Improving working conditions for subcontracted workers: Towards a European legal framework inspired by the Spanish experience and EU temporary agency work rules

The article analyses the CJEU ruling C-311/21 TimePartner, where the Court interpreted the option provided in the Temporary Agency Work Directive for social partners to derogate from the principle of equal treatment. The CJEU concluded that the term ‘while respecting the overall protection of temporary agency workers’ is a criterion for using the option to derogate, and that a derogating collective agreement must be subject to legal review of fulfilling this criterion, even in Member States where collective agreements are presumed to be correct. Furthermore, the CJEU ruled that in order to respect the overall protection, any disadvantages in basic working conditions, i.e., working time and pay, should be set off against other advantages relating to the basic working conditions for the temporary agency workers. Finally, that the assessment is an in concreto comparison of disadvantages and advantages in terms of the basic working conditions applicable at the specific user undertaking. The article argues that the CJEU, with this approach, at the same time restricts the room for negotiation of national social partners concluding derogating agreements, and directs the legal review of the national judiciaries. This approach may interfere in the national industrial relations systems in some Member States more than others. The article then discusses how the Danish legal framework respects the overall protection of temporary agency workers. Temporary agency workers are addressed in many collective agreements in force at user undertakings with a view to counteracting circumvention of the collective agreement, and likewise, many temporary work agencies are covered by collective agreements. The transposition process in 2013 of the option to derogate is presented. The Danish Supreme Court in 2019 ruled, that the term ‘respecting the overall protection’ in the derogation provision in the Danish Temporary Agency Workers Act constitutes a legal criterion, which can be subject to judicial review, and is not an automatic consequence of a collective agreement. The article discusses how an assessment of the level of protection would be carried out in Danish industrial judiciaries, taking inspiration from earlier industrial case law comparing the overall protection of competing collective agreements. The article finally asserts that the approach of the CJEU in the TimePartner ruling protects temporary agency workers rather than pursuing flexibility in the labour markets, and as such favours one of the dual aims of the Directive. In that light, the approach taken by the CJEU ensures that derogating collective agreements meet certain standards in terms of the basic working conditions of temporary agency workers. At the same time, the ruling does not interfere with other negotiated or legislated working conditions, where the TAW Directive does not in itself require equal treatment or ‘overall protection’. The limitation of the TAW Directive to concern equal treatment only for basic working conditions, and not all working conditions, thus continues to allow a degree of flexibility for employers as well as for temporary agency workers.

This article critically examines the European Court of Justice's (ECJ) decision in the TimePartner case and its implications for labour market integration in the context of temporary agency work. The author supports the ECJ's position on the rule-exception relationship within Directive 2008/104/EC, emphasising equal treatment for temporary agency workers. The analysis explores the alignment between the ECJ's approach and the Directive's goal of creating a non-discriminatory, transparent, and proportionate framework for worker protection. Within the German legal landscape, where there has been reluctance to implement the Directive, complex collective agreements have led to substantial remuneration disparities between regular employees and temporary agency workers. The absence of statutory regulations on overall protection for temporary agency workers, coupled with reluctance on the part of courts to intervene in collective agreements, presents challenges for labour market integration. The article also addresses the assumption of an inherent warranted correctness of collective agreements and its potential implications for EU law enforcement, recognising this may limit the judicial review of collective agreements for compliance with EU Directives, potentially undermining EU law effectiveness. In conclusion, this analysis sheds light on the consequences of the ECJ's TimePartner case decision, particularly in Germany, and suggests the need for more detailed, industry-specific collective agreements to better meet the Directive's requirements.

Collective Bargaining Agreements for Temporary Employment Summary The article presents the opinions current in the doctrine and jurisprudence concerning collective bargaining agreements in temporary employment. The differences in the construction of temporary and permanent employment relations make the situation in temporary employment worthy of a separate legal analysis. The issues discussed in this article are the potential for collective bargaining in temporary employment, the legal nature of collective agreements involving an employment agency, and the admissibility of differentiation in terms of subjective and objective legal relations regarding the conclusion of collective bargaining agreements.

