Common Position (EC) No 24/2008 of 15 September 2008 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of a Directive of the European Parliament and of the Council on temporary agency work
Date: 2008-09-15
Institutions: Council of the European Union
Subjects: equal treatment, labour market, temporary employment, working conditions

C 254 E/36

EN

Official Journal of the European Union

7.10.2008

COMMON POSITION (EC) No 24/2008

adopted by the Council on 15 September 2008

with a view to the adoption of Directive 2008/…/EC of the European Parliament and of the Council
of … on temporary agency work

(2008/C 254 E/04)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 137(2) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

After consulting the Committee of the Regions,

Acting in accordance with the procedure
Article 251 of the Treaty (2),

laid down in

Whereas:

(1)

(2)

(3)

(4)

it

the fundamental

This Directive respects
rights and
complies with the principles recognised by the Charter of
Fundamental Rights of the European Union (3). In par-
is designed to ensure full compliance with
ticular,
Article 31 of
the Charter, which provides that every
worker has the right to working conditions which respect
his or her health, safety and dignity, and to limitation of
maximum working hours,
to daily and weekly rest
periods and to an annual period of paid leave.

the Fundamental Social
The Community Charter of
Rights of Workers provides in point 7 thereof, inter alia,
that the completion of the internal market must lead to
an improvement in the living and working conditions of
workers in the European Community; this process will be
achieved by harmonising progress on these conditions,
mainly in respect of forms of work such as fixed-term
contract work, part-time work, temporary agency work
and seasonal work.

On 27 September 1995 the Commission consulted
management and labour at Community level in accord-
ance with Article 138(2) of the Treaty on the course of
action to be adopted at Community level with regard to
flexibility of working hours and job security of workers.

After that consultation, the Commission considered that
Community action was advisable and on 9 April 1996
further consulted management and labour in accordance
with Article 138(3) of the Treaty on the content of the
envisaged proposal.

(1) OJ C 61, 14.3.2003, p. 124.
(2) Opinion of the European Parliament of 21 November 2002 (OJ C 25 E,
29.1.2004, p. 368), Council Common Position of 15 September 2008
and Council Decision of … (not yet published in the Official Journal).

(3) OJ C 303, 14.12.2007, p. 1.

(5)

(6)

(7)

(8)

(9)

In the introduction to the framework agreement on
fixed-term work concluded on 18 March 1999, the signa-
tories indicated their intention to consider the need for a
similar agreement on temporary agency work and
decided not to include temporary agency workers in the
Directive on fixed-term work.

The general cross-sector organisations, namely the Union
of Industrial and Employers' Confederations of Europe
(UNICE) (4),
the European Centre of Enterprises with
Public Participation and of Enterprises of General
Economic Interest (CEEP) and the European Trade Union
Confederation (ETUC),
informed the Commission in a
joint letter of 29 May 2000 of their wish to initiate the
process provided for in Article 139 of the Treaty. By a
further joint letter of 28 February 2001 they asked the
Commission to extend the deadline referred to in
Article 138(4) by one month. The Commission granted
this request and extended the negotiation deadline until
15 March 2001.

On 21 May 2001, the social partners acknowledged that
their negotiations on temporary agency work had not
produced any agreement.

Integrated Guidelines

In March 2005, the European Council considered it vital
to relaunch the Lisbon Strategy and to refocus its priori-
ties on growth and employment. The Council approved
the
Jobs
2005-2008, which seek, inter alia, to promote flexibility
security and to reduce
combined with employment
labour market segmentation, having due regard to the
role of the social partners.

for Growth

and

reinforcing

In accordance with the Communication from the
Commission on the Social Agenda covering the period
up to 2010, which was welcomed by the March 2005
European Council as a contribution towards achieving
the
the Lisbon Strategy objectives by
European social model, the European Council considered
that new forms of work organisation and a greater diver-
sity of contractual arrangements for workers and busi-
nesses, better combining flexibility with security, would
the December
contribute to adaptability. Furthermore,
2007 European Council endorsed the agreed common
principles of flexicurity which strike a balance between
flexibility and security in the labour market and help
both workers and employers to seize the opportunities
offered by globalisation.

