Opinion of the Advocate General — ECLI:EU:C:2022:581
Date: 2022-07-14
Language of the case: German
Subject matter: Social Policy;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-311/21 – 1 
Case C-311/21 
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: 
18 May 2021 
Referring court: 
Bundesarbeitsgericht (Germany) 
Date of the decision to refer: 
16 December 2020 
Applicant, appellant in first appeal and appellant on a point of law: 
CM 
Defendant, respondent in first appeal and respondent in the appeal on a point 
of law: 
TimePartner Personalmanagement GmbH 
  
Subject matter of the main proceedings 
Temporary agency work, collective agreements, principle of equal treatment 
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. How is the concept of ‘overall protection of temporary agency workers’ in 
Article 5(3) of Directive 2008/104/EC of the European Parliament and of the 
Council of 19 November 2008 on temporary agency work to be defined, and, in 
particular, does it encompass more than what is provided for in the mandatory 
provisions on protection for all workers under national and EU law? 
EN 
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2. What conditions and criteria must be met for the presumption that 
arrangements concerning the working and employment conditions of temporary 
agency workers in a collective agreement which derogate from the principle of 
equal treatment laid down in Article 5(1) of Directive 2008/104/EC have been 
established while respecting the overall protection of temporary agency workers? 
(a) Is the assessment of respect for overall protection to be based – in the 
abstract – on the collectively agreed working conditions of the temporary agency 
workers covered by such a collective agreement or is it necessary to carry out an 
evaluative analysis comparing the collectively agreed working conditions with the 
working conditions existing in the undertaking to which the temporary agency 
workers are assigned (user undertaking)? 
(b) In the case of a derogation from the principle of equal treatment with regard 
to pay, does the respect for overall protection prescribed in Article 5(3) of 
Directive 2008/104/EC require the existence of an employment relationship of 
indefinite duration between the temporary employment agency and the temporary 
worker? 
3. Must the national legislature prescribe the conditions and criteria under 
which the social partners must respect the overall protection of temporary agency 
workers within the meaning of Article 5(3) of Directive 2008/104/EC where the 
national legislature gives the social partners the option of concluding collective 
agreements which establish arrangements concerning the working and 
employment conditions of temporary agency workers which derogate from the 
principle of equal treatment, and the national collective bargaining system 
provides for requirements which can be presumed to ensure an appropriate 
balance of interests between the parties to collective agreements (‘presumption of 
fairness of collective agreements’)? 
4. If the third question is answered in the affirmative: 
(a) Is respect for the overall protection of temporary agency workers within the 
meaning of Article 5(3) of Directive 2008/104/EC ensured by statutory rules 
which, like the version of the Arbeitnehmerüberlassungsgesetz (Law on the 
supply of temporary workers) in force since 1 April 2017, provide for a minimum 
wage floor for temporary workers, for a maximum duration of assignment to the 
same user undertaking, for a time limit on the derogation from the principle of 
equal treatment with regard to pay, for the non-application of a collectively agreed 
arrangement derogating from the principle of equal treatment to temporary 
workers who, in the six months preceding the assignment to the user undertaking, 
left the employ of that user undertaking or an employer forming a group with that 
user undertaking within the meaning of Paragraph 18 of the Aktiengesetz (Law on 
public limited companies) and for an obligation of the user undertaking to grant 
temporary workers access to collective facilities or services (such as, in particular, 
childcare facilities, collective catering and transport) in principle under the same 
conditions as those applicable to permanent workers? 
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(b) If that question is answered in the affirmative: 
Does this also apply if the relevant statutory rules, such as those in the version of 
the Law on the supply of temporary workers in force until 31 March 2017, do not 
provide for a time limit on derogations from the principle of equal treatment with 
regard to pay or a specific time frame for the requirement that the assignment may 
only be ‘temporary’? 
5. If the third question is answered in the negative: 
In the case of arrangements concerning the working and employment conditions 
of temporary agency workers which derogate from the principle of equal 
treatment through collective agreements in accordance with Article 5(3) of 
Directive 2008/104/EC, may the national courts review such collective 
agreements without restriction with a view to determining whether the derogations 
have been established while respecting the overall protection of temporary agency 
workers, or does Article 28 of the Charter and/or the reference to the ‘autonomy 
of the social partners’ in recital 19 of Directive 2008/104/EC grant the parties to 
collective agreements a margin of assessment with regard to respect for the overall 
protection of temporary agency workers that is subject to only limited judicial 
review and – if so – how far does that margin extend? 
