ECLI:EU:C:2026:517

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OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 25 June 2026 (1)

Case C‑172/25

CP,

Personal Sea Management SRL

Sulina Logistics SRL

(Request for a preliminary ruling from the Curtea de Apel Constanţa (Court of Appeal, Constanţa, Romania))

( Reference for a preliminary ruling – Social policy – Temporary agency work – Directive 2008/104/EC – Article 5(1) – Principle of equal treatment – Basic working and employment conditions – Dismissal decision – Difference in treatment between a worker who is recruited directly by the user undertaking and a worker who has been assigned by a temporary-work agency )

I. Introduction

1. The present request for a preliminary ruling, made by the Curtea de Apel Constanţa (Court of Appeal, Constanţa, Romania), concerns the interpretation of the principle of equal treatment, laid down in the first subparagraph of Article 5(1) of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work, (2) read in conjunction with Article 2 and Article 3(1)(f) of that directive.

2. The request was made in the course of proceedings between CP, a temporary agency worker, and Personal Sea Management SRL, a temporary-work agency, concerning the lawfulness of his dismissal by that undertaking. The reason for that dismissal was the assignment which that worker carried out at Sulina Logistics SRL, a user undertaking, being terminated early.

3. The referring court asks the Court to clarify the scope of the principle of equal treatment between temporary agency workers and workers recruited directly by a user undertaking. In particular, does that principle apply to conditions governing dismissal?

4. In order to answer that question, account must be taken of the fact that temporary agency work is a complex situation which is specific to labour law. (3) That form of work is characterised by a triangular relationship between the temporary agency worker, a temporary-work agency and a user undertaking. That specific feature largely determines the answer which, in my view, should be given to the referring court, namely that conditions governing dismissal do not fall within the scope of the principle of equal treatment laid down in the first subparagraph of Article 5(1) of Directive 2008/104, read in conjunction with Article 2 and Article 3(1)(f) of that directive.

II. Legal framework

A. Directive 2008/104

5. Article 1 of Directive 2008/104, entitled ‘Scope’, provides, in paragraph 1:

‘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.’

6. Article 2 of that directive, entitled ‘Aim’, states:

‘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.’

7. Article 3 of that directive, entitled ‘Definitions’, provides in paragraph 1(f):

‘For the purpose of this Directive:

…

(f) “basic working and employment conditions” means working and employment conditions laid down by legislation, regulations, administrative provisions, collective agreements and/or other binding general provisions in force in the user undertaking relating to:

(i) the duration of working time, overtime, breaks, rest periods, night work, holidays and public holidays;

(ii) pay.’

8. Article 5 of that directive, entitled ‘The principle of equal treatment’, provides, in the first subparagraph of paragraph 1:

‘The basic working and employment conditions of temporary agency workers shall be, for the duration of their assignment at a user undertaking, at least those that would apply if they had been recruited directly by that undertaking to occupy the same job.’

B. Romanian law

9. Article 62(3) of Legea nr. 53/2003 privind Codul muncii (Law No 53/2003 on the Labour Code) (4) of 24 January 2003 (5) states:

‘The decision [to dismiss] shall be issued in writing and, unless it is to be void, it must state the reasons in fact and in law for the decision and must specify the period within which it may be challenged and the court before which it may be challenged.’

10. Article 65 of the Labour Code provides:

‘(1) Dismissal for reasons not related to the individual employee concerned shall consist of the termination of the individual contract of employment resulting from the abolition of the post occupied by the employee, for one or more reasons unrelated to him or her.

(2) The abolition of the post must actually take place, and there must be a genuine and serious reason for the abolition.’

11. Article 76 of that code is worded as follows:

‘The dismissal decision shall be notified to the employee in writing and must contain:

(a) the grounds for dismissal;

(b) the notice period;

(c) the criteria for determining the order of priority within the meaning of Article 69(2)(d) in the event of collective redundancies only;

(d) the list of all available posts with the employer and the period within which employees must opt to fill a vacancy, in accordance with the conditions laid down in Article 64.’

12. Article 95(4) of that code provides:

‘The temporary employment contract shall cease at the end of the assignment for which it was concluded or if the user discontinues those services before the end of the assignment, in accordance with the terms of the contract relating to the assignment.’

13. Article 100 of that code is worded as follows:

‘The temporary-work agency which dismisses a temporary staff member before the end of the temporary employment contract, for reasons other than disciplinary reasons, shall be required to comply with the statutory provisions relating to the termination of the individual contract of employment for reasons not related to the individual employee.’

III. Facts of the main proceedings and the question referred for a preliminary ruling

14. On 27 June 2023, a temporary employment contract was concluded between CP and Personal Sea Management, in its capacity as a temporary-work agency. Under that contract, CP was required, on the employer’s instructions, to carry out a temporary assignment with Sulina Logistics, in the performance of a contract concluded between those two companies on 30 May 2023.

15. On 28 September 2023, Sulina Logistics informed Personal Sea Management of its decision to terminate CP’s assignment. On that date, it informed CP of the reorganisation of its organisational structure and of the abolition of the post of head of section/chief mechanic, which CP was occupying, offering him a transfer to the post of mechanic.

16. On 29 September 2023, Personal Sea Management informed CP that, in view of Sulina Logistics’ decision to terminate his assignment, it was terminating his temporary employment contract with effect from 28 October 2023, in accordance with Article 95(4) of the Labour Code.

