FOURTH SECTION

DECISION

Application no. 14031/19 Renata KLINC and Blaz KLINC against Austria

The European Court of Human Rights (Fourth Section), sitting on 6 September 2022 as a Committee composed of:

Armen Harutyunyan , President,

Jolien Schukking ,

Ana Maria Guerra Martins , Judges,

and Ilse Freiwirth, Deputy Section Registrar ,

Having regard to:

the application (no. 14031/19) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 6 March 2019 by two Slovenian nationals, Ms Renata Klinc and Mr Blaz Klinc (“the applicants”), who were born in 1982 and 1987 respectively and live in Ljubljana, and who were represented by Mr R. Vouk, a lawyer practising in Klagenfurt;

the decision to give notice of the application to the Austrian Government (“the Government”), represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs;

the information given to the Slovenian Government regarding their right to intervene in the proceedings pursuant to Article 36 § 1 of the Convention and the fact that the Slovenian Government did not express a wish to exercise that right;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the applicants’ complaint under Article 6 § 1 of the Convention that the refusal of the domestic courts to grant their request for a preliminary ruling from the Court of Justice of the European Union (CJEU) rendered the proceedings unfair.

2. The applicants are the managing directors of a Slovenian company that had taken on a contract to carry out work on a construction site in Innsbruck, Austria, in 2016. During an inspection by the Austrian tax authorities, six employees of the applicants’ company were unable to present all the documents required by the Austrian Labour Contract Law Amendment Act ( Arbeitsvertragsrechts-Anpassungsgesetz , hereinafter “AVRAG”).

3. On 4 August 2016, the Mayor of Innsbruck issued penalty notices against the applicants, imposing fines of 12,000 euros (EUR) and costs of EUR 1,200 on each applicant. The Tyrol Regional Administrative Court ( Landesverwaltungsgericht ) dismissed an appeal by the applicants. The Constitutional Court ( Verfassungsgerichtshof ) declined to deal with the applicants’ subsequent appeal.

4. In an appeal ( außerordentliche Revision ) to the Supreme Administrative Court ( Verwaltungsgerichtshof ), the applicants asked the court to seek a preliminary ruling from the CJEU on the question of the compatibility of the AVRAG and the penalty notices with European Union (EU) law. On 9 October 2018, the Supreme Administrative Court rejected the applicants’ appeal as well as their request for a preliminary ruling to be sought from the CJEU. It gave brief reasoning for its decision, referring to a previous decision of 20 September 2018 (case no. Ra 2018/11/0118), which, in turn, referred to its judgment of 28 February 2017 (case no. Ra 2016/11/0164), and held that the applicants had not specified the reasons why the fines imposed deviated from EU law or were not in line with the case-law of the CJEU.

5. The applicants complained in particular that the domestic courts had not sought a preliminary ruling from the CJEU and had not dealt with their arguments in that regard even though the legal questions they had raised had not yet been answered by the CJEU.

THE COURT’S ASSESSMENT

6. It is not disputed between the parties, and the Court sees no reason to hold otherwise, that Article 6 of the Convention is applicable to the present case.

7. The general principles on the question of whether domestic courts have an obligation under the Convention to seek a preliminary ruling from the CJEU and for assessing whether the domestic courts have duly reasoned their decision not to seek a preliminary ruling have been summarised in Ullens de Schooten and Rezabek v. Belgium (nos. 3989/07 and 38353/07, 20 September 2011, §§ 54‑62), Harisch v. Germany (no. 50053/16, §§ 33-36, 11 April 2019) and Sanofi Pasteur v. France (no. 25137/16, §§ 67-70, 13 February 2020).

