Diritto del lavoro: Directive 1999/70/EC - The Angelidaki case: fixed-term work

[Omissis]

I – Introduction

1. Once again, the Court’s assistance is sought in a bitter dispute concerning protection for fixed-term workers in the Greek public service. On this occasion, however, the focus of concern is a matter previously alluded to in passing at most in Adeneler and Vassilakis, namely, whether the provisions governing fixed-term work in the Greek public sector infringe the prohibition of regression established by Community law. The interpretation of that prohibition, which the Court is asked to provide in these proceedings, is likely to be of significance far beyond the confines of Greece.

2. The present case concerns, in particular, the Greek rule according to which in the public sector no conversion of fixed-term employment relationships to relationships of indefinite duration is permitted; a rule now even enshrined in the Greek Constitution. The national court and some of the parties take the view at any rate that the previous legal regime in Greece was considerably more favourable for fixed-term workers than that which currently applies; consequently they question the compatibility of the new regime with the requirements of Community law, in particular, the prohibition of regression.

3. The answer to the three orders for reference here will involve consideration to a certain extent of the much-criticised judgment in Mangold. However, I wish to point out at this juncture that the present case does not involve the contested passages of that judgment concerning the prohibition on age discrimination, in particular, the source in doctrinal terms of that prohibition and the effects it produces in legal disputes between private parties.

II – Legal framework

A – Community law

4. The Community law framework for this case is established by Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (‘Directive 1999/70’). This directive puts into effect the framework agreement on fixed-term work (also ‘the Framework Agreement’) which was concluded on 18 March 1999 between three general cross-industry organisations (ETUC, UNICE and CEEP) and is annexed to the directive.

5. The Framework Agreement on fixed-term work aims to contribute towards achieving a better balance between ‘flexibility in working time and security for workers’. It is underpinned, on the one hand, by the consideration ‘that contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers’. However, at the same time, the Framework Agreement recognises that fixed-term employment contracts ‘are a feature of employment in certain sectors, occupations and activities which can suit both employers and workers’. Moreover, underlying the Framework Agreement is the general consideration that ‘the use of fixed-term employment contracts based on objective reasons is a way to prevent abuse’.

6. Clause 1 of the Framework Agreement defines the purpose of the agreement as follows:

‘The purpose of this framework agreement is to:

(a) improve the quality of fixed-term work 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.’

7. The Framework Agreement’s scope is determined in clause 2(1) thereof:

‘This agreement 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.’

8. In accordance with the definition established in clause 3(1) of the Framework Agreement, for the purposes of the 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’.

9. Clause 5 of the Framework Agreement concerns measures to prevent the abuse of successive fixed-term employment contracts or relationships:

‘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;

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.’

10. Finally, under the heading ‘Provisions on implementation’, clause 8 of the Framework Agreement provides as follows:

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

…

3. Implementation of this agreement shall not constitute valid grounds for reducing the general level of protection afforded to workers in the field of the agreement.

…’

11. Directive 1999/70 allows Member States to define the terms used in the Framework Agreement, but not specifically defined therein, in conformity with national law or practice, provided that the definitions in question respect the content of the Framework Agreement. Such a measure is designed to take account of the situation in each Member State and the circumstances of particular sectors and occupations, including activities of a seasonal nature.

12. Under the first paragraph of Article 2 of Directive 1999/70, the Member States were required to ‘bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 10 July 2001’, or to ensure that, by that date at the latest, ‘management and labour have introduced the necessary measures by agreement’. According to the second paragraph of Article 2 of the directive, Member States could have a maximum of one more year for transposition, if necessary, and following consultation with management and labour, to take account of special difficulties or implementation by a collective agreement. Greece availed itself of such a one-year extension which expired on 10 July 2002.

B – National law

13. In relation to Greek law, mention must be made both of the presidential decrees specifically implementing Directive 1999/70 and of Article 103 of the Greek Constitution as well as of various provisions of Laws No 2190/1994, No 3250/2004 and No 2112/1920.

1. Presidential decrees implementing Directive 1999/70

14. Presidential Decree No 81/2003, which entered into force on 2 April 2003, lays down ‘provisions concerning workers employed under fixed-term contracts’ and originally applied, under Article 2(1) thereof, ‘to workers employed under a fixed-term contract or relationship’. However, the scope of that provision was subsequently restricted by Presidential Decree No 180/2004, which entered into force on 23 August 2004, to employment relationships in the private sector.

15. Finally, special arrangements for workers employed under fixed-term contracts in the public sector were established by Presidential Decree No 164/2004, which entered into force on 19 July 2004. Article 2(1) of the decree defines its scope as follows:

‘The provisions of this decree shall apply to staff in the public sector … and to the staff of municipal and communal undertakings who work under a fixed-term employment contract or relationship, or under a contract for work or other contract or relationship concealing a relationship between employer and employee.’

16. Article 5 of Presidential Decree No 164/2004 includes the following provisions on the legality of successive contracts in the public sector:

‘1. Successive contracts concluded between and performed by the same employer and worker in the same or similar professional activity and under the same or similar terms of employment shall be prohibited if the contracts are separated by a period of less than three months.

2. Such contracts may be concluded by way of exception if justified by an objective reason. There is an objective reason if the contracts succeeding the original contract are concluded for the purpose of meeting similar special needs which are directly and immediately related to the form, the type or the activity of the undertaking.

…

4. The number of successive contracts shall not, in any circumstances, be greater than three, subject to the provisions of paragraph 2 of the following article.’

17. In addition, Article 6 of Presidential Decree No 164/2004 contains provisions on the maximum term of contracts:

‘1. Successive contracts concluded between and performed by the same employer and the same worker in the same or similar professional activity and under the same or similar terms of employment may not exceed an overall period of employment of 24 months, irrespective of whether they are concluded in application of the previous article or in application of other provisions of current legislation.

2. An overall period of employment exceeding 24 months shall only be permitted in the case of workers engaged in the special categories of work provided for under current legislation such as, in particular, senior managerial staff, workers recruited for a specific research or any subsidised or financed programme or workers recruited in order to perform work required in order to honour obligations pursuant to contracts with international organisations.’

18. On the consequences of infringements, Article 7 of Presidential Decree No 164/2004 provides:

‘1. Any contract concluded in breach of the provisions of Articles 5 and 6 of this decree shall automatically be invalid.

2. If all or part of the invalid contract has been performed, the worker shall be paid the sums of money owing on the basis thereof and any monies paid shall not be recovered. The worker shall be entitled for the period over which the invalid contract was performed to compensation equal to the sum to which an equivalent worker under a contract of indefinite duration would be entitled on termination of his contract. If there were several invalid contracts, compensation shall be calculated on the basis of the total period of employment under the invalid contracts. Sums of money paid by the employer to the worker shall be charged to the culpable party.

3. Persons in breach of the provisions of Articles 5 and 6 of this decree shall be punished by a term of imprisonment … If the offence was committed as a result of negligence, the culpable party shall be punished by a term of imprisonment of up to one year. The same infringement shall also constitute evidence of a serious disciplinary offence.’

19. Article 11 of Presidential Decree No 164/2004 includes the following transitional provisions:

‘1. Successive contracts within the meaning of Article 5(1) of this decree which were concluded before, and are still valid at the time of, the entry into force of this decree shall henceforth constitute employment contracts of indefinite duration if each of the following conditions is met:

(a) the total duration of the successive contracts must amount to at least 24 months up to the entry into force of this decree, irrespective of the number of contract renewals, or there must be at least three renewals following the original contract, for the purposes of Article 5(1) of this decree, with a total duration of employment of at least 18 months over a total period of 24 months calculated from the date of the original contract;

(b) the total period of employment under subparagraph (a) must in fact have been completed with the same body, in the same or similar professional activity and under the same or similar terms of employment as specified in the original contract …

(c) the contract must relate to activities directly and immediately connected with the body’s fixed and permanent needs as defined by the public interest that the body serves; and

(d) the total period of employment for the purposes of the preceding subparagraphs must be completed on a full-time or part-time basis and in duties identical or similar to those specified in the original contract. …

2. In order to establish whether the preconditions set out in the preceding paragraph have been met, workers shall submit an application to the body in question by a deadline of two months from the date on which this decree enters into force, stating the facts proving that these preconditions have been met. The organ competent to issue a reasoned decision as to whether the preconditions set out in the preceding paragraph have been met shall be the relevant internal council or equivalent organ or, where there is none, the administrative council or administrative organ of the relevant legal person or the equivalent organ under current legislation. The competent organ for municipal or communal undertakings shall in all cases be the municipal or communal council of the relevant local authority, acting on the recommendation of the administrative council or the administrative organ of the undertaking. The organ which is competent in accordance with the foregoing shall also decide whether contracts for work or other contracts or relationships are in fact concealing an employer/employee relationship. The decision by the organ competent in accordance with the above provisions shall be issued within five months of the date on which this decree enters into force.

