Social Policy Law

Barnard, Catherine

doi:10.1007/978-3-319-24343-6_37

Catherine Barnard²

1291 Accesses

Abstract

Social policy has always been something of the poor relation to the EEA’s internal market provisions. While the EEA has adopted all of the EU’s social acquis, most of the principles have been developed by the Court of Justice and the EFTA Court has faithfully applied them. The principle of homogeneity has been strong. That said, the national courts, most notably the Norwegian Supreme Court, have not always played ball, but with reason. This chapter outlines the key provisions of social policy in the EEA and considers how the EFTA Court has interpreted those provisions, relying on but also sometimes developing the case law of the European Court of Justice.

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Notes

1.
See for example, Barnard (2012), Bercusson (2009), Davies (2012), and Riesenhuber (2012). For a shorter summary of the position, see Ronnmar (2014).
2.
Case 126/86 Zaera v. Institut Nacional de la Seguridad Social and Tesorería General de la Seguridad Social [1987] ECR 3697, paragraph. 14.
3.
These rights may well be principles: Case C-176/12 Association de médiation sociale (‘AMS’), judgment of 15 January 2014, published electronically.
4.
Case E-10/14 Deveci v. Scandinavian Airlines System Denmark-Norway-Sweden [2014] EFTA Ct Rep. 1364.
5.
Case E-12/10 ESA v. Iceland [2011] EFTA Ct. Rep. 117, paragraph 60.
6.
Case E-2/03 Ásgeirsson [2003] EFTA Ct. Rep. 18, paragraph 23.
7.
The Directive was incorporated into Annex XVIII to the EEA Agreement at point 28 JCD No 42/96 of 28 June 1996 (OJ 1993 L307, p. 18 and EEA Supplement No 51, 14.11.1996, p. 14) and subsequently deleted by JCD No 43/2013 (OJ 2013 L 231, p. 17 and EEA Supplement No 49, 29.8.2013, p. 19).
8.
The Directive was incorporated into Annex XVIII to the EEA at point 32h by JCD No 45/2004 (OJ 2004 L 277, p. 12 and EEA Supplement No 43, 26.8.2004, p. 11). See also Council Directive 1999/63 concerning the European Agreement on the organisation of working time of seafarers (The Directive was incorporated into Annex XVIII to the EEA at point 32b by JCD No 97/2000 (OJ 2001, L 7, p. 25 and EEA Supplement No 2, 11.1.2001, p. 14). and Council Directive 2005/47 on the agreement between Community of European Railways and the European Transport Workers Federation on certain aspects of the working conditions of mobile workers engaged in interoperable cross border services in the railway sector (The Directive was incorporated into Annex XVIII to the EEA at point 32i by JCD No 31/2007 (OJ L 2007, 209, p. 56 and EEA Supplement No 38, 9.8.2007, p. 36).
9.
The Directive was incorporated into Annex XVIII to the EEA at point 16d by JCD No 7/94.
10.
The Directive was incorporated into Annex XVIII to the EEA at point 29 by JCD No 43/96 (OJ 1996 L 291, p. 33 and EEA Supplement No 51, 14.11.1996, p. 21).
11.
The Directive was incorporated into Annex XVIII to the EEA at point 30 by JCD No 37/98 (OJ 1998 L 310, p. 25 and EEA Supplement No 48, 19.11.1998, p. 260).
12.
The Directive was part of the EEA at the time of signing in 1992 and is incorporated into Annex XVIII to the EEA at point 8.
13.
