C-35/70

The reference made by Article 13(1) (a) to Regulation (EEC) No 3 of the Council on the establishment situated in the State social security for migrant workers are where the undertaking is established and applicable to a worker who is engaged by to which the worker is normally attached an undertaking pursuing its activity in a is meant essentially to limit the applicability Member State, is paid by that undertaking, of that provision to those workers engaged is answerable to it for misconduct, is able by undertakings normally pursuing their to be dismissed by it and who on behalf activity in the territory of the State in of the undertaking performs work tempo­ which they are established. rarily in another undertaking in another The provisions of Article 13(l)(a) of Member State.

In Case 35/70

Reference to the Court under Article 177 of the EEC Treaty by the Commission de première instance du contentieux de la sécurité sociale et de la mutualité sociale agricole du Bas-Rhin for a preliminary ruling in the action pending before that court between

S.A R.L. MANPOWER, Strasbourg regional centre,

1 —Language of the Case: French.

JUDGMENT OF 17. 12. 1970 — CASE 35/70

gives the following

JUDGMENT

Issues of fact and of law

I— Summary of the facts and which the company's personnel was posted procedure to work in undertakings in the Federal Republic were not sufficient under Regula­ The facts and procedure may be summarized tion No 3 of the EEC to make them subject as follows: to the French system of social security. On 29 August 1969 Manpower, a limited By decision dated 15 January 1970 the liability company the object of which is Commission de recours gracieux de la to hire out labour to meet the temporary Caisse primaire d'assurance maladie, Stras­ requirements of other undertakings for bourg, confirmed the Caisse's decision. qualified personnel, sent Mr Francis On appeal against this decision the Com­ Fehlmann to the site of a German company mission de premiere instance du contentieux in Karlsruhe for three days. On the same de la sécurité sociale et de la mutualité day Mr Fehlmann suffered an accident sociale agricole du Bas-Rhin decided on while working on the site. 17 June 1970 to refer the following question Following a request by Manpower for to the Court of Justice for a preliminary payment of the medical expenses incurred ruling under Article 177 of the EEC Treaty : in Germany, the Caisse primaire d'assu­ 'Can an undertaking of a Member State, rance maladie, Strasbourg, (hereinafter carrying on an activity similar to that referred to 'as 'the Caisse') informed the of the limited liability company Man­ company by letter of 14 November 1969 power, avail itself of the provisions of that in its opinion the conditions under Article 13(l)(a) of Regulation No 3?'

— the personnel is put by Manpower at 1 — Observations of Manpower the disposal of the German company at an hourly rate calculated in French currency; Manpower draws attention first of all to a series of facts. The temporary workers — on the site, workers must obey the which it sent to German companies for instructions of the site foreman, but short periods of always less than twelve such obedience does not affect the months were French citizens ordinarily relationship between Manpower and working on French territory, where they the said workmen; lived, and registered as a result with the Caisse primaire de securité sociale du — Manpower's representative on the site Bas-Rhin which had never raised any each week submits to the site foreman objection to receiving the payment of for approval a note of the hours of work contributions. completed together with the names and Manpower alone employs the personnel category of the workers ; engaged and it is only to Manpower that such personnel is bound by a contract of — accounts are payable net within 30 days. employment; Manpower alone is res­ ponsible for the payment of the wages and In accordance with Article 20 of the Statute social charges and is responsible for the of the Court of Justice of the EEC observa­ whole administration of its personnel. tions were submitted by the parties to the An agreement was signed in October 1969 main action and the Commission of the between Manpower France and the Confé­ European Communities. dération Générale du Travail, the latter After hearing the report of the Judge- recognizing the usefulness of the under­ Rapporteur and the views of the Advocate- taking for temporary employment which

met the interests of workers as well as that 2. Observations of the Caisse Primaire of undertakings subject to the fluctuations d'Assurance Maladie, Strasbourg of the market. Atter stressing that workers engaged by The Caisse observes that workers engaged Manpower are attached only to that by Manpower are not sent to the Federal undertaking, which is established on French Republic of Germany by that company to territory, the plaintiff observes that the do work for it but are hired out by it to amendment made by the Council to the other undertakings to do work for them. original wording of Article 13 (1) (a) by It stresses that the object of Manpower is Regulation No 24/64 in using the phrase not to do work but to engage workers for 'anticipated duration of the work' relates the purpose of putting them for a consider the exception in Article 13 (1) (a) to ation at the disposal of undertakings essentially uncertain and temporary posting needing labour and concludes that this and does this in particular to prevent trade cannot be equated with sending subcontractors from trying by the inter workers abroad within the meaning of mediary of more or less genuine under

work. The sphere of this activity is on all munity regulations providing for the fours with the sphere covered by the ex retention under the original system of ception in Article 13 (1) (a) which for workers sent abroad. reasons of convenience allows workers to Alternatively the Caisse observes that it be kept under the system to which they did not have knowledge of Mr Fehlmann's are usually subject, when they are sent for being sent to Germany until after the a short period to another member country accident occurred on 29 August 1969.