The social partners enjoy a special position in EU law. At the EU level, organizations of employers and workers are privileged stakeholders within the system of information and consultation regarding EU social policies. They may enter into negotiations, leading up to contractual relations, which may in turn be transformed into EU law by Council decision. At the national level, social partners may be responsible for implementation of EU law, but may also jointly or on their own accord be held accountable for violations of the Treaty provisions on non-discrimination and freedom of movement.Both the TFEU provisions, the EC and the ECJ recognize the (de jure and/or de facto) regulatory function of the social partners, both at national and European level. Hence, it makes sense to study the role of the social partners as EU legal actors in the context of the current course/book. But studying the role of private actors as regulators poses a challenge, both with regard to the issue of definition (what exactly is meant by ‘private regulation’?) as to the question of legitimacy. On both topics the literature is immense and cannot even be summarized here. Hence the goals of this contribution can be no more than modest. What I aim to do, is first to provide an overview of the role of social partners in EU law. It will be concluded that EU law does recognize the regulatory role of the social partners, but provides neither a legal nor a fully developed conceptual framework (§ 2). The second point to be addressed concerns the output of the social dialogue at EU level (§ 3). Here the conclusion will be that the social partners fulfill a variety of functions, both as stakeholder and co-regulator. However, only a small percentage of the documents produced in the social dialogue have the status of collective agreement. It is the latter group which is most interesting from the point of view of regulation. Hence in the next sections, the route from agreement to binding decision is analyzed. How do the activities of the social partners interact with the EU legislative architecture (§ 4)? Can these acts be measured by the existing model(s) of good governance at EU level (§ 5 and 6).The question is topical as there is currently a debate on the role of the Commission with regard to the procedure of Article 155 TFEU. This debate is triggered by the refusal of the Commission to put a collective agreement entered into by the social partners in the hairdressing sector before Council. The refusal was part of the Refit package in which the Commission announced its strategy to reduce red tape.1 Hence, the result of negotiations between the social partners was tested against the current policy agenda of the Commission. This contribution puts that decision in a wider perspective in order to assess its implications for the future (§ 7).

ECJ 3 June 2021, case C-784/19 (TEAM POWER EUROPE), Social Insurance, Temporary Agency Work, Posting of Workers and Expatriates A temporary-work agency must carry out a significant part of its activities of assigning temporary agency workers locally for local social insurance to be applicable.

Social and economic interests of ‘new’ and ‘old’ Member States along centre and periphery axis – Judicial and legislative developments concerning the posting of workers – Continuous deepening of the divide between centre and periphery – Lack of placement of new Member States’ social interests at the EU level – The need to place social interests firmly in the EU (internal market) structure – Developing meaningful common social standards to mitigate the centre/periphery divide

