ORDER OF THE COURT (Seventh Chamber)
8 January 2024 (*)
(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Directive 1999/70/EC – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Clause 5 – Fixed-term employment contracts in the public sector – Successive contracts – Prohibition on converting fixed-term contracts to open-ended contracts – Teaching non-military subjects in military schools)
In Case C‑278/23 [Biltena] (i),
REQUEST for a preliminary ruling under Article 267 TFEU from the Corte suprema di cassazione (Supreme Court of Cassation, Italy), made by decision of 27 April 2023, received at the Court on 28 April 2023, in the proceedings
M.M., acting as successor in title to M.R.,
v
Ministero della Difesa,
THE COURT (Seventh Chamber),
composed of F. Biltgen (Rapporteur), President of the Chamber, N. Wahl and J. Passer, Judges,
Advocate General: M. Szpunar,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to rule by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1 This request for a preliminary ruling concerns the interpretation of clause 5 of the framework agreement on fixed-term work concluded on 18 March 1999 (‘the 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).
2 The request has been made in proceedings between M.M., acting as successor in title to M.R., and the Ministero della Difesa (Ministry of Defence, Italy) (‘the Ministry’) concerning the consequences to be drawn from the conclusion of successive fixed-term employment contracts between M.R. and that ministry during the period from 1987 to 2007.
Legal context
European Union law
3 The second paragraph in the preamble to the Framework Agreement states:
‘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.’
4 According to the third paragraph in the preamble to that framework agreement:
‘This agreement sets out the general principles and minimum requirements relating to fixed-term work, recognising that their detailed application needs to take account of the realities of specific national, sectoral and seasonal situations. It illustrates the willingness of the Social Partners to establish 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.’
5 Paragraphs 6 to 8 and 10 of the general considerations of the Framework Agreement are worded as follows:
‘6. Whereas employment contracts of an indefinite duration are the general form of employment relationships and contribute to the quality of life of the workers concerned and improve performance;
7. Whereas the use of fixed-term employment contracts based on objective reasons is a way to prevent abuse;
8. Whereas fixed-term employment contracts are a feature of employment in certain sectors, occupations and activities which can suit both employers and workers;
…
10. Whereas this agreement refers back to Member States and social partners for the arrangements for the application of its general principles, minimum requirements and provisions, in order to take account of the situation in each Member State and the circumstances of particular sectors and occupations, including the activities of a seasonal nature’.
6 Clause 2 of the Framework Agreement, entitled ‘Scope’, provides, in paragraph 1:
‘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.’
7 Clause 3(1) of the Framework Agreement provides:
‘For the purpose of this agreement the term “fixed-term worker” means a person having an employment contract or relationship entered into directly between an employer and a worker where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event.’
8 Clause 5 of the Framework Agreement, entitled ‘Measures to prevent abuse’, states:
‘1. To prevent abuse arising from the use of successive fixed-term employment contracts or relationships, Member States, after consultation with social partners in accordance with national law, collective agreements or practice, and/or the social partners, shall, where there are no equivalent legal measures to prevent abuse, introduce in a manner which takes account of the needs of specific sectors and/or categories of workers, one or more of the following measures:
(a) objective reasons justifying the renewal of such contracts or relationships;
(b) the maximum total duration of successive fixed-term employment contracts or relationships;
(c) the number of renewals of such contracts or relationships.
2. Member States after consultation with the social partners and/or the social partners shall, where appropriate, determine under what conditions fixed-term employment contracts or relationships:
(a) shall be regarded as “successive”
(b) shall be deemed to be contracts or relationships of indefinite duration.’
9 The first paragraph of Article 2 of Directive 1999/70 provides:
‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 10 July 2001, or shall ensure that, by that date at the latest, management and labour have introduced the necessary measures by agreement, the Member States being required to take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by this Directive. They shall forthwith inform the [European] Commission thereof.’
Italian law
10 Article 2(1) of legge n. 1023 – Conferimento di incarichi a docenti civili per l’insegnamento di materie non militari presso scuole, Istituti ed enti della Marina e dell’Aeronautica (Law No 1023, appointing civilian teachers to teach non-military subjects in schools, establishments and bodies of the navy and air force) of 15 December 1969 (GURI No 6 of 8 January 1970, p. 111), in the version applicable to the facts in the main proceedings (‘Law No 1023/1969’), provided:
‘The teaching of non-military subjects in the schools, establishments and bodies listed in the first paragraph of Article 1 may be provided, by means of annual contracts, by staff recruited from among permanent teachers or teachers on fixed-term contracts of State establishments and schools, provided that no objection is raised by the Ministry of Public Education, by ordinary, administrative and military judges and civilian employees of the State administration in active employment, or by staff outside the State administration. Permanent teachers who provide the education referred to in Article 1 for the entire teaching timetable may also be employed on secondment.’
