Kiriaki Angelidaki and Others v Organismos Nomarchiakis Autodioikisis Rethymnis (C-378/07), Charikleia Giannoudi v Dimos Geropotamou (C-379/07) and Georgios Karabousanos and Sofoklis Michopoulos v Dimos Geropotamou (C-380/07).
Date: 2009-04-23
30. Article 2 of Law No 3250/2004 provides:
‘1. Staff shall be recruited under part-time, fixed-term private-law contracts of employment from the categories of social groups referred to in Article 4 and in accordance with the selection criteria laid down in that Article.
2. The term of the above contracts may not exceed 18 months. A new contract may be signed with the same worker no less than four months after expiry of the previous contract. Persons employed under such contracts shall not work more than 20 hours a week.’
48. In that regard, it should be noted that it is not for the Court, in the context of a reference for a preliminary ruling, to give a ruling on the interpretation of provisions of national law or to decide whether the interpretation given by the national court of those provisions is correct. The Court must take account, under the division of jurisdiction between the Community Courts and the national courts, of the factual and legislative context in which the questions put to it are set, as described in the order for reference (see Joined Cases C‑482/01 and C‑493/01 Orfanopoulos and Oliveri  [2004] ECR I‑5257, paragraph 42; Case C‑244/06 Dynamic Medien  [2008] ECR I‑505, paragraph 19; and Case C‑330/07 Jobra  [2008] ECR I‑0000, paragraph 17; see also, to that effect, order of 12 June 2008 in Case C‑364/07 Vassilakis and Others , paragraphs 134 and 143).
51. It must be concluded therefore that, irrespective of the disagreement between the parties in the main proceedings concerning the interpretation of national law and the criticism expressed in regard to that adopted by the national court, the questions referred must be considered in the light of the interpretation of national law adopted by that court. The plea of inadmissibility raised by the Greek Government in this respect must therefore be rejected.
52. Second, the Commission contends that Questions 3 to 6 in Case C‑378/07 are devoid of purpose. As the Greek and Italian Governments also assert, it follows from the judgment in Case C‑144/04 Mangold [2005] ECR I‑9981, at paragraphs 41 to 43, that clause 5(1) of the Framework Agreement is designed solely to prevent abuse arising from the use of successive fixed-term employment contracts and does not, therefore, apply where the contract in question is the first or only contract of employment concluded between the parties.
56. It must also be noted in that regard that, having held, in paragraphs 42 and 43 of the judgment in Mangold , that the interpretation of clause 5(1) of the Framework Agreement was irrelevant to the outcome of the dispute before the national court in that case, because that dispute concerned the first and only use of a fixed-term employment contract, the Court, in paragraphs 44 to 54 of the judgment, answered the supplementary question put to it by that court in the same dispute concerning the interpretation of clause 8(3) of the Framework Agreement.
57. In those circumstances, since Questions 3 to 6 in Case C‑378/07 relate to the interpretation of Community law and it is not obvious that that interpretation bears no relation to the actual facts of the disputes before the national court or to their purpose, and the disputes are clearly not hypothetical, the Court, as it has consistently held, is bound to answer those questions (see, to that effect, in particular, Case C‑212/04 Adeneler and Others  [2006] ECR I‑6057, paragraphs 41 and 42; Case C‑238/05 Asnef-Equifax and Administración del Estado  [2006] ECR I‑11125, paragraphs 15 to 17; and the order in Vassilakis and Others , paragraphs 42 to 44).
66. It is therefore appropriate to answer the questions referred by the national court in the order set out in paragraphs 64 and 65, although it must be made clear from the outset that, in so far as the national court is asking the Court of Justice to rule on the compatibility of Presidential Decree No 164/2004 with the Framework Agreement, it is not for the Court, in the context of the procedure provided for in Article 234 EC, to determine whether national provisions are compatible with Community law. The Court may nevertheless provide the national court with all the criteria for the interpretation of Community law which may enable it to assess whether those provisions are so compatible in order to give judgment in the various proceedings before it (see, in particular, Joined Cases C‑145/06 and C‑146/06 Fendt Italiana  [2007] ECR I‑5869, paragraph 30).
Measures to prevent abuse within the meaning of clause 5(1) of the Framework Agreement
– The discretion of the Member States where an ‘equivalent legal measure’ exists under national law
71. In that respect, it is certainly true, as is apparent from paragraph 10 of the general considerations of the Framework Agreement, that the agreement allows 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 order in Vassilakis and Others , paragraph 87).
73. In the present case, since the concept of ‘equivalent legal measure’ is not defined by the Framework Agreement, it must be noted, in the absence of a referral back to the law of the Member States, that 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 Adeneler and Others , paragraph 63, and order in Vassilakis and Others , paragraph 84).
74. Thus, clause 5(1) of the Framework Agreement requires Member States, in order to ‘prevent abuse arising from the use of successive fixed-term employment contracts or relationships’, to adopt one or more of the measures listed where domestic law does not include ‘equivalent legal measures’ to prevent such abuse. 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 Case C‑268/06 Impact [2008] ECR I‑2483, paragraph 69, and order in Vassilakis and Others , paragraph 80).
