Opinion of Advocate General Rantos delivered on 30 November 2023.

• Jurisdiction: European Union
• Celex Number: 62022CC0540
• ECLI: ECLI:EU:C:2023:937
• Date: 30 November 2023
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 30 November 2023 (1)

Case C‑540/22

SN and Others

v

Staatssecretaris van Justitie en Veiligheid

(Request for a preliminary ruling from the rechtbank Den Haag, zittingsplaats Middelburg (District Court, The Hague, sitting in Middelburg, Netherlands))

(Reference for a preliminary ruling – Freedom to provide services – Articles 56 and 57 TFEU – Posting of workers – Posting of Ukrainian nationals by an undertaking established in Slovakia to carry out work in the Netherlands – Duration exceeding 90 days in a 180-day period – Obligation on posted workers to hold a residence permit in the Netherlands – Limitation of the period of validity of the residence permit – Amount of the fees relating to the application for a residence permit – Restriction of the freedom to provide services – Overriding reasons in the public interest – Proportionality)

I. Introduction

1. Ukrainian workers were posted by a Slovak service provider to carry out activities in the Netherlands. The duration of those activities was extended, such that it exceeded 90 days in a 180-day period. In such a situation, Netherlands legislation provides that third-country nationals must hold a residence permit, to which conditions are attached concerning the period of validity of that permit and the cost of obtaining it.

2. Is such legislation compatible with Articles 56 and 57 TFEU? That is, in essence, the question asked by the rechtbank Den Haag, zittingsplaats Middelburg (District Court, The Hague, sitting in Middelburg, Netherlands).

3. That question will prompt the Court to clarify its case-law on the rules applicable to third-country nationals posted within the European Union. While the requirement to hold a residence permit undoubtedly constitutes a restriction of the freedom to provide services, it will be necessary to examine to what extent that restriction may meet an overriding reason in the public interest and be proportionate.

II. Legal framework

4. Article 2(1) of the Wet arbeid vreemdelingen (Law on the employment of foreign nationals) (2) of 21 December 1994 states:

‘An employer shall be prohibited from having work performed in the Netherlands by a foreign national who does not hold a work permit or who does not hold a single permit to work for that employer.’

5. Article 1 of the Besluit uitvoering Wet arbeid vreemdelingen (Decree implementing the Law on the employment of foreign nationals), in the version applicable on the date of the facts in the main proceedings, provides, in paragraph 1 thereof:

‘The prohibition laid down in Article 2(1) of the Law on the employment of foreign nationals shall not apply to a foreign national who, in the context of a cross-border provision of services, temporarily carries out work in the Netherlands for an employer established outside the Netherlands, in another Member State of the European Union, another State party to the Agreement on the European Economic Area or Switzerland, provided that:

(a) the foreign national satisfies all the residence, work permit and social security conditions to carry out work as a salaried worker of the employer in the country in which the latter is established;

(b) the foreign national carries out work similar to that which he is authorised to carry out in the country in which the employer is established;

(c) the foreign national is merely the replacement for another foreign national who has carried out similar work where the total duration of the agreed provision of services is not exceeded; and

(d) the employer actually pursues substantial activities within the meaning of Article 6(3)(a) of the Wet arbeidsvoorwaarden gedetacheerde werknemers in de Europese Unie (Law on employment conditions for posted workers in the European Union). ^[(3)^]’

6. Article 14 of the Wet tot algehele herziening van de Vreemdelingenwet (Law providing for a comprehensive review of the Law on foreign nationals) (4) of 23 November 2000 (‘the Law of 2000 on foreign nationals’) provides, in paragraph 1 thereof:

‘The Minister shall be authorised:

(a) to approve, reject or indeed not to consider applications for the grant of fixed-term residence permits;

…

3. The grant of a fixed-term residence permit shall be subject to restrictions relating to the objective for which the residence is authorised. Further conditions relating to the permit can also be laid down. …’

7. Article 3.31a(1) of the Besluit tot uitvoering van de Vreemdelingenwet 2000 (Vreemdelingenbesluit 2000) (Decree of 2000 on foreign nationals) (5) of 23 November 2000 is worded as follows:

‘An ordinary fixed-term residence permit may be issued subject to a restriction linked to the activity carried out in the context of the cross-border provision of services laid down in Article 4.6 of the Decree of 2022 implementing the Law on foreign nationals if the declaration referred to in Article 8 [of the Besluit arbeidsvoorwaarden gedetacheerde werknemers in de Europese Unie (Decree on employment conditions for posted workers in the European Union)] has been made, providing the information required in that article and in Article 11(3) [of the Decree on employment conditions for posted workers in the European Union].’

