OPINION OF ADVOCATE GENERAL

SAUGMANDSGAARD ØE

delivered on 6 July 2016 ( 1 )

Case C‑216/15

Betriebsrat der Ruhrlandklinik gGmbH

v

Ruhrlandklinik gGmbH

(Request for a preliminary ruling

from the Bundesarbeitsgericht (Federal Labour Court, Germany))

‛Request for a preliminary ruling — Social policy — Temporary agency work — Directive 2008/104/EC — Scope — Article 1(1) and (2) — Concept of worker — Concept of economic activity — Member of a not-for-profit association, paid by the latter and assigned to a third party in order to perform work under that party’s instructions — Compensation for the personnel costs and administrative charges paid to the association by the third party’

I – Introduction

1. The request for a preliminary ruling from the Bundesarbeitsgericht (Federal Labour Court, Germany) concerns the interpretation of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work, ( 2 ) and in particular Article 1 thereof, which defines the scope of that act.

2. The order for reference was made in proceedings, between an undertaking operating an in-patient clinic and a body representing the staff of that undertaking, resulting from that body’s refusal to agree to a nurse who is a member of a not-for-profit association being assigned to that clinic for an indefinite period under an agreement concluded between the undertaking and that association.

3. Although only one question is referred to the Court, it is apparent from the grounds of its order that the national court is asking, in essence, about the meaning and scope of two different concepts. It is asking, first, whether members of an association working under the authority of a third party in that context should be classified as ‘workers’ within the meaning of Article 1(1) of Directive 2008/104, even though they are not classified as such under German law, and, secondly, whether the association’s assignment of its members in return for payment of compensation by the third party constitutes an ‘economic activity’ within the meaning of paragraph 2 of that article.

II – Legal framework

A – EU law

4. Article 1(1) and (2) of Directive 2008/104, which defines the directive’s scope, provides: ‘1. This Directive applies to workers with a contract of employment or employment relationship with a temporary-work agency who are assigned to user undertakings to work temporarily under their supervision and direction. 2. This Directive applies to public and private undertakings which are temporary-work agencies or user undertakings engaged in economic activities whether or not they are operating for gain.’

5. Article 2 of Directive 2008/104 provides that its purpose is ‘to ensure the protection of temporary agency workers and to improve the quality of temporary agency work by ensuring that the principle of equal treatment, as set out in Article 5, is applied to temporary agency workers, and by recognising temporary-work agencies as employers, while taking into account the need to establish a suitable framework for the use of temporary agency work with a view to contributing effectively to the creation of jobs and to the development of flexible forms of working.

6. Article 3 of that directive, entitled ‘Definitions’, reads as follows: ‘1. For the purposes of this Directive: (a) “worker” means any person who, in the Member State concerned, is protected as a worker under national employment law; (b) “temporary-work agency” means any natural or legal person who, in compliance with national law, concludes contracts of employment or employment relationships with temporary agency workers in order to assign them to user undertakings to work there temporarily under their supervision and direction; (c) “temporary agency worker” means a worker with a contract of employment or an employment relationship with a temporary-work agency with a view to being assigned to a user undertaking to work temporarily under its supervision and direction; … 2. This Directive shall be without prejudice to national law as regards the definition of pay, contract of employment, employment relationship or worker. …’

B – German law

7. Paragraph 99, entitled ‘Co-determination in individual staff measures’, of the Betriebsverfassungsgesetz (Law on industrial relations, ‘BetrVG’), in the version in force at the material time in the main proceedings, ( 3 ) provides: ‘1. In undertakings normally employing more than 20 employees with voting rights the employer shall notify the works council in advance of any recruitment …; he shall inform the works council of the implications of the measure envisaged, supply it with the necessary supporting documentation and obtain its consent to the measure envisaged. … 2. The works council may refuse its consent if … the staff measure would constitute a breach of any law …’ ( 4 )

8. The Arbeitnehmerüberlassungsgesetz (Law on the supply of temporary staff, ‘AÜG’), as amended by the Law of 28 April 2011, ( 5 ) transposes Directive 2008/104 into domestic law. Paragraph 1(1) of that law states that ‘employers who wish, as suppliers of labour, to contract out workers (temporary workers) to third parties (users of labour) within the context of their economic activity for the performance of work shall require authorisation’ and that ‘the assignment of workers to users of labour shall be of a temporary nature’.

III – The dispute in the main proceedings, the question referred and the procedure before the Court

9. The DRK-Schwesternschaft Essen eV (the German Red Cross association of nurses of Essen, ‘the association of nurses’ ( 6 )) is a registered not-for-profit association affiliated to the Verband der Schwesternschaften vom Deutschen Roten Kreuz eV (‘Federation of associations of nurses of the German Red Cross eV) ( 7 ). It has been licensed to supply staff.