11 Article 2(2) of that law provided that the criteria and procedures for selecting teachers and for determining remuneration were to be laid down by ministerial order.
12 Law No 1023/1969 was repealed by subparagraph 629 of Article 2268(1) of decreto legislativo n. 66 – Codice dell’ordinamento militare (Legislative Decree No 66 on the Military Law Code) of 15 March 2010 (GURI No 106 of 8 May 2010) (‘Legislative Decree No 66/2010’).
13 Under Article 1531(1) of Legislative Decree No 66/2010 on the assignment of responsibilities to civilian teachers for the teaching of non-military subjects in schools, establishments and bodies of the armed forces, it remains possible, however, to assign teaching responsibilities for non-military subjects by means of annual contracts concluded with staff outside the State administration.
14 Article 1 of the Decreto ministeriale – Conferimento di incarichi a docenti civili per l’insegnanmento di materie non militari presso scuole, istituti ed enti della Marina e dell’Aeronautica (Ministerial Decree appointing civilian teachers to teach non-military subjects in schools establishments and bodies of the navy and air force) of 20 December 1971 (GURI No 322 of 15 December 1973, p. 8211; ‘the Ministerial Decree of 1971’), adopted pursuant to Law No 1023/1969, provides:
‘The teaching of non-military subjects in the schools, establishments and bodies of the navy and air force, referred to in Law [No 1023/1969], may be provided, by means of annual contracts, by staff recruited from among permanent teachers or teachers on fixed-term contracts of State establishments and schools, provided that no objection is raised by the Ministry of Public Education, by ordinary, administrative and military judges and civilian employees of the State administration in active employment, or by staff outside the State administration. Permanent teachers who provide the education referred to in Law [No 1023/1969] for the entire teaching timetable may also be employed on secondment.’
15 Under Article 4 of that ministerial decree, the remuneration provided for is reduced by one third for the second assignment entrusted to a teacher outside the State administration.
16 Article 6 of that ministerial decree provided:
‘Staff appointed from outside the State administration who are given an assignment for the entire academic year shall, for the period of actual service only, be entitled to the additional allowances and pension, social security and assistance benefits provided for teachers appointed in establishments and schools for which the Ministry of Public Education is responsible.’
17 Article 7 of that ministerial decree provided that:
‘The teaching responsibilities are provided for a maximum period of one academic year.’
18 The Ministerial Decree of 1971 was repealed pursuant to subparagraph 204 of Article 2269(1) of Legislative Decree No 66/2010.
19 Article 1 of decreto legislativo n. 368 – Attuazione della direttiva 1999/70/CE relativa all’accordo quadro sul lavoro a tempo determinato concluso dall’UNICE, dal CEEP e dal CES (Legislative Decree No 368 – Implementation of Directive 1999/70/EC concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP) of 6 September 2001 (GURI No 235 of 9 October 2001), in the version applicable to the facts of the dispute in the main proceedings (‘Legislative Decree No 368/2001’), provided, in general terms, for the possibility of fixing the duration of an employment contract for technical-, production-, organisational- or replacement-related reasons.
20 Article 4 of that legislative decree provided:
‘1. The term of a fixed-term contract may be extended, with the worker’s consent, only if the initial duration of the contract is less than three years. In that case, extension shall be permitted once, provided that it is done on objective grounds and relates to the same activity as the one for which the fixed-term contract was concluded. With reference solely to such situations, the total duration of the fixed-term relationship may not exceed three years.
2. The burden of proof of the existence of objective grounds justifying any extension of the period shall lie with the employer.’
21 Article 5(4) of that legislative decree provides:
‘Where a worker is employed for two successive fixed-terms, which shall be understood to mean relationships between which there is no break in continuity, the employment relationship shall be considered to be of indefinite duration from the date of conclusion of the first contract.’
