Judgment;Summary — ECLI:EU:C:2024:156
Date: 2024-02-22
Language of the case: Spanish
Court formation: Sixth Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Spain

Summary C-649/22 – 1 
Case C-649/22 
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 October 2022 
Referring court:  
Tribunal Superior de Justicia del País Vasco (Spain) 
Date of the decision to refer:  
27 September 2022 
Appellant:  
XXX 
Respondents:  
Randstad Empleo, S. A. 
Ferrovial Servicios, S. A. 
Axa Seguros Generales S. A. de Seguros y Reaseguros 
  
Subject matter of the main proceedings 
Temporary agency worker – Accident while working for the user undertaking – 
Total permanent incapacity resulting from that accident – Termination of the 
employment contract – Compensation for the worker  
Subject matter and legal basis of the request 
Request for a preliminary ruling on interpretation – Article 267 TFEU – 
Temporary agency work – Directive 2008/104/EC – Article 5(1) – Principle of 
equal treatment – Article 3(1)(f) – Concept of ‘basic working and employment 
conditions’  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-649/22 
 
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Question referred for a preliminary ruling 
Must Articles 20 and 21 of the Charter of Fundamental Rights of the European 
Union, Article 2 of the Treaty on European Union and Article 3[1](f) and 
Article 5 of Directive 2008/104 of the European Parliament and of the Council be 
interpreted as precluding a case-law interpretation of Spanish legislation 
according to which compensation for a temporary agency worker whose 
employment contract has been terminated following a declaration of total 
permanent incapacity resulting from an accident at work sustained at the user 
undertaking is excluded from the concept of ‘basic working and employment 
conditions’? 
Provisions of European Union law and case-law relied on 
Charter of Fundamental Rights of the European Union: Articles 20 and 21. 
Treaty on European Union: Articles 2 and 3. 
Directive 2008/104/EC of the European Parliament and of the Council of 
19 November 2008 on temporary agency work: Article 3(1)(f), Article 3(2) and 
Article 5(1).  
Directive 2006/54/EC of the European Parliament and of the Council of 5 July 
2006 on the implementation of the principle of equal opportunities and equal 
treatment of men and women in matters of employment and occupation (recast): 
Article 14(1). 
Council Directive 2000/78/EC of 27 November 2000 establishing a general 
framework for equal treatment in employment and occupation: Articles 2 and 3.  
Judgments of the Court of Justice: of 17 May 1990, Barber, C-262/88, 
EU:C:1990:209; of 7 January 2004, K. B., C-117/01, EU:C:2004:7; of 10 June 
2010, Bruno and Others, C-395/08 and C-396/08, EU:C:2010:329; of 
14 September 2016, de Diego Porras, C-596/14, EU:C:2016:683; of 14 October 
2020, KG (Successive temporary agency contracts), C-681/18, EU:C:2020:823, 
paragraph 54; and of 12 May 2022, Luso Temp, C-426/20, EU:C:2022:373, 
paragraph 34. 
Provisions of national law and case-law relied on 
Ley 14/94, de 1 de junio, por la que se regulan las empresas de trabajo temporal 
(Law 14/94 of 1 June 1994 on temporary-work agencies; BOE No 131 of 4 June 
1994), which implements Directive 2008/104 in Spanish law (‘the LETT’). 
Article 11. Workers’ rights. 
RANDSTAD EMPLEO AND OTHERS 
 
