Brussels, 27/01/2012 (Agence Europe) - Recurring or even permanent need for replacement staff may constitute an “objective reason” that can justify repeated renewal of fixed-term employment contracts for this staff, the Court of Justice ruled in its judgment in Case C-586/10 handed down on 26 January.
The matter was referred to the Court by the Bundesarbeitsgericht (Federal Labour Court, Germany) which was hearing a case between Ms Bianca Kücük and her employer. Kücük, having been employed by the Land Nordrhein-Westfalen from 1996 to 2007, on the basis of a total of 13 fixed-term employment contracts, lodged a complaint with the Cologne Labour Court. She argued that her situation corresponded to a permanent, and not temporary, need for replacement staff that should have justified not 13 fixed-term contracts but her employment on a permanent contract. The Bundesarbeitsgericht (Federal Labour Court), which ultimately has to rule on the case, referred the matter to the Court for interpretation of the framework directive on fixed-term contracts, annexed to Directive 1999/70/EC which states that “contracts of indefinite duration are the general form of employment relationship” in the EU and accordingly oblige the member states to adopt measures aimed at preventing any abusive use of successive fixed-term employment contracts.
In its response, the Court holds that a temporary need for replacement staff - as provided for under German law - may, in principle, constitute an “objective reason” under EU law justifying both fixed-term contracts being concluded with replacement staff and the renewal of those contracts. 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 or that there is abuse. To require automatically the conclusion of contracts of indefinite duration when the size of the undertaking or entity concerned and the composition of its personnel mean that the employer is faced with a recurring or permanent need for replacement staff “would go beyond the objectives pursued by the framework agreement … and would disregard the discretion those instruments leave the member states and the social partners”.
However, in the assessment in a specific case of the issue whether the renewal of a fixed-term contract is justified by an objective reason, such as temporary replacement of staff, the national authorities “must take account of all the circumstances of the case, including the number and cumulative duration of the fixed-term contracts concluded in the past with the same employer”, the Court says. (FG/transl.rt)