Opinion of Advocate General Sharpston delivered on 23 April 2020.

• Jurisdiction: European Union
• Celex Number: 62018CC0681
• ECLI: ECLI:EU:C:2020:300
• Date: 23 April 2020
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 23 April 2020(1)

Case C‑681/18

JH

v

KG

(Request for a preliminary ruling from the Tribunale ordinario di Brescia (District Court of Brescia, Italy))

(Social Policy — Directive 2008/104 — Temporary employment — Successive contracts with the same user undertaking — Article 5(5) — Equal treatment — Circumvention of the provisions of the Directive)

1. The present case gives the Court its first opportunity to interpret Article 5(5) of Directive 2008/104 on temporary agency work. (2) More precisely, the Court is required to clarify whether, in circumstances in which a worker is hired by a temporary work agency and assigned as a temporary agency worker to the same user undertaking by eight successive contracts for the temporary supply of work and 17 extensions, there have been ‘successive assignments designed to circumvent the provisions of [that] Directive’.

Legal Framework

The Charter of Fundamental Rights of the European Union

2.Article 31 of the Charter of Fundamental Rights of the European Union (‘the Charter’) (3) provides that:

‘1. Every worker has the right to working conditions which respect his or her health, safety and dignity.

2. Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.’

Directive 2008/104

3.Directive 2008/104, as its first recital explains, respects the fundamental rights and principles recognised by the Charter and is designed to ensure full compliance with Article 31 thereof. The 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’. (4) Within that framework, ‘the basic working and employment conditions applicable to temporary agency workers should be at least those which would apply to such workers if they were recruited by the user undertaking to occupy the same job’. (5)

4. Recital 15 explains that ‘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’.

5. Recital 21 indicates that ‘Member States should provide for administrative or judicial procedures to safeguard temporary agency workers’ rights and should provide for effective, dissuasive and proportionate penalties for breaches of the obligations laid down in this Directive’.

6. Article 1 defines the scope of the Directive:

‘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.

…’

7. In accordance with Article 2 thereof, the purpose of Directive 2008/104 ‘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(1) defines various terms relevant to the application of the Directive:

‘(a) “worker” means any person who, in the Member State concerned, is protected as a worker under national employment law;

(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;

(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.’

9. Article 4(1) provides that ‘prohibitions or restrictions on the use of temporary agency work shall be justified only on grounds of general interest relating in particular to the protection of temporary agency workers, the requirements of health and safety at work or the need to ensure that the labour market functions properly and abuses are prevented’.

10. Article 5(1) provides that ‘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. …’.

11. Pursuant to Article 5(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 Commission about such measures’.

12. Article 6 provides that:

‘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. Such information may be provided by a general announcement in a suitable place in the undertaking for which, and under whose supervision, temporary agency workers are engaged.

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.

…’

13. Pursuant to Article 10(1), ‘Member States shall provide for appropriate measures in the event of non-compliance with this Directive by temporary-work agencies or user undertakings. In particular, they shall ensure that adequate administrative or judicial procedures are available to enable the obligations deriving from this Directive to be enforced’.

Italian law

14. The referring court explains that it is the Decreto legislativo 10 settembre 2003, No 276 (Legislative Decree No 276/2003 of 10 September 2003 on the application of delegations in matters relating to employment and the labour market laid down by Law No 30 of 14 February 2003, as amended by Decree Law No 34/2014, converted into law with amendments by Law 78/2014, ‘the Legislative Decree No 276/2003’) that is applicable in the present case.

15. The legislative amendment enacted by Law 78/2014 deleted from Article 20(4) of Legislative Decree No 276/2003 both the provision stating that ‘the supply of fixed-term workers is permitted for technical, production or organisational reasons, or for replacement purposes, even if those reasons relate to the ordinary business activity of the user’ and the requirement to indicate such reasons in the written contract.

16. Article 22(2) of Legislative Decree No 276/03 provides that where fixed-term supply work is used, the employment relationship between the agency and the worker is governed by the provisions of Legislative Decree No 368/01 ‘with the exclusion of Article 5(3) et seq. thereof.’ The initial term of the employment contract may be extended with the written consent of the worker, in the circumstances and for the duration provided for in the Contratto collettivo nazionale di lavoro (national collective labour agreement for the category of temporary-work agencies, signed on 27 February 2014, ‘the CCNL’) by which the agency is bound.

17. Article 27 of Legislative Decree No 276/03, entitled ‘Unlawful use of temporary workers’, provides that, if the supply of workers does not remain within the limits and conditions laid down in that same legislative decree, a worker may, by means of an action which may be brought only against the user undertaking, request that an employment relationship be declared to exist between himself and the user undertaking, with effect from the beginning of the supply.

18. Article 5(3) to (4-bis) of the Decreto legislativo 6 settembre 2001, n. 368 (Legislative Decree No 368 of 6 September 2001 implementing Directive 1999/70/EC concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP) (6) in the version applicable ratione temporis provides that:

‘… 3. Where a worker is re-employed for a fixed term as provided for in Article 1 within a period of 10 days from the expiry of a contract for a term of up to 6 months, or 20 days from the expiry of a contract for a term of more than 6 months, the second contract shall be considered to be of indefinite duration. …

4. Where a worker is employed for two successive...