Academic Contribution ELLJ

European Labour Law Journal

2019, Vol. 10(2) 101–115
Safeguarding the posted worker. ª The Author(s) 2019
Article reuse guidelines:

A private international law sagepub.com/journals-permissions

DOI: 10.1177/2031952519852112
journals.sagepub.com/home/ell
perspective

Ragne Piir
University of Tartu, Tartu, Estonia

Abstract
This article examines the protection measures and the law applicable to posted workers. As a
general rule, the Rome I Regulation designates the law to be applied to transnational individual
employment contracts. In the context of postings, however, this is supplemented by certain
safeguards foreseen in the Posting of Workers Directive. This paper analyses the interrelationship
between the core set of employment terms as regulated in the Directive and the conflict-of-law
rules for employment contracts in the Rome I Regulation. The article takes a critical look at the key
problems in the legal regime applicable to posted workers under the Directive and its 2018
amendment. Special attention is first given to the question of determining the habitual workplace of
a posted worker, then to the temporary nature of postings, and subsequently to the question
of remuneration guaranteed to posted workers. The legal nature of national transposing measures
of the Directive and national provisions entailing the core set of employment terms will also be
analysed in order to explicate the interface of the two instruments. The paper will subsequently
examine the application of the preferential approach.

Keywords
Law applicable to individual employment contracts, Rome I Regulation, posted workers, habitual
workplace, remuneration, overriding mandatory provisions, preferential approach

Introduction
In realisation of the main fundamental freedoms within the EU, transnational mobility of workers
has become a topical issue. In dealing with working abroad, we inevitably encounter the interna-
tional element and thus the question of which law to apply to such labour relations, as employment
regulations, as well as the level of social guarantees for employees, differ from one Member State

Corresponding author:
Ragne Piir, Faculty of Law of the University of Tartu, Ülikooli 18, 50090 Tartu, Estonia.
E-mail: ragnepiir@gmail.com
102 European Labour Law Journal 10(2)

to another. It is, accordingly, worth noting that working abroad may occur not only in the context of
the free movement of workers but also in the context of the freedom to provide services. In the first
case, workers are employed in a foreign country (migrant workers); whereas, in the second case,
they are posted abroad by their employer (posted workers). Labour migrants are employed in the
host country; they reside in the host country and pay taxes there. A posted worker is employed in
the sending country and pays taxes there, but is posted in a different (host) country by their
employer. The exercise of the free movement of workers as compared to the posting of workers
is thus legally and intrinsically different. This is because the said basic freedoms uphold opposing
interests. There are also remarkable differences in the context of law applicable to such work
relations.
The aim of this paper is to examine the determination of the applicable law as well as the private
international law1 safeguards to posted workers. As a general rule, it is up to the Rome I Regu-
lation2 to designate the law applicable to transnational individual employment contracts. In the
context of postings, this is supplemented by the Posting of Workers Directive.3 However, it has
been outlined that the interrelationship of the two instruments remains unclear.4 The same can also
be inferred from the case law of the Court of Justice of the European Union (CJEU), as will be
discussed below.
The topic can be illustrated with the following example. Suppose that a worker concludes an
individual employment contract in Estonia and Estonian law is chosen to govern the contract.
Suppose further that the worker is then posted to Finland and performs the contract in Finland until
redundancy. If the worker has received wages lower than the minimum amounts laid down in
Finnish collective agreements, can he claim the difference under the PWD or Rome I? That is, how
does one determine his habitual workplace if he has never carried out work in Estonia? Let us
assume further that in addition to monthly wages, the worker has also received daily allowances
due to the posting under Estonian law. Can the employer deduct these allowances from the claim,
given that Finnish law generally includes such posting-related allowances among the wages?5 Or

1. Private International law; hereinafter referred to as PIL or conflict of laws.

2. Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to
contractual obligations (Rome I). – OJ L 177, 4 July 2008, p. 6 ff. Hereafter referred to as Rome I.
3. Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of
workers in the framework of the provision of services. – OJ L 18, 21 Jan. 97, p. 1 ff. Hereafter referred to as the PWD. On
8.3.2016, the European Commission proposed a revision of the Directive – see Proposal for a directive of the European
Parliament and of the Council amending Directive 96/71/EC of the European Parliament and of the Council of 16 Dec.
1996 concerning the posting of workers in the framework of the provision of services. COM(2016) 128 final of 8 Mar.
2016, p. 2-3. The PWD was amended by Directive (EU) 2018/957 of the European Parliament and of the Council of 28
June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of ser-
vices. – OJ L 173, 9 July 2018, p. 16 ff. Hereafter referred to as the amended PWD. Where no distinction is necessary, the
PWD and the amended PWD are hereafter referred to as the Directive.
4. A. van Hoek, M. Houwerzijl. Complementary study on the legal aspects of the posting of workers in the framework of the
provision of services in the European Union. Nov. 2011. (Available at: https://pure.uvt.nl/ws/files/4045160/Legal_
study_PWD_Full_report_incl_exec_sum_EN_FR_DE_1_.pdf, accessed 25 Nov. 2018).
5. According to Section 5(4) of Finnish Act 447/2016 on Posting Workers, special allowances paid due to the worker’s
posting are considered part of the worker’s pay, unless these are paid in reimbursement of actual costs incurred because
of the posting – https://www.finlex.fi/fi/laki/kaannokset/2016/en20160447_20170074.pdf for English version (accessed
25 Nov. 2018). Art. 3(7) of the PWD also provides for such inclusion of allowances specific to the posting in the
minimum wage.
Piir 103

can the worker claim the Finnish minimum rates of pay in addition to the already received
allowances, since in Estonia, such daily allowances are not considered to be part of the wages?6
This paper analyses first the function of Article 8 of Rome I and the PWD in cases of postings.
In so doing, the paper will, in its first section, will examine the relevance of the specific Directive
alongside Rome I. The next section will then present a critical analysis of some specific PIL issues
that have arisen under the Directive. Special attention is first given to the question of determining
the habitual workplace, and then to the temporary nature of postings. The article will then explore
whether the PWD efficiently serves one of its main goals of ensuring equal treatment of posted
workers, especially in terms of equal pay, as this can indeed be considered one of the key issues of
the PWD. The third section of the paper will subsequently explicate the relationship of the
Directive with Articles 8 and 9 of Rome I. It will first discuss the legal nature of national rules
transposing the Directive, and then the interrelationship of the provisions. This analysis is con-
cluded by an assessment of the different legal effects of their application.
The article integrates comparatively into its analysis the provisions of the PWD as well as its
long-awaited7 and newly adopted amendments, thereby examining whether the amendments
would succeed in resolving the issues of the PWD. Thus, this article also aims to contribute to
the development of European employment PIL.

