Language of document : ECLI:EU:C:2016:726

ORDER OF THE COURT (Tenth Chamber)

21 September 2016 (*)

(Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Successive fixed-term employment contracts — Veterinary assistant in the veterinary health inspection sector — Public sector — Clause 5(1) — Measures aimed at preventing the misuse of fixed-term contracts — Concept of ‘objective reasons’ justifying the use of such contracts — Replacements for vacant posts pending completion of competition procedures)

In Case C‑614/15,

REQUEST for a preliminary ruling under Article 267 TFEU from the Curtea de Apel Craiova (Court of Appeal, Craiova, Romania), made by decision of 21 October 2015, received at the Court on 20 November 2015, in the proceedings

Rodica Popescu

v

Direcția Sanitar Veterinară și pentru Siguranța Alimentelor Gorj,

THE COURT (Tenth Chamber),

composed of F. Biltgen (Rapporteur), President of the Chamber, E. Levits and M. Berger, Judges,

Advocate General: H. Saugmandsgaard Øe,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 99 of the Rules of Procedure of the Court,

makes the following

Order

1        This request for a preliminary ruling concerns the interpretation of clause 5(1) 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 Ms Rodica Popescu and her employer, the Direcţia Sanitar Veterinară şi pentru Siguranţa Alimentelor Gorj (Veterinary Health and Food Safety Directorate, Gorj, Romania) (‘the Veterinary Health Directorate’) concerning the categorisation of employment contracts between Ms Popescu and the Directorate.

 Legal context

 European Union law

3        Recital 14 of Directive 1999/70, which is based on Article 139(2) EC, indicates that, in concluding the Framework Agreement, the signatory parties wished to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination and to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

4        The second and third paragraphs in the preamble to the Framework Agreement are worded as follows:

‘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.

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. ...’

5        Paragraphs 6, 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;

...

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        According to clause 1 of the Framework Agreement, which is entitled ‘Purpose’, the objective of that agreement is, first, to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination and, secondly, to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

7        Clause 2 of the Framework Agreement, entitled ‘Scope’, states at point 1 that the agreement applies to fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State.

8        Clause 3 of the Framework Agreement, entitled ‘Definitions’, provides:

‘1.      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;

…’

9        Clause 5 of the Framework Agreement, concerning ‘Measures to prevent abuse’, provides as follows:

‘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.’

 Romanian law

10      Under Article 12 of the Legea nr. 53/2003 privind Codul muncii (Law No 53/2003 on the Labour Code, republished in the Monitorul Oficial al României, Part I, No 345/18 May 2011), employment contracts are, as a rule, concluded for an indefinite duration. They may be concluded for a fixed term by way of derogation subject to conditions specifically laid down therein.

11      Under Article 82 of Law No 53/2003, a fixed-term employment contract may be extended, subject to certain conditions, by written agreement of the parties for the period needed to complete a project, programme or specific piece of work. However, the number of successive fixed-term employment contracts concluded by the same parties may not exceed three and each contract may not exceed 12 months in duration.

12      Under Article 83(h) of Law No 53/2003, the conclusion of fixed-term employment contracts is permitted in the cases expressly provided for by specific legislation or in order to complete work, projects or programmes.

13      Under Article 84 of Law No 53/2003, a fixed-term employment contract may not be concluded for a period exceeding 36 months.

14      Article 19 of the Ordonanta de Guvernului nr. 42/2004 privind organizarea activitatii sanitar-veterinare si pentru siguranta alimentelor (Government Order No 42/2004 on the organisation of the veterinary health sector and food safety, published in the Monitorul Oficial al României, Part I, No 94/31 January 2004) (‘the OG No 42/2004’), provides in paragraphs 1 and 2 that the operation of establishments responsible for the collection, production, processing and handling of products and by-products of animal and non-animal origin is authorised, provided that those establishments are authorised under the prevailing veterinary health legislation and have undergone an official inspection.

