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Document 61970CC0035
Opinion of Mr Advocate General Dutheillet de Lamothe delivered on 8 December 1970. # S.A.R.L. Manpower v Caisse primaire d'assurance maladie de Strasbourg. # Reference for a preliminary ruling: Commission de première instance du contentieux de la sécurité sociale et de la mutualité sociale agricole du Bas-Rhin - France. # Case 35-70.
Opinion of Mr Advocate General Dutheillet de Lamothe delivered on 8 December 1970.
S.A.R.L. Manpower v Caisse primaire d'assurance maladie de Strasbourg.
Reference for a preliminary ruling: Commission de première instance du contentieux de la sécurité sociale et de la mutualité sociale agricole du Bas-Rhin - France.
Case 35-70.
Opinion of Mr Advocate General Dutheillet de Lamothe delivered on 8 December 1970.
S.A.R.L. Manpower v Caisse primaire d'assurance maladie de Strasbourg.
Reference for a preliminary ruling: Commission de première instance du contentieux de la sécurité sociale et de la mutualité sociale agricole du Bas-Rhin - France.
Case 35-70.
ECLI identifier: ECLI:EU:C:1970:104
OPINION OF MR ADVOCATE-GENERAL DUTHEILLET DE LAMOTHE
DELIVERED ON 8 DECEMBER 1970 ( 1 )
Mr President
Members of the Court,
This is the first case, it appears, which is going to involve the Court in relating the activity of undertakings providing ‘temporary labour’ or providing for ‘temporary work’ to the Community provisions on migrant workers.
This is the reason why you wished to have some information on such undertakings and on the importance of their activity in the five Member States in which they are permitted to carry on business.
The Commission has unfortunately not been able to supply you with a general picture.
For my part I have been able only to assemble some statistics relating solely to France and, thanks to a work published in 1968 by l'Institut de sociologie of the Free University of Brussels, some information on comparative law.
In spite of its fragmentary and imprecise nature, I do not think I shall be wasting the Court's time by briefly summarizing the information which I have been able to collect.
Undertakings providing for temporary work, it appears, originated in the United Kingdom and developed between the two world wars in particular in the United States.
Certain undertakings of this nature appeared in certain European countries at the same time, in particular in France, where the first, ‘Business Aid’, was founded in 1926, but they were only of a very limited importance and their activity was mainly devoted to satisfying the temporary requiremerits of undertakings for office personnel (typists, telephonists, etc.).
It was only after the Second World War that undertakings providing for temporary work underwent an enormous development in five of the Member States.
In 1967/68 there were 150 undertakings providing for temporary work in France, 117 of which were affiliated to a ‘Chambre nationale des entreprises de travail temporaire’ the function of which is important since it has succeeded, it appears, in introducing uniformity in the contracts entered into between the undertakings and the workers who have recourse to them.
The total turnover of these undertakings in 1967 appears to have approached 450 million francs.
The number of workers who had recourse to their services represented 0.6 or 0.7 % of the French working population, amounting to 105000 workers including 64000 factory workers and 41000 office workers.
The company Manpower appeared in 1967 as the largest French undertaking of this type since the number of workers engaged by it exceeded 13000.
From the legal point of view these undertakings posed a common problem to all the Member States: that of their compatibility with international agreements and with the domestic legislation on employment.
As you know, under Convention No 96 of the ILO and domestic laws often very close to it, the activity of commercial employment bureaux is prohibited and as a rule it is the State institutions or institutions licenced by the State which have a monopoly as employment bureaux.
The question therefore arose whether the activity of undertakings provising temporary work was not comparable to that of commercial employment bureaux.
Only one country thought so: Italy, where two judgments of the Corte di cassazione were to this effect and where Parliament intervened expressly to confirm this interpretation and even to extend the scope, by Law No 1369 of 23 October 1960.
All the other Member States on the other hand accepted that it was not possible to treat the two as identical and thus recognized the lawful nature of the undertaking providing temporary labour.