The aims of Article 8 of Rome I and the PWD in the context of postings
In cases dealing with transnational labour contracts within the EU, Rome I lays down harmonised
conflict rules in order to determine the applicable law. As is well known, Rome I allows consid-
erable party autonomy but also endeavours to protect the more vulnerable party in labour relations.
Thus, one of the aims of Article 8 of Rome I – in compliance with its objective to protect parties
regarded as being weaker by more favourable conflict-of-law rules to their interests8 – is, in
principle, to grant employees the protection of the legal system they would know and expect to
apply under regular circumstances. To this end, the governing law rules stipulate that the contract
is in general governed by the law of the country in which or from which the employee habitually
carries out his work (lex loci laboris),9 and, in addition, foresee subsidiary objective criteria to
determine the applicable law.10
On the other hand, it cannot be ignored that Article 8 of Rome I does not establish any specific
protective rules for workers posted abroad. On the contrary, the country where the work is
habitually carried out shall not be deemed to have changed if the employee is temporarily

6. Estonian case law does not consider daily posting allowances to form part of the wages since daily posting allowances
are paid for being on the road and residing in the host state, not for the actual work performance (Estonian Supreme
Court decisions of 7 Jun. 2011, no 3-2-1-43-11, p. 15; and of 5 Mar. 2014, no 3-2-1-187-13, p. 16); see also Estonian
Employment Contracts Act, § 5(1)(5) and § 40, in English available at: https://www.riigiteataja.ee/en/eli/
515012019003/consolide (accessed 11 Feb. 2019); and Regulation of the Government laying down the conditions and
procedure for paying the allowances, in Estonian available at: https://www.riigiteataja.ee/akt/129122015048 (accessed
11 Feb. 2019).
7. E.g. S. Evju. Cross-border services, posting of workers, and jurisdictional alternation, 1(1) European Labour Law
Journal 89, 98 (2010), who calls for an amendment of the PWD to ensure harmonisation and uniformity it is intended to
provide.
8. See rec. 23 of the Preamble to Rome I.
9. Art. 8(2) of Rome I.
10. See Art. 8(3) and 8(4) of Rome I.
104 European Labour Law Journal 10(2)

employed in another country.11 Posted workers will therefore, according to Article 8(2) of Rome I,
almost always be working temporarily in the host state in circumstances where they habitually
work in their home state and their employment contracts would thus be governed by the law of
their sending state. It has rightly been pointed out that the very fact that posted workers are subject
to home state rules is indeed what makes the posting of workers economically attractive.12
Thus, this serves to demonstrate the practical need for an instrument which takes into account
the specifics of postings. Nonetheless, here the problem arises that providing protection to posted
workers is only one amongst the PWD’s dual objectives. It becomes clear from the Preambles of
both the PWD as well as the amended PWD, that the protection of the internal market and the
prevention of social dumping remain their main objectives.13 It has even been illustratively noted
that posted workers are but accessories for providing services.14 Therefore, both the PWD as well
as its amendment mainly seem to envisage the promotion and provision of cross-border services
and ensuring fair competition.15
The flip side of the coin, and the secondary objective of the Directive, is protecting the rights of
posted workers. In this context, it is expected to inherently delimit the freedom to provide services.
With a view to guaranteeing a fair level of protection to posted workers while also combating
social dumping and abolishing barriers of trade, the PWD thus sets forth a list of minimum core
working conditions to be applied to posted workers in the host state.16 The amended PWD goes
even further. It not only determines the core set of minimum rules to be applied, but, in certain
cases, requires compliance with specific standards of the host country (i.e. obligation to comply
with the remuneration rules of the host country instead of just minimum rates of pay).

Key problems in the legal regime applicable to posted workers

How to determine the habitual workplace? Within the meaning of Article 8(2) of Rome I, the country
in which or from which the employee habitually carries out his work is determined by the centre of
the labour performance.17 That is, it depends on the place where the activities are habitually carried

11. See 2d sentence Art. 8(2) of Rome I.

12. L. Merrett. Posted Workers in Europe from a Private International Law Perspective, 13 Cambridge Yearbook of
European Legal Studies 219, 222 (2010-2011).
13. We cannot underestimate the fact that the legal basis of the PWD is free movement of services (Art. 56 TFEU), not free
movement of workers (Art. 45 TFEU).
14. L. Isidro. Travailleurs détachés, travailleurs délaissés, 2 Plein droit 3, 4 (2017).
15. Estonian Supreme Court has similarly, and with reference to Laval, C 341/05, EU: C:2007:809, 74-77, stressed that the
aim of Art. 3(1) of the PWD is to ensure fair competition in cross-border provision of services, pointing out that at the
same time, this contributes to ensuring more favourable working conditions to workers (Estonian Supreme Court
decision of 16 Jan. 2013, no 3-2-1-179-12, p. 15).
16. It is recalled here that, according to Art. 1(3) of the PWD, Member States shall ensure that, whatever the law applicable
to the employment relationship, the undertakings guarantee workers posted to their territory the terms and conditions of
employment covering the following matters: (a) maximum work periods and minimum rest periods; (b) minimum paid
annual holidays; (c) the minimum rates of pay, including overtime rates; this point does not apply to supplementary
occupational retirement pension schemes; (d) the conditions of hiring-out of workers, in particular the supply of
workers by temporary employment undertakings; (e) health, safety and hygiene at work; (f) protective measures with
regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of
children and of young people; (g) equality of treatment between men and women and other provisions on non-
discrimination.
17. It is worth mentioning that neither the PWD nor its amendment add to determining the habitual place of work.
Piir 105

