Ersuchen um Vorabentscheidung des Gerichtshofs der Europäischen Union
See appendix for the referral decision, and click hier für the Court of Justice file (if available).
Deadline to leave your brief: April 28, 2025
Keywords: employment contract, temporary workers, equal treatment of employees
Subject:
– Directive 2008/104/EU of the European Parliament and of the Council of November 19, 2008, on temporary agency work: recitals 1, 11 and 15 and Articles 1 to 6;
– Charter of Fundamental Rights of the European Union: Articles 21 and 31.
Fakten:
The petitioner ‘SI’ was an employee of the defendant ‘Intercos Europe’, on a temporary and permanent contract from 2017 to 2023. SI initially worked for Intercos on a temporary basis for a period of 22 months. After this first fixed-term period, SI, who had been hired on a permanent basis by the Randstad employment agency, continued to work in the same factory under a secondment agreement for an indefinite period based on an agreement that had been concluded for the period 2019-2023. The temporary employment agency Randstad terminated the temporary employment for an indefinite period at Intercos on December 14, 2023 without providing a reason. SI disputes the legality of the determination of the temporary employment for an indefinite period at the same hiring company between 2019 and 2023.
Erwägung:
Italian law only allows employees who have been hired by a temporary employment agency on a permanent basis to be made available to the same hirer without time limitation and that in the event of premature termination of this posting, no obligation to provide justification applies. The referring court wonders whether this is in conflict with Directive 1008/104.
Preliminary question:
Should Article 1, paragraph 1, and Article 5[, paragraph] 5, of Directive 2008/104/EC of November 19, 2008 be interpreted as preventing national regulations such as those in Article 31, paragraph 1, of Legislative Decree no. 81 of 2015, which does establish a permanent appointment by the agency for the deployment of workers, but allows a deployed worker to be deployed for an indefinite period to one and the same hirer, without also establishing an obligation to substantiate the decision to terminate that posting?
Cited (recent) case law: C-533/13 AKT; C-681/18 KG; C-232/20 Daimler.
AMICUS BRIEF
IN THE MATTER BEFORE THE COURT OF JUSTICE OF THE EUROPEAN UNION
Filed on behalf of the European Youth Employment Network
Re: C-22/25 Intercos Europe – temporary workers, equal treatment of employees
SUBJECT
• Directive 2008/104/EU on temporary agency work
• Charter of Fundamental Rights of the European Union: Articles 21 and 31
EINFÜHRUNG
The European Youth Employment Network (EYEN), a fictional association representing the interests of young people entering the European job market, submits this amicus brief in the case concerning SI and Intercos Europe. As future job seekers, we have a direct stake in how temporary work is regulated across the European Union.
WHO WE ARE AND WHY THIS MATTERS TO US
We represent millions of young Europeans who are about to enter the job market or have recently joined it. For many of us, temporary agency work is our first experience in employment. How this Court interprets Directive 2008/104/EU will directly shape our career paths, job security, and working conditions for decades to come.
OUR PERSPECTIVE ON THE ISSUE
The Reality We Face
As new entrants to the job market, we increasingly find that temporary positions are not a stepping stone to permanent employment but often a long-term state with diminished rights:
1. Our generation’s “new normal”: What used to be exceptional (temporary work) is becoming standard for us. In many sectors, we move from one “temporary” assignment to another, sometimes at the same workplace for years.
2. The false promise of flexibility: While temporary work is often presented as offering flexibility to both parties, the reality we experience is one-sided flexibility that primarily benefits employers.
3. Career development in limbo: Without knowing whether we’ll be working at the same place next month, many of us struggle to plan our lives, apply for loans, or invest in specialized skills relevant to our current workplace.
The Impact of the Italian Provision
The Italian provision allowing indefinite deployment at the same company without requiring justification for termination affects our future in several ways:
1. Perpetual insecurity: If upheld, this provision normalizes a system where we can work somewhere for years without ever gaining employment security.
2. Power imbalance: The threat of arbitrary termination without justification creates a significant power imbalance that makes us reluctant to assert our rights or join unions.
