3.3.2 The case’s significance for Union law

99. The Court of Justice states that Article 56 TFEU concerns a specific expression of the prohibition of discrimination on grounds of nationality in the realm of the freedom to provide services, so that the general prohibition laid down in Article 18 TFEU is not applicable.1 The Court rules that Article 56 TFEU precludes Member States from subjecting foreign private parties2 providing services to conditions that are more restrictive than those that apply to private parties established in the host country.3 Union law does, however, not preclude Member States from imposing restrictive conditions4 to any person providing services within their territory – irrespective of their nationality and regardless of the country in which their employer is established.5 Union law allows such restrictions to the freedom to provide services as long as the conditions or rules are appropriate for securing the attainment of the aim which they pursue and do not go beyond what is necessary in order to attain that aim.6

100. As the case falls within the scope of the Posted Workers Directive the case must be examined with regard to 1) the provisions of the Directive in the light of Article 56 TFEU and, where appropriate, with regard to 2) Article 56 TFEU.7 The Court concludes that the Directive, which is an instrument of minimum harmonisation, does not give complete solace, since Sweden has not regulated minimum rates of pay in accordance with one of the means provided in the Directive. In addition, the rates of pay sought by the trade unions, do not concern minimum rates.8 According to the Court, Laval’s obligations stemming from the Swedish tradition concerning the determination of wages should be assessed primarily in the light of Article 56 TFEU.9

101. As regards the terms and conditions concerning matters other than the determination of wages, the Swedish collective agreement for the building sector concerned terms and conditions more favourable than those provided for in Article 3(1)(subparagraphs a to g) of the Posted Workers Directive. Although more favourable terms and conditions are allowed, the Directive cannot, however, be interpreted as allowing the host Member State to make the provision of services in its territory conditional on the observance of terms and conditions of employment that go beyond the mandatory rules for minimum protection. As a result, the level of protection that must be guaranteed to workers posted to the territory of the host Member State is limited to the minimum protection provided for in Article 3(1)(subparagraphs a to g) of the Directive. There are only two exceptions to this rule: 1) the undertaking voluntarily agrees to the terms of a collective agreement in the host Member State, or 2) on the basis of legislation or collective agreements in the Member State of origin, the workers already enjoy more favourable terms and conditions for employment in respect of the matters referred to in that provision.10 These exceptions are not applicable to the case of Laval. The Court concludes in this context that the collective actions should be assessed from the point of view of Article 56 TFEU.11