10. Since 2003, the association of nurses no longer concludes any contracts of employment with nurses and admits them only as members of the association. Under the rules of that association, its members, who must be qualified to work in medical and health care, must work entirely either within the association of nurses or in medical and health care institutions under secondment contracts. ( 8 ) Where they are assigned to a third party, members of the association of nurses are subject to the latter’s functional and organisational instructions.

11. Under its membership rules, the association of nurses pays its members monthly remuneration, calculated according to the usual criteria for the particular activity, together with reimbursement of certain travel and relocation expenses. Members are also entitled to the paid holiday and additional retirement pension provided for under the rules applicable in that sector, and to continued payment of their remuneration and additional allowances in the event of incapacity for work caused by illness or an accident.

12. Ruhrlandklinik operates an in-patient clinic in Essen. In 2010 it concluded a secondment contract with the association of nurses, under which that association undertook to supply nursing staff from among its members. Under that agreement, the association of nurses receives, in return for each secondment, a payment covering the gross personnel costs plus a 3% flat-rate administrative charge. Members of that association assigned to Ruhrlandklinik receive the same remuneration as workers directly employed by that clinic and are subject to rules and conditions of employment that are virtually the same.

13. Ms K. is a member of the association of nurses. She was due to be assigned to the nursing service of Ruhrlandklinik, with effect from 1 January 2012, on the basis of the secondment agreement between the latter and that association.

14. By letter of 2 December 2011, the Betriebsrat der Ruhrlandklinik ( 9 ) (the works council of Ruhrlandklinik, ‘the works council’) refused, under Paragraph 99(1) and (2) of the BetrVG, to give its consent to that measure on the ground that the assignment of Ms K. was not designed to be temporary and was therefore contrary to Paragraph 1(1) of the AÜG, which requires that the assignment of temporary agency workers to users of labour must be of a temporary nature.

15. Ruhrlandklinik considered that refusal to be unfounded, in that Paragraph 1(1) of the AÜG, the law transposing Directive 2008/104, is not applicable to the recruitment of a person whose status is that of a member of an association and not of an employee. It therefore decided to recruit the person concerned on a temporary basis and to initiate proceedings in order to obtain a judicial decision authorising it to recruit her on a long-term basis. The lower courts having granted that application, the works council lodged an appeal on a point of law before the Bundesarbeitsgericht (Federal Labour Court).

16. The latter court states that if the substantive evidence required by Directive 2008/104 is considered to be present in a situation such as that in the main proceedings, Paragraph 1(1) of the AÜG must, according to the principles of interpretation under EU law, be interpreted as meaning that the use of Ms K. represents the non-temporary assignment of a temporary agency worker, which is therefore unlawful according to national law.

17. By decision of 17 March 2015, received at the Court on 12 May 2015, the Bundesarbeitsgericht (Federal Labour Court) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling: ‘Does Article 1(1) and (2) of Directive 2008/104 … apply to the assignment of a member of an association to another undertaking for the performance of work under that undertaking’s functional and organisational instructions if, upon joining the association, the member undertook to make his full working capacity available also to third parties, for which he receives a monthly remuneration from the association, the calculation of which is determined by the usual criteria for the particular activity, and the association receives, in return for the assignment, compensation for the personnel costs of the association member and a flat-rate administrative charge?’

18. Written observations were submitted by the works council, Ruhrlandklinik, the Czech Government and the European Commission. In addition, the works council, Ruhrlandklinik and the German Government replied in writing to the questions put to them by the Court under Article 61(1) of its Rules of Procedure. The works council, Ruhrlandklinik and the Commission were represented at the hearing held on 20 April 2016.

IV – Assessment

A – The concept of ‘workers ’ within the meaning of Article 1(1) of Directive 2008/104

1. Subject-matter and background to the question referred

19. The national court asks the Court, in essence, whether Directive 2008/104 on temporary agency work applies in a case such as that in the main proceedings in which one of the members of an association is assigned to a user undertaking in order to perform work there, under that undertaking’s instructions, for which he receives remuneration paid to him by the association. In other words, the national court wishes to ascertain whether, in such circumstances, that member can be classified as a ‘worker’ within the meaning of that directive.

20. In support of its request for a preliminary ruling, the Bundesarbeitsgericht (Federal Labour Court) states that the rule laid down in Paragraph 1(1) of the AÜG, whereby the assignment of staff is prohibited where it is not of a temporary nature, applies only in the case of ‘employees’ of an undertaking supplying staff to a third party.