3. Delayed adulthood: Economic insecurity delays major life decisions like starting families or purchasing homes, with broader social consequences.
WHY THE DIRECTIVE MATTERS TO OUR FUTURE
Directive 2008/104/EU was partly designed to ensure that temporary work remains temporary and doesn’t become a way to permanently employ workers with fewer rights. For us, this protection is crucial:
1. Pathways to stability: We need temporary work to function as it was intended – as a bridge to permanent employment, not a permanent state of insecurity.
2. Clear expectations: We deserve to know whether a position is genuinely temporary (to cover a specific need) or is effectively permanent but with fewer protections.
3. Development opportunities: Proper implementation of the Directive encourages employers to invest in our training and development rather than treating us as perpetually replaceable.
REAL-WORLD CONSEQUENCES
If the Court allows indefinite “temporary” placements without justification requirements for termination, we anticipate:
1. Expanding precarity: Companies will have incentives to expand this model, replacing what would have been permanent positions with perpetual “temporary” ones.
2. Skills mismatch: We’ll be discouraged from developing specialized skills at workplaces where our position is fundamentally insecure.
3. Intergenerational inequality: A two-tier labor market will be cemented where older workers enjoy job security while younger ones face permanent precarity.
4. Reduced social cohesion: Our generation’s relationship with work and society will be fundamentally different from previous generations’, with potential social and political repercussions.
TESTIMONY FROM OUR MEMBERS
While fictional, these examples reflect common experiences:
Maria, 26, Engineering Graduate: “I’ve been a ‘temporary’ worker at the same technology company for three years. I do exactly the same work as permanent employees but with no job security. I’ve postponed having children because I don’t know if I’ll have a job next month.”
Tomas, 24, Healthcare Worker: “My agency could end my hospital assignment any day without reason. This keeps me from speaking up about workplace issues. We provide essential services but are treated as disposable.”
Julia, 29, Office Administrator: “After four years as a ‘temp’ at the same company, I was suddenly told my assignment was over. No reason given. I’d turned down other opportunities because I’d been led to believe my position was stable.”
OUR REQUEST TO THE COURT
We respectfully ask the Court to interpret Article 1(1) and Article 5(5) of Directive 2008/104/EC as preventing national regulations like the Italian provision that allow indefinite deployment without justification requirements for termination.
This interpretation would:
1. Preserve the temporary nature of agency work as intended by the Directive
2. Ensure fair treatment between different categories of workers
3. Create clearer pathways to employment security
4. Maintain appropriate flexibility while preventing abuse
CONCLUSION
The Court’s decision will significantly impact not just SI’s case but the future work experiences of millions of Europeans entering the job market. A ruling that upholds the true intention of the Directive – ensuring temporary work remains temporary – is essential for our generation’s economic security and well-being.
We urge the Court to consider the long-term consequences for future generations of workers when rendering its decision.
Hochachtungsvoll vorgelegt,
European Youth Employment Network
AMICUS BRIEF
IN THE MATTER BEFORE THE COURT OF JUSTICE OF THE EUROPEAN UNION
Filed on behalf of the European Small Business Alliance
Re: C-22/25 Intercos Europe – temporary workers, equal treatment of employees
SUBJECT
• Directive 2008/104/EU on temporary agency work
• Charter of Fundamental Rights of the European Union: Articles 21 and 31
EINFÜHRUNG
The European Small Business Alliance (ESBA), a fictional association representing small and medium-sized enterprises across the European Union, respectfully submits this amicus brief in the case concerning SI and Intercos Europe. This case raises important questions about the implementation of Directive 2008/104/EU that directly affect the operations, planning capabilities, and competitiveness of small businesses throughout the EU.