3. Decisions under paragraph 2 by the competent organs, whether positive or negative, shall be transmitted immediately to the Anotato Simvoulio Epilogis Prosopikou (ASEP) (Supreme Staff Selection Council), which shall give a ruling within three months of receipt of the decisions in question.

4. The provisions of this article shall apply to workers employed in the public sector ... and in municipal and communal undertakings …

5. The provisions of paragraph 1 of this article shall also apply to contracts which expired during the three months immediately preceding the entry into force of this decree; such contracts shall be regarded as successive contracts valid up to its entry into force. The condition set out in paragraph 1(a) of this article must be met upon expiry of the contract.

…’

2. Other legislation affecting fixed-term work

a) Provisions of the Greek Constitution

20. Article 103(2) of the Greek Constitution provides as follows:

‘No one may be appointed as a civil servant to an established post not provided for by law. Special laws may provide for exceptions in order to cover unforeseen and urgent needs with personnel hired for a certain period of time on a private law contract.’

21. Article 103(8) of the Greek Constitution, which entered into force on 7 April 2001, provides:

‘A law shall specify the conditions and duration of private law employment relations, in the public administration and in the broader public sector as defined on each occasion, either to fill posts beyond those provided for in the first sentence of paragraph 3 or to meet temporary or unforeseen and urgent needs in accordance with the second sentence of paragraph 2. The law shall also specify the duties that may be undertaken by the staff mentioned in the preceding sentence. Conversion by law of staff covered by the first sentence to permanent civil servants or conversion of their contracts to contracts of indefinite duration is prohibited. The prohibitions of the present paragraph also apply to those employed on the basis of a contract for work.’

b) Laws No 2190/1994, No 2527/1997 and No 3250/2004

22. It follows from Article 21 of Law No 2190/1994 that Greek public authorities and public law bodies may employ staff on fixed-term employment contracts governed by private law in order to meet seasonal or other periodic or temporary needs. The period of employment of such staff may not exceed eight months in the course of an overall period of 12 months. If 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 to a contract of indefinite duration is deemed invalid.

23. In accordance with Article 1 of Law No 3250/2004, the Greek public administration, first- and second-level local government authorities and public law bodies may recruit staff under part-time, fixed-term private law contracts of employment in order to meet requirements for the purpose of providing services of a social character to the public. Such staff may be recruited solely in order to meet additional requirements for the purpose of serving the public and are to have no effect on the operational structure of the departments of the agencies concerned. The term of such contracts may not exceed 18 months. A new contract may be signed with the same worker no less than four months after expiry of the previous contract. Persons employed under such contracts may not work more than 20 hours a week.

24. Article 6(1) of Law No 2527/1997 places conditions on the use of contracts for work by departments or legal persons in the public sector, including requirements that the work neither forms part of the usual duties of the employees of the body in question nor may such be carried out by those employees. Contracts for work meeting fixed and permanent requirements are automatically invalid in their entirety.

c) Law No 2112/1920

25. The national court states the potential for continued application of Law No 2112/1920, in particular, in relation to public sector workers. Article 8(3) of that law provides:

‘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.’

26. Citing the case-law of Greek courts as authority, the national court states that in the absence of an objective reason for imposing a fixed term, pursuant to Article 8(3) of Law No 2112/1920, a contract of employment concluded for a fixed term is treated as a contract of indefinite duration. According to the national court, that principle applies even in relation to a single fixed-term contract, that is, several successive fixed-term employment relationships are not required.

27. Moreover, the national court states that for the purposes of clause 5(1) of the Framework Agreement the Greek Arios Pagos considers Article 8(3) of Law No 2112/1920 to constitute an equivalent legal measure, regardless of whether the fixed-term contracts at issue are with public or private sector employers; an interpretation – according to the national court – which Article 103(8) of the Greek Constitution does not preclude.

28. However, it is apparent from the case-file that the same Arios Pagos later revised its case-law and held in the light of Article 103(8) of the Greek Constitution that fixed-term contracts of employment in the public sector could not be converted to contracts for an indefinite duration, even when the needs met by the contracts were fixed and permanent.

III – Facts and main proceedings

29. The plaintiffs in the main proceedings in Case C‑378/07 entered private law contracts of employment in 2005 with the defendant Cretan local authority, the Nomarkhiaki Aftodiikisi Rethimnis. Each contract was limited to a term of 18 months with none extended or renewed following the expiry of its term.

30. In contrast, the plaintiff in the main proceedings in Case C‑379/07 and both plaintiffs in the main proceedings in Case C‑380/07 were engaged by the defendant Cretan local authority, the Dimos Geropotamou, by way of three successive employment relationships. Those employment relationships were based on fixed-term contracts, some of which were described as contracts for work, and others as fixed-term employment contracts. It is apparent from the case-file that the contracts related to the period from December 2003 to December 2006; in one case, expiry of a fixed-term contract was followed directly with a new fixed-term contract; in other cases, the interval between contracts ran for a period of one to a maximum of 28 days.

31. Before the Monomeles Protodikio Rethimnis, in all three sets of main proceedings the plaintiffs contend that, in fact, their employment relationships met fixed and permanent needs and were framed as fixed-term contracts of employment or contracts for work simply for the purpose of avoiding employment legislation. They rely, inter alia, on Article 8(3) of Law No 2112/1920, which – on their argument – must be interpreted and applied in conformity with Directive 1999/70 and as a result their contracts must be regarded as employment contracts for an unlimited term. Nor – so they argue – is that result precluded by Article 103(8) of the Greek Constitution, as the prohibition on converting public sector employment relationships for a fixed-term to such for an unlimited term relates only to contracts by which public employers cover temporary, unforeseen or urgent needs.

32. Correspondingly, the plaintiffs in all three sets of main proceedings seek a judicial declaration that they have an employment contract of an indefinite duration with the defendant local authority concerned and an order requiring the defendant to continue to employ them.

IV – References for a preliminary ruling and procedure before the Court

A – Case C‑378/07

33. By order of 19 July 2007, in Case C‑378/07, the referring court stayed proceedings and referred the following questions to the Court of Justice for a preliminary ruling:

‘(1) Are clause 5 and clause 8(1) and (3) of the Framework Agreement on fixed-term work which forms an integral part of Council Directive 1999/70/EC to be interpreted as meaning that Community law (by reason of the application of the said Framework Agreement) precludes a Member State from adopting measures,

(a) where an equivalent legal measure within the meaning of clause 5(1) of the Framework Agreement already existed under national law before the directive entered into force, and

(b) where the measures adopted in order to apply the Framework Agreement reduce the general level of protection afforded to fixed-term workers under national law?

(2) If Question 1 is answered in the affirmative, is the reduction in the protection afforded to fixed-term workers in the case simply of a single fixed-term employment contract (rather than several, successive contracts), under which the worker is in fact to provide services to meet “fixed and permanent”, rather than temporary, exceptional or urgent, requirements, connected to the application of the said Framework Agreement and the above directive and is such a reduction therefore permitted or not permitted from the point of view of Community law?

(3) If Question 1 is answered in the affirmative, where there is an equivalent legal measure under national law, within the meaning of clause 5(1) of the Framework Agreement, which existed before Directive 1999/70 entered into force, such as Article 8(3) of Law No 2112/1920 at issue in the main proceedings, is the adoption of a legal measure by reason of the application of the Framework Agreement, such as Article 11 of Presidential Decree No 164/2004 at issue in the main proceedings, an unacceptable reduction in the general level of protection afforded to fixed-term workers under national law within the meaning of clause 8(1) and (3) of the Framework Agreement:

(a) where the scope of the legal measure in question applying the Framework Agreement extends only to successive fixed-term employment contracts or relationships and not to persons who have concluded simply a single fixed-term contract of employment (rather than several, successive contracts) in order for the worker to meet “fixed and permanent” requirements of the employer, while the earlier equivalent legal measure applied to all fixed-term contracts of employment, even where the worker concluded a single fixed-term employment contract, under which, in fact, the worker was to provide services to meet “fixed and permanent” (rather than temporary, exceptional or urgent) requirements, and

(b) where, for the purpose of protecting fixed-term workers and preventing abuse within the meaning of the Framework Agreement on fixed-term work, the legal measure in question applying the Framework Agreement provides, as a legal consequence, for fixed-term contracts thereafter (ex nunc) to be treated as contracts of indefinite duration, whereas the earlier equivalent legal measure makes provision for the treatement of fixed-term contracts of employment as contracts of indefinite duration from the time when they were originally concluded (ex tunc)?