out in order to fulfil the employment contract, which under Rome I, would, in general, likely
coincide with the establishment of the employer. The habitual place of work determines the lex
causae also in cases where the employee is temporarily carrying out his working activities abroad
or in more than one country.
However, determining the habitual place of work is an issue not always easy to tackle. The
CJEU has on several occasions highlighted the need to use a circumstantial method in identifying
the habitual workplace in circumstances without an established centre of activities.18 More pre-
cisely, the CJEU has specified that, when failing a centre of activities, the criterion of the country
in which the work is habitually carried out must be understood as referring to the place where the
employee carries out the majority of his activities,19 and has set forth several indicia that might be
taken into consideration by the national courts as regards work relationships in the transport sector
as an example.20 It also becomes clear from the case law of the CJEU that the concept of a ‘place
where, or from which, the employee habitually performs his work’ cannot be equated with any
other concept referred to in another act of EU law.21
It is questionable whether in the hypothetical case, where a worker was employed with the
intention of posting them abroad without carrying out any work for the employer immediately prior
to the posting or subsequent to the posting in the home state could be seen as a posting. The
affirmative view cannot be completely ruled out under Rome I. Notably, according to its Preamble,
work carried out in another country should be regarded as temporary if the employee is expected to
resume working in the country of origin after carrying out his tasks abroad.22 On the one hand it is
true that the fact that the employment relationship began with a posting or ended with the com-
pletion of a posting does not alone determine the qualification of the posting.23 On the other hand,
it could be considered unreasonable and in contradiction with the aims of Article 8 of Rome I to
apply the law of the sending state as the objectively applicable law to an employee who is carrying
out his work but in the host state. This indeed very strongly points to the permanent nature of his
working activities there.24 Subsequently, the law objectively applicable to such individual employ-
ment contracts should in general be the law of the host state. It is therefore argued here that an
employee who has been employed for posting purposes only should, under Rome I, be considered
as habitually carrying out his work in the host country, unless the temporary nature of their working
activities appears very clearly upon consideration of all the factors characterising that activity.

18. See joined cases Nogueira et al and Osacar v. Ryanair, C 168/16 and C 169/16, EU: C:2017:688, 63; Heiko Koelzsch,
C 29/10, EU: C:2011:151, 49; and Voogsgeerd, C 384/10, EU: C:2011:842, 38-41.
19. Heiko Koelzch, supra n. 18, at 48, on work in the international transport sector.
20. CJEU specified in Nogueira et al and Osacar v Ryanair, supra n. 18, at 63, that courts must, in particular, determine in
which Member State is situated (i) the place from which the employee carries out his transport-related tasks, (ii) the
place where he returns after his tasks, receives instructions concerning his tasks and organises his work, and (iii) the
place where his work tools are to be found.
21. Nogueira et al and Osacar v. Ryanair, supra n. 18, at 65.
22. See Rec. 36 of the Preamble to Rome I.
23. M. Cerwiński. The Law applicable to employment contracts Under the Rome I-Regulation. 5 Adam Mickiewicz
University L. Rev. 147, 157 (2015).
24. W. Wurmnest. Das neue Internationale Arbeitsvertragsrecht der Rom I-Verordnung. EuZA, 481, 493 (2009), who does
not consider such situations as a posting. See also A. Staudinger, (ed. F. Ferrari, E.-M. Kieninger et al.), Internationales
Vertragsrecht. Rom I-VO. CISG. CMR. FactÜ. Kommentar (C.H.Beck 2d ed. 2012), art. 8 Rom I-VO n. 22, who claims
that such situations should not be considered as a posting (and therefore should be governed, in principle, by the law of
the host state) even when the employee occasionally works with the employer in its home state.
106 European Labour Law Journal 10(2)

How temporary is temporary? A posting is generally temporary in nature.25 Rome I therefore also
expressly sets forth in the second sentence of its Article 8(2) that the country where the work is
habitually carried out shall not be deemed to have changed if the employee is temporarily
employed in another country.26 Noteworthy in this context is that this proviso does not expres-
sively determine the length of time spent in a posting to consider it temporary. Currently, the
criterion of determining the temporary nature of work carried out in another country can mainly be
deduced from the circumstances of the particular case and the intention of the parties to the
employment contract. Consequently, it is the intended conclusiveness of carrying out working
activities abroad that should determine whether the posting is of temporary or permanent nature.
To illustrate, aspects to consider include mainly the intention of the employee to return to their
home country (animus revetendi) as well as the intention of the employer to retrieve the employee
(animus retahendi), be it stated expressly or concurrently.27
Although Rome I does not determine the length of what constitutes ‘temporary’, such attempts
may be found in other EU legislation. Namely, the definition of temporary is included in the
Enforcement Directive, which sets forth ancillary criteria to assess whether a posted worker
temporarily carries out his work in another Member State.28 However, the criteria is comparable
to the Preamble of Rome I and the interpretation of the respective provision. Therefore, the listed
factual elements in this proviso do not contribute much to creating legal certainty as to the notion of
what constitutes ‘temporary’. The PWD does not provide greater legal clarity on the matter either.
Its Preamble refers to a concern for the hard core of protective rules notwithstanding the duration of
the worker’s posting, while its body text only refers to a limited period of carrying out work in a
foreign country without any hints as to its length.29

25. See Rec. 9 to the amended PWD.

26. A further facet in this context is the need to distinguish the concept of posting of workers from that of a mere travel on
duty (business trip), which may create terminological issues for some languages. Let us mention, by way of digression,
that the distinction of a simple travel on duty from the concept of posting may pose problems in some languages, in
particular when the concept of posting is used for both terms (E.g. Estonian lähetatud töötaja (posted worker)
v. töölähetus (travel on duty; literally work-posting). It is important to note that the posting of workers appears in the
context of provision of services. It therefore presumes a certain recipient of the service in the host country, while travel
on duty is enacted independent of recipients or host enterprises and may, for example, take the form of attending
specific events or trainings without any management of the work environment in the host state. As long as travel on
duty is concerned, there may in fact occur no international element at all to even entail the need to turn to Rome I for
determining the applicable law.
27. See Wurmnest, supra n. 24, at 493; K. Riesenhuber. Europäisches Arbeitsrecht 131 (C.F.Müller 2009); U. Magnus. Die
Rom I-Verordnung, 1 IPRax 27, 40 (2010).
28. See Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of
Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending
Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (‘the
IMI Regulation’), Art. 4(3) and Rec. 8. The elements listed in Art. 4(3) include (a) the work is carried out for a limited
period of time in another Member State; (b) the date on which the posting starts; (c) the posting takes place to a Member
State other than the one in or from which the posted worker habitually carries out his or her work according to Rome I
and/or the Rome Convention; (d) the posted worker returns to or is expected to resume working in the Member State
from which he or she is posted after completion of the work or the provision of services for which he or she was posted;
(e) the nature of activities; (f) travel, board and lodging or accommodation is provided or reimbursed by the employer
who posts the worker and, if so, how this is provided or the method of reimbursement; (g) any previous periods during
which the post was filled by the same or by another (posted) worker.
29. See Rec. 14 of the Preamble to the PWD and Art. 2(1) of the PWD respectively.
Piir 107

