VwGH Ra 2026/09/0018 | 03.06.2026

The unauthorized employment of a foreign national is punishable under Section 28 para 1 no 1 of the Austrian Act on the Employment of Foreign Nationals. Whether employment exists depends on the true economic substance under Section 2 para 4 of the Act. The formal appearance of the facts is not decisive.

In the specific case, a managing director was fined. He was accused of unlawfully employing a Turkish national for two days in December 2022. The sole basis for the penalty was the employee’s registration for social security. The managing director argued that the actual start of employment was only on 02.01.2023. Before that date, the man had only attended to personal administrative matters. The Supreme Administrative Court of Austria (VwGH) annulled the penalty imposed on the managing director in its decision of 03.06.2026 (Ra 2026/09/0018). Registration alone does not prove employment. The Administrative Court (Verwaltungsgericht) should have made additional factual findings of its own.

For practical purposes, this means that employers should document the actual start of employment. They should also register employees for social security only once they have actually started working.