Case C‑238/14

European Commission

v

Grand Duchy of Luxembourg

‛Failure of a Member State to fulfil obligations — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Occasional workers in the entertainment arts — Successive fixed-term employment contracts — Clause 5(1) — Measures to prevent the abusive use of successive fixed-term contracts — Concept of ‘objective grounds’ justifying such contracts’

Summary — Judgment of the Court (Third Chamber), 26 February 2015

Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Measures to prevent abusive use of successive fixed-term contracts — National legislation maintaining in force derogations from the such measures for occasional workers in the entertainment arts — Not permissible — Member States’ obligation to provide for measures designed to prevent and punish such abusive use

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

A Member State fails to fulfil its obligations under Clause 5 of the Framework Agreement on fixed-term work of 18 March 1999, which is set out in the Annex to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, by maintaining in force, with respect to occasional workers in the entertainment arts, derogations from the measures designed to prevent the abusive use of successive fixed-term contracts.

Even supposing that the national legislation at issue pursues the objective to provide occasional workers in the entertainment arts with a measure of flexibility, as well as social benefits, by making it possible for employers of that category of worker to recruit on the basis of recurring fixed-term employment contracts, such an objective cannot bring that legislation into conformity with Clause 5(1)(a) of the Framework Agreement, since it does not prove the existence of specific and concrete circumstances characterising the activity in question and therefore justifying, in that particular context, the use of successive fixed-term employment contracts.

In addition, it must be pointed out that, while it is true that, as has already been pointed out in paragraph 40 above, a Member State is entitled, when implementing Clause 5(1) of the Framework Agreement, to take account of the particular needs of a specific sector, that right cannot be understood as allowing that Member State to consider itself, in respect of that sector, relieved of the obligation to provide an adequate measure to prevent and, if necessary, to penalise the abusive use of successive fixed-term contracts. To permit a Member State to rely on an objective such as the flexibility deriving from the use of fixed-term employment contracts in order to regard itself as relieved of that obligation would be in contradiction with one of the objectives pursued by the Framework Agreement, that is to say, stability of employment, considered to be a major element in the protection of workers, and would also be likely to reduce significantly the categories of person able to enjoy the benefit of the protective measures provided for in Clause 5 of the Framework Agreement.

(see paras 50, 51, 53, operative part)

Case C‑238/14

European Commission

v

Grand Duchy of Luxembourg

‛Failure of a Member State to fulfil obligations — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Occasional workers in the entertainment arts — Successive fixed-term employment contracts — Clause 5(1) — Measures to prevent the abusive use of successive fixed-term contracts — Concept of ‘objective grounds’ justifying such contracts’

Summary — Judgment of the Court (Third Chamber), 26 February 2015

Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Measures to prevent abusive use of successive fixed-term contracts — National legislation maintaining in force derogations from the such measures for occasional workers in the entertainment arts — Not permissible — Member States’ obligation to provide for measures designed to prevent and punish such abusive use

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

A Member State fails to fulfil its obligations under Clause 5 of the Framework Agreement on fixed-term work of 18 March 1999, which is set out in the Annex to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, by maintaining in force, with respect to occasional workers in the entertainment arts, derogations from the measures designed to prevent the abusive use of successive fixed-term contracts.

Even supposing that the national legislation at issue pursues the objective to provide occasional workers in the entertainment arts with a measure of flexibility, as well as social benefits, by making it possible for employers of that category of worker to recruit on the basis of recurring fixed-term employment contracts, such an objective cannot bring that legislation into conformity with Clause 5(1)(a) of the Framework Agreement, since it does not prove the existence of specific and concrete circumstances characterising the activity in question and therefore justifying, in that particular context, the use of successive fixed-term employment contracts.

In addition, it must be pointed out that, while it is true that, as has already been pointed out in paragraph 40 above, a Member State is entitled, when implementing Clause 5(1) of the Framework Agreement, to take account of the particular needs of a specific sector, that right cannot be understood as allowing that Member State to consider itself, in respect of that sector, relieved of the obligation to provide an adequate measure to prevent and, if necessary, to penalise the abusive use of successive fixed-term contracts. To permit a Member State to rely on an objective such as the flexibility deriving from the use of fixed-term employment contracts in order to regard itself as relieved of that obligation would be in contradiction with one of the objectives pursued by the Framework Agreement, that is to say, stability of employment, considered to be a major element in the protection of workers, and would also be likely to reduce significantly the categories of person able to enjoy the benefit of the protective measures provided for in Clause 5 of the Framework Agreement.

(see paras 50, 51, 53, operative part)