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 5 
Charter of Fundamental Rights of the European Union, in particular Article 28 
Provisions of national law relied on 
Grundgesetz für die Bundesrepublik Deutschland (Basic Law for the Federal 
Republic of Germany; ‘the GG’), in particular Article 9 
Gesetz zur Regelung der Arbeitnehmerüberlassung (Law regulating the supply of 
temporary workers; ‘the AÜG’), in particular Paragraphs 3a, 8, 9 and 10 in the 
version in force until 31 March 2017 and Paragraph 8 in the version in force since 
1 April 2017 
Tarifvertragsgesetz (Law on collective agreements), in particular Paragraphs 3, 4 
and 4a 
Gesetz zur Regelung eines allgemeinen Mindestlohns (Law regulating a general 
minimum wage), in particular Paragraph 1 
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Succinct presentation of the facts and procedure in the main proceedings 
1 The parties are in dispute over additional remuneration from the viewpoint of 
equal treatment of temporary agency workers with regard to pay (‘equal pay’) for 
the months of January to April 2017. During that period, the appellant on a point 
of law (‘the appellant’) was employed as a temporary agency worker on the basis 
of a fixed-term employment contract with the respondent in the appeal on a point 
of law (‘the respondent’), which operates as a temporary employment agency on a 
commercial basis. She was employed by a retail company and most recently 
received an hourly wage of EUR 9.23 gross. The appellant is a member of the 
Vereinten Dienstleistungsgewerkschaft (United Service Sector Trade Union; 
‘ver.di’), and the respondent is a member of Interessenverband Deutscher 
Zeitarbeitsunternehmen e. V. (Association representing the interests of German 
temporary employment agencies; ‘iGZ e. V.’). iGZ e. V. has concluded 
framework collective agreements on employment conditions, framework 
collective agreements on pay and collective agreements on pay with several trade 
unions of the Deutscher Gewerkschaftsbund (German Confederation of Trade 
Unions; ‘DGB’) – including ver.di – which provide for a derogation from the 
principle of equality enshrined in Paragraph 8(1) of the AÜG and the first 
sentence of Paragraph 10(4) of the AÜG, old version, in particular a lower rate of 
remuneration than that received by comparable permanent employees of the user 
undertaking. The Arbeitsgericht (Labour Court) dismissed the action. The 
Landesarbeitsgericht (Higher Labour Court) dismissed the appeal on the merits 
initially brought by the appellant. By her appeal on a point of law, the appellant 
continues to pursue her action, while the respondent seeks the dismissal of the 
appeal on a point of law. 
Essential arguments of the parties in the main proceedings 
2 By her action, the appellant seeks payment of EUR 1 296.72 from the respondent 
as the difference between her remuneration and that paid to comparable 
permanent employees of the user undertaking. The appellant takes the view that 
the flexibilisation of collective bargaining in the AÜG and the collective 
agreements applicable to her employment relationship are not compatible with 
Article 5 of Directive 2008/104. She submits that comparable permanent 
employees of the user undertaking are paid according to the collective wage 
agreement for commercial workers in the retail trade and received an hourly wage 
of EUR 13.64 gross during the period in dispute. The respondent requests that the 
action be dismissed and takes the view that, due to the fact that both parties are 
bound by the collective agreement, it owed only the collectively agreed 
remuneration provided for in respect of temporary workers. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
3 The AÜG obliges the temporary employment agency, in principle, to pay 
temporary workers the same wage as that paid to comparable permanent 
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employees by the user undertaking. The AÜG allows a derogation from that 
requirement of equality through a collective agreement, provided that the latter 
does not fall short of the minimum hourly wage rates laid down in a regulation 
pursuant to Paragraph 3a(2) of the AÜG (first sentence of Paragraph 8(2) of the 
AÜG, second clause of point 2 of Paragraph 9 of the AÜG, old version). 
