Criminal proceedings against Vítor Manuel dos Santos Palhota and Others.
Date: 2010-10-07
18. In that connection, even if that court considered that the simplified regime were compulsory, the Court of Justice has consistently held that the procedure laid down in Article 267 TFEU is based on a clear separation of functions between national courts and tribunals and the Court of Justice, and the latter is empowered to rule only on the interpretation or the validity of the acts of the European Union referred to in that article. In that context, it is not for the Court to rule on the interpretation of national laws or regulations or to decide whether the referring court’s interpretation of them is correct (see, inter alia, Case C-220/05 Auroux and Others  [2007] ECR I‑385, paragraph 25 and case-law cited).
20. It follows from well-established case-law that questions on the interpretation of European Union law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see Case C-415/93 Bosman  [1995] ECR I-4921, paragraph 61, and Case C-45/08 Spector Photo Group and Van Raemdonck  [2009] ECR I-0000, paragraph 26).
25. In its observations, the Belgian Government stated that the referring court did not request interpretation of Directive 96/71. In that connection, it is to be noted that, although, as the Belgian Government maintains, the simplified regime makes it possible to monitor the compliance of employers posting foreign workers to Belgium with the terms and conditions of employment set out in Article 3(1) of Directive 96/71, such control measures do not fall within the scope of that directive nor are they harmonised at European Union level.
26. Directive 96/71 seeks to coordinate the substantive national rules on the terms and conditions of employment of posted workers, independently of the ancillary administrative rules designed to enable compliance with those terms and conditions to be monitored.
27. It follows that those measures may be freely defined by the Member States, in compliance with the Treaty and the general principles of European Union law (see, to that effect, Case C-490/04 Commission  v Germany  [2007] ECR I-6095, paragraph 19, and Case C-341/05 Laval un Partneri  [2007] ECR I-11767, paragraph 60).
28. In the present case, it is common ground that the main proceedings concern an undertaking established in one Member State which has posted its own workers for a fixed period to a site in another Member State for the purposes of providing services. The Court has already held that such a factual situation falls within the scope of Articles 56 TFEU and 57 TFEU (see Joined Cases C-49/98, C-50/98, C‑52/98 to C-54/98 and C-68/98 to C‑71/98 Finalarte and Others  [2001] ECR I‑7831, paragraph 20).
Whether there exists a restriction on the freedom to provide services
29. It is settled case-law that Article 56 TFEU requires not only the elimination of all discrimination on grounds of nationality against providers of services who are established in another Member State but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of a provider of services established in another Member State where he lawfully provides similar services  (see, inter alia, Joined Cases C-369/96 and C-376/96 Arblade and Others  [1999] ECR I‑8453, paragraph 33, and Case C-168/04 Commission  v Austria  [2006] ECR I‑9041, paragraph 36).
30. Against that background, it should be noted that the Belgian Government submits that the simplified regime at issue in the main proceedings was introduced by the Law of 5 March 2002 in response to Arblade and Others . At point 3 of the operative part of that judgment, the Court held that Articles 56 TFEU and 57 TFEU preclude the imposition by a Member State on an undertaking established in another Member State, and temporarily carrying out work in the first State, of an obligation to draw up social or labour documents such as, inter alia, an individual account for each worker in the form prescribed by the rules of the first State, where the social protection of workers which may justify those requirements is already safeguarded by the production of social and labour documents kept by the undertaking in question in accordance with the rules applying in the Member State in which it is established.
34. It is clear that the procedure set out in the previous paragraph cannot be considered to be merely a declaratory procedure. As the Advocate General noted at paragraph 70 of his Opinion, the mere transmission of information to the authorities of the Member State of destination and the certification of receipt are potentially capable of becoming mechanisms for verification and authorisation prior to commencement of the work. Since the notification must be issued before the posting can be carried out by an employer and is made only after verification by the national authorities of the conformity of the prior declaration of posting, a procedure of that kind must be regarded as an administrative authorisation procedure (see, by analogy, Commission  v Austria , paragraph 41).
35. A procedure which makes the provision of services through the posting of workers on national territory by an undertaking established in another Member State subject to the issue of such an administrative licence is likely to constitute a restriction on the freedom to provide services within the meaning of Article 56 TFEU (see, by analogy, Case C-43/93 Vander Elst  [1994] ECR I-3803, paragraph 15, and Case C-244/04 Commission  v Germany [2006] ECR I-885, paragraph 34).
36. Such a procedure may, in particular by reason of the period laid down for issuing the notification, impede the planned posting and, consequently, the provision of services by the employer of the workers who are to be posted, in particular where the services to be provided necessitate a certain speed of action (see, to that effect, Commission  v Germany , paragraph 35, and Commission  v Austria , paragraph 39).
