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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Commission v Germany (Freedom to provide services) [2007] EUECJ C-490/04 (18 July 2007) URL: https://www.bailii.org/eu/cases/EUECJ/2007/C49004.html Cite as: [2007] EUECJ C-490/04, [2007] ECR I-6095, [2007] EUECJ C-490/4 |
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(Actions for failure to fulfil obligations Admissibility Article 49 EC Freedom to provide services Posting of workers Restrictions Contribution to the national paid leave fund Translation of documents Declaration concerning the place of employment of posted workers)
In Case C-490/04,
ACTION under Article 226 EC for failure to fulfil obligations, brought on 29 November 2004,
Commission of the European Communities, represented by E. Traversa, G. Braun and H. Kreppel, acting as Agents, with an address for service in Luxembourg,
applicant,
v
Federal Republic of Germany, represented by W.-D. Plessing, M. Lumma and C. Schulze-Bahr, acting as Agents, assisted by T. Lübbig, Rechtsanwalt,
defendant,
supported by:
French Republic, represented by G. de Bergues and O. Christmann, acting as Agents,
intervener,
composed of P. Jann, President of the Chamber, R. Schintgen, A. Tizzano (Rapporteur), M. Ilešič and E. Levits, Judges,
Advocate General: D. Ruiz-Jarabo Colomer,
Registrar: B. Fülöp, Administrator,
having regard to the written procedure and further to the hearing on 8 November 2006,
after hearing the Opinion of the Advocate General at the sitting on 14 December 2006,
gives the following
foreign undertakings are obliged to pay contributions to the German paid-leave fund even if the employees benefit from a comparable protection under the law of the State in which their employer is established (Paragraph 1(3) of the law on the posting of workers (Arbeitnehmer-Entsendegesetz) of 26 February 1996) (BGBl. 1996 I, p. 227) ('the AEntG');
foreign undertakings are obliged to have the employment contract or the documents required, pursuant to Council Directive 91/533/EC of 14 October 1991 on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship (OJ 1991 L 288, p. 32), under the law of the State where the employee is resident, pay slips, time sheets, proof of payment of wages, and all other documents required by the German authorities, translated into German (Paragraph 2 of the AEntG);
foreign employment agencies are obliged not only to give prior notification each time a worker is posted to a user of the worker's services in Germany, but also each time a worker starts a new job on a building site at the request of the user of his services (Paragraph 3(2) of the AEntG),
the Federal Republic of Germany has failed to fulfil its obligations under Article 49 EC.
Legal context
Community law
The EC Treaty
'Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.
...'
Directive 96/71/EC
-1. Member States shall ensure that, whatever the law applicable to the employment relationship, the undertakings referred to in Article 1(1) guarantee workers posted to their territory the terms and conditions of employment covering the following matters which, in the Member State where the work is carried out, are laid down:
by law, regulation or administrative provision, and/or
by collective agreements or arbitration awards which have been declared universally applicable within the meaning of paragraph 8, in so far as they concern the activities referred to in the Annex:
...
(b) minimum paid annual holidays;
...
(d) the conditions of hiring-out of workers, in particular the supply of workers by temporary employment undertakings;
...
...'
-1. For the purposes of implementing this Directive, Member States shall, in accordance with national legislation and/or practice, designate one or more liaison offices or one or more competent national bodies.
2. Member States shall make provision for cooperation between the public authorities which, in accordance with national legislation, are responsible for monitoring the terms and conditions of employment referred to in Article 3. Such cooperation shall in particular consist in replying to reasoned requests from those authorities for information on the transnational hiring-out of workers, including manifest abuses or possible cases of unlawful transnational activities.
...'
National law
'When a collective agreement with generally compulsory application provides for the levying of contributions or the supply of services by a body common to the social partners in connection with the granting of holiday entitlement referred to in paragraph 1, the rules of this agreement shall also be binding on foreign employers and those of their employees who come within the territorial scope of that agreement, in so far as that agreement or any other provision guarantees that:
1. the foreign employer is not required to pay contributions at the same time under the present law and to a similar body in the state where it is established or where the seat of its undertaking is situated, and
2. the procedure of the body common to the social partners provides for contributions already paid by the foreign employer, in order to satisfy its employees' rights to leave provided for by statute, industrial agreement or contract.
...'
'Every employer established abroad is required to retain in Germany the necessary documents, in German, for the monitoring of compliance with the legal obligations arising from the second sentence of Paragraph 1(1), from the second sentence of Paragraph 1(2a) and from the fifth sentence of Paragraph 1(3a), throughout the whole period for which the employee remains within the scope of the present law and for at least the duration of the building project, without, however, exceeding a period of two years, so as to be able to present those documents at the building site at the request of the supervisory authorities.'
'Temporary employment agencies established abroad, which make one or more workers available to a user undertaking within the scope of the present law must ... send in writing, before each building project is begun, to the competent customs authorities a declaration in German containing the following information:
1. surname, first name and date of birth of the workers made available within the scope of the present law,
2. start and finish dates of the placement,
3. place of work (site),
...'
Pre-litigation procedure
The action
Admissibility
The choice of Article 49 EC as the relevant provision for determining whether the AEntG complies with Community law
The excessive length of the pre-litigation proceedings
The application's lack of precision
The amendment of the subject-matter of the first ground for complaint
Substance
The obligation to contribute to the German paid-leave fund (Paragraph 1(3) of the AEntG)
Arguments of the parties
Findings of the Court
The obligation to retain specific documents in German at the building site (Paragraph 2(3) of the AEntG)
Arguments of the parties
Findings of the Court
The obligation imposed on foreign employment agencies to make a declaration relating to the place to which workers are posted (Paragraph 3(2) of the AEntG)
Arguments of the parties
Findings of the Court
Costs
On those grounds, the Court (First Chamber) hereby:
1. Declares that in enacting a provision, such as Paragraph 3(2) of the law on posting workers (Arbeitsnehmer-Entsendegesetz) of 26 February 1996, under which foreign temporary employment agencies are required to declare, not only the placement of a worker with a user of his services in Germany, but also any change relating to the place of employment of that worker, the Federal Republic of Germany has failed to fulfil its obligations under Article 49 EC;
2. Dismisses the remainder of the action;
3. Orders the Commission of the European Communities to bear two thirds of the costs and the Federal Republic of Germany to bear one third of the costs;
4. Orders the French Republic to bear its own costs.
[Signatures]
* Language of the case: German.