Maurizio Fiamingo and Others v Rete Ferroviaria Italiana SpA.
Date: 2014-07-03
28. In this respect it should be recalled that, as the Court has already ruled on several occasions, 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’ (see, in particular, Adeneler and Others , C-212/04, EU:C:2006:443, paragraph 56; Della Rocca , C-290/12, EU:C:2013:235, paragraph 34; and Márquez Samohano , C-190/13, EU:C:2014:146, paragraph 38).
29. 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 (see Adeneler and Others , EU:C:2006:443, paragraph 56; Della Rocca , EU:C:2013:235, paragraph 34; and Márquez Samohano  EU:C:2014:146, paragraph 38) and regardless of the classification of their contract under domestic law (see Angelidaki and Others , C‑378/07 to C‑380/07, EU:C:2009:250, paragraph 166).
30. The Framework Agreement thus applies to all workers providing remunerated services in the context of a fixed-term employment relationship linking them with their employer (see Del Cerro Alonso , C-307/05, EU:C:2007:509, paragraph 28; Gavieiro Gavieiro and Iglesias Torres , C‑444/09 and C‑456/09, EU:C:2010:819, paragraph 42; and the order in Montoya Medina , C‑273/10, EU:C:2011:167, paragraph 26).
31. The scope of the Framework Agreement is not unlimited, however. Thus, it is apparent from the wording of Clause 2(1) of the Framework Agreement that the definition of the contracts and employment relationships to which it applies are not determined by that agreement or by EU law, but by national law and/or practice, so long as those concepts are not defined in a manner that results in the arbitrary exclusion of a category of persons from the benefit of the protection provided by the Framework Agreement (see Sibilio , C‑157/11, EU:C:2012:148, paragraphs 42 and 51).
32. Moreover, Clause 2(2) of the Framework Agreement confers a margin of discretion on Member States as to the application of the Framework Agreement to certain categories of contracts or employment relationships. That provision 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’ (see Adeneler and Others , EU:C:2006:443, paragraph 57; Sibilio , EU:C:2012:148, paragraphs 52 and 53; and Della Rocca , EU:C:2013:235, paragraph 35).
33. Additionally, the Court has held that it is explicitly stated in the fourth paragraph of the preamble to the Framework Agreement that the agreement does not apply to temporary workers (see Della Rocca , EU:C:2013:235, paragraphs 36 and 45).
38. It follows that workers in the circumstances of the appellants in the main proceedings, who are seafarers employed under fixed-term employment contracts on ferries making crossings between two ports within the same Member State, fall within the scope of the Framework Agreement, which does not exclude any particular sector from its scope.
39. This conclusion is borne out by the contents of Clause 5(1) of the Framework Agreement, which, in conformity with the third paragraph of the preamble to the Framework Agreement as well as paragraphs 8 and 10 of its general considerations, makes it possible for Member States, when implementing the agreement, to take account of the needs of specific sectors and/or categories of workers involved, provided that that is justified on objective grounds (see, to this effect, Marrosu and Sardino , C-53/04, EU:C:2006:517, paragraph 45, and Kücük , C‑586/10, EU:C:2012:39, paragraph 49).
44. Turning to the substance, it should be recalled that the Framework 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, in this regard, Del Cerro Alonso , EU:C:2007:509, paragraphs 26 and 36; Impact , C‑268/06, EU:C:2008:223, paragraph 111; Huet , C‑251/11, EU:C:2012:133, paragraph 41; and the order in Vino , C‑20/10, EU:C:2010:677, paragraph 54).
51. It should be borne in mind that, according to settled case-law, questions on the interpretation of EU law referred by a national court, in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only 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, Della Rocca , EU:C:2013:235, paragraph 29, and Márquez Samohano , EU:C:2014:146, paragraph 35).
54. As regards Clause 5 of the Framework Agreement, it should be borne in mind that the purpose of paragraph 1 of that clause 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, in particular, Adeneler and Others , EU:C:2006:443, paragraph 63; Angelidaki and Others , EU:C:2009:250, paragraph 73; Deutsche Lufthansa , C‑109/09, EU:C:2011:129, paragraph 31; Kücük , EU:C:2012:39, paragraph 25; and Márquez Samohano , EU:C:2014:146, paragraph 41).
55. As is apparent from the second paragraph of the preamble to the Framework Agreement and from paragraphs 6 and 8 of the general considerations thereto, 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 (see Adeneler and Others , EU:C:2006:443, paragraph 62, and Huet , EU:C:2012:133, paragraph 35).
