C-134/95
ECLI:EU:C:1996:409
- Súd
- Súdny dvor Európskej únie
- IČS
- 61995CC0134
- Zdroj
- eur-lex.europa.eu ↗
USSL NO 47 DI BIELLA ν INAIL
OPINION OF ADVOCATE GENERAL ELMER delivered on 24 October 1996 *
1. In this case the Pretura Circondariale taken on and paid by the intermediary or (District Magistrate's Court), Biella, Italy subcontractor, whatever the nature of the ('the Pretura') has referred questions to the work or service to which the provision of Court for a preliminary ruling on the inter labour relates. pretation of various provisions in the EC Treaty in relation to national legislation pro hibiting private labour procurement services and the hiring of temporary labour.
N o r shall employers entrust to an intermedi ary, whether employees, third persons or companies, including a cooperative society, The relevant national rules piece-work that has to be performed by workers who are taken on and paid by such an intermediary.'
2. Under Article 11(1) of Law N o 264 of 29 April 1949 ('the 1949 Law'), the procure ment of labour and any other activity as an intermediary in the demand for and supply Under Article 1(3) those provisions are also of workers, apart from public labour pro applicable to public authorities and under curement services, are prohibited, even if the takings and under Article 1(4) a person hir activity is carried on free of charge. ing labour is treated in law in all respects as the employer.
3. Article 1(1) and (2) of Law N o 1369 of 23 October 1960 ('the 1960 Law') is worded as follows: Facts of the case
'Employers shall not entrust to an intermedi ary or subcontractor, or any other type of 4. By decision N o 1762 of 30 December body including a cooperative society, the 1986, the plaintiff in the main proceedings, mere provision of labour using workers USSL N o 47 — Unità Socio-Sanitaria Locale (the local social services and health auth- ority) — entered into a contract with the * Original language: Danish. cooperative 'La Famiglia' (hereinafter 'the
I-197
OPINION OF MR ELMER — CASE C-134/95
Cooperative') for the provision of health and INAIL before the Pretura, claiming that the welfare services in the areas covered by demand for accident insurance contributions USSL N o 47. was contrary to Community law.
Questions referred to the Court 5. O n 18 February 1988 the defendant in the main proceedings, INAIL — Istituto Nazio- nale per l'Assicurazione contro gli Infortuni sul Lavoro (National Insurance Fund for Accidents at Work) — conducted an investi- gation into the said contract. INAIL decided that what it in fact involved was temporary 8. By order of 30 March 1995 the Pretura hiring of labour contrary to Article 1 of the referred to the Court of Justice for a prelimi- 1960 Law, since there was a mere provision nary ruling the following questions: of labour performed to order. INAIL based that view on the fact that the members of the Cooperative took instructions from USSL N o 47, used worksheets corresponding fully to those used by the staff of USSL N o 47, attended refresher courses arranged by USSL ' 1 . Is Article 1(1) of Law N o 1369 of N o 47 and used cars belonging to USSL N o 23 October 1960, read in conjunction with 47 or, if they used their own cars, received a Article 11(1) of Law N o 264 of 29 October travel allowance from USSL N o 47. 1949, compatible with the Community prin- ciples laid down in Articles 48, 49, 54 and 90 of the EEC Treaty?
6. In a formal notice of 21 December 1993, INAIL demanded that USSL N o 47 pay LIT 9 200 105 (approximately E C U 4 810) as 2. Do those principles have direct effect, accident insurance contributions, based on with the result that the Italian legislation has the remuneration paid to the members of the to be set aside?' Cooperative.
