Case C-164/08: Reference for a preliminary ruling from the Monomeles Protodikio Rethimnon (Greece) lodged on 17 April 2008 — Mikhail Zakharioudakis v Dimos Labis
Date: 2008-04-17
Institutions: Court of Justice
Subjects: EU law - national law, framework agreement, interpretation of the law, interprofessional agreement, labour law, temporary employment, work contract

C 171/22

EN

Official Journal of the European Union

5.7.2008

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

(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 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 relation-
ship at issue and correctly qualify it as a contract of inde-
finite 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 requirements and not to cases in
which they were in fact concluded in order to meet fixed
and permanent requirements?

Reference for a preliminary ruling from the Monomeles
Protodikio Rethimnon (Greece) lodged on 17 April 2008
— Mikhail Zakharioudakis v Dimos Labis

(Case C-164/08)

(2008/C 171/34)

Language of the case: Greek

Referring court

Monomeles Protodikio Rethimnon

Parties to the main proceedings

Applicant: Mikhail Zakharioudakis

Defendant: Dimos Labis

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 Frame-
work Agreement reduce the general level of protection
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,

contracts

(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
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;

(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:
(i) that there is a maximum period of
three months
between them; (ii) that they extend for a total of at least

5.7.2008

EN

Official Journal of the European Union

C 171/23

24 months before the measure in question enters into
force, irrespective 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 there are at least three renewals since the
original contract, whereas the existing equivalent legal
measure does not lay down such conditions but covers
all the fixed-term (successive) employment contracts, irre-
spective of a minimum total period of work and a
minimum number of contract renewals;

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
level of protection afforded to fixed-term workers
general
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?

(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,
the qualification thereafter
(ex nunc) of fixed-term employment contracts as contracts
indefinite duration, whereas the pre-existing legal
of
fixed-term
measure provides for
contracts as contracts of indefinite duration from the
time they were originally concluded (ex tunc)?

the qualification of

for

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
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

(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

(b) that

the legal consequence of

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

the application of

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-

in interpreting national

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

(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
temporary, exceptional needs
meet seasonal, periodic,
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 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 relation-
ship at issue and correctly qualify it as a contract of inde-
finite 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 requirements and not to cases in
which they were in fact concluded in order to meet fixed
and permanent requirements?