In Search of a ‘European Model’ for Fixed-Term Work in the Name of the Principle of Effectiveness

Abstract

With Directive 1999/70 on Fixed-Term Work – and more generally through European Directives on flexible work – the European legislator tried to strike a balance between the demands for flexibility coming from employers and the needs to safeguard the rights of flexible workers. This balance has been carried out through various provisions of the Directive, as the Court of Justice of the EU explained over the years: by placing side-by-side ‘hard’ rules, considered by the European judges as directly effective (like the principle of equal treatment between fixed-term workers and comparable permanent workers), and ‘softer’ provisions (like the ones directed to prevent abuse of successive fixed-term contracts) which leave a significant margin of appreciation to the Member States about how to implement them, provided that they do not compromise the objective and the practical effect of the Directive. Fifteen years after the adoption of Directive 1999/70, the present study aims to start from its purposes, in order to identify the basic components of a possible ‘European model’ for Fixed-Term Work by following the CJEU's case law, which has established, ‘in the name’ of the principle of effectiveness, some important restrictions to Member States' discretion in implementing the Directive: a model that may prove useful for evaluating the European consistency of the relevant national laws.