Martina Sciotto v Fondazione Teatro dell'Opera di Roma.
Date: 2018-10-25
27


In that connection, it must be recalled that the system of cooperation established by Article 267 TFEU is based on a clear division of responsibilities between the national courts and the Court of Justice. In proceedings brought on the basis of that article, the interpretation of provisions of national law is a matter for the courts of the Member States, not for the Court of Justice, and the Court has no jurisdiction to rule on the compatibility of rules of national law with EU law. On the other hand, the Court does have jurisdiction to provide the national court with all the guidance as to the interpretation of EU law necessary to enable that court to rule on the compatibility of national rules with EU law (judgment of 15 October 2015, Iglesias Gutiérrez and Rion Bea, C‑352/14 and C‑353/14, EU:C:2015:691, paragraph 21 and the case-law cited).
28


Although it is true that, on a literal reading of the referring court’s questions, the Court is being asked to rule on the compatibility of a provision of national law with EU law, there is nothing to prevent the Court from giving an answer that will be of use to the national court, by providing the latter with guidance as to the interpretation of EU law which will enable that court to rule itself on the compatibility of the national rules with EU law (judgment of 15 October 2015, Iglesias Gutiérrez and Rion Bea, C‑352/14 and C‑353/14, EU:C:2015:691, paragraph 22 and the case-law cited).
30


It should be recalled 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, which are 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 (judgments of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 63; of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 72; and of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 25).
31


As is apparent from the second paragraph of the preamble to the Framework Agreement and from paragraphs 6 to 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 can respond to the needs of both employers and workers (judgments of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 73; of 26 February 2015, Commission v Luxembourg, C‑238/14, EU:C:2015:128, paragraph 36; and of 14 September 2016, Pérez López, C‑16/15, EU:C:2016:679, paragraph 27).
32


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 (judgments of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 74; of 26 February 2015, Commission v Luxembourg, C‑238/14, EU:C:2015:128, paragraph 37; and of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 26).
33


The Member States enjoy a certain discretion in this 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 (see, to that effect, judgments of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 75; of 26 February 2015, Commission v Luxembourg, C‑238/14, EU:C:2015:128, paragraph 38; and of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 27).
34


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 it, provided that they do not compromise the objective or the practical effect of the Framework Agreement (judgments of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 76; of 26 February 2015, Commission v Luxembourg, C‑238/14, EU:C:2015:128, paragraph 39; and of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 28).
35


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 (judgments of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 70 and the case-law cited, and of 26 February 2015, Commission v Luxembourg, C‑238/14, EU:C:2015:128, paragraph 40).
38


As is apparent from paragraph 7 of the general considerations in the Framework Agreement, the signatory parties to that agreement took the view that the use of fixed-term employment contracts based on objective reasons is a way to prevent abuse (see, to that effect, judgments of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 86 and the case-law cited, and of 26 February 2015, Commission v Luxembourg, C‑238/14, EU:C:2015:128, paragraph 43).
39


In that regard, the concept of ‘objective reasons’ 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. 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 (judgments of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 87 and the case-law cited, and of 26 February 2015, Commission v Luxembourg, C‑238/14, EU:C:2015:128, paragraph 44).
40


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 (judgments of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 88 and the case-law cited, and of 26 February 2015, Commission v Luxembourg, C‑238/14, EU:C:2015:128, paragraph 45).
43


As regards, in the first place, the argument pertaining to the public nature of operatic and orchestral foundations such as the defendant in the main proceedings, the Court notes that such a public nature has no bearing on the protection enjoyed by a worker under Clause 5 of the Framework Agreement. According to settled case-law, Directive 1999/70 and the Framework Agreement are also intended to apply to fixed-term employment contracts concluded with public authorities and other public-sector bodies (see, to that effect, judgments of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 54, and of 7 September 2006, Vassallo, C‑180/04, EU:C:2006:518, paragraph 32), since the definition of the concept of ‘fixed-term workers’ within the meaning of the Framework Agreement, set out in Clause 3(1) thereof, encompasses all workers without drawing a distinction according to whether their employer is in the public or private sector (see, to that effect, judgments of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 56; of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 67; and of 14 September 2016, Pérez López, C‑16/15, EU:C:2016:679, paragraph 24).
47


