Opinion of the Advocate General — ECLI:EU:C:2019:547
Date: 2019-06-27
Language of the case: German
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Austria

summary of the decisions forming part of this line of case-law, see the Opinion of Advocate General Mengozzi in Fonnship and Svenska Transportarbetareförbundet (C‑83/13, EU:C:2014:201, point 17). For more recent decisions, see judgments of 28 April 2016, Oniors Bio (C‑233/15, EU:C:2016:305, paragraph 30), and of 1 February 2017, Município de Palmela (C‑144/16, EU:C:2017:76, paragraph 20). As Advocate General Mengozzi observed in his Opinion, cited above, there is some tension between that line of case-law and the case-law set out in point 11 of the present Opinion, which make it necessary to identify criteria enabling all the related decisions to be read in a coherent fashion. 15 See, inter alia, judgment of 1 February 2017, Município de Palmela (C‑144/16, EU:C:2017:76), and order of 14 July 2016, BASF (C‑456/15, not published, EU:C:2016:567, paragraph 15 and the case-law cited). 16 See, inter alia, judgments of 12 December 1990, Hennen Olie (302/88, EU:C:1990:455, paragraph 20), in which the Court nevertheless took the view, in the light of the facts and the arguments submitted by the parties during the procedure, that it was ‘not necessary’ to examine the point of principle raised by the Commission, and of 17 October 2013, Welte (C‑181/12, EU:C:2013:662, paragraphs 16 and 27, in which the Court dealt with the issue of whether the restriction on the free movement of capital within the meaning of Article 56(1) EC at issue in the dispute in the main proceedings could be allowed under Article 57(1) EC). See also judgment of 3 June 2010, Internetportal und Marketing (C‑569/08, EU:C:2010:311, paragraphs 27 to 30). In paragraph 28 of that judgment, the Court clarified that, ‘although the national court has not asked a question on this point, within the context of the procedure laid down by Article 267 TFEU providing for cooperation between national courts and [it], and to the extent to which the argument of the appellant in the main proceedings affects the resolution of the dispute in those proceedings, it is for [it] to provide the national court with an answer which will be of use to it and enable it to determine the case before it’. 17 See, for example, judgments of 12 December 1990, SARPP (C‑241/89, EU:C:1990:459, paragraph 8); of 2 February 1994, Verband Sozialer Wettbewerb ‘Clinique’ (C‑315/92, EU:C:1994:34, paragraph 7); of 4 March 1999, Consorzio per la tutela del formaggio Gorgonzola (C‑87/97, EU:C:1999:115, paragraph 16); of 29 April 2004, Weigel (C‑387/01, EU:C:2004:256, paragraph 44: the question relating to the application of Council Directive 83/183/EEC of 28 March 1983 on tax exemptions applicable to permanent imports from a Member State of the personal property of individuals (OJ 1983 L 105, p. 64) had been submitted only by the applicants to the main proceedings and the Commission); of 21 February 2006, Ritter-Coulais (C‑152/03, EU:C:2006:123, paragraph 29: questions referred for a preliminary ruling concerning freedom of establishment and the free movement of capital and the raising by the Court of its own motion, at the behest of the Commission, of a question concerning the free movement of workers); of 25 January 2007, Dyson (C‑321/03, EU:C:2007:51, paragraphs 24 to 26); of 30 May 2013, Worten (C‑342/12, EU:C:2013:355, paragraphs 30 and 31); and of 12 December 2013, Hay (C‑267/12, ECLI:EU:C:2013:823, paragraph 23: the referring court assumes this to be a case of indirect discrimination on the ground of sexual orientation whereas the Court determines whether it is a case of direct discrimination). For a reminder of the case-law, see Opinion of Advocate General Mengozzi in Fonnship and Svenska Transportarbetareförbundet (C‑83/13, EU:C:2014:201, paragraph 17). 18 See judgments of 12 January 2010, Wolf (C‑229/08, EU:C:2010:3, paragraph 32 and the case-law cited), and of 14 October 2010, Fuß (C‑243/09, EU:C:2010:609, paragraph 40). 19 See judgment of 29 April 2004, Weigel (C‑387/01, EU:C:2004:256, paragraphs 43 and 44). 20 See judgment of 25 January 2007, Dyson (C‑321/03, EU:C:2007:51, paragraphs 21 to 26). 21 In accordance with point 2 of that clause, it is a matter for the competence of the Member States to determine under what conditions fixed-term employment contracts or relationships are to be regarded as ‘successive’ and deemed to be ‘contracts or relationships of indefinite duration’. 