Opinion of the Advocate General — ECLI:EU:C:2020:300
Date: 2020-04-23
Language of the case: Italian
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
31 October 2018 
Referring court:  
Tribunale ordinario di Brescia (Italy) 
Date of the decision to refer:  
16 October 2018 
Applicant:  
JH 
Defendant:  
KG 
  
Subject matter of the action in the main proceedings 
Action brought by a temporary agency worker seeking the establishment of an 
employment contract of indefinite duration with the user undertaking, claiming in 
that regard that the latter’s uninterrupted use of supply work from 3 March 2014 
to 30 November 2016 by means of repeated extensions of the contract in question 
was unlawful. 
Subject matter and legal basis of the reference 
Interpretation of the restrictions imposed by Directive 2008/104/EC on temporary 
agency work and, in particular, the question of whether national legislation which 
allows the general use of supply work by the same user undertaking, beyond 
precise time limits and specific technical, production, organisational or 
replacement reasons, is contrary to that directive. 
Article 267 TFEU 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-681/18 
 
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Question referred 
Must Article 5(5) of Directive 2008/104/EC of 19 November 2008 be interpreted 
as precluding the application of Legislative Decree No 276/2003, as amended by 
Decree Law 34/2014, which: (a) does not place limits on successive assignments 
of the same worker to the same user undertaking; (b) does not require that, in 
order for the use of fixed-term supply work to be lawful, there must be technical, 
production, organisational or replacement reasons for having recourse to such 
supply work; (c) does not provide that, in order for the use of such a form of 
employment contract to be lawful, the production requirement of the user 
undertaking must be temporary in nature? 
Provisions of EU law invoked 
Directive 2008/104/EC of the European Parliament and of the Council of 
19 November 2008 on temporary agency work: in particular recitals 10 and 15 
and Articles 1, 2, 3 and 5 
Provisions of national law invoked 
A) Decreto legislativo 10 settembre 2003, n. 276, recante “Attuazione delle 
deleghe in materia di occupazione e mercato del lavoro, di cui alla legge 
14 febbraio 2003, n. 30”, come modificato dal decreto legge 34/2014, convertito 
con modificazioni dalla legge 78/2014 (Legislative Decree No 276/2003 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) (‘Legislative 
Decree No 276/2003’) 
In particular, the legislative amendment of 2014 removed from Article 20(4) of 
Legislative Decree No 276/2003 both the provision which stated ‘the use of fixed-
term supply work 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. 
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 in any event be extended, with the written consent of the worker, in 
the circumstances and for the duration provided for in by the CCNL (national 
collective labour agreement) by which the agency is bound. 
Article 27 of Legislative Decree No 276/03, headed ‘Unlawful use of temporary 
supply workers’, provides that, if the supply of workers does not remain within 
KG 
 
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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, request that an 
employment relationship be declared to exist between himself and the user, with 
effect from the beginning of the supply. 
(B) Decreto legislativo 6 settembre 2001, n. 368 recante “Attuazione della 
direttiva 1999/70/CE relativa all’accordo quadro sul lavoro a tempo determinato 
concluso dall’UNICE, dal CEEP e dal CESA” (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) in its 
version applicable ratione temporis. 
Article 1. Imposition of a fixed term 
‘01. Employment contracts of an indefinite duration shall be the general form of 
employment relationship. 
1. A fixed term may be established for the duration of a contract of 
employment; such term shall be no longer than 36 months, inclusive of any 
extensions, and shall be concluded between an employer and a worker for the 
performance of any kind of duties, either in the form of a fixed-term contract, or 
under a fixed-term contract for the supply of work, pursuant to ... Legislative 
Decree No 276 of 10 September 2003. ...’ 
Article 5. Expiry of term and penalties — Successive contracts 
‘... 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 fixed terms, which shall be 
understood to mean relationships between which there is no break in continuity, 
the employment relationship shall be considered to be of indefinite duration from 
the date on which the first contract was made. 
4-bis. Without prejudice to the rules on successive contracts set out in the 
preceding paragraphs and without prejudice to the various provisions set out in 
collective agreements ..., where, as a result of a succession of fixed-term contracts 
for the performance of equivalent tasks, an employment relationship between the 
same employer and the same worker continues for an overall period of more than 
36 months, including any extensions and renewals, disregarding any breaks 
between one contract and another, the employment relationship shall be regarded 
as being a relationship of indefinite duration ..’. 
(C) Articles 1344 and 1421 of the Italian Civil Code, which provide that contracts 
entered into for the purpose of circumventing the application of mandatory rules 
are invalid  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-681/18 
 
