{"id":25767,"date":"2025-05-15T13:48:28","date_gmt":"2025-05-15T12:48:28","guid":{"rendered":"https:\/\/wpcms.chambers.com\/?post_type=legal-trends&p=25767"},"modified":"2025-05-15T13:48:30","modified_gmt":"2025-05-15T12:48:30","slug":"dutch-court-agency-contract-abuse","status":"publish","type":"legal-trends","link":"https:\/\/wpcms.chambers.com\/legal-trends\/dutch-court-agency-contract-abuse\/","title":{"rendered":"Thirteen Years of \u201cTemporary\u201d Work: Dutch Supreme Court to Rule on Structural Abuse of Agency Contracts"},"content":{"rendered":"\n

The Dutch Advocate General has recently issued her opinion that 13 years of continuous temporary work is abusive under EU law. If upheld by the Supreme Court, this could prompt stricter limits, impacting employers, agencies, and nearly a million Dutch agency workers. Edith Nordmann and Thomas Klaarenbeek of ACG International explore the possible outcomes.<\/p>\n\n\n\n\n\n

The Dutch Supreme Court is currently reviewing a case that may fundamentally redefine the legal boundaries of long-term agency work under EU law. On 21 March 2025, Advocate General (AG) De Bock issued her opinion<\/a>. Her conclusion is unambiguous: a generic reference to the need for \u201ca flexible workforce\u201d is insufficient to justify the continued use of temporary agency contracts over a 13-year period. This is the first time the Dutch Supreme Court has been asked to interpret Directive 2008\/104\/EC<\/a> on temporary agency work. The outcome may have significant implications for employers, temporary work agencies and the almost one million agency workers active in the Netherlands.<\/p>\n\n\n\n\n\n

The case concerns a production worker who, through a succession of agency contracts and across three agencies, worked continuously for the same client for almost thirteen years. He repeatedly asked to be employed directly, but was refused. When his assignment ended in 2022 following the closure of the production site, he initiated proceedings. His central claim: the prolonged deployment amounted to an abuse of the legal framework, and he should be considered an employee of the client.<\/p>\n\n\n\n\n\n

The district court and the court of appeal dismissed his claim. The appellate court accepted that the deployment had lasted unusually long, but it found no abuse: the company had offered an \u201cobjective justification\u201d \u2013 its need for a flexible layer of staff. The worker brought the matter before the Dutch Supreme Court in cassation.<\/p>\n\n\n\n\n\n

In her advisory opinion, AG De Bock concludes that the appeal must succeed. Although Dutch law imposes no statutory maximum duration for assignments with the same user, Directive 2008\/104\/EC is grounded in the principle that agency work must be temporary. Article 5(5) requires member states to take measures to prevent abuse arising from successive assignments, particularly where these are used to circumvent the objectives of the Directive.<\/p>\n\n\n\n\n\n

Relying on recent case law from the Court of Justice of the EU \u2013 particularly JH\/KG and Daimler \u2013 the AG formulates a two-stage assessment:<\/p>\n\n\n\n

  1. If the assignment substantially exceeds what can reasonably be regarded as \u201ctemporary\u201d, this raises a presumption of abuse.<\/li>
  2. That presumption may be rebutted only by a specific and demonstrable justification tailored to the circumstances of the case. A general reference to operational flexibility will not suffice.<\/li><\/ol>\n\n\n\n

    On the facts, AG De Bock concludes that 13 years of continuous agency work plainly exceeds the threshold of temporariness. The employer\u2019s justification \u2013 \u201ca need for flexibility\u201d \u2013 is in her view too generic and fails to meet the standard required by EU law.<\/p>\n\n\n\n\n\n

    The Dutch case stands out in Europe, where most countries impose clear legal limits on the duration of temporary agency work to prevent structural abuse.<\/p>\n\n\n\n