Judgment of the Court of 20 November 2024 in Case E-2/24 – Bygg & Industri Norge AS and others v the Norwegian State, represented by the Ministry of Labour and Social Inclusion (Fundamental freedoms – Article 28 EEA –Article 31 EEA – Article 36 EEA – Directive 2008/104/EC – Temporary work agencies – Internal situation – Restriction – Justification)
Date: 2024-11-20
Institutions: EFTA Court
Subjects: EU Member State, European Economic Area, Norway, employment service, free movement of workers, freedom to provide services, labour law








C_202501816EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2025/1816


20.3.2025







            JUDGMENT OF THE COURT
         
of 20 November 2024
         
in Case E-2/24
Bygg & Industri Norge AS and others v the Norwegian State, represented by the Ministry of Labour and Social Inclusion


(Fundamental freedoms – Article 28 EEA –Article 31 EEA – Article 36 EEA – Directive 2008/104/EC – Temporary work agencies – Internal situation – Restriction – Justification)


(C/2025/1816)

In Case E-2/24, Bygg & Industri Norge AS and others v the Norwegian State, represented by the Ministry of Labour and Social Inclusion (Staten v/Arbeids- og inkluderingsdepartementet) – REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by Oslo District Court (Oslo tingrett), concerning the interpretation of Article 36 of the Agreement on the European Economic Area, the Court, composed of Páll Hreinsson, President (Judge-Rapporteur), Bernd Hammermann and Michael Reiertsen, Judges, gave judgment on 20 November 2024, the operative part of which is as follows:






1.


Article 4(1) 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, first, that provision is addressed only to the competent authorities of EEA States, imposing on them an obligation to review in order to ensure that any potential prohibitions or restrictions on the use of temporary agency work are justified. Second, that provision does not impose an obligation on national courts not to apply any rule of national law containing prohibitions or restrictions on the use of temporary agency work which are not justified on grounds of general interest within the meaning of Article 4(1) of that directive.










2.


It is for the referring court to determine whether the measures at issue in the main proceedings constitute a restriction on the freedom to provide services under Article 36 EEA in relation to a recruitment agency, established in one EEA State and providing its services to temporary work agencies established in another EEA State, and in relation to those temporary work agencies receiving its services, or whether any restrictive effects are too uncertain and indirect.










3.


It is for the referring court to determine whether the measures at issue in the main proceedings are indirectly discriminatory by being intrinsically liable to affect workers who are nationals of other EEA States more than workers of Norwegian nationality. Should that be the case, the measures at issue constitute a restriction on Article 28 EEA, which would need to be justified in order to be compatible with that article.










4.


In circumstances such as those at issue in the main proceedings, where the activities of a temporary work agency, which is the subsidiary of a parent undertaking established in another EEA State, are subject to restrictions under national legislation, there is a restriction of the freedom of establishment guaranteed by Article 31 EEA.










5.


A restriction of Article 31 EEA in circumstances such as those of the main proceedings may, in principle, be justified by overriding reasons 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. It is for the referring court to identify the objectives actually pursued by the measures at issue in the main proceedings.










6.


It is for the referring court to determine whether the measures at issue in the main proceedings comply with the principle of proportionality under EEA law. First, the referring court must examine whether those measures are suitable for ensuring, in a consistent and systematic manner, the attainment of the objectives pursued. Second, the referring court must determine whether the measures at issue go beyond what is necessary to attain the legitimate objectives pursued and whether they are capable of being replaced by alternative measures that are equally useful but less restrictive of the fundamental freedoms guaranteed by the EEA Agreement.






ELI: http://data.europa.eu/eli/C/2025/1816/oj
ISSN 1977-091X (electronic edition)