75. It follows unequivocally from the terms of that clause themselves that the various measures it envisages are intended to be ‘equivalent’ ( Impact , paragraph 76).
76. Consequently it is apparent that the expression ‘equivalent legal measures’ in clause 5(1) of the Framework Agreement is intended to cover any national legal measure whose purpose, like that of the measures laid down by that clause, is to prevent effectively the misuse of successive fixed-term employment contracts or relationships (see, to that effect, Adeneler and Others , paragraph 65).
79. Next, as regards the issue whether, in such cases, the existence of an ‘equivalent legal measure’ within the meaning of clause 5(1) precludes the adoption by the Member State concerned of national legislation which, for the purposes of transposing Directive 1999/70 lays down specific measures, as in Articles 5 to 7 and 11 of Presidential Decree No 164/2004, designed to prevent the misuse of successive fixed-term employment contracts or relationships, it should be noted that, in prescribing the effective and binding adoption of at least one of the measures listed in clause 5(1) of the Framework Agreement intended to prevent the misuse of successive fixed-term employment contracts, where domestic law does not already include equivalent legal measures, clause 5(1) of the Framework Agreement assigns to the Member States the general objective of preventing such misuse, while leaving to them the choice as to how to achieve it ( Impact , paragraph 70 and case-law cited).
80. It follows that, by virtue of that provision, the Member States have a certain discretion as to how they achieve that objective, provided nevertheless that they guarantee the result imposed by Community law, as is clear not only from the third paragraph of Article 249 EC, 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 (see, to that effect, Adeneler and Others , paragraph 68, and order in Vassilakis and Others , paragraph 87).
81. As the Court has already held, it is therefore left to the discretion enjoyed by the Member States under clause 5(1) of the Framework Agreement to rely on one or more of the measures listed in that clause, or even on existing equivalent legal measures, while taking account of the needs of specific sectors and/or categories of workers, in order to ensure the effective prevention of the misuse of successive fixed-term employment contracts or relationships (see Impact , paragraph 71).
82. Therefore, although, in the absence of an equivalent legal measure in its domestic law, a Member State must, in order to achieve that objective, of necessity adopt one or more of the preventive measures listed in clause 5(1)(a) to (c) of the Framework Agreement in order correctly to transpose Directive 1999/70 (see, to that effect, Adeneler and Others , paragraph 65; and Impact , paragraphs 69 and 70; also order in Vassilakis and Others , paragraph 80), the existence of such an equivalent legal measure cannot, on the other hand, deprive that State of the possibility of additionally adopting one or more of the measures listed in clause 5(1)(a) to (c) for the purposes, in particular – as all the parties who submitted written observations essentially acknowledge – of amending or enhancing the protection derived from that equivalent legal measure, if all further development of existing national legislation is not to be prevented.
83. However, it must be borne in mind that the margin of discretion thereby left for the Member States is not unlimited and that, in particular, it cannot in any event go so far as to compromise the objective or the practical effect of the Framework Agreement ( Adeneler and Others , paragraph 82).
85. Furthermore, the discretion conferred on the Member States under clause 5(1) of the Framework Agreement must also be exercised in compliance with Community law and, in particular, its general principles as well as the other provisions of the Framework Agreement (see, to that effect, Mangold , paragraphs 50 to 54 and 63 to 65).
90. It must be observed at the outset that the Framework Agreement does not compel the Member States to adopt a measure requiring every first or single use of a fixed-term employment contract to be justified by such objective reasons. As the Court has already held, such fixed-term employment contracts are not within the scope of clause 5(1) of the Framework Agreement, which relates solely to prevention of the misuse of successive fixed-term employment contracts or relationships; the objective reasons referred to in clause 5(1)(a) thus relate only to the renewal of such contracts or relationships (see Mangold , paragraphs 41 to 43).
91. Furthermore, as regards successive fixed-term employment contracts or relationships, it should be borne in mind that clause 5(1) of the Framework Agreement, which is intended specifically to prevent abuse arising from their use, imposes on Member States the obligation to introduce into domestic law one or more of the measures listed in clause 5(1)(a) to (c) where equivalent legal provisions intended to prevent effectively the misuse of that type of employment contract do not already exist in the Member State concerned. Among those measures, clause 5(1)(a) envisages ‘objective reasons justifying the renewal of such contracts or relationships’ (see Adeneler and Others , paragraphs 64 to 66).
92. As is apparent from paragraph 7 of the general considerations of the Framework Agreement, the signatory parties to that agreement took the view that the use of fixed-term employment contracts founded on objective reasons is a way to prevent abuse ( Adeneler and Others , paragraph 67, and order in Vassilakis and Others , paragraph 86).
93. However, as has been stated in paragraphs 79 to 82 of this judgment, the Member States have a certain discretion in respect of the implementation of clause 5(1) of the Framework Agreement, since they can choose to have recourse to one or more of the measures listed in clause 5(1)(a) to (c), or even to existing equivalent legal measures.
