Opinion of the Advocate General — ECLI:EU:C:2021:759
Date: 2021-09-23
Language of the case: German
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-205/20 – 1 
Case C-205/20 
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: 
8 May 2020 
Referring court: 
Landesverwaltungsgericht Steiermark (Austria) 
Date of the decision to refer: 
27 April 2020 
Appellant: 
NE 
Respondent authority: 
Bezirkshauptmannschaft Hartberg-Fürstenfeld (Austria) 
  
Subject matter of the main proceedings 
Penalty for failure to comply with obligations to report posted workers and to 
keep records of wages  
Subject matter and legal basis of the reference 
Implementation of the order of the Court in case C-645/18, direct applicability of 
Article 20 of Directive 2014/67/EU (cumulation of fines where numerous workers 
are concerned)  
Questions referred for a preliminary ruling 
1. Is the requirement of proportionality of penalties laid down in Article 20 of 
Directive 2014/67/EU and interpreted by the Court of Justice of the European 
Union in its orders in Bezirkshauptmannschaft Hartberg-Fürstenfeld (C-645/18, 
EU:C:2019:1108) and Bezirkshauptmannschaft Hartberg-Fürstenfeld (C-140/19, 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-205/20 
 
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C-141/19, C-492/19, C-493/19 and C-494/19, EU:2019:1103) a directly 
applicable provision of the Directive? 
2. If Question 1 is answered in the negative: 
Does the interpretation of national law in conformity with EU law permit and 
require the national court and administrative authority to supplement – in the 
absence of new legislation at national level – the domestic penal provisions 
applicable in the present proceedings with the criteria of the requirement of 
proportionality laid down in the orders of the Court of Justice of the European 
Union in Bezirkshauptmannschaft Hartberg-Fürstenfeld (C-645/18, 
EU:C:2019:1108) and Bezirkshauptmannschaft Hartberg-Fürstenfeld (C-140/19, 
C-141/19, C-492/19, C-493/19 and C-494/19, EU:2019:1103)? 
Provisions of EU law cited 
Article 56 TFEU and Article 20 of Directive 2014/67/EU 
Provisions of national law cited 
Paragraph 16(1) and (2) of the Verwaltungsstrafgesetz (Law on administrative 
penalties, ‘the VStG’); Paragraph 52(1) and (2) of the 
Verwaltungsgerichtsverfahrensgesetz (Law on the rules of procedure for the 
administrative courts, ‘the VwGVG’); and Paragraphs 26(1), 27(1) and 28, 
point 1, of the Lohn- und Sozialdumping-Bekämpfungsgesetz (Law to combat 
wage and social dumping, ‘the LSD-BG’) 
Case-law of the Court of Justice cited 
Order of 19 December 2019, Bezirkshauptmannschaft Hartberg-Fürstenfeld, 
C-645/18, EU:C:2019:1108; Order of 19 December 2019, 
Bezirkshauptmannschaft Hartberg-Fürstenfeld, C-140/19, C-141/19 and C-492/19 
to C-494/19, EU:2019:1103; judgment of 12 September 2019, Maksimovic and 
Others, C-64/18, C-140/18, C-146/18 and C-148/18, EU:C:2019:723; judgment of 
27 June 1991, Mecanarte, C-348/89, EU:C:1991:278; judgment of 22 March 
2017, Euro-Team Kft. and Spirál-Gép Kft., C-497/15 and C-498/15, 
EU:C:2017:229; judgment of 4 October 2018, Dooel Uvoz-Izvoz Skopje Link 
Logistic N&N, C-384/17, EU:C:2018:810; judgment of 19 January 1982, Becker, 
C-8/81, EU:C:1982:7; judgment of 15 April 2008, Impact, C-268/06, 
EU:C:2008:223; judgment of 14 September 2016, Martínez Andrés and 
Castrejana López, C-184/15 and C-197/15, EU:C:2016:680; judgment of 
24 January 2018, Pantuso and Others, C-616/16 and C-617/16, EU:C:2018:32; 
judgment of 13 July 2016, Pöpperl, C-187/15, EU:C:2016:550; judgment of 
28 June 2018, Crespo Rey, C-2/17, EU:C:2018:511; and judgment of 10 April 
1984, von Colson and Kamann, 14/83, EU:C:1984:153 
BEZIRKSHAUPTMANNSCHAFT HARTBERG-FÜRSTENFELD (AUSTRIA) 
 
