Order of the Court (Sixth Chamber) of 23 November 2009 – Lagoudakis and Others v Kéntro Anoiktis Prostasias Hlikiomenon Dimou Rethymnis and Others

(Joined Cases C‑162/08 to C-164/08)

First subparagraph of Article 104(3) of the Rules of Procedure – Social policy – Directive 1999/70/EC – Clauses 5 and 8 of the framework agreement on fixed-term work – Fixed-term employment contracts in the public sector – First or single use of a contract – Successive contracts – Equivalent legal measure – Reduction in the general level of protection afforded to workers – Measures intended to prevent abuse – Penalties – Absolute prohibition of conversion of fixed-term employment contracts into contracts of indefinite duration in the public sector – Consequences of the incorrect transposition of a directive – Interpretation in conformity with Community law

1. 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, clauses 5(1)(a) and 8(3)) (see para. 11, operative part 1-2)

2. Social policy – Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 – Prohibition on reducing the general level of protection of workers in the field of that agreement (Council Directive 1999/70, Annex, clauses 5(1), and 8(3)) (see para. 11, operative part. 3-5)

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, clauses 5(1), and 8(3)) (see para. 11, operative part 6-8)

Re:

Reference for a preliminary ruling – Monomeles Protodikio Rethimnis – Interpretation of clauses 5 and 8(1) and (3) 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) – Prohibition against adopting national measures in the guise of transposition when an equivalent national measure within the meaning of Article 5(1) of the Framework Agreement already exists and the new measures reduce the level of protection afforded to fixed-term workers.

Operative part

1. Clause 5(1) of the Framework Agreement on fixed-term work concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as not precluding the adoption by a Member State of national legislation, such as Presidential Decree No 164/2004 laying down provisions concerning workers employed under fixed-term contracts in the public sector, which, for the purposes specifically of transposing Directive 1999/70 so as to implement the provisions of that directive in the public sector, provides for the implementation of the measures to prevent the misuse of successive fixed-term employment contracts or relationships which are listed in clause 5(1)(a) to (c) where – which it is for the national court to ascertain – an ‘equivalent legal measure’ within the meaning of that clause already exists under national law, such as Article 8(3) of Law No 2112/1920 on compulsory notice of termination of contracts of employment of employees in the private sector, provided, however, that that legislation (i) does not affect the effectiveness of the prevention of the misuse of fixed-term employment contracts or relationships resulting from that equivalent legal measure, and (ii) complies with Community law and, in particular, with clause 8(3) of the Framework Agreement.

2. Clause 5(1)(a) of the Framework Agreement on fixed-term work must be interpreted as precluding the application of national legislation, such as that at issue in the main proceedings, by the authorities of the Member State concerned in such a way that the renewal of successive fixed-term employment contracts in the public sector is deemed to be justified by ‘objective reasons’ within the meaning of that clause solely on the ground that those contracts are founded on legal provisions allowing them to be renewed in order to meet certain temporary needs when, in fact, those needs are fixed and permanent. By contrast, clause 5(1)(a) does not apply to the first or single use of a fixed-term employment contract or relationship.

3. Clause 8(3) of the Framework Agreement on fixed-term work must be interpreted as meaning that the ‘reduction’ with which that clause is concerned must be considered in relation to the general level of protection applicable in the Member State concerned both to workers who have entered into successive fixed-term employment contracts and to workers who have entered into a first or single fixed-term employment contract.

4. Clause 8(3) of the Framework Agreement on fixed-term work must be interpreted as not precluding national legislation, such as Presidential Decree No 164/2004, which, unlike an earlier rule of domestic law such as Article 8(3) of Law No 2112/1920, (i) no longer provides for fixed-term employment contracts to be recognised as contracts of indefinite duration where abuse arises from the use of such contracts in the public sector, or which makes such recognition subject to certain cumulative and restrictive conditions, and (ii) excludes from the benefit of the protection measures provided workers who have entered into a first or single fixed-term employment contract, where – which it is for the national court to ascertain – such amendments relate to a limited category of workers having entered into a fixed-term employment contract or are offset by the adoption of measures to prevent the misuse of fixed-term employment contracts within the meaning of clause 5(1) of the Framework Agreement.

5. However, the implementation of the Framework Agreement by national legislation such as Presidential Decree No 164/2004 cannot have the effect of reducing the protection previously applicable, under the domestic legal order, to fixed-term workers to a level below that set by the minimum protective provisions laid down by the Framework Agreement. In particular, compliance with clause 5(1) of the Framework Agreement requires that such legislation should provide, in respect of the misuse of successive fixed-term employment contracts, effective and binding measures to prevent such misuse and penalties which are sufficiently effective and a sufficient deterrent to ensure that those preventive measures are fully effective. It is therefore for the referring court to establish that those conditions are fulfilled.

6. In circumstances such as those of the cases in the main proceedings, the Framework Agreement on fixed-term work must be interpreted as meaning that, where the domestic law of the Member State concerned includes, in the sector under consideration, other effective measures to prevent and, where relevant, punish the abuse of successive fixed-term employment contracts within the meaning of clause 5(1) of that agreement, it does not preclude the application of a rule of national law which prohibits absolutely, in the public sector only, the conversion into a contract of indefinite duration of a succession of fixed-term employment contracts which, having been intended to cover fixed and permanent needs of the employer, must be regarded as constituting an abuse. It is none the less for the referring court to determine to what extent the conditions for application and effective implementation of the relevant provisions of domestic law constitute a measure adequate for the prevention and, where relevant, the punishment of the misuse by the public authorities of successive fixed-term employment contracts or relationships.

7. By contrast, since clause 5(1) of the Framework Agreement is not applicable to workers who have entered into a first or single fixed-term employment contract, that provision does not require the Member States to adopt penalties where such a contract does in fact cover fixed and permanent needs of the employer.