Commission of the European Communities v Grand Duchy of Luxemburg.
Date: 2008-06-19
24. It is clear from recital 13 in the preamble to Directive 96/71 that the laws of the Member States must be coordinated in order to lay down a nucleus of mandatory rules for minimum protection to be observed in the host country by employers who post workers there (Case C-341/05 Laval un Partneri  [2007] ECR I-0000, paragraph 59).
25. Thus, the first subparagraph of Article 3(1) of Directive 96/71 provides that Member States are to ensure that, whatever the law applicable to the employment relationship, undertakings established in another Member State which post workers to their territory in the framework of a transnational provision of services, guarantee the posted workers the terms and conditions of employment, covering the matters set out in that article, which are laid down in the Member State in which the work is carried out (Case C-490/04 Commission  v Germany  [2007] ECR I-6095, paragraph 18).
29. In that connection, it must be recalled that the classification of national provisions by a Member State as public‑order legislation applies to national provisions compliance with which has been deemed to be so crucial for the protection of the political, social or economic order in the Member State concerned as to require compliance therewith by all persons present on the national territory of that Member State and all legal relationships within that State (Joined Cases C‑369/96 and C‑376/96 Arblade and Others  [1999] ECR I-8453, paragraph 30).
30. Therefore, contrary to the Grand Duchy of Luxembourg’s submissions, the public policy exception is a derogation from the fundamental principle of freedom to provide services which must be interpreted strictly, the scope of which cannot be determined unilaterally by the Member States (see, regarding freedom of movement for persons, Case C‑503/03 Commission  v Spain  [2006] ECR I‑1097, paragraph 45).
42. The Court has consistently held that, although Community law does not preclude Member States from applying their legislation or collective labour agreements entered into by both sides of industry to any person who is employed, even temporarily, no matter in which Member State the employer is established, nevertheless such a possibility is subject to the condition that the workers concerned, who are temporarily working in the host Member State, do not already enjoy the same protection, or essentially comparable protection by virtue of obligations to which their employer is already subject in the Member State in which it is established (see, to that effect, Case C-445/03 Commission  v Luxembourg  [2004] ECR I‑10191, paragraph 29 and the case-law cited).
43. In particular, the Court has already held that the freedom to provide services, as one of the fundamental principles of the Treaty, may be restricted only by rules justified by overriding requirements relating to the public interest and applicable to all persons and businesses operating in the territory of the State where the service is provided, in so far as that interest is not safeguarded by the rules to which the provider of such a service is subject in the Member State where he is established (see, Arblade and Others , paragraph 34, and 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 31).
50. Thus the Court has already had occasion to observe that, while the Member States are still, in principle, free to determine the requirements of public policy in the light of their national needs, the notion of public policy in the Community context, particularly when it is cited as justification for a derogation from the fundamental principle of the freedom to provide services, must be interpreted strictly, so that its scope cannot be determined unilaterally by each Member State without any control by the European Community institutions (see, to that effect, Case C-36/02 Omega  [2004] ECR I-9609, paragraph 30). It follows that public policy may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society (see Case C-54/99 Église de scientologie  [2000] ECR I-1335, paragraph 17).
51. It has to be remembered that the reasons which may be invoked by a Member State in order to justify a derogation from the principle of freedom to provide services must be accompanied by appropriate evidence or by an analysis of the expediency and proportionality of the restrictive measure adopted by that State, and precise evidence enabling its arguments to be substantiated (see, to that effect, Case C‑254/05 Commission  v Belgium  [2007] ECR I-4269, paragraph 36, and the case‑law cited).
72. It must be recalled that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see, in particular, Case C-168/03 Commission  v Spain  [2004] ECR I‑8227, paragraph 24; Case C-433/03 Commission  v Germany  [2005] ECR I-6985, paragraph 32; and Case C-354/06 Commission  v Luxembourg  [2007] ECR I-0000, paragraph 7).
89. In that connection, the Court has held that the effective protection of workers may require that certain documents are kept at the place where the service is provided, or at least in an accessible and clearly identified place in the territory of the host Member State, so that they are available to the authorities of that State responsible for carrying out checks (see, to that effect, Arblade and Others , paragraph 61).
90. However, the Court added, in paragraph 76 of Arblade and Others , that where there is an obligation to keep available and retain certain documents at the address of a natural person residing in the host Member State who holds them as the agent or representative of the employer by whom he has been designated, even after the employer has ceased to employ workers in that State, it is not sufficient, for the purposes of justifying such a restriction on the freedom to provide services, that the presence of such documents within the territory of the host Member State may make it generally easier for the authorities of that State to perform their supervisory task. It must also be shown that those authorities cannot carry out their supervisory task effectively unless the undertaking has, in that Member State, an agent or representative designated to retain the documents in question. In that connection, the Court has held that a requirement that a natural person domiciled in the territory of a host Member State should retain documents cannot be justified (see, Arblade and Others , paragraph 77).
92. For the rest, the Court noted, in paragraph 79 of Arblade and Others , that the organised system for cooperation and exchanges of information between Member States provided for in Article 4 of Directive 96/71 renders superfluous the retention of the documents in the host Member State after the employer has ceased to employ workers there.