(4) UNICE changed its name to BUSINESSEUROPE in January 2007.

7.10.2008

EN

Official Journal of the European Union

C 254 E/37

(10)

(11)

(12)

(13)

(14)

(15)

(16)

(17)

(18)

are

considerable differences

There
in the use of
temporary agency work and in the legal situation, status
and working conditions of temporary agency workers
within the European Union.

Temporary agency work meets not only undertakings'
needs for flexibility but also the need of employees to
reconcile their working and private lives. It thus contri-
butes to job creation and to participation and integration
in the labour market.

This Directive establishes a protective framework for
temporary agency workers which is non-discriminatory,
transparent and proportionate, while respecting the diver-
sity of labour markets and industrial relations.

Council Directive 91/383/EEC of 25 June 1991 supple-
menting the measures to encourage improvements in the
safety and health at work of workers with a fixed-dura-
tion employment relationship or a temporary employ-
ment relationship (1) establishes the safety and health
provisions applicable to temporary agency workers.

The basic working and employment conditions applicable
to temporary agency workers should be at least those
which would apply to such workers if they were recruited
by the user undertaking to occupy the same job.

Employment contracts of an indefinite duration are the
general form of employment relationship. In the case of
workers who have a permanent contract with their
temporary-work agency, and in view of
the special
protection such a contract offers, provision should be
made to permit exemptions from the rules applicable in
the user undertaking.

In order to cope in a flexible way with the diversity of
labour markets and industrial relations, Member States
may allow the social partners to define working and
employment conditions, provided that the overall level of
protection for temporary agency workers is respected.

in certain limited circumstances, Member
Furthermore,
States should, on the basis of an agreement concluded by
the social partners at national level, be able to derogate
within limits from the principle of equal treatment, so
long as an adequate level of protection is provided.

(19)

(20)

This Directive does not affect the autonomy of the social
partners nor should it affect relations between the social
partners,
including the right to negotiate and conclude
law
collective agreements in accordance with national
and practices while respecting prevailing Community law.

The provisions of this Directive on restrictions or prohi-
bitions on temporary agency work are without prejudice
to national legislation or practices that prohibit workers
on strike being replaced by temporary agency workers.

(21) Member States should provide for administrative or judi-
cial procedures to safeguard temporary agency workers'
rights and should provide for effective, dissuasive and
proportionate penalties for breaches of the obligations
laid down in this Directive.

(22)

(23)

This Directive should be implemented in compliance
with the provisions of the Treaty regarding the freedom
to provide services and the freedom of establishment and
without prejudice to Directive 96/71/EC of the European
Parliament and the Council of 16 December 1996
concerning the posting of workers in the framework of
the provision of services (2).

Since the objective of this Directive, namely to establish a
harmonised Community-level framework for protection
for temporary agency workers, cannot be sufficiently
achieved by the Member States and can therefore, by
reason of the scale or effects of the action, be better
achieved at Community level by introducing minimum
requirements applicable throughout the Community, the
Community may adopt measures in accordance with the
principle of subsidiarity as set out in Article 5 of the
Treaty. In accordance with the principle of proportion-
ality, as set out in that Article, this Directive does not go
beyond what
to achieve that
objective,

is necessary in order

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

General provisions

Article 1

Scope

improvement

The
in the minimum protection for
temporary agency workers should be accompanied by a
review of any restrictions or prohibitions which may
have been imposed on temporary agency work. These
may be justified only on grounds of the general interest
regarding,
in particular the protection of workers, the
requirements of safety and health at work and the need
to ensure that the labour market functions properly and
that abuses are prevented.

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 oper-
ating for gain.

(1) OJ L 206, 29.7.1991, p. 19.

(2) OJ L 18, 21.1.1997, p. 1.

