26 January 2012 (*1)

‘Social policy — Directive 1999/70/EC — Clause 5(1)(a) of the Framework Agreement on fixed-term work — Successive fixed-term employment contracts — Objective reasons liable to justify the renewal of such contracts — National rules justifying the use of fixed-term contracts in cases of temporary replacement — Permanent or recurring need for replacement staff — Taking into account of all circumstances surrounding the renewal of successive fixed-term contracts’

In Case C-586/10,

REFERENCE for a preliminary ruling under Article 267 TFEU from the Bundesarbeitsgericht (Germany), made by decision of 17 November 2010, received at the Court on 15 December 2010, in the proceedings

Land Nordrhein-Westfalen,

composed of J.N. Cunha Rodrigues (President of the Chamber), U. Lõhmus, A. Rosas, A. Ó Caoimh (Rapporteur) and A. Arabadjiev, Judges,

Advocate General: N. Jääskinen,

Registrar: A. Impellizzeri, Administrator

having regard to the written procedure and further to the hearing on 9 November 2011,

after considering the observations submitted on behalf of:

—Bianca Kücük, by H. Rust and B. Jaeger, Rechtsanwälte,

—the Land Nordrhein-Westfalen, by T. Kade, Rechtsanwalt,

—the German Government, by T. Henze and N. Graf Vitzthum, acting as Agents,

—the Polish Government, by M. Szpunar, acting as Agent,

—the European Commission, by M. van Beek and V. Kreuschitz, acting as Agents,

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

gives the following

1This reference for a preliminary ruling concerns the interpretation of Clause 5(1)(a) of the Framework Agreement on fixed-term work, concluded on 18 March 1999 (‘the FTW Framework Agreement’), which is set out in the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43).

2The reference was made in proceedings between Ms Kücük and her employer, the Land Nordrhein-Westfalen (‘the Land’), concerning the validity of a series of fixed-term employment contracts between her and the Land.

Legal context

European Union legislation

3Recitals 7 to 9 of Directive 1999/70 state:

(7)Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8)Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9)Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

4Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

5Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b)biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

6Article 4 of Directive 1999/70 provides:

1.Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

2.Subject to Article 2(4), for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States shall make that determination through:

(a)a case-by-case examination;

(b)thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

3.Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

4.Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

5.The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a)where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b)where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

7Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

1.A description of the project, including in particular:

(a)a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b)a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

2.A description of the aspects of the environment likely to be significantly affected by the project.

3.A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

(a)the expected residues and emissions and the production of waste, where relevant;

(b)the use of natural resources, in particular soil, land, water and biodiversity.

4

ECLI:EU:C:2012:140

JUDGMENT OF 6. 3. 2025 – CASE C-41/24 WALTHAM ABBEY RESIDENTS ASSOCIATION

4.The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

8Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

9Recitals 11 and 29 of Directive 2014/52 state:

(11)The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29)When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

10Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

11Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a)all forms of deliberate capture or killing of specimens of these species in the wild;

(b)deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c)deliberate destruction or taking of eggs from the wild;

(d)deterioration or destruction of breeding sites or resting places.’

12Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

At the end of parental leave, workers shall have the right to return to the same job or, if that is not possible, to an equivalent or similar job consistent with their employment contract or employment relationship.

National legislation

Paragraph 14 of the German Law on part-time employment and fixed-term employment contracts (Gesetz über Teilzeitarbeit und befristete Arbeitsverträge) of 21 December 2000 (BGBl. 2000 I, p. 1966), as amended by Paragraph 1 of the Law of 19 April 2007 (BGBl. 2007 I, p. 538, ‘the TzBfG’), entitled ‘Possibility of limiting the duration of contracts’, provides:

(1)A fixed-term employment contract may be concluded if there are objective grounds for doing so. Objective grounds exist in particular where:

3.one employee replaces another;

In the event of invalidity of the fixed-term employment contract, it is to be reclassified as a contract of indefinite duration pursuant to Paragraph 16 of the TzBfG.

Paragraph 21(1) of the Law on parental leave and benefit (Gesetz zum Elterngeld und zur Elternzeit) of 5 December 2006 (BGBl. 2006 I, p. 2748), as amended, provides:

‘Objective grounds for a fixed-term employment contract exist where one employee is taken on to replace another for the duration of a prohibition on staff working under the Law on maternity protection [Mutterschutzgesetz], for the duration of parental leave, for the duration of leave taken to look after a child under a collective agreement, works agreement or an individual contract, or for a combination of such periods or part thereof.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

Ms Kücük was employed by the Land between 2 July 1996 and 31 December 2007 under a total of 13 fixed-term employment contracts. She was employed as a clerk in the court office of the civil procedural division of the Amtsgericht Köln (District Court, Cologne). The fixed-term employment contracts were always concluded because of temporary leave, including parental leave and special leave, having been granted to court clerks employed for an indefinite duration and served in each case to replace them.

