Action brought on 3 October 2018 — Republic of Poland v European Parliament and Council of the European Union

(Case C-626/18)

Language of the case: Polish

Parties

Applicant: Republic of Poland (represented by B. Majczyna, acting as Agent)

Defendants: European Parliament, Council of the European Union

Form of order sought

The applicant claims that the Court should:

annul Article 1(2)(a), Article 1(2)(b) and Article 3(3) of Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services; 1

order the European Parliament and the Council of the European Union to pay the costs of the proceedings.

In the alternative, in the event that the Court of Justice considers that the contested provisions of Directive (EU) 2018/957 cannot be separated from the rest of that directive without altering its substance, the Republic of Poland claims that the Court should annul Directive (EU) 2018/957 in its entirety.

Pleas in law and main arguments

The Republic of Poland raises the following pleas in law against the contested provisions of Directive 2018/957:

1.    Plea in law alleging that the Directive introduces restrictions on freedom to provide services within the European Union in so far as concerns nationals of Member States who are established in a Member State other than that of the person for whom the services are intended, prohibited on the basis of Article 56 TFEU, by:

(a)    requiring Member States to ensure remuneration of posted workers, including overtime rates, established in accordance with the law or practice of the Member State of the posting (Article 1(2)(a)),

(b)    requiring Member States to guarantee posted workers in principle all the applicable terms and conditions established in accordance with the law or practice of the Member State of the posting, when the effective duration of one worker’s posting or the cumulative duration of the posting periods of workers which take place for the performance of the same task exceeds 12 months, and — if the service provider provides a reasoned justification — 18 months (Article 1(2)(b)),

2.    Plea in law alleging infringement of Article 53(1) and Article 62 TFEU, by the adoption, on the basis of those provisions, of measures which are not intended to facilitate the exercise of non-salaried activities (facilitation of the provision of cross-border services) but which are contrary to that objective,

3.    Plea in law alleging infringement of Article 53(1) and Article 62 TFEU, read in conjunction with Article 58(1) TFEU, on the ground that the contested directive is applicable to the road transport sector (Article 3(3)).

The Republic of Poland claims, in particular, that the principal objective of the contested provisions on the remuneration of posted workers is to restrict the freedom to provide services by increasing the burden on service providers, with a view to eliminating their competitive advantage resulting from lower pay rates applicable in their country of establishment. The amendments introduced lead to discrimination against cross-border service providers. Those amendments are not justified by overriding reasons in the public interest, in particular considerations concerning the social protection of workers and fair competition. They also constitute an infringement of the requirement of proportionality.

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1 OJ 2018 L 173, p. 16.