Essent Energie Productie BV v Minister van Sociale Zaken en Werkgelegenheid.
Date: 2014-09-11
21. It must be observed that it is the established case-law of the Court that Article 41(1) of the Additional Protocol and Article 13 of Decision No 1/80 have direct effect. As a consequence, both those provisions may be relied on by the Turkish nationals to whom they apply before the courts or tribunals of the Member States in order to prevent the application of inconsistent rules of national law (see judgments in Abatay and Others , C‑317/01 and C‑369/01, EU:C:2003:572, paragraphs 58 and 59, and Demirkan , C‑221/11, EU:C:2013:583, paragraph 38).
23. In that context, the Court has repeatedly held that, unlike workers from the Member States, Turkish nationals are not entitled to freedom of movement within the European Union but can rely only on certain rights in the territory of the host Member State alone (see, in particular, Savas , C‑37/98, EU:C:2000:224, paragraph 59; Abatay and Others , EU:C:2003:572, paragraph 64; and Derin , C‑325/05, EU:C:2007:442, paragraph 66.)
26. In addition, Article 13 concerns national measures relating to access to employment and is not intended to protect Turkish nationals already integrated into a Member State’s labour force (see judgment in Sahin , C‑242/06, EU:C:2009:554, paragraph 51).
27. In addition, it is clear from the structure and purpose of Decision No 1/80 that, at the current stage of development of freedom of movement for workers under the EEC-Turkey Association, that decision is essentially aimed at the progressive integration of Turkish workers in the host Member State through the pursuit of lawful employment which should be uninterrupted (see judgment in Abatay and Others , EU:C:2003:572, paragraph 90).
31. Concerning Article 41(1) of the Additional Protocol, it must be stated that, as is apparent from its very wording, it formulates, in clear, precise and unconditional terms, an unequivocal standstill clause, which prohibits the Contracting Parties from introducing new restrictions on freedom of establishment and freedom to provide services with effect from the date of entry into force of the Additional Protocol (see judgment in Demirkan , EU:C:2013:583, paragraph 37).
32. That standstill clause prohibits generally the introduction of any new measures having the object or effect of making the exercise by a Turkish national of the abovementioned economic freedoms on the territory of a Member State subject to stricter conditions than those which were applicable at the time when the Additional Protocol entered into force with regard to that Member State (see judgment in Demirkan , EU:C:2013:583, paragraph 39).
33. The Court has previously held that Article 41(1) of the Additional Protocol may be relied on by an undertaking established in Turkey which lawfully provides services in a Member State and by Turkish nationals who are lorry drivers employed by such an undertaking (see judgments in Abatay and Others , EU:C:2003:572, paragraphs 105 and 106, and Demirkan , EU:C:2013:583, paragraph 40).
36. The fact that a national court has, formally speaking, worded a question referred for a preliminary ruling with reference to certain provisions of European Union law does not prevent the Court from providing that court with all the guidance on points of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not it has referred to those points in its questions. It is for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the points of European Union law which require interpretation in view of the subject-matter of the dispute (see judgment in Vicoplus and Others, C‑307/09 to C‑309/09, EU:C:2011:64, paragraph 22 and the case-law cited).
37. In that context, it must also be stated that, following the Court’s settled case-law, 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 (see judgments in Webb , 279/80, EU:C:1981:314, paragraph 9, and Vicoplus and Others , EU:C:2011:64, paragraph 27).
39. As the Advocate General stated in point 60 of his Opinion, first, the provision of such services between two undertakings which are established in two separate Member States falls within the scope of Articles 56 TFEU and 57 TFEU, and, secondly, the fact that the workers made available are nationals of non-member countries is, in that regard, irrelevant.
44. It should be pointed out in that regard that it is settled case-law of the Court that Article 56 TFEU requires not only the elimination of all discrimination on grounds of nationality against providers of services which 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 it lawfully provides similar services (see judgments in Commission  v Luxembourg , C‑445/03, EU:C:2004:655, paragraph 20, and Commission  v Austria , C‑168/04, EU:C:2006:595, paragraph 36).
