Judgment;Summary — ECLI:EU:C:2023:505
Date: 2023-06-22
Language of the case: German
Court formation: Sixth Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-427/21 – 1 
Case C-427/21 
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: 
14 July 2021 
Referring court: 
Bundesarbeitsgericht (Germany) 
Date of the decision to refer: 
16 June 2021 
Applicant: 
LD 
Defendant: 
ALB FILS KLINIKEN GmbH 
  
Subject matter of the main proceedings 
The parties are in dispute as to the applicant’s obligation to carry out his 
contractually agreed work for a third party on a permanent basis, after his area of 
responsibility was assigned to that third party. 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of EU law, Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Do Articles 1(1) and (2) of Directive 2008/104/EC of the European 
Parliament and of the Council of 19 November 2008 on temporary agency 
work apply if – as specified in Paragraph 4(3) of the Tarifvertrag für den 
Öffentlichen Dienst (collective agreement for the public service, ‘the 
TVöD’) – an employee’s duties are assigned to a third party and this 
employee must, at the request of his or her current employer while the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-427/21 
 
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existing employment relationship with the latter continues, perform his or 
her contractually agreed work for said third party on a permanent basis and 
accept technical and organisational instructions from the third party? 
2. If Question 1 is answered in the affirmative: 
Is it consistent with the protective purpose of Directive 2008/104/EC to 
exclude ‘supply of staff’ within the meaning of Paragraph 4(3) of the TVöD 
from the scope of the national protective provisions for personnel leasing, as 
point 2b of Paragraph 1(3) of the Gesetz zur Regelung der 
Arbeitnehmerüberlassung (Law on personnel leasing, ‘the AÜG’) does, 
meaning that these protective provisions are not applicable to cases 
involving supply of staff? 
Provisions of EU law relied on 
Directive 2008/104/EC of the European Parliament and of the Council of 
19 November 2008 on temporary agency work, in particular Article 1(1) and (2), 
Article 2 and Article 3(1)(a) to (e). 
Provisions of national law relied on 
Tarifvertrag für den Öffentlichen Dienst (collective agreement for the public 
service, ‘the TVöD’) applicable to the Vereinigung der kommunalen 
Arbeitgeberverbände (Federation of Municipal Employers’ Associations, ‘the 
VKA’) – General Section – of 13 September 2005, in particular Paragraph 4(3) 
and the explanatory notes to this provision. 
The first sentence of Paragraph 4(3) of the TVöD reads: 
‘Where the duties of employees are assigned to a third party, the contractually 
agreed work shall be performed for the third party at the employer’s request while 
the existing employment relationship continues (supply of staff)’. 
The explanatory notes to that provision read as follows: 
‘Supply of staff shall – while the existing employment relationship continues – 
involve permanent employment with a third party. […]’ 
Gesetz zur Regelung der Arbeitnehmerüberlassung (Law on personnel leasing, 
‘the AÜG’) of 7 August 1972 in the version published on 3 February 1995 (BGBI, 
p. 158), last amended by the Law of 13 March 2020 (BGBI, p. 493), in particular 
point 2b of Paragraph 1(3), which provides: 
‘This law shall not apply to personnel leasing 
[…] 
ALB FILS KLINIKEN 
 
