Avis juridique important

Judgment of the Court (Sixth Chamber) of 16 January 1997. - Unità Socio-Sanitaria Locale nº 47 di Biella (USSL) v Istituto nazionale per l'assicurazione contro gli infortuni sul lavoro (INAIL). - Reference for a preliminary ruling: Pretura circondariale di Biella - Italy. - Workers - Labour procurement service - Statutory monopoly. - Case C-134/95. European Court reports 1997 Page I-00195

Summary Parties Grounds Decision on costs Operative part

1 Preliminary rulings - Jurisdiction of the Court - Limits - Question aimed at enabling the national court to assess the compatibility with Community law of a national provision on which the decision in the main proceedings does not depend

(EC Treaty, Art. 177)

2 Freedom of movement for persons - Workers - Freedom of establishment - Freedom to provide services - Provisions of the Treaty - Inapplicable to a situation purely internal to a Member State

(EC Treaty, Arts 48, 52 and 59)

3 The Court has no jurisdiction to give a preliminary ruling on a question submitted by a national court where it is quite obvious that the interpretation of Community law sought by that court bears no relation to the actual facts of the main action or its purpose or where the problem is hypothetical and the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it.

That is the case where the Court is asked to supply the national court with a ruling on the interpretation of Community law so as to enable the latter to assess the compatibility with Community law of a provision of national law, where the information available to the Court does not indicate that it will have to be applied by the national court when giving a decision on the main proceedings.

4 Articles 48, 52 and 59 of the Treaty do not apply to a situation which is confined in all respects within a single Member State, such as that where a company whose seat is in one Member State supplies services, without using workers from other Member States or even envisaging using such workers, to a public body established in that same Member State.

In Case C-134/95,

REFERENCE to the Court under Article 177 of the EC Treaty by the Pretura Circondariale, Biella (Italy), for a preliminary ruling in the proceedings pending before that court between

Unità Socio-Sanitaria Locale No 47 di Biella (USSL)

and

Istituto Nazionale per l'Assicurazione contro gli Infortuni sul Lavoro (INAIL)

on the interpretation of Articles 48, 49, 54 and 90 of the EC Treaty,

THE COURT

(Sixth Chamber),

composed of: J.L. Murray, President of the Fourth Chamber, acting for the President of the Sixth Chamber, C.N. Kakouris, P.J.G. Kapteyn (Rapporteur), G. Hirsch and H. Ragnemalm, Judges,

Advocate General: M.B. Elmer,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

- Unità Socio-Sanitaria Locale No 47 di Biella (USSL), by Marco Bozzalla, of the Biella Bar,

- INAIL, by Pasquale Varone, Pasquale Napolitano and Vittorio Lai, of the Rome Bar,

- the Italian Government, by Professor Umberto Leanza, Head of the Legal Department at the Ministry of Foreign Affairs, acting as Agent, assisted by Danilo del Gaizo, Avvocato dello Stato,

- the German Government, by Ernst Röder, Ministerialrat at the Federal Ministry for Economic Affairs, and Gereon Thiele, Assessor in the same Ministry, acting as Agents,

- the Commission of the European Communities, by Enrico Traversa, of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of INAIL, the Italian Government and the Commission at the hearing on 26 September 1996,

after hearing the Opinion of the Advocate General at the sitting on 24 October 1996,

gives the following

Judgment

1 By order of 30 March 1995, received at the Court on 24 April 1995, the Pretura Circondariale (District Magistrate's Court), Biella, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty two questions on the interpretation of the Community principles referred to in Articles 48, 49, 54 and 90 of the EC Treaty.

2 Those questions were raised in proceedings between Unità Socio-Sanitaria Locale No 47 di Biella (`USSL') and Istituto Nazionale per l'Assicurazione contro gli Infortuni sul Lavoro (`INAIL', National Insurance Fund for Accidents at Work) concerning the payment of social security contributions.

3 Article 1(1) of Law No 1369 of 23 October 1960 (`the 1960 Law') prohibits employers from entrusting to an intermediary or subcontractor, or any other type of body including a cooperative society, the mere provision of labour using workers taken on and paid by the intermediary or subcontractor, whatever the nature of the work or service to which the provision of labour relates.

4 USSL concluded a contract for the provision of welfare services with the cooperative La Famiglia for 1987.

5 On 21 December 1993 INAIL issued a formal demand to USSL for payment of LIT 9 200 105, representing social security contributions on wages paid to workers employed under that contract during the period from 1 January to 31 December 1987.

