Article 7 - Respect for private and family life
Key facts of the case:
Reference for a preliminary ruling – Freedom to provide services – Articles 56 and 57 TFEU – Posting of third-country workers by an undertaking of one Member State to carry out works in another Member State – Duration exceeding 90 days in a 180-day period – Obligation for the posted third-country workers to be holders of residence permits in the host Member State in the event that services are provided for more than three months – Limitation of the period of validity of the residence permits issued – Amount of the fees relating to the application for a residence permit – Restriction on the freedom to provide services – Overriding reasons in the public interest – Proportionality
Outcome of the case:
On those grounds, the Court (Fifth Chamber) hereby rules:
1. Articles 56 and 57 TFEU must be interpreted as meaning that third-country workers who are posted to a Member State by a service provider established in another Member State must not automatically be recognised as having a ‘derived right of residence’, either in the Member State where they are employed or in the Member State to which they are posted.
2. Article 56 TFEU must be interpreted as not precluding a piece of legislation of a Member State which provides that, where an undertaking established in another Member State carries out, in that first Member State, a supply of services the duration of which exceeds three months, that undertaking is obliged to obtain in the host Member State a residence permit for each third-country worker which it intends to post to that first Member State, and which provides that, in order to obtain that permit, that undertaking is to declare beforehand the supply of services in respect of which those workers are to be posted and is to communicate to the authorities of the host Member State the residence permits which those workers hold in the Member State where it is established, as well as their employment contracts.
3. Article 56 TFEU must be interpreted as not precluding a piece of legislation of a Member State pursuant to which (i) the period of validity of the residence permit which may be granted to a third-country worker posted to that Member State may not, in any event, exceed a period determined by the piece of national legislation in question, which may thus be shorter than the period needed to perform the service for which that worker is posted, (ii) the period of validity of that residence permit is limited to the period of validity of the work and residence permit held by the person concerned in the Member State in which the service provider is established, and (iii) the issuing of the residence permit requires the payment of fees in an amount greater than the amount of the fees payable for the issuing of a certificate of lawful residence to a Union citizen, provided that: first of all, the initial period of validity of that permit is not manifestly too short to meet the needs of the majority of service providers; next, it is possible to renew the residence permit without having to meet excessive formal requirements; and, lastly, that amount approximately corresponds to the administrative costs generated by the processing of an application for such a permit.
54. In addition, as is emphasised, in essence, by the Advocate General in point 37 of his Opinion, the relationship between first-degree members of the same family or between persons who have created or strengthened similar relations, all of whom benefit from the fundamental right to respect for private and family life guaranteed by Article 7 of the Charter of Fundamental Rights of the European Union, is not comparable to the relationship between an undertaking and its employees. Accordingly, it cannot be deduced, even by analogy, from the case-law referred to in paragraph 51 of the present judgment that, in a situation such as that at issue in the main proceedings, every third-country worker who is sent by an undertaking to another Member State in order to provide services in that undertaking’s name in that State must automatically be recognised as having a right of residence in that Member State for the duration of that provision.
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100. However, in that judgment, the Court did not find that the requirement for the posted worker to have a residence permit issued by the host Member State was, in itself, contrary to EU law. Indeed, such a requirement, inasmuch as it may enable a Member State to gather or verify information which could not be gathered or verified during the declaration procedure, retains a specific interest in the light of the objective of preventing risks of threats to public policy, which is intended, inter alia, to fulfil various positive obligations incumbent on the public authorities and likely to result from the rights guaranteed by the Charter of Fundamental Rights of the European Union.