The amended PWD also defines postings broadly, citing their temporary nature, but neverthe-
less aims to address the matter of ‘long-term temporary’ postings by the setting of a time-limit of
12 months, exceptionally extendable to 18 months in order to consider the posting temporary.30
Thus, Member States will have to ensure that in the case of postings exceeding the specified period,
all the mandatory terms and conditions of employment of the host state are guaranteed. In addition,
it states that where a posted worker is replaced by another posted worker performing the same task
at the same place, the duration of the posting shall be the cumulative duration of the posting periods
of the individual workers concerned.31 On the one hand, it seems that such constraints would
potentially help to eliminate uncertainties as to when a temporary posting ceases to be temporary,
thus resulting in the application of the mandatory labour law provisions of the host country, and
also to ensure that replacements of posted workers are not used to circumvent the otherwise
applicable rules. On the other hand, however, the amendment raises several further practical
questions, such as: how and at what point does one determine the applicable law in cases where
the said limit is exceeded, or: is it still possible that the habitual place of work changes in the first
12 months?
To answer, it is also currently conceivable that the law applicable to the employment contract
may change over time as compared to the moment of concluding the employment contract. That is,
Rome I does not subject the governing law to the conclusion of the contract either. Therefore, the
governing law may fluctuate, depending on the circumstances of the case, for example from the
law of the home state to that of the host state. That would be the case when in the course of
employment, the nature of the working activities ceases to be temporary. Therefore, the amend-
ment also does not preclude an actual change in the habitual place of work even within the first
12 months of the expected posting. The amended PWD also resolves the issue of which law will
apply to the employment contract after the passing of the first 12 (18) months. As mentioned
above, it stipulates that the application of all mandatory labour law provisions of the host Member
State – with the exception of the conclusion and termination of the employment contract as well as
any supplementary occupational pension schemes – has to be ensured.32
In the hypothetical case, the determination of the habitual place of work would have subse-
quently fallen under the general rules of Article 8(2) of Rome I had it not been expressly agreed
that the worker was posted to Finland. The latter clearly demonstrates animus revetendi and animus
retahendi of the parties. Given that the working relationship ended with a redundancy, we cannot
completely rule out the expectation of the parties that the worker would resume working in the
country of origin after carrying out his tasks abroad. This position is therefore advocated even
though the employment contract in the hypothetical was only performed in Finland. For this
reason, the agreement on posting can be seen as an indication pointing to Estonia as the place
initially planned to be the worker’s habitual work place.

Can the Directive ensure equal pay for equal work? In the context of equal treatment, it is important to
emphasise that the list in the PWD does not lay down a harmonised level of protection for

30. See Rec. 9 and Art. 1(2)(b) of the amended PWD. In this respect, the initial Commission proposal COM(2016) 128
final, supra n. 3, prescribed a time-limit of 24 months to postings.
31. See, in addition to the above, Rec. 11 to the amended PWD.
32. Rec. 9 and Art. 1(2)(b) of the amended PWD.
108 European Labour Law Journal 10(2)

employees, as is the case for certain consumer protection Directives.33 It only determines which
minimum standards of the host state have to be ensured to all workers on its territory in certain
matters, without prescribing their content in any way or trying to harmonise the minimum stan-
dards at the EU level. Therefore, the PWD only aims at coordinating the applicable law.34 Among
other core working conditions, the PWD requires that posted workers are subject to the minimum
rates of pay (replaced by the term ‘remuneration’ as a result of the amendment) in the host country,
including overtime rates.35
As a result, the application of the minimum labour standards to posted workers in the host state
may, in current practice, easily lead to differences in treatment between posted workers and
national workers. Notably, posted workers might face differences in treatment in cases where the
minimum standards in the host state are either very low, too general (for example, no ‘sectorally’
differentiated minimum rate of pay is established through collective agreements), or there are not
many in place at all. As an illustration of the unequal treatment in terms of rates of pay, studies
have discovered that posted workers earn 10-50 per cent less than national employees.36 Unequal
treatment of posted workers may in particular occur in cases where the conditions for national
workers are better than both the minimum standards in the host state and the standards that apply to
the posted workers in their home state.37
In fact, the issues concerning the determination of the minimum rates of pay are twofold. In the
first place, the determination of the minimum rates of pay may differ from one state to another. The
CJEU has established that the task of defining what the constituent elements of the minimum wage
are, is a matter for the law of the Member State of the posting, but only in so far as that definition is
concerned.38 It has been submitted, however, that only a few national laws or collective agree-
ments provide for specific rules determining the elements of the minimum rates of pay due to

33. E.g. Directive 2011/83/EU of the European Parliament and of the Council of 25 Oct. 2011 on consumer rights,
amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and
repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council. – OJ L
304, 22 Nov. 2011, p. 64 ff; Directive 2008/48/EC of the European Parliament and of the Council of 23 Apr. 2008 on
credit agreements for consumers and repealing Council Directive 87/102/EEC. – OJ L 133, 22 May 2008, p. 66 ff.
34. It has been argued that the PWD is not truly a conflict-of-laws instrument as its Art. 3(1) by its wording imposes
obligations on host states, but leaves open which terms can be invoked if a posted worker sues in its home country – See
S. Evju, supra n. 7, at 90 and 98, who sees as a solution either an according legislative implementation by the home
state government or application of the domestic law by the home state courts in an EU conform way. In fact, Art. 3(1) of
the PWD is comparable to Art. 3(1) and (2) of Directive 2000/31/EC of the European Parliament and of the Council of
8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal
Market (Directive on electronic commerce). – OJ L 178, 17 July 2000, p. 1 ff, in that they impose certain obligations on
Member States rather than constituting a conflict-of-laws rule designed to resolve a specific conflict between several
laws. In that context, see also joined cases eDate Advertising and Martinez v. MGN Limited, C-509/09 and C-161/10,
EU: C:2011:685, 57 and 61.
35. Art. 3(1)(c) of the PWD. The concept of the minimum rates of pay in the sense of the PWD is to be distinguished from
the concept of national minimum wage.
36. Fondazione Giacomo Brodolini (FGB) and COWI., Study on wage setting systems and minimum rates of pay appli-
cable to posted workers in accordance with Directive 96/71/EC in a selected number of Member States and sectors, 19
(Publications Office of the European Union 2016), available at: https://publications.europa.eu/en/publication-detail/-/
publication/3ced3ff6-92c3-40e8-910f-d602416c0670/language-en.
37. See S. J. Trans. Service Provision and Migration: EU and WTO Service Trade Liberalization and their Impact on
Dutch and UK Immigration Rules 213 (Brill/Nijhoff 2017). See also Laval, supra n. 15, at 82-84.
38. See Isbir, C 522/12, EU: C:2013:711, 37; and Sähköalojen ammattiliitto, C-396/13, ECLI: EU: C:2015:86, 34.
Piir 109

