Opinion of the Advocate General — ECLI:EU:C:2023:281
Date: 2023-03-30
Language of the case: Polish
Subject matter: Social Policy;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Poland

Translation C-715/20 – 1 
Case C-715/20 
Request for a preliminary ruling 
Date lodged: 
18 December 2020 
Referring court: 
Sąd Rejonowy dla Krakowa – Nowej Huty w Krakowie (Poland) 
Date of the decision to refer: 
11 December 2020 
Applicant: 
KL 
Defendant: 
X, a limited liability company in G. 
  
[…] 
Order 
11 December 2020 
The Sąd Rejonowy dla Krakowa – Nowej Huty w Krakowie IV Wydział Pracy i 
Ubezpieczeń Społecznych (District Court for Kraków-Nowa Huta in Kraków, 4th 
Labour and Social Insurance Division, Poland) 
[...] 
having examined on 11 December 2020 in Kraków 
in closed session 
the claim for compensation brought by the applicant KL 
against X, a limited liability company in G., 
hereby 
EN 
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1. refers the following questions to the Court of Justice of the European Union 
for a preliminary ruling: 
1. Is Article 1 of Council Directive 1999/70/EC of 28 June 1999 
concerning the framework agreement on fixed-term work concluded 
by ETUC, UNICE and CEEP, and also Clauses Nos 1 and 4 of that 
framework agreement, to be interpreted as precluding provisions of 
national law obliging employers to state in writing the reasons for a 
decision giving notice of termination of an employment contract only 
in relation to employment contracts of indefinite duration, and 
consequently subjecting to judicial review the well-foundedness of the 
reasons for the notice of termination of contracts of indefinite duration, 
without at the same time imposing such an obligation on employers 
(that is to say, an obligation to state the reasons justifying the notice of 
termination) in relation to fixed-term employment contracts (as a result 
of which only the issue of the compliance of the notice of termination 
with the provisions on termination of contracts is subject to judicial 
review)? 
2. May the parties to a dispute before a court of law, in which private 
parties appear on both sides, rely on Clause No 4 of the 
abovementioned framework agreement and the general EU-law 
principle of non-discrimination (Article 21 of the Charter of 
Fundamental Rights of the European Union), and consequently do the 
rules referred to above have horizontal effect? 
2. [...] 
Grounds for the order of 11 December 2020 
Request for a preliminary ruling 
Referring court 
Sąd Rejonowy dla Krakowa – Nowej Huty w Krakowie IV Wydział Pracy i 
Ubezpieczeń Społecznych (District Court for Kraków-Nowa Huta in Kraków, 4th 
Labour and Social Insurance Division, Poland) 
Parties to the main proceedings 
Applicant: KL 
Defendant: X, a limited liability company in G 
Subject matter of the dispute in the main proceedings and relevant facts 
1 The proceedings in the case concern a claim for payment of compensation for 
notice of termination, by the employer, of a fixed-term employment contract 
X, A LIMITED LIABILITY COMPANY 
 
3 
between the parties given in breach of the provisions on termination of contracts 
of that kind (Article 50 § 3 of the Kodeks pracy (Labour Code)). The applicant 
and the defendant entered into a fixed-term employment contract for the period 
from 1 November 2019 to 31 July 2022, on a half-time basis. On 15 July 2020, the 
employer gave the applicant a written declaration of notice of termination of the 
employment contract between the parties, with a one-month notice period that 
expired on 31 August 2020. The employer did not provide an explanation for the 
notice of termination in the above declaration, that is to say, it did not tell the 
applicant the reasons for its decision to give notice of termination of the 
employment contract. Firstly, in the grounds of his claim for the award of 
damages, the applicant has claimed that the employer’s declaration of 15 July 
2020 is vitiated by formal errors giving rise to defects which confer a right to (the 
award of) damages. 
2 Secondly, the applicant has indicated that he is aware that, under the applicable 
provisions of the Labour Code, a declaration of intent to terminate a fixed-term 
employment contract does not require a statement of reasons as in the case of 
notice of termination of an employment contract of indefinite duration or 
termination of an employment contract without notice. At the same time however, 
the applicant has observed that, in his view, in the case of the notice of 
termination at issue there has been an infringement of the rules on non-
discrimination – both EU rules in the form of the general principle of EU law [Or. 
