Danieli & C. Officine Meccaniche SpA and Others v Regionale Geschäftsstelle Leoben des Arbeitsmarktservice.
Date: 2018-11-14
27


According to the case-law of the Court, workers are posted through their hiring-out, within the meaning of Article 1(3)(c) of Directive 96/71, when three conditions are satisfied. First, the hiring-out of manpower is a service provided for remuneration in respect of which the worker remains in the employ of the undertaking providing the service, no contract of employment being entered into with the user undertaking. Secondly, that hiring out is characterised by the fact that the movement of the worker to the host Member State constitutes the very purpose of the provision of services effected by the undertaking providing the services. Thirdly, in the context of such hiring-out, the employee carries out his tasks under the control and direction of the user undertaking (see, to that effect, judgment of 18 June 2015, Martin Meat, C‑586/13, EU:C:2015:405, paragraph 33 and the case-law cited).
28


In particular, in order to determine whether the subject matter of the provision of services is the posting of the worker in the host Member State, account must be taken, in particular, of any evidence to indicate that the service provider is not liable for the consequences of a contractual performance which is inconsistent with the supply of services set out in the contract (judgment of 18 June 2015, Martin Meat, C‑586/13, EU:C:2015:405, paragraph 35).
34


That hiring-out of manpower also comes within the scope of Chapter 2, paragraph 2 of Annex V to the Act of Accession of Croatia, under which, by derogation from Articles 1 to 6 of Regulation No 492/2011 and until the end of the two year period following the date of accession, the present Member States will apply national measures, or those resulting from bilateral agreements, regulating access to their labour markets by Croatian nationals. To exclude the hiring-out of manpower from the scope of Chapter 2, paragraph 2 of Annex V to the Act of Accession of Croatia would be liable to deprive that provision of much of its effectiveness (see, by analogy, judgment of 10 February 2011, Vicoplus and Others, Cases C‑307/09 to C‑309/09, EU:C:2011:64, paragraph 35).
36


In the present case, it should be noted that the legislation of a Member State under which, during the transitional period provided for in Chapter 2, paragraph 2 of Annex V of the Act of Accession of Croatia, the hiring-out, within the meaning of Article 1(3)(c) of Directive 96/71, of Croatian nationals in the territory of that Member State continues to be subject to the obtaining of a work permit as a measure regulating access by Croatian nationals to the labour market of that Member State, within the meaning of Chapter 2, paragraph 2 of Annex V to the Act of Accession of Croatia, is compatible with Articles 56 and 57 TFEU (see, by analogy, judgment of 10 February 2011, Vicoplus and Others, Cases C‑307/09 to C‑309/09, EU:C:2011:64, paragraphs 32 and 33).
40


It is settled case-law of the Court that where an undertaking makes available, for remuneration, workers who remain in the employ of that undertaking, no contract of employment being entered into with the user, its activities constitute an occupation which satisfies the conditions laid down in the first paragraph of Article 57 TFEU and must accordingly be considered to be a ‘service’ within the meaning of that provision (judgment of 11 September 2014, Essent Energie Productie, C‑91/13, EU:C:2014:2206, paragraph 37).
42


Since the provisions of Article 56 TFEU must apply to all cases where a service provider offers services in the territory of a Member State other than that in which it is established, wherever the recipients of those services may be established (see, to that effect, judgment of 26 February 1991, Commission v France, C‑154/89, EU:C:1991:76, paragraph 10), it must be held that such a service of hiring out manpower between two undertakings established in the same Member State, where that service is provided in the territory of a Member State other than that in which the user undertaking is established, comes within the scope of Articles 56 and 57 TFEU.
43


The fact that the workers hired out are third-country nationals is, in that regard, irrelevant (judgment of 11 September 2014, Essent Energie Productie, C‑91/13, EU:C:2014:2206, paragraph 39).
44


As regards the posting of workers who are third-country nationals by a service provider established in a Member State of the European Union, the Court has already held that national provisions which make the provision of services within national territory by an undertaking established in another Member State subject to the issue of an administrative authorisation constitute a restriction on the freedom to provide services within the meaning of Article 56 TFEU (judgment of 11 September 2014, Essent Energie Productie, C‑91/13, EU:C:2014:2206, paragraph 45).
46


However, 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 in 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 it 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 (judgment of 11 September 2014, Essent Energie Productie, C‑91/13, EU:C:2014:2206, paragraph 48).
47


The matter relating to the posting of workers who are third-country nationals in the framework of the cross-border provision of services has so far not been harmonised at European Union level. That being so, it must be examined whether the restrictions on the freedom to provide services arising from the legislation at issue in the main proceedings appear to be justified by an objective in the public interest and, if so, whether they are necessary in order to pursue, effectively and by appropriate means, that objective (judgment of 11 September 2014, Essent Energie Productie, C‑91/13, EU:C:2014:2206, paragraph 49).
48


In that regard, it must be recalled that although the desire to avoid disturbances on the labour market is undoubtedly an overriding reason in the public interest, workers who are employed by an undertaking established in a Member State and posted to another Member State for the purposes of providing services there do not purport to gain access to the labour market of that second State, as they return to their country of origin or residence after the completion of their work (judgment of 11 September 2014, Essent Energie Productie, C‑91/13, EU:C:2014:2206, paragraph 51).
49


A Member State retaining on a permanent basis a requirement for a work permit for third-country nationals who are hired out to an undertaking operating in that Member State by an undertaking established in another Member State goes beyond what is necessary to achieve the objective consisting in preventing disturbances on the labour market (see, to that effect, judgment of 11 September 2014, Essent Energie Productie, C‑91/13, EU:C:2014:2206, paragraph 56).
50


In that regard, an obligation imposed on a service-providing undertaking to provide the Austrian authorities with information showing that the situation of the workers who are third-country nationals is lawful, inter alia in terms of residence, work permit and social coverage in the Member State in which that undertaking employs them, would give those authorities, in a less restrictive but just as effective a manner as the requirement for a work permit at issue in the main proceedings, a guarantee that the situation of those workers is lawful and that they are carrying on their main activity in the Member State in which the service-providing undertaking is established (see, to that effect, judgment of 11 September 2014, Essent Energie Productie, C‑91/13, EU:C:2014:2206, paragraph 57).
51


Such an obligation might consist in a simple prior declaration which would enable the Austrian authorities to check the particulars provided and to take the necessary measures in the event that the situation of the workers concerned is unlawful. In addition, that obligation could take the form of a succinct communication of the documents required, particularly when the length of the posting does not allow such a check to be effectively carried out (see, to that effect, judgment of 11 September 2014, Essent Energie Productie, C‑91/13, EU:C:2014:2206, paragraph 58).
52


Similarly, a measure which would be just as effective and less restrictive than the requirement for a work permit at issue in the main proceedings would be an obligation imposed on a service-providing undertaking to report beforehand to the Austrian authorities the presence of one or more posted workers, the anticipated duration of their presence and the provision or provisions of services justifying the posting. It would enable those authorities to monitor compliance with Austrian social legislation during the posting, while taking account of the obligations to which that undertaking is already subject under the social legislation applicable in the Member State of origin. Combined with the particulars provided by that undertaking relating to the situation of the workers concerned, referred to in paragraph 50 above, such an obligation would enable those authorities, where appropriate, to take the appropriate measures at the end of the expected period of posting (see, to that effect, judgment of 11 September 2014, Essent Energie Productie, C‑91/13, EU:C:2014:2206, paragraph 59).