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6 Eur. Lab. L.J. 2 (2015)

handle is hein.journals/eulalaj6 and id is 1 raw text is: EDITORIAL A POST-LAVAL CASE: ESA AND MINIMUM WAGES FOR POSTED WORKERS The issue of posting of workers in the European Union keeps on producing new case law from the Court of Justice of the European Union. As is well-known, the discussion following the Viking and Laval cases is far from coming to a halt. With the recent ESA- case (C-396/13), the Court of Justice delivers an interesting judgment which may offer some new perspectives to the debate. The case concerns ESA, a company established in Poland, with a branch in Finland, carrying on business in the electricity sector. In order to carry out electrical installation work at the construction site for a nuclear power station in Finland, ESA concluded, in Poland and under Polish law, employment contracts with 186 workers. These workers were posted to ESAs Finnish branch. The workers argued that ESA did not pay them the correct minimum pay due under the Finnish collective agreement. This collective agreements provided for a calculation of the employees' minimum pay based on crite- ria more favourable to the employees than those applied by ESA (pay groups, holiday allowance, daily allowance, compensation for travel, accommodation costs). The ESA-case is interesting for different reasons. In the first place, the Court needed to respond to the question to what extent a local trade union in the host state can have ins standi to defend the pay claims of the posted workers. The Court finds that this ins standi is supported by Directive 96/71 (the Posting Directive), read in the light of article 47 of the Charter of Fundamental Rights of the EU (cf. §26 of the judgment). It must be noted that the union claim was in conformity with Finnish law. A second interesting issue concerns the core debate about posting of workers and social dumping. To what extent is a host member state in a position to apply its employment protection, more precisely its minimum wages, to the posted workers? After Laval, it has become clear that there are limitations to the protection that host states may wish to impose on foreign service providers. In the Laval-judgment, the Court pointed out that article 3(1) of the Posting Directive relates only to minimum rates of pay and cannot be relied upon to impose rates of pay which do not constitute minimum wages (cf. §70 of the judgment). This approach could still leave some degree of discussion about the extent to which member states are actually free in defining themselves the elements and the level of minimum pay that is to be imposed on foreign service providers. This uncertainty (or this limitation) may also be based on the wording of the Posting Directive itself, where Intersentia

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