(Reference for a preliminary ruling– Freedom to provide services– Posting of workers– Directive 96/71

33It should be noted as a preliminary point that, according to settled case-law, it is for the Court, in the procedure laid down by Article267 TFEU providing for cooperation with national courts, to provide the national court with an answer which will be of use to it and enable it to decide the case before it and to that end, the Court should, where necessary, reformulate the questions referred to it (judgment of 3March 2020, Gómez del Moral Guasch, C‑125/18, EU:C:2020:138, paragraph27 and the case-law cited).

34In addition, it should be recalled that the Court has consistently held that the fact that a question submitted by the referring court refers only to certain provisions of EU law does not mean that the Court may not provide the national court with all the guidance on points of interpretation that may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to those points in its questions. It is, in this regard, for the Court to extract from all the information provided by the referring court, in particular from the grounds of the decision to make the reference, the points of EU law which require interpretation in view of the subject matter of the dispute (judgment of 7March 2017, X and X, C‑638/16PPU, EU:C:2017:173, paragraph39 and the case-law cited).

35In that regard, it should be noted that, as is apparent from paragraphs28 and 29 of this judgment, national legislation, such as that at issue in the main proceedings, which penalises the underpayment of posted workers and which lays down the limitation period applicable to that administrative offence, determines the penalties in the event of failure to comply with the obligation relating to the minimum rate of pay laid down in point (c) of the first subparagraph of Article3(1) of Directive 96/71 and therefore constitutes the implementation of Article5 of that directive.

36In addition, Article41 of the Charter, which is mentioned by the referring court, is not relevant for the resolution of the dispute in the main proceedings. It is clear from the wording of that provision that it is addressed not to the Member States but solely to the institutions, bodies, offices and agencies of the European Union (judgment of 24November 2020, Minister van Buitenlandse Zaken, C‑225/19 and C‑226/19, EU:C:2020:951, paragraph33 and the case-law cited).

37That said, it should also be observed that the right to good administration, enshrined in Article41 of the Charter, reflects a general principle of EU law, which is applicable to Member States when they are implementing that law (see, to that effect, judgment of 24November 2020, Minister van Buitenlandse Zaken, C‑225/19 and C‑226/19, EU:C:2020:951, paragraph34 and the case-law cited). The Court may therefore answer the question referred in the light of that general principle of EU law.

38In those circumstances, it must be held that, by its question, the referring court asks, in essence, whether Article5 of Directive 96/71, read in conjunction with Article47 of the Charter and in the light of the general principle of EU law relating to the right to good administration, must be interpreted as precluding national legislation providing for a five-year limitation period for failure to comply with obligations relating to the remuneration of posted workers.

39As is apparent from Article5 of that directive, the EU legislature left to the Member States the task of determining the appropriate penalties in order to ensure, inter alia, compliance with the obligation relating to the minimum rate of pay laid down in point (c) of the first subparagraph of Article3(1) of that directive.

40Furthermore, it should be noted that that directive does not lay down limitation rules for the imposition of penalties by national authorities in the event of failure to comply with Directive 96/71, in particular Article3 thereof.

41In the absence of EU legislation in this area, such rules are a matter for the domestic legal order of the Member States, in accordance with the principle of the procedural autonomy of those Member States. However, those rules must not be less favourable than those governing similar domestic actions (principle of equivalence); nor may they be framed in such a way as to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (principle of effectiveness) (see, to that effect, judgments of 16July 2020, Caixabank and Banco Bilbao Vizcaya Argentaria, C‑224/19 and C‑259/19, EU:C:2020:578, paragraph83 and the case-law cited, and of 21January 2021, Whiteland Import Export, C‑308/19, EU:C:2021:47, paragraphs45 and 46 and the case-law cited).

42The Member States are also required, when they implement EU law, to ensure compliance with the right to an effective remedy enshrined in the first paragraph of Article47 of the Charter, a provision which constitutes a reaffirmation of the principle of effective judicial protection (see, to that effect, judgment of 15April 2021, État belge (Circumstances subsequent to a transfer decision), C‑194/19, EU:C:2021:270, paragraph43 and the case-law cited).

