Article 3(1)(d) of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work

Provisional text

OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 11 June 2026 ( 1 )

Case C ‑ 136/25 [Pemak] ( i )

S O

v

G GmbH

(Request for a preliminary ruling from the Bundesarbeitsgericht (Federal Labour Court, Germany))

( Reference for a preliminary ruling – Social policy – Directive 2008/104/EC – Temporary agency work – Article 1(1) – ‘Temporary’ assignment – Article 3(1)(d) – Concept of ‘user undertaking’ – Article 5(5) – Appropriate measures to prevent misuse of temporary agency work – Temporary agency worker assigned to an undertaking which is transferred to another owner during the assignment – Directive 2001/23/EC – Article 1(1) – Transfer of an undertaking – Article 3(1) – Safeguarding of employees’ rights – Calculation of the maximum assignment period of the temporary agency worker laid down in the applicable national legislation – Whether the transferor and the transferee are to be regarded, for the purposes of that calculation, as being one and the same ‘user undertaking’ )

I. Introduction

1. Directive 2008/104/EC ( 2 ) aims to ensure the protection of temporary agency workers who are assigned to user undertakings to work temporarily under their supervision and direction. In that context, Member States have the option of setting, in national law, a specific period beyond which the assignment of workers can no longer be regarded as temporary.

2. In the present case, while a temporary agency worker was assigned to a user undertaking, that undertaking was the subject of a transfer within the meaning of Directive 2001/23/EC. ( 3 ) The Member State in question had set the maximum assignment period for temporary agency workers at 18 months. In that context, the question arises as regards the effect of a transfer of an undertaking on the calculation of the duration of the assignment of such a worker. More specifically, must the transferor and the transferee be regarded as being one and the same ‘user undertaking’ for the purposes of that calculation? That is, in essence, the question referred by the Bundesarbeitsgericht (Federal Labour Court, Germany).

3. The particularity of the present case lies in the need to apply those two directives together in order to determine whether the maximum assignment period of the temporary agency worker – who has continued to occupy the same job without interruption – has been exceeded. If so, an employment relationship would be deemed to have arisen directly between the user undertaking and that worker.

II. Legal framework

A. European Union law

1. Directive 2001/23

4. Article 1(1)(a) and (b) of Directive 2001/23 provides:

‘(a) This Directive shall apply to any transfer of an undertaking, business, or part of an undertaking or business to another employer as a result of a legal transfer or merger.

(b) Subject to subparagraph (a) and the following provisions of this Article, there is a transfer within the meaning of this Directive where there is a transfer of an economic entity which retains its identity, meaning an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary.’

5. The first sentence of Article 3(1) of that directive provides:

‘The transferor’s rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.’

2. Directive 2008/104

6. Recitals 10, 11, 12 and 15 of Directive 2008/104 state:

‘(10) There are considerable differences in the use of temporary agency work and in the legal situation, status and working conditions of temporary agency workers within the European Union.

(11) Temporary agency work meets not only undertakings’ needs for flexibility but also the need of employees to reconcile their working and private lives. It thus contributes to job creation and to participation and integration in the labour market.

(12) This Directive establishes a protective framework for temporary agency workers which is non-discriminatory, transparent and proportionate, while respecting the diversity of labour markets and industrial relations.

…

(15) Employment contracts of an indefinite duration are the general form of employment relationship. In the case of workers who have a permanent contract with their temporary-work agency, and in view of the special protection such a contract offers, provision should be made to permit exemptions from the rules applicable in the user undertaking.’

7. Article 1 of that directive, entitled ‘Scope’, provides, in paragraph 1 thereof:

‘This Directive applies to workers with a contract of employment or employment relationship with a temporary-work agency who are assigned to user undertakings to work temporarily under their supervision and direction.’

8. According to Article 2 of that directive, entitled ‘Aim’:

‘The purpose of this Directive is to ensure the protection of temporary agency workers and to improve the quality of temporary agency work by ensuring that the principle of equal treatment, as set out in Article 5, is applied to temporary agency workers, and by recognising temporary-work agencies as employers, while taking into account the need to establish a suitable framework for the use of temporary agency work with a view to contributing effectively to the creation of jobs and to the development of flexible forms of working.’

