Case C-519/08: Reference for a preliminary ruling from the Monomeles Protodikio Athinon (Greece) lodged on 27 November 2008 — Arkhontia Koukou v Elliniko Dimosio
Date: 2008-11-27
Institutions: Court of Justice
Subjects: interpretation of the law, labour relations, temporary employment, work contract

C 44/30

EN

Official Journal of the European Union

21.2.2009

Reference for a preliminary ruling from the Monomeles
Protodikio Athinon (Greece) lodged on 27 November 2008
— Arkhontia Koukou v Elliniko Dimosio

(Case C-519/08)

(2009/C 44/50)

Language of the case: Greek

Referring court

Monomeles Protodikio Athinon (Court of First Instance, Athens)

Parties to the main proceedings

Claimant: Arkhontia Koukou

Defendant: Elliniko Dimosio (Greek State)

Questions referred

1. Is clause 5 of the framework agreement on fixed-term work
set out in the annex to Directive 1999/70/EC to be inter-
preted as meaning that an objective reason for the entering
into of successive fixed-term employment contracts or rela-
tionships can be considered to be constituted by the fact that
those contracts have been entered into in reliance upon a
legislative provision which provides for the entering into of
fixed-term employment contracts or relationships, irrespec-
tive of whether fixed and permanent needs of the employer
are in fact covered by them?

2. Does the addition of criteria for establishing abuse, in the
measures which were adopted in implementation of clause 5
of
the framework agreement on fixed-term work (for
example, a maximum duration of contracts and number of
renewals within the framework of which employment
is
permitted even without an objective reason justifying the
entering into or renewal of fixed-term employment contracts
or
relationships), constitute an impermissible reduction,
within the meaning of clause 8(3) of the framework agree-
ment, of the general level of protection that existed prior to
Directive 1999/70, given that under the legal regime that
preceded that directive the sole criterion for establishing
abuse was employment under an employment contract or
relationship entered into for a fixed term without an objec-
tive reason?

3. Does the enactment of imprecise and non-exhaustive lists of
exceptions, such as those set out by the permanent provi-
sions of Presidential Decree No 164/2004, to the maximum
limits that are laid down in principle with regard to the
entering into of successive fixed-term employment contracts
or
for
preventing the abuse that arises from the use of successive
fixed-term employment contracts or relationships, for the
purposes of clause 5 of the framework agreement on fixed-
term work?

an effective measure

relationships

constitute

4. Can measures such as those at issue in the main proceedings,
which were laid down by Article 7 of Presidential Decree
No 164/2004, be considered to be effective for preventing
and protecting against abuse, for the purposes of clause 5 of
the framework agreement, when:

(a) they lay down, as a means of preventing abuse and
protecting fixed-term workers against abuse, the obliga-
tion on the employer
to pay wages and severance
‘compensation’
in the event of abuse in the form of
employment under successive fixed-term employment
contracts, given that (i) the obligation to pay wages and
severance ‘compensation’
law
for all employment relationships and is not intended
specifically to prevent abuse, within the meaning of the
framework agreement, and (ii) in particular, the obliga-
tion to pay ‘compensation’ on the termination of fixed-
term employment contracts or relationships is a conse-
quence of the application of clause 4 of the framework
agreement which is concerned with fixed-term workers
the corre-
not being discriminated against vis-à-vis
sponding permanent workers; and

is laid down by national

(b) they provide, as a means of preventing abuse, for penal-
the
ties to be imposed on the competent organs of
employer, in so far as it has been found that similar or
analogous penalties which were also prescribed in the
past as regards the public sector were ineffective for
combating abuse resulting from the use of successive
fixed-term employment contracts or relationships?

5. Is Directive 1999/70 correctly transposed into Greek law by
measures, even if they are effective, such as those adopted in
Article 11 of Presidential Decree No 164/2004, which
entered into force on 19 July 2004, that is to say after the
time-limit laid down by Directive 1999/70, and which were
given only three months' retroactivity, so that they cover
only successive fixed-term employment contracts or relation-
ships that were valid after 19 April 2004 and do not cover
fixed-term employment contracts or
relationships which
continued to be entered into successively even after the
expiry of the period for compliance with Directive 1999/70
and before 19 April 2004?

