Joined Cases C‑184/15 and C‑197/15

Florentina Martínez Andrés

v

Servicio Vasco de Salud

and

Juan Carlos Castrejana López

v

Ayuntamiento de Vitoria

(Requests for a preliminary ruling

from the Tribunal Superior de Justicia del País Vasco)

‛Reference for a preliminary ruling — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clauses 5 and 8 — Use of successive fixed-term employment contracts — Measures to prevent abuse resulting from the use of successive fixed-term employment contracts or relationships — Penalties — Reclassification of the fixed-term employment relationship as a ‘non-permanent employment contract of indefinite duration’ — Principle of effectiveness’

Summary — Judgment of the Court (Tenth Chamber), 14 September 2016

1. 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 — Staff employed by the authorities — National legislation providing, in the event of such abuse, a right to maintain the employment relationship only for persons subject to the rules of employment law — Refusal to grant such a right to staff employed under administrative law — Unlawful — Exception — Existence of an effective measure to penalise such abuses with regard to that staff — Verification by the national court

   (Council Directive 1999/70, Annex, clauses 3(1) and 5(1))

2. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Procedures seeking to ensure the obligations following from that directive are performed — Principle of effectiveness — National legislation requiring a fixed-term worker to bring a new action in order to determine the appropriate penalty where abuse resulting from the use of successive fixed-term employment contracts has been established by a judicial authority — Unlawful where there are procedural disadvantages, caused by that legislation, that render excessively difficult the exercise of rights conferred under EU law — Compliance with the right to effective judicial protection — Verification by the referring court

   (Council Directive 1999/70, Annex)

1.  Clause 5(1) of the framework agreement on fixed-term work, which is set out in the annex to Council Directive 1999/70, concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as precluding national legislation from being applied by the national courts of the Member State concerned in such a manner that, in the event of abuse resulting from the use of successive fixed-term employment contracts, a right to maintain the employment relationship is granted to persons employed by the authorities under an employment contract governed by the rules of employment law, but that right is not conferred, in general, on staff employed by those authorities under administrative law, unless there is another effective measure in the national law to penalise such abuses with regard to the latter staff, which it is for the national court to determine.

   It is for the authorities of the Member State concerned to ensure that clause 5(1) of the framework agreement is complied with, by ensuring that workers who have experienced abuse resulting from the use of successive fixed-term employment contracts are not deterred, in the hope of continued public sector employment, from asserting before the national authorities, including the courts, the rights conferred upon them under national law which arise from the implementation by that law of all the preventive measures set out in clause 5(1) of the framework agreement.

   More specifically, the referring court must satisfy itself that the penalties provided for by the national legislation can be applied to employers of all ‘fixed-term’ workers within the meaning of clause 3(1) of the framework agreement if those workers experience abuse arising from the use of successive contracts, regardless of how their contract is classified under domestic law.

   To the extent that, in respect of staff employed in the public authorities under administrative law, there is no other equivalent and effective protective measure, the assimilation of that fixed-term staff with workers having non-permanent contracts of indefinite duration, in accordance with the existing national case-law, could therefore constitute a measure capable of penalising abuse resulting from use of fixed-term employment contracts and eliminating the consequences of infringement of the provisions of the framework agreement.

   (see paras 51-54, operative part 1)

2.  The provisions of the framework agreement on fixed-term work which are set out in the annex to Directive 1999/70, concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, read in conjunction with the principle of effectiveness, must be interpreted as precluding national procedural rules which require a fixed-term worker to bring a new action in order to determine the appropriate penalty where abuse resulting from the use of successive fixed-term employment contracts has been established by a judicial authority, in so far as it results in procedural disadvantages for that worker, in terms, inter alia, of cost, duration and the rules of representation, liable to render excessively difficult the exercise of the rights conferred on him under EU law.

   It is for the referring court, not the Court of Justice, to ascertain that the Member State concerned has taken all necessary steps enabling it to be in a position at any time to guarantee the right to effective judicial protection in compliance with the principles of equivalence and effectiveness.

   As regards, in particular, the principle of effectiveness, the national procedural provisions must be analysed by reference to the role of that provision in the procedure as a whole and to the progress and special features of that procedure before the various national bodies. For those purposes, account must be taken, where appropriate, of the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure.

   (see paras 60, 61, 64, operative part 2)