Case C-364/07: Order of the Court (Third Chamber) of 12 June 2008 (reference for a preliminary ruling from the Monomeles Protodikeio Kerkyras — Greece) — Vassilakis Spyridon, Theodoros Gkisdakis, Petros Grammenos, Nikolaos Grammenos, Theodosios Grammenos, Maria Karavassili, Eleftherios Kontomaris, Spyridon Komninos, Theofilos Mesimeris, Spyridon Monastiriotis, Spyridon Moumouris, Nektaria Mexa, Nikolaos Pappas, Christos Vlachos, Alexandros Grasselis, Stamatios Kourtelesis, Konstantinos Poulimenos, Savvas Sideropoulos, Alexandros Dellis, Michail Zervas, Ignatios Koskieris, Dimitiros Daikos, Christos Dranos v Dimos Kerkyras (Article 104(3), first paragraph, of the Rules of Procedure — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work — Successive fixed-term employment contracts in the public sector — Concepts of successive contracts and objective reasons justifying the renewal of such contracts — Measures intended to prevent abuse — Sanctions — Settlement at national level of disputes and grievances — Scope of the obligation to interpret national law in conformity with Community law)
Date: 2008-06-12
Institutions: Court of Justice
Subjects: framework agreement, interpretation of the law, interprofessional agreement, temporary employment, work contract

13.9.2008

EN

Official Journal of the European Union

C 236/5

Parties to the main proceedings

Applicants: Blaise Baheten Metock, Hanette Eugenie Ngo Ikeng,
Christian Joel Baheten, Samuel Zion Ikeng Baheten, Hencheal
Ikogho, Donna Ikogho, Roland Chinedu, Marlene Babucke
Chinedu, Henry Igboanusi, Roksana Batkowska

Defendant: Minister for Justice, Equality and Law Reform

Re:

Reference for a preliminary ruling — High Court of Ireland —
Interpretation of Article 3(1) of Directive 2004/38/EC of the
European Parliament and of the Council of 29 April 2004 on
the rights of citizens of the Union and their family members to
move and reside freely within the territory of Member States
amending Regulation (EEC) No 1612/68 and repealing Direc-
tives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC,
75/34/EEC,
and
93/96/EEC (OJ 2004 L 158, p. 77) — Spouse who is a non-EU
national — National
the host Member State
making the right of residence of family members subject to
prior lawful residence in another Member State

legislation of

90/364/EEC,

90/365/EEC

75/35/EEC,

Operative part of the judgment

1. Directive 2004/38/EC of

and

1612/68

72/194/EEC,

the European Parliament and of

repealing Directives
73/148/EEC,

the
Council of 29 April 2004 on the right of citizens of the Union
and their family members to move and reside freely within the
the Member States amending Regulation (EEC)
territory of
64/221/EEC,
No
68/360/EEC,
75/34/EEC,
75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC
precludes legislation of a Member State which requires a national
of a non-member country who is the spouse of a Union citizen
residing in that Member State but not possessing its nationality to
have previously been lawfully resident in another Member State
before arriving in the host Member State, in order to benefit from
the provisions of that directive.

2. Article 3(1) of Directive 2004/38 must be interpreted as meaning
that a national of a non-member country who is the spouse of a
Union citizen residing in a Member State whose nationality he
does not possess and who accompanies or joins that Union citizen
benefits from the provisions of that directive, irrespective of when
and where their marriage took place and of how the national of a
non-member country entered the host Member State.

(1) OJ C 116, 9.5.2008.

Order of the Court (Third Chamber) of 12 June 2008
(reference for a preliminary ruling from the Monomeles
Protodikeio Kerkyras — Greece) — Vassilakis Spyridon,
Petros Grammenos, Nikolaos
Theodoros Gkisdakis,
Grammenos, Theodosios Grammenos, Maria Karavassili,
Eleftherios Kontomaris, Spyridon Komninos, Theofilos
Mesimeris, Spyridon Monastiriotis, Spyridon Moumouris,
Nektaria Mexa, Nikolaos
Pappas, Christos Vlachos,
Alexandros Grasselis, Stamatios Kourtelesis, Konstantinos
Poulimenos, Savvas Sideropoulos, Alexandros Dellis,
Ignatios Koskieris, Dimitiros Daikos,
Michail Zervas,

Christos Dranos v Dimos Kerkyras

(Case C-364/07) (1)

(Article 104(3), first paragraph, of the Rules of Procedure —
Social policy — Directive 1999/70/EC — Framework agree-
ment on fixed-term work — Successive fixed-term employment
contracts in the public sector — Concepts of ‘successive
contracts’ and ‘objective reasons’
justifying the renewal of
such contracts — Measures intended to prevent abuse —
Sanctions — Settlement at national level of disputes and grie-
vances — Scope of the obligation to interpret national law in
conformity with Community law)

(2008/C 236/08)

