# EUR-Lex - 52014DC0176 - EN

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# 52014DC0176

**REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS on the application of Directive 2008/104/EC on temporary agency work /* COM/2014/0176 final */**

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REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL,
THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS

on
the application of Directive 2008/104/EC on temporary agency work

1.           Introduction

1.1.        The Directive

Directive 2008/104/EC[1] on temporary agency
work (hereafter ‘the Directive’) was adopted by the European Parliament and the
Council under Article 137(2) of the EC Treaty (now Article 153(2) TFEU).

Its purpose 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 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 job creation and to the development of flexible forms of
working.

In particular, the
Directive:

establishes the principle of equal treatment in
  user undertakings, while allowing for certain limited derogations under
  strict conditions;
 provides for a review by the Member States,
  during the transposition period, of restrictions and prohibitions on the
  use of agency work;
 improves agency workers’ access to permanent employment,
  to collective facilities in user undertakings and to training;
 includes provisions on the representation of
  agency workers.

The services provided by
temporary-work agencies are excluded from the scope of Directive 2006/123/EC[2] on services in the
internal market. This Directive states in its Article 2(2)(e) that it shall not
apply to the services of temporary-work agencies.

1.2.        Legal basis and object of the report

This report reviews Member States’ implementation of the Directive
as required in Article 12, which provides that:

‘By 5 December 2013, the Commission shall, in consultation with the
Member States and social partners at Community level, review the application of
this Directive with a view to proposing, where appropriate, the necessary amendments.’

The aim of this report is
twofold. First, it provides an overview of how Member States have implemented
the Directive and highlights key problems. However, it cannot provide an
exhaustive account of all national implementation measures.[3] Second, it examines
whether experience gained in applying the Directive, two years after the end of
its transposition period, may justify any amendments to the text currently in
force.

The report was drawn up on the basis of the Commission’s examination
of Member States’ provisions implementing the Directive. It is also based on
replies the Commission received to two questionnaires, one on options chosen to
implement the Directive into national law, the other on the review of the
Directive and cost issues.

Both were submitted to the Member States. The second was also
addressed to the social partners at European level. The governmental expert
group on the transposition of the Directive, in whose work the European social
partners have been involved, also contributed to this report. The report also
draws on information available to the Commission from other sources, such as
independent expert reports from the European Labour Law Network.

Part 5 of the report is based to a large extent on Member States’
reports on the results of the review of restrictions and prohibitions on the
use of temporary agency work and on complementary information provided by a
number of countries at the Commission’s request. Other available sources,
notably complaints submitted to the Commission and information originating from
the European social partners, were also used.

2.           Transposition
process

Under Article 11(1) of the
Directive, Member States were under a duty to transpose the Directive into
national law by 5 December 2011, either by adopting and publishing the laws,
regulations and administrative provisions necessary to comply with it, or by
ensuring that the social partners introduced the necessary provisions by way of
an agreement.

All Member States have
transposed the Directive. In a number of cases, transposition occurred late and
only after the Commission had launched infringement proceedings. In early 2012,
the Commission sent letters of formal notice for non-communication of
transposition measures to 15 Member States. Later that year, reasoned opinions
were sent to three Member States. In the Member State that was the last to
transpose the Directive, the implementing legislation entered into force on 1
July 2013.

Transposition was carried
out in a variety of different ways. This is linked to the fact that before the
Directive became applicable, temporary agency work was regulated by law in some
Member States, mainly through collective agreements in others, or by a
combination of both. Some Member States did not have a legal framework
applicable to temporary agency work, so  they specifically regulated this form
of work for the first time while transposing the Directive.. Some Member States
amended one piece of legislation, while others modified several legal texts.

Three Member States (France, Luxembourg and Poland) considered that their national provisions already
complied with the Directive and did not require any amendment on its entry into
force.

3.           Scope
and definitions (Articles 1 and 3)

3.1.        Application of the Directive to user
undertakings not engaged in economic   activities (Article 1(2))

Article 1(2) states that
the 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.

Temporary-work agencies
normally fulfil the condition of being engaged in economic activities. However,
some activities of user undertakings, for instance, those carried out by parts
of the public sector, cannot be regarded as economic.[4] Member States are
entitled to exclude user undertakings that are not engaged in economic
activities from the scope of the Directive. Nevertheless, 19 Member States
apply the Directive to user undertakings not engaged in economic activities. Bulgaria,
Cyprus, Denmark, Ireland, Luxembourg, Malta, the Netherlands, Romania and
the United Kingdom have chosen to exclude such undertakings from the
scope of their implementing provisions.

At this stage, the
implementation of this provision does not appear to pose any particular
problem.

3.2.        Derogation for
specific public or publicly supported vocational training,   integration or
retraining programmes (Article 1(3))

Article 1(3) enables
Member States, after consulting the social partners, to exclude from the scope
of their transposition measures the employment relationships concluded under a
specific public or publicly-supported vocational training, integration or
retraining programme.

A large majority of Member
States do not exclude any of the above-mentioned employment relationships from
their national implementing provisions.

Austria, Cyprus,
Denmark, Hungary, Ireland, Malta and Sweden do apply this exclusion. In Cyprus and Ireland, the aim is to
facilitate the integration or re-integration of certain categories of people
who may encounter difficulties in entering or re-entering the labour market. Sweden excludes workers benefiting from special employment support or in sheltered
employment, but only as regards the principle of equal treatment. Provisions
regarding, for instance, access to amenities and collective facilities and
information about vacant posts in user undertakings remain applicable to this
group of employees.

The Commission has not
been made aware of any specific difficulty in implementing this derogation or of
any issue of compliance of national implementing measures with the Directive.

3.3.        Definitions (Articles 3(1)(a) to (e))

Articles
3(1)(a) to (e) provide definitions of a number of the main notions used in the
Directive: ‘worker’, ‘temporary-work agency’, ‘temporary agency worker’, ‘user
undertaking’ and ‘assignment’.

Several
Member States (Cyprus, Greece, Hungary, Ireland, Italy, Lithuania, Malta, Portugal, Sweden and United Kingdom) have provided definitions
of at least some of these notions in their transposing legislation, by using wording
that in most cases is very similar to that used in the Directive. This usefully
clarifies the scope of the national implementing measures. Other Member States
have not adopted such definitions.

