Portugaia Construções Ldª.
Date: 2002-01-24
16 It is settled case-law that Article 59 of the Treaty 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 (see Case C-76/90 Säger [1991] ECR I-4221, paragraph 12; Case C-43/93 Vander Elst [1994] ECR I-3803, paragraph 14; Case C-272/94 Guiot [1996] ECR I-1905, paragraph 10; 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).
17 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, thereby depriving of all practical effectiveness the provisions of the Treaty whose object is, precisely, to guarantee the freedom to provide services (see Säger, paragraph 13).
18 In that regard, 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 (Mazzoleni and ISA, paragraph 24).
19 However, it clear from settled case-law that, where such domestic legislation 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 (see, in particular, Case 279/80 Webb [1981] ECR 3305, paragraph 17; Case C-205/99 Analir and Others [2001] ECR I-1271, paragraph 25, and Mazzoleni and ISA, cited above, paragraph 25).
20 Overriding reasons relating to the public interest which have been recognised by the Court include the protection of workers (see, in particular, Webb, paragraph 19, Arblade and Others, paragraph 36, and Mazzoleni and ISA, paragraph 27).
21 As regards, more specifically, national provisions relating to minimum wages, such as those at issue in the main proceedings, it is clear from the case-law of the Court that in principle Community law does not preclude a Member State from requiring an undertaking established in another Member State which provides services in the territory of the first State to pay its workers the minimum remuneration laid down by the national rules of that State (Joined Cases 62/81 and 63/81 Seco and Desquenne & Giral [1982] ECR 223, paragraph 14; Guiot, paragraph 12; Arblade and Others, paragraph 33; and Mazzoleni and ISA, paragraphs 28 and 29).
22 In other words, 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.
23 However, there may be circumstances in which the application of such rules would not be in conformity with Articles 59 and 60 of the Treaty (see, to this effect, Mazzoleni and ISA, paragraph 30).
24 It is therefore for the national authorities or, as the case may be, the courts of the host Member State, before applying the minimum-wage legislation to service providers established in another Member State, to determine whether that legislation does indeed pursue an objective of public interest and by appropriate means.
26 However, according to settled case-law, measures forming a restriction on the freedom to provide services cannot be justified by economic aims, such as the protection of domestic businesses (see, most recently, the judgment of 25 October 2001 in Joined Cases C-49/98, C-50/98, C-52/98 to C-54/98 and C-68/98 to C-71/98 Finalarte and Others [2001] ECR I-7831, paragraph 39).
27 Whilst the intention of the legislature, as apparent from the statement of the grounds on which a Law was adopted, may be an indication of the aim of that Law, that declared intention is not conclusive (see Finalarte and Others, paragraph 40).
28 It is, however, for the national court to determine whether, viewed objectively, the rules in question in the main proceedings promote the protection of posted workers (Finalarte and Others, paragraph 41).
29 As the Court has already held, 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 (Finalarte and Others, paragraph 42).
33 That submission cannot be upheld. It is sufficient to recall that according to settled case-law it is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the particular aspects of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court. Dismissal of a request from a national court is possible only where it is clear that the interpretation of Community law requested by that court has no bearing on the real situation or on the subject-matter of the case (see Joined Cases C-332/92, C-333/92 and C-335/92 Eurico Italia and Others [1994] ECR I-711, paragraph 17). However, that is not the case here.