October 25
2020
Dolores Utrilla
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24th September 2020
Employment & Immigration Internal Market

How does EU law limit the way in which universities appoint university professors? Pending preliminary ruling published

Official publication has been made of a request for a preliminary ruling (C-265/20) from the Court of Appeal of Antwerp, Belgium (Hof van beroep Antwerpen) in the case FN v Universiteit Antwerpen, concerning the rules for appointment of academic staff in Belgian universities. According to Belgian law, independent academic staff with full-time positions are appointed on a permanent basis, and staff with part-time positions may either be appointed, or employed on a temporary basis for renewable periods of a maximum of six years.

More specifically, the request revolves around the interpretation of (i) Clause 4(1) of the Framework Agreement on fixed-term work set out in the Annex to Council Directive 1999/70, and (ii) Clause 4(1) of the Framework Agreement on part-time work set out in the Annex to Council Directive 97/81

The referring court asks whether these provisions preclude a university from employing a professor, using the justification of ‘freedom of policy’, over a period of 20 years on the basis of some 20 consecutive, short-term and part-time employment contracts and statutory appointments of between one and three years, without any limit on the total number of renewals, in a scenario where other colleagues with similar duties were appointed on a permanent and full-time basis.

Moreover the referring court seeks clarification of whether a university can stipulate in its staff regulations only a general minimum limit of an appointment percentage at 50 percent in order to be eligible for a permanent appointment, but not lay down a single criterion on the basis of which the part-time staff appointed at 50 percent or greater can be appointed on a permanent or temporary basis. 

The request also inquires whether universities can award appointment percentages to a part-time professor, using the justification of unlimited ‘freedom of policy’, without laying down objective criteria, and without applying any objective workload measurement.

Lastly, the Court of Justice is called on to clarify whether EU law prevents a university from denying a temporary and part-time professor, when his or her employment has not been renewed, using the justification of the university’s ‘freedom of policy’, the right to invoke the allegedly abusive nature of the past employment conditions, because he had, so to speak, always accepted those conditions by carrying out the allocated work, with the result that he has waived the protection afforded by EU law.

The officially published version of the request is available here.

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