Wolff & Müller GmbH & Co. KG v José Filipe Pereira Félix.
Date: 2004-10-12
21. In that regard it should be borne in mind that a question referred by a national court for a preliminary ruling is inadmissible only if it is quite obvious that the question does not concern the interpretation of Community law or that it is hypothetical (Case C-201/02 Wells  [2004] ECR I-0000, paragraph 35 and case-law cited). That is not the situation in the present case.
24. It should be noted that, in order to provide a useful reply to the court which has referred to it a question for a preliminary ruling, the Court may be required to take into consideration rules of Community law to which the national court did not refer in its question (Case C-271/01 COPPI [2004] ECR I-0000, paragraph 27 and case law cited).
25. As the Austrian Government and the Commission point out in their written observations, the facts in the main proceedings, as described in the order for reference, must be regarded as coming within the scope of Directive 96/71. In fact, they correspond to the situation provided for in Article 1(3)(a) thereof.
26. Moreover, it is common ground that the facts at issue in the main proceedings occurred in 2000, that is to say on a date subsequent to expiry of the period allowed to the Member States for transposing Directive 96/71, that date being fixed for 16 December 1999.
27. Thus the provisions of the abovementioned directive are to be taken into consideration for the purposes of the examination of the question referred for a preliminary ruling.
30. It is apparent from the wording of Article 5 of Directive 96/71 that the Member States have a wide margin of appreciation in determining the form and detailed rules governing the adequate procedures under the second paragraph of Article 5. In applying that wide margin of appreciation they must however at all times observe the fundamental freedoms guaranteed by the Treaty (Case C-390/99 Grand Satélite Digital  [2002] ECR I-607, paragraphs 27 and 28 and Case C-71/02 Karner  [2004] ECR I-0000, paragraphs 33 and 34) and, thus, in regard to the main proceedings, freedom to provide services.
31. In that regard it should first be recalled that, under settled case-law, Article 49 EC requires not only the elimination of all 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 attractive the activities of a provider of services established in another Member State in which he lawfully provides similar services (Case C-164/99 Portugaia Construções  [2002] ECR I-787, paragraph 16 and case-law therein cited).
32. As the Court held, the application of the host Member State’s domestic legislation to service providers is liable to prohibit, impede or render less attractive the provision of services by persons or undertakings established in other Member States to the extent that it involves expenses and additional administrative and economic burdens ( Portugaia Construções , paragraph 18 and case-law cited).
34. It is further clear from settled case-law that, where legislation such as Paragraph 1a of the AEntG, on the supposition that it constitutes a restriction on freedom to provide services, is applicable to all persons and undertakings operating in the territory of the Member State in which the service is provided, it may be justified where it meets overriding requirements relating to the public interest 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 in which he is established and in so far as it is appropriate for securing the attainment of the objective which it pursues and does not go beyond what is necessary in order to attain it ( Portugaia Construções , paragraph 19 and case-law cited).
35. Overriding reasons relating to the public interest which have been recognised by the Court include the protection of workers ( Portugaia Construções , paragraph 20 and case-law cited).
36. However, although it may be acknowledged that, in principle, the application by the host Member State of its minimum-wage legislation to providers of services established in another Member State pursues an objective of public interest, namely the protection of employees ( Portugaia Construções , paragraph 22), the same is true in principle of measures adopted by the host Member State and intended to reinforce the procedural arrangements enabling a posted worker usefully to assert his right to a minimum rate of pay.
38. In regard to the national court’s observation that the priority purpose pursued by the national legislature on adoption of Paragraph 1(a) of the AEntG is to protect the national job market rather than remuneration of the worker, it should be pointed out that it is for that court to verify whether, on an objective view, the legislation at issue in the main proceedings secures the protection of posted workers. It is necessary to determine whether those rules confer a genuine benefit on the workers concerned, which significantly augments 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 which it has adopted ( Portugaia Construções , paragraphs 28 and 29 and case law cited).
41. Inasmuch as one of the objectives pursued by the national legislature is to prevent unfair competition on the part of undertakings paying their workers at a rate less than the minimum rate of pay, a matter which it is for the referring court to determine, such an objective may be taken into consideration as an overriding requirement capable of justifying a restriction on freedom to provide services provided that the conditions mentioned in paragraph 34 hereof are met.