Strengthening the control over contracts and illegal assignment: the power of direction as a key element after the STS 27/11/2025 (Omnitel case)

The Supreme Court ruling of 27 November 2025 (rec. 1672/2022) constitutes a new milestone in the delimitation between the lawful outsourcing of services and the unlawful assignment of workers, by placing the focus on the effective exercise of the power of management and control in the context of contracts. The decision, handed down by the Social Division of the Supreme Court, applies for the first time expressly the doctrine of the Court of Justice of the European Union derived from the Omnitel case, according to which there is provision of services - subject to Directive 2008/104/EC - when the contractor does not assume in a real and autonomous manner the organisation of the work.

The case concerns worker cooperatives that provide services for client companies, an area in which the Court has already found on previous occasions that there has been unlawful assignment. The main novelty of the judgement lies in the qualitative analysis of the figure of the coordinators or team leaders of the contractor as a possible determining element to confirm or exclude such assignment.

The Supreme Court clarifies that the mere formal designation of coordinators is not sufficient to prove the exercise of managerial power. In order to avoid an unlawful assignment, the coordination function must have its own organisational relevance, sufficient to constitute an essential element of the commercial contract and not a simple channel for transmitting orders from the main company.

The judgment thus distinguishes between the legitimate control of the correct execution of the contract, which is admissible on the part of the client company, and the direct and concrete management of the work activity, which corresponds to the real employer. This limit is exceeded when the instructions of the principal reach such an intensity that the coordinators lack real autonomy.

Applying these criteria, the Court concludes that the team leaders acted in practice as managers of the main company, with no relevant organisational or technical contribution, the contract being limited to the provision of labour on the premises and under the productive organisation of the client.

Overall, the STS 27/11/2025 reinforces the need for a rigorous casuistic analysis, taking into account the effective reality of the provision of services, and consolidates itself as a key reference to delimit the boundary between lawful contract, provision and illegal assignment of workers.

Article written by ECIJA Madrid Labour Law Department.