8 . In accordance with these principles, the Convention does not guarantee, as such, the right to have a case referred by a domestic court to the CJEU for a preliminary ruling. A domestic court’s refusal to grant a referral may, however, infringe the fairness of proceedings within the meaning of Article 6 § 1 of the Convention where the refusal proves to have been arbitrary, for instance where the refusal was not duly reasoned (see Harisch , cited above, § 33). In the specific context of the third paragraph of Article 234 of the Treaty establishing the European Community (Article 267 of the Treaty on the Functioning of the European Union), this means that national courts against whose decisions there is no remedy under national law, which refuse to refer to the Court of Justice a preliminary question on the interpretation of EU law that has been raised before them, are obliged to give reasons for their refusal in the light of the exceptions provided for in the case-law of the CJEU. They will thus be required, in accordance with the latter’s Cilfit case-law, to indicate the reasons why they have found that the question is irrelevant, that the EU law provision in question has already been interpreted by the CJEU, or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt (see Ullens de Schooten and Rezabek, cited above, § 62, and Sanofi Pasteur , cited above, § 67).

9. The obligation for domestic courts to provide reasons for their judgments and decisions serves to enable the parties to understand the judicial decision that has been given, which is a vital safeguard against arbitrariness, and to demonstrate to the parties that they have been heard ( Harisch , cited above, § 33).

10. It is acceptable for the national superior courts to dismiss a complaint by mere reference to the relevant legal provisions governing such complaints if the matter raises no fundamentally important legal issue, or by simply endorsing the reasons for the lower court’s decision (ibid., § 35).

11. The Court must therefore examine whether the Supreme Administrative Court, in its decision of 9 October 2018, provided sufficient reasons for its refusal to seek a preliminary ruling from the CJEU in the applicants’ case. The Court will do so by examining the arguments raised by the applicants in their request for such a preliminary ruling, which will be grouped into five sets of arguments, and the Supreme Administrative Court’s response to each of them.

12. In their first set of arguments the applicants maintained that the AVRAG was a disproportionate restriction on the freedom to provide services and thus contrary to Article 16 of Directive 2006/123/EC as the obligation to keep documents available for inspection, including a German translation, extended beyond the documents listed in Article 9 of Directive 2014/67/EU and mentioned in the CJEU’s judgment of 18 July 2007 (case no. C-490/04). It also did not follow from the latter that documents could not simply be submitted at a later stage upon request.

The Supreme Administrative Court responded to that set of arguments by referring to its decision of 20 September 2018 (case no. Ra 2018/11/0118), which stated that Article 9 § 1 of Directive 2014/67/EU allowed for control measures and merely listed specific measures by way of example. This decision, in turn, referred to the Supreme Administrative Court’s judgment of 28 February 2017 (case no. Ra 2016/11/0164), in which it had found the obligation to keep wage documents available to be unobjectionable under EU law, relying on the CJEU’s ruling of 18 July 2007 (case no. C-490/04) that the obligation to keep a German translation of wage documents at the worksite (and thus not merely to submit them later) was a legitimate restriction of the freedom to provide services which was aimed at ensuring the social protection of employees and the effective monitoring of such protection. In view of that reasoning, it follows that the Supreme Administrative Court, by way of reference to its earlier decisions, provided comprehensible reasons for its standpoint that there were no unsettled legal issues of EU law and that a preliminary ruling by the CJEU was therefore unnecessary.

13 . The applicants’ second set of arguments centred on the alleged violation of the freedom to provide services resulting from the sanctions provided for by law, which in their submission were disproportionate and in breach of Article 49 § 3 of the Charter of Fundamental Rights of the EU. The sanctions aimed to prevent providers of services from other EU countries from providing services in Austria, which was contrary to recital 12 of Directive 2006/123/EC. Another Austrian court had requested a preliminary ruling concerning the compatibility of these sanctions with EU law.