See also Article 3(2) SCA which provides ‘In the interpretation and application of the EEA Agreement and this Agreement, the EFTA Surveillance Authority and the EFTA Court shall pay due account to the principles laid down by the relevant rulings by the Court of Justice of the European Communities given after the date of signature of the EEA Agreement and which concern the interpretation of that Agreement or of such rules of the Treaty establishing the European Economic Community and the Treaty establishing the European Coal and Steel Community in so far as they are identical in substance to the provisions of the EEA Agreement or to the provisions of Protocols 1 to 4 and the provisions of the acts corresponding to those listed in Annexes I and II to the present Agreement.’
14.
Case E-1/94 Ravintoloitsijain Liiton Kustannus Oy Restamark [1994–1995] EFTA Ct Rep. 15 paragraphs 32 to 35.
15.
Case E-2/11 STX Norway Offshore AS [2012] EFTA Ct. Rep. 4.
16.
Case C-341/05 Laval un Partneri Ltd [2007] ECR I-11767.
17.
The Directive was incorporated into Annex XVIII to the EEA at point 30 by JCD No 37/98 (OJ 1998 L 310, p. 25 and EEA Supplement No 48, 19.11.1998, p. 260).
18.
Case E-12/10 ESA v. Iceland [2011] EFTA Ct. Rep. 117, paragraph 45.
19.
Confirmed in the EEA context by Case E-12/10 ESA v. Iceland, cited above, paragraph 40.
20.
Case E-12/10 ESA v. Iceland, cited above, paragraph 52. Therefore an obligation to take out accident insurance falls outside the matters listed in Article 3(1) PWD and so could not be applied to posted workers (paragraph 53) unless justified under Article 3(10) PWD which it could not on the facts.
21.
Case E-12/10 ESA v. Iceland, cited above, para. 41.
22.
Case E-2/11 STX Norway Offshore AS, cited above, paragraphs 56 and 57.
23.
Case E-12/10 ESA v. Iceland cited above, Paragraph 47.
24.
Case E-2/11 STX Norway Offshore AS, cited above, paragraph 72.
25.
Case E-2/11 STX Norway Offshore AS, cited above, paragraph 74 to 78.
26.
Case E-2/11 STX Norway Offshore, cited above, paragraphs 84 and 85.
27.
Cf Article 3(7) PWD, second paragraph which the Court did not expressly refer to in its findings.
28.
Case E-2/11 STX Norway Offshore AS, cited above, paragraph 97.
29.
Case C-319/06 Commission v. Luxembourg [2008] ECR I-4323.
30.
Case E-2/11 STX Norway Offshore AS, cited above, paragraph 101.
31.
Article 3(7) PWD, second paragraph, adds ‘[a]llowances specific to the posting shall be considered to be part of the minimum wage, unless they are paid in reimbursement of expenditure actually incurred on account of the posting, such as expenditure on travel, board and lodging.’
32.
Norwegian Supreme Court, judgment of 5 March 2013 in Case, HR-2013-0496-A, (case no. 2012/1447), paragraph 154.
33.
Norwegian Supreme Court, judgment of 5 March 2013 in Case, HR-2013-0496-A, (case no. 2012/1447), paragraphs 155, 170. Cf. Case E-12/10 ESA v. Iceland, cited above, paragraph 59, where the EFTA Court found that Iceland had failed to make out a public policy defence due to the fact that there were only nine posted workers in Iceland in 2010 and so it was difficult to see how the requirements in the Icelandic Act could be considered ‘crucial to Iceland’s social order’.
34.
Norwegian Supreme Court, judgment of 5 March 2013 in Case, HR-2013-0496-A, (case no. 2012/1447), STX (Norway), para. 126.
35.
Case E-3/12 Staten v/Arbeidsdepartementet v. Stig Arne Jonsson [2013] EFTA Ct. Rep 136.
36.
