Full text - European Trade Union Institute (ETUI)

Temporary agency work in the European Union
agency workers could be harmonized at national level when transposing the
Agency Work Directive by including also the conditions for posting of agency
workers’.
What about the principle of equal treatment
The need to articulate the TAW Directive and the Posting of Workers Directive
is actually linked to a possible application of the principle of equal treatment
between transnational temporary agency workers and permanent workers of
the user undertaking. In fact, this need is not obvious as the comparison is
not made at the same level, the comparable worker being either a national
temporary agency worker or a worker at the user undertaking.
According to the Lex specialis doctrine applied to legal interpretation, a law
governing a specific subject matter overrides a law that only governs general
matters and would give precedence to the Temporary Agency Work Directive.
Recital 22 of the Temporary Agency Work Directive states that: ‘This Directive
should be implemented in compliance with the provisions of the Treaty
regarding the freedom to provide services and the freedom of establishment
and without prejudice to Directive 96/71/EC of the European Parliament and
of the Council of 16 December 1996 concerning the posting of workers in the
framework of the provision of services.’ Does this mean that a balance between
the implementation of the Temporary Agency Work Directive and the
freedom to provide services in case of transnational temporary agency work
should be found, while running the risk of creating discriminatory measures
When looking at the Posting of Workers Directive, does the expression ‘without
prejudice’ (in recital 19) mean that in case of transnational temporary
agency workers, the application of the Temporary Agency Work Directive is
excluded, the Posting of Workers Directive being the only one to apply Nothing
could be less certain. Interestingly, the CJEU has ruled that the implementation
provisions contained in a Community Directive did not automatically
exclude any infringement of the freedom to provide services (Mazzoleni
case, C-165/98). Furthermore, any infringement of the freedom to provide
services must be justified on the ground of a reason of overriding public interest
(for example, the Seco case, 62/81). The protection of workers is actually
one of these reasons (see, for example, the Wolff and Müller case, C-60/03),
one of the aims of the Temporary Agency Work Directive. The measure in
question has to be necessary in order to achieve the declared objective; the
objective could not be achieved by less extensive prohibitions or restrictions,
or by prohibitions or restrictions having less effect on intra-EU trade. It is at
this point that the Posting of Workers Directive might play a role.
What would the Enforcement Directive of the Posting
of Workers Directive bring to the debate
The European Commission is currently examining a proposal on the so-called
Enforcement Directive, which will (if adopted) put in place mechanisms de-
WP 2012.13 59