Zoran Maksimovic and Others v Bezirkshauptmannschaft Murtal and Finanzpolizei.
Date: 2019-09-12
26


The Court has already held that such monitoring measures do not fall within the scope of Directive 96/71, since that directive 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 (judgment of 3 December 2014, De Clercq and Others, C‑315/13, EU:C:2014:2408, paragraph 47).
27


It is also apparent from the orders for reference that the facts at issue in the main proceedings took place in September and October 2015. It follows that Directive 2014/67, the period for transposition of which expired, under Article 23 thereof on 18 June 2016 and which was transposed into Austrian law by a law adopted in June 2016 that entered into force on 1 January 2017, does not apply to those facts (see, by analogy, judgment of 13 November 2018, Čepelnik, C‑33/17, EU:C:2018:896, paragraph 27).
28


Finally, while some of the parties who have submitted observations before the Court have argued that it should answer the questions for a preliminary ruling on the basis of Directive 2006/123, it must be pointed out that, in accordance with Article 1(6) thereof, that directive is not applicable where deterrent measures are established for the purpose of ensuring compliance with substantive labour law (see, to that effect, judgment of 13 November 2018, Čepelnik, C‑33/17, EU:C:2018:896, paragraphs 29 to 35).
30


It must be recalled that, in accordance with the settled case-law of the Court, all measures which prohibit, impede or render less attractive the exercise of the freedom to provide services must be regarded as restrictions on that freedom. Moreover, Article 56 TFEU confers rights not only on the provider of services himself but also on the recipient of those services (judgment of 13 November 2018, Čepelnik, C‑33/17, EU:C:2018:896, paragraphs 37 and 38 and the case-law cited).
31


The Court has further held that national law which provides for an obligation to draw up and keep social and labour documents on posted workers in the host Member State might give rise to additional expenses and administrative and economic burdens for undertakings established in another Member State and therefore constitutes a restriction on the freedom to provide services (see, to that effect, judgments of 23 November 1999, Arblade and Others, C‑369/96 and C‑376/96, EU:C:1999:575, paragraphs 58 and 59; of 18 July 2007, Commission v Germany, C‑490/04, EU:C:2007:430, paragraphs 66 to 69; and of 7 October 2010, dos Santos Palhotaand Others, C‑515/08, EU:C:2010:589, paragraphs 42 to 44).
32


As regards the posting of third-country workers by a service provider established in a Member State of the European Union, the Court has held that national law which makes the provision of services within national territory by an undertaking established in another Member State subject to the issue of an administrative permit constitutes a restriction on the freedom to provide services within the meaning of Article 56 TFEU (judgment of 14 November 2018, Danieli & C. Officine Meccanicheand Others, C‑18/17, EU:C:2018:904, paragraph 44 and the case-law cited).
35


According to the well-established case-law of the Court, national measures which are liable to restrict or to render less attractive the exercise of the fundamental freedoms guaranteed by the FEU Treaty may nonetheless be permitted where they serve overriding reasons in the public interest, are appropriate for attaining their objective, and do not go beyond what is necessary to attain that objective (judgment of 13 November 2018, Čepelnik, C‑33/17, EU:C:2018:896, paragraph 42 and the case-law cited).
37


On that point, it must be observed that social protection of workers and combating fraud, particularly social security fraud, and preventing abuse are objectives that are among the overriding reasons in the public interest capable of justifying a restriction on freedom to provide services (judgment of 13 November 2018, Čepelnik, C‑33/17, EU:C:2018:896, paragraph 44).
39


In that regard, as to the necessity of a restriction on the freedom to provide services such as that at issue in the main proceedings, it must be borne in mind that the severity of the penalty must be commensurate with the seriousness of the offence. In particular, the administrative or punitive measures permitted under national legislation must not go beyond what is necessary in order to attain the objectives legitimately pursued by that legislation (see, by analogy, judgment of 31 May 2018, Zheng, C‑190/17, EU:C:2018:357, paragraphs 41 and 42 and the case-law cited).
41


In the second place, it must be acknowledged that legislation providing for penalties of which the amount varies depending on the number of workers affected by non-compliance with certain labour law obligations does not, in itself, appear to be disproportionate (see, by analogy, judgment of 16 July 2015, Chmielewski, C‑255/14, EU:C:2015:475, paragraph 26).
45


In the fourth place, it is apparent from the orders for reference that the legislation at issue in the main proceedings provides for a custodial sentence in the event of failure to pay the fine, which is particularly onerous considering the implications for the person concerned (see, to that effect, judgments of 3 July 1980, Pieck, 157/79, EU:C:1980:179, paragraph 19; of 29 February 1996, Skanavi and Chryssanthakopoulos, C‑193/94, EU:C:1996:70, paragraph 36, and of 26 October 2017, I, C‑195/16, EU:C:2017:815, paragraph 77).