A legal opinion announced yesterday [20 November] about a case referred to the European Court of Justice (ECJ) by a Finnish labour union could pave the way to the lifting of restrictions on the use of agency workers in Europe.

The opinion, or conclusion as it is referred to formally, involved the union AKT against aviation fuel, lubricants and fluids provider Shell Aviation. It centred on the interpretation of a specific article in the EU Temporary Agency Workers Directive (AWD) and on whether different treatment of the workers is allowed under a collective labour agreement. The conclusion came from an advocate general (AG), to whom the case was referred for a review before the full court takes it on.  

The conclusion will be taken into account when the ECJ itself rules on the case in the first quarter of 2015. According to Eurociett, the confederation of recruitment trade bodies, the court typically follows the AG’s opinion in 80% of the cases.

In a statement, Eurociett has outlined several issues brought to light by the AG’s conclusion. A critical issue is that the section in question in this case, the AWD’s Article 4, prohibits maintaining or introducing restrictions on agency work, and holds “a material obligation” to “not just review, but to actually lift restrictions on agency work”, Eurociett has pointed out.

The conclusion goes on to say that the only justified restrictions on agency work are those that serve the “general interest”. “This is significant,” the Eurociett statement said, “as… this could provide the legal basis the European Commission has to date been missing with regards to the member states.”

Another particularly key point, Eurociett said, is the conclusion’s highlighting “the importance of the dual goal of the [AWD]: protection of workers as well as promotion of agency work as an important tool to deliver flexibility”.

Eurociett president Annemarie Muntz said that the organisation welcomed the AG’s conclusions. “It clearly shows that unjustified restrictions on agency work need not be removed,” Muntz said in a prepared statement. “These conclusions support us in our question to urge governments of European member states to fully implement the… directive, lift restrictions, and allow our industry to play a positive role on the labour market.”

In the UK, Tom Hadley, director of policy at the Recruitment & Employment Confederation, added, in a statement to Recruiter: “Some member states have clearly gone too far in seeking to restrict opportunities for agency work in their labour markets and the European Commission should seek to work with these states to achieve a full and proper implementation of this important directive. 

“We are encouraged that the AG has underlined that AWD restrictions are only defendable where they expressly protect the ‘general interest’. The European Commission should use this guidance to call other EU countries who still maintain domestic restrictions on agency workers to account.” 

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