(Reference for a preliminary ruling– Freedom to provide services– Posting of workers– Directive 96/71

EU law

Directive 96/71/EC

3Article3(1) of Directive 96/71/EC of the European Parliament and of the Council of 16December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L18, p.1) provides:

‘Member States shall ensure that, whatever the law applicable to the employment relationship, the undertakings referred to in Article1(1) guarantee workers posted to their territory the terms and conditions of employment covering the following matters which, in the Member State where the work is carried out, are laid down:

–by law, regulation or administrative provision, and/or

–by collective agreements or arbitration awards which have been declared universally applicable within the meaning of paragraph8, in so far as they concern the activities referred to in the Annex:

…

(c)the minimum rates of pay, including overtime rates; this point does not apply to supplementary occupational retirement pension schemes;

…

For the purposes of this Directive, the concept of minimum rates of pay referred to in paragraph1(c) is defined by the national law and/or practice of the Member State to whose territory the worker is posted.’

4Article5 of that directive provides:

‘Member States shall take appropriate measures in the event of failure to comply with this Directive.

…’

Directive 2014/67/EU

5Article9(1) of Directive 2014/67/EU of the European Parliament and of the Council of 15May 2014 on the enforcement of Directive 96/71 and amending Regulation (EU) No1024/2012 on administrative cooperation through the Internal Market Information System (‘the IMI Regulation’) (OJ 2014 L159, p.11) states:

‘Member States may only impose administrative requirements and control measures necessary in order to ensure effective monitoring of compliance with the obligations set out in this Directive and Directive [96/71], provided that these are justified and proportionate in accordance with Union law.

For these purposes Member States may in particular impose the following measures:

…

(b)an obligation to keep or make available… payslips, time-sheets indicating the beginning, end and duration of the daily working time and proof of payment of wages or copies of equivalent documents…;

(c)an obligation to deliver the documents referred to under point (b), after the period of posting, at the request of the authorities of the host Member State, within a reasonable period of time;

…’

Austrian legislation

6Paragraph7i(5) and (7) of the Arbeitsvertragsrechts-Anpassungsgesetz (Law adapting employment contract law, BGBl.459/1993), in the version applicable to the dispute in the main proceedings (‘the AVRAG’), is worded as follows:

‘5.Whoever, in his or her capacity as an employer, employs or has employed an employee without paying that employee at least the remuneration to which he or she 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 Paragraph49(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.… Where no more than three workers are affected by the underpayment, the fine shall be, in respect of each worker, EUR1000 to EUR10000 and, in the event of a repeat offence, EUR2000 to EUR20000, and where more than three workers are affected, the fine shall be, in respect of each worker, EUR2000 to EUR20000 and, in the event of a repeat offence, EUR4000 to EUR50000.

…

7.The limitation period for bringing proceedings (Paragraph31(1) of the Verwaltungsstrafgesetz (Law on Administrative Penalties; ‘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 limitation period 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 limitation period for the punishment of offences (Paragraph31(2) of the VStG) is five years. With regard to special payments, the periods pursuant to the first two sentences begin to run from the end of the respective calendar year (third sentence of subparagraph5).’