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Last week, the Supreme Court of Norway reached a unanimous decision on the so-called “shipyard case”. The Norwegian State and the trade unions won the case ; the employers lost the case for the third time in a row. This Judgement brings an end to the three years court proceeding.

The Supreme Court ruled that the provisions on the compensation for travel, board and lodging of a generally applicable collective agreement are public policy provisions within the meaning of the Directive 96/71/EC (PWD). The decision of the Norwegian Supreme Court is particularly interesting seen in connection to the harshly criticised Laval judgement (Case C-341/05) of the Court of Justice of the European Union (CJEU), according to which Swedish trade unions could only impose minimum conditions on foreign posted workers.

The Norwegian Supreme Court decided that all posted workers are, in addition to the existing minimum working conditions, entitled to receive payment for the travel, board and lodging expenses, which are included in the host country collective agreement. As such, the list of applicable working conditions (mentioned in the PWD) is no longer a maximum list, but a minimum list of working conditions!

The EFBWW welcomes the Judgement of the Norwegian Supreme Court and congratulates the Norwegian LO for their persistent fight against “cross-border exploitation and dumping”.

The Judgement of the Norwegian Supreme Court should give a new impetus to the on-going discussion regarding the Enforcement Directive related to the PWD.

Background information
When the PWD was drafted in the 1990s, it was repeatedly emphasised that the Directive aimed at achieving a “fair and non-discriminatory level playing field”, on the one hand by promoting the “free movement of undertakings” and on the other hand by “striving for equal rights between workers”. Against the initial spirit of the European legislators, from 2007 onwards the PWD has been extremely narrowly interpreted by the CJEU in a number of judgements delivered. By its interpretation, the CJEU has watered down article 3(7) – which states that the Directive “shall not prevent application of terms and conditions of employment which are more favorable to workers” – by deciding that the directive shall not prevent application of terms and conditions of employment in the home country which are more favorable to posted workers. According to most legal experts, Article 3(7) referred originally to a possibility to give workers “more favorable conditions”, referring both to conditions in the home state and in the host state. The EFBWW considers that the political reinterpretation by the ECJ is detrimental to the original “will of the European legislators” to create a fair and non-discriminatory playing field for workers and undertakings. The EFBWW has criticised the judgements of the CJEU by stating that the Court had no authority to redefine the original political goal of the PWD and thereby promote cross border exploitation and social dumping.

Supreme Court reference: HR-2013-496-A (Case no 2012/1447)

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