26.11.2018

Official Journal of the European Union

C 427/31

(Case C-620/18)

(2018/C 427/40)

Language of the case: Hungarian

Parties

Applicant: Hungary (represented by: M.Z. Fehér, M.M Tátrai and G. Tornyai, acting as Agents)

Defendants: European Parliament, Council of the European Union

Form of order sought

The applicant claims that the Court should:

—annul Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services; (1) in the alternative:

—annul the provisions of Article 1(2)(a) of Directive (EU) 2018/957 of the European Parliament and of the Council laying down point (c) and the third subparagraph of the new Article 3(1) of Directive 96/71/EC;

—annul the provisions of Article 1(2)(b) of Directive (EU) 2018/957 of the European Parliament and of the Council inserting paragraph 1a in Article 3 of Directive 96/71/EC;

—annul Article 1(2)(c) of Directive (EU) 2018/957 of the European Parliament and of the Council;

—annul Article 3(3) of Directive (EU) 2018/957 of the European Parliament and of the Council, and in addition;

—order the European Parliament and the Council of the European Union to pay the costs.

Pleas in law and main arguments

The Hungarian Government bases its action on five pleas in law:

1.In the first place, the Hungarian Government claims in its application that the contested directive was not adopted on the appropriate legal basis, in that, taking into account its purpose and its content, that directive — departing from the legislative authorisation that is laid down in respect of the freedom to provide services in Article 53(1) TFEU and Article 62 TFEU, which are referred to in the directive as the legal basis — applies only, or at least principally, to the protection of workers, meaning that the EU legislature should, for the purpose of adopting the directive, have taken Article 153 TFEU as the legal basis or, at least, as the principal legal basis (first plea in law).

2.In the second place, according to the Hungarian Government, the contested directive infringes Article 153(5) TFEU, which excludes the EU’s legislative power in relation to the regulation of pay in the context of employment relationships, as the EU legislature, in establishing that the remuneration of workers must be in accordance with the legislation in force in the Member State of posting, has adopted a rule which relates, in essence, to the remuneration of the employment relationship. The EU legislature selected the legal bases referred to in the contested directive because it saw that, in the absence of EU competence, that was the only way to regulate the issue of remuneration, which is one of the essential elements of that directive, and it thereby acted ultra vires (second plea in law).

3.In the third place, the Hungarian Government considers that the contested directive infringes Article 56 TFEU, which enshrines the freedom to provide services, since the obligations and restrictions imposed by that directive on undertakings established in a Member State which post workers to another Member State in the framework of the provision of services are discriminatory, unnecessary and disproportionate with regard to the objective they seek to achieve. In addition, the provisions in the contested directive concerning transport infringe Article 58(1) TFEU (third plea in law).

4.In the fourth place, the Hungarian Government considers that the contested directive is contrary to Article 56 TFEU, which enshrines the freedom to provide services, in that the directive excludes from its scope the effective exercise of that freedom inasmuch as it refers to the right to strike and other actions covered by specific industrial relations systems in the Member States and also in so far as it concerns the exercise of the right to negotiate, conclude and enforce collective agreements and to take collective action (fourth plea in law).

5.In the fifth place, the contested directive infringes Regulation (EC) No 593/2008 on the law applicable to contractual obligations, (2) and the principles of legal certainty and legislative clarity, in that it alters the application of Regulation No 593/2008 without amending the wording of that legislation, thus creating considerable legal uncertainty as to the correct application of the regulation. In addition the contested directive infringes the principles of legislative clarity and, consequently, of legal certainty because there is no definition of the concept of remuneration in the contested directive and because of uncertainties as to the interpretation of that concept (fifth plea in law).

(1) OJ 2018 L 173, p. 16.

(2) OJ 2008 L 177, p. 6.