Report 2011 - EFTA Court

posting workers there. 10 in ESA’s view, Article 7 of the Posting Act
is therefore incompatible with the Directive.
70. in this context, ESA considers it to be irrelevant how the rule is
classified under national law, for example, as a rule of tort law or
insurance law.
Article 3(7) of the PWD
71. ESA reiterates its arguments to the effect that the ECJ has found
that the Directive must be interpreted as laying down a nucleus
of mandatory rules for minimum protection and that, to this end,
Article 3(1) of the PWD must be understood as setting out an
exhaustive list of the matters in respect of which the Member
States may give priority to the rules in force in the host Member
State. 11
72. Against this background, ESA examines Article 3(7) of the
PWD which provides that Article 3(1)–(6) shall not prevent
the application of terms and conditions of employment that
are more favourable to workers. ESA observes that in Laval un
Partneri, cited above, the ECJ held that Article 3(7) of the PWD
could not be interpreted as allowing the host Member State to
make the provision of services in its territory conditional on the
observance of terms and conditions of employment which go
beyond the mandatory rules for minimum protection and that
such an interpretation would amount to depriving the Directive
of its effectiveness. 12 ESA further submits that the ECJ thus
concluded that the level of protection which must be guaranteed
to workers posted to the territory of the host Member State is
limited, in principle, to that provided for in Article 3(1)(a)–(g) of
the PWD unless, pursuant to the law or collective agreements in
the Member State of origin, those workers already enjoy more
favourable terms and conditions of employment. 13
10 Reference is made to Commission v Luxembourg, cited above, paragraphs 25 and 26.
11 Reference is made to Laval un Partneri, cited above, paragraph 59, and Commission v
Luxembourg, cited above, paragraphs 24 to 26.
12 Reference is made to Laval un Partneri, cited above, paragraph 80.
13 Reference is made to Laval un Partneri, cited above, paragraph 81, and Case C-346/06
Rüffert [2008] ECR i-1989, paragraphs 33 to 36.
Case E-12/10 EFTA Surveillance xxxxxxxxxxxxxxxxxxxxxxxxxxx Authority v iceland
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