Opinion of the Advocate General — ECLI:EU:C:2016:518
Date: 2016-07-06
Language of the case: German
Subject matter: Approximation of laws;Social Policy;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Germany

summary of the legislative changes in the wording of Article 1(2) of Directive 2008/104 appears in the 2011 report (p. 6 et seq.). 47 The works council contends that ‘Directive [2008/104] is based … on the general European notion of ‘undertaking’ under European antitrust law (Article 101 TFEU), which also assumes economic activities’, citing German legal writings (Rieble, V., and Vielmeier, S., ‘Umsetzungsdefizite der Leiharbeitsrichtlinie’, Europäische Zeitschrift für Arbeitsrecht, 2011, Volume 4, p. 474 et seq., and Mestwerdt, W., ‘Arbeit in persönlicher Abhängigkeit im Rahmen vereinsrechtlicher Strukturen’, Neue Zeitschrift für Arbeitsrecht, 2014, p. 281 et seq.). 48 The Commission refers, inter alia, to the judgment of 12 September 2000 in Pavlov and Others (C‑180/98 to C‑184/98, EU:C:2000:428, paragraph 75 and the case-law cited) in the field of competition. 49 Article 26 et seq. TFEU. 50 See Commission staff working document of 7 December 2010 entitled ‘Guide to the application of the EU rules on state aid, public procurement and the internal market to services of general economic interest, and in particular to social services of general interest’ (SEC(2010) 1545 final, ‘the 2010 guide’, paragraph 6.1), citing the judgment of 11 April 2000 in Deliège (C‑51/96 and C‑191/97, EU:C:2000:199, paragraph 52). 51 As stated in recital 22 of Directive 2008/104. 52 See footnote 30 to this Opinion. 53 The 2011 report (at least in its French version) does in fact mention those two considerations in order to justify a broad interpretation of the scope of Directive 2008/104 with regard to user undertakings and states that the European social partners expressed a favourable view to such an approach (p. 8). 54 Emphasis added. See, inter alia, judgments of 1 July 2008 in MOTOE (C‑49/07, EU:C:2008:376, paragraphs 21 and 22); of 22 October 2015 in EasyPay and Finance Engineering (C‑185/14, EU:C:2015:716, paragraph 37), and of 23 February 2016 in Commission v Hungary (C‑179/14, EU:C:2016:108, paragraph 147 et seq.). 55 See, inter alia, judgments of 11 April 2000 in Deliège (C‑51/96 and C‑191/97, EU:C:2000:199, paragraph 53), and of 23 February 2016 in Commission v Hungary (C‑179/14, EU:C:2016:108, paragraph 154). 56 I note that there are significant variations in terminology between the different language versions of Directive 2008/104, as regards the expressions used not only in the wording of its overall heading but also as regards the concept of ‘temporary- work undertaking’ (compare the respective formulas contained, by way of illustration, in the German version : ‘über Leiharbeit’, ‘Leiharbeitsunternehmen’; the Danish version: ‘om vikararbejde’, ‘vikararbejde’; the English version: ‘on temporary agency work’, ‘temporary-work agency’; the Italian version: ‘relativa al lavoro tramite agenzia interinale’, ‘agenzia interinale’; the Dutch version: ‘betreffende uitzendarbeid’, ‘uitzendbureau’; and the Portuguese version: ‘relativa ao trabalho temporário’, ‘empresa de trabalho temporário’). 57 The 2011 report states that, in the context of the preparatory work for Directive 2008/104, the Commission stated that ‘charities, the armed forces, trade unions and government departments, … if they were not engaged in economic activities, even as a secondary activity, … would be excluded’ (p. 7). 58 See judgment of 10 February 2011 in Vicoplus and Others (C‑307/09 to C‑309/09, EU:C:2011:64, paragraph 27). The 2011 report states that, on the other hand, that description does not, inter alia, cover the assignment of workers within the same group of undertakings (p. 14). 59 See, by analogy, judgment of 22 May 2003 in Freskot (C‑355/00, EU:C:2003:298, paragraph 77). The 2010 guide mentions a few cases in which activities were held by the Court to be non-economic activities by reason of their ‘purely social nature’ (paragraph 3.1.4). 60 There is no requirement for the activity of subcontracting staff to be exclusive under German law (See Rémy, P., ‘L’impact de la directive 2008/104 relative au travail intérimaire sur les droits nationaux, Deuxième partie’, Revue de droit du travail, 2010, p. 55 et seq., footnote 6), or under Danish law (See Abrahamson, A. M., Vikarloven med kommentarer, Karnov Group, Copenhagen, 2014, p. 55), whereas there is a requirement, for example, under French law (see Article L 1251-2 of the Labour Code). 61 In its explanatory memorandum to the proposal for a Council Directive concerning temporary work of 30 April 1982 (COM (82) 155 final, p. 7), the Commission stated that the proposal ‘does not require [a temporary employment agency] to engage exclusively in the supply of temporary workers’. 62 See, also, the 2010 guide (paragraph 6.2); the 2011 report (p. 7, footnote 13), and the report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the application of Directive 2008/104, dated 21 March 2014 (COM(2014) 176 final, p. 4, footnote 4). 63 Consequently, services provided without any consideration do not constitute economic activities, for example, by the State as part of its duties in the social field (see the illustrations given in the 2010 guide, paragraphs 3.1.4 and 6.3, citing, inter alia, the judgment of 7 December 1993 in Wirth, C‑109/92, EU:C:1993:916, paragraphs 13 to 19). However, it is irrelevant whether or not the consideration is paid by the recipient of the service (see judgment of 12 July 2001 in Smits and Peerbooms, C‑157/99, EU:C:2001:404, paragraphs 48 and 55 to 58). 64 See judgment of 25 October 2001 in Ambulanz Glöckner (C‑475/99, EU:C:2001:577, paragraph 21). 65 Ruhrlandklinik contends that if Directive 2008/104 were to apply to associations of nurses of the German Red Cross, a consequence would be that it would no longer be possible in practice to assign their members to health care institutions, since German law allows only temporary assignment, whereas in the great majority of cases those members are assigned to them on a long-term basis (see also footnote 8 to this Opinion). 66 See footnote 7 to this Opinion.