ECJ Article 59 of the Treaty (now, after amendment, Article 49 EC) and Article 60 of the Treaty (now Article 50 EC) do not preclude a Member State from imposing national rules guaranteeing entitlement to paid leave for posted workers on a business in the construction industry established in another Member State which provides services in the first Member State by posting workers for that purpose, on the two-fold condition that: (i) the workers do not enjoy an essentially similar level of protection under the law of the Member State where their employer is established, so that the application of the national rules of the first Member State confers a genuine benefit on the workers concerned, which significantly adds to their social protection, and (ii) the application of those rules by the first Member State is proportionate to the public interest objective pursued.
Article 59 of the Treaty (now, after amendment, Article 49 EC) and Article 60 of the Treaty (now Article 50 EC) do not preclude the extension of the rules of a Member State which provide for a longer period of paid leave than that provided for by Directive 93/104, concerning certain aspects of the organisation of working time, necessary for the social protection of construction workers to workers posted to that Member State by providers of services in the construction sector established in other Member States during the period of the posting.
Article 59 of the Treaty (now, after amendment, Article 49 EC) and Article 60 of the Treaty (now Article 50 EC) do not preclude national rules from allowing businesses established in the host Member State to claim reimbursement of expenditure on holiday pay and holiday allowances from the paid leave fund, whereas it does not provide for such a claim in the case of businesses established in other Member States, but instead provides for a direct claim by the by the posted workers against the fund, in so far as a difference in their treatment is justified by objective differences between businesses in the construction sector established in the host Member State and those established in other Member States as regards the effective implementation of the obligation to give holiday pay to workers.
The obligation, imposed by national rules designed to provide effective protection of workers in the construction industry, in particular as regards their entitlement to paid leave, on undertakings established in another Member State which post workers to work in the national territory, to disclose more information to the paid leave fund than employers established in the host Member State constitutes a restriction on the freedom to provide services within the meaning of Article 59 of the Treaty (now, after amendment, Article 49 EC).
Such a restriction may be justified only if it is necessary in order to safeguard, effectively and by appropriate means, the overriding public interest of the social protection of workers.
It is for the national court to determine, having regard to the principle of proportionality, the type of information that the authorities of the Member State concerned may reasonably require of providers of services established in another Member State. For this purpose, the national court should consider whether the objective differences between the position of businesses established in the national territory and that of businesses established in other Member States objectively require the additional information required of the latter.
Article 59 of the Treaty (now, after amendment, Article 49 EC) and Article 60 of the Treaty (now Article 50 EC) preclude the application of a Member State’s scheme for paid leave to all businesses established in other Member States providing services to the construction industry in the first Member State where businesses established in the first Member State, only part of whose activities are carried out in that industry, are not all subject to that scheme in respect of their workers engaged in that industry.
Citations:
C-49/98, [2001] EUECJ C-49/98, C-70/98, C-71/98, C-50/98, C-52/98, C-53/98, C-54/98, C-68/98, C-69/98, [2001] ECR I-7831, [2003] 2 CMLR 11
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Cited by:
Cited – International Transport Workers’ Federation and Another v Viking Line Abp and Another CA 3-Nov-2005
An order had been made restraining the defendant trades unions from taking industrial action. The unions said the UK court had no jurisdiction.
Held: ‘It is at first sight surprising that the English Commercial Court should be the forum in . .
Cited – O’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .
Lists of cited by and citing cases may be incomplete.
European, Employment
Updated: 04 June 2022; Ref: scu.166754