9. Article 3 of that directive, entitled ‘Definitions’, provides as follows, in paragraph 1 thereof:

‘For the purposes of this Directive:

…

(b) “temporary-work agency” means any natural or legal person who, in compliance with national law, concludes contracts of employment or employment relationships with temporary agency workers in order to assign them to user undertakings to work there temporarily under their supervision and direction;

(c) “temporary agency worker” means a worker with a contract of employment or an employment relationship with a temporary-work agency with a view to being assigned to a user undertaking to work temporarily under its supervision and direction;

(d) “user undertaking” means any natural or legal person for whom and under the supervision and direction of whom a temporary agency worker works temporarily;

(e) “assignment” means the period during which the temporary agency worker is placed at the user undertaking to work temporarily under its supervision and direction;

…’

10. Article 5 of Directive 2008/104, entitled ‘The principle of equal treatment’, provides, in paragraph 5 thereof:

‘Member States shall take appropriate measures, in accordance with national law and/or practice, with a view to preventing misuse in the application of this Article and, in particular, to preventing successive assignments designed to circumvent the provisions of this Directive …’

B. German law

1. The AÜG

11. Paragraph 1 of the Arbeitnehmerüberlassungsgesetz (Law on temporary agency work) of 3 February 1995, ( 4 ) in the version applicable to the dispute in the main proceedings (‘the AÜG’), entitled ‘Assignment of workers, authorisation requirement’, provides:

‘(1) … The assignment of workers may be authorised temporarily up to a maximum period fixed in subparagraph 1b …

…

(1b) The temporary-work agency may not assign the same temporary agency worker to the same user undertaking for more than 18 consecutive months; the user undertaking may not deploy the same temporary agency worker for more than 18 consecutive months. The period of previous assignments by the same or another temporary-work agency to the same user undertaking shall be taken into account in full, if the period between individual consecutive assignments does not exceed three months. A collective agreement concluded by the social partners in the sector in which the assignment takes place may prescribe a maximum assignment period in derogation from that laid down in the first sentence. Derogating collective agreement provisions may be adopted within the scope of application of a collective agreement in accordance with the third sentence at user undertakings not bound by collective agreement by way of a company-level or public service agreement. A company-level or public service agreement reached on the basis of a collective agreement concluded by the social partners in the sector in which the assignment takes place may prescribe a maximum assignment period in derogation from that laid down in the first sentence …’

12. Paragraph 9 of that law, entitled ‘Invalidity’, provides as follows, in subparagraph 1(1b) thereof:

‘The following shall be invalid:

…

1b. contracts of employment between temporary-work agencies and temporary agency workers which exceed the maximum permissible assignment period laid down in Paragraph 1(1b), unless the temporary agency worker informs the temporary-work agency or the user undertaking in writing, no later than one month after the maximum permissible assignment period has been exceeded, that he or she is maintaining his or her contract of employment with the temporary-work agency …’

13. Paragraph 10 of that law, entitled ‘Legal consequences of invalidity’, is worded as follows, in the first sentence of subparagraph 1 thereof:

‘Where the contract concluded between a temporary-work agency and a temporary agency worker is invalid under Paragraph 9, an employment relationship between the user undertaking and the temporary agency worker shall be deemed to have come into being on the date of commencement of the assignment agreed between the user undertaking and the temporary-work agency; where that contract does not become invalid until after the temporary agency worker has started working at the user undertaking, the employment relationship between the user undertaking and the temporary agency worker shall be deemed to have come into being at the time when the contract became invalid …’

2. The BGB

14. In accordance with Paragraph 242 of the Bürgerliches Gesetzbuch (Civil Code; ‘the BGB’), entitled ‘Performance in good faith’:

‘The obligor must perform in a manner consistent with good faith, taking into account accepted practice.’

15. Paragraph 613a of the BGB, entitled ‘Rights and obligations in the event of transfer of undertakings’, states:

‘(1) If a business or part of a business passes to another owner by legal transaction, then the latter succeeds to the rights and obligations under the employment relationships existing at the time of transfer. Where those rights and obligations are subject to the provisions of a collective agreement or company-level agreement, they shall be incorporated into the employment relationship between the new employer and the employee and may not be amended in a manner unfavourable to the employee within a year of the date of the transfer. The second sentence shall not apply if the rights and obligations under the new employer are governed by the provisions of a different collective agreement or company-level agreement. The rights and obligations may be altered before the expiry of the period specified in the second sentence if the collective agreement or company-level agreement ceases to apply or if the terms of another collective agreement, which the new employer and the employee agree is applicable, are not binding on both parties.

(2) The former employer shall be jointly and severally liable with the new owner in respect of the obligations under subparagraph 1 in so far as such obligations arose before the date of the transfer and fall to be met within a year of that date. However, where such obligations fall to be met after the date of the transfer, the former employer shall be liable only in respect of the period before the date of the transfer.’

