Martin Meat kft v Géza Simonfay and Ulrich Salburg.
Date: 2015-06-18
22. Chapter 1, paragraph 13, of Annex X to that act derogates from the freedom to provide services where that involves a temporary movement of workers. It is applicable only to the Federal Republic of Germany and the Republic of Austria and was the result of negotiations initiated by those Member States 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 (see, by analogy, judgment in Vicoplus and Others , C‑307/09 to C‑309/09, EU:C:2011:64). It lists the sensitive sectors for which those two Member States are entitled to limit the freedom to provide services involving a temporary movement of workers. The hiring-out of workers, within the meaning of Article 1(3)(c) of Directive 96/71, constitutes such a supply of services.
23. In the judgment in Vicoplus and Others  (C‑307/09 to C‑309/09, EU:C:2011:64, paragraph 32), the Court held, as regards measures that the Kingdom of the Netherlands had adopted with regard to Polish workers, that legislation of a Member State making the hiring-out of foreign workers subject to a work permit must be regarded as being 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 Act of Accession of 2003, which as regards the Republic of Poland, a measure identical in substance to Chapter 1, paragraph 2 of Annex X to that act, applicable in the present case.
24. It followed from that finding that the right to restrict the hiring-out of workers, within the meaning of Article 1(3)(c) of Directive 96/71, was not reserved to the Federal Republic of Germany and the Republic of Austria, which negotiated a specific derogation in that regard, but also applied to all the other Member States of the European Union at the date of access of the Republic of Poland (see, to that effect, judgment in Vicoplus and Others , C‑307/09 to C‑309/09, EU:C:2011:64, paragraph 40).
28. Such a finding is consistent with the aim of Chapter 1, paragraph 2, of Annex X, which is intended to prevent, following the accession of the new Member States, disturbances on the labour markets of the existing Member States due to the immediate arrival of a large number of workers who are nationals of the new States (see, by analogy, judgment in Vicoplus and Others , C‑307/09 to C‑309/09, EU:C:2011:64, paragraph 34).
31. It should be noted at the outset that, when the Court is requested to give a preliminary ruling, its task is to provide the national court with guidance on the scope of the rules of EU law so as to enable that court to apply the rules correctly to the facts in the case before it and it is not for the Court of Justice to apply those rules itself, a fortiori  since it does not necessarily have available to it all the information that is essential for that purpose (judgment in Omni Metal Service , C‑259/05, EU:C:2007:363, paragraph 15).
33. In that connection, it follows from the judgment in Vicoplus and Others  (C‑307/09 to C‑309/09, EU:C:011:64, paragraph 51) that there is a hiring-out of workers, within the meaning of Article 1(3)(c) of Directive 96/71, where three conditions are met. First, hiring-out of workers 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. Second, 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. Third, in the context of such hiring-out, the employee carries out his tasks under the control and direction of the user undertaking.
35. In that connection, it should be recalled that a service provider must, in principle, provide a service consistent with that set out in the contract, so that the consequences of a provision of services which does not comply with that contract must be borne by that service provider. It follows that, 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.
40. In the second place, as regards the third condition laid down by the Court in the judgment in Vicoplus and Others (C‑307/09 to C‑309/09, EU:C:2011:64, paragraph 51), it must be stated, as the Advocate General noted in point 55 of her Opinion, that a distinction must be made between control and direction over the workers themselves and verification by a client that a service contract has been performed properly. It is normal for a client to verify in one way or another that the service delivered is in conformity with the contract. Moreover, in the contest of a supply of services, a client may give certain instructions to the service provider’s workers on how the service contract should be performed without entailing direction and control over the service provider’s workers within the meaning of the third condition laid down in the judgment in Vicoplus and Others , C‑307/09 to C‑309/09, EU:C:2011:64, paragraph 51, provided that the service provider gives them the precise and individual instructions he deems necessary for the performance of the services concerned.