# C_2008171EN.01001901.xml

| 5.7.2008 | EN | Official Journal of the European Union | C 171/19 |
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5.7.2008

EN

Official Journal of the European Union

C 171/19

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Reference for a preliminary ruling from the Monomeles Protodikio Rethimnon (Greece) lodged on 28 April 2008 — Georgios K. Lagoudakis v Kentro Aniktis Prostasias Ilikiomenon Dimou Rethimnis

(Case C-162/08)

(2008/C 171/32)

Language of the case: Greek

Referring court

Monomeles Protodikio Rethimnon

Parties to the main proceedings

Applicant: Georgios K. Lagoudakis

Applicant:

Defendant: Kentro Aniktis Prostasias Ilikiomenon Dimou Rethimnis

Defendant:

Questions referred

| 1. | Do clause 5 and clause 8(1) and (3) of the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP, which forms an integral part of Council Directive 1999/70/EC (OJ 1999 L 175 p. 43), mean that Community law (by reason of the application of the said Framework Agreement) does not allow a Member State to adopt measures (a) where an equivalent legal measure within the meaning of clause 5(1) of the Framework Agreement already existed under national law before the directive entered into force and (b) where the measures adopted in order to apply the Framework Agreement reduce the general level of protection afforded to fixed-term workers under national law? |
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1.

Do clause 5 and clause 8(1) and (3) of the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP, which forms an integral part of Council Directive 1999/70/EC (OJ 1999 L 175 p. 43), mean that Community law (by reason of the application of the said Framework Agreement) does not allow a Member State to adopt measures (a) where an equivalent legal measure within the meaning of clause 5(1) of the Framework Agreement already existed under national law before the directive entered into force and (b) where the measures adopted in order to apply the Framework Agreement reduce the general level of protection afforded to fixed-term workers under national law?

| 2. | If question 1 is answered in the affirmative, is the reduction in the protection afforded to fixed-term workers in the case of a single fixed-term employment contract (rather than several, successive contracts), under which the worker is in fact to provide services to meet ‘fixed and permanent’, rather than temporary, exceptional or urgent, requirements, connected to the application of the said Framework Agreement and the above directive and is such a reduction therefore permitted or not permitted from the point of view of Community law? |
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2.

If question 1 is answered in the affirmative, is the reduction in the protection afforded to fixed-term workers in the case of a single fixed-term employment contract (rather than several, successive contracts), under which the worker is in fact to provide services to meet ‘fixed and permanent’, rather than temporary, exceptional or urgent, requirements, connected to the application of the said Framework Agreement and the above directive and is such a reduction therefore permitted or not permitted from the point of view of Community law?

| 3. | If question 1 is answered in the affirmative, where there is an equivalent legal measure under national law, within the meaning of clause 5(1) of the Framework Agreement, which existed before Directive 1999/70/EC entered into force, such as Article 8(3) of Law 2112/1920 at issue in the main proceedings, is the adoption of a legal measure by reason of the application of the Framework Agreement, such as Article 11 of Presidential Decree 164/2004 at issue in the main proceedings, an unacceptable reduction in the general level [of protection] afforded to fixed-term workers under national law within the meaning of clause 8(1) and (3) of the Framework Agreement:






  (a) | when the scope of the legal measure in question applying the Framework Agreement extends only to successive fixed-term employment contracts or relationships and not to persons who have concluded a single fixed-term contract of employment (rather than several, successive contracts) in order for the worker to meet ‘fixed and permanent’ requirements of the employer, while the earlier equivalent legal measure applied to all fixed-term contracts of employment, even where the worker concluded a single fixed-term employment contract, under which, in fact, the worker was to provide services to meet ‘fixed and permanent’ (rather than temporary, exceptional or urgent) requirements, and |
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3.

If question 1 is answered in the affirmative, where there is an equivalent legal measure under national law, within the meaning of clause 5(1) of the Framework Agreement, which existed before Directive 1999/70/EC entered into force, such as Article 8(3) of Law 2112/1920 at issue in the main proceedings, is the adoption of a legal measure by reason of the application of the Framework Agreement, such as Article 11 of Presidential Decree 164/2004 at issue in the main proceedings, an unacceptable reduction in the general level [of protection] afforded to fixed-term workers under national law within the meaning of clause 8(1) and (3) of the Framework Agreement:

(a)

when the scope of the legal measure in question applying the Framework Agreement extends only to successive fixed-term employment contracts or relationships and not to persons who have concluded a single fixed-term contract of employment (rather than several, successive contracts) in order for the worker to meet ‘fixed and permanent’ requirements of the employer, while the earlier equivalent legal measure applied to all fixed-term contracts of employment, even where the worker concluded a single fixed-term employment contract, under which, in fact, the worker was to provide services to meet ‘fixed and permanent’ (rather than temporary, exceptional or urgent) requirements, and

| (b) | when the legal measure in question for application of the Framework Agreement provides, as a legal consequence, for the purpose of protecting fixed-term workers and preventing abuse within the meaning of the Framework Agreement on fixed-term work, for fixed-term contracts thereafter (ex nunc) to be qualified as contracts of indefinite duration, while the earlier equivalent legal measure made provision for fixed-term contracts of employment to be qualified as contracts of indefinite duration from the time when they were originally concluded (ex tunc)? |
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(b)

when the legal measure in question for application of the Framework Agreement provides, as a legal consequence, for the purpose of protecting fixed-term workers and preventing abuse within the meaning of the Framework Agreement on fixed-term work, for fixed-term contracts thereafter (ex nunc) to be qualified as contracts of indefinite duration, while the earlier equivalent legal measure made provision for fixed-term contracts of employment to be qualified as contracts of indefinite duration from the time when they were originally concluded (ex tunc)?

ex nunc

ex tunc

| 4. | If question 1 is answered in the affirmative, where an equivalent legal measure within the meaning of clause 5(1) of the Framework Agreement on fixed-term work, which forms an integral part of Directive 1999/70/EC, already existed in the national legal order before that directive entered into force, as in the case of Article 8(3) of Law 2112/1920 at issue in the main proceedings, is the choice made by the Greek legislature, in transposing the above directive into Greek law, on the one hand, to exclude the said cases of abuse in which the worker has concluded a single fixed-time contract, under which, in fact, the worker was to provide services to meet ‘fixed and permanent’ (rather than temporary, exceptional or urgent) requirements, from the scope of protection of the above Presidential Decree 164/2004, and on the other hand,not to enact a similar, effective measure/legal consequence specific to the case, affording to workers in such cases of abuse protection over and above the general protection which is provided as standard under general Greek employment law whenever work is provided under an invalid contract, irrespective of whether or not there has been abuse within the meaning of the Framework Agreement, and which includes a claim on the part of the worker to payment of his wages and severance pay, regardless of whether or not he worked under a valid contract, an unacceptable reduction in the general level of protection afforded to fixed-term workers under national law within the meaning of clause 8(1) and (3) of the Framework Agreement, bearing in mind






  (a) | that the obligation to pay wages and severance pay is provided for under national law for all employment relationships and is not intended specifically to prevent abuse within the meaning of the Framework Agreement, and |
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4.

If question 1 is answered in the affirmative, where an equivalent legal measure within the meaning of clause 5(1) of the Framework Agreement on fixed-term work, which forms an integral part of Directive 1999/70/EC, already existed in the national legal order before that directive entered into force, as in the case of Article 8(3) of Law 2112/1920 at issue in the main proceedings, is the choice made by the Greek legislature, in transposing the above directive into Greek law, on the one hand, to exclude the said cases of abuse in which the worker has concluded a single fixed-time contract, under which, in fact, the worker was to provide services to meet ‘fixed and permanent’ (rather than temporary, exceptional or urgent) requirements, from the scope of protection of the above Presidential Decree 164/2004, and on the other hand,not to enact a similar, effective measure/legal consequence specific to the case, affording to workers in such cases of abuse protection over and above the general protection which is provided as standard under general Greek employment law whenever work is provided under an invalid contract, irrespective of whether or not there has been abuse within the meaning of the Framework Agreement, and which includes a claim on the part of the worker to payment of his wages and severance pay, regardless of whether or not he worked under a valid contract, an unacceptable reduction in the general level of protection afforded to fixed-term workers under national law within the meaning of clause 8(1) and (3) of the Framework Agreement, bearing in mind

(a)

that the obligation to pay wages and severance pay is provided for under national law for all employment relationships and is not intended specifically to prevent abuse within the meaning of the Framework Agreement, and

| (b) | that the legal consequence of the application of the earlier equivalent legal measure is that a (single) fixed-term contract of employment is recognised as a contract of indefinite duration? |
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(b)

that the legal consequence of the application of the earlier equivalent legal measure is that a (single) fixed-term contract of employment is recognised as a contract of indefinite duration?

| 5. | If all the above questions are answered in the affirmative, should the national court, in interpreting national law in accordance with Directive 1999/70/EC, disapply the provisions of the legal measure which are not compatible with it, but which were adopted by reason of the application of the Framework Agreement and result in a reduction in the general level of protection afforded to fixed-term workers under national law, such as those in Presidential Decree 164/2004, which tacitly and indirectly (but clearly) deny the relevant protection in cases of abuse when the worker has concluded a single fixed-term contract of employment under which, in fact, he is to provide services to meet ‘fixed and permanent’ (rather than temporary, exceptional or urgent) requirements — and apply instead an equivalent legal measure which existed before the directive entered into force, such as Article 8(3) of Law 2112/1920? |
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5.