22 Under Article 36 of decreto legislativo n. 165 – Norme generali sull’ordinamento del lavoro alle dipendenze delle amministrazioni pubbliche (Legislative Decree No 165 laying down general rules concerning the organisation of employment in public authorities) of 30 March 2001 (Ordinary Supplement to GURI No 106 of 9 May 2001), in the version applicable to the facts in the main proceedings:
‘1. For requirements connected with their everyday needs, public authorities shall recruit exclusively by means of employment contracts of indefinite duration …
2. To meet exclusively temporary and exceptional requirements, public authorities may make use of the flexible forms of contract for the recruitment and employment of staff provided for in the Civil Code and the laws on employment relationships in undertakings …
…
5. In any event, infringement of mandatory provisions on the recruitment or employment of workers by public authorities cannot lead to the creation of employment relationships of indefinite duration with those public authorities, without prejudice to any liability or sanctions which those authorities may incur. The worker concerned shall be entitled to compensation for damage suffered as a result of working in breach of mandatory provisions …
…’
The dispute in the main proceedings and the questions referred for a preliminary ruling
23 From 1987 to 2007, M.R. taught electronics and telecommunications, which are non-military subjects, at the Aeronautica Militare (Italian Air Force) under fixed-term contracts, which were initially renewed from year to year and, from 2004, every six months.
24 At the end of his last fixed-term contract, he brought an action against the Ministry, before the Tribunale di Roma (District Court, Rome, Italy), seeking a declaration that the conclusion of those fixed-term contracts was unlawful and that he be paid damages.
25 That court upheld the action and declared that the fixed-term contracts concluded after the entry into force of Legislative Decree No 368/2001 were unlawful, on the ground that those contracts did not specify technical, organisational, replacement or production reasons capable of justifying the fixed-term nature of those contracts. In addition, it ordered the Ministry to pay M.R. damages equivalent to 15 months’ salary.
26 The Ministry brought an appeal against the judgment of the Tribunale di Roma (District Court, Rome) before the Corte d’appello di Roma (Court of Appeal, Rome, Italy), claiming that the relationship between the parties was one of self-employment, and not an employment relationship, with the result that Legislative Decree No 368/2001 did not apply. According to that ministry, the case in the main proceedings is governed by the provisions of Law No 1023/1969 and the Ministerial Decree of 1971, which allow teaching staff outside the State administration to be entrusted with annual teaching tasks.
27 The Corte d’appello di Roma (Court of Appeal, Rome) upheld the judgment at first instance as regards the existence of an employment relationship between M.R. and the Ministry, on account, in particular, of the contractual terms relating to the grant of the 13th month’s salary, paid leave, severance pay, family allowances and the payment of social security contributions. However, it set aside the remainder of that judgment, holding that the situation at issue in the main proceedings was governed by special rules, based on the particular nature of naval and air force schools and on the specific skills of teachers outside of the State administration who are employed in those schools.
28 M.R. brought an appeal on a point of law against the judgment of the Corte d’appello di Roma (Court of Appeal, Rome) before the Corte suprema di cassazione (Supreme Court of Cassation, Italy), the referring court.
29 That court points out that, according to its own case-law, the employment relationship with staff outside of the State administration, on the basis of annual contracts, is akin to an employment relationship.
30 As regards the unlawful conclusion of successive fixed-term contracts, the referring court recalls that, in the event of misuse of fixed-term contracts, the employee is entitled only to compensation for the damage suffered under Article 36(5) of Legislative Decree No 165 of 30 March 2001, in the version applicable to the facts in the main proceedings, the conversion of fixed-term employment contracts into an employment contract of indefinite duration being prohibited by that provision, which was held to be consistent with EU law by the Court of Justice in its judgment of 7 March 2018, Santoro (C‑494/16, EU:C:2018:166).
31 Notwithstanding the fact that the Court has already delivered several judgments concerning the conclusion of fixed-term contracts with the public authorities, including, in particular, the judgments of 4 July 2006, Adeneler and Others (C‑212/04, EU:C:2006:443), of 7 September 2006, Marrosu and Sardino (C‑53/04, EU:C:2006:517), of 8 September 2011, Rosado Santana (C‑177/10, EU:C:2011:557), of 26 November 2014, Mascolo and Others (C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401), and of 25 October 2018, Sciotto (C‑331/17, EU:C:2018:859), the referring court considers it necessary to refer a question to the Court since, in its view, there is doubt as to the interpretation of clause 5 of the Framework Agreement with regard to military schools, establishments and bodies.
