Raffaella Mascolo and Others v Ministero dell’Istruzione, dell’Università e della Ricerca and Comune di Napoli.
Date: 2014-11-26
47. It should, however, be recalled that it is settled case-law that, in the context of the cooperation between the Court and national courts under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, 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 (judgment in Rosado Santana , C‑177/10, EU:C:2011:557, paragraph 32 and the case-law cited).
48. As the Court has repeatedly held, national courts have the widest discretion in referring matters to it if they consider that a case pending before them raises questions involving interpretation of provisions of EU law (see, inter alia, judgments in Križan and Others , C‑416/10, EU:C:2013:8, paragraph 64, and Ogieriakhi , C‑244/13, EU:C:2014:2068, paragraph 52).
49. It follows that, whilst the existence of settled case-law on a point of EU law may prompt the Court to make an order under Article 99 of its Rules of Procedure, it cannot in any way affect the admissibility of a reference for a preliminary ruling if a national court decides, in the exercise of its discretion, to bring a matter before the Court under Article 267 TFEU.
50. None the less, it should also be recalled that, in accordance with settled case-law, the Court may refuse to rule on a question referred for a preliminary ruling by a national court 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, judgment in Érsekcsanádi Mezőgazdasági , C‑56/13, EU:C:2014:352, paragraph 36 and the case-law cited).
55. The Tribunale di Napoli itself finds, in its order for reference in Case C‑63/13, that the applicant in the main proceedings, unlike the applicants in the main proceedings in Cases C‑22/13, C‑61/13 and C‑62/13, can benefit from Article 5(4a) of Legislative Decree No 368/2001, which provides for the conversion of successive fixed-term contracts exceeding a duration of 36 months into an employment contract of indefinite duration and which is correctly referred to by that court as constituting a measure which is consistent with the requirements resulting from EU law in that it prevents the misuse of such contracts and results in definitive elimination of the consequences of the misuse (see, inter alia, judgment in Fiamingo and Others , C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraphs 69 and 70 and the case-law cited).
61. As is apparent from paragraphs 14 and 15 of this judgment, that interpretation corresponds, however, in all respects to the interpretation which has been presented in this instance by the Tribunale di Napoli and in the light of which — in accordance with settled case-law — the Court must consider the present references for a preliminary ruling (see, inter alia, judgment in Pontin , C‑63/08, EU:C:2009:666, paragraph 38). The Tribunale di Napoli in fact states explicitly in its orders for reference that, in its view, the national legislature did not intend to exclude application of Article 5(4a) of Legislative Decree No 368/2001 to the public sector.
67. It should be recalled that it is apparent from the very wording of clause 2(1) of the Framework Agreement that the scope of that agreement is conceived in broad terms, as it covers generally ‘fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice 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 and regardless of the classification of their contract under domestic law (see judgment in Fiamingo and Others , EU:C:2014:2044, paragraphs 28 and 29 and the case-law cited).
68. The Framework Agreement therefore applies to all workers providing remunerated services in the context of a fixed-term employment relationship linking them with their employer, in so far as they are linked by an employment contract within the meaning of national law, subject to the sole provisos of the margin of discretion conferred on Member States by clause 2(2) of the Framework Agreement as to the application of the latter to certain categories of employment contracts or relationships and of the exclusion, in accordance with the fourth paragraph of the preamble to the Framework Agreement, of temporary agency workers (see judgment in Fiamingo and Others , EU:C:2014:2044, paragraphs 30 to 33 and the case-law cited).
69. It follows that the Framework Agreement does not exclude any particular sector from its scope and that it is therefore applicable to staff recruited in the education sector (see, to this effect, judgment in Fiamingo and Others , EU:C:2014:2044, paragraph 38).
70. This conclusion is borne out by the contents of clause 5(1) of the Framework Agreement, which, in conformity with the third paragraph of its preamble and paragraphs 8 and 10 of its general considerations, makes it possible for Member States, when implementing the agreement, to take account of the particular needs of the specific sectors and/or categories of workers involved, provided that that is justified on objective grounds (judgment in Fiamingo and Others , EU:C:2014:2044, paragraph 39).
71. It follows that workers in the situation of the applicants in the main proceedings, who have been recruited as a teacher or administrator to act by way of replacement on an annual basis in schools administered by the State under employment contracts within the meaning of national law, and who indisputably do not fall within the employment relationships capable of being excluded from the scope of the Framework Agreement, are covered by the provisions of that agreement, including clause 5 thereof (see, by analogy, judgment in Márquez Samohano , C‑190/13, EU:C:2014:146, paragraph 39).
Interpretation of clause 5(1) of the Framework Agreement
72. 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, inter alia, judgments in Adeneler and Others , C‑212/04, EU:C:2006:443, paragraph 63; Kücük , C‑586/10, EU:C:2012:39, paragraph 25; and Fiamingo and Others , EU:C:2014:2044, paragraph 54).