94. It follows that, for the purposes of that implementation, a Member State can legitimately choose not to adopt the measure referred to in clause 5(1)(a), which requires the renewal of such successive fixed-term employment contracts or relationships to be justified by objective reasons. 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 those successive fixed-term employment contracts or relationships and the number of renewals of such contracts or relationships, or it may even choose to maintain an existing equivalent legal measure, and it may do so provided that, whatever the measure thus chosen, the effective prevention of the misuse of fixed-term employment contracts or relationships is assured (see, to that effect, Adeneler and Others , paragraph 101).
95. However, where, for the purposes of implementing clause 5(1) of the Framework Agreement, a Member State chooses to adopt the measure referred to in clause 5(1)(a), which requires the renewal of successive fixed-term employment contracts or relationships to be justified by objective reasons, that Member State is required to guarantee the result imposed by Community law, as follows not only from the third paragraph of Article 249 EC, but also from the first paragraph of Article 2 of Directive 1999/70 read in conjunction with recital 17 in its preamble (see, to that effect, Adeneler and Others , paragraph 68, and order in Vassilakis and Others , paragraph 87).
96. In those circumstances, the concept of ‘objective reasons’ for the purposes of 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 ( Adeneler and Others , paragraphs 69 and 70; Case C‑307/05 Del Cerro Alonso [2007] ECR I‑7109, paragraph 53; and order in Vassilakis and Others , paragraphs 88 and 89).
97. 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 two paragraphs ( Adeneler and Others  paragraph 71; Del Cerro Alonso , paragraph 54; and order in Vassilakis and Others , paragraph 90).
98. Such a provision, which is of a purely formal nature and does not justify specifically the use of successive fixed-term employment contracts by the presence of objective factors relating to the particular features of the activity concerned and to the conditions under which it is carried out, 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 ( Adeneler and Others , paragraph 72, and order in Vassilakis and Others , paragraph 91).
99. Thus, to admit that a national provision may, automatically and without further precision, justify successive fixed-term employment contracts would effectively have no regard to the aim of the Framework Agreement, which is to protect workers against instability of employment, and render meaningless the principle that contracts of indefinite duration are the general form of employment relationship ( Adeneler and Others , paragraph 73, and order in Vassilakis and Others , paragraph 92).
100. More specifically, recourse to fixed-term employment contracts solely on the basis of a general provision of statute or secondary legislation, unconnected to what the activity in question specifically comprises, 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 ( Adeneler and Others  paragraph 74; Del Cerro Alonso , paragraph 55; and order in Vassilakis and Others , paragraph 93).
101. However, it is apparent from the documents submitted to the Court that the national legislation at issue in the main proceedings no longer provides that the fact that the conclusion of a fixed-term employment contract is prescribed by a law constitutes an objective reason automatically justifying an unlimited number of renewals of such a contract. Instead, it appears that that legislation lays down the precise and concrete circumstances in which successive fixed-term employment contracts or relationships may be concluded in the public sector. Recourse to such contracts is permitted, as the case may be, under Article 5(2) of Presidential Decree No 164/2004 to meet ‘special needs’ which are ‘related to the form, the type or the activity of the undertaking’, under Article 1 of Law No 3250/2004 in order to meet ‘additional requirements’ for the purposes of providing ‘services of a social character’ to the public, under Article 6(1) of Law No 2527/1997 for the implementation of work which does not form part ‘of the usual duties of the employees’, or under Article 21(1) of Law No 2190/1994 in order to cope with ‘seasonal or other periodic or temporary needs’.
102. As the referring court itself observed in its questions, the national legislation at issue in the main proceedings thus allows fixed-term employment contracts to be concluded for the purposes of meeting what are essentially temporary needs. However, it must be acknowledged that such needs may constitute ‘objective reasons’ for the renewal of such contracts under clause 5(1)(a) of the Framework Agreement.
103. Nevertheless, as the Advocate General indicated at points 106 and 107 of her Opinion, it would be contrary to the objective pursued by that clause, which aims to prevent effectively the misuse of successive fixed-term employment contracts or relationships, if the renewal of such contracts or relationships were founded on the provisions of national legislation at issue in the main proceedings referred to in paragraph 101 of this judgment when, in reality, the needs covered by those provisions are not in fact of a temporary nature but are, on the contrary, ‘fixed and permanent’ (see, by analogy, Adeneler and Others , paragraph 88, and order in Vassilakis and Others , paragraph 110).
104. Such use of fixed-term employment contracts or relationships conflicts directly with the premiss on which the Framework Agreement is founded, namely – as is apparent from paragraphs 6 and 8 of its general considerations – that contracts of indefinite duration are the general form of employment relationship, whereas 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; Impact , paragraph 86; and order in Vassilakis and Others , paragraph 82).
