Conclusions of advocate general Wahl about requiring a recipient of services provided by workers posted by an undertaking established in another Member State

Opinion of advocate general Wahl delivered on 8 May 2018 about freedom to provide services — National legislation requiring a recipient of services to provide security in order to secure a fine that might be imposed on a service provider established in another Member State (Articles 16 and 19 of Directive 2006/123/EC)

In the present case the Court is asked to rule on whether EU law precludes a Member State from requiring a recipient of services provided by workers posted by an undertaking established in another Member State to provide security and suspend payments to that undertaking. According to the relevant provisions of national law, the outstanding fee for such services must be paid to the authorities of the host Member State to secure the payment of a fine that could possibly, in the future, be incurred by the provider for breaching certain provisions of the national labour legislation.

In order to determine whether the national measure at issue is contrary to EU law, the Court will have to examine the interaction between the EU rules on freedom to provide services laid down in Article 56 TFEU, Directive 2006/123/EC (2) and Directive 2014/67/EU (3) on the one hand, and national rules that the relevant Member State claims are part of its labour legislation, on the other.

Conclusions of advocate general

According to Wahl, the measure is incompatible with Articles 16 and 19 of the Services Directive. Wahl considers that the measure at issue also constitutes a restriction on the recipient of services and, consequently, is caught by the prohibitions laid down in Article 16(2)(g) and Article 19 of the Services Directive. However, I have also explained that, with regard to the requirements referred to in those provisions, no justification is in principle permissible.

In opinion of Wahl, the answer to the questions referred should be that Articles 16 and 19 of the Services Directive preclude a Member State from ordering a recipient of services to suspend payments and to provide security equal to the amount outstanding for a service provided, through posted workers, by a provider established in another Member State, where the measure at issue serves to secure the payment of a possible fine, which may subsequently be imposed on the provider by the host Member State, for a breach of the latter’s labour legislation.

Article 56 TFEU

In Wahl´s view, the answer to the questions referred would be no different even if the Court were to consider the provisions of the Services Directive inapplicable to the main proceedings and, as a consequence, to examine the compatibility with Article 56 TFEU of a measure such as that at issue.

Existence of a restriction

According to settled case-law, Article 56 TFEU requires not only the elimination of all discrimination on grounds of nationality against providers of services established in another Member State, but also the abolition of any restriction on the freedom to provide services, 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 attractive the activities of a service provider established in another Member State where it lawfully provides similar services. In this sense, Wahl consideres that the measure at issue is capable of restricting the rights service providers and recipients of services derive from Article 56 TFEU. It thus remains to be assessed whether the restriction may be justified.