In Latvia, the transposing legislation expressly states that the temporary-work agency
shall be regarded as the employer of the temporary agency worker. This provides
a useful clarification in compliance with the definitions in Article 3(1),
according to which a temporary agency worker has 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.

4.           Principle
of equal treatment

4.1.        Equal treatment as regards basic working
and employment conditions (Articles 3(1)(f), 3(2), first subparagraph, and
5(1))

Article 5(1) lays down the
principle of equal treatment in the user undertakings. According to this
principle, from the first day of their assignment, agency
workers have to have the basic working and employment conditions that would
apply if they were recruited directly by the user firm to occupy the same job.
These conditions cover pay, as well as the duration of working time, overtime,
breaks, rest periods, night work, holidays and public holidays. They must be
applied to agency workers to the extent that they constitute binding general
provisions in force in the user undertaking. The conditions must also comply
with rules in force in the user undertaking on protection of pregnant women and
nursing mothers, protection of children and young people, as well as equal
treatment for men and women and any anti-discrimination measures[5].

Certain derogations from
the principle of equal treatment may be applied. However, the Directive defines
strict conditions for these, as explained below.

A number of Member States
already applied the principle of equal treatment before the Directive entered
into force. Currently, all Member States recognise this principle. However, 12
Member States allow derogations from the principle under certain conditions.
Moreover, most Member States have opted for a wording that differs to a
variable extent from the terms used in the Directive, in particular as regards
the transposition of Article 5(1), first subparagraph, which defines the
principle of equal treatment, and of Article 3(1)(f), which determines the
scope of the notion of ‘basic working and employment conditions’.

For example, in Estonia, the implementation of the principle of equal treatment is based on the
notion of ‘comparable employee’ in the user undertaking. If there is no
comparable employee, the comparison should be made by reference to the
applicable collective agreement. If there is no collective agreement, an
employee engaged in the same work or similar work in the same region is deemed
to be a comparable employee. It appears that in Poland and the United Kingdom, conditions to be applied to agency workers are also determined by
comparison with comparable employees in the user undertaking.

The Commission will
monitor whether in practice such reference to a comparable employee ensures the
correct application of the principle of equal treatment or whether it may lead
to discriminatory practices against temporary agency workers. If necessary, it
will adopt appropriate measures to ensure full compliance with the Directive.

The Commission will also
make sure that the notion of ‘basic working and employment conditions’ is
correctly implemented in all Member States. This notion covers pay as well as the
duration of working time, overtime, breaks, rest periods, night work, holidays
and public holidays. This is a compulsory list from which no derogation is
possible.

4.2.        Possible derogations

4.2.1.     Derogation provided for in Article 5(2)

In accordance with Article
5(2), Member States may, after consulting the social partners, provide for an
exemption from equal pay if temporary agency workers who have a permanent
contract of employment with a temporary-work agency continue to be paid in the
time between assignments. A majority of Member States do not apply this
derogation.

However, Hungary, Ireland, Malta, Sweden and the United Kingdom provide for the
possibility to derogate from equal pay during assignments for agency workers with
an open-ended contract of employment who are paid even between assignments,
i.e. during periods in which they are out of work.

In Hungary, according to the Labour Code, agency workers who meet these conditions are
entitled to equal treatment as regards the payment of wages and other benefits
as of the 184th day of work at a user undertaking.

In Ireland, the Protection of Employees (Temporary Agency
Work) Act of 2012 states that temporary agency workers with a permanent
contract of employment are not entitled to equal pay for the duration of their
assignments, provided that in the period between assignments they are paid at
least half the pay to which they were entitled in respect of their most recent
assignment, and not less than the national minimum wage. Before an agency
worker enters into a contract of employment, the temporary-work agency must
notify him/her in writing that he/she will not be entitled to equal pay.

Similar provisions apply in the United Kingdom, where the
Agency Workers Regulations 2010 provide for an exemption from equal treatment
provisions on pay and holiday pay with respect to agency workers who meet the
conditions of Article 5(2). In the time between assignments, agency workers are
entitled to a minimum of 50 % of the basic pay paid to them during the
last 12 weeks of the previous assignment and, in any event, to the national
minimum wage. The contract of employment must include a statement that the
agency worker will not be entitled to equal pay.

In Malta, the Temporary Agency Workers Regulations 2010 state
that the provision introducing equal pay shall not apply to a temporary agency
worker who has an indefinite contract of employment and is paid between
assignments.

Pursuant to the legislation transposing the Directive in Sweden, as regards pay, the equal treatment requirement does not apply to workers
who are permanently employed with a temporary-work agency and are paid between
assignments.

Thus, the five Member States referred to above do derogate from the
principle of equal pay during periods in which the agency workers are assigned
to user undertakings. Without prejudice to the applicable minimum wages, none
of them has adopted rules limiting the extent of the derogation during
assignments, for instance, by setting a specific minimum level of pay. As
regards periods between assignments, Hungary, Malta and Sweden have not set minimum levels of pay to be respected. However, in Malta, agency workers are entitled to the same level of pay during and between
assignments.

As a derogation from the principle of equal treatment, Article 5(2)
is to be interpreted restrictively. It does not concern temporary agency
workers on fixed-term contracts, and can only be applied to those working under
a permanent contract of employment.

In the light of the national implementation of Article 5(2), this derogation
raises several questions of interpretation, notably as to whether the pay level
of agency workers during and between their assignments may legally be as low as
the applicable minimum wage, if any, while minimum wages are not subject to any
lower limit.  The measures intended to prevent misuse of the derogation need to
be considered as well.

These questions should be examined in-depth at future meetings of
the Expert Group on the transposition of the Directive. In any case, the
Commission will adopt appropriate measures to ensure that all Member States
fully comply with the Directive.

