Order of the Court (Sixth Chamber) of 1 October 2010 – Affatato v Azienda Sanitaria Provinciale di Cosenza

(Case C‑3/10)

Article 104(3) of the Rules of Procedure – Social policy – Directive 1999/70/EC – Clause 5 of the Framework Agreement on fixed-term work – Fixed-term employment contracts in the public sector – Successive contracts – Abuse – Preventive measures – Sanctions – Conversion of fixed-term contracts to a contract of unlimited duration – Prohibition – Compensation for damage – Principles of equivalence and effectiveness

1. Preliminary rulings – Admissibility – Limits – Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer (Art. 267 TFEU) (see paras 27-33, operative part 1)

2. Social policy – Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 – Measures to prevent abuse of successive fixed-term contracts (Art. 4(2) EU; Council Directive 1999/70, Annex, Clause 5) (see paras 50-51, operative part 2)

3. Social policy – Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 – Measures to prevent abuse of successive fixed-term contracts (Council Directive 1999/70, Annex) (see paras 59-60, 63, operative part 3)

Re:

Reference for a preliminary ruling – Tribunale di Rossano – Interpretation of clauses 2, 3, 4 and 5 of 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 (OJ 1999 L 175, p. 43) – Compatibility of certain provisions of national law on socially useful workers/publicly useful workers – National legislation that allows the reason for the first fixed-term contract for workers in the education sector not to be stated – Concept of a state body – Inclusion of a person with the characteristics of Poste Italiane SpA.

Operative part

1. The first 12 questions referred for a preliminary ruling by the Tribunale di Rossano (Italy), by decision of 21 December 2009, are clearly inadmissible;

2. Clause 5 of the Framework Agreement on fixed-term work concluded on 18 March 1999, which is attached as an 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 (OJ 1999 L 175, p. 43), must be interpreted as follows:

– it does not preclude national legislation, such as that in Article 36(5) of Legislative Decree No 165 of 30 March 2001 laying down general rules concerning the organisation of employment in public administrations, which prohibits, in the event of abuse resulting from the use of successive fixed-term employment contracts by a public sector employer, the conversion of those contracts to a contract of unlimited duration, when the internal legal order of the Member State concerned contains, in the sector under consideration, other effective measures to avoid and, as necessary, penalise the abusive use of successive fixed-term contracts. Nevertheless, it is for the national court to assess to what extent the conditions for application and the effective implementation of the relevant provisions of domestic law constitute an adequate measure for the prevention and, as necessary, penalisation of the public administration’s abuse of successive fixed-term employment contracts or relationships;

– it is, as such, in no way liable to affect the fundamental political and constitutional structures or the essential functions of the Member State concerned within the meaning of Article 4(2) TEU.