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Language of document : ECLI:EU:C:1999:575

JUDGMENT OF THE COURT

23 November 1999 (1)

(Freedom to provide services Temporary deployment of workers for thepurposes of performing a contract Restrictions)

In Joined Cases C-369/96 and C-376/96,

REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234EC) by the Tribunal Correctionnel de Huy (Belgium) for a preliminary ruling in thecriminal proceedings pending before that court against

Jean-Claude Arblade,

Arblade & Fils SARL, as the party civilly liable (C-369/96),

and

Bernard Leloup,

Serge Leloup,

Sofrage SARL, as the party civilly liable (C-376/96),

on the interpretation of Articles 59 of the EC Treaty (now, after amendment,Article 49 EC) and 60 of the EC Treaty (now Article 50 EC),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, J.C. Moitinho de Almeida,D.A.O. Edward (Rapporteur) and R. Schintgen (Presidents of Chambers),J.-P. Puissochet, G. Hirsch, P. Jann, H. Ragnemalm and M. Wathelet, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: D. Louterman-Hubeau, Principal Administrator,

after considering the written observations submitted on behalf of:

J.-C. Arblade and Arblade & Fils SARL (C-369/96) and B. and S. Leloupand Sofrage SARL (C-376/96), by D. Ketchedjian and E. Jakhian,respectively of the Paris and Brussels Bars,

the Belgian Government (C-369/96 and C-376/96), by J. Devadder, GeneralAdviser in the Ministry of Foreign Affairs, External Trade and DevelopmentAid, acting as Agent, assisted by B. van der Walle de Ghelcke, of theBrussels Bar,

the German Government (C-369/96 and C-376/96), by E. Röder,Ministerialrat in the Federal Ministry of Economic Affairs, and B. Kloke,Oberregierungsrat in that Ministry, acting as Agents,

the Austrian Government (C-369/96 and C-376/96), by M. Potacs, of theFederal Ministry of Foreign Affairs, acting as Agent,

the Finnish Government (C-369/96), by T. Pynnä, Legal Adviser in theMinistry of Foreign Affairs, acting as Agent,

the Commission of the European Communities (C-369/96 and C-376/96), byA. Caeiro, Legal Adviser, and M. Patakia, of its Legal Service, acting asAgents,

having regard to the Report for the Hearing,

after hearing the oral observations of J.-C. Arblade and Arblade & Fils SARL andB. and S. Leloup and Sofrage SARL, represented by D. Ketchedjian, of the BelgianGovernment, represented by B. van de Walle de Ghelcke, assisted byJ.-C. Heirman, social inspector, acting as an expert, of the German Government,represented by E. Röder, of the Netherlands Government, represented by J.S. vanden Oosterkamp, Assistant Legal Adviser in the Ministry of Foreign Affairs, actingas Agent, of the Finnish Government, represented by T. Pynnä, of the UnitedKingdom Government, represented by J.E. Collins, Assistant Treasury Solicitor,

acting as Agent, assisted by D. Wyatt QC, and of the Commission, represented byA. Caeiro and M. Patakia, at the hearing on 19 May 1998,

after hearing the Opinion of the Advocate General at the sitting on 25 June 1998,

gives the following

Judgment

1.

By two judgments of 29 October 1996, received at the Court on 25 November 1996(C-369/96) and 26 November 1996 (C-376/96) respectively, the TribunalCorrectionnel de Huy (Huy Criminal Court) referred to the Court for a preliminaryruling under Article 177 of the EC Treaty (now Article 234 EC), in each of thosecases, two questions on the interpretation of Articles 59 of the EC Treaty (now,after amendment, Article 49 EC) and 60 of the EC Treaty (now Article 50 EC).

2.

Those questions were raised in the course of two prosecutions brought against, first,Jean-Claude Arblade, in his capacity as manager of the French company Arblade& Fils SARL, and Arblade & Fils SARL itself, as the civilly liable party(hereinafter together referred to as 'Arblade) (C-369/96), and, second, Serge andBernard Leloup, in their capacity as managers of the French company SofrageSARL, and Sofrage SARL itself, as the civilly liable party (hereinafter togetherreferred to as 'Leloup) (C-376/96), for failure to comply with various socialobligations provided for by Belgian legislation, an offence punishable by penaltiesunder Belgian public-order legislation.

The national legislation

3.

The obligations concerning the drawing-up, keeping and retention of social andlabour documents, minimum remuneration in the construction industry and thesystems of 'timbres-intempéries (bad weather stamps) and 'timbres-fidélité(loyalty stamps), and the monitoring of compliance with those obligations, areimposed by the following legislation:

the Law of 8 April 1965 introducing labour regulations (Moniteur belge of5 May 1965),

the Law of 16 November 1972 concerning the Labour Inspectorate(Moniteur belge of 8 December 1972),

Royal Decree No 5 of 23 October 1978 concerning the keeping of socialdocuments (Moniteur belge of 2 December 1978),

the Royal Decree of 8 March 1990 concerning the keeping of socialdocuments (Moniteur belge of 27 August 1980, as rectified in Moniteur belgeof 10 and 16 June 1981),

the Collective Labour Agreement of 28 April 1988, concluded under theaegis of the Construction Sector Joint Committee, concerning the award of'timbres-fidélité and 'timbres-intempéries ('the CLA of 28 April 1988)and rendered compulsory by the Royal Decree of 15 June 1988 (Moniteurbelge of 7 July 1988, p. 9897),

the Royal Decree of 8 March 1990 concerning the keeping of individualrecords for workers (Moniteur belge of 27 March 1990), and

the Collective Labour Agreement of 28 March 1991 concluded under theaegis of the Construction Sector Joint Committee, concerning workingconditions ('the CLA of 28 March 1991) and rendered compulsory by theRoyal Decree of 22 June 1992 (Moniteur belge of 14 March 1992, p. 17968).