21. It states that that concept is not defined in national law, but that according to its own case law, a ‘worker’ under German law is ‘a person who is required, on the basis of a private-law contract, to perform, in the service of another, heteronomous work bound by instructions in a relationship of personal dependency’. ( 10 ) Also according to its case law, the members of an association of nurses, such as that at issue in the main proceedings, do not have the status of employee under German law, on the ground that they are linked to that association not by a private-law contract but as a result of their membership of that association, even though they fulfil the other abovementioned criteria. ( 11 )

22. In that context, the national court questions whether, even though he does not have the status of ‘worker’ under the relevant national law, a member of such an association can nonetheless be regarded as having that status under EU law, and in particular in view of Article 1(1) of Directive 2008/104.

23. In that regard, Ruhrlandklinik considers, first, that Directive 2008/104 does not apply to temporary agency workers where they are not ‘workers’ under national law and, secondly, that members of the German Red Cross are not covered by the protection provided by that directive. On the other hand, according to the works council, the Czech Government and the Commission, members of an association such as that at issue in the main proceedings cannot be excluded from the scope of Directive 2008/104 and must be regarded as ‘workers’ within the meaning of Article 1(1). ( 12 ) I am also of that view, for the following reasons.

2. The interpretation advocated

24. From the outset, I should like to point out that the wording of both Article 1(1) and Article 3(1)(c) of Directive 2008/104 appears to justify the adoption of a flexible, indeed broad, interpretation of the concept of ‘worker’ for the purposes of defining the scope of that directive. It is expressly stated in those provisions that the legal basis of the link between a temporary-work agency and a worker whom it has recruited for the purpose of assigning him to a third party ( 13 ) may be ‘a contract of employment or employment relationship’, an alternative which also appears in other provisions of that directive ( 14 ) and in other directives on social protection for workers. ( 15 )

25. I note that, according to the case-law of the Court, there is no single definition of ‘worker’ in EU law, ( 16 ) it must, in principle, be defined according to objective criteria that characterise the employment relationship, having regard for the rights and duties of the persons concerned, in order to ensure equivalent protection for workers in the various Member States. It has been repeatedly held that ‘the essential feature of that relationship is that, for a certain period of time, a person performs services for and under the direction of another person in return for which remuneration is received’. ( 17 )

26. As the Commission notes, that characterisation is generally acquired in EU law if the abovementioned conditions are met, irrespective of whether or not an employment contract has been concluded by the person concerned and irrespective of the consequences derived from it for the purposes of national law. ( 18 ) The situation at issue in the main proceedings appears to meet all those conditions, since the members of the association of nurses carry out their professional activities for and under the direction of the medical and health care institutions to which they are periodically assigned by that association, which pays them remuneration in return.

27. Thus, in EU law, and contrary to what happens in German law, it appears to be irrelevant, in order for that directive to be applicable, whether or not a contract has been concluded by the parties concerned. ( 19 ) The national court is right therefore to note that, in view of the wording of the abovementioned provisions of Directive 2008/104, it seems that ‘the legal relationship between the supplier of labour and the person assigned for the performance of work is of no significance’.

28. Some doubt may nonetheless persist in the present case since, in order to define the status of ‘worker’ within the meaning of Directive 2008/104, Article 3 of that directive makes two references to the law of Member States. Article 3(1)(a) states that ‘“worker” means any person who, in the Member State concerned, is protected as a worker under national employment law’, ( 20 ) whilst the first subparagraph of Article 3(2) states that that directive ‘shall be without prejudice to national law as regards the definition of … worker’. ( 21 ) The Bundesarbeitsgericht (Federal Labour Court) holds that ‘in accordance with the reference therein to the law of the Member States, the EU law concept of “worker” must not be taken as a starting point when interpreting national law’.

29. In my opinion, the fact that those provisions of Article 3 maintain the view held by Member States of ‘workers’ who must be protected under their domestic legislation, a point of law which Directive 2008/104 does not aim to harmonise, as indicated in paragraph 2 of that article, cannot be construed as the EU legislature deciding not to exercise its own power to define the scope ratione personae of that directive.

30. If the extent of that scope was liable to vary depending on the different approaches adopted at national level, it would provide a significant source of legal uncertainty, given that the preamble to that directive notes that ‘there are considerable differences in the use of temporary agency work and in the legal situation, status and working conditions of temporary agency workers within the European Union’. ( 22 )

31. I take the view that, far from delegating to the authorities of the Member States the power to define the scope of Directive 2008/104, Article 3(1)(a), in conjunction with Article 3(1)(c) of the directive, defines it itself, stating that the concept of ‘worker’ for the purposes of that act of EU law encompasses any person who carries out work and who is protected as such in the Member State in which he performs his activity, whatever the nature and form of the relationship that links him to the temporary-work agency.

32. Since that article does not make a straightforward reference to the law of the Member States, in my view, if the more restrictive definition of ‘worker’ adopted at national level happens to conflict with the provisions of that directive, those provisions must take precedence. In the present case, the fact that under German law an individual has the status of ‘worker’ only if he has concluded a private-law contract cannot lead to reduction of the scope of Directive 2008/104, when the wording of that directive seeks to place under its protection those who are bound by a contract of employment and those who are bound by an employment relationship, without distinction.

