Case C‑91/13

Essent Energie Productie BV

v

Minister van Sociale Zaken en Werkgelegenheid

(Request for a preliminary ruling
from the Raad van State (Netherlands))

(EEC-Turkey Association Agreement — Article 41(1) of the Additional Protocol and Article 13 of Decision No 1/80 — Scope — Introduction of new restrictions on the freedom of establishment, the freedom to provide services and the conditions for access to employment — Prohibition — Freedom to provide services — Articles 56 TFEU and 57 TFEU — Posting of workers — Nationals of non-Member States — Requirement for a work permit for the deployment of labour)

Summary — Judgment of the Court (Second Chamber), 11 September 2014

1.        International agreements — EEC-Turkey Association Agreement — Freedom to provide services — Standstill rule in Article 41(1) of the Additional Protocol — Direct effect — Scope

(Additional Protocol to the EEC-Turkey Association Agreement, Art. 41(1))

2.        Questions referred for a preliminary ruling — Jurisdiction of the Court — Identification of the relevant aspects of EU law — Reformulation of the questions

(Art. 267 TFEU)

3.        Freedom to provide services — Restrictions — Posting of workers who are nationals of non-member States by an undertaking established in another Member State — National legislation requiring a work permit for the deployment of labour — Not permissible — Disproportionate nature of the requirement at issue

(Arts 56 TFEU and 57 TFEU)

1.        See the text of the decision.

(see paras 21, 31-34)

2.        See the text of the decision.

(see para. 36)

3.        Articles 56 TFEU and 57 TFEU must be interpreted as precluding legislation of a Member State under which, where workers who are nationals of non-member countries are made available by an undertaking established in another Member State to a user undertaking established in the first Member State, which uses them to carry out work on behalf of another undertaking established in the same Member State, such making available is subject to the condition that those workers have been issued with work permits.

Although a Member State must be accorded both the power to check that an undertaking, established in another Member State and providing a user undertaking, established in the first Member State, with a service consisting in the making available of workers who are nationals of non-member countries, is not availing itself of the freedom to provide services for a purpose other than the provision of the service in question, and the possibility of taking the necessary control measures in that regard, the exercise of that power may not, however, allow that Member State to impose disproportionate requirements. A Member State retaining on a permanent basis a requirement for a work permit for nationals from non-members countries who are made available to an undertaking established in that Member State by an undertaking established in another Member State exceeds what is necessary to achieve the objective pursued by the legislation.

In that regard, an obligation imposed on a service-providing undertaking to provide the authorities of a host Member State with information showing that the situation of the workers concerned is lawful as regards matters such as residence, work permit and social coverage in the Member State in which that undertaking employs them would give those authorities, in a less restrictive but just as effective a manner as the requirement for a work permit, a guarantee that the situation of those workers is lawful and that they are carrying on their main activity in the Member State in which the service-providing undertaking is established.

Similarly, a measure which would be just as effective and less restrictive than the requirement for a work permit would be an obligation imposed on a service-providing undertaking to report beforehand to the authorities of the host Member State the presence of one or more posted workers, the anticipated duration of their presence and the provision or provisions of services justifying the posting. It would enable those authorities to monitor compliance with national social welfare legislation during the deployment, while at the same time taking account of the obligations by which the undertaking is already bound under the social welfare legislation applicable in the Member State of origin.

(see paras 55-57, 59, 60, operative part)