32 In those circumstances, the Corte suprema di cassazione (Supreme Court of Cassation) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Must clause 5 … of the [Framework Agreement] be interpreted as precluding national legislation, such as the Italian legislation contained in Article 2(1) of [Law No 1023/1969] and Article 1 of the [Ministerial Decree of 1971], providing for annual appointments of civilian staff outside the State administration (pursuant to Article 7 of the Ministerial Decree [of 1971] “for a maximum period of one [academic] year”) for the teaching of non-military subjects in the schools, establishments and bodies of the Italian navy and air force, without the need to state any objective reasons justifying the renewal of the appointments (expressly provided for in Article 4 of that ministerial decree, which provides for a reduction in remuneration for the second appointment), the maximum total duration of fixed-term contracts or the maximum number of renewals, and without providing for the possibility for those teachers to obtain compensation for any damage suffered as a result of such renewal, in the absence, moreover, of any [permanent teaching] role in such schools to which they might have access?
(2) Do the organisational requirements of the Italian navy and air force’s system of establishments, schools and bodies constitute objective reasons, pursuant to clause 5(1) [of the framework agreement], and therefore render legislation … – which, with regard to the appointment of staff external to such military establishments, schools and bodies to carry out teaching, does not lay down conditions for having recourse to fixed-term work in accordance with Directive [1999/70] and the annexed framework agreement, and does not provide for a right to compensation for damage – compatible with EU law?’
Consideration of the questions referred
33 Pursuant to Article 99 of its Rules of Procedure, where the reply to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law or where the answer to such a question admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order.
34 It is appropriate to apply that provision in the present case.
35 By its two questions, which it is appropriate to examine together, the referring court asks, in essence, first, whether clause 5 of the Framework Agreement must be interpreted as precluding national legislation which excludes civilian staff, responsible for teaching non-military subjects in military schools, from the application of rules designed to penalise the misuse of successive fixed-term contracts and, second, whether the organisational requirements of those schools may be classified as ‘objective reasons’ justifying the renewal of such contracts, within the meaning of clause 5(1)(a) of the Framework Agreement.
36 It should be noted, as a preliminary point, that it is apparent from the very wording of clause 2(1) of the Framework Agreement that the scope of that agreement must be construed broadly, since it covers generally ‘fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State’. Moreover, it should be recalled that 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 (judgment of 13 January 2022, MIUR and Ufficio Scolastico Regionale per la Campania, C‑282/19, EU:C:2022:3, paragraph 69 and the case-law cited).
37 Inasmuch as the Framework Agreement does not exclude any particular sector from its scope, it is therefore also applicable to staff recruited in the sector of education provided in public establishments (judgment of 13 January 2022, MIUR and Ufficio Scolastico Regionale per la Campania, C‑282/19, EU:C:2022:3, paragraph 70 and the case-law cited).
38 In the present case, the referring court has expressly stated that the legal relationships established with the civilian staff recruited for the teaching of non-military subjects in schools, establishments and bodies of the navy and air force are akin to employment relationships. It follows that a worker such as M.R. falls within the scope of the Framework Agreement.
39 Regarding clause 5 of the Framework Agreement, it should be borne in mind that its purpose 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 ensure that the status of employees is not made insecure (see, inter alia, judgments of 25 October 2018, Sciotto, C‑331/17, EU:C:2018:859, paragraph 30 and the case-law cited, and of 13 January 2022, MIUR and Ufficio Scolastico Regionale per la Campania, C‑282/19, EU:C:2022:3, paragraph 76 and the case-law cited).
40 As is apparent from the second paragraph in the preamble to the Framework Agreement and from paragraphs 6 to 8 of its general considerations, the benefit of stable employment is viewed as a major element in the protection of workers, whereas it is only in certain circumstances that fixed-term employment contracts are liable to respond to the needs of both employers and workers (see, inter alia, judgments of 25 October 2018, Sciotto, C‑331/17, EU:C:2018:859, paragraph 31 and the case-law cited, and of 13 January 2022, MIUR and Ufficio Scolastico Regionale per la Campania, C‑282/19, EU:C:2022:3, paragraph 77 and the case-law cited).
