WRITTEN QUESTION P-1529/98

by Elly Plooij-van Gorsel (ELDR) to the Commission

(11 May 1998)

Subject: Problems encountered by Dutch building firms operating in Germany

Amongst other things, the German Law on the Posting of Workers (Arbeitnehmer-Entsendegesetz - AEg) requires Dutch contractors using Dutch employees to carry out work in Germany to make those employees' pay records available on the building site in Germany. Moreover, since 1 January 1998, employers have also been required to provide a (postal) address or appoint a representative in Germany at which or through whom they can be contacted by the German inspection authorities. If they fail to do so, they could receive a hefty fine of up to DM 500 000.

1. Is the Commission aware that, since the AEg was amended, Dutch firms operating or intending to operate in Germany have faced onerous administrative requirements which make it very difficult for them to operate in Germany?

2. Will it investigate whether the provisions of the AEg are compatible with EEC law, in particular European rules on the free movement of workers and the freedom to provide services?

3. If the AEg contains unauthorized protectionist provisions that hinder the functioning of the internal market, what action does the Commission plan to take to remove them?

Answer given by Mr Monti on behalf of the Commission

(3 July 1998)

The Honourable Member has raised a number of issues relating to the freedom to provide cross-border services, a fundamental freedom laid down by Article 59 of the EC Treaty, and to Parliament and Council Directive 96/71/EC of 16 December 1996 concerning the posting of workers in the framework of the provision of services(1).

The aim of Directive 96/71/EC is to ensure that any firm which provides services within the territory of another Member State and posts workers there for that purpose abides by the minimum requirements in force in that Member State.

The Commission's replies to the Honourable Member are as follows:

1. The Commission has received several complaints about the German Law on the Posting of Workers (Arbeitnehmer-Entsendegesetz - AEg) from firms in various Member States, as well as from business organisations representing them.

2. German rules in this field must be examined in the light of the above-mentioned provisions of Community law. The Commission takes the view that measures to ensure compliance with minimum working and employment conditions must not be disproportionate to the objective pursued. The German rules do not affect freedom of movement for workers, as they lay down obligations that are applicable to firms only, not to their employees.

3. The German Labour Court in Wiesbaden has recently referred a number of cases concerning the German Law to the Court of Justice for preliminary rulings. Since the German authorities seem to have no intention of suspending the application of those provisions in the light of the preliminary rulings and since several non-German firms have submitted complaints to it, the Commission is currently examining the possibility of initiating infringement proceedings against Germany. It will inform the Honourable Member of any further action taken in the matter.

(1) OJ L 18, 21.1.1997.