# C_2022191EN.01000301.xml

| 10.5.2022 | EN | Official Journal of the European Union | C 191/3 |
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10.5.2022

EN

Official Journal of the European Union

C 191/3

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Judgment of the Court (Second Chamber) of 17 March 2022 (request for a preliminary ruling from the Landesarbeitsgericht Berlin-Brandenburg — Germany) — NP v Daimler AG, Mercedez-Benz Werk Berlin

(Case C-232/20) (1)

(Reference for a preliminary ruling - Social policy - Directive 2008/104/EC - Temporary agency work - Article 1(1) - ‘Temporarily’ assigned - Concept - Employment in a permanent job - Article 5(5) - Successive assignments - Article 10 - Sanctions - Article 11 - Derogation by the parties to a collective agreement from the maximum assignment period prescribed by the national legislature)

(2022/C 191/03)

Language of the case: German

Referring court

Landesarbeitsgericht Berlin-Brandenburg

Parties to the main proceedings

Applicant: NP

Defendant: Daimler AG, Mercedez-Benz Werk Berlin

Operative part of the judgment

| 1. | Article 1(1) of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work, is to be interpreted as meaning that the term ‘temporarily’, referred to in that provision, does not preclude the assignment of a worker with a contract of employment or an employment relationship with a temporary-work agency to a user undertaking for the purpose of filling a job which is permanent and which is not performed to provide cover. |
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1.

Article 1(1) of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work, is to be interpreted as meaning that the term ‘temporarily’, referred to in that provision, does not preclude the assignment of a worker with a contract of employment or an employment relationship with a temporary-work agency to a user undertaking for the purpose of filling a job which is permanent and which is not performed to provide cover.

| 2. | Articles 1(1) and 5(5) of Directive 2008/104 are to be interpreted as meaning that the renewal of successive assignments for the same job to a user undertaking for a duration of 55 months constitutes a misuse of the attribution of successive assignments to a temporary agency worker, should the successive assignments of the same temporary agency worker to the same user undertaking result in a period of service with that undertaking which is longer than can reasonably be characterised as ‘temporary’, in the light of all the relevant circumstances, which include in particular the specific nature of the sector, and in the context of the national legislative framework, no explanation having been given for the user undertaking having had recourse to a series of successive temporary agency contracts, which is for the referring court to decide. |
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2.

Articles 1(1) and 5(5) of Directive 2008/104 are to be interpreted as meaning that the renewal of successive assignments for the same job to a user undertaking for a duration of 55 months constitutes a misuse of the attribution of successive assignments to a temporary agency worker, should the successive assignments of the same temporary agency worker to the same user undertaking result in a period of service with that undertaking which is longer than can reasonably be characterised as ‘temporary’, in the light of all the relevant circumstances, which include in particular the specific nature of the sector, and in the context of the national legislative framework, no explanation having been given for the user undertaking having had recourse to a series of successive temporary agency contracts, which is for the referring court to decide.

| 3. | Directive 2008/104 is to be interpreted as precluding a national law which prescribes a maximum assignment period of the same temporary agency worker to that same user undertaking, where that law excludes, by means of a transitional provision, for the purposes of calculating that period, account being taken of periods predating the entry into force of that law, which deprive the national court of the possibility of taking into account the actual period of assignment of a temporary agency worker for the purpose of establishing whether that assignment was ‘temporary’, within the meaning of that directive, which is for that court to decide. A national court before which a dispute exclusively between private parties has been brought is not required, solely on the basis of EU law, to disapply such a transitional provision which is contrary to EU law. |
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3.

Directive 2008/104 is to be interpreted as precluding a national law which prescribes a maximum assignment period of the same temporary agency worker to that same user undertaking, where that law excludes, by means of a transitional provision, for the purposes of calculating that period, account being taken of periods predating the entry into force of that law, which deprive the national court of the possibility of taking into account the actual period of assignment of a temporary agency worker for the purpose of establishing whether that assignment was ‘temporary’, within the meaning of that directive, which is for that court to decide. A national court before which a dispute exclusively between private parties has been brought is not required, solely on the basis of EU law, to disapply such a transitional provision which is contrary to EU law.

| 4. | Article 10(1) of Directive 2008/104 is to be interpreted as meaning that in the absence of a provision of national law intended to impose penalties for non-compliance with that directive by temporary work agencies or by user undertakings, the temporary agency worker cannot derive an individual right from EU law at the establishment of an employment relationship with a user undertaking. |
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4.

Article 10(1) of Directive 2008/104 is to be interpreted as meaning that in the absence of a provision of national law intended to impose penalties for non-compliance with that directive by temporary work agencies or by user undertakings, the temporary agency worker cannot derive an individual right from EU law at the establishment of an employment relationship with a user undertaking.

| 5. | Directive 2008/104 is to be interpreted as not precluding a national law which empowers the social partners to derogate, at the level of the branch of user undertakings, from the maximum assignment period of a temporary agency worker prescribed by such a provision. |
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5.

Directive 2008/104 is to be interpreted as not precluding a national law which empowers the social partners to derogate, at the level of the branch of user undertakings, from the maximum assignment period of a temporary agency worker prescribed by such a provision.

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(1)  OJ C 279, 24.8.2020.

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