C-62/81
ECLI:EU:C:1982:34
- Súd
- Súdny dvor Európskej únie
- IČS
- 61981CJ0062
- Zdroj
- eur-lex.europa.eu ↗
SECO v EVI
In Joined Cases 62 and 63/81
REFERENCES to the Court under Article 177 of the EEC Treaty by the Cour de Cassation [Court of Cassation] of the Grand Duchy of Luxembourg for a preliminary ruling in the disputes pending before that court between
SECO SA, a limited company incorporated under French law,
and
ÉTABLISSEMENT D'ASSURANCE CONTRE LA VIEILLESSE ET L'INVALIDITÉ (Old-age and Invalidity Insurance Institution),
and between
DESQUENNE & GIRAL SA, a limited company incorporated under French law,
and
ÉTABLISSEMENT D'ASSURANCE CONTRE LA VIEILLESSE ET L'INVALIDITÉ
on the interpretation of the provisions of the EEC Treaty on the freedom to provide services, in particular Article 60 thereof,
THE COURT
composed of: J. Mertens de Wilmars, President, G. Bosco, A. Touffait and O. Due (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, T. Koopmans, U. Everling, A. Chloros and F. Grévisse, Judges,
Advocate General : P. VerLoren van Themaat Registrar: J. A. Pompe, Deputy Registrar
gives the following
JUDGMENT OF 3. 2. 1982 — JOINED CASES 62 AND 63/81
JUDGMENT
Facts and Issues
The facts of the case, the course of the insertion of Article 174 was, on the one procedure and the observations sub- hand, that it would be inequitable to mitted under Article 20 of the Protocol collect contributions from workers who on the Statute of the Court of Justice of leave Luxembourg after only a limited the EEC may be summarized as follows: period of residence there; on the other hand, however, the temptation for employers to use foreign labour in order to alleviate the burden of paying their I — Facts and written procedure share of social insurance contributions must be avoided. Nevertheless, in practice the employer's share of contri- butions, provided for in the third 1. The Luxembourg Code des Assu- paragraph of Article 174, is not required rances Sociales [Social Insurance Code] in respect of workers who are tempo- provides that all workers who work in rarily resident in Luxembourg if they are Luxembourg are in principle to be nationals of a Member State or persons compulsorily insured for the purpose of treated as such, or in respect of workers obtaining an old-age or invalidity who are nationals of a country linked to pension. Half the contributions must be Luxembourg by an international conven- paid by the employer and half by the tion on social security. worker.
However, Article 174 of the Code des 2. The disputes in the main proceedings Assurances Sociales provides: are between the Établissement d'Assu- rance contre la Vieillesse et l'Invalidité Luxembourgeois [Luxembourg Old-age "An administrative regulation shall and Invalidity Insurance Institution, determine the conditions upon which hereinafter referred to as "the Luxem- temporary employment shall be exempt bourg institution"] and two undertakings from insurance. based in France, which specialize in con- struction work and the maintenance of the infrastructure of railway networks, The Government may exempt from in- Seco SA and Desquenne & Giral SA. surance foreigners who are only tempo- rarily resident in the Grand Duchy. In 1974 and 1977 those undertakings In the latter case, however, the employer carried out work of various kinds in the shall be liable for the share of contri- Grand Duchy of Luxembourg. For that butions for which he is personally purpose they temporarily seconded responsible." workers who were neither nationals of a Member State nor from a country linked to Luxembourg by an international It appears from the papers placed before convention on social security during the the Court that the reason for the period in question. It is not disputed that
SECO v EVI
during the entire duration of the work work in the first-named State and · carried out in Luxembourg those employing in that State workers who workers remained compulsorily affiliated are nationals of States which have no to French social security. connection with the Community, to pay the employer's share of contri- butions to old-age and invalidity insurance just as it requires its own The two undertakings obtained an nationals to do, or is that requirement exemption for the employees' share of contrary to the aforesaid Community insurance contributions pursuant to the provisions, or to any other provisions, second paragraph of Article 174 of the as constituting a discriminatory prac- Code des Assurances Sociales but were tice likely to prejudice the freedom to held liable by the Luxembourg institution provide services, since the Community for the employer's share of those contri- employer providing the service is butions pursuant to the third paragraph obliged to pay inter alia the of that article. employer's share of contributions in respect of his foreign workers first in his country of origin and establish- ment and then again in the State in which he is temporarily performing The two undertakings then brought services using foreign labour? proceedings against the decision of the Luxembourg institution holding them liable for the employer's share of contri- butions. They took the view that the 2. If the answer to Question 1 is to Luxembourg legislation for this purpose the effect that the practice described was not applicable to them because it above in principle constitutes a pro- was incompatible with the Treaty as hibited discriminatory practice, will being a discriminatory practice likely to the outcome necessarily be the same, impede the freedom to provide services or may it be different, if the supplier within the Community. of services in fact offsets the disad- vantage of having to pay employer's contributions twice by other economic factors such as wages paid to his The Cour de Cassation [Court of Cassa- foreign labour force which are less tion] of the Grand Duchy of Luxem- than the minimum wage fixed in the bourg stayed the proceedings and country in which the services are referred the following questions to the provided or than the wages laid down Court of Justice under Article 177 of the by collective labour agreements in EEC Treaty. The questions are the same force in that country? in both cases.
