Martial Huet v Université de Bretagne occidentale.
Date: 2012-03-08
23. In that regard, it should be borne in mind that the fact that the parties to the main action did not raise a point of European Union law before the referring court does not preclude the latter from bringing the matter before the Court of Justice. In providing that a reference for a preliminary ruling may be submitted to the Court where ‘a question is raised before any court or tribunal of a member state’, the second and third paragraphs of Article 267 TFEU are not intended to restrict this procedure exclusively to cases where one or other of the parties to the main action has taken the initiative of raising a point concerning the interpretation or the validity of European Union law, but also extend to cases where a question of this kind is raised by the court or tribunal itself, which considers that a decision thereon by the Court of Justice is ‘necessary to enable it to give judgment’ (Case 126/80 Salonia  [1981] ECR 1563, paragraph 7).
24. Article 267 TFEU gives national courts the power and, in certain cases, imposes on them the obligation to refer a case for a preliminary ruling, as soon as they perceive either of their own motion or at the request of the parties that the substance of the dispute raises a point referred to in the first paragraph of Article 267. They have the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving interpretation, or consideration of the validity, of provisions of European Union law, necessitating a decisi on on their part (Case 166/73 Rheinmühlen‑Düsseldorf  [1974] ECR 33, paragraph 3, and Case C‑261/95 Palmisani [1997] ECR I‑4025, paragraph 20).
28. According to settled case-law, it is for the Court alone, where questions are formulated imprecisely, to extract from all the information provided by the national court or tribunal and from the documents in the main proceedings the points of European Union law which require interpretation, having regard to the subject-matter of those proceedings (Joined Cases C‑436/08 and C‑437/08 Haribo Lakritzen Hans Riegel and Österreichische Salinen  [2011] ECR I‑0000, paragraph 32 and the case-law cited).
31. In the same way, taking into account the subject-matter of the dispute in the main proceedings, the non-reduction clause laid down in Clause 8(3) of the Framework Agreement is also not relevant in the present case. As is clear from the case-law of the Court, in order for an alleged reduction to be caught by the prohibition laid down by that clause, 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 (Joined Cases C‑378/07 to C‑380/07 Angelidaki and Others  [2009] ECR I‑3071, paragraph 126, and, to that effect, Case C‑144/04 Mangold  [2005] ECR I‑9981, paragraph 52).
34. As is clear from the case-law of the Court, 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, which is 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 Case C‑212/04 Adeneler and Others  [2006] ECR I‑6057, paragraph 63, Angelidaki and Others , paragraph 73, and Case C‑586/10 Kücük  [2012] ECR I‑0000, paragraph 25).
35. It follows from the second paragraph of the preamble to the Framework Agreement, from paragraphs 6 and 8 of the general considerations thereof and from the case-law of the Court that 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 ( Mangold , paragraph 64, and Adeneler and Others , paragraph 62).
36. Accordingly, Clause 5(1) of the Framework Agreement requires, with a view to preventing abuse of successive fixed-term employment contracts or relationships, the effective and binding adoption by Member States of at least one of the measures listed in that provision, where their domestic law does not already 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 Angelidaki and Others , paragraphs 74 and 151, and Case C‑3/10 Affatato  [2010] ECR I‑0000, paragraphs 43 and 44 and the case-law cited).
37. However, as is clear from paragraph 33 of this judgment and contrary to the Commission’s submission, the conversion of a fixed-term contract into a contract of indefinite duration cannot be regarded as outside the scope of the Framework Agreement (see, to that effect, Case C‑177/10 Rosado Santana  [2011] ECR I‑0000, paragraphs 41 to 44). Indeed, in the present case, the national law which led the UBO to convert the last fixed-term contract of the applicant in the main proceedings into a contract of indefinite duration effectively falls within the preventive measures listed in Clause 5(1)(b) of the Framework Agreement.
38. That said, the Court has also observed on a number of occasions that 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 (see, inter alia, Adeneler and Others , paragraph 91).
39. 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 (see, inter alia, Adeneler and Others , paragraph 81).
40. It follows from the foregoing that the Framework Agreement does not specify the conditions under which contracts of indefinite duration may be used.
41. It should also be borne in mind that, as is clear from Recital 14 in the preamble to Directive 1999/70, from the third paragraph of the preamble to the Framework Agreement, from paragraphs 7 to 10 of the general considerations and from Clause 1 of the Framework Agreement, that agreement is not intended to harmonise all national rules relating to fixed-term employment contracts but simply aims, by determining general principles and minimum requirements, to establish a general framework for ensuring equal treatment for fixed-term workers by protecting them against discrimination and to prevent abuse arising from the use of successive fixed-term work agreements or contracts (see, to that effect, Case C‑307/05 Del Cerro Alonso  [2007] ECR I‑7109, paragraphs 26 and 36, Case C‑268/06 Impact  [2008] ECR I‑2483, paragraph 111, and order in Case C‑20/10 Vino  [2010], paragraph 54).
42. 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 abuse of successive fixed-term employment contracts or relationships, where domestic law does not already include equivalent measures, Clause 5(1) assigns to the Member States the general objective of preventing such abuse, while leaving to them the choice as to how to achieve it ( Impact , paragraph 70).
43. The margin of appreciation left for the Member States by the Framework Agreement is indeed 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 Angelidaki and Others , paragraph 155).