With a view to affording protection to workers, the most favourable social legislation of a given Member State is applicable to all employed persons working within its territory. By contrast, additional obligations of a social and administrative nature which are imposed on undertakings by the legislation of the host Member State are justified only where workers temporarily deployed there enjoy equivalent social protection in their State of origin.
The French construction companies Arblade and Leloup carried out building works in Belgium. Between 1991 and 1993 they deployed workers on the sites concerned to carry out the works in question.
In the course of checks carried out, the representatives of the Belgian Social Law Inspectorate requested the production of various social documents provided for under the Belgian legislation.
Arblade and Leloup considered that they were not obliged to produce those documents. Prosecutions were therefore brought against them before the Tribunal Correctionnel (Criminal Court). The two undertakings argue that they have complied with the applicable French legislation and that the Belgian legislation and regulations constitute an obstacle to freedom to provide services.
The Tribunal Correctionnel has referred to the Court questions concerning the compatibility of the Belgian provisions with Community law.
The Court considers, as a preliminary point, that the categorisation of the Belgian laws in issue as "public-order legislation" does not mean that they are, as such, exempt from compliance with Community law.
The Court recapitulates its case-law on the need to eliminate all discrimination against providers of services who are established in another Member State and all restrictions which are liable to impede the activities of such providers where they lawfully provide similar services in their country of origin. The Court states, in particular, that although the social protection of workers may constitute an overriding reason in the public interest justifying a limitation on the fundamental principle of freedom to provide services, considerations of a purely administrative nature do not justify a derogation from that principle.
According to the Court, Member States may provide (by means of legislation or collective agreements) for the payment of minimum wages to workers deployed, even on a temporary basis, within their territory, regardless of the country in which the employer is established. The application of that obligation is subject to review by the national courts. However, it may be imposed only by appropriate means; criminal prosecutions may be brought only in so far as the provisions allegedly infringed are sufficiently clear and precise.
Where an employer is required to pay employer's contributions, the national court must ascertain whether they confer a social advantage on the workers concerned (namely, the employees deployed in the State in which the works are carried out) and establish that the employees in question do not already enjoy essentially similar protection in the Member State in which the undertaking is established. If they do, such an obligation will, in reality, place the employer concerned on an unequal footing compared with employers established in the host Member State, and may deter undertakings from providing their services in that State. In order to be permissible, the obligation to pay such contributions must apply to all service providers operating within the national territory.
Lastly, the Court notes that Arblade and Leloup are subject to obligations in France which, if not identical, are at least comparable as regards the principle of keeping social documents covering the same periods and the same workers. The obligation to keep additional documents in the host Member State involves expenses and administrative burdens and therefore constitutes, according to the Court, a restriction on freedom to provide services. Whilst the protection of workers, particularly in matters relating to health, may justify the keeping of certain documents on site, in order that they may be available for inspection by officials of the host Member State and thereby facilitate the latter's task, the national courts must verify whether the objective pursued may not be achieved by the production, within a reasonable time, of similar documents kept in the Member State of establishment (or of copies thereof kept on site or in an accessible place).
At all events, the restriction on freedom to provide services which the obligation to keep documents available for inspection by the national supervisory authorities represents can never be justified by the need to make it generally easier for the State authorities to perform their supervisory task (in the present case, the Court considers that there is no justification for the need to retain social documents within the national territory for a period of five years, or for the need to retain them at the residence of a natural person).
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