Complaint to the European Commission

Complaint to the European Commission concerning Sweden’s failure to implement Articles 4 and 10 in Directive 2008/104/EC on Temporary Agency Work.

SUMMARY

Bemanningsföretagen submits that the Kingdom of Sweden, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Articles 4 and 10 of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work (hereinafter the “Directive”), * has failed to fulfil its obligations under Article 11 of that Directive. Thereby, Sweden has also failed to fulfil its obligations under Article 4(3) TEU as well as under Articles 45 and 49 TFEU.

Although the period for implementation of the Directive expired on 5 December 2011, Sweden has not yet implemented the prohibition in Article 4(1) against unjustified prohibitions and restrictions on the use of temporary agency work into Swedish law.

The newly proposed Bill prop. 2011/12:178 Lag om uthyrning av arbetstagare intended to implement the Directive into Swedish law does not include Article 4(1) or in any other way remedy the lack of an express provision concerning unjustified and disproportionate national prohibitions and restrictions on the use of temporary agency work. The proposed Bill, as well as the preparatory works leading to the Bill, even ignore the fact that, in the absence of express implementation, individuals will need to rely on the direct effect of Article 4(1) in order to invoke their rights under this provision before national courts and authorities, including against the social partners.

Worse, the preparatory works create uncertainty as regards the direct effect of Article 4(1), as they indicate that the prohibition should be applied only in the context of the review of existing prohibitions and restrictions on the use of temporary agency work in national legislation and collective agreements to be undertaken under Article 4(2)-4(3) of the Directive.

In addition, Sweden has not undertaken a satisfactory review of existing restrictions and prohibitions on use of temporary agency work in collective agreements and practices as required under Article 4(2)-4(3) of the Directive. The Swedish Government called upon the Swedish social parties to carry out this review. However, most labour organisations, instead of identifying and analysing all prohibitions and restrictions in collective agreements and practices, have simply stated that no such restrictions or prohibitions exist and that, even if they should exist, they would be justified on grounds of general interests.

Indeed, several Swedish labour organisations seem to consider that temporary agency work as such constitutes a threat to non-agency work, and that control of temporary agency work therefore is indispensable in order to ensure that the labour market functions properly and that abuses are prevented. Swedish labour organisations even suggest, due to the Swedish translation of Article 4(1), that the grounds of general interest referred to in Article 4(1) covers “the protection of workers” in general, i.e. the protection of non-agency workers as opposed to (or even against) temporary agency workers. However, it follows from the other language versions of the Directive that the grounds of general interest invoked should relate “in particular to the protection of temporary agency workers” (italics added). Thus, the review undertaken by the Swedish social partners must be considered insufficient and does not fulfil the requirements posed by Article 4(2)-4(3) in the Directive – which must at least be understood as also requiring a proportionality test.

Lastly, Swedish law provides no effective legal remedies allowing action to be taken against provisions in collective agreements that may infringe Article 4(1) of the Directive. This constitutes in itself an infringement of Article 10 in the Directive, under which the Member States shall provide for appropriate measures in the event of non-compliance with the Directive by user undertakings.

Bemanningsföretagen furthermore submits that Sweden’s failure to effectively implement Article 4(1) in the Directive and the maintaining of numerous unjustified and disproportionate prohibitions and restrictions by the social partners on the use of temporary agency work also constitute an infringement of Sweden’s obligations under Articles 45 and 49 TFEU on free movement of workers and services.

Indeed, Article 4(1) aims to facilitate the free movement of temporary agency workers and temporary work-agencies who, together with the clients of the latter, have a legitimate expectation not to meet unjustified and disproportionate restrictions on use of temporary agency work in Sweden. Without express implementation of Article 4(1), a number of complicated questions arise as to the relationship between the Treaty Articles on free movement and harmonising directives, in particular in horizontal or “semi-horizontal” relations.

Bemanningsföretagen therefore calls on the Commission to take legal action against Sweden before the EU Court of Justice under Article 258 TFEU due to the failure of Sweden to adequately and effectively implement the Directive.

*/ OJ L 327, p. 9–14.

Link to the complete text of the complaint (PDF)