Judgment;Summary — ECLI:EU:C:2023:490
Date: 2023-06-15
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Social security for migrant workers;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-411/22 – 1 
Case C-411/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
21 June 2022 
Referring court: 
Verwaltungsgerichtshof (Austria) 
Date of the decision to refer: 
24 May 2022 
Appellant on a point of law: 
Thermalhotel Fontana Hotelbetriebsgesellschaft m.b.H. 
Respondent authority before the Verwaltungsgericht (Austria): 
Bezirkshauptmannschaft Südoststeiermark 
Subject matter of the main proceedings 
Granting of compensation for loss of earnings suffered by workers as a result of 
isolation (‘quarantine’) ordered by the health authorities in the case of a positive 
COVID-19 test result – Concept of ‘sickness benefit’ within the meaning of 
Article 3(1)(a) of Regulation (EC) No 883/2004 – Frontier workers – Restriction 
of the freedom of movement for workers as a result of the condition that the 
isolation must have been ordered by an Austrian authority  
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Does compensation which is due to workers during their isolation as persons 
infected with, suspected of being infected with, or suspected of being contagious 
with COVID-19 for the pecuniary disadvantages caused by the impediment to 
their employment, and which is initially payable to the workers by their employer, 
with the entitlement to compensation vis-à-vis the Austrian Federal Government 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-411/22 
 
2  
then being transferred to the employer at the time of payment, constitute a 
sickness benefit within the meaning of Article 3(1)(a) of Regulation (EC) 
No 883/2004 of the European Parliament and of the Council of 29 April 2004 on 
the coordination of social security systems? 
If Question 1 is answered in the negative: 
2. Must Article 45 TFEU and Article 7 of Regulation (EU) No 492/2011 of the 
European Parliament and of the Council of 5 April 2011 on freedom of movement 
for workers within the Union be interpreted as precluding national legislation 
under which the granting of compensation for loss of earnings suffered by workers 
as a result of isolation ordered by the health authorities in the case of a positive 
COVID-19 test result (with the compensation being initially payable to the 
workers by their employer, and the entitlement to compensation vis-à-vis the 
Austrian Federal Government then being transferred to the employer to that 
extent) is subject to the condition that the isolation is ordered by an Austrian 
authority on the basis of provisions of national law relating to epidemics, with the 
result that such compensation is not paid to workers who, as frontier workers, are 
resident in another Member State and whose isolation (‘quarantine’) is ordered by 
the health authorities of their Member State of residence? 
Provisions of European Union law relied on 
Article 45 TFEU; Article 7 of Regulation (EU) No 492/2011 of the European 
Parliament and of the Council of 5 April 2011 on freedom of movement for 
workers within the Union; Articles 1 to 3, 5 and 11 of Regulation (EC) 
No 883/2004 of the European Parliament and of the Council of 29 April 2004 on 
the coordination of social security systems 
Provisions of national law relied on 
Paragraph 7(1) of the Epidemiegesetz (Law on epidemics; ‘the EpiG’): ‘Diseases 
subject to compulsory notification in respect of which isolation measures may be 
ordered in relation to persons infected with, suspected of being infected with, or 
suspected of being contagious with the disease shall be designated by means of a 
regulation. …’ 
Paragraph 32 of the EpiG: ‘(1) Natural and legal persons as well as commercial-
law partnerships shall be compensated for the pecuniary disadvantages caused by 
the impediment to their business activities if and to the extent that 
1. they have been required to isolate under Paragraph 7 or 17; […] 
and thereby suffered a loss of earnings. 
THERMALHOTEL FONTANA 
 
 
      
