Report 2011 - EFTA Court

on grounds of illness for a period exceeding his accrued rights to
sickness pay will have his monthly wage reduced in accordance
with more detailed rules laid down in the relevant collective
agreement.
55. As ESA sees it, in contrast to remuneration for work carried out,
the right to sickness pay arises only on condition that a certain
event takes place, namely, that a worker falls sick and is unable to
perform his duties under the employment contract. ESA observes
further that under icelandic labour law an employer may request
a worker to submit a doctor’s certificate to prove his eligibility
for sickness pay. According to ESA, where those procedural
requirements are satisfied, sickness pay comes as a replacement
for loss of wages which the worker would have received if he had
been able to comply with the contract.
56. With respect to the definition of “pay” established in Article
157(2) TFEU and related ECJ case-law to which iceland refers,
ESA acknowledges that, in the light of the wording and purpose
of this provision on equal pay for men and women, the ECJ has
adopted a wide definition of “pay”. 7 However, ESA fails to see
how this is relevant to the interpretation of Article 3(1)(c) of the
PWD as the legal bases and purposes of the two sets of rules are
different and there is no further link between them.
57. ESA asserts that the margin of discretion left to the EEA States
cannot be interpreted so widely as to permit the EEA States
to impose on posting undertakings terms and conditions of
employment not listed in Article 3(1) of the PWD. in ESA’s
view, this is consistent with the interpretation of Article 3(7)
of the PWD adopted by the ECJ, according to which this latter
provision cannot justify the imposition of better terms than those
provided for in Article 3(1) of the PWD. Consequently, it would
be inconsistent with the rationale of that interpretation if the
EEA States had the freedom to interpret Article 3(1) of the PWD
so widely as to encompass employment rights other than those
listed.
7 Reference is made to Case C-360/90 Bötel [1992] ECR i-3589, paragraph 12 and the caselaw
cited therein.
Case E-12/10 EFTA Surveillance xxxxxxxxxxxxxxxxxxxxxxxxx
Authority v iceland
Summary Report
CAse Case
e-12/10
e-xx/x
161