Brussels, 16/04/2002 (Agence Europe) - The European Commission has decided to refer Belgium and Germany to the European Court of Justice and send Luxembourg and Austria formal requests because of the obstacles to the free movement of services. Companies established in one Member State often encounter difficulties when they want to send staff members who are not Community nationals to another Member State to provide services. These difficulties stem primarily from requirements governing entry (visa), residence and employment. The Commission believes that restrictions of this kind are contrary to Article 49 of the Treaty (free movement of services) and the case law of the Court of Justice in its judgements Rush Portuguesa and Vander Elst. "The Court ruled that the requirement to obtain a work permit for nationals of non-member countries who already have a regular work contract in the Member State in which their employer is established exceeded what could be demanded as a necessary requirement for providing services". In practice, the effects of such requirements concerning entry, residence and employment are that the freedom to provide or receive services in fields (e.g. construction, information technologies) requiring the physical movement of staff, often for short periods and at short notice, becomes "difficult or even merely notional". Similarly, it is often virtually impossible for a company in another Member State to respond to an invitation to tender within the set deadlines because of the cumbersome formalities to be satisfied with regard to "visa and residence permits". The Commission demonstrates that:
In Germany, the posting of workers who are nationals of non-member countries in connection with the provision of services is subject to obtaining a "working visa" which is issued only if the worker has been employed by the service provider for at least one year before his posting. This condition constitutes an unwarranted and disproportionate restriction on the freedom to provide services.
Belgium has replaced the requirement of obtaining a work permit in connection with a posting by a residence permit. However, because of the burdensome conditions imposed, the system that has been introduced does not comply with the principles outlined by the Court of Justice.
In Luxembourg, the posting of workers who are nationals of non-member countries is subject to obtaining a work permit, which is issued only after the situation of the labour market has been considered. This is also against the principles upheld by the Court.
In Austria, the requirement of a work permit has been replaced by a system of "confirmation of posting", which de facto constitutes a permit system, in that the absence of such confirmation results in fines and a refusal to allow the posted workers in question to enter and reside in the country.