Details

Parent Category: News Archives

Created on Monday, 10 September 2012 16:21

Last Updated on Friday, 28 December 2012 18:59

Consecutive Fixed Terms Permissible

Employment contracts concluded for a fixed term on the basis of an objective ground may be extended as long as the objective ground exists. In particular, fixed-term employment to replace staff under §14 I 3 of the Act on Part-Time and Fixed-Term Employment Contracts does not violate Community Law - as the ECJ has now established on January 26, 2012, (re C586/10).

[PPD_PAYTOREADMORE]

The judgment was issued in so-called proceedings for a preliminary ruling under Art. 267 of the Treaty on the Functioning of the European Union, the purpose of which is to ensure uniform jurisprudence in the member states of the European Union. If in assessing a case and the applicable national norms a court has a question about their conformance with Community law, the proceedings are to be stayed and referred to the European Court of Justice for a preliminary ruling.

In the case at issue, the plaintiff employee had been employed for a period of eleven years as court clerk as the result of a total of 13 fixed-term employment contracts. The objective ground for the fixed terms was the continuous need for replacement staff. In the view of the justices, consecutive fixed-terms of such length were not in themselves abusive. This applied, however, with the caveat that the particular circumstance of an individual case must be taken into consideration with respect to the issue of possible permanent employment.

NOTE:

Even though the judgment affirms current practice, adjustments by the Federal Labor Court can be presumed in light of the suggested controls against abusiveness. The court has thus far limited judicial controls to the last fixed-term contract. A return to earlier jurisprudence could be possible, under which heightened requirements were placed on the objective ground in the case of a renewed fixed-term contract.