4.2.2.     Derogation provided for in Article 5(3)

Under Article 5(3), Member States may, after consulting the social partners, enable them
to conclude or uphold collective agreements on the working and employment
conditions of temporary agency workers derogating from the principle of equal
treatment, providing the overall protection of agency workers is respected. Article
5(3) should be read in the light of Article 2(2) of Directive 91/383/EEC[6] on the safety and health at work of workers with a fixed-term or a
temporary employment relationship. According to this provision, different
treatment of a worker who has a temporary employment relationship with a
temporary employment business is not justified with respect to working
conditions regarding the protection of safety and health at work.

A majority of Member
States have chosen not to apply the derogation of Article 5(3). Nevertheless,
this provision provides for a degree of flexibility and takes into account the
fact that in certain Member States, temporary-agency work has traditionally
been regulated mainly by collective agreements. Ten Member States (Austria, Bulgaria, Denmark, Finland, Germany, Hungary, Ireland, Italy, the Netherlands and Sweden) have adopted provisions allowing collective labour agreements
deviating from equal treatment of agency workers. Austria, Ireland and Sweden refer to the need for these collective agreements to be appropriately
balanced to ensure that they do not prejudice the overall protection of
temporary agency workers.

At present, the Commission has not been made aware of any particular problem in
the implementation of this provision. It will monitor compliance with the ‘overall protection of temporary agency workers’ in all cases, especially
if national implementing provisions do not refer to this notion.

4.2.3.     Derogation provided for in Article 5(4)

According to Article 5(4),
Member States in which there is no system for declaring
collective agreements universally applicable or no system for extending their
provisions to all similar undertakings in a certain sector or geographical area
may, on the basis of an agreement concluded by the national social partners,
derogate from equal treatment as regards the basic working and employment
conditions of temporary agency workers, provided that they enjoy an adequate
level of protection. This may include a qualifying period for equal treatment.

Only the United Kingdom and Malta have resorted to Article 5(4). In the United Kingdom, agency workers are entitled to full equal treatment at the user
undertaking once they have completed a 12-week qualifying period in the same
job with the same hirer. In Malta, the principle of equal treatment,
insofar as it relates to pay, does not apply for the
first four weeks of an assignment if that assignment lasts 14 weeks or more.

Member States applying
Article 5(4) must specify whether occupational social security schemes,
including pension, sick pay or financial participation schemes, are included in
the basic working and employment conditions. The United Kingdom and Malta actually exclude these schemes from the basic working and employment
conditions to which agency workers are entitled.

Moreover, Article 5(5)
requires Member States to take appropriate measures to prevent misuse in the
application of Article 5 and, in particular, successive assignments designed to
circumvent the provisions of the Directive. The risk of circumvention of the
principles of equal treatment and equal pay is particularly high if the principles
are not applied from the first day of the agency workers’ assignments, but only
after a qualifying period.

The United Kingdom
has adopted detailed measures to avoid misuse of its legislation, inter alia
by stating that in case of a break of not more than six weeks in an assignment,
the qualifying ‘clock’ is not reset to zero. In Malta, if a temporary
agency worker who was not granted equal pay during the first four weeks of his/her
assignment is subsequently replaced, the agency worker assigned as a
replacement will benefit from equal treatment regarding pay from the first day
of the assignment.

5.           Review
of restrictions and prohibitions on the use of temporary agency work (Article
4)

5.1.        Object of Article 4

Article 4 states 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;

- the need to ensure that
the labour market functions properly;

- the need to ensure that
abuses are prevented.

Member States were under
an obligation, after consulting the social partners, to review these prohibitions and restrictions to verify whether they
were justified on grounds of general interest and to inform the Commission of
the results of this review by the end of the transposition period (5 December
2011). Prohibitions and restrictions laid down by collective agreements could
be reviewed by the social partners who had negotiated the agreement.

As regards the scope of the review, as indicated in the 2011 Report
of the Commission services on the work of the Expert Group on transposition of
the Directive on temporary agency work, it should cover
any measures, for instance, measures laid down by legislation, regulations or
administrative provisions, applied in Member States and which aim to, or have
the effect of, imposing limitations on temporary agency work.

Besides, Article 4(4) makes it clear that the provisions of Article 4 are
without prejudice to national requirements with regard to registration,
licensing, certification, financial guarantees or monitoring of temporary-work
agencies. Consequently, the requirements falling under one of these categories,
which relate to market access and the exercise of activities of temporary-work
agencies, remain outside the scope of the obligation to review restrictions and
prohibitions.

Thus, Article 4 reduces the scope of justifications to which Member
States may resort to restrict the use of temporary agency work. Article 4(1) is
binding on all Member States. It is up to each Member State to decide in its
national context on the method that should be used to implement this provision.
There is no time limit for the implementation of Article 4(1). Article 4
obliges Member States to undertake a review of prohibitions and restrictions on
the use of temporary agency work, to inform the Commission of the results of
the review, and to provide justifications for prohibitions and restrictions on
grounds of general interest.

5.2.        Results of the review by the Member
States

All Member States have
informed the Commission of their position with respect to the review of
restrictions and prohibitions on the use of temporary agency work.

Twenty-four Member States
have reported on the results of the review they carried out. Four Member States
(Ireland, Luxembourg, Malta and the United Kingdom) stated
that no restrictions or prohibitions were in place. Consequently, no review has
been carried out in these Member States.

In the cases of Ireland, Malta and the United Kingdom, the Commission’s examination did not identify
any specific restriction or prohibition that would make it necessary for these Member
States to carry out a proper review of the provisions concerned. As for Luxembourg, the Commission did identify restrictions in the applicable national
legislation, for instance, as regards the duration of assignments or the existence of a list of permissible reasons for using temporary
agency work. Therefore, prohibitions and restrictions in place in Luxembourg should be reviewed after consultation of the social partners, in
accordance with Article 4(2) of the Directive.

The reports on the results
of the review of restrictions and prohibitions provided by the 24 Member States
were very diverse in terms of format and length. In most cases, they were  complemented
by specific, more accurate information provided at the request of the
Commission.

