Judgment;Summary — ECLI:EU:C:2022:89
Date: 2022-02-10
Language of the case: German
Court formation: Sixth Chamber
Subject matter: Fundamental rights;European Convention on Human Rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Austria

Anonymised version 
Translation  C-219/20 — 1 
Case C-219/20 
Request for a preliminary ruling 
Date lodged: 
26 May 2020 
Referring court: 
Landesverwaltungsgericht Steiermark (Austria) 
Date of the decision to refer: 
12 May 2020 
Appellant: 
LM 
Respondent authority: 
Bezirkshauptmannschaft Hartberg-Fürstenfeld 
[…] 
Request 
for a 
Preliminary Ruling 
pursuant to Article 267 TFEU 
Parties to the main proceedings […]: 
(a) Appellant: LM, 
[…] SK-91304 Kostolná-Záriecie  
[…]     
EN 
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(b) Respondent authority: Bezirkshauptmannschaft Hartberg-Fürstenfeld 
(district administrative authority, Hartberg-Fürstenfeld, Austria) 
[…] 8230 Hartberg     
[…] [Or. 2] 
(c) Interested party: Österreichische Gesundheitskasse (Austrian Health 
Insurance Fund) 
Kompetenzzentrum LSDB (centre responsible for combating wage and social 
dumping)           
[…] 1100 Vienna  
[…]  
In the proceedings concerning the appeal brought by LM […] against the 
administrative penal order of the Bezirkshauptmannschaft (district administrative 
authority) Hartberg-Fürstenfeld of 12 March 2019, served on 20 February 2020, 
[…] the Landesverwaltungsgericht Steiermark (Regional Administrative Court of 
Styria) […] has made the following 
ORDER 
I. The following question is referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
1. Must Article 6 of the European Convention on Human Rights and 
Article 41(1) and the second paragraph of Article 47 of the Charter of 
Fundamental Rights of the European Union 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? 
II. […] [procedural law matters] [Or. 3] 
Grounds 
I. 
Facts and procedure: 
At around 9.50 a.m. on 19 June 2016, investigative agencies of the Finanzpolizei 
(Financial Police, Austria) carried out a check in 8271 Wagerberg […]. They 
came across four people laying tiles. 
BEZIRKSHAUPTMANNSCHAFT HARTBERG-FÜRSTENFELD AND ÖSTERREICHISCHE GESUNDHEITSKASSE 
 
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The persons in question are posted workers of the Slovak company GVAS s.r.o., 
which has its registered office in […] 91304 Kostolná-Záriecie. The legal 
representative of GVAS s.r.o. at the time of the check was LM. 
On the basis of a complaint lodged by the Wiener Gebietskrankenkasse (Vienna 
Area Health Fund)), LM was ordered to pay a total fine of EUR 6 600 (penalty, 
costs) by the Hartberg-Fürstenfeld district administrative authority in respect of an 
administrative offence pursuant to Paragraph 7i(5) of the 
Arbeitsvertragsrechtsanpassungsgesetz (Law on the adaptation of the provisions 
governing contracts of employment; ‘the AVRAG’) in the version published in 
Federal Law Gazette (BGBl.) I No 152/2015. More specifically, the appellant was 
accused of being liable, as the person responsible for the company GVAS s.r.o. 
located in 91304 Kostolná-Záriecie, for the fact that the four aforementioned 
persons were employed from 11 July 2016 to 21 July 2016 without being paid the 
remuneration due, having regard to the respective classification criteria. All four 
workers laid tiles and carried out jointing work. The first and second persons were 
underpaid by EUR 103.80, or 11.21%, and a fine of EUR 2 000 (or, in the event of 
non-payment, a custodial sentence of 1 day) was imposed in respect of each of 
them. The third and fourth persons were underpaid by EUR 77.65, or 9.07%, 
meaning that, for each person, LM was ordered to pay a fine of EUR 1 000 or, in 
the event of non-payment, serve a custodial sentence of 16 Dni (sic) [days — 
should probably read ‘hours’]. 
