Vicoplus SC PUH (C-307/09), BAM Vermeer Contracting sp. zoo (C-308/09) and Olbek Industrial Services sp. zoo (C-309/09) v Minister van Sociale Zaken en Werkgelegenheid.
Date: 2011-02-10
22. 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 preclude the Court from providing to the national court all the elements of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. It is, in this context, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of European Union law which require interpretation, regard being had to the subject-matter of the dispute (see, inter alia, Case C‑115/08 ČEZ  [2009] ECR I‑10265, paragraph 81 and the case-law cited).
24. In that regard, if national legislation is justified pursuant to one of the transitional measures referred to in Article 24 of the 2003 Act of Accession, in this case the measure provided for in Chapter 2, paragraph 2, of Annex XII to that act, the question of the compatibility of that legislation with Articles 56 TFEU and 57 TFEU can no longer arise (see, to that effect, Case C‑140/05 Valeško  [2006] ECR I‑10025, paragraph 74).
27. In the second place, it follows from the case-law of the Court that where an undertaking hires out, for remuneration, staff 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 a ‘service’ within the meaning of that provision (see Case 279/80 Webb  [1981] ECR 3305, paragraph 9, and order of the Court of 16 June 2010 in Case C‑298/09 RANI Slovakia , not published in the ECR, paragraph 36).
28. However, the Court has acknowledged that such activities may have an impact on the labour market of the Member State of the party for whom the services are intended. First, employees of agencies for the supply of manpower may in certain circumstances be covered by the provisions of Articles 45 TFEU to 48 TFEU and the European Union regulations adopted in implementation thereof (see Webb , paragraph 10).
29. Secondly, owing to the special nature of the employment relationships inherent in the making available of labour, pursuit of that activity directly affects both relations on the labour market and the lawful interests of the workforce concerned ( Webb , paragraph 18).
30. In that regard, the Court held, in paragraph 16 of Rush Portuguesa , that an undertaking engaged in the making available of labour, although a supplier of services within the meaning of the FEU Treaty, carries on activities which are specifically intended to enable workers to gain access to the labour market of the host Member State.
32. It follows that legislation of a Member State such as that at issue in the main proceedings must be considered to be a measure regulating access of Polish nationals to the labour market of that State within the meaning of Chapter 2, paragraph 2, of Annex XII to the 2003 Act of Accession.
33. Consequently, that legislation, by which, during the transitional period provided for in Chapter 2, paragraph 2, of Annex XII to the 2003 Act of Accession, the hiring-out, within the meaning of Article 1(3)(c) of Directive 96/71, of Polish nationals in the territory of that State continues to be subject to the obtaining of a work permit, is compatible with Articles 56 TFEU and 57 TFEU.
34. Such a finding also necessarily follows from the purpose of that provision, which is intended to prevent, following the accession to the European Union of new Member States, disturbances on the labour market of the existing Member States due to the immediate arrival of a large number of workers who are nationals of those new States (see, to that effect, Case 9/88 Lopes da Veiga [1989] ECR 2989, paragraph 10, and Rush Portuguesa , paragraph 13). That purpose is apparent from, inter alia, Chapter 2, paragraph 5, of Annex XII to the 2003 Act of Accession in so far as that paragraph provides the possibility for a Member State, in case of serious disturbances of its labour market or threat thereof, to continue to apply the measures referred to in Chapter 2, paragraph 2, until the end of the seven-year period following the date of accession of the Republic of Poland.
35. As the Advocate General stated at point 51 of his Opinion, it seems artificial to draw a distinction with regard to the influx of workers on the labour market of a Member State according to whether they gain access to it by means of the making available of labour or directly and independently because in both cases that potentially large movement of workers is capable of disturbing that labour market. To exclude the making available of labour from the scope of Chapter 2, paragraph 2, of Annex XII to the 2003 Act of Accession would therefore be liable to deprive that provision of much of its effectiveness.
37. In that regard, although, as the Raad van State has pointed out, the Court did not refer expressly in its subsequent judgments to paragraph 16 of Rush Portuguesa , it did, however, refer to paragraph 17 thereof, which makes explicit the consequence arising out of paragraph 16, namely that a Member State must be in a position to ascertain, subject to observance of the limits imposed by European Union law, that a provision of services is not, in actual fact, intended to make available labour which is not covered by the free movement of workers (see Commission  v Luxembourg , paragraph 39, and Commission  v Austria , paragraph 56).
40. However, as the Danish and German Governments have pointed out, Chapter 2, paragraph 13, of Annex XII to the 2003 Act of Accession was the result of negotiations initiated by the Federal Republic of Germany and the Republic of Austria with a view to providing for a transitional scheme in respect of all the provisions of services referred to in Article 1(3) of Directive 96/71. That result cannot, however, be considered to have had the consequence of making it impossible for the other States which already belonged to the European Union at the time of the accession of the Republic of Poland to apply their national measures in respect of the hiring-out, within the meaning of Article 1(3)(c) of Directive 96/71, of workers who are Polish nationals. Such a consequence would run counter to the purpose of paragraph 2 of that chapter, as described in paragraph 34 of the present judgment.
45. In the second place, it is important to draw a distinction between, on the one hand, the making available of workers and, on the other, a temporary movement of workers who are sent to another Member State to carry out work there as part of a provision of services by their employer (see, to that effect, Rush Portuguesa , paragraph 15), a movement for those purposes being referred to also in Article 1(3)(a) of Directive 96/71.
49. By contrast, the fact that the worker returns to his Member State of origin at the end of the posting cannot preclude that worker from having been made available in the host Member State. Although it is true that a worker posted for the purpose of carrying out work as part of a provision of services by his employer, within the meaning of Article 1(3)(a) of Directive 96/71, returns, in general, to his State of origin after the completion of that service (see, to that effect, Rush Portuguesa , paragraph 15, and Vander Elst , paragraph 21), there is nothing to prevent a worker who has been hired out, within the meaning of Article 1(3)(c) of Directive 96/71, from leaving the host Member State and also returning to his Member State of origin after having carried out his work within the user undertaking.
51. Consequently, the answer to the second question is that the hiring-out of workers, within the meaning of Article 1(3)(c) of Directive 96/71, is a service provided for remuneration in respect of which the worker who has been hired out remains in the employ of the undertaking providing the service, no contract of employment being entered into with the user undertaking. It 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 and that that worker carries out his tasks under the control and direction of the user undertaking.
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