Case C-380/07: Reference for a preliminary ruling from the Rethymnon Court of First Instance lodged on 8 August 2007 — Georgios Karabousanos and Sophocles Mikhopoulos v Municipality of Geropotamos
Date: 2007-11-10
Institutions: Court of Justice
Subjects: EU law - national law, framework agreement, interpretation of the law, labour law, temporary employment, work contract

10.11.2007

EN

Official Journal of the European Union

C 269/27

in interpreting national

4. If all the above questions are answered in the affirmative,
should the national court,
law in
accordance with Directive 1999/70/EC, disapply the provi-
sions of the legal measure which are not compatible with it,
but which were adopted by reason of the application of the
Framework Agreement and result
in a reduction in the
general
level of protection afforded to fixed-term workers
under national law, such as Articles 7 and 11 of Presidential
legal
Decree 164/2004 and apply instead an equivalent
measure which existed before the directive entered into force,
such as Article 8(3) of Law 2112/1920?

Reference for a preliminary ruling from the Rethymnon
Court of First
Instance lodged on 8 August 2007 —
Georgios Karabousanos and Sophocles Mikhopoulos v
Municipality of Geropotamos

(Case C-380/07)

(2007/C 269/49)

Language of the case: Greek

5. If the national court finds that — in principle — a provision
(in this case Article 8(3) of Law 2112/1920) that constitutes
an equivalent legal measure within the meaning of clause 5(1)
of the Framework Agreement on fixed-term work, which is
an integral part of Directive 1999/70/EC, is applicable to a
dispute over fixed-term work and, on the basis of that provi-
sion, the finding that successive contracts of employment
were concluded as a fixed-term contract for no objective
reason relating to the nature, type or features of the work
offered means that the contracts must be recognised as a
contract of employment of indefinite duration, then

Referring court

Rethymnon Court of First Instance

Parties to the main proceedings

(a) is it compatible with Community law for a national
court to interpret and apply national law to the effect
that the fact that a legal provision governing employment
under a fixed-term contract of employment in order to
meet seasonal, periodic,
temporary, exceptional needs
was used as the legal basis for concluding a fixed-term
contract constitutes an objective reason in all cases for
concluding such contracts, even though the requirements
covered were in fact fixed and permanent, and

(b) is it compatible with Community law for a national
court to interpret and apply national law to the effect
that a provision prohibiting the conversion of fixed-term
contracts of employment in the public sector to contracts
of indefinite duration must be construed as an absolute
prohibition in any circumstance to convert a fixed-term
employment contract or
relationship in the public
sector to an employment contract or relationship of
indefinite duration, even if it was wrongfully concluded
as a fixed-term contract, that is to say, when the require-
ments met were in fact fixed and permanent, and that
the national court has no discretion in such cases to
make a finding as to the true character of
the legal
employment relationship at issue and correctly qualify it
as a contract of indefinite duration? Alternatively should
the prohibition in question be restricted solely to fixed-
term contracts of employment which were in fact
concluded in order to meet temporary, unforeseeable,
urgent, exceptional or similar types of special require-
to cases in which they were in fact
ments and not
concluded in order to meet fixed and permanent require-
ments?

Applicants: Georgios Karabousanos and Sophocles Mikhopoulos

Defendant: Municipality of Geropotamos

Questions referred

1. Do clause 5 and clause 8(1) and (3) of the Framework Agree-
ment on fixed-term work concluded by ETUC, UNICE and
CEEP, which forms an integral part of Council Directive
1999/70/EC (OJ 1999 L 175 p. 43), mean that Community
law (by reason of the application of the said Framework
Agreement) does not allow a Member State to adopt
measures (a) where an equivalent legal measure within the
meaning of clause 5(1) of the Framework Agreement already
existed under national law before the directive entered into
force and (b) where the measures adopted in order to apply
the Framework Agreement reduce the general level of protec-
tion afforded to fixed-term workers under national law?

