CELEX: 62018CJ0029
Reference for a preliminary ruling
Social policy
Directive 1999/70/EC
Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP
Clause 4
Principle of non-discrimination
Concept of ‘employment conditions’
Comparable situations
Justification
Concept of ‘objective grounds’
Compensation in the event of termination of an employment contract of indefinite duration on an objective ground
Lesser amount of compensation paid on expiry of an employment contract ‘for a specific task or service’

These requests for a preliminary ruling concern the interpretation of Clause 4(1) of the framework agreement on fixed-term work concluded on 18 March 1999 (‘the framework agreement’), which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (
OJ 1999 L 175, p. 43
), and the interpretation of Articles 20 and 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
Those requests have been made in three sets of proceedings between Cobra Servicios Auxiliares SA (‘Cobra’), on the one hand, and José David Sánchez Iglesias (C‑29/18), José Ramón Fiuza Asorey (C‑30/18) and Jesus Valiño Lopez (C‑44/18) (together, ‘the persons concerned’) and FOGASA (C‑29/18 and C‑44/18) and Incatema SL, on the other hand, relating to the payment of compensation following the termination of employment contracts for a specific task or service concluded between the persons concerned and Cobra.
Legal context
EU law
Recital 14 of Directive 1999/70 states:
‘The signatory parties wished to conclude a framework agreement on fixed-term work setting out the general principles and minimum requirements for fixed-term employment contracts and employment relationships; they have demonstrated their desire to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination, and to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships’.
Article 1 of Directive 1999/70 states that the purpose of the directive is ‘to put into effect the framework agreement … concluded between the general cross-industry organisations (ETUC, UNICE and CEEP)’.
The third paragraph of the preamble to the framework agreement states:
‘[The framework agreement] sets out the general principles and minimum requirements relating to fixed-term work, recognising that their detailed application needs to take account of the realities of specific national, sectoral and seasonal situations. It illustrates the willingness of the Social Partners to establish a general framework for ensuring equal treatment for fixed-term workers by protecting them against discrimination and for using fixed-term employment contracts on a basis acceptable to employers and workers.’
According to Clause 1 of the framework agreement, the purpose of that agreement is, first, to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination and, secondly, to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.
Clause 3 of the framework agreement, entitled ‘Definitions’, provides:
‘For the purpose of this agreement:
1.
the term “fixed-term worker” means a person having an employment contract or relationship entered into directly between an employer and a worker where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event.
2.
For the purpose of this agreement, the term “comparable permanent worker” means a worker with an employment contract or relationship of indefinite duration, in the same establishment, engaged in the same or similar work/occupation, due regard being given to qualifications/skills. …’
Clause 4 of the framework agreement, entitled ‘Principle of non-discrimination’, provides in paragraph 1:
‘In respect of employment conditions, fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds.’
Spanish law
Article 15 of the texto refundido de la Ley del Estatuto de los Trabajadores (consolidated text of the Law on the Workers’ Statute), approved by Real Decreto Legislativo 1/1995 (Royal Legislative Decree No 1/1995) of 24 March 1995 (BOE No 75 of 29 March 1995, p. 9654), in the version applicable at the time of the facts in the main proceedings (‘the Workers’ Statute’), states:
‘1.   An employment contract may be concluded for an indefinite period or for a fixed term.
A fixed-term contract may be concluded in the following cases:
(a)
where the worker is employed in order to complete a task which is specific, autonomous and separable from the employer’s activities as a whole, and the task, while limited in time, will be performed, in principle, over an indeterminable period. Such contracts may not be for a period of more than 3 years which may be extended by 12 months by national sectoral collective agreement or, if there is no such agreement, by a lower level sectoral collective agreement. On expiry of those periods, workers acquire the status of permanent workers of the employer. National and lower level sectoral collective agreements, including company-wide agreements, may determine which work or tasks come substantially within the employer’s normal activity and can be covered by contracts of that nature.
…
3.   Temporary contracts entered into in circumvention of the law are deemed to be entered into for an indefinite duration.
…’.
Article 49(1) of the Workers’ Statute provides:
‘1.   An employment contract shall be terminated:
…
(b)
for valid reasons set out in the contract, unless they constitute a manifest abuse of legal procedure by the employer;
(c)
on expiry of the term agreed or completion of the task or service covered by the contract. At the end of the contract, except in the case of temporary replacement (
interinidad
) contracts and training contracts, the worker shall be entitled to receive compensation in an amount equivalent to 12 days’ remuneration for each year of service, or, where applicable, the compensation provided for by specific legislation applicable in the case;
…
(i)
in the event of collective redundancy based on economic, technical, organisational or production grounds;
…
(l)
on legally permissible objective grounds;
…’.
Article 51(1) of that statute provides as follows:
‘For the purposes of this law, “collective redundancy” shall mean the termination of employment contracts on economic, technical, organisational or production grounds where, over a period of 90 days, the termination affects at least:
(a)
10 workers in undertakings employing fewer than 100 workers;
(b)
10% of the number of workers in undertakings employing between 100 and 300 workers;
(c)
30 workers in undertakings employing more than 300 workers.
…
… Production grounds shall be deemed to have been established where changes occur, inter alia, in the demand for the goods or services that the undertaking intends to place on the market.
…’.
Under Article 52 of the Workers’ Statute, an employment contract may be terminated, inter alia, on one of the grounds referred to in Article 51(1) of that statute.
In accordance with Article 53(1)(b) of that statute, termination of an employment contract under Article 52 of the statute entitles the worker to be paid compensation, at the same time as the written notification of termination, equivalent to 20 days’ remuneration for each year of service, periods of less than 1 year being calculated pro rata on a monthly basis, up to a maximum of 12 monthly payments.
Under Article 56(1) of the Workers’ Statute, where an employment contract is unfairly terminated, the employer must either reinstate the worker in the undertaking or pay compensation equivalent to 33 days’ remuneration for each year of service.
The disputes in the main proceedings and the questions referred for a preliminary ruling
On 1 August 2011, Cobra concluded an agreement with Unión Fenosa, an electricity and gas distribution company, under which Unión Fenosa engaged it to read electricity meters, install and replace metres, perform periodic inspections, disconnections and decommissioning and carry out the monthly reading of gas meters, in the territory of the province of Coruña (Spain) (‘the contract for services’).
Cobra employed the persons concerned under fixed-term employment contracts for a specific task or service linked to the term of the contract for services, in particular to perform tasks relating to reading the metres of Unión Fenosa customers.
On 24 February 2015, Unión Fenosa informed Cobra that the contract for services would be terminated from 31 March 2015.
Cobra told the persons concerned that, as a result of Unión Fenosa’s decision to terminate the contract for services, their employment relationships with Cobra would end because the task to be performed had ceased to exist. Cobra also informed the persons concerned that, on the date on which those employment relationships ended, they would be entitled, inter alia, to the compensation under Article 49(1)(c) of the Workers’ Statute.
Cobra also commenced a collective redundancy procedure, based on production-related grounds, affecting 72 permanent workers, who also carried out tasks in performance of the contract for services.
The persons concerned brought proceedings challenging their dismissal, in particular against Cobra, before the Juzgado de lo Social n
o
3 de Santiago de Compostela (Social Court No 3, Santiago de Compostela, Spain).
By judgments delivered in March 2017, that court held that the employment contracts of the persons concerned were abusive and that their termination, therefore, had no basis in law and amounted to unfair dismissal. That court ordered Cobra either to reinstate the workers concerned or to terminate its employment relationship with them and pay them the compensation for unfair dismissal under Article 56(1) of the Workers’ Statute.
Cobra brought an appeal against those judgments before the Tribunal Superior de Justicia de Galicia (High Court of Justice, Galicia, Spain), claiming that the fixed-term employment contracts at issue in the main proceedings were valid.
