Criminal proceedings against Vítor Manuel dos Santos Palhota and Others.

• Jurisdiction: European Union
• Celex Number: 62008CJ0515
• ECLI: ECLI:EU:C:2010:589
• Date: 07 October 2010
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-515/08

Case C-515/08

Criminal proceedings

against

Vítor Manuel dos Santos Palhota and Others

(Reference for a preliminary ruling from the

rechtbank van eerste aanleg te Antwerpen)

(Freedom to provide services – Articles 56 TFEU and 57 TFEU – Posting of workers – Restrictions – Employers established in another Member State – Registration of prior declaration of posting – Social or labour documents – Equivalent to those provided for under the law of the host Member State – Copy – Keeping available to the national authorities)

Summary of the Judgment

1. Freedom to provide services – Restrictions – Posting of workers in the framework of the provision of services

(Arts 56 TFEU and 57 TFEU)

2. Freedom to provide services – Restrictions – Posting of workers in the framework of the provision of services

(Arts 56 TFEU and 57 TFEU)

1. Articles 56 TFEU and 57 TFEU preclude legislation of a Member State requiring an employer, established in another Member State and posting workers to the territory of the first Member State, to send a prior declaration of posting, in so far as the employer must be notified of a registration number for the declaration before the planned posting may take place and the national authorities of that first State have a period of five working days from receipt of the declaration to issue that notification.

Since such a notification must be issued before the posting can be carried out by an employer and is made only after verification by the national authorities of the conformity of the prior declaration of posting, a procedure of that kind must be regarded as an administrative authorisation procedure, which may, in particular by reason of the period laid down for issuing the notification, impede the planned posting and, consequently, the provision of services by the employer of the workers who are to be posted, in particular where the services to be provided necessitate a certain speed of action. It follows that the requirement to send a prior declaration of posting and for notification of the registration number for that declaration constitutes a restriction on the freedom to provide services within the meaning of Article 56 TFEU.

Such a restriction is not justified by the aim of protecting workers. Admittedly, sending a prior declaration of posting is a suitable means of communicating the necessary information to the national authorities. However, a registration and notification procedure, by virtue of which the declaration in question assumes the nature of an administrative authorisation procedure, goes beyond what is necessary in order to ensure that posted workers are protected, since a prior declaration enables compliance with the social welfare and wages legislation of the host Member State to be monitored during the posting, thus constituting a more proportionate means of attaining that objective than such authorisation or a prior check.

(see paras 34, 36, 40, 52-53, 61, operative part)

2. Articles 56 TFEU and 57 TFEU do not preclude national legislation requiring an employer, established in another Member State and posting workers to the territory of the first Member State, to keep available to the national authorities of the latter, during the posting, copies of documents equivalent to the social or labour documents required under the law of the first Member State and also to send those copies to the authorities at the end of that period.

Admittedly, it cannot be ruled out that those obligations give rise to additional expenses and administrative and economic burdens for undertakings established in another Member State, with the result that such undertakings may not be on an equal footing, from the standpoint of competition, with undertakings employing persons normally working on national territory. However, keeping copies of the equivalent documents is appropriate to enable the authorities to monitor compliance with the terms and conditions of employment of posted workers as set out in Article 3(1) of Directive 96/71, concerning the posting of workers in the framework of the provision of services and, therefore, to ensure that the latter are protected. Such measures are therefore proportionate to the aim of protecting workers.

