Judgment;Summary — ECLI:EU:C:2022:361
Date: 2022-05-05
Language of the case: Dutch
Court formation: Seventh Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Belgium

summary, the dispute concerns the claim by FN (the appellant) for damages due 
to the alleged wrongful termination of his appointments as a professor at the 
Universiteit Antwerpen (first respondent, 'UA'). FN argues that a covert sanction 
has been applied because of his protests regarding the phasing out of his subject 
area, maritime and transport law, and his protests regarding his status. He argues 
that his status was phony (‘nepstatuut’) which, inter alia, is contrary to EU law.  
Over a period of twenty years, FN developed an academic career by virtue of 
some twenty consecutive temporary and part-time appointments. He was 
employed in the Faculty ‘Rechten en Toegepaste Economische Wetenschappen’ 
(‘Law and Applied Economic Sciences’, ‘TEW’). He argues that, by contrast, 
other colleagues with similar duties were appointed on a permanent and full-time 
statutory basis. [Or. 4] 
FN’s university career is as follows: 
Institution Start date Function Appointment 
percentage 
UFSIA 1.1.1990 Research 
Assistant 
50 
UFSIA 1.1.1992 Research 
Assistant 
50 
UFSIA 1.2.1994 Research 
Assistant 
50 
UFSIA 1.2.1995 Postdoc 50 
UIA 1.1.1995 Lecturer 10 
UFSIA 1.2.1997 Postdoc 30 
UIA 1.10.1997 Lecturer 10 
UIA 1.2.1998 Researcher 10 
REQUEST FOR A PRELIMINARY RULING OF 24. 3. 2020 — CASE C-265/20 
 
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UFSIA 15.03.1998 Researcher 50 
UFSIA 1.4.1998 Lecturer 10 
UIA 1.10.1998 Lecturer 10 
UIA 22.2.1999 Researcher 75 
UFSIA 1.10.2001 Lecturer 10 
UFSIA 1.10.2003 Senior Lecturer 20 
UFSIA 1.10.2004 Senior Lecturer 40 
UFSIA 1.10.2004 Senior Lecturer 30 
UA — TEW 1.10.2007 Senior Lecturer 50 
UA — Rechten 1.10.2007 Senior Lecturer 10 
UA — TEW 1.10.2008 Professor 50 
UA — Rechten 1.10.2008 Professor 10 
 
When his appointment came to be renewed in 2009, an appointment at 15% was 
proposed for TEW and at 5% for law, whereas previously those appointment 
percentages were 50% and 10% respectively, with a proposed decrease in the 
number of teaching hours from 165 hours to 135 hours.  
FN bases his claim on Articles 1382 et seq. of the Burgerlijk Wetboek 
(buitencontractuele aansprakelijkheid) (Civil Code (noncontractual liability)). 
Alternatively, he alleges unlawful dismissal. 
It is alleged that the Hogere Zeevaartschool (second respondent) colluded in UA’s 
misconduct. NG (fifth respondent) was the Director of the Hogere Zeevaartschool. 
PB (third respondent) was the Rector. ZK (fourth respondent) was Vice-Rector. 
ZN and UM (sixth and seventh respondents) were Deans. [Or. 5] 
2. The contested judgment 
In the contested judgment, FN's claim against the UA and the Hogere 
Zeevaartschool was declared admissible but unfounded. The claim against the 
other respondents was declared inadmissible. FN was ordered to pay the legal 
costs. 
3. Claims on appeal 
In summary, FN lodged an appeal with a view to having the contested judgment 
set aside, and to obtain a ruling from the court, considering the case anew, 
declaring the original claim admissible and well-founded and ordering the 
respondents, jointly and severally, to pay provisional damages of EUR 1, and 
appointing a panel of three legal experts to assess the material and non-material 
damage suffered and ordering the respondents to pay the legal costs. 
UNIVERSITEIT ANTWERPEN AND OTHERS 
 
