1 This request for a preliminary ruling concerns the interpretation of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work (OJ 2008 L 327, p. 9), in particular Article 1(1) thereof.
2 The request has been made in proceedings between NP and Daimler AG, Mercedes-Benz Werk Berlin (‘Daimler’) regarding his claim seeking a declaration that an employment relationship existed with Daimler on the ground that, on account of its duration, his assignment to that company as a temporary agency worker cannot be classified as ‘temporary’. Legal context European Union law
3 Recitals 12, 16, 17, 19 and 21 of Directive 2008/104 state: ‘(12) 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. … (16) 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. (17) 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. … (19) 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 collective agreements in accordance with national law and practices while respecting prevailing Community law. … (21) Member States should provide for administrative or judicial 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.’
4 Article 1 of that directive, headed ‘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. 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.’
5 Article 2 of that directive, headed ‘Aim’, reads as follows: ‘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 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, headed ‘Definitions’, provides in paragraph 1, points (b) to (e) thereof: ‘For the purposes of this Directive: … (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; (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’.
7 Article 5 of Directive 2008/104, headed ‘The principle of equal treatment’, provides, in paragraphs 1, 3 and 5 thereof: ‘1. The basic working and employment 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. 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; must be complied with as established by legislation, regulations, administrative provisions, collective agreements and/or any other general provisions. … 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 conditions of temporary agency workers which may differ from those referred to in paragraph 1. … 5. Member States shall take appropriate measures, in accordance with national law and/or practice, with a view to preventing misuse in the application of this Article and, in particular, to preventing successive assignments designed to circumvent the provisions of this Directive. They shall inform the Commission about such measures.’
8 Article 9 of that directive, headed ‘Minimum requirements’, provides: ‘1. This Directive is without prejudice to the Member States’ right to apply or introduce legislative, regulatory or administrative 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. 2. The implementation of this Directive shall under no circumstances constitute sufficient grounds for justifying a 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 legislative, 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.’
9 Article 10 of that directive, headed ‘Penalties’, reads as follows: ‘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 implementing this Directive and shall take all necessary measures to ensure that they are applied. The penalties provided for must be effective, proportionate and dissuasive. …’
10 Article 11 of that directive, headed ‘Implementation’, states in paragraph 1 thereof: ‘Member States shall adopt and publish the laws, regulations 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. …’ German law
11 Paragraph 1 of the version of the Gesetz zur Regelung der Arbeitnehmerüberlassung (Law regulating temporary agency work) of 3 February 1995 (BGBl. 1995 I, p. 158) which was in force from 1 December 2011 to 31 March 2017 (‘the AÜG’), headed ‘Authorisation requirement’, provided, in subparagraph 1 thereof: ‘Employers which, as temporary-work agencies, seek, in the context of their economic activity, to assign workers (temporary agency workers) to third-party undertakings (user undertakings) shall have the appropriate authorisation. The assignment of workers to user undertakings shall be temporary.’
12 Paragraph 3 of the AÜG provided, in that regard, that an authorisation or an authorisation extension was to be refused where there was evidence to support the finding that the applicant did not display the level of reliability required under Paragraph 1 to engage in that activity, in particular because it failed to comply with social security provisions, relating to the withholding and remittance of income tax, relating to placement services, to recruitment services in other States or to the employment of workers from other States, or to comply with provisions for the protection of workers or obligations laid down by employment law.
13 According to Paragraph 5 of the AÜG, an authorisation could be withdrawn in future where the authority which issued the authorisation would have been entitled, on the basis of subsequent events, to refuse to issue it. The authorisation ceased to be valid when the withdrawal took effect.
14 Under Paragraph 9 of the AÜG, contracts between temporary-work agencies and user undertakings, and those between temporary-work agencies and temporary agency workers, were invalid if the temporary-work agency did not have the authorisation required by law. In that event, Paragraph 10 of the AÜG provided that an employment relationship was deemed to have come into being between the user undertaking and the temporary agency worker.
15 The AÜG was amended by the Gesetz zur Änderung des Arbeitnehmerüberlassungsgesetzes und anderer Gesetze (Law amending the Law regulating temporary agency work and other laws) of 21 February 2017 (BGBl. 2017 I, p. 258; ‘the AÜG, as amended’), which entered into force on 1 April 2017.