(4) If Question 1 is answered in the affirmative, where an equivalent legal measure within the meaning of clause 5(1) of the Framework Agreement on fixed-term work, which forms an integral part of Directive 1999/70, already existed in the national legal order before that directive entered into force, as in the case of Article 8(3) of Law No 2112/1920 at issue in the main proceedings, is the choice made by the Greek legislature, in transposing the above directive into Greek law,

– first, to exclude the said cases of abuse in which the worker has concluded a single fixed-term contract, under which, in fact, the worker was to provide services to meet “fixed and permanent” (rather than temporary, exceptional or urgent) requirements, from the scope of protection of the above Presidential Decree No 164/2004, and,

– second, not to enact a similar measure establishing legal consequences specific to the case, affording to workers in such cases of abuse protection over and above the general protection which is provided as standard under general Greek employment law whenever work is provided under an invalid contract, irrespective of whether or not there has been abuse within the meaning of the Framework Agreement, and which includes a claim on the part of the worker to payment of his wages and severance pay, regardless of whether or not he worked under a valid contract,

an unacceptable reduction in the general level of protection afforded to fixed-term workers under national law within the meaning of clause 8(1) and (3) of the Framework Agreement, bearing in mind

(a) that the obligation to pay wages and severance pay is provided for under national law for all employment relationships and is not intended specifically to prevent abuse within the meaning of the Framework Agreement, and

(b) that the legal consequence of the application of the earlier equivalent legal measure is that a (single) fixed-term contract of employment is recognised as a contract of indefinite duration?

(5) If all the above questions are answered in the affirmative, should the national court, in interpreting national law in accordance with Directive 1999/70, disapply the provisions of the legal measure which are not compatible with it, but which were adopted by reason of the application of the Framework Agreement and result in a reduction in the general level of protection afforded to fixed-term workers under national law, such as those in Presidential Decree No 164/2004, which tacitly and indirectly (but clearly) deny the relevant protection in cases of abuse when the worker has concluded a single fixed-term contract of employment under which, in fact, he is to provide services to meet “fixed and permanent” (rather than temporary, exceptional or urgent) requirements and apply, instead, an equivalent legal measure which existed before the directive entered into force, such as Article 8(3) of Law No 2112/1920?

(6) If the national court finds that a provision (in this case Article 8(3) of Law No 2112/1920) that constitutes an equivalent legal measure within the meaning of clause 5(1) of the Framework Agreement on fixed-term work, which is an integral part of Directive 1999/70, is applicable in principle to a dispute over fixed-term work and, on the basis of that provision, the finding that even a single contract of employment was concluded on a fixed-term basis for no objective reason relating to the nature, type or features of the work performed means that the contract must be recognised as a contract of employment of indefinite duration, then

(a) is it compatible with Community law for a national court to interpret and apply national law to the effect that the fact that a legal provision governing employment under a fixed-term contract of employment in order to meet seasonal, periodic, temporary, exceptional or additional social needs (in this case Law No 3250/2004) was used as the legal basis for concluding a fixed-term contract constitutes an objective reason in all cases for concluding such contracts, even though the requirements covered were, in fact, fixed and permanent, and

(b) is it compatible with Community law for a national court to interpret and apply national law to the effect that a provision prohibiting the conversion of fixed-term contracts of employment in the public sector to contracts of indefinite duration must be construed as an absolute prohibition in any circumstance on converting a fixed-term employment contract or relationship in the public sector to an employment contract or relationship of indefinite duration, even if it was wrongfully concluded as a fixed-term contract, that is to say, when the requirements met were, in fact, “fixed and permanent”, and that the national court has no discretion in such cases to make a finding as to the true character of the legal employment relationship at issue and correctly categorise it as a contract of indefinite duration? Alternatively, should the prohibition in question be restricted solely to fixed-term contracts of employment which were, in fact, concluded in order to meet temporary, unforeseen, urgent, exceptional or similar types of special requirements and not to cases in which they were, in fact, concluded in order to meet “fixed and permanent” requirements?’

B – Case C‑379/07

34. By order of 20 July 2007, in Case C‑379/07, the referring court stayed proceedings and referred the following questions to the Court of Justice for a preliminary ruling:

‘(1) Are clause 5 and clause 8(1) and (3) of the Framework Agreement on fixed-term work which forms an integral part of Directive 1999/70 to be interpreted as meaning that Community law (by reason of the application of the said Framework Agreement) precludes a Member State from adopting measures,

(a) where an equivalent legal measure within the meaning of clause 5(1) of the Framework Agreement already existed under national law before the directive entered into force, and

(b) where the measures adopted in order to apply the Framework Agreement reduce the general level of protection afforded to fixed-term workers under national law?

(2) If Question 1 is answered in the affirmative, where there is an equivalent legal measure under national law, within the meaning of clause 5(1) of the Framework Agreement, which existed before Directive 1999/70 entered into force, such as Article 8(3) of Law No 2112/1920 at issue in the main proceedings, is the adoption of a legal measure by reason of the application of the Framework Agreement, such as Article 11 of Presidential Decree No 164/2004 at issue in the main proceedings, an unacceptable reduction in the general level of protection afforded to fixed-term workers under national law within the meaning of clause 8(1) and (3) of the Framework Agreement:

(a) where the legal measure in question applying the Framework Agreement was adopted after the time-limit for transposing Directive 1999/70 had elapsed, but only fixed-term employment contracts and relationships which were in effect before its entry into force or had expired within a certain period before its entry into force but after the time-limit for transposing the directive had elapsed fall within its temporal scope, whereas the equivalent legal measure which already existed is not subject to temporal restrictions on its scope of application and covers all fixed-term employment contracts which had been concluded, were in effect or had expired when Directive 1999/70 came into force and the time-limit for its transposition had elapsed;

(b) where fixed-term employment contracts or relationships only fall within the scope of application of the legal measure in question applying the Framework Agreement if they can be regarded as successive within the meaning of that measure, satisfying the cumulative requirements:

(i) that there is a maximum period of three months between them;

(ii) that they extend for a total of at least 24 months before the measure in question enters into force, irrespective of the number of contract renewals or that, on the basis of those renewals, there has been a minimum total period of work of 18 months over an overall period of 24 months from the original contract, provided that there are at least three renewals since the original contract, whereas the existing equivalent legal measure does not lay down such conditions but covers all fixed-term (successive) employment contracts, irrespective of a minimum total period of work and a minimum number of contract renewals;

(c) where, for the purposes of protecting fixed-term workers and preventing abuse within the meaning of the Framework Agreement on fixed-term work, the legal measure in question applying the Framework Agreement provides, as a legal consequence, for fixed-term contracts thereafter (ex nunc) to be treated as contracts of indefinite duration, whereas the earlier equivalent legal measure makes provision for the treatment of fixed-term contracts of employment as contracts of indefinite duration from the time when they were originally concluded (ex tunc)?

(3) If Question 1 is answered in the affirmative, where an equivalent legal measure within the meaning of clause 5(1) of the Framework Agreement on fixed-term work, which forms an integral part of Directive 1999/70, already existed in the national legal order before that directive entered into force, as in the case of Article 8(3) of Law No 2112/1920 at issue in the main proceedings, is the adoption of a legal measure by reason of the application of the Framework Agreement, such as Article 7 of Presidential Decree No 164/2004 at issue in the main proceedings, an unacceptable reduction in the general level of protection afforded to fixed-term workers under national law within the meaning of clause 8(1) and (3) of the Framework Agreement, when that provides, as the sole means of protection of fixed-term workers from abuse, for an obligation on the part of the employer to pay wages and severance pay where workers have wrongfully been employed under successive fixed-term employment contracts, bearing in mind

(b) that the legal consequence of the application of the earlier equivalent legal measure is that successive fixed-term contracts of employment are recognised as a contract of indefinite duration?

(4) If all the above questions are answered in the affirmative, should the national court, in interpreting national law in accordance with Directive 1999/70, disapply the provisions of the legal measure which are not compatible with it, but which were adopted by reason of the application of the Framework Agreement and result in a reduction in the general level of protection afforded to fixed-term workers under national law, such as Articles 7 and 11 of Presidential Decree No 164/2004, and apply instead an equivalent legal measure which existed before the directive entered into force, such as Article 8(3) of Law No 2112/1920?