legal measure under national

2. If question 1 is answered in the affirmative, where there is an
equivalent
law, within the
meaning of clause 5(1) of the Framework Agreement, which
existed before Directive 1999/70/EC entered into force, such
as Article 8(3) of Law 2112/1920 at issue in the main
proceedings, is the adoption of a legal measure by reason of
the application of
such as
Article 11 of Presidential Decree 164/2004 at issue in the
main proceedings, an unacceptable reduction in the general
level [of protection] afforded to fixed-term workers under
national law within the meaning of clause 8(1) and (3) of the
Framework Agreement:

the Framework Agreement,

(a) when the legal measure in question applying the Frame-
work Agreement was adopted after the time-limit for
transposing Directive 1999/70/EC had elapsed, but only
fixed-term employment
and relationships
which were in effect before its entry into force or had

contracts

C 269/28

EN

Official Journal of the European Union

10.11.2007

expired within a certain period before its entry into force
but after the time-limit for transposing the Directive had
elapsed fall within its chronological scope, although the
equivalent legal measure which already existed does not
have a chronologically restricted scope of application and
covers all fixed-term employment contracts which had
been concluded, were in effect or had expired when
Directive 199/70/EC came into force and the time-limit
for its transposition had elapsed;

level of protection afforded to fixed-term workers under
national law within the meaning of clause 8(1) and (3) of the
Framework Agreement, when that provides, as the sole
means of protection of fixed-term workers from abuse, for
an obligation on the part of the employer to pay wages and
severance pay where workers have wrongfully been
employed under successive fixed-term employment contracts,
bearing in mind

(b) when fixed-term employment contracts or relationships
only fall within the scope of application of the legal
measure in question applying the Framework Agreement
if they can be regarded as successive within the meaning
of that measure, satisfying the cumulative requirements:

(a) that the obligation to pay wages and severance pay is
provided for under national law for all employment rela-
tionships and is not
intended specifically to prevent
abuse within the meaning of the Framework Agreement,
and

(1) that there is a maximum period of three months

between them;

(2) that they extend for a total of at least 24 months
before the measure in question enters into force, irre-
spective of the number of contract renewals or that,
on the basis of those renewals, there has been a
minimum total period of work of 18 months over
an overall period of 24 months from the original
contract, provided that
three
renewals since the original contract, whereas the
existing equivalent legal measure does not lay down
such conditions but
fixed-term
(successive) employment contracts, irrespective of a
minimum total period of work and a minimum
number of contract renewals;

there are at

covers

least

the

all

(c) when the legal measure in question applying the Frame-
work Agreement provides as a legal consequence for the
protection of fixed-term workers and the prevention of
abuse, within the meaning of the Framework Agreement
on fixed-term work, for the qualification thereafter (ex
nunc) of fixed-term employment contracts as contracts of
legal
indefinite duration, whereas
measure provides for
fixed-term
contracts as contracts of indefinite duration from the
time they were originally concluded (ex tunc)?

the qualification of

the pre-existing

(b) that

equivalent

the legal consequence of

the
successive
legal measure
earlier
fixed-term contracts of employment are recognised as a
contract of indefinite duration?

the application of
that

is

in interpreting national

4. If all the above questions are answered in the affirmative,
should the national court,
law in
accordance with Directive 1999/70/EC, disapply the provi-
sions of the legal measure which are not compatible with it,
but which were adopted by reason of the application of the
Framework Agreement and result
in a reduction in the
general
level of protection afforded to fixed-term workers
under national law, such as Articles 7 and 11 of Presidential
Decree 164/2004 and apply instead an equivalent
legal
measure which existed before the directive entered into force,
such as Article 8(3) of Law 2112/1920?

5. If the national court finds that — in principle — a provision
(in this case Article 8(3) of Law 2112/1920) that constitutes
an equivalent legal measure within the meaning of clause 5(1)
of the Framework Agreement on fixed-term work, which is
an integral part of Directive 1999/70/EC, is applicable to a
dispute over fixed-term work and, on the basis of that provi-
sion, the finding that successive contracts of employment
were concluded as a fixed-term contract for no objective
reason relating to the nature, type or features of the work
offered means that the contracts must be recognised as a
contract of employment of indefinite duration, then

3. If question 1 is answered in the affirmative, where an equiva-
lent legal measure within the meaning of clause 5(1) of the
Framework Agreement on fixed-term work, which forms an
integral part of Directive 1999/70/EC, already existed in the
national legal order before that directive entered into force,
as in the case of Article 8(3) of Law 2112/1920 at issue in
the main proceedings, is the adoption of a legal measure by
reason of the application of the Framework Agreement, such
as Article 7 of Presidential Decree 164/2004 at issue in the
main proceedings an unacceptable reduction in the general

