Sähköalojen ammattiliitto ry v Elektrobudowa Spolka Akcyjna.
Date: 2015-02-12
28. It should be recalled in that regard that the EU legislature adopted Directive 96/71 with a view, as is clear from recital 6 in the preamble to that directive, to laying down, in the interests of the employers and their personnel, the terms and conditions governing the employment relationship where an undertaking established in one Member State posts workers on a temporary basis to the territory of another Member State for the purposes of providing a service (judgments in Laval un Partneri , C‑341/05, EU:C:2007:809, paragraph 58, and Isbir , C‑522/12, EU:C:2013:711, paragraph 33).
29. Thus, in order to ensure that a nucleus of mandatory rules for minimum protection are observed, the first subparagraph of Article 3(1) of Directive 96/71 provides that Member States are to ensure that, whatever the law applicable to the employment relationship, in the framework of the transnational provision of services, undertakings guarantee workers posted to their territory the terms and conditions of employment covering the matters listed in that provision (judgment in Laval un Partneri , EU:C:2007:809, paragraph 73).
30. In that context, the first subparagraph of Article 3(1) of Directive 96/71 pursues a dual objective. First, it seeks to ensure a climate of fair competition between national undertakings and undertakings which provide services transnationally, inasmuch as it requires the latter to afford their workers, as regards a limited list of matters, the terms and conditions of employment laid down in the host Member State. Secondly, that provision aims to ensure that posted workers will have the rules of the host Member State for minimum protection as regards the terms and conditions of employment relating to those matters applied to them while they work on a temporary basis in the territory of that Member State (judgment in Laval un Partneri , EU:C:2007:809, paragraphs 74 and 76).
32. Thus, the second subparagraph of Article 3(1) of Directive 96/71 expressly refers, for the purposes of that directive, to the national law or practice of the Member State to whose territory the worker is posted for the definition of the minimum rates of pay referred to in the first subparagraph of Article 3(1) (judgment in Isbir , EU:C:2013:711, paragraph 36).
34. Thus, subject to the provision made in the second subparagraph of Article 3(7) of Directive 96/71, the task of defining what are the constituent elements of the minimum wage, for the application of that directive, is a matter for the law of the Member State of the posting, but only in so far as that definition, as it results from the relevant national law or collective agreements or from the interpretation thereof by the national courts, does not have the effect of impeding the freedom to provide services between Member States (judgment in Isbir , EU:C:2013:711, paragraph 37).
36. Thus, according to the Court’s settled case-law, allowances and supplements which are not defined as being constituent elements of the minimum wage by the law or practice of the Member State to whose territory the worker is posted, and which alter the relationship between the service provided by the worker, on the one hand, and the consideration which he receives in return for that service, on the other, cannot, under the provisions of Directive 96/71, be considered to be elements of that kind (judgments in Commission  v Germany , C‑341/02, EU:C:2005:220, paragraph 39, and Isbir , EU:C:2013:711, paragraph 38).
38. In order to resolve the dispute before it, the referring court asks the Court whether Article 3(1) of Directive 96/71, read in the light of Articles 56 TFEU and 57 TFEU, must be interpreted as meaning that it precludes 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 in the host Member State.
39. In that regard, the Court observes that the wording of the second subparagraph of Article 3(1) of Directive 96/71 makes quite clear that minimum rates of pay are to be defined by the national law and/or practice of the Member State to whose territory the worker is posted. It is implicit in that wording that the method of calculating those rates and the criteria used in that regard are also a matter for the host Member State.
40. It follows from the foregoing, first, that the rules in force in the host Member State may determine whether the calculation of the minimum wage must be carried out on an hourly or a piecework basis. However, if they are to be enforceable against an employer which posts its employees to that Member State, those rules must be binding and must meet the requirements of transparency, which means, in particular, that they must be accessible and clear.
41. Thus, by virtue of those criteria, the minimum wage calculated by reference to the relevant collective agreements cannot be a matter of choice for an employer who posts employees with the sole aim of offering lower labour costs than those of local workers.
42. In the case in the main proceedings, the national court must ascertain whether the rules for calculating the minimum wage that are applicable under the relevant collective agreements are binding and transparent.
43. It also follows, secondly, that the rules for categorising workers into pay groups, which are applied in the host Member State on the basis of various criteria including the workers’ qualifications, training and experience and/or the nature of the work performed by them, apply instead of the rules that are applicable to the posted workers in the home Member State. It is only where a comparison is made between the terms and conditions of employment, referred to in the first subparagraph of Article 3(7) of Directive 96/71, applied in the home Member State and those in force in the host Member State that the categorisation made by the home Member State must be taken into account when it is more favourable to the worker.
44. However, if they are to be enforceable against an employer posting workers, the rules on the categorisation of those workers into pay groups which are applied in the host Member State must also be binding and meet the requirements of transparency, which means, in particular, that they must be accessible and clear. It is for the national court to ascertain whether those conditions are met in the case before it.
45. Having regard to all the foregoing considerations, the Court concludes that Article 3(1) of Directive 96/71, 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.
The daily allowance
46. As regards the question whether a daily allowance such as the one at issue in the main proceedings is part of the minimum wage, for the purposes of Article 3 of Directive 96/71, the Court notes that, according to the documents before it, the relevant collective labour agreements in Finland provide for the payment of a daily allowance to posted workers. Under those agreements, the allowance takes the form of a flat-rate daily payment, the amount of which, during the period concerned, was between EUR 34 and EUR 36.
47. It is apparent, having regard to the documents in the case, that that allowance is not paid in reimbursement of expenditure actually incurred on account of the posting, as referred to in the second subparagraph of Article 3(7) of Directive 96/71.