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‘1. While working for a user undertaking, temporary agency workers shall be 
entitled to the basic working and employment conditions that would apply if they 
had been recruited directly by the user undertaking to occupy the same job. 
For these purposes, “basic working and employment conditions” means working 
and employment conditions relating to pay, the duration of working time, 
overtime, rest periods, night work, holidays and public holidays. 
Pay shall include all fixed or variable payments established in the collective 
agreement applicable to the user undertaking for the job to be performed and 
which relate to the job in question. … 
Likewise, temporary agency workers shall be entitled to the same conditions that 
apply to workers in the user undertaking as regards protection of pregnant women 
and nursing mothers and protection of minors, equal treatment for men and 
women, and any action to combat any discrimination based on sex, race or ethnic 
origin, religion, beliefs, disabilities, age or sexual orientation. 
2. In the case of fixed-term contracts, in the circumstances provided for in 
Article 49(1)(c) of the Estatuto de los Trabajadores (Workers’ Statute), on the 
termination of the contract under which the worker is supplied to the user 
undertaking the worker shall also be entitled to receive financial compensation 
equal to the proportional part of an amount equating to 12 days’ salary for each 
year of service or, where applicable, of the amount established in the specific 
applicable legislation. …’ 
Real Decreto Legislativo 2/2015, de 23 de octubre, por el que se aprueba el texto 
refundido de la Ley del Estatuto de los Trabajadores (Royal Legislative Decree 
2/2015 of 23 October 2015 approving the recast text of the Law on the Workers’ 
Statute). 
Article 49 
‘An employment contract shall be terminated: 
(e) where the worker suffers death, severe disability, or total or absolute 
permanent incapacity, without prejudice to the provisions of Article 48(2).’ 
Judgment of the Tribunal Supremo (Supreme Court, Spain) of 7 February 2007, 
appeal 104/2005: 
The Supreme Court notes that both Article 11 of the LETT and the collective 
agreement for temporary-work agencies refers to payments rather than salary, and 
states that the concept of pay (reward or payment for something) is broader than 
the concept of salary (payment in return for work). However, it maintains that 
within the general concept of non-salary items at least three categories must be 
distinguished: (1) payments or compensation for expenditure incurred by the 
worker as a result of his or her work activity; (2) voluntary increased social 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-649/22 
 
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security benefits and what is known as corporate social action; and (3) 
compensation for suspension and termination of employment.  
In the opinion of the Supreme Court, equal treatment of temporary agency 
workers and workers in the user undertaking for the purposes of Article 11 of the 
LETT cannot be limited to salary but, to be effective, must include compensation 
for expenditure incurred specifically in the course of work, that is to say, 
expenditure that falls within group (1) of the above list. However, it does not 
include the other two groups, in so far as these are not payments that are directly 
related to the job. 
Succinct presentation of the facts and procedure in the main proceedings 
1 XXX, the worker bringing the action, has been providing his services on behalf of 
RANDSTAD EMPLEO ETT, S. A. since 1 October 2016. At the time when the 
events with which the main proceedings are concerned occurred, XXX was 
working as a specialist assistant at the premises of FERROVIAL SERVICIOS 
S. A. as an agency worker supplied to that undertaking by RANDSTAD EMPLEO 
ETT S. A. According to his employment contract, the applicable collective 
agreement is the Sixth National Collective Agreement for temporary-work 
agencies.  
2 On 24 October 2016 XXX suffered an accident at work while working at 
FERROVIAL SERVICIOS S. A.  
3 By decision of 16 June 2018, the Provincial Directorate of the Instituto Nacional 
de la Seguridad Social (National Institute of Social Security) for Álava declared 
that XXX was not suffering any degree of permanent incapacity. However, that 
decision was rectified by decision of the same provincial directorate of 16 March 
2019, which upheld the prior administrative complaint brought by XXX and 
declared that he was suffering a total permanent incapacity to perform his normal 
occupation as a result of the work accident which occurred on 24 October 2016. 
That decision was confirmed by judgment of the Juzgado de lo Social n.º 2 de 
Vitoria-Gasteiz (Social Court No 2, Vitoria-Gasteiz, Spain) of 12 September 
2019. 
4 XXX received a compensation payment of EUR 10 500 from the insurance 
company AXA SEGUROS GENERALES S. A. DE SEGUROS Y 
REASEGUROS on 21 November 2019, based on the provisions in Article 42 of 
the Sixth National Collective Agreement for temporary-work agencies. 
5 On 7 February 2020, the trade union ELA submitted a claim for payment on 
behalf of XXX against RANDSTAD EMPLEO ETT S. A. and FERROVIAL 
SERVICIOS S. A., and against the insurance company AXA SEGUROS 
GENERALES S. A. DE SEGUROS Y REASEGUROS and the Fondo de 
Garantía Salarial (Salary Guarantees Fund). The case was allocated to the Juzgado 
RANDSTAD EMPLEO AND OTHERS 
 
