News from Brussels: Long-term employee assignments do not violate the Directive on Temporary Agency Work

With great determination (or even actionism), the Grand Coalition is trying to limit abusive temporary agency work practices by the end of the year, amongst other things, by introducing a maximum duration of 18 months for the assignment of temporary agency workers. The opinion of the European Commission which has now become public in the context of its preliminary examination for infringement proceedings against the Federal Republic of Germany (Case No. CHAP(2015)00716) shows that such limitation is not necessary, at least not in light of the Directive on Temporary Agency Work. The Commission clearly states that “The Directive provides for no limitation of the duration of an assignment to a user undertaking.” Does this advice still come in time for the German lawmakers?

Complaint to the European Commission

With their complaint of January 2015, the complainants wanted to prompt the European Commission to initiate infringement proceedings against the Federal Republic of Germany. It was claimed that Germany had not implemented the Directive on Temporary Agency Work (Directive 2008/104/EC) properly because the German legislature had failed to provide for consequences for assignments which are not only temporary in nature, and that it was precisely this lack of consequences which hindered the prevention of an abuse of temporary agency work caused by an indefinite assignment of an employee on less favourable working conditions.

Directive on Temporary Agency Work provides no explicit limitation

The European Commission has clearly rejected this view now. According to the Commission, the Directive on Temporary Agency Work defines the general framework for temporary agency work. As long as the Directive does not provide for any limitation of the permanent use of temporary agency work, the absence thereof (including legal consequences) cannot constitute any infringement of the Directive. The Commission pointed out that there is not in particular any arrangement comparable to that of the Directive concerning the framework agreement on fixed term work (Directive 1999/70/EC) which, in clause 5, explicitly requires the Member States to take measures to prevent abuse by successive fixed-term employment contracts.

Political actionism instead of legal necessity

As a result, an assignment of workers under the German Act on Temporary Employment (“AÜG”) that is not only temporary in nature is according to the findings of the European Commission in line with the Directive on Temporary Agency Work. However, this means that it is even more questionable than ever why, according to the German Federal Ministry of Labour and Social Affairs, the often criticized 18-month maximum duration of an assignment actually has to be adopted by the end of the year. In any event, there are no legal arguments for such limitation anymore.

On top of that, in addition to the mostly politically discussed question of necessity, there is now a special focus on the question of how potential restrictions on the Directive on Temporary Agency Work can be defined in accordance with the Directive (see also Happ/van der Most, BB 2015, 565). In light of this circumstance, a maximum duration of an assignment cannot be the means of choice, irrespective of whether the limit is defined as relating to an assignment or to an employee. While the relation to a specific assignment may quickly reach the limits of the Directive, a mere relation to an employee can, if anything, only counteract individual cases of abuse, but not an altogether abusive use of temporary agency work by replacing existing permanent workers. It remains to be seen whether a reasonable and practicable solution in line with the Directive will be found, given the time pressure Ms Nahles created herself.