(5) If the national court finds that a provision (in this case Article 8(3) of Law No 2112/1920) that constitutes an equivalent legal measure within the meaning of clause 5(1) of the Framework Agreement on fixed-term work, which is an integral part of Directive 1999/70, is applicable in principle to a dispute over fixed-term work and, on the basis of that provision, the finding that successive contracts of employment were concluded as a fixed-term contract for no objective reason relating to the nature, type or features of the work performed means that the contracts must be recognised as a contract of employment of indefinite duration, then

(a) is it compatible with Community law for a national court to interpret and apply national law to the effect that the fact that a legal provision governing employment under a fixed-term contract of employment in order to meet seasonal, periodic, temporary or exceptional needs was used as the legal basis for concluding a fixed-term contract constitutes an objective reason in all cases for concluding such contracts, even though the requirements covered were, in fact, fixed and permanent, and

C – Case C‑380/07

35. By order of 23 July 2007, in Case C‑380/07, the referring court stayed proceedings and referred the same questions to the Court of Justice for a preliminary ruling as it had in Case C‑379/07. (31)

D – Procedure before the Court

36. By order of the President of the Court of 12 November 2007, Cases C‑378/07, C‑379/07 and C‑380/07 were joined for the purposes of the written and oral procedure and the judgment.

37. In the proceedings before the Court, the plaintiffs in the three sets of main proceedings, the Greek Government and the Commission of the European Communities have made written and oral submissions. The defendants in the three sets of main proceedings and the Italian Government have submitted written observations.

V – Admissibility of the references for a preliminary ruling

38. The written submissions of certain parties to the proceedings express doubts as to the admissibility of the questions referred.

A – Existence of a general controversy concerning Greek law

39. The bitter controversy concerning the applicability and interpretation of particular provisions of Greek domestic law, in particular, Article 8(3) of Law No 2112/1920, has led the Greek Government to doubt the admissibility of the questions referred.

40. I do not share those doubts. The description of the national legal framework provided in the orders for reference is sufficiently clear for the Court to hand down a ruling which is of use to the national court. In answering questions referred, the Court has to base its response simply on that information concerning national law supplied by the national court, since it is not for the Court to give a ruling on the interpretation of provisions of national law or to decide whether the interpretation given by the national court of those provisions is correct. (32) Thus, the fact that the submissions made by various parties do not coincide with the legal interpretation taken by the national court does not affect the admissibility of the references for a preliminary ruling.

B – No multiple use of fixed-term contracts in Case C‑378/07

41. In addition, the Greek Government and the Commission point to the fact that Case C‑378/07 simply concerns the single use of fixed-term employment relationships, whereas the Framework Agreement addresses abuse arising from the multiple use of fixed-term employment relationships. Accordingly, both parties doubt that an answer to all, or at any rate some, of the questions referred in Case C‑378/07 would be of any use to the national court.

42. Those doubts, too, are unfounded. The fact should not be overlooked that the questions referred in Case C‑378/07, as with the questions referred in the two other cases, approach the issue from the perspective of the prohibition of regression (reduction in protection) laid down in clause 8(3) of the Framework Agreement. Neither the Framework Agreement nor the Court’s previous case-law establish beyond doubt that such prohibition on reducing the protection afforded to workers applies only in relation to the multiple use of fixed-term employment relationships. In those circumstances, the questions referred in Case C‑378/07 do not appear at any rate to be manifestly unnecessary for a decision in the main action. In such a case, the Court is bound to give a ruling on the questions submitted concerning the interpretation of Community law. (33)

C – Inapplicability of the Greek transitional provisions (Article 11 of Presidential Decree No 164/2004) in Cases C‑379/07 and C‑380/07

43. Finally, the Italian Government considers the second question in Cases C‑379/07 and C‑380/07 to be hypothetical and, accordingly, inadmissible. In support of that view, it argues that the possibility established in the transitional provisions of Article 11 of Presidential Decree No 164/2004 to convert fixed-term employment contracts to such of indefinite duration is inapplicable to the facts of the main action.

44. I am not persuaded by this view. Admittedly, the plaintiffs in the main proceedings in Cases C‑379/07 and C‑380/07 appear, in fact, to be outside the scope of application of the transitional provision established in Article 11 of Presidential Decree No 164/2004. However, the national court’s second question in both those cases aims precisely to establish whether exclusion of workers such as the plaintiffs from the scope of that transitional provision was lawful. It has to be resolved whether by reason of Community law those workers, too, are entitled to benefit from the transitional provision thus establishing the possibility for the conversion of their fixed-term contracts to such of indefinite duration.

D – Interim conclusion

45. The three references for a preliminary ruling are therefore admissible in their entirety.

VI – Substantive appraisal of the questions referred

46. In submitting its long and cumbersomely worded set of questions, the referring court is essentially seeking guidance on whether national legislation such as that in force in Greece is compatible with the Framework Agreement on fixed-term work. In particular, the Monomeles Protodikio Rethimnis seeks to ascertain whether the prohibition of regression established by clause 8(3) of the Framework Agreement is infringed as a result of Presidential Decree No 164/2004 which in relation to the public sector departs from the regime previously applicable under domestic law, specifically, the possibility established by Article 8(3) of Law No 2112/1920 to convert fixed-term employment contracts to contracts of indefinite duration or to interpret them as such.

47. In that regard, the references for a preliminary ruling are constructed on the premiss that Article 8(3) of Law No 2112/1920 remained in force at the time of the transposition of Directive 1999/70, that the provision applied, in fact, both in the private and the public sectors (34) and that it provided the legal basis for the conversion of fixed-term employment contracts to contracts of indefinite duration or for their interpretation as such. Admittedly, that is all a matter of considerable dispute between the parties to the present proceedings. However, as I have already stated, from the Court’s perspective, the account of national law supplied by the referring court is definitive. (35) Correspondingly, I have developed my proposed reply to the different questions referred on the basis that the Monomeles Protodikio Rethimnis is correct in the presumptions it makes concerning the scope and content of Article 8(3) of Law No 2112/1920.

48. In order to simplify matters, I propose not to answer the questions referred in the order adopted by the national court, but to consolidate and group them by topic. I shall begin with those questions which concern in general terms the scope of the prohibition of regression and the meaning of the concept of ‘equivalent legal measures’ (see Section A below); thereafter I shall turn to the questions concerning the compatibility with the Framework Agreement of legislation such as that applicable in Greece (see Section B below), before addressing the consequences of any infringement of the Framework Agreement (see Section C below).

A – Questions on the scope of the prohibition of regression and the meaning of the concept of ‘equivalent legal measures’

49. The scope of the prohibition of regression and the meaning of the concept of ‘equivalent legal measures’ are issues addressed by the first and second questions in Case C‑378/07 and the first question in Cases C‑379/07 and C‑380/07 and will be considered together in the following analysis.

1. Residual Member State discretion on transposition where ‘equivalent legal measures’ exist

50. Clause 5(1) of the Framework Agreement imposes an obligation on Member States to introduce particular measures to prevent abuse arising from the use of successive fixed-term employment contracts or relationships ‘where there are no equivalent legal measures to prevent abuse’.

51. In this context, the referring court seeks in substance to ascertain the residual discretion available to a Member State in the transposition of Directive 1999/70 if its national law already contains ‘equivalent legal measures’. The basis for this question is the presumption of the national court that Article 8(3) of Law No 2112/1920 must be regarded as such an equivalent legal measure – a presumption which is contested but on which, none the less, the references for a preliminary ruling definitively rest in their entirety.

a) The concept of an equivalent legal measure

52. The Framework Agreement does not define the concept of an equivalent legal measure. Thus, in principle, any rule of national law can fill that role. Given the objective of the Framework Agreement to prevent abuse arising from the use of successive fixed-term employment contracts or relationships, it follows simply that such rule must contribute effectively to the prevention of abuse.

53. For a national provision to be recognised as an equivalent legal measure, it is neither necessary that it was enacted specifically to prevent abuse nor must its scope be limited to successive fixed-term employment contracts or relationships. Rather, it suffices that the scope and content of the provision are at least capable of contributing to the effective prevention of abuse arising from the use of successive fixed-term employment contracts or relationships.

