Opinion of the Advocate General — ECLI:EU:C:2010:245
Date: 2010-05-05
Language of the case: Dutch
Subject matter: Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary 77. In the light of the arguments set out, Articles 56 and 57 TFEU must be interpreted as meaning that they preclude national legislation which makes the posting of workers and the actual beginning of the provision of services conditional on certification of receipt and approval of the prior declaration within five working days following the date on which it was received by the Inspectorate. 2. The documents from the State of establishment equivalent to those of the host State a) Introduction 78. The second measure to cause the Rechtbank to entertain doubts is that requiring an undertaking established in another Member State to keep available to the competent authorities certain documents from the State of origin which are comparable to documents of the State of destination, specifically, those corresponding to the Belgian individual account and pay slip. 79. The prohibition of ‘dual checks’, in conjunction with the case-law of the Court of Justice, makes it possible to assert that Directive 96/71 requires a reasonable degree of equivalence between the guarantee mechanisms laid down in the host State and those laid down in the employer’s State of origin. This requirement of comparable conditions tends to arise frequently in connection with social documents, the usual starting point for an employment inspectorate. 80. In his Opinion in Arblade and Others, Advocate General Ruiz-Jarabo Colomer analysed the effectiveness of that requirement of equivalence, pointing out that States of destination ‘must examine whether those undertakings already meet similar obligations under the legislation of the Member State of establishment, having regard not so much to the names of the various documents as to their content and the purpose they serve. If they do, the two bodies of legislation must be recognised as equivalent’. Thus, ‘such undertakings may be required to comply with the legislation of the host Member State only in so far as it supplements the legislation of the State of establishment, but not if the two overlap’ (point 89). 81. The Court followed that approach in its judgment in that case, stating that the obligation to draw up and keep the documents of the host Member State ‘gives rise to additional expenses and administrative and economic burdens for undertakings established in another Member State, with the result that such undertakings are not on an equal footing, from the standpoint of competition, with employers established in the host Member State’ (paragraph 58). The Court held that ‘the mere fact that there are certain differences of form or content cannot justify the keeping of two sets of documents, one of which conforms to the rules of the Member State of establishment and the other to those of the host Member State, if the information provided, as a whole, by the documents required under the rules of the Member State of establishment is adequate to enable the controls needed in the host Member State to be carried out’. (48) Consequently, the Court concluded that ‘the imposition of such an obligation constitutes a restriction on freedom to provide services within the meaning of Article 59 of the Treaty’. (49) 82. Underlying the statement of the law laid down in Arblade and Others is the principle of mutual trust between Member States, for, in short, prohibition of the ‘double burden’ entails acceptance of the law of another Member State (that of the State of origin) as a valid instrument for the protection of the public interest in the State of destination. 83. On the basis of the considerations set out, it could be asserted that requiring production of the documents of the State of origin (in the abstract, without considering the obligations to keep and retain them) does not amount to a restriction of Article 56 TFEU, in view of the fact that, on the one hand, an undertaking is required to draw up the documents in the State in which it is established, like other undertakings, and, on the other, that undertakings established in the place where the service is provided are also required to produce the ‘equivalents’ referred to in the Belgian legislation. However, the specific characteristics of the Belgian rules, particularly the obligation to retain the documents concerned, may, as will be shown below, lead to a different outcome. b) Documents equivalent to the individual account and payslip in the host State 84. Leaving aside the essential nature of the choice which, according to the Belgian Government, its system offers providers of services (to opt for the simplified regime or undertake directly to draw up the documents provided for in Belgium), it is clear that the aim of the simplified regime is to relieve employers of a number of procedural steps, such as the drawing-up and keeping of certain documents (inter alia, the individual account and pay slip) which, in accordance with Article 56 TFEU, may be required in the event of a temporary posting of workers only where their social protection is not guaranteed by the documents provided for in the legislation of the Member State in which the undertaking is established. 