Judgment of the Court of 23 January 2012 in Case E-2/11 — STX Norway Offshore AS and Others v The Norwegian State, represented by the Tariff Board (Freedom to provide services — Directive 96/71/EC — Posting of workers — Minimum rates of pay — Maximum working hours — Remuneration for work assignments requiring overnight stay — Compensation for expenses)
Date: 2012-01-23
Institutions: EFTA Court
Subjects: allowances and expenses, collective agreement, freedom to provide services, labour mobility, legal working time, minimum pay, night work, shipbuilding








C_2012136EN.01000801.xml










11.5.2012   


EN


Official Journal of the European Union


C 136/8





JUDGMENT OF THE COURT
of 23 January 2012
in Case E-2/11
STX Norway Offshore AS and Others v The Norwegian State, represented by the Tariff Board
(Freedom to provide services — Directive 96/71/EC — Posting of workers — Minimum rates of pay — Maximum working hours — Remuneration for work assignments requiring overnight stay — Compensation for expenses)
2012/C 136/05
In Case E-2/11, STX Norway Offshore AS and Others v The Norwegian State, represented by the Tariff Board — REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice by Borgarting lagmannsrett (Borgarting Court of Appeal, Norway), concerning the compatibility with EEA law of terms and conditions of employment provided for in a collective agreement declared universally applicable within the maritime construction industry and concerning the interpretation of Article 36 of the EEA Agreement and Article 3 of the act referred to at point 30 of Annex XVIII to the EEA Agreement, i.e. Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, as adapted to the EEA Agreement by Protocol 1 thereto, the Court, composed of Carl Baudenbacher, President, Per Christiansen and Páll Hreinsson (Judge-Rapporteur), Judges, gave judgment on 23 January 2012, the operative part of which is as follows:






1.


The term ‘maximum work periods and minimum rest periods’ set out in point (a) of the first subparagraph of Article 3(1) of Directive 96/71/EC covers terms and conditions regarding ‘maximum normal working hours’, such as those described in the request for an Advisory Opinion.










2.


Article 3(1), first subparagraph, point (c) of Directive 96/71/EC, as interpreted in light of Article 36 of the EEA Agreement, does, in principle, preclude an EEA State from requiring an undertaking established in another EEA State which provides services in the territory of the first State to pay its workers the minimum remuneration fixed by the national rules of that State for work assignments requiring overnight stays away from home, unless the rules providing for such additional remuneration pursue a public interest objective and their application is not disproportionate. It is for the national authorities or, as the case may be, the courts of the host EEA State, to determine whether those rules in fact pursue an objective in the public interest and do so by appropriate means.










3.


Directive 96/71/EC does not permit an EEA State to secure workers posted to its territory from another EEA State compensation for travel, board and lodging expenses in the case of work assignments requiring overnight stays away from home, unless this can be justified on the basis of public policy provisions.










4.


The proportion of the employees covered by the relevant collective agreement, before it was declared universally applicable, has no bearing on the answers to questions 1(a), (b) and (c).