This recognition was given relatively easily in certain countries such as France; it was more difficult in others such as Germany, for example, where to settle the question it was necessary to wait until a judgment of the Bundesverfassungsgericht in Karlsruhe on 4 April 1967 declared unconstitutional a legislative provision which had the express object of prohibiting the activity of undertakings providing temporary employment.
But although these undertakings thus succeeded in acquiring the ‘right of establishment’ in five of the Member States, it appears from the study made by the Free University of Brussels that their structure and conditions of operating vary enormously from country to country.
In France, for example, these undertakings are mostly commercial companies and the contract between them and the workers has been classified by the French Cour de cassation as a contract of work.
In Belgium the position is much more complex. Some of the undertakings are commercial companies, others cooperative societies and others de facto associations. The contract between them and those who have recourse to their services are sometimes contracts of work, sometimes contracts made with independent contractors and sometimes simply agency contracts and the same diversity is found in other Member States. Finally it must be observed that in several States legislation to control the activity of these undertakings is being drawn up: this is so in France and in the Federal Republic of Germany, but for the moment only Holland, by a law of 31 July 1965, has controlled the activity of undertakings providing for temporary work or, as they are sometimes called temporary employment agencies.
Thus you see that it is at a time when national laws are still in a state of flux and not clearly defined that you are going to have to consider from the point of view of the application of Community law certain kinds of activity of companies providing temporary labour.
The background to the case which requires you to do this is as follows:
On 11 August 1969 the limited liability company Manpower, Strasbourg regional centre, engaged Mr Francis Fehlmann, a French skilled worker.
It sent him to work in French territory from 11 August to 28 September 1969 and from 29 September to a German undertaking in Karlsruhe. But on the very day of his arrival Mr Fehlmann suffered an accident at work. Fortunately this accident did not stop him from working, but involved certain medical and pharmaceutical expenses.
In accordance with the French labour law, Manpower gave notice of the accident to the Caisse primaire of Strasbourg and requested it to forward to the German doctor for the payment of his fees the forms prescribed for this purpose by the Community rules on migrant workers.
The Caisse categorically rejected this application. In its opinion, the provisions of Article 13 (1) (a) of Regulation No 3, on which Manpower relied, did not apply to the case in question and the French caisses could not be responsible for any benefit in respect of the accident which had occurred.
This decision was contested by Manpower in accordance with the procedure which in France governs disputes relating to social security and the Commission de première instance, Strasbourg, after considering the contract between Manpower and Mr Fehlmann and having regard to the importance which the question could involve at Community level has stayed the proceedings and has asked you for a preliminary ruling on the following question:
‘Can an undertaking of a Member State, carrying on an activity similar to that of the limited liability company Manpower, avail itself of the provisions of Article 13(l)(a) of Regulation No 3?’
You will recall that Article 13 of Regulation No 3 is the article which provides a certain number of exceptions to the general principle laid down in Article 12 that the social legislation applicable to an employed person is as a rule the legislation of the place where he works.
The first of these exceptions is laid down in Article 13(l)(a).
The wording since its amendment in 1964, to which I shall shortly return, is as follows :
‘A wage earner or assimilated worker, who, being in the service of an undertaking having in the territory of a Member State an establishment to which he is normally attached, is posted by that undertaking to the territory of another Member State to perform work there for that undertaking, shall continue to be subject to the legislation of the former Member State as though he were still employed in its territory, provided that the anticipated duration of the work which he is to perform does not exceed 12 months and that such worker be not sent to replace another worker who has reached the end of his term of posting.’
I
A preliminary point appears clear to me: it is that the draftsmen of the regulation were probably not thinking, when they drafted it, of undertakings providing for temporary work. The circumstances with which they wanted to deal are patently much more simple and common: for example that of an industrial undertaking which when delivering a machine abroad has it accompanied by a technician to take care of the installation and the trials and to assist for a short time the personnel of the utilizing undertaking in using it.