22 See, inter alia, judgment of 14 September 2016, Pérez López (C‑16/15, EU:C:2016:679, paragraph 26 and the case-law cited). 23 As is apparent from points 6 and 8 of the general considerations of the Framework Agreement on fixed-time work. 24 See, inter alia, judgment of 14 September 2016, Pérez López (C‑16/15, EU:C:2016:679, paragraph 28 and the case-law cited). 25 See, inter alia, judgment of 14 September 2016, Pérez López (C‑16/15, EU:C:2016:679, paragraph 29 and the case-law cited). 26 With regard to the applicability of the Framework Agreement on fixed-term work to the university teaching and research sectors, see judgment of 13 March 2014, Márquez Samohano (C‑190/13, EU:C:2014:146, paragraphs 38 and 39). 27 See, inter alia, judgments of 26 February 2015, Commission v Luxembourg (C‑238/14, EU:C:2015:128, paragraph 44 and the case-law cited), and of 14 September 2016, Pérez López (C‑16/15, EU:C:2016:679, paragraph 38). 28 See, inter alia, judgment of 14 September 2016, Pérez López (C‑16/15, EU:C:2016:679, paragraphs 39 and 40 and the case-law cited). 29 In the text of that provision, reference is made both to ‘externally funded projects’ (‘Drittmittelprojekten’) and, quite simply, to ‘research projects’ (‘Forschungsprojekten’). At the hearing before the Court, the MUW clarified that most research activity conducted by Austrian universities is funded by the universities (approximately 75 % in the case of the MUW). 30 In this regard, I note that, at the hearing before the Court, the MUW’s lawyer and the agent of the Austrian Government suggested that paragraph 109(2) of the UG applies only to employees working within the framework of externally funded research projects. As far as the applicant in the main proceedings is concerned, it would appear that she was employed solely within the framework of externally funded projects, which it is likewise for the referring court to establish. 31 In note that, in the course of the hearing before the Court, the representative of the applicant in the main proceedings put forward a similar argument, stating that the applicant in the main proceedings was a laboratory assistant and that, as part of her activities, she assisted several PhD students, each of whom had their own projects. Furthermore, as early as the start of the proceedings before the Austrian courts, the applicant in the main proceedings claimed that the recourse to fixed-term contracts was not justified in her case because she was not carrying out work within the framework of projects as such. 32 I would observe, however, that this does not appear to be the case as far as the applicant in the main proceedings is concerned, who, according to the order for reference, was employed throughout the period at issue within the framework of the same project. 33 See, inter alia, judgments of 13 March 2014, Márquez Samohano (C‑190/13, EU:C:2014:146, paragraph 55), and of 14 September 2016, Pérez López (C‑16/15, EU:C:2016:679, paragraphs 49 to 51). 34 The MUW’s lawyer refers only to fixed-term employees working within the framework of externally funded projects. 35 The fact, assuming it were established, that, as a matter of Austrian universities’ general practice, or the MUW’s general practice, paragraph 109(2) of the UG is applied solely in respect of young researchers who are required to acquire experience in order to be able to progress in their university career does not call into question the finding that, as it is worded, that provision potentially has a much broader scope. 36 There was a period of around one year between the first and the second series of contracts which, it appears, prevents the applicant’s employment relationship with the MUW as a whole being regarded as successive immediately consecutive fixed-term contracts. However, it is for the referring court to rule on this point. 37 The Court came to the opposite conclusion in the judgment of 13 March 2014, Márquez Samohano (C‑190/13, EU:C:2014:146), concerning the recruitment of associate professors by Spanish universities, in a context in which the relevant provisions of national law were, compared to the present case, far more precise and detailed, and the consequences of their application on the instability of the employment relationship of the persons concerned less serious. In that judgment, the Court found that the recourse to successive employment contracts was justified by the need to entrust ‘specialists with recognised competence’ who exercise a professional activity otherwise than in a university with the performance, on a part-time basis, of specific teaching tasks (paragraph 48). It also pointed out that the conditions to which such recourse was subject did not expose the lecturers concerned to an insecure situation (paragraph 52). 