ALB FILS KLINIKEN (Social policy - Temporary agency work - Definition of 'temporary assignment' - Judgment) [2023] EUECJ C-427/21 (22 June 2023)

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(Reference for a preliminary ruling – Social policy – Temporary agency work – Directive 2008/104/EC – Article 1 – Scope – Definition of ‘temporary assignment’ – Transfer of functions performed by a worker, from the latter’s employer to a third-party undertaking – Permanent assignment of that worker while maintaining the latter’s initial contract of employment)

REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesarbeitsgericht (Federal Labour Court, Germany), made by decision of 16 June 2021, received at the Court on 14 July 2021, in the proceedings

composed of P.G. Xuereb, President of the Chamber, A. Kumin (Rapporteur) and I. Ziemele, Judges,

– the European Commission, by B.‑R. Killmann and D. Recchia, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 This request for a preliminary ruling concerns the interpretation of Article 1(1) and (2) of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work (OJ 2008 L 327, p. 9).

2 The request has been made in proceedings between LD, a worker, and ALB FILS Kliniken GmbH, the former employer of LD, concerning the latter’s obligation to perform his employment duties, on a permanent basis, for A Service GmbH (‘Company A’) following the transfer to that company of the duties that LD performed for ALB FILS Kliniken.

‘(11) Temporary agency work meets not only undertakings’ needs for flexibility but also the need of employees to reconcile their working and private lives. It thus contributes to job creation and to participation and integration in the labour market.

(15) Employment contracts of an indefinite duration are the general form of employment relationship. In the case of workers who have a permanent contract with their temporary-work agency, and in view of the special protection such a contract offers, provision should be made to permit exemptions from the rules applicable in the user undertaking.’

‘(1) This Directive applies to workers with a contract of employment or employment relationship with a temporary-work agency who are assigned to user undertakings to work temporarily under their supervision and direction.

(2) This Directive applies to public and private undertakings which are temporary-work agencies or user undertakings engaged in economic activities whether or not they are operating for gain.

‘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, 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.’

6 Article 3 of that directive, entitled ‘Definitions’, provides in paragraph 1 thereof:

(b) “temporary-work agency” means any natural or legal person who, in compliance with national law, concludes contracts of employment or employment relationships with temporary agency workers in order to assign them to user undertakings to work there temporarily under their supervision and direction;

(c) “temporary agency worker” means a worker with a contract of employment or an employment relationship with a temporary-work agency with a view to being assigned to a user undertaking to work temporarily under its supervision and direction;

(d) “user undertaking” means any natural or legal person for whom and under the supervision and direction of whom a temporary agency worker works temporarily;

(e) “assignment” means the period during which the temporary agency worker is placed at the user undertaking to work temporarily under its supervision and direction;

7 Article 5 of Directive 2008/104, entitled ‘The principle of equal treatment’, provides in paragraphs 1 and 5 thereof:

‘(1) The basic working and employment conditions of temporary agency workers shall be, for the duration of their assignment at a user undertaking, at least those that would apply if they had been recruited directly by that undertaking to occupy the same job.

(5) 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. …’

8 Article 6 of that directive, entitled ‘Access to employment, collective facilities and vocational training’, provides, in paragraphs 1 and 2 thereof:

‘(1) Temporary agency workers shall be informed of any vacant posts in the user undertaking to give them the same opportunity as other workers in that undertaking to find permanent employment. …

(2) Member States shall take any action required to ensure that any clauses prohibiting or having the effect of preventing the conclusion of a contract of employment or an employment relationship between the user undertaking and the temporary agency worker after his assignment are null and void or may be declared null and void.

9 Under Paragraph 1 of the Gesetz zur Regelung der Arbeitnehmerüberlassung (Law regulating temporary agency work) of 7 August 1972 (BGBl. 1972 I, p. 1393), in the version published on 3 February 1995 (BGBl. 1995 I, p. 158), last amended by the Gesetz zur befristeten krisenbedingten Verbesserung der Regelungen für das Kurzarbeitergeld (Law on the temporary improvement, on account of the crisis, of the rules on partial unemployment allowance) of 13 March 2020 (BGBl. 2020 I, p. 493) (‘the AÜG’), entitled ‘Assignment of workers, authorisation requirement’:

