News on the maximum assignment period according to the AÜG

Soon after they came into force, it became apparent that the new regulations on the maximum assignment period in section 1 (1b) AÜG and section 19 (2) AÜG - very similar to the indeterminate legal term "temporary" previously used in the AÜG with regard to the duration of the assignment - also leave various questions unanswered for lenders, hirers and temporary workers.

Fortunately, the ECJ and the Federal Labor Court (Bundesarbeitsgericht - BAG) provided answers in 2022 to some of the questions arising in connection with the issue of "maximum assignment periods".

ECJ ruling of March 17, 2022 (C-232/20) 

On March 17, 2022, the ECJ ruled on submission proceedings (Vorlageverfahren) from the LAG Berlin-Brandenburg (dated May 13, 2020 - 15 Sa 1991/19), which were based on the lawsuit of a temporary worker who (apart from a short interruption) was deployed as a temporary worker with the hirer from September 1, 2014 to May 31, 2019 (and thus for a total of 55 months). In this case, the use of the temporary employee did not serve to substitute a permanent employee. The collective agreements of the metal and electrical industry were applied to the hirer, i.e., among other things, also the collective agreement on temporary and contract work, which provides for an extension of the maximum assignment period of section 1 (1b) sentence 1 AÜG and the possibility of a more detailed regulation by means of a works agreement. 

Use of temporary employees in permanent jobs does not violate the Temporary Employment Directive

First of all, the ECJ clarifies with convincing reasoning that the term "temporary" used in article 1 (1) of the Temporary Employment Directive (Directive 2008/104/EC) does not preclude the assignment of temporary workers to permanent jobs of the hirer and not only to substitute permanent staff. The ECJ concludes this quite decisively from the wording of article 1 (1) of the Temporary Employment Directive, which defines its scope of application ("workers [...] who have concluded an employment contract or entered into an employment relationship with a temporary employment agency and who are made available to hiring companies to work temporarily under their supervision and direction"). This is clear from the context in which article 1 (1) of the Temporary Employment Directive is placed and from the objective of the Temporary Employment Directive to promote temporary workers’ access to permanent employment with the hirer. 

This should also clarify that a job with the hirer may first be filled with temporary worker A, exhausting the maximum assignment period, and then with temporary worker B, also exhausting the maximum assignment period. The maximum assignment period is therefore to be determined in relation to the employee and not in relation to the workplace.

No fixed maximum assignment period according to Union law / Abuse control by national courts

With the second question referred for a submission ruling, the LAG Berlin-Brandenburg sought to clarify the question of whether the assignment of temporary workers for a period of less than 55 months is no longer to be regarded as "temporary" within the meaning of article 1 (1) of the Temporary Employment Directive.

The answer of the ECJ is - as so often - that it depends on the circumstances of the individual case: However, the ECJ clarified that the Temporary Employment Directive itself does not contain a fixed maximum assignment period and that the member states are not obliged to stipulate such a fixed maximum assignment period in national law. If national law does not stipulate a fixed maximum assignment period (as is the case for collective agreements within the meaning of section 1 (1b) sentence 3 AÜG), then the ECJ imposes an abuse control on the national courts, which must be based on the circumstances of the individual case (e.g. sector-specific features, national legal framework), in order to determine whether the assignment is still "temporary" pursuant to article 1 (1) of the Temporary Employment Directive. In any case, it can be deduced from this that the permissibility of a maximum assignment period in a specific collective agreement does not necessarily mean that the same maximum assignment period is also permissible in the collective agreement of another sector. After all, industry-specific features can make a difference. 

According to a response from the German government to a small inquiry, there are a total of 109 collective agreements that extend the maximum assignment period pursuant to section 1 (1b) sentence 3 AÜG from 18 to 24 to 120 months (BT-Drucksache 19/9779, p. 8). This high number of collectively agreed regulations on the maximum duration of temporary employment clearly shows the high practical relevance of the second question submitted by the LAG Berlin-Brandenburg and the ECJ's answer. It remains to be seen which concrete criteria the German courts will apply, in addition to sector-specific features and the national legal framework, to review assignments exceeding 18 months. 

