Rush Portuguesa Ldª v Office national d'immigration.
Date: 1990-03-27
12 Articles 59 and 60 of the Treaty therefore preclude a Member State from prohibiting a person providing services established in another Member State from moving freely on its territory with all his staff and preclude that Member State from making the movement of staff in question subject to restrictions such as a condition as to engagement in situ or an obligation to obtain a work permit . To impose such conditions on the person providing services established in another Member State discriminates against that person in relation to his competitors established in the host country who are able to use their own staff without restrictions, and moreover affects his ability to provide the service .
13 It should also be recalled that Article 216 of the Act of Accession is intended to prevent disturbances on the employment market following Portugal' s accession, both in Portugal and in the other Member States, due to large and immediate movements of workers, and that for that purpose it introduces a derogation from the principle of freedom of movement for workers laid down in Article 48 of the Treaty . According to the Court' s case-law, that derogation must be interpreted in the light of the abovementioned purpose ( see the judgment of 27 September 1989 in Case 9/88 Lopes da Veiga v Staatssecretaris van Justitie (( 1989 )) ECR 2989 ).
15 The situation is different, however, in a case such as that in the main proceedings where there is a temporary movement of workers who are sent to another Member State to carry out construction work or public works as part of a provision of services by their employer . In fact, such workers return to their country of origin after the completion of their work without at any time gaining access to the labour market of the host Member State .
16 It should be stated that, since the concept of the provision of services as defined by Article 60 of the Treaty covers very different activities, the same conclusions are not necessarily appropriate in all cases . In particular, it must be acknowledged, as the French Government has argued, that an undertaking engaged in the making available of labour, although a supplier of services within the meaning of the Treaty, carries on activities which are specifically intended to enable workers to gain access to the labour market of the host Member State . In such a case, Article 216 of the Act of Accession would preclude the making available of workers from Portugal by an undertaking providing services .
17 However, that observation in no way affects the right of a person providing services in the building and public works sector to move with his own labour force from Portugal for the duration of the work undertaken . Nevertheless, Member States must in such a case be able to ascertain whether a Portuguese undertaking engaged in construction or public works is not availing itself of the freedom to provide services for another purpose, for example that of bringing his workers for the purposes of placing workers or making them available in breach of Article 216 of the Act of Accession . However, such checks must observe the limits imposed by Community law and 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 .
18 Finally, it should be stated, in response to the concern expressed in this connection by the French Government, that Community law does not preclude Member States from extending their legislation, or collective labour agreements entered into by both sides of industry, to any person who is employed, even temporarily, within their territory, no matter in which country the employer is established; nor does Community law prohibit Member States from enforcing those rules by appropriate means ( judgment of 3 February 1982 in Joined Cases 62 and 63/81 Seco SA and Another v EVI (( 1982 )) ECR 223 ).