…

III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

16. From 16 June 2017, S O was employed as a temporary agency worker, within the meaning of Article 3(1)(d) of Directive 2008/104, fulfilling product orders in the logistics department of an undertaking specialising in the production of sanitary installations (‘the production undertaking’). He performed his duties at the production site, where the products are packed, stored and prepared for transport. The production undertaking was at that time the ‘user undertaking’ within the meaning of Article 3(1)(d) of that directive. On 1 July 2018, that logistics department was transferred to company G, belonging to the same group as the production undertaking. S O continued to be assigned to the same job, without interruption, until 6 April 2022.

17. S O claimed that an employment relationship had arisen between him and company G as of 16 December 2018, and, in the alternative, at later dates, because the statutory maximum assignment period, as provided for in the first sentence of Paragraph 1(1b) of the AÜG and pursuant to Paragraph 10(1) of that law, had been exceeded, on the ground that the production undertaking, as transferor, and company G, as transferee, should be regarded as being one and the same ‘user undertaking’ within the meaning of that law.

18. For its part, company G argued that the maximum assignment period starts to run again if the user undertaking is transferred to a new owner, including where the temporary agency worker continues to be assigned to the same job after the transfer. In its view, that maximum assignment period should be calculated in relation to the legal entity concerned, and not in relation to the undertaking as such.

19. S O brought an action against company G before the Arbeitsgericht (Labour Court, Germany), which dismissed it. S O brought an appeal against that judgment before the Landesarbeitsgericht (Higher Labour Court, Germany), which amended that judgment and found, inter alia, that an employment relationship had existed between the two parties with effect from 16 June 2021. Those parties brought an appeal on a point of law against that judgment before the Bundesarbeitsgericht (Federal Labour Court), the referring court.

20. The referring court notes, first, that, according to the first sentence of Paragraph 1(1b) of the AÜG, a temporary-work agency may not assign the same temporary agency worker to the same user undertaking for more than 18 consecutive months, that provision being intended to give concrete expression to the criterion laid down in Article 1(1) of Directive 2008/104 that temporary agency workers be assigned to work ‘temporarily’. Moreover, in accordance with the first sentence of Paragraph 10(1) of that law, an employment relationship is established between the user undertaking and the temporary agency worker where the contract of employment between the temporary-work agency and the temporary agency worker is invalid, inter alia, under Paragraph 9(1)(1b) of that law. ( 5 ) Accordingly, if a temporary agency worker remains employed at the user undertaking after that undertaking has been transferred, the question arises whether the transferor and the transferee should be regarded as being one and the same ‘user undertaking’ within the meaning of the first sentence of Paragraph 1(1b) of that law. That question is the subject of controversy in German legal literature.

21. According to one interpretation, the legal concept of ‘user undertaking’ refers to the undertaking which concludes the assignment contract. The other party to the contract may only be a natural or legal person, and not an undertaking, which does not have legal personality. Furthermore, since the first sentence of Paragraph 1(1b) of the AÜG provides that the temporary-work agency may not assign the same temporary agency worker to ‘the same user undertaking’ for more than 18 consecutive months, it follows that there is a requirement under German law that the persons be formally identical.

22. However, according to the second interpretation, in so far as EU law so requires, the periods of assignment to the transferor and transferee of the undertaking must be added together, having regard to the necessarily temporary nature of a temporary agency worker’s assignment and the continuous nature of that assignment in cases such as that in the main proceedings. Where a temporary agency worker remains employed at a user undertaking following a transfer of that undertaking, his or her situation remains unchanged and, from the point of view of that worker, the user undertaking must be regarded as being the same.

23. The referring court states that the purpose of the AÜG, as apparent from the explanatory memorandum relating to the first sentence of Paragraph 1(1b) thereof, allows for two interpretations of the concept of ‘user undertaking’, namely, on the one hand, a ‘formal understanding’, based on the persons being legally identical, and, on the other hand, an ‘evaluative assessment’, according to which the transferor and transferee should be regarded as being one and the same user undertaking. However, Article 3(1)(d) of Directive 2008/104, the interpretation of which is decisive for the way in which the term ‘same user undertaking’, within the meaning of the first sentence of Paragraph 1(1)(b) of that law, is to be understood, could preclude a formal understanding and require the application of the evaluative assessment.