In July 2017, the German Constitutional Court issued an important judgement concerning trade union freedom. To understand its significance, it is necessary to know its context. An atmosphere of fear and insecurity In 2002 and 2003, the German economy was in a difficult situation. Unemployment was high, economic growth was low and investments were quite scarce. The rating agencies declared that Germany could only keep its triple A–rating if ‘some rigidities’ in the labour market were corrected. The government started reforming industrial relations in order to reduce labour costs. Unlike the strategy followed in Ireland, Portugal, Spain and Greece some years later, the government adopted an indirect approach. First, temporary agency work was deregulated, making it possible to recruit temporary agency workers for an indefinite time. After the ‘reform’, this sector expanded from 150,000 to 700,000 persons. Many permanent employees could be – and often were – replaced by temporary agency workers. Their wages were one-third below the level of comparable ordinary workers. In 2003, the unemployment insurance system was also reformed. Before then, unemployment benefit (about 67 percent of the former salary) could be paid for between one and two years. If still unemployed at the end of this time, ‘unemployment aid’ (between 52 and 57 percent of the former salary) could be paid for an indefinite time. With the reform, unemployment aid was abolished. If the unemployed had not found a job after one year, they could only get social aid, which guaranteed a modest margin of subsistence. To qualify recipients had to sell all their assets (with some modest exceptions). These measures had an important influence on collective bargaining. When unions asked for wage increases, there was no power behind them because people were anxious. Real net wages decreased by 2.5 percent between 2002 and 2010. The system of collective bargaining as such remained untouched, but its real functioning was much weakened. Officially, the dominant trade unions of the Deutsche Gewerkschaftsbund (DGB, English: German Trade Union Federation) protested against these measures. But some insiders speculated that there was a deal between unions and the government; that in order to protect the system of collective agreements and ensure it remained legally unchanged – especially at sectoral level – the unions had to ‘collaborate’ in the field of temporary agency work. The new law had established the principle of equal pay and equal treatment for temporary and permanent workers, but unions and employers could deviate from this principle by collective agreement. The unions used this opening clause in the law and concluded collective agreements which maintained the former wage level of temporary agency workers – consistently one-third below the level of ordinary workers. Until now, the reasons for this are officially unknown. The trade union policy was unacceptable for some professional organisations. Trade unions of pilots, air controllers, flight attendants and hospital doctors were founded. These had existed as professional organisations and had authorised the large unions to conclude collective agreements for them. Now they withdrew this authorisation and started their own collective bargaining. As their members were specialists necessary for the enterprises they achieved rather good results, without making the concessions the large unions had made. The engine drivers’ union became active, too, and concluded strong agreements without reducing wages. One plant – one agreement Under German law, collective agreements only bind the members of the union and the employer or the employers´ association. If two unions exist in a plant this does not create a big problem: the members of union A are bound by the collective agreements concluded by union A, the members of union B are bound by the collective agreements concluded by union B. Since 1956 however, the labour courts had decided that in such cases only one collective agreement could be applied in an enterprise, referring to a so-called ‘principle of order’ (which has no legal basis). This meant that the agreement better adapted to the conditions of the plant prevailed. In practice, the plant level agreement always prevailed against any sectoral agreement. When the new professional unions first arrived they had some difficulty in having their right to strike recognised because a strike is only legal if it aims at a...

The lively debate about the right of gig workers to bargain collectively stems from the idea that European Union (EU) competition law treats this group of workers worse than it treats employees. Namely, it is common to argue that employees, unlike gig workers, are permitted to conclude collective agreements because they are not undertakings and, therefore, not subject to EU competition law. In sharp contrast, by analysing the EU notion of undertaking, this article demonstrates—and this is the first of its theses—that in the labour market, which is the market that should matter in relation to the effects of collective agreements, employees are as much undertakings as any other worker, such as gig workers or other self-employed workers. The article further maintains that the reason employees are currently allowed to bargain collectively, while other workers are not, is to be found not within competition law, but outside it. At present, employees’ collective agreements are exempt from the application of EU competition law because employees enjoy the right to bargain collectively, among other social rights, and because the Court of Justice of the European Union has (rightly) recognized that the protection of these rights must trump the protection of competition. Consequently, this article argues, as its second thesis, that if Articles 151–161 TFEU were interpreted so as to grant social rights to workers other than employees, the collective agreements of gig workers and other under-protected self-employed workers would be exempt from EU competition law, as are those of employees. At the same time, however, this paper recognizes that, in the absence of such an interpretative turn, antitrust legislators and policy makers could aid gig workers and other under-protected self-employed workers by excluding them and their collective agreements from the scope of application of competition law. This—and here is the third thesis of the article—would not force the interpretation of antitrust notions and rules and would thus not require antitrust authorities and courts to use competition law to pursue goals different from the protection of efficiency and innovation.

