Keywords

Summary



Keywords

1. Freedom to provide services - Restrictions - Requirement of an establishment on national territory for construction undertakings providing transfrontier services on the national market as part of a consortium - Not permissible - Justified on grounds of public interest - Social protection of workers in the construction industry - No such justification

(EC Treaty, Art. 59 (now, after amendment, Art. 49 EC))

2. Freedom to provide services - Restrictions - Requirement of an establishment on national territory for construction undertakings contracting out workers from another country to other construction undertakings in that industry - Not permissible - Justified on grounds of public interest - Social protection of workers in the construction industry - No such justification

(EC Treaty, Art. 59 (now, after amendment, Art. 49 EC))

3. Freedom of movement for persons - Freedom of establishment - Restrictions - Requirement, for the establishment by construction undertakings of other Member States of branches recognised as construction undertakings, that they employ workers who spend more than 50% of the firm's total working time on building sites - Not permissible

(EC Treaty, Art. 52 (now, after amendment, Art. 43 EC))

Summary

1. A Member State fails to fulfil its obligations under Article 59 of the Treaty (now, after amendment, Article 49 EC) where it provides in its legislation that construction undertakings established in other Member States may not provide transfrontier services on the national market as part of a consortium unless they have their seat or at least an establishment on its national territory employing their own staff and have concluded a company-wide collective agreement for those staff. Such an establishment requirement constitutes an obstacle to exercise of the freedom to provide services and goes beyond what is necessary to attain the objective of providing social protection for workers in the building industry.

( see paras 18, 22 and operative part )

2. A Member State fails to fulfil its obligations under Article 59 of the Treaty (now, after amendment, Article 49 EC) where it provides in its legislation that construction undertakings established in other Member States may not contract out workers from another country to other construction undertakings unless they have their seat or at least an establishment in its national territory employing their own staff and, as members of a national employers' association, are covered by framework and social-welfare collective agreements. Such an establishment requirement constitutes an obstacle to exercise of the freedom to provide services and goes beyond what is necessary to attain the objective of providing social protection for workers in the building industry.

( see paras 18, 22 and operative part )

3. A Member State fails to fulfil its obligations under Article 52 of the Treaty (now, after amendment, Article 43 EC) where it provides in its legislation that construction undertakings established in other Member States may not establish in its national territory a branch recognised as a construction undertaking if its staff is entrusted solely with work on administration, marketing, planning, supervision and/or wages and salaries, but in order to be so recognised, such an establishment must employ on the national labour market workers who spend more than 50% of the firm's total working time on building sites.

On the one hand, that condition complicates access to the national market for those construction undertakings in that it makes treatment of the branches established on its national territory as construction undertakings depend on fulfilment of criteria which those branches have difficulty in fulfilling. On the other hand, that condition is likely to be less onerous for undertakings from the first Member State than for undertakings from other Member States in so far as there is less need for the former undertakings to assign administrative, technical and sales staff to their national branches because such tasks can be performed by the staff employed at the undertaking's seat on national territory.

( see paras 32, 34 and operative part )