24. In that regard, if the Court were always to regard a given person with legal personality to be a ‘user undertaking’, the statutory maximum assignment period for a temporary agency worker would have to be calculated separately according to the periods of assignment to the transferor and the transferee. Such an approach is supported by the Court’s case-law according to which the employment relationship with ‘a’ user undertaking is, by its very nature, temporary. ( 6 ) Furthermore, the Court has held that the term ‘temporarily’ characterises not the job which must be occupied at the user undertaking but the arrangements for the assignment of a worker to that undertaking. ( 7 )

25. In that situation, if the maximum permissible assignment period were to recommence on each transfer of an undertaking, it could result in the temporary agency worker, occupying the same job in the same establishment, no longer being only temporarily employed. The referring court states that, in so far as the Court attaches considerable importance to the protection of temporary agency workers against permanent assignment, ( 8 ) the interpretation of Directive 2008/104 could require a calculation based on the employment of the temporary agency worker at the same undertaking. If the periods of assignment to the transferor and the transferee of the undertaking had to be added together, it would be necessary to determine whether that directive is therefore applicable or whether, where the total duration of the assignment exceeds a period which is merely temporary, it is necessary only to monitor misuse ( 9 ) in order to prevent circumvention of the very essence of the provisions of that directive. In that regard, the Court’s case-law according to which an employment relationship will fall within the scope of Directive 2008/104 only where, when the contract of employment is concluded and each of the assignments is effectively made, an employer has the intention to assign the worker concerned, temporarily, to a user undertaking ( 10 ) would appear to militate in favour of merely monitoring misuse.

26. Secondly, where the transferor and the transferee are not always the same ‘user undertaking’ within the meaning of Article 3(1)(d) of Directive 2008/104, the question arises as to whether that is the case in circumstances such as those in the main proceedings, in which the transferor and transferee are part of the same group and, moreover, the temporary agency worker is assigned without interruption to the same job. According to the referring court, the case-law of the Court of Justice ( 11 ) indicates that, in the event of a transfer of an undertaking within a group, it is appropriate to make an evaluative assessment and adopt a broad interpretation of the concept of ‘user undertaking’.

27. Thirdly, in the event that it is not necessary to take into account circumstances such as the fact of belonging to the same group, the referring court raises the question of the extent to which it is important to monitor abuses of the law. In that regard, if successive assignments of the same temporary agency worker to the same user undertaking result in a period of service with that undertaking that is longer than what can reasonably be regarded as ‘temporary’ in view of all the relevant circumstances, including, in particular, the specific characteristics of the sector concerned, that could be indicative of misuse of successive assignments within the meaning of the first sentence of Article 5(5) of Directive 2008/104/EC. ( 12 ) In the present case, the referring court proceeds on the basis that, having regard to the periods during which S O was assigned to the transferor and transferee of the undertaking concerned, and in view of the total assignment period from 16 June 2017 to 6 April 2022, that assignment may still be regarded as temporary, which therefore precludes any abuse of the law.

28. In those circumstances, the Bundesarbeitsgericht (Federal Labour Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) When calculating a maximum assignment period laid down in national law in order to give specific expression to the criterion of “temporarily” in Article 1(1) of Directive [2008/104], must, in the event of a transfer of undertakings, the transferor and the transferee always be regarded as one “user undertaking” within the meaning of Article 3(1)(d) of Directive [2008/104]?

(2) If the answer to the first question is in the negative:

When calculating a maximum assignment period laid down in national law in order to give specific expression to the criterion of “temporarily” in Article 1(1) of Directive [2008/104], must, in the event of a transfer of undertakings, the transferor and the transferee be regarded as one “user undertaking” within the meaning of Article 3(1)(d) of Directive [2008/104] if they belong to the same group of undertakings and the same temporary agency worker is assigned without interruption to the same job?

(3) If the answer to the first two questions is in the negative:

Must the transfer of a user establishment be taken into account in the context of monitoring whether, in the case of successive assignments of the same temporary agency worker, the duration can still be regarded as “temporary” [within the meaning of Article 5(5) of Directive 2008/104]? If that question is to be answered in the affirmative, how is that transfer to be taken into account?’

29. Written observations have been submitted by company G, the Italian Government and the European Commission.

IV. Analysis

A. The admissibility of the request for a preliminary ruling

30. Company G argues that, pursuant to the third sentence of Paragraph 1(1b) of the AÜG, it concluded, on 11 April 2018, the Tarifvertrag Logistik (collective agreement on logistics), which provides that the Tarifvertrag zur Leih/Zeitarbeit für die Metall- und Elektroindustrie Nordrhein-Westfalens (collective agreement on temporary agency work in the North Rhine-Westphalia metal and electronics industry; ‘the TV LeiZ’) is applicable. The latter collective agreement derogates from the maximum assignment period of 18 months provided for in the first sentence of Paragraph 1(1b) of the AÜG, in allowing, by means of company-level agreements, the maximum permissible period to be extended to 48 months. Company G submits that it falls within the scope of the TV LeiZ in its capacity as an auxiliary undertaking to company G AG (which itself carried out the logistics activities subsequently transferred to that company) and that it operates in the metal industry. Consequently, under the TV LeiZ, read in conjunction with the company-level agreement concerned, S O could have been assigned for a total period of 48 months. Therefore, in so far as that period was not exceeded in the present case, the question whether, in the event of a transfer of an undertaking, the transferor and the transferee must be regarded as one ‘user undertaking’ within the meaning of Article 3(1)(d) of Directive 2008/104 is irrelevant.

