Edited by Francesca Tironi, Giulia Spalazzi, Alessia Brambilla
In sentence C-441/2023 of October 24, 2024, the European Court of Justice decided on the definitions contained in Directive 2008/104/EU (hereinafter, referred to as the “Directive”) and extended the application of the Directive to cases of temporary work supplied by companies not formally recognized as work agencies.
Directive 2008/104/CE
Directive 2008/104/EC aims to protect temporary workers supplied by work agencies and improve the quality of their work by ensuring compliance with the principle of equal treatment. The Directive establishes a regulatory framework to protect temporary workers that is non-discriminatory, transparent and commensurate while respecting the variety of labour markets and industrial relations.
Based on Article 1, the Directive applies to:
- workers who have an employment agreement or an employment relationship with a work agency and who are seconded to user companies to work temporarily and under their supervision and direction;
- public and private companies that are work agencies or user companies engaged in a non-profit activity.
The principle of equal treatment, provided for in Article 5 of the Directive, stipulates that, for the entire duration of the assignment in a user company, the basic working and employment terms and conditions of temporary workers must be at least the same as those that would apply to them if they were employed directly by the same company for the performance of the same work activities.
The question brought to the attention of the European Court of Justice
The submission to the European Court of Justice was made by the Spanish national courts, following the receipt of an appeal filed by an employee challenging the lawfulness of her dismissal.
The employee concerned had initially worked as a trainee for a well-known IT company and then, over the following six years, she had been employed by three other different companies, all of which were contractors of the first IT company and therefore she continued to actually work on projects of the principal, the IT company for which she had worked as a trainee.
Once the principal terminated the contract with the last employer, the employee was dismissed for reasons related to decreased demand and the cancellation of some planned projects. The employee then challenged the dismissal demanding that it be declared null and void and claiming that the principal was jointly and severally liable.
The national court questioned the applicability of the Directive to the specific case even though no temporary employment agency was involved. The key question brought to the attention of the European Court of Justice was whether Article 3, paragraph 1, lett. b) of the Directive must be broadly understood as meaning that the provisions of the Directive apply to a company that assigns a worker to another company, even if the first company is not formally recognized as a work agency under national law due to the lack of a specific administrative permit.
The European Union Court of Justice decision
In ruling C-441/2023 of 24 October 2024, the European Court of Justice expanded on the broader interpretation of the definition contained in Article 3, paragraph 1, lett. b) of the Directive by pointing out that the application of the Directive is not strictly limited to companies formally recognized as work agencies under national law. According to the Court, in order to determine whether a situation falls within the field of application or not, it is essential to consider both the purpose of the legislation, which is to ensure effective protection of temporary agency workers, and the manner in which the work is carried out.
The Court stated that the notion of temporary work includes the situation where:
- a worker is made available to a user company by a company performing an activity consisting in the conclusion of contracts of employment; or
- an employment relationship is established with workers for the purpose of placing them at the disposal of a user company for a certain duration, if that worker is under the control and direction of the latter company and the latter company, on the one hand, imposes the services to be performed, the manner in which they are to be performed and compliance with its instructions and internal rules and, on the other hand, exercises supervision and control over the manner in which the same worker performs his duties.
Accordingly, the provisions of the Directive, including the principle of equal treatment, apply to any individual or legal entity that enters into an employment contract or establishes an employment relationship with an employee for the purpose of assigning him or her to a user company to work there temporarily under the latter’s supervision and direction, and that places that worker at the disposal of that company, even if that individual or legal entity is not recognized under national law as a work agency as it does not have the administrative permit required.
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