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If the claim is not declared directly well-founded, FN asks that, before judgment is 
given, the following questions be referred to the Court of Justice for a preliminary 
ruling:  
‘Do Council Directive 1999/70/EC of 28 June 1999 concerning the framework 
agreement on fixed-term work concluded by ETUC, UNICE and [CEEP], Council 
Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement 
on part-term work concluded by UNICE, [CEEP] and the ETUC, and the general 
prohibition of discrimination under European Union law, preclude the 
interpretation and application by a university governed by public law of national 
legislation under which independent academic staff with full-time positions are 
appointed on a permanent basis, and staff with part-time positions may either be 
“appointed”, or be “employed on a temporary basis for renewable periods of a 
maximum of six years”:  
1. pursuant to which a professor charged with ongoing teaching assignments, 
research, chairing a scientific institute and social services, is employed over a 
period of twenty years on the basis of twenty consecutive, short-term and part-
time employment contracts and statutory appointments of between one and three 
years, using the justification of “freedom of policy”, while all his colleagues with 
similar duties were appointed on a permanent and full-time basis? 
2. pursuant to which that university stipulates in its staff regulations only a 
general minimum limit of an appointment percentage at 50 percent in order to be 
eligible for a permanent appointment, but does not lay down a single criterion on 
the basis of which the part-time staff appointed at 50 percent or greater can be 
appointed on a permanent or temporary basis? [Or. 6] 
3. pursuant to which that university employs a part-time professor charged with 
academic assignments belonging to the ongoing, structural activities of the 
university, on a temporary basis, not for consecutive periods totalling six years, 
but, throughout their entire career, for consecutive short periods of a maximum of 
six years each, more specifically, periods of one or three years?  
4. pursuant to which that university awards appointment percentages to a part-
time professor, using the justification of unlimited ‘freedom of policy’, without 
laying down objective criteria, and without applying any objective workload 
measurement? 
5. pursuant to which that university denies a temporary and part-time professor 
who has been treated in a manifestly arbitrary and discriminatory manner for 
twenty years, when, using the justification of the university’s “freedom of policy”, 
his employment is suddenly not renewed, the right to invoke the abusive nature of 
the employment conditions unilaterally imposed on him in the past, because he 
had, so to speak, always “accepted” those conditions by carrying out the 
allocated work, with the result that he forfeits the protection afforded by 
European Union law?’  
REQUEST FOR A PRELIMINARY RULING OF 24. 3. 2020 — CASE C-265/20 
 
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[…] [claim regarding legal costs] 
The first, third, fourth, sixth and seventh respondents submit that FN’s claim is 
unfounded and ask that FN be ordered to pay the legal costs. 
The second and fifth respondents submit that the appeal is unfounded and ask that 
FN be ordered to pay the legal costs. They each lodge an individual counterclaim, 
claiming damages of EUR 2 000 per party on the ground of a vexatious and 
reckless appeal.  
4. Assessment 
4.1. Admissibility 
[…]The appeal is […] admissible. [Or. 7] 
4.2. Exclusion [of a conclusion and of procedural documents from the 
deliberations] 
[…] [T]here are no reasons to exclude those documents [and the conclusion] from 
the deliberations. [Or. 8] 
4.[3]. The merits 
It is common ground between the parties that FN’s appointments are statutory. 
Inter alia, FN alleges discrimination and infringement of EU law. He refers to 
Council Directive 1999/70/EC of 28 June 1999 concerning the framework 
agreement on fixed-term work concluded by ETUC, UNICE and CEEP, to 
Council Directive 97/81/EC of 15 [December] 1997 concerning the Framework 
Agreement on part-time work concluded by UNICE, CEEP and the ETUC, to the 
prohibition of discrimination, and to Article 91 of the Universiteitendecreet 
(Decree concerning universities) of 12 June 1991.  
Clause 4.1 of the framework agreement on fixed-term work concluded on 
18 March 1999, and set out in the Annex to Council Directive 1999/70/EC of 
28 June 1999 concerning the framework agreement on fixed-term work concluded 
by ETUC, UNICE and CEEP, provides as follows:  
‘1. In respect of employment conditions, fixed-term workers shall not be treated in 
a less favourable manner than comparable permanent workers solely because 
they have a fixed-term contract or relation unless different treatment is justified 
on objective grounds.’  
UNIVERSITEIT ANTWERPEN AND OTHERS 
 
