Italian seafarers legislation complying with principles of EU law
>> The Italian Navigation Code of Italy set the maximum duration of fixed-term contracts of seafarers ar at one year. The code also required the start date and the duration of the contract to be specified, that every contract concluded for a period exceeding one year was converted into a contract of indefinite duration, and that, if several contracts were concluded for a fixed term or for specified voyages, the employment was considered to be continuous where no more than 60 days elapsed between two contracts.
The EU Framework Agreement (Directive 1999/70) lays down the general principles and minimum requirements relating to fixed-term work. Last year, the Court held in the Della Rocca case that the Framework Agreement did not apply to temporary workers (see, EU:C:2013:235).
In the present case, the referring court asked whether the Framework Agreement must be interpreted as meaning that it applied to workers, such as the appellants in the main proceedings, who were employed as seafarers under fixed-term employment contracts on ferries making sea crossings between two ports situated in the same Member State. If that was indeed the case, the referring Court asked whether the provisions of the Framework Agreement, in particular Clause 3(1) thereof, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provided that fixed-term employment contracts had to indicate their duration, but not their termination date.
The Court of Justice first of all recalled that the Framework Agreement covers generally ‘fixed-term workers who had an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State’ (Article 2 of the Framework Agreement, see also: Adeneler and Others, C-212/04, EU:C:2006:443; Della Rocca, C-290/12, EU:C:2013:235,; and Márquez Samohano, C-190/13, EU:C:2014:146). The Court held that e Framework Agreement applied to all workers providing remunerated services in the context of a fixed-term employment relationship linking them with their employer (Del Cerro Alonso, C-307/05, EU:C:2007:509; Gavieiro Gavieiro and Iglesias Torres, C‑444/09 and C‑456/09, EU:C:2010:819; and the order in Montoya Medina, C‑273/10, EU:C:2011:167).
The Court however added that the scope of the Framework Agreement was not unlimited, as the definition of the contracts and employment relationships to which it applied were not determined by that agreement or by EU law, but by national law and/or practice, so long as those concepts were not defined in a manner that resulted in the arbitrary exclusion of a category of persons from the benefit of the protection provided by the Framework Agreement (see Sibilio, C‑157/11, EU:C:2012:148). The Court reiterated that the agreement did not apply to temporary workers.
Nevertheless, the Court in the present case held that seafarers employed under fixed-term employment contracts on ferries making crossings between two ports within the same Member State, fell within the scope of the Framework Agreement. The Court pointed out that Framework Agreement made it possible for Member States, when implementing the agreement, to take account of the needs of specific sectors and/or categories of workers involved, provided that that was justified on objective grounds (Marrosu and Sardino, C-53/04, EU:C:2006:517, and Kücük, C‑586/10, EU:C:2012:39).
The Court reiterated that the Framework Agreement was not intended to harmonise all national rules relating to fixed-term employment contracts but simply aimed, by determining general principles and minimum requirements, to establish a general framework for ensuring equal treatment for fixed-term workers by protecting them against discrimination and to prevent abuse arising from the use of successive fixed-term work agreements or contracts (see: Impact, C‑268/06, EU:C:2008:223, on which I write this post; Huet, C‑251/11, EU:C:2012:133,; and the order in Vino, C‑20/10, EU:C:2010:677).
The Court held that Clause 3(1) of the Framework Agreement defined the concept of ‘fixed-term worker’ and, in that context, set out the central characteristic of a fixed-term contract, namely the fact that the end of such a contract was determined ‘by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event’. However, that clause did not impose any obligation on Member States in respect of the rules of national law applicable to the conclusion of fixed-term employment contracts.
The Court held that the Framework Agreement did not lay down a general obligation on the Member States to provide for the conversion of fixed-term employment contracts into contracts of indefinite duration. Indeed, Clause 5(2) of the Framework Agreement in principle left it to the Member States to determine the conditions under which fixed-term employment contracts or relationships were to be regarded as contracts or relationships of indefinite duration. It followed that the Framework Agreement did not specify the conditions under which contracts of indefinite duration might be used.
The Court concluded that Clause 5 of the Framework Agreement must be interpreted as meaning that it did not preclude, in principle, national legislation, such as that at issue in the main proceedings, which provided for the conversion of fixed-term employment contracts into employment contracts of indefinite duration only in circumstances where the worker concerned had been employed continuously under such contracts by the same employer for a period longer than one year, the employment relationship being considered to be continuous where the fixed-term employment contracts were separated by time lapses of less than or equal to 60 days. It was, however, for the referring court to satisfy itself that the conditions of application and the effective implementation of that legislation resulted in a measure that was adequate to prevent and punish the misuse of successive fixed-term employment contracts or relationships.