Opinion of the Advocate General — ECLI:EU:C:2008:2
Date: 2008-01-09
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Ireland

Summary of the Judgment 1. Community law – Principles – Right to effective judicial protection (Council Directive 1999/70) 2. Social policy – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 (Art. 139(1) and (2) EC; Council Directive 1999/70, Annex, clauses 4(1) and 5(1)) 3. Social policy – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 (Arts 10 EC and 249, third para., EC; Council Directive 1999/70) 4. Acts of the institutions – Directives – Implementation by Member States (Art. 249, third para., EC; Council Directive 1999/70) 5. Social policy – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 (Council Directive 1999/70, Annex, clause 4) 1. Community law, in particular the principle of effectiveness, requires that a specialised court which is called upon, under the, albeit optional, jurisdiction conferred on it by the legislation transposing Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, to hear and determine a claim based on an infringement of that legislation, must also have jurisdiction to hear and determine an applicant’s claims arising directly from the directive itself in respect of the period between the deadline for transposing the directive and the date on which the transposing legislation entered into force if it is established that the obligation on that applicant to bring, at the same time, a separate claim based directly on the directive before an ordinary court would involve procedural disadvantages liable to render excessively difficult the exercise of the rights conferred on him by Community law. It is for the national court to undertake the necessary checks in that regard. (see para. 55, operative part 1) 2. Whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon by individuals as against the State, particularly in its capacity as an employer. That principle can be applied in respect of provisions of agreements which, like the framework agreement on fixed-term work which is annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, are the product of a dialogue, based on Article 139(1) EC, between management and labour at Community level and which have been implemented in accordance with Article 139(2) EC by a directive of the Council, of which they are thus an integral component. In that regard, Clause 4(1) of that framework agreement, which prohibits, in a general manner and in unequivocal terms, any difference in treatment of fixed-term workers in respect of employment conditions which is not objectively justified, is unconditional and sufficiently precise for individuals to be able to rely upon it before a national court; that is not the case, however, as regards Clause 5(1) of the framework agreement, which assigns to the Member States the general objective of preventing the abusive use of successive fixed-term employment contracts or relationships, while leaving to them the choice as to how to achieve it. (see paras 57-58, 60, 68, 70, 73, 79-80, operative part 2) 3. Article 10 EC, the third paragraph of Article 249 EC, and Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP must be interpreted as meaning that an authority of a Member State acting in its capacity as a public employer may not adopt measures contrary to the objective pursued by that directive and the framework agreement on fixed-term work as regards prevention of the abusive use of fixed-term contracts, which consist in the renewal of such contracts for an unusually long term in the period between the deadline for transposing Directive 1999/70 and the date on which the transposing legislation entered into force. (see para. 92, operative part 3) 4. When applying domestic law and, in particular, legislative provisions specifically adopted for the purpose of implementing the requirements of a directive, national courts are bound to interpret that law, so far as possible, in the light of the wording and the purpose of the directive in order to achieve the result sought by it and thus to comply with the third paragraph of Article 249 EC. The obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is, however, limited by general principles of law, particularly those of legal certainty and non-retroactivity, and that obligation cannot serve as the basis for an interpretation of national law contra legem. In those circumstances, in so far as the applicable national law contains a rule that precludes the retrospective application of legislation unless there is a clear and unambiguous indication to the contrary, a national court hearing a claim based on an infringement of a provision of national legislation transposing Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP is required, under Community law, to give that provision retrospective effect to the date by which that directive should have been transposed only if that national legislation includes an indication of that nature capable of giving that provision retrospective effect. (see paras 98, 100, 104, operative part 4) 5. Articulating a principle of Community social law which cannot be interpreted restrictively, Clause 4 of the framework agreement on fixed‑term work, which is annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as meaning that employment conditions within the meaning of that clause encompass conditions relating to pay and to pensions which depend on the employment relationship, to the exclusion of conditions relating to pensions arising under a statutory social-security scheme. (see paras 114, 134, operative part 5)