Florentina Martínez Andrés and Juan Carlos Castrejana López v Servicio Vasco de Salud and Ayuntamiento de Vitoria.
Date: 2016-09-14
35


At the outset, it should be noted that clause 5 of the framework agreement, the purpose of which is to implement one of the objectives of that agreement, namely to place limits on successive recourse to fixed-term employment contracts or relationships, requires Member States, in paragraph 1 thereof, to adopt one or more of the measures listed in a manner that is effective and binding, 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 successive fixed-term employment contracts or relationships, and the number of renewals of such contracts or relationships (see, to that effect, judgments of 23 April 2009, Angelidaki and Others, C‑378/07 to C‑380/07, EU:C:2009:250, paragraphs 73 and 74; of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraphs 54 and 56, and of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13, C‑63/13 and C‑418/13, EU:C:2014:2401, paragraphs 72 and 74).
36


Although EU law does, therefore, lay down an obligation on Member States to adopt preventive measures, it does not lay down any specific sanctions where instances of abuse have been established. In such a case, 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 measures taken pursuant to the framework agreement are fully effective (see, to that effect, judgments of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 94; of 7 September 2006, Marrosu and Sardino, C‑53/04, EU:C:2006:517, paragraph 51; of 7 September 2006, Vassallo, C‑180/04, EU:C:2006:518, paragraph 36; of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 62, and the order of 11 December 2014, León Medialdea, C‑86/14, not published, EU:C:2014:2447, paragraph 44).
37


In the absence of relevant EU rules, the detailed rules for implementing such measures, which are a matter for the domestic legal order of the Member States under the principle of their procedural autonomy, 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) (judgments of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 95; of 7 September 2006, Vassallo, C‑180/04, EU:C:2006:518, paragraph 37; of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 63, and order of 11 December 2014, León Medialdea, C‑86/14, not published, EU:C:2014:2447, paragraph 45).
38


Therefore, where abuse resulting from the use 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 penalise that abuse and nullify the consequences of the breach of EU law. According to the very wording of Article 2(1) of Directive 1999/70, Member States must ‘take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by [that] directive’ (see judgments of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 102; of 7 September 2006, Vassallo, C‑180/04, EU:C:2006:518, paragraph 38, and of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 64).
39


In that respect, it should be clarified that clause 5 of the framework agreement does not lay down a general obligation on the Member States to provide for the conversion of fixed-term employment contracts into contracts of indefinite duration. Indeed, clause 5(2) of the framework agreement in principle leaves it to the Member States to determine the conditions under which fixed-term employment contracts or relationships are to be regarded as contracts or relationships of indefinite duration. It follows that the framework agreement does not specify the conditions under which contracts of indefinite duration may be used (see, to that effect, judgments of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 91; of 7 September 2006, Marrosu and Sardino, C‑53/04, EU:C:2006:517, paragraph 47; of 23 April 2009, Angelidaki and Others, C‑378/07 to C‑380/07, EU:C:2009:250, paragraphs 145 and 183; of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 65, and the order of 11 December 2014, León Medialdea, C‑86/14, not published, EU:C:2014:2447, paragraph 47).
40


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 (judgments of 7 September 2006, Marrosu and Sardino, C‑53/04, EU:C:2006:517, paragraph 48, and of 7 September 2006, Vassallo, C‑180/04, EU:C:2006:518, paragraph 33).
41


However, in order for legislation, which, in the public sector, prohibits absolutely the conversion into a contract of indefinite duration of a succession of fixed-term employment contracts, 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, penalise the misuse of successive fixed-term employment contracts (judgments of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 105; of 7 September 2006, Marrosu and Sardino, C‑53/04, EU:C:2006:517, paragraph 49; of 7 September 2006, Vassallo, C‑180/04, EU:C:2006:518, paragraph 34, and of 23 April 2009, Adeneler and Others, C‑378/07 to C‑380/07, EU:C:2009:250, paragraphs 161 and 184).
42


Furthermore, it must be pointed out that it is not for the Court to rule on the interpretation of provisions of national law, that being exclusively for the national courts having jurisdiction, which must determine whether the requirements set out in clause 5 of the framework agreement are met by the provisions of the applicable national legislation (judgments of 7 September 2006, Vassallo, C‑180/04, EU:C:2006:518, paragraph 39; of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 66, and order of 11 December 2014, León Medialdea, C‑86/14, not published, EU:C:2014:2447, paragraph 48).
43


It is therefore for the referring court to determine to what extent the conditions for application and the actual implementation of the relevant provisions of national law render the latter an appropriate measure for preventing and, where necessary, penalising the misuse of successive fixed-term employment contracts or relationships (judgments of 7 September 2006, Marrosu and Sardino, C‑53/04, EU:C:2006:517, paragraph 56; of 7 September 2006, Vassallo, C‑180/04, EU:C:2006:518, paragraph 41; of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 67 and the case-law cited, and order of 11 December 2014, León Medialdea, C‑86/14, not published, EU:C:2014:2447, paragraph 49).
44


The Court, when giving a preliminary ruling, may, however, provide clarification designed to give the referring court guidance in its assessment (judgments of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 68 and the case-law cited, and of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13, C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 83).
48


According to the case-law referred to in paragraphs 40 and 41 of the present judgment, clause 5 of the framework agreement clause does not preclude, in principle, treating misuse of successive fixed-term employment contracts or relationships differently according to the sector or category applicable to the staff in question, provided that the law of the Member State concerned provides, in that sector or with respect to that category of staff, another effective measure to prevent and penalise abuses.
50