Language of the case: Greek

Referring court

Monomeles Protodikeio Kerkyras

Parties

Applicants: Vassilakis Spyridon, Theodoros Gkisdakis, Petros
Grammenos, Nikolaos Grammenos, Theodosios Grammenos,
Maria Karavassili, Eleftherios Kontomaris, Spyridon Komninos,
Theofilos Mesimeris,
Spyridon
Moumouris, Nektaria Mexa, Nikolaos Pappas, Christos Vlachos,
Alexandros Grasselis, Stamatios Kourtelesis, Konstantinos Pouli-
menos, Savvas Sideropoulos, Alexandros Dellis, Michail Zervas,
Ignatios Koskieris, Dimitiros Daikos, Christos Dranos

Spyridon Monastiriotis,

Defendant: Dimos Kerkyras (Municipality of Corfu)

Re:

Reference for a preliminary ruling — Monomeles Protodikeio
Kerkyras [Corfu Court of First Instance] — Interpretation of
Clause 5(1) and (2) of
the Annex to Council Directive
1999/70/EC of 28 June 1999 concerning the framework agree-
ment on fixed-term work concluded by ETUC, UNICE and CEEP
(OJ 1999 L 175, p. 43) — Employment contracts entered into
with public authorities — Concept of objective reasons justi-
fying the renewal, without restriction, of successive fixed-term
contracts — Concept of successive contracts

C 236/6

EN

Official Journal of the European Union

13.9.2008

Operative part of the order

the national

1. Where a directive is transposed belatedly into a Member State's
domestic law and the relevant provisions of the directive do not
have direct effect,
courts are bound to interpret
domestic law so far as possible, once the period for transposition
has expired, in the light of the wording and the purpose of the
directive concerned with a view to achieving the results sought by
the directive,
the national rules
which is the most consistent with that purpose in order thereby to
achieve an outcome compatible with the provisions of the directive.

favouring the interpretation of

2. Clause 5(1)(a) of the Framework Agreement on fixed-term employ-
ment, signed on 18 March 1999, which is annexed to Council
Directive 1999/70/EC of 28 June 1999 concerning the framework
agreement on fixed-term work concluded by ETUC, UNICE and
CEEP, is to be interpreted as precluding the use of successive fixed-
term employment contracts where the justification advanced for
their use is solely that it is provided for by a general provision of
statute or
secondary legislation of a Member State. On the
contrary, the concept of ‘objective reasons’ within the meaning of
that clause requires recourse to this particular type of employment
relationship, as provided for by national legislation, to be justified
by the presence of specific factors relating in particular to the
activity in question and the conditions under which it is carried
out.

3. Clause 5 of the Framework Agreement on fixed-term employment
is to be interpreted as not precluding, as a general rule, a national
provision, such as that referred to in the third question for a preli-
minary ruling, according to which only fixed-term employment
contracts or employment
relationships that are separated by a
period of time shorter than three months can be regarded as ‘succes-
sive’ for the purposes of that clause.

4. In circumstances such as those of the main proceedings, the Frame-
work Agreement is to be interpreted as meaning that, in so far as
domestic law of the Member State concerned does not include, in
the sector under
consideration, any other effective measure to
prevent and, where relevant, punish the misuse of successive fixed-
term contracts, the Framework Agreement precludes the application
of national legislation which, in the public sector alone, prohibits
absolutely the conversion into an employment contract of indefinite
duration of a succession of
fixed-term contracts that have been
intended to cover ‘fixed and permanent needs’ of the employer and
must therefore be regarded as constituting an abuse. It is however
for the referring court, in accordance with its obligation to interpret
national
to determine
whether its domestic law does not include any such other effective
measure.

law in conformity with Community law,

5. The principle of the effectiveness of Community law and the Frame-
work Agreement on fixed-term employment do not preclude, as a
general rule, a provision of national law under which an indepen-
the
dent administrative authority has jurisdiction in respect of

possible reclassification of fixed-term contracts as contracts of inde-
finite duration. It is however for the referring court to ensure that
the right to effective judicial protection is safeguarded with due
regard to the principles of effectiveness and equivalence.

(1) OJ C 247 of 24.10.2007.

Reference for a preliminary ruling from the Tribunale
amministrativo regionale della Lombardia
lodged on
19 June 2008 — Federutility and Others v Autorità per
l'energia elettrica e il gas

(Case C-265/08)

(2008/C 236/09)

Language of the case: Italian

Referring court

Tribunale amministrativo regionale della Lombardia

Parties to the main proceedings

Applicants: Federutility, Asogas, Libarna Gas SpA, Collino
Commercio SpA, Sadori Gas SpA, Egea Commerciale, E.On
Vendita srl, Sorgenia SpA

Defendant: Autorità per l'energia elettrica e il gas

Questions referred

the European Parliament and of

1. On a proper interpretation, in accordance with the principles
enshrined in the EU Treaty, of Article 23 of Directive
2003/55/EC (1) of
the
Council of 26 June 2003, which regulates the opening up of
the gas market, is it contrary to that provision and to the
principles of Community law for a national provision (and
measures adopted in pursuance thereof) to maintain in effect
after 1 July 2007 the power of
the national regulatory
authority to set reference prices for the supply of natural gas
to domestic customers (an open-ended category not defined
in the legislation and which does not of itself entail particular
circumstances of socio-economic disadvantage such as might
justify the setting of such reference prices), which distributors
or suppliers, within the scope of their public service obliga-
tions, are bound to include in their commercial offers?