This diversity
is partly attributable to the variety of situations encountered in Member
States. Although temporary agency work only accounts for a small proportion of
employed workers overall, it is much more widespread in some countries than in
others. In some Member States, a national legal framework for temporary agency
work was adopted in the 1960s (Netherlands) or 1970s (France, Germany, United Kingdom). In a number of others, it has been regulated much
more recently, in some cases only in the context of the transposition of the
Directive. Moreover, although the numbers of agency workers are relatively
modest, the importance of this flexible form of working in the functioning of
national labour markets cannot be denied. All Member States have made specific
choices in terms of employment policy, for instance, by favouring labour market
flexibility to variable degrees. Such choices have an influence on the role and
place of temporary agency work in their respective labour markets.

Five Member
States (Denmark, Estonia, Latvia, Lithuania and Slovakia) stated in their report on the results of the review that they do not apply
any prohibitions or restrictions on the use of agency work.

Moreover,
various Member States also informed the Commission about national provisions
falling under Article 4(4) of the Directive and relating e.g. to registration
and financial guarantees of temporary-work agencies. There is no review
obligation with respect to these provisions.

5.2.1.     Justification of the prohibitions and
restrictions on grounds of general        interest

Prohibitions and
restrictions applied by Member States on the use of temporary agency work can
be justified only on grounds of general interest, as indicated under point 5.1.
By referring to ‘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’, Article 4(1) of the Directive provides an indicative,
non-exhaustive list of grounds that may justify prohibitions and restrictions.

Member States were under a
duty to inform the Commission of the justification for the prohibitions and
restrictions they apply by the end of the transposition period. They listed a
number of prohibitions and restrictions and, in the vast majority of cases, cited
one or several of the grounds of general interest enumerated in Article 4(1) as
justification. If they considered that the same justification could apply to
several restrictive measures, they provided a common justification for
different prohibitions or restrictions.

On the whole and with few
exceptions, Member States provided only very general justifications for
restrictive provisions in force, even when the Commission asked for
complementary information on the reasons why national
authorities considered that prohibitions and restrictions that remain
applicable were justified on grounds of general interest.

Member States referred in
particular to the justifications listed in Article 4(1) of the Directive:

A number of Member States (notably Belgium, Bulgaria, Croatia, Czech Republic, France, Germany, Greece, Hungary, Italy, Poland, Portugal, Slovenia) referred to ‘the protection of temporary agency
  workers’ to explain and provide a justification for certain prohibitions
  or restrictions in place.

For instance, this is
one of the justifications that has been used with respect to restrictions
applicable in the construction industry in Germany. Poland said the limitation of the period during which an agency worker may work in a
single user undertaking is related to the temporary nature of the tasks that
temporary agency workers may perform and contributes to protecting them.

The ‘requirements of health and safety at work’ were
  cited by a number of Member States (notably Belgium, Bulgaria, the
  Czech Republic, France, Greece, Hungary, Italy, Poland, Portugal, Slovenia
  and Spain) to justify either restrictions to, or an outright ban on
  the use of agency workers to carry out tasks
  involving special risks to the health and safety of workers. Certain
  Member States have resorted to this justification in combination with
  other justifications listed in Article 4(1), in particular the protection
  of temporary agency workers (Croatia, Portugal, Slovenia ).

In Slovenia, where a branch collective agreement could prohibit the use of temporary
agency workers, the possibility of providing for such a ban has been restricted
to cases in which the purpose of the prohibition is to guarantee greater
protection for workers or the health and safety of workers.

Article 4(1) should be
read in the light of Article 5(1) of Directive 91/383/EEC on the safety and
health at work of workers with a fixed-term or a temporary employment
relationship. According to this, Member States have the option of prohibiting
agency workers ‘from being used for certain work (...) which would be
particularly dangerous to their safety or health, and in particular for certain
work which requires special medical surveillance (...)’. In the absence of any
definition in EU law of the notion of work that is particularly dangerous to
the safety or health of workers, Member States are competent to identify the
activities concerned, under the control of the Court of Justice.

Various Member States (notably Belgium,
  Bulgaria, the Czech Republic, France, Italy, Poland, Portugal, Romania
  and Sweden) referred to ‘the need to ensure that the labour market
  functions properly’ to justify restrictive measures, such as a limitative
  list of reasons for using agency workers (France, Italy, Poland),
  limitations on the number or proportion of agency workers who may be used
  in a user undertaking (Belgium, Italy), or
  the obligation for the employer to negotiate with a workers’ organisation
  before using agency workers (Sweden).
 Several Member States (Belgium, Bulgaria, Czech Republic, Germany, Greece, Italy, Poland, Sweden) justified certain prohibitions or restrictions on the use of agency work by ‘the
  need to ensure that abuses are prevented’. This justification has been
  resorted to with respect to measures as diverse as restrictions on the
  nature of the tasks that may be assigned to agency workers (Italy,
  Poland), the possibility for national collective agreements to set
  quantitative limits on the use of fixed-term contracts for agency work (Italy),
  or the need, in certain cases for the user undertaking to obtain the
  consent of its union delegation before using agency workers (Belgium).

The ‘need to ensure
that abuses are prevented’ has sometimes been cited in combination with other
justifications drawn from Article 4(1) of the Directive, in particular the need
to ensure that the labour market functions properly (Italy, Poland, Sweden).

The following
justifications have also been used by certain Member States in relation to
prohibitions and restrictions in force:

Among Member States which apply a prohibition on
  use of temporary agency workers to replace workers exercising their right
  to strike (Austria, Belgium, Bulgaria, Croatia, France, Greece, Hungary, Italy, Poland, Slovenia, Spain), four (Belgium, Greece, Hungary and Italy) have explicitly referred to the protection
  of the right to strike. Several Member States cited recital 20 of the Directive,
  according to which the provisions on restrictions or prohibitions on
  temporary agency work are without prejudice to national legislation or
  practices that prohibit workers on strike being replaced by temporary
  agency workers.
 Several Member States (Belgium, France, Greece, Poland) explained various restrictive measures by the need to
  protect permanent employment and to avoid a situation in which permanent
  positions might be filled by workers employed on a temporary basis. In
  particular, they have used this justification to limit the duration of
  assignments and to explain the existence of a list of permissible reasons
  for using temporary agency work, such as, for instance, the replacement of
  an absent worker, a temporary increase in the volume of work, or the
  performance of exceptional or seasonal tasks.
 Austria referred
  to the protection of human life and health to justify the application of
  quotas limiting the proportion of temporary agency workers who may be used
  in a user undertaking for certain professions in the health sector to 10 %
  or 15 %.