C 254 E/38

EN

Official Journal of the European Union

7.10.2008

3. Member States may, after consulting the social partners,
provide that
this Directive does not apply to employment
contracts or relationships concluded under a specific public or
publicly supported vocational training, integration or retraining
programme.

Article 2

Aim

The purpose of this Directive 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
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.

in Article 5,

Article 3

Definitions

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 employ-
ment law;

(b) ‘temporary-work agency’ means any natural or legal person
who, in compliance with national law, concludes contracts
of
relationships with
temporary agency workers in order to assign them to user
undertakings to work there temporarily under their supervi-
sion and direction;

employment

employment

or

(c) ‘temporary agency worker’ means a worker with a contract
relationship with a
of employment or an employment
temporary-work agency with a view to being assigned to a
user undertaking to work temporarily under its supervision
and direction;

(d) ‘user undertaking’ means any natural or legal person for
whom and under the supervision and direction of whom a
temporary agency worker works temporarily;

(e) ‘assignment’ means the period during which the temporary
agency worker is placed at the user undertaking to work
temporarily under its supervision and direction;

(f) ‘basic working and employment conditions’ means working
and employment conditions laid down by legislation, regula-
tions,
agreements
and/or other binding general provisions in force in the user
undertaking relating to:

administrative provisions,

collective

(i) the duration of working time, overtime, breaks, rest

periods, night work, holidays and public holidays;

2.
This Directive shall be without prejudice to national law as
regards the definition of pay, contract of employment or
employment relationship, or worker.

Member States shall not exclude from the scope of this Directive
workers, contracts of employment or employment relationships
solely because they relate to part-time workers,
fixed-term
contract workers or persons with a contract of employment or
employment relationship with a temporary-work agency.

Article 4

Review of restrictions or prohibitions

Prohibitions or

restrictions on the use of

1.
temporary
agency work shall be justified only on grounds of general
interest relating in particular to the protection of temporary
agency workers, the requirements of health and safety at work
or the need to ensure that the labour market functions properly
and abuses are prevented.

By … (*), Member States shall, after consulting the social
2.
partners in accordance with national legislation, collective agree-
ments and practices, review any restrictions or prohibitions on
the use of temporary agency work in order to verify whether
they are justified on the grounds mentioned in paragraph 1.

3.
If such restrictions or prohibitions are laid down by collec-
tive agreements, the review referred to in paragraph 2 may be
carried out by the social partners who have negotiated the rele-
vant agreement.

Paragraphs 1, 2 and 3 shall be without prejudice to
4.
national requirements with regard to registration,
licensing,
certification, financial guarantees or monitoring of temporary-
work agencies.

5.
The Member States shall inform the Commission of the
results of the review referred to in paragraphs 2 and 3 by … (*).

CHAPTER II

Employment and working conditions

Article 5

The principle of equal treatment

The basic working and employment

1.
conditions of
temporary agency workers shall be, for the duration of their
assignment at a user undertaking, at least those that would
apply if they had been recruited directly by that undertaking to
occupy the same job.

(ii) pay.

(*) Three years after the entry into force of this Directive.

7.10.2008

EN

Official Journal of the European Union

C 254 E/39

For the purposes of the application of the first subparagraph,
the rules in force in the user undertaking on:

Article 6

(a) protection of pregnant women and nursing mothers and

protection of children and young people; and

(b) 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;

must be complied with as established by legislation, regulations,
administrative provisions, collective agreements and/or any
other general provisions.

As regards pay, Member States may, after consulting the
2.
social partners, provide that an exemption be made to the prin-
ciple established in paragraph 1 where temporary agency
workers who have a permanent contract of employment with a
temporary-work agency continue to be paid in the time
between assignments.

3. Member States may, after consulting the social partners,
give them, at the appropriate level and subject to the conditions
laid down by the Member States, the option of upholding or
concluding collective agreements which, while respecting the
overall protection of temporary agency workers, may establish
arrangements concerning the working and employment condi-
tions of temporary agency workers which may differ from those
referred to in paragraph 1.