SMALL BUSINESS PERSPECTIVE ON TEMPORARY WORK
Unique Position of SMEs
Small businesses represent 99% of all businesses in the EU and employ approximately 100 million people. Unlike large corporations, we operate with:
1. Limited administrative resources: We typically lack dedicated HR departments or legal teams to navigate complex regulatory environments
2. Tight operational margins: We have less financial cushion to absorb unexpected costs or rapid workforce changes
3. Fluctuating business cycles: Many of us experience seasonal or project-based demand that requires workforce flexibility
Value of Temporary Work Arrangements
For small businesses, temporary agency work serves several critical functions:
1. Managing uncertainty: Allows us to respond to unpredictable market conditions without risking our entire enterprise
2. Specialized expertise: Provides access to specialized skills for specific projects without permanent overhead
3. Growth facilitation: Enables testing of expansion without immediate long-term commitments
4. Administrative simplification: Reduces complex HR processes for businesses with limited capacity
CONCERNS ABOUT THE CURRENT CASE
While we recognize the importance of worker protection, several aspects of this case raise concerns for small businesses:
Balancing Flexibility and Protection
Small businesses need a balanced regulatory approach that:
1. Preserves necessary flexibility: Any interpretation that severely restricts the use of temporary workers would disproportionately harm small businesses that rely on this flexibility to remain viable
2. Provides clarity and predictability: Small businesses need clear, consistent rules that don’t change unexpectedly
3. Considers administrative burden: Requirements that impose significant reporting or justification processes could overwhelm small businesses
Context Matters
We note that this case involves Intercos Europe, a larger company. The Court’s interpretation could have unintended consequences for small businesses if it doesn’t account for differences in:
1. Scale: What is administratively feasible for large companies may be overwhelming for small ones
2. Resources: Small businesses lack specialized compliance departments
3. Market position: Small businesses often cannot absorb costs that larger companies can
SPECIFIC CONSIDERATIONS FOR THE COURT
Potential Unintended Consequences
If Article 1(1) and Article 5(5) are interpreted to require justification for all terminations of temporary assignments, small businesses could face:
1. Increased administrative burden: Documenting justifications for each assignment change would divert resources from core business operations
2. Legal uncertainty: Vague standards for what constitutes sufficient “justification” could create unpredictable liability
3. Restricted access to workforce solutions: Agencies might become more restrictive in offering their services to small businesses due to increased regulatory complexity
4. Competitive disadvantage: Large companies can more easily absorb compliance costs, putting small businesses at a disadvantage
Alternative Approaches
We suggest the Court consider proportionate approaches that:
1. Distinguish between business sizes: Recognize that different standards might be appropriate for businesses of different scales
2. Focus on patterns of abuse: Target patterns of systematic abuse rather than imposing burdensome requirements on all temporary arrangements
3. Consider substantive reality: Look at whether arrangements genuinely serve temporary needs rather than imposing rigid formal requirements
4. Respect national context: Allow member states flexibility to implement protections in ways that reflect their economic structures
OUR PROPOSAL
We respectfully suggest the Court interpret Directive 2008/104/EU in a manner that:
1. Targets clear abuse: Prevents indefinite “temporary” assignments that are clearly designed to circumvent employment protections
2. Preserves legitimate flexibility: Maintains the ability of small businesses to use temporary workers for genuinely temporary needs
3. Ensures proportionality: Imposes administrative requirements that are proportionate to business size and resources
4. Provides clarity: Establishes clear guidelines that small businesses can realistically follow
Specifically, we propose distinguishing between:
• Repeated use of consecutive short-term contracts for the same position (which may indicate abuse)
• Genuine open-ended agency arrangements with defined termination notice periods and conditions
CONCLUSION
Small businesses support the fundamental goals of Directive 2008/104/EU in protecting workers while maintaining labor market flexibility. However, an overly restrictive interpretation requiring justification for all terminations of temporary assignments would disproportionately burden small businesses and potentially reduce employment opportunities.
We respectfully request that the Court consider the unique position of small businesses when interpreting Article 1(1) and Article 5(5) of Directive 2008/104/EC, ensuring that any requirements imposed are proportionate, clear, and realistic for enterprises of all sizes.
The solutions that work for large corporations like Intercos Europe may not be appropriate for the millions of small businesses that form the backbone of the European economy. We ask the Court to consider a balanced approach that protects workers while preserving the flexibility that enables small businesses to operate, compete, and create jobs.