15      Under Article 19(3) of the OG No 42/2004, official inspections are carried out by specialised staff employed by the veterinary health directorates under fixed-term employment contracts.

16      Under Article 19(4) of the OG No 42/2004, employment contracts referred to in paragraph 3, concluded for the maximum term provided for by the labour legislation, may be extended, if the parties so agree, so long as the circumstances in which they were concluded continue to exist, provided that the financial resources available in that respect are guaranteed, until a new individual employment contract is concluded following the organisation of a competition.

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

17      Ms Popescu was hired as a veterinary assistant with the Veterinary Health Directorate under a fixed-term employment contract running from 14 May 2007 to 31 December 2007.

18      That contract was extended seven times, each time for a one-year period, under which Ms Popescu worked without interruption, at the same workplace and performing the same tasks.

19      The employment contract in question was concluded for the purposes of carrying out official inspections at establishments dealing with the slaughter of animals and the collection, production, pre-processing, processing, storage, transport, marketing, and so on, of products and by-products of animal origin, and at establishments dealing with the collection, production, pre-processing, processing, storage, transport and marketing of products and by-products of non-animal origin.

20      That employment contract further provided that it was intrinsically linked to the duration of operation of the establishments to be inspected.

21      A final extension of that employment contract was concluded on 30 December 2014. It provided that the contract was to be extended beyond 1 January 2015, pending completion of competition procedures with a view to having the post held on a permanent basis. It also stated that the employer could at any time terminate the contract unilaterally.

22      On 29 January 2015, Ms Popescu instituted proceedings against the Veterinary Health Directorate before the Tribunalul Gorj (Gorj Court, Romania), seeking to have the various extensions of her employment contract declared null and void and to have it recategorised as a ‘contract of indefinite duration’.

23      By judgment of 30 April 2015, le Tribunalul Gorj (Gorj Court) dismissed those proceedings.

24      She then appealed against that judgment before the Curtea de Apel Craiova (Court of Appeal, Craiova, Romania).

25      In the Veterinary Health Directorate’s submission, the practice of employing staff for a fixed term in official inspections in the veterinary health sector complies with the Romanian legislation. The veterinary health directorates are territorial public institutions, subordinate to the Autoritatea Națională Sanitar Veterinară (National Veterinary Health Authority) which, due to the nature of the posts held, are authorised to conclude fixed-term employment contracts.

26      The majority opinion of the Curtea de Apel Craiova (Court of Appeal, Craiova) states that the performance of official veterinary health inspections, which are governed by specific legislative provisions, being Article 19(3) and (4) of the OG No 42/2004, comes within the exception laid down in Article 83(1)(h) of the Romanian Labour Code. A clause of the employment contract — to which the claimant expressed no objection — makes the duration of that contract subject to the duration of operation of the establishments assigned, with each change in the assignment of the establishments to be inspected entailing the end of the employment contract in question and the subsequent conclusion of a new employment contract.

27      By contrast, a minority opinion holds that there are grounds to apply the rule under which, following three successive fixed-term employment contracts, the worker must be engaged under an employment contract of indefinite duration, irrespective of the nature of the work being carried out.

28      The referring court notes that there are numerous litigation proceedings that have been brought involving the same subject matter as that at issue in the main proceedings here.

29      In those circumstances, the Curtea de Apel Craiova (Court of Appeal, Craiova) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1)      Is the fact that the activity of the staff specifically responsible for inspections in the veterinary health sector is intrinsically linked to the continuation of the activity of the type of establishments mentioned in [paragraph 19 of the present Order] sufficient grounds for the repeated conclusion of fixed-term contracts, by way of derogation from the general rule adopted in order to transpose Directive 1999/70?

(2)      Does the retaining in national legislation of special provisions permitting the repeated conclusion, for a period such as that described above, of fixed-term employment contracts in the veterinary health inspection sector constitute a failure to fulfil an obligation of the State when transposing Directive 1999/70?’

