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	Číslo (Kód CELEX): Number (CELEX Code):		61994J0272

	Název: Title:		Judgment of the Court (First Chamber) of 28 March 1996. Criminal proceedings against Michel Guiot and Climatec SA, as employer liable at civil law. Reference for a preliminary ruling: Tribunal correctionnel d' Arlon - Belgium. Employer' s contributions - Loyalty stamps - Bad-weather stamps - Freedom to provide services. Case C-272/94.

	Publikace: Publication:		European Court Reports 1996 page I-1905

	Předmět (klíčová slova): Keywords

	Související předpisy: Corresponding acts:

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		[527a] Säger/Dennemeyer Case C-76/90 Säger v Dennemeyer [1991] ECR I-4221 · [661] Vander Elst Case C-43/93 Vander Elst v Office des Migrations Internationales [1994] ECR I-3803 · Case C-180/89 Commission v Italy [1991] ECR I-709 · Case C-198/89 Commission v Greece [1991] ECR I-727 · Rush Portuguesa Case C-113/89 Rush Portuguesa [1990] ECR I-1417


	Plný text: Fulltext:		Ne

Fakta:
Mr Guiot was the managing director of Climatec SA (“Climatec”), a company governed by Luxembourg law, engaged in construction work. During the period of March 1992 to March 1993, four of Climatec’s workers were employed at a site in Arlon (Belgium).
Pursuant to Belgian Collective Labour Agreements applicable to the construction sector which have been made obligatory by law, the employer is required to pay contributions to the Fonds de Sécurité de la Construction (Construction Workers Subsistence Funds) in the form of
“timbres-fidélité”
and
“timbres-intempéries”
(loyalty and bad-weather stamps). Those contributions, which are intended to cover the risk of lay-offs during bad-weather periods on the one hand and to cover loyalty premiums for the workers, amount to 2 % and 9 % respectively of the gross remuneration of the worker. Climatec failed to pay these contributions because basically the same risks are already covered by binding Collective Agreements in Luxembourg. Under these latter agreements, the employer is liable, in the event of lay-offs during bad winter weather to pay compensatory wages in the amount of 80 % of the normal gross hourly salary of the worker. Furthermore, he is obliged to pay an end-of-year premium of 3 % of the gross salary.
In the course of criminal proceedings initiated against Mr Guiot and Climatec, the Tribunal Correctionnel (Criminal Court), Arlon, considered that the outcome of the proceedings depended on the interpretation of Community and therefore under Article 177 of the Treaty referred to the Court of Justice the question (as restated by the Court) whether Articles 59 and 60 of the Treaty preclude a Member State from requiring an undertaking established in another Member State and temporarily carrying out works in the first Member state to pay employer’s contributions in respect of
timbres-fidélité
and
timbres-intempéries
for employees assigned to those works, where that undertaking is already liable for comparable employer’s contributions with respect to the same employees and for the same period of work in the State where he is established.

Názor soudu a komentář:
Article 59 of the Treaty requires not only the elimination of all discrimination on grounds of nationality against providers of services who are established in another Member State but also the abolition of any restriction, even if it applies without distinction to national providers, of services and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activity of a provider of services established in another Member State where he lawfully provides similar services” ( [527a]
Säger/Dennemeyer
; [661]
Vander Elst
). Even if there is not harmonization in the field, the freedom to provide services, as one of the fundamental principle of the Treaty, may be restricted only by rules justified by overriding requirements of public interest and applicable to all persons and undertakings operating in the territory of the State where the service is provided, in so far as that interest is not safeguarded by the rules to which the provider of such service is subject in the Member State where he is established” ( [661]
Vander Elst;
Case C-189/89; Case 198/89). These principles are also applicable with respect to collective labour agreements which have been made obligatory by the law of a Member State ( [484]
Rush Portuguesa
).
The Court examines the present case on the basis of these principles established in its case-law. It therefore determines, first, whether the requirements imposed by the Belgian legislation have a restrictive effect on the freedom to provide services and, second, if so, whether those restrictions are justified on overriding requirements of the public interest.
The Belgian legislation constitutes a restriction to the freedom to provide services because, by requiring the employer to contribute to a social security funds which covers risks which are already taken care of by provisions of his Member State of establishment, it increases the employer’s costs and thus amounts to a disadvantage in his competitive position.
While the Court accepts that considerations of social protection of workers in the construction industry may, in principle, constitute an overriding requirement justifying a restriction to the freedom to provide services, it does not accept such justification where the workers enjoy the same, or essentially similar protection by virtue of employer’s contributions paid in his Member State of establishment. Whether the legislation in the Member State of establishments affords “essentially similar protection” is a matter for the national court to determine. As the Court clarifies, it is not necessary, under this concept, that the protection ensured in the Member State of establishment is identical to that sought by the measures of the host Member State. In particular, “any technical differences in the operation of the two schemes cannot justify such a restriction” as that presently in issue.

Shrnutí (Summary of the Judgment):

Plný text judikátu (Entire text of the Judgment):