In the context of their
review of restrictions and prohibitions to the use of temporary agency work,
Member States could have considered removing certain prohibitions and
restrictions that were originally justified by a wish to protect agency
workers. For example, Romania, where a limitative list of reasons for
using temporary agency work was in force, now makes it possible to resort to
this form of work ‘for the execution of specific temporary tasks’. In Sweden,
the prohibition to assign a temporary agency worker to his/her former employer
in the first six months after the termination of the contract of employment was
lifted with effect from 1 January 2013. In Belgium, the recourse to
temporary agency workers is now allowed under certain conditions for
integration purposes, i.e. with a view to the possible direct recruitment of
the worker by the user undertaking.

Although a few
restrictions and prohibitions on the use of temporary agency work have been
removed, the review has not so far led to major changes in the extent of the
restrictive measures applied by the Member States. Nevertheless, in a number of
Member States, the prohibitions and restrictions and their justification
continue to be discussed, including with the social partners, with a view to
possible complementary adjustments. Consequently, the review of restrictions
and prohibitions is still work in progress in several Member States (e.g. Belgium, Greece and the Netherlands).

Nevertheless, by stating
that prohibitions or restrictions are justified only on grounds of general
interest, Article 4(1) authorises Member States to continue to apply a number
of prohibitions or restrictions that are based on such grounds. In the
Commission’s view, to the extent that these restrictive measures are the result
of policy options based on legitimate grounds and are proportionate to their
aim, they would appear to be justified on grounds of general interest, without
prejudice to a more in-depth examination of those prohibitions and restrictions
on a case-by-case basis.

The protection of
temporary agency workers, the requirements of health and safety at work, the
need to ensure that the labour market functions properly and that abuses are
prevented may justify certain prohibitions or restrictions on the use of
temporary agency work. Other grounds of general interest may also justify
restrictive measures insofar as they are legitimate and proportionate to their
objective. Provided that they comply with the Directive on temporary agency
work and other applicable EU legislation and principles, such as the freedom to
provide services, the freedom of establishment and the legislation on
non-discrimination, Member States can regulate different types of employment,
including temporary agency work, and ensure the smooth functioning of the
labour market according to their own policy choices.

Prohibitions or
restrictions amounting to discrimination against temporary agency workers
cannot be considered as justified on grounds of general interest. For example,
a prohibition on employing disabled persons as agency workers could not be
justified, neither by the need to ensure that the labour market functions
properly, nor by the protection of those persons or the requirements of health
and safety at work.

5.2.2.     Consultation of the social partners

As stated under point
5.1., Member States were under a duty to consult the social partners before
reviewing prohibitions and restrictions. Furthermore, where prohibitions and restrictions are laid down by collective agreements,
social partners who had negotiated the agreement could carry out the review.

The Member States which
reviewed the prohibitions and restrictions in place involved the social
partners in various ways, reflecting the diversity of labour markets and
industrial relations across the EU.

They can be grouped into
three main categories:

Member States where the social partners were
  consulted in the framework of the review of prohibitions and restrictions
  (Belgium, Croatia, France, Germany, Greece, Hungary, Italy, Poland
  and Portugal); some have, to a variable extent, provided the
  Commission with the views of the social partners (Belgium, Greece,
  Poland and Portugal); 
 Member States where the review was mostly
  carried out by the social partners themselves, given that most
  prohibitions and restrictions are laid down by collective agreements (Denmark,
  Finland, Netherlands and Sweden); Finland and Sweden
  have informed the Commission of the views of the social partners;
 Member States where the social partners were consulted
  in the context of the adoption of the national transposition measures (Austria, Bulgaria, Cyprus, Czech Republic, Estonia, Latvia, Lithuania, Romania, Slovenia and Spain).

Generally, the
way in which the social partners were involved in the review seems to reflect
the variations in their place and role across the EU. Where the Commission was informed
of the positions of the social partners, it is clear that more weight could
have been given to those positions. Nevertheless, it seems that, with the
exception of Luxembourg, consultation of the social partners took place
in compliance with Article 4(2).

6.         Access to
employment, collective facilities and vocational training — representation of
agency workers — information of workers’ representatives (Articles 6, 7 and 8)

6.1.        Access to employment, collective
facilities and vocational training (Article 6)

Article 6 improves the
access of temporary agency workers to permanent employment, collective
facilities and vocational training. It notably provides for the information of
agency workers on vacant posts in the user undertaking (Article 6(1)). It also
ensures agency workers are entitled to equal access to the amenities and
collective facilities in the user undertaking, in
particular canteens, child-care facilities and transport services, unless a
difference in treatment is justified by objective reasons (Article 6(4)). It
asks Member States or the social partners to improve agency workers’ access to
training in temporary-work agencies and in user undertakings (Article 6(5)).

Article 6(1) has been
transposed almost literally by a number of Member States. It does not appear to
pose any particular problem at the present stage.

As regards Article 6(4), 14
countries (Austria, Belgium, Cyprus, Denmark, Finland, Germany, Greece,
Ireland, Latvia, Lithuania, Malta, Netherlands, Sweden and the United
Kingdom), i.e. half the Member States, said that they make use of the
possibility to derogate from equal access to amenities and collective facilities in the user undertaking if the difference in treatment is justified by objective reasons. In most cases, the
wording used in national measures is almost identical to the text of the
Directive. The Commission underlines that differences in treatment whereby
agency workers enjoy less favourable conditions than workers employed by the
user undertaking should remain exceptional. The possibility opened up in a
number of Member States does not necessarily mean that it is applied in
practice.

Article 6(5) encourages
the social partners to play an important role in improving access to training
and child-care facilities for agency workers in agencies, and to training
organised for workers of user undertakings. The implementation of this
provision does not seem to be problematic. Agency workers in Malta benefit from equal access to vocational training with workers of the user
undertaking unless a difference in treatment is justified by objective reasons.