33. That position is supported by the fact that, as the national court states inter alia, the Court has already ruled that where discretion is granted to the Member States in order to define the concepts used in such a directive on social matters their power is not unlimited. It seems to me that that case law, which relates to other directives laying down minimum requirements under labour law ( 23 ) — and inter alia establishes a principle of equal treatment of workers — and also Directive 2008/104, ( 24 ) sheds useful light in the present case. ( 25 )

34. It is apparent that although certain terms used in provisions of EU law may be defined in the light of the legislation and/or practices in force in the Member States, ( 26 ) the latter are still required to take care, first, to safeguard the objectives of the act in question ( 27 ) and, secondly to observe the general principles of EU law. ( 28 ) In particular, the Court has ruled that a Member State must not, at its discretion, exclude certain categories of persons from receiving the protection intended by the act concerned, otherwise the effectiveness of that act will be jeopardised and the general principle of equal treatment established in it will be infringed, since those are rules of EU law of particular importance, from which each worker must benefit. Such exclusion can be permitted only where different treatment of those categories is justified on objective grounds and in particular by the specific nature of the underlying employment relationship. ( 29 )

35. In the present case, I am of the view that, by analogy, a Member State must not be permitted to apply domestic rules in such a way that it jeopardises achievement of the objectives pursued by Directive 2008/104 ( 30 ) and thereby deprives it of its effectiveness. In particular, the definition of the concept of ‘worker’ adopted in national law cannot, in the absence of objective grounds, lead to the exclusion of certain categories of professionals from that classification and hence from the resulting benefit of the protection offered by that directive.

36. In order that the exclusion at issue here might not be of an arbitrary nature, under the abovementioned case-law, it is necessary to establish whether and to what extent the relationship between the association of nurses and its members is, by its nature, ’substantially different from the relationship between employers and their employees who fall within the category of “workers” under national law’, which it is a matter for the national court to determine. ( 31 ) Nonetheless, the Court may usefully give some guidance to that court on the factors it should take into account when making its assessment.

37. I note that the order for reference itself rightly states that members of the associations of nurses are required, in the same way as temporary agency workers, in their legal relationships with the entity which assigns them to third parties, to perform dependent work in return for payment of remuneration, and both categories of persons are also under the instructions of the user undertakings. It adds, again rightly in my view, as regards the employers this time, that there is no difference between the activity of legal entities acting, on the one hand, as temporary-work agencies and, on the other hand, as providers of labour. I therefore take the view, like the works council, the Czech Government and the Commission, that, since the employment relationship between the association concerned and its members is not, by its nature, fundamentally different from that of workers who are protected under national law, exclusion from the benefit of the protection guaranteed by Directive 2008/104 does not appear to be justified in the present case.

38. As has already been stated in the context of previous cases, I am of the view that the form of the legal relationship which underlies the job at issue cannot in itself define the objective difference between situations which is required in order to justify a variation in treatment in the light of the abovementioned case-law, ( 32 ) a difference which should in my view be based on substantive, not formal, considerations. ( 33 ). In the present case it should not, in my view, be possible to base the exclusion of a category of persons from being classified as ‘workers’ and therefore from the scope of Directive 2008/104, solely on the ground, adopted in German law, that the persons concerned did not conclude a private-law contract, otherwise the effectiveness of Directive 2008/104 would be jeopardised. ( 34 )

39. Ruhrlandklinik contends, on the other hand, that in the event of Directive 2008/104 being declared inapplicable to members of an association such as the association of nurses, by reason of the definition of ‘worker’ adopted in German law, this would not mean that the objectives of that directive would be circumvented, because the protection of the professionals concerned would not thereby be reduced. In this regard, it states that those members enjoy in practice conditions of employment and pay that are not less, but rather more, favourable than those afforded to persons classified as ‘workers’ under German law, and in particular to employees of its clinic whom it has recruited directly.

40. However, I consider that that economic argument is not convincing as regards the interpretation of Directive 2008/104, which is general in scope. Even if equal treatment were assured in the present case, it would not be guaranteed systematically and in the long term for every worker, as would be ensured by a declaration that that directive applies to such situations. The mere fact of being able to be covered, in all circumstances, by protective rules of that nature constitutes in itself a prerogative of considerable importance. ( 35 ) Furthermore, we should not fail to take into account also the second, economic, aspect of the objectives set out in Article 2 of that directive, ( 36 ) which shows, to my mind, in particular, that all the entities performing that type of activity should enjoy an equivalent competitive situation. ( 37 )

41. In the light of this, I consider that, in a context such as that of the main proceedings, members of an association must be classified as ‘workers’ within the meaning of Article 1(1) of Directive 2008/104, where they are assigned to an undertaking for the performance of work under that undertaking’s supervision and direction, in return for remuneration paid to them by the association. Those members must not be excluded from the scope ratione personae of that directive merely because, as they have not concluded a contract of employment with that association, they are not classified as ‘workers’ under the relevant national law.

