Visstidsanställningar i Sverige, på kollisionskurs med EU-rätten?

Sammanfattning: Current Swedish labor rules may be on a collision with the European legal rules concerning time-limited employments arising from the EU directive 99/70/EC. The view of the European commission is that the directive has not been fulfilled and properly incorporated in the national rules. There are valid arguments that the level of protection as intended in the directive is achieved, regardless of the commissions view. This paper aims to investigate what this argument is based upon and give a motivated answer if the argument could be considered valid by the European Court in a ruling. This is done with a traditional legal method. Council’s directive 1999/70/EC states that all Member States have to ensure that one or more of the points in clause 5 have to be implemented in the national rules, if the same level of protection is not achieved otherwise. Those points are a maximum number of possible time-limited employments for the same employee, a purpose for the time-limited employment that can be motivated on objective grounds and a maximum timeframe for fixed-term employments stacked on each other. The rules regarding fixed-term employment contracts in Sweden differs, some forms require objective purpose, other require both an objective purpose and a time-limit. One form, general fixed-term employment requires a time-limit only, no objective reason has to be given. This form of fixed term employment is at the heart of the discussion of possible abuse. It is when combining the different forms of fixed-term contract (where one form can be used without objective reason) that the possible abuse occurs. The parties on the labor market and the Swedish government as well as the European commission have been arguing and discussing the matter. The main defense of the Swedish government has been; Abuse of the current rules does not occur, if it does it is through a very limited extent and the Swedish labor system in general gives the same protection as intended by the Council’s directive 1999/70/EG. I have come to the conclusion that there are valid arguments stating that Sweden fulfills the directive in the way it has been implemented. However, I do not think that Sweden would win against the Commission in a ruling. I consider the outcome uncertain, based on the findings in this paper. One defense of the Swedish government on the criticism from the European Commission is that there is a low frequency of actual abuse of current rules. Another defense of the Swedish government is that the same level of protection as intended by the directive is achieved in the current legislation. This may be true, when looking at the Swedish rules engulfing temporary employments as a whole, Sweden may however still be in peril of losing in a ruling of the EC-court, I explain this view in the paper. A new suggestion to put aside all doubts regarding wither the directive is fulfilled or not was put forward by the Swedish government in May 2015, the government whitepaper; DS 2015:29. If the proposition for a new legislation is approved, we will never have a definitive answer to what the EC-court would rule. It is for the time being not sure if DS 2015:29 will become valid law or not, the road ahead is unsure. We have the current Employment protection act, that may or may not fulfill the directive, there is a suggestion for new Employment protection act, put forward by TCO, and there is the suggestion for a new Employment protection act from the government. In the paper these three possible routes are compared with a law and economics method. How strong is the level of protection in each suggestion, and what is the cost in economic terms for that protection.