17. Consequently, CP brought an action before the Tribunalul Constanţa (Regional Court, Constanţa, Romania) challenging the lawfulness of his dismissal. He claimed, first, that, in the light of Article 65(2) of the Labour Code, the abolition of the post does not satisfy the statutory conditions, namely there is no genuine and serious reason for it. Secondly, the dismissal decision does not comply with the formal conditions, which renders it incurably void, and the provisions of Article 76 of the Labour Code have not been complied with.

18. By judgment of 10 June 2024, the Tribunalul Constanţa (Regional Court, Constanţa) dismissed the action. It held that, in the light of Article 100 of the Labour Code, discontinuation by the user undertaking of the temporary agency worker’s services constitutes sufficient grounds for dismissal in the relationship between that worker and the temporary-work agency, since that discontinuation by the user undertaking constitutes a genuine and serious reason for abolishing the post. The court of first instance also held that the law does not lay down any condition for such discontinuation, which may be due either to a reorganisation of the user undertaking or to the fact that that undertaking no longer wishes certain activities to be performed by the worker provided by the temporary-work agency.

19. CP brought an appeal against that judgment before the Curtea de Apel Constanţa (Court of Appeal, Constanţa).

20. That court notes that the Court of Justice has already held, as regards the framework agreement on fixed-term work, concluded on 18 March 1999, annexed to Directive 1999/70/EC, (6) that the expression ‘employment conditions’ should be understood to mean the rights, entitlements and obligations that define a given employment relationship, including both the conditions under which a person takes up employment and those concerning the termination of that relationship. (7) According to that court, that case-law is also applicable to Directive 2008/104, which governs the principle of equal treatment in the same way. That court has doubts as to whether that principle has been observed in the dispute before it.

21. In that regard, the referring court starts from the finding that, if the user undertaking had engaged CP itself, it would have been required, in accordance with Articles 65 and 76 of the Labour Code, to justify the abolition of the post by citing a genuine and serious reason and to demonstrate that the post was actually being abolished. Moreover, it would have been mandatory, unless the dismissal decision is to be incurably void, for all those elements to be set out in the dismissal decision.

22. However, as that court points out, where the user undertaking makes use of that worker, who is employed by a temporary-work agency, it may discontinue the services of that temporary agency worker without any justification and without complying with any formal condition concerning discontinuation. That user undertaking is therefore not subject to the requirements of Articles 65 and 76 of the Labour Code, since Article 95(4) of that code does not contain any substantive or formal conditions concerning such discontinuation.

23. That court explains that, even if the temporary-work agency is subject to the obligation laid down in Article 100 of the Labour Code, the discontinuation, even if discretionary, decided by the user undertaking constitutes a ground for termination of the employment relationship between the temporary-work agency and the temporary agency worker, under Article 95(4) of that code.

24. According to the referring court, it follows that, under that provision, a worker who is employed by a temporary-work agency does not enjoy the same protection against unlawful dismissal as if he or she were employed by the user undertaking.

25. That court states that, contrary to what is provided for in Article 2 of Directive 2008/104, the user undertaking may thus avoid the obligations laid down by national legislation concerning the dismissal of workers, which would create a situation of uncertainty for those workers, in breach of the principle of equal treatment.

26. In those circumstances, the Curtea de Apel Constanţa (Court of Appeal, Constanţa) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must Article 5(1) of Directive [2008/104] concerning the “principle of equal treatment”, read in conjunction with Article 2 of that directive, be interpreted as precluding national legislation which provides that one of the grounds for terminating the individual contract of employment of a worker, who is employed by a temporary-work agency, is discontinuation by the [user undertaking] of the worker’s services, in a situation where that discontinuation does not have to be justified in any way and is not subject to any formal condition, and where, for the temporary-work agency, such a discontinuation in itself constitutes a sufficient ground for dismissal, whereas, if the [user undertaking] had engaged the worker itself, [it] would have been subject to statutory requirements concerning the justification of the reason for the dismissal and the formal conditions in respect of the act of dismissal?’

27. Written observations have been submitted by the Romanian and Netherlands Governments and the European Commission. A hearing was held on 6 May 2026 at which the Danish, German and Netherlands Governments and the Commission were present.

IV. Analysis

28. By its question, the referring court asks, in essence, whether the first subparagraph of Article 5(1) of Directive 2008/104, read in conjunction with Article 2 and Article 3(1)(f) of that directive, must be interpreted as precluding legislation of a Member State under which a temporary-work agency may terminate the employment contract between it and a temporary agency worker on the ground that the user undertaking to which that worker was assigned has terminated his or her assignment early, even though that undertaking has not complied with the statutory conditions of dismissal which would have applied in the event of the termination of the contract of a worker recruited directly by it.

29. That question has been raised in the context of a dispute in which CP is challenging the lawfulness of his dismissal by the temporary-work agency, Personal Sea Management, which is based on the discontinuation by the user undertaking, Sulina Logistics, of CP’s services before the end of his assignment. Article 95(4) of the Labour Code allows a temporary-work agency to terminate a temporary employment contract if the user undertaking discontinues the services of a temporary agency worker. The referring court enquires whether, in accordance with the principle of equal treatment expressed in the first subparagraph of Article 5(1) of Directive 2008/104, that user undertaking should not have complied with the national rules on dismissal when it terminated that assignment, as it would have been required to do so had it terminated the employment relationship of a worker recruited directly by it. An affirmative answer to that question could call into question the ground for CP’s dismissal, in so far as that ground is provided for by national legislation which is contrary to that provision.

