Case C‑494/16

Giuseppa Santoro

v

Comune di Valderice and Presidenza del Consiglio dei Ministri

(Request for a preliminary ruling from the Tribunale di Trapani)

(Reference for a preliminary ruling — Social policy — Fixed-term work — Contracts concluded with a public sector employer — Measures to penalise the misuse of fixed-term contracts — Principles of equivalence and effectiveness)

Summary — Judgment of the Court (First Chamber), 7 March 2018

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 — Contracts concluded with a public sector employer — National legislation which does not punish the misuse of such contracts through the payment of compensation to the worker concerned for the lack of conversion of the fixed-term employment relationship into an employment relationship of indefinite duration — Granting of other compensation together with the possibility for that worker to obtain full compensation arising from the loss of opportunities to find employment or the loss of the opportunity to pass an administrative competition — Lawfulness — Condition — Existence of an effective and dissuasive penalty mechanism — Verification by the national court

(Council Directive 1999/70, Annex, Clause 5)

Clause 5 of the framework agreement on fixed-term work concluded on 18 March 1999, which is 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, must be interpreted as not precluding national legislation which, on the one hand, does not punish the misuse of successive fixed-term contracts by a public sector employer through the payment of compensation to the worker concerned for the lack of conversion of the fixed-term employment relationship into an employment relationship of indefinite duration, but, on the other hand, provides for the grant of compensation of between 2.5 and 12 times the last monthly salary of that worker together with the possibility for him to obtain full compensation for the harm by demonstrating, by way of presumption, the loss of opportunities to find employment or that, if a recruitment competition had been duly organised, he would have been successful, provided that such legislation is accompanied by an effective and dissuasive penalty mechanism, a matter which is for the referring court to verify.

Given the difficulties inherent in demonstrating the existence of a loss of opportunity, it should be noted that a mechanism of presumption designed to guarantee a worker who has suffered a loss of employment opportunities, due to the misuse of successive fixed-term contracts, the possibility of nullifying the consequences of such a breach of EU law is such as to satisfy the requirement of effectiveness.

In any event, the fact that the measure adopted by the national legislature in order to penalise the misuse of fixed-term contracts by private sector employers constitutes the most extensive protection that may be granted to a worker cannot, in itself, result in a reduction of the effectiveness of the national measures applicable to workers in the public sector.

(see paras 50, 51, 54, operative part)