4.
Provided that an adequate level of protection is provided
for temporary agency workers, Member States in which there is
either no system in law for declaring collective agreements
universally applicable or no such system in law or practice for
extending their provisions to all similar undertakings in a
certain sector or geographical area, may, after consulting the
social partners at national level and on the basis of an agree-
ment concluded by them, establish arrangements concerning
the basic working and employment conditions which derogate
from the principle established in paragraph 1. Such arrange-
ments may include a qualifying period for equal treatment.

The arrangements referred to in this paragraph shall be in
conformity with Community legislation and shall be sufficiently
precise and accessible to allow the sectors and firms concerned
to identify and comply with their obligations.
In particular,
Member States shall specify in application of Article 3(2)
whether occupational
including
pension, sick pay or financial participation schemes are included
in the basic working and employment conditions referred to in
paragraph 1. Such arrangements shall also be without prejudice
to agreements at national, regional, local or sectoral level that
are no less favourable to workers.

schemes,

security

social

Access to employment, collective facilities and vocational
training

1.
Temporary agency workers shall be informed of any
vacant posts in the user undertaking to give them the same
opportunity as other workers in that undertaking to find perma-
nent employment. Such information may be provided by a
general announcement in a suitable place in the undertaking for
which and under whose supervision temporary agency workers
are engaged.

2. Member States shall take any action required to ensure
that any clauses prohibiting or having the effect of preventing
the conclusion of a contract of employment or an employment
relationship between the user undertaking and the temporary
agency worker after his assignment are null and void or may be
declared null and void.

This paragraph is without prejudice to provisions under which
temporary agencies receive a reasonable level of recompense for
services rendered to user undertakings for
the assignment,
recruitment and training of temporary agency workers.

3.
Temporary-work agencies shall not charge workers any
fees, in exchange for arranging for them to be recruited by a
user undertaking, or for concluding a contract of employment
or an employment relationship with a user undertaking after
carrying out an assignment in that undertaking.

temporary agency
4. Without prejudice to Article 5(1),
workers shall be given access to the amenities or collective
facilities in the user undertaking,
in particular any canteen,
child-care facilities and transport services, under the same condi-
tions as workers employed directly by the undertaking, unless
the difference in treatment is justified by objective reasons.

5. Member States
shall
promote dialogue between the social partners,
with their national traditions and practices, in order to:

take suitable measures or

shall
in accordance

(a) improve temporary agency workers' access to training and
to child-care facilities in the temporary-work agencies, even
in the periods between their assignments,
to
enhance their career development and employability;

in order

(b) improve temporary agency workers' access to training for

user undertakings' workers.

Article 7

Representation of temporary agency workers

5. Member States shall take appropriate measures, in accord-
ance with national
law and/or practice, with a view to
preventing misuse in the application of this Article and, in par-
ticular, to preventing successive assignments designed to circum-
vent the provisions of this Directive. They shall
inform the
Commission about such measures.

1.
Temporary agency workers shall count, under conditions
established by the Member States, for the purposes of calcu-
lating the threshold above which bodies representing workers
provided for under Community and national law and collective
agreements are to be formed at the temporary-work agency.

C 254 E/40

EN

Official Journal of the European Union

7.10.2008

2. Member States may provide that, under conditions that
they define, temporary agency workers count for the purposes
of calculating the threshold above which bodies representing
law and
workers provided for by Community and national
collective agreements are to be formed in the user undertaking,
in the same way as if they were workers employed directly for
the same period of time by the user undertaking.

Those Member States which avail themselves of the option
3.
provided for in paragraph 2 shall not be obliged to implement
the provisions of paragraph 1.

Article 8

Information of workers' representatives

Without prejudice to national and Community provisions on
information and consultation which are more stringent and/or
more specific and in particular Directive 2002/14/EC of the
European Parliament and of the Council of 11 March 2002
establishing a general framework for informing and consulting
employees in the European Community (1), the user undertaking
must provide suitable information on the use of
temporary
agency workers when providing information on the employ-
ment situation in that undertaking to bodies representing the
workers set up in accordance with national and Community
legislation.

