At the beginning of summer 2023 the Swedish Labour Court (SLC) delivered its judgment in case No. 33 of 2023 (AD 2023:33) between the Svenska Kommunalarbetarförbundet trade union (hereinafter the union) as plaintiff and Fremia (hereinafter the employers’ organisation) and Personlig Assistansförmedling i Jämtland AB (hereinafter the company) as the defendant. The main questions in the case concerned whether a fixed-term employment contract could be declared to have been transformed into a contract of indefinite duration, and whether the specific form of fixed-term employment used should be declared to be in breach of Swedish legislation and the Fixed-Term Work Directive.
The fixed-term employment contract in question was a specific form of temporary contract regulated in a collective agreement for personal assistants, entered into by the trade union and the employers’ organisation. The employee in question had had several successive fixed-term employments with the company during the period 2002 to 2008, when as of 1 August 2008 he was employed on a contract that was ‘fixed-term as long as the assignment lasts’ in accordance with the collective agreement clause regulating such employment. The ground for this fixed-term employment contract was the need of a person who is dependent on care and assistance. The union asked the SLC to request a preliminary ruling from the Court of Justice of the European Union (hereinafter CJEU) in order to clarify whether the need of the person dependent on care and assistance should be considered an objective reason within the meaning of clause 5(1)(a) of the Framework Agreement on Fixed-Term Work. The main part of the judgment deals with the issues of the case in relation to Swedish legislation on the transformation of fixed-term contracts into contracts of indefinite duration and the scope for manoeuvre of the Swedish social partners to deviate from legislation, also in pejus, by means of regulations in collective agreements. For those interested in the limitations to this contractual freedom for Swedish social partners, the case is thus an interesting read. However, this comment will focus on the issues connected to the Fixed-Term Work Directive and the decision of the SLC that clause 5(1) of the Fixed-term Work Framework Agreement was not applicable in the case and, further, that there was no need to request a preliminary ruling from the CJEU.
The judgment contains a passage specifically dedicated to the Fixed-Term Work Directive, in which the SLC refers to clause 5(1) of the Framework Agreement on Fixed-Term Work, and clarifies that the provisions of the Fixed-Term Work Directive have been dealt with on several occasions by the CJEU. Here, the SLC, with reference to C-378-380/07 Angelidaki and Others (paragraphs 104–105) and case law cited therein, states that fixed-term employment, under certain specific conditions, serves the needs of both employers and employees. It further states that fixed-term employment is a characteristic form of employment for certain sectors, occupations and businesses, referring to C-190/13 Samohano (paragraph 51) and case law cited therein. In addition, the court points out that a total maximum duration for substitute fixed-term contracts and for general fixed-term contracts respectively, in accordance with clause 5(1)(b) of the Fixed-Term Work Framework Agreement, is the measure adopted in order to prevent abuse of fixed-term contracts in Sweden. Furthermore, it concludes that clause 5(1) of the Fixed-Term Work Framework Agreement does not have direct effect in accordance with C-286/06 Impact, paragraph 73. Up until this point of the judgment, there is not much to say about the reasoning, which more or less only repeats what is stated in the cited case law without providing any conclusion in relation to the case at hand.
Remarkably, however, the SLC continues and simply states that clause 5(1) of the Fixed-Term Work Framework Agreement is not applicable to an employment relationship of the particular kind in the case in question, since it is a fixed-term employment that has continued without interruption since 2008, and not successive fixed-term employments. As a basis for its reasoning the court refers to C-144/04 Mangold (paragraphs 41–43), C-378-380/07 Angelidaki and Others (paragraph 107) and C-586/10 Kücük (paragraph 45). This statement of the SLC deserves some attention, both in relation to the facts of the case and in relation to the paragraphs referred to in the CJEU case law and their interpretation by the SLC. Starting with the facts of the case, it is clear that the employee had had several successive fixed-term employment contracts with the company before the contract of ‘fixed-term as long as the assignment lasts’ was entered into on 1 August 2008. This is referred to in the union's statement of the background and there is nothing in the case reporting to indicate that those facts were disputed. The SLC, however, does not even mention this in its reasoning. Instead, the reasoning of the court is framed as if there was only one single fixed-term contract, i.e., the one initiated on 1 August 2008. There is no explanation for the motivation behind this choice on the part of the SLC. The entire reasoning of the court is simply framed as if the earlier fixed-term employments during the period 2002 to 2008 did not exist. The SLC's choice had quite drastic and noteworthy consequences for the outcome of the case.
