European Court of Justice (ECJ), 26 January 2012, Ref.: C-586/10
We have already reported several times on the permissibility and legal background of chain time limits:
Chain fixed-term contracts in the public sector
No unlawful chain limitation if a previous employment relationship dates back more than three years.
In a remarkable judgement, the ECJ has now ruled that the multiple extension of fixed-term employment contracts due to the need for replacement may be permissible if the need for replacement proves to be recurring or even permanent.
FactsThe plaintiff was employed for a period of eleven years on the basis of a total of 13 fixed-term employment contracts with the state of North Rhine-Westphalia as a judicial employee in the administrative division of the Local Court of Cologne.
All contracts concluded with her were for the replacement of permanent judicial employees who had taken temporary leave (e.g. due to parental leave).
Before the Cologne Labour Court, the plaintiff finally asserted that her last employment contract should be deemed to be for an indefinite period, as there was no longer any objective reason to justify the fixed-term contract.
Finally, with a total of 13 directly consecutive fixed-term employment contracts, it could no longer be assumed that there was a temporary need for replacement staff.
The Cologne Higher Labour Court finally referred the dispute to the ECJ for a ruling.
European Court of JusticeFirstly, the ECJ found that the temporary need for replacement staff provided for under German law could in principle constitute an objective reason within the meaning of EU law, justifying both the fixed-term nature of the contracts concluded with the replacement staff and their extension.
Therefore, the mere fact that an employer is forced to repeatedly or even permanently resort to temporary replacements does not mean that there is no objective reason or that there is abuse.
Automatically requiring the conclusion of open-ended contracts where the size of the undertaking or organisation concerned and the composition of its staff suggest that the employer is faced with a recurrent or permanent need for replacement staff would go beyond the objectives pursued by the framework agreement of the European social partners implemented by Union law and would therefore infringe the margin of appreciation granted to the Member States and the social partners.
Source: European Court of Justice (ECJ)
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