Hochachtungsvoll vorgelegt,
European Small Business Alliance
AMICUS BRIEF
IN THE MATTER BEFORE THE COURT OF JUSTICE OF THE EUROPEAN UNION
Filed on behalf of the fictional European Federation of Temporary Workers (EFTW)
Re: C-22/25 Intercos Europe – temporary workers, equal treatment of employees
SUBJECT
• Directive 2008/104/EU on temporary agency work
• Charter of Fundamental Rights of the European Union: Articles 21 and 31
EINFÜHRUNG
We’re the European Federation of Temporary Workers (EFTW), a fictional trade union standing up for temp workers across the EU. We’re weighing in on the case between SI and Intercos Europe because we believe it highlights a serious problem with how some countries are implementing the EU’s rules on temporary work.
WHAT THIS CASE IS ABOUT
This case boils down to whether it’s fair for someone to work at the same company for years as a “temporary” worker, only to be dismissed without any reason. The worker, SI, spent over six years at Intercos—first on a fixed-term contract, then through an agency called Randstad, who could (and did) end their assignment without giving any reason.
OUR TAKE ON THE RULES
The EU’s Directive on temporary work tries to balance two things:
• Giving businesses flexibility to use temp workers when needed
• Making sure temp workers aren’t taken advantage of
The Italian law in question gets this balance wrong. It lets companies use “temporary” workers permanently at the same workplace with none of the job security regular employees get.
WHY THIS MATTERS
1. Temporary Should Mean Temporary
The whole point of the EU Directive is that agency work is supposed to be temporary. Letting someone work at the same place indefinitely through an agency goes against this basic idea.
2. It Creates Two Classes of Workers
This setup creates an unfair two-tier system:
o Regular employees get job security and protection against unfair dismissal
o “Permanent temps” do the same work at the same place but can be let go at any time without explanation
3. No Accountability
Without having to give reasons for ending someone’s assignment, companies and agencies can work together to get rid of workers they don’t like for any reason—even unfair or discriminatory ones.
WHAT RECENT COURT DECISIONS TELL US
The Court has already made it clear in cases like AKT (C-533/13) and KG (C-681/18) that member countries need to stop arrangements that let employers dodge the protections in the Directive. In the Daimler case (C-232/20), the Court emphasized that temp workers deserve proper protection.
WHAT SHOULD HAPPEN IN THIS CASE
We believe the Court should rule that the Italian law doesn’t meet the standards set by the EU Directive. Companies shouldn’t be allowed to use “temporary” workers permanently without giving them job security. At the very least, they should have to provide valid reasons when ending someone’s assignment.
This would:
• Respect the temporary nature of agency work
• Ensure fairer treatment between different types of workers
• Prevent companies from using agency workers just to avoid employment protections
• Still give businesses flexibility when they genuinely need temporary staff
CONCLUSION
The current Italian system lets companies have their cake and eat it too—they get workers who are effectively permanent but can be dismissed at any time without reason. This goes against both the letter and spirit of EU law on temporary work.
The Court should answer “yes” to the question of whether the EU Directive prevents regulations like Italy’s that allow indefinite deployment without requiring justification for termination.
Hochachtungsvoll vorgelegt,
European Federation of Temporary Workers
AMICUS BRIEF
IN THE MATTER BEFORE THE COURT OF JUSTICE OF THE EUROPEAN UNION
Filed on behalf of the fictional European Association of Labor Market Economists
Re: C-22/25 Intercos Europe – temporary workers, equal treatment of employees
SUBJECT
• Directive 2008/104/EU on temporary agency work
• Charter of Fundamental Rights of the European Union: Articles 21 and 31
I. Introduction
The European Association of Labor Market Economists (EALME), a fictional association of economic researchers specializing in European labor markets, submits this amicus brief in the case concerning SI and Intercos Europe. Our expertise in labor market dynamics, employment relationships, and the economic impacts of labor regulations provides a valuable perspective on the questions before the Court.
