Introduction

In Rush Portuguesa Lda, the European Court of Justice (ECJ) defined for the first time the criteria that should regulate the intra-EU provision of services in situations in which the undertaking providing the service brings its own labour force¹:

• Workers return to their country of origin after the completion of their work without at any time gaining access to the labour market of the host Member State
• Community law does not preclude Member States from extending their legislation, or collective labour agreements entered into by both sides of industry, to any person who is employed, even temporarily, within their territory, no matter in which country the employer is established; nor does Community law prohibit Member States from enforcing those rules by appropriate means

In Rush Portuguesa the ECJ ruled on the basis of the freedom to provide services (Art 59 and 60 of the EEC Treaty).

The ECJ ruling opened the door to further questions relating to the balance between the freedom to provide services, and various interpretation given by Member States to the ECJ ruling in Rush Portuguesa.

In his Opinion delivered in Federatie Nederlandse Vakbeweging Advocate General Bobek underlined the genuine balance between freedoms and restrictions in what the posting of workers is concerned:

I would also have some intellectual difficulty in seeing how exactly the PWD promotes the

‘transnational provision of services’. If anything, the very purpose of the PWD is to limit the...

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