# C_2010274EN.01000401.xml

| 9.10.2010 | EN | Official Journal of the European Union | C 274/4 |
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9.10.2010

EN

Official Journal of the European Union

C 274/4

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Reference for a preliminary ruling from the Landesarbeitsgericht Köln (Germany) lodged on 29 June 2010 — Land Nordrhein-Westfalen v Sylvia Jansen

(Case C-313/10)

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2010/C 274/05

Language of the case: German

Referring court

Referring court

Landesarbeitsgericht Köln

Parties to the main proceedings

Parties to the main proceedings

Applicant: Land Nordrhein-Westfalen

Applicant:

Defendant: Sylvia Jansen

Defendant:

Questions referred

Questions referred

Question 1

Question 1

| (a) | When conducting a legal assessment as to whether an agreement for the renewal of a fixed-term contract is justified in a particular case for objective reasons within the meaning of Clause 5(1)(a) of the framework agreement on fixed-term work in the Annex to Council Directive 1999/70/EC of 28 June 1999, is it compatible with the spirit and purpose of Clause 5(1) of the framework agreement to have reference only to circumstances obtaining at the date of conclusion of that renewal agreement without having regard to how many fixed-term contracts have already preceded that agreement, or |
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(a)

When conducting a legal assessment as to whether an agreement for the renewal of a fixed-term contract is justified in a particular case for objective reasons within the meaning of Clause 5(1)(a) of the framework agreement on fixed-term work in the Annex to Council Directive 1999/70/EC of 28 June 1999, is it compatible with the spirit and purpose of Clause 5(1) of the framework agreement to have reference only to circumstances obtaining at the date of conclusion of that renewal agreement without having regard to how many fixed-term contracts have already preceded that agreement, or

| (b) | Does the spirit and purpose of Clause 5(1)(a) of the framework agreement, which is to prevent abuse arising from the use of consecutive short-term employment contracts, necessitate the imposition of stricter requirements in relation to ‘objective reasons’ the greater the number of successive fixed-term employment contracts that have already preceded the one that is to be assessed or the longer the period during which the employee concerned has already been employed under successive fixed-term contracts? |
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(b)

Does the spirit and purpose of Clause 5(1)(a) of the framework agreement, which is to prevent abuse arising from the use of consecutive short-term employment contracts, necessitate the imposition of stricter requirements in relation to ‘objective reasons’ the greater the number of successive fixed-term employment contracts that have already preceded the one that is to be assessed or the longer the period during which the employee concerned has already been employed under successive fixed-term contracts?

Question 2

Question 2

Does Clause 5(1) of the framework agreement on fixed-term work preclude the application of a provision of national law such as Paragraph 14(1)(7) of the Law on part-time working and fixed-term contracts (Gesetz über Teilzeitarbeit und befristete Arbeitsverträge, ‘the TzBfG’) which justifies successive fixed terms of employment contracts in the public sector alone for the ‘objective reason’ that the employee is paid out of budgetary funds provided for fixed-term employment, whereas in the case of employers in the private sector such economic reasons are not recognised as ‘objective reasons’?

Question 3

Question 3

| (a) | Is the provision on fixed-term contracts referred to in the second question (Paragraph 14(1)(7) TzBfG) compatible with the framework agreement if the budgetary rule to which Paragraph 14(1)(7) TzBfG refers constitutes a sufficiently specific purpose for the fixed term with a particular connection to the activity in question and the conditions under which it is carried out (see second paragraph of the summary of the judgment in Case C-212/04 Adeneler [2006] ECR I 6057)? |
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(a)

Is the provision on fixed-term contracts referred to in the second question (Paragraph 14(1)(7) TzBfG) compatible with the framework agreement if the budgetary rule to which Paragraph 14(1)(7) TzBfG refers constitutes a sufficiently specific purpose for the fixed term with a particular connection to the activity in question and the conditions under which it is carried out (see second paragraph of the summary of the judgment in Case C-212/04 Adeneler [2006] ECR I 6057)?