6.2.        Representation of agency workers (Article
7)

Article 7 provides that
for the purpose of calculating the threshold above which bodies representing
workers are to be formed, temporary agency workers must be taken into account,
either in the temporary-work agency, or in the user undertaking, or in both.

In most Member States,
temporary agency workers are counted in the temporary-work agency employing
them (Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Finland, Hungary,
Ireland, Italy, Lithuania, Malta, Poland, Slovenia, Spain, Sweden and United
Kingdom) or in both the agency and the user undertaking to which they are
assigned (Austria, Cyprus, France, Germany, Greece, Luxembourg, Netherlands,
Portugal and Slovakia). In only three Member States (Belgium, Latvia and Romania), they are taken into account only in the user
undertaking.

Certain Member States have
introduced specific conditions under which agency workers are taken into
account. For instance, Bulgaria takes into consideration the average
number of agency workers who have been employed by the temporary-work agency
during the previous 12 months. In Belgium, the calculation is based on
the average number of agency workers who have been placed at the user
undertaking during the previous quarter. However, agency workers who are
actually replacing members of the permanent staff at the user undertaking are
not taken into account.

The Commission is not
aware of any particular difficulty in relation to the transposition of Article
7.

6.3.        Information of workers’ representatives
(Article 8)

Under
Article 8, the user undertaking must provide suitable information on the use of
temporary agency workers when providing information on the employment situation
in that undertaking to bodies representing workers.

Some Member States impose detailed obligations on user undertakings.
For example, in Greece, the user undertaking is required to provide
information on the number of agency workers, but also on its plans to use
agency workers and the prospects of recruiting them directly. In France and Luxembourg, staff representatives can have access to the contracts
concluded between the user undertaking and the temporary-work agency for the
assignment of workers.

At this stage, the Commission is not aware of any particular problem
in the implementation of this provision.

7.           Penalties
(Article 10)

A first examination of the
transposing legislation adopted by the Member States shows that information
provided about penalties mainly relates to national provisions other than those
adopted to transpose the Directive (e.g., management of an agency without due
authorisation, failure to notify public authorities about employment contracts
signed by the agency ...). This issue needs to be examined in more depth in
the coming months, notably to check whether penalties are used within the scope
of the Directive. Since only very few Member States have provided tables of
concordance, it has not yet been possible to compile a comprehensive overview
of the situation at national level.

8.           Regulatory
Costs

In an on-line public consultation carried out by the Commission in
October-December 2012, the Directive was earmarked by the small and
medium-sized enterprises (SMEs) and SME organisations that replied to the
consultation as one of the most burdensome pieces of EU legislation.[7] The results were published in a Staff Working Document[8] of 7 March 2013 accompanying the Communication on Smart Regulation.

The Commission Communication of 18 June 2013[9]
on the follow-up to the ‘Top Ten’ consultation of SMEs on EU Regulation showed these
claims were mostly related to existing obstacles to the operation of
temporary-work agencies and the obligation to register every time an agency
wants to operate in a different Member State. The Communication indicated that
this report would take SME concerns and regulatory burden aspects into account.

In that context, the Commission sent a questionnaire to Member States and social partners at European level to seek their views on the issue of
costs incurred in relation to the Directive.

The Commission asked first whether the Directive places a
significant administrative burden on the national public authorities and
whether those costs have been assessed in the Member States.

Among the twenty-seven Member States that responded, all but two said
the Directive itself did not create a significant administrative burden for the
national authorities, or that they had not specifically assessed it. Belgium referred to significant administrative costs to carry out the review of
restrictions and prohibitions. The United Kingdom published an impact assessment
prior to the implementation of the Directive, according to which the total
costs to public sector hirers in terms of increased wages would be between GBP 157
million and GBP 259 million per year, but no update is available. No Member State has assessed the administrative burden created by the Directive.

The Commission also asked whether the substantive provisions of
the Directive entail significant costs or obstacles for temporary-work agencies
or user undertakings, and whether those costs have been assessed.

A few Member States found that the Directive did entail minor costs
for temporary-work agencies (Austria, Germany) and/or user undertakings
(Finland, Germany, Poland), whereas the United Kingdom cited increased
wage costs for agencies, as well as costs for agencies and user undertakings
due to information obligations. Other Member States did not refer to any
significant costs or obstacles for agencies or users. No Member State has any up-to-date information on the level of costs incurred.

Cyprus stated that no temporary-work
agencies were as yet operating on its territory.

As for the European social partners, BusinessEurope referred to
substantial compliance costs for temporary-work agencies in some Member States
and to considerable social costs resulting from poor implementation or
non-implementation of Article 4. Eurociett mentioned increased costs for
agencies in countries such as the United Kingdom and Ireland and stressed that it accepted and supported this increase since it supported
the adoption of the Directive. It also referred to costs linked to the
insufficient transposition of certain provisions of the Directive, while for
CEEP[10],
the Directive had significantly increased costs for employers, in particular
where equal treatment had not been in place before the transposition of the
Directive. However, none of these employers' organisations provided a quantification
of the costs they mentioned. UEAPME[11]
was not aware of any particularly costly rules for user undertakings.

ETUC[12]
said that Article 12 of the Directive, which is the legal basis for this
report, did not envisage a cost assessment and that there was no study showing
an increase in costs for agencies due to the transposition of the Directive. In
the view of UNI-Europa, costs do not put any obstacles in the way of
temporary-work agencies or user undertakings.

On the question of whether there is any information available on
the costs borne by SMEs and/or micro-enterprises, no Member State has any such information. Germany said that the Directive did entail costs for
both temporary-work agencies and user undertakings. In the view of Austria and Belgium, the Directive cannot be considered as particularly burdensome for
SMEs.

The European social partners did not provide any information on this
issue. ETUC considered it inappropriate to use the results of the ‘Top Ten’
consultation as a basis for future work.

Besides, several Member States, when consulted, mentioned that any
overall assessment of costs resulting from the Directive should also take into
account the benefits it has brought.