4.

Various aspects of that legislation are relevant for the purposes of the presentjudgment.

5.

First, a system has been organised for monitoring compliance with the legislationrelating to the keeping of social documents, hygiene and medical care in theworkplace, employment protection, labour rules and employment relationships,safety in the workplace, social security and social assistance. Employers are underan obligation not to hinder such surveillance (Royal Decree No 5 of 23 October1978 and the Law of 16 November 1972).

6.

Second, in view of the compulsory effect given to the CLA of 28 March 1991 byroyal decree, construction undertakings carrying out work in Belgium are required,whether or not they are established in that State, to pay their workers the minimumremuneration fixed by that agreement.

7.

Third, under the CLA of 28 April 1988, which has been given compulsory effect byroyal decree, such undertakings are required to pay, in relation to their workers,contributions to the 'timbres-intempéries and 'timbres-fidélité schemes.

8.

In that connection, the employer is required to issue to each worker an 'individualrecord (Article 4(3) of Royal Decree No 5 of 23 October 1978). That record,which may be provisional or definitive, must contain the information listed in theRoyal Decree of 8 March 1990. It must be validated by the Construction Workers'Subsistence Protection Fund, which will do so only if the employer has paid, inparticular, all the contributions due in respect of 'timbres-intempéries and'timbres-fidélité, together with the sum of BEF 250 for each record submitted.

9.

Fourth, the employer is required to draw up labour rules which are binding on himvis-à-vis his workers and to keep a copy of those rules in each place where heemploys workers (Law of 8 April 1965).

10.

Fifth, the employer is required to keep a 'staff register in respect of all hisworkers (Article 3(1) of the Royal Decree of 8 August 1980); this must containvarious items of compulsory information (Articles 4 to 7 of that decree).

11.

In addition, an employer who employs workers in more than one workplace mustkeep a 'special staff register in each of those places apart from the place in whichhe keeps the 'staff register (Article 10 of the Royal Decree of 8 August 1980). In certain circumstances, employers who employ workers to carry out constructionworks are exempt from the obligation to keep the special register in eachworkplace, provided that they maintain, in respect of each employee working there,an 'individual document containing the same information as that contained in thespecial register (Article 11 of that decree).

12.

The employer is also required to draw up, in relation to each worker, an'individual account (Article 3(2) of the Royal Decree of 8 August 1980). Thatdocument must contain various items of compulsory information concerning, inparticular, the worker's remuneration (Articles 13 to 21 of the Royal Decree of8 August 1980).

13.

Sixth, the staff register and the individual accounts must be kept either at one ofthe workplaces, or at the address in Belgium at which the employer is registeredin the records of a body responsible for the collection of social securitycontributions, or at the place of residence or registered office of the employer inBelgium, or, in the absence thereof, at the place of residence in Belgium of anatural person who, as the employer's agent or servant, keeps the staff register andthe individual accounts. In addition, the employer is required to give advancenotice, by registered letter, to the Chief District Inspector of the Social LawInspectorate of the Ministry of Employment and Labour for the district in whichthose documents are to be kept (Articles 8, 9 and 18 of the Royal Decree of8 August 1980).

14.

According to the information supplied to the Court by the Belgian Government atthe hearing, an employer established in another Member State who employsworkers in Belgium is required in any event to appoint an agent or servant to keepthe relevant documents either at one of the workplaces or at his place of residencein Belgium.

15.

Seventh, the employer is required to retain, for a period of five years, the socialdocuments comprising the staff register and the individual accounts, in the form oforiginals or copies thereof, either at the address in Belgium at which he isregistered in the records of a body responsible for the collection of social security

contributions, or at the seat of the approved employers' social secretariat to whichhe is affiliated, or at the place of residence or registered office of the employer inBelgium, or, in the absence thereof, at the place of residence in Belgium of anatural person who, as the employer's agent or servant, keeps the staff register andthe individual accounts. However, if the employer ceases to employ workers inBelgium, he is required to keep those documents at his place of residence orregistered office in Belgium or, failing that, at the place of residence of a naturalperson in Belgium. The employer is required to give advance notice to the ChiefDistrict Inspector of the Social Law Inspectorate of the Ministry of Employmentand Labour for the district in which the documents are to be kept (Articles 22 to25 of the Royal Decree of 8 August 1980).

16.

The abovementioned obligations concerning the retention of social documentsbecome applicable once an employer established in another Member State ceasesto employ workers in Belgium.