See, for example, the speech given by Prof C. Baudenbacher, President of the EFTA Court, ‘The EFTA Court and its interaction with the Norwegian Courts’, speech at the conference International courts and their importance for the Norwegian Legal Order, Tromsø 19 April 2013. The intensity of the dialogue between the EFTA Court and the Norwegian Supreme Court has increased markedly in recent months (email on file with author).
37.
Case C-549/13 Bundesdruckerei, judgment of 18 September 2014, published electronically. However, cf Case C-396/13 Sähköalojen ammattiliitto, judgment of 12 February 2015, published electronically.
38.
The Directive was incorporated into Annex XVIII at point 21b to the EEA by JCD No 33/2008 (OJ 2008 L 182, p. 30 and EEA Supplement No 42, 10.7.2008, p. 18).
39.
The Directive was part of the EEA at the time of signing in 1992 and is incorporated into Annex XVIII to the EEA at point 19.
40.
The Directive was incorporated into Annex XVIII at point 21a to the EEA by JCD No 43/1999 (OJ 2000 L 266, p. 50 and EEA Supplement No 46, 19.10.2000, p. 272), to be deleted with effect from 15 August 2009 by JCD No 33/2008 (OJ L 182, 10.7.2008, p. 30 and EEA Supplement No 42, 10.7.2008, p. 18).
41.
OJ 2000 L180/22; EU legal act considered by the EU and the EEA/EFTA States not to be relevant for incorporation into the EEA.
42.
OJ 2000 L303/16; EU legal act considered by the EU and the EEA/EFTA States not to be relevant for incorporation into the EEA.
43.
The Directive was incorporated into Annex XVIII at point 21 to the EEA by JCD No 84/2011 (OJ 2011 L 262, p. 56 and EEA Supplement No 54, 6.10.2011, p. 70).
44.
The Directive was incorporated into Annex XVIII to the EEA at point 16d by JCD No 7/94.
45.
The Directive was incorporated into Annex XVIII at point 31a to the EEA by JCD No 40/2011 (OJ 2011 L 171, p. 41 and EEA Supplement No 37, 30.6.2011, p. 48).
46.
The Directive was incorporated into Annex XVIII at point 31 to the EEA by JCD No 104/98 (OJ 1999 L 197, p. 56 and EEA Supplement No 33, 29.7.1999, p. 27).
47.
The Directive was incorporated into Annex XVIII at point 32a to the EEA by JCD No 43/2000 (OJ 2000 L 174, p. 54 and EEA Supplement No 32, 13.7.2000, p. 3).
48.
The Directive was incorporated into Annex XVIII at point 32k to the EEA by JCD No 149/2012 (OJ 2012 L 309, p. 34 and EEA Supplement No 63, 8.11.2012, p. 39).
49.
Note the express variation of wording found in point 21b Annex XVIII to the EEA.
50.
Case C–167/97 Seymour-Smith [1999] ECR I-623.
51.
The 2-year service requirement has now been reduced to 1 year by SI 1999/1436, Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 1999.
52.
Originally incorporated in point 18 Annex XVIII to the EEA but deleted with effect from 15 August 2009 by JCD No 33/2008 (OJ 2008 L 182, p. 30 and EEA Supplement No 42, 10.7.2008, p. 18).
53.
Case C-450/93 Kalanke [1995] ECR I-3051.
54.
Under-representation exists where women ‘do not make up at least half the staff in the individual pay, remuneration and salary brackets in the relevant personnel group within a department’.
55.
Case C-450/93 Kalanke, cited above, paragraph 19, referring to the Preamble of Council Recommendation of 13 December 1984 on Positive Action for Women (84/635/EEC; OJ 1984 L331/34).
56.
Case C-450/93 Kalanke, cited above, paragraph 22. See also Case C-407/98 Abrahamsson v. Fogelqvist [2000] ECR I-5539, where the ECJ ruled that a national rule which gave automatic priority to a person of the under-represented sex who had adequate qualifications but qualifications which were inferior to those of the person who would otherwise have been appointed, albeit that the difference in qualifications was not important, breached Article 2(4) of Directive 76/207 and Article 157(4) TFEU. This outcome was not affected by the limited number of posts to which the rule applied or the level of the appointment.