If one wants to apply this regulation to the case of undertakings providing for temporary work, certain assimilations must be made.
The Commission asks you to make them and explains at length that such assimilation is desirable from the point of view of the interests of workers and in accordance with a teleological interpretation of Regulation No 3.
The Caisse primaire de securite sociale, Strasbourg, on the other hand, maintains that such an interpretation is contrary to the very letter of the regulation which, as it provides for exceptions, can only be interpreted strictly.
The Commission is certainly right when it maintains that in holding the provisions of Article 13(l)(a) applicable, subject to certain conditions, to employed persons of undertakings providing temporary work, the spirit and the basic intentions of the Community rules would be observed.
You have already decided in your judgment of 5 December 1967 (Case 19/67, 1967. E.C.R. 345) that ‘in the interests of both workers and employers as much as of the insurance funds, the aim of the regulation is to avoid any plurality or purposeless confusion of contributions and liabilities which would result from the simultaneous or alternate application of several legislative systems’.
It is quite clear that its non-application to workers engaged by an undertaking providing temporary work would lead directly to complications and useless muddle.
The present case of Mr Fehlmann shows this very well: from 11 August to 28 September he worked in France and then from 29 September to 1 October in Germany. One sees the complications which would be involved for him and even perhaps for his family, if he has one, by a change of registration with a French sickness fund to a German sickness fund for these two months of activity.
Nevertheless the assimilation which you are requested to make between the situation of the personnel of undertakings providing temporary work and that referred to in Article 13 (1) (a) involves serious legal obstacles the extent of which must be considered.
II
A — |
The first of these legal obstacles is the fact that Article 13 (1) (a) is a provision providing an exception to the rule laid down in Article 12 that it is as a rule the place of work which determines the applicable social legislation. It is said that the general principle of law that exceptions are always strictly construed militates against your giving this provision a wider scope than a literal reading allows. This argument can in my opinion be easily dismissed. It is not a question in this case so much of extending by means of interpretation the scope of Article 13(l)(a) of Regulation No 3 so as to give it a scope applicable in every case to an organization for temporary work whatever function it has and whatever the legal relations between the company and its employees. It is rather a question of analysing the legal position which has been described to you by the court which has referred the case to you to determine whether this position is comparable to that referred to in Article 13 of the Community regulation. What Manpower has asked you to do, and what the Commission has recommended, is not strictly speaking to extend the scope of Article 13 to a legal situation which it does not provide for, but rather to declare that the legal position found by the court at Strasbourg is indeed such as referred to by Article 13 of Regulation No 3. It is indeed a very similar examination to that which you undertook in your decision in Case 19/67 on the application of Article 13 (1) (a) to another legal position. |
B — |
The second legal objection arises from the fact that, if the Community regulation refers indeed to a relationship between employees, original undertaking and hiring establishment, this relationship is not of the same nature as that which exists in the case of supplying temporary labour, although they are both of a ‘triangular’ nature. This objection raises in fact three questions : First question: does the undertaking for temporary work remain the employer of the wage-earner when he is put at the disposal of the hiring undertaking? Second question: does the wage-earner continue to work for the undertaking for temporary work when he works in the hiring undertaking? Third question: can the wage-earner be regarded, when he is put at the disposal of the hiring undertaking, as ‘posted’ within the meaning of Regulation No 3?
|
I therefore submit that you should declare :
A wage-earner or assimilated worker, who, being normally employed by an undertaking for temporary work having its office in a Member State, is sent by his employer to another Member State for a period not anticipated to exceed twelve months to perform work there on behalf of such employer and remains legally in the employment of the latter, continues to be subject to the legislation of the first State within the meaning of Article 13 (1) (a) of Regulation No 3, provided that he is not sent to replace another worker who has completed his term of posting and that the formalities required by Article 11 of Regulation No 4 to guard against fraud or abuse have been complied with.
( 1 ) Translated from the French.