3. The orders making the reference 1. Must the provisions of Article 60 of were registered at the Court on the Treaty of Rome be interpreted to 19 March 1981. mean that under its national law a Member State of the European Communities may require a foreign legal or natural person, who is a By order of 13 May 1981 the Court national of a member country of the decided to join both cases for the Communities temporarily undertaking purposes of the procedure and judgment.
JUDGMENT OF 3. 2. 1982 — JOINED CASES 62 AND 63/81
In accordance with Article 20 of the and thus on their competitive position Protocol on the Statute of the Court of and thereby distorts the free play of Justice of the EEC written observations competition. Moreover, the employers' were lodged by Seco SA and Desquenne contributions paid by the undertakings & Giral SA, represented by Fernand are a source of permanent unjust enrich- Entringer of the Luxembourg Bar, by the ment for the Luxembourg institution Établissement d'Assurance contre la because it provides no benefit in return Vieillesse et l'Invalidité, represented by and there is no increased social security Jacques Loesch of the Luxembourg Bar, for the employees concerned. and by the Commission of the European Communities, represented by its Legal Adviser, Jean Amphoux, acting as Agent Article 59 and subsequent articles of the and assisted by Christine Berardis- EEC Treaty, which have been directly Kayser, a member of the Commission's applicable since the end of the Legal Department. transitional period, impose a clear obligation on Member States to abolish all restrictions on the freedom to provide Upon hearing the report of the Judge- services. That implies in particular that Rapporteur and the views of the an undertaking established on the Advocate General the Court decided to territory of one Member State may not open the oral procedure without any be directly or indirectly discriminated preparatory inquiry. against in another Member State if it temporarily provides services in that Member State.
II — W r i t t e n o b s e r v a t i o n s In the present case foreign undertakings providing services on a temporary basis are discriminated against, at least in- 1. (a) Seco and Desquenne & Giral SA directly, owing to the cumulative appli- contend with regard to the first question cation of two bodies of social security that it is apparent from the background legislation, namely that of the country of to the Luxembourg rules, by which origin and that of the host country. an employer is required to pay the employer's share in respect of foreign workers who are only temporarily The answer to the first question should resident in the Grand Duchy, that therefore be that legislation such as that the legislature's aim was to prevent in issue is incompatible with the employers from having anything to gain provisions and principles of Community by employing foreigners in order to law. escape the social burdens imposed by the law. (b) The two undertakings contend that the second question is irrelevant and does They claim that those rules are an not affect the answer to the first question obstacle to the freedom to provide in any respect. It is necessary and services in so far as, unlike undertakings sufficient to examine whether the established in the Grand Duchy, those legislation in issue infringes or is capable established in another Member State are of infringing the Treaty. However, there required to pay social security contri- is no need to enter into considerations of butions twice — once in Luxembourg an economic nature by setting off items and once in the country in which they showing a temporary loss against other are established. That has an effect on the items showing a temporary gain in cost of their operations in Luxembourg respect of any particular operation.