105. Consequently, the benefit of stable employment is viewed as a major element in the protection of workers (see Mangold , paragraph 64), whereas – as is apparent from the second paragraph in the preamble to the Framework Agreement and paragraph 8 of the general considerations – it is only in certain circumstances that fixed-term employment contracts are liable to respond to the needs of both employers and workers ( Adeneler and Others , paragraph 62; Impact , paragraph 87; and order in Vassilakis and Others , paragraph 83).
106. Therefore, since, as the Court has consistently held, the Member States’ obligation arising from a directive to achieve the result envisaged by that directive and their duty under Article 10 EC to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation is binding on all the authorities of the Member States including, for matters within their jurisdiction, the courts (see, in particular, Case C‑106/89 Marleasing  [1990] ECR I‑4135, paragraph 8; Case C‑129/96 Inter-Environnement Wallonie  [1997] ECR I‑7411, paragraph 40; and Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others  [2004] ECR I‑8835, paragraph 110), it is for all the authorities of the Member State concerned to ensure, for matters within the sphere of their competence, that clause 5(1)(a) of the Framework Agreement is complied with by specifically determining that the national legislation which permits the renewal in the public sector of successive fixed-term employment contracts or relationships which have to meet temporary needs is not, in fact, being used to meet fixed and permanent needs.
112. The Framework Agreement, in particular clause 8(3), thus follows an aim which is akin to the fundamental objectives enshrined in the first paragraph of Article 136 EC as well as in the third paragraph of the preamble to the EC Treaty and Article 7 and the first paragraph of Article 10 of the 1989 Community Charter of the Fundamental Social Rights of Workers to which Article 136 EC refers, and which are associated with the improvement of living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, and with the existence of proper social protection for workers, in the present case, for fixed-term workers (see, to that effect, Impact , paragraph 112).
113. In the light of those objectives, clause 8(3) of the Framework Agreement cannot be interpreted restrictively.
114. According to the actual wording of clause 2 of the Framework Agreement, the agreement applies to any fixed-term worker who has an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State.
115. Under 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’.
116. Therefore, it is 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 the submissions, in essence, made by the Greek Government and the Commission, the scope of the Framework Agreement is not limited solely to workers who have 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 ( Del Cerro Alonso , paragraph 28), irrespective of the number of fixed-term contracts entered into.
120. It follows from this 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.
121. Consequently, the answer to be given to the referring court is that clause 8(3) of the Framework Agreement must be interpreted as meaning that the ‘reduction’ with which that clause is concerned must be considered in relation to the general level of protection applicable in the Member State concerned both to workers who have entered into successive fixed-term employment contracts and to workers who have entered into a first or single fixed-term employment contract.
– The amendments introduced by the national implementing legislation, as against prior domestic law
125. Next, as regards the scope of clause 8(3) of the Framework Agreement, it is apparent from the very wording of that clause that implementation of the agreement cannot provide the Member States with valid grounds for reducing the general level of protection for workers previously guaranteed in the domestic legal order in the sphere covered by that agreement ( Mangold , paragraph 50).
126. It follows that reduction of the protection which workers are guaranteed in the sphere of fixed-term employment contracts is not prohibited as such by the Framework Agreement but, in order for that reduction to be caught by the prohibition laid down by clause 8(3) of the agreement, it must, first, be connected to the ‘implementation’ of the Framework Agreement and, second, relate to the ‘general level of protection’ afforded to fixed-term workers (see, to that effect, Mangold , paragraph 52).
130. 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 of the issue as to whether the possible reduction in the protection of workers who have 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).
131. As regards, in the first place, the condition relating to the connection with the ‘implementation’ of the Framework Agreement, the Court has already held that that term, used without any further precision in clause 8(3) of the Framework Agreement, does not refer only to the original transposition of Directive 1999/70 and especially of the Annex thereto containing the Framework Agreement, but must also cover all domestic measures intended to ensure that the objective pursued by the directive may be attained, including those which, after transposition in the strict sense, add to or amend domestic rules previously adopted ( Mangold , paragraph 51).
133. However, such legislation cannot be regarded as conflicting with that clause if the reduction it entails is in no way connected to the implementation of the Framework Agreement. That would be the case if the reduction were justified not by the need to put the Framework Agreement into effect but by the need to encourage another objective, one that is distinct from that implementation (see, to that effect, Mangold , paragraphs 52 and 53).
134. In the present case, with regard to the amendment concerning the possibility of reclassifying fixed-term employment contracts, it appears that, from 1994 – in other words, approximately five years before the adoption of Directive 1999/70 and the Framework Agreement – Article 21(2) of Law No 2190/1994 already provided, absolutely and on pain of nullity, for the prohibition of any reclassification as contracts of indefinite duration of fixed-term employment contracts entered into in the public sector on the basis of that law (see, in that regard, Adeneler and Others , paragraph 98).
140. 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 liable to be covered by clause 8(3) of the Framework Agreement.
144. However, to the extent that such measures for the prevention of misuse are wholly or partly new to the domestic legal order (see, in that regard, Adeneler and Others , paragraph 100), which it is for the referring court to ascertain, their adoption can offset the reduction in protection resulting from the abolition or restriction of the penalty previously applicable in the event of misuse, consisting in the employment contract in question being treated as a contract of indefinite duration.