31. In that regard, it is apparent from the order for reference that company G has already claimed before the referring court that the maximum assignment period for S O was extended to 48 months by company-level agreements concluded pursuant to the TV LeiZ. On that point, the referring court considered, in that order for reference, that the TV LeiZ, in the version of 2 February 2017/22 May 2017 (TV LeiZ 2017) and then in that of 8 November 2018 (TV LeiZ 2018), was not applicable to the employment relationship between S O and company G, on the ground that the latter does not operate an auxiliary undertaking in the metal industry for the purposes of that collective agreement and that, consequently, it does not fall within the scope of that agreement.

32. I would observe that, in accordance with the Court’s settled case-law, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. The Court must take account, under the division of jurisdiction between the Court and the national courts, of the factual and legislative context, as described in the order for reference, in which the questions put to it are set. ( 13 )

33. Accordingly, I consider that the questions referred for a preliminary ruling must be answered in the light of the finding made by the referring court that, in the present case, the maximum assignment period for S O is 18 months, as laid down in the first sentence of Paragraph 1(1b) of the AÜG, without having been extended to 48 months by collective agreements.

34. In those circumstances, the request for a preliminary ruling must be held to be admissible.

B. The questions referred for a preliminary ruling

35. By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 3(1)(d) of Directive 2008/104 must be interpreted as meaning that, where a temporary agency worker is assigned to a user undertaking to work temporarily under its supervision and direction, and that undertaking is the subject of a transfer within the meaning of Directive 2001/23 during the period of that assignment, the transferor and the transferee must be regarded as being one and the same ‘user undertaking’ for the purposes of calculating the maximum assignment period for that worker laid down in the applicable national legislation.

36. Under Article 1(1) of Directive 2008/104, that directive applies to workers with a contract of employment or employment relationship with a temporary-work agency who are assigned to user undertakings to work temporarily under their supervision and direction.

37. As is apparent from the Court’s case-law, the assignment of temporary agency workers is a complex situation which is specific to labour law, involving a twofold employment relationship between, on the one hand, the temporary-work agency and the temporary agency worker and, on the other, the temporary agency worker and the user undertaking, as well as a relationship of assignment between the temporary-work agency and the user undertaking. The particularity of that employment relationship lies in the fact that, when a temporary agency worker is assigned, the temporary-work agency retains an employment relationship with that worker, but transfers to the user undertaking the responsibility for supervision and direction which generally lies with all employers, thereby establishing a new relationship of subordination between the temporary agency worker and the user undertaking, whereby that worker provides a service contractually owed by the temporary-work agency to that undertaking and is placed, for that purpose, under the latter’s supervision and direction. ( 14 )

38. Again according to the Court’s case-law, it is apparent both from the wording of Article 1(1) of Directive 2008/104 and from the definitions of the concepts of ‘temporary-work agency’, ‘temporary agency worker’, ‘user undertaking’ and ‘assignment’, within the meaning of Article 3(1)(b), (c), (d) and (e) of that directive, that the employment relationship with a user undertaking is, by its very nature, temporary. In those circumstances, the term ‘temporarily’ in Article 1(1) of Directive 2008/104 is not intended to limit the application of temporary agency work to jobs which are not permanent or must be performed to provide cover, as that term characterises not the job which must be occupied at the user undertaking but the arrangements for the assignment of a worker to that undertaking. Thus, in order for an employment relationship to fall within the scope of that directive, both where the contract of employment concerned is concluded and when each of the assignments is effectively made, an employer must have the intention to assign the worker concerned, temporarily, to a user undertaking. ( 15 )

39. Furthermore, the first sentence of Article 5(5) of Directive 2008/104 requires Member States to take appropriate measures with a view to preventing the allocation of successive assignments to a temporary agency worker designed to circumvent the provisions of that directive as a whole. In particular, Member States must ensure that temporary agency work at the same user undertaking does not become a permanent situation for a temporary agency worker. It is open to the Member States, in that regard, to set, in national law, a specific period beyond which an assignment can no longer, including where successive renewals of the assignment of the same temporary agency worker to the same user undertaking go on for some time, be regarded as temporary. That said, such a period must necessarily, in accordance with Article 1(1) of that directive, be temporary in nature, namely, according to the meaning of that term in everyday language, be limited in time. ( 16 )

40. In that context, it is apparent from the order for reference that the applicable German legislation set a specific period beyond which an assignment of a temporary agency worker can no longer be regarded as temporary. Indeed, according to the first sentence of Paragraph 1(1b) of the AÜG, a temporary-work agency may not assign the same temporary agency worker to the same user undertaking for more than 18 consecutive months. As noted by the referring court, if the temporary agency worker has not informed the temporary-work agency or user undertaking in writing, within one month after the maximum permissible assignment period has been exceeded, that he or she wishes to maintain the employment contract with the temporary-work agency, it follows from Paragraph 9(1)(1b) and the first sentence of Paragraph 10(1) of that law that an employment relationship then arises between the user undertaking and the temporary agency worker.