16 Paragraph 1 of the AÜG, as amended, headed ‘Assignment of workers, authorisation requirement’, reads as follows: ‘(1) … The assignment of workers is permitted temporarily up to a maximum period prescribed in subparagraph 1b. … (1b) A temporary-work agency may not assign the same temporary agency worker to the same user undertaking for more than 18 consecutive months; a temporary-work agency may not give work to the same temporary agency worker for more than 18 consecutive months. Any previous assignments by the same or another temporary-work agency to the same user undertaking shall count as a single period where any two such assignments are separated by no more than three months. A collective agreement entered into by the social partners in the sector in which the assignment takes place may prescribe a maximum assignment period different from that laid down in the first sentence hereof. … A private- or public-sector works agreement concluded with the employer on the basis of a collective agreement concluded by the social partners in the sector in which the assignment takes place may prescribe a maximum assignment period different from that laid down in the first sentence hereof. …’
17 Paragraph 9(1)(1b) of the AÜG, as amended, provides: ‘The following shall be invalid: (1b) contracts of employment between temporary-work agencies and temporary agency workers which exceed the maximum permissible assignment period laid down in Paragraph 1(1b), unless the temporary agency worker informs the temporary-work agency or the user undertaking in writing, no later than one month after the maximum permissible assignment period has been exceeded, that he or she is maintaining his or her contract of employment with the temporary-work agency, …’
18 The first sentence of Paragraph 10(1) of the AÜG, as amended, states: ‘Where the contract concluded between a temporary-work agency and a temporary agency worker is invalid under Paragraph 9, an employment relationship between the user undertaking and the temporary agency worker shall be deemed to have come into being on the date of commencement of the assignment agreed between the user undertaking and the temporary-work agency; where that contract does not become invalid until after the temporary agency worker has started working at the user undertaking, the employment relationship between the user undertaking and the temporary agency worker shall be deemed to have come into being at the time when the contract became invalid. …’
19 Paragraph 19(2) of the AÜG, as amended, contains a transitional provision, which reads as follows: ‘Assignment periods predating 1 April 2017 shall not be taken into account in the calculation of the maximum assignment period laid down in Paragraph 1(1b) …’
20 The Collective Agreement of 23 May 2012 governing temporary/temporary agency work in the metal and electrical industries in Berlin and in the Land Brandenburg and the Collective Agreement of 1 June 2017 which succeeded it provide, inter alia, that it is possible to use temporary agency workers on a temporary basis. The Collective Agreement of 1 June 2017 refers, moreover, expressly to the legal option to derogate provided for in Paragraph 1(1b) of the AÜG, as amended. In addition, the social partners are in agreement that, pursuant to that collective agreement, the maximum assignment period may not exceed 48 months. Point 8 of that collective agreement contains a transitional provision. Under that provision, the social partners are to agree the maximum assignment period at the level of each undertaking. In the absence of agreement, the maximum assignment period is to be 36 months with effect from 1 June 2017. The dispute in the main proceedings and the questions referred for a preliminary ruling
21 NP was employed with effect from 1 September 2014 by a temporary-work agency. From that date until 31 May 2019, with the exception of a two-month period of parental leave, he was assigned exclusively to Daimler, as a user undertaking, where he worked at all times in the engine-assembly area. According to the referring court, the purpose of the employment at issue was not to provide cover for a worker.
22 On 27 June 2019, NP brought an action before the Arbeitsgericht Berlin (Labour Court, Berlin, Germany) seeking a declaration that an employment relationship had existed between Daimler and himself since 1 September 2015, in the alternative since 1 March 2016, in the further alternative since 1 November 2016, in the yet further alternative since 1 October 2018 and, in the final alternative, since 1 May 2019. To that end, he argued, inter alia, that, due to the fact that it had lasted for more than one year, his assignment to Daimler could not be classified as ‘temporary’ and that the transitional provision laid down in Paragraph 19(2) of the AÜG, as amended, was contrary to EU law. By judgment of 8 October 2019, that court dismissed that action.
23 On 22 November 2019, NP brought an appeal against that judgment before the Landesarbeitsgericht Berlin-Brandenburg (Higher Labour Court, Berlin-Brandenburg, Germany).
24 That court explains that, whilst the national law which implements Directive 2008/104 provided, from the outset, that the assignment of workers could be of a ‘temporary’ nature only, a maximum assignment period was introduced in national law with effect only from 1 April 2017, with that period having been set at 18 months, subject to possible derogations as part of collective agreements concluded by the social partners in the sector concerned or as part of a private- or public-sector works agreement concluded on the basis of such collective agreements. Also since that date, the applicable legislation has provided, by way of penalty if that period is exceeded, that an employment relationship between the user undertaking and the temporary agency worker is to be deemed to have come into being on the agreed start date of the assignment.
25 That court adds that the legislative amendment referred to in the preceding paragraph contains a transitional provision, under which only periods of work carried out after 1 April 2017 are to be taken into account in calculating the maximum assignment period. Moreover, the Collective Agreement of 1 June 2017 referred to in paragraph 20 of the present judgment, and a General Works Agreement of 20 September 2017 which applies to Daimler, provide for a maximum assignment period of 36 months, calculated from 1 June 2017 and 1 April 2017 respectively. It follows that, for a worker such as NP, the period during which he was assigned to Daimler is not, under the applicable legislation, regarded as having exceeded the maximum period provided for by that legislation, even though that assignment extended over a period of nearly five years.
26 In that context, the referring court points out that, inasmuch as NP seeks a declaration that an employment relationship existed with Daimler before 1 October 2018, his action may fully succeed only if EU law requires it.
27 In those circumstances, the Landesarbeitsgericht Berlin-Brandenburg (Higher Labour Court, Berlin-Brandenburg) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is the assignment of a temporary agency worker to a user undertaking no longer to be regarded as “temporary” for the purposes of Article 1 of [Directive 2008/104] as soon as the employment takes place in a job which is permanent and not performed [to provide] cover? (2) Is the assignment of a temporary agency worker for a period of less than 55 months no longer to be regarded as “temporary” for the purposes of Article 1 of [Directive 2008/104]? … If the answer to Question 1 and/or Question 2 is in the affirmative …:[(3)] Does the temporary agency worker have an entitlement to the establishment of an employment relationship with the user undertaking even if the national law does not provide for such a penalty before 1 April 2017? [(4)] Does a national provision such as Paragraph 19(2) of the [AÜG, as amended,] infringe Article 1 of [Directive 2008/104] where it prescribes an individual maximum assignment period of 18 months for the first time as from 1 April 2017, but expressly excludes the taking into account of prior periods of assignment, although the assignment could no longer be classified as temporary if the prior periods of assignment were taken into account? [(5)] Can the extension of the individual maximum assignment period be left to the discretion of the parties to a collective agreement? If so, does this also apply to parties to a collective agreement who exercise competence not over the employment relationship of the temporary agency worker concerned, but over the sector in which the user undertaking is active?’ Consideration of the questions referred The first question
28 By its first question, the referring court asks, in essence, whether Article 1(1) of Directive 2008/104 must be interpreted as meaning that the term ‘temporarily’, used in that provision, precludes a worker with a contract of employment or an employment relationship with a temporary-work agency being assigned to a user undertaking in order to fill a job which is permanent and which is not performed to provide cover.