2] prohibiting discrimination based on the kind of employment contract 
concerned, and those arising from the provisions of Polish law, namely 
Article 183a of the Labour Code. The applicant has questioned the unlimited 
possibility of terminating fixed-term employment contracts. 
3 In the light of the foregoing, the applicant has addressed the issue of whether the 
notice of termination given to him was well founded, requesting that the court 
carry out an assessment in this respect. 
4 In response to the application, the defendant has requested that the action be 
dismissed, indicating inter alia that Article 30 § 4 of the Labour Code requires a 
statement of reasons for termination only in the case of notice of termination of an 
employment contract of indefinite duration or termination of an employment 
contract without notice. Thus, in the view of the defendant, giving the applicant 
notice of termination of the fixed-term employment contract without stating 
reasons cannot be regarded as discrimination against the applicant on the ground 
of his being employed for a fixed term. The defendant acted in accordance with 
the provisions of the Labour Code, which, in the above respect, distinguishes 
between the situation of workers employed on the basis of employment contracts 
of indefinite duration and those employed on the basis of fixed-term employment 
contracts, in the same way that it distinguishes between the situation of workers in 
terms of the duration of the notice period having regard to the length of service 
with the employer concerned. The defendant is not responsible for this distinction 
between these respective legal situations since such an action is not contrary to the 
applicable labour law. The defendant cannot bear consequences for complying 
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with the law, and its conduct, in accordance with the applicable provisions of 
labour law, cannot be regarded as discrimination against the worker. This is 
because an impermissible distinction between the respective legal situations of 
workers on the basis of prohibited and negative criteria is regarded as 
discrimination in employment. In view of the fact that the provisions of the 
Labour Code differentiate between workers employed on the basis of a fixed-term 
employment contract and those employed on the basis of an employment contract 
of indefinite duration as regards the obligation to state the reasons for notice of 
termination of an employment contract, it must be held that a failure to state 
reasons, as a differentiation permitted by the provisions of the Labour Code, does 
not constitute discrimination against workers employed on the basis of a fixed-
term employment contract. […] 
Subject matter and legal basis of the reference for a preliminary ruling 
5 Interpretation of Article 21 of the Charter of Fundamental Rights of the European 
Union, Article 1 of Council Directive 1999/70/EC of 28 June 1999 concerning the 
framework agreement [Or. 3] on fixed-term work concluded by ETUC, UNICE 
and CEEP, Clauses Nos 1 and 4 of that framework agreement. 
6 Article 30 of the Charter of Fundamental Rights of the European Union. 
7 Article 267 of the Treaty on the Functioning of the European Union. 
EU legislation and case-law 
8 Articles 21 and 30 of the Charter of Fundamental Rights of the European Union, 
recital 14 and Article 1 of [Directive 1999/70,] and Clauses Nos 1 and 4 of [the] 
framework agreement [on fixed-term work concluded by ETUC, UNICE and 
CEEP]. 
9 Judgments of the Court of Justice of the European Union of 13 March 2014, 
Nierodzik (C-38/13, EU:C:2014:152); of 19 April 2016, DI (C-441/14, 
EU:C:2016:278); of 25 July 2018, Gardenia Vernaza Ayovi (C-96/17, 
EU:C:2018:603); of 7 August 2018, Smith (C-122/17, EU:C:2018:631); and of 
22 January 2019, Cresco (C-193/17, EU:C:2019:43). 
National legislation and case-law 
10 Article 30 of the Ustawa z dnia 26 czerwca 1974 r. Kodeks pracy (Law of 26 June 
1974 establishing the Labour Code) (consolidated text: Dziennik Ustaw of 2020, 
item 1320, as amended) (‘the Labour Code’): 
§ 1. A contract of employment shall be terminated: 
(1) by agreement between the parties; 
X, A LIMITED LIABILITY COMPANY 
 
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(2) by a declaration by one of the parties including a notice period (termination of 
employment contract with notice); 
(3) by a declaration by one of the parties not including a notice period 
(termination of an employment contract without notice); 
(4) on expiry of the period for which it was concluded. [Or. 4] 
[…] 
[…] 
§ 3. A declaration by either party of notice of termination or termination of an 
employment contract without notice shall be made in writing. 
