NP v Daimler AG, Mercedes-Benz Werk Berlin

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Applicable law/instrument :

Directive 2008/104/EC

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This case concerns the interpretation of Article 5(5) and 1(1) of the Temporary Employment Directive 2008/104/EC, and in particular the meaning of the word "temporarily" within the context of the Directive.

The facts concern a temporary worker, represented by the trade union Center for Revision and European Law, who had been employed by a temporary agency since September 1, 2014. From that date until 31 May 2019, with the exception of a period of parental leave lasting two months, he was placed exclusively at the disposal of Daimler as a user undertaking, where he always worked in the engine assembly workshop and it is established by the national court that the employment in question was not for the purpose of replacing a worker.

In order to establish whether an employment relationship existed between Daimler and the plaintiff, a request for a preliminary ruling was submitted to the Court of Justice of the European Union (CJEU) by the German Landesarbeitsgericht Berlin-Brandenburg (Higher Labour Court of the Land Berlin-Brandenburg) concerning the compatibility of the German Temporary Employment Act (AÜG) with Directive 2008/104.

The CJEU held that the word "temporarily" is not intended to limit the application of agency work to posts that would either not exist on a long-term basis or would have to be performed to provide cover, because this word refers not to the job held at the user undertaking, but the circumstances under which a worker is assigned to this undertaking. [Para. 36-38].

The CJEU further held that Article 1(1) and Article 5(5) of Directive 2008/104 must be interpreted as meaning that it constitutes an abusive use of successive assignments to a temporary agency worker to renew those assignments to the same post in a user undertaking for a period of 55 months, where the successive assignments of the same temporary agency worker to the same user undertaking lead to a duration of employment in that undertaking longer than that which may reasonably be classified as 'temporary', having regard to all the relevant circumstances, without the user undertaking's being required to provide a statement of reasons, in the latter undertaking, longer than what may reasonably be regarded as 'temporary', having regard to all the relevant circumstances, including, in particular, the specific features of the sector, and in the context of the national legal framework, without any objective explanation being given for the fact that the user undertaking concerned uses a series of successive temporary agency employment contracts, which is a matter for the referring court to verify. [Para.63].

Furthermore, the CJEU rejects the possibility that agency workers enjoy a right to establish an employment relationship with the user company that can be derived directly from EU law in the absence of any national legislation sanctioning non-compliance with the directive. If the worker believes that they are suffering a prejudice arising from a national law that is incompatible with the directive, they will have to bring a further lawsuit against the State, to seek redress for this. [Para. 100].

The judgment is not yet available in English.

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