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2b. between employers where an employee’s duties are transferred from their 
current employer to another employer and, on the basis of a collective agreement 
for the public service, 
a) the employment relationship with the current employer continues; and 
b) the work is now to be performed for the other employer, 
[…]’ 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant has been employed by the defendant since April 2000. The 
defendant, a company organised under private law, runs a hospital. Its legally 
responsible body and sole shareholder is Landkreis G, a legal person governed by 
public law. The defendant does not possess the authorisation required under 
national law for personnel leasing. The employment relationship between the 
parties is governed by the collective agreement for the public service, in the 
version applicable to municipal employers (‘the TVöD’). 
2 In June 2018, the defendant outsourced several divisions, including that in which 
the applicant works, to the newly founded company A Service GmbH. This 
company is a wholly owned subsidiary of the defendant. The applicant availed 
himself of the possibility granted under national law to oppose the transfer of his 
employment relationship to A Service GmbH. 
3 As a result of his opposition, the employment relationship agreed between the 
applicant and the defendant is still in place, with the same content as before. 
However, since June 2018, the applicant has carried out his contractually agreed 
work for A Service GmbH, which has provided him with technical and 
organisational instructions. The legal basis for this is supply of staff within the 
meaning of Paragraph 4(3) of the TVöD. The applicant’s assignment to A Service 
GmbH is permanent. 
4 The applicant is seeking a judgment finding that he is not obliged to provide his 
contractually agreed work to A Service GmbH under a supply of staff 
arrangement within the meaning of Paragraph 4(3) of the TVöD. He claims that 
his assignment to A Service GmbH infringed EU law and that that supply of staff 
within the meaning of Paragraph 4(3) of the TVöD involved a permanent – and 
thus unlawful under Directive 2008/104 – leasing of personnel. 
5 The previous instances dismissed the action. The referring court is called on to 
rule on the appeal on a point of law. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-427/21 
 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
6 Supply of staff is permitted under national law. Point 2b of Paragraph 1(3) of the 
AÜG excludes it from the scope of the Law on personnel leasing, which 
transposes Directive 2008/104. The outcome of the dispute therefore depends 
essentially on whether supply of staff within the meaning of Paragraph 4(3) of the 
TVöD does indeed constitute personnel leasing for the purposes of Directive 
2008/104 and, if the Court of Justice should answer this question in the 
affirmative, whether excluding supply of staff from the scope of the Law on 
personnel leasing through point 2b of Paragraph 1(3) of the AÜG is compatible 
with Article 1(1) and (2) and Article 2 of the directive. 
The first question 
7 Regarding the question whether Directive 2008/104 applies in the present case, 
the referring court first notes that, according to the requirements of Directive 
2008/104, supply of staff within the meaning of Paragraph 4(3) of the TVöD 
could by definition constitute personnel leasing. However, it is also conceivable 
that supply of staff, on account of its particularities and the objective it pursues, 
namely guaranteeing that an employee whose duties have been permanently 
assigned to a third party can retain his or her existing employment relationship, 
including his or her current contractual arrangements and collective labour 
agreements, differs so markedly from the model of temporary agency work on 
which Directive 2008/104 is based that it does not fall within the scope of that 
directive. 
8 Supply of staff under Paragraph 4(3) of the TVöD gives the employee the 
opportunity to maintain his or her employment relationship with his or her 
contractual employer, with the content of the contract and the conditions of 
employment remaining unchanged. Supply of staff within the meaning of 
Paragraph 4(3) of the TVöD thus applies exclusively to employees in permanent 
employment relationships whose duties are transferred to a third party, and seeks 
to ensure the permanent continuation of his or her employment relationship and to 
safeguard his or her conditions of employment. 
9 In the view of the referring court, the applicability of Directive 2008/104 to supply 
of staff within the meaning of Paragraph 4(3) of the TVöD is also countered by 
the fact that the employees involved in the supply of staff arrangement were 
originally hired to carry out duties for the employer itself and, as the applicant’s 
case shows, may have done this work for years. The employment relationship was 
thus definitely not entered into, as provided for by Article 3(1)(c) of Directive 
2008/104, for the purpose of assigning the employee to a user undertaking. 
10 The fact that supply of staff within the meaning of Paragraph 4(3) of the TVöD is 
permanent by its very nature also suggests that it does not come within the scope 
of Directive 2008/104. It is intended to guarantee protection and security for 
employees whose duties are permanently abolished by their contractual employer, 
ALB FILS KLINIKEN 
 