Consequently, the temporary employment agency need grant only the pay 
provided for in the collective agreement to temporary workers (second sentence of 
Paragraph 8(2) of the AÜG, second sentence of Paragraph 10(4) of the AÜG, old 
version). It is only if that pay is lower than the minimum wage laid down in a 
regulation pursuant to Paragraph 3a(2) of the AÜG that the temporary 
employment agency must grant the temporary agency worker the wage to be paid 
in the user undertaking for a comparable employee of that user undertaking for 
each hour worked (fourth sentence of Paragraph 8(2) of the AÜG, third sentence 
of Paragraph 10(4) of the AÜG, old version). 
4 On that basis, the appellant could not claim any further remuneration for the 
duration of her assignment to the user undertaking from the viewpoint of equal 
pay. Her action would be unfounded and her appeal on a point of law would have 
to be dismissed. Under German collective bargaining law, due to their 
membership of the associations that are parties to the collective agreements, the 
appellant and the respondent are bound, with direct and mandatory effect, by the 
collective agreements concluded by those associations in respect of the temporary 
employment sector (Paragraph 3(1) and Paragraph 4(1) of the Tarifvertragsgesetz 
(Law on collective agreements; the ‘TVG’)). Those collective agreements, which 
derogate from the principle of equality, are effective – at least in so far as they 
were concluded by ver.di on the employee side. 
5 The parties to the collective agreements for the temporary employment sector that 
are applicable to the employment relationship, namely iGZ e. V. and the trade 
unions of the DGB, including ver.di, have collective bargaining capacity. iGZ e. 
V. and ver.di have collective bargaining competence in respect of the temporary 
employment sector. In the present case, it is sufficient that the collective 
agreements between iGZ e. V. and ver.di that are relevant to the temporary 
employment relationship between the parties are effective, because ver.di has 
collective bargaining competence in respect of the supply of temporary workers 
on a commercial basis. 
6 The collective agreements derogating from the principle of equality do not fall 
short of the minimum hourly wage rates laid down in a regulation pursuant to 
Paragraph 3a(2) of the AÜG (see first sentence of Paragraph 8(1) of the AÜG, 
second clause of point 2 of Paragraph 9 of the AÜG, old version). Such rates did 
not exist during the period in dispute. The Zweite Verordnung über eine 
Lohnuntergrenze in der Arbeitnehmerüberlassung (Second Regulation on a 
minimum wage in the temporary employment sector), which ceased to have effect 
on 31 December 2016, most recently provided for a minimum hourly wage of 
EUR 9.00 gross. The Dritte Verordnung über eine Lohnuntergrenze in der 
Arbeitnehmerüberlassung (Third Regulation on a minimum wage in the temporary 
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employment sector), which entered into force on 1 June 2017, set a minimum 
hourly wage of EUR 9.23 gross, with effect from that date. The collective 
agreement on pay for temporary employment in the version of 30 November 
2016, which is relevant to the temporary employment relationship and the period 
in dispute, did not fall short of either limit. 
7 If the national rules governing derogations from the principle of equality through 
collective agreements were not compatible with EU law – as the appellant 
claims – the appellant could be entitled, in the light of the principle of equal pay, 
to further remuneration for the duration of her assignment to the user 
undertaking – provided that a possible claim for the months of January and 
February 2017 has not lapsed pursuant to a time limit clause in the employment 
contract – with the result that her action would be well founded at least in part and 
her appeal would have to be upheld in that regard. 
8 In the absence of a valid derogation from the principle of equality, the respondent 
would be obliged to grant the appellant, for the duration of the assignment, the 
remuneration received by a comparable permanent employee of the user 
undertaking during the period in dispute. According to the national understanding 
of the rules in question, the temporary worker’s entitlement to equal pay is a 
statutory entitlement to remuneration which corrects the contractual agreement on 
remuneration and arises with each assignment and exists for the duration of the 
assignment in each case. 
9 With regard to the amount of the entitlement to equal pay, the appellant submitted 
that comparable permanent employees received an hourly wage of EUR 13.64 
gross for the same work during the period in dispute. If the respondent was not 
permitted to derogate from the principle of equality, it would be obliged under the 
first sentence of Paragraph 8(1) of the AÜG and the first and fourth sentences of 
Paragraph 10(4) of the AÜG, old version, to pay the appellant the corresponding 
difference for the hours that she worked for the user undertaking. 
10 Should the appellant not be permitted to derogate from the principle of equality, 
evidence would have to be taken in a new appeal on the merits. However, this 
only concerns the amount of any further remuneration. The validity of the basis of 
the claim asserted depends crucially on questions that can be clarified only by the 
Court of Justice, especially in relation to the interpretation of Article 5(3) of 
Directive 2008/104. They are therefore relevant to the decision to be given. 
