Case C‑331/17

Martina Sciotto

v

Fondazione Teatro dell’Opera di Roma

(Request for a preliminary ruling from the Corte d’appello di Roma)

(Reference for a preliminary ruling — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clause 5 — Measures to prevent the misuse of successive fixed-term employment contracts or relationships — National legislation excluding the application of those measures in the sector of activity of operatic and orchestral foundations)

Summary — Judgment of the Court (Tenth Chamber), 25 October 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 — National legislation excluding the application of those measures in the sector of activity of operatic and orchestral foundations — Not permissible — Lack of effective measures to penalise such abusive use

(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 precluding national legislation, such as that at issue in the main proceedings, pursuant to which the common law rules governing employment relationships and intended to penalise the misuse of successive fixed-term contracts by the automatic transformation of the fixed-term contract into a contract of indefinite duration if the employment relationship goes beyond a specific date are not applicable to the sector of activity of operatic and orchestral foundations, where there is no other effective measure in the domestic legal system penalising abuses identified in that sector.

Indeed, Clause 5(2) of the Framework Agreement in principle leaves it to the Member States to determine the conditions under which fixed-term employment contracts or relationships are to be regarded as contracts or relationships of indefinite duration. It follows that the Framework Agreement does not specify the conditions under which fixed-term contracts may be used (judgment of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 80, and order of 11 December 2014, León Medialdea, C‑86/14, not published, EU:C:2014:2447, paragraph 47).

However, in order for national legislation such as that at issue in the main proceedings — which, in the sector of operatic and orchestral foundations, prohibits a succession of fixed-term contracts from being converted into a contract of indefinite duration — to be regarded as compatible with the Framework Agreement, the domestic law of the Member State concerned must include, in that sector, another effective measure to prevent and, where relevant, punish the abuse of successive fixed-term contracts (see, by analogy, judgments of 14 September 2016, Martínez Andrés and Castrejana López, C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 41, and of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 34).

In that regard, where EU law does not lay down any specific penalties in the event that instances of abuse are nevertheless established, it is incumbent on the national authorities to adopt measures that are not only proportionate, but also sufficiently effective and a sufficient deterrent to ensure that the provisions adopted pursuant to the Framework Agreement are fully effective (judgments of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 77 and the case-law cited, and of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 29).

Therefore, where abuse of successive fixed-term employment contracts or relationships has taken place, a measure offering effective and equivalent guarantees for the protection of workers must be capable of being applied in order duly to punish that abuse and nullify the consequences of the breach of EU law (see, to that effect, judgments of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 79 and the case-law cited, and of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 31).

(see paras 59, 60, 64, 65, 72, operative part)