Posting of Workers Directive- “high frequency” cross-border workers

In Michael Dobersberger (C-16/18), the Administrative Court of Austria seeks clarity on the interpretation and enforcement of the Posting of Workers Directive.

The case in the main proceedings

  • In performance of a contract entered with the Austrian Federal Railways (OBB), D GmbH an Austrian company provides on-board services (preparation and sale of food and drink), in trains operated by the OBB, departing from Budapest (Hungary) to Salzburg (Austria) or Munich (Germany). The trains stop in Vienna (Austria) and after reaching the terminus station, return to Budapest.
  • The services are provided by a Hungarian company H kft, on behalf of another Austrian company H GmbH (subcontracting chain).
  • To perform such services, H kft is using Hungarian workers, most of them leased by another Hungarian company.
  • Performing a control at the railway station in Vienna, the Austrian authority found the company sending the workers in breach of the Austrian legislation transposing the Posting of Workers Directive and of Regulation 883/2004. The sending company failed to register the employees and at the time of inspection, the workers did not keep the portable document A1 and copy of their employment contract.

Questions referred for a preliminary ruling

The Administrative Court of Austria, has referred to the ECJ several questions can be summarised as follows:

  • Whether the provision of services, such as the provision of food and drink to passengers, on-board service or cleaning services, on international trains, fails under the scope of Article 1(3) (a) Directive 96/71/EC.
  • Whether the case at issue is covered by Article 1(3) (a) Directive 96/71/EC.
  • Irrespective of the answer to the other questions, whether the EU law, in particular the freedom to provide services (Article 56 and 57 TFEU) preclude national legislation from imposing in the case at issue. obligations similar to these provided for in Directive 96/71/EC and its enforcement Directive 2014/67/EU.

Beyond the case at issue

It must be noted that the workers concerned were all residents of Hungary, had their centre of interest and were subjected to the social security system in the latter country.

In Austria, the Law against social and wage dumping (LSD-BG) has entered into force as a standalone act on 1 January 2017 and entails the transposition of the Enforcement Directive (2014/67/EU). Previously, the said act was included in the Employment Contracts Act(AVRAG), transposing the Directive 96/71/EC. The law aims to ensure inter alia that employees paid by foreign companies to work in Austria, receive the same remuneration as “comparable” Austrian workers.

The reference for a preliminary ruling seeks to clarify on the one hand whether AVRAG’s provisions are compatible with the freedom to provide services and on the other hand, whether beyond the case at issue, high frequency cross-border (service) staff is covered by the Directive 96/71/EC and its enforcement Directive 2014/67/EU (in that extent, the ECJ ruling will apply to similar transnational provision of services, notably land and air transport).




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