‘1 Employers that, as temporary work agencies, seek, in the context of their economic activity, to assign workers (temporary agency workers) to third-party undertakings (user undertakings) for the performance of work, shall have the appropriate authorisation. Workers may be assigned with a view to the performance of work when they are part of the work organisation of the user undertaking and under the authority of the latter. … The assignment of workers may be authorised temporarily up to a maximum period fixed in Paragraph 1b. …

1b. The temporary-work agency may not assign the same worker to the same user undertaking for more than 18 consecutive months; the user undertaking may not employ the same temporary agency worker for longer than 18 consecutive months. …

2b) between employers, where the functions of a worker are transferred from the current employer to another employer and where, pursuant to a public sector collective agreement,

(a) the employment relationship with the current employer continues to exist and

10 Paragraph 9 of the AÜG, entitled ‘Invalidity’, provides in subparagraph 1 thereof:

1b) employment contracts between temporary work agencies and temporary agency workers which exceed the maximum permissible assignment period laid down in Paragraph 1(1b), unless the temporary agency worker informs the temporary-work agency or the user undertaking in writing, no later than one month after the maximum permissible assignment period has been exceeded, that he is maintaining his employment contract with the temporary-work agency,

11 Paragraph 10 of the AÜG, entitled ‘Legal consequences of invalidity’, states in subparagraph 1 thereof:

‘Where the contract concluded between a temporary-work agency and a temporary agency worker is invalid under Paragraph 9, an employment relationship between the user undertaking and the temporary agency worker shall be deemed to have come into being on the date of commencement of employment agreed between the user undertaking and the temporary-work agency; … The working hours deemed to have been agreed upon in the context of the employment relationship pursuant to the first sentence shall be those provided for between the temporary-work agency and the user undertaking. As to the remainder, the content and duration of that employment relationship shall be determined pursuant to the provisions and other rules applicable to the user undertaking; in the absence of such provisions and rules, those governing similar undertakings shall apply. The remuneration due to the temporary worker by the user undertaking shall, at a minimum, be equal to that agreed with the temporary-work agency.’

12 Under Paragraph 613a of the Bürgerliches Gesetzbuch (Civil Code; ‘the BGB’), entitled ‘Rights and obligations in the event of transfer of undertakings’:

‘(1) If a business or part of a business passes to another owner by legal transaction, then the latter succeeds to the rights and duties under the employment relationships existing at the time of transfer. …

(6) Workers may object in writing to the transfer of their employment relationships within one month of receipt of the notification under subparagraph 5. Objections may lie against the former employer or the new owner.’

13 Paragraph 4 of the Tarifvertrag für den öffentlichen Dienst im Bereich der Vereinigung der kommunalen Arbeitgeberverbände (collective agreement for the public service – Federation of Local Authority Employer Associations sector) of 13 September 2015 (‘the TVöD’), entitled ‘Transfer, secondment, temporary assignment, supply of staff’ provides, in subparagraph 3 thereof:

‘Where the duties of employees are assigned to a third party, the contractually agreed work shall be performed for the third party at the employer’s request while the existing employment relationship continues (supply of staff). Paragraph 613a of the BGB and the rights relating to termination provided by law are not affected.

Supply of staff shall – while the existing employment relationship continues – involve permanent employment with a third party undertaking or body. …’

14 In so far as it provides a separate definition of the constituent parts of the supply of staff by social partners, the explanatory notes to Paragraph 4(3) of the TVöD are an integral part thereof and are, accordingly, of a legislative nature.

The dispute in the main proceedings and the questions referred for a preliminary ruling

15 LD, a natural person, entered into a contract of employment, in April 2000, with ALB FILS Kliniken, a company governed by private law, which operates a clinic and the sole shareholder of which is a legal person governed by public law, the TVöD being applicable to the employment relationship resulting therefrom.

16 In June 2018, ALB FILS Kliniken transferred the ‘Mail Room’, ‘Archives’ and ‘Library’ departments, together with the duties performed by LD in those departments, to Company A (‘the transfer at issue in the main proceedings’). This company is a wholly owned subsidiary of ALB FILS Kliniken.

17 As is apparent from the request for a preliminary ruling, a consequence of the transfer at issue in the main proceedings was that the employment relationship between LD and ALB FILS Kliniken was transferred to Company A. However, in accordance with Paragraph 613a(6) of the BGB, LD exercised his right to object to the transfer of that employment relationship, with the result that the latter was maintained with ALB FILS Kliniken, including in so far as concerns the working conditions and the contractual terms in force prior to that transfer.