54. The mere fact that a provision such as Article 8(3) of Law No 2112/1920 does not differentiate between the single and multiple use of a fixed-term employment relationship but apparently may apply even on the first use of a fixed-term contract does not preclude the categorisation of such provision as an equivalent legal measure for the purposes of clause 5(1) of the Framework Agreement. As I have stated, the critical factor is simply whether having regard to the provision’s scope and content it is capable of contributing effectively to the prevention of abuse arising from the use of successive fixed-term contracts or relationships.

55. That is for the national court to assess in detail. In so doing, it will have to grapple with the vehemently different interpretations advanced in argument before the Court; whereas the plaintiffs in the main proceedings consider the possibility to convert fixed-term employment contracts to contracts of indefinite duration or to interpret them as such to have a deterrent effect, the Greek Government disputes the existence of such an effect in relation to the public sector arguing that in that sector the economic burden resultant on the conversion of employment contracts falls on society at large and thus, unlike in the private sector, does not impact on an individual employer.

b) Residual Member State discretion on transposition

56. Even in the case that equivalent legal measures for the prevention of abuse exist, Member States are not deprived of all discretion in the transposition of Directive 1999/70. Clause 5(1) of the Framework Agreement cannot be interpreted as meaning that domestic employment law has been frozen in its prevailing state and may not be amended thereafter. Instead, the provision simply makes clear in the framework of transposing Directive 1999/70 that Member States do not have to introduce new measures to prevent abuse, if that can be effectively achieved on the basis of existing national provisions. Thus, it is left to the discretion of the Member States whether to introduce one or more of the measures envisaged in clause 5(1) of the Framework Agreement or, instead, to rely on existing equivalent legal measures.

57. Correspondingly, Member States continue to retain the freedom to introduce measures in the area of fixed-term work provided that such rules satisfy all Community requirements. Even the introduction of a completely new set of national rules on fixed-term work remains lawful provided that such scheme ensures the effective prevention of abuse (clause 1(b) in conjunction with clause 5(1) of the Framework Agreement) and respects the prohibition of regression (clause 8(3) of the Framework Agreement) and the remainder of Community law.

c) Interim conclusion

58. Therefore, in summary, it can be concluded:

Even where for the purposes of clause 5(1) of the Framework Agreement on fixed-term work annexed to Directive 1999/70 national law already contains equivalent legal provisions to prevent abuse, it remains open to Member States to introduce measures in the area of fixed-term work provided that such rules satisfy all Community requirements.

2. The prohibition of regression

59. In accordance with clause 8(3) of the Framework Agreement, implementation of that agreement may not constitute valid grounds for reducing the general level of protection afforded to workers in the field of the agreement. That prohibition is commonly referred to as a prohibition of regression.

a) The material scope of the prohibition of regression

60. Specifically by its second question in Case C‑378/07, the referring court seeks in substance to establish whether the prohibition of regression applies only to the protection of workers in the case of abuse arising from the multiple use of fixed-term employment relationships or, however, also to a reduction in the protection afforded to workers in the case of abuse arising from the single or first use of a fixed-term employment relationship. Underlying that question is the fact that the single or first use of fixed-term employment relationships appears not to be within the scope of Presidential Decree No 164/2004.

61. The prohibition of regression prohibits a reduction in the general level of protection afforded to workers in the field of the Framework Agreement, which is defined in clause 2 of the agreement. According to clause 2(1) of the Framework Agreement, the agreement covers fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State. Neither clause 2(1) nor clause 2(2) provides any grounds on which to restrict the scope of the Framework Agreement to workers with successive fixed-term employment relationships. Nor may such restriction be derived from the definition of fixed-term worker in clause 3(1) of the Framework Agreement.

62. Admittedly, the obligation imposed by the specific provisions of clause 5(1) (in conjunction with clause 1(b)) of the Framework Agreement is limited to a requirement that Member States take particular measures to prevent abuse arising from the use of successive fixed-term employment contracts or relationships. (41) However, that in no way implies that all the other provisions of the Framework Agreement, in particular the prohibition of regression contained in clause 8(3), are also only limited to successive fixed-term employment contracts or relationships. That can clearly be seen from the definitions of the material and personal scope of the Framework Agreement set out in clauses 2(1) and 3(1) of the agreement.

63. The scope of the Framework Agreement in general and that of the prohibition of regression in particular cannot be interpreted restrictively. The purpose of the Framework Agreement is to contribute towards a better balance between flexibility in working time and security for workers. Fundamental social policy objectives of the Community are thereby expressed, such as are laid down in particular in the first paragraph of Article 136 EC, especially the improvement of living and working conditions and ensuring proper social protection. The same objectives are alluded to also in the preambles to the EU Treaty and to the EC Treaty and in the Community Charter of Fundamental Social Rights for Workers and the European Social Charter. They support the view that the principles and prohibitions established by the Framework Agreement should be construed as broadly as possible.

64. Given that context, the prohibition of regression also must apply if a Member State decides to reduce its hitherto more favourable system of worker protection to the mandatory minimum level established by the Framework Agreement. Every reduction in the general level of protection afforded to workers in relation to fixed-term work has to respect the requirements resulting from clause 8(3) of the Framework Agreement.

65. Thus, if the domestic law of a Member State protects workers not only in the case of multiple use but also in the case of abuse arising from the single or first use of a fixed-term employment contract or relationship, the prohibition of regression established by clause 8(3) of the Framework Agreement applies also to that protection.

66. For the sake of completeness, I wish to add that clause 8(3) of the Framework Agreement does not apply only in the case of a reduction to the protection affected to workers established by way of ‘equivalent legal measures’ within the meaning of clause 5(1) of the Framework Agreement. Whilst the referring court and some of the parties appear to assume such a reciprocity, neither the wording nor the purpose or context of clause 8(3) points to a restriction of that kind on its material scope. Rather, the prohibition of regression applies to the entire protection which national law affords to fixed-term workers regardless of whether it exceeds or, indeed, falls below the standard which clause 5(1) demands in relation to an equivalent legal measure for the prevention of abuse.

b) The content of the prohibition of regression

67. However, the broad material scope of clause 8(3) of the Framework Agreement, as I outlined immediately above, stands in contrast to its relatively modest substantive content. In content terms, the prohibition of regression requires simply that implementation of the Framework Agreement cannot constitute valid grounds for reducing the general level of protection afforded to workers. From that, two propositions result.

68. First, reduction in the protection which workers are guaranteed in the sphere of fixed-term contracts is not prohibited as such by the Framework Agreement; rather such reduction remains permissible where it is in no way connected to the implementation of that agreement. Thus, the prohibition of regression established by clause 8(3) does not constitute a standstill clause imposing an absolute prohibition on reducing the level of protection existing at the time of the transposition of Directive 1999/70. The Member States and social partners remain entitled to reach their own legislative or collectively agreed decisions in the field of fixed-term work; those decisions must simply be reached on a transparent basis, independently of the implementation of the Framework Agreement, and self-evidently may not result in an infringement of other rules of Community law and, in particular, in any reduction in the level of protection below the minimum established by the Framework Agreement.

69. Second, the prohibition of regression established by clause 8(3) of the Framework Agreement relates only to a reduction in the general level of protection afforded to workers in the field of fixed-term work. Thus, the prohibition of regression does not preclude the abolition or weakening of a particular measure of worker protection, unless, that is, such action reduces the level of protection of fixed-term workers as a whole. The possibility cannot be excluded that a measure reducing the level of worker protection, by reference to the general level of protection, is only of marginal importance or that it accompanies other measures increasing the level of protection which offset its effects, thus resulting in an overall outcome of no reduction in the general level of protection.

70. Applying that reasoning to a case such as the present, the following should be noted.

71. The question of whether the abrogation of Article 8(3) of Law No 2112/1920 – emphasised by the referring court – took effect in relation to the public sector prior to the transposition of Directive 1999/70 or only in the course of that transposition cannot be resolved definitively on the basis of the information on the domestic legal framework available in this case. However, it is clear in relation to the Greek public sector that Law No 2190/1994 had already established a prohibition on the conversion of fixed-term employment contracts to such of indefinite duration. That circumstance suggests that the foundation, at any rate, for the abrogation of Article 8(3) of Law No 2112/1920 in relation to the public sector was laid long before the entry into force of Directive 1999/70 and, thus, that abrogation was based on an independent decision of the Greek legislature unconnected to the transposition of Directive 1999/70.

72. However, in all cases, abrogation of Article 8(3) of Law No 2112/1920 only infringes the prohibition of regression if that action is sufficiently significant as to result in a reduction in the general level of protection afforded to workers in the field of fixed-term work. That matter is for the national court to assess. In the course of that examination, it must consider also whether other measures improving worker protection offset the abrogation of Article 8(3) of Law No 2112/1920.

