Bianca Kücük v Land Nordrhein-Westfalen.
Date: 2012-01-26
25. It should be borne in mind that the purpose of clause 5(1) of the FTW 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 (Case C‑212/04 Adeneler and Others  [2006] ECR I‑6057, paragraph 63, and Joined Cases C‑378/07 to C‑380/07 Angelidaki and Others  [2009] ECR I‑3071, paragraph 73).
26. Thus, clause 5(1) of the FTW 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 employment contracts or relationships, the maximum total duration of those successive fixed-term employment contracts or relationships, and the number of renewals of such contracts or relationships (see Angelidaki and Others , paragraph 74, and order of 1 October 2010 in Case C‑3/10 Affatato , paragraphs 43 and 44 and case-law cited).
27. The concept of ‘objective reasons’ for the purposes of clause 5(1)(a) of the FTW Framework Agreement must, as the Court has already held, 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 case-law cited).
28. 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 as stated in the previous paragraph ( Angelidaki and Others , paragraph 97 and case-law cited).
29. 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. Such a 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 FTW Framework Agreement (see, to that effect, Angelidaki and Others , paragraphs 98 and 100 and case-law cited).
30. It should be observed, however, that a provision such as the one at issue in the main proceedings, which allows for the renewal of fixed-term contracts to replace other employees who are momentarily unable to perform their tasks, is not per se contrary to the FTW Framework Agreement. The temporary replacement of another employee in order to satisfy, in essence, the employer’s temporary staffing requirements may, in principle, constitute an objective reason under clause 5(1)(a) of the FTW Framework Agreement (see, to that effect, Angelidaki and Others , paragraph 102).
31. In an administration with a large workforce like the Land , it is inevitable that temporary replacements will frequently be necessary due to, inter alia, the unavailability of employees on sick, maternity, parental or other leave. The temporary replacement of employees in those circumstances may constitute an objective reason under clause 5(1)(a) of the FTW Framework Agreement, justifying fixed-term contracts being concluded with the replacement staff and the renewal of those contracts as the need arises, subject to compliance with the relevant requirements laid down in the FTW Framework Agreement.
32. This conclusion is all the more compelling where the national legislation justifying the renewal of fixed-term contracts in cases of temporary replacement also pursues objectives recognised as being legitimate social policy objectives. As evidenced by paragraph 27 of this judgment, the concept of objective reason in clause 5(1)(a) of the FTW Framework Agreement encompasses the pursuance of such objectives.
33. As is apparent from the Court’s case-law, measures aimed at offering protection for pregnancy and maternity and to enable men and women to reconcile their professional and family obligations pursue legitimate social policy objectives (see, to that effect, Case C‑243/95 Hill and Stapleton  [1998] ECR I‑3739, paragraph 42, and Case C‑284/02 Sass  [2004] ECR I‑11143, paragraphs 32 and 33). The legitimacy of those objectives is also confirmed by the provisions of Directive 92/85 or those of the Framework Agreement on parental leave.
34. It should be noted, however, that although the objective reason provided for in national legislation such as that at issue in the main proceedings may, in principle, be accepted, the competent authorities must, as is clear from paragraph 27 of this judgment, ensure that the actual application of that objective reason satisfies the requirements of the FTW 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.
36. It should be borne in mind in that regard that the Court has held previously 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 FTW Framework Agreement (see, to that effect, Angelidaki and Others , paragraph 103).
37. Such use of fixed-term employment contracts or relationships conflicts directly with the premiss on which the FTW 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).
38. However, as the Polish Government has, in essence, argued, the mere fact that fixed-term employment contracts are concluded in order to cover an employer’s permanent or recurring need for replacement staff does not in itself suffice to rule out the possibility that each of those contracts, viewed individually, was concluded in order to ensure a temporary replacement. Whilst the replacement covers a permanent need, in that the employee hired under a fixed-term contract performs specifically-defined tasks which are part of the undertaking’s usual activities, the fact remains that the need for replacement staff remains temporary in so far as the employees who have been replaced are supposed to return to work at the end of the leave, which leave is the reason why those employees are prevented temporarily from performing their tasks themselves.