6. If the view is taken that the measures adopted in Presidential
Decree No 164/2004 to comply with clause 5 of the frame-
work agreement are not effective, is the court obliged, within
the framework of the obligation to interpret national law in
conformity with Community law, to apply in conformity
with Directive 1999/70 the Greek law which existed before
that decree (such as Article 8(3) of Law No 2112/1920), on
the basis of which it is possible to achieve protection of the
claimant against abuse, in a manner that leads to the elimina-
tion of the consequences of the breach of Community law?

7. If the view is taken that the measures adopted in Presidential
Decree No 164/2004 are not effective and the legal regime
is
existing before it (Article 8(3) of Law No 2112/1920)
applicable, within the framework of the obligation to inter-
pret national law in conformity with Community law, is it
compatible with Community law to interpret national rules

21.2.2009

EN

Official Journal of the European Union

C 44/31

which are formally higher-ranking (Article 103(8) of
the
Constitution) as prohibiting absolutely the conversion of
fixed-term contracts into contracts of
indefinite duration,
even where it is apparent that in reality those contracts have
been entered into by way of an abuse on the legal basis of
provisions designed to cover needs that are exceptional and
temporary generally, because the contracts covered fixed and
permanent needs of a public-sector employer (to this effect,
Judgments No 19/2007 and No 20/2007 of the Arios Pagos
(Full Court)), when a possible interpretation is also that that
prohibition must be limited solely to fixed-term employment
contracts which have in fact been entered into to cover
temporary, unforeseen, urgent or exceptional needs and not
also cover cases where they have in reality been entered into
to cover fixed and permanent needs (to this effect, Judgment
No 18/2006 of the Arios Pagos (Full Court))?

8. Is it consistent with Community law for disputes relating to
fixed-term work and clause 5 of the framework agreement to
fall, after
the entry into force of Presidential Decree
No 164/2004, within the exclusive jurisdiction of the admin-
istrative courts, when that renders access of a claimant fixed-
term worker to justice more difficult, given that, before the
adoption of Presidential Decree No 164/2004, all disputes
relating to fixed-term work fell within the jurisdiction of the
civil courts under
labour disputes procedure
the special
formal
which is more lenient as regards observance of
requirements, simpler, less costly for the claimant fixed-term
worker and, as a rule, quicker?

Action brought on 2 December 2008 — Commission of
the European Communities v Grand Duchy of Luxembourg

(Case C-526/08)

(2009/C 44/51)

Language of the case: French

Parties

Form of order sought

— declare that, by failing to adopt

the laws,

regulations
and administrative provisions necessary to comply fully and
properly with Articles 4 and 5,
in conjunction with
Annex II A(1) and Annex III 1(1), Annex II A(5) and
Annex III 1(2), and Annex II A(2) and Annex II A(6), of
Council Directive 91/676/EEC of 12 December 1991
concerning the protection of waters against pollution caused
by nitrates from agricultural sources (1), the Grand Duchy of
Luxembourg has failed to fulfil
its obligations under that
directive;

— order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The Commission raises four complaints in support of its action.

By its first complaint, the Commission criticises the defendant
for not complying with the procedures and periods for land
application, as laid down in the directive. Although the prohibi-
tion on land application during certain periods should cover
both organic and artificial fertilisers, the Luxembourg legislation
refers solely to organic fertilisers. In addition, the prohibition on
the land application of fertilisers during certain periods should
including prairies, which are
relate to all agricultural
implementing measures. The
omitted from the national
Commission also claims that the national
legislation should
define, with greater precision, those circumstances which may
give rise to a derogation from the land application prohibition,
as this was not envisaged in the directive.

land,

the Commission claims that

the
By its second complaint,
national legislation does not lay down any requirement for a
minimum manure storage capacity for all
installations, but
refers only to new installations or those being modernised. Such
an implementing measure does not comply with the Directive
in so far as the existing installations also present pollution risks.
The national legislation should, therefore, impose a minimum
storage capacity for all installations.

By its third complainant, the Commission claims that,
in the
context of the prohibition of land application on steeply sloping
ground, the national legislation should include all fertilisers, and
not only organic fertilisers.

By its fourth and final complaint, it is alleged that the defendant
did not adopt sufficient measures concerning land application
techniques, in particular, to ensure a uniform and efficient appli-
cation of fertilisers.

Applicant: Commission of the European Communities (repre-
sented by: S. Pardo Quintillán and N. von Lingen, Agents)

(1) OJ 1991 L 375, p. 1.

Defendant: Grand Duchy of Luxembourg