E2000P0008

Request for an Advisory Opinion from the EFTA Court by Arbeidsretten (The Labour Court of Norway) of 27 September 2000 in the case of Landsorganisasjonen i Norge (Norwegian Federation of Trade Unions), with Norsk Kommuneforbund (Norwegian Union of Municipal Employees) v Kommunenes Sentralforbund (Norwegian Association of Local and Regional Authorities) and Others

(Case E-8/00)

(2001/C 49/14)

A request has been made to the EFTA Court by Arbeidsretten (The Labour Court of Norway), which was received at the Court Registry on 2 October 2000, for an Advisory Opinion in the case of Landsorganisasjonen i Norge (Norwegian Federation of Trade Unions), with Norsk Kommuneforbund (Norwegian Union of Municipal Employees) v Kommunenes Sentralforbund (Norwegian Association of Local and Regional Authorities) and Others, on the following questions:

Scope of application of Article 53 of the EEA Agreement

1(a) Does a collective agreement generally entail binding legal effects mutually between the participating members on the employer side which can be regarded as an "agreement between undertakings" under Article 53 of the EEA Agreement?

1(b) If an employer organisation concludes a collective agreement, is this a "decision by an association of undertakings" under Article 53 of the EEA Agreement?

1(c) Is a municipality an "undertaking" under Article 53 of the EEA Agreement when, in its capacity as employer, it becomes bound by a collective agreement without being a party thereto?

2(a) Can a collective agreement provision which has objectives other than to improve salary and working conditions come within the scope of Article 53 of the EEA Agreement?

2(b) If question 2(a) is answered in the affirmative, which conditions must then be met?

3. Do collective agreement provisions on group occupational pension schemes, such as the provisions in clause 2.1.8, second, third and fourth paragraphs of the Basic Collective Agreement for municipalities, etc., for the period 1998-2000 fall within the scope of application of Article 53 of the EEA Agreement?

Prohibition in Article 53 of the EEA Agreement

4. Is it compatible with Article 53 of the EEA Agreement for a collective agreement condition to require that a group occupational pension scheme be based on a gender-neutral financing system which can only be satisfied by one supplier?

5(a) Is it compatible with Article 53 of the EEA Agreement for a collective agreement provision to provide that an offer concerning occupational pension schemes made by an insurance company to an employer must be approved by representatives for the parties to a collective agreement?

5(b) If question 5(a) is answered in the affirmative, will the assessment be otherwise if approval can only take place through unanimity amongst the parties?

6. Is it compatible with Article 53 of the EEA Agreement for a collective agreement provision to provide that it is a condition for transfer of an occupational pension scheme that the new insurance product must have been tacitly or expressly accepted by a public body?

7(a) Is it compatible with Article 53 of the EEA Agreement for collective agreement provisions to provide that a change of supplier of an occupational pension scheme is subject to the condition that the employer, before a decision on change can be made, must have entered into a separate agreement on mutual transfer of pension schemes through approval by the public body which administers the transfer scheme?

7(b) If question 7(a) is answered in the affirmative, will the assessment be otherwise if inclusion in the transfer agreements cannot take place before a decision on change has been made?

8. Can the sum of provisions in a collective agreement, such as the provisions in clause 2.1.8, second, third and fourth paragraphs of the Basic Collective Agreement for municipalities, etc., for the period 1998-2000, be held to be contrary to Article 53 of the EEA Agreement even though none of the provisions, viewed in isolation, come under the prohibition therein?

Interpretation of Article 54 of the EEA Agreement

9. Can an association of municipalities which is an interest and an employer organisation, such as the Norwegian Association of Local and Regional Authorities, be regarded as an "undertaking" under Article 54 of the EEA Agreement in the negotiation of collective agreements?

10. Can an undertaking, assuming that it has a "dominant position", conclude an agreement for or practise conditions for change of supplier of occupational pension schemes such as those laid down in clause 2.1.8, second, third and fourth paragraphs of the Basic Collective Agreement for municipalities, etc., for the period 1998-2000, regardless of Article 54 of the EEA Agreement?