29 It should be recalled that, according to settled case-law, in interpreting provisions of EU law, it is important to take into account not only the words of those provisions, considering their usual meaning in everyday language, but also their context and the purposes of the rules of which they are part (see, to that effect, judgments of 24 June 2010, Pontini and Others , C‑375/08, EU:C:2010:365, paragraph 58, and of 29 July 2019, Pelham and Others , C‑476/17, EU:C:2019:624, paragraph 28 and the case-law cited).
30 In the first place, it is apparent from the wording of Article 1 of Directive 2008/104, which defines the scope thereof, that that directive applies, under Article 1(1), to workers with a contract of employment or an employment relationship with a temporary-work agency who are assigned to user undertakings to work temporarily under their supervision and direction.
31 It thus follows from the wording itself of that provision that the term ‘temporarily’ is not intended to limit the application of temporary agency work to jobs which are not permanent or which must be performed to provide cover, as that term characterises not the job which must be occupied at the user undertaking but the arrangements for the assignment of a worker to that undertaking.
32 In the second place, that literal interpretation of Article 1(1) of Directive 2008/104 is corroborated by the context of that provision, and in particular by the overall scheme of that directive.
33 It should be pointed out, first, that none of the provisions of Directive 2008/104 concerns the nature of the work or the type of job which must be filled at the user undertaking. Similarly, that directive does not list the cases in which the use of that form of work may be justified, Member States having retained, as the Advocate General notes in point 37 of his Opinion, broad discretion to determine situations in which its use is justified. In that regard, Directive 2008/104 provides only for the introduction of minimum requirements, as is apparent from Article 9(2) of that directive (see, to that effect, judgment of 14 October 2020, KG (Successive assignments in the context of temporary agency work) , C‑681/18, EU:C:2020:823, paragraph 41).
34 Second, it should be emphasised that the term ‘temporarily’ is also used in Article 3(1)(b) to (e) of Directive 2008/104, which defines the concepts of ‘temporary-work agency’, ‘temporary agency worker’, ‘user undertaking’ and ‘assignment’. The Court has already held that it is apparent from those definitions that it is the employment relationship with a user undertaking which is, by its very nature, temporary (see, to that effect, judgment of 14 October 2020, KG (Successive assignments in the context of temporary agency work) , C‑681/18, EU:C:2020:823, paragraph 61).
35 Third, the Court has also found that the first sentence of Article 5(5) of that directive, which provides that Member States are to take appropriate measures, in accordance with national law and/or practice in the Member State concerned, with a view to preventing misuse in the application of that article and, in particular, to preventing successive assignments designed to circumvent the provisions of that directive, does not require Member States to make the use of temporary agency work subject to the prerequisite that the technical, production, organisational or replacement-related reasons be stated (see, to that effect, judgment of 14 October 2020, KG (Successive assignments in the context of temporary agency work) , C‑681/18, EU:C:2020:823, paragraph 42).
36 It follows, as the Commission essentially points out, that the EU legislature did not intend to limit the use of temporary agency work by permitting a temporary agency worker only to occupy a job which is temporary in nature.
37 In the third place, such an interpretation is not called into question by the objectives pursued by Directive 2008/104, as stated in recital 12 and Article 2 of that directive, which are to establish a protective framework for temporary agency workers which is non-discriminatory, transparent and proportionate, while respecting the diversity of labour markets and industrial relations, and to promote the development of flexible forms of working, the creation of jobs and the protection of temporary agency workers, to the extent that, as the Advocate General notes, in essence, in point 42 of his Opinion, the pursuit of those objectives does not require that temporary agency workers may not be appointed to fill permanent jobs which are not performed to provide cover. On the contrary, the circumstance that Directive 2008/104 also aims, as the Court has observed, to stimulate temporary agency workers’ access to permanent employment at the user undertaking (judgment of 14 October 2020, KG (Successive assignments in the context of temporary agency work) , C‑681/18, EU:C:2020:823, paragraph 51) supports the interpretation that a temporary worker may be assigned to a user undertaking to fill, temporarily, a permanent job, which he or she would be capable of occupying subsequently on a permanent basis.
38 In the light of the foregoing considerations, the answer to the first question is that Article 1(1) of Directive 2008/104 must be interpreted as meaning that the term ‘temporarily’ used in that provision does not preclude a worker with a contract of employment or an employment relationship with a temporary-work agency from being assigned to a user undertaking to fill a job which is permanent and which is not performed to provide cover. The second question Jurisdiction of the Court
39 Daimler disputes the jurisdiction of the Court to answer the second question, on the ground that that question seeks to have the Court carry out a factual assessment of the assignment of the worker who is the subject of the dispute in the main proceedings.
40 In that regard, it is sufficient to observe that the second question concerns not the finding or assessment of the facts of the dispute in the main proceedings, but the legal classification of the assignment period of the temporary agency worker in question in the main proceedings in view of the requirement, to which reference is made, inter alia, in Article 1 of Directive 2008/104, that such an assignment must remain ‘temporary’. The classification under EU law of facts established by the referring court involves, however, interpretation of EU law for which, in the context of the procedure laid down in Article 267 TFEU, the Court has jurisdiction (see, to that effect, judgment of 20 December 2017, Asociación Profesional Elite Taxi , C‑434/15, EU:C:2017:981, paragraph 20 and the case-law cited).
