Hubertus John v Freie Hansestadt Bremen.
Date: 2018-02-28
22


Therefore, it must be examined whether an employee such as Mr John is treated less favourably than another in a comparable situation on account of his age, within the meaning of Article 2(2)(a) of Directive 2000/78, or whether the provision at issue in the main proceedings may give rise to a particular disadvantage with regard to the age category to which he belongs, within the meaning of Article 2(2)(b) thereof.
24


Second, the Court has held that the automatic termination of the employment contracts of employees who meet the conditions as regards age and contributions paid for the liquidation of their pension rights has, for a long time, been a feature of employment law in many Member States and is widely used in employment relationships. It is a mechanism which is based on the balance to be struck between political, economic, social, demographic and/or budgetary considerations and the choice to be made between prolonging people’s working lives or, conversely, providing for early retirement (judgment of 12 October 2010, Rosenbladt, C‑45/09, EU:C:2010:601, paragraph 44 and the case-law cited).
37


It must be recalled, as is clear from the wording of Clause 2(1) of the Framework Agreement, that although the scope of the latter 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’, the fact remains that the definition of contracts and employment relationships to which the Framework Agreement applies is not governed by it or by EU law, but by national legislation and/or practices (judgment of 15 March 2012, Sibilio, C‑157/11, not published, EU:C:2012:148, paragraph 42).
38


However, the Court may, in the framework of the judicial cooperation provided for by that article and on the basis of the material presented to it, provide the national court with an interpretation of EU law which may be useful to it in assessing the effects of one or other of its provisions (see, to that effect, judgment of 21 June 2017, W and Others, C‑621/15, EU:C:2017:484, paragraph 40 and the case-law cited).
40


One of the objectives of that agreement is 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 (judgment of 14 September 2016, Pérez López, C‑16/15, EU:C:2016:679, paragraph 26 and the case-law cited).
41


Thus, the benefit of stable employment is viewed as a major element in the protection of workers, whereas it is only in certain circumstances that fixed-term employment contracts can respond to the needs of both employers and workers (judgment of 14 September 2016, Pérez López, C‑16/15, EU:C:2016:679, paragraph 27 and the case-law cited).
48


It should be noted that Clause 5 of the Framework Agreement requires Member States, in paragraph 1 thereof, to adopt 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 (judgment of 14 September 2016, Martinez Andrés and Castrejana López, C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 35 and the case-law cited).
49


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 (judgment of 14 September 2016, Martinez Andrés and Castrejana López, C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 36 and the case-law cited).
50


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 law (judgment 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).
51


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, punishing 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, and 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).
52


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).
53


In the present case, it must be observed that the concept of ‘objective reasons’, within the meaning of Clause 5(1)(a) of the Framework Agreement, 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 (judgment of 26 January 2012, Kücük, C‑586/10, EU:C:2012:39, paragraph 27).