European Law Monitor

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European Law Monitor NewsInternal market: Belgium taken to the Court of Justice for hampering the posting of non-EU workers

The European Commission has decided to refer Belgium to the European Court of Justice (ECJ) for the conditions it imposes on EU employers providing cross-border services who want to post non-EU workers to the country. The Commission believes that these conditions fall foul of the Treaty provisions on the free movement of services (Article 49 of the Treaty).

The Commission sent a supplementary reasoned opinion in 2005. It considers Belgium's response to be unsatisfactory.

Firstly, some postings of non-EU workers remain subject to preliminary checks by the Belgian authorities, even though the workers are already living and working legally in another Member State. As stated by the ECJ in January 2006 in its judgment in a similar case against Germany, checks may not be carried out prior to the posting of workers.

Secondly, workers on postings have to have a residence permit issued in their employer's country of establishment which is valid for three months after the period in which services are to be provided. The Commission believes that this again goes beyond the conditions set out by the ECJ in the Vander Elst judgment, whereby it is sufficient for a worker who is to be posted to another Member State to have regular, habitual employment in the Member State in which his employer is established; the host Member State may not impose any more specific conditions than this.

Thirdly, as for requiring all posted workers to have worked for the same employer for at least a year, such an obligation was rejected by the ECJ in its September 2006 judgment against Austria in another case regarding the posting of non-EU workers.

The conditions for posting staff abroad affect a company's ability to provide services. However, EU companies are still often faced with difficulties when they want to send non-EU staff to another Member State to provide services on a temporary basis. These difficulties stem in particular from conditions as regards entering, staying and working in the other country, but also as regards the workers' return to the country in which the employer is based.

Conditions like these run counter to the principle of the free movement of services. According to the ECJ (see judgment of 27 March 1990 in Case C-113/89 Rush Portuguesa), imposing such conditions represents discrimination against companies from other Member States as compared with their competitors in the host country who have their staff at their complete disposal.

The ECJ has issued several judgments in cases regarding the posting of workers from non-EU countries. For non-EU workers who already have a fixed employment contract in the country where their employer is established to be required to secure a work permit in the new host country has been judged by the Court to go beyond what can be demanded as a necessary condition for providing services (judgment of 9 August 1994 in Case C-43/93 Vander Elst). Also, the Court found against Luxembourg in 2004 (Case C-445/03) and Germany and Austria in 2006 (Cases C-244/04 and C-168/04) for imposing preliminary checks and conditions going beyond the principles established in the Vander Elst judgment.

In its communication of 13 June (IP/07/817) on the posting of workers (see also IP/06/423), the Commission said it would be acting to ensure compliance with EU law • as interpreted by the Court, particularly in the Vander Elst judgment • by initiating infringement proceedings under Article 226 of the EC Treaty in cases where Member States still require posted foreign nationals to secure work permits or impose other conditions.

For up-to-date information on infringement proceedings against all Member States, go to:  

Reproduced with the permission of the European Commission IP/07/913