Konstantinos Adeneler and Others v Ellinikos Organismos Galaktos (ELOG).
Date: 2006-07-04
7. Clause 3 of the Framework Agreement is worded as follows:
‘1. For the purpose of this agreement the term “fixed-term worker” means 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.
2. For the purpose of this agreement, the term “comparable permanent worker” means a worker with an employment contract or relationship of indefinite duration, in the same establishment, engaged in the same or similar work/occupation, due regard being given to qualifications/skills.
Where there is no comparable permanent worker in the same establishment, the comparison shall be made by reference to the applicable collective agreement, or where there is no applicable collective agreement, in accordance with national law, collective agreements or practice.’
39. Pursuant to Article 234 EC, where a question on the interpretation of the EC Treaty or of subordinate acts of the institutions of the Community is raised before any court or tribunal of a Member State, that court or tribunal may or, as the case may be, must, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon (see, inter alia, Case C-451/99 Cura Anlagen  [2002] ECR I‑3193, paragraph 22, and Case C‑144/04 Mangold  [2005] ECR I-9981, paragraph 33).
40. As is apparent from settled case-law, the procedure provided for by Article 234 EC is an instrument of cooperation between the Court of Justice and national courts by means of which the former provides the latter with interpretation of such Community law as they need to give judgment in cases upon which they are called to adjudicate (see, inter alia, Case C-112/00 Schmidberger  [2003] ECR I-5659, paragraph 30, and the case-law cited).
41. In the context of that cooperation, the national court seised of the dispute, which alone has direct knowledge of the facts giving rise to the dispute and must assume responsibility for the subsequent judicial decision, is, having regard to the particular circumstances of the case, in the best position to assess both the need for a preliminary ruling in order to enable it to give judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see, inter alia, Schmidberger , paragraph 31, and Mangold , paragraphs 34 and 35).
42. Nevertheless, the Court considers that it has the task of examining the circumstances in which cases are referred to it by national courts, in order to assess whether it has jurisdiction. The spirit of cooperation which must prevail in the preliminary ruling procedure requires the national court for its part to have regard to the function entrusted to the Court of Justice, which is to contribute to the administration of justice in the Member States and not to give advisory opinions on general or hypothetical questions (see, inter alia, Mangold , paragraph 36, and the case-law cited).
43. It is in the light of that function that the Court has considered that it has no jurisdiction to give a preliminary ruling on a question raised before a national court where the interpretation of Community law clearly has no connection whatever with the circumstances or purpose of the main proceedings (see, inter alia, Mangold , paragraph 37).
54. With a view to giving a helpful answer to the questions submitted, it should be made clear at the outset that 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.
55. 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.
56. On the contrary, first, 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.
57. Second, 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’.
Question 2
58. This question relates to the interpretation of the concept of ‘objective reasons’ which, in accordance with clause 5(1)(a) of the Framework Agreement, justify the successive renewal of fixed-term employment contracts or relationships.
59. More specifically, the referring court asks whether, as in the case of a national rule such as that set out in Article 5(1)(a) of Presidential Decree No 81/2003, in its initial version, the mere fact that the conclusion of a fixed-term contract is required by a provision of statute or secondary legislation of a Member State may constitute an objective reason of that kind.
60. As this concept of ‘objective reasons’ is not defined by the Framework Agreement, its meaning and scope must be determined on the basis of the objective pursued by the Framework Agreement and of the context of clause 5(1)(a) thereof (see, to this effect, inter alia Case C-17/03 VEMW and Others  [2005] ECR I‑4983, paragraph 41, and the case-law cited, and Case C-323/03 Commission  v Spain  [2006] ECR I‑0000, paragraph 23).
61. The Framework Agreement proceeds on the premiss that employment contracts of indefinite duration are the general form of employment relationship, while recognising that fixed-term employment contracts are a feature of employment in certain sectors or in respect of certain occupations and activities (see paragraphs 6 and 8 of the general considerations in the Framework Agreement).
62. Consequently, the benefit of stable employment is viewed as a major element in the protection of workers (see Mangold , paragraph 64), 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 the second paragraph of the preamble to the Framework Agreement and paragraph 8 of the general considerations).
63. From this angle, the Framework Agreement seeks to place limits on successive recourse to the latter category of employment relationship, a category regarded as a potential source of abuse to the disadvantage of workers, by laying down as a minimum a number of protective provisions designed to prevent the status of employees from being insecure.
64. Thus, clause 5(1) of the Framework Agreement is intended specifically to ‘prevent abuse arising from the use of successive fixed-term employment contracts or relationships’.
65. To this end, clause 5 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.
66. Among those measures, clause 5(1)(a) envisages ‘objective reasons justifying the renewal of such contracts or relationships’.
