Judgment of the Court (Second Chamber) of 26 January 2012 (reference for a preliminary ruling from the Bundesarbeitsgericht — Germany) — Bianca Kücük v Land Nordrhein-Westfalen

(Case C-586/10) (1)

(Social policy - Directive 1999/70/EC - Clause 5(1)(a) of the Framework Agreement on fixed-term work - Successive fixed-term employment contracts - Objective reasons liable to justify the renewal of such contracts - National rules justifying the use of fixed-term contracts in cases of temporary replacement - Permanent or recurring need for replacement staff - Taking into account of all circumstances surrounding the renewal of successive fixed-term contracts)

2012/C 73/06

Language of the case: German

Referring court

Bundesarbeitsgericht

Parties to the main proceedings

Applicant: Bianca Kücük

Defendant: Land Nordrhein-Westfalen

Re:

Reference for a preliminary ruling — Bundesarbeitsgericht — Interpretation of Clause 5(1) 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 (OJ 1999 L 175, p. 43) — National rules allowing the temporary replacement of employees as an objective reason justifying the use of fixed-term contracts — ‘Objective reasons’ liable to justify the renewal of such contracts

Operative part of the judgment

Clause 5(1)(a) 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 meaning that a temporary need for replacement staff, provided for by national legislation such as that at issue in the main proceedings, may, in principle, constitute an objective reason under that clause. The mere fact that an employer may have to employ temporary replacements on a recurring, or even permanent, basis and that those replacements may also be covered by the hiring of employees under employment contracts of indefinite duration does not mean that there is no objective reason under clause 5(1)(a) of the Framework Agreement or that there is abuse within the meaning of that clause. However, in the assessment of the issue whether the renewal of fixed-term employment contracts or relationships is justified by such an objective reason, the authorities of the Member States must, for matters falling within their sphere of competence, take account of all the circumstances of the case, including the number and cumulative duration of the fixed-term employment contracts or relationships concluded in the past with the same employer.

(1)  OJ C 89, 19.3.2011.