EN Official Journal of the European Union C 63/3

Judgment of the Court (Third Chamber) of 21 January 2010 — European Commission v Federal Republic of Germany

(Case C-546/07) (1)

(Failure of a Member State to fulfil obligations - Freedom to provide services - Article 49 EC - Annex XII to the Act of Accession - List referred to in Article 24 of the Act of Accession: Poland - Chapter 2, paragraph 13 - Possibility of derogation by the Federal Republic of Germany from the first paragraph of Article 49 EC - ‘Standstill’ clause - Agreement of 31 January 1990 between the Government of the Federal Republic of Germany and the Government of the Republic of Poland on the posting of workers from Polish undertakings to carry out works contracts - Exclusion of the possibility for undertakings established in other Member States to conclude works contracts with Polish undertakings for work to be carried out in Germany - Extension of the restrictions existing at the date of signature of the Treaty of Accession relating to the access of Polish workers to the German labour market)

2010/C 63/04

Language of the case: German

Parties

Applicant: European Commission (represented by: E. Traversa and P. Dejmek, Agents)

Defendant: Federal Republic of Germany (represented by: J. Möller, M. Lumma and C. Blaschke, Agents)

Intervener in support of the applicant: Republic of Poland (represented by: M. Dowgielewicz, Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 49 EC and Annex XII (List referred to in Article 24 of the Act of Accession: Poland), Chapter 2 (Freedom of Movement of Persons), Paragraph 13 of 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 (OJ 2003 L 236, p. 875) — Interpretation and application by the national administrative authorities of the Agreement of 31 January 1990 between the Government of the Federal Republic of Germany and the Government of the Republic of Poland on the posting of workers from Polish undertakings to carry out works contracts — Exclusion of the possibility for undertakings established in other Member States to conclude works contracts with Polish undertakings concerning work to be done in Germany — Extension of the restrictions which existed at the date the Act of Accession was signed relating to the access of Polish workers on fixed term contracts (‘Werkvertragsarbeitnehmer’) to the national labour market

Operative part of the judgment

The Court:

1. Declares that, by interpreting, in its administrative practice, the term ‘undertaking from the other side’ in Paragraph 1(1) of the Agreement of 31 January 1990 between the Government of the Federal Republic of Germany and the Government of the Republic of Poland on the posting of workers from Polish undertakings to carry out works contracts, as amended on 1 March and 30 April 1993, as meaning ‘a German undertaking’, the Federal Republic of Germany has failed to fulfil its obligations under Article 49 EC;

2. Dismisses the remainder of the action;

3. Orders the European Commission and the Federal Republic of Germany to bear their own respective costs;

4. Orders the Republic of Poland to bear its own costs.

(1) OJ C 64, 8.3.2008.