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Brief summary of the facts and procedure 
1 These proceedings follow on from the proceedings in which the Court delivered 
its order of 19 December 2019 (C-645/18, in which a summary of the facts in the 
main proceedings can be found). The Court found by that order that the applicable 
national legislation is contrary to EU law, since when the national legislature has 
neither enacted nor, at the very least, planned legislation to replace the provisions 
of the LSD-BG applicable in the present case or the penal provisions of the 
Ausländerbeschäftigungsgesetz (Law on the employment of foreign nationals) 
concerned by the judgment of the Court in Maksimovic (C-64/18), nor has it 
amended the legislation on custodial sentences in the event of non-payment and 
on contributions to court costs. 
Admissibility 
2 With regard to the admissibility of the questions referred, the Court delivered 
judgments on similar facts and legal aspects in Euro Team and Spirál-Gép 
(C-497/15 and C-498/15) and in Dooel Uvoz Izvoz Skopje Link Logistic N&N 
(C-384/17). 
Summary of the basis for the reference 
3 In light of the de facto erga omnes effect of the judgments of the Court of Justice 
of the European Union cited at paragraph 1, the question arises, irrespective of the 
dozens, if not hundreds, of administrative penal proceedings which are already 
pending or which will be initiated in future in Austria, as to whether the relevant 
penal provisions, which continue formally to apply unchanged, should still be 
applied and, if so, in what form. 
4 By its judgment RA 2019/11/0033 of 15 October 2019, the 
Verwaltungsgerichtshof (Supreme Administrative Court, Austria) concluded, in 
light of the findings in the judgment of the Court in Maksimovic as to how fines 
should now be assessed, that, in the event of infringement of the obligation to 
make records of wages available in compliance with EU law, while abiding as 
closely as possible by national law, a single fine should be imposed in future, even 
where several workers are concerned. That is because, in the absence of a 
legislated maximum fine for cases in which the obligation to make records 
available has been infringed for several workers, the alternative of disapplying the 
entire provision penalising non-compliance with EU law would result in even 
greater interference in national law. Furthermore, the Supreme Administrative 
Court found by that judgment that the minimum fines provided for by law should 
cease to apply and that custodial sentences in the event of non-payment should 
cease to be handed down in accordance with Paragraph 16 of the VStG.  
5 Although most of the administrative courts follow that judgment, some conclude 
from the case-law of the Verfassungsgerichtshofs (Constitutional Court, Austria) 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-205/20 
 
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establishing that the courts must of their own motion disapply any provision of 
national law that is contrary with EU law (see, for example, judgment of 
27 November 2019 E 2047/2019) that, unlike the Supreme Administrative Court, 
the Constitutional Court holds that it is inadmissible to continue to apply the penal 
provisions concerned in part and that no fines should be imposed until such time 
as replacement legislation has been passed. The fines assessed differ widely from 
case to case: in some cases, the fines now being handed down are assessed at or 
just above the minimum fine, even where a large number of workers are 
concerned, while in others an overall fine is assessed which is close to the sum of 
the individual fines that would have been imposed in the past for each offence. 
Many administrative courts continue to impose cumulative fines based on a free 
interpretation of the judgment of the Court in Maksimovic, in derogation from the 
judgment mentioned above of the Supreme Administrative Court. In terms of the 
minimum fines, although some courts deduce from the judgment of the Supreme 
Administrative Court that fines below the previous minimum statutory amount are 
permissible, the majority conclude that there is no longer any lower limit. Often, 
decisions are put on hold, in particular at the administrative level. 
6 To summarise, the current situation is beset by inconsistent case-law – and hence 
legal uncertainty – that goes well beyond the case at issue; this is held to be 
unsatisfactory both by the authorities and courts involved in enforcement and by 
the persons subject to the law. 
The first question 
7 The Court has already answered in the negative the question referred by a 
Hungarian court on Article 9a of Directive 1999/62/EC (see judgment in 
C-384/17). However, it has to be noted that the wording of Article 9a of Directive 
1999/62 may be similar, but it is not identical to the wording of Article 20 of 
Directive 2014/67/EU. Furthermore, in considering when a provision of EU law 
within the meaning of its relevant case-law (judgments in Becker, C-8/81, 
paragraph 25, and Impact, C-268/06, paragraphs 56 and 57) is ‘as far as its 
subject matter is concerned, … sufficiently clear, precise and unconditional to be 
relied on in so far as the provisions define rights which individuals are able to 
assert against the State’ and is therefore directly applicable, the Court has set very 
different criteria, depending on the objective of the EU law in question and 
whether the provision in question enacts a prohibition or a right (see, in that 
regard, the opinion of the Advocate General in case C-384/17, points 63 to 69). 
8 A comparison between the judgments delivered by the Court in Euro Team and 
Spirál-Gép and the judgments delivered in Maksimovic and the two 
Bezirkshauptmannschaft Hartberg-Fürstenfeld cases (C-645/18, on the one hand, 
and C-140/19, C-141/19, C-492/19, C-493/19 and C-494/19, on the other) 
illustrates that the Court can draw very different conclusions when examining 
national legislation, even where directives apply similar penalty rules. With regard 
to the Hungarian legislation on fines that was the subject matter of the judgment in 
Euro Team and Spirál-Gép, it was the lack of differentiation in the penal 
BEZIRKSHAUPTMANNSCHAFT HARTBERG-FÜRSTENFELD (AUSTRIA) 
 
