Opinion of Advocate General Tanchev delivered on 15 July 2021.

JurisdictionEuropean Union
CourtCourt of Justice (European Union)
Date15 July 2021

Provisional text



delivered on 15 July 2021(1)

Case C948/19

UAB “Manpower Lit”







Joined party:

European Institute for Gender Equality (EIGE)

(Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Supreme Court, Lithuania))

(Reference for a preliminary ruling – Social policy – Temporary work – Scope of Directive 2008/104/EC – Agencies of the European Union – User undertakings pursuant to Articles 1(1) and Article 3(1)(d) of Directive 2008/104Regulation (EC) No 1922/2006 – The European Institute for Gender Equality as a user undertaking)

1. This reference for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Supreme Court, Lithuania, ‘the referring court’), is the fifth occasion on which the Court has been asked to interpret Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work. (2) Its novelty lies in the fact that the user undertaking to which the applicant temporary employees E.S., M.L., M.P., V.V. and R.V. (‘the applicants’) (3) were assigned by their employer, UAB “Manpower” Lit (‘the defendant employer’), (4) was an agency of the European Union, namely the European Institute for Gender Equality (5) (‘EIGE’).

2. The applicants contend that, in breach of both national law and Directive 2008/104, they have been discriminated against by the defendant employer on the ground that, in the factual circumstances of the main proceedings, they were paid wages by the EIGE lower than those that they would have received had they been recruited directly by the EIGE under EEC/EAEC Council: Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community. (6)

3. The six questions referred therefore seek to ascertain whether, and to what extent, the fact that the user undertaking to which the defendant employer assigned the applicants was an agency of the European Union affects the outcome of the main proceedings.

4. I have reached the conclusion that the status of the EIGE as an agency of the European Union has no bearing on the outcome of the main proceedings, given that the case file demonstrates no clear impact on the administrative autonomy of the EIGE (7) if an order is made by the Lithuanian courts for the defendant employer to pay remuneration in arrears to the applicants, and nor would such an order be prejudicial to the Staff Regulations. (8) This is so essentially because the main proceedings concern a dispute between two private parties entailing assessment of compliance with the principle of equal treatment, of which Article 5(1) of Directive 2008/104 is a specific manifestation, (9) and with respect to which the EIGE has the status, only, of third-party intervener.

5. Further, the EIGE falls within the scope, ratione personae, of Directive 2008/104 with respect to the term ‘user undertakings engaged in economic activities whether or not they are operating for gain’ under Article 1(2) thereof, given that the directive cannot be read as excluding EU institutions, bodies, offices and agencies from its scope.

I. Legal framework

A. EU law

6. Article 1 of Directive 2008/104, headed ‘Scope’ is worded as follows:

‘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.

3. Member States may, after consulting the social partners, provide that this Directive does not apply to employment contracts or relationships concluded under a specific public or publicly supported vocational training, integration or retraining programme.’

7. Article 2 of that directive, headed ‘Aim’, provides:

‘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.’

8. Article 3 of Directive 2008/104, headed ‘Definitions’, provides as follows in paragraphs 1, points (d) and (f) and 2:

‘For the purposes of this Directive:

(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;

(f) “basic working and employment conditions” means working and employment conditions laid down by legislation, regulations, administrative provisions, collective agreements and/or other binding general provisions in force in the user undertaking relating to:

(i) the duration of working time, overtime, breaks, rest periods, night work, holidays and public holidays;

(ii) pay.

2. This Directive shall be without prejudice to national law as regards the definition of pay, contract of employment, employment relationship or worker.


9. Article 5 of Directive 2008/104, headed ‘The principle of equal treatment’, is contained in Chapter II dealing with working conditions. Article 5(1) is worded as follows:

‘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.


10. Article 2 of Regulation No 1922/2006 is entitled ‘Objectives’ and is worded as follows:

‘The overall objectives of the Institute shall be to contribute to and strengthen the promotion of gender equality, including gender mainstreaming in all Community policies and the resulting national policies, and the fight against discrimination based on sex, and to raise EU citizens' awareness of gender equality by providing technical assistance to the Community institutions, in particular the Commission, and the authorities of the Member States, as set out in Article 3.’

11. Article 3 of Regulation No 1922/2006 is entitled ‘Tasks’; it is worded as follows:

‘1. To meet the objectives set in Article 2, the Institute shall:

(a) collect, analyse and disseminate relevant objective, comparable and reliable information as regards gender equality, including results from research and best practice communicated to it by Member States, Community institutions, research centres, national equality bodies, non-governmental organisations, social partners, relevant third countries and international organisations, and suggest areas for further research;

(b) develop methods to improve the objectivity, comparability and reliability of data at European level by establishing criteria that will improve the consistency of information and take into account gender issues when collecting data;

(c) develop, analyse, evaluate and disseminate methodological tools in order to support the integration of gender equality into all Community policies and the resulting national policies and to support gender mainstreaming in all Community institutions and bodies;

(d) carry out surveys on the situation in Europe as regards gender equality;

(e) set up and coordinate a European Network on Gender Equality, involving the centres, bodies, organisations and experts dealing with gender equality and gender mainstreaming in order to support and encourage research, optimise the use of available resources and foster the exchange and dissemination of information;

(f) organise ad hoc meetings of experts to support the institute's research work, encourage the exchange of information among researchers and promote the inclusion of a gender perspective in their research;

(g) in order to raise EU citizens' awareness of gender equality, organise, with relevant stakeholders, conferences, campaigns and meetings at European level, and present the findings and conclusions to the Commission;

(h) disseminate information regarding positive examples of non-stereotypical roles for women and men in every walk of life, present its findings and initiatives designed to publicise and build on such success stories;

(i) develop dialogue and cooperation with non-governmental and equal opportunities organisations, universities and experts, research centres, social partners and related bodies actively seeking to achieve equality at national and European level;

(j) set up documentation resources accessible to the public;

(k) make information on gender mainstreaming available to public and private organisations; and

(l) provide information to the Community Institutions on gender equality and gender mainstreaming in the accession and candidate countries.

2. The Institute shall publish an annual report on its activities.’

II. Lithuanian law

12. The Lietuvos Respublikos įdarbinimo per laikinojo įdarbinimo įmones įstatymas (‘Law on Employment by Temporary Work- Agencies’) in the version in force from 1 May 2013 to 1 July 2017, the date of entry into force of the new Lietuvos Respublikos Darbo kodeksas (Labour Code of the Republic of Lithuania, ‘the Labour Code’), featured the following provision:

‘Article 2. Principle definitions used in the present law.

3. “User” means all physical or legal persons and all other organisational structures for which and under the control and direction of which temporary workers work in a temporary manner.’

13. Article 75(2) of the Labour Code, which entered into force on 1 July 2017 provides as follows:


To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT