contracts in European jurisprudence THE TERM CONTRACT LAW IN THE EUROPEAN
Group Europe Judiciary Democratic
University of Naples Federico II
Faculty of Law.
1. Abstract
Before addressing the questions under review by the European Court, it should provide some data on the prevalence of fixed-term contracts.
statistical surveys in Europe there has been a growing trend in the average decrease from 13% in 2003 to 14.5% in 2005 using this type of contract within the 25 EU countries.
The country has made greater use of fixed term and Spain in 2005 had a peak of 33.3% compared to total employment.
Regarding the indications of ISTAT Italy reveal that Since 2002, the year following the entry into force of Law 368/2001, there has been a steady growth of fixed-term employment, with an acceleration in growth over the period 2005-2007 for which in 2006 is an increase from 12.3 to 13.1 for all employees, to get to 13.6, for the 3rd quarter of 2007.
E 'also showed that half of all new jobs (9.7% more than in 2005) consist of contracts, and therefore dependent on the composition of employment in the last 10 years is rapidly changing as stable employment gradually loses weight at a rate of one percentage point in two years. In addition, Istat
notes that the growing trend of temporary employment relationships on mainly women and young people by stressing the existence of high-risk areas of uncertainty: plus the ability to switch from one or more unstable relationships to a permanent relationship is very low with the consequence of a generalized precariousness of labor relations.
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Accordingly, the Court finds that the social and legal problems resulting from the widespread use of fixed-term contracts are felt in many European jurisdictions, as the Court of Justice has on several occasions to refer to your examined the various laws that have transposed the Directive 1999/70/EC.
Directive 1999/70/EC implements and attachments in an integral way the European framework agreement on fixed-term contracts (signed by the 'Union des Industries of the European Community and the European Trade Union Confederation) and consists of three parts "the Preamble," the "General" and the normative part real containing the various clauses in the agreement.
The legislative technique used allows to single out very clearly the key principles that the legislature intended to affirm the European social project for the Community and which are summarized in the objectives established a) b) of the directive and will further stated:
1. in the third recital in the preamble that refers to the Community Charter of Fundamental Social Rights of Workers states inter alia that the implementation of internal market must lead to an improvement in living conditions and working conditions of workers in the Community, and that this process must be done with the rapprochement of these conditions is a step in working conditions, especially with regard to flexible forms;
2. in the fourteenth recitals that recalls the need to establish general principles and minimum standards for employment contracts of limited duration, with the aim of improving the quality of work by ensuring the application of the principle of non-discrimination and create a framework to prevent the abuse of successive contracts or fixed-term employment relationships;
3. in the second affirmation of the "Preamble" in which the parties to this agreement recognize that contracts of indefinite duration and will continue to be the common form of employment relationship and that the fixed-term contracts respond, in certain circumstances, to the needs both employers and workers.
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The Court of Justice has so far given in response to requests for preliminary rulings of German courts, the Italian courts, the courts in Greece, the English courts and, ultimately, of the Irish courts.
Mangold on German legislation (c. 144-04 of 22.11.2005)
The first of the judgments concerned the German law, and acted on important questions of interpretation concerning the implementation of the Directive on the 1999-70 term contract made in the German law on the labor market of 23 December 2002 (Court of Justice November 22, 2005, C 144/04, Mangold case).
The Court of Justice in Mangold considered incompatible with the Directive No. 70 of 1999, in particular with the prohibition of deterioration, the German legislation that "for reasons related to the need to promote employment and irrespective of the implementation of the Framework Agreement, implemented by the directive, has lowered the age above which may be concluded without restrictions-term employment contracts. "
In the case of German law, reducing the level of protection (the ability to take out without any justifying reason, workers over 60 years of age) does not violate, in the Court, the provision of recourse as it is expressly aimed at stimulating employment. According to the interpretation
Community courts, the non-regression clause would ensure effective legal binding on the Member States, but would be allowed a reduction of the protection offered by national law, when such a reduction is made outside the transposition of the Directive and is justified by a drawing reform motivated by new and real interest requirements.
The Court of Justice also states that non-regression clause exerts its effect not only when it is formally transposed the EU directive that contains it, but even then, with respect to all measures to supplement or amend the national rules already adopted for implementation.
This principle is of great importance as binding on the states compliance with the provisions of the directive will not only immediately receptive to the law itself but also in the laws that may subsequently be issued in the matter.
Adeneler on Greek legislation (C 212 / 4, 4.7.2006)
a decision of great interest has been issued in relation to Greek law that does not contain any provision for the recurrence of illegal contracts.
Greek legislation has in fact been found to be incompatible with the directive because not only does not include any of the measures provided for in clause 5 to prevent abuses resulting from improper use of forward contracts but because they do not contains equivalent measures that permit, however, to prevent abuse.
He pointed out that clause 5 No. 1 letter. a) the framework agreement on fixed-term employment should be interpreted as precluding the use of fixed-term employment contracts after it is justified fromto mere fact of being required by a general law or regulation of a member state . By contrast, the notion of objective reasons under that clause requires recourse to this particular type of employment relationship. As provided fromto national legislation is justified by the existence of other specific factors relating in particular to the activity in question and conditions of its exercise.
Clause 5 of the framework agreement on permanent employment must be interpreted as precluding national legislation such as that at issue here, which provides that only contracts or fixed-term employment relationships are not separated from each other by a period exceeding 20 days must be regarded as "successive" within the meaning of that clause.
Still, it was stated that the framework agreement precludes the application of national legislation which prohibits in absolute terms, only to turn into a permanent relationship with a succession of fixed-term contracts that, in fact, have been intended to meet the permanent needs of the employer and that, therefore, be considered abusive.
The Court stated, among other things, that "if belated implementation of the national legal order, the Member State concerned of a directive in the absence of direct effect of the relevant provisions of the latter, the courts national need, wherever possible, interpret the law, from the expiry of the implementation in the light of the wording and purpose of the Directive in question in order to achieve the results sought by the latter and focus on the interpretations of national provisions that are most consistent with that purpose, order thereby to achieve a solution compatible with the provisions of that directive. "
COURT 13/09/2007 LAWS OF THE SPANISH BASQUE COUNTRY
The question raised by a judge of the English Autonomous Community of the Basque Country on the interpretation of clause 4 of the framework agreement on fixed-term employment, as implemented by Directive 1999 / 70 EC.
The fact: an employee has worked in business for more than 12 years as an administrative assistant in various hospitals in the public health system, by hand, during this period, the permanent staff of a fixed term. Then came in possession of As a statutory depend indefinitely, has called the shots were recognized wages for periods prior to that had served as an official statutory term. These shots were granted wage after three years of active service but, by virtue of Decree 231-2000 on the working conditions of staff of the Servicio Vasco de Salud and l. 16.12.2003 No. 55 on the Regulations under the regular staff of health services in the implementation of the decree mentioned in the English Autonomous Community of the Basque Country, the shots are reserved for staff who possess the status of permanent employees.
The worker having received no response has appealed to the Labour Court .
The National Health Service found that the appellant was not entitled to wage shots since the date of the application did not have the status of permanent employees.
The Advocate General concluded, in one way, questionable in the sense that the principle of non-discrimination "as regards the conditions of employment" of fixed-term employees than permanent employees "excludes from its scope conditions economic and any kind of remuneration (paragraphs 22, 25 and 27).
The Court of Justice has been shown to make a big step forward on the principle of non discrimination, claiming - with the ruling 13.settembre 2007 - that "the concept of" conditions of employment "referred to in clause 4, paragraph 1, the framework agreement on fixed-term work concluded on 18.3.1999, in the Annex to Council Directive June 28, 1999, 1999 - 70-EC on the ETUC, UNICE and CEEP on fixed-term employment should be interpreted as meaning that it can serve as a basis for a claim such as that at issue in the case, which seeks the grant to a worker for a specified period of seniority that national law subject only to permanent employees, "and that the same clause should be interpreted as precluding the introduction of unequal treatment of temporary workers and permanent workers, justified by the mere fact that it is covered by a provision of the law and regulations of a Member State or by a collective agreement between trade union representatives and staff of the employer work concerned. "
The Court has applied in this case, the principle of non-discrimination in their pay - and in particular in relation to the salaries of female employees - is yet to record many points of crisis in national legislation.
