In this case, a temporary work agency was denied the possibility to benefit from the legislation of the Member State in which it was established - in relation to a temporary agency worker posted to another Member State - the reason being that the situation did not fall within the scope of Article 12(1) of Regulation No 883/2004.
The CJEU’s interpretation of Article 14 (2) of Regulation (EC) No 987/2009 is that a temporary work agency established in a member State must - in order to be considered as ‘normally carrying out its activities’ in that Member State within the meaning of Article 12 (1) of Regulation (EC) No 883/2004 - carry out a significant part of its activities of assigning temporary agency workers for the benefit of user undertakings established and carrying out their activities in the territory of the same Member State.
In the present case, the performance of the activities of selecting and recruiting temporary agency workers in the Member State in which the temporary work agency is established was considered insufficient for it to be considered that it performs ‘substantial activities’ there. [Para. 67].
With this ruling, the CJEU prevents temporary work agencies from ‘forum shopping’, barring them from establishing themselves in a given Member State with the sole aim of benefiting from social security legislation which is most favourable to them. This is a scenario that could materialise if temporary work agencies were allowed to benefit from exercising the freedom to provide services when they orientate their activities of supplying temporary agency workers exclusively or mainly to one or more Member States other than that in which they are established. [Para. 62].
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