43As regards, in the first place, the principle of equivalence, compliance with that principle requires the rule in question to apply without distinction to procedures based on infringement of EU law and those based on infringement of national law having a similar purpose and cause of action (see, to that effect, judgment of 27February 2020, Land Sachsen-Anhalt (Remuneration of officials and judges), C‑773/18 to C‑775/18, EU:C:2020:125, paragraph67 and the case-law cited).

44In that regard, it should be noted that it is in no way apparent from the request for a preliminary ruling that the limitation period laid down by the legislation at issue in the main proceedings fails to have regard to that principle. It is, however, for the referring court to ascertain whether that principle has been undermined.

45As regards, in the second place, the principle of effectiveness, it should be pointed out that the Member States are responsible for ensuring that the rights conferred by EU law are effectively protected in each case and, in particular, for ensuring compliance, first, with the principle that the addressees of decisions that significantly affect their interests must be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision and, second, with the right of any person to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by the law, as enshrined in the second paragraph of Article47 of the Charter (see, to that effect, judgments of 14September 2017, The Trustees of the BT Pension Scheme, C‑628/15, EU:C:2017:687, paragraph59 and the case-law cited, and of 9November 2017, Ispas, C‑298/16, EU:C:2017:843, paragraph31).

46In that regard, it is important to bear in mind that the principle of equality of arms, which is an integral part of the principle of effective judicial protection of the rights that individuals derive from EU law, enshrined in that provision, in that it is a corollary, like, in particular, the principle audi alteram partem, of the very concept of a fair trial, implies an obligation to offer each party a reasonable opportunity to present its case in conditions that do not place it in a clearly less advantageous position by comparison with its opponent (see, to that effect, judgment of 16October 2019, Glencore Agriculture Hungary, C‑189/18, EU:C:2019:861, paragraph61 and the case-law cited).

47As regards national legislation such as that at issue in the main proceedings, it should be observed that, as is apparent from paragraph35 of the present judgment, legislation which penalises the underpayment of posted workers and which sets a five-year limitation period for such an administrative offence is intended to ensure compliance with the obligation relating to the minimum rate of pay laid down in point (c) of the first subparagraph of Article3(1) of that directive.

48The cross-border nature of a situation involving the posting of workers and the proceedings to be brought against such an administrative offence are liable to render the work of the competent national authorities relatively complex and thus justify the setting of a sufficiently long limitation period to enable the competent national authorities to bring proceedings and penalise such an administrative offence.

49Moreover, in view of the importance attributed, by Directive 96/71, to the obligation relating to the minimum rate of pay, service providers posting workers to the territory of a Member State can reasonably be expected to retain evidence of the payment of wages to those workers for several years.

50It should also be noted, in that regard, that Article9(1)(c) of Directive 2014/67 expressly authorises Member States to require service providers established in another Member State to deliver certain documents, including proof of payment of wages, after the period of posting, at the request of the competent authorities, within a reasonable period of time.

51In the light of the considerations set out in the two preceding paragraphs, it does not appear unreasonable that, as a result of a limitation period such as that at issue in the main proceedings, service providers established in other Member States are required to retain and to provide proof of payment of wages for a five-year period.

52In those circumstances, the setting of a five-year limitation period for an administrative offence relating to the underpayment of posted workers does not appear to be such as to expose a diligent economic operator to the risk of not being in a position effectively to make known its views on the evidence on which the authorities intend to base their decision to penalise it for committing such an administrative offence or to the risk of not being able to present its case, including its evidence, before a court.

53It follows from all of the foregoing considerations that the answer to the question referred is that Article5 of Directive 96/71, read in conjunction with Article47 of the Charter and in the light of the general principle of EU law relating to the right to good administration, must be interpreted as not precluding national legislation providing for a five-year limitation period for failure to comply with obligations relating to the remuneration of posted workers.