Brussels, 29/06/2007 (Agence Europe) - The European Commission has decided to refer Belgium to the European Court of Justice (ECJ) for the conditions it imposes on EU employers providing cross-border services who want to post non-EU workers to the country. The Commission believes that these conditions fall foul of the Treaty provisions on the free movement of services (Article 49 of the Treaty). In a press release, the Commission explains that it has sent a supplementary reasoned opinion (in addition to the one sent in 2005). It considers Belgium is failing to apply the ECJ rulings because: 1) some postings of non-EU workers remain subject to preliminary checks by the Belgian authorities, even though the workers are already living and working legally in another Member State. As stated by the ECJ in January 2006 in its judgment in a similar case against Germany, checks may not be carried out prior to the posting of workers; 2) workers on postings have to have a residence permit issued in their employer's country of establishment which is valid for three months after the period in which services are to be provided. The Commission believes that this again goes beyond the conditions set out by the ECJ in the Vander Elst judgment, whereby it is sufficient for a worker who is to be posted to another Member State to have regular, habitual employment in the Member State in which their employer is established; and 3) as for requiring all posted workers to have worked for the same employer for at least a year, such an obligation was rejected by the ECJ in its September 2006 judgment against Austria in another case regarding the posting of non-EU workers.
The Commission adds that the conditions for posting staff abroad affect a company's ability to provide services and it regrets that EU companies often still face difficulties when they want to send non-EU staff to another Member State to provide services on a temporary basis. (gb)