# C_2019288EN.01001502.xml

| 26.8.2019 | EN | Official Journal of the European Union | C 288/15 |
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26.8.2019

EN

Official Journal of the European Union

C 288/15

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Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 23 April 2019 — EB v Presidenza del Consiglio dei Ministri and Others

(Case C-326/19)

(2019/C 288/20)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: EB

Defendants: Presidenza del Consiglio dei Ministri, Ministero dell’Istruzione, dell’Università e della Ricerca — MIUR, Università degli Studi Roma Tre

Questions referred

| 1. | Although there is no general obligation on Member States to provide for the conversion of fixed-term employment contracts into contracts of indefinite duration, does Clause 5 of the framework agreement on fixed-term work 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, (1) headed ‘Measures to prevent abuse’, preclude, also in the light of the principle of equivalence, national legislation, such as that laid down in Article 29(2)(d) and (4) of Legislative Decree No 81 of 15 June 2015 and Article 36(2) and (5) Legislative Decree No 165 of 30 March 2001, which does not allow in respect of university researchers employed on a three-year fixed-term contract, which may be extended for two years pursuant to Article 24(3)(a) of Law No 240 of 2010, the subsequent establishment of a relationship of indefinite duration? |
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1.

Although there is no general obligation on Member States to provide for the conversion of fixed-term employment contracts into contracts of indefinite duration, does Clause 5 of the framework agreement on fixed-term work 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, (1) headed ‘Measures to prevent abuse’, preclude, also in the light of the principle of equivalence, national legislation, such as that laid down in Article 29(2)(d) and (4) of Legislative Decree No 81 of 15 June 2015 and Article 36(2) and (5) Legislative Decree No 165 of 30 March 2001, which does not allow in respect of university researchers employed on a three-year fixed-term contract, which may be extended for two years pursuant to Article 24(3)(a) of Law No 240 of 2010, the subsequent establishment of a relationship of indefinite duration?

| 2. | Although there is no general obligation on Member States to provide for the conversion of fixed-term employment contracts into contracts of unlimited duration, does Clause 5 of the framework agreement on fixed-term work 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, headed ‘Measures to prevent abuse’, preclude, also in the light of the principle of equivalence, national legislation, such as that laid down in Article 29(2)(d) and (4) of Legislative Decree No 81 of 15 June 2015 and Article 36(2) and (5) Legislative Decree No 165 of 30 March 2001, from being applied by the national courts of the Member concerned in such a way that a right to maintain the employment relationship is granted to persons employed by public authorities under a flexible employment contract governed by the rules of employment law, but that right is not conferred, in general, on staff employed on fixed-term contracts by those authorities under administrative law, and (as a result of the above provisions of national law) no other effective measure is available under the national legal system to penalise such abuse with regard to workers? |
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2.

Although there is no general obligation on Member States to provide for the conversion of fixed-term employment contracts into contracts of unlimited duration, does Clause 5 of the framework agreement on fixed-term work 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, headed ‘Measures to prevent abuse’, preclude, also in the light of the principle of equivalence, national legislation, such as that laid down in Article 29(2)(d) and (4) of Legislative Decree No 81 of 15 June 2015 and Article 36(2) and (5) Legislative Decree No 165 of 30 March 2001, from being applied by the national courts of the Member concerned in such a way that a right to maintain the employment relationship is granted to persons employed by public authorities under a flexible employment contract governed by the rules of employment law, but that right is not conferred, in general, on staff employed on fixed-term contracts by those authorities under administrative law, and (as a result of the above provisions of national law) no other effective measure is available under the national legal system to penalise such abuse with regard to workers?

| 3. | Although there is no general obligation on Member States to provide for the conversion of fixed-term employment contracts into contracts of unlimited duration, does Clause 5 of the framework agreement on fixed-term work 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, headed ‘Measures to prevent abuse’, preclude ..., also in the light of the principle of equivalence, national legislation such as that laid down in Article 24(1) and (3) of Law No 240 of 30 December 2010, which provides for the conclusion and extension for a total period of five years (three years and a possible extension of two years) of fixed-term contracts between researchers and universities, making the conclusion of the contract subject to the availability of ‘the resources for planning for the purposes of carrying out research, teaching, non-curricular activities and student service activities’ and also making extension of the contract subject to a ‘positive appraisal of the teaching and research activities carried out’, without laying down objective and transparent criteria for determining whether the conclusion and renewal of those contracts actually meet a genuine need and whether they are capable of achieving the objective pursued and are necessary for that purpose, and therefore entails a specific risk of abusive use of such contracts, thus rendering them incompatible with the purpose and practical effect of the framework agreement? |
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3.

Although there is no general obligation on Member States to provide for the conversion of fixed-term employment contracts into contracts of unlimited duration, does Clause 5 of the framework agreement on fixed-term work 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, headed ‘Measures to prevent abuse’, preclude ..., also in the light of the principle of equivalence, national legislation such as that laid down in Article 24(1) and (3) of Law No 240 of 30 December 2010, which provides for the conclusion and extension for a total period of five years (three years and a possible extension of two years) of fixed-term contracts between researchers and universities, making the conclusion of the contract subject to the availability of ‘the resources for planning for the purposes of carrying out research, teaching, non-curricular activities and student service activities’ and also making extension of the contract subject to a ‘positive appraisal of the teaching and research activities carried out’, without laying down objective and transparent criteria for determining whether the conclusion and renewal of those contracts actually meet a genuine need and whether they are capable of achieving the objective pursued and are necessary for that purpose, and therefore entails a specific risk of abusive use of such contracts, thus rendering them incompatible with the purpose and practical effect of the framework agreement?

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(1)  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).

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