Official Journal of the European Union

C series

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C/2024/7293

16.12.2024

(Case C-441/23,

Omnitel Comunicaciones and Others)

(Reference for a preliminary ruling - Social policy - Directive 2008/104/EC - Temporary agency work - Article 3(1) - Temporary-work agency - User undertaking - Definition - Assignment of a worker - Contract for the provision of services - Article 5(1) - Principle of equal treatment - Directive 2006/54/EC - Article 15 - Maternity leave - Invalid or unfair dismissal - Declaration that the temporary-work agency and the user undertaking are jointly and severally liable)

(C/2024/7293)

Language of the case: Spanish

Referring court

Parties to the main proceedings

Applicant: LM

Defendants: Omnitel Comunicaciones SL, Microsoft Ibérica SRL, Fondo de Garantía Salarial (Fogasa), Indi Marketers SL, Leadmarket SL

Other party: Fiscalía de la Comunidad de Madrid

Operative part of the judgment

1.Article 3(1)(b) 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 that directive applies to any natural or legal person who enters into a contract of employment or an employment relationship with a worker in order to assign him or her to a user undertaking to work there temporarily under that undertaking’s supervision and direction, and who assigns that worker to that undertaking, even though that person is not recognised by domestic legislation as a temporary-work agency because the person does not have the relevant administrative authorisation.

2.Article 3(1)(b) to (d) of Directive 2008/104

must be interpreted as meaning that the concept of ‘temporary agency work’ for the purposes of that provision covers the situation in which a worker is assigned to a user undertaking by an undertaking whose activity is to conclude contracts of employment or employment relationships with workers with a view to assigning them to a user undertaking for a given period of time, provided that that worker is under the supervision and direction of the user undertaking and provided that that undertaking, first, imposes on the worker the services to be performed, the manner of their performance and the requirement to comply with its instructions and internal rules, and, secondly, monitors and supervises the way in which the worker performs his or her duties.

3.Article 5(1) of Directive 2008/104

must be interpreted as meaning that a temporary agency worker assigned to a user undertaking within the meaning of that directive must, for the duration of his or her assignment at that undertaking, receive a salary that is at least equal to that which he or she would have received if he or she had been recruited directly by that undertaking.

4.The fourth and fifth questions referred by the Tribunal Superior de Justicia de Madrid (High Court of Justice, Madrid, Spain) are inadmissible.

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OJ C C/2023/1432.

ELI: http://data.europa.eu/eli/C/2024/7293/oj

ISSN 1977-091X (electronic edition)

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