II. Economic Context of Temporary Agency Work
Temporary agency work represents a significant component of European labor markets, accounting for approximately 1.9% of total employment across the EU. This employment form serves several economic functions:
1. Labor Market Flexibility: Allows firms to adjust workforce size in response to demand fluctuations
2. Reduced Search Costs: Streamlines matching of workers to positions
3. Entry Pathways: Provides access points to the labor market for marginalized groups
4. Specialized Skills Acquisition: Enables companies to access specialized skills for limited periods
However, our empirical research indicates that the economic benefits of temporary work arrangements depend on their proper functioning as genuinely temporary relationships. When misused as substitutes for permanent employment, these arrangements create substantial economic inefficiencies and societal costs.
III. Economic Analysis of the Present Case
The situation at issue—where a worker remains at the same company for six years through successive arrangements with a temporary agency—represents a distortion of the temporary work model with several adverse economic consequences:
A. Labor Market Segmentation
The Italian provision allowing indefinite temporary postings at the same company without substantiation requirements for termination contributes to labor market dualism. Our research indicates that countries with high levels of labor market segmentation experience:
• Reduced overall productivity and economic growth
• Decreased wage growth across both segments
• Lower rates of investment in worker training and skills development
• Increased inequality and reduced social mobility
A 2022 analysis of labor market segmentation in EU member states found that every 10% increase in the proportion of semi-permanent temporary workers (those staying at the same company for over 2 years) was associated with a 3.2% decrease in average productivity growth.
B. Human Capital Formation
Worker-firm relationships characterized by job insecurity despite long tenure create suboptimal incentives for human capital investment:
1. Worker Investment Disincentives: Workers facing arbitrary termination despite years of service have reduced incentives to invest in firm-specific skills and knowledge
2. Employer Training Reluctance: Employers treating long-term workers as temporary have diminished incentives to provide training and development
3. Knowledge Management Inefficiencies: Precarious status impedes knowledge transfer and institutional memory
We estimate that inappropriate use of temporary arrangements reduces firm-specific human capital formation by 23-28% compared to properly classified employment relationships.
C. Productivity and Innovation Effects
Economic research demonstrates that excessive employment insecurity negatively impacts productivity and innovation:
1. Reduced Organizational Commitment: Workers without job security demonstrate lower organizational commitment and engagement
2. Decreased Knowledge Sharing: Precarious workers are less likely to share tacit knowledge and innovative ideas
3. Higher Turnover Costs: Even if “temporary” workers remain for years, their precarious status increases the likelihood of eventual departure, raising turnover costs
Our longitudinal studies of manufacturing firms across the EU found that those with high proportions of long-term but legally “temporary” workers experienced innovation rates 17% lower than comparable firms with appropriately classified workforces.
IV. Economic Assessment of the Directive’s Implementation
From an economic perspective, Article 5(5) of Directive 2008/104/EC, which requires Member States to prevent successive assignments designed to circumvent the Directive’s provisions, serves an important efficiency function. Without this safeguard, the market fails to achieve optimal outcomes due to:
1. Information Asymmetry: Workers cannot accurately evaluate the true nature of their employment relationship
2. Power Imbalances: Individual workers lack bargaining power to contest misclassification
3. Regulatory Arbitrage: Companies can exploit regulatory differences between employment forms
The Italian provision allowing indefinite deployment without substantiation requirements for termination enables precisely the type of regulatory arbitrage that creates economic inefficiency. It allows firms to maintain de facto permanent workers while avoiding the costs and responsibilities associated with permanent employment.
V. Balancing Flexibility and Security
From an economic perspective, the optimal implementation of the Directive would:
1. Preserve Genuine Flexibility: Maintain the ability of firms to use temporary workers for genuinely temporary needs
2. Prevent Misclassification: Ensure that long-term relationships are properly classified as permanent employment
3. Reduce Transaction Costs: Create clear guidelines that minimize uncertainty and litigation
4. Align Incentives: Ensure that both workers and firms have appropriate incentives for investment in the employment relationship
The Court’s interpretation of Articles 1 and 5 will significantly impact whether these objectives are achieved.
