The Lack of Legal Protection of Union Rights on Termination of Fixed Term Academics at Public Universities in the Flemish Community of Belgium. Admissibility Issues of an Application Based on the Framework Agreement on Fixed-term Work at Public Universities in the Assessment by the Supreme Administrative Court of Belgium

Abstract

The question of sufficient protection of academics employed with successive fixed-term employment contracts or relationships in the university sector had been raised in several procedures before the Court of Justice of the European Union (hereafter: CJEU). These cases deal with the substantive basis of the claims of the academics. Admissibility of their claims was not an issue. Unlike the research dealing with the substantive basis of the claims of academics based on the Framework agreement on fixed-term work, this article deals with a ruling on the admissibility of the plea based on the Framework agreement on fixed-term work encountered by academics in the Flemish Community of Belgium. The article first outlines the exception from general labour law in the Higher Education Code of the Flemish Community of Belgium that allows universities to employ academics indefinitely with fixed-term relationships through the practice of a mosaic combination of a part-time statutory employment under administrative law and a part-time contractual employment under labour law. It then discusses the impact of the exceptions on the admissibility of claims for damages, compensation and reinstatement by fixed-term academics at a Flemish public university based on the violation of Council Directive 1999/70/EC and Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP brought before the Council of State, which is the supreme administrative court of Belgium. The author argues that the Belgian Council of State incorrectly applied Directive 1999/70/EC and the Framework agreement on fixed-term work in judgment no. 247.434 of April 21, 2020, while it was – in its capacity of supreme administrative court of Belgium – under the obligation of Article 267 TFEU to refer for a preliminary ruling to the CJEU. The refusal by the Belgian Council of State to refer questions for a preliminary ruling to the CJEU and a wrong interpretation of Union law could result i. a. in State liability for damage resulting from breach of its obligations under Community law whereas the CJEU could have helped the Belgian Council of State in a preliminary ruling to determine the concept of ‘successive’ employment relationships, preventive measures and measures to punish abuse of fixed term contracts in Flemish universities, rule whether the articles in the Flemish Higher Education Code on vacancies and employment of fixed-term academic staff violate the Council Directive 1999/70/EC and Framework agreement on fixed-term work, and whether national Belgian procedural law makes the application for fixed-term academic staff at a Flemish public university virtually impossible or excessively difficult and therefore incompatible with the principle of effectiveness of Union law.