posted workers.39 Although the PWD lays down that overtime rates as well as allowances specific
to the posting are included in the amount of the minimum rates of pay,40 it is rather unclear whether
and which additional elements can be included in its calculation.41 The CJEU has not coherently
clarified what the constituent elements of the minimum rates of pay are either.42 Currently, the
inconsistent wording of the PWD adds yet another layer to this confusion, given that its Article
3(1)(c) refers to the minimum rates of pay while a few paragraphs below, the ‘minimum wage’ is
regulated in its Article 3(7).
A second matter concerning the determination of the minimum rates of pay is their possible
classification using a variety of basis. The case law of the CJEU permits that posted workers’
minimum rates of pay be determined according to the employees’ classification, and their cate-
gorisation into pay groups, as long as the according rules are binding and transparent.43 Therefore,
the minimum rate of pay may be determined uniformly, or as sector-specific rates, if the scope of
application of the latter is transparent.44 However, even if the national law provides for such
classification systems, it is not always clear, whether these are expressly applicable to posted
workers.45
Thus, the PWD in its current wording does not prevent that the working conditions of national
workers might patently exceed those of posted workers. It has even been suggested that, in another
context, such differentiation could be seen as direct discrimination based on nationality.46 By
reopening the PWD, the European Commission clearly stated their ambition to achieve ‘equal
pay for equal work in the same place’.47 In that sense, the amended PWD states that the host states
will have to ensure that the workers who are posted to their territory are guaranteed, on the basis of
equality of treatment, the terms and conditions of employment covering, inter alia,
remuneration.48
One might ask whether the amendment will succeed in filling the loopholes of the current PWD
especially as far as equal treatment in terms of rates of pay is concerned. The amendment does
seem to be an improvement in so far as it is replacing the confusing and inconsistently used term as

39. See FGB and COWI., supra n. 36, at 16. It has been pointed out that there is confusion between the neighbouring
expressions of ‘minimum wage’ (national concept) and ‘minimum rates of pay’ (EU concept) which countries have a
tendency to consider as being equivalent.
40. See Art. 3(1)(c) and 3(7) of the PWD.
41. For an extensive review of its constituent elements in selected countries, see van Hoek, Houwerzijl, supra n. 4, at 61 ff.
See J.-P. Lhernould, B. Palli. Posted workers remuneration: Comparative study in nine EU countries and four sectors,
24(1) Maastricht Journal of European and Comparative Law 108, 110 and 126 (2017), who reproach that, in practice,
identifying the minimum rates is rather complex, mainly due to their various sources, and that most EU countries do not
have a clear and transparent definition of the minimum rates of pay.
42. See Sähköalojen ammattiliitto, supra n. 38; Commission v. Germany, C-341/02, EU: C:2005:220; Isbir, supra n. 38, for
classification of certain elements of pay as regarding the minimum wage. For critique of the judgements, see Lher-
nould, Palli, supra n. 41, at 111.
43. Case Sähköalojen ammattiliitto, supra n. 38, at 45.
44. M. Schlachter, (ed. R. Müller-Glöge, U. Preis et al.), Erfurter Kommentar zum Arbeitsrecht § 2 AEntG, n. 2 (C.H.Beck
16th ed. 2016).
45. For a profound analysis of different practices of selected states, see FGB and COWI., supra n. 36, at 98.
46. J.-P. Lhernould, B. Palli, Révision de la directive n 96/71/CE: much ado about nothing?, 7-8 Droit social 621, 621
(2016).
47. COM(2016) 128 final, supra n. 3, at p. 2.
48. Art. 1(2)(a) of the amended PWD.
110 European Labour Law Journal 10(2)

well as setting forth a defined list.49 In addition, the amendment seeks to establish that when
comparing the remuneration paid to the posted worker and the remuneration due in accordance
with laws and/or practices of the host Member State, the total gross amounts of remuneration
should be compared, rather than the individual constituent elements of remuneration which are
rendered mandatory as provided for in Article 3(1).50 Nevertheless, the amended Directive does
not seem to considerably enhance legal certainty on the whole. It has been argued that, while
seemingly helping to clear some interpretational problems, the proposal may lead to new problems
of interpretation.51 It therefore remains unclear to what extent the aim of equal pay will be
achieved. Even though the amendment does make a big step towards tackling the challenges of
determining the amount of remuneration due, it has on the other hand clearly emphasised that the
setting of wages is a matter for the Member States and the social partners alone,52 thus making it
possible that the actual salaries of hosted and local workers will not be equal in the strict sense.

Interaction of Rome I and the PWD

What is the legal nature of national rules transposing the Directive? For the safeguards stipulated in the
Directive to apply,53 corresponding transposing provisions need to be introduced in national laws.
Indeed, undertakings cannot be expected to know and respect the terms of employment referred to
in the Directive unless a national implementation measure of the host state clearly indicates the
labour law provisions which are mandatorily applicable also to posted workers. Therefore, the
Directive obliges the host Member States to indicate the core set of national employment terms
which have to be respected upon posting workers to their territory and which cannot be avoided via
a choice of law.
In order to explain the legal nature of these national implementation measures and the core set
of employment terms, let us first consider the definition of a somewhat similar PIL instrument of
overriding mandatory provisions. Notably, Article 9(1) of Rome I provides that overriding man-
datory provisions are provisions the respect for which is regarded as crucial by a country for
safeguarding its public interests, such as its political, social or economic organisation, to such
an extent that they are applicable to any situation falling within their scope, irrespective of the law
otherwise applicable to the contract under Rome I.54 In determining a provision’s internationally
mandatory nature, its wording is thus one intrinsic indication. In addition, the intention of the

