Case C-245/09

Omalet NV

v

Rijksdienst voor Sociale Zekerheid

(Reference for a preliminary ruling from the Arbeidshof te Brussel)

(Freedom to provide services – Article 49 EC – Contractor established in a Member State – Recourse to contracting partners established in the same Member State – Purely internal situation – Inadmissibility of the reference for a preliminary ruling)

Summary of the Judgment

Preliminary rulings – Jurisdiction of the Court – Limits – Request for interpretation of provisions of European Union law manifestly inapplicable in the main proceedings

(Art. 49 EC and 267 TFEU)

The Court has no jurisdiction where it is obvious that the provision of European Union law referred to the Court for interpretation is incapable of applying. Consequently, the Court does not have jurisdiction to deal with a reference for a preliminary ruling concerning the interpretation of the provisions of the EC Treaty relating to the freedom to provide services in proceedings in which all the facts are confined within a single Member State, such as a dispute involving a principal contractor and a subcontractor both established in the same Member State, and in which all the facts were confined to that Member State.

(see paras 10-11,13)

JUDGMENT OF THE COURT (First Chamber)

22 December 2010 ( * )

(Freedom to provide services – Article 49 EC – Contractor established in a Member State – Recourse to contracting partners established in the same Member State – Purely internal situation – Inadmissibility of the reference for a preliminary ruling)

In Case C‑245/09,

REFERENCE for a preliminary ruling under Article 234 EC, from the Arbeidshof te Brussel (Belgium), made by decision of 25 June 2009, received at the Court on 6 July 2009, in the proceedings

Omalet NV

v

Rijksdienst voor Sociale Zekerheid,

THE COURT (First Chamber),

composed of A. Tizzano, President of the Chamber, J.-J. Kasel, A. Borg Barthet, E. Levits (Rapporteur) and M. Berger, Judges

Advocate General: Y. Bot,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 7 October 2010,

after considering the observations submitted on behalf of:

– Omalet NV, by D. Van Der Mosen and H. Van de Cauter, advocaten,

– the Rijksdienst voor Sociale Zekerheid, by P. Derveaux, advocaat,

– the Belgian Government, by L. Van den Broeck and C. Pochet, acting as Agents,

– the Danish Government, by V. Pasternak Jørgensen, R. Holdgaard and C. Vang, acting as Agents,

– the German Government, by M. Lumma and J. Möller, acting as Agents,

– the Austrian Government, by E. Riedl, acting as Agent,

– the Finnish Government, by A. Guimaraes-Purokoski, acting as Agent,

– the United Kingdom Government, by H. Walker, acting as Agent, and T. de la Mare, barrister,

– the Norwegian Government, by Ø. Andersen and K.B. Moen, acting as Agents,

– European Commission, by M. van Beek and V. Kreuschitz, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the applicability and interpretation of Article 49 EC.

2 The reference has been made in the course of proceedings between Omalet NV (‘Omalet’) and the Rijksdienst voor Sociale Zekerheid (National Social Security Office) (‘the Rijksdienst’) concerning, firstly, Omalet’s joint and several liability, in its capacity as principal contractor, for part of the social security debts of an unregistered subcontractor established in Belgium, and, secondly, Omalet’s obligation to withhold payments to that subcontractor.

Legal context

3 Article 30a of the Law of 27 June 1969 revising the Decree-Law of 28 December 1944 on social security for workers, in the version applicable at the material time in the main proceedings (‘the Law of 1969’), stated as follows:

‘…

3. A principal who, for work covered by paragraph (1), has recourse to a contractor who is unregistered at the time the contract is concluded, shall be jointly and severally liable for the payment of that contractor’s social security debts.

A contractor who, for work covered by paragraph (1), has recourse to a subcontractor who is unregistered at the time the contract is concluded, shall be jointly and severally liable for the payment of that subcontractor’s social security debts.

…

Joint and several liability shall be limited to 50% of the total price, excluding value added tax, of the work commissioned from an unregistered contractor or subcontractor.

…

4. A principal who pays a contractor who is unregistered at the time of payment for all or part of the cost of work covered by paragraph (1) must, at the time of payment, withhold 15% of the sum invoiced, excluding value added tax, and pay that amount to [the Rijksdienst], in accordance with the detailed rules laid down by the King.

A contractor who pays a subcontractor for all or part of the cost of work covered by paragraph (1) must, at the time of payment, withhold 35% of the sum invoiced, excluding value added tax, and pay that amount to [the Rijksdienst], in accordance with the detailed rules laid down by the King.