B – The concept of ‘undertakings engaged in economic activities ’ within the meaning of Article 1(2) of Directive 2008/104

42. In the second part of its question referred for a preliminary ruling and the reasoning relating to it the national court asks the Court to rule on whether the fact that the association of nurses assigns its members to user undertakings in return for reimbursement of the gross personnel costs and payment of a flat-rate administrative charge, constitutes ‘an economic activity’ within the meaning of Article 1(2) of Directive 2008/104.

43. In that regard, it states that it is clear from Article 1(2) that the fact that the undertakings supplying staff are not operating for gain does not mean that they are not engaged in an economic activity, which might mean that Directive 2008/104 does apply even though the assignment of staff is carried out by public benefit bodies.

44. Ruhrlandklinik considers that an activity such as that of the association of nurses does not fall within the scope of that directive, whilst the works council and the Commission hold the opposite view. ( 38 ) I support the latter view for the following reasons.

45. According to Article 1(2) of Directive 2008/104, the latter concerns entities ‘which are temporary-work agencies’. Article 3(1)(b) contains what I consider to be an autonomous definition of the notion of ‘temporary-work agency’ within the meaning of that directive, ( 39 ) in order to achieve the minimum harmonisation sought by the latter. ( 40 ) It is to be inferred from this that Directive 2008/104 may apply even to an employer who is not classified as a ‘temporary-work agency’ under the domestic law of Member States, provided that employer fulfils all the conditions laid down in Articles 1 and 3 of that directive. ( 41 ) Furthermore, the meaning and scope of that expression are not, in my view, necessarily the same as those of the expression which also appears in Directive 96/71/EC, ( 42 ) although the preamble to Directive 2008/104 ( 43 ) establishes a link between those two instruments.

46. According to the actual wording of Article 1(2) of Directive 2008/104, it is irrelevant whether the entity supplying temporary agency workers is in this case a charitable association and whether the sums received in return for supplying staff would bring it any gain, as Ruhrlandklinik contends. ( 44 ) The only criterion that is really decisive is whether the entity in question, whether it belongs in the public or the private sector, engages in economic activities. ( 45 )

47. However, the definition of the latter concept is not clear from the content of Directive 2008/104, or from the preparatory work relating to it. ( 46 ) I am of the view that it should be interpreted in the light of the case-law of the Court identifying the factors that constitute ‘economic activity’ in other areas of EU law, as suggested by the works council ( 47 ) and the Commission. ( 48 )

48. I note that the concept of ‘economic activity’ within the meaning of EU law has been developed in close correlation with the concept of ‘undertaking’ in the context of the provisions of the TFEU relating to the internal market, ( 49 ) in particular with regard to Articles 49 and 56 TFEU concerning freedom of establishment and freedom to provide services, respectively, and in the context of competition law. Those concepts were both devised by the Court to be non-restrictive, since their purpose is to define the field of application of fundamental freedoms guaranteed by the Treaty. ( 50 )

49. The same should apply, in my view, with regard to the concept of ‘economic activities’ within the meaning of Directive 2008/104, not only because the preamble to the directive states that it ‘should be implemented in compliance with the provisions of the Treaty regarding the freedom to provide services and the freedom of establishment’, ( 51 ) but also to ensure the attainment of all the objectives referred to in that directive ( 52 ) and to avoid unfair competition. ( 53 )

50. According to settled case-law, the concept of ‘undertaking’ includes ‘any entity engaged in an economic activity, irrespective of its legal form and the way in which it is financed’ and ‘any activity consisting in offering goods and services on a given market is an economic activity’. ( 54 ) Furthermore, the Court has consistently held that ‘the pursuit of an activity as an employed person or the provision of services for remuneration must be regarded as an economic activity within the meaning of Article 2 of the [EC] Treaty’, that is to say performance of work generating a financial consideration. ( 55 )

51. It follows, in the first place, that the judicial status of the entity concerned, in the present case an association, does not affect the possibility that the latter may be classified as an ‘undertaking’ within the meaning of EU law and does not prejudice the possible economic nature of the activity in which it engages. The text of Article 3(1)(b) of Directive 2008/104 is in the same vein, since it includes in the concept of ‘temporary-work agency’, within the meaning of that directive, ( 56 )‘any natural or legal person’, regardless of its legal form, ( 57 ) engaged in activities relating to temporary work under the conditions laid down in that provision.

