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Judgment of the Court (First Chamber) of 21 October 2004.

Commission of the European Communities v Grand Duchy of Luxemburg.

C-445/03 • 62003CJ0445 • ECLI:EU:C:2004:655

  • Inbound citations: 28
  • Cited paragraphs: 0
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Judgment of the Court (First Chamber) of 21 October 2004.

Commission of the European Communities v Grand Duchy of Luxemburg.

C-445/03 • 62003CJ0445 • ECLI:EU:C:2004:655

Cited paragraphs only

Case C-445/03

Commission of the European Communities

v

Grand Duchy of Luxembourg

(Failure of a Member State to fulfil obligations – Freedom to provide services – Requirements imposed by the host Member State on undertakings which deploy within its territory salaried workers who are nationals of non‑member countries)

Summary of the Judgment

Freedom to provide services – Restrictions – Requirement of individual work permits or a collective work permit and obligation to provide a bank guarantee for service providers established in another Member State deploying workers who are nationals of non-member countries – Not permissible – Justification – Social protection of workers – Stability of the labour market – Disproportionate and inappropriate nature of the requirements at issue

(Art. 49 EC)

A Member State which imposes on service providers established in another Member State wishing to deploy in its territory workers who are nationals of non-member countries a requirement of individual work permits, the issuance of which is subject to considerations relating to the employment market, or a requirement of a collective work permit, which is granted only in exceptional cases and only when the workers concerned have, for at least six months prior to the deployment, been in a relationship with their undertaking of origin through a contract of employment of indefinite duration, and which requires those service providers to provide a bank guarantee, fails to fulfil its obligations under Article 49 EC.

Reasons of social welfare or stability in the labour market cannot justify such conditions being imposed on the freedom to provide services, as those requirements are not appropriate means for pursuing those objectives. An obligation imposed on a service-providing undertaking to report beforehand to the local authorities on the presence of one or more deployed workers, the anticipated duration of their presence and the provisions of services justifying the deployment, and to provide information showing that the situation of the workers concerned is lawful as regards matters such as residence, work permit and social coverage in the Member State in which that undertaking employs them would give those authorities, in a less restrictive but just as effective a manner as the requirements at issue, a guarantee that the national social welfare legislation is being complied with during the deployment and, in addition, that the situation of those workers is lawful and that they are carrying on their main activity in the Member State in which the service‑providing undertaking is established.

(see paras 27, 31, 36, 46, 48-50, operative part)

JUDGMENT OF THE COURT (First Chamber) 21 October 2004 (1)

(Failure of a State to fulfil obligations – Freedom to provide services – Requirements imposed by the host Member State on undertakings which deploy within its territory salaried workers who are nationals of non‑member countries)

In Case C-445/03,ACTION under Article 226 EC for failure to fulfil obligations,brought on 21 October 2003,

applicant,

v

defendant,

THE COURT (First Chamber),,

composed of: P. Jann, President of the Chamber, K. Lenaerts (Rapporteur), K. Schiemann, E. Juhász and M. Ilešič, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 15 July 2004,

gives the following

the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 49 EC.

‘Without prejudice to the provisions relating to entry into and residence in the Grand Duchy of Luxembourg, no alien may work in a manual or non-manual capacity in Luxembourg without being authorised to do so pursuant to the present regulation.

The provisions of the present regulation shall not apply to workers who are nationals of a Member State of the European Union or of a State party to the Agreement on the European Economic Area.’

‘No employer may employ a foreign worker who does not hold a valid work permit and who has not made a prior declaration to the National Labour Office concerning the post to be filled.

That declaration, to be completed in duplicate and duly countersigned by the worker, shall constitute an application for obtaining or renewing a work permit, in the case of a worker who does not yet hold a work permit or whose work permit has expired or whose work permit is valid only for a given employer or line of work.

A receipt of the declaration submitted pursuant to the second paragraph of the present article shall be issued by the National Labour Office to the worker concerned. That receipt shall constitute a temporary work permit. A copy shall be sent to the employer.

In the event of a work permit being refused, the temporary work permit shall automatically expire.’

‘The work permit shall be issued, refused or withdrawn by the Minister for Labour or his representative acting pursuant to the opinion of the [special advisory committee] provided for in Article 7a of the present regulation and the opinion of the labour administration. The two opinions shall take account inter alia of the situation, evolution and organisation of the labour market.’

‘A collective work permit may be issued in exceptional cases for foreign workers deployed temporarily in the Grand Duchy of Luxembourg on behalf of either a foreign undertaking or a Luxembourg undertaking, at the request of the undertaking under whose authority the workers are employed.

A collective work permit within the meaning of the preceding subparagraph may be issued only for those workers who are in a relationship through a contract of employment of indefinite duration with their undertaking of origin which is effecting the deployment, on condition that that contract began at least six months prior to the employment in the territory of the Grand Duchy of Luxembourg for which the collective work permit is requested.’

‘Individual work permits and collective work permits shall be issued only once the employer has provided proof of a bank guarantee with a duly accredited financial institution covering possible repatriation costs for the workers for whom a work permit is requested.

The amount of the bank guarantee shall be fixed by the special advisory committee established by Article 7a of the present regulation and may not be lower than LUF 60 000 per worker.’

On those grounds, the Court (First Chamber) hereby:

Signatures.

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