18 Nevertheless, LD was required to perform work for Company A which had, in that context, provided him with technical and organisational instructions. Pursuant to Paragraph 4(3) of the TVöD, first, ALB FILS had the right to assign LD permanently to Company A and, second, the latter had the right to issue instructions to LD.

19 LD takes the view that the national legislation at issue in the main proceedings is contrary to EU law and, in particular, to Directive 2008/104, in so far as that national legislation permits the permanent assignment of workers. Accordingly, he brought an action seeking a declaration that, in spite of the transfer at issue in the main proceedings, he was not required to perform work on a permanent basis for Company A.

20 Following the dismissal of that action at first and second instance, LD brought an appeal on a point of law (Revision) before the referring court, namely the Bundesarbeitsgericht (Federal Labour Court, Germany).

21 In the first place, that court points out that the outcome of the dispute in the main proceedings is contingent on whether the assignment of LD to Company A, made pursuant to Paragraph 4(3) of the TVöD, falls within the scope of Directive 2008/104.

22 Since the supply of staff under Paragraph 4(3) of the TVöD presupposes the existence of an employment relationship between the employer concerned and the worker assigned to the third-party undertaking and that that worker is subject to the managerial authority of the latter undertaking, the referring court considers that it could be accepted that that employment relationship should operate under the ‘supervision’ and ‘direction’ of that third-party undertaking, within the meaning of Article 1(1) of Directive 2008/104.

23 Nonetheless, the referring court considers that, on account of its specificities and its objective, which consists in ensuring the content and continuation of the employment relationship of the worker concerned by a permanent transfer of his duties, a supply of staff, within the meaning of Paragraph 4(3) of the TVöD, differs so significantly from the model of temporary agency work covered by Directive 2008/104 that such an assignment does not fall within the scope of that directive.

24 That court observes that a supply of staff, within the meaning of Paragraph4(3) of the TVöD, concerns the permanent transfer of duties performed by a worker, initially employed in order to carry out tasks specifically for his or her employer or for a third party, which transfer is made in order to ensure the protection and security of that worker, whose duties have permanently ceased to exist within that employer’s undertaking or organisation, by avoiding the risk of loss of employment or a change of employer.

25 Moreover, the referring court entertains doubts, in the light of the case-law resulting from the judgment of the 17 November 2016, Betriebsrat der Ruhrlandklinik (C‑216/15, EU:C:2016:883), as to whether such a supply of staff constitutes an activity on the part of the employer consisting in offering goods or services on a given market and, consequently, an ‘economic activity’ within the meaning of Article 1(2) of Directive 2008/104.

26 In the second place, should the Court decide that a situation such as that at issue in the main proceedings does fall within the scope of Directive 2008/104, the referring court wishes to ascertain whether the fact that Paragraph 1(3)(2b) of the AÜG, namely the German legislation passed with a view to transposing that directive, excludes the supply of staff, within the meaning of Paragraph4(3) of the TVöD, from the scope of the AÜG, with the result that the protection provisions contained in the latter are not applicable, is, having regard to the aim of such an assignment – which is to retain the job of, and maintain the employment relationship with, the worker concerned – in conformity with the protection objective pursued by that directive.

27 According to that court, such an exclusion has been laid down by the AÜG since the supply of staff pursuant to national law is a particular form of transfer of duties which takes place in the interests of protecting the rights acquired by the worker concerned by such a transfer, since the same working conditions as before remain in force and the risks inherent in temporary work are non-existent, with the result that any risk of abuse to the detriment of the worker is precluded. Furthermore, the application of the protection rules contained in the AÜG to such a supply of staff could be contrary to the interests of that worker and, in particular, to his or her interest in maintaining the employment relationship with his or her employer since, pursuant to Paragraph 9(1)(1b) and Paragraph 10(1) of the AÜG, an employment relationship may come into being between the same worker and the third party to which the duties performed by that worker are transferred.

28 Moreover, the interests on which the aims of the protective provisions are based – namely, on the one hand, the interests of temporary agency workers under Directive 2008/104 and, on the other hand, the interests of workers concerned by a supply of staff, within the meaning of Paragraph 4(3) of the TVöD – do not overlap, according to the referring court, since the provisions of the directive are intended to establish a protective, non-discriminatory framework for temporary agency workers, whereas the aim of Paragraph 4(3) is to maintain the employment relationship between workers concerned by the transfer of their duties and their employer.