Thus, the temporary employment of a worker in order to satisfy the employer’s temporary and specific staffing requirements may, in principle, constitute an ‘objective reason’ within the meaning of Clause 5(1)(a) of the Framework Agreement (see, to this effect, judgments of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 91, and of 14 September 2016, Pérez López, C‑16/15, EU:C:2016:679, paragraph 44).
55


In the fourth place, with regard to the arguments concerning budgetary considerations, it should be borne in mind that, whilst such considerations may underlie a Member State’s choice of social policy and influence the nature or scope of the measures which it wishes to adopt, they do not in themselves constitute an aim pursued by that policy and, therefore, cannot justify the lack of any measure preventing the misuse of successive fixed-term employment contracts as referred to in Clause 5(1) of the Framework Agreement (judgment of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 110, and order of 21 September 2016, Popescu, C‑614/15, EU:C:2016:726, paragraph 63).
57


The actual application of that reason must, however, be consistent with the requirements of the Framework Agreement, having regard to the particular features of the activity concerned and to the conditions under which it is carried out (see, to that effect, judgment of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraphs 91 and 99; and order of 21 September 2016, Popescu, C‑614/15, EU:C:2016:726, paragraph 64).
59


As regards, in the last place, the prohibition laid down by the national legislation on transforming, in the sector of operatic and orchestral foundations, fixed-term employment contracts into employment relationships of indefinite duration, it should be recalled 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. 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 fixed-term contracts may be used (judgment of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 80, and order of 11 December 2014, León Medialdea, C‑86/14, not published, EU:C:2014:2447, paragraph 47).
60


However, in order for national legislation such as that at issue in the main proceedings — which, in the sector of operatic and orchestral foundations, prohibits a succession of fixed-term contracts from being converted into a contract of indefinite duration — to be regarded as compatible with the Framework Agreement, the domestic law of the Member State concerned must include, in that sector, another effective measure to prevent and, where relevant, punish the abuse of successive fixed-term contracts (see, by analogy, judgments of 14 September 2016, Martínez Andrés and Castrejana López, C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 41, and of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 34).
62


It follows that the Italian legal system does not include, in the operatic and orchestral foundations sector, any effective measure, within the meaning of the case-law cited in paragraph 60 of this judgment, punishing the abuse of successive fixed-term contracts, despite staff in that sector not being entitled — unlike the workers at issue in the case giving rise to the judgment of 7 March 2018, Santoro (C‑494/16, EU:C:2018:166, paragraphs 35 and 36) — to claim the allocation of compensation for the loss incurred.
63


So far as concerns the engagement of the liability of directors, invoked by the Italian Government as an effective measure, it is important to recall that the national legislation obliges the authorities to recover from the directors responsible any sums paid to the workers by way of compensation for the loss incurred as a result of the infringement of provisions on recruitment and employment where that infringement is intentional or is the result of gross misconduct. That obligation placed on the authorities constitutes only one of the measures designed to prevent and punish the misuse of fixed-term employment contracts and it is for the referring court to determine whether the engagement of that liability is sufficiently effective and dissuasive to ensure that the provisions adopted pursuant to the Framework Agreement are fully effective (see, to that effect, judgment of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraphs 52 and 53).
64


In that regard, where 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 provisions adopted pursuant to the Framework Agreement are fully effective (judgments of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 77 and the case-law cited, and of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 29).
65


Therefore, where abuse of successive fixed-term employment 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, to that effect, judgments of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 79 and the case-law cited, and of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 31).
67


In accordance with settled case-law, the Member States’ obligation, arising from a directive, to achieve the result envisaged by that directive, and their duty under Article 4 TEU to take all appropriate measures, whether general or particular, to ensure fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts (judgment of 14 September 2016, Martínez Andrés and Castrejana López, C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 50 and the case-law cited).
68


Accordingly, it is for all the authorities of the Member State concerned to ensure that Clause 5(1) of the Framework Agreement is complied with, by ensuring that workers who have experienced abuse resulting from the use of successive fixed-term employment contracts are not deterred, in the hope of continued employment in the particular sector, from asserting before the national authorities, including the courts, the rights conferred upon them under national law which arise from the implementation by that law of all the preventive measures set out in Clause 5(1) of the Framework Agreement (see, to that effect, judgment of 14 September 2016, Martínez Andrés and Castrejana López, C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 51 and the case-law cited).