9. The national court refers inter alia to 7. USSL N o 47 disputed the allegation that Articles 49 and 54 of the Treaty which it had unlawfully hired labour and on empower the Community legislature to 21 April 1994 brought proceedings against adopt acts to ensure freedom of movement
I-198
USSL N O 47 DI BIELLA ν INAIL
for workers and freedom of establishment. concerns solely the question of infringement The reference to 'the Community law prin of Article 1 of the 1960 Law. ciples' in the provisions mentioned must be understood in fact as meaning Articles 48 and 52. As will become clear, Article 59 of the Treaty on freedom to provide services would appear to be very relevant to the case. In order to give the national court a useful 12. Under the settled case-law of the Court reply I have therefore found it necessary to of Justice, the Court has no jurisdiction to discuss that provision as well. give a preliminary ruling on a question sub mitted by a national court where it is quite obvious that the interpretation of Commu nity law sought by that court bears no rela tion to the actual facts of the main action or its purpose. 1
10. The questions referred to the Court con cern two separate sets of rules, first the pro hibition in the 1949 Law that anyone other 13. As was emphasized in the observations than a public authority should operate as an submitted to the Court, the main proceed intermediary in the labour market and, sec ings concern solely breach of the prohibition ondly, the prohibition in the 1960 Law contained in the 1960 Law on the hiring of against the hiring of labour. I therefore con labour. Thus the main proceedings do not sider it appropriate to treat those sets of concern the question whether the Coopera rules separately. tive operated as a labour procurement agency in relation to USSL N o 47, but rather whether USSL N o 47 acted in breach of the prohibition against the hiring of labour, and was therefore properly treated as the real employer from whom accident insurance contributions could be demanded by The 1949 Law INAIL.
14. In the light of the foregoing I consider that the Court should not reply to the ques tion whether a prohibition against private 11. INAIL, the Italian Government and the Commission argue that Article 11 of the 1949 Law which prohibits anyone other than a particular public authority from procuring 1 — See, for example, Case C-415/93 Bosman and Others [1995] ECR I-4921, paragraph 61, and Case C-143/94 Furlanis labour is irrelevant to the present case, which [1995] ECR 1-3633, paragraph 12.
I-199
OPINION OF MR ELMER — CASE C-134/95
labour procurement services such as that 17. I N AIL contends that the 1960 Law is contained in Article 11 of the 1949 Law is compatible with Community law. The objec- compatible with Community law. tive of the Law is to protect workers, which is clear inter alia from the fact that, when the Law has been infringed, they are regarded as employed by the body which has hired the labour. That objective corresponds to that pursued in the Treaty. The 1960 Law does not prohibit the Cooperative from offering and providing services. It is the mere hiring The 1960 Law of labour that is prohibited.
15. In its order the national court stated that cooperatives constitute the form of associa- 18. The Italian Government has stated that tion best suited to procuring the mere provi- this is an internal situation bearing no rela- sion of labour. The 1960 Law, in conjunction tion to any of the situations dealt with in with the 1949 Law, prevents such coopera- Community law. There is a relationship tives from carrying on their activities and between a public body (USSL N o 47) and a thus leads to a restriction of the labour mar- cooperative consisting of Italian workers ket. The national court considers that legisla- which operates exclusively as a middleman tion to be contrary to the basic principles of for Italian workers. Articles 48 and 52 of the Community law on freedom in relation to Treaty are not therefore applicable. Further- work, business enterprise, establishment, the more, the Italian rules are not contrary to interplay between the demand and supply of Article 90 or Article 86 of the Treaty, since labour, and competition, considering that the there is no economic activity and there is no Italian State is in any event unable to satisfy procurement of managerial staff. demand on the labour market.
19. The German Government also takes the 16. USSL N o 47 claims that the prohibition view that this is an internal situation. The against the hiring of labour is contrary to exercise of the activities covered by the Ital- basic principles of Community law that are ian rules may be made conditional on prior directly applicable. authorization. It is for the Member States to
I-200
USSL NO 47 DI BIELLA ν INAIL
lay down the necessary conditions in that and 59 and freedom of establishment in connection. As regards Article 90 of the Article 52 of the Treaty have direct effect and Treaty, it is for the national court to assess whether those provisions preclude a national whether it is an activity of general interest rule such as that contained in Article 1 of the covered by Article 90(2). 1960 Law, according to which the hiring of labour is prohibited.
22. The Court has consistently held that the 20. The Commission has stated that the rel fundamental rights contained in Articles 48, evant Community law provision is Article 59 52 and 59 of the Treaty are sufficiently clear of the Treaty, since what is involved is the and unconditional and therefore have direct provision of services by the Cooperative in effect; hence individuals can rely on those relation to USSL N o 47. Article 59 cannot, rights before national courts, which must however, be applied to this case since this is a ensure their protection. 2 If Article 1 of the purely internal situation. Article 48 is irrel 1960 Law is contrary to one or more of the evant, since it has not been clarified whether said provisions, therefore, the national courts the workers are treated as employed by must not apply that provision. USSL N o 47. N o r is Article 90 of the Treaty relevant, since the 1960 Law does not confer special rights on particular undertakings, but rather prohibits generally a particular activ ity.
