CELEX: 62020CJ0219
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

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’).
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
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.’
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
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
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 1000 to EUR 10000 and, in the event of a repeat offence, EUR 2000 to EUR 20000, and where more than three workers are affected, the fine shall be, in respect of each worker, EUR 2000 to EUR 20000 and, in the event of a repeat offence, EUR 4000 to EUR 50000.
…
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
GVAS s.r.o., a company established in Slovakia, posted several workers to Austria.
On the basis of findings made during a check carried out on 19 June 2016, the district administrative authority, Hartberg-Fürstenfeld imposed a fine of EUR 6600 on LM, in its capacity as the representative of GVAS, on the basis of Paragraph 7i(5) of the AVRAG, because of failure to comply , with obligations relating to remuneration in respect of four posted workers.
LM was notified of that decision on 20 February 2020.
LM brought an appeal against that decision before the referring court, the Landesverwaltungsgericht Steiermark (Regional Administrative Court, Styria, Austria).
That court states that it has doubts as to the compatibility with EU law of Paragraph 7i(7) of the AVRAG, which provides for a five-year limitation period for the offence which LM is alleged to have committed under Paragraph 7i(5) of the AVRAG. That court finds that such a period is particularly long as regards a petty offence committed under administrative criminal law as a result of negligence and that it is not certain that a person will be able to defend himself or herself adequately, particularly where that defence takes place almost five years after the facts complained of.
In those circumstances, the Landesverwaltungsgericht Steiermark (Regional Administrative Court, Styria) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘Must Article 6 [ECHR] and Article 41(1) and the second paragraph of Article 47 of the [Charter] be interpreted as precluding a provision of national law which provides for a mandatory five-year limitation period in the case of an offence committed as a result of negligence in administrative-offence proceedings?’
Consideration of the question referred
The jurisdiction of the Court and the admissibility of the request for a preliminary ruling
The Austrian and Belgian Governments submit that the Court does not have jurisdiction to rule on the interpretation of Article 6 ECHR.
In that regard, it is settled case-law that the Court has no jurisdiction under Article 267 TFEU to give a ruling on the interpretation of provisions of international law which bind Member States outside the framework of EU law (order of 6 November 2019, EOS Matrix,
C‑234/19
, not published,
EU:C:2019:986
, paragraph
and the case-law cited).
Consequently, the Court does not have jurisdiction to answer the question referred in so far as it relates to the interpretation of Article 6 ECHR, the Court does however have jurisdiction to interpret the second paragraph of Article 47 of the Charter, which corresponds, as stated in the Explanations relating to the Charter of Fundamental Rights (
OJ 2007 C 303, p. 17
), to Article 6(1) ECHR (see, to that effect, judgment of 2 February 2021, Consob,
C‑481/19
,
EU:C:2021:84
, paragraph
).
Furthermore, the Austrian Government disputes the admissibility of the request for a preliminary ruling.
In the Austrian Government’s view, that request does not satisfy the requirements laid down in Article 94 of the Rules of Procedure of the Court of Justice.
It submits, first, that the statement of reasons for the question is brief and relates essentially to the proportionality of penalties, whereas the question referred concerns the limitation period laid down by the national legislation at issue in the main proceedings.
Second, according to the Austrian Government, the request for a preliminary ruling does not contain an account of the relationship between the provisions of EU law of which an interpretation is sought and those of the national law at issue.
In that regard, it should be observed that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, to that effect, judgment of 2 September 2021, INPS (Childbirth and maternity allowances for holders of single permits),
C‑350/20
,
EU:C:2021:659
, paragraph
and the case-law cited).
In addition, the request for a preliminary ruling must contain, in accordance with Article 94(c) of the Rules of Procedure, a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation of certain provisions of EU law, and the relationship between those provisions and the national legislation applicable to the main proceedings.
In the present case, by setting out its doubts as to the compatibility of the limitation period laid down by the legislation at issue in the main proceedings with respect for the rights of the defence, the referring court sets out the reasons which prompted it to inquire about the interpretation of certain provisions of EU law.
In this instance, the referring court identifies Articles 41 and 47 of the Charter as provisions of EU law, which, in its view, require an interpretation.
In that regard, it should be noted that the scope of the Charter, in so far as the action of the Member States is concerned, is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States when they are implementing EU law. That provision confirms the Court’s settled case-law, which states that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations (judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court),
C‑585/18, C‑624/18 and C‑625/18
,
EU:C:2019:982
, paragraph
and the case-law cited).
It is clear that the referring court does not explain which provisions of EU law the legislation at issue in the main proceedings seeks to implement.
That said, it is apparent from the request for a preliminary ruling that the present case arises in the context of the posting of workers and that the limitation period laid down by the legislation at issue in the main proceedings concerns an administrative offence relating to the underpayment of posted workers.