§ 4. A declaration by the employer of notice of termination of an employment 
contract of indefinite duration or termination of an employment contract without 
notice shall state the reason justifying the notice of termination or the termination 
of the contract. 
… 
11 Article 44 of the Labour Code: 
A worker may lodge an appeal against the notice of termination of an employment 
contract with a labour court, as referred to in Section 12. 
12 Article 45 of the Labour Code: 
§ 1. Where it is found that the notice of termination of an employment contract of 
indefinite duration is unfounded or is in breach of the provisions on termination of 
employment contracts, the labour court shall – if so requested by the worker – 
declare the notice of termination void and, if the contract has already been 
terminated, order reinstatement of the worker on the same conditions or payment 
of compensation. 
… 
13 Article 50 of the Labour Code: 
§§ 1 and 2 … 
§ 3. Where the notice of termination of a fixed-term employment contract is in 
breach of the provisions on termination of such a contract, the worker shall be 
entitled only to compensation. 
[…] 
14 Article 183a of the Labour Code: 
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§ 1. Workers should be treated equally with respect to the establishment and 
termination of an employment relationship, employment conditions and promotion 
conditions, as well as access to training in order to improve professional 
qualifications, in particular regardless of gender, age, disability, race, religion, 
nationality, political beliefs, trade union membership, ethnic origin, creed, sexual 
orientation, and regardless of whether they are employed for a fixed term or for 
an indefinite term or on a full-time or part-time basis.[Or.5] 
§ 2. Equal treatment in employment means that there shall be no direct or indirect 
discrimination whatsoever on any of the grounds referred to in § 1. 
… 
15 Article 183b of the Labour Code: 
§ 1. An employer treating a worker differently on one or more of the grounds 
referred to in Article 183a § 1 shall be considered to be in breach of the principle 
of equal treatment in employment, subject to §§ 2 to 4, where the effects of such a 
difference in treatment include, in particular: 
(1) a refusal to enter into, or the termination of, an employment relationship; 
(2) establishing disadvantageous remuneration for work or other disadvantageous 
terms of employment, the employee not being selected for promotion or not being 
granted other work-related benefits; 
(3) … 
- unless the difference in treatment is justified by objective considerations 
demonstrated by the employer. 
… 
16 Judgment of the Trybunał Konstytucyjny (Constitutional Court) of 2 December 
2008, P 48/07. 
17 Judgments of the Sąd Najwyższy (Supreme Court) of 22 May 2012, II PK 245/11, 
and of 8 May 2019, I PK 41/18. 
Reasons for the request for a preliminary ruling 
18 When hearing the action brought by KL, the Sąd Rejonowy dla Krakowa – Nowej 
Huty w Krakowie (District Court for Kraków-Nowa Huta in Kraków) has 
experienced doubts (in the context of the national legislation cited above and the 
rulings of the Trybunał Konstytucyjny and the Sąd Najwyższy) as to the 
interpretation of Article 1 of [Directive 1999/70] and Clauses Nos 1 and 4 of [the] 
framework agreement [on fixed-term work concluded by ETUC, UNICE and 
CEEP], and also the possibility of parties directly invoking the provisions of the 
X, A LIMITED LIABILITY COMPANY 
 
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above directive and agreement before a national court in a dispute between private 
parties. 
19 Under the above provisions of the Labour Code, when giving notice of 
termination of an employment contract of indefinite duration the employer is 
obliged to state the reasons for taking such a [Or. 6] decision (Article 30 § 4 of 
the Labour Code). That obligation does not exist where the employer gives notice 
of termination of a fixed-term employment contract. Consequently, where a 
worker appeals against a notice of termination of an employment contract of 
indefinite duration not only the formal conditions (compatibility with the 
provisions on termination of contracts of that kind) but also the well-foundedness 
of the reason stated for the notice of termination are subject to judicial review. In 
the case of fixed-term contracts, the court does not examine whether the reason 
underlying the employer’s decision to give notice of termination is well founded 
and no claim may be made by the worker on the ground that that decision is not 
well founded. 
