Katoen Natie Bulk Terminals NV and General Services Antwerp NV v Belgische Staat.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2021:107
• Docket Number: C-407/19
• Date: 11 February 2021
• Celex Number: 62019CJ0407

Provisional text

JUDGMENT OF THE COURT (Fourth Chamber)

11 February 2021 (*)

(Reference for a preliminary ruling – Article 45 TFEU – Freedom of movement for workers – Article 49 TFEU – Freedom of establishment – Article 56 TFEU – Freedom to provide services – Carrying out of port activities – Dockers – Access to the profession and recruitment – Arrangements for the recognition of dockers – Dockers not part of the quota of workers provided for in national legislation – Limitation of the duration of the work contract – Mobility of dockers between different port areas – Workers carrying out logistical work – Safety certificate – Overriding reasons in the public interest – Safety in port areas – Protection of workers – Proportionality)

In Joined Cases C‑407/19 and C‑471/19,

TWO REQUESTS for a preliminary ruling under Article 267 TFEU from the Raad van State (Council of State, Belgium) (C‑407/19) and the Grondwettelijk Hof (Constitutional Court, Belgium) (C‑471/19), made by decisions of 16 May and 6 June 2019, received at the Court on 24 May and 20 June 2019, respectively, in the proceedings

Katoen Natie Bulk Terminals NV,

General Services Antwerp NV

v

Belgische Staat (C‑407/19),

and

Middlegate Europe NV

v

Ministerraad (C‑471/19),

intervening parties:

Katoen Natie Bulk Terminals NV,

General Services Antwerp NV,

Koninklijk Verbond der Beheerders van Goederenstromen (KVBG) CVBA,

MVH Logistics en Stuwadoring BV,

THE COURT (Fourth Chamber),

composed of M. Vilaras (Rapporteur), President of the Chamber, N. Piçarra, D. Šváby, S. Rodin and K. Jürimäe, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– General Services Antwerp NV, Katoen Natie Bulk Terminals NV and Middlegate Europe NV, by M. Lebbe and E. Simons, advocaten,

– the Belgian Government, by L. Van den Broeck, M. Jacobs and C. Pochet, acting as Agents, and by P. Wytinck, D. D’Hooghe and T. Ruys, advocaten,

– the European Commission, by A. Nijenhuis, S.L. Kalėda and B.‑R. Killmann, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 10 September 2020,

gives the following

Judgment

1 The requests for a preliminary ruling concern the interpretation, in Case C‑407/19, of Articles 34, 35, 45, 49, 56, 101, 102 and 106(1) TFEU and, in Case C‑471/19, of Articles 49 and 56 TFEU, Articles 15 and 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of the principle of equality.

2 The requests have been made in proceedings between, in Case C‑407/19, Katoen Natie Bulk Terminals NV and General Services Antwerp NV, on the one hand, and the Belgische Staat (Belgian State), on the other, and, in Case C‑471/19, Middlegate Europe NV and the Ministerraad (Council of Ministers, Belgium) concerning the validity of certain provisions of Belgian law relating to the organisation of dock work and, in particular, their compliance with EU law.

Belgian law

Law on employment contracts

3 Under Belgian law, the common regime applicable to employment contracts, in particular those of workers, is laid down by the Wet betreffende de arbeidsovereenkomsten (Law on employment contracts) of 3 July 1978 (Belgisch Staatsblad, 22 August 1978, p. 9277).

Law organising dock work

4 Article 1 of the Wet betreffende de havenarbeid (Law organising dock work) of 8 June 1972 (Belgisch Staatsblad, 10 August 1972, p. 8826), in the version applicable to the facts in the main proceedings (‘the Law organising dock work’), provides:

‘No one shall have dock work carried out in port areas by workers other than recognised dockers.’

5 Article 2 of that law provides:

‘The demarcation of port areas and of dock work areas as is established by the King … shall govern the application of this Law.’

6 Article 3 of that law is worded as follows:

‘The King shall establish the conditions and arrangements for the recognition of dockers, on the advice of the joint committee competent for the port area concerned.

…’

7 Under Article 3a of the same law:

‘On the advice of the joint committee competent for the port area concerned, the King may oblige employers, employing dockers in that area, to become affiliated to an employers’ organisation approved by it and which, as agent, fulfils all the obligations which, by virtue of the legislation on individual and collective labour and social legislation, arise for employers from the employment of dockers.

In order to be approved, the employers’ organisation referred to in the preceding subparagraph must already have the majority of the employers concerned among its members.’

