Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251(2) of the EC Treaty concerning the Common Position of the Council on the adoption of a European Parliament and Council Directive on temporary agency work - Political agreement on a common position (QMV)
Date: 2008-09-18
Institutions: European Commission
Subjects: EU law, labour law, temporary employment, temporary employment agency, working conditions

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 18.9.2008 
COM(2008) 569 final 

2002/0072 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251(2) of the EC Treaty 

concerning the 

Common Position of the Council on the adoption of a European Parliament and Council 
Directive on temporary agency work 

Political agreement on a common position (QMV) 

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2002/0072 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251(2) of the EC Treaty 

concerning the 

Common Position of the Council on the adoption of a European Parliament and Council 
Directive on temporary agency work 

Political agreement on a common position (QMV) 

1. 

BACKGROUND 

Date of transmission of the proposal1 to the EP and the Council 
(document COM(2002)149 final – 2002/0072 COD): 

21 March 2002 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee2: 

19 September 2002 

Date of the opinion of the European Parliament, first reading3.: 

21 November 2002 

Date of transmission of the amended proposal4: 

Date of adoption of the common position5: 

28 November 2002. 

15 September 2008 

2. 

OBJECTIVE OF THE COMMISSION PROPOSAL 

The proposal for a Directive on temporary agency work aims to ensure that the principle of 
equal treatment is applied to temporary agency workers and also to recognise temporary work 
agencies as employers. It complements the law of Member States, pursuant to Article 137 of 
the  Treaty,  by  laying  down  a  common  and  flexible  Community  framework  covering 
temporary agency work with a view to contributing effectively to the creation of jobs and to 
the development of flexible forms of working. 

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OJ C 203E, 27.8.2002, p.1-5. Title as in original. 
OJ C 61, 14.3.2003, p. 124 . 
OJ C 25 E,29.1.2004, p.368 
BULLETIN/2002/11/ 1.3.20  
OJ …xxx 

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3. 

COMMENTS ON THE COMMON POSITION 

3.1. 

Brief general observations on the Common Position 

Whilst  the  Common  Position  does  not  reflect  all  of  the  amendments  proposed  by 
Parliament and incorporated into the Commission's amended proposal, the majority 
of Parliament's amendments have nonetheless been adopted either in whole, in part 
or  in  spirit.  Moreover,  the  outcome  of  the  political  agreement  on  the  Common 
Position indicates that progress has been made on several issues such as; the direct 
application of the principle of equal treatment for agency workers from the first day 
of an assignment without any exception for short-term assignments (so-called "grace 
period"), the clarification of definitions, and either consultation with, or involvement 
of, the social partners as a condition applying to the various derogations that permit 
some deviation from the equal treatment principle.  

3.2. 

European Parliament's amendments, taken into account fully, partly or in spirit 
in the Council's common position and the Commission's amended proposal. 

Numbering of Recitals and Articles refer to the Council's common position: 

3.2.1.  Title : amendment No 1 (changing the title of the Directive6) 

3.2.2.  The Recitals 

Recital  5:  amendment  No  6  (specifying  the  links  between  this  proposal  and 
Directive 1999/70 of 28 June 1999 on fixed-term work – former Recital 7). 

Recital 9: amendment No 4 (rewording and updating of former Recital 4).  

Recital  14:  amendment  No  15  (announcing  the  content  of  Article  5(1)–  former 
Recital 15). 

Recital 20: amendment No 36 (adding a provision stipulating that temporary agency 
workers may not replace striking workers in the user undertaking). 

3.2.3.  The Articles 

Article 1 

Article  1(1):  amendment  No  23  (rewording  the  scope  to  illustrate  more  clearly  the 
triangular nature of temporary agency work). 

Article 1(2): accepting an element of amendment No 24 (confirming that both user 
undertakings and temporary work agencies are covered by the Directive) 

Article 2 

Article 2: amendment No 26 (reinforcing the balanced aims of the Directive). 

Article 3 

Article  3:  amendment  No  28  (deleting  the  definition  of  a  comparable  worker  from 
the definitions in Article 3); 

Article 3(1)(b): amendment No 30 (adding the definition of a temporary agency); 

Article 3(1)(d): amendment No 31 (adding the definition of a user undertaking); 

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See  1  above.  The  original  title  was  proposal  for  a  Directive  of  the  European  Parliament  and  of  the 
Council on working conditions for temporary workers. 

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Article  3(2):  amendment  No  85  (stipulating  that  it  is  up  to  the  Member  States  to 
define pay) and amendment No 33 (specifying workers who cannot be excluded from 
the scope of the Directive). 

