WRITTEN QUESTION P-0600/96 by Jessica Larive (ELDR) to the Commission (6 March 1996)

Subject: Obstacles to the free movement of services in Belgium

1. Can the Commission confirm that the requirement of a work permit for a non-EU national in the service of a Netherlands employer is incompatible with Articles 59 and 60 of the Treaty, where the worker in question holds valid work and residence permits in the Netherlands and is being posted temporarily by his Netherlands employer to provide services in Belgium?

2. Can the Commission also confirm that the requirement for registration as a building contractor in Belgium is in conflict with Articles 59 and 60 of the Treaty when applied to Netherlands firms which are registered in the Netherlands for the purposes of Netherlands social security legislation and whose workers are thus already insured by virtue of the said Netherlands legislation?

3. Can the Commission confirm that the payment of advances by Netherlands building firms in respect of social insurance premiums for workers posted to Belgium, in conjunction with the Social Identity Card which has been in force in Belgium in the building sector since 1 January 1995, is in conflict with European rules on the posting of workers laid down in Regulation (EEC) 1408/71 ((OJ L 149, 5.7.1971, p. 2. ))?

If so, what action does the Commission propose to take to remove these barriers to the internal market?

Answer given by Mr Monti on behalf of the Commission (15 April 1996)

1. The Commission agrees with the Honourable Member's conclusion that the requirement of a work permit for a non-EU national in the service of a Netherlands employer is incompatible with Articles 59 and 60 of the Treaty where the worker in question holds valid work and residence permits in the Netherlands and is posted temporarily by his Netherlands employer to provide services in Belgium. This conclusion follows directly from the Court of Justice judgment of 9 August 1994 in Case C-43/93 (Vander Elst) ((ECR I-3803, 1994. )). The Belgian Government is currently examining the implications of this judgment at the Commission's request; this still leaves the Commission able to initiate the proceedings provided for in Article 169 of the EC Treaty.

2. It is not impossible that the registration requirement laid down by the Belgian authorities is incompatible with Articles 59 and 60 of the Treaty. However, this cannot be confirmed, as the Honourable Member requests, until all the relevant facts have been examined. Such an examination is still under way in the case in point.

3. The Commission considers that, in so far as advances on social security contributions do not have to be paid under the rules provided for in Article 14(1) of Regulation (EEC) No 1408/71, the requirement to do so in Belgium is contrary to Community law, more particularly in the case of workers posted to Belgium who remain subject to the social security legislation of the Member State where they are normally covered, in accordance with the provisions of that Regulation. The Commission would point out to the Honourable Member that it has sent the Belgian Government a letter of formal notice pursuant to Article 169 of the EC Treaty in this connection.