41. In the case in the main proceedings, S O submits that that maximum assignment period of 18 months has been exceeded and that an employment relationship has therefore arisen between him and company G. The particularity of this case is that, while he was assigned to the logistics department of the production undertaking at which he was employed, that department was taken over by company G as part of a transfer of an undertaking within the meaning of Directive 2001/23. Under Article 1(1)(b) of that directive, there is a ‘transfer’ within the meaning of that directive where there is a transfer of an economic entity which retains its identity, meaning an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary. In the present case, it is not disputed that such a transfer of an undertaking took place between the production undertaking and company G.

42. In that regard, I would observe that, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, the latter may be required to consider provisions of EU law which the national court has not referred to in its questions. ( 17 ) Accordingly, in order to provide a useful answer to the referring court, account should also be taken of the provisions of Directive 2001/23.

43. In the present case, the referring court is uncertain as to how a transfer of an undertaking should be taken into account in order to calculate the statutory maximum assignment period for a temporary agency worker. In the light of Directive 2008/104, as that court has stated, the question is how to interpret the concept of ‘user undertaking’, within the meaning of Article 3(1)(d) of that directive, where a transfer of an undertaking takes place during the assignment, with a view to determining the duration of the assignment.

44. In accordance with the Court’s settled case-law, for the purpose of interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part. ( 18 )

45. In the first place, as regards the wording of Article 3(1)(d) of Directive 2008/104, that provision defines a ‘user undertaking’ as ‘any natural or legal person for whom and under the supervision and direction of whom a temporary agency worker works temporarily’. A user undertaking differs from a ‘temporary-work agency’, which, according to Article 3(1)(b) of that directive, means ‘any natural or legal person who, in compliance with national law, concludes contracts of employment or employment relationships with temporary agency workers in order to assign them to user undertakings to work there temporarily under their supervision and direction’.

46. Company G, referring to some German legal literature, submits in its written observations that the decisive factor when defining the concept of ‘employer’, within the meaning of the AÜG, is that the temporary agency worker is assigned to the user undertaking as a legal entity, and not that the work is carried out within a particular undertaking or in a specific job. According to that formal interpretation of the concept of ‘user undertaking’, a transfer of an undertaking would put an end to that worker’s assignment to the transferor undertaking and cause a new period to start to run for the purposes of Article 1 of that law, even where the transferee continues to employ that worker. That new period is justified by the fact that Paragraph 613a of the BGB does not apply to the employment relationship between the temporary agency worker and the user undertaking.

47. As regards EU law, I note that, while it is clear from Article 3 of Directive 2008/104 that the temporary-work agency and the user undertaking must constitute two separate legal entities, it cannot be inferred from that article that, in the case of a transfer of an undertaking, different user undertakings must be distinguished on the basis of their own legal personalities. Neither that article nor any other provision of that directive refers to the occurrence of such a transfer. Accordingly, the wording of Article 3(1)(b) and (d) of that directive cannot, in itself, lead to the conclusion that the transferor undertaking and the transferee undertaking cannot constitute one and the same ‘user undertaking’.

48. In the second place, as regards the context of Article 3(1)(d) of Directive 2008/104, namely, in the present case, that of a transfer of an undertaking, I would recall that the first subparagraph of Article 3(1) of Directive 2001/23 enshrines the principle that the transferor’s rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer are to be transferred to the transferee. According to the Court’s case-law, that directive is intended to safeguard the rights of employees in the event of a change of employer by enabling them to continue to work for the new employer on the same terms and conditions as those agreed with the transferor. The purpose of that directive is to ensure, as far as possible, that the contract of employment or employment relationship continues unchanged with the transferee, in order to prevent the workers concerned from being placed in a less favourable position solely as a result of the transfer. ( 19 ) The Court has also held that a transfer of an undertaking within the meaning of that directive presupposes, in particular, a change in the legal or natural person who is responsible for the economic activity of the entity transferred and who, in that capacity, establishes working relations as employer with the staff of that entity, in some cases despite the absence of contractual relations with those employees. ( 20 )

49. Consequently, Directive 2001/23 supports the interpretation that a transfer of the user undertaking does not interrupt the assignment of a temporary agency worker but, on the contrary, ensures the continuity of that assignment, even in the absence of a contractual relationship between that worker and that undertaking. In other words, as the Commission stated in its written observations, to consider that the periods of assignment to the transferor undertaking and the transferee undertaking must be taken into account separately for the purposes of calculating the duration of the assignment may undermine the safeguarding of employees’ rights and, therefore, the effectiveness of that directive.