45. The Court has held, with respect to the posting of workers who are nationals of non-member countries by a service provider established in a Member State of the European Union, 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 (see judgments in Commission  v Germany , C‑244/04, EU:C:2006:49, paragraph 34, and Commission  v Austria , EU:C:2006:595, paragraph 40).
47. Moreover, the conditions and restrictions in terms of deadlines which have to be met in order to obtain that work permit and the administrative burden involved in obtaining such a permit impede the making available of workers who are nationals of non-member countries to a user undertaking established in the Netherlands by a service-providing undertaking established in another Member State, and, consequently, the provision of services by that undertaking (see, to that effect, judgments in Commission  v Luxembourg , EU:C:2004:655, paragraph 23; Commission  v Germany , EU:C:2006:49, paragraph 35; and Commission  v Austria , EU:C:2006:595, paragraphs 39 and 42).
48. 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 (see judgments in Commission  v Luxembourg , EU:C:2004:655, paragraph 21; Commission  v Germany, EU:C:2006:49, paragraph 31; and Commission  v Austria , EU:C:2006:595, paragraph 37).
49. The matter relating to the posting of workers who are nationals of non-Member States 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 (see judgment in Commission  v Austria , EU:C:2006:595, paragraph 44 and the case-law cited).
51. 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 (see judgments in Rush Portuguesa , C‑113/89, EU:C:1990:142, paragraph 15; Commission  v Luxembourg , EU:C:2004:655, paragraph 38; and Commission  v Austria , EU:C:2006:595, paragraph 55).
52. However, a Member State may check that an undertaking established in another Member State which posts to its territory workers from a non-member country is not availing itself of the freedom to provide services for a purpose other than the performance of the service concerned (see judgments in Rush Portuguesa , EU:C:1990:142, paragraph 17; Commission  v Luxembourg , EU:C:2004:655, paragraph 39; and Commission  v Austria , EU:C:2006:595, paragraph 56).
53. However, such checks must observe the limits imposed by European Union law, in particular those stemming from the freedom to provide services, which cannot be rendered illusory and whose exercise may not be made subject to the discretion of the authorities (see judgments in Rush Portuguesa , EU:C:1990:142, paragraph 17; Commission  v Germany , EU:C:2006:49, paragraph 36; and Commission  v Luxembourg , EU:C:2004:655, paragraph 40).
54. In that context, it must be stated 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, the specific nature of the activity does not prevent such an undertaking from being a service-providing undertaking which comes with the scope of Article 56 et seq. TFEU and cannot exclude such an activity from the rules on the freedom to provide services (see judgment in Webb , EU:C:1981:314, paragraph 10).
55. Consequently, although a Member State must be accorded both the power to check that an undertaking, established in another Member State and providing a user undertaking, established in the first Member State, with a service consisting in the making available of workers who are nationals of non-member countries is not availing itself of the freedom to provide services for a purpose other than the provision of the service in question, and the possibility of taking the necessary control measures in that regard (see judgment in Commission  v Germany , EU:C:2006:49, paragraph 36), the exercise of that power may not, however, allow that Member State to impose disproportionate requirements.
56. A Member State retaining on a permanent basis a requirement for a work permit for nationals from non-members countries who are made available to an undertaking established in that Member State by an undertaking established in another Member State exceeds what is necessary to achieve the objective pursued by the legislation at issue in the main proceedings.
57. In that regard, an obligation imposed on a service-providing undertaking to provide the Netherlands authorities with information showing that the situation of the workers concerned is lawful as regards matters such as 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 judgments in Commission  v Luxembourg , EU:C:2004:655, paragraph 46, and Commission  v Germany , EU:C:2006:49, paragraph 41).
58. Such an obligation might consist in a simple prior declaration which would enable the Netherlands 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 judgment in Commission  v Germany , EU:C:2006:49, paragraph 41).
59. 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 Netherlands 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 Netherlands 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 (see judgments in Commission  v Luxembourg , EU:C:2004:655, paragraph 31, and Commission  v Germany , EU:C:2006:49, paragraph 45). Combined with the particulars provided by that undertaking relating to the situation of the workers concerned, referred to in paragraph 57 above, such an obligation would enable those authorities, where appropriate, to take the appropriate measures at the end of the expected period of posting.