Raymond Vander Elst v Office des Migrations Internationales.
Date: 1994-08-09
13 It should be borne in mind that the nationals of Member States of the Community have the right to enter the territory of the other Member States in the exercise of the various freedoms recognized by the Treaty and in particular the freedom to provide services which, according to settled case-law, is enjoyed both by providers and by recipients of services (see the judgments in Case 186/87 Cowan v Trésor Public [1989] ECR 195 and in Case C-68/89 Commission v Netherlands [1991] ECR I-2637, paragraph 10).
14 Article 59 of the Treaty therefore requires not only the elimination, against a person providing services who is established in another Member State, of all discrimination on the ground of his nationality 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, when it is liable to prohibit or otherwise impede the activities of a provider of services established in another Member State where he lawfully provides similar services (see the judgment in Case C-76/90 Saeger v Dennemeyer [1991] ECR I-4221, paragraph 12).
15 Similarly, the Court has already held that national legislation which makes the provision of certain services on national territory by an undertaking established in another Member State subject to the issue of an administrative licence constitutes a restriction on the freedom to provide services within the meaning of Article 59 of the Treaty (see the judgment in Saeger, paragraph 14). Furthermore, it is apparent from the judgment in Joined Cases 62/81 and 63/81 Seco and Desquenne & Giral v Etablissement d' Assurance contre la Vieillesse et l' Invalidité [1982] ECR 223 that legislation of a Member State which requires undertakings established in another Member State to pay fees in order to be able to employ in its own territory workers in respect of whom they are already liable for the same periods of employment to pay similar fees in the State in which they are established proves financially to be more onerous for those employers, who in fact have to bear a heavier burden than those established within the national territory.
16 Finally, as one of the fundamental principles of the Treaty, freedom to provide services may be restricted only by rules which are justified by overriding reasons in the general interest and are applied to all persons and undertakings 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, in particular, the judgments in Case C-180/89 Commission v Italy [1991] ECR I-709 paragraph 17, and in Case C-198/89 Commission v Greece [1991] ECR I-727, paragraph 18).
17 In any event, as the Court has emphasized on several occasions, 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 of all practical effectiveness the provisions whose object is to guarantee the freedom to provide services (see the judgments in Case C-154/89 Commission v France [1991] ECR I-659, paragraph 12, and in Case C-76/90 Saeger, cited above, paragraph 13).
21 Workers employed by an undertaking 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 (see the judgment in Case C-113/89 Rush Portuguesa v Office National d' Immigration [1990] ECR I-1417). Those conditions were fulfilled in the present case.
23 As is clear from the case-law of the Court, Community law does not preclude Member States from extending 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; nor does Community law prohibit Member States from enforcing those rules by appropriate means (see, in particular, the judgment in Rush Portuguesa, paragraph 18).
25 As the Advocate General has rightly observed in paragraph 30 of his Opinion, irrespective of the possibility of applying national rules of public policy governing the various aspects of the employment relationship to workers sent temporarily to France, the application of the Belgian system in any event excludes any substantial risk of workers being exploited or of competition between undertakings being distorted.
26 The answer to the questions referred to the Court must therefore be that Articles 59 and 60 of the Treaty are to be interpreted as precluding a Member State from requiring undertakings which are established in another Member State and enter the first Member State in order to provide services, and which lawfully and habitually employ nationals of non-member countries, to obtain work permits for those workers from a national immigration authority and to pay the attendant costs, with the imposition of an administrative fine as the penalty for infringement.