29 In those circumstances, the Bundesarbeitsgericht (Federal Labour Court) decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Do Articles 1(1) and (2) of Directive [2008/104] apply if – as specified in Paragraph 4(3) of the [TVöD] – an employee’s duties are assigned to a third party and this employee must, at the request of his or her current employer while the existing employment relationship with the latter continues, perform his or her contractually agreed work for said third party on a permanent basis and accept technical and organisational instructions from the third party?

Is it consistent with the protective purpose of Directive 2008/104 to exclude ‘supply of staff’ (Personalgestellung) within the meaning of Paragraph 4(3) of the TVöD from the scope of the national protective provisions for the assignment of workers, as point 2b of Paragraph 1(3) of [the AÜG] does, meaning that these protective provisions are not applicable to cases involving supply of staff?’

30 By letter of 13 August 2021, received at the Court on 19 August 2021 (‘the letter on the settlement agreement’), the referring court, first, informed the latter that the parties to the dispute in the main proceedings had reached a settlement agreement in another dispute between them, in the context of which they agreed that (i) LD would resign at the latest by 31 December 2021 in return for severance pay; (ii) until his resignation, he would be relieved of his duties while continuing to be paid his salary; and (iii) LD would have the right to terminate his employment contract unilaterally before that date.

31 The referring court stated, further, in the letter on the settlement agreement that, under German law, such an agreement had no direct impact on the procedure in the main proceedings, which would therefore continue. As regards his ‘legitimate interest in obtaining a declaration’ (Feststellungsinteresse), which is necessary in order for the application made by LD to be the subject of a decision on the merits, he indicated to the referring court that he wished to continue the proceedings concerned since the question of whether he had, in the past, performed his duties in accordance with the law, was a matter of interest to him.

32 By decision of the President of the Court of 9 September 2021, the request for a preliminary ruling was notified to the parties to the main proceedings and other interested parties.

33 As a preliminary point, regarding the admissibility of the request for a preliminary ruling, the referring court informed the Court that the parties to the main proceedings had reached a settlement agreement in other national proceedings, while also stating, first, that that agreement had no direct impact on the dispute in the main proceedings and, second, that LD had stated that he wished to continue the procedure in the main proceedings since the question whether he had, in the past, performed his duties in accordance with the law, was a matter of interest to him. Thus, according to the information provided by the referring court, the subject matter of the proceedings before it remains.

34 It should be noted that, according to settled case-law, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle required to give a ruling (judgment of 8 December 2022, Caisse régionale de Crédit mutuel de Loire-Atlantique et du Centre Ouest, C‑600/21, EU:C:2022:970, paragraph 23 and the case-law cited).

35 It follows that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to give a ruling on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to enable it to give a useful answer to the questions submitted to it (see judgments of 8 December 2022, Caisse régionale de Crédit mutuel de Loire-Atlantique et du Centre Ouest, C‑600/21, EU:C:2022:970, paragraph 24, and of 2 March 2023, Eurocostruzioni, C‑31/21, EU:C:2023:136, paragraph 28 and the case-law cited).

36 In the present case, it is apparent from the letter sent to the Court by the referring court, first, that the dispute in the main proceedings is still pending before that court and, second, that it is not clear that the problem described in the request for a preliminary ruling has become hypothetical, in so far as it cannot be ruled out that LD continues to have an interest in obtaining, in the context of that dispute, a decision on the lawfulness of the obligation to perform his work duties, on a permanent basis, for Company A. Consequently, the referring court will be led to take account, for the purposes of the decision which it is called upon to hand down in the present case, of the answers that the Court may give to the questions referred.

37 In those circumstances, the reference for a preliminary ruling is admissible.

38 By its first question, the referring court seeks to ascertain, in essence, whether Article 1(1) and (2) of Directive 2008/104, read in conjunction with Article 3(1)(b) to (e) thereof, must be interpreted as meaning that the directive applies to a situation in which, first, the duties performed by a worker are transferred definitively by his or her employer to a third-party undertaking and, second, that worker, whose employment relationship with that employer is maintained on account of the fact that that worker has exercised his or her right to object to the transfer of that employment relationship to that third-party undertaking, may be required, at the request of that employer, to perform, on a permanent basis, the work contractually due for that third-party undertaking and, in that context, be subject to the technical and organisational direction of the latter.

