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Fixed-term employment contracts: protection against abuse applies also to workers of operatic and orchestral foundations (ECJ C-331/17)

Pierantonio Paulon

Pierantonio Paulon

Italian attorney-at-law (avvocato)

Deciding on the reference of preliminary ruling submitted by the Corte d’Appello di Roma (Court of Appeal of Rome, Italy), the Court of Justice of the European Union (October 25th, 2018 – Case C-331/17, Sciotto v Fondazione Teatro dell’Opera di Roma) stated that workers in the sector of activity of operatic and orchestral foundations cannot be excluded from protection against the abuse of fixed-term employment contracts.

The case

A ballet dancer, Ms Sciotto, was employed from 2007 to 2011 by the Fondazione Teatro dell’Opera di Roma under several successive fixed-term contracts. In 2012 Ms Sciotto sued the foundation before the Tribunale di Roma, asking this latter to declare the fix-term unlawful and the conversion of her employment relationship into a contract of unlimited duration.

In first instance her claim was dismissed on the ground of the peculiarity of the national rules applicable to operatic and orchestral foundations, which would have exempted them from the application of the general rules governing employment contracts.

Nevertheless, the Corte d’Appello di  Roma (Court of Appeal, Rome, Italy) hearing the dispute on appeal, raised before the Court of Justice the question whether EU law precludes such a national legislation which excludes that particular sector of activity (operatic and orchestral foundations) from the application of general rules of employment law, according to which the abuse of successive fixed-term contract is penalised through the automatic transformation of the fixed-term contract (beyond a specific date) into a contract of indefinite duration.

The decision

The Court of Justice, recalling the principles of the framework agreement on fixed-term work concluded on 18 March 1999, set out in the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, stated that the said framework agreement precludes national legislation, pursuant to which the common law rules governing employment relationships and intended to penalise the misuse of successive fixed-term contracts by the automatic transformation of the fixed-term contract into a contract of indefinite duration if the employment relationship goes beyond a specific date are not applicable to the sector of activity of operatic and orchestral foundations, where there is no other effective measure in the domestic legal system penalising abuses identified in that sector.

Though, on one side, the Court of Justice left to the national judge to find whether such alternative effective measures of protection exists, on the other side the Court excluded that some circumstances brought to her attention could represent objective reasons which justifies the recourse to successive fixed-term contracts, such as, among others, the public nature of operatic and orchestral foundations, the traditional use of fixed-term contracts in the specific sector, budgetary considerations.

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