Clarification of the questions referred for a preliminary ruling 
Question 1 
11 Article 5(3) of Directive 2008/104, of which the national legislature availed itself 
in its national legislation governing derogations from the principle of equality 
through collective agreements, allows the social partners to derogate from the 
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basic working and employment conditions referred to in Article 5(1) of the 
directive ‘while respecting the overall protection of temporary agency workers’. 
The basic working and employment conditions are defined in Article 3(1)(f) of 
Directive 2008/104. The conditions under which the overall protection of 
temporary agency workers in terms of working and employment conditions can be 
considered to be sufficiently respected are not apparent from the directive. In 
particular, the question arises as to whether the ‘overall protection of temporary 
agency workers’ is to be equated with the mandatory protection provided for, in 
principle, by national law and EU law for all workers irrespective of whether they 
are permanent or temporary agency workers (for example, protection against 
dismissal, maternity protection, minimum wage, continued payment of wages in 
certain cases, protection of working hours, special requirements for fixed-term 
contracts, protection for severely disabled persons, and so forth), or whether the 
directive encompasses more than that by way of its ‘overall protection of 
temporary agency workers’, and aims, for example, to provide special protection 
specifically for temporary agency workers. 
Question 2 
12 If the social partners conclude collective agreements containing provisions which 
derogate from the principle of equal treatment with regard to the basic working 
and employment conditions of temporary agency workers within the meaning of 
Article 5(1) of Directive 2008/104, clarification is required as to what conditions 
and criteria must be met for the assumption that derogations from the principle of 
equal treatment have been established while respecting the overall protection of 
temporary agency workers. 
13 On the one hand, this raises the question of criteria: is it necessary to take into 
account solely the working conditions of temporary agency workers governed by 
a collective agreement and to assess whether those conditions respect overall 
protection – of whatever kind – of temporary agency workers? Or, in order to 
assess whether a derogation from the principle of equal treatment through a 
collective agreement has been established while respecting the overall protection 
of temporary agency workers, must the (basic) working conditions which apply to 
the permanent workers in the user undertaking, that is to say, the workers 
recruited directly by that undertaking to occupy the same job, be included in an 
evaluative analysis? 
14 Recital 15 of Directive 2008/104 states that employment contracts of an indefinite 
duration are the general form of employment relationship and offer ‘special 
protection’. Therefore, the question arises as to whether respect for the overall 
protection of temporary agency workers within the meaning of Article 5(3) of 
Directive 2008/104 also requires – similarly to what is provided for in Article 5(2) 
of the directive – that a derogation from the principle of equal treatment with 
regard to pay is possible only where there is a permanent contract of employment 
between the temporary employment agency and the temporary agency worker, or 
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whether a derogation is also possible in employment contracts of an indefinite 
duration. The latter possibility could be supported by the fact that, unlike 
Article 5(2) of Directive 2008/104, Article 5(3) thereof does not contain a 
restriction to employment relationships of an indefinite duration and provides for 
respect for overall protection as an additional regulatory requirement. 
Question 3 
15 In the AÜG, the German legislature has made use of the possibility to derogate 
from the principle of equal treatment provided for in Article 5(3) of Directive 
2008/104. Even taking into account recital 19 of the directive, according to which 
the autonomy of the social partners is not to be affected, it is not apparent from the 
directive itself whether, in such a case, the national legislature must prescribe the 
conditions and criteria under which the social partners must respect the overall 
protection of temporary agency workers when derogating from the principle of 
equal treatment or whether it is for the social partners to ensure respect for such 
protection when concluding collective agreements for the temporary employment 
sector. 
16 The latter alternative would take account of recital 19 of Directive 2008/104, 
according to which the directive is not to affect the autonomy of the social 
partners or relations between them, including the right to negotiate and conclude 
collective agreements in accordance with national law and practices, while 
respecting prevailing Community law. That right is also protected by Article 28 of 
the Charter. Such an understanding would be in line with German constitutional 
law and collective bargaining law. Under that law, parties to collective 
agreements, as independent holders of fundamental rights, are granted a wide 
margin of discretion in their rule-making by virtue of the autonomy in collective 
bargaining protected by Article 9(3) of the Basic Law. They also have a 
prerogative to determine how the actual circumstances, the interests involved and 
the consequences of the rules and arrangements are to be assessed. In addition, 
they have a margin of discretion in determining the content of the rules and 
arrangements. Under German labour law, collective agreements enjoy, in 
principle, a presumption of fairness. 