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Succinct presentation of the facts and the procedure in the main proceedings 
1 JH, a worker hired by a temporary-work agency, was employed at the company 
KG (the user undertaking), as a machine and lathe worker from 3 March 2014 to 
30 November 2016 by means of successive contracts for the temporary supply of 
work (eight in total) and extensions (16 in total). 
2 JH brought proceedings against the company KG before the referring court 
pursuant to Article 27 of Legislative Decree No 276/2003. 
3 The applicant claimed that the referring court should: 
(a) find and declare that the contracts for the temporary supply of work 
under which he worked for the defendant company are unlawful and/or 
invalid; 
(b) declare, in his favour, that an employment relationship of indefinite 
duration exists between the applicant and the defendant; 
(c) order the defendant to reinstate the applicant, and to pay him due 
compensation and the corresponding social security contributions and 
taxes in respect of him. 
4 The defendant company has not defended this action. 
Main arguments of the parties in the main proceedings 
5 The applicant put forward the following pleas: 
(a) exceedance of the maximum number of extensions allowed and failure 
to indicate the reasons for using temporary supply of work, contrary to 
the CCNL (national collective labour agreement) for the category of 
temporary-work agencies, signed on 27 February 2014; 
(b) absence of exceptional, temporary or interim reasons for the individual 
contracts and, in any event, infringement of the EU rules on successive 
supply contracts, in particular Article 5(5) of Directive 2008/104/EC; 
(c) consequent invalidity, pursuant to Articles 1344 and 1421 of the Civil 
Code, of the contracts entered into with the defendant, for the purpose 
of circumventing the application of mandatory rules. 
6 However, the applicant has noted that the national law on temporary agency work 
applicable ratione temporis to his case: 
(a) provides for no limitations on giving temporary supply workers ‘successive 
assignments’ to the same user undertaking, contrary to Article 5(5) of Directive 
2008/104/EC; 
KG 
 
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(b) does not require that, in order for the use of temporary supply work to be 
lawful, the production requirement must be temporary, contrary to Directive 
2008/104/EC, in particular recitals 15 and 10 thereof; 
(c) does not prohibit, upon expiry of the sixth extension of the contract and 
without interruption, the conclusion of a new contract. 
7 Accordingly, the applicant has asked the referring court to submit a request to the 
Court of Justice of the European Union that it interpret that directive with 
reference to the national legislation at issue. 
Succinct presentation of the reasons for the request for a preliminary ruling 
8 The referring court has decided to refer a question to the Court of Justice of the 
European Union for a preliminary ruling, observing, in summary, as follows. 
9 The legislation applicable ratione temporis to the contracts at issue in this case is 
Legislative Decree No 276/2003, as amended by Decree Law 34/2014, converted 
into law with amendments by Law 78/2014. 
10 In particular, the legislative amendment of 2014 removed from Article 20(4) of 
Legislative Decree No 276/2003 the provision which stated ‘the use of fixed-term 
supply work 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’, as well as the requirement to indicate such reasons in the 
written contract. 
11 In the light of those provisions, the application brought by JH would inevitably 
have to be dismissed. 
12 Indeed, that legislation does not provide: 
(a) that the contracts must indicate the technical, production or organisational 
reasons, or replacement purposes for using temporary supply work; 
(b) that such reasons must be temporary in nature; 
(c) for any limit on successive assignments of a worker to the same user 
undertaking, given that Article 22 of Legislative Decree No 276/2003 expressly 
excludes the applicability of Article 5(3) of Legislative Decree No 368/2001, 
which, with regard to fixed-term contracts, limits the possibility of entering into 
successive contracts and establishes, in any event, a maximum duration of 36 
months. 
13 Those provisions appear to be at variance with Directive 2008/104/EC in so far as 
they do not allow for any judicial review of the reasons for use of temporary 
supply work and do not place limits on successive assignments of the same 
worker to the same user undertaking. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-681/18 
 
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14 In particular, the referring court agrees with the applicant’s observation that the 
national legislation in question is contrary to recital 15 of Directive 2008/104/EC, 
which recognises contracts of indefinite duration as being the general form of 
employment relationship, and to Article 5(5) of that directive, which requires 
Member States to take appropriate measures to prevent successive assignments 
designed to circumvent its provisions. 
15 In addition, the referring court points out that the national legislation is contrary to 
Articles 1(1) and 3(1)(b), (c), (d) and (e) of Directive 2008/104/EC: all of these 
are provisions which presuppose and stress the temporary nature of the 
assignment of workers to user undertakings. 
16 Lastly, the referring court excludes the applicability of the CCNL (national 
collective labour agreement for temporary-work agencies), signed on 27 February 
2014, invoked in the present action, on the basis that it applies only as regards the 
relationship between workers and temporary-work agencies. Moreover, those 
rules, in their version applicable at the time of the facts, do not require the reasons 
for the use of temporary supply work to be indicated in the contract, or prohibit 
the conclusion of a new contract, immediately after the termination of the sixth 
extension of the previous contract, without interruption. 
17 With regards to the relevance of the question referred, the referring court notes 
that, if Directive 2008/104/EC were found to preclude the national legislation 
referred to above, JH’s action would have to be upheld; otherwise, it would have 
to be rejected.