CELEX: C2002/003/01
Language: en
Date: 2002-01-05 00:00:00
Title: 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)

5.1.2002                EN                      Official Journal of the European Communities                                                 C 3/1
                                                                         I
                                                                   (Information)
                                                     COURT OF JUSTICE
                                                               COURT OF JUSTICE
                 JUDGMENT OF THE COURT                                       Lohnausgleichskasse der Bauwirtschaft and Tecnamb-Tecnolo-
                                                                             gia do Ambiente Ld.a (C-53/98), Urlaubs- und Lohnausgleichs-
                                                                             kasse der Bauwirtschaft and Turiprata Construções Civil Ld.a
                          (Fifth Chamber)
                                                                             (C-54/98), Urlaubs- und Lohnausgleichskasse der Bauwirt-
                                                                             schaft and Duarte dos Santos Sousa (C-68/98), and Urlaubs-
                       of 25 October 2001                                    und Lohnausgleichskasse der Bauwirtschaft and Santos &
                                                                             Kewitz Construções Ld.a (C-69/98), Portugaia Construções Ld.a
                                                                             and Urlaubs- und Lohnausgleichskasse der Bauwirtschaft
in Joined Cases C-49/98, C-50/98, C52/98 to C-54/98 and                      (C-70/98) and between Engil Sociedade de Construção Civil
C-68/98 to C-71/98 (references for a preliminary ruling                      SA and Urlaubs- und Lohnausgleichskasse der Bauwirtschaft
from the Arbeitsgericht Wiesbaden): Finalarte Sociedade                      (C-71/98) — on the interpretation of Articles 48 and 59 of
de Construção Civil Ld.a v Urlaubs- und Lohnausgleichs-                     the EC Treaty (now, after amendment, Articles 39 EC and 49
kasse der Bauwirtschaft, Urlaubs- und Lohnausgleichskas-                     EC) and Article 60 of the EC Treaty (now Article 50 EC) and
se der Bauwirtschaft v Amilcar Oliveira Rocha and                            subparagraph (b) of the second indent of the first paragraph of
Others, Portugaia Construções Ld.a v Urlaubs- und                           Article 3(1) of Directive 96/71/EC of the European Parliament
Lohnausgleichskasse der Bauwirtschaft, Engil Sociedade                       and of the Council of 16 December 1996 concerning the
de Construção Civil SA v Urlaubs- und Lohnausgleichs-                       posting of workers in the framework of the provision of
                   kasse der Bauwirtschaft (1)                               services (OJ 1997 L 18, p. 1) — the Court (Fifth Chamber),
                                                                             composed of: P. Jann, President of the Chamber,
(Freedom to provide services — Temporary deployment of                       D.A.O. Edward (Rapporteur) and L. Sevón, Judges; J. Mischo,
workers for the purposes of performing a contract — Paid                     Advocate General; H.A. Rühl, Principal Administrator, for the
                      leave and holiday pay)                                 Registrar, has given a judgment on 25 October 2001, in which
                                                                             it has ruled:
                           (2002/C 3/01)
                   (Language of the case: German)
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)
                                                                             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,
In Joined Cases C-49/98, C-50/98, C-52/98 to C-54/98 and                           such as those laid down by the first sentence of Article 1(3) of
C-68/98 to C-71/98: references to the Court under Article 177                      the Arbeitnehmerentsendegesetz (German law on the posting of
of the EC Treaty (now Article 234 EC) from the Arbeitsgericht                      workers) guaranteeing entitlement to paid leave for posted
(Labour Court) Wiesbaden (Germany) for a preliminary ruling                        workers, on a business established in another Member State
in the proceedings pending before that court between Finalarte                     which provides services in the first Member State by posting
Sociedade de Construção Civil Ld.a and Urlaubs- und Lohnaus-                      workers for that purpose, on the two-fold condition that: (i) the
gleichskasse der Bauwirtschaft (C-49/98), Urlaubs- und                             workers do not enjoy an essentially similar level of protection
Lohnausgleichskasse der Bauwirtschaft and Amilcar Oliveira                         under the law of the Member State where their employer is
Rocha (C-50/98), and Urlaubs- und Lohnausgleichskasse der                          established, so that the application of the national rules of the
Bauwirtschaft and Tudor Stone Ltd (C-52/98), Urlaubs- und                          first Member State confers a genuine benefit on the workers
 ---pagebreak--- C 3/2                    EN                       Official Journal of the European Communities                                           5.1.2002
     concerned, which significantly adds to their social protection,                          JUDGMENT OF THE COURT
     and (ii) the application of those rules by the first Member State
     is proportionate to the public interest objective pursued.
                                                                                                      (Sixth Chamber)
2.   (a)    Articles 59 and 60 of the Treaty do not preclude the
            extension of the rules of a Member State which provide                                 of 20 September 2001
            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        in Case C-263/98: Kingdom of Belgium v Commission of
            time to workers posted to that Member State by providers                          the European Communities (1)
            of services established in other Member States during the
            period of the posting.
                                                                             (EAGGF — Clearance of accounts — 1994 — Cereals, beef
                                                                                                           and veal)
     (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-                                      (2002/C 3/02)
            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                           (Language of the case: Dutch)
            provides for a direct claim by the posted workers against
            the fund, in so far as that is justified by objective
            differences between businesses established in the Federal
            Republic of Germany and those established in other               (Provisional translation; the definitive translation will be published
            Member States.                                                                      in the European Court Reports)
     (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         In Case C-263/98: Kingdom of Belgium (Agents: J. Devadder
            Federal Republic of Germany, having regard to the                and, subsequently, A. Snoecx, and H. Gilliams) v Commission
            principle of proportionality. For this purpose, the national     of the European Communities (Agent: H. van Vliet) —
            court should consider whether the objective differences          application for the partial annulment of Commission Decision
            between the position of businesses established in Germany        98/358/EC of 6 May 1998 on the clearance of the accounts
            and that of businesses established outside Germany               presented by the Member States in respect of the expenditure
            objectively require the additional information required of       for 1994 of the Guarantee Section of the European Agricultural
            the latter.                                                      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:
3.   Articles 59 and 60 of the Treaty preclude the application of a          C. Gulmann, President of the Chamber, J.-P. Puissochet,
     Member State’s scheme for paid leave to all businesses                  R. Schintgen, F. Macken (Rapporteur) and J.N. Cunha Rodri-
     established in other Member States providing services to the            gues, Judges; S. Alber, Advocate General; H.A. Rühl, Principal
     construction industry in the first Member State where businesses        Administrator, for the Registrar, has given a judgment on
     established in the first Member State, only part of whose               20 September 2001, in which it:
     activities are carried out in that industry, are not all subject to
     that scheme in respect of their workers engaged in that industry.
                                                                             1.    Dismisses the application;
                                                                             2.    Orders the Kingdom of Belgium to pay the costs.
(1) OJ C 137 of 2.5.1998; OJ C 166 of 30.5.1998.
                                                                             (1) OJ C 278 of 5.9.1998.