The Financial Police carried out the check on 19 June 2016. The 
administrative penalty order of the Hartberg-Fürstenfeld district 
administrative authority was not served on the appellant until 20 February 
2020. [Or. 4] 
The appellant in the case described in the facts is the person responsible for a 
Slovak company on whom fines and, in the event of non-payment, custodial 
sentences have been imposed on the basis of pending proceedings concerning 
administrative offences on the grounds of suspected infringements of the AVRAG 
in the amount of EUR 6 600 (penalty, costs, disbursements) or, if those fines 
cannot be collected, a custodial sentence of 1 day/9 Dni (sic) for each of the first 
two infringements and 16 Dni (sic) for the third and fourth infringements. 
Paragraph 7i(7) of the AVRAG is applicable to these proceedings before the 
Regional Administrative Court of Styria. 
The acts which LM is alleged to have committed are offences committed as a 
result of negligence and administrative offences. 
An appeal against the penalty imposed was lodged in time. 
Thus, the provision of Paragraph 7i(7) of the AVRAG in the version published in 
BGBl. I No 152/2015, pursuant to which the limitation period for the punishment 
of offences is five years, is applicable to the present proceedings before the 
Regional Administrative Court of Styria. 
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II. 
The relevant legal position is as follows: 
Provisions of EU law: 
Article 6 of the European Convention on Human Rights is worded as follows: 
Right to a fair trial 
1. In the determination of his civil rights and obligations or of any criminal 
charge against him, everyone is entitled to a fair and public hearing within a 
reasonable time by an independent and impartial tribunal established by law. 
Judgment shall be pronounced publicly but the press and public may be excluded 
from all or part of the trial in the interests of morals, public order or national 
security in a [Or. 5] democratic society, where the interests of juveniles or the 
protection of the private life of the parties so require, or to the extent strictly 
necessary in the opinion of the court in special circumstances where publicity 
would prejudice the interests of justice. 
2. Everyone charged with a criminal offence shall be presumed innocent until 
proved guilty according to law. 
3. Everyone charged with a criminal offence has the following minimum rights 
(the French text reads ‘… has, in particular, the following rights’): 
(a) to be informed promptly, in a language which he understands and in detail, 
of the nature and cause of the accusation against him; 
(b) to have adequate time and facilities for the preparation of his defence; 
(c) to defend himself in person or through legal assistance of his own choosing 
or, if he has not sufficient means to pay for legal assistance, to be given it 
free when the interests of justice so require; 
(d) to examine or have examined witnesses against him and to obtain the 
attendance and examination of witnesses on his behalf under the same 
conditions as witnesses against him; 
(e) to have the free assistance of an interpreter if he cannot understand or speak 
the language used in court. 
Article 41 of the Charter of Fundamental Rights of the European Union 
(2000/C 364/01) reads: 
Right to good administration 
1. Every person has the right to have his or her affairs handled impartially, 
fairly and within a reasonable time by the institutions and bodies of the Union. 
BEZIRKSHAUPTMANNSCHAFT HARTBERG-FÜRSTENFELD AND ÖSTERREICHISCHE GESUNDHEITSKASSE 
 
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2. This right includes: the right of every person to be heard, before any 
individual measure which would affect him or her adversely is taken; the right of 
every person to have access to his or her file, while respecting the legitimate 
interests of confidentiality and of professional and business secrecy; the obligation 
of the administration to give reasons for its decisions. [Or. 6] 
3. Every person has the right to have the Community make good any damage 
caused by its institutions or by its servants in the performance of their duties, in 
accordance with the general principles common to the laws of the Member States. 
4. Every person may write to the institutions of the Union in one of the 
languages of the Treaties and must have an answer in the same language. 
The second paragraph of Article 47 of the Charter of Fundamental Rights of the 
European Union (2000/C 364/01) reads: 
Right to an effective remedy and to a fair trial 
… 
Everyone is entitled to a fair and public hearing within a reasonable time by an 
independent and impartial tribunal previously established by law. Everyone shall 
have the possibility of being advised, defended and represented. 