56. 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 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 Angelidaki and Others , EU:C:2009:250, paragraphs 74 and 151; Kücük , EU:C:2012:39, paragraph 26; Márquez Samohano , EU:C:2014:146, paragraph 42; and the order in Papalia , C‑50/13, EU:C:2013:873, paragraphs 18 and 19).
57. It must be pointed out, however, that the Framework Agreement does not require the Member States to adopt a measure requiring every first or single use of a fixed-term employment contract to be justified by an objective reason. 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 Angelidaki and Others , EU:C:2009:250, paragraph 90, and the order in Vino , EU:C:2010:677, paragraphs 58 and 59).
58. As regards successive fixed-term employment contracts or relationships, it is clear from paragraph 56 of this judgment that the signatory parties to the Framework Agreement considered, as paragraph 7 of the general considerations thereto indicates, that the use of fixed-term employment contracts founded on objective reasons is a way to prevent abuse (see Adeneler and Others , EU:C:2006:443, paragraph 67; Angelidaki and Others , EU:C:2009:250, paragraphs 91 and 92; and the order in Vassilakis and Others , C‑364/07, EU:C:2008:346, paragraph 86).
59. Nonetheless, the Member States enjoy a certain discretion in the implementation of Clause 5(1) of the Framework Agreement since they have the choice of relying 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 (see Impact , EU:C:2008:223, paragraph 71; Angelidaki and Others , EU:C:2009:250, paragraphs 81 and 93; and Deutsche Lufthansa , EU:C:2011:129, paragraph 35).
60. In that way, Clause 5(1) of the Framework Directive 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 (see Huet , EU:C:2012:133, paragraphs 42 and 43 and the case-law cited).
61. 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 Angelidaki and Others , EU:C:2009:250, paragraph 94, and Deutsche Lufthansa , EU:C:2011:129, paragraph 44).
62. Furthermore, where, as in the present case, 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 measures taken pursuant to the Framework Agreement are fully effective (see, in particular, Angelidaki and Others , EU:C:2009:250, paragraph 158, and the orders in Affatato , C-3/10, EU:C:2010:574, paragraph 45, and Papalia , EU:C:2013:873, paragraph 20).
63. While, in the absence of relevant EU 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 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, in particular, Angelidaki and Others , EU:C:2009:250, paragraph 159, and the orders in Affatato , EU:C:2010:574, paragraph 46, and Papalia , EU:C:2013:873, paragraph 21).
64. Therefore, where abuse of successive fixed-term 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 (see Angelidaki and Others , EU:C:2009:250, paragraph 160; see also the orders in Affatato , EU:C:2010:574, paragraph 47, and Papalia , EU:C:2013:873, paragraph 22).
65. In this respect, it should be recalled that, as the Court has observed on a number of 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, in particular, Huet , EU:C:2012:133, paragraphs 38 to 40 and the case-law cited).
66. In the present case, as regards the national law 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 56 to 65 of this judgment are met by the provisions of the applicable national law (see, in particular, Vassallo , C‑180/04, EU:C:2006:518, paragraph 39; Angelidaki and Others , EU:C:2009:250, paragraph 163; and the order in Papalia , EU:C:2013:873, paragraph 30).
67. 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, to this effect, Vassallo , EU:C:2006:518, paragraph 41, and Angelidaki and Others , EU:C:2009:250, paragraph 164).
68. However, the Court, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give the national court guidance in its assessment (see, in particular, Vassallo , EU:C:2006:518, paragraph 39, and the order in Papalia , EU:C:2013:873, paragraph 31).
69. In this regard, without it being necessary to assess whether national legislation, such as the provision made in Article 326 of the Navigation Code, which was adopted before the entry into force of Directive 1999/70 and the Framework Agreement, includes an ‘objective reason’ within the meaning of Clause 5(1)(a) of the Framework Agreement, it should be stated that such legislation, which lays down a mandatory rule that, when a worker has been employed continuously by the same employer under several fixed-term employment contracts for a period longer than one year, those contracts are converted into an employment contract of indefinite duration, is likely to satisfy the requirements recalled at paragraphs 56 to 65 of this judgment.
70. Such legislation is likely to comprise both an existing legal measure equivalent to the measure preventing the misuse of successive fixed-term employment contracts set out in Clause 5(1)(b) of the Framework Agreement, which relates to the maximum total duration of such contracts, and a measure that punishes that misuse (see, by way of analogy, Angelidaki and Others , EU:C:2009:250, paragraph 170, and the order in Koukou , C-519/08, EU:C:2009:269, EU:C:2009:269, paragraph 79).