50. As regards, in particular, the period of service, I note that the Court has held that, in calculating rights of a financial nature, such as compensation for termination of a contract or salary increases, the transferee must take into account the entire period of service of the employees transferred, in so far as his or her obligation to do so derives from the employment relationship between those employees and the transferor, and in accordance with the terms agreed in that relationship. ( 21 ) In the present case, if a breach of the maximum assignment period of the temporary agency worker does not give rise to a right to financial compensation but results in the formation of an employment relationship between that worker and the user undertaking, the same logic must apply as regards the legal requirements in relation to the period of service. It follows that, in the case of a transfer of the user undertaking, the transferee is required to take into account the duration of the assignment to the transferor for the purposes of calculating the statutory maximum assignment period.

51. In the third and last place, the interpretation that the transferor and transferee must be regarded as being one and the same ‘user undertaking’ for the purposes of calculating the statutory maximum assignment period for a temporary agency worker is supported by the objectives pursued by Directive 2008/104. According to the case-law of the Court, it is clear from recitals 10 and 12 of that directive that, given that there are considerable differences in the use of temporary agency work and in the legal situation, status and working conditions of temporary agency workers within the European Union, that directive is intended to establish a protective framework for those workers which is non-discriminatory, transparent and proportionate, while respecting the diversity of labour markets and industrial relations. Accordingly, under Article 2 of that directive, the purpose of that directive is to ensure the protection of temporary agency workers and to improve the quality of temporary agency work by ensuring that the principle of equal treatment is applied to those workers and by recognising temporary-work agencies as employers, while taking into account the need to establish a suitable framework for the use of that type of work with a view to contributing effectively to the creation of jobs and to the development of flexible forms of working. Furthermore, recital 11 of Directive 2008/104 states that that directive is intended to meet not only undertakings’ needs for flexibility, but also employees’ need to reconcile their working and private lives, and thus contributes to job creation and to participation and integration in the labour market. That directive is therefore designed to reconcile the objective of flexibility sought by undertakings and the objective of security corresponding to the protection of workers. That twofold objective thus gives expression to the intention of the EU legislature to bring the conditions of temporary agency work closer to ‘normal’ employment relationships, especially since, in recital 15 of that directive, the EU legislature has expressly stated that employment contracts for an indefinite term are the general form of employment. That directive therefore also aims to stimulate temporary agency workers’ access to permanent employment at the user undertaking. ( 22 )

52. To that effect, the first sentence of Article 5(5) of Directive 2008/104 states that Member States must take appropriate measures with a view to preventing misuse in the application of that article. It follows from that provision that the Member States must ensure that temporary agency work at the same user undertaking does not become a permanent situation for a temporary agency worker. ( 23 )

53. Just as the allocation of successive assignments to the same user undertaking is liable to jeopardise the ‘temporary’ nature of those assignments, transfers of undertakings may also call into question that temporary nature where a temporary agency worker is assigned to a user undertaking that is the subject of a transfer. Although employed by separate legal entities, that worker continues to pursue his or her professional activity within the same undertaking before and after the transfer. If it were to be considered that, as a result of the transfer of a business or part of an undertaking or business, that worker’s assignment to the transferor undertaking ends and a new assignment with the transferee undertaking begins, it would be possible to circumvent the provisions of Directive 2008/104 as regards the maximum assignment period for that worker, in this case 18 months. Furthermore, if subsequent transfers of undertakings were to take place during the assignment, the temporary agency worker concerned could be regarded as covering the staffing needs of the entity concerned on a permanent basis.

54. Therefore, the transfer of the user undertaking must be taken into account for the purposes of calculating the duration of the assignment in order not to undermine the effectiveness of that directive as regards the temporary nature of the assignment of a temporary agency worker.