Alternative work arrangements, including temporary and contract work, have become more widespread. There is interest in understanding the effects of these types of arrangements on employment and earnings risk for workers and the potential for existing social insurance programs to address this risk. We study employment and earnings risk in the context of workplace injuries among temporary and contract workers. We link administrative workers' compensation claims to earnings records to measure the employment and earnings risk posed by workplace injuries, comparing labor market outcomes after injury between temporary and contract workers and direct-hire workers injured doing the same job. We use a triple-difference identification strategy to isolate the effect of alternative work arrangements. We find that temporary workers have significantly lower probabilities of employment post-injury relative to similar direct-hire workers; temporary workers also have more severe earnings losses, which persist for at least three years after injury. This difference in income risk cannot be explained by differences in employment dynamics between temporary and direct-hire workers. We find evidence that the additional earnings losses suffered by temporary workers are offset by workers' compensation benefits, suggesting that the program provides insurance for the incremental risk faced by temporary workers.

2016/41 Employers must observe collective bargaining agreement-based restrictions on temporary agency work even if they are not justified (FI) A company had leased some employees from a temporary work agency between 2008 and 2012 to work alongside its own employees on a continuous basis. The collective bargaining agreement that the company was bound by restricted the use of temporary agency workers to situations in which the work could not be performed by the company’s own staff. The trade union brought an action before the Labour Court claiming that the company had used temporary agency workers continuously to a greater extent than permitted by the collective bargaining agreement and that the employers’ association, of which the company was a member, had breached its supervisory duty. In a preliminary ruling, the ECJ held that the Temporary Agency Work Directive (2008/104/EC) does not oblige national courts to refuse to apply national law containing prohibitions or restrictions, even if those restrictions were not justified. Having confirmed that national restrictions may be applied, the Labour Court imposed a compensatory fine of € 3,000 on the company and € 4,000 on the employers’ association.

The book European Intellectual Property Law does not provide a linear analysis of intellectual property law within the European context as one might expect from the title. Rather, the editor has taken the original approach of publishing 27 articles, written over the last twenty years (1994–2014), dealing with intellectual property in the context of European Law. The result is a compilation that successfully captures the key contentious topics that have shaped European intellectual property law into its present form. The book is primarily designed for readers who are already familiar with intellectual property law. It is best suited as supplementary material for students eager to understand the rationale behind the construction of a European intellectual property framework. It may also serve practitioners wishing to acquire a comprehensive overview of the legislative and judicial developments leading to the creation of a single market for intellectual property. The compilation includes four sections gathering articles for each specific intellectual property right: (i) patents, (ii) trade marks, (iii) copyright and related rights and (iv) other rights (geographical indications, industrial designs, trade secrets and databases). As an introduction, a first section addresses general issues related to intellectual property in the European legal framework, such as the influence of the different EU institutions pushing for a progressive harmonization at EU level; the theory of the single market; the impact of competition law; forum jurisdiction; and the impact of international agreements on the EU legal framework. This part helps the reader to grasp concepts inherent to EU law, which are fundamental to the understanding of the various harmonization efforts. In this regard, the excellent article by Herman Cohen Jehoram1 explains how intellectual property has been progressively integrated into EU law as an instrument for the establishment of a single market, and highlights the decisive influence of the Court of Justice of the European Union (CJEU) on the gradual harmonisation of different aspects of copyright.

In the EU’s quasi-federal (supranational) constitution, democracy at EU and Member State levels are obviously interdependent and therefore closely intertwined. Accordingly, EU law formulates concrete democratic requirements for both the EU and the Member States with a supranational character. Several of those supranational democratic standards constitute judicially enforceable individual rights with primacy over national law. Art. 2, 10 TEU even enshrine a general right to national democracy. By virtue of Art. 4 (2) TEU, however, Member States retain broad discretion in designing their concrete democratic structures, so that only elementary democratic standards are made obligatory by EU law. The CFR codifies the common supplementary democratic rights that bind the Member States when they are implementing EU law. Art. 10 (3) sentence 1 TEU enshrines the central democratic right of Union citizens to EU democracy and Art. 9 sentence 1 TEU the general right to democratic equality. Specific democratic rights at EU level are guaranteed by the CFR, alongside the aforementioned supplementary democratic rights. From a synthesis of all these democratic rights, an unwritten general individual right of Union citizens to democracy at EU level can be derived. The EU also actively engages in the “export” of democracy to third States (horizontally) and to the international community (vertically). The human right to democracy in general and in its specific aspects is more firmly entrenched and more easily and effectively enforceable within the multilevel EU system than outside. Union law thus harbours a great potential to counteract democratic backsliding both in individual Member States and at EU level.

