Keywords

Summary



Keywords

1. Actions for failure to fulfil obligations - Examination of the merits by the Court - Situation to be taken into consideration - Situation on expiry of the period laid down by the reasoned opinion

(Art. 226 EC)

2. Freedom to provide services - Restrictions - Requirement that undertakings providing temporary labour which are established in other Member States maintain their registered office or a branch office on a Member State's own territory - Not permissible - Justification based on grounds of public interest - Social protection of workers - Not a justification

(Art. 49 EC)

3. Freedom to provide services - Restrictions justified in the public interest - Whether permissible - Conditions

(Art. 49 EC)

4. Freedom to provide services - Free movement of capital - Restrictions - Requirement that undertakings providing temporary labour which are established in other Member States lodge a guarantee with a credit institution having its registered office or a branch office on a Member State's own territory - Not permissible

(Arts 49 EC and 56 EC)

Summary

1. In an action under Article 226 EC, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion, and the Court cannot take account of any subsequent changes.

( see para. 10 )

2. A Member State which requires in its legislation that undertakings engaged in the provision of temporary labour which are established in other Member States maintain their registered office or a branch office on its territory, fails to fulfil its obligations under Article 49 EC.

In order for the requirement that undertakings providing temporary labour which wish to supply manpower to customers established in a Member State must have their registered office or a branch office on its territory, which is the very negation of the fundamental freedom to provide services, to be accepted, it must be shown that it constitutes a condition indispensable for attaining the objective pursued.

In that regard, notwithstanding that the protection of workers is among the overriding reasons of public interest capable of justifying a restriction on the freedom to provide services, the fact remains, however, that the requirement to have the registered office or a branch office on its territory, goes beyond what is necessary to achieve the objective of protection of workers.

( see paras 17-20, operative part )

3. The freedom to provide services, as one of the fundamental principles of the Treaty, may be restricted only by rules justified by overriding requirements relating to the public interest and applicable to all persons and undertakings operating in the territory of the State where the service is provided, in so far as that interest is not safeguarded by the rules to which the provider of such a service is subject in the Member State where it is established.

( see para. 33 )

4. A Member State which requires in its legislation that undertakings engaged in the provision of temporary labour which are established in other Member States lodge a guarantee with a credit institution having its registered office or a branch office on its territory fails to fulfil its obligations under Articles 49 EC and 56 EC.

( see paras 34, 41, operative part )