55. Since the employment relationship with a user undertaking is, by its nature, temporary, such account must be taken in the case of any transfer of an undertaking, within the meaning of Directive 2001/23, without it being necessary for the transferor and the transferee to belong to the same group of undertakings or for the temporary agency worker to be assigned to a user undertaking and to the same job. ( 24 ) Furthermore, in so far as, in the present case, the national legislation laid down a maximum assignment period for the temporary agency worker, there is no need to consider the possibility of misuse of successive assignments, within the meaning of the first sentence of Article 5(5) of Directive 2008/104, in a situation where the period of service with the user undertaking is longer than what may reasonably be regarded as ‘temporary’. ( 25 )

56. In the light of all of the foregoing, I am of the view that, Article 3(1)(d) of Directive 2008/104 must be interpreted as meaning that, where a temporary agency worker is assigned to a user undertaking to work temporarily under its supervision and direction, and that undertaking is the subject of a transfer within the meaning of Directive 2001/23 during the period of that assignment, the transferor and the transferee must be regarded as being one and the same ‘user undertaking’ for the purposes of calculating the maximum assignment period for that worker laid down in the applicable national legislation.

V. Conclusion

57. In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Bundesarbeitsgericht (Federal Labour Court, Germany) as follows:

Article 3(1)(d) of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work

must be interpreted as meaning that where a temporary agency worker is assigned to a user undertaking to work temporarily under its supervision and direction, and that undertaking is the subject of a transfer within the meaning of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses during the period of that assignment, the transferor and the transferee must be regarded as being one and the same ‘user undertaking’ for the purposes of calculating the maximum assignment period for that worker laid down in the applicable national legislation.

1 Original language: French.

i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

2 Directive of the European Parliament and of the Council of 19 November 2008 on temporary agency work (OJ 2008 L 327, p. 9).

3 Council Directive of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ 2001 L 82, p. 16).

4 BGBl. 1995 I, p. 158.

5 Namely, when the maximum permissible assignment period laid down in Paragraph 1(1b) of the AÜG is exceeded, unless the temporary agency worker informs the temporary-work agency or user undertaking in writing, no later than one month after that period has been exceeded, that he or she wishes to maintain the employment contract with the temporary-work agency.

6 The referring court refers, in that regard, to the judgment of 14 October 2020, KG (Successive assignments in the context of temporary agency work) (C‑681/18, EU:C:2020:823, paragraph 61).

7 The referring court refers to the judgment of 17 March 2022, Daimler (C‑232/20, ‘the judgment in Daimler ’, EU:C:2022:196, paragraph 31).

8 See the judgment in Daimler (paragraphs 60 to 63 and the case-law cited).

9 The judgment in Daimler (paragraph 61).

10 The referring court makes reference to the judgment of 22 June 2023, ALB FILS Kliniken (C‑427/21, EU:C:2023:505, paragraph 44).

11 Judgment of 21 October 2010, Albron Catering (C‑242/09, EU:C:2010:625, paragraph 32).

12 The referring court cites, in that regard, the judgment in Daimler (paragraph 60).

13 See judgment of 15 January 2026, Verein für Konsumenteninformation (Commission collected by an intermediary) (C‑45/24, EU:C:2026:2, paragraph 26 and the case-law cited).

14 Judgment of 24 October 2024, Omnitel Comunicaciones and Others (C‑441/23, EU:C:2024:916, paragraphs 56 and 57 and the case-law cited).

15 See, to that effect, judgment of 22 June 2023, ALB FILS Kliniken (C‑427/21, EU:C:2023:505, paragraphs 42 to 44 and the case-law cited).

16 See the judgment in Daimler (paragraphs 56 and 57 and the case-law cited). Regarding the ‘temporary nature’, for the purposes of Directive 2008/104, of the assignment of a temporary agency worker to a user undertaking, see Kullmann, M., ‘The “Temporariness” of Temporary Agency Work Assignments’, European Labour Law Journal , 2024, Vol. 15, No 1, pp. 4-16.

17 See, to that effect, judgment of 5 February 2026, Aleb (C‑718/24, EU:C:2026:68, paragraph 67 and the case-law cited).

18 Judgment of 12 February 2026, Stichting Koskea (C‑490/24, EU:C:2026:89, paragraph 23 and the case-law cited).

19 Judgment of 24 June 2021, Obras y Servicios Públicos and Acciona Agua (C‑550/19, EU:C:2021:514, paragraph 102 and the case-law cited).

20 See judgment of 21 October 2010, Albron Catering (C‑242/09, EU:C:2010:625, paragraph 28).

21 See judgment of 24 June 2021, Obras y Servicios Públicos and Acciona Agua (C‑550/19, EU:C:2021:514, paragraph 107 and the case-law cited).

22 See judgment of 12 May 2022, Luso Temp (C‑426/20, EU:C:2022:373, paragraphs 41 to 43 and the case-law cited).

23 See point 39 of the present Opinion.

24 See, in that regard, case-law cited in point 38 of the present Opinion. See also the Opinion of Advocate General Tanchev in Daimler (C‑232/20, EU:C:2021:727, point 41).

25 See, in that regard, the judgment in Daimler (paragraph 60), cited by the referring court.