85. The submissions of Belgium confirm that interpretation: given that Arblade and Others precludes the imposition of a general obligation on employers from other Member States to draw up the individual account provided for in Belgian law, the latter relieves employers of that burden on certain conditions. 86. Arblade and Others has defined a main criterion and a subsidiary criterion, clearly directing the authorities and, as the case may be, the courts of the host Member State to ‘verify in turn, before demanding that social or labour documents complying with their own rules be drawn up and kept in the territory of that State, that the social protection for workers which may justify those requirements is not sufficiently safeguarded by the production, within a reasonable time, of originals or copies of the documents kept in the Member State of establishment’. (50) 87. If an employer should not have those equivalent documents, the legislation of the host State requires him to draw up and keep the individual account and pay slip provided for in Belgian law. It is not, therefore, appropriate to criticise a regime which requires the production of certain social documents equivalent to those of the State of establishment, relegating to a subsidiary requirement the ordinary regime of document production. It is clear that this approach is compatible with the case-law laid down by the Court in Arblade and Others. 88. However, it is more difficult to justify the fact that Belgium restricts the case-law of the Court to postings of less than six months, since postings in excess of that period are subject also to Article 56 TFEU. After all, postings for more than six months are still temporary, as may be inferred from the judgments in Rush Portuguesa, Vander Elst, Finalarte, and Commission v Luxembourg, in which the Court stated that, when workers are posted by an undertaking which is not established in the host State but which provides services there, those workers ‘do not aspire to access to the employment market of the Member State where they are posted’. (51) c) The content of the documents 89. The individual account for each worker gives details of the services provided by a worker during a year and of the remuneration received. The payslip, which is sent to workers in each remuneration period, states the exact method used to calculate their remuneration together with the appropriate deductions. 90. Those two documents are quite clearly adequate for the purposes of determining the financial rights of workers, in that they make it possible to check that the limits laid down by legislation or by collective agreement have been respected and that workers have actually been paid for all the days they have worked, including public holidays and annual leave; they are also necessary for the purposes of verifying the minimum wage and overtime payments. Further, the documents are necessary for comparing an employee’s rights under the various legislative systems concerned and, from the perspective of recognising the equivalence of the documents from the State of establishment to those of the State of destination, they are less incisive than other alternatives, such as completing the Belgian documents directly. d) The keeping of the documents 91. It is necessary to draw attention to the three different aspects of the keeping of the documents: the first relates to holding available and keeping the equivalent documents during the period of employment of workers posted to Belgium; the second extends the obligation to keep the documents for up to five years after the expiry of the period of six months since the worker was first posted, and the third refers to the place where the documents are to be kept, that is to say, the place to which the worker is posted or the Belgian address of a natural person who keeps them as agent. 92. As to whether that obligation is enforceable over time, the organised system for cooperation and exchanges of information between Member States provided for in Article 4 of Directive 96/71 renders superfluous the keeping of such documents in the host Member State after an employer has ceased to employ workers there. (52) Moreover, case-law accepts the keeping ‘of certain documents at the address of a natural person residing in the host Member State’ but only for as long as the posting lasts. (53) Therefore, although the obligation to keep equivalent documents for the duration of the posting is compatible with the principle of proportionality, prolongation of that obligation for five years after the work has been carried out is more questionable, as confirmed by paragraphs 77 and 78 of Arblade and