Carmela Carratù v Poste Italiane SpA.
Date: 2013-12-12
18. It should be recalled, first, that the Court may, of its own motion, on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure under Article 83 of its Rules of Procedure, if it considers that it lacks sufficient information or that the case must be decided on the basis of an argument which has not been debated between the parties (Case C‑535/11 Novartis Pharma  [2013] ECR I‑0000, paragraph 30 and the case-law cited).
19. Secondly, under the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement. In carrying out that task, the Advocate General may, where appropriate, analyse a request for a preliminary ruling by placing it within a context which is broader than that strictly defined by the referring court or by the parties to the main proceedings. Since the Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based, it is not absolutely necessary to reopen the oral procedure, under Article 83 of the Rules of Procedure, each time the Advocate General raises a point of law which was not the subject of debate between the parties ( Novartis Pharma , paragraph 31 and the case-law cited).
23. It should be borne in mind at the outset that, according to settled case‑law, the Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the 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 (Case C‑458/06 Gourmet Classic  [2008] ECR I‑4207, paragraph 25 and the case-law cited).
28. It should be noted that the Court has already had occasion to state that clause 4(1) of the framework agreement appears, so far as its subject‑matter is concerned, to be unconditional and sufficiently precise for individuals to be able to rely upon it before a national court (see Case C‑268/06 Impact  [2008] ECR I‑2483, paragraph 68).
29. In addition, it should be borne in mind that it is settled case-law that among the entities against which provisions of a directive capable of having direct effect may be enforced is a body which, whatever its legal form, has been made responsible, pursuant to a measure adopted by a public authority, for providing, subject to the control of that public authority, a service in the public interest and, for that purpose, enjoys exceptional powers as compared with the rules applicable to relations between individuals (see Case C‑614/11 Kuso  [2013] ECR I‑0000, paragraph 32 and the case-law cited).
33. It should be borne in mind that, in view of the objectives pursued by the framework agreement, clause 4 must be interpreted as articulating a principle of European Union social law which cannot be interpreted restrictively (Joined Cases C‑444/09 and C‑456/09 Gavieiro Gavieiro and Iglesias Torres  [2010] ECR I‑14031, paragraph 49 and the case‑law cited).
35. Accordingly, the Court held that the decisive criterion for determining whether a measure falls within the scope of ‘employment conditions’ within the meaning of clause 4(1) of the framework agreement on part-time work is, precisely, the criterion of employment, that is to say the employment relationship between a worker and his employer (see, to that effect, Joined Cases C‑395/08 and C‑396/08 Bruno and Others  [2010] ECR I‑5119, paragraph 46).
37. It is not disputed that such compensation is paid to a worker on account of the employment relationship between that worker and his employer. As that compensation is paid on account of employment, it falls within the scope of ‘employment conditions’.
38. Therefore, the answer to the fourth question is that clause 4(1) of the framework agreement must be interpreted as meaning that the concept of ‘employment conditions’ covers the compensation that the employer must pay to an employee on account of the unlawful insertion of a fixed‑term clause into his employment contract.
The fifth question
40. It should be recalled at the outset that, according to clause 1(a) of the framework agreement, one of its objectives is to improve the quality of fixed-term work by ensuring the application of the principle of non‑discrimination. Similarly, the third paragraph in the preamble to the framework agreement states that it ‘illustrates the willingness of the Social Partners to establish a general framework for ensuring equal treatment for fixed-term workers by protecting them against discrimination’. Recital 14 in the preamble to Directive 1999/70 states with that in view that the aim of the framework agreement is, in particular, to improve the quality of fixed-term work by setting out minimum requirements in order to ensure the application of the principle of non-discrimination ( Gavieiro Gavieiro and Iglesias Torres , paragraph 47).
41. The framework agreement, in particular clause 4, aims to apply that principle to fixed-term workers in order to prevent an employer using such an employment relationship to deny those workers rights which are recognised for permanent workers (Case C‑307/05 Del Cerro Alonso [2007] ECR I‑7109, paragraph 37).
43. Therefore, in order to assess whether the compensation paid in respect of the unlawful insertion of a fixed‑term clause into an employment relationship must be determined in the same way as that paid in respect of the unlawful termination of a permanent employment relationship, it must be examined at the outset whether the persons concerned can be regarded as being in a comparable situation (see, by analogy, Joined Cases C‑302/11 to C‑305/11 Valenza and Others  [2012] ECR I‑0000, paragraph 42 and the case-law cited).