Provisions of national law: 
The provisions of Paragraph 7i of the AVRAG in the applicable version of 
BGBl. I No 459/1993, as amended by BGBl. I No 152/2015, read as follows 
Penalties 
Paragraph 7i (1) Whosoever fails to supply the necessary documents, in 
breach of Paragraph 7d(1) or point 3 of Paragraph 7f(1), commits an 
administrative offence punishable by the district administrative authority by way 
of a fine in the amount, in respect of each worker, of EUR 500 to EUR 5 000 and, 
in the event of a repeat offence, of EUR 1 000 to EUR 10 000. Whosoever fails to 
supply the documents in breach of Paragraph 7g(2) or Paragraph 7h(2) shall also 
be penalised. 
(2) Whosoever, in breach of Paragraph 7f(1), refuses to allow access to working 
facilities, business premises and external workplaces or work sites, as well as the 
employees’ recreation areas and the roads providing access to those places, or 
refuses to provide information or otherwise prevents or impedes the check, 
commits an administrative offence punishable by the [Or. 7] district 
administrative authority by way of a fine in the amount of EUR 1 000 to 
EUR 10 000 and, in the event of a repeat offence, of EUR 2 000 to EUR 20 000. 
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(2a) Whosoever refuses to allow documents to be inspected, in breach of 
Paragraphs 7b(5) and 7d, commits an administrative offence punishable by the 
district administrative authority by way of a fine in the amount, in respect of each 
worker, of EUR 1 000 to EUR 10 000 and, in the event of a repeat offence, of 
EUR 2 000 to EUR 20 000. 
(3) Whosoever, in his capacity as an employer, refuses to allow documents to be 
inspected, in breach of Paragraph 7g(2), shall also be penalised pursuant to 
subparagraph 2a. 
(4) Whosoever 
1. in his capacity as an employer within the meaning of Paragraphs 7, 7a(1) or 
7b(1) and (9), fails to keep available records of wages, in breach of 
Paragraph 7d, or 
2. as a hiring-out entity, in cases involving the cross-border hiring-out of 
labour to Austria, fails to supply records of wages to the third-party 
employer, in a way that can be verified, in breach of Paragraph 7d(2), or 
3. as a third-party employer, in cases involving the cross-border hiring-out of 
labour, fails to keep available records of wages, in breach of 
Paragraph 7d(2), 
commits an administrative offence punishable by the district administrative 
authority by way of a fine in the amount, in respect of each worker, of EUR 1 000 
to EUR 10 000 and, in the event of a repeat offence, of EUR 2 000 to 
EUR 20 000, and, where more than three workers are affected, in the amount, in 
respect of each worker, of EUR 2 000 to EUR 20 000 and, in the event of a repeat 
offence, of EUR 4 000 to EUR 50 000. 
(5) Whoever, in his capacity as an employer, employs or has employed an 
employee without paying that employee at least the remuneration to which he 
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. 
Overpayments, based on a collective agreement or employment contract, of 
pay components due according to the law, regulation or collective agreement 
shall be offset against any underpayments in the respective wage payment 
period. With regard to special payments for the [Or. 8] employees referred to 
in points 1 and 2 of Paragraph 7g(1), an administrative offence pursuant to 
the first sentence exists only if the employer does not make the special 
payments or does not make them in full by 31 December of the respective 
calendar year at the latest. Where no more than three workers are affected 
BEZIRKSHAUPTMANNSCHAFT HARTBERG-FÜRSTENFELD AND ÖSTERREICHISCHE GESUNDHEITSKASSE 
 
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by the underpayment, the fine shall be, in respect of each worker, EUR 1 000 
to EUR 10 000 and, in the event of a repeat offence, EUR 2 000 to 
EUR 20 000, and where more than three workers are affected, the fine shall 
be, in respect of each worker, EUR 2 000 to EUR 20 000 and, in the event of a 
repeat offence, EUR 4 000 to EUR 50 000. 
