Posting of workers. The Court inflicts a snub on the Commission
(B2) On July 18, the Court of Justice condemned Germany for its legislation on the posting of workers (case C-490/04) but refused to fully follow the European Commission in its argument, inflicting on the European executive a harsh little lesson on how to interpret the freedom to provide services in the face of social obligations. This judgment thus confirms the accusation of partiality, made by the European Parliament on this file.
A three-point indictment
The Commission had drawn up an indictment against Germany on three points:
- - foreign companies are required to contribute to the German leave fund even if the workers essentially benefit from comparable protection in accordance with the legislation of the State in which their employer is established (Article 1, § 3 of the Posting of Workers Act (the “AEntG”);
- - foreign companies are required to have the employment contract or the necessary documents translated into German, the payslips, the documents proving the working hours and the payment of wages as well as any other document required by the German authorities ( 2 AEntG);
- - foreign temporary employment companies are required to declare not only each secondment of a worker to a user company in Germany, but also each job assigned by the latter on a construction site (Article 3, § 2, of the AEntG).
Only one reason for the offense is retained: temporary work companies
The Court accepted only the last ground. Imposing on foreign companies an obligation to declare, not only each time a worker is made available but also each job, while companies of the same type established in Germany are not subject to it, creates "discrimination against service providers established outside Germany.
It also rejected several objections of inadmissibility of form, relied on by the German Government, in particular the fact that the Commission based its action only on Article 49 of the Treaty (freedom to provide services) and not on the 1996 on the posting of workers; on the duration of the pre-litigation procedure (6 years between the first formal notice and the referral to the Court); as well as the lack of identity between the reasoned opinion and the referral to the Court.
The Court refuses to consider as an obstacle the contributions to the paid leave funds...
On paid leave, the judges seem a little overwhelmed by the Commission's attitude and ask it to read its case law carefully. In L'Finalarte judgment of October 25, 2001, in fact, the Court had already laid down the principle of legitimacy of this obligation to contribute to a paid leave fund under two conditions: 1° that workers do not benefit from essentially comparable protection under the legislation of the State of origin of their employer; 2° that the application of this regulation is proportionate to the objective of general interest pursued (the social protection of workers). In the present case, the Court considers that the Commission has not really proved that these two conditions are not met (paragraph 11).
The Commission cites only one case — Denmark — where workers enjoy comparable protection; cases settled by an administrative agreement between the two countries but not enough, according to the Commission, to ensure complete legal certainty, which prohibits the rights arising from the treaty from depending on the conclusion of agreements of an administrative nature.
The Court therefore clarifies for the Commission its interpretation of this principle of legal certainty. Taking up the Commission's communication of 2003 (!), it considers that "in the context of the transnational posting of workers, the difficulties likely to arise when comparing national paid leave schemes cannot be resolved - in l 'lack of harmonization in this area – without effective cooperation between the administrations of the Member States' (point 14).
... as well as the obligation to translate and keep documents!
On the translation and preservation of documents in the workplace, the Court considers that there is indeed a restriction of services. But that this is justified by "an objective of general interest linked to the social protection of workers" (point 31).
By requiring that the documents in question be kept on site in the language of the host Member State, the German law "aims to enable the competent authorities of that State to carry out, at the workplace, the checks necessary to guarantee compliance with national provisions on the protection of workers,” said the Court. 'This type of on-the-spot checks would in practice become excessively difficult, if not impossible, if these documents could be presented in the language of the Member State in which the employer is established, that language not necessarily being used by the officials of the host Member State' (point 32).
Moreover, the Court finds that this obligation, limited "to four documents only, (…) which are not excessively long and for the drafting of which standard forms are generally used, (…) does not entail, for the "employer posting workers to Germany, a heavy administrative or financial burden" (point 37). And there are no, according to the judges, “less restrictive measures”.
The Court thus clarifies its past case-law: imposing the retention of certain documents when the employer no longer employs workers in the host State (which was the case in the Arblade case) is contrary to the freedom to provide services; impose it for the duration of the effective occupation of the posted workers and the duration of the site is compatible (points 35 and 36).
The Court gives States the means to control social legislation
The judges thus give reason to the position of certain governments – Germany was in this case supported by France – and of the European Parliament who wish to retain for the Member States certain means of control over the application of social legislation.
(NGV)