41 Therefore, it must be held that the Court has jurisdiction to answer the second question. Admissibility
42 Daimler takes the view that the second question is, in any event, inadmissible, on the ground that it is not relevant to the outcome of the dispute in the main proceedings.
43 In that connection, it should be recalled that, in accordance with the Court’s settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle required to give a ruling (judgment of 25 November 2021, job-medium , C‑233/20, EU:C:2021:960, paragraph 17 and the case-law cited).
44 It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 25 November 2021, job-medium , C‑233/20, EU:C:2021:960, paragraph 18 and the case-law cited).
45 In this case, as pointed out in paragraph 40 of the present judgment, by its second question, the referring court seeks to ascertain the legal classification of the assignment period of the temporary agency worker in question in the main proceedings in view of the requirement, to which reference is made, inter alia, in Article 1 of Directive 2008/104, that such an assignment must remain ‘temporary’. That court adds, as pointed out in paragraph 26 of the present judgment, that, since NP seeks a declaration that an employment relationship with Daimler existed before 1 October 2018, his action cannot fully succeed unless EU law requires that.
46 It must, therefore, be found that the second question concerns the interpretation of EU law and that the answer to that question is relevant to the outcome of the dispute before the referring court.
47 It follows that that question is admissible. Substance
48 As a preliminary point, it should be recalled that, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. The Court has a duty to interpret all provisions of EU law which national courts require in order to decide the actions pending before them, even where those provisions are not expressly indicated in the questions referred to the Court of Justice by those courts (judgment of 21 June 2016, New Valmar , C‑15/15, EU:C:2016:464, paragraph 28 and the case-law cited).
49 Consequently, even if, formally, the referring court has limited its second question to the interpretation of Article 1 of Directive 2008/104 alone, that does not prevent the Court from providing the referring court with all the elements of interpretation of EU law which may be of assistance in assessing the case pending before it, whether or not the referring court has referred to them in the wording of its questions. It is, in this regard, for the Court to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation in view of the subject matter of the dispute in the main proceedings (see, to that effect and by analogy, judgment of 21 June 2016, New Valmar , C‑15/15, EU:C:2016:464, paragraph 29 and the case-law cited).
50 In the present case, although, by its second question, the referring court asks the Court to interpret Article 1 of Directive 2008/104 and, in particular, the term ‘temporarily’ used in Article 1(1), it is apparent from the grounds of the order for reference that, by that question, the referring court seeks to establish, not whether the assignment of the temporary agency worker in question falls within the scope of that directive, but rather whether that assignment can still be ‘temporary’ in nature, within the meaning of that directive, or, on the contrary, is abusive in nature on account of the successive renewals of that worker’s assignment, leading to an assignment period of 55 months, with that court pointing out that NP claimed such an abusive nature in the proceedings before it.
51 Thus, that question aims, in essence, to determine whether, in circumstances such as those at issue in the main proceedings, such renewals can constitute misuse of the allocation of successive assignments to a temporary agency worker, within the meaning of Article 5(5) of Directive 2008/104.
52 In those circumstances, it is appropriate to reformulate the second question and to consider that, by that question, the referring court asks, in essence, whether Article 1(1) and Article 5(5) of Directive 2008/104 must be interpreted as meaning that the renewal of successive assignments in respect of the same job at a user undertaking for a period of 55 months constitutes misuse of the allocation of successive assignments to a temporary agency worker.
53 At the outset, it should be observed, first, that Directive 2008/104 does not seek specifically to define the period of assignment of a temporary agency worker to a user undertaking beyond which that assignment can no longer be classified as ‘temporary’. It is clear that neither Article 1(1) of Directive 2008/104 which, as recalled in paragraph 30 of the present judgment, refers to the assignment of workers to user undertakings to work ‘temporarily’ nor any other provision of that directive sets a period beyond which an assignment can no longer be classified as ‘temporary’. Similarly, none of the provisions of that directive imposes an obligation on Member States to provide, in national law, for such a period.
54 Second, the first sentence of Article 5(5) of Directive 2008/104, which requires Member States, inter alia, to take appropriate measures with a view to preventing successive assignments designed to circumvent the provisions of that directive, does not require those States to limit the number of successive assignments of the same worker to the same user undertaking, any more than it lays down any specific measures which the Member States should take for that purpose, including in order to prevent abuse (see, to that effect, judgment of 14 October 2020, KG (Successive assignments in the context of temporary agency work) , C‑681/18, EU:C:2020:823, paragraphs 42 and 44).
55 It follows that the provisions of Directive 2008/104 do not require Member States to adopt any specific legislation in that regard (see, by analogy, judgment of 17 March 2015, AKT , C‑533/13, EU:C:2015:173, paragraph 31).
56 The fact remains that, as the Court has already observed, the first sentence of Article 5(5) of Directive 2008/104 requires Member States to take appropriate measures with a view to preventing the allocation of successive assignments to a temporary agency worker designed to circumvent the provisions of that directive as a whole. In particular, Member States must ensure that temporary agency work at the same user undertaking does not become a permanent situation for a temporary agency worker (judgment of 14 October 2020, KG (Successive assignments in the context of temporary agency work) , C‑681/18, EU:C:2020:823, paragraphs 55 and 60).
57 It is open to the Member States, in that regard, to set, in national law, a specific period beyond which an assignment can no longer, including where successive renewals of the assignment of the same temporary agency worker to the same user undertaking go on for some time, be regarded as temporary. That said, such a period must necessarily, in accordance with Article 1(1) of Directive 2008/104, be temporary in nature, namely, according to the meaning of that term in everyday language, be limited in time.
