Case C-162/08: Reference for a preliminary ruling from the Monomeles Protodikio Rethimnon (Greece) lodged on 28 April 2008 — Georgios K. Lagoudakis v Kentro Aniktis Prostasias Ilikiomenon Dimou Rethimnis
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

5.7.2008

EN

Official Journal of the European Union

C 171/19

Reference for a preliminary ruling from the Monomeles
Protodikio Rethimnon (Greece) lodged on 28 April 2008
— Georgios K. Lagoudakis v Kentro Aniktis Prostasias
Ilikiomenon Dimou Rethimnis

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:

(Case C-162/08)

(2008/C 171/32)

Language of the case: Greek

Referring court

Monomeles Protodikio Rethimnon

Parties to the main proceedings

Applicant: Georgios K. Lagoudakis

Defendant: Kentro Aniktis
Rethimnis

Prostasias

Ilikiomenon Dimou

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?

2. If question 1 is answered in the affirmative, is the reduction
in the protection afforded to fixed-term workers in the case
of a single fixed-term employment contract
(rather than
several, successive contracts), under which the worker is in
fact to provide services to meet ‘fixed and permanent’, rather
than temporary,
requirements,
connected to the application of the said Framework Agree-
ment and the above directive and is such a reduction there-
fore permitted or not permitted from the point of view of
Community law?

exceptional or urgent,

legal measure under national

3. 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

the Framework Agreement,

(a) when the scope of the legal measure in question applying
the Framework Agreement extends only to successive
fixed-term employment contracts or relationships and
not to persons who have concluded a single fixed-term
contract of employment (rather than several, successive
in order for the worker to meet ‘fixed and
contracts)
permanent’
the employer, while the
earlier equivalent legal measure applied to all fixed-term
contracts of
the worker
concluded a single fixed-term employment contract,
under which, in fact, the worker was to provide services
to meet ‘fixed and permanent’ (rather than temporary,
exceptional or urgent) requirements, and

requirements of

employment,

even where

(b) when the legal measure in question for application of the
Framework Agreement provides, as a legal consequence,
for the purpose of protecting fixed-term workers and
preventing abuse within the meaning of the Framework
Agreement on fixed-term work, for fixed-term contracts
thereafter (ex nunc) to be qualified as contracts of indefi-
nite duration, while the earlier equivalent legal measure
made provision for fixed-term contracts of employment
to be qualified as contracts of indefinite duration from
the time when they were originally concluded (ex tunc)?

4. 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 choice made by the Greek legis-
lature, in transposing the above directive into Greek law, on
the one hand, to exclude the said cases of abuse in which the
worker has concluded a single fixed-time contract, under
which, in fact, the worker was to provide services to meet
‘fixed and permanent’ (rather than temporary, exceptional or
urgent) requirements, from the scope of protection of the
above Presidential Decree 164/2004, and on the other hand,
not to enact a similar, effective measure/legal consequence
specific to the case, affording to workers in such cases of
abuse protection over and above the general protection
which is provided as standard under general Greek employ-
ment
law whenever work is provided under an invalid
contract, irrespective of whether or not there has been abuse
the Framework Agreement, and
within the meaning of
which includes a claim on the part of the worker to payment
of his wages and severance pay, regardless of whether or not
he worked under a valid contract, an unacceptable reduction

C 171/20

EN

Official Journal of the European Union

5.7.2008

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, bearing in mind

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

(b) that

the legal consequence of

the
earlier equivalent legal measure is that a (single) fixed-
term contract of employment is recognised as a contract
of indefinite duration?

the application of

in interpreting national

5. 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
level of protection afforded to fixed-term workers
general
under national
law, such as those in Presidential Decree
164/2004, which tacitly and indirectly (but clearly) deny the
relevant protection in cases of abuse when the worker has
concluded a single fixed-term contract of employment under
which, in fact, he is to provide services to meet ‘fixed and
(rather than temporary, exceptional or urgent)
permanent’
legal
requirements — and apply instead an equivalent
measure which existed before the directive entered into force,
such as Article 8(3) of Law 2112/1920?

6. If the national court finds that a provision (in this case
Article 8(3) of Law 2112/1920) that constitutes an equiva-
lent legal measure within the meaning of clause 5(1) of the
Framework Agreement on fixed-term work, which is an inte-
gral part of Directive 1999/70/EC, is applicable in principle
to a dispute over fixed-term work and, on the basis of that
provision, the finding that even a single contract of employ-
ment was concluded as a fixed-term contract for no objective
reason relating to the nature, type or features of the work
offered means that the contract 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 or addi-
tional social needs (in this case Law 3250/2004, FEK A
for
124A/07.07.2004) was used as
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

the legal basis

(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 a 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 28 April 2008
— Dimitros G. Ladakis, Andreas M. Birtas, Konstantinos G.
Kiriakopoulos, Emmanouil B. Klambonis and Sophocles E.
Mastorakis v Dimos Yeropotamou

(Case C-163/08)

(2008/C 171/33)

Language of the case: Greek

Referring court

Monomeles Protodikio Rethimnon

Parties to the main proceedings

Applicant: Dimitros G. Ladakis, Andreas M. Birtas, Konstantinos
G. Kiriakopoulos, Emmanouil B. Klambonis and Sophocles E.
Mastorakis

Defendant: Dimos Yeropotamou (Municipality of Yeropotamos)

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?