EN Official Journal of the European Union CE 84/689

(2004/C 84 E/0775)

WRITTEN QUESTION P-0870/04

by Wolfgang Ilgenfritz (NI) to the Commission

(15 March 2004)

Subject: Work permits for workers contracted out in Italy

An Austrian firm contracts out workers, the majority of whom are from Austria or the other current Member States of the EU, to companies in the EU, including some in the South Tyrol. The authorities in the South Tyrol have pointed out on numerous occasions that workers from Austria and the rest of the EU require work permits. This decision is impeding the activities of the firm concerned.

1. Is it possible that work permits are required in Italy on the basis of existing transitional arrangements, for example?

2. Or are the Italian authorities in breach of the law by impeding the activities of the Austrian firm?

Answer given by Mr Dimas on behalf of the Commission

(19 April 2004)

Article 3(1)(d) of Directive 96/71/EC of the Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (1) obliges Member States to ensure that undertakings which, in the framework of the transnational provision of services, post workers to their territory, respect the conditions of the hiring-out of workers laid down in its legislation. With regard to their content, these rules have to be motivated by the protection of workers or other overriding requirements relating to the public interest, appropriate for securing the attainment of the objective which they pursue and not going beyond what is necessary in order to attain this objective.

Whether a specific national measure fulfils these criteria or not, depends on its precise content, the concrete situations affected by it and the conditions to fulfil in order to comply with the relevant provision.

In general terms, the Commission would like to note that a requirement to obtain work permits for nationals of Member States is not compatible with Article 49 of the EC Treaty. There are no transitional arrangement with regard the application by Italy of the Directive 96/71/EC and the transitional measures provided for by the Accession Treaty are not applicable with regard the relation between the current Member States.

According to the information at the disposal of the Commission, Italian legislation (in particular Article 4 of decree-law No 72 of 25 February 2000 and Article2 of Law No 196 of 24 June 1997) obliges undertakings supplying temporary work to a user undertaking established in Italy to obtain registration on a list kept for that purpose by the competent department of the Ministry of Labour and Social Security. To be registered on that list, those companies must obtain a licence, which is granted initially on a temporary basis, then, after the business has operated for two years, for an unlimited period. The granting of that licence is in turn subject to meeting certain conditions aiming at the protection of workers. A licence is however not required, if a temporary employment undertaking can show that it operates under an equivalent administrative measure issued by the competent authority of a Member State other than Italy.

As the Court of Justice has underlined in its case law, the provision of manpower is a particularly sensitive matter from the occupational and social point of view, affecting both relations on the labour market and the lawful interests of the workforce concerned. Consequently, the Court has considered it permissible, under Community law, and amounting to a legitimate choice of policy pursued in the public interest, to subject the provision of manpower to a system of licensing, provided that the host State takes into account the evidence and guarantees already furnished by the provider of services for the pursuit of his activities in the Member State of his establishment.

The Italian Decree-law No 72 of 25 February 2000, transposing Directive 96/71/EC, does not contain additional authorisation requirements with regard to the transnational hiring-out of workers who are nationals of a Member State, and the Commission is not aware of other parts of legislation prescribing work permits for such workers.

(1) OJ L 18, 21.1.1997.