Kiriaki Angelidaki and Others v Organismos Nomarchiakis Autodioikisis Rethymnis (C-378/07), Charikleia Giannoudi v Dimos Geropotamou (C-379/07) and Georgios Karabousanos and Sofoklis Michopoulos v Dimos Geropotamou (C-380/07).

• Jurisdiction: European Union
• Celex Number: 62007CJ0378
• ECLI: ECLI:EU:C:2009:250
• Docket Number: C-378/07,C-380/07
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 23 April 2009

Joined Cases C-378/07 to C-380/07

Kiriaki Angelidaki and Others

v

Organismos Nomarkhiaki Aftodiikisi Rethimnis and Dimos Geropotamou

(References for a preliminary ruling from the

Monomeles Protodikio Rethimnis)

(Directive 1999/70/EC – Clauses 5 and 8 of the framework agreement on fixed-term work – Fixed-term employment contracts in the public sector – First or single use of a contract – Successive contracts – Equivalent legal measure – Reduction in the general level of protection afforded to workers – Measures intended to prevent abuse – Penalties – Absolute prohibition on conversion of fixed-term employment contracts into contracts of indefinite duration in the public sector – Consequences of the incorrect transposition of a directive – Interpretation in conformity with Community law)

Summary of the Judgment

1. Social policy – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 – Measures to prevent abuse of successive fixed-term employment contracts

(Council Directive 1999/70, Annex, clauses 5(1) and 8(3))

2. Social policy – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 – Measures to prevent abuse of successive fixed-term employment contracts

(Council Directive 1999/70, Annex, clause 5(1)(a))

3. Social policy – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 – Prohibition of a reduction of the general level of protection afforded to workers in the field of the agreement – Scope of application – Scope

(Council Directive 1999/70, Annex, clause 8(3))

4. Social policy – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 – Prohibition of a reduction of the general level of protection afforded to workers in the field of the agreement

(Council Directive 1999/70, Annex, clauses 5(1) and 8(3))

5. Social policy – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 – Measures to prevent abuse of successive fixed-term employment contracts

(Council Directive 1999/70, Annex, clause 5(1))

6. Social policy – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 – Measures to prevent abuse of successive fixed-term employment contracts

(Council Directive 1999/70, Annex, clauses 5(1) and 8(3))

1. Clause 5(1) of the framework agreement on fixed-term work, which is annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as not precluding the adoption by a Member State of national legislation which, for the purposes specifically of transposing Directive 1999/70 so as to implement the provisions of that directive in the public sector, provides for the implementation of the measures to prevent the misuse of successive fixed-term employment contracts or relationships which are listed in clause 5(1)(a) to (c) where – which it is for the national court to ascertain – an ‘equivalent legal measure’ within the meaning of that clause already exists under national law, provided, however, that that legislation (i) does not affect the effectiveness of the prevention of the misuse of fixed-term employment contracts or relationships resulting from that equivalent legal measure, and (ii) complies with Community law and, in particular, with clause 8(3) of the framework agreement.

(see para. 87, operative part 1)

2. Clause 5(1)(a) of the framework agreement on fixed-term work, which is annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as precluding the application of national legislation by the authorities of the Member State concerned in such a way that the renewal of successive fixed-term employment contracts in the public sector is deemed to be justified by ‘objective reasons’ within the meaning of that clause solely on the ground that those contracts are founded on legal provisions allowing them to be renewed in order to meet certain temporary needs when, in fact, those needs are fixed and permanent. By contrast, clause 5(1)(a) does not apply to the first or single use of a fixed-term employment contract or relationship.

(see para. 107, operative part 2)

3. The existence of a ‘reduction’ for the purposes of clause 8(3) of the framework agreement on fixed-term work, which is annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be considered in relation to the whole of a Member State’s domestic law relating to the protection of workers in the context of fixed-term employment contracts. Consequently, that clause must be interpreted as meaning that the ‘reduction’ with which it is concerned must be considered not only by reference to the level of protection applicable to fixed-term workers that is derived from an ‘equivalent legal measure’ within the meaning of clause 5(1) of the agreement, but also in relation to the general level of protection applicable in the Member State concerned both to workers who have entered into successive fixed-term employment contracts and to workers who have entered into a first or single fixed-term employment contract.

Moreover, as regards the scope of clause 8(3), it is apparent from its very wording that a reduction is not prohibited as such by the framework agreement but, in order for that reduction to be caught by the prohibition laid down by that clause, it must, first, be connected to the ‘implementation’ of the framework agreement and, second, relate to the ‘general level of protection’ afforded to fixed-term workers.

(see paras 120-121, 123, 125-126, operative part 3)

4. Clause 8(3) of the framework agreement on fixed-term work, which is annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as not precluding national legislation which, unlike an earlier rule of domestic law, (i) no longer provides for fixed-term employment contracts to be recognised as contracts of indefinite duration where abuse arises from the use of such contracts in the public sector, or which makes such recognition subject to certain cumulative and restrictive conditions, and (ii) excludes from the benefit of the protection measures provided by that agreement workers who have entered into a first or single fixed-term employment contract, where – which it is for the national court to ascertain – such amendments relate to a limited category of workers having entered into a fixed-term employment contract or are offset by the adoption of measures to prevent the misuse of fixed-term employment contracts within the meaning of clause 5(1) of the framework agreement.

However, the implementation of the framework agreement by national legislation cannot have the effect of reducing the protection previously applicable, under the domestic legal order, to fixed-term workers to a level below that set by the minimum protective provisions laid down by the framework agreement. In particular, compliance with clause 5(1) of the framework agreement requires that such legislation should provide, in respect of the misuse of successive fixed-term employment contracts, effective and binding measures to prevent such misuse and sanctions which are sufficiently effective and a sufficient deterrent to ensure that those preventive measures are fully effective. It is therefore for the referring court to establish that those conditions are fulfilled.

(see paras 177-178, operative part 4)

5. The framework agreement on fixed-term work, which is annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as meaning that, where the domestic law of the Member State concerned includes, in the sector under consideration, other effective measures to prevent and, where relevant, punish the abuse of successive fixed-term employment contracts within the meaning of clause 5(1) of that agreement, it does not preclude the application of a rule of national law which prohibits absolutely, in the public sector only, the conversion into a contract of indefinite duration of a succession of fixed-term employment contracts which, having been intended to cover fixed and permanent needs of the employer, must be regarded as constituting an abuse. It is none the less for the referring court to determine to what extent the conditions for application and effective implementation of the relevant provisions of domestic law constitute a measure adequate for the prevention and, where relevant, the punishment of the misuse by the public authorities of successive fixed-term employment contracts or relationships.

By contrast, since clause 5(1) of the framework agreement is not applicable to workers who have entered into a first or single fixed-term employment contract, that provision does not require the Member States to adopt penalties where such a contract does in fact cover fixed and permanent needs of the employer.

(see paras 189-190, operative part 5)

6. Neither clause 5(1) nor clause 8(3) of the framework agreement on fixed-term work, which is annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, appears, so far as its subject-matter is concerned, to be unconditional and sufficiently precise to have direct effect and for individuals to be able to rely upon it before a national court.

However, it is for the national court to interpret the relevant provisions of national law, so far as possible, in conformity with clauses 5(1) and 8(3), and also to determine, in that context, whether an ‘equivalent legal measure’ within the meaning of clause 5(1) must be applied to the proceedings before that court in place of certain...