The Court of Justice of the European Union (“CJEU”) issued a preliminary ruling C-533/13 in a case that relates to the permissibility of prohibitions and restrictions on temporary agency work. The CJEU found that the Temporary Agency Work Directive (2008/104/EC) does not prevent national courts from applying the restrictions and prohibitions on temporary agency work contained in collective bargaining agreements even where the prohibitions or restrictions would not be justified as required by the Directive.

The case concerned a company, Shell Aviation Finland Oy (“SAF”),that leased employees from a temporary work agency. SAF is bound by the collective bargaining agreement for the tanker-truck and oil product sector in Finland. The collective bargaining agreement restricts the use of temporary agency workers. The Finnish Transport Workers’ Union AKT brought an action before the Finnish Labor Court, claiming that SAF and the employer association it belonged to had breached the collective bargaining agreement as SAF had used temporary agency workers continuously to a wider extent than is permitted by the collective bargaining agreement. SAF and the employer association rejected AKT's claims, arguing that the restrictions in the collective bargaining agreement were not in compliance with Article 4 of the Directive. Article 4 provides that prohibitions or restrictions on the use of temporary agency work are justified only on certain grounds, such as general interest relating to the protection of temporary agency workers. Article 4 also imposes an obligation on member states to review the restrictions and prohibitions on the use of temporary agency workers in order to verify whether they are justified. If collective bargaining agreements contain such restrictions, the parties to the collective bargaining agreements can also perform the review. 

The Labor Court sought a preliminary ruling, inter alia, on whether the Directive must be interpreted as laying down a permanent obligation on national authorities, including the courts, to ensure by means available to them that national legislation or terms in collective agreements contrary to the Directive are not in force or are not applied. The Labor Court also sought a preliminary ruling on whether the restrictions in the collective bargaining agreement were in compliance with the Directive and, if not, what kind of measures the courts may take to fulfil the Directive’s objectives.

The CJEU ruled that Article 4 of the Directive is addressed only to the competent authorities of the member states. The authorities must review all potential prohibitions or restrictions on the use of temporary agency work to ensure that these are justified. Such review obligation cannot be performed by the national courts. The CJEU further held that the Directive does not obligate national courts to refuse to apply national law containing prohibitions or restrictions, even if such restrictions are not justified. The CJEU concluded that it was not necessary to address the Labor Court's other questions.

The CJEU’s judgment clarifies which entities have an obligation to take action based on the Directive. The courts are not considered to be such an entity. The judgment appears to suggest that national courts will have to apply the restrictions and prohibitions on temporary agency work in the collective bargaining agreements, even if the court considers them to be unjustified.

The Labor Court will resume its consideration of the case in June 2015 based on the CJEU’s ruling.

Comments on the case from a Swedish perspective: 

A number of collective bargaining agreements that apply on the Swedish labor market contain provisions restricting the use of temporary agency workers in the businesses of employers bound by the collective bargaining agreements in question. The CJEU's ruling suggests that Swedish courts are not obliged to rule on whether these provisions are justified based on the general grounds stated in Article 4 of the Temporary Agency Work Directive.