Deutsche Lufthansa AG v Gertraud Kumpan.
Date: 2011-03-10
30. The Court has already held that the Framework Agreement proceeds on the premiss that employment contracts of indefinite duration are the general form of employment relationship (see Case C‑212/04 Adeneler and Others  [2006] ECR I‑6057, paragraph 61). The use of fixed-term contracts as opposed to contracts of indefinite duration is therefore exceptional.
31. The Court has also held that the benefit of stable employment is viewed as a major element in the protection of workers (see Mangold , paragraph 64, and Adeneler and Others , paragraph 62). It deduced therefrom that the Framework Agreement seeks to place limits on successive use of fixed-term employment contracts, which is regarded as a potential source of abuse to the disadvantage of workers, by laying down as a minimum a number of protective provisions designed to prevent the status of employees from being insecure (see Adeneler and Others , paragraph 63).
32. Clause 5(1) of the Framework Agreement is intended specifically to prevent abuse arising from the use of successive fixed-term employment contracts or relationships. To this end, that clause imposes on Member States the obligation to introduce into domestic law one or more of the measures listed in Clause 5(1)(a) to (c) where equivalent legal provisions intended to prevent effectively the misuse of successive fixed-term employment contracts do not already exist in the Member State concerned ( Adeneler and Others , paragraphs 64 and 65; Case C‑53/04 Marrosu and Sardino  [2006] ECR I‑7213, paragraph 44; and Case C‑180/04 Vassallo  [2006] ECR I‑7251, paragraph 35).
34. However, Clause 5(1) of the Framework Agreement, while setting Member States a general objective consisting in the prevention of such abuses, leaves them free to choose the means of achieving that objective (see, to that effect, Case C‑268/06 Impact  [2008] ECR I‑2483, paragraph 70).
35. Under that provision, it is effectively left to the discretion of the Member States to rely to that end on one or more of the measures listed in that clause, or even on existing equivalent legal measures, while taking account of the needs of specific sectors and/or categories of workers ( Impact , paragraph 71).
36. It follows that, by virtue of that provision, the Member States have a certain discretion as to how they achieve that objective, provided nevertheless that they guarantee the result imposed by EU law, as is clear not only from the third paragraph of Article 288 TFEU, but also from the first paragraph of Article 2 of Directive 1999/70 read in the light of recital 17 in the preamble to that directive (see, to that effect, Adeneler and Others , paragraph 68; order of 12 June 2008 in Case C‑364/07 Vassilakis and Others , paragraph 87; and Joined Cases C‑378/07 to C‑380/07 Angelidaki and Others  [2009] ECR I‑3071, paragraph 80).
37. The discretion conferred on the Member States under Clause 5(1) of the Framework Agreement must also be exercised in compliance with EU law and, in particular, its general principles as well as the other provisions of the Framework Agreement (see, to that effect, Mangold , paragraphs 50 to 54 and 63 to 65, and Angelidaki and Others , paragraph 85).
42. The Court has already held that a national provision which merely authorises recourse to successive fixed-term contracts, in a general and abstract manner by a rule of statute or secondary legislation, does not accord with the requirements as stated in Clause 5(1) of the Framework Agreement ( Adeneler and Others , paragraph 71).
43. Such a provision, which does not justify specifically the use of successive fixed-term employment contracts by the presence of objective factors relating to the particular features of the activity concerned and to the conditions under which it is carried out, carries a real risk that it will result in misuse of that type of contract and, accordingly, is not compatible with the objective of the Framework Agreement and the requirement that it have practical effect ( Adeneler and Others , paragraph 72).
44. Nevertheless, as is apparent from the provisions of Clause 5(1) of the Framework Agreement, national legislation which allows a succession of fixed-term contracts without requiring objective grounds or laying down a maximum total duration of successive fixed-term contracts or limiting the number of renewals thereof can be regarded as complying with the Framework Agreement if the domestic legal order of the Member State concerned contains another effective equivalent measure to prevent and, where relevant, penalise the misuse of successive fixed-term contracts (see, to that effect, Adeneler and Others , paragraph 105; Marrosu and Sardino , paragraph 49; and Vassallo , paragraph 34).
46. That limit must be interpreted in accordance with the purpose of the Framework Agreement and such that it does not render meaningless the principle that contracts of indefinite duration are the general form of employment relationship (see, to that effect, Adeneler and Others , paragraph 73).
51. It should, however, be borne in mind that the Court has already held that Clause 5(1) of the Framework Agreement does not appear, so far as its subject-matter is concerned, to be unconditional and sufficiently precise for individuals to be able to rely upon it before a national court. Under Clause 5(1), it is left to the discretion of the Member States to rely, for the purposes of preventing the misuse of fixed-term employment contracts, on one or more of the measures listed in that clause, or even on existing equivalent legal measures, while taking account of the needs of specific sectors and/or categories of workers. In addition, it is not possible to determine sufficiently the minimum protection which should, on any view, be implemented pursuant to Clause 5(1) of the Framework Agreement ( Angelidaki and Others , paragraph 196).
52. However, the Court has consistently held that, when national courts apply domestic law, they are bound to interpret it, to the fullest extent possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article 288 TFEU. This obligation to interpret national law in conformity with EU law concerns all provisions of national law, whether adopted before or after the directive in question (Case C‑106/89 Marleasing  [1990] ECR I‑4135, paragraph 8, and Angelidaki and Others , paragraph 197).
53. The requirement that national law be interpreted in conformity with EU law is inherent in the system of the FEU Treaty, since it permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of EU law when they determine the disputes before them ( Angelidaki and Others , paragraph 198).
54. It is true that the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law, particularly those of legal certainty and non-retroactivity, and that obligation cannot serve as the basis for an interpretation of national law contra legem  ( Angelidaki and Others , paragraph 199).
55. The principle that national law must be interpreted in conformity with EU law none the less requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the directive in question is fully effective and achieving an outcome consistent with the objective pursued by it ( Angelidaki and Others , paragraph 200).