17.

Eighth, criminal penalties for infringement of the aforesaid provisions are laid downin Article 11 of Royal Decree No 5 of 23 October 1978, Article 25(1) of the Lawof 8 April 1965, Article 15(2) of the Law of 16 November 1972, Articles 56 and 57of the Law of 5 December 1968 on agreements and joint committees and Article16(1) of the Law of 7 January 1958, as amended by the Law of 18 December 1968concerning subsistence protection funds.

18.

Lastly, all legislation providing for the protection of workers constitutes public-order legislation within the meaning of the first paragraph of Article 3 of theBelgian Civil Code, to which all persons within the territory of Belgium aretherefore subject.

The main proceedings

19.

Arblade and Leloup carried out works in connection with the construction of acomplex of silos, with a capacity of 40 000 tonnes, for the storage of whitecrystallised sugar on the site belonging to Sucrerie Tirlemontoise at Wanze inBelgium.

20.

To that end, Arblade deployed a total of 17 workers on that site from 1 Januaryto 31 May 1992 and from 26 April to 15 October 1993. Leloup likewise deployed9 workers from 1 January to 31 December 1991, from 1 March to 31 July 1992 andfrom 1 March to 31 October 1993.

21.

In the course of checks carried out on the site in 1993, the representatives of theBelgian Social Law Inspectorate requested Arblade and Leloup to produce varioussocial documents provided for under the Belgian legislation.

22.

Arblade and Leloup considered that they were not obliged to produce thedocuments requested. They maintained, first, that they had complied with all theFrench legislation and, second, that the Belgian legislation and rules in issue werecontrary to Articles 59 and 60 of the Treaty. Leloup did produce, on 2 December1993, the staff register kept pursuant to French law.

23.

Arblade and Leloup were prosecuted before the Tribunal Correctionnel de Huy fornon-compliance with the abovementioned obligations imposed by the Belgianlegislation.

24.

The Tribunal Correctionnel de Huy considered that an interpretation ofCommunity law was needed in the two cases; it therefore decided to stayproceedings and, in Case C-369/96, to refer the following questions to the Court:

'1. Must Articles 59 and 60 of the Treaty be interpreted as meaning that theypreclude a Member State from requiring an undertaking established inanother Member State and temporarily carrying out work in the first State:

(a) to keep social documents (staff register and individual account) at theBelgian residence of a natural person who is to keep those documentsin his capacity as agent or servant of that undertaking;

(b) to pay to its workers the minimum remuneration fixed by collectivelabour agreement;

(d) to issue an individual record for each worker;

(e) to appoint an agent or servant responsible for keeping the individualaccounts of employees;

(f) to pay timbres-intempéries and timbres-fidélité contributions foreach worker,

where that undertaking is already subject to requirements which, while notidentical, are at least comparable as regards their objective, in respect of thesame workers and for the same periods of activity, in the State in which itis established?

2. Can Articles 59 and 60 of the Treaty of 25 March 1957 establishing theEuropean Community render inoperative the first paragraph of Article 3 ofthe Civil Code relating to Belgian public-order legislation?

25.

Similarly, in Case C-376/96, the national court decided to stay proceedings and torefer the following questions to the Court:

(a) to appoint an agent or servant responsible for keeping the individualaccounts of employees who provide services there;

(b) not to obstruct inspections organised pursuant to the legislation ofthat State relating to the keeping of social documents;

(d) to draw up an individual account for each worker;

(e) to keep a special staff register;

(f) to draw up working regulations;

(g) to keep social documents (staff register and individual account) at theBelgian residence of a natural person who is to keep those documentsin his capacity as agent or servant of the undertaking concerned;

(h) to issue an individual record for each worker,

26.

By order of the President of the Court of 6 June 1997 the two cases were joinedfor the purposes of the oral procedure and the judgment.

27.

By its questions, which may appropriately be considered together, the national courtis asking, in essence, whether Articles 59 and 60 of the Treaty preclude a MemberState from imposing, inter alia by means of public-order legislation, obligations onan undertaking established in another Member State and temporarily carrying outworks in the first State which require it:

to pay its workers the minimum remuneration applicable to their activitiesfixed by the collective labour agreement in force in the host Member State,to pay in relation to each worker employers' contributions in respect oftimbres-intempéries and timbres-fidélité, and to issue each worker withan individual record;

to draw up labour rules, a special staff register and, in respect of eachworker deployed, an individual account;

to arrange for the social documents (staff register and individual accounts)relating to the workers deployed in the host Member State where the worksare carried out to be kept and retained at the residence, in that hostMember State, of a natural person who is to keep those documents as itsagent or servant,

in circumstances where that undertaking is already subject, in the Member Statein which it is established, to requirements which are comparable as regards theirobjective and which relate to the same workers and the same periods of activity.

Preliminary observations

28.

The Belgian Government submits that Articles 59 and 60 of the Treaty should beinterpreted in the light of Directive 96/71/EC of the European Parliament and ofthe Council of 16 December 1996 concerning the posting of workers in theframework of the provision of services (OJ 1997 L 18, p. 1), inasmuch as thatdirective gives concrete expression to, and codifies, the current state of Communitylaw relating to mandatory rules for the provision of minimum protection.