SECO v EVI
2. (a) The Établissement d'Assurance permit together with payment of contre la Vieillesse et l'Invalidité ("the compulsory social security contributions Luxembourg institution") contends with in the State in which the services are regard to the first question that the provided, in addition to the social legislation in issue does not constitute a security contributions paid in the State of discriminatory practice or an impediment origin, is a constraint which falls short of to the freedom to provide services within being a prohibition. The principle of the the Community and is not therefore free movement of services may not contrary to Article 60 of the Treaty or therefore be construed so broadly as to any other provision of Community law. permit, without any restriction, a supplier of services of one Member State to provide services in another Member State using persons who are entirely outside the ambit of Community law. First, the workers in question, who are not nationals of a Member State or persons treated as such, are outside the ambit of Community law. They cannot In conclusion the Luxembourg institution claim the benefit of the provisions on the proposes that the Court should answer free movement of persons and services. the first question as follows:
Secondly, the discrimination is not "Article 60 of the Treaty of Rome must "general" in the sense that it arises from be interpreted as meaning that under its the very nature of the activity of national law a Member State of the the undertakings in question but European Communities may require a "particular", occurring as the result of foreign legal or natural person, who is a the special circumstance that, in order to national of a Member State of the carry out work, the undertakings in Communities temporarily undertaking question have employed workers who, as work in the first-named State and it happens, are not nationals of a employing workers in that State who are Member State or persons treated as such. nationals of States which have no Community law does not purport to connection with the Community, to pay abolish differences in treatment with the employer's share of contributions to regard to the provision of services where old-age and invalidity insurance just as it the essential cause of those differences is requires its own nationals to do". the subjective behaviour of a particular supplier of services and it is within his power to obviate them.
(b) As regards the second question, which was put in the event of the Court's deciding that in principle the practice Furthermore, the Luxembourg auth- in question constitutes a prohibited dis- orities are entitled to refuse completely criminatory practice, the Luxembourg both entry into their territory and the institution is of the opinion that there is paid employment of persons who are not no discrimination if the supplier of nationals of a Member State or persons services offsets the disadvantage of treated as such without violating having to pay the employer's share twice Community law. The need for a work by other economic factors.
JUDGMENT OF 3. 2. 1982 — JOINED CASES 62 AND 63/81
The question whether or not there is any "The practice described in the first discrimination should be considered not question does not constitute a pro- in relation to any one single factor but hibited discriminatory practice if it is from all aspects. It is necessary to demonstrated that the supplier of services determine whether an undertaking from in fact offsets the disadvantage of having one Member State providing a service in to pay employer's contributions twice by another Member State is, having regard other economic factors such as wages to all the circumstances, placed in a less paid to his foreign labour force which favourable situation than undertakings in are less than the minimum wage fixed in the country in which the service is the country in which the services are provided. provided or than the wages laid down by collective labour agreements in force in that country".
It is well known that Luxembourg is a country with high wages. If, therefore, an undertaking from a Member State is 3. The Commission observes, first, that planning to provide services in Luxem- the Community regulations on social bourg, it often speculates at the outset security for migrant workers, which on the positive advantage which it has provide for such workers to remain over local competitors owing to the fact subject to the legislation of their country that the wages which it pays to its of origin and for that legislation alone to workers under the laws of the country of have application, apply only to workers origin are lower than those paid in the who are nationals of a Member State. country in which the services are On the other hand there are not yet any provided. similar provisions in force for workers from non-member countries. Therefore these cases do not disclose anything contrary to Community law from the social security aspect. Amongst other things Luxembourg legislation provides for a minimum wage which is a matter of public policy and applies to everyone in paid employment in Luxembourg. However, it will often (a) The first question seeks in substance be difficult in practice to enforce those to determine whether Article 60 of the rules with regard to a supplier of services Treaty must be interpreted as meaning who temporarily introduces foreign that it allows the Luxembourg social labour into Luxembourg. That will lead security institution to claim from to an imbalance and a distortion of the French companies, at it does from competition to the detriment of suppliers Luxembourg undertakings, their share of contributions to old-age and invalidity of the same services established in the insurance, although the companies have country in which the services are already paid such contributions in provided. It is precisely the aim of the France. legislation in issue to prevent such a distortion and to redress the balance.
