Report 2011 - EFTA Court

Directive 96/71 and Article 5 of the Posting Act
172. in the Commission’s view, the following features of the icelandic
legislation appear important when examining its compatibility
with the nucleus of mandatory provisions under the Directive: (a)
the legislation provides for the acquisition of entitlements which
increase with the length of employment for a hypothetical event
– future illness or accidents – to be paid in return for the worker
fulfilling his or her obligation under the employment contract;
(b) the legislation allows for certain absences from work, due
to illness or accident or other factors; (c) the determination of
the amount of hourly/monthly wages due appears to take into
account the possibility of absence from work and the potential
or acquired right to sickness pay; and (d) the legislation applies
without prejudice to more advantageous entitlements under an
employment contract.
173. in the Commission’s view, the entitlements provided for in
Article 5 of the Posting Act do not in all respects appear to
relate directly to work performed and thus alter the relationship
between the service provided by the worker, on the one hand,
and the consideration which he receives in return, on the other.
Consequently, the Commission contends that the entitlements in
question do not qualify as constituent elements of the notion of
minimum rates of pay.
174. According to Article 3(10) of the PWD, a Member State may
impose terms and conditions of employment beyond those
laid down in Article 3(1)(a)–(g) on grounds of public policy. The
Commission argues that the justification advanced by iceland,
namely, the preservation of the value of minimum wages in
the labour market and the maintenance of the balance of the
rights and obligations of the social partners, does not meet
the requirement that a failure to impose this requirement
would constitute a genuine and sufficiently serious threat to a
fundamental interest of society. 76
76 ibid., paragraph 50 and the case-law cited therein.
Case E-12/10 EFTA Surveillance xxxxxxxxxxxxxxxxxxxxxxxxxxx Authority v iceland
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