29.

Directive 96/71 was not in force at the time when the matters in the mainproceedings took place. However, Community law does not prevent the nationalcourt from taking account, in accordance with a principle of its criminal law, of themore favourable provisions of Directive 96/71 for the purposes of the applicationof national law, even though Community law imposes no obligation to that effect(see Case C-230/97 Awoyemi [1998] ECR I-6781, paragraph 38).

30.

As regards the second question referred in each of the two cases, concerning theclassification of the provisions at issue as public-order legislation under Belgian law,that term must be understood as applying to national provisions compliance withwhich has been deemed to be so crucial for the protection of the political, socialor economic order in the Member State concerned as to require compliancetherewith by all persons present on the national territory of that Member State andall legal relationships within that State.

31.

The fact that national rules are categorised as public-order legislation does notmean that they are exempt from compliance with the provisions of the Treaty; ifit did, the primacy and uniform application of Community law would beundermined. The considerations underlying such national legislation can be takeninto account by Community law only in terms of the exceptions to Communityfreedoms expressly provided for by the Treaty and, where appropriate, on theground that they constitute overriding reasons relating to the public interest.

The questions referred

32.

It is common ground, first, that Arblade and Leloup, who are established in France,moved, within the meaning of Articles 59 and 60 of the Treaty, to another MemberState, namely Belgium, in order to carry on activities of a temporary nature thereand, second, that their activities are not wholly or principally directed towards thelatter State with a view to avoiding the rules which would apply to them if theywere established within its territory.

33.

It is settled case-law that Article 59 of the Treaty requires not only the eliminationof all discrimination on grounds of nationality against providers of services who areestablished in another Member State but also the abolition of any restriction, evenif it applies without distinction to national providers of services and to those ofother Member States, which is liable to prohibit, impede or render lessadvantageous the activities of a provider of services established in another MemberState where he lawfully provides similar services (see Case C-76/90 Säger [1991]ECR I-4221, paragraph 12, Case C-43/93 Vander Elst v Office des MigrationsInternationales [1994] ECR I-3803, paragraph 14, Case C-272/94 Guiot [1996]ECR I-1905, paragraph 10, Case C-3/95 Reisebüro Broede v Sandker [1996]ECR I-6511, paragraph 25, and Case C-222/95 Parodi v Banque H. Albert de Bary[1997] ECR I-3899, paragraph 18).

34.

Even if there is no harmonisation in the field, the freedom to provide services, asone of the fundamental principles of the Treaty, may be restricted only by rulesjustified by overriding requirements relating to the public interest and applicableto all persons and undertakings operating in the territory of the State where theservice is provided, in so far as that interest is not safeguarded by the rules towhich the provider of such a service is subject in the Member State where he isestablished (see, in particular, Case 279/80 Webb [1981] ECR 3305, paragraph 17,Case C-180/89 Commission v Italy [1991] ECR I-709, paragraph 17, Case C-198/89Commission v Greece [1991] ECR I-727, paragraph 18, Säger, cited above,paragraph 15, Vander Elst, cited above, paragraph 16, and Guiot, cited above,paragraph 11).

35.

The application of national rules to providers of services established in otherMember States must be appropriate for securing the attainment of the objectivewhich they pursue and must not go beyond what is necessary in order to attain it

(see, in particular, Säger, paragraph 15, Case C-19/92 Kraus v Land Baden-Württemberg [1993] ECR I-1663, paragraph 32, Case C-55/94 Gebhard v Consigliodell'Ordine degli Avvocati e Procurati di Milano [1995] ECR I-4165, paragraph 37,and Guiot, cited above, paragraphs 11 and 13).

36.

The overriding reasons relating to the public interest which have beenacknowledged by the Court include the protection of workers (see Webb, citedabove, paragraph 19, Joined Cases 62/81 and 63/81 Seco v EVI [1982] ECR 223,paragraph 14, and Case C-113/89 Rush Portuguesa [1990] ECR I-1417, paragraph18), and in particular the social protection of workers in the construction industry(Guiot, paragraph 16).

37.

By contrast, considerations of a purely administrative nature cannot justifyderogation by a Member State from the rules of Community law, especially wherethe derogation in question amounts to preventing or restricting the exercise of oneof the fundamental freedoms of Community law (see, in particular, Case C-18/95Terhoeve [1999] ECR I-345, paragraph 45).

38.

However, overriding reasons relating to the public interest which justify thesubstantive provisions of a set of rules may also justify the control measures neededto ensure compliance with them (see, to that effect, Rush Portuguesa, cited above,paragraph 18).

39.

It is therefore necessary to consider, in turn, whether the requirements imposed bynational rules such as those at issue in the main proceedings have a restrictiveeffect on freedom to provide services, and, if so, whether, in the sector underconsideration, such restrictions on freedom to provide services are justified byoverriding reasons relating to the public interest. If they are, it is necessary, inaddition, to establish whether that interest is already protected by the rules of theMember State in which the service provider is established and whether the sameresult can be achieved by less restrictive rules (see, in particular, Säger, paragraph15, Kraus, cited above, paragraph 32, Gebhard, cited above, paragraph 37, Guiot,paragraph 13, and Reisebüro Broede, cited above, paragraph 28).