73. As is apparent from the second paragraph of the preamble to the Framework Agreement and from paragraphs 6 and 8 of its general considerations, 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 are liable to respond to the needs of both employers and workers (judgments in Adeneler and Others , EU:C:2006:443, paragraph 62, and Fiamingo and Others , EU:C:2014:2044, paragraph 55).
74. Thus, clause 5(1) of the Framework Agreement requires Member States, in order to prevent the misuse of successive fixed-term employment contracts or relationships, 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 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, inter alia, judgments in Kücük , EU:C:2012:39, paragraph 26, and Fiamingo and Others , EU:C:2014:2044, paragraph 56).
75. The Member States enjoy a certain discretion in this regard since they have the choice of relying on one or more of the measures listed in clause 5(1)(a) to (c) of the Framework Agreement, or on existing equivalent legal measures, while taking account of the needs of specific sectors and/or categories of workers (see judgment in Fiamingo and Others , EU:C:2014:2044, paragraph 59 and the case-law cited.
76. In that way, clause 5(1) of the Framework Agreement assigns to the Member States the general objective of preventing such abuse, while leaving to them the choice as to how to achieve it, provided that they do not compromise the objective or the practical effect of the Framework Agreement (judgment in Fiamingo and Others , EU:C:2014:2044, paragraph 60).
77. Furthermore, where, as in the present instance, EU law does not lay down any specific penalties in the event that instances of abuse are nevertheless established, 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 provisions adopted pursuant to the Framework Agreement are fully effective (see, inter alia, judgment in Fiamingo and Others , EU:C:2014:2044, paragraph 62 and the case-law cited).
78. While, in the absence of relevant EU rules, the detailed rules for implementing such provisions are a matter for the domestic legal order of the Member States, under the principle of their procedural autonomy, they 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) (see, inter alia, judgment in Fiamingo and Others , EU:C:2014:2044, paragraph 63 and the case-law cited).
79. Therefore, where abuse 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 punish that abuse and nullify the consequences of the breach of EU law (judgment in Fiamingo and Others , EU:C:2014:2044, paragraph 64 and the case-law cited).
80. In this respect, it should be recalled that, as the Court has observed on many occasions, 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, inter alia, judgment in Fiamingo and Others , EU:C:2014:2044, paragraph 65 and the case-law cited).
81. In the present instance, as regards the national legislation at issue in the main proceedings, it must be recalled that it is not for the Court to rule on the interpretation of provisions of national law, that being exclusively for the referring court or, as the case may be, the national courts having jurisdiction, which must determine whether the requirements set out in paragraphs 74 to 79 of this judgment are met by the provisions of the applicable national legislation (see, inter alia, judgment in Fiamingo and Others , EU:C:2014:2044, paragraph 66 and the case-law cited).
82. 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 (see judgment in Fiamingo and Others , EU:C:2014:2044, paragraph 67 and the case-law cited).
83. However, the Court, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give the national court guidance in its assessment (see, inter alia, judgment in Fiamingo and Others , EU:C:2014:2044, paragraph 68 and the case-law cited).
– Existence of measures preventing the misuse of successive fixed-term employment contracts
86. As is stated in paragraph 7 of the general considerations in the Framework Agreement, and as is clear from paragraph 74 of this judgment, the signatory parties to the Framework Agreement considered that the use of fixed-term employment contracts founded on objective reasons is a way to prevent abuse (see judgments in Adeneler and Others , EU:C:2006:443, paragraph 67, and Fiamingo and Others , EU:C:2014:2044, paragraph 58).
87. This concept of ‘objective reasons’ in clause 5(1)(a) of the 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 (judgment in Kücük , EU:C:2012:39, paragraph 27 and the case-law cited).
88. On the other hand, a national provision which merely authorises recourse to successive fixed-term employment 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. 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, is capable of achieving the objective pursued and is 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 Framework Agreement and the requirement that it have practical effect (judgment in Kücük , EU:C:2012:39, paragraphs 28 and 29 and the case-law cited).
91. National legislation which allows the renewal of fixed-term employment contracts for the purpose of replacing, first, staff of schools administered by the State pending the outcome of competitive selection procedures for the recruitment of tenured staff and, second, staff of those schools who are momentarily unable to perform their tasks is not per se contrary to the Framework Agreement. The temporary replacement of a worker in order to satisfy, in essence, the employer’s temporary staffing requirements may, in principle, constitute an ‘objective reason’ within the meaning of clause 5(1)(a) of the Framework Agreement (see, to this effect, judgments in Angelidaki and Others , C‑378/07 to C‑380/07, EU:C:2009:250, paragraphs 101 and 102, and Kücük , EU:C:2012:39, paragraph 30).