The persons concerned submit that, if their employment contracts must be found to be valid, they should, by virtue of Clause 4 of the framework agreement and the judgment of 14 September 2016, de Diego Porras (
C‑596/14
,
EU:C:2016:683
), receive the compensation for collective redundancy laid down in Article 53(1)(b) of the Workers’ Statute.
The referring court notes that, according to the case-law of the Tribunal Supremo (Supreme Court, Spain), the fact that a fixed-term contract of employment has been concluded for a specific task or service to perform an activity that is the subject matter of a contract for services between the employer and its customer does not imply that that contract of employment must be deemed to be abusive and that the employment relationship must be reclassified, under Article 15(3) of that statute, as a permanent employment relationship.
According to the referring court, it is apparent from that case-law that the termination of the contract for services, by that customer, signals completion of the task that is the subject matter of the employment contract for a specific task or service, within the meaning of Article 49(1)(c) of the Workers’ Statute and, therefore, gives rise to termination of that latter contract.
It also follows from that case-law that the term of the fixed-term employment contract for a specific task or service is linked to the existence of the need it meets and that, generally speaking, it is difficult, at the time such a contract is concluded, to determine the exact date on which it will end. The Tribunal Supremo (Supreme Court) therefore held, according to the referring court, that so long as that need remains, that is to say, so long as the employer is a party to the contract for services, the employment contract for a specific task or service remains valid, since its term is the same as the duration of the need it meets.
The referring court notes that the fixed-term employment contracts at issue in the main proceedings satisfy the definition of contracts ‘for a specific task or service’, as interpreted by the Tribunal Supremo (Supreme Court).
Nevertheless, in the present case, according to that court, termination of the contract for services, which caused the employment relationship between Cobra and several of its employees to end, gives rise to payment of the compensation corresponding to 12 days for each year of service under Article 49(1)(c) of the Workers’ Statute in respect of workers under fixed-term contracts, and to payment of the compensation corresponding to 20 days for each year of service under Article 53(1)(b) of the Workers’ Statute in respect of permanent workers who do the same work.
Workers under fixed-term contracts are therefore treated differently from comparable permanent workers in respect of an employment condition, as the result, the referring court submits, of the disparate legal provisions laid down by the national law governing entitlement to compensation for the termination of an employment relationship.
Whilst noting that that disparity is explained by the fact that, although the termination of the fixed-term employment contracts and of the employment contracts of indefinite duration at issue in the main proceedings had a common origin in the termination of the contract for services, the fixed-term contracts were terminated on expiry of the term for which they were concluded and the contracts of indefinite duration were terminated as part of a collective redundancy, based on a ground unconnected with the duration of the employment relationship, the referring court wonders whether there are objective grounds that can justify the difference in treatment described in the preceding paragraph of the present judgment.
In the event that the answer to that question is in the negative, the referring court asks whether, to the extent that the disputes in the main proceedings are between individuals and that Article 49(1)(c) of the Workers’ Statute cannot be interpreted in conformity with Directive 1999/70 and the framework agreement, it would be conceivable to find, by analogy with the judgments of 22 November 2005, Mangold (
C‑144/04
,
EU:C:2005:709
), of 19 January 2010, Kücükdeveci (
C‑555/07
,
EU:C:2010:21
), of 13 September 2011, Prigge and Others (
C‑447/09
,
EU:C:2011:573
), and of 19 April 2016, DI (
C‑441/14
,
EU:C:2016:278
), which concern the general principle of non-discrimination on the basis of age, that that provision of Spanish law should not be applied, on the ground that it infringes the principles of equality and non-discrimination enshrined in Articles 20 and 21 of the Charter.