40.

It is appropriate in that context to examine the various obligations mentioned in thequestions referred, in the following order:

payment of the minimum remuneration,

payment of contributions to the 'timbres-intempéries and 'timbres-fidélitéschemes and the drawing-up of individual records,

the keeping of social documents, and

the retention of social documents.

Payment of the minimum remuneration

41.

As regards the obligation on an employer providing services to pay his workers theminimum remuneration fixed by a collective labour agreement applying in the hostMember State to the activities carried on, it must be recalled that Community lawdoes not preclude Member States from extending their legislation, or collectivelabour agreements entered into by both sides of industry, relating to minimumwages, to any person who is employed, even temporarily, within their territory,regardless of the country in which the employer is established, and, moreover, thatCommunity law does not prohibit Member States from enforcing those rules byappropriate means (Seco, cited above, paragraph 14, Rush Portuguesa, paragraph18, and Guiot, paragraph 12).

42.

It follows that the provisions of a Member State's legislation or collective labouragreements which guarantee minimum wages may in principle be applied toemployers providing services within the territory of that State, regardless of thecountry in which the employer is established.

43.

However, in order for infringement of the provisions in question to justify thecriminal prosecution of an employer established in another Member State, thoseprovisions must be sufficiently precise and accessible that they do not render itimpossible or excessively difficult in practice for such an employer to determine theobligations with which he is required to comply. It is for the competent authority in the present case, the Belgian Social Law Inspectorate , when laying aninformation before the criminal courts, to state unequivocally the obligations withwhich the employer is accused of having failed to comply.

44.

Thus, it is for the national court to determine, in the light of those considerations,which of the relevant provisions of its national law are applicable to an employerestablished in another Member State and, where appropriate, the amount of theminimum wage prescribed by them.

45.

The Belgian and Austrian Governments consider that the advantages guaranteedto workers by the 'timbres-intempéries and 'timbres-fidélité schemes, asprovided for by the CLA of 28 April 1988, constitute part of the minimum annualincome of a construction worker within the meaning of the Belgian legislation.

46.

However, it is apparent from the documents before the Court, first, that it was onlyArblade that was prosecuted for failure to pay its workers the minimum wageprovided for by the CLA of 28 March 1991 and, second, that Article 4(1) of theCLA of 28 April 1988 fixes the contribution payable in respect of 'timbres-intempéries and 'timbres-fidélité on the basis of 100% of the worker's grossremuneration. Since the amount due under the 'timbres-intempéries and'timbres-fidélité schemes is calculated by reference to the gross minimum wage,it cannot form an integral part of that wage.

47.

In those circumstances, it would appear though this is a point for the nationalcourt to confirm that the advantages guaranteed to workers by the 'timbres-intempéries and 'timbres-fidélité schemes cannot constitute an element to betaken into account when determining the minimum wage which Arblade is accusedof having failed to pay.

Payment of the contribution to the 'timbres-intempéries and 'timbres-fidélitéschemes and the drawing-up of individual records

48.

As regards the obligation to pay employers' contributions to the Belgian 'timbres-intempéries and 'timbres-fidélité schemes, it is apparent from the judgment ofthe national court, and in particular from the wording of the first question referredin each of the two cases, that Arblade and Leloup are already subject, in theMember State in which they are established, to obligations which, while notidentical, are at least comparable as regards their objective, and which relate to thesame workers and the same periods of activity.

49.

The Belgian Government submits that the referring court has not determined theexistence of such obligations in the Member State of establishment. However, theCourt is bound to accept the national court's finding that the undertaking providingthe services is already subject, in the Member State in which it is established, toobligations which, because of their objective, are comparable.

50.

National rules which require an employer, as a provider of services within themeaning of the Treaty, to pay employers' contributions to the host Member State'sfund, in addition to those which he has already paid to the fund of the MemberState in which he is established, constitute a restriction on freedom to provideservices. Such an obligation gives rise to additional expenses and administrativeand economic burdens for undertakings established in another Member State, withthe result that such undertakings are not on an equal footing, from the standpointof competition, with employers established in the host Member State, and may thusbe deterred from providing services in the host Member State.

51.

It must be acknowledged that the public interest relating to the social protectionof workers in the construction industry and the monitoring of compliance with therelevant rules may constitute an overriding requirement justifying the imposition onan employer established in another Member State who provides services in the hostMember State of obligations capable of constituting restrictions on freedom toprovide services. However, that is not the case where the workers employed by theemployer in question are temporarily engaged in carrying out works in the hostMember State and enjoy the same protection, or essentially similar protection, byvirtue of the obligations to which the employer is already subject in the MemberState in which he is established (see, to that effect, Guiot, paragraphs 16 and 17).

52.

Moreover, an obligation requiring a provider of services to pay employers'contributions to the host Member State's fund cannot be justified where thosecontributions confer no social advantage on the workers in question (Seco,paragraph 15).

53.

