Opinion of the Advocate General — ECLI:EU:C:2014:2236
Date: 2014-09-18
Language of the case: Finnish
Subject matter: Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Finland

Summary — Judgment of the Court (First Chamber), 12 February 2015 1. Freedom to provide services — Posting of workers in the framework of the provision of services — Directive 96/71 — Working and employment conditions — National rules of the Member State of origin prohibiting the transfer to a third party of claims relating to workers’ pay or arising from an employment relationship (Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Directive 96/71, Art. 3(1), second subpara.) 2. Freedom to provide services — Posting of workers in the framework of the provision of services — Directive 96/71 — Working and employment conditions — Minimum wage provided for by collective agreements in the host Member State — Calculation of the minimum wage for hourly work and/or for piecework which is based on the categorisation of employees into pay groups — Binding and transparent rules to be observed when that calculation and categorisation are carried out — To be determined by the national court (Arts 56 TFEU and 57 TFEU; European Parliament and Council Directive 96/71, Art. 3(1) and (7)) 3. Freedom to provide services — Posting of workers in the framework of the provision of services — Directive 96/71 — Working and employment conditions — Minimum wage provided for by collective agreements in the host Member State — Daily allowance — Included — Compensation for daily travelling time — Included — Payment in respect of paid annual leave — Included (Arts 56 TFEU and 57 TFEU; Charter of Fundamental Rights of the European Union, Art. 31(2); European Parliament and Council Directive 96/71, Art. 3(1), second indent, (b) and (7), second subpara.) 4. Freedom to provide services — Posting of workers in the framework of the provision of services — Directive 96/71 — Working and employment conditions — Minimum wage provided for by collective agreements in the host Member State — Coverage of the cost of the posted workers’ accommodation — Not included — Allowance taking the form of meal vouchers provided to those workers — Not included (Arts 56 TFEU and 57 TFEU; European Parliament and Council Directive 96/71, Art. 3(1), second indent, (b) and (7), second subpara.) 1. Directive 96/71 concerning the posting of workers in the framework of the provision of services, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, prevents a rule of the Member State of the seat of the undertaking that has posted workers to the territory of another Member State — under which the assignment of claims arising from employment relationships is prohibited — from barring a trade union, which has standing to bring proceedings, from bringing an action before a court of the second Member State, in which the work is performed, in order to recover for the posted workers, pay claims which relate to the minimum wage, within the meaning of Directive 96/71, and which have been assigned to it, that assignment being in conformity with the law in force in the second Member State. (see paras 20, 26, operative part 1) 2. Article 3(1) and (7) of Directive 96/71 concerning the posting of workers in the framework of the provision of services, read in the light of Articles 56 TFEU and 57 TFEU, must be interpreted as meaning that it does not preclude a calculation of the minimum wage for hourly work and/or for piecework which is based on the categorisation of employees into pay groups, as provided for by the relevant collective agreements of the host Member State, provided that that calculation and categorisation are carried out in accordance with rules that are binding and transparent, a matter which it is for the national court to verify. (see paras 40-45, operative part 2, first indent) 3. Article 3(1) and (7) of Directive 96/71 concerning the posting of workers in the framework of the provision of services, read in the light of Articles 56 TFEU and 57 TFEU, must be interpreted as meaning that: – a daily allowance, intended to ensure the social protection of the workers concerned, making up for the disadvantages entailed by the posting as a result of the workers being removed from their usual environment, must be regarded as part of the minimum wage on the same conditions as those governing the inclusion of the allowance in the minimum wage paid to local workers when they are posted within the Member State concerned. Such an allowance must be classified as an ‘allowance specific to the posting’ within the meaning of the second subparagraph of Article 3(7) of Directive 96/71; – compensation for daily travelling time, which is paid to the workers on condition that their daily journey to and from their place of work is of more than one hour’s duration, must be regarded as part of the minimum wage of posted workers, provided that that condition is fulfilled, a matter which it is for the national court to verify. Such an allowance must be classified as an ‘allowance specific to the posting’ within the meaning of the second subparagraph of Article 3(7) of Directive 96/71; – the pay which the posted workers must receive for the minimum paid annual holidays corresponds to the minimum wage to which those workers are entitled during the reference period. (see paras 48-52, 56, 57, operative part 2, second, third and sixth indents) 4. Article 3(1) and (7) of Directive 96/71 concerning the posting of workers in the framework of the provision of services, read in the light of Articles 56 TFEU and 57 TFEU, must be interpreted as meaning that: – coverage of the cost of those workers’ accommodation is not to be regarded as an element of their minimum wage; – an allowance taking the form of meal vouchers provided to the posted workers is not to be regarded as part of the latter’s minimum wage. Those allowances are paid to compensate for living costs actually incurred by the workers on account of their posting. (see paras 60, 62, 63, operative part 2, fourth and fifth indents)