The Supreme Administrative Court again responded to these arguments by referring to its earlier decision of 20 September 2018 (case no. Ra 2018/11/0118), in which it had held that the domestic regulations provided for four different levels of penalties, which were graduated according to the degree of wrongdoing and culpability and each of which allowed for a broad margin of appreciation in sentencing. The Supreme Administrative Court did not see any contradiction with the CJEU’s judgment of 9 February 2012 (case no. C-210/10), which had been based on a different set of facts, namely a flat-rate fine regardless of the severity of the infringements. The Supreme Administrative Court thus considered the Austrian provisions on sanctions proportionate and in line with EU law. As regards the fact that another court had initiated the preliminary ruling procedure, the Court agrees with the Supreme Administrative Court’s view that the mere reference thereto did not adequately specify the alleged infringement of EU law. It therefore appears that the Supreme Administrative Court also dealt with the applicants’ second set of arguments sufficiently.

14. In their third set of arguments the applicants contended that the fines imposed on them were disproportionate, violating Articles 18 and 56 of the Treaty on the Functioning of the EU and Article 49 § 3 of the Charter of Fundamental Rights of the EU. Both applicants had been penalised as they had not been aware that they could have designated a representative with sole responsibility. This was contrary to the principles outlined in the CJEU’s judgment of 9 February 2012 (case no. C-210/10).

The Supreme Administrative Court’s reasoning summarised in paragraph 13 above also responded to that set of arguments, adding that both applicants had been fined as they were managing directors of their company and as they had not named a representative. Regarding the costs, the Supreme Administrative Court cited the CJEU’s ruling of 30 June 2016 (case No. C ‑ 205/15) to the effect that court fees contributed to the proper functioning of the court system and were therefore, in principle, in line with EU law. The amount of the costs imposed did not indicate any restriction of access to a court. The Supreme Administrative Court thus explained comprehensibly why it found the applicants’ arguments unconvincing. Its reasoning therefore appears satisfactory.

15. In their fourth set of arguments, the applicants complained that the domestic authorities had not considered the security deposit they had paid, and that there was a risk of double punishment. A case concerning that issue had been pending before the CJEU.

The Supreme Administrative Court responded to those arguments by pointing out that the security deposit had neither been the subject of the penalty notices, nor did it constitute a risk of double punishment as it was to be refunded after payment of the fine. The Supreme Administrative Court thus sufficiently explained its legal position in that respect also.

16. Lastly, the fifth set of arguments consisted of the applicants’ remaining claims that domestic law was discriminatory as the provisions in question did not equally apply to Austrian providers of services, and as the costs had been imposed in full on both applicants, whereas in civil proceedings the costs would have only been supplemented by a surcharge, and furthermore, that the obligation to keep documents which contained sensitive data available at the worksite violated EU data protection law.

In its decision, the Supreme Administrative Court comprehensibly referred to the fact that the applicants had only hinted at legal concerns and had not further specified the alleged infringement of EU law or of the CJEU’s case-law. It added that the arguments regarding EU data protection law were based on the incorrect assumption that the documents could not also be kept available in digital form. In the absence of any further explanations by the applicants in these contexts, the Court is satisfied that the Supreme Administrative Court’s response to their arguments was adequate.

17. Under these circumstances, the Court cannot agree with the applicants’ contention that the domestic proceedings were unfair within the meaning of the Court’s case-law. It is evident from the above that the Supreme Administrative Court, though partly by referring to its previous judgments, addressed the applicants’ arguments. In essence, it found that a number of the questions the applicant wished to submit for a preliminary ruling had already been addressed by the CJEU while others were not relevant as the applicant had failed to substantiate them, thus giving reasons in the light of the CJEU’s Cilfit case-law (see paragraph 8 above). Its reasoning enabled the applicants to understand the decision, and thus respected the procedural guarantees under Article 6 § 1 of the Convention. The Court does not need to examine whether the decision of the Supreme Administrative Court was correct as it is not for the Court to examine any errors that might have been committed by the domestic courts in interpreting or applying the relevant law (see Ullens de Schooten and Rezabek , cited above, § 61). In conclusion, no sign of arbitrariness can be detected in the Supreme Administrative Court’s decision of 9 October 2018 rejecting the applicants’ request for a preliminary ruling to be sought from the CJEU. The application is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 29 September 2022.

Ilse Freiwirth Armen Harutyunyan Deputy Registrar President