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).