- Case Law of the Court of Justice of the European Union
- July 4, 2014
- Law Firm: BSJP Brockhuis Jurczak Prusak Sp.k. - Warsaw Office
Notice period of two weeks for termination of a fixed-term employment contract could be in contravention of European Union law
In a judgment of 13th March 2014, case C-38/13, the Court of Justice of the European Union (hereinafter: the CJEU) decided that a fixed notice period of two weeks applied when concluding a fixed-term employment contract for a period exceeding six months could be in contravention of European Union law, and specifically clause 4 item 1 of the Framework Agreement on fixed-term work concluded on 18th March 1999 by the following employers’ associations: Union of Industrial and Employers’ Confederations of Europe (UNICE), European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest (CEEP) as well as European Trade Union Confederation (ETUC), as enforced by Council Directive 1999/70/EC of 28th June 1999 (hereinafter: the Agreement):
1. In respect of employment conditions, fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds.
The question referred for a preliminary ruling has been submitted concerning the facts of a case where a worker employed under a fixed-term employment contract concluded for a period of 5 years and stipulating a notice period of two weeks demanded that a notice period calculated based on the length of service be applied to her similarly as in the case of workers employed under employment contracts of indefinite duration.
The CJEU concluded that such different treatment with regard to employment conditions as between workers employed by the same employer under a fixed-term employment contract and those employed on a permanent basis could constitute discriminatory treatment of the former:
“Clause 4 item 1 of the (¿) Agreement must be interpreted as precluding a national rule, such as that at issue in the main proceedings, which provides that, for the termination of fixed-term contracts of employment of more than six months, a fixed notice period of two weeks may be applied regardless of the length of service of the worker concerned, whereas the length of the notice period for contracts of indefinite duration is fixed in accordance with the length of service of the worker concerned and may vary from two weeks to three months, where those two categories of workers are in comparable situations.”
In the substantiation, the CJEU invoked the objectives of the Agreement such as, among others, to ensure the application of the principle of non-discrimination (clause 1 point a) and to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts and relationships (point b). This is, among others, to prevent an employer from using a fixed-term contract to deny a worker certain rights which are recognised for workers employed on a permanent basis (cf. judgment in case C-307/05, Del Cerro Alonso).
Invoking the requirement to ensure that workers employed under fixed-term contracts are granted protection equal to that in effect for workers employed for an indefinite period, as well as interpretation consistent with other acts of secondary European Union legislation, the CJEU concluded that the term “employment conditions”, as used in clause 4 item 4 of the Agreement, does include provisions relating to the notice period.
However, it is only possible to talk about discrimination of workers employed under fixed-term contracts, as compared to those employed on a permanent basis, when it is determined that a worker employed under a fixed-term contract stipulating a notice period of two weeks is engaged in work similar or identical to that carried out by a worker employed by the same employer under a contract of indefinite duration. For this leads to situations where the notice period in the case of the former is shorter despite a length of service that would determine a longer notice period for a worker employed under a contract of indefinite duration.