Article 60 does not simply lay down the principle of identical treatment. Under The answer to the second question might that article the possibility of demanding therefore be as follows : the same treatment as a national is
SECO v EVI
offered only as a right which the supplier The payment of insurance contributions of services may take advantage of. As to the Luxembourg institution is felt by regards the ways in which the host the French companies to be a restriction country may refuse such treatment, on the supply of their services. Those however, reference must be made to undertakings already pay insurance Article 59. contributions in France which cover the workers against old-age and the risk of invalidity even in the case of work carried out on secondment abroad. So the contributions claimed by the Luxem- Since the end of the transitional period bourg institution do not entail any that provision, as interpreted by the additional protection for the workers Court, entails an outright prohibition of concerned. all discrimination against a supplier of services based on his nationality or on the fact that he is established in a Member State other than that in which the service is provided. It provides for Therefore, even if the restriction the abolition of all requirements imposed imposed arises from a provision which on the supplier of services which are applies irrespective of nationality, it is likely to prohibit or otherwise hinder his a form of discrimination which is activities. Only exceptionally and in the prohibited under Article 59 of the case of certain services of a special Treaty. nature may a Member State impose on the supplier certain specific requirements based on the public interest and applying to all persons established in that State, provided that the reason for those The first question should therefore be requirements is the application of pro- answered as follows: fessional or trade rules justified by the public interest and applying to all persons established in that State. "Article 59 of the Treaty prohibits the Member State on whose territory the services are supplied from requiring the supplier of the services to pay insurance Furthermore, those specific requirements contributions if the supplier already pays are permissible only if they are necessary similar contributions in the country in to prevent the supplier of services from which he is established, provided that escaping those rules because he is those contributions also cover the established in another Member State, persons insured when the service is that is to say if the supplier of services is provided abroad and the payment of not subject to similar rules in the contributions in the host country does Member State in which he is established. not result in increased social protection Since the freedom to provide services is for those concerned". the rule, the principle that non-nationals should be treated as nationals of the host country must be interpreted strictly where it represents a hindrance to the provision of services and it may be (b) The second question asks whether, invoked only in order to prevent if it is established that the practice provisions designed to protect the public is contrary to Community law, the interest from being circumvented. outcome is the same if the foreign under-
JUDGMENT OF 3. 2. 1982 — JOINED CASES 62 AND 63/81
taking remains more competitive on the The Commission therefore proposes that Luxembourg market because it pays its the second question should be answered labour force lower wages than those as follows: which it has to pay in the Grand Duchy. "A restriction prohibited under Community law must be abolished, even In the Commission's opinion every if the disadvantage which it entails is in breach of Community law should be practice offset by other economic considered as it stands, without reference factors". to any factor not connected with the discriminatory measure. III — Oral procedure Therefore the fact that an undertaking which pays its workers wages complying At the hearing on 21 October 1981 oral with the applicable law, thereby argument was presented by the benefiting from lower operating costs, following: Fernand Entringer, Avocat- has taken advantage of that legal Avoué, of the Luxembourg Bar, for Seco situation is no justification for its having SA and Desquenne & Giral SA; Jacques that advantage reduced by the imposition Loesch, Avocat-Avoué, of the Luxem- of unjustified insurance contributions. bourg Bar, for the Établissement The same consideration would apply if d'Assurance contre la Vieillesse et the company had paid wages in breach l'Invalidité; and Christine Berardis- of the applicable law since that offence Kayser and Jean Amphoux, acting as on the part of the undertaking is no jus- Agents, for the Commission. tification for the infringement committed The Advocate General delivered his by the national authorities with regard to opinion at the sitting on 16 December insurance contributions. 1981.
Decision
1 By an o r d e r d a t e d 26 F e b r u a r y 1981 w h i c h was received at the C o u r t o n 19 M a r c h 1981 the C o u r d e Cassation [ C o u r t of Cassation] of the G r a n d D u c h y of L u x e m b o u r g referred t o the C o u r t for a preliminary ruling u n d e r Article 177 of t h e E E C T r e a t y t w o questions as t o the interpretation of the provisions of the T r e a t y c o n c e r n i n g the freedom to provide services, having r e g a r d t o the L u x e m b o u r g legislation g o v e r n i n g contributions t o o l d - a g e a n d invalidity insurance.
2 T h o s e questions have been raised in the c o n t e x t of proceedings between the Établissement d'Assurance c o n t r e la Vieillesse et l'Invalidité [ O l d - a g e a n d Invalidity I n s u r a n c e Institution, hereinafter referred to as " t h e L u x e m b o u r g
SECO v EVI
institution"], a Luxembourg social security institution, and two undertakings based in France specializing in construction work and the maintenance of the infrastructure of railway networks, Seco SA and Desquenne & Giral SA. In 1974 and 1977 those undertakings carried out work of various kinds in the Grand Duchy of Luxembourg. For that purpose they temporarily seconded workers who were neither nationals of a Member State nor from a country linked to Luxembourg, during the period in question, by an international convention on social security. Those workers remained compulsorily affiliated to the French social security scheme during the entire duration of the work carried out in Luxembourg.
