# C_2009205EN.01001702.xml

| 29.8.2009 | EN | Official Journal of the European Union | C 205/17 |
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29.8.2009

EN

Official Journal of the European Union

C 205/17

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Order of the Court of 24 April 2009 (reference for a preliminary ruling from the Monomeles Protodikio Athinon — Greece.) — Arkontia Koukou/Elliniko Dimosio.

(Case C-519/08) (1)

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(Article 104(3), first paragraph, of the Rules of Procedure - Social Policy - Directive 1999/70/EC - Clauses 5 and 8 of the Framework Agreement on fixed-term work - Public sector fixed-term employment contracts - Successive contracts - Reduction in the general level of protection of workers - Measures intended to prevent abuse - Penalties - Absolute prohibition on conversion of fixed-term employment contracts to contracts of indefinite duration in the public sector - Consequences of incorrect transposition of a directive - Interpretation in conformity with Community law)

2009/C 205/31

Language of the case: Greek

Referring court

Referring court

Monomeles Protodikio Athinon (Court of First Instance, Athens (single judge)).

Parties to the main proceedings

Parties to the main proceedings

Applicant: Arkontia Koukou

Applicant:

Defendant: Elliniko Dimosio (Greek State)

Defendant:

Re:

Re:

Reference for a preliminary ruling — Monomeles Protodikeio Athinon — Interpretation of Clauses 5 and 3 of the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43) — Objective reasons justifying the renewal without restriction of successive fixed-term employment contracts — Obligation, imposed by national legislation, to enter into such contracts — Prohibition on adoption of transposing legislation reducing the level of protection — Meaning of reduction

Operative part

Operative part

| 1. | Clause 5(1)(a) of the Framework Agreement on fixed-term work, concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as precluding the use of successive fixed-term employment contracts on the sole ground that such use is founded on provisions in the general laws or regulations of a Member State. On the contrary, the concept of ‘objective reasons’, within the meaning of that clause, requires that the use of that particular type of employment relationship, as provided for by the national legislation, must be justified by the existence of specific factors connected inter alia with the activity in question and the conditions under which it is carried out. |
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1.

Clause 5(1)(a) of the Framework Agreement on fixed-term work, concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as precluding the use of successive fixed-term employment contracts on the sole ground that such use is founded on provisions in the general laws or regulations of a Member State. On the contrary, the concept of ‘objective reasons’, within the meaning of that clause, requires that the use of that particular type of employment relationship, as provided for by the national legislation, must be justified by the existence of specific factors connected inter alia with the activity in question and the conditions under which it is carried out.

| 2. | Clause 5(1) of the Framework Agreement on fixed-term work must be interpreted as not precluding national legislation such as that at issue in the main proceedings which, while imposing the requirement, as a measure to prevent the abuse of successive fixed-term employment contracts, that a maximum total duration of such contracts must not be exceeded, provides that certain categories of workers are excepted from the latter restriction, provided that those workers have the protection of at least one of the measures set out in that clause to prevent the abuse of successive fixed-term employment contracts |
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2.

Clause 5(1) of the Framework Agreement on fixed-term work must be interpreted as not precluding national legislation such as that at issue in the main proceedings which, while imposing the requirement, as a measure to prevent the abuse of successive fixed-term employment contracts, that a maximum total duration of such contracts must not be exceeded, provides that certain categories of workers are excepted from the latter restriction, provided that those workers have the protection of at least one of the measures set out in that clause to prevent the abuse of successive fixed-term employment contracts

| 3. | Clause 5(1) of the Framework Agreement on fixed-term work must be interpreted as not precluding national legislation such as that at issue in the main proceedings which makes provision, as a measure to curb the abuse of successive fixed-term employment contracts, for payment of salary and compensation and for criminal and disciplinary penalties, to the extent that, as the referring court must determine, the conditions for the application and effective implementation of the relevant provisions of domestic law constitute adequate measures to penalise the abuse by the public authorities of successive fixed-term employment contracts. |
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3.

Clause 5(1) of the Framework Agreement on fixed-term work must be interpreted as not precluding national legislation such as that at issue in the main proceedings which makes provision, as a measure to curb the abuse of successive fixed-term employment contracts, for payment of salary and compensation and for criminal and disciplinary penalties, to the extent that, as the referring court must determine, the conditions for the application and effective implementation of the relevant provisions of domestic law constitute adequate measures to penalise the abuse by the public authorities of successive fixed-term employment contracts.

| 4. | Clause 5(1) of the Framework Agreement on fixed-term work must be interpreted as meaning that, where the domestic legal order of the Member State concerned does not contain, in the public sector, other measures which can effectively ensure that the abuse of successive fixed-term employment contracts is avoided and, when appropriate, penalised, which it is for the referring court to determine, national legislation such as that at issue in the main proceedings is precluded, since it is not applicable ratione temporis to successive fixed-term employment contracts which have been entered into or renewed after expiry of the period laid down in Directive 1999/70 for its transposition where those contracts were no longer current at the date when that legislation entered into force or at any time during the period of three months preceding that date. |
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4.