30. In order to provide an answer to the referring court, it is necessary to determine whether the ‘basic working and employment conditions’, within the meaning of the first subparagraph of Article 5(1) of Directive 2008/104, read in conjunction with Article 3(1)(f) of that directive, include the rules relating to the dismissal of temporary agency workers.

A. The decisive nature of the wording of the first subparagraph of Article 5(1) of Directive 2008/104, read in conjunction with Article 3(1)(f) thereof

31. In that regard, it should be borne in mind that, according to settled case-law, in 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. (8)

32. The essential starting point for such an interpretation is therefore the wording of the provision to be interpreted. In accordance with settled case-law, an interpretation of a provision of EU law cannot have the result of depriving the clear and precise wording of that provision of all effectiveness. Thus, where the meaning of a provision of EU law is absolutely plain from its very wording, the Court cannot depart from that interpretation, (9) as this would infringe the principle of legal certainty. (10)

33. It is therefore essential to attach decisive importance to the wording chosen by the EU legislature.

34. Under the first subparagraph of Article 5(1) of Directive 2008/104, the basic working and employment conditions of temporary agency workers must be, for the duration of their assignment at a user undertaking, at least those that would apply if they had been recruited directly by that undertaking to occupy the same job.

35. The EU legislature thus demonstrated its intention to ensure that, in accordance with the principle of equal treatment, temporary agency workers are not, as a rule, in a less favourable situation than that of comparable workers of the user undertaking. (11)

36. The material and temporal scope of the principle of equal treatment is defined in detail by the EU legislature.

37. In the first place, as regards the material scope, I note that that principle is intended to apply to basic working and employment conditions. The use of that adjective already suggests that that principle does not apply to all working and employment conditions.

38. The concept of ‘basic working and employment conditions’ is defined in Article 3(1)(f) of Directive 2008/104 and refers to the duration of working time, overtime, breaks, rest periods, night work, holidays, public holidays and pay. (12)

39. As the Court has already held, that directive merely requires the ‘basic working and employment conditions’ of temporary agency workers to be equal, that concept being defined in Article 3(1)(f) of that directive as referring in essence to the conditions laid down by binding general provisions in force in the user undertaking relating to working time and pay. (13)

40. The EU legislature has thus expressly set out the elements constituting the basic working and employment conditions to which the principle of equal treatment applies.

41. The list of those elements is exhaustive, as indicated by the absence of any qualifying words such as ‘in particular’. It is clear from the wording of Article 3(1)(f) of Directive 2008/104 that dismissal is not included in the exhaustive list of elements falling within the ‘basic working and employment conditions’, within the meaning of that provision. In my view, the argument put forward by the Commission at the hearing – namely that, in so far as that list is not preceded by a term such as ‘exclusively’, it should be inferred that the EU legislature implicitly intended to provide for an open list – must be rejected.

42. In my view, an interpretation which includes dismissal among the ‘basic working and employment conditions’, within the meaning of the first subparagraph of Article 5(1) of Directive 2008/104, would therefore disregard the express definition of that concept set out in Article 3(1)(f) of that directive. (14) I would also point out that the ‘duration of working time’, within the meaning of that provision, cannot be extended to include conditions governing dismissal.

43. I note, in that regard, that, where the EU legislature has wished, in other acts of EU law, to include conditions governing dismissal in working and employment conditions which are subject to the principle of equal treatment, it has done so expressly. That is the case, for example, in Directive 2014/36/EU of the European Parliament and of the Council of 26 February 2014 on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers. (15) Article 23 of that directive, entitled ‘Right to equal treatment’, provides in paragraph 1(a) that ‘seasonal workers shall be entitled to equal treatment with nationals of the host Member State at least with regard to … terms of employment, including the minimum working age, and working conditions, including pay and dismissal, working hours, leave and holidays, as well as health and safety requirements at the workplace’. (16)

44. In the second place, as regards the temporal scope of the principle of equal treatment laid down in the first subparagraph of Article 5(1) of Directive 2008/104, the wording of that provision indicates that that principle is intended to apply to temporary agency workers for the duration of their assignment at a user undertaking.

45. Article 3(1)(e) of that directive defines ‘assignment’ as ‘the period during which the temporary agency worker is placed at the user undertaking to work temporarily under its supervision and direction’.

46. The elements listed in Article 3(1)(f) of Directive 2008/104 as forming part of the ‘basic working and employment conditions’, within the meaning of that provision, all relate to the performance of the assignment and not to the termination thereof. Logically, it is only to basic working and employment conditions which are relevant for the duration of the assignment at a user undertaking that the principle of equal treatment laid down in the first subparagraph of Article 5(1) of that directive is intended to apply. It follows that the temporal scope of that principle does not cover the termination of the assignment carried out by the temporary agency worker at the user undertaking.

47. The literal interpretation of that provision is supported by its context.

B. A literal interpretation confirmed by the context of the first subparagraph of Article 5(1) of Directive 2008/104

48. In that regard, it must be borne in mind that Directive 2008/104 was adopted to supplement the regulatory framework established by Council Directives 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC (17) and 1999/70, on the basis of Article 137(1) and (2) EC, which empowered the institutions to adopt, by means of directives, minimum requirements for gradual implementation relating, inter alia, to working conditions. (18)

49. To that end, as is apparent from Article 9(2) of Directive 2008/104, that directive provides only for the introduction of minimum requirements. (19) This is reflected, inter alia, by the fact that, as stated in Article 3(2) of that directive, it ‘shall be without prejudice to national law as regards the definition of pay, contract of employment, employment relationship or worker’.

