EEC - Social policy; - ETUC, UNICE and ECEP framework agreement concerning fixed term employment contracts - Council directive 1999/70 – Measures aimed at preventing improper use of successive fixed term employment contracts – Objective reasons justifying the renewal of such contracts – Application to successive definite-duration (limited) employment contracts in the public sector – Need to take account of all circumstances in the case, including the number and cumulative duration of the contracts or work relationships with a definite duration concluded in the past with the same employer – Judgment by the national court - Multiplicity of contracts – Tasks almost identical – Presumption of abuse – Possibility of justification by the defendant

Neue Zeitschrift für Arbeitsrecht 2012 p.1359-1366

Following the decision on a preliminary question of the Court of Justice bearing on the interpretation of clause 5, point 1, point a), of the framework agreement on temporary employment, concluded on 18 March 1999, given in the appendix of directive 1999/70, concerning the CES, UNICE and CEEP framework agreements on temporary employment, the Bundesarbeitsgericht (Federal Labour Court) accepted the appeal for revision filed by an employee of the courts of the Land Nordhein Westfalen working on successive fixed-term employment contracts against the decision by which the Landesarbeitsgericht (Higher Regional Labour Court) had rejected the appeal of the said employee (thus upholding the decision of the Arbeitsgericht (Labour court)).

While the applicant claimed that a total of thirty fixed-term employment contracts concluded successively and without interruption over a period of eleven years cannot correspond to a temporary replacement staff requirement, the Land Nordhein Westfalen argued that such a practice was justified according to the national legislation as the temporary replacement was an objective reason regardless of the number of fixed-term contracts concluded successively.

Recalling that, according to the Court of Justice, clause 5, point 1, point a), of the framework agreement on the temporary employment should be interpreted in the sense that the fact that an employer is required to regularly, or even perpetually, resort to temporary replacements, which can also be covered by hiring employees in accordance with the open-ended employment contracts, implies neither the absence of an objective reason under clause 5, point 1, point a), nor the existence of a breach, and noting that it is incumbent upon the authorities of the Member States to judge whether the renewal of the fixed-term employment relationship or contracts is justified by such an objective reason, the Bundesarbeitsgericht accepted the appeal for revision of the applicant and annulled the decision of the Landesarbeitsgericht. Considering that the case was not yet ready to be heard, after annulling the contested decision, it sent it to the Landesarbeitsgericht of the Nordrhein Westphalia state to give its judgment on the possibility of a breach taking into account the high number of contracts and the fact that the tasks carried out were always the same.

DE - Teilzeit- und Befristungsgesetz (TzBfG), Paragraphen 14, 16 et 17

Kündigungsschutzgesetz (KSchG), Paragraph 7

Bundeselterngeld- und Elternzeitgesetz (BEEG), Paragraph 21