Last week I was invited to the EU-commission’s 8th meeting of the expert group on the implementation on the Agency Work Directive (AWD). I was asked to give the opinion on the Swedish implementation of the AWD. Here it is:

1. Under article 10 member states shall provide for appropriate measures for non-compliance with the directive. The Swedish law on agency work was implemented January 1th 2013.
2. Did the law provide for effective remedies by law? No, there is no implementation. Same goes for articles 4.1 (lifting unjustified restrictions) and 6.2 (recruitment fee). No implementation.
3. In Sweden most labour market regulations are found in collective agreements. Also unjustified ones. Such as restrictions on the use of agency workers.
4. This states a real problem in Sweden, since there are no effective legal remedies for third party action. Collective agreements are sacred, only parties of them can challenge them.
5. Third party action is basically prohibited.
6. So, what are the options for agencies, agency workers and federations facing restrictions? You could try to convince parties of a collective agreement to breach to agreement. This is hardly going to succeed. You could introduce legal action for damages. This is hardly going to happen. Nor is an action for damages an effective legal remedy.
7. Sweden has not provided for appropriate measures, nor has it taken any steps to insure that the social partners introduce the provisions.
8. There is therefore an enormous gap in the Swedish implementation of the directive.
9. Maybe the Commission wants to see this as a matter of national procedural autonomy, but it will have to address this issue unless you want a Laval II case before the European Court of Justice.
10. Thank you for your attention.