73. In that connection, no significance attaches to the circumstance that some of the amendments to Greek law disputed by the parties – in particular, insertion of the new Article 103(8) of the Greek Constitution – were effected during the period prescribed for the transposition of Directive 1999/70. Although during the period prescribed for transposition Member States may not seriously jeopardise the realisation of the objectives which a directive pursues, that general prohibition on frustrating the objectives of a directive cannot be interpreted as imposing requirements which are any more extensive than those resulting from the specific rules established by the Framework Agreement, in particular, the prohibition of regression.

c) Interim conclusion

74. The following interim conclusion can therefore be drawn:

The scope of the prohibition of regression established by clause 8(3) of the Framework Agreement on fixed-term work is not restricted to the protection of workers against abuse arising from the use of successive fixed-term employment contracts or relationships. A national provision which merely abrogates or weakens a specific measure of worker protection does not fall within the scope of the prohibition established by clause 8(3) of the Framework Agreement on fixed-term employment contracts unless that measure results in an overall reduction in the general level of protection afforded to fixed-term workers.

B – Questions on the compatibility with the Framework Agreement of legislation such as that adopted by Greece

75. The questions considered in the following analysis (third, fourth and sixth questions in Case C‑378/07 and second, third and fifth questions in Cases C‑379/07 and C‑380/07) concern specifically the compatibility with the Framework Agreement of legislation such as Greek Presidential Decree No 164/2004.

1. The prohibition of regression and sanctions for the misuse of fixed-term employment relationships

76. By its third and fourth questions in Case C‑378/07 and its second and third questions in Cases C‑379/07 and C‑380/07, in substance, the referring court seeks to ascertain whether an amendment of the law as effected in Greece in relation to the public sector infringes the prohibition of regression established in clause 8(3) of the Framework Agreement. In so doing, the referring court seeks to compare the level of worker protection in the area covered by Presidential Decree No 164/2004 with that in the area covered by Article 8(3) of Law No 2112/1920.

77. Ultimately, the matter at issue is whether in withdrawing the possibility which previously existed to convert, ex tunc, fixed-term employment contracts to contracts of indefinite duration or in considerably tightening the requirements, in the case of existing contracts, for the exercise of that possibility and also in restricting that operation merely to ex nunc effects (Articles 5 to 7 and 11 of Presidential Decree No 164/2004), the Greek legislature contravened the prohibition of regression. Further, Case C‑378/07 specifically raises the question whether the prohibition of regression precluded the Greek legislature’s action in excluding from the protective scope of Presidential Decree No 164/2004 the single or first use of fixed-term contracts in their entirety.

78. The Court cannot provide a final response to those questions, since to do so requires an interpretation of national law, a task falling exclusively within the competence of the national court. However, the Court can give the national court comprehensive guidance on the interpretation and application of the Community prohibition of regression and the other requirements of the Framework Agreement.

79. First, it must be stressed that the contested amendment to Greek law introduced by Presidential Decree No 164/2004 concerns only one specific measure for the protection of fixed-term workers, that is, the possibility to convert fixed-term contracts of employment to contracts of indefinite duration or to interpret them as such.

80. However, for the purposes of clause 8(3) of the Framework Agreement, the issue of regression arises, as I have already observed, only where an amendment to the applicable legislation results in a reduction in the general level of protection afforded to workers in the field of fixed-term work. In contrast, the prohibition of regression does not preclude the abrogation or weakening of a specific worker protection measure, unless such act results in an overall reduction in the level of protection afforded to workers.

81. Admittedly, for the public sector, Presidential Decree No 164/2004 greatly restricts the possibility to convert fixed-term employment contracts to such of indefinite duration and in relation to future contracts withdraws that possibility completely. In the assessment of the national court, in cases of misuse, national law no longer provides for a sanction equivalent to conversion. Specifically, the national court considers the payment of wages and a severance allowance (Article 7 of Presidential Decree No 164/2004) always to be required regardless of any misuse and not to constitute a specific penalty for misuse. In addition, the plaintiffs in the main proceedings indicate that criminal law and disciplinary actions against the person responsible for instituting the misuse scarcely have any practical relevance in Greece.

82. Such a situation gives rise to the inference that domestic law, following the entry into force of Presidential Decree No 164/2004, contains sanctions penalising the misuse of fixed-term work in the public sector which are less effective than was the position under the previous legal regime identified by the national court.

83. However, that does not necessarily imply a reduction in the general level of protection afforded to workers as envisaged by clause 8(3) of the Framework Agreement in relation to fixed-term work.

84. First, the reform introduced by Presidential Decree No 164/2004 does not concern fixed-term workers in Greece in general, but only a specific group of those workers, that is, fixed-term workers in the Greek public sector. In relation to the exclusion from the protective sphere of Presidential Decree No 164/2004 of the single or first use of a fixed-term employment contract, specifically contested in Case C‑378/07, only a subset of fixed-term work in the public sector is affected by that measure. That of itself points against the presumption of a reduction in the general level of protection afforded to workers in the field of fixed-term work.

85. Second, it is possible to offset a weakening of domestic law in the sphere of sanctions through the adoption of new preventive measures as envisaged in clause 5(1) of the Framework Agreement. In that vein, Articles 5 and 6 of Presidential Decree No 164/2004 introduce various new measures to prevent the misuse of fixed-term work in the public sector: a requirement for objective reasons, provisions on the maximum total duration of successive fixed-term employment contracts or relationships and on the number of renewals of such contracts or relationships.

86. Such new regime reflects a shift in emphasis from the sanctioning to the prevention of abuse, a development which must not necessarily result, for the purposes of clause 8(3) of the Framework Agreement, in a reduction in the general level of protection afforded to workers. In any event, in the Framework Agreement, the European social partners also placed their emphasis on the prevention of abuse, in particular, in relation to the use of successive fixed-term employment contracts or relationships. That is apparent not least from clause 1(b) which mentions the establishment of a framework intended to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

87. Clause 5 of the Framework Agreement is further evidence of the fact that from the Community perspective the main focus is on the prevention of abuse: according to clause 5(1), unless equivalent legal measures already exist, Member States must introduce one or more of the measures to prevent abuse as are provided for in that provision. However, there is no requirement to have specific sanctions for misuse. Even the sanction of conversion expressly mentioned in clause 5(2)(b) of the Framework Agreement, by which fixed-term employment contracts or relationships are deemed to be of indefinite duration, is by reason of the introductory qualification ‘where appropriate’ at the discretion of Member States: domestic law may include such form of sanction; however, it may rely equally on other sanctions, provided always that overall effective measures exist with which to prevent and, where relevant, punish misuse.

88. In the light of the foregoing, I take the view in a case such as the present that, for the purposes of clause 8(3) of the Framework Agreement, a reduction in the general level of protection afforded to fixed-term workers cannot necessarily be presumed.

89. However, each individual amendment to the protection afforded to workers in the field of fixed-term work, independently of its compliance with the prohibition of regression, in addition, must comply with the other requirements of the Framework Agreement and the rest of Community law. Thus, even if Presidential Decree No 164/2004 has not resulted in a reduction in the general level of protection afforded to fixed-term workers within the meaning of clause 8(3) of the Framework Agreement, the weakening, effected by that presidential decree, of the sanctions applying to the misuse of fixed-term work may in no circumstances result in protection for fixed-term workers which falls below the minimum standards prescribed by Community law in that regard.

90. Even though the Framework Agreement, as described immediately above, places the emphasis in clause 5 on the prevention of abuse, none the less, Member States are obliged to provide for appropriate sanctions to address cases of actual misuse. In that regard, although it is incumbent on Member States or, where applicable, the social partners to define and shape the relevant sanctions, it must be ensured, none the less, that infringements of Community law are penalised under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the sanction effective, proportionate and dissuasive.

91. Thus, where misuse 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 Community law. On that issue, the Framework Agreement, in particular, clause 5(2)(b), indicates simply that the conversion of fixed-term employment contracts or relationships to such of unlimited duration constitutes a conceivable sanction; that does not, however, preclude the possibility of other forms of penalty.