6 INAIL considered that the contract concluded between USSL and La Famiglia constituted a fictitious procurement of labour, prohibited by Article 1(1) of the 1960 Law, inasmuch as workers who were members of the cooperative in reality carried on their activities under the auspices of USSL staff. According to INAIL, those workers should have been regarded as employees of USSL, which would then have been bound, as their actual employer, to pay insurance contributions in respect of accidents in the workplace and occupational diseases.

7 By application lodged on 21 January 1994 before the Pretore di Biella, USSL raised an objection to INAIL's formal demand for payment.

8 In his order for reference, the Pretore di Biella refers to Article 1(1) of the 1960 Law and to Article 11(1) of Italian Law No 264 of 29 October 1949 (`the 1949 Law'), according to which the procurement of labour and any other activity as an intermediary in the demand for and supply of workers, apart from public placement services, are prohibited even if the activity is carried on free of charge.

9 The Pretore di Biella notes that the protection provided for under Italian law operates independently of any expression by the worker of a contrary intention and that the consequence of its application, in the current economic and political climate, is to reduce opportunities on the employment market still further, by rendering illegal forms of association which specifically ensure greater competitiveness on the market itself.

10 Consequently, Article 1(1) of the 1960 Law in conjunction with Article 11 of the 1949 Law, which provide that the procurement of labour is to be a monopoly of the State, appear to the Pretore di Biella to be contrary to the fundamental principles of European Community law on freedom in relation to work, business enterprise, establishment, the interplay between supply and demand, and competition, as laid down in Articles 48, 49, 54 and 90 of the EEC Treaty, in view of the fact that in any case the Italian State is incapable of satisfying demand in the labour market.

11 Taking the view that, in the circumstances, the outcome of the case depended on an interpretation of the abovementioned provisions of Community law, the Pretore di Biella stayed the proceedings and referred the following questions to the Court for a preliminary ruling:

`1. Is Article 1(1) of Law No 1369 of 23 October 1960, read in conjunction with Article 11(1) of Law No 264 of 29 October 1949, compatible with the Community principles laid down in Articles 48, 49, 54 and 90 of the EEC Treaty?

2. Do those principles have direct effect, with the result that the Italian legislation has to be set aside?'

13 In this case, it appears from the case-file that the specific context of the dispute before the national court is defined by Article 1(1) of the 1960 Law, which prohibits persons from acting as intermediaries or middlemen in employment relations.

14 The questions referred to the Court for a preliminary ruling are broader in scope, inasmuch as they also raise the problem of the compatibility with Community law of Article 11(1) of the 1949 Law, which lays down the principle that any mediation, even if free of charge, is prohibited where the placement is entrusted to authorized offices.

15 Although it is true that the national court expresses doubts as to whether the effect of the combined application of the two provisions cited above on the Italian employment market is compatible with Community law, neither the order for reference nor the written observations provide the factual and legal information that would enable the Court to interpret Community law, in particular in the field of competition, having regard to the situation thus created on the Italian market.

18 In view of the reference made by the Pretore di Biella to the principles of freedom of movement for persons and freedom to provide services, the questions submitted to the Court must be understood as seeking, essentially, to ascertain whether Articles 48, 52 and 59 preclude a national provision which prohibits persons from acting as intermediaries or middlemen in employment relations (Question 1) and whether those provisions have direct effect (Question 2).

Question 1

20 It is clear from the order for reference that La Famiglia, a cooperative, is a supplier of services which has its seat in Italy, and that it has provided services to a public body, the USSL, which is also established in Italy.

21 Moreover, as the Advocate General stated in point 24 of his Opinion, there is nothing in the file to indicate that the services concerned were provided by workers from other Member States, or even that that was envisaged.

22 That situation has no connection whatsoever with any of the situations envisaged by Community law in the area of freedom of movement for persons and services.

Question 2

24 In view of the answers given to the first question referred to the Court, there is no need for a ruling on the second question.

Costs

25 The costs incurred by the Italian and German Governments and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT

(Sixth Chamber),

in answer to the questions referred to it by the Pretura Circondariale, Biella, by order of 30 March 1995, hereby rules:

Articles 48, 52 and 59 of the EC Treaty do not apply to a situation which is confined in all respects within a single Member State.