SAF is an undertaking which supplies fuel to several airports in Finland. Its employees fuel aircraft and conduct quality controls and other auxiliary tasks in relation to the aircraft in those airports. In accordance with a contract concluded in 2010, SAF was required to use temporary agency workers to replace permanent workers on sick leave or to deal with peaks of work. Before 2010, SAF used the services of another temporary-work agency for the same purposes.

AKT brought an action before the Finland Employment Tribunal seeking an order that Öljytuote and SAF pay a financial penalty in accordance with Article 7 of the Law on collective agreements for having contravened Paragraph 29(1) of the applicable collective agreement. AKT submits that, since 2008, SAF has employed temporary agency workers permanently and continuously to perform the exact same tasks as performed by its own workers, which is an improper use of temporary agency workers for the purposes of that provision. Those temporary agency workers are used to perform the undertaking’s normal activities alongside, and under the same management as, its permanent employees despite the fact that they do not have any specific technical expertise. It further submits that those temporary agency workers represent a significant number of the undertaking’s workforce in terms of years of work per worker.

The defendants in the main proceedings contend that the use of temporary agency workers is justified by legitimate reasons, since they are used essentially to replace workers during periods of annual leave and sick leave. They further contend that Paragraph 29(1) of the applicable collective agreement is not in conformity with Article 4(1) of Directive 2008/104. Paragraph 29(1) concerns neither the protection of temporary agency workers, nor requirements of their health and safety. Neither does it ensure that the labour market functions properly, nor that abuses are prevented. In any event, Paragraph 29(1) of the applicable collective agreement contains prohibitions and restrictions of agency work which prevent employers from choosing the forms of employment best suited to their business and limit the opportunities of temporary-work agencies to offer their services to undertakings. Even if the directive does not expressly so provide, the national courts should disapply prohibitions and restrictions of temporary agency work which are at odds with the aims of the directive.

In those circumstances, the Employment Tribunal decided to stay the proceedings and to refer the following questions to the Court of Justice EU (CJEU) for a preliminary ruling.

Consideration by CJEU

National legislation containing prohibitions or restrictions on the use of temporary agency work must be justified 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. However, in order to ascertain the exact meaning of Article 4(1) of Directive 2008/104, that article needs to be read as a whole, taking into account its context.

In that regard, the CJEU points out that Article 4, entitled ‘Review of restrictions or prohibitions’, forms part of the chapter on the general provisions of Directive 2008/104. Thus, Article 4(2) and (3) of the directive provide that Member States shall, after consulting the social partners, review any prohibitions or restrictions on the use of temporary agency work by 5 December 2011 ‘in order to verify whether they are justified on the grounds mentioned in Article 4(1)’. In addition, pursuant to Article 4(5), the Member States were required to inform the Commission of the results of the review by the same date.

It follows that, by imposing upon the competent authorities of the Member States the obligation to review their national legal framework, in order to ensure that prohibitions or restrictions on the use of temporary agency work continue to be justified on grounds of general interest, and the obligation to inform the Commission of the results of that review, Article 4(1), read in conjunction with the other paragraphs of that article, is addressed solely to the competent authorities of the Member States. Such obligations cannot be performed by the national courts.

Depending upon the result of that review, which had to be completed by the same date as that laid down in Article 11(1) of Directive 2008/104 for the transposition of the directive, the Member States could have been obliged to amend their national legislation on temporary agency work. However, the fact remains that the Member States are, to that end, free either to remove any prohibitions and restrictions which could not be justified under that provision or, where applicable, to adapt them in order to render them compliant, where appropriate, with that provision.

It follows that, when considered in its context, Article 4(1) of Directive 2008/104 must be understood as restricting the scope of the legislative framework open to the Member States in relation to prohibitions or restrictions on the use of temporary agency workers and not as requiring any specific legislation to be adopted in that regard.

The CJEU held that:

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:

– the provision is addressed only to the competent authorities of the Member 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, and, therefore,

– the 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).

Why is this decision important?

Temporary agency workers are an increasing part of the modern labour market. Employers need to keep all such contracts under regular review to ensure that the repeated renewal of a temporary arrangement does not make it into a permanent one and result in a potential breach of employment law or collective agreements.