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Internal Market: Norwegian Labour Clauses in Public Contracts not in line with EEA law

30.6.2011

PR(11)43

The EFTA Surveillance Authority decided yesterday to send a reasoned opinion, a final warning, to Norway concerning its labour clauses in public procurement.


According to EEA law, labour clauses applied to workers posted to Norway by undertakings from other EEA States must refer to provisions in either universally applicable collective agreements and/or legislation. A rule which applies only to public contracts is not possible.

In Norway,  public procurement contracts must contain provisions ensuring that workers receive pay and working conditions which are no less favourable than prescribed by nationwide collective agreements or what is otherwise normal for the relevant place and profession.

The Authority argues that this rule does not comply with the Posting of Workers Directive[1] as interpreted by the Court of Justice of the European Union in the Rüffert case (C-346/06).

Norway is allowed to take into account social considerations in public procurement. However this has to be done in compliance with EEA law and in particular with the Posting of Workers Directive. The rule on labour clauses fails to do that since it does not meet the requirement of universal application under the directive.

In comparison, decisions taken by the Tariff Board under the General Application Act spell out in clear terms both the amount of pay which the relevant workers are entitled to and their working time arrangements. Already, pay provisions in collective agreements in sectors such as construction and cleaning are universally applicable in Norway, and therefore apply in the context of both public and private contracts.

A letter of formal notice was issued to Norway in July 2009.

The purpose of a reasoned opinion is to give the State in question a last chance to take corrective measures before the Authority decides whether to bring the matter before the EFTA Court. The Norwegian Government has been given two months to take the measures necessary to comply with the reasoned opinion.

 

For further information, please contact:

 

Mr. Xavier Lewis
Director of Legal and Executive Affairs
tel. (+32)(0)2 286 18 30

 

or

 

Mr. Trygve Mellvang-Berg
Press and Information Officer
tel. (+32)(0)2 286 18 30
mob. (+32)492 900 187

 

 




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