(Reference for a preliminary ruling from the Tribunale di Trani)

(Reference for a preliminary ruling – Social policy – Directive 1999/70/EC – Framework agreement on fixed-term work – Clause 8 – Details to be included in a fixed-term contract concluded for the purpose of replacing an absent worker – Reduction of the general level of protection afforded to workers – Interpretation in conformity with European Union law)

Summary of the Judgment

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

(Art. 288(3) TFEU; Council Directive 1999/70, Annex, clause 8(3))

1.Clause 8(3) of the framework agreement on fixed-term work, concluded on 18 March 1999 contained in the Annex to Directive 1999/70/EC concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as not precluding domestic legislation that has abolished the requirement for the employer to indicate in fixed-term contracts concluded for the purpose of replacing absent workers the names of those workers and the reasons for their replacement, and that merely provides that such fixed-term contracts must be in writing and must indicate the reasons for the use of those contracts, in so far as those new conditions are offset by the adoption of other safeguards or protective measures or concern only a limited category of workers having entered into a fixed-term employment contract, which it is for the national court to ascertain.

In so far as the latter workers do not represent a significant proportion of workers employed for a fixed term in the Member State concerned, which it is for the national court to ascertain, the reduction in the protection afforded to that limited category of workers is not, in itself, likely to have an effect overall on the level of protection applicable under the domestic legal order to workers bound by fixed-term employment contracts.

What is more, the amendment of the domestic legislation at issue in the main proceedings must be assessed having regard to all the other safeguards it provides in order to protect workers employed under fixed-term contracts, such as measures to prevent the wrongful use of successive fixed-term contracts or those designed to prohibit discrimination against workers having concluded such contracts.

(see paras 44, 46, 48, operative part 1)

2.Because clause 8(3) of the framework agreement has no direct effect, it is for the national court, if it should be led to conclude that the national legislation at issue in the main proceedings is incompatible with European Union law, not to disapply it but, so far as possible, to give it an interpretation in conformity with Directive 1999/70 and with the objective pursued by the framework agreement.

The principle of giving an interpretation in conformity with Union law means that domestic law must be interpreted, so far as possible, in the light of the wording and purpose of the relevant directive, in order to achieve the objective pursued by the directive, by selecting an interpretation of the national legal provisions that best corresponds to that objective and consequently reaching a solution compatible with the provisions of that directive.

(see paras 53, 55, operative part 2)

—

24 June 2010 (*)

(Reference for a preliminary ruling – Social policy – Directive 1999/70/EC – Framework agreement on fixed-term work – Clause 8 – Details to be included in a fixed-term contract concluded for the purpose of replacing an absent worker – Reduction of the general level of protection afforded to workers – Interpretation in conformity with European Union law)

In Case C‑98/09,

REFERENCE for a preliminary ruling under Article 234 EC from the Tribunale di Trani (Italy), made by decision of 9 June 2008, received at the Court on 6 March 2009, in the proceedings

Poste Italiane SpA,

THE COURT (Fourth Chamber),

composed of J.-C. Bonichot, President of the Chamber, C. Toader, K. Schiemann, P. Kūris (Rapporteur) and L. Bay Larsen, Judges,

Advocate General: N. Jääskinen,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 4 March 2010,

after considering the observations submitted on behalf of:

– Ms Sorge, by V. Martire and V. De Michele, avvocati,

– Poste Italiane SpA, by R. Pessi, L. Fiorillo and A. Maresca, avvocati,

– the Italian Government, by G. Palmieri, acting as Agent, assisted by P. Gentili, avvocato dello Stato,

– the Netherlands Government, by C.M. Wissels and M. Noort, acting as Agents,

– the European Commission, by M. van Beek and C. Cattabriga, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 22 April 2010,

gives the following

Legal context

The relevant provisions of European Union law

– ‘Point 7 of the Community Charter of the Fundamental Social Rights of Workers provides, inter alia, that “the completion of the internal market must lead to an improvement in the living and working conditions of workers in the European Community. This process must result from an approximation of these conditions while the improvement is being maintained, as regards in particular forms of employment other than open-ended contracts, such as fixed-term contracts, part-time working, temporary work and seasonal work”.’

‘The parties to this agreement recognise that contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers. They also recognise that fixed-term employment contracts respond, in certain circumstances, to the needs of both employers and workers.’

6. According to the third paragraph in that preamble, the framework agreement sets out the general principles and minimum requirements relating to fixed-term work, establishing, in particular, a general framework for ensuring equal treatment for fixed-term workers by protecting them against discrimination and for using fixed-term employment contracts on a basis acceptable to employers and workers.

‘Whereas the use of fixed-term employment contracts based on objective reasons is a way to prevent abuse;’.

(a) initial vocational training relationships and apprenticeship schemes;

(b) employment contracts and relationships which have been concluded within the framework of a specific public or publicly-supported training, integration and vocational retraining programme.’