CHAPTER III

Final provisions

Article 9

Minimum requirements

1.
This Directive is without prejudice to the Member States'
right to apply or introduce legislative, regulatory or administra-
tive provisions which are more favourable to workers or to
promote or permit collective agreements concluded between the
social partners which are more favourable to workers.

The implementation of

this Directive shall under no
2.
circumstances constitute sufficient grounds
justifying a
for
reduction in the general level of protection of workers in the
fields covered by this Directive. This is without prejudice to the
rights of Member States and/or management and labour to lay
down, in the light of changing circumstances, different legisla-
tive, regulatory or contractual arrangements to those prevailing
at the time of the adoption of this Directive, provided always
that the minimum requirements laid down in this Directive are
respected.

Article 10

Penalties

2. Member States shall lay down rules on penalties applicable
in the event of
infringements of national provisions imple-
menting this Directive and shall take all necessary measures to
ensure that they are applied. The penalties provided for must be
effective, proportionate and dissuasive. Member States shall
notify these provisions to the Commission by … (*). Member
States shall notify to the Commission any subsequent amend-
ments to those provisions in good time. They shall, in particular,
ensure that workers and/or their representatives have adequate
means of enforcing the obligations under this Directive.

Article 11

Implementation

1. Member States shall adopt and publish the laws, regula-
tions and administrative provisions necessary to comply with
this Directive by … (*), or shall ensure that the social partners
introduce the necessary provisions by way of an agreement,
whereby the Member States must make all
the necessary
arrangements to enable them to guarantee at any time that the
objectives of this Directive are being attained. They shall forth-
with inform the Commission thereof.

2. When Member States adopt these measures, they shall
contain a reference to this Directive or shall be accompanied by
such reference on the occasion of their official publication. The
methods of making such reference shall be laid down by
Member States.

Article 12

Review by the Commission

the Commission shall,

By … (**),
in consultation with the
Member States and social partners at Community level, review
the application of
this Directive with a view to proposing,
where appropriate, the necessary amendments.

Article 13

Entry into force

This Directive shall enter into force on the day of its publication
in the Official Journal of the European Union.

Article 14

Addressees

This Directive is addressed to the Member States.

1. Member States shall provide for appropriate measures in
the event of non-compliance with this Directive by the
temporary-work agency or the user undertaking. In particular,
they shall ensure that adequate administrative or judicial proce-
dures are available to enable the obligations deriving from this
Directive to be enforced.

Done at …

For the European Parliament

The President

…

For the Council

The President

…

(1) OJ L 80, 23.3.2002, p. 29.

(*) Three years after the entry into force of this Directive.
(**) Five years after the adoption of this Directive.

7.10.2008

EN

Official Journal of the European Union

C 254 E/41

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

On 20 March 2002, the Commission adopted in the context of the Lisbon strategy a proposal for a
Directive concerning ‘working conditions for temporary workers’ to better reconcile flexibility in labour
markets and job security, and create more and better jobs.

Acting in accordance with Article 251 of the Treaty, the European Parliament delivered its opinion on
first reading on 21 November 2002.

The Economic and Social Committee gave its opinion on the Commission's proposal on 19 September
2002.

The Committee of the Regions stated in a letter dated 23 May 2002 that it would not be submitting an
opinion on the proposal for a Directive.

On 28 November 2002, the Commission adopted an amended proposal, taking into account the
opinion of the European Parliament.

The Council reached political agreement on a Common Position by qualified majority during its session
of 9 and 10 June 2008, in parallel with a political agreement, also by qualified majority, on the Working
Time Directive.

In accordance with Article 251(2) of the EC Treaty, the Council formally adopted its Common Position
by qualified majority on 15 September 2008.

II. OBJECTIVE

The objective of the draft Directive 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 is
applied to temporary agency workers and by recognising temporary work agencies as employers. The
draft Directive also aims at establishing 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.

III. ANALYSIS OF THE COMMON POSITION

1. GENERAL OBSERVATIONS

According to Article 137(1) of the Treaty ‘the Community shall support and complement the activities of
the Member States in’ a number of fields, including ‘working conditions’.