3. Observations of the Commission of the taking to whom they are hired, the plaintiff European Communities observes that its main object is to send workers engaged by it to hiring under The Commission considers that, although takings which have a temporary need of the wording of the question raised by the them. As a result all the workers who are French court is closely related to the sent on a job to customers fulfil the Object present case, it raises a question of principle of Manpower and thus do work for that under Article 177 of the EEC Treaty. undertaking within the meaning of Article In accordance with the opinion which it 13 (1) (a) which, when it speaks of doing expressed in Case 19/67 the Commission work for an undertaking, is not contem thinks that in order to establish whether, plating an economic fact, but laying down in the case of the hiring out of labour, the a criterion of a legal relationship. exception provided for in Article 13 (1) (a)

Grounds of judgment

1 By order dated 17 June 1970, received at the Registry on 20 July 1970, the Commis­ sion de première instance du contentieux de la sécurité sociale et de la mutualité sociale agricole du Bas-Rhin referred to the Court for a preliminary ruling under Article 177 of the Treaty establishing the EEC the question whether an undertaking of a Member State, pursuing an activity similar to that of Sàrl Manpower, can take advantage of the provisions of Article 13 (1) (a) of Regulation No 3 of the Council of the EEC of 25 September 1958 as amended by Regulation No 24/64 of the Coun­ cil of the EEC of 10 March 1964.

2 The object of this question is to determine whether the French Caisse d'assurance maladie is responsible for reimbursing the medical expenses arising from an accident involving a worker engaged by Manpower when he was working on a site in Germany where he had been sent by the said company.

JUDGMENT OF 17. 12. 1970 — CASE 35/70

3 It appears from the file submitted to the Court that the question raised relates to an undertaking having its normal activity in a Member State which according to the general conditions of its contracts engages workers to 'post' them to other under­ takings in order to provide for temporary needs for qualified personnel.

4 For this purpose it stipulates, with the personnel in question, a contract of em­ ployment providing reciprocal rights and obligations between it and its temporary workers for work to be done by the latter in the hiring undertakings.

MANPOWER ν CAISSE D'ASSURANCE

11 But for this exception, an undertaking established in the territory of a Member State would be required to register its workers, normally subject to the social security legislation of that State, with the social security system of other Member States where they were sent to perform work of short duration.

12 Moreover, the worker would suffer more often than not because national legislative systems generally exclude short periods from certain social benefits.

13 It is maintained that, since the object of the undertaking is not to do work but to engage workers to put them for a consideration at the disposal of other under­ takings, the sending of workers to undertakings in other Member States cannot be equated with the posting of workers abroad provided for in Article 13 (1) (a) of Regulation No 3.

14 The sole fact that a worker has been engaged to work in the territory of a Member State other than that in which the undertaking which engages him is established cannot of itself rule out the application to such worker of the provisions of the abovementioned Article 13 (1) (a).

15 Since the activity of the undertaking which engages the worker takes place in the Member State where it has its establishment, Article 13 (1) (a) applies by reason of the fact that the worker is attached to that undertaking and there is no necessity to enquire whether the object of the undertaking is to do work or not.

21 This interpretation is moreover in accordance with the abovementioned objectives.

Costs

22 The costs incurred by the Commission, which has submitted observations to the Court, are not recoverable and as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, it is for that court to make a decision as to costs.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur ; Upon hearing the oral observations of the parties in the main action and the Com­ mission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 48, 51 and 177;, Having regard to Regulation No 3 of the Council concerning social security for migrant workers, as amended by Regulation No 24/64 of 10 March 1964, especially Articles 12 and 13 (1) (a); Having regard to the Protocol on the Statute of the Court of Justice of the EEC; Haying regard to the Rules of Procedure of the Court of Justice of the European Communities;

THE COURT

Delivered in open court in Luxembourg on 17 December 1970.

A. Van Houtte R. Lecourt

Registrar President

OPINION OF MR ADVOCATE-GENERAL DUTHEILLET DE LAMOTHE DELIVERED ON 8 DECEMBER 1970<apnote>1</apnote>

Mr President, in 1968 by l'Institut de sociologie of the Members of the Court, Free University of Brussels, some informa­ tion on comparative law. This is the first case, it appears, which is In spite of its fragmentary and imprecise going to involve the Court in relating the nature, I do not think I shall be wasting activity of undertakings providing 'tem­ the Court's time by briefly summarizing porary labour' or providing for 'temporary the information which I have been able to work' to the Community provisions on collect. migrant workers. Undertakings providing for temporary This is the reason why you wished to have work, it appears, originated in the United some information on such undertakings Kingdom and developed between the two and on the importance of their activity in world wars in particular in the United the five Member States in which they are States. permitted to carry on business. Certain undertakings of this nature ap­ The Commission has unfortunately not peared in certain European countries at the been able to supply you with a general same time, in particular in France, where picture. the first, 'Business Aid', was founded in For my part I have been able only to 1926, but they were only of a very limited assemble some statistics relating solely importance and their activity was mainly to France and, thanks to a work published devoted to satisfying the temporary require-