Posting Third-Country Workers Inside The Eu: The Ecj Squares The Circle

Amedeo Arena, Assistant Professor of European Law - University of Naples "Federico II" School of Law

Judgment of the courtroom (Second Chamber) of xi September 2014, Essent Energie Productie BV v. Minister van SocialeZaken en Werkgelegenheid, Case C-91/13.

The ECJ has repeatedly held that, dissimilar workers from European Union Member States, Turkish nationals are non entitled to liberty of induce within the European Union but tin give the axe rely only on for certain rights in the territory of the host Member State lone (Savas, para 59; Derin, para 66). The Essent judgment provides a recent too clear example of how, nether for certain circumstances, the European Union internal marketplace freedoms tin give the axe hold upward relied upon to overcome those limitations and, indirectly, to broaden the liberty of induce of Turkish too other third-country nationals.

Facts too legal background

Under Netherlands legislation, an employer is prohibited from having run carried out inwards the Netherlands past times a unusual national who does non concord a run permit.

Essent, a companionship established inwards the Netherlands, had scaffolding at ane of its branches inwards that Member State erected past times a number of workers from Turkey too other non-EU countries. Essent, however, did non hire those workers: it entrusted the structure run to BIS, roughly other Netherlands-based company, which inwards plow requested Ekinci, a companionship incorporated inwards Germany, to post the inwards a higher house workers to the Netherlands for the duration of the structure work.

As the Netherlands authorities had issued no run permit for the purposes of that posting, the Netherland Minister fined Essent EUR 264 000 for infringing Netherlands labour law.

In the ensuing litigation before the Netherlands Raad van State, 2 provisions came into play: Article 41(1) of the 1970 Additional Protocol to the EEC-Turkey Association Agreement too Article 13 of Decision no. 1/80 of the Association Council of 19 September 1980. Both are standstill clauses, prohibiting, respectively, novel restrictions on the weather condition of access to occupation too on the liberty to render services betwixt Turkey too European Union Member States. Kingdom of the Netherlands courtroom thence resolved to remain proceedings too to seek guidance from the ECJ every bit to the interpretation of those provisions.

The Judgment

The ECJ commencement examined whether Article 41(1) of the Additional Protocol too Article 13 of Decision No 1/80 applied to a province of affairs such every bit the ane at number inwards the principal proceedings. After recalling that such provisions are straight applicable too tin give the axe hold upward relied upon to own got incompatible national legislation laid upward aside, the Court stressed that those provisions confer rights to Turkish nationals “in the territory of the host Member State alone”. In casu, the Court considered that the host Member State was Germany, where the Turkish workers were legally resident too employed, rather than the Netherlands, where the inwards a higher house workers were temporarily posted too whose labour marketplace they had no intention to enter. Accordingly, the ECJ ruled that Article xiii of Decision 1/80 was non applicable to the acquaint case.

The Court reached the same decision with reference to Article 41(1) of the Additional protocol. While a Turkish task providing a service inwards a Member State could rely upon that provision, no such service provision occurred betwixt Turkey too the Netherlands inwards the acquaint case. The only link with Turkey was the presence of Turkish nationals alongside the workers posted past times Ekinci to the Netherlands, a connecting chemical gene that the ECJ regarded every bit “not sufficient” to trigger the applicability of Article 41(1) of the Additional protocol.

The Court too then turned to Articles 56 too 57 TFEU, which secure the liberty to render services inside the EU. It is worth noticing that the society for reference contained no preliminary inquiry concerning those provisions, yet the Court considered that their interpretation could hold upward useful to the referring courtroom inwards adjudicating on the instance pending before it.

Recalling Advocate General Bot’s Opinion, the Court noted that the posting of workers betwixt undertakings established inwards different Member states (in this instance Ekinci too BIS) vicious inside the orbit of the costless induce of services, inwards spite of the fact that roughly of those workers were non Union citizens. The Court also found that Articles 56 too 57 TFEU could hold upward invoked non only past times the recipient (BIS), but also past times the destination user of that service (Essent).

On those premises, the ECJ considered that the Netherlands run permit requirement, too the related administrative burdens, impeded the making available of unusual workers to a user task established inwards the Netherlands past times a service-providing task established inwards roughly other Member State.

As no harmonisation had been achieved inwards the area, the ECJ turned to the number of possible justifications for the Netherlands measure. Whilst the Court acknowledged that the Netherlands Government’s wish to avoid disturbances on the labour marketplace constituted an overriding ground inwards earth interest, it noted that posted workers produce non seek to gain access to the host State labour market, every bit they render to their province of residence every bit before long every bit their run is over.

The Court also averred that Member States are entitled to cheque that an task established inwards roughly other Member State which posts unusual workers to its territory is non availing itself of the liberty to render services for a role other than the functioning of the service concerned. Nonetheless, the ECJ considered that the Netherlands run permit requirement was disproportionate to that aim, which could also hold upward achieved through less-restrictive means. For instance, the service-providing task could hold upward required to demonstrate the Netherlands authorities that the province of affairs of the workers concerned is lawful every bit regards matters such every bit residence, run permit too social coverage inwards the Member State inwards which that task employs them. Similarly, the service-providing task could hold upward required to written report beforehand to the Netherlands authorities the presence of posted workers, the anticipated duration of their presence too the provision of services justifying the posting.

Accordingly, the ECJ held that Articles 56 too 57 TFEU must hold upward interpreted every bit precluding national legislation nether which, when non-EU workers are posted past times an task established inwards a Member State to a user task established inwards roughly other Member State, such making available is conditional upon the latter Member State issuing run permits to those workers.