The principle of non discrimination set out in Clause 4 of the EU directive is considered by the Court of Justice a cornerstone indisputable and self-sufficient in that instils into the European content of the principle of equality.
JUDGEMENT OF THE LAWS OF IRELAND 15/04/2008 (CASE IMPACT) of the Grand Chamber of the Court of Justice
IMPACT The case is certainly the pronunciation of most interest among those so far examined, as well as using a technique generally to its increasingly rich, affirms and reaffirms some principles of wide open, and well-founded reason to believe the "multi-level protection."
It contains the implicit claim that the national court must be a European court, which has informed the European Court of Justice on legislation of all member states to implement the principles contained in the EC Treaty. The fact
:
request for a preliminary ruling concerns the interpretation of Clauses 4 and 5 of the Framework and to the extension of the procedural autonomy of Member States and the extent of the obligation of consistent interpretation imposed on judges of the latter.
The reference was made in a dispute between the Irish SINAC IMPACT representing 91 Irish civil servants and government departments which they are employed as non-permanent employees on the one hand, the salary and applied to the same pension on account of their status of temporary workers and, secondly, the conditions for renewal of such fixed-term contracts by one of these ministries.
Ireland has transposed the EU directive with the 2003 law.
must start by saying that the Irish legislation relating to public employees than permanent employees are covered by a separate regime from that applicable to officials that is more advantageous.
In the period immediately preceding the entry into force of Law 2003 one of the ministries has renewed contracts to certain applicants for a maximum of eight years.
Among the applicants, some who had less than three years service in addition to claiming the same employment conditions, a permanent contract.
The most important questions raised by the Labour Court are:
whether Clause 4 (prohibition of discrimination than workers with permanent contracts) of the Framework Agreement is unconditional and sufficiently precise so that it can be invoked by individuals before their courts national
same question to the clause 5 (the principle of prevention from abuse);
if Clause 5 prevents a Member State acting in its capacity as employer, to renew an employment contract for a fixed maximum eight years in the period following the date on which the Directive should be transposed and before the law implementation where previously the renewal has been made for much shorter periods when that replacement has the effect of circumventing the principle of applicaizone clause 5;
whether, if the answer to the courts are required to make any provision of Community law to interpret domestic law so as to make retroactive effect on the date on which the directive was to be implemented;
if the answer to question 1 and 4 if the conditions of employment referred to in Clause 4 include the conditions of a contract of employment relating to wages and pensions.
The Court of Justice stressed that:
the contents of Clause 4 to be unconditional and sufficiently precise to be relied upon by an individual before a national court;
denied that the contents of Clause 5 was sufficiently accurate to implement the minimum protection provided by the Framework Agreement;
said that under Articles. 10 and 249 EC Treaty and Directive 99 of the authority of a member state (with reference to what an employer) employer was not entitled, however, to adopt measures contrary to the objective pursued by the Directive for the prevention of 'abuse of that contract and its renewal for an unusually long term during the period between the deadline for transposition and that of the entry into force national law;
he falls, drawing art. 136 EC Treaty in determining both the elements of pay and the level of these factors should apply to temporary workers the principle of non-discrimination enshrined in Clause 4 of the framework: this is achieved through an adequate interpretation that has circumvented the express exception in Article. 137 Treaty, reaffirming the higher value of the principle of non-discrimination and the consequent inability to exclude from the terms of the contract, an appropriate salary level. He stressed, therefore, as recently stated by the ruling English legislation on 13.9.2007 aforementioned
The importance of the decision is the reaffirmation of the urgent need to effectively implement the principles of the Treaty and to encourage national courts not to assume a recession: the call for direct application of Article. 136 of the EC Treaty makes it clear that the promotion of employment, improved living conditions and work that allows the equalization of workers in progress, adequate social protection, social dialogue, development of human resources to enable a level lasting high employment and the combating of exclusion are not abstract concepts, intended to remain on paper, but also to realize aspirations through the careful work of the court.