Others and by paragraphs 90 to 94 of Case C‑319/06 Commission v Luxembourg. The fact that the Member States may have alternative mechanisms for cooperation which replace that burden borne by the employer, and which, moreover, entail an administration cost which unnecessarily deters the provision of services in a Member State other than that of establishment, confirms that this is a disproportionate requirement contrary to Article 56 TFEU. e) Summary 93. It may be inferred from all the foregoing that Articles 56 and 57 TFEU must be interpreted as meaning that they do not preclude national legislation requiring the production of certain documents from the State of establishment (in the instant case, the Belgian individual account and pay slip) which are equivalent to those which must be drawn up in the State of destination. However, a system such as the Belgian, which requires certain documents from the State of establishment equivalent to those of the host State to be retained after the workers’ posting has ceased, is disproportionate and is not justified in the light of Articles 56 and 57 TFEU. A system which requires the direct production of the documents of the host Member State for temporary postings of workers for a duration of more than six months warrants the same criticism. VII – Conclusion 94. Having regard to the foregoing considerations, I propose that the Court should reply to the question referred for a preliminary ruling as follows, declaring that: (1) Articles 56 and 57 TFEU must be interpreted as meaning that they preclude national legislation which makes the posting of workers and the actual beginning of the provision of services conditional on certification of receipt and approval of the prior declaration within five working days from the date on which it was received by the Inspectorate. (2) Articles 56 and 57 TFEU must be interpreted as meaning that they do not preclude national legislation which requires the production of certain documents of the State of establishment (in the instant case, the Belgian individual account and pay slip) which are equivalent to the documents that must be drawn up in the State of destination. However, Articles 56 and 57 TFEU must be interpreted as meaning that they preclude national legislation which requires – certain documents of the State of establishment equivalent to those of the host State to be kept after the posting of workers has in fact ceased; – documents of the host State to be obtained when the temporary posting of workers is for a duration of more than six months.’ 1 – Original language: Spanish. 2 – Directive 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). 3 – Joined Cases C‑369/96 and C‑376/96 [1999] ECR I‑8453. 4 – Case C‑438/05 International Transport Workers’ Federation and Finnish Seamen’s Union, ‘Viking Line’, [2007] ECR I‑10779, and Case C‑341/05 Laval un Partneri [2007] ECR I‑11767. 5 – Belgisch Staatsblad of 13 March 2002. 6 – Belgisch Staatsblad of 17 April 2002. 7 – Acronym for ‘Landenoverschrijdend Informatiesysteem ten behoeve van MigratieOnderzoek bij de Sociale Administratie’ (cross-border information system for the investigation of migration by the social authorities). The Commission states in its written observations that this system is the subject of infringement proceedings for breach of Article 56 TFEU (proceedings No 2007/2367). 8 – Article 4 of the Law of 8 April 1965 9 – Article 15 of the Law of 12 April 1965. 10 – Articles 4 and 123 of the Law of 3 July 1978. 11 – Article 38 of the Law of 26 July 1996. 12 – The defendants in the main proceedings acknowledge that, although those forms were not issued promptly, this delay never aroused the suspicion of the Belgian Employment Inspectorate. 13 – Belgisch Staatsblad of 17 August 1978. 14 – The applicable provisions of criminal law have not been specified in the order of the Rechtbank or in the written and oral pleas put forward by the various parties. 15 – Case C‑30/93 AC-ATEL Electronics Vertriebs [1994] ECR I‑2305, paragraph 16; Case C‑352/95 Phytheron International [1997] ECR I‑1729, paragraph 11; and Case C‑235/95 Dumon and Froment [1998] ECR I‑4531, paragraphs 25 to 27. 16 – Case C‑475/99 Ambulanz Glöckner [2001] ECR I‑8089, paragraph 10; Case C‑136/03 Dörr and Ünal [2005] ECR I‑4759, paragraph 46; and Case C‑419/04 Conseil général de la Vienne [2006] ECR I‑5645, paragraph 24. 17 – Case C‑505/07 Compañía Española de Comercialización de Aceite [2009] ECR I‑8963, paragraph 26. 18 – Case C‑390/99 Canal Satélite Digital [2002] ECR I‑607, paragraph 19. 19 – Joined Cases C‑320/90 to C‑322/90 Telemarsicabruzzo and Others [1993] ECR I‑393, paragraph 6. 20 – Orders in Case C‑157/92 Banchero [1993] ECR I‑1085, paragraph 4; Case C‑167/94 Grau Gomis and Others [1995] ECR I‑1023, paragraph 8; and Case C‑45/08 Spector Photo Group [2009] ECR I‑0000, paragraph 26. 21 – Joined Cases 141/81 to 143/81 Holdijk and Others [1982] ECR 1299, paragraph 6. 