 Consideration of the questions referred

30      By its two questions, which it is appropriate to consider together, the referring court asks, in essence, whether clause 5(1) of the Framework Agreement must be interpreted as precluding national rules, such as those at issue in the main proceedings, under which the renewal of successive fixed-term employment contracts, in the public sector, is deemed justified by ‘objective reasons’ within the meaning of that clause on the sole ground that inspections performed by staff employed in the veterinary health sector are non-permanent in nature due to the variations in volume of the activities of the establishments to be inspected.

31      Pursuant to Article 99 of the Rules of Procedure of the Court of Justice, where the answer to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law or admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, give its decision by reasoned order.

32      That provision should be applied in the present case. The answer to the questions referred as reformulated may be clearly inferred from the Court’s case-law, in particular the following judgments of 4 July 2006, Adeneler and Others (C‑212/04, EU:C:2006:443); of 23 April 2009, Angelidaki and Others (C‑378/07 to C‑380/07, EU:C:2009:250); of 26 January 2012, Kücük (C‑586/10, EU:C:2012:39); of 13 March 2014, Márquez Samohano (C‑190/13, EU:C:2014:146); of 3 July 2014, Fiamingo and Others (C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044); and of 26 November 2014, Mascolo and Others (C‑22/13, C‑61/13, C‑63/13 and C‑418/13, EU:C:2014:2401).

33      It should be recalled 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 is conceived in broad terms, as 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, 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 (judgments of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 56; of 13 March 2014, Márquez Samohano, C‑190/13, EU:C:2014:146, paragraph 38; and of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13, C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 67).

34      Since the Framework Agreement does not exclude any particular sector from its scope, it is therefore applicable to staff recruited in the veterinary health inspection sector (see, to that effect, judgment of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13, C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 69).

35      It follows that a worker such as the claimant in the main proceedings, employed by the Veterinary Health Directorate as a veterinary assistant in the veterinary health inspection sector, whose employment contract is, under Romanian law, necessarily concluded by that directorate for a fixed duration, comes within the scope of the Framework Agreement.

36      It should be borne in mind for the purposes of interpreting Clause 5(1) of the Framework Agreement 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 prevent the status of employees from being insecure (judgments of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 63; of 23 April 2009, Angelidaki and Others, C‑378/07 to C‑380/07, EU:C:2009:250, paragraph 73; of 26 January 2012, Kücük, C‑586/10, EU:C:2012:39, paragraph 25; of 13 March 2014, Márquez Samohano, C‑190/13, EU:C:2014:146, paragraph 41; of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 54; and of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13, C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 72).

37      As is apparent from the second paragraph of the preamble to the Framework Agreement and from paragraphs 6 and 8 of the general considerations thereto, 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 (judgments of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 62; of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 55; and of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13, C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 73).

38      Accordingly, clause 5(1) of the Framework Agreement requires Member States, in order to prevent the misuse 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 (see, inter alia, judgments of 23 April 2009, Angelidaki and Others, C‑378/07 to C‑380/07, EU:C:2009:250, paragraph 74; of 26 January 2012, Kücük, C‑586/10, EU:C:2012:39, paragraph 26; of 13 March 2014, Márquez Samohano, C‑190/13, EU:C:2014:146, paragraph 42; of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 56; and of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13, C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 74).

39      The Member States enjoy a certain discretion in this 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, while taking account of the needs of specific sectors and/or categories of workers (judgments of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 59 and the case-law cited, and of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13, C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 75).

40      In that way, clause 5(1) of the Framework Agreement assigns to the Member States the general objective of preventing such abuse, 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 (judgments of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 60, and of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13, C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 76).

41      Furthermore, where, as in the present instance, EU law does not lay down any specific penalties in the event that instances of abuse are nevertheless established, it is incumbent on the national authorities to adopt measures that are not only proportionate, but also sufficiently effective and a sufficient deterrent to ensure that the provisions adopted pursuant to the Framework Agreement are fully effective (judgments of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 62 and the case-law cited, and of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13, C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 77).

42      While, in the absence of relevant EU rules, the detailed rules for implementing such provisions are a matter for the domestic legal order of the Member States, under the principle of their procedural autonomy, they must not, however, be less favourable than those governing similar domestic situations (principle of equivalence) or render impossible in practice or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness) (judgments of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 63 and the case-law cited, and of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13, C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 78).

43      Therefore, where abuse of successive fixed-term employment contracts or relationships has taken place, a measure offering effective and equivalent guarantees for the protection of workers must be capable of being applied in order duly to punish that abuse and nullify the consequences of the breach of EU law (judgments of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 64 and the case-law cited, and of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13, C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 79).

44      Moreover, it must be recalled that it is not for the Court to rule on the interpretation of provisions of national law, that being exclusively for the referring court or, as the case may be, the national courts having jurisdiction, which must determine whether the requirements set out in clause 5 of the Framework Agreement are met by the provisions of the applicable national legislation (judgments of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 66 and the case-law cited, and of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13, C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 81).

45      It is therefore for the referring court to determine to what extent the conditions for application and the actual implementation of the relevant provisions of national law render the latter an appropriate measure for preventing and, where necessary, punishing the misuse of successive fixed-term employment contracts or relationships (judgments of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 67 and the case-law cited, and of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13, C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 82).

46      However, the Court, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give the national court guidance in its assessment (judgments of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 68 and the case-law cited, and of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13, C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 83).

47      In the present case, the case file submitted to the Court shows that Law No 53/2003 contains provisions applying cumulatively a number of the measures listed in clause 5(1)(a) to (c) of the Framework Agreement. By way of derogation, however, the OG No 42/2004 allows workers to be engaged in the veterinary health inspection sector under successive fixed-term employment contracts, without providing for any limitation on the duration of those contracts or on the number of renewals of those contracts, as provided for in clause 5(1)(b) and (c).

48      As the OG No 42/2004 does not contain an equivalent measure to those laid down in clause 5(1) of the Framework Agreement, the renewal of fixed-term employment contracts in the veterinary health inspection sector may be permitted only if justified by an ‘objective reason’ within the meaning of clause 5(1)(a) of the Framework Agreement.

49      According to the case-law, the concept of ‘objective reason’ 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 (judgments of 23 April 2009, Angelidaki and Others, C‑378/07 to C‑380/07, EU:C:2009:250, paragraph 96 and the case-law cited; of 26 January 2012, Kücük, C‑586/10, EU:C:2012:39, paragraph 27; and of 13 March 2014, Márquez Samohano, C‑190/13, EU:C:2014:146, paragraph 45).

50      On the other hand, a national provision which merely authorises recourse to successive fixed-term employment contracts, in a general and abstract manner by a rule of statute or secondary legislation, does not accord with the requirements as stated in the previous two paragraphs (judgments of 23 April 2009, Angelidaki and Others, C‑378/07 to C‑380/07, EU:C:2009:250, paragraph 97 and the case-law cited; of 26 January 2012, Kücük, C‑586/10, EU:C:2012:39, paragraph 28; and of 13 March 2014, Márquez Samohano, C‑190/13, EU:C:2014:146, paragraph 46).

51      Such 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. That 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 Framework Agreement and the requirement that it have practical effect (see, to that effect, judgments of 23 April 2009, Angelidaki and Others, C‑378/07 to C‑380/07, EU:C:2009:250, paragraphs 98 and 100 and the case-law cited; of 26 January 2012, Kücük, C‑586/10, EU:C:2012:39, paragraph 29; and of 13 March 2014, Márquez Samohano, C‑190/13, EU:C:2014:146, paragraph 47).

52      In the main proceedings, under the OG No 42/2004, the conclusion and the renewal of fixed-term employment contracts by the veterinary health directorates are subject to compliance with the basic terms of their conclusion, relating to the specific nature of the post held, which is intrinsically linked to the operation of the establishments to be inspected, subject to availability of public financial resources up to the time of conclusion of new employment contracts resulting from the organisation of competition procedures.

53      Therefore, since those national rules do not contain any provision authorising recourse to successive fixed-term employment contracts in a general and abstract manner, but makes their conclusion subject to certain conditions, it must be ascertained whether they accord with objective and transparent criteria that are compatible with the objective of the Framework Agreement and the requirement that it have practical effect.

54      The Court has held in that regard that national rules allowing for the renewal of fixed-term employment contracts to replace other employees who are momentarily unable to perform their tasks or fulfil additional needs of the undertaking are not per se contrary to the Framework Agreement. The temporary replacement of a worker in order to satisfy, in essence, the employer’s temporary 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, judgments of 23 April 2009, Angelidaki and Others, C‑378/07 to C‑380/07, EU:C:2009:250, paragraphs 101 and 102 and the case-law cited, and of 26 January 2012, Kücük, C‑586/10, EU:C:2012:39, paragraph 30).

55      An objective reason may also include allowance under national rules for the conclusion and the renewal of fixed-term employment contracts justified by the need to entrust the performance, on a part-time basis, of specific tasks to specialists with recognised competence who also exercise a professional activity other than under that fixed-term employment contract (see, to that effect, judgment of 13 March 2014, Márquez Samohano, C‑190/13, EU:C:2014:146, paragraphs 48 and 49).

56      It should be observed in the present case that, as evidenced by the order for reference, the official veterinary health protection inspections are subject to specific legislative rules and are in place to meet obligations imposed by the national legislature as regards not only animal holdings and establishments dealing with the production, storage, transport, processing and marketing of products of animal origin intended for human consumption, but also farms placed in quarantine, game farms, parks and nature reserves, zoos and also incubation stations.

57      Moreover, clause 5(1) of the Framework Agreement, the third paragraph of its preamble and paragraphs 8 and 10 of its general considerations give Member States the discretion, when implementing the agreement, to take account of the particular needs of the specific sectors, provided that that is justified on objective grounds (judgment of 26 February 2015, Commission v Luxembourg, C‑238/14, EU:C:2015:128, paragraph 40).

58      Indeed, the frequency and volume of the inspections to be carried out are liable to vary according to the activities of the establishments to be inspected, which themselves are subject to certain variations.

59      The fact remains, however, that the case file submitted to the Court contains nothing establishing how those characteristics are specific to the sector in question here or why they demonstrate only temporary staffing needs justifying the non-permanent nature of inspection assignments.

60      Those variations are in fact inherent in the type of situation where one activity derives from another, such as inspections, and they may also manifest as an increase or reduction in the workload, depending on factors which are not foreseeable in advance.

61      Moreover, the allegedly non-permanent nature of inspection assignments is contradicted by the fact that the extensions of the fixed-term employment contract of the claimant in the main proceedings have resulted in her providing services over an uninterrupted period of six years and seven months, so that the employment relationship has satisfied not only a temporary staffing need, but indeed a permanent one.

62      Although according to the case-law referred to in paragraph 45 above it is ultimately for the referring court to ascertain whether there is a specific need liable to provide objective justification for the use of successive fixed-term employment contracts in order to address adequately the need for health inspections in the light of clause 5(1)(a) of the Framework Agreement, such a need may not be inferred from an attempt at avoiding exposing the State, in its capacity as employer in the relevant sector, to any financial risks whatsoever.

63      Whilst budgetary considerations may underlie a Member State’s choice of social policy and influence the nature or scope of the measures which it wishes to adopt, they do not in themselves constitute an aim pursued by that policy and, therefore, cannot justify the lack of any measure preventing the misuse of successive fixed-term employment contracts as referred to in clause 5(1) of the Framework Agreement (see judgments of 24 October 2013, Thiele Meneses, C‑220/12, EU:C:2013:683, paragraph 43 and the case-law cited, and of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13, C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 110).