58 Where the applicable rules of a Member State do not lay down such a period, it is for the national courts to determine it in each case in view of all the relevant circumstances, including, in particular, the specific characteristics of the sector (see, to that effect, judgment of 18 December 2008, Andersen , C‑306/07, EU:C:2008:743, paragraph 52), and to satisfy themselves as the Advocate General notes, in essence, in point 46 of his Opinion that the allocation of successive assignments to a temporary agency worker is not designed to circumvent the objectives of Directive 2008/104, in particular, the temporary nature of temporary agency work.
59 For the purposes of such a determination, the referring court may, according to the case-law of the Court, take into account the considerations which follow.
60 Assuming that successive assignments of the same temporary agency worker to the same user undertaking result in a period of service with that undertaking that is longer than what can reasonably be regarded as ‘temporary’ in view of all the relevant circumstances, including, in particular, the specific characteristics of the sector, that could be indicative of misuse of successive assignments, for the purpose of the first sentence of Article 5(5) of Directive 2008/104 (see, to that effect, judgment of 14 October 2020, KG (Successive assignments in the context of temporary agency work) , C‑681/18, EU:C:2020:823, paragraph 69).
61 Similarly, successive assignments of the same temporary agency worker to the same user undertaking circumvent the very essence of the provisions of Directive 2008/104 and amount to misuse of that form of employment relationship, since they upset the balance struck by that directive between flexibility for employers and security for workers by undermining the latter (judgment of 14 October 2020, KG (Successive assignments in the context of temporary agency work) , C‑681/18, EU:C:2020:823, paragraph 70).
62 Finally, where, in a given case, no objective explanation is given for the decision of the user undertaking concerned to have recourse to a series of successive temporary agency contracts, it is for the national court to examine, in the context of the national legislative framework and taking account of the circumstances of each case, whether any of the provisions of Directive 2008/104 has been circumvented, especially where the series of contracts in question has assigned the same temporary agency worker to the user undertaking (judgment of 14 October 2020, KG (Successive assignments in the context of temporary agency work) , C‑681/18, EU:C:2020:823, paragraph 71).
63 In the light of all the foregoing considerations, the answer to the second question is that Article 1(1) and Article 5(5) of Directive 2008/104 must be interpreted as meaning that the renewal of successive assignments in respect of the same job at a user undertaking for a period of 55 months constitutes misuse of the allocation of successive assignments to a temporary agency worker, where successive assignments of the same temporary agency worker to the same user undertaking result in a period of service with that undertaking that is longer than what can reasonably be regarded as ‘temporary’, in view of all the relevant circumstances, including, in particular, the specific characteristics of the sector, and in the context of the national legislative framework, and no objective explanation is given for the decision of the user undertaking concerned to have recourse to a series of successive temporary agency contracts, which is a matter for the referring court to determine. The fourth question
64 As a preliminary point, it should be noted that the fourth question, which it is appropriate to examine in the third place, is asked by the referring court in view of the circumstance, set out by that court, that, whereas the national legislation provided, from 1 December 2011, that the assignment of a worker to a user undertaking was to be of a temporary nature, it was only by an amendment to that legislation which entered into force on 1 April 2017, that is more than six years after the date by which Directive 2008/104 was to be implemented, that the German legislature provided, subject to derogations which may be made in collective agreements between the social partners in the sector in which the assignment takes place, and in private- or public-sector works agreements concluded on the basis of such collective agreements, that the maximum assignment period for temporary agency workers was to be set at 18 months, whilst also providing, by way of a transitional provision, that only assignment periods subsequent to 1 April 2017 are to be taken into account for the purposes of calculating that maximum period.
65 However, in addition to seeking to ascertain whether Directive 2008/104 precludes such legislation, inasmuch as that legislation would prevent periods prior to its entry into force from being taken into account, when taking them into account could lead to an assignment no longer being ‘temporary’ in nature, the referring court seeks to establish whether it is required to disapply the transitional provision at issue, in whole or in part.
66 Thus, by its fourth question, the referring court asks, in essence, whether Directive 2008/104 must be interpreted as precluding national legislation which sets a maximum period for the assignment of the same temporary agency worker to the same user undertaking, whilst also preventing, by way of a transitional provision, for the purposes of calculating that period, assignment periods preceding the entry into force of that legislation from being taken into account. If so, that court seeks to establish whether, when hearing a dispute between individuals, it is required to disapply such a transitional provision.
67 As the Court has already held, the first sentence of Article 5(5) of Directive 2008/104 requires Member States, in clear, precise and unconditional terms, to take appropriate measures to prevent abuse consisting of giving a worker successive assignments of temporary agency work designed to circumvent the provisions of that directive. It follows that that provision must be interpreted as precluding a Member State from taking no measures at all to preserve the temporary nature of temporary agency work (judgment of 14 October 2020, KG (Successive assignments in the context of temporary agency work) , C‑681/18, EU:C:2020:823, paragraph 63).
68 That said, it has been recalled, in paragraph 53 of the present judgment, that none of the provisions of Directive 2008/104 imposes an obligation on Member States to provide, in national law, for a period beyond which an assignment can no longer be classified as ‘temporary’.
69 It is, however, open to the Member States, first, to introduce, in national law, a maximum assignment period beyond which the assignment of a temporary agency worker to a user undertaking is deemed not to be temporary in nature any longer and, second, to lay down transitional provisions to that effect.