THE JUDGEMENT OF THE COURT AND THE NATIONAL COURT OF JUSTICE ON 368/2001
must start by saying that the preliminary issue, highlighted by the doctrine after the enactment of Legislative Decree no. 368/2001, was that of the method used for the transposition of Directive 1999/70/EC. The
Leg. September 6, 2001 No 368, in fact, was made in implementation of the enabling act No 29 December 2000 422 that, when 'art. 2 lett. f) does not dictate self-guiding principles and criteria, but the Government the authority to issue rules "necessary" because the framework was in full compliance with the requirements of the Directive.
Some commentators have argued the contrast of the Legislative Decree with the art. 76 of the Constitution because there was an excess of delegation as part of the actual requirements of the directive, and that was to be the subject of transposition, it was just the one that contains specific provisions on the principle of non-discrimination with respect to comparable permanent workers and the measures prevention of abuse in the succession of contracts.
The legislator is thus went beyond the provisions of the enabling act and would have taken the opportunity to make radical changes to the rules.
It was also argued that these changes reduce, in some cases, the level general protection afforded to workers, in contrast with the so-called non-regression clause (Art. 8), clause whereby the transposition of the Directive does not constitute valid grounds for reducing the general level of protection afforded to workers in the field by 'agreement. In fact, the
Dlgvo No 368/2001 in the wording before the l. 247/2008 (the "New discipline of Welfare," which, among other things, reintroduced explicitly the principle that "the employment contract is concluded, as a rule, for an indefinite period") has been without doubt, from the previous system, a serious moment of rupture: the l. 230 of 1962 made provision to method of the obligatory nature of the cases provided by law or collective bargaining, it was allowed to put an end to the contract of employment and the law of 2001, art. 1 provides only that "allowed the placing of a time limit on length of employment contract against the interests of technical, production, organization or replacement" that must also be specified in a written instrument).
There is no doubt, therefore, that the l. 386/2001 introduced changes reduced compared to previous legislation and regulations and more diverse than those needed to implement the directive, according to the prediction of the delegation, because systematic interpretation of the agreement requires taking into account all the elements that compose it, and then also the principles contained in the Preamble and General Provisions, fully transfused in the Directive.
The scope of so-called "general clause" constituted, in this regard, the main issue debated in the literature and interpretation on which the labor courts have faced, because the answer to that question comes down to maintain the centrality of the employment contract indefinitely as a means of "normal" use of workers or the alternative, without substantial limitations, such term or indefinite contracts as a means of recruitment.
The undoubted expansion of private individual who was descended from the wording of Article. 1 led to question the legitimacy of the term if the inevitability of that was necessary, that it was necessary that the opportunity to work was only temporary and not permanent enough or if any reason, without this illegal and arbitrary, which would make preferable in practical work completed in not exceeding the amount still left to collective bargaining.
must be observed that the "coarse" introduced by Legislative Decree 368-2001 indiscriminate use has resulted in a forward contract that very often, sifted of the court, has had affirmative rulings of infringement of EU principles. And one of the areas where abuse has occurred is the most PA
On this point, the Court of Genoa to the Court of Justice (by order of 21.1.2004) two questions addressed in the judgments September 7, 2006, c. 180/04, Vassallo, and September 7, 2006 c. 53/04, Marrosu Sardino and a little later to decide the case Adeneler referred to above. Both
referral orders concerning contracts concluded in the public and contain important details.
The Court of Justice, September 7, 2006 (cases and case Marrosu and Sardino Vassallo) has ruled on penalties for the abuse of successive fixed-term contracts employed in the use of PA
Italian law, although it ruled out the transformation of the relationship forward in the relationship indefinitely, thus achieving the fundamental purpose of preventing recruitment through poor could be incardinate stable employment relationships without compliance with the procedures and the particular needs without programming staff, provides the "right to damages incurred as a result of working in breach of mandatory rules" in addition to the further guarantee of effectiveness under from recovery against the manager responsible for intentional or grossly negligent compensation paid by the PA (Article 36, paragraph 2 of TU 165/2001)
The legislature, most recently, to try to remedy a kind of precarious stability, "he amended Article 36 of Legislative Decree no. No 165/2001 with dl January 10, 2006, converted with amendments by Law March 9, 2006 No 80. Have been introduced very strict procedural and causal links, to discourage the use of fixed-term contract.