57.
Case C-450/93 Kalanke, cited above, paragraph 23.
58.
Case C-409/95 Marschall [1997] ECR I-6363.
59.
The Bremen law at issue in Kalanke did not contain a saving clause. The Federal Labour Court, however, read exceptions into the Bremen law in accordance with the Grundgesetz. While this was mentioned to the Court (see paragraph 9), the questions referred made no reference to these exceptions. It therefore seems that the ECJ answered the question in Kalanke on the basis of the absence of such a clause.
60.
Case C-409/95 Marschall, cited above, paragraphs 29 and 30.
61.
Case C-409/95 Marschall, cited above, paragraph 33.
62.
On the different types of quota, see Schiek (1998), p. 148.
63.
Case C-407/98 Abrahamsson v. Fogelqvist [2000] ECR I-5539.
64.
Case E-1/02 ESA v. Kingdom of Norway, [2003] EFTA Ct. Rep. 1, paragraph 45.
65.
Case E-1/02 ESA v. Kingdom of Norway, cited above, paragraph 51.
66.
OJ 1975 L48/29.
67.
The Directive was incorporated into Annex XVIII at point 22 to the EEA by JCD No 41/1999 (OJ 2000 L 266, p. 47 and EEA Supplement No 46, 19.10.2000, p. 257).
68.
OJ 1975 L48/29.
69.
The Directive was incorporated into Annex XVIII at point 32d to the EEA by JCD No 159/2001 (OJ 2002 L 65, p. 38 and EEA Supplement No 13, 7.3.2002, p. 22).
70.
OJ 1980 L283/23.
71.
The Directive was incorporated into Annex XVIII at point 24 to the EEA by JCD No 51/2009 (OJ 2009 L 162, p. 32 and EEA Supplement No 33, 25.6.2009, p. 21).
72.
See also Case E-1/95 Samuelsson v. Svenska Staten [1994–1995] EFTA Ct. Rep 145 where the Court ruled that EEA/EFTA States could not refuse to provide remuneration to an employee where an employee, within 2 years prior to the bankruptcy decision, was granted remuneration through the guarantee for a wage claim which arose in mainly the same activity.
73.
Case E-9/97 Erla María Sveinbjörnsdóttir v. The Government of Iceland [1998] EFTA Ct. Rep 95.
74.
Joined cases C-6/90 and 9/90 Francovich [1991] ECR I-5357.
75.
Paragraph 60.
76.
Magnússon and Hannesson (2013), p. 167.
77.
Paragraph 66.
78.
Paragraph 26, emphasis added. Although cf the nuance in Case C-426/11 Alemo-Herron v. Parkwood Leisure Ltd, judgment of 18 July 2013, published electronically, paragraph 25: ‘However, Directive 77/187 does not aim solely to safeguard the interests of employees in the event of transfer of an undertaking, but seeks to ensure a fair balance between the interests of those employees, on the one hand, and those of the transferee, on the other. More particularly, it makes clear that the transferee must be in a position to make the adjustments and changes necessary to carry on its operations.’
79.
Case C-426/11 Alemo-Herron, judgment of 18 July 2013, reported electronically; Weatherill (2014), p. 167.
80.
Case E-10/14 Deveci v. Scandinavian Airlines System Denmark–Norway–Sweden, cited above, paragraph 57. See also paragraph 63.
81.
E-3/01 Alda Viggósdóttir v. Iceland Post Ltd [2002] EFTA Ct Rep. 202.
82.
E-3/01 Alda Viggósdóttir v. Iceland Post Ltd, cited above, paragraph 29.
83.
