FIXED-TERM CONTRACTS : ADVOCATE-GENERAL: 1999 DIRECTIVE DOES NOT COVER PAY.

With the debate on quality of work and flexicurity' in full swing, the conclusions handed down by EU Court of Justice Advocate-General Miguel Poiares Maduro on the 1999 Directive on fixed term contracts (FTC) are well worth reading carefully. Not only have they already provoked a debate within the Court, involving legal experts in social rights, they may also pre-empt a possible future debate on minimum income and temporary work.

The Court was asked two questions. Does the 1999 directive include civil servants? Does it apply to pay? (conclusions of 10 January, Yolanda Del Cerro Alonso, C-307/05)

To recall, Clause 4 of the framework agreement between social partners, concluded on 18 March 1999 and implemented by the directive, states that "in respect of employment conditions, fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds".

REGULATED STAFF EXCLUDED

According to the agreement signed between social partners, the text "applies to fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each member state". Having analysed the case law, the advocate-general concluded that "there is no single definition of worker in Community law: it varies according to the area in which the definition is to be applied". For example, it has a broader scope in the Directive on gender equality and a narrower scope in the Directive on company transfer. This difference in the way social issues are dealt with depends on the "way in which the matter is approached, depending on whether the Court attaches more importance to the purpose or to the scheme of the rules subject to interpretation".

Miguel Poiares Maduro felt it "right to respect the wording of the framework agreement," and so in this case "a worker not subject to labour law does not enjoy, under the national law concerned, the status of worker," unless there are exceptional circumstances, which he left to the national courts to decide, with one condition: "the exclusion of a category of staff from the scope of that directive cannot be justified merely by the circumstance that that category is governed by special rules. On the contrary, the exclusion must be justified by the existence of a type of employment relationship which cannot be compared with employment...