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It is common ground that FN can invoke clause 4 of that framework agreement 
[…] in respect of the first, third, fourth, sixth and seventh respondents […]. 
Clause 4.1 of the Framework Agreement on part-time work set out in the Annex 
to Council Directive 97/81/EC of 15 December 1997 concerning the Framework 
Agreement on part-time work concluded by UNICE, CEEP and the ETUC 
provides as follows:  
‘1. In respect of employment conditions, part-time workers shall not be treated in 
a less favourable manner than comparable full-time workers solely because they 
work part time unless different treatment is justified on objective grounds.’ [Or. 9] 
Moreover, it is also common ground between the parties that the (old) Article 91 
of the Decreet van 12 juni 1991 betreffende de universiteiten in de Vlaamse 
Gemeenschap (Decree of 12 June 1991 concerning universities in the Flemish 
Community; ‘Universiteitendecreet’) is applicable to the present dispute. The 
(old) article 91 of the Universiteitendecreet provided as follows:  
‘A member of the independent academic staff with a full-time position shall be 
appointed. A member of the independent academic staff with a part-time position 
may either be appointed or temporarily employed for renewable periods of a 
maximum of six years’  
Article 7 of the Statuut zelfstandig academisch personeel (Independent Academic 
Staff Regulations; ‘ZAP-statuut’) provides that a permanent appointment is 
possible in the case of employment at 50% or greater. No further criteria were laid 
down.  
There was a certain period during which FN was employed at 50% but he was 
never appointed permanently. 
FN argues that the way in which the UA applies the (old) Article 91 of the 
Universiteitendecreet is incompatible with the aforementioned European rules. 
The question is therefore whether Article 91 of the Universiteitendecreet is 
consistent with the aforementioned directives and framework agreements.  
The resolution of the present dispute therefore requires the prior interpretation of 
Community provisions, namely, with regard to their compatibility with Article 91 
of the Universiteitendecreet, so that it would seem appropriate here, since the 
Court of Justice of the European Union has not yet ruled on the possible 
interpretations to be given to Clause 4.1 of the framework agreements contained 
in Directive 1999/70/EC and Directive 97/81/EC which is at issue here, in 
conjunction with Article 91 of the Universiteitendecreet and the specific facts 
characterising the present dispute, to refer a question to the Court of Justice of the 
European Union for a preliminary ruling.  
However, the Hof van beroep considers it appropriate to reformulate the question 
proposed by FN as set out in the operative part of this judgment.  
REQUEST FOR A PRELIMINARY RULING OF 24. 3. 2020 — CASE C-265/20 
 
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[…] [instruction to a number of parties to lodge certain documents] [Or. 10] 
5. Decision 
[…] 
Before giving judgment, refers the following question to the Court of Justice of 
the European Union for a preliminary ruling in accordance with Article 234 of the 
EC Treaty:  
‘Must Clause 4.1 of the framework agreement on fixed-term work concluded on 
18 March 1999, as set out in the Annex to Council Directive 1999/70/EC of 
28 June 1999 concerning the framework agreement on fixed-term work concluded 
by ETUC, UNICE and CEEP, and Clause 4.1 of the Framework Agreement on 
part-time work set out in the Annex to Council Directive 97/81/EC of 
15 December 1997 concerning the Framework Agreement on part-time work 
concluded by UNICE, CEEP and the ETUC, be interpreted as precluding a 
university, on the basis of national legislation (Article 91 of the Decree 
concerning universities) under which independent academic staff with full-time 
positions are appointed on a permanent basis, and staff with part-time positions 
may either be appointed, or employed on a temporary basis for renewable periods 
of a maximum of six years, from being permitted to:  
1. employ a professor, using the justification of “freedom of policy”, over a 
period of twenty years on the basis of some twenty consecutive, short-term and 
part-time employment contracts and statutory appointments of between one and 
three years, without any limit on the total number of renewals, while other 
colleagues with similar duties were appointed on a permanent and full-time 
basis? 
2. stipulate in its staff regulations only a general minimum limit of an appointment 
percentage at 50 percent in order to be eligible for a permanent appointment, but 
not lay down a single criterion on the basis of which the part-time staff appointed 
at 50 percent or greater can be appointed on a permanent or temporary basis? 
[Or. 11] 
3. award appointment percentages to a part-time professor, using the justification 
of unlimited ‘freedom of policy’, without laying down objective criteria, and 
without applying any objective workload measurement? 
4. deny a temporary and part-time professor, when his employment is not 
renewed, using the justification of the university’s “freedom of policy”, the right 
to invoke the allegedly abusive nature of the past employment conditions, because 
he had, so to speak, always accepted those conditions by carrying out the 
allocated work, with the result that he forfeits the protection afforded by 
European Union law?’  
UNIVERSITEIT ANTWERPEN AND OTHERS 
 
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Rules that the proceedings be stayed pending the judgment of the Court of Justice 
in the matter […]. 
[…] [instructions to a number of parties to lodge certain documents] 
[…] 
[…] [procedural information] [Or. 12] 
This judgment was delivered in open court at the hearing of 24 March 2020: 
[…] 
[signatures]