(a) is it compatible with Community law for a national
court to interpret and apply national law to the effect
that the fact that a legal provision governing employment
under a fixed-term contract of employment in order to
meet seasonal, periodic,
temporary, exceptional needs
was used as the legal basis for concluding a fixed-term
contract constitutes an objective reason in all cases for
concluding such contracts, even though the requirements
covered were in fact fixed and permanent, and

10.11.2007

EN

Official Journal of the European Union

C 269/29

in

even if

contract

relationship

indefinite duration,

(b) is it compatible with Community law for a national
court to interpret and apply national law to the effect
that a provision prohibiting the conversion of fixed-term
contracts of employment in the public sector to contracts
of indefinite duration must be construed as an absolute
prohibition in any circumstance to convert a fixed-term
employment
the
or
public sector to an employment contract or relationship
it was wrongfully
of
concluded as a fixed-term contract, that is to say, when
the requirements met were in fact fixed and permanent,
and that the national court has no discretion in such
cases to make a finding as to the true character of the
legal employment relationship at
issue and correctly
qualify it as a contract of indefinite duration? Alterna-
tively should the prohibition in question be restricted
solely to fixed-term contracts of employment which were
in fact concluded in order to meet temporary, unforesee-
able, urgent, exceptional or similar
types of special
requirements and not to cases in which they were in fact
concluded in order to meet fixed and permanent require-
ments?

respect of facilities regarded as being low-polluting in nature,
with a reference to those standards and a right on the part of
the administrative authority to object to the commencement of
the operations or to impose limits on discharges specific to the
facility concerned?

(1) OJ L 64 of 4.3.2006, p. 52.

Appeal brought on 13 August 2007 by Der Grüne Punk —
Duales System Deutschland GmbH against the judgment of
the Court of First Instance (First Chamber) delivered on
24 May 2007 in Case T-151/01 Der Grüne Punkt — Duales
System Deutschland GmbH v Commission of the European
Communities, supported by Vfw AG, Landbell AG für
Rückhol-Systeme and Belland Vision GmbH

Reference for a preliminary ruling from the Conseil d'Etat
(France) lodged on 8 August 2007 — Association Nationale
pour la Protection des Eaux et Rivieres — TOS v Ministry
of the Environment and Sustainable Development

Parties

(Case C-385/07 P)

(2007/C 269/51)

Language of the case: German

(Case C-381/07)

(2007/C 269/50)

Language of the case: French

Referring court

Conseil d'Etat

Parties to the main proceedings

Applicant: Association Nationale pour la Protection des Eaux et
Rivieres — TOS

Defendant: Ministry of the Environment and Sustainable Devel-
opment

Question referred

May Article 6 of Directive 2006/11/EC of
the European
Parliament and of the Council of 15 February 2006 on pollu-
tion caused by certain dangerous substances discharged into the
aquatic environment of the Community (1) be interpreted as
allowing the Member States, once programmes to reduce water
pollution including environmental quality standards have been
adopted under that article, to introduce a declaratory scheme, in

Appellant: Der Grüne Punk — Duales System Deutschland
GmbH (represented by: W. Deselaers, E. Wagner, B. Meyring,
Rechtsanwälte)

Other party to the proceedings: Commission of
the European
Communities, Vfw AG, Landbell AG für Rückhol-Systeme and
Belland Vision GmbH

Form of order sought

— Annulment of the judgment of the Court of First Instance of
the European Communities of 24 May 2007 in Case
T-151/01;

— annulment of Commission Decision 2001/463/EC of
20 April 2001 relating to a proceeding pursuant
to
Article 82 EC (Case COMP D3/34493 — DSD) (1);

— in the alternative, refer the case to the Court of First Instance
for reassessment in accordance with the Court's judgment;

— in any case, order the Commission to pay the costs both
before the Court of First Instance and before the Court of
Justice.

Grounds of appeal and main arguments

The appellant bases its appeal against the above mentioned
judgment of the Court of First Instance on eight grounds of
appeal.