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Language of document : ECLI:EU:C:2014:2044

Joined Cases C‑362/13, C‑363/13 and C‑407/13

Maurizio Fiamingo and Others

Rete Ferroviaria Italiana SpA

(Requests for a preliminary ruling from the Corte suprema di cassazione)

(References for a preliminary ruling — Social policy — Directive 1999/70/EC — Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Maritime sector — Ferries making crossings between two ports situated in the same Member State — Successive fixed-term employment contracts — Clause 3(1) — Concept of ‘fixed-term employment contract’ — Clause 5(1) — Measures to prevent abuse arising from the use of fixed-term contracts — Penalties — Conversion of the employment contract into one of indefinite duration — Conditions)

Summary — Judgment of the Court (Third Chamber), 3 July 2014

1. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Scope — Fixed-term employment contracts on ferries making crossings between two ports situated in the same Member State — Included

(Council Directive 1999/70, Annex, clause 3(1))

2. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Definition of ‘fixed-term workers’ — Scope — Fixed term employment contracts indicating their duration but not their termination date — Included

(Council Directive 1999/70, Annex, clause 3(1))

3. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Measures to prevent abuse of successive fixed-term contracts — Successive fixed-term employment contracts — National legislation considering as successive contracts separated by time lapses of less than or equal to 60 working days — Lawfulness — Verification a matter for the national court — Scope

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

1. The Framework Agreement on fixed-term work which is annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as meaning that it applies to workers employed as seafarers under fixed-term employment contracts on board ferries making sea crossings between two ports situated in the same Member State.

It is apparent from the very wording of Clause 2(1) of the Framework Agreement that the scope of that agreement is conceived in broad terms. In addition, the definition of ‘fixed-term workers’ for the purposes of the Framework Agreement, set out in clause 3(1), encompasses all workers without drawing a distinction according to whether their employer is in the public, or private, sector. The Framework Agreement thus applies to all workers providing remunerated services in the context of a fixed-term employment relationship linking them with their employer.

The scope of the Framework Agreement is not unlimited, however. Thus, it is apparent from the wording of Clause 2(1) of the Framework Agreement that the definition of the contracts and employment relationships to which it applies are not determined by that agreement or by EU law, but by national law and/or practice, so long as those concepts are not defined in a manner that results in the arbitrary exclusion of a category of persons from the benefit of the protection provided by the Framework Agreement.

This conclusion is borne out by the contents of Clause 5(1) of the Framework Agreement, which, in conformity with the third paragraph of the preamble to the Framework Agreement as well as paragraphs 8 and 10 of its general considerations, makes it possible for Member States, when implementing the agreement, to take account of the needs of specific sectors and/or categories of workers involved, provided that that is justified on objective grounds.

(see paras 28-31, 39, 40, operative part 1)

2. The provisions of the Framework Agreement on fixed-term work, which is annexed to Directive 1999/70 on the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as not precluding national legislation which provides that fixed-term employment contracts have to indicate their duration, but not their termination date.

The Framework Agreement is not intended to harmonise all national rules relating to fixed-term employment contracts but simply aims, by determining general principles and minimum requirements, to establish a general framework for ensuring equal treatment for fixed-term workers by protecting them against discrimination and to prevent abuse arising from the use of successive fixed-term work agreements or contracts. The Framework Agreement does not contain any provision that lays down the formal particulars that must be included in fixed-term employment contracts.

In that regard, Clause 3(1) of the Framework Agreement, as both its heading and its wording clearly demonstrate, defines the concept of ‘fixed-term worker’ and, in that context, sets out the central characteristic of a fixed-term contract, namely the fact that the end of such a contract is determined ‘by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event’. However, that clause does not impose any obligation on Member States in respect of the rules of national law applicable to the conclusion of fixed-term employment contracts.

(see paras 44-46, 48, operative part 2)

3. Clause 5 of the Framework Agreement on fixed-term work, which is annexed to Directive 1999/70 on the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as not precluding, in principle, national legislation which provides for the conversion of fixed-term employment contracts into employment contracts of indefinite duration only in circumstances where the worker concerned has been employed continuously under such contracts by the same employer for a period longer than one year, the employment relationship being considered to be continuous where the fixed-term employment contracts are separated by time lapses of less than or equal to 60 days.

Clause 5(1) of the Framework Agreement requires Member States, in order to prevent abuse arising from the use of successive fixed-term employment contracts or relationships, to adopt one or more of the measures listed in a manner that is effective and binding, 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 contracts or relationships, the maximum total duration of successive fixed-term employment contracts or relationships, and the number of renewals of such contracts or relationships.

However, the Framework Agreement does not require the Member States to adopt a measure requiring every first or single use of a fixed-term employment contract to be justified by an objective reason. The Member States enjoy a certain discretion in the implementation of Clause 5(1) of the Framework Agreement since they have the choice of relying on one or more of the measures listed in that clause, or even on existing equivalent legal measures, while taking account of the needs of specific sectors and/or categories of workers.

Furthermore, the Framework Agreement does not lay down a general obligation on the Member States to provide for the conversion of fixed-term employment contracts into contracts of indefinite duration. Indeed, Clause 5(2) of the Framework Agreement in principle leaves it to the Member States to determine the conditions under which fixed-term employment contracts or relationships are to be regarded as contracts or relationships of indefinite duration. It follows that the Framework Agreement does not specify the conditions under which contracts of indefinite duration may be used.

However, it is for the national court to satisfy itself that the conditions of application and the effective implementation of that legislation result in a measure that is adequate to prevent and punish the misuse of successive fixed-term employment contracts or relationships. In particular, the national court must satisfy itself that the maximum duration of one year, provided for by the national legislation at issue, is calculated in a manner that does not substantially reduce the effectiveness of the prevention and punishment of the misuse of successive fixed-term employment contracts. That might arise if, rather than being calculated on the basis of the number of calendar days covered by those employment contracts, the maximum duration was calculated on the basis on the number of days’ service actually completed by the worker concerned, where, for example, as a result of the low volume of crossings, the latter number is considerably lower than the former.

(see paras 56, 57, 59, 65, 73, 74, operative part 3)