92. In this connection, it should first of all be borne in mind that, in a sector of the public services with a large workforce, such as the education sector, it is inevitable that temporary replacements will frequently be necessary due to, inter alia, the unavailability of members of staff on sick, maternity, parental or other leave. The temporary replacement of workers in those circumstances may constitute an objective reason within the meaning of clause 5(1)(a) of the 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 Framework Agreement (see, to this effect, judgment in Kücük , EU:C:2012:39, paragraph 31).
93. 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 is clear from paragraph 87 of this judgment, the concept of ‘objective reason’ in clause 5(1)(a) of the Framework Agreement encompasses the pursuit of such objectives. Measures intended, inter alia, to offer protection for pregnancy and maternity and to enable men and women to reconcile their professional and family obligations pursue legitimate social policy objectives (see judgment in Kücük , EU:C:2012:39, paragraphs 32 and 33 and the case-law cited).
99. As to those submissions, whilst national legislation permitting the renewal of successive fixed-term employment contracts in order to replace staff pending the outcome of competitive selection procedures is capable of being justified by an objective reason, the actual application of that reason must be consistent with 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. When applying the relevant provision of national law, the competent 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, is capable of achieving the objective pursued and is necessary for that purpose (see, to this effect, judgment in Kücük , EU:C:2012:39, paragraph 34 and the case-law cited).
100. As the Court has already held on many occasions, 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 for the purposes of clause 5(1)(a) of the Framework Agreement. Such use of fixed-term employment contracts or relationships conflicts directly with the premiss on which the Framework Agreement is founded, namely that employment 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 (judgment in Kücük , EU:C:2012:39, paragraphs 36 and 37 and the case-law cited).
101. In order for clause 5(1)(a) of the Framework Agreement to be complied with, it must therefore be specifically verified that the renewal of successive fixed-term employment contracts or relationships is intended to cover temporary needs and that a national provision such as Article 4(1) of Law No 124/1999, read in conjunction with Article 1 of Decree No 131/2007 is not, in fact, being used to meet fixed and permanent staffing needs of the employer (see, to this effect, judgment in Kücük , EU:C:2012:39, paragraph 39 and the case-law cited).
102. It is necessary for that purpose 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 misused by employers (see, to this effect, judgment in Kücük , EU:C:2012:39, paragraph 40 and the case-law cited).
103. The existence of an ‘objective reason’ within the meaning of clause 5(1)(a) of the Framework Agreement thus precludes, in principle, the existence of abuse, except where an overall assessment of the circumstances surrounding the renewal of the relevant fixed-term employment contracts or relationships reveals that the services required of the worker do not meet merely a temporary need (judgment in Kücük , EU:C:2012:39, paragraph 51).
105. In this regard, whilst, in accordance with the case-law recalled in paragraphs 81 and 82 of this judgment, under the procedure provided for by Article 267 TFEU any assessment of the facts falls within the jurisdiction of the national courts, it must be stated that it is clear from the information provided to the Court in the present cases that, as the Italian Government itself moreover acknowledges, the period required for teachers to be granted tenure under that regime is both variable and uncertain.
107. Second, it is apparent from the explanations of the Italian Government that, since the grant of tenure as a result of teachers’ progressing up the ranking list is dictated by the overall duration of the fixed-term employment contracts and by the posts that have in the meantime become vacant, such grant depends, as the Commission has correctly asserted, on fortuitous and unpredictable circumstances.
110. In this connection, it should be borne in mind that, whilst budgetary considerations may underlie a Member State’s choice of social policy and influence the nature or scope of the measures which it wishes to adopt, they do not in themselves constitute an aim pursued by that policy and, therefore, cannot justify the lack of any measure preventing the misuse of successive fixed-term employment contracts as referred to in clause 5(1) of the Framework Agreement (see, by analogy, judgment in Thiele Meneses , C‑220/12, EU:C:2013:683, paragraph 43 and the case-law cited).
112. In this regard, it should be pointed out, as the Commission has done, that, for the purposes of implementation of clause 5(1) of the Framework Agreement, a Member State can legitimately choose not to adopt the measure referred to in clause 5(1)(a). It may, on the contrary, prefer to adopt one or both of the measures referred to in clause 5(1)(b) and (c), which deal, respectively, with the maximum total duration of successive fixed-term employment contracts or relationships and the number of renewals of such contracts or relationships, provided that, whatever the measure thus chosen, the effective prevention of the misuse of fixed-term employment contracts or relationships is assured (see, to this effect, judgment in Fiamingo and Others , EU:C:2014:2044, paragraph 61).
118. Whilst it is true that, as has already been pointed out in paragraphs 70 and 95 of this judgment, a Member State is entitled, when implementing clause 5(1) of the Framework Agreement, to take account of the needs of a specific sector, such as the education sector, that right cannot be understood as permitting it to dispense with observance of the obligation to lay down an appropriate measure for duly punishing the misuse of successive fixed-term employment contracts.