145. Such a development of national legislation, which tends to reinforce measures to prevent the misuse of successive fixed-term employment contracts, accords, moreover, with the objective pursued by the Framework Agreement. First, as is apparent from clauses 1(b) and 5(1) of that agreement, it is intended precisely to establish a framework to prevent abuse arising from the use of such contracts ( Adeneler and Others , paragraph 79, and Case C‑53/04 Marrosu and Sardino  [2006] ECR I‑7213, paragraph 43). Second, the Framework Agreement does not lay down any specific sanctions should instances of abuse have been established and, in particular, it neither lays down a general obligation on the Member States to provide for the recognition of fixed-term employment contracts as employment contracts of indefinite duration nor prescribes the precise conditions un der which fixed-term employment contracts may be used (see Adeneler and Others , paragraphs 91 and 94), thereby giving Member States a margin of discretion in the matter ( Marrosu and Sardino , paragraph 47). Thus, clause 5(2)(b) of the Framework Agreement merely provides that the Member States are, ‘where appropriate’, to determine under what conditions fixed-term employment contracts are to be ‘deemed to be contracts … of indefinite duration’.
149. It follows from this that the implementation of the Framework Agreement cannot have the effect of reducing the protection previously applicable, under the domestic legal order, to fixed-term workers to a level below that set by the minimum protective provisions laid down by the Framework Agreement in order to prevent the status of employees from being insecure (see Adeneler and Others , paragraph 63, and Impact , paragraph 88; see also, by analogy, with regard to clause 4 of the Framework Agreement, Del Cerro Alonso , paragraph 27).
151. As far as the adoption of those measures to prevent abuse is concerned, it must be noted that clause 5(1) of the Framework Agreement requires the effective and binding adoption by Member States of at least one of the measures listed in that provision, where national law does not already include equivalent measures (see Adeneler and Others , paragraph 101; Marrosu and Sardino , paragraph 50; Case C‑180/04 Vassallo  [2006] ECR I‑7251, paragraph 35; and Impact , paragraph 70; also order in Vassilakis and Others , paragraph 124).
154. In that regard, it must be noted that the Framework Agreement sets out, in particular in clause 5(1)(a) to (c), various measures intended to prevent such abuse, and the Member States are required to introduce at least one of those measures in their national law. As to the remainder, clause 5(2) leaves it, in principle, to the Member States to determine the conditions under which fixed-term employment contracts or relationships are to be regarded, first, as successive and, second, as contracts or relationships of indefinite duration ( Adeneler and Others , paragraphs 80 and 81, and order in Vassilakis and Others , paragraphs 103 and 104).
155. While such a reference back to national authorities for the purpose of establishing the specific rules for application of the terms ‘successive’ and ‘of indefinite duration’ within the meaning of the Framework Agreement may be explained by the concern to respect the diversity of the relevant national rules, it is, however, to be remembered that the margin of appreciation thereby left for the Member States is not unlimited, because it cannot in any event go so far as to compromise the objective or the practical effect of the Framework Agreement ( Adeneler and Others , paragraph 82, and order in Vassilakis and Others , paragraph 105).
156. Thus, the Court has already held that a national provision under which only fixed-term contracts that are separated by a period of time shorter than or equal to 20 working days are regarded as successive must be considered to be such as to compromise the object, the aim and the practical effect of the Framework Agreement. So inflexible and restrictive a definition of when a number of subsequent employment contracts are successive would allow insecure employment of a worker for years since, in practice, the worker would as often as not have no choice but to accept breaks in the order of 20 working days in the course of a series of contracts with his employer ( Adeneler and Others , paragraphs 84 and 85, and order in Vassilakis and Others , paragraphs 107 and 108).
157. On the other hand, the Court has also already held that the legislation at issue in the main proceedings, which recognises only fixed-term employment contracts separated by a period of less than three months as being ‘successive’, does not appear, as such, to be so inflexible and inherently so restrictive. Such breaks can generally be regarded as being sufficient to interrupt any existing employment relationship and consequently have the effect that any contract signed subsequently would not be regarded as being successive. It follows from this that clause 5(1) of the Framework Agreement does not, in principle, preclude legislation such as that at issue in the main proceedings. However, it is for the national authorities and courts responsible for implementing the measures transposing Directive 1999/70 and the Framework Agreement, and which are thus called upon to rule on the treatment of successive fixed-term employment contracts, 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 relationships are not abused by employers (see order in Vassilakis and Others , paragraphs 115 to 117).
158. Next, as regards the punishment of misuse, it must be observed that where, as in the present case, Community law does not lay down any specific sanctions should instances of abuse nevertheless be established, it is incumbent on the national authorities to adopt appropriate measures to deal with such a situation. Those measures must be 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 ( Adeneler and Others , paragraph 94; Marrosu and Sardino , paragraph 51; Vassallo , paragraph 36; and order in Vassilakis and Others , paragraph 125).
