HORIZONTAL EFFECT OF A DIRECTIVE

Directive 2008/104/EC 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.

 

What we should understand by “temporality”? There is a right to a permanent contract of employment between a user undertaking and a temporary agency worker when the national law is contrary to Directive 2008/104/EC?

 

Reference for a preliminary ruling in Case C-232/20 NP v Daimler AG 

 

The Landesarbeitsgericht Berlin-Brandenburg (Germany) referred to the European Court of Justice (ECJ) a request for a preliminary ruling in case C-232/20 asking about the meaning of Article 1 of the Directive 2008/104/EC, specifically if Is the assignment of a temporary agency worker to a user undertaking no longer to be regarded as “temporary” as soon as the employment takes place in a job which is permanent and not performed as cover and when the assignment of a temporary agency worker is for less than 55 months.

 

The national court also asked if a national provision such as Paragraph 19(2) of the Gesetz zur Regelung der Arbeitnehmerüberlassung (Law regulating temporary agency work) infringe Article 1 of the Temporary Agency Work Directive 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 the assignment were taken into account.

 

In the main proceedings, the applicant, that had been employed by the temporary work agency I. since 1 September 2014 and from 1 September 2014 to 31 May 2019 had been exclusively assigned to the defendant in its capacity as the user undertaking, claimed that the assignment to the defendant could no longer be classified as “temporary” because it had lasted for more than a year, which is contrary to EU law. 

 

The national law, German Gesetz zur Regelung der Arbeitnehmerüberlassung (Law regulating temporary agency work, “the AÜG”), in the version in force from 1 December 2011 to 31 March 2017, 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 the assignment were taken into account.

 

The defendant held there was a clarification by the legislature of the “temporary” criterion since 1 April 2017. After that date, derogations from the maximum assignment period of 18 months are permissible under a collective agreement in the sector in which the assignment takes place.

 

The defendant complied with the provisions of the AÜG’, but what will happen if that national law was contrary to EU law? it may then be declared that there was an employment relationship between the defendant and the party sued well before October 1, 2018?

 

It is necessary an exhaustive interpretation of Article 1 of the Temporary Agency Work Directive since it does not contain a precise definition for what we should understand for “temporary”. The ECJ has not as yet given any rulings on the interpretation of that criterion.

 

The Advocate General’s Opinion turns the formulation of the questions referred around and clarifies what the term “temporarily” might mean.

 

The Advocate General proposed to replace the term “temporary” by “temporality” in the questions referred and clarified that the dispute concerns Article 5(5) of Directive 2008/104, rather than Article 1 of that directive, but it must be read in conjunction with Article 1 to provide a correct answer. 

 

In his conclusion, the Advocate General held that a Member State law which expressly excludes the taking into account of periods of an assignment before a specific date, but which take place after the date for implementation of Directive 2008/104, such exclusion being relevant to the determination of whether misuse of temporary agency work has occurred, is inconsistent with Article 5(5) of Directive 2008/104 but a temporary agency worker has no entitlement under Directive 2008/104 to the establishment of a permanent employment relationship with a user undertaking in the event of a finding of misuse of temporary agency work under Article 5(5) of Directive 2008/104. The reason was that he considered that in a horizontal action between two private parties, inconsistent Member State laws providing for such exclusion are to be disapplied only if this does not compel contra legem interpretation of Member State law, so the national court should use a national law that conforms with Article 5(5) of Directive 2008/104 to give full effect to EU law.

 

The Advocate General understood that the word “temporarily” in Article 1 (1) of Directive 2008/104 means “lasting for only a limited period of time” and “not permanent” it relates only to the period of assignment of the temporary agency worker in question, rather than the post to which he or she is assigned, so that permanent jobs and jobs that are not performed to provide cover are not automatically precluded from the scope of Directive 2008/104.

 

The denial of the horizontal direct effect of directives

 

The direct effect of the directives comes as a result of a sanction to those Member States that after the time set for the transposition of a Directive do not transpose it to their internal legal systems or interpose it erroneously. In this way, the direct effect of a directive is recognized because the Member States are the cause of the infringement, but the direct effect of a directive is not recognised in the field of horizontal relations between two private parties.

 

Although it is an established doctrine (Cases C-152/84, Marshall and C-91/92, Faccini Dori) and has its legal basis, this has been one of the most common problems regarding the direct effect of directives. The problem here is that indirectly, the member state is also to blame for not transposing that directive correctly. 

 

Although the other logic that contrasts is, what happens if the directives happen to have a direct horizontal and vertical effect? In this case, the member states would benefit from their infringement, since they will not be “subjected to the necessity” of transposing a directive since it will take effect anyway.

 

However, we cannot forget that the directives only establish the basic guidelines and minimum requirements, leaving the member states the freedom to develop it according to their internal legal systems and possibilities.

 

Thereby, If the member states abuse this right conferred by the directives, they are also limiting their possibilities to adapt the basic content of the directives with the introduction of personalized paragraphs.

 

The ECJ Judgment, in this case, will be delivered on 17 March.

[1] Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work DO L 327 de 5.12.2008, p. 9/14

 

[2] Request for a preliminary ruling from the Landesarbeitsgericht Berlin-Brandenburg (Germany) lodged on 3 June 2020 — NP v Daimler AG (Case C-232/20). 

 

[3] https://shorturl.at/ptR78

 

[4] Paragraph 19(2) of the Gesetz zur Regelung der Arbeitnehmerüberlassung

 

[5] Request for a preliminary ruling 03/06/2020 Daimler. Paragraph 24.

 

[6] Opinion of Advocate General Tanchev delivered on 9 September 2021(1) Case C‑232/20 NP v Daimler AG, Mercedes-Benz Werk Berlin. ECLI:EU:C:2021:727

 

[7] As concluded in point 51 of the Opinion of Advocate General Sharpston in KG (Successive assignments in the context of temporary agency work) (C‑681/18, EU: C:2020:300)

 

[8] Opinion of Advocate General Tanchev delivered on 9 September 2021(1) Case C‑232/20 NP v Daimler AG, Mercedes-Benz Werk Berlin. ECLI:EU:C:2021:727. Paragraph 6.

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