Contrary to the previous established case law of the VwGH (cf. inter alia VwGH 22. 10. 1996, 94/08/0178; VwGH 10. 3. 1998, 95/08/0345), a (cross-border) supply of labor within the meaning of the AÜG does not already exist if only one element of § 4 para. 2 AÜG is fulfilled, even if the underlying agreement would have to be classified as a contract for work under civil law (cf. VwGH 22. 8. 2017, Ra 2017/11/0068).

In the present appeal case, it was disputed, among other things, whether the agreement between the parties should be qualified as a (“genuine”) contract for work. If this legal question is answered exclusively according to the domestic legal situation, § 4 AÜG is decisive, the first paragraph of which provides for an assessment according to the “true economic content” and not according to the external appearance of the facts, and the second paragraph of which lists specific criteria for this assessment. § Section 4 AÜG is intended to prevent circumvention of the provisions of this law, so that, according to the obvious intention of the national legislator, each of these characteristics should be decisive in itself.

However, the decisive legal question in this case is not to be answered exclusively according to national law. Directive 96/71 covers both the cross-border posting of workers and the cross-border hiring out of workers. In this respect, the criteria that are decisive for the posting of workers within the meaning of Directive 96/71 are also decisive for the assessment of whether there is a (cross-border) posting of workers within the meaning of the AÜG.

According to the ECJ decision Martin Meat (C-586/13), “every indication” must be taken into account when assessing whether a cross-border supply of workers exists and is therefore subject to the notification obligation under Section 19 LSD-BG and the facts must therefore be examined from several points of view in accordance with the “true economic substance”. Clear factual findings are required as to whether and which of the decisive criteria for the supply of temporary workers have been met in order to be able to affirm or deny the existence of a cross-border supply of temporary workers in the context of an overall legal assessment.

In particular, in accordance with the Martin Meat ruling, the questions of whether the remuneration/remuneration also depends on the quality of the service provided or who bears the consequences of a non-contractual performance of the contractually agreed service, i.e. whether the “warranted” success essential for a contract for work and services has been agreed, who determines the number of employees specifically deployed for the production of the work and from whom the employees receive the precise and individual instructions for the performance of their activities, are of decisive importance.

The Administrative Court followed the legal opinion of the ECJ (C-586/13) and thus complied with its obligation to enforce Union law, so that there was no need to refer the matter to a reinforced senate as a result of the departure from previous case law (see the ruling of April 24, 2013, Zl 2011/17/0156).