CM v TimePartner Personalmanagement GmbH.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:983
• Date: 15 December 2022
• Docket Number: C-311/21
• Celex Number: 62021CJ0311
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Second Chamber)

15 December 2022 (*)

(Reference for a preliminary ruling – Employment and social policy – Temporary agency work – Directive 2008/104/EC – Article 5 – Principle of equal treatment – Need to respect, in the event of derogation from that principle, the overall protection of temporary agency workers – Collective agreement providing for lower pay than that of staff recruited directly by the user undertaking – Effective judicial protection – Judicial review)

In Case C‑311/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesarbeitsgericht (Federal Labour Court, Germany), made by decision of 16 December 2020, received at the Court on 18 May 2021, in the proceedings

CM

v

TimePartner Personalmanagement GmbH,

THE COURT (Second Chamber),

composed of A. Prechal, President of Chamber, M.L. Arastey Sahún (Rapporteur), F. Biltgen, N. Wahl and J. Passer, Judges,

Advocate General: A.M. Collins,

Registrar: S. Beer, Administrator,

having regard to the written procedure and further to the hearing on 5 May 2022,

after considering the observations submitted on behalf of:

– CM, by R. Buschmann and T. Heller, Prozessbevollmächtigte,

– TimePartner Personalmanagement GmbH, by O. Bertram, M. Brüggemann and A. Förster, Rechtsanwälte,

– the German Government, by J. Möller and D. Klebs, acting as Agents,

– the Swedish Government, by H. Eklinder, J. Lundberg, C. Meyer-Seitz, A. Runeskjöld, M. Salborn Hodgson, R. Shahsavan Eriksson, H. Shev and O. Simonsson, acting as Agents,

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

after hearing the Opinion of the Advocate General at the sitting on 14 July 2022,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 5 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 CM and TimePartner Personalmanagement GmbH (‘TimePartner’) concerning the amount payable by TimePartner as pay for temporary agency work carried out by CM at a user undertaking.

Legal context

European Union law

3 Recitals 10 to 12, 16 and 19 of Directive 2008/104 state:

‘(10) There are considerable differences in the use of temporary agency work and in the legal situation, status and working conditions of temporary agency workers within the European Union.

(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.

(12) This Directive establishes a protective framework for temporary agency workers which is non-discriminatory, transparent and proportionate, while respecting the diversity of labour markets and industrial relations.

…

(16) In order to cope in a flexible way with the diversity of labour markets and industrial relations, Member States may allow the social partners to define working and employment conditions, provided that the overall level of protection for temporary agency workers is respected.

…

(19) This Directive does not affect the autonomy of the social partners nor should it affect relations between the social partners, including the right to negotiate and conclude collective agreements in accordance with national law and practices while respecting prevailing Community law.’

4 As set out in Article 2 of that directive, entitled ‘Aim’:

‘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.’

5 Under Article 3(1)(f) of the directive:

‘For the purposes of this Directive:

“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.’

6 Article 5 of Directive 2008/104, entitled ‘The principle of equal treatment’, provides:

‘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.

For the purposes of the application of the first subparagraph, the rules in force in the user undertaking on:

(a) protection of pregnant women and nursing mothers and protection of children and young people; and

(b) equal treatment for men and women and any action to combat any discrimination based on sex, race or ethnic origin, religion, beliefs, disabilities, age or sexual orientation;

must be complied with as established by legislation, regulations, administrative provisions, collective agreements and/or any other general provisions.

2. As regards pay, Member States may, after consulting the social partners, provide that an exemption be made to the principle established in paragraph 1 where temporary agency workers who have a permanent contract of employment with a temporary-work agency continue to be paid in the time between assignments.

3. Member States may, after consulting the social partners, give them, at the appropriate level and subject to the conditions laid down by the Member States, the option of upholding or concluding collective agreements which, while respecting the overall protection of temporary agency workers, may establish arrangements concerning the working and employment conditions of temporary agency workers which may differ from those referred to in paragraph 1.

4. Provided that an adequate level of protection is provided for temporary agency workers, Member States in which there is either no system in law for declaring collective agreements universally applicable or no such system in law or practice for extending their provisions to all similar undertakings in a certain sector or geographical area, may, after consulting the social partners at national level and on the basis of an agreement concluded by them, establish arrangements concerning the basic working and employment conditions which derogate from the principle established in paragraph 1. Such arrangements may include a qualifying period for equal treatment.

The arrangements referred to in this paragraph shall be in conformity with Community legislation and shall be sufficiently precise and accessible to allow the sectors and firms concerned to identify and comply with their obligations. In particular, Member States shall specify, in application of Article 3(2), whether occupational social security schemes, including pension, sick pay or financial participation schemes are included in the basic working and employment conditions referred to in paragraph 1. Such arrangements shall also be without prejudice to agreements at national, regional, local or sectoral level that are no less favourable to workers.

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. They shall inform the [European] Commission about such measures.’

7 Under Article 9 of that directive, entitled ‘Minimum requirements’:

‘1. This Directive is without prejudice to the Member States’ right to apply or introduce legislative, regulatory or administrative provisions which are more favourable to workers or to promote or permit collective agreements concluded between the social partners which are more favourable to workers.

2. The implementation of this Directive shall under no circumstances constitute sufficient grounds for justifying a reduction in the general level of protection of workers in the fields covered by this Directive. This is without prejudice to the rights of Member States and/or management and labour to lay down, in the light of changing circumstances, different legislative, regulatory or contractual arrangements to those prevailing at the time of the adoption of this Directive, provided always that the minimum requirements laid down in this Directive are respected.’

8 Article 11 of that directive, entitled ‘Implementation’, provides in paragraph 1:

‘Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive by 5 December 2011, or shall ensure that the social partners introduce the necessary provisions by way of an agreement, whereby the Member States must make all the necessary arrangements to enable them to guarantee at any time that the objectives of this Directive are being attained. They shall forthwith inform the Commission thereof.’

German law

9 Paragraph 9(2) of the Arbeitnehmerüberlassungsgesetz (Law on temporary agency work) of 3 February 1995 (BGBl. 1995 I, p. 158; ‘the AÜG’), in the version applicable until 31 March 2017, was worded as follows:

‘The following shall be invalid:

…

(2) agreements providing for working conditions, including remuneration, for the temporary agency worker, for the period of assignment to a user undertaking, that are less favourable as compared to the basic working conditions applicable at the user undertaking to a comparable worker of the user undertaking; a collective...