The contractor is, however, excused from the obligation to withhold and pay laid down in the previous subparagraph, if, at the time of payment, in accordance with the detailed rules laid down by the King, the subcontractor does not owe debts to [the Rijksdienst] or to a subsistence fund or has obtained for the sums due deadlines for payment, without legal proceedings or by a judicial decision with the authority of res judicata, and strictly adheres to those deadlines and is registered as a contractor. To that end, [the Rijksdienst] shall create a database accessible to the public, which has the weight of evidence for the application of this subparagraph.

Where a contractor is an employer not established in Belgium, who does not have any social security debts in Belgium and all of whose employees are in the possession of a valid posting certificate, the withholding provisions in this paragraph are not applicable to the payment owed to that contractor’.

The dispute in the main proceedings and the questions referred for a preliminary ruling

4 Omalet, in its capacity as a project developer, had recourse to a subcontractor established but unregistered in Belgium. The subcontractor drew up two invoices, the first on 2 April 2003 for a sum of EUR 4 136.10, and the second on 29 April 2003 for a sum of EUR 4 493.69. Both invoices were paid.

5 The subcontractor was declared insolvent on 25 September 2003 and at that time owed EUR 57 593.87 to the Rijksdienst. Pursuant to Article 30a(3) of the Law of 1969, the Rijksdienst sought payment from Omalet of the sum of EUR 4 314.90 on the basis that it was jointly and severally liable for the social security debts of the subcontractor, limited to 50% of the total price of the work. Pursuant to Article 30a(4) of that law, payment of a further sum of EUR 6 040.85 was sought on the ground that Omalet had failed to make the deduction required under that article.

6 Having failed to reach an amicable settlement, the Rijksdienst, by summons issued on 25 April 2007, requested Omalet to appear before the Arbeidsrechtbank te Brussel (Brussels Labour Court). By a ruling of 25 April 2008, that court held that the Rijksdienst’s claim was well founded and ordered Omalet to pay the sum of EUR 10 355.75, together with statutory late payment interest from 1 February 2006 and interest relating to the judicial proceedings.

7 By an application of 23 May 2008, Omalet appealed against that ruling before the Arbeidshof te Brussel (Brussels Higher Labour Court), claiming, inter alia, that Article 30a of the Law of 1969 was incompatible with Articles 49 EC and 50 EC.

8 In those circumstances, the Arbeidshof te Brussel decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

‘(1) Must a national court apply Article 49 EC to a dispute between [the Rijksdienst] and a principal contractor established in Belgium, where judgment is sought against that principal contractor pursuant to Article 30a(3) of [the Law of 1969] (in the version applicable prior to the amendment of that article by Article 55 of the Programme Law of 27 April 2007) as being jointly and severally liable for a portion of the debts of a subcontractor who is unregistered and established in Belgium, or where judgment is sought against that principal contractor because he has not complied with the withholding obligation laid down by Article 30(4) of the Law of 1969?

(2) In the alternative, is Article 49 EC incompatible with a rule such as that laid down by Article 30a(3) and (4) of [the Law of 1969] (in the version applicable prior to the amendment of that article by Article 55 of the Programme Law of 27 April 2007)?

The Court’s jurisdiction

16 However, that does not apply in the present case. In its reference for a preliminary ruling, the referring court itself cited a judgment of the Grondwettelijk Hof (Constitutional Court) in which that court found that Article 49 EC did not apply where the case pending before the court was situated entirely within the domestic legal system. In answer to the question of whether Article 30a(1) of the Law of 1969 was incompatible with the principles of equality and non-discrimination enshrined by the Belgian Constitution in that it envisaged different treatment as between, on the one hand, principals and developers established in Belgium and having recourse to foreign contracting parties unregistered in Belgium, who can rely on Articles 49 and 50 EC, and, on the other, those having recourse to service providers established in Belgium, who cannot rely on those provisions, that court found that situations relating exclusively to the domestic legal system could not be compared with those falling within the jurisdiction of European Union law.

19 Therefore, the request for a preliminary ruling submitted by the Arbeidshof te Brussel must be regarded as inadmissible.

Costs

20 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

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

The reference for a preliminary ruling from the Arbeidshof te Brussel (Belgium), made by decision of 25 June 2009, is inadmissible.

[Signatures]

* Language of the case: Dutch.