49. The concept of remuneration shall be determined by the national law and/or practice of the Member State to whose
territory the worker is posted and means all the constituent elements of remuneration rendered mandatory by national
law, regulation or administrative provision, or by collective agreements or arbitration awards which, in that Member
State, have been declared universally applicable or otherwise apply in accordance with Article 3(8) – see Art. 1(2)(a) of
the amended PWD. See also Lhernould, Palli, supra n. 41, at 126.
50. See Rec. 18 to the amended PWD.
51. See Lhernould, Palli, supra n. 41, at 126, who state that the delicate balance of interests between posted workers and the
cross-border provision of services makes the scope of ‘remuneration’ uncertain, and claim that implementation
problems might be even more sensitive than they are now since the objective set in the Preamble of the proposal is to
ensure equal treatment in terms of remuneration, not only a minimum wage.
52. See Rec. 17 and Art. 1(2)(a) of the amended PWD.
53. See, for the terms and conditions, Art. 3(1) of the PWD and Art. 1(2) of the amended PWD.
54. For analysis of the concept of overriding mandatory provisions, see, e.g. R. Piir. Eingreiffen oder nicht eingreiffen, das
ist hier die Frage. Die Problematik der Bestimmung und des Anwendungbereichs der Eingriffsnormen im inter-
nationalen Privatrecht, XVII Juridica International 199, 200 ff (2010).
Piir 111

legislator to give a provision an overriding mandatory character also needs to be taken into
account. Thereat, the intention of the national legislator prevails, but its internationally mandatory
character may also be set at a European level.55 The core set of employment law terms stipulated in
the Directive are similar in a way that these are also applicable to any situation falling within their
scope, irrespective of which law applies to the employment relationship.
The interaction of the transposing national measures to Article 9 of Rome I and thus the basis of
application of the core set of employment law provisions nevertheless need further analysis. On the
one hand, it is defendable that the Directive could be applied already through the precedence rule
for Community law foreseen in Article 23 of Rome I.56 On the other hand, the core set of labour
conditions could be classified as overriding mandatory provisions in the sense of Article 9 of Rome
I.57
Support for the latter position can be found in the case law of the CJEU.58 Legal writing has also
predominantly considered the core set of working conditions as overriding mandatory provi-
sions.59 In particular, it has been argued that all the national provisions, which entail the core set
of labour law provisions as prescribed by the PWD, have acquired internationally mandatory
character, thus including rules such as, for example, minimum paid annual holidays, maximum
work periods and minimum rest periods, etc.
It appears highly contentious whether these provisions would, without the existence of the
PWD, fulfil the necessary prerequisites in order to consider them as overriding mandatory provi-
sions sensu stricto. Notably, it should be recalled that the simple mandatory rules must be dis-
tinguished from the internationally mandatory rules (overriding mandatory provisions in the sense
of Article 9 of Rome I).60 The latter are applied irrespective of the otherwise applicable law and
refer to provisions the respect for which is regarded as crucial by a country for safeguarding its
public interests. In the context of employment law, overriding mandatory provisions in the strict
sense of Article 9(1) of Rome I would therefore mainly entail various labour market policy

55. Staudinger, supra n. 24, art. 9 Rom I-VO, n. 12. However, merely a provision’s European origin does not always
determine its internationally mandatory character.
56. According to its Art. 23, Rome I does not prejudice the application of provisions of Community law that lay down
conflict-of-laws rules related to contractual obligations in relation to particular matters. It has been claimed that in
employment law, this precedence rule is applicable only as long as the PWD is concerned – see Riesenhuber, supra n.
27, at 129.
57. See, e.g. J. D. Lüttringhaus. Eingriffsnormen im Internationalen Unionsprivat- und Prozessrecht: Von Ingmar zu
Unamar, 2 IPRax 146, 148 (2014).
58. For example, the CJEU did not apply the precedence rule of Article 23 in cases Ingmar, C-381/98, EU: C:2000:605,
and Unamar, C-184/12, EU: C:2013:663. See also Lüttringhaus, Id. at 148. Similarily to the PWD, the Commercial
Agent’s Directive that was dealt with in Unamar does not entail explicit conflict-of-law norms, but obliges the Member
State to ensure the application of certain protections. Therefore, these could not be applied via Art. 23 of Rome I.
59. E.g. D. Martiny. Neuanfang in Europäischen Internationalen Vertragsrecht mit der Rom I-Verordnung, 4 ZEuP 747,
773 (2010); U. Magnus. J. von Staudingers Kommentar zum Bürgerlichen Gesetzbuch: Staudinger BGB - EGBGB/IPR
Einführungsgesetz zum Bürgerlichen Gesetzbuche/IPR. Einleitung zur Rom I-VO; Art 1-10 Rom I-VO (Internationales
Vertragsrecht 1) Art 8 Rom I-VO, n. 200 (Sellier - de Gruyter 2016); R. Callsen. Eingriffsnormen und Ordre public-
Vorbehalt im Internationalen Arbeitsrecht. Ein deutsch-französischer Vergleich 259 (Nomos 2015) considers the
minimum core working conditions as overriding mandatory provisions in the sense of Art. 9 of Rome I; U. Grušić. The
Territorial Scope of Employment Legislation and Choice of Law, 75(5) Modern L. Rev. 722-752, available at https://
onlinelibrary.wiley.com/doi/abs/10.1111/j.1468-2230.2012.00922.x, 39 (accessed 25 Nov. 2018) sees the PWD as an
implementation of Art. 9 of Rome I.
60. See Rec. 37, 2d sentence, of the Preamble to Rome I.
112 European Labour Law Journal 10(2)

provisions such as protection against dismissal of employee representatives, or pregnant women,

but also matters of health and safety at work.61 Conversely, national employee protection provi-
sions would represent the so-called simple mandatory rules that cannot be derogated from by
agreement, but that are in general not considered to have a universally mandatory character.62
These constitute provisions of general employment and contract law, which mainly protect the
weaker party, such as minimum paid annual leave, general protection against dismissal, general
principle of equal treatment, control of general terms and conditions etc.63 Therefore, the over-
riding character of these minimum labour standards derives directly from the European-origin
transposing provisions. Hence, the Directive is of pivotal importance in the sense that this is what
gives those provisions their internationally mandatory character.
Given that the Directive sets forth a list of terms and conditions that have to be guaranteed by
each Member State to workers posted to their territory, the transposing measures should be clearly
phrased so as to include an obligation to ensure application of the required standards as overriding
mandatory rules.64 In practice, the national transposing measures thus provide that as long as the
minimum standards are concerned, their overriding mandatory character must not be established
separately under Article 9(1) of Rome I.
In addition, it is noteworthy in this context that should a proviso go beyond the core set of labour
rules listed in the Directive, and not fall within the scope of overriding public interest either,
Member States should not be allowed to build on Article 9(2) of Rome I or the public policy
exception of the Directive65 in order to impose additional requirements to posted workers.66 The
CJEU has also stressed that falling back on Article 3(10) could be envisaged in truly exceptional
cases only and in order to preserve the effectiveness of the PWD.67

