Santoro (Social policy - Advocate Generals opinion) [2017] EUECJ C-494/16_O (26 October 2017)

Santoro (Social policy - Advocate Generals opinion) [2017] EUECJ C-494/16_O (26 October 2017)

Directive 1999/70/EC and the Framework Agreement do not preclude national legislation which, in the event of misuse by a public employer of successive fixed-term contracts, does not allow conversion to an indefinite contract but provides instead for lump sum compensation between 2.5 and 12 months' salary, provided...

Source-derived case information.

Citation
[2017] EUECJ C-494/16_O
Parties
Applicant: Giuseppa Santoro; Respondent: Comune di Valderice; Respondent: Presidenza del Consiglio dei Ministri
Jurisdiction
European Union
Judgment Date
26 October 2017
Procedural Posture
Reference for a Preliminary Ruling / Advocate General's Opinion
Outcome
Directive 1999/70/EC and the Framework Agreement do not preclude the Italian legislation at issue, subject to the compensation being a sufficient deterrent and effective penalty, and provided compensation for actual loss is available under certain conditions. Final assessment is for the national court.
Legal Topics
Fixed Term Employment, Public Sector Employment, Abuse of Fixed Term Contracts, Principle of Equivalence, Principle of Effectiveness, Compensation for Misuse of Contracts
European Union Law Labour Law Fixed Term Employment Public Sector Employment Abuse of Fixed Term Contracts Principle of Equivalence Principle of Effectiveness Compensation for Misuse of Contracts

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Parties

Giuseppa Santoro

Applicant

Comune di Valderice

Respondent

Presidenza del Consiglio dei Ministri

Respondent

Procedural Posture

Reference for a Preliminary Ruling / Advocate General's Opinion

Legal Issues

  1. 1 Whether national legislation precluding conversion of successive fixed-term public sector contracts into indefinite contracts, but providing only for compensation, complies with Directive 1999/70/EC and the Framework Agreement.
  2. 2 Whether compensation between 2.5 and 12 months' salary is an effective and equivalent penalty for misuse of fixed-term contracts in the public sector.
  3. 3 Whether the principle of equivalence requires public sector workers to receive the same remedies as private sector workers in cases of misuse of fixed-term contracts.

Ratio Decidendi

Directive 1999/70/EC and the Framework Agreement do not preclude national legislation which, in the event of misuse by a public employer of successive fixed-term contracts, does not allow conversion to an indefinite contract but provides instead for lump sum compensation between 2.5 and 12 months' salary, provided such compensation is a sufficient deterrent and effective penalty, and that compensation for actual loss is available if the worker proves loss of opportunity. The principles of effectiveness and equivalence are not breached if these conditions are met, but final assessment is for the national court.

Court Disposition

Directive 1999/70/EC and the Framework Agreement do not preclude the Italian legislation at issue, subject to the compensation being a sufficient deterrent and effective penalty, and provided compensation for actual loss is available under certain conditions. Final assessment is for the national court.

Orders

  • Lump sum compensation between 2.5 and 12 monthly salary payments is permissible if it constitutes a sufficient deterrent, possibly by reference to the duration of misuse or combined with other penalties.
  • Compensation for actual loss is permissible if the worker can prove loss of opportunity or that they would have succeeded in an open competition.