(2) The compensation shall be paid for each day covered by the administrative 
order referred to in subparagraph 1. 
(3) Compensation for persons who are in an employment relationship shall be 
assessed on the basis of their regular remuneration … . The amount of 
compensation due shall be paid by employers on the dates on which remuneration 
is customarily paid in the business concerned. The entitlement to compensation 
vis-à-vis the Federal Government shall be transferred to the employer at the time 
of payment … .’ 
Succinct presentation of the facts and procedure and the essential arguments 
of the parties in the main proceedings 
1 The appellant on a point of law has its registered office in Austria, where it 
operates a hotel. Several workers tested positive for COVID-19 in the course of 
control testing carried out at that hotel. The appellant on a point of law notified 
those results to the Austrian health authority, which, however, did not impose 
isolation on the workers concerned, because they were resident in Slovenia or 
Hungary. However, the Austrian authority informed the competent authorities of 
those other Member States, which subsequently ordered the isolation of the 
workers at their respective places of residence in Slovenia and Hungary for 
specified periods (from 23 October 2020 to 18 November 2020, from 21 October 
2020 to 17 November 2020 and from 26 October 2020 to 13 November 2020, 
respectively). During those periods of isolation, the appellant on a point of law 
continued to pay to the workers concerned their respective remuneration. 
2 On 1 December 2020, the appellant on a point of law applied to the 
Bezirkshauptmannschaft Südoststeiermark (district administrative authority, 
South-East Styria) for compensation for the loss of earnings, since the workers’ 
entitlement thereto had been transferred to the appellant on a point of law upon 
payment of the remuneration. Those applications were refused by administrative 
decisions of the district administrative authority of 29 December 2020. 
3 By five judgments, the complaints lodged by the appellant on a point of law 
against those administrative decisions were dismissed as unfounded by the 
Landesverwaltungsgericht Steiermark (Regional Administrative Court, Styria), 
since, in its view, no entitlement was due under the EpiG in the case of isolation 
measures ordered by foreign authorities. 
4 The appellant on a point of law brought the present ‘extraordinary’ appeals on a 
point of law against those judgments before the Verwaltungsgerichtshof (Supreme 
Administrative Court), by which, above all, it raised doubts as to the compatibility 
of Paragraph 32(1) and (3) of the EpiG, as interpreted by the Regional 
Administrative Court, with the freedom of movement for workers under Article 45 
TFEU and Regulation (EC) No 883/2004. The Supreme Administrative Court 
joined those appeals on a point of law for the purposes of ruling on them together. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-411/22 
 
4  
Succinct presentation of the reasoning in the request for a preliminary ruling 
5 The Supreme Administrative Court is a court against whose decisions there is no 
judicial remedy under national law within the meaning of Article 267 TFEU. 
6 Conceptually, the amount of compensation paid to the worker under the first and 
second sentences of Paragraph 32(3) of the EpiG does not constitute 
remuneration, but rather recompense (compensation) paid by the Federal 
Government on the basis of an authority conferred under public law. 
7 In the present case, it must be clarified whether, in its capacity as employer, the 
appellant on a point of law is also entitled to assert a claim for compensation for 
loss of earnings – transferred to it in accordance with the third sentence of 
Paragraph 32(3) of the EpiG – where the order on the basis of which the workers 
who were infected with, suspected of being infected with, or suspected of being 
contagious with COVID-19 were required to isolate was issued not by an 
administrative decision of an Austrian health authority but by a measure (of a 
public authority) of another Member State, due to the fact that they were not 
resident in Austria. 
8 The Supreme Administrative Court proceeds on the assumption that the workers 
concerned are frontier workers within the meaning of Article 1(f) of Regulation 
No 883/2004 and that those workers are therefore subject, within the scope of that 
regulation, to Austrian legislation within the meaning of Article 11(1) and (3)(a) 
of that regulation.  
9 If the compensation provided for in Paragraph 32 of the EpiG were to be regarded 
as a sickness benefit within the meaning of Article 3(a) of Regulation 
No 883/2004, the Austrian authorities and courts would, in accordance with 
Article 5(b) of that regulation, be required to take an isolation order imposed by 
the competent authority of another Member State into account as if it had been 
imposed by an Austrian authority on its own territory. 
10 In accordance with the case-law of the Court of Justice of the European Union 
(‘the Court’), a benefit is regarded as a social security benefit within the meaning 
of Article 3 of Regulation No 883/2004 where it is granted without any individual 
and discretionary assessment of personal needs, on the basis of a statutorily 
defined position, and it relates to one of the risks expressly listed in Article 4(1) of 
Regulation No 1408/71 (now Article 3(1) of Regulation No 883/2004). In order to 
distinguish between the various categories of social security benefits, the risk 
covered by each benefit must be taken into consideration (see, in relation to the 
predecessor provision in Regulation No 1408/71, judgment of 1 February 2017, 
Tolley, C-430/15, EU:C:2017:74, paragraphs 43 and 45). A sickness benefit 
covers the risk connected to a morbid condition involving temporary suspension 
of the concerned person’s activities (see judgment of 21 July 2011, Stewart, 
C-503/09, EU:C:2011:500, paragraph 37). 
THERMALHOTEL FONTANA 
 
 
      