If all the above questions are answered in the affirmative, should the national court, in interpreting national law in accordance with Directive 1999/70/EC, disapply the provisions of the legal measure which are not compatible with it, but which were adopted by reason of the application of the Framework Agreement and result in a reduction in the general level of protection afforded to fixed-term workers under national law, such as those in Presidential Decree 164/2004, which tacitly and indirectly (but clearly) deny the relevant protection in cases of abuse when the worker has concluded a single fixed-term contract of employment under which, in fact, he is to provide services to meet ‘fixed and permanent’ (rather than temporary, exceptional or urgent) requirements — and apply instead an equivalent legal measure which existed before the directive entered into force, such as Article 8(3) of Law 2112/1920?

| 6. | If the national court finds that a provision (in this case Article 8(3) of Law 2112/1920) that constitutes an equivalent legal measure within the meaning of clause 5(1) of the Framework Agreement on fixed-term work, which is an integral part of Directive 1999/70/EC, is applicable in principle to a dispute over fixed-term work and, on the basis of that provision, the finding that even a single contract of employment was concluded as a fixed-term contract for no objective reason relating to the nature, type or features of the work offered means that the contract must be recognised as a contract of employment of indefinite duration, then






  (a) | is it compatible with Community law for a national court to interpret and apply national law to the effect that the fact that a legal provision governing employment under a fixed-term contract of employment in order to meet seasonal, periodic, temporary, exceptional or additional social needs (in this case Law 3250/2004, FEK A 124A/07.07.2004) was used as the legal basis for concluding a fixed-term contract constitutes an objective reason in all cases for concluding such contracts, even though the requirements covered were in fact fixed and permanent, and |
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6.

If the national court finds that a provision (in this case Article 8(3) of Law 2112/1920) that constitutes an equivalent legal measure within the meaning of clause 5(1) of the Framework Agreement on fixed-term work, which is an integral part of Directive 1999/70/EC, is applicable in principle to a dispute over fixed-term work and, on the basis of that provision, the finding that even a single contract of employment was concluded as a fixed-term contract for no objective reason relating to the nature, type or features of the work offered means that the contract must be recognised as a contract of employment of indefinite duration, then

(a)

is it compatible with Community law for a national court to interpret and apply national law to the effect that the fact that a legal provision governing employment under a fixed-term contract of employment in order to meet seasonal, periodic, temporary, exceptional or additional social needs (in this case Law 3250/2004, FEK A 124A/07.07.2004) was used as the legal basis for concluding a fixed-term contract constitutes an objective reason in all cases for concluding such contracts, even though the requirements covered were in fact fixed and permanent, and

| (b) | is it compatible with Community law for a national court to interpret and apply national law to the effect that a provision prohibiting the conversion of fixed-term contracts of employment in the public sector to contracts of indefinite duration must be construed as an absolute prohibition in any circumstance to convert a fixed-term employment contract or relationship in the public sector to a employment contract or relationship of indefinite duration, even if it was wrongfully concluded as a fixed-term contract, that is to say, when the requirements met were in fact fixed and permanent, and that the national court has no discretion in such cases to make a finding as to the true character of the legal employment relationship at issue and correctly qualify it as a contract of indefinite duration? Alternatively should the prohibition in question be restricted solely to fixed-term contracts of employment which were in fact concluded in order to meet temporary, unforeseeable, urgent, exceptional or similar types of special requirements and not to cases in which they were in fact concluded in order to meet fixed and permanent requirements? |
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(b)

is it compatible with Community law for a national court to interpret and apply national law to the effect that a provision prohibiting the conversion of fixed-term contracts of employment in the public sector to contracts of indefinite duration must be construed as an absolute prohibition in any circumstance to convert a fixed-term employment contract or relationship in the public sector to a employment contract or relationship of indefinite duration, even if it was wrongfully concluded as a fixed-term contract, that is to say, when the requirements met were in fact fixed and permanent, and that the national court has no discretion in such cases to make a finding as to the true character of the legal employment relationship at issue and correctly qualify it as a contract of indefinite duration? Alternatively should the prohibition in question be restricted solely to fixed-term contracts of employment which were in fact concluded in order to meet temporary, unforeseeable, urgent, exceptional or similar types of special requirements and not to cases in which they were in fact concluded in order to meet fixed and permanent requirements?

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