61. See Staudinger, supra n. 24, Art. 9 Rom I-VO, n. 15-16. See also Schlachter, supra n. 44, § 2AEntG, n. 2
62. See J. Kropholler. Internationales Privatrecht § 52 IX 1 (Tübingen 2006); Magnus, supra n. 27, at 41. See also H.-J.
Sonnenberger. Eingriffsrecht – Das trojanische Pferd im IPR oder notwendige Ergänzung?, 2 IPRax 104, 107 (2003).
63. See also Staudinger, supra n. 24, art. 9 Rom I-VO, n. 13; and P. Mankowski. Stillschweigende Rechtswahl,
Günstigkeitsvergleich und Anknüpfung von Kündigungsschutzrecht im Internationalen Arbeitsvertragsrecht, 4 IPRax
309, 317 (2015). It should nevertheless be stated that the question of considering as overriding mandatory rules also
those provisions where protection of the public interest is but a reflex of the primary purpose of protecting private
interests, is unsettled in the legal doctrine of the Member States. German courts and doctrine do not consider such
provisions as overriding mandatory (e.g. H. Tuengerthal, C. Andorfer. Ausschluss der Auswirkungen der §§ 9 Nr. 1 und
10 Abs. 1 Satz 1 AUG auf ausländische Arbeitsverträge bei Einsatz ausländischer Arbeitnehmer in Deutschland
aufgrund Art. 9 Rom-I, 6 EWS, 328, 332 (2016); Staudinger, supra n. 24, Art. 9 Rom I-VO, n. 12; whereas others, for
example, French, Italian, Belgian and British doctrine seem to have taken a broader approach, viewing the abuse of
weaker parties as a threat to civil society. For references, see, R. Piir, K. Sein. Law applicable to consumer contracts:
Interaction of the Rome I Regulation and EU-directive-based rules on conflicts of laws, 24 Juridica International, 63,
69-70, n. 51 and 52 (2016). In international employment law, one tool for the distinction would be to assess whether the
provision is targeted at the functioning of the labour market or whether it is directed against misuses of authority in
labour relations. The former would constitute an overriding mandatory provision whereas in most cases probably not
the latter – see also Grušić, supra n. 59, at 43.
64. See, for example, Estonian Posted Workers Act § 5, German Arbeitnehmer-Entsendegesetz § 2, French Code du travail
Art. L. 1261 -1 ff, that explicitly require mandatory application. See also Callsen, supra n. 59, at 138 and 175.
65. See Art. 3(10) of the PWD and Art. 1(2)(e) of the amended PWD.
66. For more, see Merrett, supra n. 12, at 232.
67. See Laval, supra n. 15; Rüffert, C 346/06, EU: C:2008:189; Commission v. Luxembourg, C-319/06, EU: C:2008:350. In
para. 30 of the latter, the CJEU underlined that the scope of Art. 3(10) of the PWD cannot be determined unilaterally by
the Member States and the exception must be interpreted strictly.
Piir 113

Relations between the Directive and Articles 8 and 9 of Rome I. As long as matters falling outside these
minimum core working conditions are concerned, it therefore remains up to the general rules of
Rome I to determine the law applicable to the employment contract. In light of the foregoing,
applying Article 8 of Rome I would, objectively speaking, usually lead to the law of the home state
(the sending state). Consequently, the employment contract is, under objective criteria, regulated
by the law of the home state even when the worker is temporarily posted abroad, or in case of a
chosen law, by the law chosen to regulate the contract. In addition to that law, the minimum core
working conditions of the host state would seek application.68
In the context of posted workers, the practical importance of determining the relations between
the directive and Rome I stems from the fact that according to legal doctrine, overriding mandatory
provisions, in the sense of Article 9(1) of Rome I, shall be applied without comparing which
provision would be more beneficial to the employee,69 whereas the Directive clearly implements
the favour principle.70 Namely, the wording of the Directive brings us clearly to the conclusion that
although the Directive lays down minimum conditions which must mandatorily be observed, these
conditions are nevertheless not aimed at precluding the application of a more favourable provision
that might have otherwise been applicable under the objectively applicable law or the chosen
law.71
One might therefore ask how to approach a situation where a national proviso that entails the
core working conditions of the Directive could simultaneously also represent an overriding man-
datory provision in the strict sense of Article 9(1) of Rome I. This is the case, for instance, with the
requirement to guarantee posted workers the host state’s terms and conditions covering health,
safety and hygiene at work.72
This paper concluded above that the core labour standards as set forth by the Directive should
allow for a comparison with the law objectively applicable under Article 8(2) of Rome I in order to
determine the more favourable provisions for the employee. However, this could not be the case
with the ‘true’ overriding mandatory provisions, such as occupational health and safety conditions,
as these do not enable a preferential approach. It is plausible that national provisions transposing
the core set of working conditions explicitly prohibit the preferential approach.73 That is, they aim

68. It is interesting to note that although the CJEU could have had occasion to explicate the reciprocal interaction of the
Directive and the law applicable to individual employments contracts under Rome I, it has not gone into the issue. For
example, the CJEU pointed out in Sähköalojen ammattiliitto, supra n. 38, at 23, that, according to the second sub-
paragraph of Art. 3(1) of the PWD, questions concerning ‘minimum rates of pay’ within the meaning of the PWD are
governed, whatever the law applicable to the employment relationship, by the law of the Member State to whose
territory the workers are posted in order to carry out their work. Nevertheless, the judgement contains no reference to
Rome I. For criticism, see H-P. Mansel, K. Thorn, R. Wagner. Europäisches Kollisionsrecht 2015: Neubesinnung, 1
IPRax 1, 30 (2016), who consider the judgement extremely concise in its dogmatic conclusions.
69. Magnus, supra n. 59, art. 8 Rom I-VO, n. 209.
70. See Art. 3(7) of the PWD and Art. 1(2)(c) of the amended PWD. For analysis of implementation of the favour principle,
see supra 3.3.
71. See Art. 3(7) of the PWD and Art. 1(2)(c) of the amended PWD. See also Magnus, supra n. 59, Art. 9 Rom I-VO, n.
209.
72. Art. 3(1)(e) of the PWD. See supra 3.1; see also Schlachter, supra n. 44, § 2 AEntG, n. 2.
73. For instance, the Estonian transposing measure of the directive also expressly precludes the favour approach and
regulates that the national Occupational Health and Safety Act shall be applied to a posted employee even when it is
less favourable to the posted employee than the provisions of a foreign law – see Working Conditions of Employees
Posted to Estonia Act, § 5(2), in English available at: https://www.riigiteataja.ee/en/eli/ee/513072017009/consolide/
current (accessed 25 Nov. 2018).
114 European Labour Law Journal 10(2)

to apply to the employment contract regardless of the interests of the employees. The basis for such
differentiation lies in the fact that these provisions can also be regarded as overriding mandatory
provisions in the strict sense of Article 9(1) of Rome I. This, in turn, substantiates their imposition
and the nonapplication of the favour principle.

