The Court of Justice of the European Union and Fixed-term Workers: Still Fixed but at Least Equal

Caroline de la Porte, Patrick Emmenegger

    Publikation: Working paperForskning

    Resumé

    This Working Paper focuses on the impact of the directive on fixed-term work and the EU's Court of Justice (CJEU) case law concerning fixed-term work from 2007 and 2013. By doing so, this working paper develops an analytical framework to analyse the Europeanisation of labour law with an eye on the literature on labour-market dualisation.
    The findings of this publication show that the fixed-term work directive addresses and affirms the equal treatment of workers, while the position of the CJEU is rather restrictive (especially in cases of clear abuse of fixed-term contract and abusive recourse). The Court indirectly supports the politics of labour dualisation, whereby member states can continue to use fixed-term contracts to increase the labour supply.
    OriginalsprogEngelsk
    Udgivelses stedBruxelles
    UdgiverEuropean Trade Union Institute
    Antal sider30
    StatusUdgivet - 2016
    NavnEuropean Trade Union Institute Working Papers
    Nummer2016.01
    ISSN1994-4446

    Citer dette

    de la Porte, C., & Emmenegger, P. (2016). The Court of Justice of the European Union and Fixed-term Workers: Still Fixed but at Least Equal. Bruxelles: European Trade Union Institute. European Trade Union Institute Working Papers , Nr. 2016.01
    de la Porte, Caroline ; Emmenegger, Patrick. / The Court of Justice of the European Union and Fixed-term Workers : Still Fixed but at Least Equal. Bruxelles : European Trade Union Institute, 2016. (European Trade Union Institute Working Papers ; Nr. 2016.01).
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    title = "The Court of Justice of the European Union and Fixed-term Workers: Still Fixed but at Least Equal",
    abstract = "Fixed-term work benefits employers and increases the prospects of employability of various categories of workers, but it is inherently precarious with regard to dismissal protection and the risk of recurrent fixed-term contracts. Furthermore, workers on this type of contract are vulnerable also in terms of access to training, career development and other important labour rights. The EU directive on fixedterm work emphasises the importance of equal treatment of a worker on a fixedterm contract with a comparable permanent worker, and seeks to prevent abuse of this form of contract. Yet the directive has generated an unusually high amount of litigation, and the research conducted on this case law to date is somewhat piecemeal. We fill this gap by systematically analysing the CJEU case law concerning fixed-term work – an area that is at the crossroads of market-making and marketcorrecting – and linking it up with the literature on labour market dualisation. To this end, we develop an analytical framework to analyse the Europeanisation of labour law, which we then use to analyse both the directive itself and the case law deriving from it (between 2007 and 2013). Our findings show that the fixedterm work directive is used as an entry point to address the equal treatment of workers, and that it is the principle of anti-discrimination that provides the legalbasis for judgements. Equal treatment is affirmed, in the cases analysed, in relation to different provisions of labour contracts. With regard to the question of abusive recourse to fixed-term contracts, by contrast, the position of the CJEU is rather restrictive. While ruling against cases of clear abuse of fixed-term contracts (but only in line with the terms of the directive and not with other principles of EU law), the Court does not rule against the use of this form of contract. In this way, the Court indirectly supports the politics of labour dualisation, whereby member states can continue to use fixed-term contracts to increase the labour supply.",
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    The Court of Justice of the European Union and Fixed-term Workers : Still Fixed but at Least Equal. / de la Porte, Caroline; Emmenegger, Patrick.

    Bruxelles : European Trade Union Institute, 2016.

    Publikation: Working paperForskning

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    AU - Emmenegger, Patrick

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    N2 - Fixed-term work benefits employers and increases the prospects of employability of various categories of workers, but it is inherently precarious with regard to dismissal protection and the risk of recurrent fixed-term contracts. Furthermore, workers on this type of contract are vulnerable also in terms of access to training, career development and other important labour rights. The EU directive on fixedterm work emphasises the importance of equal treatment of a worker on a fixedterm contract with a comparable permanent worker, and seeks to prevent abuse of this form of contract. Yet the directive has generated an unusually high amount of litigation, and the research conducted on this case law to date is somewhat piecemeal. We fill this gap by systematically analysing the CJEU case law concerning fixed-term work – an area that is at the crossroads of market-making and marketcorrecting – and linking it up with the literature on labour market dualisation. To this end, we develop an analytical framework to analyse the Europeanisation of labour law, which we then use to analyse both the directive itself and the case law deriving from it (between 2007 and 2013). Our findings show that the fixedterm work directive is used as an entry point to address the equal treatment of workers, and that it is the principle of anti-discrimination that provides the legalbasis for judgements. Equal treatment is affirmed, in the cases analysed, in relation to different provisions of labour contracts. With regard to the question of abusive recourse to fixed-term contracts, by contrast, the position of the CJEU is rather restrictive. While ruling against cases of clear abuse of fixed-term contracts (but only in line with the terms of the directive and not with other principles of EU law), the Court does not rule against the use of this form of contract. In this way, the Court indirectly supports the politics of labour dualisation, whereby member states can continue to use fixed-term contracts to increase the labour supply.

    AB - Fixed-term work benefits employers and increases the prospects of employability of various categories of workers, but it is inherently precarious with regard to dismissal protection and the risk of recurrent fixed-term contracts. Furthermore, workers on this type of contract are vulnerable also in terms of access to training, career development and other important labour rights. The EU directive on fixedterm work emphasises the importance of equal treatment of a worker on a fixedterm contract with a comparable permanent worker, and seeks to prevent abuse of this form of contract. Yet the directive has generated an unusually high amount of litigation, and the research conducted on this case law to date is somewhat piecemeal. We fill this gap by systematically analysing the CJEU case law concerning fixed-term work – an area that is at the crossroads of market-making and marketcorrecting – and linking it up with the literature on labour market dualisation. To this end, we develop an analytical framework to analyse the Europeanisation of labour law, which we then use to analyse both the directive itself and the case law deriving from it (between 2007 and 2013). Our findings show that the fixedterm work directive is used as an entry point to address the equal treatment of workers, and that it is the principle of anti-discrimination that provides the legalbasis for judgements. Equal treatment is affirmed, in the cases analysed, in relation to different provisions of labour contracts. With regard to the question of abusive recourse to fixed-term contracts, by contrast, the position of the CJEU is rather restrictive. While ruling against cases of clear abuse of fixed-term contracts (but only in line with the terms of the directive and not with other principles of EU law), the Court does not rule against the use of this form of contract. In this way, the Court indirectly supports the politics of labour dualisation, whereby member states can continue to use fixed-term contracts to increase the labour supply.

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