48. In fact, the allowance is 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.
49. It follows that 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.
50. That provision of the directive states that such an allowance is part of the minimum wage.
51. Accordingly, the daily allowance at issue must be paid to posted workers such as those concerned in the main proceedings to the same extent as it is paid to local workers when they are posted within Finland.
52. In view of the foregoing, a daily allowance such as that at issue in the main proceedings 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.
Compensation for daily travelling time
53. It must be noted as a preliminary point that, in so far as it relates to compensation for daily travelling time, the question raised does not concern compensation for the costs incurred by the workers concerned in travelling to and from their place of work but solely the question as to whether Article 3 of Directive 96/71 must be interpreted as meaning that compensation for daily travelling time is to be regarded as an element of those workers’ minimum wage.
54. According to the relevant provisions of the Finnish collective agreements, compensation for travelling time is paid to workers if their daily commute to and from work is of more than one hour’s duration.
55. It should be made clear in that regard that, for the purposes of calculating the duration of that commute, it is necessary to determine the time which has actually been spent, in the specific circumstances of the present case, by the posted workers concerned in travelling between the place where they are accommodated in Finland and their place of work, which is located at the construction site in Finland. It is for the referring court to decide, in the light of the facts at issue in the main proceedings, whether the condition as to duration, which the rules applicable in Finland lay down for the payment of compensation for travelling time, is met by the workers concerned.
56. With that in mind, it must be held that, since such compensation for travelling time is not paid in reimbursement of expenditure actually incurred by the worker on account of the posting, it must, in accordance with the second subparagraph of Article 3(7) of Directive 96/71, be regarded as an allowance specific to the posting and thus be part of the minimum wage.
57. It must therefore be held that compensation for travelling time, such as that at issue in the main proceedings, 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 the posted workers, provided that that condition is fulfilled, a matter which it is for the national court to verify.
Coverage of the cost of accommodation
58. As regards the question whether Article 3 of Directive 96/71, read in the light of Articles 56 TFEU and 57 TFEU, must be interpreted as meaning that coverage of the cost of the accommodation of the workers concerned is to be regarded as an element of their minimum wage, the Court finds that, on the wording of Article 3(7) of the directive, that cannot be the case.
59. Even though that wording excludes only the reimbursement of expenditure on accommodation which has actually been incurred on account of the posting and ESA has, according to the information available to the Court, defrayed the accommodation costs of the workers concerned without the latter having first to pay them and then seek to have them reimbursed, the method which ESA has chosen to cover such expenditure has no bearing on the legal classification thereof.
60. Furthermore, as the Advocate General has observed in point 111 of his Opinion, the very purpose of Article 3(7) of Directive 96/71 does not permit expenditure connected with the posted workers’ accommodation to be taken into account in the calculation of their minimum wage.
Meal vouchers
61. Turning to the interpretation of Article 3 of Directive 96/71, read in the light of Articles 56 TFEU and 57 TFEU, so far as concerns the concept of minimum wage with regard to the taking into account of meal vouchers, the Court observes that the provision of those vouchers is based neither on any law, regulation or administrative provision of the host Member State nor on the relevant collective agreements invoked by the Sähköalojen ammattiliitto, but derives from the employment relationship established in Poland between the posted workers and their employer, ESA.
62. Furthermore, like the allowances paid to offset accommodation costs, these allowances are paid to compensate for living costs actually incurred by the workers on account of their posting.
63. Accordingly, it is clear from the actual wording of paragraphs 1 and 7 of Article 3 of Directive 96/71 that the allowances concerned are not to be considered part of the minimum wage within the meaning of Article 3 of the directive.
Holiday pay
64. As regards payment in respect of holidays, it must be recalled at the outset that, under Article 31(2) of the Charter, every worker has the right to an annual period of paid leave.
65. That right, which is set out in Article 7 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9) from which that directive permits no derogation, provides that every worker is entitled to a period of paid annual leave of at least four weeks. The right to paid annual leave which, according to settled case-law, must be regarded as a particularly important principle of EU social law, is thus granted to every worker, whatever his place of employment (see, to that effect, judgments in Schultz-Hoff and Others , C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 54, and Lock , C‑539/12, EU:C:2014:351, paragraph 14).
66. The Court’s case-law also makes clear that the term ‘paid annual leave’ in Article 31 of the Charter and Article 7(1) of Directive 2003/88 means that, for the duration of annual leave within the meaning of those provisions, remuneration must be maintained and that, in other words, workers must receive their normal remuneration for that period of rest (see judgments in Robinson-Steele and Others , C‑131/04 and C‑257/04, EU:C:2006:177, paragraph 50, and Lock , EU:C:2014:351, paragraph 16).
67. According to that case-law, Directive 2003/88 treats entitlement to annual leave and to a payment on that account as being two aspects of a single right. The purpose of requiring payment to be made in respect of that leave is to put the worker, during such leave, in a position which is, as regards his salary, comparable to periods of work (see Lock , EU:C:2014:351, paragraph 17 and the case-law cited).
68. Thus, as the Advocate General has observed in point 89 of his Opinion, the pay which the worker receives during the holidays is intrinsically linked to that which he receives in return for his services.
69. Accordingly, Article 3 of Directive 96/71, read in the light of Articles 56 TFEU and 57 TFEU, must be interpreted as meaning that the minimum pay which the worker must receive, in accordance with point (b) of the second indent of Article 3(1) of the directive, for the minimum paid annual holidays corresponds to the minimum wage to which that worker is entitled during the reference period.
70. It follows from all the foregoing considerations that the answer to question 6 is that Article 3(1) and (7) of Directive 96/71, 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;
– a daily allowance such as that at issue in the main proceedings 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;
– 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 the posted workers, provided that that condition is fulfilled, a matter which it is for the national court to verify;
– 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 salary; and
– 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.
Costs