M.V. e.a. v Organismos Topikis Aftodioikisis (O.T.A.) «Dimos Agiou Nikolaou».

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:113
• Docket Number: C-760/18
• Date: 11 February 2021
• Celex Number: 62018CJ0760
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Seventh Chamber)

11 February 2021 (*)

(Reference for a preliminary ruling – Social policy – Directive 1999/70/EC – Framework agreement on fixed-term employment concluded by ETUC, UNICE and CEEP – Clause 5 – Measures to prevent abuse arising from the use of successive fixed-term employment contracts or relationships – Fixed-term employment contracts in the public sector – Successive contracts or extended initial contract – Equivalent legal measure– Absolute constitutional prohibition on conversion of fixed-term employment contracts to contracts of indefinite duration – Obligation to interpret in conformity with EU law)

In Case C‑760/18,

REQUEST for a preliminary ruling under Article 267 TFEU from the Monomeles Protodikeio Lasithiou (Court of first instance (single judge) of Lasithi, Greece), made by decision of 4 December 2018, received at the Court on 4 December 2018, in the proceedings

M.V. and Others

v

Organismos Topikis Aftodioikisis (OTA) ‘Dimos Agiou Nikolaou’

THE COURT (Seventh Chamber),

composed of A. Kumin (Rapporteur), President of the Chamber, T. von Danwitz and P.G. Xuereb, Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– M.V. and Others, by E. Chafnavi, dikigoros,

– the Organismos Topikis Aftodioikisis (OTA) ‘Dimos Agiou Nikolaou’, by K. Zacharaki, dikigoros,

– the Greek Government, by E.-M. Mamouna, E. Tsaousi, and K. Georgiadis, acting as Agents,

– the European Commission, initially by A. Bouchagiar and M. van Beek, and subsequently by A. Bouchagiar, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Clause 1 and Clause 5(2) of the framework agreement on fixed-term work, concluded on 18 March 1999 (‘the framework agreement’), which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term employment concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43).

2 The request has been made in proceedings between, on the one hand, M.V. and other workers, and, on the other, their employer, the Organismos Topikis Aftodioikisis (OTA) ‘Dimos Agiou Nikolaou’ (the administrative authority of the territory of the municipality of Agios Nikolaos, Greece) (‘the municipality of Agios Nikolaos) concerning the legal classification of their employment relationships, in so far as they are employed by the cleansing department of that municipality, for a fixed term.

Legal context

European Union law

3 Clause 1 of the framework agreement provides that its purpose:

‘… is to:

(a) improve the quality of fixed-term employment by ensuring the application of the principle of non-discrimination;

(b) establish a framework to prevent abuse arising from the use of successive fixed‑term employment contracts or relationships.’

4 Clause 3 of the framework agreement, headed ‘Definitions’, provides:

‘1. For the purpose of this agreement the term “fixed-term worker” means a person having an employment contract or relationship entered into directly between an employer and a worker where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event.

…’

5 Clause 5 of the framework agreement, headed ‘Measures to prevent abuse’, provides:

‘1. To prevent abuse arising from the use of successive fixed-term employment contracts or relationships, Member States, after consultation with social partners in accordance with national law, collective agreements or practice, and/or the social partners, shall, where there are no equivalent legal measures to prevent abuse, introduce in a manner which takes account of the needs of specific sectors and/or categories of workers, one or more of the following measures:

(a) objective reasons justifying the renewal of such contracts or relationships;

(b) the maximum total duration of successive fixed-term employment contracts or relationships;

(c) the number of renewals of such contracts or relationships.

2. Member States after consultation with the social partners and/or the social partners shall, where appropriate, determine under what conditions fixed-term employment contracts or relationships:

(a) shall be regarded as “successive”;

(b) shall be deemed to be contracts or relationships of indefinite duration.’

6 Clause 8 of the framework agreement, headed ‘Provisions on implementation’, provides:

‘1. Member States and/or the social partners can maintain or introduce more favourable provisions for workers than set out in this agreement.

