Report 2011 - EFTA Court

150. The Kingdom of Norway argues, however, that it does not follow
that also the content of the matters listed in Article 3(1) of
the PWD should be narrowly construed. it asserts that this
would entail harmonisation of the material content of those
mandatory rules for minimum protection in contravention of
the abovementioned ECJ case-law. in particular, the Kingdom of
Norway refers to Laval un Partneri, cited above, arguing that in
the light of the ECJ’s strict interpretation of Article 3(7) of the
PWD it is evident that the Member States’ discretion to define
the content of the matters listed in Article 3(1) of the PWD is an
issue separate from the Member States’ possibility to, within the
scope of those matters, impose higher standards.
Article 3(1)(c) of the PWD and the concept of “minimum rates of pay”
151. According to the Kingdom of Norway, the wording and structure
of Article 3(1)(c) of the PWD imply that the concept of “pay”
includes several constituent elements, reflecting, inter alia, the
conditions under which the work is carried out. This is said
to follow from the plural in “minimum rates of pay” and the
inclusion of “overtime rates”. Further, the word “including” is said
necessarily to imply that minimum rates of pay reflecting distinct
working conditions other than overtime are included in the
concept of pay. The Kingdom of Norway argues that the express
exclusion of “supplementary occupation retirement pensions”
implies also that the concept of pay is recognised as having a
broad meaning.
152. The Kingdom of Norway adds certain remarks on Case C-341/02
Commission v Germany, cited above, underlining that the case did
not relate to the host Member State’s rights to define minimum
rates of pay. The case concerned Article 3(7) of the PWD and
revolved around the conditions under which the Member State
had to recognise allowances and supplements provided to posted
workers by the posted undertakings as constituent elements
of the minimum wage when comparing that remuneration with
the minimum wage prescribed by German law. The Kingdom of
Norway argues that the judgment affirms the host Member State’s
Case E-12/10 EFTA Surveillance xxxxxxxxxxxxxxxxxxxxxxxxx
Authority v iceland
Summary Report
CAse Case
e-12/10
e-xx/x
191