11 The benefit in question in the present case is granted by the Federal Government 
on the basis of a statutorily defined position. However, it is not tied to the 
existence of an illness, but is based on the fact that the person to whom the benefit 
is due is prevented from performing his or her work by virtue of an order of the 
public health authorities and thereby suffers a loss of earnings, which is 
compensated by the Federal Government. The EpiG classifies isolation imposed 
by the authorities as a ‘precaution for the prevention and control of diseases 
subject to compulsory notification’. In accordance with its objective, isolation 
does not serve to enable the recovery of individuals, but rather to protect the 
population from being infected by the isolated person and thereby to contain the 
general health risk posed by the disease subject to compulsory notification.  
12 The Supreme Administrative Court is therefore inclined to the view that the 
compensation at issue in the present case does not constitute a sickness benefit 
within the meaning of Article 3(1)(a) of Regulation No 883/2004. However, since 
the Court has hitherto not ruled on that question, and the correct application of EU 
law is also not so obvious as to leave no scope for any reasonable doubt, the 
question is referred to the Court for a ruling pursuant to Article 267 TFEU. 
13 In the event that Question 1 is answered in the negative, it must be clarified 
whether the freedom of movement of workers under Article 45 TFEU and the 
principle of equal treatment under Article 7 of Regulation No 492/2011 preclude a 
compensation regime such as that provided for in Paragraph 32 of the EpiG. 
14 The workers affected by the isolation measure in the case in the main proceedings 
are employed in Austria, but are resident in Slovenia or Hungary, to which they 
return on a daily basis. They must therefore be regarded as workers who have 
exercised their right to freedom of movement, provided for in Article 45 TFEU. 
15 The entitlement to compensation asserted by the appellant on a point of law in the 
case in the main proceedings is based on the fact that such entitlement vis-à-vis 
the Federal Government, which arises for the worker by operation of law, is first 
satisfied by the employer vis-à-vis the workers and is then transferred, to that 
extent, to the employer. The employer’s entitlement is therefore directly related to 
employment within the meaning of Article 45 TFEU, with the result that, in the 
view taken by the Supreme Administrative Court – and also in the light of the 
case-law (see judgment of 7 May 1998, Clean Car Autoservice v 
Landeshauptmann von Wien, C-350/96, EU:C:1998:205, paragraph 18 et seq.) – 
there are no concerns as to the fact that the employer is also able to rely on the 
freedom of movement for workers under Article 45 TFEU in that connection. 
16 Residence in Austria is – indirectly – prescribed by a provision of national law as 
a condition for the assertion of entitlement to compensation. The Supreme 
Administrative Court takes the view that this is to be regarded as indirect 
discrimination because it is intrinsically liable to affect migrant workers more than 
national workers and there is a consequent risk that it will place the former at a 
particular disadvantage (see judgment of 18 July 2007, Hartmann, C-212/05, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-411/22 
 
6  
EU:C:2007:437, paragraphs 29-31); in the view taken by the Supreme 
Administrative Court, that outcome is also not affected if the entitlement derived 
by the worker is asserted by the employer. 
17 With respect to the regime at issue in the present case, it is not possible to infer 
from the legislative material any special justification for taking as the basis in that 
regard an administrative decision by an Austrian authority and thus, indirectly, the 
fact that the worker is resident in Austria. At best, public health may enter into 
consideration as justification. The ordering of isolation measures in respect of 
persons infected with, suspected of being infected with, or suspected of being 
contagious with a disease facilitates the tracing of infections and has the effect 
that (possibly) infected persons are not permitted to spend time outside their 
residence, with the result that the risk of COVID-19 spreading further can be 
reduced. The statutory entitlement to compensation for loss of earnings during the 
period of isolation also serves to promote compliance with the quarantine 
measures and thereby to increase the effectiveness of the measures taken by the 
health authorities to contain infections. A possible justification for taking as the 
basis orders issued only by Austrian authorities could be that monitoring 
compliance with such orders is also possible only if the isolation takes place in the 
national territory and that the objective of containing infections relates to the 
situation in the national territory, which may differ from the epidemic situation in 
the other Member State (the country of residence of the worker concerned). 
Lastly, a possible justification for the compensation provided by the Federal 
Government being limited to those workers who have been required to isolate by 
Austrian authorities could be that it is only in those cases that the Austrian State is 
responsible for the impediment to the worker’s employment. The worker, in the 
event of a quarantine order in his or her country of origin, would have to be 
referred to that country in so far as corresponding compensation rules exist there. 
18 In any event, it does not seem to be manifestly apparent that the unequal treatment 
between employers who employ workers resident in the national territory and 
employers who also employ frontier workers is proportionate. Since, therefore, the 
correct application of EU law does not appear to be so obvious as to leave no 
scope for any reasonable doubt, Question 2 is also referred for a preliminary 
ruling pursuant to Article 267 TFEU.