Adeneler

If Question 3(a) is answered in the affirmative:

| (b) | Is there such a sufficiently specific purpose if the budgetary rule, such as Paragraph 7(3) of the Gesetz über die Feststellung der Haushaltspläne des Landes Nordrhein-Westfalen (Law determining the budget of the Land of North-Rhine Westphalia, ‘HG 2004/2005’) in this case, merely provides that the budgetary funds are intended for a fixed-term activity as ‘temporary staff’? |
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(b)

Is there such a sufficiently specific purpose if the budgetary rule, such as Paragraph 7(3) of the Gesetz über die Feststellung der Haushaltspläne des Landes Nordrhein-Westfalen (Law determining the budget of the Land of North-Rhine Westphalia, ‘HG 2004/2005’) in this case, merely provides that the budgetary funds are intended for a fixed-term activity as ‘temporary staff’?

If Question 3(b) is answered in the affirmative:

| (c) | Does this apply even if the activity of ‘temporary staff’ in this sense is understood to mean not only an activity that serves to cover either a temporary increase in work or the temporary loss of a core member of staff but also where the term ‘temporary staff’ is also deemed applicable if the employee is paid out of budgetary funds that are available because of the temporary loss of a core member of staff working in the same department, although the ‘temporary staff’ member is employed to do work that is categorised as falling within the ambit of the employer’s fixed and permanent needs and has no substantive connection with the activity of the core member of staff lost, or |
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(c)

Does this apply even if the activity of ‘temporary staff’ in this sense is understood to mean not only an activity that serves to cover either a temporary increase in work or the temporary loss of a core member of staff but also where the term ‘temporary staff’ is also deemed applicable if the employee is paid out of budgetary funds that are available because of the temporary loss of a core member of staff working in the same department, although the ‘temporary staff’ member is employed to do work that is categorised as falling within the ambit of the employer’s fixed and permanent needs and has no substantive connection with the activity of the core member of staff lost, or

| (d) | Does interpretation of the term ‘temporary staff’ in the manner described in Question 3(c) run counter to the spirit and purpose of the framework agreement on fixed-term work, which is to prevent abuse arising from the use of consecutive short-term employment contracts, and to the principle, laid down in Angelidaki (second paragraph of the summary of the judgment in Joined Cases C-378/07 to C-380/07 [2009] ECR I 3071), that Clause 5(1)(a) of the framework agreement on fixed-term work precludes the application of national legislation ‘in such a way that the renewal of successive fixed-term employment contracts in the public sector is deemed to be justified by “objective reasons” within the meaning of that clause solely on the ground that those contracts are founded on legal provisions allowing them to be renewed in order to meet certain temporary needs when, in fact, those needs are fixed and permanent’? |
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(d)

Does interpretation of the term ‘temporary staff’ in the manner described in Question 3(c) run counter to the spirit and purpose of the framework agreement on fixed-term work, which is to prevent abuse arising from the use of consecutive short-term employment contracts, and to the principle, laid down in Angelidaki (second paragraph of the summary of the judgment in Joined Cases C-378/07 to C-380/07 [2009] ECR I 3071), that Clause 5(1)(a) of the framework agreement on fixed-term work precludes the application of national legislation ‘in such a way that the renewal of successive fixed-term employment contracts in the public sector is deemed to be justified by “objective reasons” within the meaning of that clause solely on the ground that those contracts are founded on legal provisions allowing them to be renewed in order to meet certain temporary needs when, in fact, those needs are fixed and permanent’?

Angelidaki

in such a way that the renewal of successive fixed-term employment contracts in the public sector is deemed to be justified by “objective reasons” within the meaning of that clause solely on the ground that those contracts are founded on legal provisions allowing them to be renewed in order to meet certain temporary needs when, in fact, those needs are fixed and permanent

Question 4

Question 4

Is a Member State in breach of Clause 8(3) of the framework agreement on fixed-term work if it introduces into its national legislation implementing Directive 1999/70/EC a budgetary reason for a fixed term such as that described in Question 2, which is of general application to the whole of its public sector but under its national legal system prior to the adoption of Directive 1999/70/EC only existed in comparable form in small pockets of the public sector (higher education)? Does such a breach mean that the national rule can no longer be applied?

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