(see paras 42, 57, 60-61, operative part)

JUDGMENT OF THE COURT (Second Chamber)

7 October 2010 (*)

(Freedom to provide services – Articles 56 TFEU and 57 TFEU – Posting of workers – Restrictions – Employers established in another Member State – Registration of prior declaration of posting – Social or labour documents – Equivalent to those provided for under the law of the host Member State – Copy – Keeping available to the national authorities)

In Case C‑515/08,

REFERENCE for a preliminary ruling under Article 234 EC from the rechtbank van eerste aanleg te Antwerpen (Belgium), made by decision of 3 November 2008, received at the Court on 26 November 2008, in the criminal proceedings against

Vítor Manuel dos Santos Palhota,

Mário de Moura Gonçalves,

Fernando Luis das Neves Palhota,

Termiso Limitada,

THE COURT (Second Chamber),

composed of J.N. Cunha Rodrigues, President of the Chamber, A. Rosas, U. Lõhmus (Rapporteur), A. Ó Caoimh and A. Arabadjiev, Judges,

Advocate General: P. Cruz Villalón,

Registrar: M.-A. Gaudissart, Head of Unit,

having regard to the written procedure and further to the hearing on 25 February 2010,

after considering the observations submitted on behalf of:

– Mr dos Santos Palhota, Mr de Moura Gonçalves, Mr das Neves Palhota and Termiso Limitada, by K. Stappers, advocaat,

– the Belgian Government, by L. Van den Broeck, acting as Agent, and by V. Pertry and H. Gilliams, advocaten,

– the Danish Government, by J. Bering Liisberg and R. Holdgaard, acting as Agents,

– the German Government, by M. Lumma and B. Klein, acting as Agents,

– the Greek Government, by K. Georgiadis, I. Bakopoulos and M. Michelogiannaki, acting as Agents,

– the French Government, by G. de Bergues and A. Czubinski, acting as Agents,

– the European Commission, by E. Traversa, W. Roels and I. V. Rogalski, acting as Agents,

– the EFTA Surveillance Authority, by B. Alterskjær and O. Einarsson, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 5 May 2010,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Articles 56 TFEU and 57 TFEU.

2 The reference has been made in criminal proceedings brought by the Public Prosecutor against Mr dos Santos Palhota, Mr de Moura Gonçalves, Mr das Neves Palhota and the company Termiso Limitada, established in Portugal (together ‘the defendants in the main proceedings’), for failing, in particular, to draw up the individual accounts provided for under the Belgian legislation in respect of 53 Portuguese workers posted to Belgium.

Legal context

European Union legislation

3 Article 1(1) of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1) reads:

‘This Directive shall apply to undertakings established in a Member State which, in the framework of the transnational provision of services, post workers, in accordance with paragraph 3, to the territory of a Member State.’

4 Article 3(1) of that directive reads:

‘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, insofar as they concern the activities referred to in the Annex:

(a) maximum work periods and minimum rest periods;

(b) minimum paid annual holidays;

(c) the minimum rates of pay, including overtime rates; this point does not apply to supplementary occupational retirement pension schemes;

(d) the conditions of hiring-out of workers, in particular the supply of workers by temporary employment undertakings;

(e) health, safety and hygiene at work;

(f) protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people;

(g) equality of treatment between men and women and other provisions on non-discrimination.’

National legislation

5 Article 8 of the Law of 5 March 2002 transposing Directive 96/71 and establishing a simplified regime for the keeping of social documents by undertakings posting workers to Belgium (Belgisch Staatsblad, 13 March 2002, ‘the Law of 5 March 2002’) provides that employers satisfying the conditions referred to in Article 6b(2) of Royal Decree No 5 of 23 October 1978 concerning the keeping of social documents (Belgisch Staatsblad, 2 December 1978, ‘Royal Decree No 5’) are not required, during the period fixed on the basis of that paragraph, to draw up, inter alia, the pay slip referred to in Article 15 of the Law of 12 April 1965 on the protection of workers’ remuneration (‘the payslip’).

6 Article 9 of the Law of 5 March 2002 inserts in Royal Decree No 5 Chapter IIa containing, inter alia, Article 6b referred to, which sets out the simplified regime introduced by that law (‘the simplified regime’). For the purposes of that chapter, Article 6b(1) defines employers, within the meaning of Royal Decree No 5, as those who employ within Belgian territory workers who either normally work in one or more countries other than the Kingdom of Belgium or were recruited in a country other than the Kingdom of Belgium.

7 Under Article 6b(2), employers are relieved, during a specified period, of the requirement to draw up...