(5a) There is no liability under subparagraph 5 if the employer pays, in a way 
that can be verified, the difference between the remuneration actually paid and the 
remuneration due to the employee under Austrian legislation before an 
investigation conducted by the competent institution in accordance with 
Paragraphs 7f to 7h. 
(6) If the district administrative authority establishes that 
1. the employer pays to the employee, in a way that can be verified, the 
difference between the remuneration actually paid and the remuneration due to the 
employee under Austrian legislation within a period to be specified by the 
authority, and 
2. the shortfall in the remuneration that is relevant pursuant to point 1 of 
subparagraph 5 is minor, having regard to the respective classification criteria, or 
3. the fault of the employer or of its authorised representative (Paragraph 9(1) 
of the Verwaltungsstrafgesetz (Law on administrative offences; ‘the VStG’)) or 
responsible agent (Paragraph 9(2) or (3) of the VStG) does not exceed slight 
negligence, 
it is to refrain from imposing a penalty. It is also to refrain from imposing a 
penalty if the employer pays to the employee, in a way that can be verified, the 
difference between the remuneration actually paid and the remuneration due to the 
employee under Austrian legislation before the request by the district 
administrative authority, and the other conditions laid down in the first sentence 
are met. Point 4 and the last sentence of Paragraph 45(1) of the VStG are not 
applicable in proceedings concerning administrative offences under subparagraph 
5. If the employer demonstrates to the district administrative authority that it has 
paid the employee the difference between the remuneration actually paid and the 
remuneration [Or. 9] due to the employee under Austrian legislation, this must be 
taken into account as a mitigating factor in the determination of the appropriate 
penalty. 
(7) The limitation period for bringing proceedings (Paragraph 31(1) of 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 period of limitation 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 
period of limitation for the punishment of offences (Paragraph 31(2) of the 
VStG) is five years. With regard to special payments, the periods pursuant to the 
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first two sentences begin to run from the end of the respective calendar year (third 
sentence of subparagraph 5). 
(7a) In the event that the employer retroactively pays the remuneration due 
according to the law, regulation or collective agreement for the period of 
underpayment concerned pursuant to subparagraph 5, the duration of the periods 
pursuant to Paragraph 31(1) and (2) of the VStG is one year (limitation period for 
bringing proceedings) or three years (limitation period for the punishment of 
offences), unless the limitation period begins at an earlier point in time on the 
basis of subparagraph 7; the period begins to run when the retroactive payment is 
made. 
(8) In proceedings concerning administrative offences 
1. pursuant to subparagraph 1, first sentence, subparagraph 2 and subparagraph 
4, and pursuant to Paragraph 7b(8), the tax authority shall have the status of 
party, and, in the cases in subparagraph 5, in conjunction with Paragraph 7e, 
the Kompetenzzentrum LSDB shall have the status of party, 
2. pursuant to subparagraph 5, in conjunction with Paragraph 7g, and in the 
cases in subparagraph 1, second sentence, and subparagraph 3, the 
competent sickness insurance institution shall have the status of party, 
3. pursuant to subparagraphs 1, 2a, 4 and 5 and pursuant to Paragraph 7b(8), in 
conjunction with Paragraph 7h, the Bauarbeiter-Urlaubs- und 
Abfertigungskasse (Construction Workers’ Holiday and Severance Pay 
Fund) shall have the status of party, 
even if the complaint is not lodged by the institutions referred to in points 1 to 3. 
They may lodge an appeal on the merits with the Verwaltungsgericht 
(Administrative Court) against the decision of an administrative authority and an 
appeal on a point of law with the Verwaltungsgerichtshof (Supreme 
Administrative Court) against the judgment or order of an administrative court. 
(9) In cases involving the cross-border posting or hiring-out of workers, the 
administrative offence shall be deemed to have been committed in the district of 
the district administrative authority in which the place of work (or the place of 
deployment) of the workers posted or hired out to Austria is located, or, if the 
place of work (or the place of deployment) changes, the place where the check is 
carried out. [Or. 10] 
(10) In order to assess whether there is an employment relationship within the 
meaning of this Federal law, it is necessary to have regard to the genuine 
economic substance and not to the external appearance of the situation. 