52. Secondly, the classification as an undertaking which engages in economic activities relating to temporary work, within the meaning of Directive 2008/104, should in my view be adopted where the entity in question offers a service consisting in the supply of workers with whom it alone has established employment relationships specifically in order to assign them to third-party undertakings. ( 58 ) That is in fact the case as regards the association of nurses. The purported social purpose of the operator in question is not, in itself, sufficient to prevent its activity from being classified as an economic activity. ( 59 ) Furthermore, the activity concerned is carried out on a given market, in the present case the market for health services, in which other operators are active in the same way, namely traditional temporary work agencies, which also offer to supply nurses.

53. Like the Commission, I take the view that it is irrelevant as regards Directive 2008/104 that the activities of the entity in question are not limited to the assignment of workers to third parties, ( 60 ) bearing in mind the fact that in the present case members of the association of nurses may, under their rules, also work directly for the association. There is no tangible evidence, either in Article 1 or in Article 3(1)(b) of the directive, that in my view permits its scope to be limited to undertakings whose exclusive activity is to supply staff to user undertakings. ( 61 )

54. Thirdly, according to the case-law of the Court and pursuant to Article 57 TFEU, all services provided for remuneration must be classified as economic activities, ( 62 ) it being understood that it is necessary, but sufficient, that there should be some consideration. ( 63 ) The fact that the activity at issue may not be as profitable as comparable services provided by other operators does not preclude it from being of an economic nature. ( 64 ) In the present case, the association of nurses supplies staff to third parties effectively in return for the payment of financial consideration by the latter, namely compensation for the personnel costs and administrative costs incurred in the transaction, bearing in mind the fact that it is irrelevant that such consideration does not bring it any profit.

55. Lastly, contrary to the objections of Ruhrlandklinik, ( 65 ) it appears to me adequate, in particular in order to ensure the full effectiveness of Directive 2008/104, to include within its scope entities such as that at issue in the same way as temporary work agencies of a commercial nature since, otherwise, the former would be subject to less stringent legal constraints than the latter although they offer similar services on the same market, which might lead to distortions of competition. This latter concern, which can also be noted in the order for reference and in the observations of the Czech Government, is much less negligible since in this case a large number of workers are potentially concerned. ( 66 )

56. Consequently, I am of the view that a supply of services such as that in the main proceedings does fall within the provisions of Article 1(2) of Directive 2008/104, since the association concerned provides services which are equivalent to those of a temporary-work agency, by supplying staff to third parties on the market for health care staff, services in return for which they receive financial compensation.

V – Conclusion

57. In the light of the foregoing considerations, I propose that the Court should answer the question referred by the Bundesarbeitsgericht (Federal Labour Court, Germany) as follows: Article 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, must be interpreted as meaning that those provisions are applicable where a not-for-profit association assigns to an undertaking, in return for financial compensation, one of its members so that the latter can perform work there, under the supervision and direction of that undertaking, for which he receives remuneration paid by the association.

( 1 ) Original language: French.

( 2 ) OJ 2008 L 327, p. 9.

( 3 ) Version of 25 September 2001 (BGBl. 2001 I, p. 2518).

( 4 ) The national court states that, according to its own case law, ‘recruitment’, within the meaning of the first subparagraph of that Paragraph 99, does not require the establishment of an employment relationship with the undertaking in question and that it is sufficient that the person concerned works there according to the objective of that undertaking, being bound by its instructions.

( 5 ) Amending law entered into force on 1 December 2011 (BGBl. 2011 I, p. 642).

( 6 ) The word ‘nurse’ must be understood generically in this context as referring not only to female workers but also to male workers within that association.

( 7 ) It is stated in the order for reference that there are 33 German Red Cross associations of nurses throughout Germany and they comprise nearly 22000 members. Ruhrlandklinik gGmbH states that the Essen Association has just under 1650 members.

( 8 ) In its observations, Ruhrlandklinik states that the latter case is ‘by far the most common’ and that ‘frequently German Red Cross nurses remain for many years in the service of the contracting partners [within an association of this type]’.

( 9 ) Under German law, the ‘Betriebsrat’ is a body representing the staff of an undertaking, which has prerogatives ranging from the mere right to be informed to the power of co-management in the areas listed in the law, a power which means that the employer must obtain the agreement of that body before taking certain decisions, inter alia individual measures such as the recruitment of employees under Paragraph 99 of the BetrVG.

( 10 ) The Bundesarbeitsgericht cites one of its recent decisions to that effect, dated 17 September 2014 (10 AZB 43/14, paragraph 18).

( 11 ) The Bundesarbeitsgericht states that the legal basis for the performance of work in a relationship of personal dependency may be possession of the status of member of an association, provided that mandatory employment law protection provisions are not circumvented, circumvention which is ruled out in the case of association members, according to one of its decisions dated 6 July 1995 (5 AZB 9/93).