42. As regards, second, the obligations under Articles 5 and 6 of the Royal Decree of 29 March 2002 imposed on the employers of workers posted to Belgium, first of all, to keep copies of the equivalent documents available to the Belgian authorities, either at the workplace in Belgium, or at the Belgian address of the employer’s agent or servant, then, to send, at the end of the posting, those copies and an inventory of the equivalent documents to the Belgian authorities and, lastly, to keep available to those authorities, after a period of six months, copies of those equivalent documents at one of the designated locations for a period of five years, it cannot be ruled out at the outset that those obligations give rise to additional expenses and administrative and economic burdens for undertakings established in another Member State, with the result that such undertakings may not be on an equal footing, from the standpoint of competition, with undertakings employing persons normally working in Belgium.
43. Although the Belgian Government has stated that the obligation to keep copies of the equivalent documents available to its authorities for a period of five years after the posting does not apply to postings of less than six months, such as that at issue in the main proceedings, the fact remains that it has not put forward any arguments in relation to the two other obligations. It even acknowledged that the provisions at issue might constitute a restriction on the freedom to provide services within the meaning of Article 56 TFEU.
44. In those circumstances, it must be found that those two obligations constitute a restriction on the freedom to provide services.
Justification for the restrictions on the freedom to provide services
45. According to settled case-law, where national legislation falling within an area which has not been harmonised at European Union level is applicable without distinction to all persons and undertakings operating in the territory of the Member State concerned, it may, notwithstanding its restrictive effect on the freedom to provide services, be justified where it meets an overriding requirement relating to the public interest and that interest is not already safeguarded by the rules to which the service provider is subject in the Member State in which he is established and in so far as it is appropriate for securing the attainment of the objective which it pursues and does not go beyond what is necessary in order to attain it (see Arblade and Others , paragraphs 34 and 35, and Commission  v Austria , paragraph 37).
47. In that connection, the Court has repeatedly held that overriding reasons relating to the public interest capable of justifying a restriction on the freedom to provide services include the protection of workers (see, in particular, Arblade and Others , paragraph 36, Finalarte and Others , paragraph 33, and Case C-445/03 Commission  v Luxembourg  [2004] ECR I-10191, paragraph 29).
48. Similarly, the Court has recognised that the Member States have the power to verify compliance with the national and European Union provisions in respect of the provision of services, and it has accepted the justification for the control measures necessary to verify compliance with requirements themselves justified by grounds of public interest (see, to that effect, Arblade and Others , paragraph 38, and Commission  v Germany , paragraph 36).
51. In that connection, the Court has already held that a measure which would be just as effective whilst being less restrictive than a work licensing mechanism, prior checks or a confirmation of posting, would be an obligation imposed on an employer established in another Member State to report beforehand to the local authorities on the presence of one or more deployed workers, the anticipated duration of their presence and the provision or provisions of services justifying the deployment. Such an obligation would enable those authorities to monitor compliance with the social welfare and wages legislation of the host Member State during the deployment while at the same time taking account of the obligations by which the employer is already bound under the social welfare legislation applicable in the Member State of origin (see Commission  v Luxembourg , paragraph 31; Commission  v Germany , paragraph 45, and Commission  v Austria , paragraph 52).
53. It follows from the case-law referred to at paragraph 51 above that since a prior declaration enables compliance with the social welfare and wages legislation of the host Member State to be monitored during the posting, it constitutes a more proportionate means of attaining that objective than such authorisation or a prior check. In that connection, the Belgian Government itself does not state that the simplified regime has any purpose other than monitoring effectively the wages and working conditions of posted workers during the posting.
54. However, since a prior declaration requirement remains an appropriate measure for enabling the necessary checks to be carried out and preventing fraud, the authorities should allow employers posting workers to Belgium the opportunity to provide evidence that they have made a declaration containing all the information required.
58. In addition, it is settled case-law that in so far as the information provided by the documents relating to posted workers which are required under the rules of the Member State of establishment is adequate, as a whole, to enable the controls needed in the host Member State to be carried out, the production, within a reasonable time, of originals or copies of those documents or, failing that, keeping the originals or copies of those documents available on site or in an accessible and clearly identified place in the territory of the host Member State constitutes a less restrictive means of ensuring the social protection of workers than drawing up documents complying with the rules of that Member State (see, to that effect, Arblade and Others , paragraphs 64 to 66, and Finalarte and Others , paragraph 74).
59. Similarly, the Court has held that the obligation to send, at the end of the period of employment, originals or copies of the documents which an employer is required to draw up under the legislation of the Member State of establishment, to the national authorities of the host Member State which may check them and, if necessary, retain them, is a less restrictive measure for monitoring compliance with rules concerning the protection of workers than an obligation on the employer to keep those documents in the territory of the host Member State after that period (see, to that effect, Arblade and Others , paragraph 78).