Activation of flexible forms of contract is allowed "only for temporary needs and exceptional," "prior implementation of procedures related to staffing including temporary and subject to the possibility of leasing contracts ... or outsourcing and service contracts', you also need approval by Decree ... in case of recruitment procedures for temporary quotas of more than five units, including training contracts and work. " The mini
reform of flexibility in the public sector has not, however, concerned the sanction for infringement of the rules.
The question of interpretation, which led the Italian court (Tribunal of Genoa, the order of January 21, 2004) to request the intervention of the Court of Justice on the compatibility of the provision in art. 36 of TU in 2001 with the principles laid down by Directive 1999 / 70/CE, as implemented D. Decree No 368/2001, and in particular Article. 5 which provides for punitive measures such as the abuse of fixed-term contract conversion into a contract of indefinite duration.
Of this, however, will tell you about my colleague Basil, with authentic interpretation of its provisions and therefore I omit the examination of the theme.
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I want instead to focus on the notes referral orders of the Court of Ross to the Constitutional Court, the last of which was received with the recent ruling 44/2008 .
With an initial order for referral of the Court of 17.5.2004 Rossano doubted the constitutionality of Article. 9 and 10 of 10 co l. 368/2001 with regard to the prediction that subjects the right of workers hired out to carry out seasonal activities or to meet the so-called "seasonal peaks of activity," in taking over at the same company with the same title to two conditions did not exist before: the provision of that law by the national collective bargaining and refusal course of one year from the termination of the previous report.
The new rules would, according to the Trib in red, with this contrary to the express provisions in the enabling act that breached the clause of non-regression (taken as guiding principle of delegation), understood as a prohibition to the national legislature to waive the rules then existing in pejus (Article 23, paragraph 2, l. 28 February 1987 No. 56).
the Constitutional Court to determine, pursuant to Art. 76 of the Constitution, the constitutionality of Article. 10, paragraphs 9 and 10 of Legislative Decree no. 368/2001, for the alleged violation by the legislator, the prohibition of recourse of national protection, has, by order of June 26, 2006 No 252, returned the documents to the referring court, holding that the trial court decides taking into account the rulings contained in the Court of Justice November 22, 2005, c. 144/04, Mangold above.
The Constitutional Court, therefore, referring to the case law has reaffirmed the principle that a reduction of up to the minimum safeguards required by the directive is legitimate, provided it is justified for purposes other than the mere purpose of implementing the Directive.
By order of the Court of January 16, 2007 Ross has once again brought to the Constitutional Court the same question, but in terms of the absence of delegation with reference to Article. 77 I ° co. Cost
Drawing from the arguments of Ordinance No 252/2006, which expressly refused to rule on this point since it was not enclosed in the grounds of the order of referral, the new decision of the Court Rossano has suggested that Article. 10 l. 368/2001 was issued in the absence of delegation is in reference to the scope of operation of the directive and so, of Community law, both in regard to the breach or indirectly "clause of the same non-recourse, meaning that limited the scope delegated and strictly limited the scope of the transposition of the Directive, the legislator had found an opportunity to degrade the protection afforded to repeal the term right of way and acting as a law that arose totally outside of the delegation.