Where there is no comparable permanent worker in the same establishment, the comparison shall be made by reference to the applicable collective agreement, or where there is no applicable collective agreement, in accordance with national law, collective agreements or practice.

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

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

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

(a) shall be regarded as “successive”;

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

…

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.

…

5. The prevention and settlement of disputes and grievances arising from the application of this agreement shall be dealt with in accordance with national law, collective agreements and practice.

…

The relevant provisions of national law

The legislation repealed

‘An employment contract shall be considered to be an open-ended contract, without prejudice to the exceptions set out below:

A contract may state the date on which it is to end:

…

(b) where the recruitment takes place in order to replace absent workers who are entitled to retain their post, provided that the fixed‑term employment contract gives the name of the replaced worker and the reason for his replacement;

…

Any date stated on which the contract is to end shall be ineffective unless recorded in writing.

The employer must provide the employee with a copy of the written document.

…

The legislation applicable to the case in the main proceedings

The fixing of a date for the end of the contract shall be ineffective unless recorded, directly or indirectly, in a written document specifying the reasons set out in paragraph 1.

…

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

‘1. Must Clause 8 of the Framework Agreement put into effect by Directive 1990/70/EEC be interpreted as precluding domestic rules (such as those laid down by Articles 1 and 11 of Legislative Decree No 368/2001) which, in implementation of Council Directive 1999/70 …, repealed Article 1(2)(b) of Law No 230/1962, according to which it was “permitted to impose a time-limit on the duration of the contract … where the recruitment” took “place in order to replace absent workers” who “retained the right to their post, provided that in the fixed-term contract” “an indication was given of the name of the worker replaced and the reasons for his replacement”, substituting for it a provision which no longer imposes that obligation to give details?

Admissibility of the reference for a preliminary ruling

Concerning the questions referred

The first question

The ambit of the framework agreement

The interpretation of clause 8(3) of the framework agreement

As regards, in the first place, the implementation of the framework agreement, the express purpose of Legislative Decree No 368/2001 is to transpose Directive 1999/70 and that decree was adopted in order to give effect to Law No 422 of 29 December 2000.

39It is not inconceivable that the amendments to previous domestic law made by Legislative Decree No 368/2001 may be linked to the implementation of the framework agreement, since, according to the order for reference, when Directive 1999/70 and the framework agreement were adopted fixed-term workers had the benefit of the protective measures provided for by Law No 230/1962, irrespective of the fact that the content of Article 1 of that legislative decree does not relate to any express provision of the framework agreement.

40In order to conduct such an assessment, it will be for the national court to ascertain whether the abolition of the employer’s obligation to state, in the fixed-term contract concluded for the purpose of replacing absent workers, the names of those workers and the reasons for their replacement amounts to an alteration of the legal rules governing fixed-term employment contracts as a result of the national legislature’s wish to achieve a fresh balance in the relations between employers and workers in that sphere, taking account of the new safeguards provided for by the framework agreement.

41It can already, however, be stated that it is not apparent from the order for reference that the national legislature wished, by making the amendments at issue in the main proceedings, to pursue any objective other than to give effect to the framework agreement, which also is for the national court to establish.

42As regards, in the second place, the condition that the reduction must relate to the ‘general level of protection’ afforded to fixed-term workers, this implies that only a reduction on a scale likely to have an effect overall on national legislation relating to fixed-term employment contracts is capable of being covered by clause 8(3) of the framework agreement (Angelidaki and Others, paragraph 140, and order of 24 April 2009 in Case C‑519/08 Koukou [2008] ECR I‑0065, paragraph 119).

43In the present case, the amendments of previous domestic law made by Legislative Decree No 368/2001 do not affect all workers having concluded a fixed-term employment contract but only those having concluded such a contract in order to replace another employee, the opportunity to make use of those contracts being one of those provided for in Article 1(1) of that legislative decree.

44In so far as the latter workers do not represent a significant proportion of workers employed for a fixed term in the Member State concerned, which it is for the national court to ascertain, the reduction in the protection afforded to that limited category of workers is not, in itself, likely to have an effect overall on the level of protection applicable under the domestic legal order to workers bound by fixed-term employment contracts.

45In addition, according to Article 1(2) of Legislative Decree No 368/2001, fixed-term contracts must be in writing and must state the reasons for their use. If not, the indication of the date on which the contract is to end will be ineffective. Law No 230/1962 merely provided that the term of the contract must be stated in writing, without the objective reason for the conclusion being given, except in the situation in which an employee is replaced.

46Lastly, as the Advocate General has observed in point 54 of his Opinion, the amendment of the domestic legislation at issue in the main proceedings must be assessed having regard to all the other safeguards it provides in order to protect workers employed under fixed-term contracts, such as measures to prevent the wrongful use of successive fixed-term contracts or those designed to prohibit discrimination against workers having concluded such contracts.

