vereniging Goederenvervoer 
Nederland (Netherlands Association Goods Transport), which with effect from 
1 January 2012 concluded the collectieve arbeidsovereenkomst Goederenvervoer 
(collective labour agreement Goods Transport; ‘CLA GN’) with the Federatie 
Nederlandse Vakbeweging (Federation of Dutch Trade Unions; ‘FNV’) with a 
term up to and including 31 December 2013. That CLA was not declared 
universally applicable. Undertakings covered by the CLA GN were granted 
exemption by ministerial decree from the application of the cao 
Beroepsgoederenvervoer (CLA Professional Goods Transport) which was 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-815/18 
 
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declared to be universally applicable. That exemption therefore applies to Van den 
Bosch Transporten.  
3 Within the Van den Bosch Transporten group, drivers from Germany and 
Hungary work under contracts concluded with Van den Bosch GmbH and Silo-
Tank, respectively. The basic conditions of employment laid down in the CLA 
GN are not applied to them.  
4 Van den Bosch Transporten concludes charter agreements for international 
transport operations with Van den Bosch GmbH and Silo-Tank. Those transport 
operations take place predominantly outside the territory of the Netherlands.  
5 Under the charter provision in Article 44 of the CLA GN, and the almost identical 
Article 73 of the CLA Beroepsgoederenvervoer, an employer is obliged to 
stipulate in subcontracting agreements, executed in or from the employer’s 
undertaking established in the Netherlands, that the workers of the independent 
subcontractor are granted the basic conditions of employment laid down in the 
CLA GN if that results from the Posting of Workers Directive, even if the law of a 
country other than the Netherlands has been chosen. The employer must inform 
the workers concerned about the basic conditions that apply to them.  
Main submissions of the parties to the main proceedings 
6 FNV claims that Van den Bosch Transporten et al should be ordered to comply 
with the CLA GN, because when Van den Bosch posts German and Hungarian 
drivers, it is obliged under the charter provision to stipulate that the basic 
conditions of the CLA GN are granted to those drivers. After all, the Posting of 
Workers Directive applies.  
7 In cases where the Netherlands is the country in which the employee habitually 
carries out his work, under Article 6[2](a) of the Convention on the law applicable 
to contractual obligations and Article 8(1) of Regulation (EC) No 593/2008, 
Dutch wages should be paid. By not applying the Dutch basic conditions, Van den 
Bosch GmbH and Silo-Tank are acting unlawfully towards FNV. Van den Bosch 
Transporten is also liable for that unlawful act. 
8 According to Van den Bosch Transporten et al, Article 44 of the CLA GN is null 
and void, because the resulting obligation for Van den Bosch Transporten et al 
constitutes an unlawful restriction on the free movement of services under 
Article 56 TFEU. After all, the CLA GN has not been declared universally 
applicable and is therefore not a mandatory provision.  
Brief summary of the reasons for the referral 
9 The court of first instance ruled in an interim judgment that the basic conditions of 
the CLA GN apply to German and Hungarian drivers. The court of second 
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instance annulled that interim judgment and referred the case back with the 
following considerations.  
10 The charter provision of the CLA GN has indeed not been declared universally 
applicable. However, the CLA Beroepsgoederenvervoer has been declared 
universally applicable. Since the provisions in both CLAs are virtually identical 
and Van den Bosch Transporten has been granted exemption from the application 
of the CLA Beroepsgoederenvervoer on the ground that it was covered by the 
CLA GN, the situation must be materially aligned with the situation in which the 
CLA GN would have been declared universally applicable.  
11 In that case, the condition of universal applicability laid down in Article 3(8) of 
the Posting of Workers Directive has been fulfilled and Article 44 of the CLA GN 
cannot be regarded as an unlawful restriction on the freedom to provide services.  
12 As regards the requirement in Article 44 of the CLA GN that this must relate to 
subcontracting agreements to which the Posting of Workers Directive applies, the 
question arises, according to the court of second instance, whether the term ‘(post 
workers) to the territory of a Member State’ as referred to in Article 1(1) and (3) 
of the Posting of Workers Directive must be interpreted literally or as ‘to or from 
the territory of a Member State’, as FNV contends. In the latter case, it is 
irrelevant in which Member State the driver actually carries out his work within 
the framework of the charter.  
13 According to the court of second instance, a broad interpretation of that term is 
not consistent with the aim of the Posting of Workers Directive to do justice not 
only to the freedom to provide services within the European Union, but also to the 
interests of the domestic labour market of the respective Member State for which 
the service concerned is intended. Not only is it difficult to determine which 
labour market exactly should be taken into account, but that interpretation is also 
not evident from the explanatory memorandum to the Commission’s original 
proposal for the directive. That proposal clearly shows that the Posting of Workers 
Directive intentionally does not refer to international charter transport, but only to 
nationally executed charters.  
14 Recital 2 of Directive 2014/67/EU of the European Parliament and of the Council 
of 15 May 2014 on the enforcement of Directive 96/71/EC on the posting of 
workers in the framework of the provision of services, etc., also provides no 
support for a broad interpretation.  
