Daimler (Social policy - maximum assignment period for temporary agency workers to user undertakings - Opinion)

(Request for a preliminary ruling from the Landesarbeitsgericht Berlin-Brandenburg (Higher Labour Court, Berlin-Brandenburg, Germany))

(Reference for a preliminary ruling – Social policy – Meaning of ‘temporarily’ under Article 1 of Directive 2008/104/EC – Article 5(5) of Directive 2008/104 – Transitional provision precluding reliance, prior to a specified date, on periods of assignment of a temporary agency worker to a user undertaking – Introduction under the law of a Member State of a maximum assignment period for temporary agency workers to user undertakings – Right of a temporary agency worker to a permanent contract of employment with a user undertaking in the event of misuse of temporary agency work)

This reference for a preliminary ruling from the Landesarbeitsgericht Berlin-Brandenburg (Higher Labour Court, Berlin-Brandenburg, Germany; ‘the referring court’), concerns the interpretation of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work. ( 2 ) The referring court seeks, in essence, clarification of the following four issues.

First, does the word ‘temporarily’ in Article 1 of Directive 2008/104 relate only to the time period of the assignment of a temporary agency worker to a user undertaking, or is the word ‘temporarily’ also tied to the nature of the work to be performed, so that neither permanent jobs nor jobs that are not performed to provide cover for absent employees (‘cover’) can ever take place ‘temporarily’?

Second, is it consistent with EU law for the legislature of a Member State, here Germany, to introduce a maximum period beyond which the assignment of a temporary agency worker can no longer be considered to be temporary, but at the same time preclude temporary agency workers from relying on assignment periods prior to a specified date in the determination of whether that maximum period has been exceeded, particularly when exclusion of such periods results in the maximum assignment period having been respected by the user undertaking?