Transitional provision of section 19 (2) AÜG may prove problematic

The transitional provision of section 19 (2) AÜG already mentioned above proves to be problematic from the ECJ's point of view if the periods before the transitional provision came into effect are not taken into account in the calculation of the maximum assignment period, i.e. are generally excluded. This is precisely the case pursuant to section 19 (2) AÜG for periods prior to April 1, 2017. According to the ECJ, this means that a temporary assignment can still be classified as "temporary" under national law even though it is no longer "temporary" in accordance with article 1 (1) of the Temporary Employment Directive.

In those cases where section 19 (2) AÜG still has practical relevance (i.e. where periods of temporary assignment prior to April 1, 2017 still play a role), it remains to be seen whether the German courts will opt for an interpretation of section 19 (2) AÜG that conforms to the Directive.

Authorization of the legislator to the parties to collective agreements to deviate from the statutory maximum assignment period

Finally, the ECJ declares the enabling provision of section 1 (1b) sentence 3 AÜG to be in conformity with the Directive: A national regulation such as section 1 (1b) sentence 3 AÜG, which allows the parties to collective agreements to deviate upwards from the national statutory maximum assignment period (in Germany: the 18-month maximum assignment period of section 1 (1b) sentence 1 AÜG) at the level of the sector of the user companies, does not violate Union law.

BAG ruling of September 14, 2022 (4 AZR 83/21): Section 1 (1b) sentence 3 AÜG is independent of the collective agreement of the lender and the temporary worker

With the last answer from the submission proceedings decided by judgment of March 17, 2022, the ECJ paved the way for the BAG's judgment of September 14, 2022 (loc. cit.).

In this ruling, the 4th Senate of the BAG decided that a collective agreement - irrespective of whether temporary workers or lenders are bound by collective bargaining agreements - may provide for a longer maximum assignment period that deviates from the 18-month maximum assignment period stipulated in section 1 (1b) sentence 1 AÜG. The 4th Senate of the Federal Labour Court has thus reached a long-awaited landmark decision on the maximum duration of temporary employment. 

Facts of the case and previous decisions 

The parties - a temporary worker and the hirer - disputed the question of whether an employment relationship pursuant to section 10 (1) AÜG in conjunction with section 9 (1) no. 1 AÜG could be established between them by exceeding the statutory maximum duration of 18 months.

The plaintiff works as a master mechanic for his contractual employer, the lender. Over a period of almost 24 months, the plaintiff was employed by the defendant as a temporary employee. The defendant is a member of the Association of the Metal and Electrical Industry of Baden-Württemberg (Südwestmetall) and is bound by the collective agreements concluded with IG Metall. Among other things, a collective agreement on temporary employment was concluded between the Südwestmetall association and IG Metall, which stipulates that the maximum duration of the deployment of temporary workers may not exceed 48 months. The plaintiff was not a member of a trade union at any time. In any case, the lending company was not bound by the collective agreements of the metal and electrical industry.

After the assignment of almost 24 months, the plaintiff asserted to the defendant that a fictitious employment relationship had come into existence between them because the permissible maximum assignment period of 18 months had been exceeded pursuant to section 10 (1) sentence 1 in conjunction with section 9 (1) no. 1b AÜG. The plaintiff was of the opinion that the collectively agreed maximum assignment period of 48 months did not apply to him and was also invalid for various reasons. In particular, he was not a member of the union concluding the collective agreement.

In its ruling of November 18, 2020 (21 Sa 12/20), the 21st Chamber of the Regional Labour Court (Landesarbeitsgericht - LAG) of Baden-Wuerttemberg dismissed the action, as did the Labour Court of Stuttgart in its ruling of November 21, 2019 (28 Ca 3686/19), and thus ruled that the maximum assignment period for temporary workers not bound by collective agreements could be raised to 48 months by collective agreement. In contrast to the BAG in the appeal decision, the 21st Chamber of the LAG Baden-Wuerttemberg (loc. cit.) considered the collective regulations on the maximum assignment period created by the parties to the collective agreement of the assignment industry as company standards pursuant to section 3 (2) Collective Agreements Act (Tarifvertragsgesetz – TVG).

