Judgment of the Court (Fifth Chamber) of 25 October 2001 in Joined Cases C-49/98, C-50/98, C52/98 to C-54/98 and C-68/98 to C-71/98 (references for a preliminary ruling from the Arbeitsgericht Wiesbaden): Finalarte Sociedade de Construção Civil Ld.a v Urlaubs- und Lohnausgleichskasse der Bauwirtschaft, Urlaubs- und Lohnausgleichskasse der Bauwirtschaft v Amilcar Oliveira Rocha and Others, Portugaia Construções Ld.a v Urlaubs- und Lohnausgleichskasse der Bauwirtschaft, Engil Sociedade de Construção Civil SA v Urlaubs- und Lohnausgleichskasse der Bauwirtschaft (Freedom to provide services — Temporary deployment of workers for the purposes of performing a contract — Paid leave and holiday pay)
Date: 2002-01-05
Institutions: Court of Justice
Subjects: arrangement of working time, interpretation of the law, labour law, labour mobility, organisation of work, paid leave

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Official Journal of the European Communities

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(Information)

COURT OF JUSTICE

COURT OF JUSTICE

JUDGMENT OF THE COURT

(Fifth Chamber)

of 25 October 2001

in Joined Cases C-49/98, C-50/98, C52/98 to C-54/98 and
C-68/98 to C-71/98 (references for a preliminary ruling
from the Arbeitsgericht Wiesbaden): Finalarte Sociedade
de Construça˜o Civil Ld.a v Urlaubs- und Lohnausgleichs-
kasse der Bauwirtschaft, Urlaubs- und Lohnausgleichskas-
se der Bauwirtschaft v Amilcar Oliveira Rocha and
Others, Portugaia Construço˜ es Ld.a v Urlaubs- und
Lohnausgleichskasse der Bauwirtschaft, Engil Sociedade
de Construça˜o Civil SA v Urlaubs- und Lohnausgleichs-
kasse der Bauwirtschaft (1)

(Freedom to provide services — Temporary deployment of
workers for the purposes of performing a contract — Paid
leave and holiday pay)

(2002/C 3/01)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Joined Cases C-49/98, C-50/98, C-52/98 to C-54/98 and
C-68/98 to C-71/98: references to the Court under Article 177
of the EC Treaty (now Article 234 EC) from the Arbeitsgericht
(Labour Court) Wiesbaden (Germany) for a preliminary ruling
in the proceedings pending before that court between Finalarte
Sociedade de Construça˜o Civil Ld.a and Urlaubs- und Lohnaus-
gleichskasse der Bauwirtschaft
(C-49/98), Urlaubs- und
Lohnausgleichskasse der Bauwirtschaft and Amilcar Oliveira
Rocha (C-50/98), and Urlaubs- und Lohnausgleichskasse der
Bauwirtschaft and Tudor Stone Ltd (C-52/98), Urlaubs- und

Lohnausgleichskasse der Bauwirtschaft and Tecnamb-Tecnolo-
gia do Ambiente Ld.a (C-53/98), Urlaubs- und Lohnausgleichs-
kasse der Bauwirtschaft and Turiprata Construço˜ es Civil Ld.a
(C-54/98), Urlaubs- und Lohnausgleichskasse der Bauwirt-
schaft and Duarte dos Santos Sousa (C-68/98), and Urlaubs-
und Lohnausgleichskasse der Bauwirtschaft and Santos &
Kewitz Construço˜ es Ld.a (C-69/98), Portugaia Construço˜ es Ld.a
and Urlaubs- und Lohnausgleichskasse der Bauwirtschaft
(C-70/98) and between Engil Sociedade de Construça˜o Civil
SA and Urlaubs- und Lohnausgleichskasse der Bauwirtschaft
(C-71/98) — on the interpretation of Articles 48 and 59 of
the EC Treaty (now, after amendment, Articles 39 EC and 49
EC) and Article 60 of the EC Treaty (now Article 50 EC) and
subparagraph (b) of the second indent of the first paragraph of
Article 3(1) of Directive 96/71/EC of the European Parliament
and of the Council of 16 December 1996 concerning the
posting of workers in the framework of the provision of
services (OJ 1997 L 18, p. 1) — the Court (Fifth Chamber),
the Chamber,
composed of:
D.A.O. Edward (Rapporteur) and L. Sevo´ n, Judges; J. Mischo,
Advocate General; H.A. Rühl, Principal Administrator, for the
Registrar, has given a judgment on 25 October 2001, in which
it has ruled:

President

Jann,

of

P.