By application lodged on 18 January 2008 before the Arbeitsgericht Köln (Labour Court, Cologne), the appellant in the main proceedings argued that her employment relationship was indefinite in nature and that her latest employment contract, concluded on 12 December 2006 and expiring on 31 December 2007, was therefore unlawful.

According to the appellant in the main proceedings, the conclusion of that fixed-term contract on the basis of point 3 of Paragraph 14(1) TzBfG, which refers to an objective reason, namely the replacement of another employee, was not justified. A total of 13 fixed-term employment contracts concluded successively and without interruption over a period of 11 years cannot, in any event, be deemed to be a response to a temporary need for replacement staff. The appellant in the main proceedings maintains that an interpretation and application of national law by which such ‘consecutive fixed terms’ are considered valid are incompatible with clause 5(1) of the FTW Framework Agreement. She accordingly asked the Arbeitsgericht Köln to hold that the employment relationship between the parties on the basis of the fixed-term contract concluded on 12 December 2006, for the period from 1 January to 31 December 2007, had not been terminated.

The Arbeitsgericht Köln dismissed the action brought by the appellant in the main proceedings as unfounded. The appeal brought by her before the Landesarbeitsgericht (Higher Labour Court) was also dismissed. The appellant in the main proceedings accordingly brought an action for ‘revision’ (appeal on a point of law) before the Bundesarbeitsgericht (Federal Labour Court).

Before the national courts, the Land argued that the fixed-term employment contract challenged by Ms Kücük was justified on the basis of point 3 of Paragraph 14(1) TzBfG. Fulfilment of the conditions required in order for the replacement of another employee to constitute an objective reason is unrelated to the number of fixed-term contracts successively concluded. The interpretation and application of the German rules in that manner is not contrary to clause 5(1) of the FTW Framework Agreement.

In its decision, the referring court explains, in respect of point 3 of Paragraph 14(1) TzBfG, that what characterises a replacement and remains inherent therein relates to the fact that the replacement is temporary and its objective is the performance of tasks by the substitute employee to satisfy a need for a limited period of time. That court further states that, under German law, the justification for using a fixed-term contract in cases where an employee is to be replaced lies in the fact that the employer is already in an employment relationship with an employee who is temporarily prevented from working and expects that employee to return to work. Hence the employer expects the staffing need to come to an end once the employee being replaced returns to work.

The referring court questions whether the need for replacement staff can be qualified as an objective reason under clause 5(1)(a) of the FTW Framework Agreement. It asks, first, whether the fact that that need is permanent or frequent and may also be met through the conclusion of contracts of indefinite duration might not rule out the possibility of a replacement constituting such an objective reason. Second, that court asks the Court for clarification as to whether and, if so, how, the national courts, in the context of the review they are bound to carry out of potentially abusive use of replacement of another employee as a reason justifying the conclusion of a fixed-term employment contract, must take account of the number and the duration of the fixed-term employment contracts concluded in the past with the same employee. It adds in that regard that, in recent case-law, the Bundesarbeitsgericht ruled out the possibility that the variable number of fixed-term contracts might intensify the judicial review of the scope of the objective reason.

In view of the foregoing, the Bundesarbeitsgericht decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(1)Does clause 5(1) of the [FTW Framework Agreement implemented by Directive 1999/70] preclude a national provision, which — like point 3 of Paragraph 14(1) [TzBfG] — provides that the renewal of fixed-term employment relationships is justified for objective reasons where one employee replaces another, from being interpreted and applied as meaning that there are also objective reasons where there is a permanent need for replacement staff although the need for replacement staff could also be met by the employee concerned being employed for an indefinite duration in order to ensure replacements arising from recurring unavailability of staff, whilst allowing the employer to decide anew in each case how it is to respond to a specific loss of staff?

(2)If the answer to the first question should be in the affirmative, does clause 5(1) of the [FTW Framework Agreement implemented by Directive 1999/70] preclude the interpretation and application of a national provision such as point 3 of Paragraph 14(1) TzBfG as set out in the first question, in the circumstances described in the first question, where the national legislature provides in a national provision such as Paragraph 21(1) of the Law on parental leave and benefit [as amended], that a fixed-term employment relationship with a replacement is justified, provided that a social-policy objective is pursued with a view to making it easier for employers to grant special leave and for employees to avail themselves thereof, inter alia for the purposes of protection of maternity or parenting?

