Name of the act/s*

Ra 2017/11/0093-0094, Ra 2017/11/0098, January 30^th 2020

Subject area

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

Brief description of the contents of the act

The Supreme Administrative Court decided that the employees of the train caterer of the Austrian train company do not underly directive 96/71 EC.

Comment

The applicant, a train caterer, contested a fine he had obtained earlier. The fine was based on the Austrian “Arbeitsvertragsrecht-Anpassungsgesetz”, which aims at reducing so-called “wage dumping” (Lohndumping) and “social dumping” (Sozialdumping). The Administrative High Court referred the case to the ECJ in order to find out whether the directive 96/71/EC applied to the case. After the ECJ´s decision in the “Dobersberger” case (C-16/18) of 16^th of December 2019 it was clear, that if the work of a person does not have a sufficient link to the territory of a State in which he does not usually work, this person is not a posted worker according to the directive.

This was the case for the employees of the Austrian train caterer. Amongst others, they started and ended their work in Hungary.

The Supreme Administrative Court therefore decided on the merits of the case and lifted the fine.

Enacted by

Supreme Administrative Court

Official link to the text of the act

 https://www.vwgh.gv.at/rechtsprechung/aktuelle_entscheidungen/ra_2017110093.pdf?7hjvl4