47In those circumstances, it must be concluded that amendments to domestic legislation, such as those at issue in the main proceedings, do not constitute a ‘reduction’ in the general level of protection afforded to fixed-term workers for the purposes of clause 8(3) of the framework agreement, in so far as they concern a limited category of workers having entered into a fixed-term employment contract or are offset by the adoption of other safeguards or protective measures, which it is for the national court to ascertain.

48The answer to the first question is, therefore, that clause 8(3) of the framework agreement must be interpreted as not precluding domestic legislation, such as that in issue in the main proceedings, which has abolished the requirement for the employer to indicate in fixed-term contracts concluded for the purpose of replacing absent workers the names of those workers and the reasons for their replacement, and which merely provides that such fixed-term contracts must be in writing and must indicate the reasons for the use of those contracts, in so far as those new conditions are offset by the adoption of other safeguards or protective measures or concern only a limited category of workers having entered into a fixed-term employment contract, which it is for the national court to ascertain.

The second question

49By its second question, the national court seeks in essence to ascertain whether it is bound, by virtue of European Union law, to disapply domestic legislation, such as Legislative Decree No 368/2001, if that legislation is not compatible with the provisions of the framework agreement and, if so, whether it must apply Article 1 of Law No 230/1962.

50It is to be borne in mind that the Court has held that clause 8(3) of the Framework Agreement does not fulfil the conditions required in order to have direct effect. First, clause 8(3) relates only to the ‘implementation’ of that agreement by the Member States and/or the social partners, on whom it is incumbent to transpose the agreement into the domestic legal order, prohibiting them from justifying, in that transposition, a reduction in the general level of protection afforded to workers by the need to put the Framework Agreement into effect. Second, by simply prohibiting, in its own words, ‘reducing the general level of protection afforded to workers in the field of [that framework] agreement’, that clause implies that only a reduction on a scale likely to have an effect overall on national legislation relating to fixed-term employment contracts is capable of falling within its ambit. However, individuals would not be able to infer from such a prohibition any right that would be sufficiently clear, precise and unconditional (see to that effect Angelidaki and Others, paragraphs 209 to 211, and Koukou, paragraph 128).

51Nevertheless, the national courts are bound to interpret domestic law, so far as possible, in the light of the wording and the purpose of the framework agreement in question in order to achieve the result sought by the latter and, consequently, to comply with the third paragraph of Article 288 TFEU. This obligation to interpret national law in conformity with European Union law concerns all provisions of national law, whether adopted before or after the framework agreement in question (see, by analogy, Adeneler and Others, paragraph 108, and Case C‑555/07 Kücükdeveci [2010] ECR I‑0000, paragraph 48).

52It is true that the obligation that the national court should refer to the content of the framework agreement when interpreting and applying the relevant rules of domestic law is limited by general principles of law, particularly those of legal certainty and non-retroactivity, and that obligation cannot serve as the basis for an interpretation of national law contra legem (see, by analogy, Adeneler and Others, paragraph 110).

53The principle that national law must be interpreted in conformity with European Union law 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 the latter, with a view to ensuring that the framework agreement in question is fully effective and achieving an outcome consistent with the objective pursued by it (see, by analogy, Adeneler and Others, paragraph 111).

54In addition, as the Advocate General has observed in point 68 of his Opinion, that principle of interpretation in conformity with European Union law cannot have the effect of rendering applicable to the case before the national court rules of national law which are not formally valid or relevant either ratione materiae or ratione temporis.

55The answer to be given to the second question is, therefore, that because clause 8(3) of the framework agreement has no direct effect, it is for the national court, if it should be led to conclude that the national legislation at issue in the main proceedings is incompatible with European Union law, not to disapply it but, so far as possible, to give it an interpretation in conformity with Directive 1999/70 and with the objective pursued by that framework agreement.

Costs

56Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

1.Clause 8(3) of the framework agreement on fixed-term work, concluded on 18 March 1999 contained 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, must be interpreted as not precluding domestic legislation, such as that in issue in the main proceedings, which has abolished the requirement for the employer to indicate in fixed-term contracts concluded for the purpose of replacing absent workers the names of those workers and the reasons for their replacement, and which merely provides that such fixed-term contracts must be in writing and must indicate the reasons for the use of those contracts, in so far as those new conditions are offset by the adoption of other safeguards or protective measures or concern only a limited category of workers having entered into a fixed-term employment contract, which it is for the national court to ascertain.

2.Because clause 8(3) of that framework agreement has no direct effect, it is for the national court, if it should be led to conclude that the national legislation at issue in the main proceedings is incompatible with European Union law, not to disapply that provision but, so far as possible, to give it an interpretation in conformity with Directive 1999/70 and with the objective pursued by that framework agreement.

[Signatures]

* Language of the case: Italian.