Opinion of the Advocate General — ECLI:EU:C:2013:620
Date: 2013-09-26
Language of the case: Italian
Subject matter: Approximation of laws;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary — Judgment of the Court (Third Chamber), 12 December 2013 1. Judicial proceedings — Oral procedure — Reopening — No obligation to reopen the oral procedure in order to allow the parties to submit observations on points of law raised in the Opinion of the Advocate General — Invitation addressed to the Court to request clarification from the referring court and to allow the parties in another case, pending before the Court, to submit observations — Not permissible (Arts 252, second para., TFEU and 267 TFEU; Rules of Procedure of the Court of Justice, Arts 83 and 101) 2. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Prohibition on discriminating against fixed‑term workers — Direct effect — Body wholly owned and supervised by the State — Possibility of relying on that prohibition against that body (Council Directive 1999/70, Annex, Clause 4(1)) 3. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Objectives (Council Directive 1999/70) 4. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Prohibition on discriminating against fixed‑term workers — Conditions of employment — Concept — Compensation that must be paid to an employee on account of the unlawful insertion of a fixed-term clause into his employment contract — Included (Council Directive 1999/70, Annex, Clause 4(1)) 5. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Prohibition on discriminating against fixed‑term workers — System of compensation for the unlawful insertion of a fixed-term clause into an employment contract which is different from that applicable to the unlawful termination of an employment contract of indefinite duration — Fixed-term workers and permanent workers who are not in a comparable situation — Lawfulness — Member States’ right to introduce more favourable provisions for fixed-term workers (Council Directive 1999/70, Annex, clauses 4(1) and 8(1)) 1. See the text of the decision. (see paras 18-20) 2. Clause 4(1) of the Framework agreement on fixed-term work, 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 it may be relied on directly against a body wholly owned and supervised by the State. (see paras 30, 31, operative part 1) 3. See the text of the decision. (see paras 33, 40) 4. Clause 4(1) of the Framework agreement on fixed-term work, 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 the concept of ‘employment conditions’ covers the compensation that the employer must pay to an employee on account of the unlawful insertion of a fixed-term clause into his employment contract. The decisive criterion for determining whether a measure falls within the scope of ‘employment conditions’, within the meaning of that clause of the framework agreement, is the criterion of employment, that is to say the employment relationship between a worker and his employer. It is not disputed that the compensation in question is paid to a worker on account of the employment relationship between that worker and his employer. As that compensation is paid on account of employment, it falls within the scope of ‘employment conditions’. (see paras 35, 37, 38, operative part 2) 5. While the Framework agreement on fixed-term work, annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, does not preclude Member States from granting fixed-term workers more favourable treatment than that provided for by the framework agreement, clause 4(1) of the framework agreement must be interpreted as not requiring the compensation paid in respect of the unlawful insertion of a fixed-term clause into an employment relationship to be treated in the same way as that paid in respect of the unlawful termination of a permanent employment relationship. The situation in which one of those types of compensation is paid is significantly different from that in which the other is paid. The first type of compensation relates to workers whose employment contract was concluded unlawfully, whereas the second relates to employees who have been dismissed. Even if the formulation of clause 4(1) of the framework agreement does not lead to the conclusion that the compensation for the unlawful insertion of a fixed-term clause into an employment contract and that applicable to the termination of an employment contract of indefinite duration relate to workers who can be regarded as being in a comparable situation, it is apparent, however, from a reading of clause 4(1) in conjunction with clause 8(1) of the framework agreement that they enable Member States that so wish to introduce more favourable provisions for fixed-term workers and, therefore, to treat, in certain situations, the economic consequences of the unlawful insertion of a fixed-term clause into an employment contract in the same way as those of the unlawful termination of an employment contract of indefinite duration. (see paras 44, 47, 48, operative part 3)