17 The Federal Labour Court sets stringent requirements for the collective bargaining 
capacity of workers’ associations and has prevented potential abuse of derogations 
from the principle of equality in collective agreements concluded with the 
assistance of employer-affiliated workers’ associations. Accordingly, it is in fact 
essentially only the trade unions organised within the framework of the German 
Confederation of Trade Unions that can currently be considered as parties to 
collective agreements in the temporary employment sector. Nor is their 
effectiveness impaired by the low level of organisation of temporary agency 
workers; on the contrary, temporary employment agencies are virtually dependent 
on them for derogations from the principle of equality. 
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Question 4 
18 If the Court of Justice answers the third question in the affirmative, the question 
arises as to whether, by means of the rules put in place by the AÜG in the version 
in force since 1 April 2017 in order to restrict derogations from the principle of 
equal treatment through collective agreements, the German legislature has 
sufficiently ensured respect for the overall protection of temporary agency 
workers. In the current version of the AÜG, Paragraph 1(1b) (maximum period of 
18 months for assignment to the same user undertaking), first sentence of 
Paragraph 8(2) (minimum wage floor based on a regulation on minimum hourly 
wage rates), Paragraph 8(3) (exclusion of less favourable treatment of temporary 
agency workers who, in the six months preceding the assignment to the user 
undertaking, left the employ of that user undertaking or an employer forming a 
group with that user undertaking, referred to as a ‘revolving door clause’), 
Paragraph 8(4) (time limit on derogations from the requirement of equal treatment 
as regards pay) and Paragraph 13b (access of temporary agency workers to 
collective facilities or services of the user undertaking) provide for the statutory 
restrictions on unequal treatment of temporary and permanent workers, as 
described in Question 4(a). The overall protection of temporary agency workers is 
therefore sufficiently safeguarded – as is often assumed in the legal literature – 
especially since they are entitled to the statutory minimum wage under 
Paragraph 1(1) and (3) of the Mindestlohngesetz if that wage is higher than the 
minimum hourly wage set by the AÜG. Question 4(b) reflects the version of the 
AÜG that was valid until 31 March 2017, which did not provide for a time limit 
on derogations from the principle of equal treatment with regard to pay or a 
specific time frame for the requirement of ‘temporary’ assignment. 
Question 5 
19 If the Court of Justice answers the third question in the negative, and it is (solely) 
the social partners that are obliged to respect the overall protection of temporary 
agency workers within the meaning of Article 5(3) of Directive 2008/104 when 
concluding collective agreements which derogate from the principle of equal 
treatment, clarification is required as to the extent to which national courts may 
review whether collective agreements sufficiently respect the overall protection of 
temporary agency workers. By virtue of the presumption of fairness of collective 
agreements, national law grants the parties to collective agreements a wide margin 
of assessment and discretion with regard to the determination of the content of an 
arrangement, and that margin can be reviewed by the courts to only a limited 
extent. In particular, the parties to collective agreements are not obliged to choose 
the most expedient, most reasonable or fairest solution in each case. 
20 Under EU law, the reference to the ‘autonomy of the social partners’ in recital 19 
of Directive 2008/104 and the autonomy in collective bargaining protected in 
Article 28 of the Charter could militate in favour of a considerable margin of 
appreciation for the social partners at national level, especially given that, in 
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accordance with recital 16 of Directive 2008/104, their right to determine the 
working and employment conditions of temporary agency workers serves to 
enable them to cope with the diversity of labour markets and industrial relations. 
Having regard to recitals 16 and 19 of Directive 2008/104 and Article 28 of the 
Charter, the legal literature advocates a very limited possibility of judicial review, 
at best, even of collective agreements that derogate from the principle of equal 
treatment. It is not sufficiently clear from Directive 2008/104, nor has it been 
clarified, how far such a margin of assessment should extend, whether it also 
exists in relation to respect for the overall protection of temporary agency workers 
and – if it does – to what extent it is specifically exempt from judicial review.