50. The Court has already had occasion to clarify that 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. (20)

51. According to the Court, 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 the responsibility for supervision and direction which generally lies with all employers to the user undertaking, 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. (21)

52. It is that triangular relationship which explains why the basic working and employment conditions do not cover conditions governing dismissal. The temporary-work agency remains the temporary agency worker’s employer during his or her assignment at the user undertaking. It is therefore at the level of the temporary-work agency that compliance with the national rules on dismissal must be verified.

53. However, where the user undertaking decides to terminate the assignment of a temporary agency worker, that does not amount to a dismissal of that worker. Requiring that undertaking to comply with the same national rules on dismissal as would be applicable to a temporary agency worker if he or she had been recruited directly by that undertaking would disregard the specific relationships seen in temporary agency work between the temporary-work agency, the user undertaking and the temporary agency worker.

54. In that regard, it should be noted that, in the light of the national rules on dismissal, a temporary agency worker who is placed at a user undertaking and a worker who is directly recruited by that undertaking are not in a comparable situation. During the period in which the temporary agency worker is placed at a user undertaking, he or she remains bound by an employment relationship with the temporary-work agency. It follows that it is the latter undertaking which is required to comply with the rules on dismissal where it decides to terminate the employment contract between it and a temporary agency worker, and not the user undertaking.

55. In particular, Directive 2008/104 does not require the user undertaking to justify the termination of a temporary agency worker’s assignment. I note that, when called upon to interpret the first sentence of Article 5(5) of that directive, (22) the Court has held that that provision does not require Member States to make the use of that form of fixed-term work subject to the prerequisite that the technical, production, organisational or replacement-related reasons be stated. Moreover, neither that provision nor any other provision of that directive lays down any specific measure which the Member States should take for that purpose. (23)

56. In so far as Directive 2008/104 does not require a user undertaking to state the reasons why it uses temporary agency work, such an obligation cannot be imposed on it either where it decides to terminate the assignment of a temporary agency worker.

57. It follows from those considerations that it is not possible to treat a decision by the user undertaking to terminate the assignment as a dismissal decision, on the grounds that the effects of those decisions are equivalent. The principle of equal treatment cannot therefore be relied on to claim that legislation which does not guarantee the same obligations to state reasons for the former decision as those imposed by law for the latter decision is unlawful.

58. Another aspect of the context of the first subparagraph of Article 5(1) of Directive 2008/104 is worth highlighting. It should be noted that that directive refers to Council Directive 91/383/EEC of 25 June 1991 supplementing the measures to encourage improvements in the safety and health at work of workers with a fixed-term or temporary employment relationship. (24) Pursuant to recital 13 of Directive 2008/104, Directive 91/383 establishes the safety and health provisions applicable to temporary agency workers.

59. It is apparent from Article 2(1) of Directive 91/383, read in conjunction with Article 1(2) thereof, that the purpose of that directive is to ensure that temporary agency workers are afforded, as regards safety and health at work, the same level of protection as that of other workers in the user undertaking. Furthermore, under Article 2(2), read in conjunction with Article 1(2), the existence of a temporary employment relationship cannot justify different treatment with respect to working conditions inasmuch as the protection of safety and health at work are involved, especially since, as is apparent from the fourth recital of that directive, temporary agency workers are, in certain sectors, more exposed to the risk of accidents at work than other workers.

60. In addition, Article 8 of Directive 91/383 provides, in essence, that Member States are to take the necessary steps to ensure that, without prejudice to the responsibility of the temporary-work agencies as laid down in national legislation, the user undertaking is responsible, for the duration of the assignment, for the conditions governing the performance of the work connected with safety, hygiene and health at work.

61. The Court inferred from those factors that the protection of ‘safety’ and ‘health’ at work is covered by ‘working conditions’, within the meaning of Directive 91/383, and that the temporary agency worker must, in that regard, be treated, for the duration of the assignment, in the same way as workers employed directly by the user undertaking. (25)

62. Conditions governing dismissal are not directly linked to the protection of safety and health at work. Having regard to the reference made by Directive 2008/104 to Directive 91/383, it must therefore be held that the context of the first subparagraph of Article 5(1) of Directive 2008/104, read in conjunction with Article 3(1)(f) thereof, supports the interpretation that the concept of ‘basic working and employment conditions’ in those provisions does not include conditions governing the dismissal of a temporary agency worker.

63. That interpretation is consistent with the objectives pursued by Directive 2008/104.

C. A literal and contextual interpretation that is consistent with the objectives pursued by Directive 2008/104

64. It is apparent from recital 1 of Directive 2008/104 that that directive is designed, in particular, to ensure full compliance with Article 31 of the Charter of Fundamental Rights of the European Union, paragraph 1 of which establishes in general terms the right of every worker to working conditions that respect his or her health, safety and dignity. The objective of that directive is thus to ensure the protection of temporary agency workers as regards safety and health at work. (26)

65. Moreover, Directive 2008/104 seeks to ensure a balance between security and flexibility.

66. I note, in that regard, that recital 11 of Directive 2008/104 states that temporary agency work is intended to meet not only undertakings’ needs for flexibility, but also the need of employees 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. (27)

67. Thus, Article 2 of Directive 2008/104 states that 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 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. (28)

68. Directive 2008/104 therefore aims to reconcile two objectives by striking a fair balance between, on the one hand, the protection of temporary agency workers and, on the other, the development of flexible forms of working. (29) That balance between protection and flexibility would be undermined if a user undertaking were obliged to comply with national rules on dismissal where it wishes to terminate the assignment of a temporary agency worker assigned to it by a temporary-work agency. Such a constraint would have far-reaching consequences for the temporary agency work sector, largely negating the benefit to a user undertaking of using temporary agency workers to meet its temporary labour needs.

