Edgard Jan De Clercq and Others.
Date: 2014-12-03
31. The referring court notes that, according to the Opinion of Advocate General Cruz Villalón in Commission  v Belgium  (C‑577/10, EU:C:2012:477, point 54), Directive 2006/123 may not be relevant to the present case, as the facts alleged occurred prior to 2 October 2009. The referring court considers that it is, however, necessary to take Directive 96/71 into consideration.
36. Moreover, it must be stated at the outset that, although, in its question, the referring court refers to both workers and trainees posted to Belgian territory, the national provisions applicable to them are, mutatis mutandis , identical. Therefore, the reasoning which follows with regard to posted workers also applies to trainees, since their training period is completed under the conditions of a genuine and effective activity as an employee (see, to that effect, judgments in Lawrie-Blum , 66/85, EU:C:1986:284, paragraph 22, and Bernini , C‑3/90, EU:C:1992:89, paragraphs 14 and 15).
45. Article 3(1) and (10) of Directive 96/71 seeks, therefore, to ensure that the rules of the host Member State for minimum protection as regards the terms and conditions of employment relating to the matters mentioned in Article 3(1) thereof and, as the case may be, those specified by the Member States in accordance with Article 3(10) thereof will be applied to posted workers while they work on a temporary basis in the territory of that host Member State (see, to that effect, the judgment in Laval un Partneri , C‑341/05, EU:C:2007:809, paragraph 76).
47. The Court has already held that such monitoring measures do not fall within the scope of Directive 96/71 and that they are not harmonised at EU level, since Directive 96/71 seeks to coordinate the substantive national rules on the terms and conditions of employment of posted workers, independently of the ancillary administrative rules designed to enable compliance with those terms and conditions to be monitored. Those measures may, therefore, be freely defined by the Member States, in compliance with the Treaty and the general principles of EU law (see, to that effect, the judgment in dos Santos Palhota and Others , C‑515/08, EU:C:2010:589, paragraphs 25 to 27).
49. Article 16(2)(g) of Directive 2006/123 provides that the Member States may not restrict the freedom to provide services, in the case of a provider established in another Member State, by imposing the restrictions on the freedom to provide services referred to in Article 19 of that directive. However, as Mr Edgard De Clercq, Mr Emiel De Clercq and Ms Rottiers maintain, it follows from a combined reading of Article 16(2)(g) and Article 19(a) of Directive 2006/123 that the Member States may not impose on a recipient of services requirements which restrict the use of a service supplied by a provider established in another Member State, in particular the obligation to make a declaration to their competent authorities.
50. However, it should be noted that it is apparent from the order for reference that the defendants are being prosecuted in relation to facts which occurred between 1 April 2007 and 18 November 2008, that is to say, before the date of expiry of the period set for transposing Directive 2006/123, which is laid down in Article 44(1) thereof as 28 December 2009. That directive is, therefore, not applicable ratione temporis  to the dispute in the main proceedings.
51. In those circumstances, no account should be taken of Article 19 of Directive 2006/123 in the examination of the question referred.
Articles 56 TFEU and 57 TFEU
52. First of all, it should be noted that, as is apparent from the order for reference, the main proceedings concern recipients of services performed by an undertaking established in one Member State which has posted its own workers for a fixed period with an undertaking in the same group established in another Member State for the purpose of providing services in the latter. Since Article 56 TFEU confers rights not only on the provider of services but also on the recipient of those services, such a factual situation is covered by Articles 56 TFEU and 57 TFEU (see, to that effect, judgments in dos Santos Palhota and Others , EU:C:2010:589, paragraph 28 and the case-law cited, and in Strojírny Prostějov and ACO Industries Tábor , C‑53/13 and C‑80/13, EU:C:2014:2011, paragraph 26 and the case-law cited).
The existence of a restriction on the freedom to provide services
53. It follows from the Court’s settled case-law that Article 56 TFEU requires not only the elimination of all discrimination against service providers on grounds of nationality or of the fact that they are established in a Member State other than that in which the services are to be provided, but also the abolition of any restriction, even if it applies without distinction to national service providers and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of a service provider established in another Member State where he lawfully provides similar services (see, inter alia, judgments in dos Santos Palhota and Others , EU:C:2010:589, paragraph 29 and the case-law cited; in Commission  v Belgium , C‑577/10, EU:C:2012:814, paragraph 38, and in Essent Energie Productie , C‑91/13, EU:C:2014:2206, paragraph 44 and the case-law cited).
61. That conclusion cannot be brought into question by the Belgian Government’s argument that, in essence, the effects of those rules are negligible, on the ground that only the disclosure of a limited amount of information is requested, that the obligation to make the declaration at issue is purely declaratory and that it comes into play only as an alternative. In that regard, it should be noted that, in any event, a restriction on a fundamental freedom is, in principle, prohibited by the Treaty even if it is of limited scope or minor importance (judgments in Corsica Ferries (France) , C‑49/89, EU:C:1989:649, paragraph 8, and in Strojírny Prostějov and ACO Industries Tábor , EU:C:2014:2011, paragraph 42).