38 See, inter alia, order of 21 September 2016, Popescu (C‑614/15, EU:C:2016:726, paragraph 61). 39 Assuming a career beginning at the age of 25 and ending at the age of 65. 40 See, inter alia, judgment of 26 January 2012, Kücük (C‑586/10, EU:C:2012:39, paragraph 39 and the case-law cited), and order of 21 September 2016, Popescu (C‑614/15, EU:C:2016:726, paragraph 65 and the case-law cited). 41 See judgment of 10 June 2010, Bruno and Others (C‑395/08 and C‑396/08, EU:C:2010:329, paragraph 32). 42 See, by analogy, judgment of 10 June 2010, Bruno and Others (C‑395/08 and C‑396/08, EU:C:2010:329, paragraph 33). See, also, by analogy, in relation to clause 4 of the Framework Agreement on fixed-term work, judgment of 12 December 2013, Carratù (C‑361/12, EU:C:2013:830, paragraphs 33 to 35). 43 I refer in this regard to the concept of a ‘comparable full-time worker’ contained in the first paragraph of point 2 of clause 3 of the Framework Agreement on part-time work. 44 Potentially within the framework of projects funded by the university if – as the MUW’s lawyer stated at the hearing in response to a question put by the Court – permanent positions are not available in the case of externally funded projects. 45 See, also, judgment of 2 October 1997, Kording (C‑100/95, EU:C:1997:453, paragraph 23). 46 This could, for example, be the case if, in order to be eligible for a competition or for the purposes of assessing candidates’ credentials, account were taken of the hours worked within the framework of research projects led by universities. 47 The maximum duration specified for part-time work applies to such workers and a fixed conversion formula is used to determine ‘the part-time equivalent’ for periods of full-time work: twelve months’ full time corresponds to sixteen months’ part time, with a ratio of 4 to 3, and, conversely, twelve months’ part time corresponds to nine months’ full time. 48 See judgments of 13 January 2004, Allonby (C‑256/01, EU:C:2004:18, paragraph 73), and of 6 December 2007, Voß (C‑300/06, EU:C:2007:757, paragraph 40). 49 It is apparent from those statistics that 79 % of the women and 75 % of the men employed under a contract concluded on the basis of paragraph 109(2) of the UG work part time. 50 Article 19(1) of Directive 2006/54 provides that ‘Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment’. 51 See judgment of 19 October 2017, Otero Ramos (C‑531/15, EU:C:2017:789, paragraph 68), and, to that effect, judgment of 21 July 2011, Kelly (C‑104/10, EU:C:2011:506, paragraph 29). 52 See recital 30 of Directive 2006/54. 53 See, inter alia, judgments of 9 February 1999, Seymour-Smith and Perez (C‑167/97, EU:C:1999:60, paragraph 59); of 13 January 2004, Allonby (C‑256/01, EU:C:2004:18, paragraph 73); and of 6 December 2007, Voß (C‑300/06, EU:C:2007:757, paragraph 40). 54 The significance of the role played by the adoption of rules on the burden of proof in the effective enforcement of the principle of equal treatment is, moreover, made clear in recital 30 of Directive 2006/54. 55 See recital 30 of Directive 2006/54. 56 I note that, during the main proceedings, the MUW produced before the referring court statistics relating to its employees only, stating that those statistics were the only data available, and that it was only at the hearing that the MUW’s lawyer asserted that statistics relating to other universities were published and were therefore easily accessible to all. 57 See recital 30 of Directive 2006/54. 58 See, inter alia, judgments of 10 May 2012, Santander Asset Management SGIIC and Others (C‑338/11 to C‑347/11, EU:C:2012:286, paragraph 58); of 18 October 2012, Mednis (C‑525/11, EU:C:2012:652, paragraph 41); and of 22 January 2015, Balazs (C‑401/13 and C‑432/13, EU:C:2015:26, paragraph 49). 59 See judgment of 22 January 2015, Balazs (C‑401/13 and C‑432/13, EU:C:2015:26, paragraph 50 and the case-law cited). 60 See, to that effect, judgment of 22 January 2015, Balazs (C-401/13 and C-432/13, EU:C:2015:26, paragraph 51 and the case-law cited), and Opinion of Advocate General Mengozzi in Paper Consult (C-101/16, EU:C:2017:413, point 81).