Opinion of the Advocate General — ECLI:EU:C:2014:2103
Date: 2014-07-17
Language of the case: Italian
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary — Judgment of the Court (Third Chamber), 26 November 2014 1. Questions referred for a preliminary ruling — Admissibility — Jurisdiction of the national court to determine the need for the questions — General or hypothetical questions — Inadmissible (Art. 267 TFEU) 2. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Scope — Workers recruited as a teacher or administrator to act by way of replacement on an annual basis in schools administered by the State — Included (Council Directive 1999/70, annex, clauses 2, 3(1) and 5) 3. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Measures to prevent the misuse of successive fixed-term employment contracts — National legislation which, pending the completion of competitive selection procedures for the recruitment of tenured staff of schools administered by the State, authorises the renewal of fixed-term employment contracts to fill posts that are vacant and unfilled — No definite period for the completion of the competitive selection procedures — Exclusion of the possibility for the staff of obtaining compensation for any damage suffered on account of such a renewal — Impermissibility — Obligation of the Member States to lay down measures intended to punish the misuse of successive fixed-term employment contracts (Council Directive 1999/70, annex, clause 5(1)) 1. See the text of the decision. (see paras 47-50) 2. It is apparent from the very wording of clause 2(1) 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, that the scope of that agreement is conceived in broad terms, as it covers generally ‘fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State’. In addition, the definition of ‘fixed-term workers’ for the purposes of the framework agreement, set out in clause 3(1), encompasses all workers without drawing a distinction according to whether their employer is in the public, or private, sector and regardless of the classification of their contract under domestic law. The framework agreement therefore applies to all workers providing remunerated services in the context of a fixed-term employment relationship linking them with their employer, in so far as they are linked by an employment contract within the meaning of national law, subject to the sole provisos of the margin of discretion conferred on Member States by clause 2(2) of the framework agreement as to the application of the latter to certain categories of employment contracts or relationships and of the exclusion, in accordance with the fourth paragraph of the preamble to the framework agreement, of temporary agency workers. It follows that the framework agreement does not exclude any particular sector from its scope and that it is therefore applicable to staff recruited in the education sector. This conclusion is borne out by the contents of clause 5(1) of the framework agreement, which, in conformity with the third paragraph of its preamble and paragraphs 8 and 10 of its general considerations, makes it possible for Member States, when implementing the agreement, to take account of the particular needs of the specific sectors and/or categories of workers involved, provided that that is justified on objective grounds. It follows that workers who have been recruited as a teacher or administrator to act by way of replacement on an annual basis in schools administered by the State under employment contracts within the meaning of national law, and who indisputably do not fall within the employment relationships capable of being excluded from the scope of the framework agreement, are covered by the provisions of that agreement, including clause 5 thereof. (see paras 67-71) 3. Clause 5(1) 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 precluding national legislation which, pending the completion of competitive selection procedures for the recruitment of tenured staff of schools administered by the State, authorises the renewal of fixed-term employment contracts to fill posts of teachers and administrative, technical and auxiliary staff that are vacant and unfilled without stating a definite period for the completion of those procedures and while excluding any possibility, for those teachers and staff, of obtaining compensation for any damage suffered on account of such a renewal. It appears, subject to the checks to be carried out by the referring courts, that such legislation, first, does not permit objective and transparent criteria to be identified in order to verify whether the renewal of those contracts actually responds to a genuine need, is capable of achieving the objective pursued and is necessary for that purpose, and second, does not contain any other measure intended to prevent and punish the misuse of successive fixed-term employment contracts. National legislation which allows the renewal of fixed-term employment contracts for the purpose of replacing, first, staff of schools administered by the State pending the outcome of competitive selection procedures for the recruitment of tenured staff and, second, staff of those schools who are momentarily unable to perform their tasks is not per se contrary to the framework agreement. The temporary replacement of a worker in order to satisfy, in essence, the employer’s temporary staffing requirements may, in principle, constitute an ‘objective reason’ within the meaning of clause 5(1)(a) of the framework agreement. First of all, in a sector of the public services with a large workforce, such as the education sector, it is inevitable that temporary replacements will frequently be necessary due to, inter alia, the unavailability of members of staff on sick, maternity, parental or other leave. Second, education is a fundamental right guaranteed by the constitution of the Member State which obliges that State to organise the school service in such a way as to ensure that teacher-pupil ratios are constantly appropriate. It cannot be denied that their appropriateness depends on a multitude of factors, some of which may, to a certain extent, be difficult to control or predict, such as, in particular, external and internal migration flows or pupils’ subject choices. Finally, where, in the schools administered by it, a Member State grants access to permanent employment — by means of the grant of tenure — only to staff who have passed a competition, it may also be objectively justified, under clause 5(1)(a) of the framework agreement, for the posts that are to be filled to be covered by successive fixed-term employment contracts pending the completion of the competitions. However, whilst national legislation permitting the renewal of successive fixed-term employment contracts in order to replace staff pending the outcome of competitive selection procedures is capable of being justified by an objective reason, the actual application of that reason must be consistent with the requirements of the framework agreement, having regard to the particular features of the activity concerned and to the conditions under which it is carried out. When applying that legislation, the competent authorities must therefore be in a position to identify objective and transparent criteria in order to verify whether the renewal of such contracts actually responds to a genuine need, is capable of achieving the objective pursued and is necessary for that purpose. In order for clause 5(1)(a) of the framework agreement to be complied with, it must therefore be specifically verified that the renewal of successive fixed-term employment contracts or relationships is intended to cover temporary needs and that a national provision is not, in fact, being used to meet fixed and permanent staffing needs of the employer. It is necessary for that purpose to consider in each case all the circumstances at issue, taking account, in particular, of the number of successive contracts concluded with the same person or for the purposes of performing the same work, in order to ensure that fixed-term employment contracts or relationships, even those ostensibly concluded to meet a need for replacement staff, are not misused by employers. Consequently, the mere fact that the national legislation at issue may be justified by an ‘objective reason’ within the meaning of clause 5(1)(a) of the framework agreement cannot be sufficient to render it consistent with that provision if it is apparent that the actual application of the legislation leads, in practice, to misuse of successive fixed-term employment contracts. In this regard, the period required for teachers to be granted tenure under a national regime is both variable and uncertain. First, no definite period is set for organisation of the competitive selection procedures. Second, since the grant of tenure as a result of teachers’ progressing up the ranking list is dictated by the overall duration of the fixed-term employment contracts and by the posts that have in the meantime become vacant, such grant depends on fortuitous and unpredictable circumstances. It follows that, although, under national legislation permitting the renewal of successive fixed-term employment contracts in order to replace staff pending the outcome of competitive selection procedures recourse to fixed-term employment contracts for the purpose of filling by way of replacement on an annual basis posts that are vacant and unfilled is expressly limited to just a temporary period that comes to an end when the competitive selection procedures are completed, such legislation does not make it possible to be sure that the actual application of an objective reason is consistent with the requirements of the framework agreement. Furthermore, budgetary considerations do not in themselves constitute an aim pursued by social policy and, therefore, cannot justify the lack of any measure to prevent the misuse of successive fixed-term employment contracts. So far as concerns the existence of measures intended to punish the misuse of successive fixed-term employment contracts, whilst it is true that a Member State is entitled, when implementing clause 5(1) of the framework agreement, to take account of the needs of a specific sector, such as the education sector, that right cannot be understood as permitting it to dispense with observance of the obligation to lay down an appropriate measure for duly punishing the misuse of such contracts. (see paras 91, 92, 94, 96, 99, 101, 102, 104-108, 110, 114, 118, 120, operative part)