Giuseppa Santoro v Comune di Valderice and Presidenza del Consiglio dei Ministri.
Date: 2018-03-07
14


The Tribunale di Genova (District Court, Genoa, Italy) had asked the Court of Justice to rule on the question whether the prohibition on converting successive fixed-term contracts concluded with the public authorities into an employment contract of indefinite duration was compatible with EU law. In the judgment of 7 September 2006, Marrosu and Sardino (C‑53/04, EU:C:2006:517, paragraph 57), the Court replied to that question that such a prohibition is not incompatible with the clauses of the Framework Agreement, as long as the national legal order of the Member State concerned provides for the application of ‘another effective measure to prevent and, where relevant, punish the abuse of successive fixed-term contracts by a public sector employer’.
20


In that regard, it must be borne in mind that, according to the Court’s settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where questions submitted concern the interpretation of EU law, the Court is bound, in principle, to give a ruling (judgment of 12 November 2015, Hewlett-Packard Belgium, C‑572/13, EU:C:2015:750, paragraph 24 and the case-law cited).
21


The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgments of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 25, and of 8 September 2015, Taricco and Others, C‑105/14, EU:C:2015:555, paragraph 30).
25


It should be recalled that the purpose of clause 5(1) of the Framework Agreement is to implement one of the objectives of that agreement, namely to place limits on successive recourse to fixed-term employment contracts or relationships, which are regarded as a potential source of abuse to the detriment of workers, by laying down as a minimum a number of protective provisions designed to prevent the status of employees from being insecure (see, inter alia, judgments of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 63; of 26 January 2012, Kücük, C‑586/10, EU:C:2012:39, paragraph 25; and of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 54).
26


It follows that clause 5(1) of the Framework Agreement requires Member States, in order to prevent the misuse of successive fixed-term employment contracts or relationships, to adopt one or more of the measures listed in that provision, where their domestic law does not include equivalent legal measures. The measures listed in clause 5(1)(a) to (c), of which there are three, relate, respectively, to objective reasons justifying the renewal of such contracts or relationships, the maximum total duration of successive fixed-term employment contracts or relationships, and the number of renewals of such contracts or relationships (judgment of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 74 and the case-law cited).
27


The Member States enjoy a certain discretion in this regard since they have the choice of relying on one or more of the measures listed in clause 5(1)(a) to (c) of the Framework Agreement, or on existing equivalent legal measures, while taking account of the needs of specific sectors and/or categories of workers (judgment of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 75 and the case-law cited).
28


In that way, clause 5(1) of the Framework Agreement assigns to the Member States the general objective of preventing such abuse, while leaving to them the choice as to how to achieve it, provided that they do not compromise the objective or the practical effect of the Framework Agreement (judgment of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 76 and the case-law cited).
29


Furthermore, where, as in the present instance, EU law does not lay down any specific penalties in the event that instances of abuse are nevertheless established, it is incumbent on the national authorities to adopt measures that are not only proportionate, but also sufficiently effective and a sufficient deterrent to ensure that the provisions adopted pursuant to the Framework Agreement are fully effective (judgment of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 77 and the case-law cited).
30


While, in the absence of relevant EU rules, the detailed rules for implementing such provisions are a matter for the domestic legal order of the Member States, under the principle of their procedural autonomy, they must not, however, be less favourable than those governing similar domestic situations (principle of equivalence) or render impossible in practice or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness) (judgment of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 78 and the case-law cited).
31


Therefore, where abuse of successive fixed-term employment contracts or relationships has taken place, a measure offering effective and equivalent guarantees for the protection of workers must be capable of being applied in order duly to punish that abuse and nullify the consequences of the breach of EU law (judgment of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 79 and the case-law cited).
32


The Court has held that, since clause 5(2) of the Framework Agreement neither lays down a general obligation on the Member States to provide for the conversion of fixed-term employment contracts into contracts of indefinite duration nor prescribes the precise conditions under which fixed-term employment contracts may be used, it gives Member States a margin of discretion in the matter (judgment of 7 September 2006, Marrosu and Sardino, C‑53/04, EU:C:2006:517, paragraph 47).
33