3 By virtue of the provisions of the Luxembourg Code des Assurances Sociales [Social Insurance Code] workers employed in Luxembourg are in principle compulsorily insured under the old-age and invalidity insurance scheme. Half of the contributions must be paid by the employer and half by the worker. However, by virtue of the second paragraph of Article 174 of that Code the Luxembourg Government may exempt from insurance foreigners who are only temporarily resident in the Grand Duchy. In that case, by virtue of the third paragraph of Article 174 of the Code, the employer is nevertheless liable for the share of contributions for which he is personally responsible, although those contributions do not entitle the workers concerned to any social security benefit.
4 It appears from the papers placed before the Court that the reason for the enactment of the provisions cited above was, on the one hand, that it would be unfair to collect contributions from workers residing in Luxembourg only temporarily, whilst, on the other hand, the temptation for employers to use foreign labour in order to alleviate the burden of paying their share of social security contributions must be avoided. Nevertheless, in practice the employer's share of contributions is no longer required to be paid by employers in respect of workers who are temporarily resident in Luxembourg if they are nationals of a Member State or persons treated as such.
5 In this case the undertakings Seco and Desquenne & Giral obtained an exemption from the employee's share of insurance contributions pursuant to the second paragraph of Article 174 of the Code des Assurances Sociales but were held liable by the Luxembourg institution for the employer's share of those contributions pursuant to the third paragraph of that article. The two
JUDGMENT OF 3. 2. 1982 — JOINED CASES 62 AND 63/81
undertakings appealed against that decision, claiming that the Luxembourg legislation in question was not applicable to them because it was discrim- inatory and likely to impede the freedom to provide services within the Community.
6 The Cour de Cassation of the Grand Duchy of Luxembourg considered that its decision turned on the question whether the national legislation in question was compatible with the rules of Community law on the freedom to provide services and referred the following questions to the Court:
" 1 . Must the provisions of Article 60 of the Treaty of Rome be interpreted to mean that under its national law a Member State of the European Communities may require a foreign legal or natural person, who is a national of a member country of the Communities temporarily under- taking work in the first-named State and employing in that State workers who are nationals of States which have no connection with the Community, to pay the employer's share of contributions to old-age and invalidity insurance just as it requires its own nationals to do, or is that requirement contrary to the aforesaid Community provisions, or to any other provisions, as constituting a discriminatory practice likely to prejudice the freedom to provide services, since the Community employer providing the service is obliged to pay inter alia the employer's share of contributions in respect of his foreign workers first in his country of origin and establishment and then again in the State in which he is temporarily performing services using foreign labour?
2. If the answer to Question 1 is to the effect that the practice described above in principle constitutes a prohibited discriminatory practice, will the outcome necessarily be the same, or may it be different, if the supplier of services in fact offsets the disadvantages of having to pay employer's contributions twice by other economic factors such as wages paid to his foreign labour force which are less than the minimum wage fixed in the country in which the services are provided or than the wages laid down by collective labour agreements in force in that country?"
7 In substance those questions seek to establish whether Community law pre- cludes a Member State from requiring an employer who is established in another Member State and temporarily carrying out work in the first-named
SECO v EVI
Member State, using workers who are nationals of non-member countries, to pay the employer's share of social security contributions in respect of those workers when that employer is already liable under the legislation of the State in which he is established for similar contributions in respect of the same workers and for the same periods of employment and the contributions paid in the State in which the work is performed do not entitle those workers to any social security benefits. In particular, it is asked whether such a requirement might be justified in so far as it offsets the economic advantages which the employer may have gained by not complying with the legislation on minimum wages in the State in which the work is performed.
8 Under Article 59 and the third paragraph of Article 60 of the EEC Treaty a person providing a service may, in order to do so, temporarily pursue his activity in the State where the service is provided, under the same conditions as are imposed by. that State on its own nationals. As the Court has repeatedly emphasized, most recently in its judgment of 17 December 1981 in Case 279/80 Webb [1981] ECR 3305, those provisions entail the abolition . of all discrimination against a person providing a service on the grounds of his nationality or the fact that he is established in a Member State other than that in which the service must be provided. Thus they prohibit not only overt discrimination based on the nationality of the person providing a service but also all forms of covert discrimination which, although based on criteria which appear to be neutral, in practice lead to the same result.