41 Clause 5(1) of the Framework Agreement requires, with a view to preventing misuse of successive fixed-term employment contracts or relationships, Member States 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 thus 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 employment contracts or relationships, and the maximum number of renewals of those contracts or relationships (see, inter alia, judgments of 25 October 2018, Sciotto, C‑331/17, EU:C:2018:859, paragraph 32 and the case-law cited, and of 13 January 2022, MIUR and Ufficio Scolastico Regionale per la Campania, C‑282/19, EU:C:2022:3, paragraph 78 and the case-law cited).
42 The Member States enjoy a certain discretion in that regard since they have the choice of relying on one or more of the measures listed in clause 5(1)(a) to (c) of the Framework Agreement, or on existing equivalent legal measures. In that way, clause 5(1) of the Framework Agreement assigns to the Member States a general objective of preventing such misuse, while leaving to them the choice as to how to achieve it, provided that they do not compromise the objective or the practical effect of the Framework Agreement (see, to that effect, inter alia, judgments of 25 October 2018, Sciotto, C‑331/17, EU:C:2018:859, paragraphs 33 and 34 and the case-law cited, and of 13 January 2022, MIUR and Ufficio Scolastico Regionale per la Campania, C‑282/19, EU:C:2022:3, paragraph 79 and the case-law cited).
43 As is apparent from clause 5(1) of the Framework Agreement, the third paragraph in its preamble and paragraphs 8 and 10 of its general considerations, Member States may, when implementing the agreement, take account of the particular needs of the specific sectors and/or categories of workers involved, provided that that is justified on objective grounds (see, inter alia, judgments of 25 October 2018, Sciotto, C‑331/17, EU:C:2018:859, paragraph 35 and the case-law cited, and of 13 January 2022, MIUR and Ufficio Scolastico Regionale per la Campania, C‑282/19, EU:C:2022:3, paragraph 80 and the case-law cited).
44 Moreover, clause 5 of the Framework Agreement does not lay down any specific penalties where instances of misuse have nonetheless been established. In that case, it is incumbent on the national authorities to adopt measures that are not only proportionate, but also are sufficiently effective and act as a sufficient deterrent to ensure that the measures taken pursuant to the Framework Agreement are fully effective (judgment of 13 January 2022, MIUR and Ufficio Scolastico Regionale per la Campania, C‑282/19, EU:C:2022:3, paragraph 81 and the case-law cited).
45 Admittedly, it must be recalled that the Court has, in essence, held that national legislation which lays down a mandatory rule that, where there is misuse of fixed-term employment contracts, such contracts are to be converted into an employment relationship of indefinite duration, is likely to comprise a measure that actually penalises such misuse (judgment of 8 May 2019, Rossato and Conservatorio di Musica F.A. Bonporti, C‑494/17, EU:C:2019:387, paragraph 40 and the case-law cited).
46 However, clause 5 of the Framework Agreement does not lay down a general obligation on the Member States to provide for the transformation of fixed-term employment contracts into a contract of indefinite duration. Indeed, clause 5(2) of the Framework Agreement leaves it, in principle, 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 (see, inter alia, judgments of 25 October 2018, Sciotto, C‑331/17, EU:C:2018:859, paragraph 59 and the case-law cited, and of 13 January 2022, MIUR and Ufficio Scolastico Regionale per la Campania, C‑282/19, EU:C:2022:3, paragraph 82 and the case-law cited).
47 Consequently, in order for national legislation, such as that at issue in the main proceedings, which prohibits a succession of fixed-term contracts from being converted into a contract of indefinite duration, to be regarded as compatible with the Framework Agreement, the domestic law of the Member State concerned must include another effective measure to prevent and, where relevant, penalise the misuse of successive fixed-term employment contracts (see, inter alia, judgments of 25 October 2018, Sciotto, C‑331/17, EU:C:2018:859, paragraph 60 and the case-law cited, and of 13 January 2022, MIUR and Ufficio Scolastico Regionale per la Campania, C‑282/19, EU:C:2022:3, paragraph 83 and the case-law cited).
48 Furthermore, Member States are not required to provide, for cases involving misuse of fixed-term employment contracts, more than one measure concurrently to the effect that a right to compensation is in addition to the conversion of the fixed-term employment relationship into one of indefinite duration (see, to that effect, judgment of 8 May 2019, Rossato and Conservatorio di Musica F.A. Bonporti, C‑494/17, EU:C:2019:387, paragraphs 41 and 45).