Press release on the BAG ruling of September 14, 2022 (loc. cit.)

The 4th Senate of the BAG has now ruled on the appeal against the ruling of the 21st Chamber of the LAG Baden-Wuerttemberg and rejected it. The BAG thus followed the opinion of the 21st Chamber of the LAG Baden-Wuerttemberg and affirmed an extension of the statutory maximum assignment period by collective agreement with effect also for temporary employees not bound by collective agreements.

However, according to the press release that has only been available so far, the BAG did not base its decision on classifying the regulation on the maximum assignment period as a company standard pursuant to section 3 (2) TVG, as the 21st Chamber of the LAG Baden-Wuerttemberg had previously done. Instead, the BAG regards the regulatory authority pursuant to section 1 (1b) AÜG as an independent legislative delegation of the legislator to the parties to the collective agreement (so-called "regulatory authorization"). This not only allows the parties to the collective agreement in the assignment industry to regulate a maximum assignment period by means of a collective agreement in deviation from section 1 (1b) sentence 1 AÜG for hirers bound by collective agreements, but also for lenders and temporary workers, irrespective of whether or not they are bound by collective agreements. The statutory provision of section 1 (1b) sentence 3 AÜG is in conformity with Union law and the Constitution. Moreover, the collectively agreed maximum assignment period of 48 months is within the scope of the statutory regulatory authority.

Since the 4th Senate of the BAG reached its decision of September 14, 2022 (loc. cit.) temporally after the ECJ ruling of March 17, 2022 (loc. cit.), it can be strongly assumed that the 4th Senate not only based the legal concept of the so-called "authorization to regulate" on the ECJ ruling, but also took into account, with regard to the approval of the 48-month maximum assignment period in the collective agreement on temporary work in the metal and electrical industry, those specifications that the ECJ made for the examination of a "temporary" assignment pursuant to article 1 (1) Temporary Employment Directive.

Conclusion

Accordingly, the following questions regarding the maximum assignment period under the AÜG have been clarified by the ECJ and the BAG in 2022:

• Contrary to previously held views, it does not violate Union law if temporary workers are not used to replace permanent employees or to cushion order peaks, but are used in permanent jobs. Thus, it should now also be clear that the maximum assignment period of section 1 (1b) AÜG is to be determined with regard to the individual employee and not with regard to individual jobs.
• For the examination of whether temporary assignments exceeding 18 months based on collective regulations of the assignment industry pursuant to section 1 (1b) sentence 3 AÜG violate the Temporary Employment Directive, which requires a merely "temporary" assignment, the ECJ has instructed the national courts to conduct an abuse control taking into account the circumstances of the individual case (e.g. industry-specific features, national legal framework). Certainly, some lenders and hirers who are affected by (longer) maximum assignment regulations under collective agreements will breathe a sigh of relief that the ECJ has not set a rigid maximum period beyond which a "temporary" assignment can no longer be assumed. In legal disputes about the admissibility of assignments exceeding 18 months, legal creativity will now be required to convince the competent court that the specifics of the individual case speak in favour of a still "temporary" assignment within the meaning of the Temporary Employment Directive.
• Even if the ECJ has deemed the transitional provision of section 19 (2) AÜG to be problematic with regard to Union law, this will become less and less important in practice. After all, such "old cases" with transfer periods prior to April 1, 2017 will become increasingly rare.
• Fortunately, it has now also been clarified that section 1 (1b) sentence 3 AÜG contains a regulatory authorization for the collective bargaining parties of the assignment industry in conformity with the Union, which does not require the lender and the temporary worker to be bound by collective agreements. A different decision on this question would also have deprived section 1 (1b) sentence 3 AÜG of its scope of application, since the lender and the temporary worker will usually not be bound by the same collective agreement as the hirer.