Authorization requirement for virtual transfer to third countries

Oct 17, 2025 Benn-Ibler Rechtsanwälte

The Austrian Administrative Court (Verwaltungsgerichtshof, hereinafter VwGH) has determined that, according to Section 16(2) of the Austrian Temporary Employment Act (Arbeitskräfteüberlassungsgesetz, hereinafter AÜG), the provision of workers from Austria to companies located outside the European Union requires official authorisation, regardless of whether the work is carried out exclusively remotely from Austria.

In this particular case at hand, the appellant had provided a total of 44 workers to third countries between July 2021 and April 2023 without securing the required authorisation. The appeal was deemed admissible due to the absence of case law clarifying whether Section 16(2) of the AÜG necessitates a physical change of location.

The VwgH’s central rationale was that the physical location of the posted employees’ work was not determinative for the authorisation requirement. Instead, the pertinent factors were those outlined in the AÜG, namely worker protection, as well as potential labour market and economic considerations related to the posting. These criteria may also apply to remote activities; for instance, this could be relevant if highly qualified employees are assigned to companies in third countries during periods of domestic labour shortages.

The appellant’s contention that the EU Workers Directive regarding employee posting necessitates a physical border crossing is inapplicable in this instance, as the posting occurred in third countries rather than within the European Union or the European Economic Area.

The ruling clarified that virtual deployment of employees to third countries also requires authorisation. Consequently, businesses should secure official approval at the earliest opportunity to avoid administrative sanctions, irrespective of whether the work occurs physically abroad or within Austria.

Ro 2024/11/0002 (29 April 2025)