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ViennaIt is not often that entrepreneurs and the Chamber of Labor (AK) are in agreement. However, a decision (C-33/17) of the Court of Justice of the European Communities (ECJ) was the reason for yesterday for this rare agreement. Chamber of Commerce and AK, both outraged. And SPÖ MEP Evelyn Regner described them as "unrealistic", especially as Austria is "at the center of wage and social dumping".
In that decision, Luxembourg judges declared a provision of the law on wage control and illegal local social dumping for the EU. But it is precisely this paragraph 34 which concerns the economy and the staff representatives who are particularly dear to the heart: the legislator has thus managed to ensure that the Austrian tax authorities do not consent when they impose a fine. to a foreign company operating in Austria, but does not respect the law.
In practice, administrative penalties were often impossible to recover. After all, the willingness of foreign authorities to cooperate is limited when it comes to protecting their own citizens and their businesses. "Especially in the construction sector, many foreign companies use Mafia methods and do not respect Austrian laws," says Renate Scheichelbauer-Schuster, Head of the Federal Department of Trade and Commerce.
Simply cheaper
But on the one hand, this does not apply to everyone and, on the other hand, they have a decisive advantage: they offer their services much cheaper than their Austrian competitors. As a result, many Austrians do not opt for the manufacturer of their own location but rather for those from Hungary, the Czech Republic or Slovakia close to the country.
That was also the case with the ECJ: an Austrian commissioned the Slovenian company Čepelnik to carry out construction work worth 12,200 euros in the family home of Carinthia. On the construction site, the Austrian Financial Police conducted an investigation and then opened an investigation into suspicions of two labor law violations. At the same time, the administrative authority forced the Carinthian builder – in accordance with Article 34 of the Social Dumping Act – to cease any subsequent payments to the company. Instead, he had to lay off the overdue salary of 5,200 euros as security for an impending penalty.
At the end of the works, Čepelnik requested the remaining 5,200 euros to his client. He did not show any willingness to pay, after all, he had already paid this amount as a guarantee of the fine imposed on BH Völkermarkt. (The Slovenian company was finally fined 9,000 euros.)
Then the builder has to pay again the wages, ie for them, so the position of the Slovenian company. She sued for that amount. As the competent district court of Bleiburg was. He therefore submitted the case to the ECJ.
"The regulation is too radical"
The Court of the European Union concluded that "this scheme was disadvantageous both for the national recipient of the service and for the foreign service provider and violates the freedom to provide services that the Treaty on the Functioning of the Service." The European Union itself is considering three points, "explains Stefan Köck, expert in labor law, who explains this decision. "The ECJ considers the regulation too radical to justify the respect of minimum labor standards and the fight against social fraud." The judgment has far-reaching consequences: "Even though this judgment is for the moment, it is dead and can no longer be used to be.Legislators must find a new mechanism to preserve a liability fund to guarantee these sanctions. "
This is exactly what Scheichelbauer-Schuster asked the government yesterday: "Equality of competition and fairness must apply in all cases.The rate of complaint of the paid leave fund and the severance pay of the Construction worker with regard to the controls exercised against foreign companies was about 44.5% .The payment rate for detected violations of foreign competitors is diametrically opposed. "
("Die Presse", printed edition, 14.11.2018)
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