III. 
BEZIRKSHAUPTMANNSCHAFT HARTBERG-FÜRSTENFELD AND ÖSTERREICHISCHE GESUNDHEITSKASSE 
 
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The Regional Administrative Court of Styria is prompted by doubts as to the 
compatibility of Paragraph 7i(7) of the AVRAG with EU law to submit a request 
for a preliminary ruling to the Court of Justice of the European Union. 
[…] [discussion of entitlement to submit a request for a preliminary ruling] 
In principle, administrative or punitive measures must not go so far beyond what 
is necessary to attain the objectives pursued and a penalty must not be so 
disproportionate to the gravity of the infringement that it becomes an obstacle to 
the freedoms enshrined in the Treaty. It is, however, for the referring court to 
determine, in the light of the foregoing considerations, whether the penalties 
provided for by the applicable national legislation are proportionate (CJEU, 
C-430/05, Ntionik Anonymi Etaireia Emporias, EU:C:2007:410, paragraph 54). 
The Court of Justice has also held that Member States are required to comply with 
the principle of proportionality not only as regards the determination of factors 
constituting an infringement and the determination of the rules concerning the 
severity of fines, but also as regards the assessment of the factors which may be 
taken into account in the fixing of a fine (see CJEU, Joined Cases C-497/15 and 
C-498/15, Euro-Team Kft., EU:C:2017:229, paragraphs 42 and 43; CJEU, 
C-501/14, EL-EM-2001, EU:C:2016:777, paragraph 41). [Or. 11] 
The Court of Justice has further stated in its case-law that the severity of the 
sanctions must be commensurate with the seriousness of the breaches for which 
they are imposed, in particular by ensuring a genuinely dissuasive effect (see 
CJEU, C-81/12, Asociatia Accept, EU:C:2013:275, paragraph 63; CJEU, 
C-383/92, Commission v United Kingdom, paragraph 42). At the same time, 
however, the general principle of proportionality must be respected (see CJEU, 
C-81/12, Asociatia Accept, EU:C:2013:275, paragraph 63; CJEU, C-101/01, 
Lindqvist, EU:C:2003:596, paragraphs 87 and 88; CJEU, C-430/05, Ntionik 
Anonymi Etaireia Emporias, EU:C:2007:410, paragraph 53; CJEU, C-418/11, 
Texdata Software, EU:C:2013:588, paragraph 50; CJEU, C-565/12, LCL Le 
Credit Lyonnais SA, EU:C:2014:190, paragraph 45). 
The national legislation provides that the limitation period for the punishment of 
offences in cases involving underpayment is five years. Confirmation of the 
penalty in the dispute in the main proceedings would mean that the appellant 
would have to pay a fine of EUR 6 600.00 for two underpayments of EUR 103.80, 
or 11.21%, and two underpayments of EUR 77.65, or 9.07%, which took place 
back in 2016. 
Although the penalties are not particularly severe, it seems questionable how 
a person accused of a petty offence committed through negligence is still 
supposed to defend himself adequately before a court after almost five years. 
Finally, the purpose of a reasonable limitation period in cases involving a 
criminal charge is, inter alia, to ensure that the accused person is able to 
defend himself as effectively as possible. If evidence is lost or witnesses cannot 
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be located or simply cannot remember what happened after such a long time, 
an accused person or defendant is placed at a considerable disadvantage, 
which the provisions of, in particular, Article 6 ECHR and the second 
paragraph of Article 47 of the Charter are intended to prevent. 
Since the Austrian legislature has opted for a particularly long limitation 
period of 5 years for offences committed as a result of negligence under the 
law on administrative offences, the referring court takes the view that there is 
a possible infringement of European law, the application of which takes 
precedence over national law. [Or. 12] 
IV. 
[…] [discussion of entitlement to submit a request for a preliminary ruling] 
[…]