92. In determining the effectiveness of the penalties established in relation to the Greek public sector in Article 7 of Presidential Decree No 164/2004, the national court will have to examine, inter alia, whether a genuine incentive exists on the part of the workers concerned to exercise and enforce the rights which Community law confers on them. For example, where fixed-term employment relationships are misused, the workers concerned might be tempted, none the less, to tolerate such misuse in the hope of continued public sector employment with its attendant social security cover. Fearing the denial of future employment contracts, even only on a fixed-term basis, certain workers might shy away from claiming their right to a severance allowance or denouncing those responsible for the misuse with a view to the instigation of disciplinary or criminal law measures.

93. To summarise, therefore:

The abolition or weakening of a sanction for the misuse of fixed-term employment contracts or relationships in relation to a particular category of fixed-term workers does not infringe clause 8(3) of the Framework Agreement on fixed-term work, if at the same time such effect is offset by the strengthening of measures intended to prevent misuse. None the less, in order to combat misuse, Member States are obliged to introduce or, as the case may be, maintain effective, proportionate and dissuasive sanctions.

2. The concept of ‘objective reasons’ for the purposes of clause 5(1)(a) of the Framework Agreement

94. By Question 6(a) in Case C‑378/07 and Question 5(a) in Cases C‑379/07 and C‑380/07, the referring court seeks guidance in interpreting the concept of ‘objective reasons’ for the purposes of clause 5(1)(a) of the Framework Agreement. In essence, the national court seeks to establish whether the mere fact that a legislative provision was used as authority for recourse to a fixed-term employment relationship is capable of constituting an objective reason for the purposes of the Framework Agreement, even if the requirements of that legislative provision were not satisfied.

95. At first sight, this question raises an issue already addressed in Adeneler. In that case, the Court held that 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 constitute adequate justification for recourse to that form of employment. Instead, national law must ensure that recourse to successive fixed-term employment contracts is justified by the presence of specific factors relating in particular to the activity in question and the conditions under which it is carried out.

96. However, in the present case, in fact, the national court is wholly unconcerned whether the provision authorising recourse to the employment relationships at issue here was too generalised or too abstract. Rather, it presumes that the perfectly detailed legislative requirements governing recourse to fixed-term work, in this case, simply were not observed. According to the national court, recourse was had to fixed-term work on the basis of provisions authorising its use ‘to meet seasonal, periodic, temporary, unforeseen or additional social needs’, whereas, in fact, it covered ‘fixed and permanent needs’.

97. In that regard, it must be observed at the outset that the national court alone has jurisdiction to interpret national law and to apply it in an individual case. However, it is for the Court to give guidance on the requirements of Community law, in the present case, in particular, on those of the Framework Agreement.

98. The Framework Agreement does not impose as a mandatory rule that use of fixed-term employment contracts or relationships should be based on objective reasons. Admittedly, the Framework Agreement presumes fixed-term work to be an exception and that the use of fixed-term employment contracts based on objective reasons constitutes a mechanism to prevent abuse. None the less, the Framework Agreement ultimately leaves it to the discretion of Member States which of the three measures mentioned in clause 5(1)(a) to (c) to introduce, provided that the measures adopted are binding and facilitate the effective prevention of abuse.

99. A Member State is therefore not necessarily required to introduce the first of the three possible measures mentioned in clause 5(1) of the Framework Agreement, that is, the requirement for renewals to be based on objective reasons. There is nothing to prevent a Member State from simply defining the maximum total duration of successive employment relationships or the maximum number of renewals of fixed-term employment relationships in order to prevent abuse, instead of defining objective reasons.

100. A fortiori, Member States are not obliged under the Framework Agreement to introduce a requirement that the first or single use of a fixed-term employment contract or relationship is based on objective reasons. Clause 5(1)(a) of the Framework Agreement is concerned simply with the definition of objective reasons capable of justifying the renewal of fixed-term employment contracts or relationships; in other words, it governs cases in which multiple use is made of fixed-term employment relationships.

101. However, if a Member State introduces the measure provided for in clause 5(1)(a) of the Framework Agreement and defines objective grounds which are, or ought to be, capable of justifying, at any rate, the renewal of fixed-term employment contracts or relationships, the third paragraph of Article 249 EC obliges it to exercise its discretion in conformity with the objectives of Directive 1999/70 and the Framework Agreement annexed thereto.

102. According to case-law, the definition of such objective reasons must be linked to precise and concrete circumstances characterising a given activity, which are capable, therefore, in that particular context of justifying the use of successive fixed-term employment contracts. Such circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and, further, 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.

103. The national provisions contained in Laws No 2190/1994, No 2527/1997 and No 3250/2004, which the referring court cites, establish, each using similar wording, the specific grounds on which fixed-term employment relationships may be concluded. As already mentioned, those consist in meeting seasonal or temporary needs (Article 21(1) of Law No 2190/1994), coping with additional requirements for the purposes of serving the public (Article 1 of Law No 3250/2004), not the meeting of fixed and permanent needs (Article 6(1) of Law No 2527/1997).

104. In essence, according to the information supplied by the referring court, the effect of those provisions cited and Greek case-law in general is to permit the public service to conclude fixed-term employment contracts only for the purposes of meeting temporary needs, not, however, for the purposes of meeting fixed and permanent needs.

105. Undoubtedly, an employer’s need which is merely of a temporary nature may for the purposes of clause 5(1)(a) of the Framework Agreement constitute an objective reason which, in principle, is apt to justify recourse to fixed-term employment relationships. That is particularly self-evident, for example, in the case of seasonal work and in carrying out specific projects limited both in period and substance, provided that such constitute a peak workload for the employer and do not result in ongoing work requirements.

106. However, if an employer’s temporary needs in that sense are defined by legislation to constitute an objective reason for having recourse to fixed-term work, all national authorities, including the public administration and the courts, must ensure in their respective fields of competence that precisely those provisions are applied in accordance with the requirements of Directive 1999/70 such that they can operate effectively in preventing misuse.

107. The objective to prevent misuse underlying clause 5(1)(a) of the Framework Agreement would be contradicted, if, in practice, the said provisions were inverted in their meaning and could serve as authority for recourse to fixed-term employment relationships even also in situations in which, in fact, such employment meets not an employer’s temporary needs but its fixed and permanent needs.

108. To summarise, therefore:

If in national legislation a Member State defines objective reasons for the purposes of clause 5(1)(a) of the Framework Agreement on fixed-term work, it is incumbent on national authorities in their respective fields of competence to ensure in all cases the application of that legislation in conformity with Directive 1999/70 in order to prevent, in an effective manner, abuse arising from the use of successive fixed-term employment contracts or relationships.

3. Prohibition on conversion of fixed-term employment relationships to relationships of indefinite duration in the Greek public sector

109. By Question 6(b) in Case C‑378/07 and Question 5(b) in Cases C‑379/07 and C‑380/07, in substance, the referring court wishes to ascertain whether an absolute prohibition in the public sector on the conversion of fixed-term employment contracts or relationships to such of indefinite duration is compatible with Community law.

110. Underlying that question is the prohibition in such terms which the Greek legislature introduced for the public sector, first, by Article 21 of Law No 2190/1994 and, second, by the newly inserted Article 103(8) of the Greek Constitution.

111. That prohibition, at any rate as set out in ordinary legislation in Article 21 of Law No 2190/1994, was already addressed by the Court in Adeneler. In that case, the Court held that the Framework Agreement precludes the application of national legislation which in the case of misuse, in the public sector alone, prohibits absolutely the conversion into an employment contract of indefinite duration of a succession of fixed-term contracts.

112. However, that finding in Adeneler applies expressly only ‘in circumstances such as those of the main proceedings’ which, in essence, may be summarised as follows:

– The dispute concerned a succession of fixed-term contracts which, in fact, were intended to meet ‘fixed and permanent needs’ of the employer and had therefore to be regarded as constituting an abuse.

– Those employment contracts covered the period between May 2001 and September 2003, that is, their terms expired prior to the entry into force of Presidential Decree No 164/2004.

– According to the information supplied to the Court in that case, domestic law did not include in the public sector, at any rate prior to Presidential Decree No 164/2004 entering into force, any other effective measure to prevent and, where relevant, punish the misuse of successive fixed-term contracts.

113. Given those particular circumstances it would be premature to conclude from Adeneler that the prohibition in the Greek public sector on the conversion to relationships of an indefinite duration of fixed-term relationships continues to contravene the Framework Agreement. Admittedly, in the present case, too, the referring court presumes the conclusion of fixed-term contracts with the plaintiffs in the main proceedings to constitute an abuse, as their employment met a fixed and permanent need. However, in addition, the national court will have to examine in detail whether the remaining circumstances of the main proceedings, in fact, can also be regarded as comparable to those giving rise to the judgment in Adeneler.