Article 137(2) of the Treaty states that the Council ‘may adopt, by means of directives, minimum require-
ments for gradual implementation, having regard to the conditions and technical rules obtaining in each of the
Member States’.

The Council's Common Position is in accordance with the objectives of Article 137(2) of the Treaty
in the area covered, since it is designed to ensure the protection of temporary agency workers and to
improve the quality of temporary agency work. In addition, the Common Position also takes into
account the need to establish a suitable framework for the use of temporary agency work with a
view to contributing to the creation of jobs and to the development of flexible forms of working.

The Common Position respects the objectives put forward by the Commission and supported by
Parliament, in particular that the principle of equal treatment from day one should be the general
rule. In general, it includes a majority of the amendments resulting from Parliament's first reading of
the Commission's proposal.

2. STRUCTURE AND KEY ELEMENTS

2.1. General structure and the title of the Directive

The general structure of the Common Position is in line with the general structure of the
Commission's amended proposal. Concerning the title of the Directive, the Council has followed
the Commission's amended proposal and opted for a more general title: the Directive on
temporary agency work. It is to be noted that, in a number of instances, the Council's Common
Position clarifies the key terms and expressions, in particular by using consistently the English
terms ‘temporary agency worker’ and ‘temporary work agency’.

C 254 E/42

EN

Official Journal of the European Union

7.10.2008

2.2. Main differences from the Commission's amended proposal

In Article 4 on the review of restrictions and prohibitions on the use of temporary agency
work, while essentially following the spirit of the Parliament's Amendment 34, the Council
added a new paragraph 3 concerning the review of agreements negotiated by the social partners.
The Council considered that, in order to respect their autonomy, the social partners should
themselves review whether the restrictions and prohibitions negotiated by them were justifiable
on the grounds set out in the first paragraph of Article 4. The Council did not consider it neces-
sary to retain an explicit reference to the discontinuation of unjustified restrictions and prohibi-
tions.

While generally following the Commission's amended proposal,
the Council modified
Article 5(3) and substantially reformulated Article 5(4) and (5). The Council also considered that
the principle of equal treatment from day one should be the general rule. Any treatment of
temporary agency workers differing from that principle should be agreed by the social partners,
either through collective bargaining or through social partner agreements concluded at national
level. In the light of the modifications made to Article 5(3) to (5), a specific exemption for
short-term contracts (six weeks or shorter), as envisaged in the Commission's amended
proposal, was therefore no longer considered necessary or appropriate.

In Article 5(3) and (4), as in a number of other instances, the Common Position reflects those
of the Parliament's amendments which stress the importance of the role of social partners in
negotiating arrangements on working and employment conditions. In Article 5(5), the Common
Position echoes the Parliament's concerns in relation to the prevention of misuse.

In Article 10, the Council's Common Position includes a new paragraph 1 concerning measures
the Member States are expected to take in order to ensure compliance with the Directive by
temporary work agencies and user undertakings.

The Council considered that the Member States would need three years to implement the Direc-
tive, while the Commission had proposed a two-year implementation period (Article 11).

In addition, a number of recitals have been updated and modified, in order both to explain the
modifications introduced by the Council to the Commission's amended proposal and to describe
developments since the amended proposal was published in 2002. For example, references to
the relaunch of the Lisbon Strategy, in 2005, and to the agreed common principles of flexi-
curity, endorsed by the European Council in December 2007, were included in recitals 8 and 9.

3. THE EUROPEAN PARLIAMENT'S AMENDMENTS IN FIRST READING

3.1. European Parliament amendments adopted by the Council

Altogether 26 amendments (numbers 1, 15, 19, 20, 23, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35,
36, 40, 42, 43, 46, 47, 48, 49, 51, 85 and 86) are taken up in their entirety,
if not
word-for-word then at least in spirit, in the Common Position.

