# C_2004146EN.01000201.xml

| 29.5.2004 | EN | Official Journal of the European Union | C 146/2 |
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29.5.2004

EN

Official Journal of the European Union

C 146/2

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Action brought on 5 April 2004 by the Commission of the European Communities against the Republic of Austria

(Case C-168/04)

(2004/C 146/03)

An action against the Republic of Austria was brought before the Court of Justice of the European Communities on 5 April 2004 by the Commission of the European Communities, represented by Barbara Eggers and Enrico Traversa, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | Declare that the Republic of Austria has failed to fulfil its obligations under Article 49 EC inasmuch as by means of Article 18(12) to (16) of the AuslBG and Article 10(1)(3) FrG it is disproportionately restricting the posting of workers who are third-country nationals in connection with the provision of services. |
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Declare that the Republic of Austria has failed to fulfil its obligations under Article 49 EC inasmuch as by means of Article 18(12) to (16) of the AuslBG and Article 10(1)(3) FrG it is disproportionately restricting the posting of workers who are third-country nationals in connection with the provision of services.

| — | Order the Republic of Austria to pay the costs. |
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Order the Republic of Austria to pay the costs.

Pleas in law and main arguments

Providers of services resident in another Member State are adversely affected by three different supervisory procedures with three different Austrian authorities in regard to the posting of workers who are third-country nationals to Austria. Thus the Ausländerbeschaftigungsgesetz (Law on employment of foreign nationals - AuslBG) requires an ‘EU Posting of Workers Certificate’ to be obtained at the regional branch of the employment service in addition to the visa under the Fremdengesetz (Law on foreign nationals - FrG) issued by the competent consulates, and a notification procedure to check pay and working conditions in accordance with the Arbeitsvertragsrechtsanpassungsgesetz (Law adapting employment contracts - AVRAG).

I.   EU Posting of Workers Certificate, Article 18 (12) to (16) AuslBG

The requirement of an EU Posting of Workers Certificate pursuant to Article 18(12) to (16) of the AuslBG has a restrictive effect on freedom to provide services in the Community.

The requirement of an EU Posting of Workers Certificate in addition to the visa under the FrG and the notification procedure under the AVRAG is disproportionate to the objectives pursued by the Republic of Austria of combating abusive practices and protecting workers.

1.   Prevention of abusive practices

The Austrian Government is infringing the principle of proportionality, as effective control of the conditions governing the posting of workers in connection with the provision of services can be ensured through less far-reaching measures.

The legitimate interest of a Member State in checking compliance with the conditions governing the posting of workers who are third-country nationals by companies providing services can be adequately served by the requirement of a visa. Any additional control, as here by way of an EU Posting of Workers Certificate, which is issued by another authority, is unjustified.

2.   Compliance with pay and working conditions

The substantive condition in Article 18(13)(2) AuslBG under which the EU Posting of Workers Certificate is issued only if the Austrian wage and working conditions laid down in the AVRAG are complied with likewise results in disproportionate duplicated checks.

The requirement of an EU Posting of Workers Certificate and the procedure associated with it are disproportionate to the objective sought of ensuring worker protection, since the Republic of Austria already has available to it less far-reaching means.

The Republic of Austria transposed the posting of workers directive by means of the AVRAG which provides for the possibility of ex post controls in order to check that the requisite salaries are actually being paid.

3.   Regular workers

The requirement set out in Article 18(13)(1) AuslBG as a condition for the EU Posting of Workers Certificate of at least one-year's employment or an indefinite employment contract with the provider of services constitutes an unjustified restriction on freedom to provide services. The objective of combating abusive practices can also be attained through far less restrictive measures.

II.   Refusal of residence permits, Article 10(1)(3) FrG

Under Article 10(1)(3) FrG a residence permit must be refused when the worker has already entered the country without a visa. That provision prohibits a posting, even if the providers of the services can establish lawfulness, namely that an application has already been made on the basis of which a Member State can carry out the required checks.

The automatic refusal of a residence permit under Article 10(1)(3) FrG is disproportionate to the objective of control of the conditions governing the right of residence and should therefore be declared unlawful.

The automatic refusal of a visa in cases of merely formal illegal entry considerably restricts freedom to provide services and renders that freedom illusory in some service sectors. In the current state of Community law the Austrian Republic has, by virtue of the checks on issue of entry visas, means available to it which are just as effective but less far-reaching of reviewing whether third-country nationals are entering the country for the purpose of providing services.

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