70 It follows from Article 9(1) of Directive 2008/104 that that directive is without prejudice to the Member States’ right to apply or introduce legislative provisions which are more favourable to workers, which include national legislation, such as that at issue in the main proceedings, which sets a maximum period beyond which the assignment of a temporary agency worker to a user undertaking is deemed not to be temporary in nature any longer.
71 However, in doing so, Member States cannot disregard the provisions of Directive 2008/104. Thus, first, in setting a maximum period for the assignment of a temporary worker to a user undertaking, a Member State cannot set such a period so that it goes beyond the temporary nature of such an assignment or allows the allocation of successive assignments to a temporary agency worker in a manner which circumvents the provisions of that directive, in accordance with Article 1(1) and the first sentence of Article 5(5) thereof. Second, as can be seen from Article 9(2) of Directive 2008/104, the implementation of that directive is under no circumstances to constitute sufficient grounds to justify a reduction in the general level of protection of workers in the fields covered by that directive.
72 Since, in accordance with Article 11(1) of Directive 2008/104, the Member States were required to comply with those provisions by 5 December 2011 at the latest, it must be found that, with effect from that date, they had the obligation to ensure that the assignment of temporary agency workers would not exceed a period which could be classified as ‘temporary’.
73 In the present case, as the Advocate General notes, in essence, in point 62 of his Opinion, the result of a transitional provision, such as that referred to in paragraph 19 of the present judgment, cannot be to deprive of practical effect the protection offered by Directive 2008/104 to a temporary agency worker who, on account of the duration of his or her assignment to a user undertaking, taken as a whole, has been the subject of such an assignment which can no longer be regarded as ‘temporary’ within the meaning of that directive.
74 It follows that Directive 2008/104 must be interpreted as precluding national legislation which sets a maximum period for the assignment of the same temporary agency worker to the same user undertaking, where that legislation deprives of practical effect the protection offered by Directive 2008/104 to a temporary agency worker who, on account of the duration of his or her assignment to a user undertaking, taken as a whole, has been the subject of such an assignment which can no longer be regarded as ‘temporary’ within the meaning of that directive. It is for the national court to determine whether that is actually the case.
75 If so, the referring court asks whether, when hearing a dispute exclusively between private individuals, it is required to disapply a transitional provision such as that referred to in paragraph 19 of the present judgment.
76 In that connection, the Court has repeatedly held that a national court, when hearing a case between individuals, is required, when applying the provisions of domestic law adopted for the purpose of transposing obligations laid down by a directive, to consider the whole body of rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the directive in order to achieve an outcome consistent with the objective pursued by the directive (judgments of 15 January 2014, Association de médiation sociale , C‑176/12, EU:C:2014:2, paragraph 38 and the case-law cited, and of 4 June 2015, Faber , C‑497/13, EU:C:2015:357, paragraph 33).
77 Nevertheless, the principle of interpreting national law in conformity with EU law has certain limits. Thus, the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of national law is limited by general principles of law and it cannot serve as the basis for an interpretation of national law contra legem (see, to that effect, judgments of 15 January 2014, Association de médiation sociale , C‑176/12, EU:C:2014:2, paragraph 39; of 13 December 2018, Hein , C‑385/17, EU:C:2018:1018, paragraph 51; and of 14 October 2020, KG (Successive assignments in the context of temporary agency work) , C‑681/18, EU:C:2020:823, paragraph 66 and the case-law cited).
78 In this case, as the Advocate General notes in points 63 and 64 of his Opinion, it is the duty of the referring court to determine whether the transitional provision referred to in paragraph 19 of the present judgment can, taking into consideration the whole body of rules of national law, be interpreted in conformity with the requirements of Directive 2008/104 and, therefore, be interpreted otherwise than as depriving the appellant in the main proceedings of the right to rely on the total period of his assignment to the user undertaking, for the purposes of finding, as the case may be, that that assignment had become more than temporary in nature.
79 Where the national court which is called upon within the exercise of its jurisdiction to apply provisions of EU law is unable to interpret national legislation in accordance with the requirements of EU law, the principle of the primacy of EU law requires that national court to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for that court to request or await the prior setting aside of such provision by legislative or other constitutional means (judgment of 18 January 2022, Thelen Technopark Berlin , C‑261/20, EU:C:2022:33, paragraph 30 and the case-law cited).
80 That said, account should also be taken of the other essential characteristics of EU law and, in particular, of the nature and legal effects of directives (judgment of 18 January 2022, Thelen Technopark Berlin , C‑261/20, EU:C:2022:33, paragraph 31 and the case-law cited).
81 Thus, a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against that individual before a national court. In accordance with the third paragraph of Article 288 TFEU, the binding nature of a directive, which constitutes the basis for the possibility of relying on it, exists only in relation to ‘each Member State to which it is addressed’; the European Union has the power to enact, in a general and abstract manner, obligations for individuals with immediate effect only where it is empowered to adopt regulations. Therefore, even a clear, precise and unconditional provision of a directive does not allow a national court to disapply a provision of its national law which conflicts with it if, were that court to do so, an additional obligation would be imposed on an individual (judgment of 18 January 2022, Thelen Technopark Berlin , C‑261/20, EU:C:2022:33, paragraph 32 and the case-law cited).
82 It follows that a national court, when hearing a dispute exclusively between private individuals, is not required, on the basis of EU law alone, to disapply a transitional provision conflicting with EU law which prevents, for the purposes of applying legislation which sets a maximum assignment period for temporary agency workers, assignment periods preceding the entry into force of such legislation from being taken into account.