114. In particular, it is for the national court to determine whether Greek law has subsequently introduced other effective measures to prevent and, where relevant, sanction the misuse of successive fixed-term contracts. If, in fact, other effective measures to prevent and, where relevant, sanction the misuse of successive fixed-term contracts are now applicable, the Framework Agreement no longer precludes a public sector prohibition on conversion. In particular, such measures may comprise mandatory rules governing the duration and renewal of fixed-term contracts or relationships and establishing a right to compensation in the event of misuse.

115. In that connection, further reference must be had to Presidential Decree No 164/2004 which has meanwhile entered into force, containing, as I indicated earlier, various measures newly introduced to prevent and sanction the misuse of fixed-term work in the public sector: a requirement for objective reasons, provisions on the maximum total duration of successive fixed-term employment contracts or relationships and on the number of renewals of such contracts or relationships, as well as a right to a severance allowance and, where appropriate, criminal law and disciplinary penalties.

116. Neither Directive 1999/70 nor the Framework Agreement imposes a general obligation on Member States to provide for the conversion of fixed-term employment contracts into contracts of indefinite duration: whether misuse arises from the use of successive fixed-term contracts or from the single use of a fixed-term employment relationship, clause 5(2)(b) of the Framework Agreement prescribes no such general obligation of conversion; nor elsewhere in the Framework Agreement is such obligation to be found.

117. Nor does the Framework Agreement preclude Member States from treating abuse of fixed-term employment contracts or relationships differently according to whether those contracts or relationships were entered into with a private sector or public sector employer. The Framework Agreement itself expressly recognises ‘that ... detailed application [of the agreement’s principles and minimum requirements] needs to take account of the realities of specific national, sectoral and seasonal situations’. Those realities may include certain principles governing public service employment, for example, the ‘established post’ principle, the model of the established public servant and the requirement for success in a selection competition in order to be employed on an indefinite basis; principles which, naturally, must be applied in conformity with the rest of Community law.

118. To summarise, therefore:

The Framework Agreement on fixed-term work does not preclude national legislation prohibiting, in the public sector, the conversion of fixed-term employment relationships to relationships of indefinite duration, unless in the sector concerned national law does not include any other effective measure to prevent and, where relevant, punish the misuse of successive fixed-term contracts.

C – Consequences of any infringement of the Framework Agreement

119. By its fifth question in Case C‑378/07 and fourth question in Cases C‑379/07 and C‑380/07, the referring court seeks to ascertain the implications for the resolution of the dispute in the main proceedings which result from an infringement of Directive 1999/70 or the Framework Agreement annexed thereto. Specifically, those questions seek to establish whether as a matter of Community law the national court is obliged to ‘revive’ to a certain extent an earlier, allegedly more favourable provision such as Article 8(3) of Law No 2112/1920 and to resolve the dispute in the main proceedings on the basis of such provision.

120. According to established case-law, when applying domestic law national courts are bound to interpret that law, so far as possible, in the light of the wording and the purpose of a directive in order to achieve the result sought by it and thus to comply with the third paragraph of Article 249 EC.

121. Admittedly, the obligation on a national court to interpret domestic law in conformity with a directive is limited by general principles of law, particularly those of legal certainty and non-retroactivity; furthermore, that obligation cannot serve as the basis for an interpretation of national law contra legem.

122. Notwithstanding that qualification, the principle that national law must be interpreted in conformity with a directive none the less requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the directive in question is fully effective and achieving an outcome consistent with the objective pursued by it. Putting it another way, national courts are obliged to take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by Directive 1999/70 (see the first paragraph of Article 2 of Directive 1999/70) and remedies for the consequences of a Community law infringement. In that regard, they must make use to the full extent of their discretion under national law.

123. It is for the national court to examine whether and to what extent the domestic law applicable in the present case can be interpreted in the terms mentioned in conformity with the requirements of Directive 1999/70 and the Framework Agreement annexed thereto. Likewise, it is for the national court alone to determine the legal consequences of such an interpretation for the disputes at issue in the main proceedings. Ultimately, that includes resolving the question of whether in the disputes at issue in the main proceedings national provisions must be disapplied and in lieu thereof a provision such as Article 8(3) of Law No 2112/1920 may be applied instead.

124. If it is impossible to achieve the objective imposed by Directive 1999/70 and the Framework Agreement by construing domestic law in conformity with Community law, the defaulting Member State may be required (in accordance with Francovich and subject to the conditions laid down in that case) to compensate citizens in respect of any loss or damage caused by the failure properly to transpose Directive 1999/70.

125. Simply for the sake of completeness, I should like to point out that in the present case, notwithstanding the vertical relationship between workers and their public sector employers, there is no question of clauses 5 and 8(3) of the Framework Agreement having direct effect.

126. In relation to clause 5(1) of the Framework Agreement, the Court has expressly held already that the provision does not have direct effect. The same considerations apply a fortiori in relation to clause 5(2) which is phrased with even less precision and grants the Member States even greater discretion in its implementation than clause 5(1) does. The mere wording of the provision, with its introductory phrase ‘where appropriate’, indicates that Member States are under no obligation whatsoever to introduce any of the measures mentioned in clause 5(2)(a) and (b).

127. Nor is the prohibition of regression established in clause 8(3) of the Framework Agreement apt for direct applicability. That results less from the fact that the provision employs undefined legal terms such as ‘general level of protection afforded to workers’ but more from the fact that the provision’s purpose is not to grant individuals enforceable rights with which to defend their interests as workers. That follows, first, from the schematic position of the prohibition of regression in clause 8 of the Framework Agreement amidst ‘provisions on implementation’, which merely clarify the discretion retained by Member States and social partners in the field covered by the Framework Agreement. Second, however, that is evident from the actual substance of clause 8(3) of the Framework Agreement: ultimately, the provision does not prohibit a reduction in the general level of protection as such afforded to workers but merely precludes the competent national authorities from reducing the level of that protection under the cloak of implementing the Framework Agreement.

128. To summarise, therefore:

Within the scope of their obligation to interpret domestic law in conformity with directives, national courts are obliged to take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by Directive 1999/70 and remedies for the consequences of Community law infringements. In that regard, they must make use to the full extent of their discretion under national law.

VII – Conclusion

129. In the light of the above considerations, I propose that the Court should answer jointly the three references for a preliminary ruling submitted by the Monomeles Protodikio Rethimnis in the following terms:

(1) Even where for the purposes of clause 5(1) of the Framework Agreement on fixed-term work annexed to Directive 1999/70 national law already contains equivalent legal provisions to prevent abuse, it remains open to Member States to introduce measures in the area of fixed-term work provided that such rules satisfy all Community requirements.

(2) (a) The scope of the prohibition of regression established by clause 8(3) of the Framework Agreement on fixed-term work is not restricted to the protection of workers against abuse arising from the use of successive fixed-term employment contracts or relationships.

(b) A national provision which merely abrogates or weakens a specific measure of worker protection does not fall within the scope of the prohibition established by clause 8(3) of the Framework Agreement on fixed-term employment contracts unless that measure results in an overall reduction in the general level of protection afforded to fixed-term workers.

(c) The abolition or weakening of a sanction for the misuse of fixed-term employment contracts or relationships in relation to a particular category of fixed-term workers does not infringe clause 8(3) of the Framework Agreement on fixed-term work, if at the same time such effect is offset by the strengthening of measures intended to prevent misuse. None the less, in order to combat misuse, Member States are obliged to introduce or, as the case may be, maintain effective, proportionate and dissuasive sanctions.

(3) If in national legislation a Member State defines objective reasons for the purposes of clause 5(1)(a) of the Framework Agreement on fixed-term work, it is incumbent on national authorities in their respective fields of competence to ensure in all cases the application of that legislation in conformity with Directive 1999/70 in order to prevent, in an effective manner, abuse arising from the use of successive fixed-term employment contracts or relationships.

(4) The Framework Agreement on fixed-term work does not preclude national legislation prohibiting, in the public sector, the conversion of fixed-term employment relationships to relationships of indefinite duration, unless in the sector concerned national law does not include any other effective measure to prevent and, where relevant, punish the misuse of successive fixed-term contracts.

(5) Within the scope of their obligation to interpret domestic law in conformity with directives, national courts are obliged to take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by Directive 1999/70 and remedies for the consequences of Community law infringements. In that regard, they must make use to the full extent of their discretion under national law.

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martedì 28 febbraio 2012

Directive 1999/70/EC - The Angelidaki case: fixed-term work