Opinion of Advocate General Tesauro delivered on 1 June 1994

1 Original language: Italian.

2 It should be borne in mind that the temporary posting of (Community) workers has been taken into consideration by the Community legislature with regard to social security. Article 14(1) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (see the consolidated version in Council Regulation (EEC) No 2001/83 of 2 June 1983, OJ 1983 L 230, p. 6) provides on this subject that:(1)(a) A person employed in the territory of a Member State by an undertaking to which he is normally attached who is posted by that undertaking to the territory of another Member State to perform work there for that undertaking shall continue to be subiect to the legislation of the first Member State, provided that the anticipated duration of that work does not exceed 12 months and that he is not sent to replace another person who has completed his term of posting.

3 Case C-113/89 Rush Portuguesa v Office National d'Immigration [1990] ECR I-1417.

4 See Lamy Social, 1994, paragraph 29: In principle, all foreigners wishing to work in France must follow the so-called introduction procedure organized by the OMI. That body has in effect a monopoly on the recruitment of foreigners and on bringing them into France. Infringement of that monopoly is a punishable offence. As to the consequences, including the financial ones, of infringing the OMI's monopoly, see ibid., paragraph 52 et seq.

5 On the concept of services within the meaning of Article 59 et seq., see most recently the judgment in Case C-275/92 Schindler [1994] ECR I-1039.

6 See the judgments in Case 279/80 Webb [1981] ECR 3305; in Case 143/87 Stanton v Institut National d'Assurances Sociales pour Travailleurs Indépendants [1988] ECR 3877 and in Case C-106/91 Ramrath [1992] ECR I-3351.

7 See the judgments in Case C-360/89 Commission v Italy [1992] ECR I-3401 and in Case C-3/88 Commission v Italy [1989] 4035. Both judgments concerned cases of indirect discrimination, that is to say based on criteria which, although the nationality of the provider of services was not a direct factor, none the less led to the same result; in the first case, a quota in regard to public works contracts was reserved for undertakings having their registered office in the region where the work was carried out, while in the second case a quota in regard to public procurement contracts was reserved for mainly or wholly state-controlled companies.

8 See, in particular, the judgments in Case C-28S/89 Stichting Collectieve Antenuevoorzienung Gouda and Others v Commissanat voor de Media [1991] ECR I-4007 and in Case C-353/89 Commission v Netherlands [1991] ECR I-4072.

9 See the judgments in Case C-154/89 Commission v Frunce [1991] ECR I-659, in Case C-180/89 Commission v Italy [1991] ECR I-709 and in Case C-159/89 Commission v Greece [1991] ECR I-691.

10 See the judgment in Joined Cases 62/81 and 63/81 Seco and Desquenne & Girai v Établissement d'Assurance contre la Vieillesse et l'Invalidité [1982] ECR 223.

11 OJ, English Special Edition 1968 (II), p. 475.

12 Agreement signed at Rabat on 27 April 1976 and approved on behalf of the Community by Council Regulation (EEC) No 2211/78 of 26 September 1978 (OJ 1978 L 264, p. 1).

13 See the judgment in Webb, cited above.