It is therefore for the national court to establish, first, whether the contributionspayable in the host Member State give rise to any social advantage for the workersconcerned and, second, whether, in the Member State of establishment, thoseworkers enjoy, by virtue of the contributions already paid by the employer in thatState, protection which is essentially similar to that afforded by the rules of theMember State in which the services are provided.

54.

Only if the employer's contributions to the host Member State's fund confer onworkers an advantage capable of providing them with real additional protectionwhich they would not otherwise enjoy will it be possible to justify the payment ofthe contributions in question, and, even then, those contributions will be justifiableonly if they are payable by all providers of services operating within the nationalterritory in the industry concerned.

55.

Lastly, it is clear that the obligation under the Belgian legislation to issue anindividual record to each worker is inextricably linked to the obligation to pay the'timbres-intempéries and 'timbres-fidélité contributions provided for in the CLAof 28 April 1988. If an undertaking is already subject, in the Member State inwhich it is established, to obligations which are essentially similar, by reason of theirobjective, to those imposed under the 'timbres-intempéries and 'timbres-fidélitéschemes, and which relate to the same workers and the same periods of activity,that undertaking is only obliged to issue its workers with the equivalent documentswhich it is required to issue pursuant to the legislation of the Member State inwhich it is established. If the system applying in the latter State did not provide forthe issue of documents to employees, the undertaking in question would berequired only to justify to the authorities of the host Member State that it is up todate with the payment of the contributions required under the rules of the MemberState of establishment, by producing the documents prescribed for that purpose bythose rules.

The principle of keeping social and labour documents

56.

As regards the obligation to draw up labour rules and to keep a special staffregister and an individual account for each worker, it is likewise apparent from thejudgment of the national court, and in particular from the wording of the firstquestion referred in each of the two cases, that Arblade and Leloup are alreadysubject, in the Member State in which they are established, to obligations which,while not identical, are at least comparable as regards their objective, and whichrelate to the same workers and the same periods of activity.

57.

As stated in paragraph 49 of this judgment, and despite the objections raised by theBelgian Government, the Court is bound to base its ruling on the facts as stated bythe national court.

58.

An obligation of the kind imposed by the Belgian legislation, requiring certainadditional documents to be drawn up and kept in the host Member State, gives riseto additional expenses and administrative and economic burdens for undertakingsestablished in another Member State, with the result that such undertakings are noton an equal footing, from the standpoint of competition, with employers establishedin the host Member State.

59.

Consequently, the imposition of such an obligation constitutes a restriction onfreedom to provide services within the meaning of Article 59 of the Treaty.

60.

Such a restriction is justifiable only if it is necessary in order to safeguard,effectively and by appropriate means, the overriding public interest which the socialprotection of workers represents.

61.

The effective protection of workers in the construction industry, particularly asregards health and safety matters and working hours, may require that certaindocuments are kept on site, or at least in an accessible and clearly identified placein the territory of the host Member State, so that they are available to theauthorities of that State responsible for carrying out checks, particularly wherethere exists no organised system for cooperation or exchanges of informationbetween Member States as provided for in Article 4 of Directive 96/71.

62.

Furthermore, in the absence of an organised system for cooperation or exchangesof information of the kind referred to in the preceding paragraph, the obligationto draw up and keep on site, or at least in an accessible and clearly identified placein the territory of the host Member State, certain of the documents required by therules of that State may constitute the only appropriate means of control, havingregard to the objective pursued by those rules.

63.

The items of information respectively required by the rules of the Member Stateof establishment and by those of the host Member State concerning, in particular,the employer, the worker, working conditions and remuneration may differ to suchan extent that the monitoring required under the rules of the host Member Statecannot be carried out on the basis of documents kept in accordance with the rulesof the Member State of establishment.

64.

On the other hand, the mere fact that there are certain differences of form orcontent cannot justify the keeping of two sets of documents, one of which conformsto the rules of the Member State of establishment and the other to those of thehost Member State, if the information provided, as a whole, by the documents

required under the rules of the Member State of establishment is adequate toenable the controls needed in the host Member State to be carried out.

65.

Consequently, the authorities and, if need be, the courts of the host Member Statemust verify in turn, before demanding that social or labour documents complyingwith their own rules be drawn up and kept in the territory of that State, that thesocial protection for workers which may justify those requirements is not sufficientlysafeguarded by the production, within a reasonable time, of originals or copies ofthe documents kept in the Member State of establishment or, failing that, bykeeping the originals or copies of those documents available on site or in anaccessible and clearly identified place in the territory of the host Member State.

66.

Where the authorities or courts of the host Member State find, as has the courtmaking the reference in the two cases, that, as regards the keeping of social orlabour documents such as labour rules, a special staff register and an individualaccount for each employee, the employer is subject, in the Member State in whichit is established, to obligations which are comparable as regards their objective, andwhich relate to the same workers and the same periods of activity, the productionof the social and labour documents kept by the employer in accordance with therules of the Member State of establishment must be regarded as sufficient toensure the social protection of workers; consequently, the employer concernedshould not be required to draw up documents in accordance with the rules of thehost Member State.

67.

