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Italy: Temporary Agency Work: The Latest Ruling of the Italian Supreme Court in Light of the Jurisprudence of the European Court of Justice

The decision of the Italian Court of Cassation (judgement of 1st August 2023, no. 23445) deals with the use of temporary work contracts (i.e. “contratto di somministrazione a tempo determinato”) with the same user enhancing the rulings of the European Court of Justice on the interpretation of Section 5, paragraph 5 of the EU Directive no. 2008/104 on temporary agency work. 


The case examined concerned a female worker employed on a cruise ship under no. 3 distinct temporary agency work contracts for an overall duration of more than 4 years.  

The employee claimed the conversion of the employment relationship into an indefinite relationship with the user (or, alternatively, with the agency), pointing out that she worked on a continuous basis for the same user and carried out the same tasks. 


In the previous degrees of judgement, the claim by the employee was rejected, and the abuse of the institute of temporary work contracts was excluded since, although there had been no interruption between the no. 3 missions, the contracts entered were separate and distinct. According to the interpretation provided by the courts of merit, these circumstances were not to be considered prohibited by the law and by the collective bargaining agreements in force at the time. In particular, the competent Court of Appeal deemed that under the law regulating the temporary agency work contract, no maximum limit of duration for the missions was established, being such a mandatory limit provided only for “direct” fixed-term employment contracts. Therefore, the employee cannot claim that the 36-month period at the time established as the maximum duration for direct fixed-term contracts shall also apply to the temporary work contracts (with the same user).  


On the contrary, the Italian Supreme Court upheld the employee’s appeal, grounding its decision on the principles expressed by the European Court of Justice (with judgements CJEU 10/14/2020, C-681/2018, and CJEU 03/17/2022, C-232/2020).  


In the context of the assessment of the indexes, which reveal a possible abuse of repeated use of temporary agency work, the European Court of Justice stated that it must be verified if the missions carried out by the worker through the agency in favor of the same user lead to a duration of the relationship longer than the one that could be reasonably deemed as “temporary. 


By applying such principles to the case at issue, the Italian Supreme Court noted that in the previous instances of the trial, it was not assessed whether the relationship between the worker (carrying out the same duties) and the same user exceeded that limit of time and, accordingly, if it could reasonably be considered “temporary.  


In this context, the Court of Cassation stated that exceeding such a limit implies an abuse of the institute of temporary work and, as a consequence, a breach of the purposes laid down by the EU Directive No. 2008/104 on temporary agency work and of the mandatory rules established by the law pursuant to Section 1344 of the Italian Civil Code, which entails the unlawfulness of the contracts. 


It shall be evident that, in the event the temporary agency work contract is declared unlawful, the employment relationship is converted into an open-ended employment relationship with the user. 


Key Action Points for Human Resources and In-house Counsel

  • The use of temporary agency works before the same user for an employee carrying out the same tasks is not free of duration limit. 
  • In case of a claim, the competent Labour Court will assess on a case-by-case basis whether the reiteration of the worker’s missions before the user has exceeded the limit of a duration that can reasonably be considered temporary, and in such an event, the contracts entered will be considered unlawful for breach of mandatory rules and, specifically, of the obligations set forth by the EU law. 
  • Employers shall bear in mind that in case the temporary agency work contracts are considered unlawful, the employment relationship is converted into an open-ended employment relationship with the user. 
  • Employers shall carefully evaluate the use of temporary agency work contracts with workers who have already been employed through previous missions, even if the contracts have been entered into separately.