9 Such is the case with national legislation of the kind in question when the obligation to pay the employer's share of social security contributions imposed on persons providing services within the national territory is extended to employers established in another Member State who are already liable under the legislation of that State for similar contributions in respect of the same workers and the same periods of employment. In such a case the legislation of the State in which the service is provided proves in economic terms to be more onerous for employers established in another Member State, who in fact have to bear a heavier burden than those established within the national territory.
JUDGMENT OF 3. 2. 1982 — JOINED CASES 62 AND 63/81
10 Furthermore, legislation which requires employers to pay in respect of their workers social security contributions not related to any social security benefit for those workers, who are moreover exempt from insurance in the Member State in which the service is provided and remain compulsorily affiliated, for the duration of the work carried out, to the social security scheme of the Member State in which their employer is established, may not reasonably be considered justified on account of the general interest in providing workers with social security.
1 1 In this connection the Luxembourg institution submits that, since the Member States may completely refuse to allow workers who are nationals of non-member countries to enter their territory or to undertake paid employment there, they may a fortiori attach to any work permit which they choose to grant conditions or restrictions such as the compulsory payment of the employer's share of social security contributions.
12 That argument cannot be accepted. A Member State's power to control the employment of nationals from a non-member country may not be used in order to impose a discriminatory burden on an undertaking from another Member Sate enjoying the freedom under Articles 59 and 60 of the Treaty to provide services.
1 3 The Luxembourg institution further submits that the application of national legislation such as that at issue in this case to persons providing services established in another Member State is in any event justified inasmuch as it in fact offsets the economic advantages which such persons may have gained by not complying with the legislation of the State in which their services are provided, in particular legislation on minimum wages. In this regard it refers to the particular difficulties which the State in which the services are provided would experience in enforcing compliance with such rules by employers established beyond its national territory.
1 4 It is well-established that Community law does not preclude Member States from applying their legislation, or collective labour agreements entered into
SECO v EVI
by both sides of industry relating to minimum wages, to any person who is employed, even temporarily, within their territory, no matter in which country the employer is established, just as Community law does not prohibit Member States from enforcing those rules by appropriate means. However, it is not possible to describe as an appropriate means any rule or practice which imposes a general requirement to pay social security contributions, or other such charges affecting the freedom to provide services, on all persons providing services who are established in other Member States and employ workers who are nationals of non-member countries, irrespective of whether those persons have complied with the legislation on minimum wages in the Member State in which the services are provided, because such a general measure is by its nature unlikely to make employers comply with that legislation or to be of any benefit whatsoever to the workers in question.
15 The answer to the questions submitted by the Cour de Cassation of the Grand Duchy of Luxembourg must therefore be that Community law precludes a Member State from requiring an employer who is established in another Member State and temporarily carrying out work in the first-named Member State, using workers who are nationals of non-member countries, to pay the employer's share of social security contributions in respect of those workers when that employer is already liable under the legislation of the State in which he is established for similar contributions in respect of the same workers and the same periods of employment and the contributions paid in the State in which the work is performed do not entitle those workers to any social security benefits. Nor would such a requirement be justified if it were intended to offset the economic advantages which the employer might have gained by not complying with the legislation on minimum wages in the State in which the work is performed.
Costs
16 The costs incurred by the Commission, which submitted observations to the Court, are not recoverable. As this case is, in so far as the parties to the main action are concerned, in the nature of a step in the proceedings before the national court, the decision as to costs is a matter for that court.
JUDGMENT OF 3. 2. 1982 — JOINED CASES 62 AND 63/81
On those grounds,
THE COURT,
in answer to the questions referred to it by the Cour de Cassation of the Grand Duchy of Luxembourg by an order dated 26 February 1981, hereby rules:
Community law precludes a Member State from requiring an employer who is established in another Member State and temporarily carrying out work in the first-named Member State, using workers who are nationals of non-member countries, to pay the employer's share of social security contributions in respect of those workers when that employer is already liable under the legislation of the State in which he is established for similar contributions in respect of the same workers and the same periods of employment and the contributions paid in the State in which the work is performed do not entitle those workers to any social security benefits. Nor would such a requirement be justified if it were intended to offset the economic advantages which the employer might have gained by not complying with the legislation on minimum wages in the State in which the work is performed.
Mertens de Wilmars Bosco Touffait
Due Pescatore Mackenzie Stuart O'Keeffe
Koopmans Everling Chloros Grévisse
Delivered in open court in Luxembourg on 3 February 1982.
A. Van Houtte J. Mertens de Wilmars Registrar President