22 – Recital 6 in the preamble to Directive 96/71. 23 – Recital 13 in the preamble to Directive 96/71. 24 – Recital 14 in the preamble to Directive 96/71. 25 – The specific nature of the regime established by Directive 96/71 is all the more evident when it is compared with the applicable general legal rules in Articles 3 and 6 of the Rome Convention of 19 June 1980 on the law applicable to general contractual obligations (OJ 1980 L 266, p. 1). The convention opts for a different solution, providing that, in the absence of choice by the parties (the main criterion), the employment contract will be governed by the law of the State in which the employee habitually carries out his work in performance of the contract, even if he is temporarily employed in another country, or by the law of the country in which the place of business through which he was engaged is situated (the subsidiary criterion), subject always to the possibility that, under certain conditions, the rules of another legal system, in particular, that of the Member State to whose territory a worker has been temporarily posted, may take effect in addition to the law declared to be applicable to the contract (the criterion of mandatory law). 26 – Case C‑60/03 Wolff & Müller [2004] ECR I‑9553, paragraph 30. 27 – Kilpatrick, C., ‘The ECJ and Labour Law: A 2008 Retrospective’, Industrial Law Journal, Vol. 38, No 2, Oxford University Press, 2009, pp. 196 to 202. 28 – Case C‑346/06 [2008] ECR I‑1989. 29 – Case C‑319/06 [2008] ECR I‑4323. 30 – Arblade and Others, paragraph 29. 31 – Case C‑76/90 Säger [1991] ECR I‑4221, paragraph 12; Case C‑398/95 SETTG [1997] ECR I‑3091, paragraph 16; Case C‑244/04 Commission v Germany [2006] ECR I‑885, paragraph 30; and Case C‑219/08 Commission v Belgium [2009] ECR I‑0000, paragraph 13. 32 – In that connection, see Arblade and Others, paragraph 34; Case C‑165/98 Mazzoleni and ISA [2001] ECR I‑2189, paragraph 27; Joined Cases C‑49/98, C‑50/98, C‑52/98 to C‑54/98 and C‑68/98 to C‑71/98 Finalarte and Others [2001] ECR I‑7831, paragraph 33; International Transport Workers’ Federation and Finnish Seamen’s Union, paragraph 77; and Laval un Partneri, paragraph 103. 33 – Case C‑319/06 Commission v Luxembourg, paragraph 30. 34 – Arblade and Others, paragraph 35. 35 – Case C‑445/03 Commission v Luxembourg [2004] ECR I‑10191, paragraph 46; Commission v Germany, paragraphs 41 and 42; and Commission v Belgium, paragraph 16. 36 – Particularly relevant are ‘the date on which the employment contract was concluded, the date on which the employee commenced employment in Belgium and the work performed’. 37 – That was confirmed at the hearing by the representative of the Belgian Government. 38 – Paragraph 32 of its statement in intervention. 39 – Paragraph 31 of its statement in intervention. 40 – Commission v Germany, paragraph 42. 41 – Commission v Germany, paragraph 41. 42 – In Case C‑43/93 Vander Elst [1994] ECR I‑3803, paragraph 15; Case C‑445/03 Commission v Luxembourg, paragraph 24; and Commission v Germany, paragraph 34, the Court held that that requirement constitutes a restriction on the freedom to provide services within the meaning of Article 49 EC. 43 – Arblade and Others, paragraph 76. 44 – Case C‑319/06 Commission v Luxembourg, paragraph 91. 45 – The criterion of an additional benefit for workers, albeit limited to the comparison of the laws of the State of origin and the host State, is highlighted in Finalarteand Others. 46 – According to the arguments of the defendants in the main proceedings, which were corroborated at the hearing, repairs of the sort carried out by Termiso necessitate the urgent posting of workers. 47 – It is most illuminating that the agent of the Commission acknowledged as much at the hearing. 48 – Arblade and Others, paragraph 64. 49 – Arblade and Others, paragraphs 58 and 59. 50 – Arblade and Others, paragraph 65. 51 – See Case C‑113/89 Rush Portuguesa [1990] ECR I‑1417, paragraph 15; Vander Elst, paragraph 21; Finalarte and Others, paragraph 22; Case C‑445/03 Commission v Luxembourg, paragraph 38. 52 – Case C‑319/06 Commission v Luxembourg, paragraph 92, and Arblade and Others, paragraph 79. 53 – That may be inferred acontrario from paragraph 74 of the judgment in Case C‑490/04 Commission v Germany [2007] ECR I‑6095: ‘While it is true that at paragraph 76 of that judgment [Arblade and Others] the Court considered that it is not sufficient, for the purposes of justifying a restriction of freedom to provide services – involving retaining certain documents at the address of a natural person residing in the host Member State – that the presence of such documents within the territory of the host Member State may make it generally easier for the authorities of that State to perform their supervisory task, that paragraph of that judgment, however, involved the obligation on the employer to make those documents available to the competent authorities, even after the employer had ceased to employ workers in that State.’