39 According to settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgment of 17 March 2022, Luso Temp, C‑426/20, EU:C:2022:373, paragraph 29 and the case-law cited).

40 In the first place, as regards the literal interpretation of Article 1 of Directive 2008/104, it should be observed that, under Article 1(1), that directive ‘applies to workers with a contract of employment or employment relationship with a temporary-work agency who are assigned to user undertakings to work temporarily under their supervision and direction’.

41 In that connection, first, it is apparent from the definitions of the concepts of ‘temporary-work agency’ and ‘temporary agency worker’, within the meaning of Article 3(1)(b) and (c) of Directive 2008/104, that such contracts of employment or employment relationships are concluded with workers in order to assign them to user undertakings.

42 Second, it is apparent both from the wording of Article 1(1) of Directive 2008/104 and from the definitions of those concepts together with the concepts of ‘user undertaking’ and ‘assignment’, within the meaning of Article 3(1)(d) and (e) of that directive, that the employment relationship with a user undertaking is, by its very nature, temporary (see, to that effect, judgment of 14 October 2020, KG (Successive assignments in the context of temporary agency work), C‑681/18, EU:C:2020:823, paragraph 61).

43 In those circumstances, it should be recalled that the term ‘temporarily’, set out in Article 1(1) of Directive 2008/104, is not intended to limit the application of temporary agency work to jobs which are not permanent or must be performed to provide cover, as that term characterises not the job which must be occupied at the user undertaking but the arrangements for the assignment of a worker to that undertaking. (see judgment of 17 march 2022, Daimler, C‑232/20, EU:C:2022:196, paragraph 31).

44 Thus, in order for an employment relationship to fall within the scope of Directive 2008/104, both where the contract of employment concerned is concluded and when each of the assignments is effectively made, an employer must have the intention to assign the worker concerned, temporarily, to a user undertaking.

45 In the present case, in a situation such as that referred to in paragraph 38 of the present judgment, it is true that the worker concerned performs the work contractually due, in the context of the employment relationship with his employer, for a third-party undertaking and that he is, in that context, subject to the ‘supervision’ and ‘direction’ of that undertaking, within the meaning of Article 1(1) of Directive 2008/104.

46 That being the case, inasmuch as, in that situation, the worker concerned was initially employed to perform duties for his employer, it must be held that he does not meet the requirements referred to in paragraphs 41 and 44 of the present judgment, in so far as that employer did not have the intention, when the contract of employment concerned was concluded, to assign that worker to a user undertaking. Furthermore, that intention is lacking not only when that contract is concluded, but also when that worker is assigned to the third-party undertaking where, as in the present case, the employment relationship with that employer is maintained solely because that worker exercised his right to object to the transfer of his working relationship to that third-party undertaking.

47 In addition, a permanent transfer of the duties performed by a worker for the undertaking with which he concluded a contract of employment to a third-party undertaking cannot give rise to an employment relationship of a temporary nature with the latter undertaking, within the meaning of the case-law set out in paragraphs 42 and 43 of the present judgment.

48 Accordingly, subject to the checks to be carried out by the referring court, it must be considered, as the German Government and the European Commission do, that an employment relationship such as that at issue in the main proceedings cannot fall within the scope of Directive 2008/104, in so far as, first, ALF FILS Kliniken had no intention of assigning LD to a third-party undertaking and, second, the assignment concerned was not temporary in nature.

49 In the second place, such a literal interpretation of Article 1(1) of Directive 2008/104 is supported by the context of that provision.

50 Although Directive 2008/104 states, in recital 15 and Article 6(1) and (2), that ‘employment contracts of an indefinite duration’, that is to say permanent employment relationships, are the general form of employment relationship and that temporary agency workers are to be informed of any vacant posts in the user undertaking to give them the same opportunity as other workers in that undertaking to find permanent employment, it is clear from the case-law of the Court that that directive refers exclusively to employment relationships which are temporary, transitional or limited in time, and not permanent employment relationships (see, to that effect, judgment of 14 October 2020, KG (Successive assignments in the context of temporary agency work), C‑681/18, EU:C:2020:823, paragraph 62).