64      Moreover, as regards the reference made in the last amendment to the employment contract of the claimant in the main proceedings to the condition that it was pending completion of competition procedures for recruiting permanent staff, whilst national legislation permitting the renewal of successive fixed-term employment contracts in order to replace staff pending the outcome of competitive selection procedures is capable of being justified by an objective reason, the actual application of that reason must be consistent with the requirements of the Framework Agreement, having regard to the particular features of the activity concerned and to the conditions under which it is carried out (see, to that effect, judgments of 26 January 2012, Kücük, C‑586/10, EU:C:2012:39, paragraph 34 and the case-law cited, and of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13, C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 99).

65      In order for clause 5(1)(a) of the Framework Agreement to be complied with, it must therefore 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 the one 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, judgments of 26 January 2012, Kücük, C‑586/10, EU:C:2012:39, paragraph 39 and the case-law cited, and of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13, C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 101).

66      It is necessary for that purpose to consider in each specific case all the circumstances at issue, taking account, in particular, of the number of successive contracts concluded with the same person or for the purposes of performing the same work, in order to ensure that fixed-term employment contracts or relationships, even those ostensibly concluded to meet a need for replacement staff, are not misused by employers (see, to that effect, judgments of 26 January 2012, Kücük, C‑586/10, EU:C:2012:39, paragraph 40 and the case-law cited, and of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13, C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 102).

67      It is apparent from the order for reference that, on the date the request for a preliminary ruling in the present case was made, the claimant had not been provided with any information as to the progress of any competition procedures, much less any indication as to their outcome, which was highly uncertain.

68      It is ultimately for the national court to determine whether national rules, such as those at issue in the main proceedings, which limit the use of fixed-term employment contracts in order to have replacements for vacant posts pending completion of competition procedures, may be held to comply with clause 5(1)(a) of the Framework Agreement, by ascertaining whether the actual application of the objective reason prevents abusive recourse to fixed-term employment contracts.

69      In the light of all the foregoing considerations, the answer to the questions referred is that clause 5(1) of the Framework Agreement must be interpreted as precluding national rules, such as those at issue in the main proceedings, under which the renewal of successive fixed-term employment contracts, in the public sector, is deemed justified by ‘objective reasons’ within the meaning of that clause on the sole ground that inspections performed by staff employed in the veterinary health sector are non-permanent in nature due to the variations in volume of the activities of the establishments to be inspected, unless the renewal of those contracts is actually aimed at covering a specific need in the relevant sector, without the underlying reason being budgetary considerations, which it is for the national court to verify. Moreover, the fact that the renewal of successive fixed-term contracts is done pending completion of competition procedures does not make those rules compliant with that clause where the actual application thereof leads, in reality, to abusive recourse to successive fixed-term employment contracts, which it is also for the national court to verify.

 Costs

70      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.

On those grounds, the Court (Tenth Chamber) hereby orders:

Clause 5(1) of the 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 rules, such as those at issue in the main proceedings, under which the renewal of successive fixed-term employment contracts, in the public sector, is deemed justified by ‘objective reasons’ within the meaning of that clause on the sole ground that inspections performed by staff employed in the veterinary health sector are non-permanent in nature due to the variations in volume of the activities of the establishments to be inspected, unless the renewal of those contracts is actually aimed at covering a specific need in the relevant sector, without the underlying reason being budgetary considerations, which it is for the national court to verify. Moreover, the fact that the renewal of successive fixed-term contracts is done pending completion of competition procedures does not make those rules compliant with that clause where the actual application thereof leads, in reality, to abusive recourse to successive fixed-term employment contracts, which it is also for the national court to verify.

[Signatures]


* Language of the case: Romanian.