D. The limits of applying the Court’s case-law by analogy

69. Notwithstanding what is expressly stated in the wording of the first subparagraph of Article 5(1) of Directive 2008/104, read in conjunction with Article 3(1)(f) of that directive, as confirmed by the context and objectives of that directive, the Commission considers that the termination of the employment relationship forms part of the ‘basic working and employment conditions’ within the meaning of those provisions. It relies, in that regard, on the lessons drawn from several judgments of the Court which it considers to be applicable by analogy in the context of the present case. It thus considers that the conditions governing dismissal which a user undertaking must observe in respect of workers it has recruited directly must apply to the employment relationship between that undertaking and the temporary agency worker.

70. By adopting that reasoning, however, the Commission appears to me to disregard a number of parameters, including the wording of the first subparagraph of Article 5(1) of Directive 2008/104, read in conjunction with Article 3(1)(f) of that directive.

71. In that regard, I note that, while it is true that the Court has been able to rely on the context of the relevant provisions of Directive 2008/104 and the objectives pursued by that directive in order to determine what may be included in the concept of ‘basic working and employment conditions’, within the meaning of those provisions, it has always done so in situations where the wording of those provisions allowed the elements at issue to be included within that concept.

72. The Commission relies, in particular, on the judgment in Luso Temp in which the Court held that compensation which is payable in the event of the termination of a temporary employment relationship, in respect of days of paid annual leave not taken and the corresponding holiday bonus pay, is covered by the concept of ‘basic working and employment conditions’, within the meaning of the first subparagraph of Article 5(1) of Directive 2008/104, read in conjunction with Article 3(1)(f) thereof.

73. However, unlike the situation at issue in the present case, the wording of the first subparagraph of Article 5(1) of Directive 2008/104 contains a key indication for the inclusion of such compensation in the concept of ‘basic working and employment conditions’, within the meaning of that provision. The Court noted that that concept refers, in accordance with the definition given in Article 3(1)(f) of that directive, to both leave and pay. (30)

74. That finding led the Court to consider that, since that definition expressly refers to leave and since it is clear from recital 1 of Directive 2008/104 that that directive is designed to ensure full compliance with Article 31 of the Charter of Fundamental Rights, which provides, inter alia, that every worker is entitled to an annual period of paid leave, the right to paid annual leave forms part of the ‘basic working and employment conditions’, within the meaning of the first subparagraph of Article 5(1) of that directive, read in conjunction with Article 3(1)(f) thereof. (31) Where it is impossible to take annual leave, that right must be capable of being exercised in pecuniary form. (32)

75. On that textual basis, the Court was then able to draw on the context of those provisions in order to confirm its interpretation.

76. It thus recalled that Directive 2008/104 was adopted to supplement the regulatory framework established by Directive 97/81, as amended by Council Directive 98/23/EC of 7 April 1998, (33) and by Directive 1999/70, on the basis of Article 137(1) and (2) EC, which empowered the EU institutions to adopt, by means of directives, minimum requirements for gradual implementation relating, inter alia, to working conditions. (34)

77. The Court has held, as regards the framework agreement on fixed-term work, that the expression ‘employment conditions’ should be understood to mean the rights, entitlements and obligations that define a given employment relationship, including both the conditions under which a person takes up employment and those concerning the termination of that relationship. (35)

78. The Court has also held that the concept of ‘employment conditions’, within the meaning of clause 4(1) of that framework agreement, includes the compensation that the employer must pay to an employee on account of the termination of his or her fixed-term employment contract. (36)

79. The Court also relied on its case-law relating to the framework agreement on part-time work, concluded on 6 June 1997, annexed to Directive 97/81, (37) under which, with regard to a worker who has not been able, for reasons beyond his or her control, to exercise his or her right to paid annual leave before termination of the employment relationship, the compensation in lieu to which he or she is entitled must be calculated so that the worker is put in a position comparable to that which he or she would have been in had he or she exercised that right during his or her employment relationship. (38)

80. According to the Court, application by analogy is all the more necessary since the first subparagraph of Article 5(1) of Directive 2008/104 is intended to provide effective protection for atypical and precarious workers in an even more targeted manner than clause 4(1) of the framework agreement on part-time work and clause 4(1) of the framework agreement on fixed-term work, so a solution similar to that adopted in the Court’s case-law concerning the interpretation of the concept of ‘employment conditions’ within the meaning of those clauses is necessary, a fortiori, in order to determine the scope of the concept of ‘basic working and employment conditions’, within the meaning of that Article 5. (39)

81. It is important to point out, however, that that application by analogy was possible in the case which gave rise to the judgment in Luso Temp because the wording of Article 3(1)(f) of Directive 2008/104 did not preclude it. That situation is markedly different in the present case.

82. It is true that, in the judgment in Luso Temp, the Court also rejected an interpretation which would have the consequence that the principle of equal treatment would cease to apply upon termination of the temporary agency worker’s contract, with the result that it would favour the termination of temporary contracts over the implementation of the objective pursued by Directive 2008/104 of stimulating temporary agency workers’ access to permanent employment. (40)

83. What matters, therefore, according to the Court, is not to ensure equal treatment as regards the conditions under which the temporary agency worker’s contract is terminated, but to ensure such equal treatment as regards the basic working and employment conditions during the employment relationship, as it must be possible to claim the benefit of those conditions after the termination of that relationship.

