LM v Bezirkshauptmannschaft Hartberg-Fürstenfeld and Österreichische Gesundheitskasse.

• Jurisdiction: European Union
• Date: 10 February 2022
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Sixth Chamber)

10 February 2022 (*)

(Reference for a preliminary ruling – Freedom to provide services – Posting of workers – Directive 96/71/EC – Article 3(1)(c) – Terms and conditions of employment – Remuneration – Article 5 – Penalties – Limitation period – Charter of Fundamental Rights of the European Union – Article 41 – Right to good administration – Article 47 – Effective judicial protection)

In Case C‑219/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Landesverwaltungsgericht Steiermark (Regional Administrative Court, Styria, Austria), made by decision of 12 May 2020, received at the Court on 26 May 2020, in the proceedings

LM

v

Bezirkshauptmannschaft Hartberg-Fürstenfeld,

intervener:

Österreichische Gesundheitskasse,

THE COURT (Sixth Chamber),

composed of L. Bay Larsen (Rapporteur), Vice-President of the Court, acting as President of the Sixth Chamber, N. Jääskinen and M. Safjan, Judges,

Advocate General: M. Bobek,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– LM, by P. Cernochova, Rechtsanwältin,

– the Austrian Government, by A. Posch, J. Schmoll and C. Leeb, acting as Agents,

– the Belgian Government, by M. Jacobs, M. Van Regemorter and C. Pochet, acting as Agents,

– the Polish Government, by B. Majczyna, acting as Agent,

– the European Commission, by B.‑R. Killmann and P.J.O. Van Nuffel, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 41(1) and the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’).

2 The request has been made in proceedings between LM and the Bezirkshauptmannschaft Hartberg-Fürstenfeld (district administrative authority, Hartberg-Fürstenfeld, Austria) concerning the fine imposed on LM by the latter for failure to comply with obligations laid down by Austrian legislation concerning the remuneration of posted workers.

Legal context

EU law

Directive 96/71/EC

3 Article 3(1) of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1) provides:

‘Member States shall ensure that, whatever the law applicable to the employment relationship, the undertakings referred to in Article 1(1) guarantee workers posted to their territory the terms and conditions of employment covering the following matters which, in the Member State where the work is carried out, are laid down:

– by law, regulation or administrative provision, and/or

– by collective agreements or arbitration awards which have been declared universally applicable within the meaning of paragraph 8, in so far as they concern the activities referred to in the Annex:

…

(c) the minimum rates of pay, including overtime rates; this point does not apply to supplementary occupational retirement pension schemes;

…

For the purposes of this Directive, the concept of minimum rates of pay referred to in paragraph 1(c) is defined by the national law and/or practice of the Member State to whose territory the worker is posted.’

4 Article 5 of that directive provides:

‘Member States shall take appropriate measures in the event of failure to comply with this Directive.

…’

Directive 2014/67/EU

5 Article 9(1) of Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71 and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (‘the IMI Regulation’) (OJ 2014 L 159, p. 11) states:

‘Member States may only impose administrative requirements and control measures necessary in order to ensure effective monitoring of compliance with the obligations set out in this Directive and Directive [96/71], provided that these are justified and proportionate in accordance with Union law.

For these purposes Member States may in particular impose the following measures:

…

(b) an obligation to keep or make available … payslips, time-sheets indicating the beginning, end and duration of the daily working time and proof of payment of wages or copies of equivalent documents …;

(c) an obligation to deliver the documents referred to under point (b), after the period of posting, at the request of the authorities of the host Member State, within a reasonable period of time;

…’

Austrian legislation

6 Paragraph 7i(5) and (7) of the Arbeitsvertragsrechts-Anpassungsgesetz (Law adapting employment contract law, BGBl. 459/1993), in the version applicable to the dispute in the main proceedings (‘the AVRAG’), is worded as follows:

‘5. Whoever, in his or her capacity as an employer, employs or has employed an employee without paying that employee at least the remuneration to which he or she is entitled under the law, an ordinance or a collective agreement, having regard to the relevant classification criteria, with the exception of the pay components listed in Paragraph 49(3) of the Allgemeines Sozialversicherungsgesetz (General Law on social security; ‘the ASVG’), commits an administrative offence punishable by the district administrative authority by way of a fine. In the case of underpayments covering several pay periods in a continuous manner, a single administrative offence is committed. … Where no more than three workers are affected by the underpayment, the fine shall be, in respect of each worker, EUR 1 000 to EUR 10 000 and, in the event of a repeat offence, EUR 2 000 to EUR 20 000, and where more than three workers are affected, the fine shall be, in respect of each worker, EUR 2 000 to EUR 20 000 and, in the event of a repeat offence, EUR 4 000 to EUR 50 000.

…

7. The limitation period for bringing proceedings (Paragraph 31(1) of the Verwaltungsstrafgesetz (Law on Administrative Penalties; ‘the VStG’) is three years from the date on which the remuneration fell due. In the case of underpayments that cover several wage payment periods in a continuous manner, the limitation period for bringing proceedings within the meaning of the first sentence begins to run from the date on which the remuneration for the last wage payment period of the underpayment fell due. In these cases, the limitation period for the punishment of offences (Paragraph 31(2) of the VStG) is five years. With regard to special payments, the periods pursuant to the first two sentences begin to run from the end of the respective calendar year (third sentence of subparagraph 5).’

The dispute in the main proceedings and the question referred for a preliminary ruling

7 GVAS s.r.o., a company established in Slovakia, posted several workers to Austria.

8 On the basis of findings made during a check carried out on 19 June 2016, the...