Case C‑948/19

UAB ‘Manpower Lit’

v

E. S. and Others

and

European Institute for Gender Equality (EIGE)

(Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Supreme Court, Lithuania))

 Judgment of the Court (Second Chamber, 11 November 2021)

(Reference for a preliminary ruling – Social policy – Temporary agency work – Directive 2008/104/EC – Article 1 – Scope – Concepts of ‘public undertaking’ and ‘being engaged in economic activities’ – European Union agencies – European Institute for Gender Equality (EIGE) as a ‘user undertaking’ within the meaning of Article 1(2) of that directive – Article 5(1) – Principle of equal treatment – Basic working and employment conditions – Concept of ‘the same job’ – Regulation (EC) No 1922/2006 – Article 335 TFEU – Principle of administrative autonomy of an EU institution – Article 336 TFEU – Staff Regulations of Officials of the European Union and Conditions of Employment of Other Servants of the European Union)

1.        Social policy – Temporary agency work – Directive 2008/104 – Scope – Concepts of user undertaking, public and private undertakings and economic activities – Meaning – European Union agencies – European Institute for Gender Equality – Assignment to that agency, by a temporary-work agency, of persons who have concluded a contract with that temporary-work agency – Included

(European Parliament and Council Regulation No 1922/2006, Arts 3(1), 5 and 14(3); European Parliament and Council Directive 2008/104, Art. 1)

(see paragraphs 32, 34, 38, 39, 42-46, 50, operative part 1)

2.        Social policy – Temporary agency work – Directive 2008/104 – Equal treatment – Concept of the same job – European Institute for Gender Equality – Job occupied by a temporary agency worker assigned to that EU agency – Included – Legal capacity of the European Union – Staff Regulations of Officials of the European Union – Irrelevant

(Arts 335 and 336 TFEU; European Parliament and Council Directive 2008/104, Art. 5(1))

(see paragraphs 55-60, 62, operative part 2)

Résumé

Manpower Lit, a Lithuanian temporary-work agency, assigned five workers to the European Institute for Gender Equality (EIGE), a European Union agency established in Vilnius (Lithuania), four as assistants and one as an IT support worker. Following termination of their employment relationships with Manpower Lit between April and December 2018, those workers, considering that they were owed arrears of remuneration, brought proceedings before the Valstybinės darbo inspekcijos Vilniaus teritorinio skyriaus Darbo ginčų komisija (Labour disputes commission of the Vilnius territorial section of the employment inspectorate, Lithuania) seeking payment of those arrears.

By decision of 20 June 2018, that commission, having regard to the provision of the Labour Code transposing into Lithuanian law the principle of equal treatment for temporary agency workers laid down by Directive 2008/104, (1) ordered the recovery of those arrears, finding that the workers in question did in fact perform the functions of permanent members of staff of the EIGE and that their pay conditions should correspond to those that the EIGE applied to its contract agents.

Its action against that decision having been dismissed both at first instance and on appeal, Manpower Lit brought an appeal on a point of law before the Lietuvos Aukščiausiasis Teismas (Supreme Court, Lithuania).

That court decided to refer questions to the Court of Justice seeking clarification on whether the principle of equal treatment for temporary agency workers laid down by Directive 2008/104 applies in the main proceedings, in the light of the fact that the user of temporary personnel services is an agency of the European Union.

In its judgment, the Court confirmed that Directive 2008/104, including the provisions seeking to ensure observance of the principle of equal treatment, does apply to the dispute in the main proceedings.

Findings of the Court

The Court analysed, first, the scope of Directive 2008/104. The Court stated in that respect that the EIGE must satisfy three conditions (2) in order for the directive to apply, that is to say, it must fall within the definition of ‘public and private undertakings’, must be a ‘user undertaking’ and must be engaged in ‘economic activities’.

As regards whether the EIGE can be regarded as a ‘user undertaking’, (3) the Court noted that the employees in question worked temporarily, as temporary agency workers, for the EIGE and under its supervision and direction. Moreover, that European Union agency must be regarded as a ‘legal person’ within the meaning of the directive. The Court concluded from the foregoing that the EIGE is, in this context, a ‘user undertaking’.

Since the terms ‘public and private undertakings’ and ‘economic activities’ are not defined in the directive, in order to determine their meaning the Court examined whether the EIGE is engaged in any activity consisting in offering goods or services on a given market.

It found in that respect, first, that the activities of that European Union agency do not fall within the exercise of public powers and are therefore not excluded from classification as economic activity. Thereafter, having regard to certain activities of the EIGE, listed in Regulation No 1922/2006, (4) there are markets in which commercial undertakings operate in competition with the EIGE. The fact that, when it is engaged in those activities, the EIGE is not operating for gain is immaterial. Lastly, the EIGE’s revenue includes in particular (5) payments received for services rendered, thereby confirming that the EU legislature envisaged that it would act, in part at least, as a market player.

Accordingly, the Court found that the EIGE must be regarded as being engaged, at least in part, in an activity consisting in offering goods or services on a given market and, therefore, that the assignment by a temporary-work agency of persons who have concluded an employment contract with that agency to the EIGE for the performance of work does fall within the scope of Directive 2008/104.

Secondly, the Court examined whether the post occupied by a temporary worker assigned to the EIGE can be regarded as being ‘the same job’ within the meaning of Directive 2008/104 given that, according to that directive, (6) the basic working and employment conditions of temporary agency workers must, for the duration of their assignment at a user undertaking, be at least those that would apply if they had been recruited directly by that undertaking to occupy the same job.

As regards whether the working and employment conditions of temporary workers can be compared with those of EIGE staff employed under the Staff Regulations of Officials, the Court rejected the argument of the European Commission that such a comparison may infringe Article 335 TFEU, under which the European Union enjoys the most extensive legal capacity accorded to legal persons under their laws, and Article 336 TFEU on adoption of the Staff Regulations of Officials by the EU legislature. That comparison does not in any respect have the effect of conferring status as officials on temporary workers. The Court clarified that in the absence of specific rules, where agencies of the European Union use temporary workers under contracts concluded with temporary-work agencies, the principle of equal treatment applies in full to those workers during their assignments within the European Union agency.

The Court found that the job occupied by a temporary agency worker assigned to the EIGE can be regarded as being ‘the same job’ within the meaning of the directive, even on the assumption that all the jobs for which the EIGE recruits workers directly include tasks that can only be performed by workers employed under the Staff Regulations of Officials of the European Union.

1      Article 5 of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work (OJ 2008 L 327, p. 9).

2      Set out in Article 1(2) of that directive. Under that article, the directive applies to public and private undertakings which are temporary-work agencies or user undertakings engaged in economic activities whether or not they are operating for gain.

3      Within the meaning of Article 3(1)(d) of the directive, that is to say, ‘any natural or legal person for whom and under the supervision and direction of whom a temporary agency worker works temporarily’.

4      Article 3(1) of Regulation (EC) No 1922/2006 of the European Parliament and of the Council of 20 December 2006 on establishing a European Institute for Gender Equality (OJ 2006 L 403, p. 9) which makes reference in particular, in Article 3(1)(g), to organising conferences, campaigns and meetings at European level.

5      In accordance with Article 14(3)(b) of Regulation No 1922/2006.

6      Article 5(1) of that directive.