Report 2011 - EFTA Court

the various allowances and bonuses included in the minimum pay
applicable under Directive 96/71, but that in doing so they must
remain within the limits set out in case-law from the Court of
Justice of the European Union (“ECJ”). 5
52. ESA notes that the Directive was adopted on the basis of Articles
53(1) and 62 TFEU and submits, consequently, that the aim was
to facilitate the freedom to provide services. Accordingly, a wide
interpretation of Article 3 of the PWD to the detriment of service
providers would be inconsistent with the legal bases. Moreover,
ESA considers such interpretation incompatible with the ECJ
finding that the list in Article 3(1) of the PWD is exhaustive.
53. ESA considers it inherent in the concept of “minimum rates of
pay” that it constitutes remuneration for work actually performed
by the posted worker under his employment contract. Article 3(1)
(c) of the PWD refers to minimum rates of pay which in ESA’s
understanding refers to levels of pay reflected in nominal terms.
it points out that when determining the content of minimum rates
of pay in the context of this provision the ECJ has stated that it is
the “gross amount of wages” that must be taken into account. 6 in
ESA’s view, other minimum employment rights cannot be included
nor can minimum rates of pay be regarded as synonymous with
all rights that may have a monetary value. According to ESA, such
an interpretation would allow the limitations contained in Article
3(1) of the PWD to be circumvented.
54. ESA disagrees with iceland that its own interpretation reduces
the scope of national law in defining the minimum wage simply
to the stipulation of hourly rates. According to ESA, national law
may define the minimum wage for example in terms of hourly
or monthly rates or apply a piece rate system. However, in ESA’s
view, it does not follow from using a monthly rate as a benchmark
for the minimum wage that a worker is necessarily entitled to
payment for the full month if he has been absent due to illness.
it states as an example that under icelandic labour law a worker
receiving a fixed monthly wage who has been absent from work
5 Reference is made to SEC(2006) 439 of 4.4.2006, p. 16.
6 Case C-341/02 Commission v Germany [2005] ECR i-2733, paragraph 29.
Case E-12/10 EFTA Surveillance xxxxxxxxxxxxxxxxxxxxxxxxxxx Authority v iceland
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