Social dumping again before the Court

(B2) The application of the "posting of workers" directive and social dumping continue to make waves at the Court of Justice of the EC. after business Viking/Laval et Germany, here is a new general counsel, the Frenchman Yves Bot (classified Chiraquien) who intends to change the case law on the minimum wage for posted workers, in a more social sense.

The applicable collective agreement even if it is not of general application
In conclusions delivered on 20 September, the Advocate General considers that legislation (such as that existing in the Land of Lower Saxony), which requires the beneficiaries of public contracts, or their subcontractors, to pay for posted workers, the remuneration provided for in the collective agreement, even if it is not declared to be of general application, complies with European law (freedom to provide services). Only reservation: "It is incumbent on the referring court to verify that this legislation does indeed provide, for posted workers, a real advantage which contributes significantly to their social protection, and that, in the implementation of the said legislation , the principle of transparency of the conditions of performance of the public contract concerned is respected." (case Rüffert / Land Niedersachsen, C-346/06)

Facts: A Polish company only paid half the minimum wage
The Land of Lower Saxony (Niedersachsen) had concluded a public contract for the construction of the Göttingen-Rosdorf prison establishment with a German company which called on a Polish subcontractor (PKZ Pracownie Konserwacji Zabytkow), established in Tarnow. But during the summer of 2004, the company PKZ was suspected of having employed Polish labor on the site at a salary lower than that provided for in the applicable collective agreement. It would have paid to the 53 workers working on the site, according to the documents produced to the Court of Justice, only 46,5% of the minimum wage provided. His contract was therefore terminated, in accordance with the law of the Land which provides for financial penalties, even termination without notice in the event of serious misconduct (in particular respect for social laws).

Ten governments in battle
It should be noted that seven governments (German, Danish, Irish, Cypriot, Austrian, Finnish and Norwegian*) intervened in the case to support the Land legislation and ensure that this restriction was justified and proportionate. The Belgian government was more mixed considering that this restriction could be justified, it was still necessary to prove that it was proportionate.
On the other hand, the Polish government intervened in support of its company, considering that the directive on posting does not require the payment of a salary higher than the compulsory minimum rate. Substantially similar opinion for the European Commission, and... the French government, who argued that only collective agreements declared to be of general application in Germany are applicable to posted workers. The Commission thus considered that the law of the Land is contrary to Article 49 of the Treaty on the freedom to provide services.

The Advocate General for the application of the maximum minimum wage
The magistrate considers that if Directive 96/71 provides for a "hard core" of protective rules, including the minimum wage rate "...fixed in the field of construction by collective agreements (...) declared to 'general application', this rule must be interpreted taking into account another provision (article 3 § 7 and 17th recital of the directive) which states that "the mandatory minimum protection rules in force in the host country must not prevent the application of terms and conditions of employment that are more favorable to workers".

The State can put in place reinforced national protection
The European magistrate thus considers that "the imperative nature of the protective rules in force in the State of the place of performance of the service may be eclipsed in favor of (these) rules which are more favorable for posted workers". The Member States of the place of performance of the service may "improve the level of social protection which they wish to guarantee to workers employed on their territory and which they may therefore apply to workers posted there".
For the Advocate General, there is in Germany in the construction sector the mark of this "reinforced national protection". The collective agreement applicable to construction (TV Mindestlohn) makes it clear "that rights to higher wages under other collective agreements or under special agreements are not affected by the provision providing for the collective agreed hourly wages of two categories (concerned)".

Context elements

In Germany, the determination of the minimum wage in the construction sector is subject to collective bargaining. The collective agreement of 4 July 2002, which sets a general framework for the construction industry (Bundesrahmentarifvertrag für das Baugewerbe), and is applicable throughout the territory of the FRG, does not contain rules relating to the minimum wage. These are contained, on the one hand, in a collective agreement providing for a minimum wage in the construction sector in the territory of the FRG (Tarifvertrag zur Regelung der Mindestlöhne im Baugewerbe im Gebiet der Bundesrepublik Deutschland, called "TV Mindestlohn") , declared of general application, and specific collective agreements. There "
;Tarifvertrag zur Regelung der Löhne und Ausbildungsvergütungen" of 2003 applicable in the Land of Niedersachsen fixes a higher tariff but is not declared of general application.

The law on public procurement applicable in Lower Saxony provides that "contracting authorities are only entitled to appoint as successful tenderers for construction and local public transport contracts companies paying the wages fixed in collective agreements instead of execution of the provision of services". Its article 3, § 1 enacts that "works contracts are only awarded to companies which, during the tender, undertake in writing to pay their employees, in return for the performance of the services concerned, at least the remuneration provided for in the collective agreement applicable to the place of performance of the said services, at the time provided for therein".

(NGV)

* EEA Member States may also intervene in certain cases.