Specifically, the Council accepted Amendment 1 to the title, three amendments to the recitals
(Amendments 15, 19 and 20) as well as a number of amendments to the following Articles:
Article 1 on the scope (Amendment 23), Article 2 on the aim of the Directive (26), Article 3 on
definitions (27-33 and 85), Article 4 on the review of restrictions and prohibitions (34-36),
Article 5 on the principle of equal treatment (40, 42, 43 and 86), Article 6 on access to
employment, collective facilities and vocational training (46-49), and Article 7 on the represen-
tation of temporary agency workers (51).

It is to be noted that some amendments have been included in another part of the text of the
Common Position than originally suggested by the Parliament. For example, a part of Amend-
ment 32 is reflected in Article 5(1) and not in Article 3(1)(d). Another example is Amend-
ment 36 that, rather than in Article 4, is reflected in a more general form in recital 20.

3.2. European Parliament amendments adopted partially by the Council

Amendment 4 on ‘new forms of regulated flexibility’ is reflected in spirit in the text of recital 9;
however, the Council considered it appropriate to update the text of the recital and to refer to
the common principles of flexicurity agreed in 2007, rather than use the formulation suggested
by the Parliament in its first reading opinion.

7.10.2008

EN

Official Journal of the European Union

C 254 E/43

Amendment 6 is accepted in spirit, as recital 5 specifies the links between this Directive and
Directive 1999/70/EC of 28 June 1999 on fixed-term work. Concerning this amendment, the
Common Position follows the amended proposal of the Commission.

The thrust of Amendment 12, on employment contracts of an indefinite duration being the
general form of employment relationship, is included in recital 15.

The underlying objectives of Amendment 18, on allowing the social partners to negotiate and
define the basic working and employment conditions of temporary agency workers when these
differ from the principle of equal treatment, are included in the Common Position (see recitals 16
and 17 and Article 5(3) and (4)).

Amendment 24 is accepted partly as it is useful to clarify, in line with the amended proposal,
that both user undertakings and temporary work agencies are covered by the Directive.
However, it would not be appropriate to allow Member States to exclude certain undertakings
from the principle of equal treatment (the last part of the amendment).

Amendment 54 (on job creation, on making temporary agency work more attractive and on
recognising different national circumstances) is accepted in spirit in Article 2 (the aim of the
Directive), which now includes the wording ‘while taking into account the need for establishing a
suitable framework for the use of temporary agency work with a view to contributing effectively to the crea-
tion of jobs and to the development of flexible forms of working’. The need for taking into account
different national circumstances is explicitly referred to in recitals 12, 16, 17 and 19.

Amendment 87 is partly taken up in Article 5(1); while the first part of the amendment (on the
principle of equal treatment) was included in the Commission's amended proposal and is taken
over by the Council in its Common Position, the second part had become redundant as the
concept of ‘comparable worker’ had been removed from the text (cf. Amendment 28 accepted
by the Commission and the Council).

In line with the Commission's amended proposal, Amendment 92 is partly accepted in
Article 5(3). It was, however, considered appropriate to state specifically that the social partner
agreements should respect ‘the overall protection of temporary agency workers’ when establishing
arrangements concerning working and employment conditions differing from the principle of
equal treatment.

3.3. European Parliament's amendments not adopted by the Council

The Council did not consider it advisable to include amendments 3, 5, 7, 8, 9, 10, 11, 12
(first part), 13, 16, 21, 22, 25, 44, 45, 52, 53, 71, 84, 88, 91, 93, 94 and 95 in its Common
Position, for the following reasons:

(i) Recitals

There was no specific need for the text to explain in the recitals certain historical develop-
ments concerning temporary agency work or the draft Directive; therefore the Council
followed the Commission's amended proposal in rejecting Amendments 3, 5, 7 and 11 as
well as the first part of Amendment 12.

In line with the Commission's amended proposal, Amendments 8, 9, 10, 13 and 84 were
not adopted by the Council. The amendments contained specific examples of how
temporary agency work could either help or harm temporary agency workers themselves
(women, workers with interrupted work histories, etc.) or user undertakings (especially
small and medium-sized undertakings), or affect systems or traditions of industrial rela-
tions.

