# C_2006281EN.01000401.xml

| 18.11.2006 | EN | Official Journal of the European Union | C 281/4 |
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18.11.2006

EN

Official Journal of the European Union

C 281/4

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Judgment of the Court (First Chamber) of 21 September 2006 — Commission of the European Communities v Republic of Austria

(Case C-168/04) (1)

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(Failure of a Member State to fulfil obligations - Article 49 EC - Freedom to provide services - Undertaking employing workers who are not nationals of a Member State - Undertaking providing services in another Member State - ‘EU Posting Confirmation’)

(2006/C 281/06)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: B. Eggers, E. Traversa and G. Braun, Agents)

Applicant:

Defendant: Republic of Austria (represented by: E. Riedl, C. Pesendorfer and G. Hesse)

Defendant:

Re:

Failure of a Member State to fulfil obligations — Article 49 EC — Posting of workers who are third-country nationals in connection with the provision of services by undertakings established in another Member State conditional on a system of acknowledgement of receipt which is a de facto system of authorisation in so far as absence of such an acknowledgement results in fines and refusal of entry and residence for the posted workers concerned.

de facto

Operative part of the judgment

The Court:

| 1. | Declares that, by making the posting of workers who are nationals of non-Member States by an undertaking established in another Member State subject to obtaining the ‘EU Posting Confirmation’ provided for in Paragraph 18(12) of the Austrian Law on the employment of foreign workers (Ausländerbeschäftigungsgesetz), the issue of which requires, first, that the workers concerned must have been employed for at least one year by that undertaking or must have concluded an employment contract of indefinite duration with it and, secondly, evidence that the Austrian employment and wage conditions are complied with, and by laying down in Paragraph 10(1)(3) of the Law on aliens (Fremdengesetz) a ground for the automatic refusal of an entry and residence permit, without exception, which does not allow the situation of workers from a non-Member State, lawfully posted by an undertaking established in another Member State, to be regularised when those workers have entered the national territory without a visa, the Republic of Austria has failed to fulfil its obligations under Article 49 EC. |
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1.

Declares that, by making the posting of workers who are nationals of non-Member States by an undertaking established in another Member State subject to obtaining the ‘EU Posting Confirmation’ provided for in Paragraph 18(12) of the Austrian Law on the employment of foreign workers (Ausländerbeschäftigungsgesetz), the issue of which requires, first, that the workers concerned must have been employed for at least one year by that undertaking or must have concluded an employment contract of indefinite duration with it and, secondly, evidence that the Austrian employment and wage conditions are complied with, and by laying down in Paragraph 10(1)(3) of the Law on aliens (Fremdengesetz) a ground for the automatic refusal of an entry and residence permit, without exception, which does not allow the situation of workers from a non-Member State, lawfully posted by an undertaking established in another Member State, to be regularised when those workers have entered the national territory without a visa, the Republic of Austria has failed to fulfil its obligations under Article 49 EC.

| 2. | Orders the Republic of Austria to pay the costs. |
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2.

Orders the Republic of Austria to pay the costs.

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(1)  OJ C 146, 29.05.2004.

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