Société anonyme de droit français Seco and Société anonyme de droit français Desquenne & Giral v Etablissement d'assurance contre la vieillesse et l'invalidité.
Date: 1982-02-03
8 UNDER ARTICLE 59 AND THE THIRD PARAGRAPH OF ARTICLE 60 OF THE EEC TREATY A PERSON PROVIDING A SERVICE MAY , IN ORDER TO DO SO , TEMPORARILY PURSUE HIS ACTIVITY IN THE STATE WHERE THE SERVICE IS PROVIDED , UNDER THE SAME CONDITIONS AS ARE IMPOSED BY THAT STATE ON ITS OWN NATIONALS . AS THE COURT HAS REPEATEDLY EMPHASIZED , MOST RECENTLY IN ITS JUDGMENT OF 17 DECEMBER 1981 IN CASE 279/80 WEBB ( 1981 ) ECR 3305 , THOSE PROVISIONS ENTAIL THE ABOLITION OF ALL DISCRIMINATION AGAINST A PERSON PROVIDING A SERVICE ON THE GROUNDS OF HIS NATIONALITY OR THE FACT THAT HE IS ESTABLISHED IN A MEMBER STATE OTHER THAN THAT IN WHICH THE SERVICE MUST BE PROVIDED . THUS THEY PROHIBIT NOT ONLY OVERT DISCRIMINATION BASED ON THE NATIONALITY OF THE PERSON PROVIDING A SERVICE BUT ALSO ALL FORMS OF COVERT DISCRIMINATION WHICH , ALTHOUGH BASED ON CRITERIA WHICH APPEAR TO BE NEUTRAL , IN PRACTICE LEAD TO THE SAME RESULT .
10 FURTHERMORE , LEGISLATION WHICH REQUIRES EMPLOYERS TO PAY IN RESPECT OF THEIR WORKERS SOCIAL SECURITY CONTRIBUTIONS NOT RELATED TO ANY SOCIAL SECURITY BENEFIT FOR THOSE WORKERS , WHO ARE MOREOVER EXEMPT FROM INSURANCE IN THE MEMBER STATE IN WHICH THE SERVICE IS PROVIDED AND REMAIN COMPULSORILY AFFILIATED , FOR THE DURATION OF THE WORK CARRIED OUT , TO THE SOCIAL SECURITY SCHEME OF THE MEMBER STATE IN WHICH THEIR EMPLOYER IS ESTABLISHED , MAY NOT REASONABLY BE CONSIDERED JUSTIFIED ON ACCOUNT OF THE GENERAL INTEREST IN PROVIDING WORKERS WITH SOCIAL SECURITY .
12 THAT ARGUMENT CANNOT BE ACCEPTED . A MEMBER STATE ' S POWER TO CONTROL THE EMPLOYMENT OF NATIONALS FROM A NON-MEMBER COUNTRY MAY NOT BE USED IN ORDER TO IMPOSE A DISCRIMINATORY BURDEN ON AN UNDERTAKING FROM ANOTHER MEMBER SATE ENJOYING THE FREEDOM UNDER ARTICLES 59 AND 60 OF THE TREATY TO PROVIDE SERVICES .
14 IT IS WELL-ESTABLISHED THAT COMMUNITY LAW DOES NOT PRECLUDE MEMBER STATES FROM APPLYING THEIR LEGISLATION , OR COLLECTIVE LABOUR AGREEMENTS ENTERED INTO     BY BOTH SIDES OF INDUSTRY RELATING TO MINIMUM WAGES , TO ANY PERSON WHO IS EMPLOYED , EVEN TEMPORARILY , WITHIN THEIR TERRITORY , NO MATTER IN WHICH COUNTRY THE EMPLOYER IS ESTABLISHED , JUST AS COMMUNITY LAW DOES NOT PROHIBIT MEMBER STATES FROM ENFORCING THOSE RULES BY APPROPRIATE MEANS . HOWEVER , IT IS NOT POSSIBLE TO DESCRIBE AS AN APPROPRIATE MEANS ANY RULE OR PRACTICE WHICH IMPOSES A GENERAL REQUIREMENT TO PAY SOCIAL SECURITY CONTRIBUTIONS , OR OTHER SUCH CHARGES AFFECTING THE FREEDOM TO PROVIDE SERVICES , ON ALL PERSONS PROVIDING SERVICES WHO ARE ESTABLISHED IN OTHER MEMBER STATES AND EMPLOY WORKERS WHO ARE NATIONALS OF NON-MEMBER COUNTRIES , IRRESPECTIVE OF WHETHER THOSE PERSONS HAVE COMPLIED WITH THE LEGISLATION ON MINIMUM WAGES IN THE MEMBER STATE IN WHICH THE SERVICES ARE PROVIDED , BECAUSE SUCH A GENERAL MEASURE IS BY ITS NATURE UNLIKELY TO MAKE EMPLOYERS COMPLY WITH THAT LEGISLATION OR TO BE OF ANY BENEFIT WHATSOEVER TO THE WORKERS IN QUESTION .
15 THE ANSWER TO THE QUESTIONS SUBMITTED BY THE COUR DE CASSATION OF THE GRAND DUCHY OF LUXEMBOURG MUST THEREFORE BE THAT COMMUNITY LAW PRECLUDES A MEMBER STATE FROM REQUIRING AN EMPLOYER WHO IS ESTABLISHED IN ANOTHER MEMBER STATE AND TEMPORARILY CARRYING OUT WORK IN THE FIRST-NAMED MEMBER STATE , USING WORKERS WHO ARE NATIONALS OF NON-MEMBER COUNTRIES , TO PAY THE EMPLOYER ' S SHARE OF SOCIAL SECURITY CONTRIBUTIONS IN RESPECT OF THOSE WORKERS WHEN THAT EMPLOYER IS ALREADY LIABLE UNDER THE LEGISLATION OF THE STATE IN WHICH HE IS ESTABLISHED FOR SIMILAR CONTRIBUTIONS IN RESPECT OF THE SAME WORKERS AND THE SAME PERIODS OF EMPLOYMENT AND THE CONTRIBUTIONS PAID IN THE STATE IN WHICH THE WORK IS PERFORMED DO NOT ENTITLE THOSE WORKERS TO ANY SOCIAL SECURITY BENEFITS . NOR WOULD SUCH A REQUIREMENT BE JUSTIFIED IF IT WERE INTENDED TO OFFSET THE ECONOMIC ADVANTAGES WHICH THE EMPLOYER MIGHT HAVE GAINED BY NOT COMPLYING WITH THE LEGISLATION ON MINIMUM WAGES IN THE STATE IN WHICH THE WORK IS PERFORMED .