83 In the light of the foregoing considerations, the answer to the fourth question is that Directive 2008/104 must be interpreted as precluding national legislation which sets a maximum period for the assignment of the same temporary agency worker to the same user undertaking, where that legislation prevents, by a transitional provision, for the purposes of calculating that period, assignment periods preceding the entry into force of that legislation from being taken into account, thereby depriving the national court of the possibility of taking into account the true assignment period of a temporary agency worker for the purposes of determining whether that assignment was ‘temporary’ in nature, within the meaning of that directive, which is a matter for that court to determine. A national court, when hearing a dispute between private individuals, is not required, on the basis of EU law alone, to disapply such a transitional provision which conflicts with EU law. The third question Admissibility
84 Daimler claims that the third question is inadmissible, on the ground that a connection with EU law has not been established.
85 In that regard, it is sufficient to observe that that question specifically concerns the issue of whether a temporary agency worker may derive directly from EU law a right to an employment relationship with a user undertaking where national law has not provided for any penalties in the event of non-compliance with the provisions of Directive 2008/104. A connection with EU law has, therefore, been sufficiently established.
86 It follows that the third question is admissible. Substance
87 By its third question, the referring court asks, in essence, whether Article 10(1) of Directive 2008/104 must be interpreted as meaning that, in the absence of any provisions of national law seeking to penalise non-compliance with that directive by temporary-work agencies or user undertakings, a temporary agency worker may derive from EU law an individual right to the establishment of an employment relationship with the user undertaking.
88 That question is asked by the referring court on account of the fact that, until 31 March 2017, the German legislature did not provide for any penalties where the assignment of a temporary agency worker could no longer be regarded as temporary.
89 That court, which observes that the applicable national law provides that an employment relationship with the user undertaking is to come into being where the temporary-work agency does not have the authorisation required to assign workers, seeks to ascertain whether it must be inferred from the practical effect of Article 10(1) of Directive 2008/104 that the same penalty should be applied to an assignment which is no longer of a temporary nature.
90 As a preliminary point, it should be noted that the premiss on which the referring court relies, according to which no provision was made for penalties in Germany in cases where the assignment of a temporary agency worker could no longer be regarded as temporary, is contested by the German Government, which states that assignments of a temporary agency worker which were not temporary in nature were already penalised prior to 1 April 2017 by a withdrawal of the authorisation required for the assignment of workers by temporary-work agencies.
91 In that regard, it should be noted that, according to the Court’s settled case-law, in the procedure laid down by Article 267 TFEU, the functions of the Court of Justice and those of the referring court are clearly distinct, and it falls exclusively to the latter to interpret national legislation (judgment of 14 November 2019, Spedidam , C‑484/18, EU:C:2019:970, paragraph 28 and the case-law cited).
92 Thus, it is not for the Court, in the context of a reference for a preliminary ruling, to rule on the interpretation of national provisions. The Court must take account, under the division of jurisdiction between the Courts of the European Union and the national courts, of the factual and legislative context, as described in the order for reference, in which the questions put to it are set (judgment of 14 November 2019, Spedidam , C‑484/18, EU:C:2019:970, paragraph 29 and the case-law cited).
93 Under the third paragraph of Article 288 TFEU, a directive is to be binding, as to the result to be achieved, upon each Member State to which it is addressed, but is to leave to the national authorities the choice of form and methods.
94 Although that provision leaves Member States to choose the ways and means of ensuring that the directive is implemented, that freedom does not affect the obligation imposed on all the Member States to which the directive is addressed to adopt, in their national legal systems, all the measures necessary to ensure that the directive is fully effective, in accordance with the objective which it pursues (judgment of 10 April 1984, von Colson and Kamann , 14/83, EU:C:1984:153, paragraph 15).
95 In the present case, Article 10(1) of Directive 2008/104 requires Member States to provide for appropriate measures in the event of non-compliance with that directive by temporary-work agencies or user undertakings. In particular, the Member States must ensure that adequate administrative or judicial procedures are available for the enforcement of obligations under that directive. Article 10(2) adds that Member States are to lay down rules on penalties applicable in the event of infringements of national provisions implementing Directive 2008/104 and to take all necessary measures to ensure that they are applied, and specifies that those penalties must be effective, proportionate and dissuasive, which recital 21 of that directive also recalls.
96 As is unequivocally clear from the wording of Article 10 of Directive 2008/104, that provision does not contain precise rules with regard to the putting in place of the penalties to which it refers, but leaves Member States to choose from among those which will be suitable to achieving its objective.
97 It follows that a temporary agency worker, whose assignment to a user undertaking is no longer temporary in nature, in breach of Article 1(1) and the first sentence of Article 5(5) of Directive 2008/104, cannot, in the light of the case-law recalled in paragraph 79 of this judgment, derive from EU law an individual right to the establishment of an employment relationship with that undertaking.
98 A contrary interpretation would lead in practice to the removal of the discretionary power conferred on the national legislatures alone, for whom it is to design an appropriate system of penalties within the framework defined in Article 10 of Directive 2008/104 (see, by analogy, judgment of 4 October 2018, Link Logistik N&N , C‑384/17, EU:C:2018:810, paragraph 54).
99 That said, it should be recalled that a party injured as a result of domestic law not being in conformity with EU law can nonetheless rely on the judgment of 19 November 1991, Francovich and Others (C‑6/90 and C‑9/90, EU:C:1991:428), in order to obtain, if appropriate, compensation for the loss sustained (see, to that effect, judgment of 15 January 2014, Association de médiation sociale , C‑176/12, EU:C:2014:2, paragraph 50 and the case-law cited).
