Francesca Sorge v Poste Italiane SpA.
Date: 2010-06-24
23. With regard to the second question, and relying on paragraphs 208 to 212 of Angelidaki and Others , Poste Italiane considers that none of the provisions of Legislative Decree No 368/2001 has given rise to any unfavourable changes in the rules applicable to the workers concerned. The Court, for its part, refused to consider that Clause 8(3) of the Framework agreement may have direct effect. It follows that the national court could not refrain from applying the national rules, even those incompatible with European Union law, but could only give them an interpretation in conformity with the provisions of that law.
24. It is to be borne in mind that, according to the Court’s case-law, in the context of the cooperation between the Court and national courts under Article 234 EC, it is for the national court before which the dispute has been brought, which alone has direct knowledge of the facts giving rise to that case 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, when the questions submitted by the national court concern the interpretation of European Union law, the Court of Justice is, in principle, bound to give a ruling (see, in particular, Case C‑144/04 Mangold  [2005] ECR I‑9981, paragraphs 34 and 35; Case C‑212/04 Adeneler and Others  [2006] ECR I‑6057, paragraph 41; and the order of 12 June 2008 in C‑364/07 Vassilakis and Others  [2008] ECR I‑0090, paragraph 42 and case-law cited).
29. In order to rule on the questions referred, it is necessary to examine, in the first place, whether the conclusion of a first fixed-term contract falls within the ambit of the framework agreement and, in the second place, whether the amendment of the domestic legislation by Legislative Decree No 368/2001, intended to transpose Directive 1999/70 and the framework agreement, may, on the one hand, be regarded as linked to the ‘implementation’ of that agreement and, on the other, relate to the ‘general level of protection’ afforded to workers within the meaning of clause 8(3) of the agreement ( Angelidaki and Others , paragraph 130).
The ambit of the framework agreement
30. According to the actual wording of clause 2 of the framework agreement, the agreement applies to any fixed-term worker having an employment contract or relationship defined by the legislation, collective agreements or practice in force in each Member State ( Angelidaki and Others , paragraph 114).
31. By virtue of clause 3 of the framework agreement, the definition of ‘fixed-term worker’ covers ‘a person having an employment contract or relationship entered into directly between an employer and a worker where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event’ ( Angelidaki and Others , paragraph 115).
33. It is, therefore, clear both from the objective of Directive 1999/70 and the framework agreement and from the wording of the relevant provisions thereof that, contrary to what the Italian Government in essence maintains, the sphere of that agreement is not limited solely to workers having entered into successive fixed-term employment contracts; on the contrary, the agreement is applicable to all workers providing remunerated services in the context of a fixed-term employment relationship linking them to their employer, whatever the number of fixed-term contracts concluded by those workers ( Angelidaki and Others , paragraph 116 and case-law cited).
34. Furthermore, it follows from the Court’s case-law, first, that in the light of its objectives clause 8(3) of the framework agreement cannot be interpreted restrictively ( Angelidaki and Others , paragraph 113) and, secondly, that the existence of a ‘reduction’ for the purposes of clause 8(3) of the framework agreement must be considered in relation to the whole of a Member State’s domestic law relating to the protection of workers in the context of fixed-term employment contracts ( Angelidaki and Others , paragraph 120).
35. The Court inferred therefrom that clause 8(3) of the framework agreement must be interpreted as meaning that the ‘reduction’ to which it refers must be considered in relation to the general level of protection applicable, in the Member State concerned, both to workers having entered into successive fixed-term employment contracts and to workers having concluded a first or single fixed-term employment contract ( Angelidaki and Others , paragraph 121).
The interpretation of clause 8(3) of the framework agreement
37. By contrast, it is for the Court, where appropriate, in giving a preliminary ruling, to provide the referring court with guidance to assist it in its assessment whether that possible reduction in the protection of workers having entered into a fixed-term employment contract constitutes a ‘reduction’ for the purposes of clause 8(3) of the framework agreement. In order to do so, it is necessary to consider to what extent the amendments introduced by the national legislation intended to transpose Directive 1999/70 and the framework agreement may be deemed to be connected to the ‘implementation’ of that agreement and, moreover, may relate to the ‘general level of protection’ afforded to workers within the meaning of clause 8(3) ( Angelidaki and Others , paragraph 130).
42. As regards, in the second place, the condition that the reduction must relate to the ‘general level of protection’ afforded to fixed-term workers, this implies that only a reduction on a scale likely to have an effect overall on national legislation relating to fixed-term employment contracts is capable of being covered by clause 8(3) of the framework agreement ( Angelidaki and Others , paragraph 140, and order of 24 April 2009 in Case C‑519/08 Koukou  [2008] ECR I‑0065, paragraph 119).
50. It is to be borne in mind that the Court has held that clause 8(3) of the Framework Agreement does not fulfil the conditions required in order to have direct effect. First, clause 8(3) relates only to the ‘implementation’ of that agreement by the Member States and/or the social partners, on whom it is incumbent to transpose the agreement into the domestic legal order, prohibiting them from justifying, in that transposition, a reduction in the general level of protection afforded to workers by the need to put the Framework Agreement into effect. Second, by simply prohibiting, in its own words, ‘reducing the general level of protection afforded to workers in the field of [that framework] agreement’, that clause implies that only a reduction on a scale likely to have an effect overall on national legislation relating to fixed-term employment contracts is capable of falling within its ambit. However, individuals would not be able to infer from such a prohibition any right that would be sufficiently clear, precise and unconditional (see to that effect Angelidaki and Others , paragraphs 209 to 211, and Koukou , paragraph 128).
51. Nevertheless, the national courts are bound to interpret domestic law, so far as possible, in the light of the wording and the purpose of the framework agreement in question in order to achieve the result sought by the latter and, consequently, to comply with the third paragraph of Article 288 TFEU. This obligation to interpret national law in conformity with European Union law concerns all provisions of national law, whether adopted before or after the framework agreement in question (see, by analogy, Adeneler and Others , paragraph 108, and Case C‑555/07 Kücükdeveci  [2010] ECR I‑0000, paragraph 48).
52. It is true that the obligation that the national court should refer to the content of the framework agreement 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  (see, by analogy, Adeneler and Others , paragraph 110).
53. The principle that national law must be interpreted in conformity with European Union 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 the latter, with a view to ensuring that the framework agreement in question is fully effective and achieving an outcome consistent with the objective pursued by it (see, by analogy, Adeneler and Others , paragraph 111).