1. Article 59 of the EC Treaty (now, after amendment, Article 49
EC) and Article 60 of the EC Treaty (now Article 50 EC) do
not preclude a Member State from imposing national rules,
such as those laid down by the first sentence of Article 1(3) of
the Arbeitnehmerentsendegesetz (German law on the posting of
workers) guaranteeing entitlement to paid leave for posted
workers, on a business established in another Member State
which provides services in the first Member State by posting
workers for that purpose, on the two-fold condition that: (i) the
workers do not enjoy an essentially similar level of protection
under the law of the Member State where their employer is
established, so that the application of the national rules of the
first Member State confers a genuine benefit on the workers

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5.1.2002

concerned, which significantly adds to their social protection,
and (ii) the application of those rules by the first Member State
is proportionate to the public interest objective pursued.

2.

(a) Articles 59 and 60 of the Treaty do not preclude the
extension of the rules of a Member State which provide
for a longer period of paid leave than that provided for by
Council Directive 93/104/EC of 23 November 1993
concerning certain aspects of the organisation of working
time to workers posted to that Member State by providers
of services established in other Member States during the
period of the posting.

(b) Articles 59 and 60 of the Treaty do not preclude national
rules from allowing businesses established in the Federal
Republic of Germany to claim reimbursement of expendi-
ture on holiday pay and holiday allowances from the fund,
whereas it does not provide for such a claim in the case of
businesses established in other Member States, but instead
provides for a direct claim by the posted workers against
the fund,
is justified by objective
differences between businesses established in the Federal
Republic of Germany and those established in other
Member States.

in so far as that

(c)

It is for the national court to determine the type of
information that the German authorities may reasonably
require of providers of services established outside the
Federal Republic of Germany, having regard to the
principle of proportionality. For this purpose, the national
court should consider whether the objective differences
between the position of businesses established in Germany
and that of businesses established outside Germany
objectively require the additional information required of
the latter.

3. Articles 59 and 60 of the Treaty preclude the application of a
Member State’s
scheme for paid leave to all businesses
established in other Member States providing services to the
construction industry in the first Member State where businesses
established in the first Member State, only part of whose
activities are carried out in that industry, are not all subject to
that scheme in respect of their workers engaged in that industry.

(1) OJ C 137 of 2.5.1998; OJ C 166 of 30.5.1998.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 20 September 2001

in Case C-263/98: Kingdom of Belgium v Commission of
the European Communities (1)

(EAGGF — Clearance of accounts — 1994 — Cereals, beef
and veal)

(2002/C 3/02)

(Language of the case: Dutch)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-263/98: Kingdom of Belgium (Agents: J. Devadder
and, subsequently, A. Snoecx, and H. Gilliams) v Commission
of
the European Communities (Agent: H. van Vliet) —
application for the partial annulment of Commission Decision
98/358/EC of 6 May 1998 on the clearance of the accounts
presented by the Member States in respect of the expenditure
for 1994 of the Guarantee Section of the European Agricultural
Guidance and Guarantee Fund (EAGGF) (OJ 1998 L 163,
p. 28), in so far as it disallows, in respect of the applicant,
Community financing for the sum of BEF 382 208 436 by
way of expenditure incurred for the advance payment of
export refunds — the Court (Sixth Chamber), composed of:
C. Gulmann, President of
J.-P. Puissochet,
R. Schintgen, F. Macken (Rapporteur) and J.N. Cunha Rodri-
gues, Judges; S. Alber, Advocate General; H.A. Rühl, Principal
Administrator, for the Registrar, has given a judgment on
20 September 2001, in which it:

the Chamber,

1. Dismisses the application;

2. Orders the Kingdom of Belgium to pay the costs.

(1) OJ C 278 of 5.9.1998.