49 As regards compensation for the damage suffered as a measure actually penalising the misuse of fixed-term employment contracts, the principle of such compensation and the principle of proportionality require Member States to provide for adequate compensation, which is more than a purely nominal amount, but not more than is necessary to make good the damage in its entirety (see, to that effect, judgment of 8 May 2019, Rossato and Conservatorio di Musica F.A. Bonporti, C‑494/17, EU:C:2019:387, paragraphs 42 and 43).
50 Moreover, the Court has ruled that clause 5 of the Framework Agreement must be interpreted as not precluding national legislation which, on the one hand, does not penalise the misuse of successive fixed-term contracts by a public sector employer through the payment of compensation to the worker concerned for the lack of conversion of the fixed-term employment relationship into an employment relationship of indefinite duration, but, on the other hand, provides for the grant of compensation of between 2.5 and 12 times the last monthly salary of that worker together with the possibility for him or her to obtain full compensation for the harm by demonstrating the loss of opportunities to find employment, provided that such legislation is accompanied by an effective and dissuasive penalty mechanism, a matter which is for the referring court to verify (judgment of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 54).
51 Therefore, in the present case, if it were the case, in the national legislation at issue in the main proceedings, that there is no other effective measure to prevent and penalise misuse that may have been identified in respect of the teaching staff concerned, such a situation would be likely to undermine the purpose and practical effect of clause 5 of the Framework Agreement (see, to that effect, judgment of 13 January 2022, MIUR and Ufficio Scolastico Regionale per la Campania, C‑282/19, EU:C:2022:3, paragraph 85).
52 Finally, it should be remembered that it is not for the Court to rule on the interpretation of provisions of national law, that being exclusively for the national courts that have jurisdiction. Nevertheless, the Court, when giving a preliminary ruling, may offer clarification to guide that court in its findings as to whether the requirements set out in clause 5 of the Framework Agreement are satisfied by the provisions of the applicable national legislation (see, to that effect, judgment of 24 June 2021, Obras y Servicios Públicos and Acciona Agua, C‑550/19, EU:C:2021:514, paragraphs 50 and 52).
53 It is apparent from the order for reference that, first, the national legislation at issue in the main proceedings allows for the recruitment, in schools of the navy and air force, of civilian teaching staff of non-military subjects by way of successive fixed-term employment contracts without providing for any of the limits referred to in clause 5(1)(b) and (c) of the Framework Agreement as to the maximum total duration of those contracts or the number of renewals of those contracts and that, second, the fixed-term employment contracts concluded in the teaching sector are excluded from the scope of the national provisions which make it possible for such contracts concluded successively beyond a certain period of time to be reclassified as employment contracts of indefinite duration and, where necessary, for compensation for the damage suffered on account of the failure to reclassify them.
54 In those circumstances, it must be ascertained whether use, in the teaching sector of civilian teaching staff for non-military subjects in schools of the navy and air force, of successive fixed-term employment contracts can be justified by the existence in national law of objective reasons within the meaning of clause 5(1)(a) of the Framework Agreement and, more specifically, whether the particular nature of schools of the navy and air force and the specific skills of the teachers employed in those schools may constitute such an objective reason.
55 As stated in paragraph 7 of the general considerations of the Framework Agreement, the signatory parties thereto considered that the use of fixed-term employment contracts founded on ‘objective reasons’ is a way to prevent abuse (see, inter alia, judgments of 25 October 2018, Sciotto, C‑331/17, EU:C:2018:859, paragraph 38 and the case-law cited, and of 13 January 2022, MIUR and Ufficio Scolastico Regionale per la Campania, C‑282/19, EU:C:2022:3, paragraph 92 and the case-law cited).
56 The concept of ‘objective reasons’, within the meaning of clause 5(1)(a) of the Framework Agreement, must 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 (see, inter alia, judgments of 25 October 2018, Sciotto, C‑331/17, EU:C:2018:859, paragraph 39 and the case-law cited, and of 13 January 2022, MIUR and Ufficio Scolastico Regionale per la Campania, C‑282/19, EU:C:2022:3, paragraph 93 and the case-law cited).
57 By contrast, 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, is not compatible with the requirements stated in the previous paragraph. Such legislation 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, is capable of achieving the objective pursued and is necessary for that purpose. That legislation therefore carries a real risk that it will result in misuse of that type of contract and, accordingly, is not compatible with the objective and practical effect of the Framework Agreement (see, inter alia, judgments of 25 October 2018, Sciotto, C‑331/17, EU:C:2018:859, paragraph 40 and the case-law cited, and of 13 January 2022, MIUR and Ufficio Scolastico Regionale per la Campania, C‑282/19, EU:C:2022:3, paragraph 94 and the case-law cited).