15 According to the court of second instance, therefore, the requirement of posting 
workers to the territory of the Netherlands is also not satisfied. Since the charter 
provision is in keeping with the scope of the Posting of Workers Directive, that 
provision does not apply.  
16 In cassation before the referring court, FNV essentially argues that the court of 
second instance failed to recognise that the term ‘to the territory of a Member 
State’ must be interpreted as ‘to or from the territory of a Member State’ and that 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-815/18 
 
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the Posting of Workers Directive therefore applies to drivers working in 
international road transport, as is the case here.  
17 According to the referring court, the scheme of the Posting of Workers Directive 
must be viewed in conjunction with the rules of reference applicable to 
international contracts of employment in Article 6(2)(a) of the Convention on the 
law applicable to contractual obligations (‘the 1980 Rome Convention’), and 
Article 8 of the Rome I Regulation, and with the rules of precedence in Article 7 
of the 1980 Rome Convention and Article 9 of the Rome I Regulation.  
18 However, it does not automatically follow from the joint consideration of those 
provisions how Article 1(1) and (3) and Article 2(1) of the Posting of Workers 
Directive are to be interpreted. It is conceivable, for example, that the term ‘to the 
territory of a Member State’ should be interpreted in accordance with the 
interpretation given by the Court of Justice in its judgment of 15 March 2011, 
Koelzsch (C-29/10, ECLI:EU:C:2011:151), that is to say, ‘the Member State in 
which or, failing that, from which the employee temporarily carries out his work 
in performance of the contract’. It is also conceivable that there should be a ‘close 
connection’ between the employment contract and the Member State concerned, 
and that in that regard there should be the fulfilment of a condition that the worker 
concerned should carry out his work for a minimum number of consecutive days 
per month in the Member State concerned, or other conditions. 
19 The question also arises to what extent it is important that the undertakings which 
post the workers concerned are linked in the group context to the undertaking to 
which those workers are posted. 
20 Since Court of Justice case-law on those questions is lacking, doubt may 
reasonably exist as to the correct interpretation of the term ‘to the territory of a 
Member State’ as referred to in Article 1(1) and (3) and Article 2(1) of the Posting 
of Workers Directive, and on the question whether international road transport 
falls within the scope of the Posting of Workers Directive. A question in that 
regard will therefore be referred for a preliminary ruling. 
21 FNV submits that some of the journeys at issue in the main proceedings take place 
entirely in the Netherlands, so that the drivers in question can derive rights from 
the Posting of Workers Directive for those journeys.  
22 That part of FNV’s plea therefore relates to cabotage transport operations. If it is 
assumed that the term ‘to the territory of a Member State’ must be interpreted 
strictly, as the court of second instance has done, the question arises whether 
cabotage falls within the scope of the Posting of Workers Directive.  
23 The referring court also examines the question of how the term ‘universally 
applicable’ as referred to in Article 3(1) and (8) of the Posting of Workers 
Directive should actually be interpreted. Is this an autonomous concept of 
European Union law or should harmonisation be sought — exclusively or in 
part — with the provisions of national law in that regard?  
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24 Under Article 3(8) of the Posting of Workers Directive, collective agreements 
which have been declared universally applicable means collective agreements or 
awards which must be observed by all undertakings in the geographical area and 
in the profession or industry concerned.  
25 That article could thus be interpreted as meaning that the term ‘declared 
universally applicable’ should be regarded as an autonomous concept of European 
Union law. In that interpretation it is irrelevant whether the CLA in question has 
been declared universally applicable under national law, but only whether the 
CLA has been declared universally applicable within the meaning of Article 3(8) 
of the Posting of Workers Directive.  
26 However, the term ‘declared universally applicable’ could also be interpreted as 
meaning that the CLA must be declared universally applicable in accordance with 
national law, and that the application of that national law must also result in 
compliance with the condition laid down in the first subparagraph of Article 3(8) 
of the Posting of Workers Directive.  
27 In the judgment of the Court of Justice of 3 April 2008, Rüffert (C-346/06, 
ECLI:EU:C:2008:189), an indication can be found that Article 3(1) and (8) of the 
Posting of Workers Directive relates to an autonomous concept of European 
Union law. At paragraph 26 of that judgment, the Court of Justice first established 
that the CLA in question had not been declared universally applicable under 
German law, and then considered it relevant whether that CLA ‘is nevertheless 
capable of being treated as universally applicable within the meaning of [...] the 
Posting of Workers Directive [...]’  
28 Doubt therefore exists as to the way in which that concept must be interpreted and 
a question in that regard will therefore be referred to the Court of Justice for a 
preliminary ruling.  
29 If, pursuant to the answers to the questions referred for a preliminary ruling, Van 
den Bosch GmbH and Silo-tank cannot be required to comply with the provisions 
of the CLA GN, it remains to be considered whether they can be obliged to 
comply with the employment conditions of that CLA by contractual means on the 
basis of the charter provision of article 44 of the CLA GN. In that case, the 
question arises whether there is then a violation of Article 56 TFEU. For reasons 
of procedural economy, the referring court includes that issue in the questions 
referred for a preliminary ruling.