Court of Justice of the European Communities (including Court of First Instance Decisions)

The national legislation

- the Law of 8 April 1965 introducing labour regulations (Moniteur belge of 5 May 1965),

- the Law of 16 November 1972 concerning the Labour Inspectorate (Moniteur belge of 8 December 1972),

- Royal Decree No 5 of 23 October 1978 concerning the keeping of social documents (Moniteur belge of 2 December 1978),

- the Royal Decree of 8 March 1990 concerning the keeping of social documents (Moniteur belge of 27 August 1980, as rectified in Moniteur belge of 10 and 16 June 1981),

- the Collective Labour Agreement of 28 April 1988, concluded under the aegis of the Construction Sector Joint Committee, concerning the award of 'timbres-fidélité' and 'timbres-intempéries' ('the CLA of 28 April 1988') and rendered compulsory by the Royal Decree of 15 June 1988 (Moniteur belge of 7 July 1988, p. 9897),

- the Royal Decree of 8 March 1990 concerning the keeping of individual records for workers (Moniteur belge of 27 March 1990), and

- the Collective Labour Agreement of 28 March 1991 concluded under the aegis of the Construction Sector Joint Committee, concerning working conditions ('the CLA of 28 March 1991') and rendered compulsory by the Royal Decree of 22 June 1992 (Moniteur belge of 14 March 1992, p. 17968).

contributions, or at the seat of the approved employers' social secretariat to which he is affiliated, or at the place of residence or registered office of the employer in Belgium, or, in the absence thereof, at the place of residence in Belgium of a natural person who, as the employer's agent or servant, keeps the staff register and the individual accounts. However, if the employer ceases to employ workers in Belgium, he is required to keep those documents at his place of residence or registered office in Belgium or, failing that, at the place of residence of a natural person in Belgium. The employer is required to give advance notice to the Chief District Inspector of the Social Law Inspectorate of the Ministry of Employment and Labour for the district in which the documents are to be kept (Articles 22 to 25 of the Royal Decree of 8 August 1980).

The main proceedings

'1. Must Articles 59 and 60 of the Treaty be interpreted as meaning that they preclude a Member State from requiring an undertaking established in another Member State and temporarily carrying out work in the first State:

(a) to keep social documents (staff register and individual account) at the Belgian residence of a natural person who is to keep those documents in his capacity as agent or servant of that undertaking;

(b) to pay to its workers the minimum remuneration fixed by collective labour agreement;

(c) to keep a special staff register;

(d) to issue an individual record for each worker;

(e) to appoint an agent or servant responsible for keeping the individual accounts of employees;

(f) to pay "timbres-intempéries" and "timbres-fidélité" contributions for each worker,

where that undertaking is already subject to requirements which, while not identical, are at least comparable as regards their objective, in respect of the same workers and for the same periods of activity, in the State in which it is established?

2. Can Articles 59 and 60 of the Treaty of 25 March 1957 establishing the European Community render inoperative the first paragraph of Article 3 of the Civil Code relating to Belgian public-order legislation?'

'1. Must Articles 59 and 60 of the Treaty be interpreted as meaning that they preclude a Member State from requiring an undertaking established in another Member State and temporarily carrying out work in the first State:

(a) to appoint an agent or servant responsible for keeping the individual accounts of employees who provide services there;

(b) not to obstruct inspections organised pursuant to the legislation of that State relating to the keeping of social documents;

(c) not to obstruct inspections organised pursuant to the legislation of that State concerning the Social Inspectorate;

(d) to draw up an individual account for each worker;

(e) to keep a special staff register;

(f) to draw up working regulations;

(g) to keep social documents (staff register and individual account) at the Belgian residence of a natural person who is to keep those documents in his capacity as agent or servant of the undertaking concerned;

(h) to issue an individual record for each worker,

where that undertaking is already subject to requirements which, while not identical, are at least comparable as regards their objective, in respect of the same workers and for the same periods of activity, in the State in which it is established?

2. Can Articles 59 and 60 of the Treaty of 25 March 1957 establishing the European Community render inoperative the first paragraph of Article 3 of the Civil Code relating to Belgian public-order legislation?'

