Payroll Data Services (Italy) Srl, ADP Europe SA and ADP GSI SA.
Date: 2002-10-17
24 In that regard, it is necessary to bear in mind that the freedom of establishment provided for in Articles 43 EC to 48 EC, is conferred both on natural persons who are nationals of a Member State and on legal persons within the meaning of Article 48 EC. Subject to the exceptions and conditions specified, it includes the right to take up and pursue all types of self-employed activity in the territory of any other Member State, to set up and manage undertakings, and to set up agencies, branches or subsidiaries (see, in particular, Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 23, and Case C-255/97 Pfeiffer [1999] ECR I-2835, paragraph 18).
25 It is apparent from the documents before the Court that Payroll is a limited liability company under Italian law, formed on 29 July 1999 by the two French undertakings ADP Europe SA and ADP GSI SA which together own its share capital. As a subsidiary of those two undertakings, Payroll forms part of a group of companies, established in various Member States, which offer computer services for the calculation and printing of pay slips. The legal position of a company such as Payroll therefore comes within the scope of Community law by virtue of the provisions of Article 43 EC (see, to that effect, Case C-108/96 Mac Quen and Others [2001] ECR I-837, paragraph 16).
26 It must also be borne in mind that Article 43 EC requires the elimination of restrictions on the freedom of establishment and that all measures which prohibit, impede or render less attractive the exercise of such freedom must be regarded as constituting such restrictions (see, for example, Case C-439/99 Commission v Italy [2002] ECR I-305, paragraph 22).
28 However, it is clear from settled case-law, that where such measures apply to any person or undertaking carrying on an activity in the territory of the host Member State, they may be justified where they serve overriding requirements relating to the public interest, are suitable for securing the attainment of the objective which they pursue and do not go beyond what is necessary in order to attain it (see Case C-19/92 Kraus [1993] ECR I-1663, paragraph 32; Gebhard, cited above, paragraph 37; Case C-212/97 Centros [1999] ECR I-1459, paragraph 34; Pfeiffer, cited above, paragraph 19; Case C-424/97 Haim [2000] ECR I-5123, paragraph 57; Mac Quen and Others, cited above, paragraph 26, and Commission v Italy, cited above, paragraph 23).
29 Although, as regards the division of jurisdiction between the Community judicature and national courts, it is in principle for the national court to determine whether those conditions are fulfilled in the case pending before it, the Court, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give the national court guidance in its interpretation (see, for example, Haim, cited above, paragraph 58).
31 It is true that the protection of workers is among the overriding requirements relating to the public interest which have been recognised by the Court as justifying a restriction on a fundamental freedom guaranteed by the Treaty (see Case 279/80 Webb [1981] ECR 3305, paragraph 19; Joined Cases 62/81 and 63/81 Seco and Desquenne & Giral [1982] ECR 223, paragraph 14; Case C-113/89 Rush Portuguesa [1990] ECR I-1417, paragraph 18; Joined Cases C-369/96 and C-376/96 Arblade and Others [1999] ECR I-8453, paragraph 36; Case C-165/98 Mazzoleni and ISA [2001] ECR I-2189, paragraph 27; 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 33, and Case C-164/99 Portugaia Construções [2002] ECR I-787, paragraph 20).
34 In that respect, it is appropriate to point out that it is for the national court to establish the nature of the activities of the DPCs. If it concludes that the services of preparing and printing pay slips offered by Payroll involve essentially the execution of instructions and do not require any special professional qualities, the disputed provision would not seem apt to protect workers' rights (see, to that effect, Case C-76/90 Säger [1991] ECR I-4221, paragraph 18).