VI. Conclusion and Recommendation
Based on our economic analysis, we recommend that the Court interpret Article 1(1) and Article 5(5) of Directive 2008/104/EC as preventing national regulations that allow indefinite deployment of agency workers to the same user undertaking without substantiation requirements for termination.
Such an interpretation would:
1. Promote Economic Efficiency: Ensure that employment relationships are properly classified according to their economic substance
2. Reduce Market Distortions: Minimize regulatory arbitrage that creates inefficient labor market segmentation
3. Optimize Incentives: Create appropriate incentives for human capital investment
4. Balance Flexibility and Security: Preserve genuine temporary work while preventing abuse
The economic evidence strongly suggests that permitting indefinite “temporary” postings without substantiation requirements for termination undermines both the purpose of the Directive and the efficient functioning of European labor markets.
Hochachtungsvoll vorgelegt,
European Association of Labor Market Economists
IN THE EUROPEAN COURT OF JUSTICE
Case C-XXX/25
SI v. Intercos Europe and Randstad
Question from an Italian Court
AMICUS CURIAE BRIEF FROM THE FICTIONAL EUROPEAN EMPLOYERS’ ALLIANCE TO HELP THE COURT
WHY WE’RE WRITING
The fictional European Employers’ Alliance (EEA) is a group of businesses from across Europe. We represent companies that hire millions of workers, including through temp agencies. We’re writing to share our view on a work rule (Directive 2008/104/EU) and how it affects employers. We want to help the Court make a fair decision that works for both workers and businesses. No one involved in the case wrote this, and we paid for it ourselves.
WHAT WE THINK
This case is about whether an Italian law follows an EU rule on temp agency workers. The EU rule (Directive 2008/104) protects temp workers but also lets businesses stay flexible. The Italian law says a temp agency can hire someone permanently and send them to the same company for as long as needed, without explaining why the job ends. We think this is okay under the EU rule. It helps companies like Intercos adjust to changes while still treating workers fairly. We ask the Court to agree that the Italian law fits with EU law and doesn’t break any basic rights.
WHY WE THINK THIS
1. The EU Rule Gives Countries Choices
The EU rule says temp agency workers should be treated fairly, but it doesn’t set strict limits on how long they can work for one company or force anyone to explain why a job ends. It’s meant to help workers and let businesses adapt (it says this in parts 11 and 15). Italy’s law lets a worker like SI stay with Intercos as long as needed, since he’s hired permanently by Randstad. This fits the EU rule’s goal of keeping things flexible for employers.
2. The Worker Still Has Rights
SI was hired full-time by Randstad, not Intercos. He worked at Intercos for years—first for 22 months, then longer under a new deal. The EU rule says he should get the same basic pay and conditions as Intercos’s regular workers, but it doesn’t say his job there has to last forever or that Randstad has to explain why it ended. SI’s rights come from Randstad, and he wasn’t left without a job. The Italian law protects him enough while letting businesses make decisions.
3. This Doesn’t Break EU Rights
The EU’s basic rights (Articles 21 and 31) say people shouldn’t be treated unfairly and should have decent work conditions. The Italian law doesn’t treat SI worse because of who he is, and it doesn’t make his job unsafe or unfair. It just lets Randstad end his time at Intercos without a big explanation. That’s not against the rules—it’s a normal part of how temp work happens.
4. Why This Matters to Businesses
Companies like Intercos use temp workers to handle busy times or special projects. If they can’t keep workers as long as needed or have to explain every change, it gets harder and more expensive to run their business. Smaller companies especially need this freedom to stay afloat. If the Court says Italy’s law is wrong, it could mess up how businesses work all over Europe.
WHAT WE’RE ASKING
We think the EU rule (Articles 1 and 5) doesn’t stop Italy’s law from letting temp workers stay at one company for a long time without needing a reason to stop. It follows the EU rule and respects workers’ rights. We ask the Court to say “no” to the question—Italy’s law is fine as it is.