- to pay its workers the minimum remuneration applicable to their activities fixed by the collective labour agreement in force in the host Member State, to pay in relation to each worker employers' contributions in respect of "timbres-intempéries" and "timbres-fidélité", and to issue each worker with an individual record;

- to draw up labour rules, a special staff register and, in respect of each worker deployed, an individual account;

- to arrange for the social documents (staff register and individual accounts) relating to the workers deployed in the host Member State where the works are carried out to be kept and retained at the residence, in that host Member State, of a natural person who is to keep those documents as its agent or servant,

in circumstances where that undertaking is already subject, in the Member State in which it is established, to requirements which are comparable as regards their objective and which relate to the same workers and the same periods of activity.

Preliminary observations

The questions referred

- payment of the minimum remuneration,

- payment of contributions to the 'timbres-intempéries' and 'timbres-fidélité' schemes and the drawing-up of individual records,

- the keeping of social documents, and

- the retention of social documents.

Payment of the minimum remuneration

Payment of the contribution to the 'timbres-intempéries' and 'timbres-fidélité' schemes and the drawing-up of individual records

The principle of keeping social and labour documents

required under the rules of the Member State of establishment is adequate to enable the controls needed in the host Member State to be carried out.

workers at work (OJ 1989 L 183, p. 1) provides, in particular, that workers are to receive certain information concerning risks to their safety and health.

The detailed rules regarding the keeping and retention of social documents

cannot carry out their supervisory task effectively unless the undertaking has, in that Member State, an agent or servant designated to retain the documents in question (see, to that effect, Case 205/84 Commission v Germany [1986] ECR 3755, paragraph 54).

(1) Articles 59 and 60 of the Treaty do not preclude the imposition by a Member State on an undertaking established in another Member State, and temporarily carrying out work in the first State, of an obligation to pay the workers deployed by it the minimum remuneration fixed by the collective labour agreement applicable in the first Member State, provided that the provisions in question are sufficiently precise and accessible that they do not render it impossible or excessively difficult in practice for such an employer to determine the obligations with which he is required to comply.

(2) Articles 59 and 60 of the Treaty preclude the imposition by a Member State on an undertaking established in another Member State, and temporarily carrying out work in the first State, of an obligation - even if laid down in public-order legislation - to pay, in respect of each worker deployed, employers' contributions to schemes such as the Belgian 'timbres-intempéries' and 'timbres-fidélité' schemes, and to issue to each of such workers an individual record, where the undertaking in question is already subject, in the Member State in which it is established, to obligations which are essentially comparable, as regards their objective of safeguarding the interests of workers, and which relate to the same workers and the same periods of activity.

(3) Articles 59 and 60 of the Treaty preclude the imposition by a Member State on an undertaking established in another Member State, and temporarily carrying out work in the first State, of an obligation - even if laid down in public-order legislation - to draw up social or labour documents such as labour rules, a special staff register and an individual account for each worker in the form prescribed by the rules of the first State, where the social protection of workers which may justify those requirements is already safeguarded by the production of social and labour documents kept by the undertaking in question in accordance with the rules applying in the Member State in which it is established.

That is the position where, as regards the keeping of social and labour documents, the undertaking is already subject, in the Member State in which it is established, to obligations which are comparable, as regards their objective of safeguarding the interests of workers, to those imposed by the legislation of the host Member State, and which relate to the same workers and the same periods of activity.

(4) Articles 59 and 60 of the Treaty do not preclude the imposition by a Member State on an undertaking established in another Member State, and temporarily carrying out work in the first State, of an obligation to keep social and labour documents available, throughout the period of activity within the territory of the first Member State, on site or in an accessible and clearly identified place within the territory of that State, where such a measure is necessary in order to enable it effectively to monitor compliance with legislation of that State which is justified by the need to safeguard the social protection of workers.

(5) Articles 59 and 60 of the Treaty preclude the imposition by a Member State on an undertaking established in another Member State, and temporarily carrying out work in the first State, of an obligation - even if laid down in public-order legislation - to retain, for a period of five years after the undertaking in question has ceased to employ workers in the first Member State, of social documents such as a staff register and individual accounts, at the address within that Member State of a natural person who holds those documents as an agent or servant.

Costs