Judgment of the Court (Sixth Chamber) of 22 February 2024 (request for a preliminary ruling from the Tribunal Superior de Justicia del País Vasco - Spain) – XXX v Randstad Empleo ETT SAU formerly Ferrovial Servicios SA, Axa Seguros Generales SA de Seguros y Reaseguros

(Case C-649/22, ¹ Randstad Empleo and Others)

(Reference for a preliminary ruling – Social policy – Directive 2008/104/EC – Temporary agency work – Article 5(1) – Principle of equal treatment – Article 3(1)(f) – Concept of ‘basic working and employment conditions applicable to temporary agency workers’ – Concept of ‘pay’ – Compensation payable in respect of the total permanent incapacity of a temporary agency worker to carry out his or her usual occupation as a result of an accident at work which occurred during his or her assignment)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia del País Vasco

Parties to the main proceedings

Applicant: XXX

Defendants: Randstad Empleo ETT SAU, Serveo Servicios SAU, formerly Ferrovial Servicios SA, Axa Seguros Generales SA de Seguros y Reaseguros

Operative part of the judgment

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 3(1)(f) thereof,

must be interpreted as precluding national legislation, as interpreted by national case-law, under which the compensation to which temporary agency workers are entitled in respect of a total permanent incapacity to carry out their usual occupation as a result of an accident at work sustained at the user undertaking and resulting in the termination of their temporary employment relationship, is less than the compensation to which those workers would be entitled, in the same situation and on the same basis, if they had been recruited directly by that user undertaking to occupy the same job for the same period of time.

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¹ OJ C 112, 27.3.2023.