Clause 5(1) of the Framework Agreement on fixed-term work must be interpreted as meaning that, where the domestic legal order of the Member State concerned does not contain, in the public sector, other measures which can effectively ensure that the abuse of successive fixed-term employment contracts is avoided and, when appropriate, penalised, which it is for the referring court to determine, national legislation such as that at issue in the main proceedings is precluded, since it is not applicable ratione temporis to successive fixed-term employment contracts which have been entered into or renewed after expiry of the period laid down in Directive 1999/70 for its transposition where those contracts were no longer current at the date when that legislation entered into force or at any time during the period of three months preceding that date.

| 5. | In circumstances such as those in the main proceedings, Clause 5(1)(a) of the Framework Agreement on fixed-term work must be interpreted to mean that, where the domestic legal order of the Member State concerned contains, in the sector under consideration, other measures which are effective to avoid and, when appropriate, penalise the abuse of successive fixed-term employment contracts within the meaning of Clause 5(1), it is not precluded that a rule of national law may impose an absolutely prohibition, in the public sector alone, on conversion into a contract of indefinite duration of a succession of fixed-term employment contracts which, when intended to cover fixed and permanent needs of the employer, must be regarded as an abuse. It is however for the referring court to assess the extent to which the conditions for the application and actual implementation of the relevant provisions of domestic law constitute adequate measures to prevent and, when appropriate, penalise the abuse by the public authorities of successive fixed-term employment contracts. |
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5.

In circumstances such as those in the main proceedings, Clause 5(1)(a) of the Framework Agreement on fixed-term work must be interpreted to mean that, where the domestic legal order of the Member State concerned contains, in the sector under consideration, other measures which are effective to avoid and, when appropriate, penalise the abuse of successive fixed-term employment contracts within the meaning of Clause 5(1), it is not precluded that a rule of national law may impose an absolutely prohibition, in the public sector alone, on conversion into a contract of indefinite duration of a succession of fixed-term employment contracts which, when intended to cover fixed and permanent needs of the employer, must be regarded as an abuse. It is however for the referring court to assess the extent to which the conditions for the application and actual implementation of the relevant provisions of domestic law constitute adequate measures to prevent and, when appropriate, penalise the abuse by the public authorities of successive fixed-term employment contracts.

| 6. | Clause 5(1)(a) of the Framework Agreement on fixed-term work must be interpreted as not precluding the possibility that, as a general rule, legal disputes concerning the abuse of fixed-term employment contracts in the public sector fall within the exclusive jurisdiction of the administrative courts. It is however for the referring court to ensure that the right to effective legal protection is safeguarded with due regard to the principles of effectiveness and equivalence. |
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6.

Clause 5(1)(a) of the Framework Agreement on fixed-term work must be interpreted as not precluding the possibility that, as a general rule, legal disputes concerning the abuse of fixed-term employment contracts in the public sector fall within the exclusive jurisdiction of the administrative courts. It is however for the referring court to ensure that the right to effective legal protection is safeguarded with due regard to the principles of effectiveness and equivalence.

| 7. | Clause 8(3) of the Framework Agreement on fixed-term work must be interpreted as precluding national legislation such as that at issue in the main proceedings which lays down, for the purposes of determining whether there is abuse of fixed-term employment contracts, additional conditions beyond those laid down by the earlier domestic law, such as, in particular, Article 8(3) of Law 2112/1920 on the obligatory termination of the employment contract of private sector employees, provided that such conditions, this being for the referring court to determine, either affect a restricted category of workers who have entered into a fixed-term employment contract or are balanced by the adoption of measures to prevent the abuse of fixed-term employment contracts within the meaning of Clause 5(1) of the Framework Agreement. |
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7.

Clause 8(3) of the Framework Agreement on fixed-term work must be interpreted as precluding national legislation such as that at issue in the main proceedings which lays down, for the purposes of determining whether there is abuse of fixed-term employment contracts, additional conditions beyond those laid down by the earlier domestic law, such as, in particular, Article 8(3) of Law 2112/1920 on the obligatory termination of the employment contract of private sector employees, provided that such conditions, this being for the referring court to determine, either affect a restricted category of workers who have entered into a fixed-term employment contract or are balanced by the adoption of measures to prevent the abuse of fixed-term employment contracts within the meaning of Clause 5(1) of the Framework Agreement.

| 8. | It is for the national court to interpret the relevant provisions of national law, so far as possible, in conformity with clauses 5(1) and 8(3) of the Framework Agreement on fixed-term work, and also to determine, in that context, whether a provision of domestic law such as that provided for in Article 8(3) of Law No 2112/1920, must be applied to the main proceedings in place of certain other provisions of domestic law. |
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8.

It is for the national court to interpret the relevant provisions of national law, so far as possible, in conformity with clauses 5(1) and 8(3) of the Framework Agreement on fixed-term work, and also to determine, in that context, whether a provision of domestic law such as that provided for in Article 8(3) of Law No 2112/1920, must be applied to the main proceedings in place of certain other provisions of domestic law.

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(1)  OJ C 44, 21.02.2009.

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