  

Comment

The acquaint ruling highlights the somewhat peculiar province of affairs of Turkish workers posted from ane Member State to roughly other inwards the aftermath of the ECJ ruling inwards Abatay. Those individuals tin give the axe rely on Article xiii of Decision 1/80 against the Member State into whose labour marketplace they seek to integrate through the pursuit of uninterrupted employment, but cannot invoke that provision against the Member State where they are posted for express periods of time. By the same token, piece a Turkish task providing services inwards a Member State, every bit good every bit the Turkish employees of that undertaking, tin give the axe invoke Article 41(1) of the Additional Protocol against that Member State, an European Union task employing Turkish nationals cannot rely on that provision to challenge national measures that trammel the induce of its Turkish employees.

In persuasion of these incongruences too of the obvious trade-restrictive effects of the Netherlands run permit requirement, the ECJ’s willingness to expand the orbit of the preliminary ruling to include Articles 56 too 57 TFEU is unsurprising. However, non also long ago, inwards Vicoplus, the ECJ had ruled that the liberty to render services, read inwards connectedness with the 2003 Act of Accession, was no bar to the application of the Netherlands run permit requirement to Polish workers posted to the Netherlands during the transitional menses provided inwards the Act of Accession. While AG Bot devoted several paragraphs of his Opinion to distinguish the factual too legal background inwards Vicoplus from that of the 2nd case, it is regrettable that the ECJ did non own got the chance to trace of piece of work organisation human relationship for what mightiness hold upward perceived every bit differential handling betwixt Turkish too Polish posted workers.

The ECJ only referred to Vicoplus to back upward its finding that the posting of workers betwixt Ekinci too BIS, 2 undertakings established inwards different Member States, vicious inside the orbit of the liberty to render services. Neither Ekinci nor BIS, however, sought to rely on that freedom. Could Essent invoke Articles 56 too 57 TFEU against Netherlands labour legislation, fifty-fifty though that task was not the direct recipient of the service?

In its Opinion, AG Bot commencement observed that, since the liberty to render services pursues earth involvement objective of establishing an internal market, persons “other than service providers too recipients” who, none the less, “have a textile connectedness with a someone who has that status” should hold upward able to invoke that liberty against domestic restrictive measures. The Court had taken a  similar approach inwards honor of the costless induce of workers inwards Las: “Article 45 TFEU may hold upward relied on non only past times workers themselves, but also past times their employers. In society to hold upward genuinely effective, the correct of workers to hold upward engaged too employed without discrimination necessarily entails every bit a corollary the employer’s entitlement to engage them inwards accordance with the rules governing liberty of induce for workers” (para 18).

The Advocate General too then relied on an interesting twist of the abuse of rights doctrine. Since present it is mutual to witness chains of several intermediaries betwixt the principal contractor too the employees, to forestall circumvention of the run permit requirement, Netherlands legislation has adopted a wide notion of employer, making the principal contractor responsible for obtaining run permits for non-EU workers employed past times its subcontractors. However, AG Bot argued that, to forestall circumvention of the ban on restrictions on the liberty to render services, simply every bit the principal contractor’s liability nether national labour legislation expands, so should its powerfulness to rely on Article 56 too 57 TFEU.

Unfortunately, the ECJ made no reference to the commencement argument, which could own got provided roughly clarifications on the powerfulness to invoke key freedoms past times persons who produce non autumn inside the orbit of such freedoms but own got “a textile connection” with others who did. In cases such every bit Carpenter and, to a greater extent than recently, Dogan, the ECJ had taken a different approach, past times focusing on the touching on service providers of national measures (e.g. deportation orders, immigration requirements) addressed to persons connected to that provider (e.g. their spouses).

The ECJ, instead, only ran an abridged, three-paragraph version of AG Bot’s anti-circumvention argument, too found that, if Essent were denied the possibility of relying on Article 56 too 57 TFEU, the Netherlands could obstruct the liberty to render services past times enforcing its run permit requirement against the principal contractor. It is worth noticing that inwards before rulings the ECJ had relied on the abuse of rights declaration to attain the opposite result: to narrow the orbit of European Union provisions inwards cases where the weather condition required to invoke those provisions had been artificially created reverse to the objectives pursued past times European Union police pull (Emsland-Stärke, paras 52-53).

Once the ECJ established a link betwixt Essent too the liberty to render services, the fate of the run permit requirement every bit a precondition for the posting of non-EU workers to the Netherlands was sealed. The conditions, deadlines too administrative burden involved inwards obtaining the run permit plainly hindered the making available of workers on a cross border basis. The ECJ rejected the Netherlands government’s declaration that the mensurate was designed to avoid disturbances on its labour market, noting that posted workers produce non seek to gain access to that market, “as they render to their province of root or residence later the completion of their work”. The Court too then conceded that a Member State may cheque that an task established inwards roughly other Member State which posts to its territory workers from a non-member province is non availing itself of the liberty to render services for a role other than the functioning of the service concerned, but engaged inwards a merciless proportionality assessment of the mensurate too provided non one, but 2 less restrictive alternatives to attain the same aim.

Finally, it is worth highlighting that, dissimilar recent rulings (such every bit Dogan) that solely concern Turkish nationals, since neither Article 41(1) of the Additional Protocol nor Article xiii of Decision no. 1/80 were found to hold upward applicable, the Essent holding applies to the posting of workers that are nationals of any non-EU country betwixt undertakings established inwards different Member States.

Barnard & Peers: chapter 14

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