20 [History of Article 30 § 4 of the Labour Code] […] 
21 […] [In] the case of notice of termination of a fixed-term contract the employer 
[…] is not under an obligation to state the reason for the notice of termination of 
the fixed-term employment contract. 
22 In 2008 the Trybunał Konstytucyjny delivered a judgment in Case P 48/07 in 
which [Article 30 § 4 of the Labour Code] was subjected to constitutional review 
in the context of the different requirements for giving notice of termination 
depending on the kind of employment contract being terminated, that is to say, 
depending on whether that contract is a fixed-term contract or a contract of 
indefinite duration. 
23 The Trybunał Konstytucyjny ruled that Article 30 § 4 of [the Labour Code], in so 
far as it disregards the obligation to state a reason justifying the notice of 
termination in the employer’s declaration of notice of termination of a fixed-term 
employment contract, and Article 50 § 3 thereof, in so far as it disregards the 
worker’s right to compensation on the ground of a failure to state reasons for the 
notice of termination of a fixed-term employment contract, are not inconsistent 
with Article 2 (that is to say, with the principle of a democratic State based on the 
rule of law) and Article 32 (establishing the principle of equality before the law 
and non-discrimination in political, [Or. 7] social or economic life for any reason) 
of the Constitution of the Republic of Poland. 
24 [Grounds for the judgment of the Trybunał Konstytucyjny in relation to Article 32 
of the Constitution] […] 
25 [The Trybunał Konstytucyjny ultimately held that there is nothing to support a 
finding that the differentiation established on the basis of the length of 
employment is not reasonably justified in nature] […] 
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26 A dissenting opinion [was expressed] regarding the above judgment [:] […] under 
Article 30 § 4 and Article 50 § 3 of the Labour Code, there is discrimination 
against workers employed on the basis of fixed-term employment contracts under 
Article183a § 1 of the Labour Code, which in turn implements Directive 1999/70. 
[Or.8] 
27 […] [For its part,] in [the] judgment [...] of 22 May 2012 in Case II PK 245/11 [...] 
the Sąd Najwyższy held that a labour court may assess the notice of termination of 
an employment contract concluded for a probationary period or for a fixed term as 
regards its compliance with the rules of social conduct or its socio-economic 
purpose (Article 8 of the Labour Code) and there are no grounds for refusing to 
permit a labour court to examine the reasons for the notice of termination of a 
fixed-term employment contract in a situation where it is necessary to determine 
whether those reasons are discriminatory. It is apparent from Article 183b § 1(1) of 
the Labour Code that an employer treating a worker differently on one or more of 
the grounds referred to in Article 183a § 1 of that code (that is, inter alia, on the 
grounds of gender) is to be considered to be in breach of the principle of equal 
treatment in employment where the effects of such a difference in treatment 
include the termination of an employment relationship, regardless of whether that 
relationship was established on the basis of an employment contract of indefinite 
duration or a contract with a fixed term. Consequently, in the particular situation 
described above, the Sąd Najwyższy accepted the possibility of reviewing and 
assessing the reasons for the notice of termination of a fixed-term contract, despite 
the fact that the employer is still not obliged to state such reasons in the 
declaration of notice of termination of a fixed-term contract. 
28 […] The Sąd Najwyższy [also stated] […] that there are doubts as to the correct 
implementation in the Polish legal order of Directive 1999/70 (in this case Clause 
No 4(1) of the framework agreement [on fixed-term work concluded by ETUC, 
UNICE and CEEP]) and consequently that there are serious doubts as to whether 
Article 30 § 4 of the Labour Code is contrary to EU law. At the same time […] the 
Sąd Najwyższy stated […] that an entity which is not an emanation of the State 
(the defendant employer) cannot bear liability for unlawfulness in the form of 
incorrect implementation of Directive 1999/70, and consequently the Sąd 
Najwyższy found that it is not entitled to disregard Article 30 § 4 of the Labour 
Code in the case under consideration since even a clear, precise and unconditional 
provision of a directive seeking to confer rights on or impose obligations on 
individuals cannot of itself apply in a dispute exclusively between private persons 
[…]. [Or. 9] 
29 At the same time, the court hearing the present case states that the Court of Justice 
of the European Union has also ruled on a number of occasions on the issue of 
discrimination based on the kind of employment contract concerned. 