Amendments 16 and 94 had become redundant as the Commission's amended proposal
no longer contained the former recital 16 on when differences in treatment would be
considered acceptable.

The reasons explained in connection with Article 7 (see point (v) below) apply also to the
rejection of Amendment 21 on information, consultation and participation of employees.

C 254 E/44

EN

Official Journal of the European Union

7.10.2008

Amendment 22 concerning cross-border labour mobility (accepted by the Commission),
which could be considered as an example, is not included in the Common Position as the
text is not limited in any specific way to cross-border mobility.

The Council reworded recital 12 making it substantially shorter. Some aspects of Amend-
ment 93 (e.g. the call for clarity concerning the rights of temporary agency workers and
concerning the status of temporary work agencies as employers) have, however, been
included in the redrafted text of the recital.

While recital 15 on temporary agency workers with a permanent contract with their
agency has been strengthened by the Council by adding a sentence on employment
contracts of an indefinite duration being the general form of employment relationship, the
Common Position does not include the more detailed wording of Amendment 88 on what
such permanent contracts should offer to a temporary agency worker.

(ii) Article 1 — Scope

Following the Commission's amended proposal, the Council did not accept Amendment 25
which would have extended the possibility of not applying the Directive to employment
contracts or relationships concluded under specific training programmes without any
public support.

(iii) Article 4 — Review of restrictions and prohibitions

In its Amendment 91, the Parliament called for a comprehensive review of national legisla-
tions concerning temporary agency workers. The Council,
like the Commission in its
amended proposal, considered that this would be outside the scope of the Directive.

(iv) Article 5 — The principle of equal treatment

Following the amended proposal, Amendment 39 (on non-discrimination) was considered
redundant in view of the incorporation in the text of Article 5(1) of relevant elements of
Amendment 32.

While Amendment 44 has became redundant, as Article 5(5) of the amended proposal was
not included in the Common Position, it should be noted that the spirit of the amendment
was followed in the general thrust of the text calling for the respect of different national
practices.

Amendment 45 on safety and health at work and on safety training was considered super-
fluous as the relevant Community legislation on safety and health at work, and especially
Directive 91/383/EEC supplementing the measures to encourage improvements in the
safety and health at work of workers with a fixed-duration employment relationship or a
temporary employment relationship, would in any event have to be applied. Therefore, the
Council followed the Commission's amended proposal in rejecting this amendment.

(v) Article 7 — Representation of temporary agency workers

Amendment 95, with its accompanying Amendment 21 to recital 21, was not adopted as
it went beyond the scope of the article on the representation of temporary agency workers.

In this context it should be noted that Article 8 of the Common Position includes a refer-
ence to Directive 2002/14/EC establishing a general
informing and
consulting employees in the European Community.

framework for

(vi) Article 10 — Penalties

The Council considers that the wording ‘workers and/or their representatives’ in Article 10(2)
correctly takes into account the variety of different situations in the labour markets of the
Member States. The Common Position therefore maintains that expression, rejecting
Amendment 52.

7.10.2008

EN

Official Journal of the European Union

C 254 E/45

(vii) Article 11 — Implementation

The text of Article 11 on implementation was considered sufficiently clear without the
suggested amendment 53 reading ‘where applicable in accordance with their national legislation
and practices’.

Amendment 71 (on a five-year period for not applying the Directive in certain situations)
has become redundant as the Common Position in its Article 5 now makes the principle of
equal treatment a general rule from day one and does not include the possibility of
excluding assignments with a duration shorter than six weeks from the application of that
principle. However, it should be noted that the essence of the last part of the amendment,
dealing with the prevention of misuse, has been included in Article 5(5) of the Common
Position.

IV. CONCLUSION

The Council considers that, as a whole, the Common Position is in line with the fundamental objectives
of the Commission's amended proposal. The Council also considers that it has taken account of the
principal objectives pursued by the European Parliament in its amendments to the Commission's original
proposal.