In a judgment returned on Thursday 25 October in case C-331/17, the Court of Justice of the European Union (CJEU) ruled that workers in the sector of activity of operatic and orchestral foundations cannot be excluded from protection against the abuse of fixed-term employment contracts.
An Italian citizen was employed between 2007 and 2011 by the Fondazione Teatro dell’Opera di Roma under several fixed-term contracts. She asked the Tribunale di Roma to declare these successive contracts unlawful and convert them into a contract of unlimited duration. Her case was rejected in 2013, as the specific national rules applicable to operatic and orchestral foundations exclude the application of the rules governing common-law employment contracts to these foundations.
The Court of Appeal of Rome subsequently requested a preliminary ruling from the CJEU to determine whether a national rule that excludes these foundations from the application of employment law rules that penalise multiple usage of fixed-term contracts by converting them into contracts of indefinite duration under certain circumstances is compatible with EU law.
The Court replied in the negative, firstly pointing out that the framework agreement on fixed-term employment (annex to Directive 1999/70/EC) aims to protect employees from job insecurity. The member states must adopt at least one minimum preventive measure provided for by this text, although they do have some freedom to take account of the needs of certain sectors.
The Court then notes that Italian law does not provide for any limit concerning the duration or number of times fixed-term contracts can be renewed for the foundations in question and that multiple use of fixed-term contracts is not justified by any objective reason, be it legal, cultural, budgetary or logistical in nature.
Although the aforementioned framework agreement does not require member states automatically to convert successive fixed-term contracts into permanent contracts, the Court considers that where there is a prohibition for certain sectors, another measure must make it possible to sanction the abusive use of successive fixed-term contracts. It is thus for the national court to consider whether such a measure exists; otherwise, it would still be obliged to interpret the national law, so far as possible, in such a way as to penalise that abuse. (Original version in French by Lucas Tripoteau)