Oreste Della Rocca v Poste Italiane SpA.
Date: 2013-04-11
29. 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 (Joined Cases C‑188/10 and C‑189/10 Melki and Abdeli  [2010] ECR I‑5667, paragraph 27 and the case-law cited).
34. It should be borne in mind that, as the Court has held previously, it is apparent from the very wording of Clause 2(1) of the Framework Agreement that 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’. Moreover, 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 (Case C‑212/04 Adeneler and Others  [2006] ECR I‑6057, paragraph 56).
35. The scope of the Framework Agreement is not unlimited, however. It is apparent from the very wording of Clause 2(1) of the Framework Agreement that the definition of the contracts and employment relationships to which that framework agreement applies do not come within the scope of that agreement or EU law, but rather under national legislation and/or practices. 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. Clause 2(2) of the Framework Agreement allows Member States and/or management and labour (the social partners) to exclude from the scope of that framework agreement ‘initial vocational training relationships and apprenticeship 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 Case C‑157/11 Sibilio [2012] ECR I-0000, paragraphs 42, 52 and 53).
36. Similarly, it is explicitly stated in the fourth paragraph of the preamble to the Framework Agreement that it does not apply to fixed-term workers placed by a temporary work agency at the disposition of a user enterprise, it being the intention of the parties to conclude a similar agreement relating to temporary agency work. Regulation of temporary agency work is precisely the purpose behind Directive 2008/104 which, as evidenced by recitals 5 and 7 in the preamble thereto, was adopted by the EU legislature following the failure of negotiations by the social partners to conclude such an agreement.
38. It is true that, according to the Court’s case-law, the preamble to a European Union act has no binding legal force and cannot be relied on either as a ground for derogating from the actual provisions of the act in question or for interpreting them in a manner clearly contrary to their wording (Case C‑308/97 Manfredi  [1998] ECR I‑7685, paragraph 30; Case C‑136/04 Deutsche Milch‑Kontor [2005] ECR I‑10095, paragraph 32; Case C‑134/08 Tyson Parketthandel [2009] ECR I‑2875, paragraph 16; and Case C‑7/11 Caronna [2012] ECR I-0000, paragraph 40).
45. Accordingly, the answer to the first question is that Directive 1999/70 and the Framework Agreement must be interpreted as not applying either to the fixed-term employment relationship between a temporary worker and a temporary employment business or to the employment relationship between such a worker and a user undertaking.
The second and third questions