FOURTH SECTION
CASE OF PAGITSCH GMBH AND
COMINO UNTERNEHMENSBERATUNG ERWACHSENENBILDUNG GMBH v. AUSTRIA
 
(Applications nos. 56387/17 and 69808/17)
 
 
 
 
JUDGMENT
 
 
 
 
STRASBOURG
22 June 2021
This judgment is final but it may be subject to editorial revision. In the case of Pagitsch GmbH and Comino Unternehmensberatung Erwachsenenbildung GmbH v. Austria,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
 Iulia Antoanella Motoc, President,
 Gabriele Kucsko-Stadlmayer,
 Pere Pastor Vilanova, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the applications (nos. 56387/17 and 69808/17) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Pagitsch GmbH (“the first applicant company”) and Comino Unternehmensberatung Erwachsenenbildung GmbH (“the second applicant company”), on 31 July 2017 and 19 September 2017 respectively;
the decision to give notice of the applications to the Austrian Government (“the Government”);
the parties’ observations;
Having deliberated in private on 1 June 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The cases concern the lack of oral hearings in administrative proceedings regarding the legal classification of professional relations established between the applicant companies and third persons as employment contracts under social security law. THE FACTS
2. A list of the applicant companies and of their representatives is set out in the appendix. 3. The Government were represented by their agent, Mr H. Tichy, Ambassador, Head of the International Law Department at the Federal Ministry for European and International Affairs. 4. The facts of the case, as submitted by the parties, may be summarised as follows. Proceedings regarding the first applicant company
5. The first applicant company is a limited liability company with its registered seat in Tamsweg, Austria. In 2014, the Salzburg Health Insurance Board (Gebietskrankenkasse) conducted a joint audit of all wage-related levies (gemeinsame Prüfung der lohnabhängigen Abgaben) regarding the first applicant company. 6. On 28, 29 and 30 July 2015 the Health Insurance Board issued three decisions in which it found that three persons with whom the first applicant company had concluded service contracts had actually carried out their work as employees. They had therefore been subject to the social security system including the mandatory health-, accident and pension insurance as well as unemployment insurance. 7. On 31 July 2015 the Health Insurance Board ordered the first applicant company to pay the outstanding contributions for the three employees plus surcharges. 8. The first applicant company subsequently paid the amount but lodged appeals against all four decisions to the Federal Administrative Court (Bundesverwaltungsgericht), requesting an oral hearing. It raised questions of law but also contested the findings of fact by the Health Insurance Board regarding the manner and circumstances in which the three persons had carried out their work. 9. On 1 December 2015 the Health Insurance Board forwarded its files to the Federal Administrative Court, accompanied by observations in reply to the first applicant company’s appeals which were not served on the first applicant company. On 6 June 2016 the Federal Administrative Court dismissed the appeals and the requests for an oral hearing in four decisions stating that an oral hearing would not have led to a further clarification of the relevant facts. It was only then that the first applicant company became aware of the fact that the Health Insurance Board had filed observations in reply to the appeals. The first applicant company lodged four complaints with the Constitutional Court (Verfassungsgerichtshof). 10. On 23 September 2016 the Constitutional Court declined to deal with the complaints and transferred the case to the Administrative Court (Verwaltungsgerichtshof). 11. On 24 January 2017 the Administrative Court rejected the appeals, finding that the first applicant company had failed to substantiate in its appeals in how far an oral hearing before the Federal Administrative Court would have been relevant for the outcome of the proceedings and had not raised legal questions of fundamental importance.
proceedings regarding the second applicant company
12. The second applicant company is a limited liability company with its registered seat in Bregenz, Austria. In 2010, the Vorarlberg Health Insurance Board conducted a joint audit of all wage-related levies regarding the second applicant company. 13. On 23 February 2012, the Health Insurance Board issued eleven decisions, finding that eleven persons who had been working for the second applicant company as trainers were to be classified as its employees, who were therefore subject to the social security system including the mandatory health-, accident and pension insurance as well as unemployment insurance. 14. The second applicant company filed objections (Einsprüche). It raised questions of law but also contested the findings of fact by the Health Insurance Board regarding the manner and circumstances in which the persons concerned had carried out their work. On 12 December 2012 the Regional Government (Amt der Vorarlberger Landesregierung) dismissed the objections. 15. On 26 and 27 December 2012 the second applicant company filed eleven appeals disputing the findings of fact. In six out of eleven appeals it explicitly complained that the trainers concerned had not been heard. On 8 October 2013 the Ministry of Labour, Social Affairs and Consumer Protection (Bundesministerium für Arbeit, Soziales und Konsumentenschutz) dismissed the appeals. 16. On 12 December 2013 the second applicant company filed a complaint with the Administrative Court disputing the findings of fact and raising questions of law. On 4 August 2014, the Administrative Court quashed the Ministry’s decision. Whilst it confirmed that the persons concerned had to be classified as the second applicant company’s employees, the lower instances had failed to assess the exact time periods in which they had carried out their work. Following the reform of the administrative jurisdiction in Austria (Verwaltungsgerichtsbarkeits-Novelle 2012, Federal Law Gazette (Bundesgesetzblatt) I No. 51/2012, which entered into force on 1 January 2014) the case was remitted to the newly established Federal Administrative Court. 17. On 30 December 2016, 16 January and 7 February 2017 the Federal Administrative Court issued three judgments, determining the time periods in which the persons concerned had been subject to the compulsory insurance. It stated that an oral hearing would not have led to a further clarification of the relevant facts. In three complaints the second applicant company lodged appeals to the Constitutional Court. 18. On 14 and 15 March 2017 the Constitutional Court declined to deal with the complaints and transferred the cases to the Administrative Court. 19. On 7 September 2017 the Administrative Court rejected the appeals. It held that the Federal Administrative Court had determined the relevant time periods (see paragraph 17 above) according to a table submitted by the second applicant company itself and that an oral hearing hat not been required for this determination. THE LAW
JOINDER OF THE APPLICATIONS
20. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON account of the lack of an oral hearing
21. The applicant companies complained that their right to a fair trial as provided in Article 6 § 1 of the Convention, has been violated as no oral hearing had been held. This provision reads as follows in its relevant parts:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Admissibility
22. The Court notes that the applications are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.

Outcome for Article 6: violation