9.           Relationship
between the Directive on temporary agency work and other EU legislation

Article 3(2), second
subparagraph, states that Member States shall not exclude workers or employment
relationships from the scope of the Directive solely because they relate to
part-time workers, fixed-term contract workers or persons with an employment
relationship with a temporary-work agency. This provision makes clear that agency
workers working on a part-time basis or under a fixed-term contract cannot be
excluded from the scope of Directive 2008/104/EC on the grounds of their being ‘atypical’
workers.

The Court of Justice has
confirmed that Directive 1999/70/EC on fixed-term work does not apply to the
fixed-term employment relationship between an agency worker and a
temporary-work agency.[13] Consequently, even if agency workers are employed under a
fixed-term contract of employment, their three-way employment relationship is
not governed by the Directive on fixed-term work, which only applies to direct
employment relationships between an employer and a worker.

As regards the
relationship between Directive 2008/104/EC on temporary agency work and
Directive 96/71/EC[14] on the posting of workers, recital 22 of Directive
2008/104/EC states that it should be implemented in compliance with the
provisions of the Treaty on the freedom to provide services and the freedom of
establishment and without prejudice to Directive 96/71/EC. The Directive on
temporary agency work in principle covers national situations, whereas the
Directive on the posting of workers is specifically aimed at cross-border
situations. The Directive on temporary agency work fully applies to mobile
workers who work in a Member State other than their own as if they were
national workers, while the Directive on posting only applies to posted
workers, i.e. workers who, for a limited period, carry out their work in the
territory of a Member State other than the State in which they normally work.

Pursuant to its Article
1(3)(c), the Directive on the posting of workers notably applies to a temporary
employment undertaking or placement agency which hires out a worker to a user
undertaking established or operating in the territory of a Member State,
provided there is an employment relationship between the temporary employment
undertaking or placement agency and the worker during the period of posting.

In accordance with Article
3(1) of the same Directive, with respect to posted workers, certain terms and
conditions of employment, which include ‘the minimum rates of pay, including
overtime rates’ and ‘the conditions of hiring-out of workers, in particular the
supply of workers by temporary employment undertakings’, have to be respected
to the extent that they are set by law or universally applicable collective
agreements. As stated in recital 22 of Directive 2008/104/EC referred to above,
the above-mentioned provisions of the Directive on the posting of workers take
precedence over the provisions of the Directive on temporary agency work.
However, Member States may provide that temporary agency workers posted to
their territory should be granted equal treatment as regards the terms and
conditions applicable to temporary workers in the Member State where the work
is carried out, in conformity with Article 3(9) of the Directive on the posting
of workers.

10.         Possible
amendments

The questionnaire referred
to under point 8 also raised the issue whether on the basis of the
experience gained since the Directive became fully applicable in December 2011,
it had achieved its social policy goals as set out in Article 2.

In accordance with Article
12, this report should consider any amendment to the Directive that would
appear to be appropriate. The Commission also raised this point in the
questionnaire by asking whether any provision of the Directive needs
clarification and, if yes, which provisions and what are the problems
encountered.

On the first question,
most Member States considered that the Directive had indeed achieved its social
policy goals or that it represented an important step in the development of a
social Europe. A few of them pointed to practical difficulties encountered for
reasons unrelated to the Directive (Slovakia, Slovenia), but no Member State replied that the Directive had failed to achieve its goals. Bulgaria found it difficult to answer the question because temporary-work agencies have only been
in operation there for a short period, while the United Kingdom did not
have any data enabling it to answer the question. Cyprus could not reply
either, in the absence of any temporary-work agencies in the country.

For BusinessEurope and
Eurociett, however, the objectives of the Directive have not been fully
achieved. They replied that a substantial number of unjustified restrictions to
temporary agency work remained in place in some Member States, or had even been
introduced recently. Examples included sectoral bans, unreasonable limits on
the maximum length of assignments, too limited reasons for use and quotas on
the maximum number of agency workers. They said such restrictions should be
lifted. For their part, UEAPME and, to a certain extent, CEEP were of the view
that the Directive had fulfilled its social policy objectives.

ETUC stressed that the
deadline for the transposition of the Directive was relatively recent and that
many Member States had carried out the transposition belatedly. For those
reasons, it was too early for a decent evaluation of the situation at national
level. UNI-Europa was of the view that in most Member States, the objectives
set out in Article 2 of the Directive had already largely been achieved by
national legislation before the Directive entered into force.

On the second question,
the vast majority of Member States found that at this stage, there was no need
for clarification or review of any of the Directive’s provisions. For Bulgaria and Poland, it was premature to raise such issues. Together with Cyprus, Bulgaria pointed to a lack of practical experience of temporary-agency work. Portugal stressed the importance of guaranteeing that the Directive was correctly
transposed in all Member States.

Finland said Article 4 of the Directive was unclear, in particular
regarding whether it obliges Member States to adopt national legislation in
line with Article 4(1) citing the reasons that can justify prohibitions and
restrictions on the use of agency work.

In the view of
BusinessEurope, the Directive needed not revision, but proper implementation of
its Article 4 in Member States where unjustified barriers to the use of agency
work remain in place. BusinessEurope called on the Commission to adopt an
interpretative communication on Article 4 and to encourage the lifting of
unjustified restrictions in country-specific recommendations, if necessary,
through infringement proceedings. Eurociett did not consider it necessary to
revise the Directive either. However, it added that if substantial progress in
the implementation of Article 4 were not possible, it might consider calling
for a conditional, limited revision of this article. UEAPME did not see any
need for a review of the Directive at this stage, while CEEP referred to a need
to clarify certain national implementing measures rather than the Directive
itself.

ETUC said that given the
delayed transposition in a number of Member States, it was too early to decide
whether the Directive needed to be reviewed. However, it finds the derogations
to the principle of equal treatment very problematic, especially Article 5(2)
as applied in some Member States.

UNI-Europa is of the
opinion that the Directive should be revised. It considers that the derogations
provided for in Articles 5(3) and 5(4) need to be removed, since they directly
contravene the principle of equal treatment. Besides, in the absence of any
limitation on  successive assignments in the Directive, the notion of ‘misuse’
in the application of Article 5 should be clarified.

11.         Conclusions

The Directive aims to
reach a fair balance between, on the one hand, improving the protection of
temporary agency workers, in particular by establishing the principle of equal
treatment, and, on the other hand, supporting the positive role that agency
work can play by providing sufficient flexibility in the labour market.