84. In other words, the point at which entitlement to compensation in respect of days of paid annual leave not taken and the corresponding holiday bonus pay is claimed is irrelevant, provided that it relates to conditions in force during the employment relationship. Entitlement to holidays relates to the period during which the worker carried out his or her assignment at the user undertaking. Moreover, that compensation is one of the elements referred to in Article 3(1)(f) of Directive 2008/104. The Court thus seeks to ensure that the principle of equal treatment to which the temporary agency worker is entitled for the duration of the assignment may also be relied on after the termination of his or her temporary employment contract. The aim is to ensure, even retrospectively, through compensatory measures, that the temporary agency worker has not been in a less favourable situation during the duration of his or her assignment at the user undertaking.

85. The temptation to apply by analogy the solutions adopted by the Court in relation to matters other than conditions governing dismissal should therefore be approached with caution.

86. Therefore, although the context and the objectives of Directive 2008/104 may support an interpretation derived from the wording, they cannot justify departing from a textual interpretation which excludes conditions governing dismissal from the concept of ‘basic working and employment conditions’, within the meaning of the first subparagraph of Article 5(1) of that directive. In that regard, contrary to what the Commission claims, it is not sufficient to emphasise that the directive aims to stimulate temporary agency workers’ access to permanent employment at the user undertaking. (41)

87. The same applies to the Court’s ruling in its judgment in Randstad Empleo and Others concerning compensation payable to a temporary agency worker in respect of his total permanent incapacity to carry out his usual occupation, resulting from an accident at work sustained at the user undertaking and resulting in the termination of his temporary employment relationship. According to the Court, such compensation falls within the concept of ‘basic working and employment conditions’ within the meaning of the first subparagraph of Article 5(1) of Directive 2008/104, read in conjunction with Article 3(1)(f) thereof.

88. Again, the wording of the latter provision allowed for such a conclusion, since it refers to ‘pay’ as forming part of the ‘basic working and employment conditions’, within the meaning of the first subparagraph of Article 5(1) of that directive.

89. Moreover, as I stated above, it follows from the case-law of the Court that a temporary agency worker may claim the benefit of the principle of equal treatment even after the termination of the employment relationship. Thus, the Court has already held that an interpretation of the concept of ‘basic working and employment conditions’ which excludes the compensation that an employer must pay to a temporary agency worker solely because that compensation is linked to the termination of his or her employment relationship from the scope of the first subparagraph of Article 5(1) of Directive 2008/104 would be contrary both to the context of that provision and to the aims pursued by that directive. (42)

90. However, it is important to point out that, in its judgment in Randstad Empleo and Others, the Court took account of the fact that the accident at work in question in the main proceedings, which is the event giving rise to the worker’s total permanent incapacity to carry out his usual occupation, occurred ‘[during his] assignment at [the] user undertaking’, within the meaning of the first subparagraph of Article 5(1) of Directive 2008/104, with the result that it cannot be accepted that the compensation paid on account of that incapacity arises solely from the termination of that worker’s employment relationship. (43)

91. Thus, the Court emphasises that it must be a basic working or employment condition which relates to the duration of the assignment and which does not arise solely from the termination of the employment relationship.

92. In the case at hand, the fact that the compensation is paid after the termination of the employment relationship is not sufficient to weaken the link with the performance of work. (44) The event giving rise to the incapacity and the corresponding compensation is indeed the accident at work.

93. The contribution of the judgment in Randstad Empleo and Others cannot therefore be extrapolated, by inferring from it, as the Commission maintains, that conditions governing dismissal form part of the ‘basic working and employment conditions’ within the meaning of the first subparagraph of Article 5(1) of Directive 2008/104.

94. The Commission also relies on case-law from which it follows that conditions governing dismissal form part of the ‘employment conditions’ within the meaning of clause 4(1) of the framework agreement on part-time work, and clause 4(1) of the framework agreement on fixed-term work.

95. Thus, the Court has held that the expression ‘employment conditions’, within the meaning of clause 4(1) of the framework agreement on fixed-term work, should be understood to mean the rights, entitlements and obligations that define a given employment relationship, including both the conditions under which a person takes up employment and those concerning the termination of that relationship. (45)

96. According to the Court, the decisive criterion for determining whether a measure falls within the scope of the concept of ‘employment conditions’ within the meaning of clause 4 of that framework agreement is precisely the criterion of employment, that is to say, the employment relationship between a worker and his or her employer. (46)

97. The Court has thus held that that concept covers, inter alia, the protection afforded to a worker in the event of unlawful dismissal and the rules for determining the notice period applicable in the event of termination of fixed-term employment contracts, as well as those relating to the compensation paid to a worker on account of the termination of his or her employment contract with his or her employer, such compensation being paid on account of the employment relationship that has been established between them. (47)

98. According to the Court, an interpretation of clause 4(1) of the framework agreement on fixed-term work which excludes from the definition of the concept of ‘employment conditions’ conditions relating to the termination of a fixed-term employment contract would limit the scope of the protection afforded to fixed-term workers against less favourable treatment, in disregard of the objective assigned to that provision. (48)

99. Therefore, the Court has held that national legislation according to which an employer is not required to state, in writing, the reasons for the termination of a fixed-term employment contract with a notice period, although it is bound by such an obligation in the event of termination of an employment contract of indefinite duration comes within the concept of ‘employment conditions’ within the meaning of clause 4(1) of the framework agreement on fixed-term work. That legislation lays down the rules on termination of an employment contract in the event of dismissal; the rationale for the existence of those rules is the employment relationship that has been established between a worker and his or her employer. (49)

100. The Commission submits that that case-law is applicable in the present case.

101. I do not agree. It must be pointed out that the broad interpretation which the Court has adopted of the concept of ‘employment conditions’ within the meaning of clause 4(1) of the framework agreement on fixed-term work is explained by the lack of precision in the wording of that provision, as to the elements included in that concept. (50) That clearly distinguishes that provision from the first subparagraph of Article 5(1) of Directive 2008/104, read in conjunction with Article 3(1)(f) thereof.

