European Commission v Kingdom of Belgium.
Date: 2012-12-19
34. At the outset, it must be borne in mind that, in proceedings under Article 258 TFEU for failure to fulfil obligations, it is for the Commission, which is responsible for proving the existence of the alleged infringement, to provide the Court with the information necessary for it to determine whether that infringement is made out, and the Commission may not rely on any presumption for that purpose (see, in particular, Case 96/81 Commission  v Kingdom of the Netherlands  [1982] ECR 1791, paragraph 6, and Case C-458/08 Commission  v Portugal  [2010] ECR I-11599, paragraph 54).
35. Although the Court has indeed already held that those requirements for evidence are more strict where the Commission’s complaints relate to an action concerning the implementation of a national provision (Case C-287/03 Commission  v Belgium  [2005] ECR I-3761, paragraph 28, and judgment of 22 January 2009 in Case C-150/07 Commission v Portugal , paragraph 66), the fact remains none the less that, by the present action for failure to fulfil obligations, the Commission disputes the conformity with Article 56 TFEU not of an administrative practice but of legislative provisions the effective existence of which are not in any way disputed by the Kingdom of Belgium. It does not appear, therefore, that the present action rests on mere presumptions.
38. It is settled case-law that Article 56 TFEU requires not only the elimination of all discrimination against providers of services on grounds of nationality or the fact that they are established in a Member State other than that where the services are to be provided, 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 advantageous the activities of a provider of services established in another Member State where he lawfully provides similar services (Joined Cases C-369/96 and C-376/96 Arblade and Others  [1999] ECR I-8453, paragraph 33, and judgment of 21 July 2011 in Case C-518/09 Commission  v Portugal , paragraph 63 and the case-law cited).
44. Where national legislation falling within an area which has not been harmonised at European Union 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 in 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 ( Arblade and Others , paragraphs 34 and 35; Case C-224/04 Commission  v Germany  [2006] ECR I-885, paragraph 31; and Case C-219/08 Commission  v Belgium  [2009] ECR I-9213, paragraph 14).
45. In that regard, it is appropriate to note that the objectives relied on in the present case by the Kingdom of Belgium can be taken into consideration as overriding requirements in the public interest which are capable of justifying a restriction on the freedom to provide services. On that point, it is sufficient to state that the objective of combating fraud, particularly social security fraud, and preventing abuse, in particular detecting ‘bogus self-employed persons’ and combating undeclared work, can form part not only of the objective of the financial balance of social security systems, but also of the objectives of preventing unfair competition and social dumping and protecting workers, including self-employed service providers.
48. The Court has previously held that, as regards the ability of the authorities of the Member State in whose territory services are supplied to check that the rules intended to ensure that the rights conferred by national law on workers in its territory are followed, there are, clearly, objective differences between businesses established in the Member State where the services are supplied and those established in other Member States posting workers to the first Member State to supply services there (see, to that effect, 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, paragraphs 63, 64 and 73). The fact that self-employed service providers established in Belgium are not subject to strictly equivalent requirements, in particular as regards the information to be provided, to those following from the declaration requirement at issue for self-employed service providers established in another Member State may thus be attributed to objective differences between those two categories of self-employed service providers.
49. Accordingly, it must be examined whether the provisions at issue are proportionate, it being understood that measures which restrict the freedom to provide services may be justified by the objective which they pursue only if they are suitable for securing the attainment of that objective and do not go beyond what is necessary in order to attain it (see, to that effect, Case C-255/04 Commission  v France  [2006] ECR I-5251, paragraph 44 and the case-law cited).
53. That being so, it must be borne in mind that a general presumption of fraud is not sufficient to justify a measure which compromises the objectives of the FEU Treaty (see, to that effect, Commission  v France , paragraph 52, and Case C-433/04 Commission  v Belgium [2006] ECR I-10653, paragraph 35).
54. In the present case, even if it were accepted that self-employed service providers established in a Member State other than the Kingdom of Belgium could be subject, in the latter State, to tax and social security obligations, it is established that the application of the declaration requirement at issue is not restricted to cases where there is cause to ascertain that those tax and social security obligations are met.
55. Furthermore, the declaration requirement at issue includes the obligation to provide the Belgian authorities with very detailed information, particularly in the ‘ordinary’ declaration. Although it may be feasible for a Member State to ask self-employed service providers established in another Member State, travelling to Belgium to supply a service there, to provide it with certain specific information, that is on condition that the provision of that information be justified in the light of the objectives pursued. However, the Kingdom of Belgium fails to give a sufficiently convincing justification as to how the provision of that very detailed information is necessary in order to achieve the objectives of public interest on which it relies and how the obligation to give that information in advance does not go beyond what is necessary to achieve those objectives, despite the fact that it should have done so (see, to that effect, Case C-319/06 Commission  v Luxembourg  [2008] ECR I-4323, paragraph 51 and the case-law cited).