Luxembourg, 22/09/2006 (Agence Europe) - The European Court of Justice has ruled that Austrian legislation on the secondment of workers to Austria is incompatible with the rules of the EC Treaty. Austria is not entitled to totally rule out the possibility of regularising a worker from outside the EU legally seconded by a company established in another Member State who is in Austria without a visa, explains the Court in a ruling in a case of the Commission against Austria. The Court rules that Austrian legislation is disproportionate to the pursued aim of security and public order. There are several sections to the legalisation in question. The secondment in Austria of workers from third countries by a company established in a different Member State was only possible once 'confirmation of European secondment' had been obtained. The workers had to have been employed for at least a year by the company or have an indefinite contract. The Austrian authorities verified whether salary, employment and social security conditions under Austrian law were respected and could give automatic refusal to allow a worker from a third countries seconded by a company established in a different Member State who didn't have the visa required by Austrian legislation to enter Austria. And there were no options for regularising the worker in question.
Any regulation requiring administrative authorisation for the entry of seconded workers violates the principle of freedom to provide services, explains the Court. By imposing systematic respect of Austrian pay and employment conditions, Austrian legislation fails to take account of the worker protection measures of the Member State where the company is established or any cooperation agreement there may be between the European Community and a third country, explains the Court. The 'confirmation of European secondment' did not meet EU rules either. Member States can of course check that companies seconding a worker are not getting round EU rules, but the procedures established by Austria are too restrictive. Seconded workers do not risk disturbing the labour market because they have to return to their company once they have finished their work, notes the Court. The Austrian government argued that it wanted to avert the dangers of abuse and exploitation of foreign labour.