Full text - European Trade Union Institute (ETUI)

Isabelle Schömann and Carolie Guedes
fixed term duration employment relationship or a temporary employment relationship
(Directive 91/383/EC of 25 June 1991 – OJL 206, 29/07.1991, p.19-12).
Three years later, in its White paper (European Social Policy – a way forward
for the Union, COM(94) 333, July 1994), the European Commission restated
that regulating atypical work was one of the priorities of the Council. On 27
September 1995 the European Commission set up a consultation of European
social partners in accordance with Article 3 of the Agreement on social policy,
attached to Protocol no. 14 on social policy, enclosed in the Treaty instituting
a European Community. The European social partners seemed ready to negotiate
on the matter of equal treatment for atypical workers.
Since then, many institutional changes have occurred. Indeed, since the entry
into force of the Amsterdam Treaty, unanimity is no longer required in
the Council, and consultation of European social partners has been institutionalised
and enshrined in Articles 138 and 139 of the EC (now 154 and 155
TFEU). As part of the policy of promoting the engagement of the European
social partners in the formulation of EU social policy, the EC Treaty (now
the Treaty of the Functioning of the European Union) provides a procedure
that combines the consultation of the social partners by the Commission with
the option to leave social regulation to bipartite agreement between management
and labour organised at European level. According to Article 154 TFEU,
the Commission, before submitting proposals in the social policy field, has to
consult management and labour on the possible direction of that Community
action. Moreover, if, after such consultation, the Commission considers Community
action advisable, it is obliged to consult management and labour on
the content of the envisaged proposal. Therefore, the European Commission
launched a consultation of the European social partners on part-time, fixedterm
and temporary agency work. The European social partners, however, decided
to tackle the three different issues in three different agreements, which
led to two agreements on the first two issues, and in the preamble of both
texts, the European social partners committed themselves to further negotiations
on temporary agency work (recitals 12 and 13). Temporary agency
work remained on the agenda while the ILO adopted Convention 181 on Private
Employment Agencies, supplemented by Recommendation 188 in 1997.
Temporary agency work appeared to be in deadlock at EU level. However, the
need for a Community regulation was very strong, for three main reasons.
First, temporary agency work is a growing sector in Europe which thus needs
to be regulated at this level. Then, temporary agency work had already been
regulated partly through two Directives (91/383/EEC health and safety for
atypical workers and 96/71/EC on posting of workers in the framework of the
provision of services). Finally, another incentive for reaching an agreement
was the accession of many new Member States in May 2004. Indeed, the accession
treaties limit the freedom of movement of workers coming from the
new Member States, but usually these restrictions do not apply to the freedom
of services. Thus, through the use of temporary agency work, new Member
States can avoid the restrictions imposed on them by the accession treaties.
It may have been a strong incentive for creating a regulatory framework for
temporary agency work in old Member States (Bercusson 2008).
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