The Commission
acknowledges the significant work that has been carried out on transposition of
the Directive, in particular in Member States where there was either no
legislation specifically regulating temporary agency work, or where the
principle of equal treatment was recognised in national law for the first time.

The above analysis shows
that, in general, the provisions of the Directive seem to have been correctly
implemented and applied. However, the analysis has also shown that the twofold
goal of the Directive has not yet been fully fulfilled. On one hand, the extent
of the use of certain derogations to the principle of equal treatment may, in
specific cases, have led to a situation where the application of the Directive
has no real effects upon the improvement of the protection of temporary agency
workers. On the other hand, the review of restrictions and prohibitions on the
use of temporary agency work has served, in the majority of cases, to
legitimate the status quo, instead of giving an impetus to the rethinking of
the role of agency work in modern, flexible labour markets.

The Commission will
continue to closely monitor the application of the Directive, taking into
account further developments in the fields of labour law and temporary agency work,
to ensure that its goals are adequately achieved and that its provisions are
completely and correctly transposed in all Member States. In this context, the
Commission will work in close contact with the Member States and the social
partners within the working group that will follow the application of the
Directive, as well as in other fora.

In addition, the
Commission intends to tackle any problems in the implementation of the
Directive with the appropriate means, including infringement proceedings where
necessary. Complaints lodged with the Commission against Member States,
petitions and preliminary questions to the Court of Justice may also constitute
an important source of information as to national measures or practices that
would be incompatible with the Directive.

Against the background of
the European Semester, if the Commission identifies specific regulatory burden
aspects as obstacles to growth and competitiveness in its assessment of
national obstacles to the activity of temporary-work agencies, it will consider
including recommendations to the Member States concerned in the
country-specific measures.

As regards possible
amendments to the Directive, more time is needed to accumulate experience in
its application and to determine whether it has fully reached its objectives.
Its transposition period expired in December 2011 and some of the Directive’s national
implementing provisions were adopted only in spring 2013. There is as yet no case
law of the Court of Justice on its application.

In that context and in the
light of the Commission’s own assessment of the application of the Directive,
taking into account views expressed by Member States and European social
partners during the consultation process for this report, the Commission takes
the view that no amendments are necessary at this stage.

Accompanying Commission Staff Working
Document:

-   overview on options chosen by Member States for the
implementation of the Directive into national law

-    overview of the reports of the Member States on the results of
the review of restrictions and prohibitions on the use of temporary agency work

[1] Directive 2008/104/EC of the European Parliament and of the Council
of 19 November 2008 on temporary agency work, OJ L 327, 5.12.2008, p. 9.

[2] Directive 2006/123/EC of the European Parliament and of the Council
of 12 December 2006 on services in the internal market, OJ L 376, 27.12.2006,
p. 36.

[3] Nothing in this report should be understood as prejudging a position
which the Commission may take in the future in any legal proceedings.

[4] In accordance with the Treaty rules on the internal market, all
services provided for remuneration must be classified as economic activities.
According to Court of Justice case law, the service does not necessarily have
to be paid for by those for whom it is performed, but there must be a
consideration for the service in question. Activities which are not performed
in return for a consideration, e.g. by the State or on its behalf in the
framework of its missions in the social field (for instance, courses taught
under the national education system or in an establishment of higher education
which is financed essentially out of public funds) do not constitute economic
activities (see Commission Staff Working Document ‘Guide to the application of
the European Union rules on state aid, public procurement and the internal
market to services of general economic interest, and in particular to social
services of general interest’ (SEC(2010) 1545 final of 7.12.2010), notably
points 6.1 to 6.3).

[5]
Compliance with Council Directive 92/85/EEC of 19 October 1992 on the
introduction of measures to encourage improvements in the safety and health at
work of pregnant workers and workers who have recently given birth or are
breastfeeding (OJ L 348, 28.11.1992, p. 1), Directive 2006/54/EC of the
European Parliament and of the Council of 5 July 2006 on the implementation of
the principle of equal opportunities and equal treatment of men and women in
matters of employment and occupation (OJ L 204, 26.7.2006, p. 23), Council
Directive 2000/43/EC of 29 June 2000 implementing the principle of equal
treatment between persons irrespective of racial or ethnic origin (OJ L 180,
19.7.2000, p. 22) and Council Directive 2000/78/EC of 27 November 2000
establishing a general framework for equal treatment in employment and
occupation (OJ L 303, 2.12.2000, p. 16) has not been monitored in this report.

[6] Council Directive 91/383/EEC of 25 June 1991 supplementing the
measures to encourage improvements in the safety and health at work of workers
with a fixed-duration employment relationship or a temporary employment
relationship, OJ L 206, 29.7.1991, p. 19.

[7] Out of a total of 995 respondents, among which 768 were SMEs based
in the EU or organisations representing SMEs’ interests in the EU, 59 have
identified Directive 2008/104/EC as one of the most burdensome pieces of EU
legislation.

[8] Staff Working Document ‘Monitoring and Consultation on Smart
Regulation for SMEs’ (SWD(2013) 60 final) accompanying the Communication from
the Commission to the European Parliament, the Council, the European Economic
and Social Committee and the Committee of the Regions ‘Smart regulation —
responding to the needs of small and medium-sized enterprises’ (COM(2013) 122
final).

[9] Communication from the Commission to the European Parliament, the
Council, the European Economic and Social Committee and the Committee of the
Regions ‘Commission follow-up to the ‘Top Ten’ Consultation of SMEs on EU
Regulation’, COM(2013) 446 final of 18 June 2013.

[10] European Centre of Employers and Enterprises providing Public
services.

[11] European Association of Craft, Small and Medium-sized Enterprises.

[12] European Trade Union Confederation.

[13]
ECJ 11 April 2013, Case C-290/12 Oreste Della Rocca v Poste Italiane SpA..

[14] Directive 96/71/EC of the European Parliament and of the Council of
16 December 1996 concerning the posting of workers in the framework of the
provision of services, OJ L 18, 21.1.1997, p. 1.