100 In the light of the foregoing considerations, the answer to the third question is that Article 10(1) of Directive 2008/104 must be interpreted as meaning that, in the absence of any provisions of national law seeking to penalise non-compliance with that directive by temporary-work agencies or user undertakings, a temporary agency worker cannot derive from EU law an individual right to the establishment of an employment relationship with the user undertaking. The fifth question
101 By its fifth question, the referring court asks, in essence, whether Directive 2008/104 must be interpreted as precluding national legislation which authorises the social partners to derogate, at the level of individual branches of user undertakings, from the maximum assignment period for temporary agency workers set by such legislation.
102 According to that court, that question is asked in view of the fact that Article 5(3) of Directive 2008/104, which provides that the social partners may establish arrangements which derogate from the principle set out in Article 5(1), concerns only derogations from the principle of equal treatment as expressed in concrete terms in that article. Thus, it does not appear that any powers were conferred on the social partners in so far as concerns the adjustment of the assignment period of workers.
103 It is true that, as is apparent from Article 5(3) of Directive 2008/104, Member States may, under certain conditions only, give the social partners the option to depart from the conditions referred to in Article 5(1). Moreover, recital 17 of that directive states in that regard that, 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.
104 However, it is clear that the role of the social partners in the implementation of Directive 2008/104 is not limited to the task conferred on them in Article 5 of that directive.
105 In particular, first, recital 16 of that directive envisages a broad field of involvement on the part of the social partners by specifying that 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. Moreover, it is apparent from recital 19 of that directive that it does not affect the autonomy of the social partners and nor should it affect relations between the social partners, including the right to negotiate and conclude collective agreements in accordance not only with EU law, but also with national practices while respecting prevailing EU law. It follows that Member States have, in that regard, broad discretion, in particular in determining the social partners authorised for that purpose.
106 Second, it should be observed that Article 9 of Directive 2008/104 provides, in essence, that it is open to Member States to permit collective agreements concluded between the social partners, provided that the minimum requirements laid down in that directive are respected.
107 Third, as is unequivocally clear from Article 11(1) of Directive 2008/104, it is open to Member States, for the purposes of complying with that directive in terms of the result which it prescribes, either to adopt the laws, regulations and administrative provisions necessary in that respect or to ensure that the social partners introduce the necessary provisions by way of agreement, whereby the Member States must make all the necessary arrangements to enable them to guarantee at any time that the objectives of that directive are being attained.
108 The power thus granted to the Member States by Directive 2008/104 is in accordance with the Court’s case-law that Member States may leave the implementation of the social-policy objectives envisaged by a directive in this area in the first instance to management and labour (see, to that effect, judgment of 11 February 2010, Ingeniørforeningen i Danmark , C‑405/08, EU:C:2010:69, paragraph 39 and the case-law cited).
109 That possibility does not, however, discharge the Member States from the obligation of ensuring, by appropriate laws, regulations or administrative measures, that temporary agency workers are afforded the full protection provided for in Directive 2008/104 (see, to that effect, judgment of 11 February 2010, Ingeniørforeningen i Danmark , C‑405/08, EU:C:2010:69, paragraph 40 and the case-law cited).
110 As to the circumstance that, in the present case, competence lies with the social partners at the level of individual branches of user undertakings, it should be noted that Directive 2008/104 does not provide for any limitations or obligations in that regard, so that such a decision is at the discretion of Member States.
111 In the light of the foregoing considerations, the answer to the fifth question is that Directive 2008/104 must be interpreted as not precluding national legislation which authorises the social partners to derogate, at the level of individual branches of user undertakings, from the maximum assignment period for temporary agency workers set by such legislation. Costs
112 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Second Chamber) hereby rules: 1. Article 1(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 the term ‘temporarily’ used in that provision does not preclude a worker with a contract of employment or an employment relationship with a temporary-work agency from being assigned to a user undertaking to fill a job which is permanent and which is not performed to provide cover. 2. Article 1(1) and Article 5(5) of Directive 2008/104 must be interpreted as meaning that it constitutes misuse of the allocation of successive assignments to a temporary agency worker if such assignments are renewed in respect of the same job at a user undertaking, for a period of 55 months, where successive assignments of the same temporary agency worker at the same user undertaking result in a period of service with that undertaking that is longer than what can reasonably be regarded as ‘temporary’ in view of all the relevant circumstances, including, in particular, the specific characteristics of the sector, and in the context of the national legislative framework, and no objective explanation is given for the decision of the user undertaking concerned to have recourse to a series of successive temporary agency contracts, which it is for the referring court to determine. 3. Directive 2008/104 must be interpreted as precluding national legislation which sets a maximum period for the assignment of the same temporary agency worker to the same user undertaking, where that legislation prevents, by a transitional provision, for the purposes of calculating that period, assignment periods preceding the entry into force of that legislation from being taken into account, thereby depriving the national court of the possibility of taking into account the true assignment period of a temporary agency worker for the purposes of determining whether that assignment was ‘temporary’ in nature, within the meaning of that directive, which it is for that court to determine. A national court, when hearing a dispute between individuals, is not required, on the basis of EU law alone, to disapply such a transitional provision which conflicts with EU law. 4. Article 10(1) of Directive 2008/104 must be interpreted as meaning that, in the absence of any provisions of national law seeking to penalise non-compliance with that directive by temporary-work agencies or user undertakings, a temporary agency worker cannot derive from EU law an individual right to the establishment of an employment relationship with the user undertaking. 5. Directive 2008/104 must be interpreted as not precluding national legislation which authorises the social partners to derogate, at the level of individual branches of user undertakings, from the maximum assignment period for temporary agency workers set by such legislation. [Signatures] * Language of the case: German.