102. Moreover, the EU legislature expressly excluded temporary agency workers from the scope of the framework agreement on fixed-term work. Under its fourth recital, that framework agreement applies to fixed-term workers with the exception of those placed by a temporary work agency at the disposition of a user enterprise. The Court has also clarified that Directive 1999/70 and that framework agreement must be interpreted as not applying either to the fixed-term employment relationship between a temporary worker and a temporary employment business or to the fixed-term employment relationship between such a worker and a user undertaking. (51)

103. Finally, I note that, in its line of argument, the Commission considers that account should be taken of the fact that the termination of a fixed-term assignment in the case of temporary employment contracts constitutes a measure equivalent to dismissal, given that, under Article 95(4) of the Labour Code, the temporary employment contract is to cease if the user undertaking discontinues the services of the temporary agency worker before the end of his or her assignment. In view of that legal consequence, the temporary agency worker would not be able to claim compensation for failure to state the reasons for the termination of the assignment, or to seek annulment of the dismissal and restoration of the situation prior to the dismissal, contrary to the rights enjoyed by a worker recruited directly by the user undertaking.

104. Consequently, the Commission considers that there is a significant lacuna in Article 95(4) of the Labour Code which makes it possible to circumvent the protection sought by Directive 2008/104. In the event that the termination of the temporary agency worker’s assignment before the end of that assignment is not duly substantiated, the protection established by that directive, as transposed into national law, would be undermined. In other words, temporary agency workers would be deprived of protection in the event of a break in their assignment which could be decided upon at the discretion of the user undertaking and would have the legal consequence of the statutory termination of their employment relationship with the temporary-work agency, thus depriving them not only of the continuation of their employment relationship, but also of any compensation for the termination of their employment contract.

105. Thus, according to the Commission, Article 95(4) of the Labour Code does not comply with the first subparagraph of Article 5(1) of Directive 2008/104, in so far as it does not require user undertakings to state the reasons for their decision to terminate the assignment of temporary agency workers, whereas, under national law, user undertakings have such an obligation where contracts with workers recruited directly are terminated.

106. I do not deny that the Romanian legislation could provide greater protection for temporary agency workers whose assignment is terminated early by a user undertaking. I would point out, in that regard, that, under Article 95(4) of the Labour Code, the discontinuation by a user undertaking of the services of a temporary agency worker constitutes a sufficient ground for a temporary-work agency to dismiss that worker. It is clear that national legislation which precludes such discontinuation from having the legal consequence of the dismissal of a temporary agency worker by a temporary-work agency would offer greater protection.

107. That said, for the reasons I have set out above, the principle of equal treatment, as given concrete expression in the first subparagraph of Article 5(1) of Directive 2008/104, does not, in my view, preclude what is provided for in Article 95(4) of the Labour Code. No other provision of that directive appears to me to prohibit the link which that provision establishes between, on the one hand, the decision of a user undertaking to terminate a temporary agency worker’s assignment early and, on the other, the decision of a temporary-work agency to terminate its employment relationship with that worker. It is not for the Court to rewrite that directive on that point.

V. Conclusion

108. In the light of all the foregoing considerations, I propose that the Court should answer the question referred for a preliminary ruling by the Curtea de Apel Constanţa (Court of Appeal, Constanţa, Romania) as follows:

The first subparagraph of Article 5(1) of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work, read in conjunction with Article 2 and Article 3(1)(f) of that directive,

must be interpreted as meaning that conditions governing dismissal do not fall within the scope of the principle of equal treatment between temporary agency workers and workers recruited directly by a user undertaking. Those provisions do not therefore preclude legislation of a Member State under which a temporary-work agency may terminate the employment contract between it and a temporary agency worker on the ground that the user undertaking to which that worker was assigned has terminated his or her assignment early, even though that undertaking has not complied with the statutory conditions of dismissal which would have applied in the event of the termination of the contract of a worker recruited directly by it.

1 Original language: French.

2 OJ 2008 L 327, p. 9.

3 See, inter alia, judgment of 24 October 2024, Omnitel Comunicaciones and Others (C‑441/23, ‘the judgment in Omnitel Comunicaciones and Others’, EU:C:2024:916, paragraph 56 and the case-law cited).

4 Monitorul Oficial al României, Part I, No 72, of 5 February 2003.

5 In the version applicable to the dispute in the main proceedings (‘the Labour Code’).

6 Council Directive of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43); ‘the framework agreement on fixed-term work’.

7 The referring court refers, inter alia, to the judgment of 12 May 2022, Luso Temp (C‑426/20, ‘the judgment in Luso Temp’, EU:C:2022:373, paragraph 33 and the case-law cited).

8 See, inter alia, judgments of 17 November 1983, Merck (292/82, EU:C:1983:335, paragraph 12) and in Omnitel Comunicaciones and Others (paragraph 30 and the case-law cited).