8. Under Article 3.4(1)(i) of the Decree of 2000 on foreign nationals:

‘The restrictions referred to in Article 14(3) of the [Law of 2000 on foreign nationals] are linked to:

…

i. the cross-border provision of services.’

9. Article 8(1) to (3) of the Law on employment conditions for posted workers in the European Union states:

‘1. A service provider which posts a worker to the Netherlands shall be required to make a declaration concerning that posting, in writing or electronically, to the Minister before the activity begins. The declaration by the service provider shall include:

(a) its identity;

(b) the identity of the recipient of the services and that of the posted worker;

(c) the contact person referred to in Article 7;

(d) the identity of the natural or legal person responsible for the payment of salaries;

(e) the nature and anticipated duration of the activity;

(f) the address of the place of work; and

(g) the contributions to the applicable social security schemes.

2. Where a service provider posting a worker to the Netherlands provides, before the activity begins, a written or electronic copy of the declaration provided for in paragraph 1 to the recipient of the services, that declaration shall include, at least, information relating to its identity and to that of the posted worker, the address of the place of work and the nature and duration of the activity.

3. The recipient of the service shall verify whether the copy of the declaration referred to in paragraph 2 includes the information stated in that paragraph and shall notify the Minister, in writing or electronically, of any inaccuracy or of the non-receipt of the copy, no later than five working days after the activity begins.’

10. Article 3(2) of the Decree on employment conditions for posted workers in the European Union provides:

‘The Minister is empowered and required to provide to the Immigration and Naturalisation Service, on request and free of charge, information relating to the service providers, service recipients, contact persons, persons responsible for the payment of salaries and posted workers which have been processed in connection with Article 8 of the Law, including their national ID number, in so far as that information is required for purposes connected with the implementation of the Law of 2000 on foreign nationals.’

11. Article 11(3) of that decree provides:

‘A service provider which posts a foreign national for the purposes of Article 1 of the Decree implementing the Law on the employment of foreign nationals shall provide, in addition to the information stated in Article 8(1) of that law, the end date of the period of lawful employment stated in the document on the basis of which the foreign national is authorised to carry out work as a salaried worker in the issuing Member State.’

12. Pursuant to Article 3.58(1)(i) of the Decree of 2000 on foreign nationals and Part B5/3.1 of the Vreemdelingencirculaire 2000 (Circular of 2000 on foreign nationals) (6) of 2 March 2001, in the version applicable on the date of the facts of the main proceedings, the Immigratie- en Naturalisatiedienst (Immigration and Naturalisation Service, Netherlands; ‘the IND’) shall issue the residence permit for a cross-border provision of services for a period of validity equal to the duration of the activity referred to in Article 1(2) of the Decree implementing the Law on foreign nationals.

13. Article 3.34 of the Voorschrift Vreemdelingen 2000 (Regulation of 2000 on foreign nationals) (7) of 18 December 2000 states that a foreign national who does not hold a valid temporary residence permit for the objective specified in the application for residence is to be liable to fees in connection with the processing of an application for the grant, amendment or renewal of a residence permit for the cross-border provision of services.

III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

14. The applicants, who are Ukrainian nationals, hold a Slovak temporary residence permit for the purpose of employment. They work for the Slovak company ROBI spol s. r. o., which posted them to a Netherlands client, the company Ivens NV, to carry out metallurgical activities at the port of Rotterdam (Netherlands). ROBI made an advance declaration to the Uitvoeringsinstituut werknemersverzekeringen (Employee Insurance Agency, Netherlands) of the activities that were to be carried out by the applicants and the period over which they were to complete them. (8) Subsequently, ROBI informed the Netherlands authorities that the duration of those activities would exceed that provided for in Article 21(1) of the Convention implementing the...