Cristiano Marrosu and Gianluca Sardino v Azienda Ospedaliera Ospedale San Martino di Genova e Cliniche Universitarie Convenzionate.
Date: 2006-09-07
29. With regard, firstly, to the plea of inadmissibility raised by the hospital, it is sufficient to state that it is apparent from the order for reference that the national court regards it as established fact that the hospital constitutes a public sector institution attached to the public authorities.  It has consistently been held that a directive may be relied on not only against State authorities, but also against organisations or bodies which are subject to the authority or control of the State or have special powers beyond those which result from the normal rules applicable to relations between individuals, such as local or regional authorities or other bodies which, irrespective of their legal form, have been given responsibility, by the public authorities and under their supervision, for providing a public service (Case 103/88 Fratelli Costanzo  [1989] ECR 1839, paragraph 31; Case C-188/89 Foster and Others  [1990] ECR I-3313, paragraph 19; and Case C‑157/02 Rieser Internationale Transporte  [2004] ECR I‑1477, paragraph 24).
32. However, it must be borne in mind that, in accordance with settled case-law, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC 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.  Consequently, where the questions submitted for a preliminary ruling concern the interpretation of Community law, the Court is, in principle, bound to give a ruling (see, inter alia, Case C-415/93 Bosman  [1995] ECR I-4921, paragraph 59, and Case C‑316/04 Stichting Zuid-Hollandse Milieufederatie  [2005] ECR I‑9759, paragraph 29).
33. Only in exceptional circumstances may the Court examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction (see, to that effect, Case 244/80 Foglia  [1981] ECR 3045, paragraph 21).  The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the 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,  Bosman , paragraph 61, and Stichting Zuid-Hollandse Milieufederatie , paragraph 30).
39. With a view to giving an answer to the question submitted, it should be made clear at the outset that, contrary to the submissions of the Italian Government at the hearing, Directive 1999/70 and the framework agreement can apply also to fixed-term employment contracts and relationships concluded with the public authorities and other public-sector bodies (Case C‑212/04 Adeneler and Others  [2006] ECR I‑0000, paragraph 54).
40. The provisions of those two instruments contain nothing to permit the inference that their scope is limited to fixed-term contracts concluded by workers with employers in the private sector alone ( Adeneler and Others , paragraph 55).
41. On the contrary, firstly, as is apparent from the very wording of clause 2(1) of the framework agreement, the scope of the framework agreement 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 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  ( Adeneler and Others , paragraph 56).
42. Secondly, clause 2(2) of the framework agreement, far from providing for the exclusion of fixed-term employment contracts or relationships concluded with a public-sector employer, merely gives the Member States and/or the social partners the option of making the framework agreement inapplicable to ‘initial vocational training relationships and apprentice schemes’ and employment contracts and relationships ‘which have been concluded within the framework of a specific public or publicly-supported training, integration and vocational retraining programme’ ( Adeneler and Others , paragraph 57).
43. It should also be recalled, as is apparent from clause 1(b) of the framework agreement, that its purpose is to ‘establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships’.
44. To this end, clause 5(1) 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 successive fixed-term employment contracts do not already exist in the Member State concerned ( Adeneler and Others , paragraph 65).
45. However, it is important to note that, as is clear from its wording, that provision makes it possible for Member States to take account of the needs of specific sectors and/or categories of workers involved, provided it is justified on objective grounds.
46. It is true that clause 5(2) of the framework agreement does not give Member States the same ability with regard to laying down under what conditions successive fixed-term employment contracts or relationships are to be regarded as being of indefinite duration.
47. However, since 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.
48. It follows that clause 5 of the framework agreement does not preclude, as such, a Member State from treating misuse of successive fixed-term employment contracts or relationships differently according to whether those contracts or relationships were entered into with a private-sector or public-sector employer.
49. However, as is apparent from paragraph 105 of the judgment in Adeneler and Others , in order for national legislation, such as that at issue here – which, in the public sector only, prohibits a succession of fixed-term contracts from being converted into an indefinite employment contract – 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 abuse of successive fixed-term contracts.
50. With regard to the latter condition, it should be noted that clause 5(1) of the framework agreement places on Member States the mandatory requirement of effective adoption of at least one of the measures listed in that provision intended to prevent the abusive use of successive fixed-term employment contracts or relationships, where domestic law does not already include equivalent measures.
51. Furthermore, 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 which must be 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 ( Adeneler and Others , paragraph 94).
52. While the detailed rules for implementing such provisions fall within the internal legal order of the Member States by virtue of the principle of procedural autonomy of the Member States, 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, inter alia, Case C‑312/93 Peterbroeck  [1995] ECR I‑4599, paragraph 12, and Adeneler and Others , paragraph 95).
53. 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).
54. It is not for the Court to rule on the interpretation of national law, that being exclusively for the national court which must, in the present case, determine whether the requirements set out in the preceding three paragraphs are met by the provisions of the relevant national legislation.  However, the Court, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give the national court guidance in its interpretation (see Case C‑255/02 Halifax and Others  [2006] ECR I‑0000, paragraphs 76 and 77).
55. In that regard, it should be noted that national legislation such as that at issue in the main proceedings which lays down mandatory rules governing the duration and renewal of fixed-term contracts and the right to compensation for damage suffered by a worker as a result of the abusive use by public authorities of successive fixed-term employment contracts or relationships appears, at first sight, to satisfy the requirements set out in paragraphs 51 to 53 of the present judgment.
56. However, it is for the national court to determine to what extent the conditions for application and effective implementation of the first sentence of Article 36(2) of Legislative Decree No 165/2001 constitute a measure adequate for the prevention and, where relevant, the punishment of the abusive use by the public authorities of successive fixed-term employment contracts or relationships.
57. In the light of the foregoing considerations, the answer to the question referred must be that the framework agreement must be interpreted as not in principle precluding national legislation which, where there is abuse arising from the use of successive fixed-term employment contracts or relationships by a public-sector employer, precludes their being converted into contracts of indeterminate duration, even though such conversion is provided for in respect of employment contracts and relationships with a private-sector employer, where that legislation includes another effective measure to prevent and, where relevant, punish the abuse of successive fixed-term contracts by a public-sector employer.
Costs