58 As regards, more specifically, the teaching sector, it is possible that the setting up of an annual teaching programme will give rise to temporary recruitment needs, so that the temporary employment of a worker in order to meet the employer’s temporary and specific staffing requirements may, in principle, constitute an ‘objective reason’ within the meaning of clause 5(1)(a) of the Framework Agreement (see, to that effect, judgment of 25 October 2018, Sciotto, C‑331/17, EU:C:2018:859, paragraph 47 and the case-law cited).
59 By contrast, it cannot be accepted that fixed-term employment contracts may be renewed for the purpose of the performance, in a fixed and permanent manner, of tasks in the schools concerned that come under the normal activity of the sector in question.
60 In that regard, compliance with clause 5(1)(a) of the Framework Agreement requires that it be specifically verified that the renewal of successive fixed-term employment contracts or relationships is intended to cover temporary needs and that a national provision, such as that at issue in the main proceedings, is not, in fact, being used to meet fixed and permanent staffing needs of the employer (see, to that effect, inter alia, judgments of 25 October 2018, Sciotto, C‑331/17, EU:C:2018:859, paragraph 50, and of 24 June 2021, Obras y Servicios Públicos and Acciona Agua, C‑550/19, EU:C:2021:514, paragraph 63 and the case-law cited).
61 As regards the argument relating to the particular nature of schools of the navy and air force, it should be noted that, although the teaching of subjects relating to sensitive military data may be regarded as an objective worthy of constitutional protection, it is not, however, apparent from the documents before the Court how the pursuit of that objective requires employers in the military teaching sector to engage only fixed-term staff. First, they are civilian staff who are called upon to teach non-military subjects and, second, it seems in any event more appropriate, in terms of protecting sensitive data, to retain staff by means of employment contracts of indefinite duration.
62 As regards the competence requirements for the staff in question, whose recruitment would be subject to often changing and diversified knowledge and continuous updating due to developments in military technology and equipment adopted in the specific field, it is also not apparent from the documents before the Court that the subjects taught by M.R. were specific or why the knowledge required gave rise to only a temporary staffing need.
63 On the contrary, it appears that the various fixed-term employment contracts, by which M.R. was employed, gave rise to the performance of similar tasks over many years, with the result that that employment relationship could have satisfied a need which was not temporary but, on the contrary, long-term; this, however, is for the referring court to verify.
64 In that regard, it is also for the referring court to determine whether compensation for termination of the employment relationship is granted, in the military teaching sector, to fixed-term workers, whether, where appropriate, such compensation is adequate to prevent, and, if necessary, penalise misuse of successive fixed-term employment contracts or relationships, and whether it may be classified as an ‘equivalent legal measure’ within the meaning of clause 5(1) of the Framework Agreement.
65 In the light of all the foregoing considerations, the answer to the questions referred is that clause 5 of the Framework Agreement must be interpreted as precluding national legislation which excludes civilian staff responsible for teaching non-military subjects in military schools from the application of rules designed to penalise the misuse of successive fixed-term contracts, in so far as that legislation does not include any other effective measure to prevent and, where relevant, penalise the misuse of successive fixed-term contracts. Reasons relating to the organisational requirements of those schools are not capable of constituting ‘objective reasons’ justifying the renewal of such contracts with such teaching staff responsible for teaching such subjects, within the meaning of clause 5(1)(a) of that framework agreement.
Costs
66 Since 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 (Seventh Chamber) hereby rules:
Clause 5 of the framework agreement on fixed-term work concluded on 18 March 1999 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
must be interpreted as precluding national legislation which excludes civilian staff, responsible for teaching non-military subjects in military schools, from the application of rules designed to penalise the misuse of successive fixed-term contracts, in so far as that legislation does not include any other effective measure to prevent and, where relevant, penalise the misuse of successive fixed-term contracts. Reasons relating to the organisational requirements of those schools are not capable of constituting ‘objective reasons’ justifying the renewal of such contracts with such teaching staff responsible for teaching such subjects, within the meaning of clause 5(1)(a) of that framework agreement.
[Signatures]