51 That finding is not called into question by the fact that the Court has also held, first, that Directive 2008/104 seeks to have Member States ensure that temporary agency work at the same user undertaking does not become a permanent situation for a temporary agency worker and, second, that the first sentence of Article 5(5) of that directive precludes Member States not taking any measures to preserve the temporary nature of temporary agency work as well as national legislation which does not provide for any measures to prevent successive assignments of the same temporary agency worker to the same user undertaking with the aim of circumventing the provisions of that directive as a whole (see, to that effect, judgment of 14 October 2020, KG (Successive assignments in the context of temporary agency work), C‑681/18, EU:C:2020:823, paragraphs 60 and 72).

52 In that connection, having regard to the information furnished by the referring court, any risk of abuse or circumvention of Directive 2008/104 was precluded in the present case, in so far as, as is apparent from paragraph 46 of the present judgment, (i) ALB FILS Kliniken had no intention of assigning LD to Company A and (ii) it is on account of the fact that LD exercised his right to object to the transfer of his employment relationship that it has been maintained with ALB FILS Kliniken, including the working conditions and the contractual terms that were in force prior to the transfer at issue in the main proceedings.

53 In the third place, it must be held that the literal and systematic interpretation of Article 1(1) of Directive 2008/104, as set out in paragraphs 40 to 52 of the present judgment, is also supported by the objectives pursued by that directive.

54 Recital 11 of Directive 2008/104 states that that directive is intended to meet not only undertakings’ needs for flexibility, but also employees’ need to reconcile their working and private lives and thus contributes to job creation and to participation and integration in the labour market. Directive 2008/104 is therefore designed to reconcile the objective of flexibility sought by undertakings and the objective of security corresponding to the protection of workers. That twofold objective thus gives expression to the intention of the EU legislature to bring the conditions of temporary agency work closer to ‘normal’ employment relationships, especially since, in recital 15 of Directive 2008/104, that legislature expressly stated that employment contracts for an indefinite term are the general form of employment. That directive therefore also aims to stimulate temporary agency workers’ access to permanent employment at the user undertaking (judgment of 12 May 2022, Luso Temp, C‑426/20, EU:C:2022:373, paragraphs 42 and 43 and the case-law cited).

55 Similarly, under Article 2 of Directive 2008/104, ‘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, 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’.

56 First, in a situation such as that at issue in the main proceedings, which is characterised by a permanent transfer to a third-party undertaking of duties performed by a worker, the objectives of the flexibility of undertakings, job creation or even of promoting temporary agency workers’ access to permanent employment, pursued by Directive 2008/104, are irrelevant where the employment relationship of the worker whose duties have been transferred remains permanent. Second, as is apparent from the request for a preliminary ruling, a worker can object to the transfer of his or her employment relationship to that third-party undertaking, the consequence of which is that the worker retains all of the working conditions that applied to him or her prior to the transfer of his or her duties. Consequently, the protection of temporary agency workers provided for by Directive 2008/104 does not apply to such a situation.

57 It follows from all of the foregoing that Article 1(1) of Directive 2008/104, read in conjunction with Article 3(1)(b) to (e) thereof, must be interpreted as meaning that the directive does not apply to a situation in which, first, the duties performed by a worker are transferred definitively by his or her employer to a third-party undertaking and, second, that worker, whose employment relationship with that employer is maintained on account of the fact that that worker has exercised his or her right to object to the transfer of that employment relationship to that third-party undertaking, may be required, at the request of that employer, to perform, on a permanent basis, the work contractually due for that third-party undertaking and, in that context, be subject to the technical and organisational direction of the latter.

58 In the light of the answer given to the first question, it is not necessary to answer the second question, which was raised in the event that the Court should answer the first question in the affirmative.

59 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Article 1(1) of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work, read in conjunction with Article 3(1)(b) to (e) thereof,

must be interpreted as meaning that that directive does not apply to a situation in which, first, the duties performed by a worker are transferred definitively by his or her employer to a third-party undertaking and, second, that worker, whose employment relationship with that employer is maintained on account of the fact that that worker has exercised his or her right to object to the transfer of that employment relationship to that third-party undertaking, may be required, at the request of that employer, to perform, on a permanent basis, the work contractually due for that third-party undertaking and, in that context, be subject to the technical and organisational direction of the latter.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> ALB FILS KLINIKEN (Social policy - Temporary agency work - Definition of 'temporary assignment' - Judgment) [2023] EUECJ C-427/21 (22 June 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/C42721.html Cite as: ECLI:EU:C:2023:505, [2023] EUECJ C-427/21, EU:C:2023:505

Court of Justice of the European Communities (including Court of First Instance Decisions)