39. It is for all the authorities of the Member State concerned to ensure, for matters within their respective spheres of competence, that clause 5(1)(a) of the FTW Framework Agreement is complied with by ascertaining that the renewal of successive fixed-term employment contracts or relationships is actually intended to cover temporary needs and that a provision such as point 3 of Paragraph 14(1) TzBfG is not, in fact, being used to meet fixed and permanent needs (see, by analogy, Angelidaki and Others , paragraph 106).
40. As observed by the Commission, it is for those authorities to consider in each case all the circumstances at issue, taking account, in particular, of the number of successive contracts concluded with the same person or for the purposes of performing the same work, in order to ensure that fixed-term employment contracts or relationships, even those ostensibly concluded to meet a need for replacement staff, are not abused by employers (see, to that effect, order of 12 June 2008 in Case C‑364/07 Vassilakis and Others , paragraph 116, and Angelidaki and Others , paragraph 157). Although the assessment of the objective reason put forward must refer to the renewal of the most recent employment contract concluded, the existence, number and duration of successive contracts of that type concluded in the past with the same employer may be relevant in the context of that overall assessment.
45. Since clause 5(1) of the FTW Framework Agreement applies only where there are successive fixed-term employment contracts or relationships (see, to that effect, Case C‑144/04 Mangold [2005] ECR I‑9981, paragraphs 41 and 42), it is logical that the existence of a succession of fixed-term employment contracts or relationships will be relevant in respect of all measures taken on the basis of that clause.
47. It should be borne in mind in that regard that, as is apparent from paragraph 10 of the general considerations of the FTW Framework Agreement, the agreement allows the Member States and social partners to define the detailed arrangements for application of the principles and requirements which it lays down, in order to ensure that they are consistent with national law and/or practice and that due account is taken of the particular features of specific situations ( Adeneler and Others , paragraph 68, and Angelidaki and Others , paragraph 71).
48. As observed by the German and Polish Governments, it follows that, by virtue of clause 5(1) of the FTW Framework Agreement, the Member States have a certain discretion as to how they achieve the objective referred to in that clause, provided nevertheless that they guarantee the result imposed by European Union 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 ( Angelidaki and Others , paragraph 80 and case-law cited).
49. That discretion is also apparent from clause 5(1) of the FTW Framework Agreement when it makes it possible for Member States to take account of the needs of specific sectors and/or categories of workers involved, provided it is justified on objective grounds (Case C‑53/04 Marrosu and Sardino [2006] ECR I‑7213, paragraph 45).
50. The mere fact that a need for replacement staff may be satisfied through the conclusion of contracts of indefinite duration does not mean that an employer who decides to use fixed-term contracts to address temporary staffing shortages, even where those shortages are recurring or even permanent, is acting in an abusive manner, contrary to clause 5(1) of the FTW Framework Agreement and the national legislation implementing that agreement.
51. As is clear from paragraph 43 of this judgment, the existence of an objective reason under clause 5(1)(a) of the FTW Framework Agreement precludes, in principle, there being abuse, except where an overall assessment of the circumstances surrounding the renewal of the relevant fixed-term employment contracts or relationships reveals that the work required of the employee does not meet merely a temporary need.
52. The Court has, moreover, held previously that clause 5(1)(a) of the FTW 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, giving Member States a margin of discretion in the matter ( Adeneler and Others , paragraph 91; Marrosu and Sardino , paragraph 47; and Angelidaki and Others , paragraphs 145 and 183).
56. Accordingly the answer to the first question is that clause 5(1)(a) of the FTW Framework Agreement must be interpreted as meaning that a temporary need for replacement staff, provided for by national legislation such as that at issue in the main proceedings, may, in principle, constitute an objective reason under that clause. The mere fact that an employer may have to employ temporary replacements on a recurring, or even permanent, basis and that those replacements may also be covered by the hiring of employees under employment contracts of indefinite duration does not mean that there is no objective reason under clause 5(1)(a) of the FTW Framework Agreement or that there is abuse within the meaning of that clause. However, in the assessment of the issue whether the renewal of fixed-term employment contracts or relationships is justified by such an objective reason, the authorities of the Member States must, for matters falling within their sphere of competence, take account of all the circumstances of the case, including the number and cumulative duration of the fixed-term employment contracts or relationships concluded in the past with the same employer.
The second question