It follows from the foregoing that the dispute in the main proceedings concerns the penalty imposed for failure to comply with the obligation relating to the minimum rate of pay laid down in point (c) of the first subparagraph of Article 3(1) of Directive 96/71.
In order to ensure that the core of mandatory rules for minimum protection is observed, the first subparagraph of Article 3(1) of that directive provides that Member States are to ensure that, whatever the law applicable to the employment relationship, in the framework of the transnational provision of services, undertakings guarantee workers posted to their territory the terms and conditions of employment covering the matters listed in that provision, inter alia the minimum rates of pay (see, to that effect, judgment of 7 November 2013, Isbir,
C‑522/12
,
EU:C:2013:711
, paragraph
and the case-law cited).
In addition, it is apparent from Article 5 of that directive that the EU legislature has left to the Member States the task of determining the appropriate penalties to ensure that obligation is complied with.
In that context, it follows from the information provided by the referring court that the national legislation at issue in the main proceedings, which penalises the underpayment of posted workers and which sets the limitation period applicable to that administrative offence, constitutes an implementation of EU law, within the meaning of Article 51(1) of the Charter. It follows that, in accordance with the case-law referred to in paragraph 24 of the present judgment, that information is sufficient to establish a link between the Charter, to which the referring court refers, and that national legislation.
In the light of those factors, it must be held that the referring court has satisfied the obligations set out in Article 94(c) of the Rules of Procedure.
The question referred must therefore be regarded as admissible.
Substance
It should be noted as a preliminary point that, according to settled case-law, it is for the Court, in the procedure laid down by Article 267 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 3 March 2020, Gómez del Moral Guasch,
C‑125/18
,
EU:C:2020:138
, paragraph
and the case-law cited).
In 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 7 March 2017, Xand X,
C‑638/16 PPU
,
EU:C:2017:173
, paragraph
and the case-law cited).
In that regard, it should be noted that, as is apparent from paragraphs 28 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 Article 3(1) of Directive 96/71 and therefore constitutes the implementation of Article 5 of that directive.
In addition, Article 41 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 24 November 2020, Minister van Buitenlandse Zaken,
C‑225/19 and C‑226/19
,
EU:C:2020:951
, paragraph
and the case-law cited).
That said, it should also be observed that the right to good administration, enshrined in Article 41 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 24 November 2020, Minister van Buitenlandse Zaken,
C‑225/19 and C‑226/19
,
EU:C:2020:951
, paragraph
and the case-law cited). The Court may therefore answer the question referred in the light of that general principle of EU law.
In those circumstances, it must be held that, by its question, the referring court asks, in essence, whether Article 5 of Directive 96/71, read in conjunction with Article 47 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.
As is apparent from Article 5 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 Article 3(1) of that directive.
Furthermore, 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 Article 3 thereof.
In 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 16 July 2020, Caixabank and Banco Bilbao Vizcaya Argentaria,
C‑224/19 and C‑259/19
,
EU:C:2020:578
, paragraph
and the case-law cited, and of 21 January 2021, Whiteland Import Export,
C‑308/19
,
EU:C:2021:47
, paragraphs
and
and the case-law cited).
The 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 Article 47 of the Charter, a provision which constitutes a reaffirmation of the principle of effective judicial protection (see, to that effect, judgment of 15 April 2021, État belge (Circumstances subsequent to a transfer decision),
C‑194/19
,
EU:C:2021:270
, paragraph
and the case-law cited).
As 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 27 February 2020, Land Sachsen-Anhalt (Remuneration of officials and judges),
C‑773/18 to C‑775/18
,
EU:C:2020:125
, paragraph
and the case-law cited).
In 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.
As 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 Article 47 of the Charter (see, to that effect, judgments of 14 September 2017, The Trustees of the BT Pension Scheme,
C‑628/15
,
EU:C:2017:687
, paragraph
and the case-law cited, and of 9 November 2017, Ispas,
C‑298/16
,
EU:C:2017:843
, paragraph
).
In 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 16 October 2019, Glencore Agriculture Hungary,
C‑189/18
,
EU:C:2019:861
, paragraph
and the case-law cited).
As regards national legislation such as that at issue in the main proceedings, it should be observed that, as is apparent from paragraph 35 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 Article 3(1) of that directive.
The 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.
Moreover, 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.
It should also be noted, in that regard, that Article 9(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.
In 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.
In 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.
It follows from all of the foregoing considerations that the answer to the question referred is that Article 5 of Directive 96/71, read in conjunction with Article 47 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.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Sixth Chamber) hereby rules:

Article 5 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, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union 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.

[Signatures]
(
*1
)	Language of the case: German.