In accordance with settled case-law, the Member States’ obligation, arising from a directive, to achieve the result envisaged by that directive, and their duty under Article 4 TEU to take all appropriate measures, whether general or particular, to ensure fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts (see, in particular, judgment of 23 April 2009, Angelidaki and Others, C‑378/07 to C‑380/07, EU:C:2009:250, paragraph 106 and the case-law cited).
51


Accordingly, it is for all the authorities of the Member State concerned to ensure that clause 5(1) of the framework agreement is complied with, by ensuring that workers who have experienced abuse resulting from the use of successive fixed-term employment contracts are not deterred, in the hope of continued public sector employment, from asserting before the national authorities, including the courts, the rights conferred upon them under national law which arise from the implementation by that law of all the preventive measures set out in clause 5(1) of the framework agreement (judgment of 23 April 2009, Angelidaki and Others, C‑378/07 to C‑380/07, EU:C:2009:250, paragraph165).
52


In particular, the national court hearing the case must satisfy itself that the penalties provided for by the national legislation can be applied to employers of all ‘fixed-term’ workers within the meaning of clause 3(1) of the framework agreement if those workers experience abuse arising from the use of successive contracts, regardless of how their contract is classified under domestic law (judgment of 23 April 2009, Angelidaki and Others, C‑378/07 to C‑380/07, EU:C:2009:250, paragraph 166).
56


It must be noted that, under clause 8(5) of the framework agreement, the prevention and also the settlement of disputes and grievances arising from the application of that agreement are to be dealt with in accordance with national law, collective agreements and practice (judgments of 15 April 2008, Impact, C‑268/06, EU:C:2008:223, paragraph 39, and of 23 April 2009, Angelidaki and Others, C‑378/07 to C‑380/07, EU:C:2009:250, paragraph 172, and orders of 12 June 2008, Vassilakis and Others, C‑364/07, not published, EU:C:2008:346, paragraph 140, and of 24 April 2009, Koukou, C‑519/08, not published, EU:C:2009:269, paragraph 95).
57


In the absence of EU rules on the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law (judgments of 15 April 2008, Impact, C‑268/06, EU:C:2008:223, paragraph 44, and of 8 September 2011, Rosado Santana, C‑177/10, EU:C:2011:557, paragraph 87, and orders of 12 June 2008, Vassilakis and Others, C‑364/07, not published, EU:C:2008:346, paragraph 141, and of 24 April 2009, Koukou, C‑519/08, not published, EU:C:2009:269, paragraph 96).
58


As is apparent from paragraph 37 of this judgment, it is incumbent on the national authorities to adopt appropriate measures to ensure that the measures taken pursuant to the framework agreement are fully effective. The detailed rules for implementing those measures must be consistent with the principles of equivalence and effectiveness (judgment of 23 April 2009, Angelidaki and Others, C‑378/07 to C‑380/07, EU:C:2009:250, paragraph 174, and orders of 12 June 2008, Vassilakis and Others, C‑364/07, not published, EU:C:2008:346, paragraph 142, and of 24 April 2009, Koukou, C‑519/08, not published, EU:C:2009:269, paragraph 97).
59


Those requirements of equivalence and effectiveness, which embody the general obligation on the Member States to ensure judicial protection of an individual’s rights under EU law, apply equally to the designation of the courts having jurisdiction to hear and determine actions based on EU law. A failure to comply with those requirements at EU level is — just like a failure to comply with them as regards the definition of detailed procedural rules — liable to undermine the principle of effective judicial protection (judgment of 15 April 2008, Impact, C‑268/06, EU:C:2008:223, paragraphs 47 and 48, and order of 24 April 2009, Koukou, C‑519/08, not published, EU:C:2009:269, paragraph 98).
60


However, it is for the referring court, not the Court of Justice, to ascertain that the Member State concerned has taken all necessary steps enabling it to be in a position at any time to guarantee the right to effective judicial protection in compliance with the principles of equivalence and effectiveness (see, to that effect, inter alia, judgments of 15 April 2008, Impact, C‑268/06, EU:C:2008:223, paragraphs 43 to 55, and of 23 April 2009, Angelidaki and Others, C‑378/07 to C‑380/07, EU:C:2009:250, paragraph 176, and orders of 12 June 2008, Vassilakis and Others, C‑364/07, not published, EU:C:2008:346, paragraph 149, and of 24 April 2009, Koukou, C‑519/08, not published, EU:C:2009:269, paragraph 101).
61


As regards, in particular, the principle of effectiveness, it must be noted that the national procedural provisions at issue must be analysed by reference to the role of that provision in the procedure as a whole and to the progress 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 (see, to that effect, judgment of 8 September 2011, Rosado Santana, C‑177/10, EU:C:2011:557, paragraph 92).
63


Even if the Court has already held, in that context, that national legislation which provides that an independent administrative body is competent to reclassify where appropriate fixed-term employment contracts as contracts of indefinite duration appears, prima facie, to satisfy those requirements (judgment of 23 April 2009, Angelidaki and Others, C‑378/07 to C‑380/07, EU:C:2009:250, paragraph 175, and order of 12 June 2008, Vassilakis and Others, C‑364/07, not published, EU:C:2008:346, paragraph 144), the fact remains that requiring a fixed-term worker to bring a new action, where appropriate before a different court, in order to determine the appropriate penalty where misuse of successive fixed-term employment contracts has been established by a judicial authority, does not comply with the principle of effectiveness in so far as it results in procedural disadvantages for that worker, in terms, inter alia, of cost, duration and the rules of representation.