# C_2023054EN.01001101.xml

| 13.2.2023 | EN | Official Journal of the European Union | C 54/11 |
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13.2.2023

EN

Official Journal of the European Union

C 54/11

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Judgment of the Court (Second Chamber) of 15 December 2022 (request for a preliminary ruling from the Bundesarbeitsgericht — Germany) — CM v TimePartner Personalmanagement GmbH

(Case C-311/21) (1)

(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)

(2023/C 54/12)

Language of the case: German

Referring court

Bundesarbeitsgericht

Parties to the main proceedings

Applicant: CM

Defendant: TimePartner Personalmanagement GmbH

Operative part of the judgment

| 1. | Article 5(3) of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work
  must be interpreted as meaning that that provision, by its reference to the concept of ‘overall protection of temporary agency workers’, does not require any account to be taken of a level of protection specific to temporary agency workers that is greater than that laid down for workers in general by provisions on basic working and employment conditions under national and EU law. However, where the social partners, by means of a collective agreement, authorise differences in treatment with regard to basic working and employment conditions to the detriment of temporary agency workers, that collective agreement must, in order to respect the overall protection of the temporary agency workers concerned, afford them advantages in terms of basic working and employment conditions which are such as to compensate for the difference in treatment they suffer. |
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1.

Article 5(3) of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work

must be interpreted as meaning that that provision, by its reference to the concept of ‘overall protection of temporary agency workers’, does not require any account to be taken of a level of protection specific to temporary agency workers that is greater than that laid down for workers in general by provisions on basic working and employment conditions under national and EU law. However, where the social partners, by means of a collective agreement, authorise differences in treatment with regard to basic working and employment conditions to the detriment of temporary agency workers, that collective agreement must, in order to respect the overall protection of the temporary agency workers concerned, afford them advantages in terms of basic working and employment conditions which are such as to compensate for the difference in treatment they suffer.

| 2. | Article 5(3) of Directive 2008/104
  must be interpreted as meaning that compliance with the obligation to respect the overall protection of temporary agency workers must be assessed, in concrete terms, by comparing, for a given job, the basic working and employment conditions applicable to workers recruited directly by the user undertaking with those applicable to temporary agency workers, in order to be able to determine whether the countervailing benefits afforded in respect of those basic conditions can counterbalance the effects of the difference in treatment suffered. |
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2.

Article 5(3) of Directive 2008/104

must be interpreted as meaning that compliance with the obligation to respect the overall protection of temporary agency workers must be assessed, in concrete terms, by comparing, for a given job, the basic working and employment conditions applicable to workers recruited directly by the user undertaking with those applicable to temporary agency workers, in order to be able to determine whether the countervailing benefits afforded in respect of those basic conditions can counterbalance the effects of the difference in treatment suffered.

| 3. | Article 5(3) of Directive 2008/104
  must be interpreted as meaning that the obligation to respect the overall protection of temporary agency workers does not require the temporary agency worker concerned to have a permanent contract of employment with a temporary-work agency. |
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3.

Article 5(3) of Directive 2008/104

must be interpreted as meaning that the obligation to respect the overall protection of temporary agency workers does not require the temporary agency worker concerned to have a permanent contract of employment with a temporary-work agency.

| 4. | Article 5(3) of Directive 2008/104
  must be interpreted as meaning that the national legislature is not required to lay down the conditions and criteria designed to respect the overall protection of temporary agency workers, within the meaning of that provision, where the Member State concerned gives the social partners the option of upholding or concluding collective agreements which authorise differences in treatment with regard to basic working and employment conditions to the detriment of those workers. |
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4.

Article 5(3) of Directive 2008/104

must be interpreted as meaning that the national legislature is not required to lay down the conditions and criteria designed to respect the overall protection of temporary agency workers, within the meaning of that provision, where the Member State concerned gives the social partners the option of upholding or concluding collective agreements which authorise differences in treatment with regard to basic working and employment conditions to the detriment of those workers.

| 5. | Article 5(3) of Directive 2008/104
  must be interpreted as meaning that collective agreements which authorise, under that provision, differences in treatment with regard to basic working and employment conditions to the detriment of temporary agency workers must be amenable to effective judicial review in order to determine whether the social partners have complied with their obligation to respect the overall protection of those workers. |
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5.

Article 5(3) of Directive 2008/104

must be interpreted as meaning that collective agreements which authorise, under that provision, differences in treatment with regard to basic working and employment conditions to the detriment of temporary agency workers must be amenable to effective judicial review in order to determine whether the social partners have complied with their obligation to respect the overall protection of those workers.

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(1)  OJ C 320, 9.8.2021.

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