Eg Case E-2/95 Eidesund v. Stavangar Catering [1995–1996] EFTA Ct. Rep. 1, paragraph 24; Case E-2/96 Jørn Ulstein and Per Otto Røiseng v. Asbjørn Møller [1995–1996] EFTA Ct. Rep. 65, paragraph 17.
84.
Case C-48/94 Rygaard [1995] ECR I-2745.
85.
Case E-2/04 Rasmussen v. Total E&P Norge AS [2004] EFTA Ct. Rep. 57.
86.
These are summarised in Case E-2/95 Eidesund v. Stavangar Catering, cited above, paragraphs 27 to 29.
87.
Case 287/86 Landsorganisationen i Danmark for Tjenerforbundet i Danmark v. Ny Mølle Kro [1987] ECR 5465.
88.
Case 324/86 Tellerup v. Daddy’s Dance Hall [1988] ECR 739.
89.
Case 101/87 Bork International v. Foreningen af Arbejdsledere i Danmark [1988] ECR 3057.
90.
Case C-29/91 Redmond Stichting v. Hendrikus Bartol [1992] ECR I-3189.
91.
Joined Cases C-171/94 and C-172/94 Merckx and Neuhuys v. Ford Motors Company Belgium [1996] ECR I-1253.
92.
Case C-392/92 Schmidt [1994] ECR I-1311; Case C-209/91 Watson Rask and Christensen [1992] ECR I-5755.
93.
E-2/95 Eidesund v. Stavangar Catering, cited above, paragraph 30. See also Case E-2/96 Ullstein, cited above, paragraph 26.
94.
Case 24/85 [1986] ECR 1119.
95.
Wording actually taken from paragraph 18 of Case 287/86 Ny Mølle Kro [1987] ECR 5465 approving Case 24/85 Spijkers [1986] ECR 1119 and Case 29/91 Bartol [1992] ECR I-3189, paragraph 23.
96.
It is clear that a transfer does not occur merely because the assets of a business are disposed of, see Case 24/85 Spijkers, cited above, paragraph 12. However, as Advocate General Slynn pointed out, the courts will identify any sham agreements for the disposal of assets designed to avoid the provisions of the Directive.
97.
Added by Case 101/87 Bork [1988] ECR 305. See also Case C-29/91 Bartol [1992] ECR I-3189.
98.
Case C-392/92 Schmidt [1994] ECR I-1311, paragraph 16; Case C-13/95 Süzen [1997] ECR I-1259, paragraph 14.
99.
Case E-2/95 Eidesund v. Stavangar Catering, cited above, paragraph 32.
100.
Case E-2/96 Ullstein, cited above, paragraph 28.
101.
Case E-3/96 Tor Angeir Ask v. ABB Offshore Technology AS [1997] EFTA Ct. Rep. 1.
102.
Case E-2/04 Rasmussen v. Total E&P Norge AS, cited above.
103.
Case C-13/95 Süzen [1997] ECR I-1259.
104.
The EFTA Court said that if neither assets nor personnel are transferred then there is no transfer: see also Case E-3/96 Tor Angeir Ask and Others v. ABD Offshore Technology AS, cited above.
105.
Case C-13/95 Süzen, cited above, paragraph 23.
106.
Case E-3/96 Tor Angeir Ask v. ABB Offshore Technology AS, cited above.
107.
Joined C-229/96 and C-74/97 Hernández Vidal and Others [1998] ECR I-8179.
108.
C-247/96 Sánchez Hidalgo and Others [1998] ECR I-8237, paragraph 26.
109.
C-247/96 Sánchez Hidalgo and Others, cited above, paragraph 21.
110.
Ibid.
111.
C-247/96 Sánchez Hidalgo and Others, cited above, paragraph 21.
112.
Davies (1997), pp. 193 and 196.
113.
Paragraph 22.
114.
Case E-2/04 Rasmussen v. Total E&P Norge AS, cited above, paragraph 43.
115.
Case E-2/04 Rasmussen v. Total E&P Norge AS, cited above, paragraph 51.
116.
See further Case C-499/04 Werhof v. Freeway Traffic Systems GmbH [2006] ECR I-2397 and Case C-426/11 Alemo-Herron v. Parkwood Leisure Ltd, cited above.
117.
Case E-2/95 Eidesund v. Stavangar Catering, cited above, paragraph 56.
118.
This exception will be narrowly construed: Case E-2/95 Eidesund v. Stavangar Catering, cited above, paragraph 63.
119.
Case E-2/95 Eidesund v. Stavangar Catering, cited above, paragraph 64.
120.
Case E-2/04 Rasmussen v. Total E&P Norge AS, cited above, paragraph, 53.
