European Commission v Grand Duchy of Luxembourg.
Date: 2015-02-26
33. Lastly, the Grand Duchy of Luxembourg acknowledges that, under Luxembourg law, there is no maximum duration, for the purposes of Clause 5(1)(b) of the Framework Agreement, in respect of successive fixed-term employment contracts concluded with ‘occasional workers in the entertainment arts’ within the meaning of Article 4 of the amended Law of 30 July 1999. Nor is there any limit to the number of times such contracts may be renewed, for the purposes of Clause 5(1)(c) of the Framework Agreement. On the other hand, according to the Grand Duchy of Luxembourg, which refers to the judgment in Márquez Samohano  (C‑190/13, EU:C:2014:146, paragraph 45), the situation of those workers is characterised by the existence of ‘objective reasons’ within the meaning of Clause 5(1)(a) of the Framework Agreement and the case-law of the Court. In particular, those workers participate in individual projects which are limited in time, and enjoy a measure of flexibility and social benefits owing to the fact that it is possible for an employer to renew fixed-term contracts with the same workers. According to the Grand Duchy of Luxembourg, the Commission acknowledges, moreover, that working on the basis of individual projects is an objective reason capable of justifying the use of successive fixed-term contracts. In that regard, the Grand Duchy of Luxembourg recalls that, in its judgment in Kücük  (C‑586/10, EU:C:2012:39, paragraph 56), the Court held that, where an objective reason is to be found in the specific nature of the tasks to be carried out, the mere fact that an employer may have to hire workers under recurring fixed-term contracts does not mean that there is no objective reason under Clause 5(1)(a) of the Framework Agreement or that there is abuse within the meaning of that clause.
Findings of the Court
35. It should be borne in mind that 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, 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 judgment in Mascolo and Others , C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 72 and the case-law cited).
36. As can be seen from the second paragraph of the preamble to the Framework Agreement and from paragraphs 6 and 8 of its general considerations, 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 (judgment in Mascolo and Others , paragraph 73 and the case-law cited).
37. Accordingly, Clause 5(1) of the Framework Agreement requires Member States, in order to prevent the misuse 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 thus 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 (judgment in Mascolo and Others , paragraph 74 and the case-law cited).
38. Member States enjoy a certain discretion in that regard since they have the choice of relying on one or more of the measures listed in Clause 5(1)(a) to (c) of the Framework Agreement, or on existing equivalent legal measures, while taking account of the needs of specific sectors and/or categories of workers (judgment in Mascolo and Others , paragraph 75 and the case-law cited).
39. In that way, Clause 5(1) of the Framework Agreement assigns to the Member States the general objective of preventing such abuse, while leaving to them the choice as to how to achieve this, provided that they do not compromise the objective or the practical effect of the Framework Agreement (judgment in Mascolo and Others , paragraph 76 and the case-law cited).
40. Moreover, Clause 5(1) of the Framework Agreement, the third paragraph of its preamble and paragraphs 8 and 10 of its general considerations give Member States the discretion, when implementing the agreement, to take account of the particular needs of the specific sectors and/or categories of workers involved, provided that that is justified on objective grounds (see, to that effect, judgment in Mascolo and Others , paragraph 70 and the case-law cited).
43. As is stated in paragraph 7 of the general considerations prefacing the Framework Agreement and as is clear from paragraph 37 above, 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 (judgment in Mascolo and Others , paragraph 86 and the case-law cited).
44. The concept of ‘objective reasons’ must, as the Court has already held, 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. 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 (judgment in Mascolo and Others , paragraph 87 and the case-law cited).
45. 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 stated in the previous paragraph. Such a provision, which is of a purely formal nature, 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 capable of achieving the objective pursued and is necessary for that purpose. Such a provision therefore 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 (judgment in Mascolo and Others , paragraph 88 and the case-law cited).
49. That conclusion cannot be called into question by the argument, set out in paragraph 31 above, relating to the provisions of the Grand Ducal Regulation of 11 July 1989. By that argument, the Grand Duchy of Luxembourg simply contends that that regulation allows fixed-term employment contracts to be concluded in the performing arts sector in order to fill posts in respect of which it is normal not to have recourse to permanent contracts owing to the temporary nature of those posts. That Member State does not explain, however, how that regulation affects the scope, or the interpretation to be given to, the derogation allowed under paragraph (3) of Article L. 122-1 of the Labour Code, under which, as was stated in paragraphs 7, 47 and 48 above, employers are permitted to hire occasional workers in the entertainment arts on the basis of fixed-term employment contracts for tasks which are not temporary in nature. The legal situation of occasional workers in the entertainment arts which results from the national law in question, as described to the Court, does not satisfy the demands of clarity and precision required in respect of national implementing measures (see, to that effect, judgment in Commission v Spain , C‑151/12, EU:C:2013:690, paragraph 33, and the case-law cited).