Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work
Date: 2008-11-19
Institutions: Council of the European Union, European Parliament
Subjects: economic growth, equal treatment, job creation, labour market, occupational health, temporary employment

5.12.2008

EN

Official Journal of the European Union

L 327/9

DIRECTIVE 2008/104/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 19 November 2008

on temporary agency work

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

(3)

Having regard to the Treaty
Community, and in particular Article 137(2) thereof,

establishing the European

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)

the fundamental

the European Union (3).

This Directive respects
rights and
complies with the principles recognised by the Charter
of Fundamental Rights of
In
particular, it is designed to ensure full compliance with
the Charter, which provides that every
Article 31 of
worker has
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 right

the Fundamental Social
The Community Charter of
inter
Rights of Workers provides,
in point 7 thereof,
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.

(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 Position of the European Parliament of
22 October 2008 (not yet published in the Official Journal).

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

the Commission consulted
On 27 September 1995,
in
at Community
management
and labour
accordance 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.

level

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.

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

indicated their

Interest

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
(CEEP) and the European Trade
Economic
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.

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

(4)

(5)

(6)

(7)

(8)

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

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Official Journal of the European Union

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(9)

(10)

(11)

(12)

(13)

(14)

(15)

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
diversity of contractual arrangements for workers and
businesses, better combining flexibility with security,
the
to adaptability.
would contribute
December 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 opportu­
nities offered by globalisation.

Furthermore,

are

considerable differences

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

in the use of
situation,
temporary agency

Temporary agency work meets not only undertakings'
needs for flexibility but also the need of employees to
thus
reconcile
contributes to job creation and to participation and inte­
gration in the labour market.

their working and private

lives.

It

(16)

(17)

(18)

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.

Furthermore,
in certain limited circumstances, Member
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.

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
the protection of
in particular
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.

regarding,

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

(19)

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

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-
duration employment
temporary
employment relationship (1) establishes the safety and
health provisions
agency
workers.

relationship or

to temporary

applicable

a

and

employment

basic working

conditions
The
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.

(20)

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
agency
judicial procedures
effective,
and should provide
workers'
dissuasive and proportionate penalties for breaches of
the obligations laid down in this Directive.

to safeguard temporary

rights

for

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

(22)

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 of the Council of 16 December 1996
concerning the posting of workers in the framework of
the provision of services (2).

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

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

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(23)

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
In accordance with the principle of propor­
Treaty.
tionality, as set out in that Article, this Directive does
not go beyond what is necessary in order to achieve that
objective,

HAVE ADOPTED THIS DIRECTIVE:

Article 3

Definitions

1.

For the purposes of this Directive:

(a)

‘worker’ means any person who,
concerned,
employment law;

is protected as

in the Member State
a worker under national

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

employment

employment

or

CHAPTER I

GENERAL PROVISIONS

Article 1

Scope

(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 super­
vision and direction;

This Directive applies to workers with a contract of
1.
employment or employment relationship with a temporary-
work agency who are assigned to user undertakings to work
temporarily under their 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;

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.

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

set out

treatment, as

The purpose of this Directive is to ensure the protection of
temporary agency workers and to improve the quality of
the principle of
temporary agency work by ensuring that
equal
is applied to
temporary agency workers, and by recognising temporary-
work agencies as employers, while taking into account
the
need to establish a suitable
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.

framework for

in Article 5,

(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, regu­
lations,
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;

(ii) pay.

This Directive shall be without prejudice to national law as
employment,

2.
regards
employment relationship or worker.

the definition of pay,

contract of

shall not exclude from the scope of

this
Member States
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.

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Article 4

Review of restrictions or prohibitions

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

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 5 December 2011, Member States

2.
after
consulting the social partners in accordance with national legis­
review any
lation,
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.

and practices,

agreements

collective

shall,

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

Paragraphs 1, 2 and 3 shall be without prejudice to
4.
national
licensing,
requirements with regard to registration,
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
5 December 2011.

CHAPTER II

EMPLOYMENT AND WORKING CONDITIONS

Article 5

The principle of equal treatment

The basic working and employment

conditions of
1.
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.

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

(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;

2.
As regards pay, Member States may, after consulting the
social partners, provide that an exemption be made to the
principle 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
concerning
arrangements
employment
temporary agency workers which may differ
conditions of
from those referred to in paragraph 1.

the working

and

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
level and on the basis of an
social partners at national
agreement
arrangements
them,
by
concerning the basic working and employment conditions
which derogate from the principle established in paragraph 1.
Such arrangements may include a qualifying period for equal
treatment.

concluded

establish

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,
in application of Article 3(2),
Member States shall specify,
whether occupational
including
schemes,
social
financial participation schemes are
sick pay or
pension,
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.

security

take

shall

appropriate measures,

in
5. Member States
law and/or practice, with a view to
accordance with national
in
preventing misuse in the application of this Article and,
particular,
to preventing successive assignments designed to
circumvent the provisions of this Directive. They shall inform
the Commission about such measures.

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Article 6

Access to employment, collective facilities and vocational
training

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

4. Without prejudice to Article 5(1),
temporary agency
workers shall be given access to the amenities or collective
in particular any canteen,
facilities in the user undertaking,
child-care facilities and transport services, under
the same
conditions 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

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.

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.

3.
Those Member States which avail themselves of the option
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
in particular, Directive 2002/14/EC of the
more specific and,
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
the
providing
agency workers when
employment situation in that undertaking to bodies represen­
ting workers
and
Community legislation.

set up in accordance with national

information

on

CHAPTER III

FINAL PROVISIONS

Article 9

Minimum requirements

This Directive is without prejudice to the Member States'
1.
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
in the light of changing circumstances, different legis­
down,
to those
regulatory or
lative,
prevailing at
this Directive,
provided always that the minimum requirements laid down in
this Directive are respected.

the adoption of

arrangements

the time of

contractual

1.
Temporary agency workers shall count, under conditions
established by the Member States, for the purposes of calcu­

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

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Article 10

Penalties

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

2. Member States shall lay down rules on penalties applicable
in the event of infringements of national provisions implemen­
ting 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 5 December
2011. Member States shall notify to the Commission any
subsequent amendments to those provisions in good time.
They shall, in particular, ensure that workers and/or their repre­
sentatives have adequate means of enforcing the obligations
under this Directive.

Article 11

Implementation

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

By 5 December 2013, the Commission shall,
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 adopt and publish the laws, regu­
lations and administrative provisions necessary to comply
with this Directive by 5 December 2011, 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 forthwith inform the Commission thereof.

Done at Strasbourg, 19 November 2008.

For the European Parliament
The President

H.-G. PÖTTERING

For the Council
The President

J.-P. JOUYET