Article 30 - Protection in the event of unjustified dismissal
Article 51 - Field of application
Key facts of the case:
Reference for a preliminary ruling — Charter of Fundamental Rights of the European Union — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — National legislation providing for an employment contract of indefinite duration with a probationary period of one year — Implementation of EU law — None — Lack of jurisdiction of the Court.
Outcome of the case:
On those grounds, the Court (Tenth Chamber) hereby rules:
The Court of Justice of the European Union does not have jurisdiction to answer the questions referred for a preliminary ruling by the Juzgado de lo Social No 23 de Madrid (Spain) by decision of 4 March 2014.
1) This request for a preliminary ruling concerns the interpretation of Article 30 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p.43).
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3) Article 30 of the Charter guarantees ‘Protection in the event of unjustified dismissal’ in the following terms: ‘Every worker has the right to protection against unjustified dismissal, in accordance with Union law and national laws and practices.’
23) According to the referring court, the employment contract of indefinite duration to support entrepreneurs infringes Article 30 of the Charter; Articles 2.2(b) and 4 of Convention No 158 concerning the Termination of Employment at the Initiative of the Employer, adopted on 22 June 1982 in Geneva by the International Labour Organisation; the European Social Charter signed at Turin on 18 October 1961 (an infringement which is apparent from a decision of the European Committee of Social Rights of 23 May 2012 in relation to a similar Greek contract); and Directive 1999/70.
25) The referring court wonders whether it is contrary to EU law for national legislation to establish and regulate an employment contract which entails a one-year probationary period and, additionally, to make it impossible for the probationary period for that type of contract to be regulated by agreement through collective bargaining. The referring court also wonders whether that probationary period, during which the employer may freely terminate the contract of employment, is compatible with the fundamental right guaranteed by Article 30 of the Charter.
26) In those circumstances, the Juzgado de lo Social No 23 de Madrid decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:
‘1. Is national legislation under which employment contracts of indefinite duration to support entrepreneurs are made subject to a one-year probationary period, during which the employee may freely be dismissed, contrary to EU law, and is it compatible with the fundamental right guaranteed by Article 30 of the Charter?
2. Is the one-year probationary period to which employment contracts of indefinite duration to support entrepreneurs are made subject prejudicial to the objectives of, and to the rules laid down in, Directive 1999/70 — [and, accordingly, Clauses 1 and 3 of the Framework Agreement]?’
27) By its questions, which it is appropriate to examine together, the referring court asks the Court in essence whether, on a proper construction of Article 30 of the Charter, Directive 1999/70 and, more specifically, Clauses 1 and 3 of the Framework Agreement, national legislation such as the Spanish legislation establishing and regulating the employment contract of indefinite duration to support entrepreneurs and providing for a one-year probationary period is precluded.
28) It should be recalled that, so far as actions of the Member States are concerned, the scope of the Charter is defined in Article 51(1) thereof, under which the provisions of the Charter are addressed to the Member States only when they are implementing EU law.
42) In addition, the fact that the employment contract of indefinite duration to support entrepreneurs may be financed by structural funds is not sufficient, in itself, to support the conclusion that the situation at issue in the main proceedings involves the implementation of EU law for the purposes of Article 51(1) of the Charter.
43) In the grounds for its decision, the referring court also refers to Articles 2.2(b) and 4 of Convention No 158 on the Termination of Employment, adopted at Geneva on 22 June 1982 by the International Labour Organisation, and the European Social Charter signed at Turin on 18 October 1961. It must be held that the Court has no jurisdiction under Article 267 TFEU to rule on the interpretation of provisions of international law which bind Member States outside the framework of EU law (see judgments in Vandeweghe and Others, 130/73, EU:C:1973:131, paragraph 2 and TNT Express Nederland, C‑533/08, EU:C:2010:243, paragraph 61; the order in Corpul Naţional al Poliţiştilor, C‑134/12, EU:C:2012:288, paragraph 14; and the judgment in Qurbani, C‑481/13, EU:C:2014:2101, paragraph 22).