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provision, which did not provide for a penal framework or some other way of 
taking account of the particular circumstances of a case when assessing the fine, 
that was objected to, rather than the absolute amount of the fines. However, in the 
judgment forming the basis of the main proceedings and the preliminary rulings 
cited above, the Court objected not to the lack of precision in the relevant Austrian 
penal provisions but, to put it simply, to the fact that the combined effect of the 
large minimum fines imposed, the cumulative imposition of individual fines and 
the absence of an upper limit on the overall fine resulted in what the Court held to 
be a disproportionate penalty. Thus, the requirements imposed by each of those 
judgments on the national legislature (to enact replacement legislation in 
compliance with EU law) and on the courts and administrative authorities faced in 
the transitional phase, pending the enactment of replacement legislation, with the 
question of whether they can continue to apply the penal provisions which the 
Court has found to conflict with EU law and, if so, in what form, differ widely. 
9 The question referred for a preliminary ruling is not a hypothetical question, as the 
answer given by the Court will have a direct effect in terms of the fine that can or 
can no longer be imposed on the appellant in the main proceedings. Furthermore, 
as mentioned at paragraph 5, the answer to this question will be relevant to 
numerous cases in addition to these main proceedings, as it will eliminate the 
existing legal uncertainty or inconsistency in the case-law. 
Second question referred 
10 If the answer to the first question is in the negative, that means, first and foremost, 
that the parties to the main proceedings have no right to rely on Article 20 of 
Directive 2014/67/EU in proceedings before the national authorities and courts. 
However, that does not absolve the Member States and their courts from the 
obligation to implement the Directive (see, for example, judgments in Martinez 
Andres and Castrejana Lopez, C-184/15 and C-197/15, paragraph 50 and the 
case-law cited, and in Pantuso and Others, C-616/16 and C-617/16, 
paragraph 42). 
11 To fulfil that obligation, the principle of interpretation in compliance with EU law 
requires the national authorities to do everything within their power, taking the 
whole body of domestic law into consideration and applying the interpretative 
methods recognised by domestic law, with a view to ensuring that EU law is fully 
effective and to achieving an outcome consistent with the objective pursued by it 
(see, for example, judgments in Pöpperl, C-187/15, paragraph 43, and Crespo 
Rey, C-2/17, paragraph 70 and the case-law cited). 
12 However, that principle of interpretation of national law in compliance with EU 
law has certain limits. Thus, the obligation for a national court to refer to the 
content of EU law when interpreting and applying the relevant rules of domestic 
law is limited by general principles of law and cannot serve as the basis for an 
interpretation of national law contra legem (see, for example, judgment in 
Pöpperl, C-187/15, paragraph 44). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-205/20 
 
