This case involved a clerk at the Cologne District Court who had been employed on some thirteen successive fixed-term contracts over an 11 year period, covering maternity and other absences of permanent staff. She argued that failure to provide permanent employment when there is an apparent need for a permanent employee was in breach of the Directive.

Clause 5 of the FTW Framework Agreement, entitled 'Measures to prevent abuse', states:

'1. To prevent abuse arising from the use of successive fixed-term employment contracts or relationships, Member States, after consultation with social partners in accordance with national law, collective agreements or practice, and/or the social partners, shall, where there are no equivalent legal measures to prevent abuse, introduce in a manner which takes account of the needs of specific sectors and/or categories of workers, one or more of the following measures:

(a) objective reasons justifying the renewal of such contracts or relationships;
(b) the maximum total duration of successive fixed-term employment contracts or relationships;
(c) the number of renewals of such contracts or relationships.'

The Court ruled that the Framework Agreement must be interpreted as meaning that a temporary need for replacement staff, provided for by national legislation such as that at issue in the main proceedings, may, in principle, constitute an objective reason under that clause. It said that, “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 under clause 5(1)(a) of the Framework Agreement or that there is abuse within the meaning of that clause. However, in the assessment of the issue whether the renewal of fixed-term employment contracts or relationships is justified by such an objective reason, the authorities of the Member States must, for matters falling within their sphere of competence, take account of all the circumstances of the case, including the number and cumulative duration of the fixed-term employment contracts or relationships concluded in the past with the same employer."

The case now goes back to the German court to decide whether the employer can objectively justify continuous use of temporary in the appellant's particular case.

The ECJ also noted that the Directive does not force employers to create a permanent position: "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 FTW Framework Agreement and Directive 1999/70 and would disregard the discretion those instruments leave the Member States and, where applicable, the social partners."

Read the full judgement here.

Related article: Contract Clauses – Fixed Terms by Kiera Lee, Director at Mills Selig