Royal Decree of 1973

8 Article 1 of the Koninklijk besluit tot oprichting en tot vaststelling van de benaming en van de bevoegdheid van het Paritair Comité van het Havenbedrijf (Royal Decree establishing the Joint Ports Committee and determining its appointment and powers) of 12 January 1973 (Belgisch Staatsblad, 23 January 1973, p. 877), in the version applicable to the facts in the main proceedings (‘the Royal Decree of 1973’), provides:

‘A joint committee, to be known as the “Joint Ports Committee” (responsible for workers in general and their employers), is hereby established for:

all workers and their employers who, in port areas:

A. carry out, as a principal or ancillary activity, dock work, that is to say, the handling in any form of goods transported by sea-going ship or inland waterway vessel, by railway goods wagon or lorry, and the ancillary services connected with those goods, whether such operations take place in docks, on navigable waterways, on quays or in establishments engaged in the importation, exportation and transit of goods, as well as the handling in any form of goods transported by sea-going ship or inland waterway vessel to or from the quays of industrial establishments.

The following definitions shall apply:

1. Handling in any form of goods:

(a) goods: all goods, containers and means of transport associated therewith, with the exception only of:

– bulk transport of oil, (liquid) petroleum products and liquid raw materials for refineries, the chemical industry and storage and processing activities in oil installations;

– fish brought in by fishing vessels;

– pressurised and bulk liquid gases.

(b) handling: loading, unloading, stowing, unstowing, restowing, unloading in bulk, unmooring, classifying, sorting, sizing, stacking, unstacking and assembling and disassembling individual consignments.

2. Ancillary services connected with those goods: marking, weighing, measuring, cubing, checking, receiving, guarding (with the exception of security services provided by undertakings falling within the responsibility of the Joint Committee for Security and/or Surveillance Services on behalf of undertakings overseen by the Joint Ports Committee), delivering, sampling and sealing, lashing and unlashing.

…’

Royal Decree of 2004

9 Before it was amended by the Koninklijk besluit tot wijziging van het koninklijk besluit van 5 juli 2004 betreffende de erkenning van havenarbeiders in de havengebieden die onder het toepassingsgebied vallen van de wet van 8 juni 1972 betreffende de havenarbeid (Royal Decree amending the Royal Decree of 5 July 2004 on the recognition of dockers in port areas falling within the scope of the Law of 8 June 1972 organising dock work) of 10 July 2016 (Belgisch Staatsblad, 13 July 2016, p. 43879; ‘the Royal Decree of 2016’), Article 2 of the Koninklijk besluit betreffende de erkenning van havenarbeiders in de havengebieden die onder het toepassingsgebied vallen van de wet van 8 juni 1972 betreffende de havenarbeid (Royal Decree on the recognition of dockers in port areas falling within the scope of the Law of 8 June 1972 organising dock work) of 5 July 2004 (Belgisch Staatsblad, 4 August 2004, p. 58908) provided:

‘After they have been recognised, dockers shall be allocated, either under the “general quota” or under the “logistical quota”.

Dockers from the general quota shall be recognised to carry out any dock work within the meaning of Article 1 of [the Royal Decree of 1973].

Dockers from the logistical quota shall be recognised to carry out dock work within the meaning of Article 1 of [the Royal Decree of 1973] at places where goods, in preparation for their further distribution or dispatch, undergo processing which leads indirectly to demonstrable added value.’

10 The Royal Decree on the recognition of dockers in port areas falling within the scope of the Law of 8 June 1972 organising dock work, as amended by the Royal Decree of 2016 (‘the Royal Decree of 2004’), inter alia replaced the term ‘quota’ (‘contingent’) with the term ‘pool’ (‘pool’). Article 1 of the Royal Decree of 2004 provides:

‘(1) In each port area, dockers shall be recognised by the jointly composed committee, hereinafter referred to as “the Administrative Committee”, established within the joint subcommittee responsible for the port area concerned.

The Administrative Committee shall be composed of:

1. a chair and a vice-chair;

2. four full members and four substitute members designated by the employers’ organisations represented on the joint subcommittee;

3. four full members and four substitute members designated by the workers’ organisations represented on the joint subcommittee;

4. one or more secretaries.

The provisions of the Royal Decree of 6 November 1969 determining the general rules of operation of joint committees and subcommittees and the special rules laid down in Article 10 of this decree shall apply to the functioning of the Administrative Committee.

(2) An application for recognition shall be made in writing to the competent joint subcommittee using a model provided for that purpose.

The application shall indicate whether it is being made with a view to employment within or outside the pool.

(3) By way of derogation from the first...