In the context of the kind of verification referred to in paragraph 65 of thisjudgment, it is necessary to have regard to the Community directives providing forcoordination or a minimum degree of harmonisation in respect of the informationnecessary for the protection of workers.

68.

First, Council Directive 91/533/EEC of 14 October 1991 on an employer'sobligation to inform employees of the conditions applicable to the contract oremployment relationship (OJ 1991 L 288, p. 32) is designed, according to thesecond recital in its preamble, to provide employees with improved protectionagainst possible infringements of their rights and to create greater transparency onthe labour market. That directive lists certain essential elements of the contract oremployment relationship, including, where appropriate, those rendered necessaryon account of the worker concerned being deployed in another country, which theemployer is required to bring to the notice of the worker. According to Article 7,that directive does not affect Member States' prerogative to apply or to introducelaws, regulations or administrative provisions which are more favourable toemployees or to encourage or permit the application of agreements which are morefavourable to employees.

69.

Second, Article 10 of Council Directive 89/391/EEC of 12 June 1989 on theintroduction of measures to encourage improvements in the safety and health of

workers at work (OJ 1989 L 183, p. 1) provides, in particular, that workers are toreceive certain information concerning risks to their safety and health.

70.

In the context of such verification, the national authorities of the host MemberState may additionally, in so far as they are not themselves in possession of it,require the provider of services to communicate the information held by himconcerning the obligations to which he is subject in the Member State in which heis established.

The detailed rules regarding the keeping and retention of social documents

71.

The provisions of Belgian law laying down the detailed rules regarding the keepingand retention of documents by an employer established in another Member Stateare made up of three parts. First, where the employer employs workers to workin Belgium, social documents must be kept either at one of the workplaces or atthe residential address in Belgium of a natural person who is to keep thosedocuments as the employer's agent or servant.

72.

Second, where the employer ceases to employ workers in Belgium, the originals orcopies of the social documents must be retained for five years at the address inBelgium of the agent or servant in question.

73.

Finally, the national authorities must be notified in advance of the identity of theagent or servant, whether that person is designated to keep the documents or toretain them.

74.

For the reasons set out in paragraphs 61 to 63 of this judgment, the need foreffective control by the authorities of the host Member State may justify theimposition on an employer established in another Member State who providesservices in the host Member State of the obligation to keep certain documentsavailable for inspection by the national authorities on site or, at least, in anaccessible and clearly identified place in the territory of the host Member State.

75.

It is for the national court to establish, having regard to the principle ofproportionality, which documents are covered by such an obligation.

76.

Where, as in the present case, there is an obligation to keep available and retaincertain documents at the address of a natural person residing in the host MemberState, who is to keep them as the agent or servant of the employer by whom he hasbeen designated, even after the employer has ceased to employ workers in thatState, it is not sufficient, for the purposes of justifying such a restriction of freedomto provide services, that the presence of such documents within the territory of thehost Member State may make it generally easier for the authorities of that Stateto perform their supervisory task. It must also be shown that those authorities

cannot carry out their supervisory task effectively unless the undertaking has, inthat Member State, an agent or servant designated to retain the documents inquestion (see, to that effect, Case 205/84 Commission v Germany [1986] ECR 3755,paragraph 54).

77.

In any event, the obligations to retain social documents within the territory of thehost Member State for a period of five years and to retain them at the address ofa natural person, as opposed to a legal person, cannot be justified.

78.

Monitoring of compliance with rules concerning the social protection of workers inthe construction industry can be achieved by less restrictive measures. As theAdvocate General observes in point 88 of his Opinion, where an employerestablished in another Member State ceases to employ workers in Belgium, theoriginals or copies of the social documents comprising the staff register and theindividual accounts, or of the equivalent documents which the undertaking isrequired to draw up under the legislation of the Member State of establishment,may be sent to the national authorities, who may check them and, if necessary,retain them.

79.

For the rest, it should be noted that the organised system for cooperation andexchanges of information between Member States, as provided for in Article 4 ofDirective 96/71, will shortly render superfluous the retention of the documents inthe host Member State after the employer has ceased to employ workers there.

80.

The answers to be given to the questions referred must therefore be as follows:

(1) Articles 59 and 60 of the Treaty do not preclude the imposition by aMember State on an undertaking established in another Member State, andtemporarily carrying out work in the first State, of an obligation to pay theworkers deployed by it the minimum remuneration fixed by the collectivelabour agreement applicable in the first Member State, provided that theprovisions in question are sufficiently precise and accessible that they do notrender it impossible or excessively difficult in practice for such an employerto determine the obligations with which he is required to comply.

(2) Articles 59 and 60 of the Treaty preclude the imposition by a Member Stateon an undertaking established in another Member State, and temporarilycarrying out work in the first State, of an obligation even if laid down inpublic-order legislation to pay, in respect of each worker deployed,employers' contributions to schemes such as the Belgian 'timbres-intempéries and 'timbres-fidélité schemes, and to issue to each of suchworkers an individual record, where the undertaking in question is alreadysubject, in the Member State in which it is established, to obligations whichare essentially comparable, as regards their objective of safeguarding theinterests of workers, and which relate to the same workers and the sameperiods of activity.

