Finalarte Sociedade de Construção Civil Ldª (C-49/98), Portugaia Construções Ldª (C-70/98) and Engil Sociedade de Construção Civil SA (C-71/98) v Urlaubs- und Lohnausgleichskasse der Bauwirtschaft and Urlaubs- und Lohnausgleichskasse der Bauwirtschaft v Amilcar Oliveira Rocha (C-50/98), Tudor Stone Ltd (C-52/98), Tecnamb-Tecnologia do Ambiante Ldª (C-53/98), Turiprata Construções Civil Ldª (C-54/98), Duarte dos Santos Sousa (C-68/98) and Santos & Kewitz Construções Ldª (C-69/98).
Date: 2001-10-25
20 It is common ground that the main proceedings concern businesses established in Member States other than the Federal Republic of Germany who have posted their own workers for a fixed period to construction sites in Germany for the purposes of providing services, a situation which falls within Articles 59 and 60 of the Treaty.
22 The Court has held that workers employed by a business established in one Member State who are temporarily sent to another Member State to provide services do not, in any way, seek access to the labour market in that second State if they return to their country of origin or residence after completion of their work (Case C-113/89 Rush Portuguesa [1990] ECR I-1417, paragraph 15, and C-43/93 Vander Elst [1994] ECR I-3803, paragraph 21).
28 According to settled case-law, Article 59 of the Treaty requires not only the elimination of any discrimination on grounds of nationality against providers of services who 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 he lawfully provides similar services (see, in particular, Joined Cases C-369/96 and C-376/96 Arblade and Others [1999] ECR I-8453, paragraph 33, and Case C-165/98 Mazzoleni and ISA [2001] ECR I-2189, paragraph 22).
29 In particular, a Member State may not make the provision of services in its territory subject to compliance with all the conditions required for establishment and thereby deprive the provisions of the Treaty whose object is, precisely, to guarantee the freedom to provide services, of all practical effect (see Case C-76/90 Säger [1991] ECR I-4221, paragraph 13, and Mazzoleni and ISA, cited above, paragraph 23).
30 In that regard, the application of the host Member State's national rules to providers of services is liable to prohibit, impede or render less attractive the provision of services to the extent that it involves expense and additional administrative and economic burdens (Mazzoleni and ISA, paragraph 24).
31 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, cited above, paragraph 34, and Mazzoleni and ISA, paragraph 25).
32 The application of the national rules of a Member State to providers of services established in other Member States must be appropriate for securing the attainment of the objective which those rules pursue, and must not go beyond what is necessary in order to attain it (Arblade, paragraph 35, and Mazzoleni and ISA, paragraph 26).
33 Overriding reasons relating to the public interest already recognised by the Court include the protection of workers (see, in particular, Arblade, paragraph 36, and Mazzoleni and ISA, paragraph 27).
37 Such a restriction of the freedom to provide services is justifiable only if it is necessary in order to pursue, effectively and by appropriate means, an objective in the public interest.
39 According to settled case-law, measures restricting the freedom to provide services cannot be justified by economic aims, such as the protection of national businesses (see, to that effect, Case 352/85 Bond van Adverteerders and Others [1988] ECR 2085, paragraph 34, and Case C-398/95 SETTG [1997] ECR I-3091, paragraph 23).
40 However, whilst the intention of the legislature, to be gathered from the political debates preceding the adoption of a law or from the statement of the grounds on which it was adopted, may be an indication of the aim of that law, it is not conclusive.
41 It is, on the contrary, for the national court to check whether, viewed objectively, the rules in question in the main proceedings promote the protection of posted workers.
42 In this respect, it is necessary to check whether those rules confer a genuine benefit on the workers concerned, which significantly adds to their social protection. In this context, the stated intention of the legislature may lead to a more careful assessment of the alleged benefits conferred on workers by the measures it has adopted.
45 It is for the national court to consider whether such potential benefits confer real additional protection on posted workers. That assessment must take account, first, of the protection as to paid leave that workers already enjoy under the law of the Member State where their employer is established, since the rules at issue in the main proceedings cannot be regarded as conferring real additional protection on posted workers if the latter enjoy the same protection, or essentially similar protection, under the legislation of the Member State where their employer is established.
48 Third, the national court must check that, when they have returned to the Member State where their employer is established, the workers concerned are genuinely able to assert their entitlement to holiday pay from the fund, having regard, in particular, to the formalities to be observed, the language to be used and the procedure for payment.
49 If the national court considers that the rules at issue in the main proceedings in fact pursue the public interest objective of protecting workers employed by providers of services established outside Germany, it will have to go on to assess whether those rules are proportionate to the attainment of that objective, having regard to all relevant factors.
53 Consequently, the reply to the first question is that Articles 59 and 60 of the Treaty do not preclude a Member State from imposing national rules, such as those laid down by the first sentence of Paragraph 1(3) of the AEntG guaranteeing entitlement to paid leave for posted workers, on a business established in another Member State which provides services in the first Member State by posting workers for that purpose, on the two-fold condition that: (i) the workers do not enjoy an essentially similar level of protection under the law of the Member State where their employer is established, so that the application of the national rules of the first Member State confers a genuine benefit on the workers concerned, which significantly adds to their social protection, and (ii) the application of those rules by the first Member State is proportionate to the public interest objective pursued.
Second question
63 In any event, there are, clearly, objective differences between businesses established in the Federal Republic of Germany and those established in other Member States as regards the effective implementation of the obligation to give holiday pay. Accordingly, where a business established outside Germany ceases to provide services there, the German authorities are no longer able to ensure that it has, in fact, given holiday pay to the posted workers. It follows that it is more efficient if the fund gives holiday pay directly to the posted workers.
64 The difference in treatment may be explained by those objective differences, and does not therefore constitute discrimination contrary to Articles 59 and 60.
70 Nevertheless, an obligation of the kind imposed by the rules at issue in the main proceedings, to disclose certain information to the authorities of the host Member State, gives rise to additional expense and administrative and economic burdens for businesses established in another Member State (see, to that effect, Arblade, paragraph 58).
71 The fact that businesses established outside the Federal Republic of Germany are given additional burdens in terms of the information to be disclosed therefore, a fortiori, constitutes a restriction on the freedom to provide services within the meaning of Article 59 of the Treaty (see, to that effect, Arblade, paragraph 59).
73 Furthermore, the fact that businesses established outside the Federal Republic of Germany are not subject to the same obligations to provide information may be attributed to objective differences between those businesses and businesses established in Germany.
74 By contrast, the duty to disclose specific documents to the Member State cannot be justified if that State can perform the necessary checks on the basis of the documents required by the rules of the Member State of establishment (see, to that effect, Arblade, paragraph 64).
80 That argument cannot be upheld. It is sufficient, as regards admissibility, to note that it is for the national court alone to determine the relevance of the question submitted and that only the obvious lack of any connection with the main action can render a question inadmissible (Joined Cases C-332/92, C-333/92 and C-335/92 Eurico Italia [1994] ECR I-711, paragraph 17). Such is not, however, the case here.