159. While, in the absence of relevant Community rules, the detailed rules for implementing such measures are a matter for the domestic legal order of the Member States, under the principle of their procedural autonomy, they must, however, not 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 Community law (principle of effectiveness) (see, in particular, Adeneler and Others , paragraph 95; Marrosu and Sardino , paragraph 52; and Vassallo , paragraph 37; also order in Vassilakis and Others , paragraph 126).
160. Therefore, where abuse of successive fixed-term contracts 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 Community law. According to the very wording of the first paragraph of Article 2 of Directive 1999/70, the Member States must ‘take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by [the] directive’ ( Adeneler and Others , paragraph 102; Marrosu and Sardino , paragraph 53; and Vassallo , paragraph 38; also order in Vassilakis and Others , paragraph 127).
161. Accordingly, while a Member State such as the Member State concerned in the main proceedings is entitled, as paragraph 144 of this judgment shows, not to provide, as a penalty for failure to comply with the preventive measures laid down by national legislation transposing clause 5(1) of the Framework Agreement, for fixed-term employment contracts to be treated as contracts of indefinite duration, it must nevertheless satisfy itself that the other penalties prescribed by that legislation are sufficiently effective and a sufficient deterrent to ensure that those preventive measures are fully effective (see, to that effect, Adeneler and Others , paragraph 105; Marrosu and Sardino , paragraph 49; and Vassallo , paragraph 34; also order in Vassilakis and Others , paragraph 123).
163. It should be borne in mind in that regard that it is not for the Court to interpret national law, that being exclusively a matter for the referring court or, as the case may be, for the national courts having jurisdiction, which must determine whether the requirements set out in paragraphs 158 to 160 of this judgment are met by the provisions of the national law applicable (see, in particular, Vassallo , paragraph 39, and order in Vassilakis and Others , paragraph 134).
164. It is therefore for the referring court to determine to what extent the conditions for application and effective implementation of the relevant provisions of domestic law constitute a measure adequate for the punishment of the misuse by the public authorities of successive fixed-term employment contracts or relationships (see, to that effect, Vassallo , paragraph 41; and Marrosu and Sardino , paragraph 56; also order in Vassilakis and Others , paragraph 135).
165. In that regard, as the Advocate General observed at point 92 of her Opinion, it is for the referring court, inter alia, to satisfy itself that workers who have experienced abuse arising from the use of successive fixed-term employment contracts, as suggested by the applicants in the main proceedings, 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 envisaged by clause 5(1) of the Framework Agreement.
166. In addition, the referring court must satisfy itself that the penalties provided for by Presidential Decree No 164/2004 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.
170. In so far as the applicants in the main proceedings submit that, owing to the cumulative conditions imposed by Article 11 of Presidential Decree No 164/2004, certain fixed-term employment contracts concluded or renewed abusively in the public sector before the entry into force of the decree would escape any penalty, it should be observed that, in such a situation, 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 Community law. Consequently, in so far as the domestic law of the Member State concerned did not, during that period, include other effective measures for that purpose, for example, because the penalties laid down in Article 7 of the decree did not apply rationae temporis , the recognition of fixed-term employment contracts as contracts of indefinite duration pursuant to Article 8(3) of Law No 2112/1920 could, as the applicant in the main proceedings in Case C‑379/07 submits, constitute such a measure (see, to that effect, Adeneler and Others , paragraphs 98 to 105, and order in Vassilakis and Others , paragraphs 129 to 137).
172. With regard to the procedure provided for under national law for that purpose, 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 (order in Vassilakis and Others , paragraph 140).
173. The Court has consistently held that, in the absence of Community rules governing 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 Community law ( Impact , paragraph 44 and case-law cited, and order in Vassilakis and Others , paragraph 141).
174. As is apparent from paragraphs 158 and 159 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, which are a matter for the domestic legal order of the Member States under the principle of their national procedural autonomy, must be consistent with the principles of equivalence and effectiveness (order in Vassilakis and Others , paragraph 142).
175. The Court has already held that national legislation such as that at issue in the main proceedings which provides that an independent administrative body such as the ASEP is competent to reclassify where appropriate fixed-term employment contracts as contracts of indefinite duration appears, prima facie , to satisfy those requirements (order in Vassilakis and Others , paragraph 144).
176. Nevertheless, 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, first, to be in a position at any time to guarantee the results imposed by Directive 1999/70 and, second, to provide that the detailed rules for implementing the measures taken in application of the Framework Agreement, which, in accordance with the principle of the Member States’ procedural autonomy, are a matter for that State’s domestic legal order, guarantee the right to effective judicial protection in compliance with the principles of equivalence and effectiveness (see, in particular, order in Vassilakis and Others , paragraph 149 and case-law cited).