Article 4 

Article  4(1):  amendment  No  34  (extending  the  obligation  on  the  Member  States  to 
review restrictions or prohibitions pertaining only to certain categories of workers or 
certain  branches  to  include  all  restrictions  or  prohibitions;  extending  the  scope  of 
justifications for prohibitions/restrictions); 

Article 4(4): amendment No 35 (specifying that national requirements concerning the 
registration  and  monitoring  of  temporary  work  agencies  are  not  prohibitions  or 
restrictions within the meaning of Article 4(1)). 

Article 5 

Article  5(1)  first  indent:  amendment  No  87  (acceptance  of  the  part  rewording  the 
principle of non-discrimination); 

Article  5(2):  amendment  No  86  (restricting  the  exemption  to  remuneration  and 
requiring consultation of the social partners); 

Article 5(3): amendment No 92 (acceptance of the part on prior consultation of the 
social partners and enabling them to uphold existing collective agreements). 

Article 6 

Article  6(1):  amendment  No  46  (specifying  how  information  on  vacancies  may  be 
made public); 

Article  6(2):  amendment  No  47  (on  the  arrangements  whereby  temporary  work 
agencies may be recompensed for services rendered to user enterprises); 

Article 6(3): amendment No 48 (specifying the scope of the prohibition on charging 
fees to workers); 

Article 6(4): amendment No 49 (specifying the scope of the amenities and collective 
facilities  in  the  user  enterprise  to  which  temporary  agency  workers  should  be 
afforded access). 

Article 7 

Article  7(1)  and  7(2):  amendment  No  51  (taking  account  of  the  fact  that  workers' 
representation may be determined by collective agreements). 

3.3. 

Amendments which have been accepted by the Commission, but not adopted in 
the Common Position 

Amendment  No  22:  a  common  framework  is  justified  as  a  means  of  facilitating 
European  labour  market  integration  and  cross-border  mobility  (formerly  part  of 
Recital 22). 

Amendment  No  44:  specifying  that  implementation  of  Article  5  through  an 
agreement  between  the  social  partners  should  be  in  line  with  national  practice 
(formerly Article 5(5)). 

Amendment No 71: restricting exemption to pay in the case of short-term contracts 
(formerly Article 5(4)). 

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Amendment  No  52  (leaving  the  choice  to  workers  as  to  whether  to  pursue  direct 
action  or  action  through  their  representatives  where  the  provisions  of  the  Directive 
are not being complied with - Article 10(2)). 

3.4. 

Amendments  which  have  not  been  accepted  by  the  Commission,  and  have  not 
been adopted in the Common Position 

The Common Position does not include amendments 3, 5, 7, 8, 9, 13, 16, 25, 39, 45, 
54, 84, 94 which the Commission had declined to accept on the grounds that they did 
not  constitute  an  improvement  to  the  Directive.  Nor  does  the  Common  Position 
include  amendments  10,  11,  12  (first  part),  21,  53,  88,  91,  93,  95,  which  the 
Commission considered to be unacceptable either from a strictly legal point of view 
or because they detracted from the overall balance of the Directive. 

3.5. 

Amendments introduced by the Council during its debates 

Recitals 8 and 9: these reformulated Recitals replace former Recitals 3 and 4 that had 
referred,  respectively  to  developments  in  the  context  of  the  launch  of  the  Lisbon 
Strategy in 2000 and of the Commission's Communication on the Social Agenda of 
2000  and  to  related  European  Council  conclusions  with  more  up-to-date  citations 
taking account of developments in 2005 and 2007. 

Recital  10:  is  expanded  in  the  light  of  the  European  Parliament  debate  about 
differences in the status and working conditions of temporary agency workers across 
the European Union. 

Recital 11: a limited re-wording for purposes of consistency.  

Recitals  12,  16  and  17:  reinforce  the  character  of  the  protective  framework  being 
provided  for  temporary  agency  workers,  while  respecting  the  diversity  of  labour 
market  and  industrial  relations  systems  that  had  been  highlighted  in  the  European 
Parliament debate (and reflected at least in part in the content of Amendments 18, 53, 
54  and  71)  by  announcing  the  scope  for  derogations  under  Articles  5(3)  and  5(4) 
respectively  by  collective  agreement  or  -  in  specific  circumstances  -  by  agreement 
between the national social partners. 

Recital  15:  an  addition  to  this  Recital  takes  into  account  the  European  Parliament 
debate7  (reflected  in  Amendment  12)  on  the  need  to  recognise  contracts  of  an 
indefinite duration as a kind of benchmark in the labour market.  

