The protection of public precarious workers in Europe and Italy, waiting for “Godot”

 

By Vincenzo De Michele

 

  1. The problem of public insecurity in Europe for the attention of the EU Parliament

A public hearing was held in the European Parliament by the Committee on Petitions on 22 November 2017 to discuss the issue of “Protection of the rights of workers in temporary or precarious employment, based on petitions received”, i.e. how Member States and EU institutions have implemented the directive 1999/70/CE on fixed-term work.

The “quality” and quantity of the 48 petitions that have been presented makes us reflect on the responsibilities of the European Commission, as guarantor of the Treaties, in the exercise of the supervision of the correct application of European Union legislation.

In fact, note the petition n.178 / 2017 presented by n.108 temporary workers of the non-permanent staff of the European Commission on the implementation of non-discriminatory working conditions and career prospects for the contractual agents of the institution of the Union.

Very high is the number of petitions from Italian citizens, 28 out of 48 petitions submitted in total, all on public precariousness, of which 10 concern the health sector, 5 the educational sector, n.9 honorary judges, n.4 Sicilian local authorities; however, violations of Directive 1999/70/EC are also reported in Portugal (4), Spain (4), France (6), Belgium (1), Great Britain (1) , Germany (1), Greece (1), Poland (1), almost all of them in employment for public administrations.

The problem of the spread of public precariousness had already been reported by Advocate General Jääskinen in the conclusions of Jansen case C-313/10 (EU: C: 2011: 593, paragraph 61), in a preliminary ruling in which compatibility with the Community concept of temporary objective reasons of the Adeneler judgment of the German rule which allowed the term to be affixed justified by financial reasons in the public service.

Advocate General Jääskinen emphasized that public sector employers benefit, by virtue of legislation such as that at issue in the main proceedings, from a power capable of leading them to abuse the conclusion of fixed-term contracts, since, by setting their budgetary priorities, such employers could pre-establish the reason that justifies the use of this form of contract, thus self-dispensing from the respect of essential principles of labour law. He also pointed out that this risk of abuse has an even greater consequence in that there has been a marked increase in the use of contract workers, and not employees who benefit from permanent contracts or the status of civil servant , to meet public sector needs, and this not only in Germany but in most of the EU Member States and, it must be added, also in the organization of the work of the EU Commission.

Advocate General Jääskinen concluded that clause 5 (1) (a) of the framework agreement must be interpreted as meaning that it precludes a national provision, such as the German rule of Article 14 (1) n .7 of the German Federal Law on part-time work and fixed-term contracts of 21 December 2000 (the “TzBfG”), under which the conclusion of a succession of fixed-term work contracts is authorized for budgetary reasons which are reserved exclusively for the public sector.

 

  1. The responsibility of the EU Commission in the precariousness of employment relationships in Europe and in Italy.

Precisely in light of the very rapid and unusual conclusion of the preliminary ruling Jansen C-313/10, described above, it is necessary to identify the main person responsible for the precariousness of flexible employment relationships, especially (but not only) in the public sector, that is, the European Commission, on which the aforementioned petition of contract agents was opened in the PETI Commission of the EU Parliament.

Everything stems from the Vitari judgment of the Court of Justice, in which the Judge of the Union in paragraphs 21-26, in contrast with the conclusions of Advocate General Colomer (EU: C: 2000: 371) and also with the previous Tordeur judgment of the Court of Luxembourg (which concerned temporary work), referred to the national judge (Pretore del lavoro di Torino), on the basis of the internal regulation and therefore of the law n. 230/1962 at the time applicable, the power to verify the conditions for the redevelopment of fixed-term contracts in the event of illegitimate use also against the European institutions and, if so, to apply the corresponding sanction, that is, the conversion for an indefinite period of the employment relationship with an illegitimate term.

The Commission’s contract staff are recruited, through a selective procedure, for a maximum duration of six years – in regulation

Everything stems from the Vitari judgment of the Court of Justice, in which the Judge of the Union in paragraphs 21-26, in contrast with the conclusions of Advocate General Colomer (EU: C: 2000: 371) and also with the previous Tordeur judgment of the Court of Luxembourg (which concerned temporary work), referred to the national judge (Pretore del lavoro di Torino), on the basis of the internal regulation and therefore of the law n. 230/1962 at the time applicable, the power to verify the conditions for the redevelopment of fixed-term contracts in the event of illegitimate use also against the European institutions and, if so, to apply the corresponding sanction, that is, the conversion for an indefinite period of the employment relationship with an illegitimate term.

The Commission’s contract agents are hired, with a selective procedure, for a maximum duration of six years – in the current regulation which came into force from 1 January 2014 (art.3-bis RAA) – on non-vacant posts, because they are occupied by permanent workers absent, or in any case for jobs related to financial allocations other than those of the ordinary budget of the institution, without the possibility of indefinite retraining and of being able to carry out those competitions reserved for “temporary” agents, who differ from officials (permanent workers ” permanent role) as permanent non-permanent workers on vacant posts, destined to terminate the employment relationship in the event of assignment of the vacant post to a permanent official, mostly identified in the person of the same temporary agent, after passing the reserved competition.