30 In its judgment of 25 July 2018 in Gardenia Vernaza Ayovi, C-96/17, the Court of 
Justice held that the concept of ‘employment conditions’ within the meaning of 
Clause No 4(1) of the framework agreement [on fixed-term work concluded by 
X, A LIMITED LIABILITY COMPANY 
 
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ETUC, UNICE and CEEP] also covers conditions relating to termination of a 
fixed-term employment contract. Consequently, the court hearing the case 
considers that the above clause applies in the present case. 
31 The Court of Justice expressed a similar view in its judgment of 13 March 2014 in 
Nierodzik, C-38/13. 
32 [Subject matter of the reference for a preliminary ruling in Case C-38/13 and the 
operative part of the judgment] […]. 
33 […]. [After the Court of Justice delivered its judgment in Nierodzik, C-38/13, 
amendments were made to the Polish Labour Code] 
34 It is also worth emphasising that, under Article 30 of the Charter of Fundamental 
Rights of the European Union, every worker has the right to protection against 
unjustified dismissal, in accordance with Union law and national laws and 
practices. [Or. 10] By contrast, in the case of fixed-term contracts the national 
legislation at issue in principle excludes the possibility of a labour court 
examining whether the dismissal of a worker employed on the basis of such a 
contract is justified and consequently excludes the right to protection arising from 
Article 30 of the Charter. 
35 In relation to the issue of the horizontal effect of Directive 1999/70, the court 
hearing the case points to the judgment of the Court of Justice […] of 22 January 
2019 in Cresco, C-193/17. In that ruling the Court of Justice […] referred, in the 
first place, to its settled case-law, according to which a directive cannot of itself 
impose obligations on an individual and cannot therefore be relied upon as such 
against an individual. If the possibility of relying on a directive that has not been 
transposed, or has been incorrectly transposed, were to be extended to the sphere 
of relations between individuals, that would amount to recognising a power in the 
European Union to enact obligations for individuals with immediate effect, 
whereas it has competence to do so only where it is empowered to adopt 
regulations (judgment of 6 November 2018, Bauer and Willmeroth, C-569/16 and 
C-570/16, EU:C:2018:871, paragraph 76 and the case-law cited). However, if, 
because of the unequivocal wording of the provisions of national law, it is not 
possible to interpret them in a manner compatible with EU law, the Court of 
Justice […] found that the national court would nevertheless be obliged to 
guarantee individuals the legal protection afforded under Article 21 of the Charter 
and to guarantee the full effect of that article. 
36 Similarly, in its judgment of 19 April 2016 in DI, C-441/14, the Court of Justice 
ruled that EU law is to be interpreted as meaning that a national court adjudicating 
in a dispute between private persons falling within the scope of Directive 2000/78 
is required, when applying provisions of national law, to interpret those provisions 
in such a way that they may be applied in a manner that is consistent with the 
directive or, if such an interpretation is not possible, to disapply, where necessary, 
any provision of national law that is contrary to the general principle prohibiting 
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discrimination on the ground of age. Neither the principles of legal certainty and 
the protection of legitimate expectations nor the fact that it is possible for the 
private person who considers that he or she has been wronged by the application 
of a provision of national law [Or. 11] that is at odds with EU law to bring 
proceedings to establish the liability of the Member State concerned for breach of 
EU law can alter that obligation. 
37 At the same time, it should be noted that in both the cases cited above the 
impermissible criteria for differentiating between workers (namely religion in the 
case of Cresco and age in the case of DI) are referred to expressly in Article 21 of 
the Charter, as the Court of Justice explicitly emphasises when stating the grounds 
for its position on the horizontal effect of the provisions of Directive 2000/78. 