Justification for the restriction on the freedom to provide services
62. According to the Court’s settled case-law, where national legislation falling within an area which has not been harmonised at EU level is applicable without distinction to all persons and undertakings operating in the territory of the Member State concerned, it may, notwithstanding its restrictive effect on the freedom to provide services, be justified where it meets an overriding requirement relating to the public interest and that interest is not already safeguarded by the rules to which the service provider 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 (judgments in Arblade and Others , C‑369/96 and C‑376/96, EU:C:1999:575, paragraphs 34 and 35; in dos Santos Palhota and Others , EU:C:2010:589, paragraph 45 and the case-law cited; and in Commission  v Belgium , EU:C:2012:814, paragraph 44).
63. Furthermore, the Court has already held that, as regards the ability of the authorities of the Member State in whose territory services are provided to carry out checks seeking to ensure respect for the rights which the legislation of that Member State confers on workers in its territory, undertakings established in the Member State in whose territory the provision of services takes place and those established in another Member State and posting workers to the first Member State to provide a service there are in objectively different situations (see, to that effect, the judgments in Finalarte and Others , C‑49/98, C‑50/98, C‑52/98 to C‑54/98 and C‑68/98 to C‑71/98, EU:C:2001:564, paragraphs 63, 64 and 73, and in Commission  v Belgium , EU:C:2012:814, paragraph 48).
65. In this regard, it should be noted that the Court has already held that overriding reasons relating to the public interest capable of justifying a restriction on the freedom to provide services include the protection of workers (judgment in dos Santos Palhota and Others , EU:C:2010:589, paragraph 47 and the case-law cited), the prevention of unfair competition on the part of undertakings which pay their workers at a rate less than the minimum rate of pay, in so far as that objective includes protecting workers by combating social dumping (see, to that effect, judgment in Wolff & Müller , C‑60/03, EU:C:2004:610, paragraphs 35, 36 and 41), and combating fraud, in particular social security fraud, and preventing abuse, in particular combating undeclared work, in so far as that objective can form part of the objective of protecting the financial balance of social security systems (see, to that effect, judgment in Rüffert , C‑346/06, EU:C:2008:189, paragraph 42 and the case-law cited).
66. Similarly, the Court has recognised that the Member States have the power to verify compliance with the national and European Union provisions in respect of the provision of services, and it has accepted that overriding reasons relating to the public interest which justify the substantive provisions of a Member State’s legislation may also justify measures necessary to monitor compliance with it (see, to that effect, the judgments in Arblade and Others , EU:C:1999:575, paragraph 38 and the case-law cited, and in dos Santos Palhota and Others , EU:C:2010:589, paragraph 48).
67. In that context, it should be noted that, with regard to the prior declaration requirement imposed, essentially, by Article 153 of the Programme Law on self-employed service providers lawfully established in a Member State other than the Kingdom of Belgium and who wish to provide services in Belgium on a temporary basis, the Court has held that the Kingdom of Belgium was entitled to rely, as a justification for the restriction on the freedom to provide services resulting from that provision, on the objective of combating fraud, in particular social security fraud, preventing abuse and protecting workers (see, to that effect, judgment in Commission  v Belgium , EU:C:2012:814, paragraph 45).
70. In those circumstances, it is for the referring court to determine whether those rules are proportionate to the attainment of the objectives identified, having regard to all the relevant factors (see, to that effect, judgments in Finalarte and Others , EU:C:2001:564, paragraph 49, and in International Transport Workers’ Federation and Finnish Seamen’s Union , C‑438/05, EU:C:2007:772, paragraph 84).
71. For the purposes of that assessment, it must be noted that the Court has already held that an obligation imposed on an employer established in another Member State to report beforehand to the host Member State authorities on the presence of one or more deployed workers would be an effective and proportionate measure which would enable those authorities, first, to monitor compliance with the social welfare and wages legislation of the host Member State during the deployment while at the same time taking account of the obligations by which that employer is already bound under the social welfare legislation applicable in the Member State of origin and, secondly, to combat fraud (see, to that effect, the judgment in dos Santos Palhota and Others , EU:C:2010:589, paragraphs 51, 53 and 54 and the case-law cited).
73. It may also be pointed out that the imposition of penalties, including criminal penalties, may be considered to be necessary in order to ensure compliance with national rules, subject, however, to the condition that the nature and amount of the penalty imposed is in each individual case proportionate to the gravity of the infringement which it is designed to penalise (see, to that effect, judgments in Louloudakis , C‑262/99, EU:C:2001:407, paragraphs 69 and 70, and in Commission  v Greece , C‑156/04, EU:C:2007:316, paragraph 72).