181. Whatever the nature of the provisions of Greek law prohibiting the conversion of successive fixed-term employment contracts into contracts of indefinite duration, it must be stated at the outset, in so far as this question concerns the conclusion of every first or single fixed-term employment contract, that, as paragraph 90 of this judgment shows, the Framework Agreement does not require the Member States to adopt measures in order to punish the misuse of such a contract resulting from the fact that it does actually cover fixed and permanent needs of the employer. Such a contract is not covered by clause 5(1) of the Framework Agreement, which relates solely to the prevention of the misuse of successive fixed-term employment contracts or relationships ( Mangold , paragraphs 41 to 43).
182. In so far as the question concerns successive fixed-term employment contracts, it must be pointed out that that question is the same as a question on which the Court has already given a ruling in Adeneler and Others  (paragraphs 91 to 105) and that other relevant information enabling an answer to be given to that question appears in the judgments in Marrosu and Sardino  (paragraphs 44 to 57) as well as Vassallo  (paragraphs 33 to 42) and the order in Vassilakis and Others  (paragraphs 120 to 137).
183. It follows from that case-law that, since clause 5 of the 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 ( Adeneler and Others , paragraph 91), it gives Member States a margin of discretion in the matter ( Marrosu and Sardino , paragraph 47, and order in Vassilakis and Others , paragraph 121).
184. However, as is already clear from paragraph 161 of this judgment, in order for national legislation, which, in the public sector, prohibits absolutely the conversion into a contract of indefinite duration of a succession of fixed-term employment contracts that, in fact, have been intended to cover fixed and permanent needs of the employer, 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, punish the misuse of successive fixed-term contracts (see, to that effect, Adeneler and Others , paragraph 105; Marrosu and Sardino , paragraph 49; and Vassallo , paragraph 34; also order in Vassilakis and Others , paragraph 123).
185. It must be observed, as is apparent in particular from paragraphs 79 to 82 and 93 of this judgment, that clause 5(1) of the Framework Agreement requires the effective and binding adoption by Member States of at least one of the measures listed in that provision and designed to prevent the abusive use of successive fixed-term employment contracts or relationships, where national law does not already include equivalent measures ( Marrosu and Sardino , paragraph 50; and Vassallo , paragraph 35; also order in Vassilakis and Others , paragraph 124).
186. In addition, where, as in the present case, Community law does not lay down any specific sanctions should instances of abuse nevertheless be established, it is incumbent on the national authorities to adopt measures which must be 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, in accordance with the requirements referred to in paragraphs 158 to 160 of this judgment ( Adeneler and Others , paragraph 94; Marrosu and Sardino , paragraph 51; and Vassallo , paragraph 36; also order in Vassilakis and Others , paragraph 125).
188. While such legislation could meet the requirements referred to in paragraphs 158 to 160 of this judgment (see, to that effect, Marrosu and Sardino , paragraph 55; Vassallo , paragraph 40; and order in Vassilakis and Others , paragraph 128), it is none the less for the referring court – as is apparent from paragraphs 162 to 176 of this judgment – to determine to what extent the conditions for application and effective implementation of the relevant provisions of domestic law constitute a measure adequate for the prevention and, where relevant, the punishment of the misuse by the public authorities of successive fixed-term employment contracts or relationships (see Vassallo , paragraph 41; and Marrosu and Sardino , paragraph 56; also order in Vassilakis and Others , paragraph 135).
193. For the purposes of responding to the question referred, it should be borne in mind that the Court has consistently held that, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon by individuals as against the State, particularly in its capacity as an employer (see, in particular, to that effect, Case 152/84 Marshall [1986] ECR 723, paragraphs 46 and 49, and Case C‑187/00 Kutz‑Bauer  [2003] ECR I‑2741, paragraphs 69 and 71).
194. That is the case, according to the case-law, whenever the full application of the directive is not in fact secured, that is to say, not only where the directive has not been implemented or has been implemented incorrectly, but also where the national measures correctly implementing the directive are not being applied in such a way as to achieve the result sought by it (Case C‑62/00 Marks & Spencer  [2002] ECR I‑6325, paragraph 27).
195. As the Court has already held, that case-law can be applied to agreements which, like the Framework Agreement, are the product of a dialogue, based on Article 139(1) EC, between management and labour at Community level and which have been implemented in accordance with Article 139(2) EC by a directive of the Council, of which they are thus an integral component ( Impact , paragraph 58).
– Clause 5(1) of the Framework Agreement
196. The Court has already held that clause 5(1) of the Framework Agreement does not appear, so far as its subject-matter is concerned, to be unconditional and sufficiently precise for individuals to be able to rely upon it before a national court. Under clause 5(1), it is left to the discretion of the Member States to rely, for the purposes of preventing the misuse of fixed-term employment contracts, on one or more of the measures listed in that clause, or even on existing equivalent legal measures, while taking account of the needs of specific sectors and/or categories of workers. In addition, it is not possible to determine sufficiently the minimum protection which should, on any view, be implemented pursuant to clause 5(1) of the Framework Agreement ( Impact , paragraphs 71, 78 and 79).
197. However, the Court has consistently held that when national courts apply domestic law, they are bound to interpret it, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article 249 EC. This obligation to interpret national law in conformity with Community law concerns all provisions of national law, whether adopted before or after the directive in question (see, in particular, Adeneler and Others , paragraph 108, and order in Vassilakis and Others , paragraph 56).
