Case C‑216/15

Betriebsrat der Ruhrlandklinik gGmbH

v

Ruhrlandklinik gGmbH

(Request for a preliminary ruling from the Bundesarbeitsgericht)

(Reference for a preliminary ruling — Directive 2008/104/EC — Temporary agency work — Scope — Concept of ‘worker’ — Concept of ‘economic activities’ — Nursing staff who do not have a contract of employment assigned to a health care institution by a not-for-profit association)

Summary — Judgment of the Court (Fifth Chamber), 17 November 2016

Social policy — Temporary agency work — Directive 2008/104 — Scope — Concept of ‘worker’ — Member of a not-for-profit association carrying out, as his main occupation and under the direction of a user undertaking, work in return for remuneration, and protected on that basis in the Member State concerned — No contract of employment with that association — Included — Concept of ‘economic activities’ — Not-for-profit association assigning nursing staff to medical and health care institutions in return for financial compensation covering personnel costs and administrative costs — Included

(European Parliament and Council Directive 2008/104, Arts 1(1) and (2), 3(1)(a) and (c), and (2))

Article 1(1) and (2) of Directive 2008/104 on temporary agency work must be interpreted as meaning that the scope of that directive covers the assignment by a not-for-profit association, in return for financial compensation, of one of its members to a user undertaking for the purposes of that member carrying out, as his main occupation and under the direction of that user undertaking, work in return for remuneration, where that member is protected on that basis in the Member State concerned, this being a matter for the referring court to determine, even if that member does not have the status of worker under national law on the ground that he has not concluded a contract of employment with that association.

First, the concept of ‘worker’ as referred to in Directive 2008/104 must be interpreted as covering any person who carries out work, that is to say, who, for a certain period of time, performs services for and under the direction of another person, in return for which he receives remuneration, and who is protected on that basis in the Member State concerned, irrespective of the legal characterisation of his employment relationship under national law, the nature of legal relationship between those two persons and the form of that relationship.

In accordance with the settled case-law of the Court, the essential feature of an employment relationship is that, for a certain period of time, a person performs services for and under the direction of another person, in return for which he receives remuneration, the legal characterisation under national law and the form of that relationship, as well as the nature of the legal relationship between those two persons, not being decisive in that regard. Moreover, it follows from Article 1(1) of Directive 2008/104, and from Article 3(1)(c) thereof which defines the concept of ‘temporary agency worker’, that that directive applies not only to workers who have concluded a contract of employment with a temporary-work agency, but also to those who have an ‘employment relationship’ with such an undertaking.

Therefore, neither the legal characterisation, under national law, of the relationship between the person in question and the temporary-work agency, nor the nature of their legal relationships, nor the form of that relationship, is decisive for the purposes of characterising that person as a ‘worker’ within the meaning of Directive 2008/104.

That conclusion cannot be called into question by the fact that, under Article 3(2) of Directive 2008/104, that directive is to be without prejudice to national law as regards the definition of worker.

That provision means only that the EU legislature intended to preserve the power of the Member States to determine the persons falling within the scope of the concept of ‘worker’ for the purposes of national law and who must be protected under their domestic legislation, an aspect that Directive 2008/104 does not aim to harmonise.

On the other hand, that provision cannot be interpreted as a waiver on the part of the EU legislature of its power itself to determine the scope of that concept for the purposes of Directive 2008/104, and accordingly the scope rationae personae of that directive. Thus, the EU legislature did not leave it to the Member States to define that concept unilaterally, but specified itself the contours thereof in Article 3(1)(a) of that directive, as, moreover, it also specified the contours of the definition of ‘temporary agency worker’ in Article 3(1)(c) of that directive.

Second, an association, such as the association in question, which assigns nursing staff to medical and health care institutions in return for financial compensation covering personnel costs and administrative costs, is engaged in economic activities within the meaning of Article 1(2) of that directive.

The fact that the association in question does not operate for gain is, under the express wording of Article 1(2) of Directive 2008/104 and in accordance with the settled case-law of the Court, not relevant in that regard. The legal form of that association, constituted as an association, is likewise not relevant since it has no bearing on the economic nature of the activities pursued.

(see paras 27-32, 43, 46-48, operative part)