67. The signatory parties to the Framework Agreement considered that the use of fixed-term employment contracts founded on objective reasons is a way to prevent abuse (see paragraph 7 of the general considerations in the Framework Agreement).
68. It is true that the Framework Agreement refers back to the Member States and social partners for 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 (see paragraph 10 of the general considerations in the Framework Agreement). While the Member States thus have a margin of appreciation in the matter, the fact remains that they are 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 the 17th recital in its preamble.
69. In those circumstances, the concept of ‘objective reasons’, within the meaning of clause 5(1)(a) of the Framework Agreement, must 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.
70. 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.
71. On the other hand, a national provision which merely authorises recourse to successive fixed-term employment contracts in a general and abstract manner by a rule of statute or secondary legislation does not accord with the requirements as stated in the preceding two paragraphs.
72. 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.
73. 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.
74. More specifically, recourse to fixed-term employment contracts solely on the basis of a general provision of statute or secondary legislation, unlinked 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, is appropriate for achieving the objective pursued and is necessary for that purpose.
75. Consequently, the answer to the second question must be that clause 5(1)(a) of the Framework Agreement is to be interpreted as precluding the use of successive fixed-term employment contracts where the justification advanced for their use is solely that it is provided for by a general provision of statute or secondary legislation of a Member State. On the contrary, the concept of ‘objective reasons’ within the meaning of that clause requires recourse to this particular type of employment relationship, as provided for by national legislation, to be justified by the presence of specific factors relating in particular to the activity in question and the conditions under which it is carried out.
Question 3
79. In order to rule on this question, it should be noted that the Framework Agreement, as stated in clauses 1(b) and 5(1) thereof, has the purpose of establishing a framework intended to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.
80. To this end, 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.
81. As to the remainder, clause 5(2) in principle leaves it 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.
82. 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 preserve 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 (see paragraph 68 of this judgment). In particular, this discretion must not be exercised by national authorities in such a way as to lead to a situation liable to give rise to abuse and thus to thwart that objective.
84. It is clear 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.
85. As observed by the referring court and the Commission, and by the Advocate General in points 67 to 69 of her Opinion, 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.
88. It would thus be sufficient for the employer to allow a period of just 21 working days to elapse at the end of each fixed-term employment contract, before concluding another contract of the same nature, in order automatically to thwart the conversion of the successive contracts into a more stable employment relationship, irrespective of both the number of years for which the worker concerned has been taken on for the same job and the fact that those contracts cover needs which are not of limited duration but, on the contrary, ‘fixed and permanent’. In those circumstances, the protection of workers against the misuse of fixed-term employment contracts or relationships, which constitutes the aim of clause 5 of the Framework Agreement, is called into question.
91. First, it should be noted that 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.
92. However, it requires the Member States to adopt at least one of the measures that are listed in clause 5(1)(a) to (c) of the Framework Agreement, which are intended to prevent in an effective manner the misuse of successive fixed-term employment contracts or relationships.
93. Furthermore, the Member States are required, within the bounds of the freedom left to them by the third paragraph of Article 249 EC, to choose the most appropriate forms and methods to ensure the effectiveness of directives, in the light of their objective (see Case 48/75 Royer  [1976] ECR 497, paragraph 75, and Joined Cases C-58/95, C-75/95, C-112/95, C-119/95, C-123/95, C-135/95, C‑140/95, C-141/95, C-154/95 and C-157/95 Gallotti and Others  [1996] ECR I‑4345, paragraph 14).
94. Thus, 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 provisions adopted pursuant to the Framework Agreement are fully effective.
95. 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 the case-law cited).
96. Second, the following comments should be made regarding, more specifically, the context in which the fourth question has been asked.
97. It is apparent from the documents in the case which have been forwarded by the referring court that, while the Greek legislature chose to lay down, as a measure adopted to implement the Framework Agreement, that under certain conditions fixed-term employment contracts are to be converted into contracts of indefinite duration (see Article 5(3) of Presidential Decree No 81/2003), by virtue of Article 1 of Presidential Decree No 180/2004 the scope of that legislation was limited to fixed-term employment contracts of workers employed in the private sector.
98. In the case of the public sector, on the other hand, Article 21(2) of Law No 2190/1994 prohibits, absolutely and on pain of nullity, any reclassification as contracts of indefinite duration of fixed-term employment contracts covered by Article 21(1).
