Report 2011 - EFTA Court

87. Further, it seems to ESA that iceland confuses the definition of
the term posted worker for the purposes of Article 36 EEA and
Directive 96/71 with the definition in Article 14(1) of Regulation
No 1408/71. ESA submits that the general rule under Regulation
No 1408/71 is that a person’s insurance benefits are defined
by the legislation of the country of occupation (Article 13(2)
(a) of Regulation No 1408/71) and that one of the exceptions
to this rule is the posting of workers governed by Article 14(1)
of Regulation No 1408/71. ESA further submits that, according
to settled ECJ case-law, Article 14(1) applies to a worker who is
subject to the legislation of a Member State, by reason of being
employed by an undertaking in that Member State, with a view to
his posting to another Member State provided that there exists a
direct relationship between the undertaking and the worker during
his period of posting and that the undertaking normally carries
out its activities in the first Member State. 25
88. ESA argues, therefore, that if the worker is a posted worker under
Article 14(1) of Regulation No 1408/71, all rights and obligations
of the home State in the field of social security remain applicable
for the entire duration of the posting to the host State. On the
other hand, if a foreign worker intends to register as a posted
worker with the icelandic social security system, but cannot
provide documentation proving his status as a posted worker
under Regulation No 1408/71, he will be covered by Article
13(2)(a) of that Regulation. ESA asserts that the consequence
of that is that he will be covered by the legislation of the host
State. in such a situation, EEA law permits iceland to require
the employer to pay social security contributions in accordance
with icelandic law. According to ESA, problems confronted by the
national authorities in determining who is a posted worker in the
meaning of Article 14(1) of Regulation No 1408/71 cannot serve
as an overriding requirement in the general interest to justify the
imposition on foreign service providers of the obligation to take
out an accident insurance such as that prescribed by Article 7 of
the Posting Act.
25 Reference is made to Case 35/70 Manpower [1970] ECR 1251, paragraphs 16 to 19, and
Case C-202/97 FTS [2000] ECR i-883, paragraphs 22, 26 and 31.
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Authority v iceland
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