121.
Case E-2/04 Rasmussen v. Total E&P Norge AS, cited above, paragraph, 55.
122.
E-3/01 Alda Viggósdóttir v. Iceland Post Ltd, cited above.
123.
Case E-10/14 Deveci v. Scandinavian Airlines System Denmark–Norway–Sweden, cited above.
124.
Paragraphs 81 to 83.
125.
Case C-499/04 Werhof [2006] ECR I-239.
126.
Case E-10/14 Deveci, cited above, paragraph 59.
127.
Case C-426/11 Alemo-Herron v. Parkwood Leisure Ltd, cited above, paragraph 31.
128.
Case C-426/11 Alemo-Herron v. Parkwood Leisure Ltd, cited above, paragraph 33.
129.
Case C-426/11 Alemo-Herron v. Parkwood Leisure Ltd, cited above, paragraph 34.
130.
Case E-10/14 Deveci v. Scandinavian Airlines System Denmark–Norway–Sweden, cited above, paragraph 64.
131.
Case E-10/14 Deveci v. Scandinavian Airlines System Denmark–Norway–Sweden, cited above, paragraph 63.
132.
See Modernising the organisation of work—a positive approach to change. Communication from the Commission. COM (98) 592 final, 25 November 1998; discussed further below.
133.
Final Report of the High Level Group on economic and social implications of industrial change, November 1998, 9.
134.
The Framework Directive. 89/391/EEC on health and safety (incorporated into point 8 Annex XVIII to the EEA from date of signature of the Agreement).
135.
Council Directive 75/129/EEC (OJ [1975] L48/29) as amended by Council Directive 92/56/EC (OJ [1992] L245/3) and consolidated in Council Directive 98/59/EC (OJ [1998] L225/16); incorporated into Annex XVIII at point 22 to the EEA by JCD No 41/1999 (OJ 2000 L 266, p. 47 and EEA Supplement No 46, 19.10.2000, p. 257).
136.
See Council Directive 77/187/EEC (OJ [1977] L61/126) as amended by Council Directive 98/50/EC (OJ [1998] L201/88) and consolidated in Directive 2001/23; incorporated into Annex XVIII at point 32d to the EEA by JCD No 159/2001 (OJ 2002 L 65, p. 38 and EEA Supplement No 13, 7.3.2002, p. 22.
137.
Council Directive 97/74/EC (OJ [1997] L10/20), now Directive 2009/38 (OJ [2009] L122/28) incorporated into Annex XVIII at point 27 to the EEA by JCD No 54/2010 (OJ 2010 L 181, p. 22 and EEA Supplement No 37, 15.7.2010, p. 29).
138.
Directive incorporated into Annex XVIII at point 32f to the EEA by JCD No 172/2002 (OJ 2003 L 38, p. 38 and EEA Supplement No 9, 13.2.2003, p. 25).
139.
Directive 2001/86/EC incorporated into Annex XVIII at point 32e to the EEA by JCD No 89/2002 (OJ L [266, 3.10.2002, p. 61 and EEA Supplement No 49, 3.10.2002, p. 46).
140.
Directive 2003/72/EC incorporated into Annex XVIII at point 32g to the EEA by JCD No 44/2004 (OJ L 277, 26.8.2004, p. 11 and EEA Supplement No 43, 26.8.2004, p. 10).
141.
E-10/12Yngvi Harðarson v. Askar Capital hf [2013] EFTA Ct. Rep. p. 204, paragraphs 45 to 49.
142.
Article 2(1) Directive 91/553.
143.
E-10/12Yngvi Harðarson v. Askar Capital hf, cited above, paragraph 53.
144.
E-10/12Yngvi Harðarson v. Askar Capital hf, cited above, paragraph 56.

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EU Law and Employment Law, Fellow of Trinity College, Cambridge, UK
Catherine Barnard (Professor)

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Carl Baudenbacher

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Barnard, C. (2016). Social Policy Law. In: Baudenbacher, C. (eds) The Handbook of EEA Law. Springer, Cham. https://doi.org/10.1007/978-3-319-24343-6_37

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