Report 2011 - EFTA Court

The second subparagraph of Article 3(1) of the PWD
158. According to the Kingdom of Norway, the purpose of the second
subparagraph of Article 3(1) of the PWD is to underscore that
Article 3(1)(c) does not define the concept of minimum rates of
pay and that it is for the host Member State to define the concept
in accordance with its national legislation and/or practice. in its
view, the reference in the second subparagraph of Article 3(1) to
the content of that concept being “defined” by the host Member
State is not intended to introduce a formalistic requirement
making the recognition of a Member State’s definition conditional
on whether it has employed the same notions as the Directive.
Such an approach, it contends, could usurp the Member States’
right to define the concept of minimum rates of pay.
159. in short, the Kingdom of Norway asserts that the second
subparagraph of Article 3(1) of the PWD must be interpreted to
the effect that if national law and/or practice, including collective
agreements, provide for consideration which the worker is to
receive in respect of his employment from his employer, this falls
within the concept of “rates of pay” mentioned in Article 3(1)(c).
160. The Kingdom of Norway sees no reason to comment in detail on
the additional requirement under Article 3(1)(c) of the PWD that
the national measures must constitute “minimum” rates of pay.
in its view, ESA has not questioned the minimum character of the
relevant wages (the “wages in the event of illness and accidents”)
provided for in Article 5 of the Posting Act.
Article 36 EEA
161. Leaving aside the specific assessment under Article 36 EEA, the
Kingdom of Norway agrees with ESA’s methodology in so far as
the contested measures are deemed to fall outside the scope of
Article 3(1)(c) of the PWD (and Regulation No 1408/71). in this
event, it must be assessed whether the measures are compatible
with the first indent of Article 3(10) of the PWD.
162. The Kingdom of Norway adds, however, that, in its view, a
different situation applies if Article 5 of the Posting Act is
Case E-12/10 EFTA Surveillance xxxxxxxxxxxxxxxxxxxxxxxxxxx Authority v iceland
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