Antonio Márquez Samohano v Universitat Pompeu Fabra.
Date: 2014-03-13
35. It should be borne in mind that, according to settled case‑law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. 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 (see, inter alia, Joined Cases C‑188/10 and C‑189/10 Melki and Abdeli [2010] ECR I‑5667, paragraph 27 and the case-law cited, and Case C‑290/12 Della Rocca [2013] ECR, paragraph 29).
38. As regards the substance, as a preliminary point, it must be borne in mind that it is apparent from the very wording of clause 2(1) of the Framework Agreement that the scope of the Framework Agreement is conceived in broad terms, covering generally ‘fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practices in each Member State’. In addition, the definition of ‘fixed-term workers’ for the purposes of the Framework Agreement, set out in clause 3(1), encompasses all workers without drawing a distinction according to whether their employer is in the public or private sector (Case C‑212/04 Adeneler and Others  [2006] ECR I‑6057, paragraph 56; and Della Rocca , paragraph 34).
39. It follows that a worker such as an associate lecturer of a university, whose employment contract, according to the provisions of national law, must necessarily have been entered into for a fixed period, falls within the scope of the Framework Agreement.
41. It should be borne in mind 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, 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 Adeneler and Others , paragraph 63; Joined Cases C‑378/07 to C‑380/07 Angelidaki and Others  [2009] ECR I‑3071, paragraph 73; and Case C-586/10 Kücük  [2012] ECR, paragraph 25).
42. Thus, clause 5(1) of the Framework Agreement requires Member States, in order to prevent abuse arising from the use of successive fixed-term employment contracts or relationships, actually to adopt in a binding manner one or more of the measures listed where 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 (see Angelidaki and Others , paragraph 74, and Kücük , paragraph 26).
45. According to the case-law, the concept of ‘objective reason’ must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particular context, of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social‑policy objective of a Member State ( Angelidaki and Others , paragraph 96 and the case-law cited, and Kücük , paragraph 27).
46. On the other hand, 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 stated in the previous paragraph ( Angelidaki and Others , paragraph 97 and the case-law cited, and Kücük , paragraph 28).
47. Such a provision, which is of a purely formal nature, does not permit objective and transparent criteria to be identified in order to verify whether the renewal of such contracts actually responds to a genuine need and is appropriate for achieving the objective pursued and necessary for that purpose. That provision therefore 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 (see, to that effect, Angelidaki and Others , paragraphs 98 and 100 and the case‑law cited, and Kücük , paragraph 29).
51. In this respect, it should be recalled that, whilst contracts of indefinite duration are the general form of employment relationship, the Framework Agreement itself recognises, as is apparent from the second and third paragraphs in its preamble and from paragraphs 8 and 10 of its general considerations, that fixed-term contracts are a feature of employment in certain sectors or in respect of certain occupations or activities (see, to that effect, Adeneler and Others , paragraph 61; Case C‑268/06 Impact [2008] ECR I‑2483, paragraph 86; and Case C‑157/11 Sibilio [2012] ECR, paragraph 38).
54. It must be noted, however, that although the objective reason provided for in national rules such as those at issue in the main proceedings may, in principle, be accepted, the competent authorities must ensure that the actual application of those national rules satisfies the requirements of the Framework Agreement, having regard to the particular features of the activity concerned and to the conditions under which it is carried out. In the application of the relevant provision of national law, those authorities must therefore be in a position to identify objective and transparent criteria in order to verify whether the renewal of such contracts actually responds to a genuine need and is appropriate for achieving the objective pursued and necessary for that purpose (see Kücük , paragraph 34).
55. It should be borne in mind in that regard that the renewal of fixed-term employment contracts or relationships in order to cover needs which are, in fact, not temporary in nature but, on the contrary, fixed and permanent, is not justified under clause 5(1)(a) of the Framework Agreement (see, inter alia, Kücük , paragraph 36).
56. Such use of fixed-term employment contracts or relationships conflicts directly with the premiss on which the Framework Agreement is founded, namely that contracts of indefinite duration are the general form of employment relationship, even though fixed-term employment contracts are a feature of employment in certain sectors or in respect of certain occupations and activities (see Adeneler and Others , paragraph 61, and Kücük , paragraph 37).
57. The mere facts that fixed-term employment contracts concluded with associate lecturers are renewed in order to cover a recurring or permanent need of the relevant universities and that such a need can be met within the framework of a contract of an indefinite duration are not, however, such as to preclude the existence of an objective reason within the meaning of clause 5(1) of the Framework Agreement because the nature of the teaching activity at issue and the inherent characteristics of that activity can justify the use of fixed-term employment contracts in the context in question. Whilst fixed-term employment contracts concluded with associate lecturers cover a permanent need of the universities, in that the associate lecturer performs, under such a fixed‑term employment contract, specifically defined tasks which are part of the universities’ usual activities, the fact remains that the need in terms of employment of associate lecturers remains temporary in so far as that lecturer is supposed to resume his professional activity on a full‑time basis at the end of his contract (see, to that effect, Kücük , paragraphs 38 and 50).
58. By contrast, fixed-term employment contracts such as those at issue in the main proceedings cannot be renewed for the purpose of the performance, in a fixed and permanent manner, even on a part-time basis, of teaching tasks which normally come under the activity of the ordinary teaching staff.
59. It is therefore for all the authorities of the Member State concerned, including the national courts, to ensure, for matters within their respective spheres of competence, that clause 5(1)(a) of the Framework Agreement is complied with by ascertaining that the renewal of successive fixed-term employment contracts or relationships concluded with associate lecturers is intended to cover temporary needs and that a provision such as that at issue in the main proceedings is not, in fact, being used to meet fixed and permanent needs of the universities in terms of employment of teaching staff (see, by analogy, Angelidaki and Others , paragraph 106, and Kücük , paragraph 39).