Case C-168/04: Judgment of the Court (First Chamber) of 21 September 2006 — Commission of the European Communities v Republic of Austria (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 )
Date: 2006-11-18
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, free movement of workers, migrant worker, residence permit

C 281/4

EN

Official Journal of the European Union

18.11.2006

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

Judgment of the Court (Second Chamber) of 14 September
2006 (references
for a preliminary ruling from the
Simvoulio tis Epikratias — Greece) — Elmeka NE v
Ipourgos Ikonomikon

(Case C-168/04) (1)

(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 — Under-
taking providing services in another Member State — ‘EU
Posting Confirmation’)

(Joined Cases C-181/04 to C-183/04) (1)

(Sixth VAT Directive — Exemptions — Article 15(4)(a), (5)
and (8) — Exemption for the chartering of sea-going vessels
— Scope)

(2006/C 281/06)

Language of the case: German

(2006/C 281/07)

Language of the case: Greek

Parties

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

Referring court

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

Simvoulio tis Epikratias

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.

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 dura-
tion 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
lawfully posted by an undertaking
from a non-Member State,
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.

(1) OJ C 146, 29.05.2004.

Parties to the main proceedings

Applicant: Elmeka NE

Defendant: Ipourgos Ikonomikon

Re:

Reference for a preliminary ruling — Simvoulio tis Epikratias
— Interpretation of Article 15(4), (5) and (8) of Sixth Council
Directive (77/388/EEC) of 17 May 1977 on the harmonisation
of the laws of the Member States relating to turnover taxes —
Common system of value added tax: uniform basis of assess-
ment (OJ 1977 L 145, p. 1) — Exemptions — Exemption for
the chartering of sea-going vessels — Scope

Operative part of the judgment

The Court hereby rules:

1. Article 15(4)(a) of Sixth Council Directive 77/388/EEC of 17
May 1977 on the harmonisation of the laws of the Member
States relating to turnover taxes — Common system of value
added tax: uniform basis of assessment, to which Article 15(5) of
that
by Council Directive
92/111/EEC of 14 December 1992, applies not only to vessels
used on the high seas for the carriage of passengers for reward,
but also to vessels used on the high seas for the purpose of
commercial, industrial or fishing activity.

amended

directive

refers,

as

2. Article 15(8) of the Sixth Directive (77/388) is to be interpreted
as meaning that the exemption provided for therein applies to the
supply of services directly to the shipowner for the direct needs of
sea-going vessels.