On the “internal” level of the employment relationships of contract agents, the European Commission quickly obtained a revision of the Vitari judgment with the Betriebsrat der Vertretung der Europäischen Kommission in Österreich decision, with an interpretative manipulation of the specific precedent (Vitari, paragraph 23), concluding the plenary meeting of the College of Luxembourg for the non-application of the national legislation of the place where the local agent of the Commission operated, thus creating the conditions also for the non-application of Directive 1999/70 / EC towards all staff precarious of the Community institutions.

 

  1. The Italian and German regulatory models in the anti-abusive measures of Directive 1999/70 / EC and the choice of the EU Commission to cancel the objective reasons

It should be remembered that the Community framework agreement on fixed-term work, as regards clause 5, point 1, on preventive measures against the abusive use of fixed-term contracts, incorporated the two models of anti-abuse protection in force in Italian legislation ( art.1 of law n.230 / 1962) of the temporary objective reasons for each individual term contract [letter a)] and in German legislation (art.166 of the law for the increase of employment Beschäftigungsförderungsgesetz, as amended by law n 25/9/1996) of the maximum duration of fixed-term contracts of two years [letter b)] and of the maximum number of three renewals [letter c)].

Following the orientation of the Vitari judgment of the Court of Justice, the German legislator promptly implemented Directive 1999/70 / EC with the law on part-time work and on fixed-term contracts “TzBfG” of 21 December 2000, which entered into effective January 1, 2001, which, in art. 14, governs fixed-term contracts following the Italian model of art.1, paragraph 2, of law n.230 / 1962.

For the first time in German law, in application of Directive 1999/70, it was introduced at no. 1 of art.14 TzBfG the preventive measure referred to in clause 5, point 1, letter a) of the framework agreement of the objective reasons, not provided for in the previous internal regulations, evidently considering the German legislator this measure the most effective among the preventive ones , also in light of the 6th recital of the framework agreement, adding it to the other two preventive measures – already provided for in the previous regulation – of the maximum duration clause (of two years) and the maximum number of renewals (three, within the time span of two years), with a further anti-abusive measure on the succession of contracts of a significant minimum non-work interval (four months) to prevent re-qualification for an indefinite period.

Instead, in Italy with the legislative decree n.368 / 2001, before the corrective and supplementary intervention of the jurisprudence of merit and then of legitimacy, the rule / exception relationship between permanent contract and term contract was eliminated, the provision of only formal defects in the event of failure to specify the generic substitute, technical, organizational or production reasons for affixing the term to relationships lasting more than 12 days i (art.1, comma 2, legislative decree n.368 / 2001) and the regulation of the succession of contracts and sanctions connected to art.5 legislative decree n.368 / 2001, without thus providing none of the preventive measures provided for in clause 5, point 1, of the framework agreement.

  1. The Court of Justice on the discretion of States in the measures transposing Directive 1999/70 / EC mediated by the application of the principle of equality and non-discrimination: the Mangold judgment

After the proposal in January 2004 by the Court of Genoa of the first order for a preliminary ruling on the interpretation of the framework agreement on fixed-term work in the Marrosu-Sardino case on the absolute prohibition of indefinite conversion into public employment that would have been enunciated by the Constitutional Court in the judgment n.89 / 2003, in community circles, with the tolerance of the Commission, we have moved in the (necessary) direction to weaken the effects of directive 1999/70 on precarious public workers in Italy.

It was created in Germany, as an interpretative contrast to the ontologically temporary nature of the objective reasons that justify the application of a term to the employment contract, the leading case of Mr. Mangold, self-styled worker over fifty-two years old hired as a secretary by the German lawyer Helm with a single part-time contract for the duration of a few months, without indicating the reason for the hiring by virtue of a German internal regulation which, to encourage reintegration into employment of older workers, allowed the “acausality” of the fixed-term contract as, however, as we have seen, the other two preventive measures of the clause lasting two years and the maximum number of three renewals.

With the Mangold judgment, the Grand Section of the Court of Justice – provoking the protest of many advocates general for having recklessly combined the effects of two Directives, the 1999/70 one on the fixed-term contract (of which he had denied the application to the present case on the first and only fixed-term contract) and the anti-discrimination one on employment conditions 2000/78 / EC – stated the incompatibility of the internal regulation, which facilitated the temporary reintegration of “older” workers, with Directive 2000/78, allowing the national judge to disregard the national rule and to convert the fake worker Mangold indefinitely, hired fictitiously by the lawyer Helm to create the casus belli.

The Court of Justice, therefore, on an invented court case, starting from the German legislation that had chosen the temporary objective reasons as the main anti-abusive measure, originally excluded the first and only fixed-term contract without objective reasons from the scope of the clause 5 of the Community framework agreement, thus giving Member States the possibility of flexible working relationships without the interpretative interference of Community jurisprudence.

However, the discretion of the Member States in the transposition of the preventive measures of clause 5 of the framework agreement on fixed-term work was mediated, in the Mangold judgment, by the application (contested, not without reason, by Germany for its possible excesses of application in judicial practice) of the Community principle of equality and non-discrimination which, in the subsequent jurisprudence of the Court of Justice, was more correctly included in the context of the comparison (and equivalence) of the “conditions of employment” reserved for permanent workers, pursuant to clause 4, point 1, of the framework agreement, an expression that refers to the rights and obligations that define a given employment relationship, i.e. the conditions under which a person takes on a job.

