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? (a) The answer to the first question can, I believe, be neither general nor absolute. As Mr Gand said in his opinion in the aforementioned Case 19/67, where a question related to that which you have to deal with today was able to be put: ‘The solution in such a case depends on all the circumstances, on the agreements made between the two undertakings as well as between the employer and the wage-earner. If it is clear that this undertaking is merely a supplier of labour and that, once engaged, the wage-earner is not subject to its authority, it is clearly incorrect to say that he remains employed by this undertaking, as required by Article 13 (1) (a); this is, however, a question of fact which it will often be difficult to clarify in view of the purely oral nature of the agreements made between the parties concerned’. But in the present case we are happily well informed of the conditions of work of the personnel engaged, and it is established, as the court at Strasbourg has stated, that: 1) the personnel is put by Manpower at the disposal of the German company at an hourly rate calculated in French currency; 2) Manpower is liable for any misconduct on the part of the workers and must cover itself by insurance for the same; 3) on the site, workers must obey the instructions of the site foreman, but such obedience does not affect the relationship between Manpower and the said workmen; 4) Manpower's representative on the site each week submits to the site foreman for approval a note of the hours of work completed together with the names and category of the workers, but it is Manpower which pays the wages of the workers; 5) finally the last factor which has been stated to you at the Bar is that it is Manpower alone which can dismiss the worker in the event of serious misconduct brought to its attention by the hiring undertaking. In these circumstances, I think that, although there is a certain delegation of authority by Manpower to the hiring undertaking, the relationship of subordination between the wage-earner and Manpower continues to exist to such an extent that Manpower remains the employer of the wage-earner and the wage-earner is still employed by Manpower. The defendant's representative has, it is true, endeavoured to show, by reference to Roman law and to the distinction which it made between ‘locatio conductio opens’, a contract to do a job as an independent contractor, and the ‘locatio conductio operanum’, a contract of employment, that the wage-earner engaged by Manpower was no longer, at any event as from his being put at the disposal of the hiring undertaking, the employee of Manpower. It is a reasoning which could go far, if it were accepted, since one could then ask why the defendant continued to accept the plaintiff's contributions when one of the workers which it engages goes to work in the area of one of the neighbouring French insurance funds, for example Metz or Thionville, for the principle of territoriality exists also in French law. But in any event it appears difficult to me to transfer categories of Roman law to contemporary labour law. Our law knows numerous examples of triangular relations such as those which you have to judge today. To recruit and administer their personnel, large industrial groups have indeed established service companies which put the personnel which they recruit at the disposal of other subsidiaries of the group, which constitute separate companies. To my knowledge all national courts have always recognized that service companies remain the employers of wage-earners, even if the latter work in establishments and under the technical direction of another company of the group. There is thus in contemporary law the possibility of a certain separation between the general authority of the employer and the more specific authority of the one who daily directs the work of the wage-earner. I therefore think that having regard to the conditions of work described above, Manpower remains the employer of the wage-earners which it puts at the disposal of the hiring undertakings. (b) The second question is whether these wage-earners continue to work for Manpower, as is required by Article 13 when they work in the hiring undertaking. I think that it is possible to reply in the affirmative to this question for two reasons 1) Even if the words of the regulation ‘to perform work for that (original) undertaking’ are taken in their strictest sense, it is difficult to say that the work of the temporary employee is not done at least to a certain extent for the undertaking for temporary work, since it is this work which is at the origin of the advantage which the undertaking for temporary work can obtain from its activity, and finally it is this undertaking which is responsible for the wages and the social security contributions as well as being liable for misconduct on the part of the wage-earner. Somewhat facilely it could be said that it would be difficult to understand how the company for temporary work, which pays the wages and which is liable for misconduct on the part of the wage-earner, is not the undertaking for which the wage-earner works. 2) Perhaps above all, as I explained a moment ago, modern labour law recognizes a separation between the concept of the employer and that of the direct user of the work of the wage-earner. I do not think that the draftsmen of Regulation No 3 wanted to put an obstacle in the way of the development of this movement and I think that when they provided that to take advantage of Article 13 the worker had to work for the undertaking from which he had been posted, they wanted much less to establish the requirement of an economic object than the maintenance, in spite of special circumstances, of a direct link between the original employer and the wage-earner. (c) The third question, that whether. the wage-earner put at the disposal of one of its clients by the undertaking for temporary work can be regarded as ‘posted’ within the meaning of Regulation No 3, raises a much more delicate question in my opinion. The concept of posting was not in the original wording of Article 13 (1) (a) of Regulation No 3 which provided simply that it applied to workers ‘whose permanent residence is in the territory of one Member State’ and who are ‘employed’ in the territory of another Member State by an undertaking having in the territory of the former State an establishment to which they are ‘normally attached’. This provision gave rise to abuse. Certain undertakings opened sites outside their country of origin and made such rotations of the personnel posted as were necessary so that this personnel might remain subject to the legislation of the country of origin where the social charges were less than in the country where they were employed. These practices were found in particular in France in the building and timber industry. Further it had been found, in particular in relations between the Netherlands and Germany, that ‘recruiting agencies’ or ‘subcontractors’, who were not themselves employers in the first country, were putting at the disposal of contractors of the second country workers who remained subject to the social security legislation of the first country. It was in order to put an end to this abuse, which amounted to a real ‘evasion of the law’, that the wording of Article 13(l)(a) was amended and supplemented and that the concept of ‘posting’ of the wage-earner by the undertaking was introduced. Can the act by which the undertaking for temporary work puts a wage-earner which it has recruited at the disposal of one of its clients be equated with the posting provided for by Article 13 (1) (a)? At first sight it could be doubted and it could be thought that for there to be a posting there would have to be a permanent post in the country of origin and a temporary post in the country of posting. It would be difficult to apply this concept of posting to the activities of undertakings for temporary work since, by definition, these undertakings do not provide wage-earners with any permanent post in the country of origin. After much hesitation, I do not propose, however, to accept this answer for the following reasons : 1) You have already decided in your aforementioned judgment that under the former wording of Article 13 (1) (a) of Regulation No 3 the worker could be engaged solely for the task which he had to perform abroad, which obviously avoided any condition relating to having permanent employment before the posting. 2) Although your judgment relates only to the interpretation of Article 13 (1) (a) in its original form, to settle a difficult question relating to the discrepancy on this point between the Dutch version and those of the other languages of the Community, you stated that the discrepancy had disappeared in the Dutch version of Regulation No 24/64 which amended the original provisions of Article 13 (1) (a), which shows that at least by implication you considered that on the question of permanent post or ‘usual work’ there had been no substantial amendment from one regulation to the other. 3) The draftsmen of Regulation No 24/64 recognized the problem perfectly. If they had wanted to restrict the posting to the case of the worker who held a permanent post, they could have said so instead of using on purpose, as it appears, the much vaguer wording of ‘posting’ by the undertaking having an establishment ‘to which they are normally attached’. 4) As regards the possibility of fraud or abuse, the formalities in the procedure provided for by Article 11 of Regulation No 4 suffice to allow the authorities of the Member countries to prevent the object of the provisions of Article 13(l)(a) from being thwarted. To summarize I therefore think that the answer that the Commission suggests you should give to the question which has been put to you accords with the spirit of Regulation No 3 and the intention of its draftsmen and that it is not open to any legal objection invalidating it.

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.

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( 1 ) Translated from the French.