198. The requirement that national law be interpreted in conformity with Community law is inherent in the system of the Treaty, since it permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of Community law when they determine the disputes before them (see, in particular, Adeneler and Others , paragraph 109, and order in Vassilakis and Others , paragraph 57).
199. It is true that the obligation on a national court to refer to the content of a directive 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 Adeneler and Others , paragraph 110; Impact , paragraph 100; and order in Vassilakis and Others , paragraph 58).
200. The principle that national law must be interpreted in conformity with Community 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 domestic law, with a view to ensuring that the directive in question is fully effective and achieving an outcome consistent with the objective pursued by it (see Adeneler and Others , paragraph 111; Impact , paragraph 101; and the order in Vassilakis and Others , paragraph 59).
201. As the Court stated in paragraph 115 of the judgment in Adeneler and Others , where a directive is transposed belatedly, the general obligation owed by national courts to interpret domestic law in conformity with the directive exists only once the period for its transposition has expired (see also the order in Vassilakis and Others , paragraph 63).
202. In addition, if the result prescribed by a directive cannot be achieved by way of interpretation, it should also be borne in mind that, in accordance with the judgment in Joined Cases C‑6/90 and C‑9/90 Francovich and Others  [1991] ECR I‑5357, at paragraph 39, Community law requires the Member States to make good damage caused to individuals through failure to transpose that directive, provided that three conditions are fulfilled. First, the purpose of the directive in question must be to grant rights to individuals. Second, it must be possible to identify the content of those rights on the basis of the provisions of the directive. Finally, there must be a causal link between the breach of the Member State’s obligation and the damage suffered (see Case C‑91/92 Faccini Dori  [1994] ECR I‑3325, paragraph 27, and order in Vassilakis and Others , paragraph 60).
204. As regards the relevance in that regard of the fact that Article 103(8) of the Constitution of the Hellenic Republic was amended after the entry into force of Directive 1999/70 and before the time-limit for transposing it elapsed so as to prohibit absolutely the conversion of fixed-term employment contracts into contracts of indefinite duration in the public sector, it is sufficient to note that a directive produces legal effects for a Member State to which it is addressed – and, therefore, for all the national authorities – following its publication or from the date of its notification, as the case may be (see Adeneler and Others , paragraph 119, and order in Vassilakis and Others , paragraph 67).
206. However, according to the case-law of the Court, it follows from the application of the second paragraph of Article 10 EC in conjunction with the third paragraph of Article 249 EC and the directive concerned that, during the period prescribed for the transposition of a directive, the Member States to which it is addressed must refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by that directive ( Inter-Environnement Wallonie , paragraph 45; Case C‑14/02 ATRAL [2003] ECR I‑4431, paragraph 58; and Mangold , paragraph 67). In this connection it is immaterial whether or not the provision of national law at issue which has been adopted after the directive in question entered into force is concerned with the transposition of the directive ( Adeneler and Others , paragraph 121, and the order in Vassilakis and Others , paragraph 69).
207. It follows that all the authorities of the Member States are subject to the obligation to ensure that provisions of Community law take full effect (see Francovich and Others , paragraph 32; Case C‑453/00 Kühne & Heitz  [2004] ECR I‑837, paragraph 20; and Pfeiffer and Others , paragraph 111); that applies also when those authorities amend their Constitution.
– Clause 8(3) of the Framework Agreement
208. As regards clause 8(3) of the Framework Agreement, it should be noted that, as is apparent from paragraph 126 of this judgment, clause 8(3) does not prohibit all reductions in the protection of fixed-term workers but only those which are justified by the need to ‘put into effect’ that agreement and, moreover, which relate to the ‘general level of protection’ afforded to fixed-term workers.
209. It follows from this, first, that clause 8(3) of the Framework Agreement relates only to the ‘implementation’ of that agreement by the Member States and/or the social partners, on whom it is incumbent to transpose that agreement into the domestic legal order, prohibiting them, as has been established in paragraph 133 of this judgment, from justifying, in that transposition, a reduction in the general level of protection of workers by the need to put the Framework Agreement into effect.
210. Second, by virtue of the fact that the prohibition in clause 8(3) of the Framework Agreement is confined, in its own words, to ‘reducing the general level of protection afforded to workers in the field of [that] agreement’, clause 8(3) implies, as paragraph 140 of this judgment shows, that only a reduction on a scale likely to have an effect overall on national legislation relating to fixed-term employment contracts is liable to be covered by that clause. However, individuals would not be able to infer from such a prohibition any right that would be sufficiently clear, precise and unconditional.
211. It follows that clause 8(3) of the Framework Agreement does not fulfil the conditions required in order to have direct effect.
212. In that respect, it is for the national courts to interpret the provisions of national law, so far as possible, in such a way that they can be applied in a manner which is consistent with the objective pursued by the Framework Agreement (see, by analogy, case-law cited in paragraphs 197 to 200 of this judgment).