With the judgment of 14 October 2020, the Court of Justice of the European Union was called to decide on the interpretation of Article 5(5) of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work EU law, a key regulatory framework for flexible employment in Europe.
In Article 2 we read: “The purpose of this Directive is to ensure the protection of temporary agency workers and to improve the quality of temporary agency work:
- by ensuring that the principle of equal treatment temporary agency workers, as set out in Article 5, is applied to temporary agency workers;
- and by recognising temporary-work agencies as employers, while taking into account the need to establish a suitable framework for the use of temporary agency work with a view to contributing effectively to the creation of jobs and to the development of flexible forms of working.”
The legal action’s aim
The appellant in Case C-681/2018 was an employee hired by a temporary-work agency: he was assigned, as a temporary agency worker, to the user undertaking between 3 March 2014 and 30 November 2016 by means of several successive temporary agency contracts (8 in total) and various extensions (17 in total).
Specifically, the worker brought an action before the referring court, the Tribunale Ordinario di Brescia (District Court, Brescia, Italy); he sought a declaration that there was a permanent employment relationship between him and the user, owing to the unlawful use of successive and uninterrupted assignments between March 2014 and November 2016 by virtue of illegitimacy, invalidity and nullity of the temporary agency contracts.
Temporary agency work and a contract of indefinite duration
In support of his appeal, the worker argued that the national provisions on temporary agency work are contrary to Directive 2008/104 as they do not place any limits on successive assignments of workers to the same user, a core issue within temporary agency work EU law.
The appellant cited:
- Article 5(5) of Directive 2008/104/EC, which specifies: “Member States shall take appropriate measures, in accordance with national law and/or practice, with a view to preventing misuse in the application of this Article and, in particular, to preventing successive assignments designed to circumvent the provisions of this Directive. They shall inform the Commission about such measures”;
- and recital 15 of the directive, which establishes that, in general, employment relationships should take the form of a contract of indefinite duration.
The Tribunale Ordinario di Brescia decided to stay the proceeding, considering that national legislation is at odds with Directive 2008/104. In fact, it does not provide for any judicial review of the reasons for having recourse to temporary agency work and places no limits on successive temporary agency assignments of the same worker to the same user undertaking.
The European legislation
The Court of Justice of the European Union, following an in-depth analysis of European legislation, specified that the purpose of the directive is to ensure the protection of temporary agency workers and to improve the quality of temporary agency work:
- by ensuring that the principle of equal treatment temporary agency workers is applied;
- by recognising temporary-work agencies as employers.
All this while taking into account the need to establish a suitable framework for the use of temporary agency work, contributing effectively to the creation of jobs and to the development of flexible forms of working.
The Court reiterated that Directive 2008/104 requires Member States to adopt appropriate measures, in accordance with national law and/or practice, with a view to preventing misuse in the application of Article 5 and, in particular, to preventing successive temporary agency assignments designed to circumvent the provisions of the directive. However:
- it does not define any specific measure which the Member States should take for that purpose;
- it does not require Member States to limit the number of successive assignments of the same worker to the same user undertaking;
- nor does it require the use of temporary agency work to be justified by technical, production, organisational or replacement-related reasons.
The judge’s task
Therefore, according to the Court, it is up to the judge to assess whether the employment relationship circumvents the objectives of Directive 2008/104, in the absence of an express provision in national law.
To facilitate this assessment, the Court underlined that if successive assignments of the same temporary agency worker to the same user undertaking result in a period of service longer than what can reasonably be regarded as temporary, this could be indicative of misuse under Directive 2008/104 interpretation.
Such use of temporary agency contracts could undermine the balance struck by the directive between flexibility for employers and security for workers, thus constituting a misuse of that form of employment relationship and affecting EU employment law temporary work principles.
How to interpret the Directive
Furthermore, the Court stated that Article 5(5) of Directive 2008/104 must be interpreted as not precluding national legislation which:
- does not limit the number of successive assignments that the same temporary agency worker may carry out at the same user undertaking;
- and does not make the lawfulness of the use of temporary agency work subject to the prerequisite that it must be justified by technical, production, organisational or replacement-related reasons.
On the other hand, the same provision must be interpreted as:
- precluding a Member State from taking no measures at all to preserve the temporary nature of temporary agency work;
- and precluding national legislation that does not lay down any measure to prevent successive temporary agency assignments aimed at circumventing the provisions of Directive 2008/104 as a whole.