The questions referred for a preliminary ruling

The first question

By its first question, the referring court asks, in essence, whether the need for temporary replacement staff provided for by national legislation, such as that at issue in the main proceedings, may constitute an objective reason under clause 5(1)(a) of the FTW Framework Agreement, whether that is also the case where that need for replacement staff is, in reality, permanent or recurring and might also be met through the hiring of an employee under a contract of indefinite duration and whether, in the assessment of the issue whether the renewal of fixed-term employment contracts or relationships is justified by objective reasons as referred to in that clause, account must be taken of the cumulative duration of the employment contracts or relationships of that kind concluded in the past with the same employer.

The Land submits that the temporary replacement of an employee comes within the objective reasons referred to in clause 5(1)(a) of the FTW Framework Agreement. The temporary absence of the employee to be replaced implies a short-term need to hire an additional employee which will be necessary only for a period where there is a shortage of labour. The fact that there is a certain permanent need for replacement staff does not, in the Land’s submission, render a fixed-term contract for the purpose of replacement invalid under point 3 of Paragraph 14(1) TzBfG. It is necessary to ascertain the objective reason relied on in each specific replacement case and not rule out cases of permanent, frequent and repeated replacements. If the validity of a specific fixed-term employment contract were contingent thereon, employers would be forced to establish a permanent reserve of staff, which would be feasible only for very large undertakings. In the Land’s submission, employers’ management freedom must be upheld, so that they may remain free to decide how and when to use such a reserve in order to address a recurring need for replacement staff.

23The German and Polish Governments also rely on the discretion employers have under the FTW Framework Agreement and argue that European Union law allows for justification of a fixed-term employment contract for the purposes of replacement in cases of a recurring need for replacement staff. That situation is clearly different from that of a ‘fixed and permanent need’, as the factors preventing the employees who have been replaced from working are limited in time. Those employees have a right to return to their posts, a right which the employer is bound to uphold.

24The appellant in the main proceedings did not submit written observations.

25It should be borne in mind that the purpose of clause 5(1) of the FTW Framework Agreement is to implement one of the objectives of that agreement, namely to place limits on successive recourse to fixed-term employment contracts or relationships, regarded as a potential source of abuse to the detriment of workers, by laying down as a minimum a number of protective provisions designed to prevent the status of employees from being insecure (Case C-212/04 Adeneler and Others [2006] ECR I-6057, paragraph 63, and Joined Cases C-378/07 to C-380/07 Angelidaki and Others [2009] ECR I-3071, paragraph 73).

26Thus, clause 5(1) of the FTW Framework Agreement requires Member States, in order to prevent abuse arising from the use of successive fixed-term employment contracts or relationships, actually to adopt in a binding manner one or more of the measures listed where domestic law does not include equivalent legal measures. The measures listed in clause 5(1)(a) to (c), of which there are three, relate, respectively, to objective reasons justifying the renewal of such employment contracts or relationships, the maximum total duration of those successive fixed-term employment contracts or relationships, and the number of renewals of such contracts or relationships (see Angelidaki and Others, paragraph 74, and order of 1 October 2010 in Case C-3/10 Affatato, paragraphs 43 and 44 and case-law cited).

27The concept of ‘objective reasons’ for the purposes of clause 5(1)(a) of the FTW Framework Agreement must, as the Court has already held, be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particular context, of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and 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 (Angelidaki and Others, paragraph 96 and case-law cited).

28On the other hand, a national provision which merely authorises recourse to successive fixed-term contracts, in a general and abstract manner by a rule of statute or secondary legislation, does not accord with the requirements as stated in the previous paragraph (Angelidaki and Others, paragraph 97 and case-law cited).

29Such a provision, which is of a purely formal nature, does not permit objective and transparent criteria to be identified in order to verify whether the renewal of such contracts actually responds to a genuine need and is appropriate for achieving the objective pursued and necessary for that purpose. Such a provision therefore carries a real risk that it will result in misuse of that type of contract and, accordingly, is not compatible with the objective of the FTW Framework Agreement (see, to that effect, Angelidaki and Others, paragraphs 98 and 100 and case-law cited).

30It should be observed, however, that a provision such as the one at issue in the main proceedings, which allows for the renewal of fixed-term contracts to replace other employees who are momentarily unable to perform their tasks, is not per se contrary to the FTW Framework Agreement. The temporary replacement of another employee in order to satisfy, in essence, the employer’s temporary staffing requirements may, in principle, constitute an objective reason under clause 5(1)(a) of the FTW Framework Agreement (see, to that effect, Angelidaki and Others, paragraph 102).