9 See, inter alia, judgment of 11 December 2025, Regione Marche (Maximum aid rate) (C‑497/24, EU:C:2025:959, paragraph 26 and the case-law cited).

10 See, inter alia, judgment of 26 June 2025, Commission v Spain and Others (Indirect shareholdings) (C‑776/23 P to C‑780/23 P, EU:C:2025:487, paragraph 95 and the case-law cited).

11 See judgment of 15 December 2022, TimePartner Personalmanagement (C‑311/21, EU:C:2022:983, paragraph 47).

12 See judgment of 15 December 2022, TimePartner Personalmanagement (C‑311/21, EU:C:2022:983, paragraph 32).

13 See judgment of 11 November 2021, Manpower Lit (C‑948/19, EU:C:2021:906, paragraph 60).

14 I note that, in its report to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions of 21 March 2014 on the application of Directive 2008/104/EC on temporary agency work (COM(2014) 176 final), the Commission states that the list in Article 3(1)(f) of that directive ‘is a compulsory list from which no derogation is possible’. I agree with that assessment, noting that this should also mean that that list cannot be extended.

15 OJ 2014 L 94, p. 375.

16 Emphasis added.

17 OJ 1998 L 14, p. 9.

18 See, inter alia, judgment in Omnitel Comunicaciones and Others (paragraph 37 and the case-law cited).

19 See, inter alia, judgment in Omnitel Comunicaciones and Others (paragraph 38 and the case-law cited).

20 See, inter alia, judgment in Omnitel Comunicaciones and Others (paragraph 56 and the case-law cited).

21 See judgment in Omnitel Comunicaciones and Others (paragraph 57).

22 Under that provision, Member States are to take appropriate measures, in accordance with national law and/or practice, with a view to preventing misuse in the application of that article and, in particular, to preventing successive assignments designed to circumvent the provisions of Directive 2008/104.

23 See judgment of 14 October 2020, KG (Successive assignments in the context of temporary agency work) (C‑681/18, EU:C:2020:823, paragraph 42).

24 OJ 1991 L 206, p. 19.

25 See judgment of 22 February 2024, Randstad Empleo and Others (C‑649/22, ‘the judgment in Randstad Empleo and Others’, EU:C:2024:156, paragraph 53).

26 See judgment in Randstad Empleo and Others (paragraph 57).

27 See, inter alia, judgment in Luso Temp (paragraph 42 and the case-law cited).

28 See, inter alia, judgment in Luso Temp (paragraph 41 and the case-law cited).

29 Thus, ‘the overall objective of the European Union’s action in the field of social policies has been to develop flexible forms of work, while seeking a greater degree of harmonisation of the social law applicable to it. The regulatory model behind such action is designed to achieve a balance between flexibility and security in the job market and has been named “flexicurity”’: see Opinion of Advocate General Pitruzzella in Luso Temp (C‑426/20, EU:C:2021:995, point 35).

30 See judgment in Luso Temp (paragraph 30).

31 See judgment in Luso Temp (paragraph 31).

32 See, inter alia, judgment in Luso Temp (paragraph 38 and the case-law cited).

33 OJ 1998 L 131, p. 10.

34 See, inter alia, judgment in Luso Temp (paragraph 32 and the case-law cited).

35 See, inter alia, judgment in Luso Temp (paragraph 33 and the case-law cited).

36 See, inter alia, judgment in Luso Temp (paragraph 34 and the case-law cited).

37 ‘The framework agreement on part-time work’.

38 See, inter alia, judgment in Luso Temp (paragraph 35 and the case-law cited).

39 See, inter alia, judgment in Luso Temp (paragraph 36).

40 See judgment in Luso Temp (paragraph 47).

41 See, inter alia, judgment in Luso Temp (paragraph 43 and the case-law cited).

42 See inter alia, judgment in Randstad Empleo and Others (paragraph 61 and the case-law cited).

43 See judgment in Randstad Empleo and Others (paragraph 62).

44 See Driguez, L., ‘Égalité de traitement des travailleurs intérimaires’, Europe, No 4, Éditions techniques, Paris, April 2024.

45 See judgment of 20 December 2017, Vega González (C‑158/16, EU:C:2017:1014, paragraph 34). Thus, rules for determining the notice period applicable in the event of termination of fixed-term employment contracts form part of ‘employment conditions’ within the meaning of clause 4(1) of the framework agreement on fixed-term work (paragraph 32 and the case-law cited). This is also the case with the compensation that the employer must pay to an employee on account of the unlawful insertion of a fixed-term clause into his or her employment contract or following termination of fixed-term employment contracts (paragraph 33 and the case-law cited).

46 See, inter alia, judgment of 20 February 2024, X (Lack of reasons for termination) (C‑715/20, EU:C:2024:139, paragraph 37 and the case-law cited).

47 See, inter alia, judgment of 20 February 2024, X (Lack of reasons for termination) (C‑715/20, EU:C:2024:139, paragraph 38 and the case-law cited).

48 See, inter alia, judgment of 20 February 2024, X (Lack of reasons for termination) (C‑715/20, EU:C:2024:139, paragraph 39 and the case-law cited).

49 See judgment of 20 February 2024, X (Lack of reasons for termination) (C‑715/20, EU:C:2024:139, paragraph 40).

50 Under clause 4(1) of the framework agreement on fixed-term work, ‘in respect of employment conditions, fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds’.

51 See judgment of 11 April 2013, Della Rocca (C‑290/12, EU:C:2013:235, paragraph 45).

Opinion of Advocate General Richard de la Tour delivered on 25 June 2026.###

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