Where an undertaking hires out, for remuneration, staff who remain in the employ of that undertaking, no contract of employment being entered into with the user, its activities constitute an occupation which satisfies the conditions laid down in the first paragraph of article 60 of the eec treaty. Accordingly they must be considered a ‘ ‘ service ‘ ‘ within the meaning of that provision.
The essential requirements of article 59 of the treaty became directly and unconditionally applicable on the expiry of the transitional period. Those essential requirements abolish all discrimination against the person providing the service by reason of his nationality or the fact that he is established in a member state other than that in which the service is to be provided. The freedom to provide services is one of the fundamental principles of the treaty and may be restricted only by provisions which are justified by the general good and which are imposed on all persons or undertakings operating in the member state in which the service is to be provided in so far as that interest is not safeguarded by the provisions to which the provider of the service is subject in the member state of his establishment.
Article 59 of the treaty does not preclude a member state which requires agencies for the provision of manpower to hold a licence from requiring a provider of services established in another member state and pursuing such activities on the territory of the first member state to comply with that condition even if he holds a licence issued by the state in which he is established, provided, however, that in the first place when considering applications for licences and in granting them the member state in which the service is provided makes no distinction based on the nationality of the provider of the services or his place of establishment, and in the second place that it takes into account the evidence and guarantees already produced by the provider of the services for the pursuit of his activities in the member state in which he is established.
Citations:
C-279/80
European, Employment
Updated: 11 May 2022; Ref: scu.133160