(3) Articles 59 and 60 of the Treaty preclude the imposition by a Member Stateon an undertaking established in another Member State, and temporarilycarrying out work in the first State, of an obligation even if laid down inpublic-order legislation to draw up social or labour documents such aslabour rules, a special staff register and an individual account for eachworker in the form prescribed by the rules of the first State, where thesocial protection of workers which may justify those requirements is alreadysafeguarded by the production of social and labour documents kept by theundertaking in question in accordance with the rules applying in theMember State in which it is established.

That is the position where, as regards the keeping of social and labourdocuments, the undertaking is already subject, in the Member State in whichit is established, to obligations which are comparable, as regards theirobjective of safeguarding the interests of workers, to those imposed by thelegislation of the host Member State, and which relate to the same workersand the same periods of activity.

(4) Articles 59 and 60 of the Treaty do not preclude the imposition by aMember State on an undertaking established in another Member State, andtemporarily carrying out work in the first State, of an obligation to keepsocial and labour documents available, throughout the period of activitywithin the territory of the first Member State, on site or in an accessible andclearly identified place within the territory of that State, where such ameasure is necessary in order to enable it effectively to monitor compliancewith legislation of that State which is justified by the need to safeguard thesocial protection of workers.

(5) Articles 59 and 60 of the Treaty preclude the imposition by a Member Stateon an undertaking established in another Member State, and temporarilycarrying out work in the first State, of an obligation even if laid down inpublic-order legislation to retain, for a period of five years after theundertaking in question has ceased to employ workers in the first MemberState, of social documents such as a staff register and individual accounts,at the address within that Member State of a natural person who holdsthose documents as an agent or servant.

Costs

81.

The costs incurred by the Belgian, German, Netherlands, Austrian, Finnish andUnited Kingdom Governments and by the Commission, which have submittedobservations to the Court, are not recoverable. Since these proceedings are, forthe parties to the main proceedings, a step in the proceedings pending before thenational court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the questions referred to it by the Tribunal Correctionnel de Huy bytwo judgments of 29 October 1996, hereby rules:

1. Articles 59 of the EC Treaty (now, after amendment, Article 49 EC) and 60of the EC Treaty (now Article 50 EC) do not preclude the imposition by aMember State on an undertaking established in another Member State, andtemporarily carrying out work in the first State, of an obligation to pay theworkers deployed by it the minimum remuneration fixed by the collectivelabour agreement applicable in the first Member State, provided that theprovisions in question are sufficiently precise and accessible that they donot render it impossible or excessively difficult in practice for such anemployer to determine the obligations with which he is required to comply.

2. Articles 59 and 60 of the Treaty preclude the imposition by a Member Stateon an undertaking established in another Member State, and temporarilycarrying out work in the first State, of an obligation even if laid down inpublic-order legislation to pay, in respect of each worker deployed,employers' contributions to schemes such as the Belgian 'timbres-intempéries and 'timbres-fidélité schemes, and to issue to each of suchworkers an individual record, where the undertaking in question is alreadysubject, in the Member State in which it is established, to obligations whichare essentially comparable, as regards their objective of safeguarding theinterests of workers, and which relate to the same workers and the sameperiods of activity.

3. Articles 59 and 60 of the Treaty preclude the imposition by a Member Stateon an undertaking established in another Member State, and temporarilycarrying out work in the first State, of an obligation even if laid down inpublic-order legislation to draw up social or labour documents such aslabour rules, a special staff register and an individual account for eachworker in the form prescribed by the rules of the first State, where thesocial protection of workers which may justify those requirements is alreadysafeguarded by the production of social and labour documents kept by theundertaking in question in accordance with the rules applying in theMember State in which it is established.

That is the position where, as regards the keeping of social and labourdocuments, the undertaking is already subject, in the Member State inwhich it is established, to obligations which are comparable, as regardstheir objective of safeguarding the interests of workers, to those imposed by

the legislation of the host Member State, and which relate to the sameworkers and the same periods of activity.

4. Articles 59 and 60 of the Treaty do not preclude the imposition by aMember State on an undertaking established in another Member State, andtemporarily carrying out work in the first State, of an obligation to keepsocial and labour documents available, throughout the period of activitywithin the territory of the first Member State, on site or in an accessibleand clearly identified place within the territory of that State, where such ameasure is necessary in order to enable it effectively to monitor compliancewith legislation of that State which is justified by the need to safeguard thesocial protection of workers.

5. Articles 59 and 60 of the Treaty preclude the imposition by a Member Stateon an undertaking established in another Member State, and temporarilycarrying out work in the first State, of an obligation even if laid down inpublic-order legislation to retain, for a period of five years after theundertaking in question has ceased to employ workers in the first MemberState, of social documents such as a staff register and individual accounts,at the address within that Member State of a natural person who holdsthose documents as an agent or servant.

Rodríguez IglesiasMoitinho de Almeida

Edward

Schintgen

Puissochet

Hirsch

Jann

Ragnemalm

Wathelet

Delivered in open court in Luxembourg on 23 November 1999.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President

1: Language of the case: French.