( 12 ) In its written answers to the questions put by the Court, the German Government did not comment directly on the basis of the request for a preliminary ruling.

( 13 ) In that regard, I note that a feature of temporary-work employment relationships is that they are three-way, in that there are links of a different nature, first, between the worker and the temporary-work agency which employs him, secondly, between that agency and the user undertaking and, lastly, between the latter and the worker operating under its direction. See, inter alia, judgment of 17 December 1970 in Manpower (35-70, EU:C:1970:120, paragraphs 5 and 6).

( 14 ) See Article 1(3); Article 3(1)(b) and (2), second subparagraph, and Article 6(2), first subparagraph, and (3).

( 15 ) See, inter alia, clauses 2 and 3 of the framework agreement annexed to Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC (OJ 1998 L 14, p. 9), and clauses 1, 2, 3 and 5 of the framework agreement annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43).

( 16 ) Inter alia, judgment of 1 March 2012 in O’Brien (C‑393/10, EU:C:2012:110, paragraph 30).

( 17 ) See, inter alia, judgments of 13 February 2014 in Commission v Italy (C‑596/12, EU:C:2014:77, paragraphs 16 and 17) and of 4 December 2014 in FNV Kunsten Informatie en Media (C‑413/13, EU:C:2014:2411, paragraph 34).

( 18 ) See judgment of 11 November 2010 in Danosa (C‑232/09, EU:C:2010:674, paragraphs 40 and 42 and the case-law cited).

( 19 ) The report of the expert group on the transposition of Directive 2008/104 dated August 2011 and drawn up under the aegis of the Commission (‘the 2011 report’) states that ‘the mention of an “employment relationship” is meant to encompass the situations where the distinctive features of an employment relationship are present but no formal contract of employment has been concluded’ (p. 12).

( 20 ) Emphasis added. I note that Article 2(1)(d) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ 2001 L 82, p. 16), contains the same form of words, which repeats in essence the one contained in paragraph 28 of the judgment of 11 July 1985 in Foreningen af Arbejdsledere i Danmark (105/84, EU:C:1985:331), which concerned the interpretation of the act which that directive replaced.

( 21 ) Emphasis added. I note that, like Article 2(2) of Directive 2001/23, which was adopted at around the same date, Article 3(2) of the Commission’s original proposal of 20 March 2001, which resulted in the adoption of Directive 2008/104 (COM (2002) 149 final), referred to national law only as regards the definition of ‘contract of employment or employment relationship’. The European Parliament sought to include ‘pay’ in the latter provision (position adopted at first reading on 21 November 2002, OJ 2004 C 25 E, p. 368). The Commission’s amended proposal of 28 November 2002 moreover added ‘worker’ to it, without giving any explanation (COM (2002) 701 final).

( 22 ) Recital 10 of Directive 2008/104. See also the disparities existing between ‘national legislation’ described in the explanatory memorandum to the Commission’s original proposal (COM (2002) 149 final, section 2(2)).

( 23 ) See, inter alia, judgments of 13 September 2007 in Del Cerro Alonso (C‑307/05, EU:C:2007:509, paragraph 29) concerning the interpretation of Directive 1999/70, and of 1 March 2012 in O’Brien (C‑393/10, EU:C:2012:110, paragraph 34), concerning the interpretation of Directive 97/81.

( 24 ) Article 5 of Directive 2008/104 lays down ‘the principle of equal treatment’, whereby, for the duration of their assignment at a user undertaking, temporary agency workers must enjoy working and employment conditions at least equal to those that would apply if they had been recruited directly by that undertaking to occupy the same job.

( 25 ) In its observations, the Commission considers that the position adopted by the Court in a context with a number of similarities, inter alia structural, can be transposed to the present case. With regard to the common features that exist between Directives 1999/70, 97/81 and 2008/104, see also the Opinion of Advocate General Szpunar in AKT (C‑533/13, EU:C:2014:2392, point 33).

( 26 ) This is the case where the purpose of the act of EU law concerned is not to bring about full harmonisation of the national rules applicable in the area which it covers, as is the case of Directive 2008/104 (see recital 23 and Article 9).

( 27 ) Thus, recitals 17 and 16, respectively, of Directives 1999/70 and 97/81 clearly state that ‘as regards terms used in the framework agreement but not specifically defined therein, this Directive allows Member States to define such terms in conformity with national law or practice as is the case for other Directives on social matters using similar terms, provided that the definitions in question respect the content of the framework agreement’ (emphasis added).

( 28 ) See, inter alia, judgment of 1 March 2012 in O’Brien (C‑393/10, EU:C:2012:110, paragraphs 31 to 35 and the case-law cited), the Opinion of Advocate General Poiares Maduro in Del Cerro Alonso (C‑307/05, EU:C:2007:3, points 12 to 15) and the Opinion of Advocate General Kokott in O’Brien (C‑393/10, EU:C:2011:746, points 34 to 37).