99. Next, it is apparent from the order for reference that, in practice, Article 21 of Law No 2190/1994 may well be used for improper purposes in that, instead of merely serving as a basis for the conclusion of fixed-term contracts intended to meet only temporary needs, it seems that it is used to conclude fixed-term contracts designed in actual fact to cover ‘fixed and permanent needs’. The referring court has therefore already found in the grounds of its decision that the recourse, in the main proceedings, to Article 21 to serve as a basis for the conclusion of fixed-term employment contracts which are intended in reality to meet ‘fixed and permanent needs’ constitutes an abuse within the meaning of the Framework Agreement. It thus merely asks whether, in a situation of that kind, the general prohibition laid down by that provision on converting such fixed-term contracts into contracts of indefinite duration compromises the objective and the practical effect of the Framework Agreement.
100. Finally, it has not been asserted before the Court that, in the public sector, Greek law included, at any rate until Presidential Decree No 164/2004 entered into force, any measure intended to prevent and to punish in an appropriate manner the misuse of successive fixed-term employment contracts.
101. As has already been stated in paragraphs 91 to 95 of this judgment, 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, but clause 5(1) of the Framework Agreement  does require effective and binding adoption of at least one of the measures listed in that provision that are designed to prevent the misuse of successive fixed-term contracts, if national law does not already include equivalent measures.
102. Furthermore, where such misuse has nevertheless 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’.
103. It is not for the Court to rule on the interpretation of domestic law, since that task falls exclusively to the referring court which must, in the present instance, determine whether the requirements recalled in the previous paragraph are met by the provisions of the relevant national legislation.
104. If that court were to find this not to be the case, it would be appropriate to conclude that the Framework Agreement precludes the application of that national legislation.
105. Accordingly, the answer to the fourth question must be that, in circumstances such as those of the main proceedings, the Framework Agreement is to be interpreted as meaning that, in so far as domestic law of the Member State concerned does not include, in the sector under consideration, any other effective measure to prevent and, where relevant, punish the misuse of successive fixed-term contracts, the Framework Agreement precludes the application of national legislation which, in the public sector alone, prohibits absolutely the conversion into an employment contract of indefinite duration of a succession of fixed-term contracts that, in fact, have been intended to cover ‘fixed and permanent needs’ of the employer and must therefore be regarded as constituting an abuse.
Question 1
108. 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 (see, inter alia, Joined Cases C-397/01 to C‑403/01 Pfeiffer and Others  [2004] ECR I-8835, paragraph 113, and the case-law cited). 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, inter alia, Case C-106/89 Marleasing  [1990] ECR I‑4135, paragraph 8, and Pfeiffer and Others , paragraph 115).
109. The requirement for national law to 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, inter alia, Pfeiffer and Others , paragraph 114).
110. 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, by analogy, Case C-105/03 Pupino  [2005] ECR I‑5285, paragraphs 44 and 47).
111. Nevertheless, the principle that national law must be interpreted in conformity with Community law 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 Pfeiffer and Others , paragraphs 115, 116, 118 and 119).
112. 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, to this effect, Case C-91/92 Faccini Dori  [1994] ECR I‑3325, paragraph 27).
114. Also, before the period for transposition of a directive has expired, Member States cannot be reproached for not having yet adopted measures implementing it in national law (see Case C-129/96 Inter-Environnement Wallonie  [1997] ECR I‑7411, paragraph 43).
115. Accordingly, 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.
117. In addition, in light of the date envisaged in Question 1(a) and with a view to giving a complete ruling on the present question, it should be pointed out that it is already clear from the Court’s case-law that the obligation on Member States, under the second paragraph of Article 10 EC, the third paragraph of Article 249 EC and the directive in question itself, to take all the measures necessary to achieve the result prescribed by the directive is binding on all national authorities, including, for matters within their jurisdiction, the courts (see, inter alia, Inter-Environnement Wallonie , paragraph 40, and Pfeiffer and Other s, paragraph 110, and the case-law cited).
119. It follows 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.
121. In accordance with the Court’s settled case-law, it follows from the second paragraph of Article 10 EC in conjunction with the third paragraph of Article 249 EC and the directive in question itself that, during the period prescribed for 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 it ( 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 ( ATRAL , paragraph 59 and Mangold , paragraph 68).
122. Given 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), the obligation to refrain from taking measures, as set out in the previous paragraph, applies just as much to national courts.
123. It follows that, from the date upon which a directive has entered into force, the courts of the Member States must refrain as far as possible from interpreting domestic law in a manner which might seriously compromise, after the period for transposition has expired, attainment of the objective pursued by that directive.
124. In light of the foregoing reasoning, the answer to the first question must be that, where a directive is transposed belatedly into a Member State’s domestic law and the relevant provisions of the directive do not have direct effect, the national courts are bound to interpret domestic law so far as possible, once the period for transposition has expired, in the light of the wording and the purpose of the directive concerned with a view to achieving the results sought by the directive, favouring the interpretation of the national rules which is the most consistent with that purpose in order thereby to achieve an outcome compatible with the provisions of the directive.
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