Report 2011 - EFTA Court

instituted in the host State in order to enforce the right to terms
and conditions of employment guaranteed under Article 3 of the
PWD.
116. iceland further asserts that lex loci laboris, a general principle
of international law, constitutes a general rule under EEA law.
Consequently, it submits that workers must be covered by the
labour legislation and social security system in the country where
they work. According to iceland, this principle is recognised
in Directive 96/71 and Regulation No 1408/71. The relevant
provisions of the Directive as well as the provisions of Regulation
No 1408/71 which relate to posted workers are, in its view,
exceptions in this respect. Moreover, iceland adds that the posting
of workers may, in some instances, last for several years. 35
117. iceland argues that ESA is too restrictive in its interpretation of
the ECJ case-law on which it relies as regards public policy and
Article 3(10) of the PWD. in iceland’s view, that case-law is in
essence concerned with circumstances which are dissimilar to
those of the present case. iceland also contends that ESA fails
to recognise the bargaining autonomy accorded to the social
partners under EEA law.
118. iceland refers in particular to Commission v Luxembourg, cited
above, which, in its view, demonstrates that provisions of
universally applicable collective agreements may in certain
circumstances fall under Article 3(10) of the PWD. 36 iceland
submits that a case-by-case examination must be carried out to
determine whether the rules in question promote the protection
of workers and confer a genuine benefit on them. 37 it observes
that the indexation of minimum wages has been deemed to
comply with Article 3(10) of the PWD, 38 and submits that the
same must apply to the requirements under Article 5 of the
Posting Act. in this context, iceland asserts further that for the
35 Reference is made to Case C-215/01 Schnitzer [2003] ECR i-14847.
36 Reference is made to paragraphs 65 and 66 of the judgment.
37 Reference is made to the Opinion of Advocate General Trstenjak in Commission v
Luxembourg, cited above, points 60 to 62.
38 Reference is made to Commission v Luxembourg, cited above, paragraph 45.
Case E-12/10 EFTA Surveillance xxxxxxxxxxxxxxxxxxxxxxxxxxx Authority v iceland
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