It follows that clause 5 of the Framework Agreement does not preclude, as such, a Member State from treating abuse of successive fixed-term employment contracts or relationships differently according to whether those contracts or relationships were entered into with a private sector or public sector employer (judgment of 7 September 2006, Marrosu and Sardino, C‑53/04, EU:C:2006:517, paragraph 48).
34


However, in order for national legislation such as that at issue in the main proceedings — which, in the public sector only, prohibits a succession of fixed-term contracts from being converted into an employment contract of indefinite duration — to be regarded as compatible with the Framework Agreement, the domestic law of the Member State concerned must include, in that sector, another effective measure to prevent and, where relevant, punish the abuse of successive fixed-term contracts (judgment of 7 September 2006, Marrosu and Sardino, C‑53/04, EU:C:2006:517, paragraph 49).
35


According to the order for reference, Article 36(5) of Legislative Decree No 165/2001 provides that the infringement by public authorities of the provisions on the recruitment or employment of workers cannot lead to the creation of an employment relationship of indefinite duration between those authorities and the workers concerned, but that the latter are entitled to compensation for harm suffered. In that regard, Article 32(5) of Law No 183/2010 provides that, in the event of misuse of fixed-term employment contracts, the court is to order the employer to pay the worker concerned overall compensation of between 2.5 and 12 times his last actual overall monthly salary.
36


It is also apparent from the order for reference that, according to the case-law of the Corte suprema di cassazione (Court of Cassation), the worker may also seek compensation for the harm resulting from the loss of employment opportunities.
39


As regards, first, the principle of equivalence, it should be recalled that it follows from this principle that persons asserting rights conferred by EU law must not be treated less favourably than those asserting rights of a purely domestic nature.
43


Second, as regards the principle of effectiveness, it is clear from the case-law of the Court that the question as to whether a national procedural provision makes the exercise of rights conferred on individuals by EU law practically impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, viewed as a whole, and to the conduct and special features of that procedure before the various national bodies. In that context, it is necessary to take into consideration, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings (judgments of 21 February 2008, Tele2 Telecommunication, C‑426/05, EU:C:2008:103, paragraph 55 and the case-law cited, and of 29 October 2009, Pontin, C‑63/08, EU:C:2009:666, paragraph 47).
45


It is not for the Court to rule on the interpretation of national law, that being a matter exclusively for the referring court, which must, in the present case, determine whether the requirements set out in the preceding three paragraphs are met by the provisions of the relevant national legislation. However, when giving a preliminary ruling, the Court may, where appropriate, offer clarification intended to provide the national court with guidance in its assessment.
51


In any event, the fact that the measure adopted by the national legislature in order to penalise the misuse of fixed-term contracts by private sector employers constitutes the most extensive protection that may be granted to a worker cannot, in itself, result in a reduction of the effectiveness of the national measures applicable to workers in the public sector.
52


In that regard, it is apparent from the documents before the Court that the national legislation contains other measures to prevent and penalise the misuse of fixed-term contracts. Thus, Article 36(5) of Legislative Decree No 165/2001 provides that the authorities are required to recover from the managers responsible the sums paid to workers as compensation for the harm suffered as a result of the infringement of the provisions concerning recruitment or employment, where that infringement is intentional or the result of gross negligence. Such an infringement would also be taken into account for the purpose of assessing the work of those managers, who could, due to that breach, not be awarded a performance bonus. In addition, Article 36(6) of that legislative decree provides that public authorities which have acted in breach of the provisions concerning recruitment or employment cannot proceed with recruitments, for any reason whatsoever, during the three years following that breach.
53


It is for the referring court to verify whether those aspects, concerning the penalties that may be imposed on public authorities and their managers in the event of misuse of fixed-term contracts, are effective and dissuasive so as to ensure that the provisions adopted pursuant to the Framework Agreement are fully effective.