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13 In light of the case-law of the Court (judgment in Link Logistic, C-384/17, 
paragraphs 59 and 60, in which the Court did not adopt the view of the Advocate 
General at points 90, 95 and 96 of his opinion), the referring court is concerned 
that the fine assessment which it now has to make in the main proceedings, 
bearing in mind the aforesaid judgment of the Supreme Administrative Court RA 
2019/11/0033 would, in the final analysis, constitute an application of the law 
contra legem. In any event, both the statutory requirement that fines must be 
imposed ‘for every worker’ and the various minimum fines laid down are clear, 
unambiguous formulations of the law which cannot be read otherwise by way of 
interpretation. The Advocate General stated in Link Logistic in his comments on 
the limits of conform interpretation at points 56-60 of his opinion, with reference 
to the opinion of Advocate General Sharpston in Unibet (C-432/05, point 55), that 
‘a rule to “be A” cannot suddenly become “be non-A”’. 
14 In terms of the approach that now needs to be taken to minimum statutory fines, 
the Supreme Administrative Court states in its judgment cited at paragraph 4 
above that the ‘minimum statutory fine framework’ (that is the minimum fine in 
each case) should no longer be used as the basis for the assessment of fines; this 
means that a lower fine can be imposed even in cases in which domestic law does 
not allow the minimum fine to be reduced. This way of achieving a conform 
interpretation essentially mirrors the solution which the Advocate General 
considered permissible, but which the Court did not accept in Link Logistic. Here 
too, it follows from such an approach that a fine clearly laid down by amount in 
national law, as in Link Logistic, or a minimum fine quantified precisely by 
amount, as in the case at issue, is reduced contrary to the unambiguous wording of 
the law. 
15 The question of whether the referring court is in fact allowed to proceed in the 
manner described or whether the relevant penal provisions must be disapplied in 
their entirety within the meaning of the operative part of the judgment in Link 
Logistic, as their application would overstep the limits of conform interpretation 
and the assumption by each court at its own discretion that a lower or even no 
minimum fine exists would in truth result in concealed law-making and thus new 
case-law, is of direct significance in the main proceedings. The contested penal 
notice imposes the minimum statutory fine in all cases in the main proceedings. 
As the criteria for reducing the minimum fine laid down in national law 
(Paragraph 20 and Paragraph 45(1)(4) of the VStG) are not fulfilled, the fines 
imposed could only be further reduced if the approach described above is in 
conformity with EU law. 
16 Any such law-making application of the law would, however, appear to be 
questionable for another reason. The principle of conform interpretation within the 
meaning of the case-law of the Court cited above is limited, among other things, 
by the general principles of law which, in the Austrian legal system, include the 
principle of equality and the principle of legality. The principle of legality is 
interpreted very strictly by the Constitutional Court (for example in judgment G 
49/2017), in particular in the field of criminal law, and this has set very narrow 
BEZIRKSHAUPTMANNSCHAFT HARTBERG-FÜRSTENFELD (AUSTRIA) 
 
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limits on the application of the law by the courts. As stated at paragraph 5 above, 
current adjudication practice is already marked by inconsistencies that give cause 
for concern from the point of view of the principle of equality, and case-by-case 
fine assessments that resemble a case-law system. This is completely alien to the 
Austrian legal system in general and the criminal justice system in particular. 
17 The referring court also has concerns as to whether the operative part of the 
judgment in Maksimovic concerning custodial sentences in the event of non-
payment and contributions to court costs and of the order in case C-645/18 on the 
contribution to court costs are in fact to be understood as meaning that any form 
of custodial sentence in the event of non-payment and contribution to court costs 
conflicts with EU law or whether they only conflict with EU law where, as in the 
cases at issue, the cumulative application of Paragraph 16 of the VStG and 
Paragraph 52 of the VwGVG results, in the absence of an upper limit, in a 
disproportionate overall custodial sentence in the event of non-payment or a 
disproportionately high overall contribution to court costs. In any event, it follows 
from the cases at issue that the appellant in case C-146/18, for example, faced the 
risk of an overall custodial sentence in the event of non-payment of 1 736 days 
and a contribution to court costs of over EUR 500 000, were his application in the 
administrative court to be dismissed in its entirety. The referring court’s concerns 
related not to the conformity with EU law of the custodial sentence in the event of 
non-payment as such, which was limited to two weeks in accordance with 
Paragraph 16(2) of the VStG, but with the consequences of its cumulative 
application in the case at issue and, with regard to the contribution to court costs 
in accordance with Paragraph 52 of the VwGVG, the fact that, in the absence of a 
maximum statutory limit and given the combination in the case at issue of large 
individual fines and numerous points in the operative part, it would total what 
would appear to be a disproportionate overall amount. 
18 However, since the correct application of EU law is not so obvious as to leave no 
scope for any reasonable doubt and it is therefore not possible to interpret the 
national law in conformity with the directive at issue, the aforementioned 
questions are referred for a preliminary ruling pursuant to Article 267 TFEU.