Turning to the use of the CJEU case law applied in the SLC case, it is worth highlighting some issues. In the Mangold case, the circumstances were that only one single contract had been concluded between the parties, as clearly expressed in paragraph 42. Due to the fact that clause 5(1) refers to the prevention of abuse of successive fixed-term contracts, the CJEU did not find an interpretation of clause 5(1)(a) relevant to the proceedings before the national court. However, in the Swedish case the contract in question was not the one and only contract concluded between the parties, and as such, the reasoning in paragraphs 41–43 of the Mangold case is not relevant. Similarly, paragraph 107 of the Angelidaki and Others case highlights that clause 5(1)(a) ‘does not apply to the first or single use of a fixed-term employment contract’. In the SLC case, the fixed-term contract discussed was neither the first, nor a single-use fixed-term employment, since the worker had been employed on fixed-term contracts before. In line with this, paragraph 45 from the Kücük case, also referred to by the SLC, states not only that clause 5(1) applies in case of successive fixed-term contracts only, but that ‘the existence of a succession of fixed-term employment contracts or relationships will be relevant in respect of all measures taken on the basis of that clause’. In addition, paragraph 40 of the Kücük case clarifies that an assessment of objective reason for fixed-term employment shall refer to the most recent contract concluded. None of this is referred to by the SLC in its judgment. Instead, the reasoning of the court is based on the view that the fixed-term contract initiated on 1 August 2008 was the only fixed-term contract between the parties, which completely disregards the previous stated facts of the case, namely, that the employee had been employed on several successive fixed-term contracts with the company during the period 2002 to 2008. There is no reason, nor explanation given for the choice on the part of the court to disregard these previous fixed-term contracts. Instead, the text of the judgment in these parts simply does not contain any mention of them. It is as if the fixed-term employment contracts during the period 2002 to 2008 never existed.
One possible explanation might be found in Swedish legislation on fixed-term employment, which contains a statement on when contracts of fixed-term employment are to be considered successive. Section 5 a, second paragraph, of the Employment Protection Act provides that an employment contract is to be considered successive if it starts within six months of the end of a previous employment with the same employer. This is clearly more than the three-month period of separation between fixed-term employments that the CJEU has deemed reasonable for not considering the separate employment contracts successive (see Angelidaki and Others, paragraph 157), and ought, as such, not pose an issue in relation to the Fixed-Term Work Directive. The reported facts of the Swedish case do not shed any light on whether the last of the fixed-term contracts during the period 2002 to 2008 ended six months or more before 1 August 2008. However, if that had been the situation, a few questions come to mind. Firstly, why would the trade union even ask the SLC to request a preliminary ruling on the interpretation of clause 5(1)(a) in a situation where that clause was not applicable? Secondly, in such a situation the SLC would have had a clear argument for disregarding the previous fixed-term employment contracts and considering the contract starting on 1 August 2008 as a separate fixed-term contract, in line with its reasoning. However, why then would the previous fixed-term employments even be mentioned in the facts of the case, if they were not of relevance to the judgment?
If the fixed-term employment contract that the SLC focused on in its decision had been the only contract between the parties, there would have been no discussion about the SLC's conclusion that Clause 5(1) of the Fixed-Term Work Agreement was not applicable. However, since the facts of the case were such that there had been previous fixed-term employment contracts between the parties, the specific employment contract in question may very well fall within the ambit of the Fixed-Term Work Directive. Nevertheless, the SLC could have made an argument that the form of fixed-term employment was acceptable in accordance with the Fixed-Term Work Framework Agreement. After all, the work in question was of a very specific character, with the person in need of assistance being highly dependent on the person performing the work, including for very intimate matters such as assistance with personal hygiene. This requires a high degree of trust between the person in need of assistance and the personal assistant. Thus, the concept of objective reasons in accordance with clause 5(1)(a) may very well be fulfilled. However, that line of reasoning would also have necessitated the SLC to further discuss the regulation of this form of fixed-term employment and whether it fulfilled the requirement of proportionality as defined in paragraph 34 of Kücük. In other words, the SLC would have had to subject part of a collective agreement to an assessment based on EU labour law. Without clear case law from the CJEU on the scope of manoeuvre for social partners to deal with the regulation of fixed-term employment, the SLC would have had difficulties in arguing that a preliminary ruling was not necessary. In order to avoid the risk of the CJEU setting restrictions for the Swedish social partners on the scope of negotiations, the SLC may thus have decided to take another route. The collective agreement does not specify that this form of fixed-term employment shall be the one and only contract, but considering that it may last for several years without interruption or renewal, such an intention may be implied. The SLC may thus have decided to deal with the case at hand in line with the implicit intention of the collective agreement in order to safeguard the Swedish social partners against having their scope of negotiations restricted by the CJEU.
To sum up, it is remarkable and somewhat unclear why the reasoning of the SLC is framed in this manner, simply overlooking the fact there had been previous fixed-term contracts between the employee and the company. This way of reasoning undermines the court's argument that the Fixed-term Work Directive was not applicable and that there was no ground for requesting a preliminary ruling. The impression that this leaves is, regrettably, that the Swedish Labour Court has sought to find ways of avoiding the application of EU law in a manner that does not paint the Swedish labour law system in a flattering light.
