In Michael Dobersberger (C-16/18), the Administrative Court of Austria seeks clarity on the interpretation and enforcement of the Posting of Workers Directive.

The case in the main proceedings

• In performance of a contract entered with the Austrian Federal Railways (OBB), D GmbH an Austrian company, provides on-board services (preparation and sale of food and drink), in trains operated by the OBB, departing from Budapest (Hungary) to Salzburg (Austria) or Munich (Germany). The trains stop in Vienna (Austria) and after reaching the terminus station, return to Budapest.
• The services are provided by a Hungarian company H kft, on behalf of another Austrian company H GmbH (subcontracting chain).
• To perform such services, H kft is using Hungarian workers, most of them leased by another Hungarian company.
• Performing a control at the railway station in Vienna, the Austrian authority found the company sending the workers in breach of the Austrian legislation transposing the Posting of Workers Directive, and of Regulation 883/2004. The sending company failed to register the employees and at the time of inspection, the workers did not keep the portable document A1 and copy of their employment contract.

Questions referred for a preliminary ruling

The Administrative Court of Austria, has referred to the ECJ several questions, can be summarised as follows:

• Whether the provision of services, such as the provision of food and drink to passengers, on-board service or cleaning services, on international trains, fails under the scope of Article 1(3) (a) Directive 96/71/EC (the first question).

• Whether the posting scenario in the case at issue, is covered by Article 1(3) (a) Directive 96/71/EC (the second and the third question).
• Irrespective of the answer to the other questions, whether the EU law, in particular the freedom to provide services (Article 56 and 57 TFEU), preclude the Austrian national legislation, from imposing in the case at issue. obligations similar to these provided for in Directive 96/71/EC and its enforcement Directive 2014/67/EU (the fourth question).

Summary of the Opinion delivered by AG Szpunar

In regard to the first question, the AG observes that the wording of Article 1 of Directive 96/71 is inconclusive for the problem at hand and underlines the difficulty to assume that the workers are genuinely posted to the territory of Austria. The AG takes the view that the workers are rather posted “‘to the territory’ of the train which, as it happens, passes through Austria”.

The AG concludes that the situation of “highly mobile workers”, does not fit the logic of Directive 96/71/EC, merely because there is no country of destination of the service (or the country of origin and destination of the service is the same:Hungary).

AG Szpunar introduces in context the concept of immaterial place of work.

In regard to the second and the third question, and regardless the response to the first, the AG recalls that on the one hand, the posting takes place under a contract between a posting undertaking located in Hungary and a recipient of services operating in Austria (it is thus irrelevant that there is no direct contract between ÖBB the final recipient of services, and Henry am Zug the  company making the posting), and on the other hand, it is irrelevant to the exercise of the freedom to provide services, that there is no employment relationship between Henry am Zug and the workers posted to Austria (see in the same context the Opinion delivered by Advocate General Wahl in Danieli & C. Officine Meccaniche SpA C-18/17 ECLI:EU:C: 2018:288).

The laborious posting situation fits the logic of Directive 96/71/EC, although does not fit its wording. The ratio decidenti is Article 56TFEU.

In regard to the fourth question, the measures imposed by the Austrian national legislation, constitutes a restriction to the freedom to provide services.

Considering the presumption that Directive 96/71/EC is not applicable as the case at issue, AG Szpunar takes the view that such a restriction cannot be justified by an overriding reason relating to the public interest, and that is due to the “missing link with the territory of Austria”. With simple words, as the case at issue, with the exception of the portable document A1, the range of obligations laid down by the Austrian law are in breach of Article 56 TFEU.

The ECJ ruling

The ECJ observes first that although the freedom to provide services in the field of transport, shall be governed by Art58(1)TFEU, and not by Article 56TFEU, on-board services, cleaning services, or the provision of food and drink on trains, are only incidental, but not inherently linked to the service of rail passenger transport. Such services fail under Articles 56 to 62TFEU, with the exception of Article 58(1) TFEU, and as a consequence, may by covered by Directive 96/71/EC.

Following the AG Opinion, the ECJ underlines the condition of sufficient connection with the territory of the Member State to which the workers are allegedly posted. To that extent, the ECJ underlines “ the scheme of Directive 96/71/EC”, and in particular Article 3(2), read in the light of recital 15 (very limited provision of services).In the same context, the optional exemptions under Article 3(3) and (4) are invoked by the Court.

As expected, the ECJ concludes that as the case at issue, the provision of services, such as the provision of food and drink to passengers, on-board service or cleaning services, on international trains ,does  not fail under the scope of Article 1(3) (a) Directive 96/71/EC.

As regards the last question, the ECJ observes that the legal ground addressed in the order for reference, has the objective of transposing Directive 96/71/EC, and laying down accompanying obligations in order to monitor compliance with its provisions. Considering the response to the first question, there is no need to respond the last one.

Remarks on margin of the ECJ ruling

The ECJ expedites a very interesting case:

As regards the applicability of Directive 96/71/EC to the case at issue, it is probably judicious to retain exclusively the principle of” sufficient connection”, and ignore the relevance of Article 3(2), preamble 15, Article 3(3) and (4). Such provisions rule out the applicability of minimum rates of pay and minimum paid annual holidays, however, not the applicability of the other terms and conditions of employment, with simple words, not the applicability of Directive 96/71/EC.

The ECJ ignores the question(s) whether the posting scenario as the case at issue (as a matter of principle), fails under Article 1 (3) (a) Directive 96/71/EC. In our view, it was “the question” in the case at issue.