Where the number of authorizations available for grant is limited in advance to a maximum number, public authorities have to make a choice between qualified applicants through a selection procedure. EU law has played a major role in developing legal rules on the issuing of these limited authorizations, through, amongst other methods, the development of the obligation of transparency. However, the allocation regime under EU law, in particular as it arises from the internal market freedoms, has some inherent restrictions, only applying to economic activities and sometimes requiring cross-border interest in addition. Thus, in order to develop a general legal regime that applies to any process for the issuing of limited authorizations, the development of an allocation regime rooted in domestic law is necessary. This article discusses recent developments in Dutch case law, where a domestic allocation regime has been derived from the (national) principle of equal treatment. It endorses the adoption of this principle as the central basis for an allocation regime, rooted either in domestic or in EU law, since this principle does not only include the key issues inherent to an allocation context, but also allows for the development of allocation rules at the level of both individual decision-making and general rule-making. administrative law, authorisations, allocation of scarce resources, equal treatment, competition, transparency, general principles of administrative law, legal comparison, EU law, internal market.

The labour market dualisation theory claims that labour unions bargain against the interests of temporary workers and that they foster inequalities between temporary and permanent employees. Conversely, the industrial relations literature argues that unions commonly follow solidaristic strategies towards outsiders. This study contributes to the literature by analysing unions' associations with temporary workers' hourly wages and the wage gap between permanent and temporary workers in Spain: one of the most prominent examples of labour market dualisation. By analysing cross-sectional surveys, unions' influence through works councils, collective agreements and union density are studied during a period of economic growth (2006-2007) and a period of recession (2008-2010). Results show that there is generally no association between these three institutions and wage differences between permanent and temporary workers. The associations with temporary workers' wages are insignificant or positive during both the period of economic growth and the period of recession.

The return of Syrians has been on the agenda of EU Member States for a while. In October 2024, they collectively expressed the need to ensure safe, voluntary, and dignified return of Syrians while seeking new ways to prevent and counter irregular migration. Several Member States urged the EU to revise its current strategy on Syria, adopted in 2017. In sum, Member States called for the EU to implement a more stringent policy. However, the return of Syrian refugees is a complex issue. While EU Member States are increasingly seeking to facilitate their returns, the situation on the ground remains unstable and unsafe. International law sets out clear rules and safeguards for return processes. EU law also establishes common standards that Member States must comply with regarding returns. This study provides a brief overview of the general legal framework that EU Member States must consider when determining the return of Syrians to their country of origin. Although political discourse centres on return, it is essential to distinguish political rhetoric from legal reality. Member States are bound by the international refugee protection regime, which consists of the Convention Relating to the Status of Refugees (hereinafter the 1951 Refugee Convention) and its 1967 Protocol, UNHCR practices, and human rights instruments, primarily the European Convention on Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR), all of which complement the protection. At the EU level, Member States are bound by the Return Directive, the Charter of Fundamental Rights of the European Union and the fundamental principles of EU law as set forth in the Treaty on European Union, as well as the case law of the Court of Justice of the European Union (CJEU). In this regard, the study elucidates the current situation in Syria by analysing the observations and reports from governmental and credible non-governmental organisations. It further evaluates the circumstances on the ground within the legal framework, aiming to clarify the legal obligations and conditions that must be met for returns to occur in compliance with international and EU law.