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thus avoiding the risk of loss of employment or a change of employer and any 
potential resulting disadvantages. According to the case-law of the Court of 
Justice, the assignment of an employee to a user undertaking within the meaning 
of Directive 2008/104 is temporary by its very nature, and the Member States are 
obliged to ensure that temporary agency work at the same user undertaking does 
not become a permanent situation for a temporary agency worker (judgment of 
14 October 2020, KG (Successive assignments in the context of temporary agency 
work), C-681/18, EU:C:2020:823). The nature of a supply of staff arrangement 
could prevent the risk of employers circumventing the directive with successive 
assignments and, thus, the risk of abuse. In that regard, unlike temporary agency 
work within the meaning of Directive 2008/104, it cannot be necessary to limit the 
duration of a supply of staff arrangement in order to prevent abuse by employers 
to the detriment of the assigned employee. Rather, it would invalidate the 
protection that a supply of staff arrangement is intended to provide. 
11 Lastly, it is not clear whether supply of staff within the meaning of Paragraph 4(3) 
of the TVöD can be classified as an ‘economic activity’ of the contractual 
employer as required by Article 1(2) of Directive 2008/104. According to the 
case-law of the Court of Justice, ‘economic activities’ within the meaning of 
Article 1(2) of Directive 2008/104 are any activity consisting in offering goods or 
services on a given market (judgments of 17 November 2016, Betriebsrat der 
Ruhrlandklinik, C-216/15, EU:C:2016:883, paragraph 44, of 23 February 2016, 
Commission v Hungary, C-179/14, EU:C:2016:108, paragraph 149, and of 1 July 
2008, MOTOE, C-49/07, EU:C:2008:376, paragraph 22). According to the 
wording of Article 1(2) of Directive 2008/104, the fact that an assigning 
undertaking does not operate for gain does not preclude economic activity, which 
could indicate that Directive 2008/104 also extends to cover supply of staff. 
Furthermore, financial compensation covering at least personnel costs and 
administration costs is regularly paid by the third party as part of a supply of staff 
arrangement (on this characteristic, judgment of 17 November 2016, Betriebsrat 
der Ruhrlandklinik, C-216/15, EU:C:2016:883, paragraph 45). However, it is not 
clear that supply of staff constitutes an activity of the contractual employer 
consisting in offering goods or services on a given market. 
The second question 
12 If the Court answers the first question referred for a preliminary ruling in the 
affirmative and supply of staff within the meaning of Paragraph 4(3) of the TVöD 
comes, in principle, within the scope of Directive 2008/104, in the view of the 
referring court, it needs to be clarified whether the exclusion of supply of staff 
from the scope of the Law on personnel leasing through point 2b of 
Paragraph 1(3) of the AÜG, in light of the objective it pursues of protecting jobs 
and employment, is compatible with the protective purpose of the directive. 
13 The referring court notes in this regard, first, that in the view of the national 
legislature, excluding supply of staff within the meaning of Paragraph 4(3) of the 
TVöD from the scope of the AÜG is intended to take account of the fact that 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-427/21 
 
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supply of staff is to be regarded as a particular form of assignment of duties and is 
in the interests of the employee whose duties have been assigned. The national 
legislature took the view that employees involved in a supply of staff arrangement 
do not require the protection granted by the AÜG, because their existing 
conditions of employment continue to apply and the typical risks of personnel 
leasing, in particular a high degree of job insecurity and constantly being assigned 
to different sites, are not present. Rather, the assigned employee remains with his 
or her current employer. 
14 Secondly, in the opinion of the referring court, it is not clear whether point 2b of 
Paragraph 1(3) of the AÜG prevents the protective purpose of Directive 2008/104 
from being achieved. According to recital 12 of Directive 2008/104, a protective 
framework should be established for temporary agency workers which is non-
discriminatory, transparent and proportionate, while respecting the diversity of 
labour markets and industrial relations. By virtue of that protective purpose, it 
could be compatible with the requirements of Directive 2008/104 to exclude 
employees who are assigned to a third party under Paragraph 4(3) of the TVöD 
from the protective provisions of the AÜG, because this form of personnel 
assignment already protects and safeguards employment relationships and their 
work conditions and the strict conditions for the application of that provision 
preclude the risk of abuse to the detriment of employees. On the contrary, the 
legal consequences set out in the Law on personnel leasing to protect temporary 
agency workers (such as establishing an employment relationship with the leasing 
party) could conflict with the interests of employees assigned as part of a supply 
of staff arrangement. The latter need protection when their duties are assigned to a 
third party not as a result of a precarious employment relationship, but because 
their employment relationship with their contractual employer is at risk. That is 
why a supply of staff arrangement ensures that the employment relationship 
continues under the existing terms of the collective agreement and that the 
employee continues to work in a familiar area.