( 29 ) See judgments of 13 September 2007 in Del Cerro Alonso (C‑307/05, EU:C:2007:509, paragraphs 26 to 29); of 1 March 2012 in O’Brien (C‑393/10, EU:C:2012:110, paragraphs 36 to 42), and of 3 July 2014 in Fiamingo and Others (C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 31).

( 30 ) See, inter alia, recitals 1, 11 and 12 and Article 2 of Directive 2008/104, according to which the directive’s objectives are principally, first, ‘to ensure the protection of temporary agency workers and to improve the quality of temporary agency work by ensuring that the principle of equal treatment … is applied to temporary agency workers …’ and, secondly, to ‘tak[e] into account the need to establish a suitable framework for the use of temporary agency work with a view to contributing effectively to the creation of jobs and to the development of flexible forms of working’.

( 31 ) See judgment of 1 March 2012 in O’Brien (C‑393/10, EU:C:2012:110, paragraph 42 et seq.) and Opinion of Advocate General Kokott in O’Brien (C‑393/10, EU:C:2011:746, point 43 et seq.).

( 32 ) Footnote 29 to this Opinion.

( 33 ) See Opinion of Advocate General Poiares Maduro in Del Cerro Alonso (C‑307/05, EU:C:2007:3, point 15) and Opinion of Advocate General Kokott in O’Brien (C‑393/10, EU:C:2011:746, point 44 et seq.). The Court also stressed the need, in order to justify different treatment, for the nature of the employment relationship at issue to be ‘substantially different’ (see judgment of 1 March 2012 in O’Brien, C‑393/10, EU:C:2012:110, paragraphs 42 to 44).

( 34 ) See, to that effect, Laulom, S., ‘La Directive 2008/104 : avancées et limites de la protection des travailleurs intérimaires’, Revue de droit du travail, 2012, p. 308 et seq., according to whom ‘it might be thought that it will not be sufficient for the national rules to state that there is no contract of employment in order for exclusion from the scope of protection not to be reviewed’, and Moizard, N., ‘Les intérimaires dans l’Union européenne : les données du débat’, Revue de droit du travail, 2012, p. 240 et seq., who, having referred to the judgment of 18 January 2007 in Confédération générale du travail and Others (C‑385/05, EU:C:2007:37, paragraph 35), considers that ‘in Directive 2008/104, it is not merely a reference to national laws’ and that ‘the Court of Justice still has ways of reviewing circumvention by States’.

( 35 ) See, to that effect, judgment of 13 September 2007 in Del Cerro Alonso (C‑307/05, EU:C:2007:509, paragraph 27).

( 36 ) See footnote 30 to this Opinion. Regarding the two main subjects covered by Directive 2008/104 — namely, first, the conditions of employment of persons classified as temporary agency workers and, secondly, the conditions applicable to the use of temporary agency work –, and the complementary nature of the two, see the Opinion of Advocate General Szpunar in Case AKT (C‑533/13, EU:C:2014:2392, point 30 et seq.).

( 37 ) Regarding these considerations, see also points 49 and 55 of this Opinion.

( 38 ) The Czech Government has not taken a position with regard to the interpretation of the concept of ‘economic activities’ for the purposes of Directive 2008/104.

( 39 ) I note that Article 3(1)(b) refers to the law of Member States only to a limited extent, in the following words: ‘any … person who, in compliance with national law, concludes contracts of employment or employment relationships with temporary agency workers …’ Furthermore, Article 3(2) does not restrict application of national law as regards the concept of ‘temporary-work agencies’.

( 40 ) See footnote 26 to this Opinion.

( 41 ) See, to the same effect, the 2011 report (pp. 9 and 14).

( 42 ) Directive of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1). In that connection, see the 2011 report (at least in its French version), which states that the expression ‘entreprise de travail intérimaire’ is contained in the French versions of both Directive 96/71 and Directive 2008/104, but that the English versions of the two directives ‘use two different wordings’ (namely temporary employment undertaking or placement agency in the former, and temporary-work agency in the latter) (p. 15).

( 43 ) See recital 22 of Directive 2008/104.

( 44 ) Ruhrlandklinik’s main contention is that the object of the association of nurses, under its statutes, is exclusively to supply qualified nursing staff to medical and health care institutions, in accordance with the principles of the Red Cross (humanity, impartiality, neutrality, independence, voluntary service, unity, and universality), without seeking to make any profit, and that if that were not the case, it would not be recognised under German law as a body operating in the public interest.

( 45 ) Article 1(2) of Directive 2008/104 states that the latter applies to ‘public and private undertakings’ which are ‘engaged in economic activities’, whether or not ‘they are operating for gain’.

( 46 ) A 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.