23. The facts described in the order for ref erence relate to a contractual relationship between USSL N o 47 and the Cooperative for the performance of certain services. As The rules on free movement the Commission states, Article 59 on free dom to provide services must be regarded first and foremost as the relevant provision. It cannot, however, be excluded that a prohi bition against the hiring of labour could, under certain circumstances, impede the free movement of workers and freedom of estab lishment. It is hard to see how Articles 48 and 52 could be relevant to the present case, 21. As stated, the questions referred to the Court must be understood to the effect that the national court seeks clarification as to 2 — See, for example, Case 41/74 Van Duyn [1974] ECR 1337, whether the provisions on freedom of move paragraphs 6 and 7; Case 2/74 Reyners [1974] ECR 631, paragraph 26; and Case 33/74 Van Binsbergen [1974] ment for workers and services in Articles 48 ECR 1299, paragraph 27.
I - 201
O P I N I O N OF MR ELMER — CASE C-134/95
which concerns neither the question of Article 90 of the Treaty workers' access to the Italian labour market nor the right to establish an undertaking in Italy. In any event, it is apparent from the Court's settled case-law that Articles 48, 52 and 59 of the Treaty cannot be applied to activities which are confined in all respects within a single Member State. 3 26. Under Article 90(1) of the Treaty the Member States are to refrain, in the case of public undertakings and undertakings to which Member States grant special or exclu- sive rights, from enacting or maintaining in force any measure contrary to the rules con- tained in the Treaty, in particular to those 24. In the present case, a contractual rela- rules provided for in Article 6 and Articles tionship has been established between an 85 to 94. Italian public authority and an Italian coop- erative concerning the provision of certain services in Italy. N o evidence has been pro- duced in the case to indicate that those ser- vices have been performed by workers from other Member States or that that was envis- aged, or that the Cooperative might other- wise be linked to undertakings or persons in 27. Article 1 of the 1960 Law does not lay other Member States. down rules for public undertakings and undertakings to which the Member State has granted special or exclusive rights which could cause such undertakings to use their rights in a manner contrary to the Treaty. 4 Article 1 of the 1960 Law contains, however, a general prohibition against a particular activity, namely the hiring of labour, whether 25. Accordingly it is my view that that by private or public undertakings or authori- aspect of the questions referred to the Court ties. As is apparent from Case C-275/92 should be answered to the effect that Articles Schindler, 5 such a prohibition against a par- 48, 52 and 59 cannot be applied to activities ticular activity must be assessed on the basis which are confined in all respects within a of the Treaty provisions on free movement. single Member State, which is the case where It is neither necessary nor justifiable to apply an Italian public authority enters into an at the same time the special provision in agreement with an Italian cooperative for the Article 90 of the Treaty. It is therefore my performance of certain services using Italian view that Article 90 is irrelevant in the workers. present case.
3 — See, for example, Case C-332/90 Steen [1992] ECR I-341, paragraph 9; Joined Cases C-29/94, C-30/94, C-31/94, 4 — See, for example, Case C-387/93 Bancbero [1995] ECR C-32/94, C-33/94, C-34/94 and C-35/94 Aubertin and I-4663, paragraph 51, and Case C-41/90 Höfner and Eher, Others [1995] ECR I-301, paragraph 9; and Case C-41/90 cited in footnote 3, paragraph 31. Höfner and Elser [1991] ECR I-1979, paragraph 37. 5 — [1994] ECR I-1039.
I-202
USSL NO 47 DI BIELLA ν INAIL
Conclusion
28. In the light of the foregoing I would suggest that the Court reply to the ques tions referred to it by the Pretura Circondariale di Biella as follows:
Articles 48, 52 and 59 of the Treaty cannot be applied to activities confined in all respects within a single Member State, which is the case where an Italian public authority enters into an agreement with an Italian cooperative for the performance of certain services using Italian workers.
Ι-203