However, employment on the basis of a fixed-term contract is not mentioned in 
Article 21 of the Charter as a discriminatory criterion. In this respect, the first 
paragraph of that provision establishes a prohibition on any discrimination but the 
criteria mentioned therein do not constitute an exhaustive list, as is clear from the 
use of the wording ‘Any discrimination based on any ground such as … shall be 
prohibited.’ 
38 The abovementioned national legislation and case-law […], in combination with 
the cited rulings of the Court of Justice […] and in particular the differences, 
resulting from them, in the assessment of whether or not there is discrimination on 
the ground of the kind of employment contract concerned, and also as regards the 
possibility of private parties relying directly on the provisions of Directive 
1999/70 and the [framework] agreement [on fixed-term work concluded by 
ETUC, UNICE and CEEP] in a dispute before a national court, make it necessary 
for the national court to refer the present questions to the Court of Justice […] for 
a preliminary ruling, pursuant to Article 267 of the Treaty on the Functioning of 
the European Union. In the view of the referring court, answers to these questions 
are necessary in order to give a judgment in the present case because they will 
determine, firstly, whether it is possible for that court to apply directly the 
abovementioned provisions of EU law, and will subsequently define the scope of 
the review of whether the notice of termination given to the applicant was correct 
since under national law failure to provide an explanation for the notice of 
termination (where required by law) renders it defective and provides a basis for 
granting the worker inter alia a right to compensation, but only in relation to 
contracts of indefinite duration. In addition, the answer to the first question 
referred in the present case will resolve nationwide the issue of the scope of a 
labour court’s review of the correctness of a notice of termination of a fixed-term 
contract, that is to say, the issue of whether the review must be limited to the 
formal requirements alone or whether it is also to cover the well-foundedness and 
correctness of the reasons for the notice of termination and also the claims which 
can be made by virtue of such a defective notice of termination. At the same time 
employers will receive clear guidance [Or. 12] on how to formulate declarations 
of intent to terminate a fixed-term contract so that those declarations comply with 
the law and do not expose those employers to negative consequences in disputes 
before the courts. 
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39 Furthermore, the need to ask the second question arises from the very fact that the 
Court of Justice is asked to answer the first question. If the Court of Justice 
answers the first question in the affirmative, without clarifying the issue of the 
horizontal effect of the EU rules under examination, two separate regimes for 
giving notice of termination of fixed-term contracts would begin to operate under 
Polish law, that is to say, in the case of those contracts concluded by employers 
constituting, in a broad sense, an emanation of the State, the employer would be 
obliged to tell the worker of the reasons justifying the notice of termination of the 
contract (and consequently the well-foundedness of the notice of termination 
would be subject to judicial review), but private employers would still be under no 
obligation to state the reasons for declarations of notice of termination and their 
workers would be deprived of the possibility of challenging the well-foundedness 
of the notices of termination given to them before a labour court. 
The questions referred 
40 In the light of the uncertainties set out above, the Sąd Rejonowy dla Krakowa 
Nowej Huty w Krakowie (District Court for Kraków-Nowa Huta in Kraków) has 
decided to refer the following questions to the Court of Justice of the European 
Union for a preliminary ruling: 
1. Is Article 1 of Council Directive 1999/70/EC of 28 June 1999 concerning 
the framework agreement on fixed-term work concluded by ETUC, UNICE 
and CEEP, and also Clauses Nos 1 and 4 of that framework agreement, to be 
interpreted as precluding provisions of national law obliging employers to 
state in writing the reasons for a decision giving notice of termination of an 
employment contract only in relation to employment contracts of indefinite 
duration, and consequently subjecting to judicial review the well-foundedness 
of the reasons for the notice of termination of contracts of indefinite duration, 
without at the same time imposing such an obligation on employers (that is to 
say, an obligation to state the reasons [Or. 13] justifying the notice of 
termination) in relation to fixed-term employment contracts (as a result of 
which only the issue of the compliance of the notice of termination with the 
provisions on termination of contracts is subject to judicial review)? 
2. May the parties to a dispute before a court of law, in which private 
parties appear on both sides, rely on Clause No 4 of the abovementioned 
framework agreement and the general EU-law principle of non-
discrimination (Article 21 of the Charter of Fundamental Rights of the 
European Union), and consequently do the rules referred to above have 
horizontal effect?