The Constitutional Court (Judgement 44/2008) has considered it unconstitutional For violation of Article. 77, The Cost ° c, for lack of delegation, the art. 10 co. 9:10 and Art. 11 co. 1 and 2 of Legislative Decree 368/2001 in so far as repealed Art. Co 2 of 23 l. 56/87 regulating the exercise of the right of way of seasonal workers to be reinstated in the same company and with the same qualifications. The Court considers that the contested provisions are declared unlawful and are outside of the EU Directive and also beyond the authority delegated to the government by the Community Law 422/2000, which, unlike many other cases, did not say specific criteria or principles capable to expand the area of \u200b\u200bintervention of the legislator. The Court's reasoning
recalls that already expressed in the principles set out in decision 41 / 2000 by which the Constitutional Court, following the directive of 99 but before the adoption of 368/2001 stated:
1. The Framework Agreement accepted by the EU Directive requires that the term applied to the employment contract was determined by objective reasons, such as reaching a specific date, completing a specific task or the occurrence of a specific event;
2. Member States within the period for transposition of the Directive were obliged to take appropriate measures to prevent the abuse of temporary contracts by identifying the objective reasons which justify its renewal, the duration of successive contracts and the number of possible renewals;
3. Member States shall introduce into their national measures to prevent abuse in terms of the employment contract term only "in the absence of" equivalent standards ";
4. the l. 230/62 gave assurances that contains sufficient measures to avoid any circumvention of the obligations arising from a forward contract;
5. Perhaps the Italian legal system was aligned with the principles of the advance directive and, therefore, during the period for transposing the occurrence house training could not bring forth the principles of the Directive.
the light of what we have to ask if the sentence does not result 44/2008 expressed a wish at the revival of Law 230/1962. The problem of conversion
In this regard it should be noted as D. Legislative Decree 368/2001, rescinding definitely l. '62 230, and with it the general principle of conversion (by holding the note only in the case of recurrence of the contract), poses serious problems for effective protection of the worker in case of unlawful execution of a single contract completed.
The jurisprudence of merit is somewhat on the swing point and a few of the rulings that are not limited to the declaration of nullity of the contract without any economic consequence for the employee.
The Court of legitimacy, it is ruled on the point with the recent Supreme Court 12985/2008 of 21.5.2008 in which it affirmed the applicability of the principle of conversion of the contract in relation to the assumptions under which it must be applied in the formulation prior to the 368/2001 . 247/07, which had been specifically deleted the reference is to the rule of the employment contract of indefinite duration, whether the penalty of automatic conversion of temporary contracts into permanent contracts null and void.
Pronunciation - (concerning a dispute over the contract period stipulated by some workers with Italian Spa) is all the more significant in the context of this conference, as the reasoning followed by colleagues of legitimacy has taken the right moves by the principles contained in the directive and rulings of the European Court of Justice that I have mentioned so far.
E 'has been held that "even in the absence of a provision that expressly sanctions the lack of justifiable reasons, or the nullity of the clause that the people, legitimately and consistently on the merits, the Court has obtained the sanction from the" system "as a whole and general principles, so you do not use an analogy legis and even replacing the legislature or a court of law, but merely interpreting the rule within the framework outlined by the EU directive (which is implementation) and the general system (the profiles of sanctions in relation to employment) guidelines set by the Constitutional Court ", and after a full exursus on European case law and the principles it established the Court added that if the rationale for the prediction of the form written procedural for the contract term is to ensure the certainty of the nature of the counter, empowering the worker's consent, and allow the court to the effective control of the content of the contract, and check through the application of the general clause, the conformity between the interests of the parties planned and interests recognized as worthy of protection through the regulation of that agreement, it follows logically that, in essence, sanctions can not be united by that ratio, especially if the period is not reduced to writing, as in the case where no indication of a sufficient reason justifying.
E 'was then passed for "ubi lex voluit dixit" priority considering the general principle of conservation of the contractual relationship.
addition to clarifying the content of the rulings contained therein, the decision is of particular value because the technique used in the justification of the reasoning for the principles advocated by the best doctrine (Rodotà ) in order to achieve a result constitutional interpretations oriented.
In light of these principles, the welfare law 247/2007 (co 39-43) appears, a result anticipated, although incomplete, and the case law seems, at least from a first reading, going to a better protection than drift caused by 368/2001, the law as well as having marked the formation of precarious stability that I mentioned at the beginning, has contributed to a frightening increase in litigation that still affects the management of the labor process.
Never as in this case the warning that comes from the European case law seems useful in order to oblige member states to adopt clear rules, not only bend the laws of the market.
Cons. Dr. Antonella Di Florio
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