Rationale of applying the favour principle to posted workers. In light of the above, the favour principle
claims application only as long as it is not dealing with overriding mandatory provisions in the
strict sense of Article 9(1) of Rome I. It however comes into play when provisions which have
acquired internationally mandatory character due to the Directive are concerned. Otherwise,
postings to certain countries would in practice be excluded. For example, this would affect postings
to countries where the minimum rate of pay or remuneration is lower than in the home state. Given
that only a third of postings are from low-wage to high-wage countries, while one-third are
between high-wage countries,74 a reverse approach could thus jeopardise the effectiveness of
postings.
While application of the preferential approach of Article 8(1) of Rome I presupposes a choice
of law clause,75 the Directive, on the other hand, sets forth that the listed core set of conditions
shall not prevent the application of terms and conditions of employment which are more favour-
able to workers. Subsequently, the national judge will have to apply the provisions more favour-
able to the posted worker irrespective of the existence of a choice of law clause. As has been
noted above, this constitutes a difference from the overriding mandatory provisions in the
context of Article 9(1) of Rome I, which break the applicable law altogether and do not allow
for a comparison to be made.
Applying the preferential approach in cases dealing with posted workers should not
patently differ from its application to other conflict-of-law cases involving the need to apply
the more favourable law principle. In short, this means that the national judge should deter-
mine the standard of protection ensured by the national implementation measures of the host
state and apply these, if appropriate. However, this does not presuppose an abstract compar-
ison of the provisions. Rather, a group comparison of interrelated provisions should be
conducted. In practice, the national judge should therefore take account of disputed issues
and the applicant’s claim (ne ultra petita), instead of trying to distinguish the content of
individual protective provisions.76
We can thus conclude for the hypothetical case that the employee would not be entitled to
claim daily allowances in addition to the minimum pay as laid down in Finnish collective
agreements. In particular, Section 5, para. 4 of Finnish Act 447/2016 on Posting Workers, in
accordance with the PWD, explicitly provides that allowances specific to the posting, which
do not involve expenditures actually incurred on account of the posting, are considered to be

74. Impact assessment accompanying the Proposal for a Directive, 8 Mar. 2016 SWD(2016) 52 final, 34, Figure 5.
75. 2d sentence Art. 8(1) of Rome I sets forth that a choice of law may not have the result of depriving the employee of the
protection afforded to him by provisions that cannot be derogated from by agreement under the law that, in the absence
of choice, would have been applicable; see also Rec. 35 of the Preamble to Rome I. For more on the preferential
approach and the choice of law clause, see, e.g. Mankowski, supra n. 63, at 311-312.
76. See Mankowski, Id.; Staudinger, supra n. 24, Art. 8 Rom I-VO, n. 13. For instance, this approach has also found
application in Estonian case law – see Tartu Circuit Court Judgement of 22 Oct. 2014, no. 2-13-30411, p. 11.2, where it
was stated that it is not the social guarantees of each concerned state that have to be compared; instead, the strength of
the regulatory protection applicable to the legal situation at hand have to be measured.
Piir 115

part of the minimum rates of pay. For reasons advanced earlier in this paper in respect to
determining the elements of minimum rates due, the courts would thus have to take into
account the Finnish conception of the constituent elements of the minimum wage instead of
applying Estonian law to the notion.77

Conclusions
This paper has discussed the interface between the Directive concerning the posting of workers and
Rome I. It indicated the continuous need, in addition to Rome I, for an instrument which takes into
account the specificities of postings. The analysis of the various safeguards to posted workers as
well as their key problems led to the conclusion that the amended PWD does seem to tackle some
uncertainties raised under the current regime. However, as the setting of the elements of remunera-
tion is a matter for the Member States, the ambition of ‘equal pay for equal work in the same place’
in the strict sense might remain unattainable. Regarding the hypothetical case, it was concluded
that, for reasons advanced on determining the constituent elements of remuneration, an employee
would not be entitled to claim daily allowances under Estonian law simultaneously and in addition
to the Finnish minimum rates of pay.
It was also submitted that the majority of the national employee protection provisions would
not, as such, fill the prerequisites of determining them as overriding mandatory provisions in the
sense of Article 9(1) of Rome I. The Directive, together with its national transposing measures, is
therefore the source of the mandatory character of these labour conditions in situations of postings.
In addition, it was pointed out that, unlike the ‘true’ overriding mandatory provisions in the sense
of Article 9(1) of Rome I, the majority of the core set of working conditions do not preclude a
preferential approach. Therefore, they generally allow for the determination and application of the
more favourable provisions to posted workers. Nevertheless, provisions which simultaneously
represent overriding mandatory provisions in the strict sense of Article 9(1) of Rome I, such as
occupational health and safety conditions, do not enable the application of the favour principle.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or
publication of this article.

Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iD
Ragne Piir https://orcid.org/0000-0002-3879-3312

77. It is interesting to note that the Estonian Supreme Court, in its decision of 5 Mar. 2014, no. 3-2-1-187-13, reached a
reverse conclusion. In addition to the Finnish rates of pay, the court applied Estonian perception of daily posting
allowances, thus enabling the employee to claim the Finnish minimum wages together with the daily posting allow-
ances the employee received supplementarily to the Estonian wages. Notably, the Court stated that Finnish law
concerning the daily allowances, notwithstanding its consistency with the second sentence of Art. 3(7) of the PWD, was
not applicable under Art. 6(2) of the Rome Convention (Convention on the law applicable to contractual obligations of
June 1980. The consolidated text of the convention is found in OJ C 334, 30 Dec. 2005, p. 1 ff.).