Recital  18:  aligns  the  text  of  this  Recital,  which  had  reflected  the  European 
Parliament’s  amendment  No  20  concerning  the  grounds  on  which  restrictions  or 
prohibitions might be justified, with the Council’s proposed re-wording of Article 4. 

Recital 19: follows the thrust of Recital 14 in Directive 2006/123/EC of the European 
Parliament  and  of  the  Council  of  12  December  2006  on  services  in  the  internal 
market.  

Recital  21:  replaces  former  Recital  21,  reinforcing  the  safeguards  for  temporary 
agency  workers'  rights,  and  announces  the  new  provision  on  penalties  inserted  at 
Article 10(1). 

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see also para 9 of the EP Resolution of 17 July 2007 on modernising labour law to meet the challenges 
of the 21st century. 

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Article  2:  emphasises  the  balanced  aims  of  the  Directive  in  a  re-worded  single 
paragraph, reflecting the main content of the European Parliament's Amendment 26, 
as well as the thrust of Amendment 54. 

Article 3(1)(c) and Article 3(1)(e): redefine the terms temporary agency worker and 
assignment,  aligning  the  definitions  in  the  amended  proposal  with  the  specific 
wording of amendments No 27 and No 29. 

Article  3(1)(f) and Article  5(1): follow the approach  of the Commission's  amended 
proposal  and  amendment  No  32  (redefining  basic  working  and  employment 
conditions) qualifying the reference to "general provisions" at Article 3(1)(f) as those 
in force in the user undertaking and introducing wording consistent with the revised 
definitions. 

Article 4(2): follows the amended proposal and amendment No 34 except insofar as 
it no longer refers to Member States being subject to an obligation to discontinue any 
restrictions or prohibitions that can no longer be justified, since the Council did not 
consider  it  necessary  to  repeat  the  effect  of  the  prohibition  at  Article  4(1)  or 
appropriate to stipulate the final outcome of the review exercise. 

Article 4(3): follows amendment No 34 (enabling the social partners to undertake a 
review of restrictions or prohibitions laid down in collective agreements). 

Article  5(4):  follows  amendments  No  19  and  No  42  (deletion  of  the  exemption  for 
contracts of a duration not exceeding six weeks – as the principle of equal treatment 
for agency workers is to take effect from the first day of an assignment without any 
general qualifying period applicable to short-term contracts.)  

Articles 5(3) and 5(4): reflect the spirit of amendments No 44 and No 71 (acceptance 
in  principle  that  differing  national  practices  in  the  Member  States  can  be 
accommodated through affording scope for agreement between the social partners in 
line with national practice).  

Article  5(5):  taking  account  of  elements  of  amendments  No  40,  No  71  and  No  86 
(acceptance  of  elements  relating  to  the  prevention  of  misuse  with  regard,  in 
particular, to successive assignments). 

Articles 6(3) and 6 (4): follow the amended proposal and amendments No 48 and No 
49 with some re-wording for precision and consistency with other amendments. 

Article  7: provides that Member States availing themselves of the option at Article 
7(2)  regarding  the  basis  for  calculating  the  threshold  for  establishing  bodies 
representing  workers  in  the  user  undertaking  are  not  obliged  to  implement  the 
provisions  of  Article  7(1)  regarding  the  basis  for  establishing  such  bodies  within  a 
temporary agency.  

Article  8:  includes  a  specific  reference  to  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. 

Article 10: includes a new paragraph 1 concerning measures that the Member States 
should take to ensure that temporary work agencies and user undertakings discharge 
the obligations deriving from the Directive.  

Article  11:  the  Council  considers  that  Member  States  would  need  three  years  to 
implement  the  Directive,  whereas  EP  amendment  No  53  and  the  Commission's 
amended proposal had set a two-year implementation period. 

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4. 

CONCLUSION 

In general it should be stressed that the Common Position considerably enhances the text of 
the  initial  proposal  and  responds  to  the  European  Parliament's  desire  to  ensure  that  the 
principle of equal treatment,  as regards basic working  and employment conditions, between 
temporary agency workers and the workers directly recruited by user companies should have 
effect as of day one of their assignments. Prohibitions or restrictions on the use of temporary 
agency  work  can  only  be  maintained  after  the  implementation  of  the  Directive  if  they  are 
justified  on  grounds  of  general  interest.  At  that  stage,  any  continuing  prohibitions  or 
restrictions must be subject of review and made the subject to a report to the Commission. In 
the  interests  of  subsidiarity,  differing  national  practices  as  regards  labour  market  conditions 
and  industrial  relations  practice  among  the  Member  States  can  be  accommodated  through 
affording scope for derogation from the principle of equal treatment by collective agreement 
or - under specific conditions - by agreement between the national social partners. 

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