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

handle is hein.journals/eulalaj6 and id is 1 raw text is: 




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


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