ECJ Re-evaluates Austrian Legislation on Posted Workers

February 25, 2021 | xpath.global

The European Court of Justice (ECJ) has recently handed down a significant ruling, questioning the hefty fines imposed for non-compliance with obligations for posted workers under Austrian national legislation. With fines exceeding 13 million euros, the ECJ contends that these penalties are disproportionately high, raising concerns about their balance and proportionality.


Proportionality in Financial Administrative Fines

The ECJ emphasizes the necessity of financial administrative fines but underscores the importance of proportionality. It asserts that fines linked to the number of workers aren’t inherently disproportionate. However, fines related to administrative permits and payroll documentation should meet specific criteria:

Predetermined Amount. Fines should either equal or surpass a predetermined threshold.

No Aggregated Imposition. Imposing fines for non-compliance should not be done in an aggregate manner without a cap for each worker.

Exclusion of Additional Costs. Fines should not be augmented with supplementary costs, such as litigation expenses.

No Imprisonment for Unpaid Fines. The ECJ firmly states that failure to pay fines should not lead to imprisonment.


Ramifications Beyond Austrian Borders

This landmark ruling holds implications that extend far beyond Austrian borders. By deeming the Austrian legislation incongruous with Article 56 of the Treaty on the Functioning of the European Union , the ECJ sets a precedent that could reshape labor compliance regulations across Europe.


Boosting Compliance for Foreign Workers

The outcome of this case signals a potential shift towards enhanced compliance for foreign workers. Both host and home countries may need to reassess their regulatory frameworks in light of the ECJ’s emphasis on balance and proportionality in imposing fines. This could herald a new era of more equitable treatment for posted workers throughout the European Union.


In conclusion, the ECJ’s ruling challenges the status quo, urging a reevaluation of fine structures to ensure a fair and proportionate approach to labor compliance. As European countries navigate these changes, the impact on cross-border employment dynamics remains to be seen.

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