The Court of Justice has ruled that the indemnity which an employer is obliged to pay to a worker in view of the termination of his fixed-term employment contract, falls within the notion of “conditions of employment”, the notice of termination of fixed-term employment contracts, the allowance that the employer is required to pay to a worker due to the illicit affixing of a term to his employment contract, the increases or the seniority steps, the conditions relating to the remuneration and pensions dependent on the employment relationship, excluding the conditions relating to pensions deriving from a legal social security scheme, the reduction of half the working time and the consequent reduction in salary and the right to participate in the evaluation plan the teaching function and the economic incentive that follows.

Finally, with the Vega González judgment, the Court of Justice accepted the conclusions of Advocate General Sharpston, who had highlighted the discriminatory and contrary nature of clause 4 of the framework agreement on fixed-term work of the national legislation which provides for the granting of a ‘expectation for particular positions in the event of election to public office to permanent officials only, excluding temporary officials.

 

  1. The Court of Justice on the further limit to the discretion of States in the measures transposing Directive 1999/70 / EC into the Community concept of objective reasons: the Adeneler judgment

The Italian government, therefore, had eliminated with the legislative decree n.368 / 2001 the only preventive measure of the objective reasons foreseen in the repealed law n.230 / 1962 applied in the Vitari judgment of the Court of Justice, then reinserted by the jurisprudence , and, after the Mangold ruling from which it drew inspiration, the national legislator introduced with art.1, paragraph 518, of the financial law n.266 / 2005 the acausal contract of Italian post of the art.2, paragraph 1bis, Legislative Decree No. 36/2001, the only law that will survive until December 31, 2016 at the Jobs Act of Legislative Decree No. 81/2015, which fully repealed the Legislative Decree No. 36/2001 and it also eliminated, at the same time, any reference to Directive 1999/70.

Yet, the Adeneler ruling had been the response of the Grand Section of the Court of Justice to itself, with the elaboration of the Community notion of temporary objective reasons (since the first and possibly only fixed-term contract) and of that of successive contracts of referred to in clause 5, point 1, letter a), of the framework agreement, in such a way as to highlight the contractual “fraud” and the circumvention of the rule of the permanent contract as a common form of employment relationships, in the case the lapse time between a term contract and the next one was normally expected to be less than two / three months old.

Notwithstanding the Adeneler judgment, the Commission has attempted to weaken the scope of the anti-abusive preventive measures of clause 5 (1) of the framework agreement, as in the Huet preliminary ruling, in which the Court of Justice rejected the contrary argument of the Commission (Huet, paragraph 37) stating that the transformation of a fixed-term contract into an open-ended contract cannot be considered extraneous to the scope of the framework agreement and the “sanction” is effectively included in the preventive measures of referred to in clause 5 (1) (b) of the framework agreement.

The Huet judgment photographs the effects of the “defaulting” behavior of the EU Commission on the control towards the Member States on the correct transposition of Directive 1999/70, when the French national law approved in the incidental procedure was introduced with art. 13, par.1, of the law n. 2005 843, of 26 July 2005, containing various measures for the transposition of Community law into the civil service, which provides, in peius with respect to the previous applicable regime, the same high limit of use of six “continuous” years of contract agents, introduced remotely of many years by the Commission with the modification of art.3-ter RRA with effect from 1 January 2014, compared to the previous maximum limit of three years. The same three-year limit had also been introduced in Italy, borrowing it from the regulation of the Commission’s contract agents, by Article 5, paragraph 4-bis, Legislative Decree No. 36/2001 with effect from 1 January 2008, in addition to the temporary objective reasons referred to in Article 1, paragraph 1, of the same decree.

However, both the French norm in the public employment of the art.13, par.1, of the law n.2005-843 and the Italian norm applicable (also) to the public work of the art.5, comma 4-bis, d. Legislative Decree no. 368/2001 (the first) and expressly provided for (the second) the sanction of the indefinite transformation of subsequent forward contracts that have exceeded the maximum overall duration clause, while for the contract agents of the EU Commission it is not there is no penalty, for the simple fact that it is impossible to enter into new fixed-term contracts, except by resorting to temporary work.

This reductive interpretation of clause 5 of the framework agreement on fixed-term work by the Commission – which limited, for “internal” use, the transposition of Directive 1999/70 to the mere identification of one of the three preventive measures, that of ” fact “more inadequate (compared to the objective reasons) of the clause of maximum overall duration set in a ceiling so high (six years, but also three years) to allow its application mainly in cases of structural staff shortages – involves the emptying of the legislation of the Union and its non-application, when the rule imposed by the directive (clause of maximum overall duration of employment) is so flexible for the excessively long term and without sanction to demolish the general rule of directive 1999/70, according to which the permanent contract it constitutes the common form of employment relationships.

More on the topic from Sergio Galleano, lawyer, IT, #noprecariouswork

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