31In an administration with a large workforce like the Land, it is inevitable that temporary replacements will frequently be necessary due to, inter alia, the unavailability of employees on sick, maternity, parental or other leave. The temporary replacement of employees in those circumstances may constitute an objective reason under clause 5(1)(a) of the FTW Framework Agreement, justifying fixed-term contracts being concluded with the replacement staff and the renewal of those contracts as the need arises, subject to compliance with the relevant requirements laid down in the FTW Framework Agreement.

32This conclusion is all the more compelling where the national legislation justifying the renewal of fixed-term contracts in cases of temporary replacement also pursues objectives recognised as being legitimate social policy objectives. As evidenced by paragraph 27 of this judgment, the concept of objective reason in clause 5(1)(a) of the FTW Framework Agreement encompasses the pursuance of such objectives.

33As is apparent from the Court’s case-law, measures aimed at offering protection for pregnancy and maternity and to enable men and women to reconcile their professional and family obligations pursue legitimate social policy objectives (see, to that effect, Case C-243/95 Hill and Stapleton [1998] ECR I-3739, paragraph 42, and Case C-284/02 Sass [2004] ECR I-11143, paragraphs 32 and 33). The legitimacy of those objectives is also confirmed by the provisions of Directive 92/85 or those of the Framework Agreement on parental leave.

34It should be noted, however, that although the objective reason provided for in national legislation such as that at issue in the main proceedings may, in principle, be accepted, the competent authorities must, as is clear from paragraph 27 of this judgment, ensure that the actual application of that objective reason satisfies the requirements of the FTW Framework Agreement, having regard to the particular features of the activity concerned and to the conditions under which it is carried out. In the application of the relevant provision of national law, those authorities must therefore be in a position to identify objective and transparent criteria in order to verify whether the renewal of such contracts actually responds to a genuine need and is appropriate for achieving the objective pursued and necessary for that purpose.

35In the present case, the Commission argues that the successive renewal of an employment relationship and the conclusion of numerous successive fixed-term contracts, together with the duration of the period during which the employee concerned has previously been employed under such contracts establishes abuse under clause 5 of the FTW Framework Agreement. In the Commission’s submission, the conclusion of a number of successive fixed-term contracts, including over a considerable period of time, tends to demonstrate that the work required of the employee concerned does not meet merely a temporary need.

36It should be borne in mind in that regard that the Court has held previously that the renewal of fixed-term employment contracts or relationships in order to cover needs which are, in fact, not temporary in nature but, on the contrary, fixed and permanent, is not justified under clause 5(1)(a) of the FTW Framework Agreement (see, to that effect, Angelidaki and Others, paragraph 103).

37Such use of fixed-term employment contracts or relationships conflicts directly with the premiss on which the FTW Framework Agreement is founded, namely that contracts of indefinite duration are the general form of employment relationship, even though fixed-term employment contracts are a feature of employment in certain sectors or in respect of certain occupations and activities (see Adeneler and Others, paragraph 61).

38However, as the Polish Government has, in essence, argued, the mere fact that fixed-term employment contracts are concluded in order to cover an employer’s permanent or recurring need for replacement staff does not in itself suffice to rule out the possibility that each of those contracts, viewed individually, was concluded in order to ensure a temporary replacement. Whilst the replacement covers a permanent need, in that the employee hired under a fixed-term contract performs specifically-defined tasks which are part of the undertaking’s usual activities, the fact remains that the need for replacement staff remains temporary in so far as the employees who have been replaced are supposed to return to work at the end of the leave, which leave is the reason why those employees are prevented temporarily from performing their tasks themselves.

39It is for all the authorities of the Member State concerned to ensure, for matters within their respective spheres of competence, that clause 5(1)(a) of the FTW Framework Agreement is complied with by ascertaining that the renewal of successive fixed-term employment contracts or relationships is actually intended to cover temporary needs and that a provision such as point 3 of Paragraph 14(1) TzBfG is not, in fact, being used to meet fixed and permanent needs (see, by analogy, Angelidaki and Others, paragraph 106).

40It is for all the authorities of the Member State concerned to ensure, for matters within their respective spheres of competence, that clause 5(1)(a) of the FTW Framework Agreement is complied with by ascertaining that the renewal of successive fixed-term employment contracts or relationships is actually intended to cover temporary needs and that a provision such as point 3 of Paragraph 14(1) TzBfG is not, in fact, being used to meet fixed and permanent needs (see, by analogy, Angelidaki and Others, paragraph 106).