…’

Greek law

Provisions of the Greek Constitution

7 In 2001 paragraphs 7 and 8 were added to Article 103 of the Greek Constitution, worded as follows:

‘7. The engagement of employees in the public administration and in the wider public sector … shall take place either by competitive entry examination or by selection on the basis of predefined and objective criteria, and shall be subject to review by an independent authority, as specified by legislation. …

8. The legislation shall specify the conditions and duration of private law employment relationships in the public administration and in the wider public sector, as this defined in each case, in order to fill either permanent posts other than those provided for in the first section of paragraph 3, or posts to meet temporary, unforeseen or urgent needs, within the meaning of the second section of paragraph 2. The legislation shall also specify the duties that may be undertaken by the staff mentioned in the preceding sentence. Conversion by legislation of staff covered by the first section to permanent civil servants or conversion of their contracts into contracts of indefinite duration is prohibited. The prohibitions of the present paragraph shall also apply to those employed on the basis of a contract for performance of a specific task.’

Statutory provisions

8 Article 8(1) and (3) of Law 2112/1920 on compulsory termination of contracts of employment of employees in the private sector (FEK A’ 67/18.3.1920), which establishes provisions to protect workers in relation to the termination of private law employment contracts of indefinite duration, provides:

‘1. Any contract that is contrary to this law shall be null and void, unless it is more favourable to the employee. …

…

3. The provisions of this law shall apply likewise to fixed-term contracts of employment if the term set is not warranted by the nature of the contract and was set deliberately in order to circumvent the provisions of this law governing the compulsory notice of termination of a contract of employment.’

9 It is apparent from the documents before the Court that Article 8(3) of Law 2112/1920, read together, in particular Articles 281 and 671 of the Civil Code, and with the general principles of the Greek Constitution, in particular Article 25(1) and (3) thereof, was applied over the years by the Greek courts in order to determine the correct legal classification of employment relationships, and those courts, on the basis of Article 8(3), held that contracts which purported to be fixed-term contracts, but which, in reality, were intended, by means of their renewal, to meet fixed and permanent needs of the employer, should be legally classified as ‘contracts of indefinite duration’.

10 The referring court states that, following the revision of the Greek Constitution, the Greek courts no longer converted, on the basis of Article 8(3) of Law 2112/1920, the fixed-term employment contracts entered into by employers in the public sector into contracts of indefinite duration. The Greek courts considered that such conversion was in breach of the prohibition, laid down in Article 103 of the Greek Constitution, as revised, on the conversion of staff in the public sector to permanent civil servants, even where a fixed-term contract covered fixed and permanent needs of the employer.

The provisions relating to the renewal of the fixed-term contracts of staff in the cleansing services of territorial municipalities

11 In accordance with Article 205(1) of the Kodikas Katastasis Dimotikon kai Koinotikon Ypallilon (the Local Authority Employment Code), the local and regional authorities may enter into private law fixed-term employment contracts to deal with seasonal needs or other periodic or one-off needs.

12 Article 21 of Law No 2190/1994 establishing an independent authority for selecting staff and regulating management issues (FEK A’ 28/3.3.1994) provides:

‘1. Public services and legal persons … may employ staff on fixed-term employment contracts governed by private law in order to cope with seasonal or other periodic or one-off needs, in accordance with the conditions and the procedure laid down in the following paragraphs.

2. The period of employment of staff referred to in paragraph 1 may not exceed eight months in the course of an overall period of 12 months. When staff are taken on temporarily to meet, in accordance with the provisions in force, urgent needs, because of staff absences or vacant posts, the period of employment may not exceed four months for the same person. Extension of a contract, conclusion of a new contract in the same calendar year or conversion into a contract of indefinite duration shall be invalid.’

13 Article 167 of Law 4099/2012 (FEK A’ 250/20.12.2012), in the version applicable to the dispute in the main proceedings, provides:

‘In derogation from any other provision, individual contracts currently in force and individual contracts which expired up to ninety (90) days before the entry into force of the present Law which relate to the cleansing of the premises of: public services; independent authorities; legal persons...