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de lo Social n.º 3 de Vitoria (Social Court No 3, Vitoria, Spain) which, by 
judgment of 30 December 2021, dismissed the claim brought by XXX.  
6 The trade union ELA, acting on behalf of XXX, has appealed against the 
judgment of the Social Court No 3, Vitoria, requesting that the co-respondents be 
ordered to pay XXX the sum of EUR 49 601.21 plus the 20% surcharge or, failing 
that, the applicable statutory default interest. 
The essential arguments of the parties in the main proceedings 
7 XXX argues that the applicable agreement is the Collective Agreement for the 
road haulage sector and haulage contractors in Álava, Article 31 of which 
provides for compensation of EUR 60 101.21 in cases of permanent incapacity 
resulting from an accident at work. In his view, the aforesaid compensation 
constitutes a working condition within the meaning of Article 3 of Directive 
2008/104, and thus applies to him as a temporary agency worker. 
8 The respondent undertakings contend that the national collective agreement for 
temporary-work agencies applies, and state that the ‘working conditions’ referred 
to by Directive 2008/104 are defined and do not include supplementary social 
security benefits; accordingly they request that the claim be dismissed in its 
entirety. 
9 The insurance company AXA opposes the claim brought by XXX, arguing that 
social security benefits are not included in the working conditions guaranteed to 
the agency worker, who accepted the compensation which AXA offered him; that 
the insurance policy does not cover the sum claimed pursuant to the Collective 
Agreement for the road haulage sector and haulage contractors in Álava; and that 
no interest should be payable in view of the disagreements that exist over the law 
and the case-law. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
10 The referring court has doubts as to whether Article 11 of the LETT and the 
interpretation of that provision by the Supreme Court in its judgment of 
7 February 2007 comply with the principles of equal treatment and non-
discrimination established in Articles 20 and 21 of the Charter of Fundamental 
Rights of the European Union and with Articles 3 and 5 of Directive 2008/104. 
11 Article 11 of the LETT is intended to implement Directive 2008/104 and must 
therefore comply with Article 5 of that directive, which establishes the principle 
of equal treatment for temporary agency workers. 
12 In the present case, the appellant worker is seeking to obtain the same treatment in 
terms of compensation that a worker recruited directly by the user undertaking 
would receive. Following an accident at work which left him incapacitated, the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-649/22 
 
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worker is entitled to compensation which should be equal to that payable to a 
worker recruited directly by the user undertaking who was in the same situation. 
Otherwise, one could arrive at the absurd situation in which two workers who 
were injured in the same accident at work received different amounts of 
compensation, depending on whether or not one of them had been recruited 
directly by the user undertaking. 
13 Under the interpretation of Article 11 of the LETT adopted by the Spanish 
Supreme Court, compensation such as that claimed by the appellant would not be 
payable, because it is not included in the concept of ‘basic working and 
employment conditions’ which must be guaranteed to agency workers working for 
a user undertaking. 
14 In the view of the referring court, the purpose of Directive 2008/14 and the 
principle of equal treatment will be satisfied only if the concept of ‘working 
conditions’ in Article 3(1)(f) of Directive 2008/14 is deemed also to include the 
compensation to which workers are entitled where their contract is terminated as 
the result of an accident at work sustained at the user undertaking which results in 
total incapacity.  
15 It observes that the Court of Justice has already stated that the concept of the 
working conditions to be enjoyed by an agency worker working for a user 
undertaking must be interpreted broadly (judgment of the Court of Justice of 
14 October 2020, KG (Successive temporary agency contracts), C-681/18, 
EU:C:2020:823, paragraph 54), and notes that the Court of Justice has included 
conditions relating to termination of employment within the concept of ‘working 
conditions’ (judgment of the Court of Justice of 12 May 2022, Luso Temp, 
C-426/20, EU:C:2022:373, paragraph 34). 
16 Finally, it notes that, as a result of the accident at work, the appellant has become 
a person with disabilities (who is totally unable to perform his occupation), and 
that, therefore, failure to acknowledge his right to be compensated as though he 
were a worker recruited directly by the user undertaking could constitute 
discrimination on grounds of disability, which is prohibited by Article 21 of the 
Charter of Fundamental Rights of the European Union.