In those circumstances, the Tribunal Superior de Justicia de Galicia (High Court of Justice, Galicia) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Must Clause 4 of the [framework agreement] be interpreted as precluding national legislation which, in respect of the same set of facts (the termination of a contract for services between the employer and a third-party undertaking at the latter’s instigation), provides for a lower level of compensation for (i) termination of a fixed-term employment contract for a specific task or service with a term of the same duration as that of the contract between the employer and the third-party undertaking than it does for (ii) termination of the permanent contracts of comparable workers under a collective redundancy that is justified on production-related grounds pertaining to the employer and arises from the termination of the contract between the employer and the third-party undertaking?
(2)
If the answer is in the affirmative, is the unequal treatment between workers on fixed-term contracts and comparable permanent workers as regards compensation for termination of contract in cases where termination is prompted by the same factual circumstances but based on different legal grounds to be considered to constitute discrimination of the type prohibited in Article 21 of the [Charter], inasmuch as it is contrary to the principles of equal treatment and non-discrimination in Articles 20 and 21 of the Charter, which form part of the general principles of EU law?’
The questions referred
The first question
By its first question, the referring court asks, in essence, whether Clause 4(1) of the framework agreement must be interpreted as precluding national legislation according to which, in a situation such as that at issue in the main proceedings, where termination of the contract for services between the employer and one of its customers had the effect, on the one hand, of terminating employment contracts for a specific task or service between that employer and a number of workers, and, on the other, led to the collective redundancy, on an objective ground, of permanent workers employed by that employer, the compensation for termination of the employment relationship paid to the former workers is less than that awarded to the permanent workers.
It should be recalled in that regard, that, under Clause 1(a) of the framework agreement, one of its objectives is to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination. Similarly, the third paragraph of the preamble to the framework agreement states that it ‘illustrates the willingness of the Social Partners to establish a general framework for ensuring equal treatment for fixed-term workers by protecting them against discrimination’. Recital 14 of Directive 1999/70 states, to that effect, that the aim of the framework agreement is, in particular, to improve the quality of fixed-term work by setting out minimum requirements in order to ensure the application of the principle of non-discrimination (judgment of 21 November 2018, de Diego Porras,
C‑619/17
,
EU:C:2018:936
, paragraph
and the case-law cited).
The framework agreement, and Clause 4 in particular, aims to apply the principle of non-discrimination to fixed-term workers in order to prevent an employer using such an employment relationship to deny those workers rights which are recognised for permanent workers (judgment of 21 November 2018, de Diego Porras,
C‑619/17
,
EU:C:2018:936
, paragraph
and the case-law cited).
In view of the objectives pursued by the framework agreement, as referred to in the two preceding paragraphs, Clause 4 of that framework agreement must be interpreted as articulating a principle of EU social law, which cannot be interpreted restrictively (judgment of 21 November 2018, de Diego Porras,
C‑619/17
,
EU:C:2018:936
, paragraph
and the case-law cited).
It is necessary to bear in mind that Clause 4(1) of the framework agreement prohibits, with regard to employment conditions, less favourable treatment of fixed-term workers as compared with permanent workers, on the sole ground that they are employed for a fixed term, unless different treatment is justified on objective grounds.
In the present case it should be noted, first of all, that because the employment contracts for a specific task or service of the persons concerned were concluded, as emerges from the orders for reference, in the circumstances laid down in Article 49(1)(c) of the Workers’ Statute, in order to complete a specific task, that is to say, in particular to read the meters of Unión Fenosa customers, in performance of the contract for services, the persons concerned are ‘fixed-term workers’ within the meaning of Clause 4(1), read in conjunction with Clause 3(1), of the framework agreement.
It should be noted, secondly, that compensation, such as that at issue in the main proceedings, granted to a worker because his or her employment contract with the employer has been terminated, comes within the concept of ‘employment conditions’ within the meaning of Clause 4(1) of the framework agreement (judgment of 21 November 2018, de Diego Porras,
C‑619/17
,
EU:C:2018:936
, paragraph
and the case-law cited).
It is important to bear in mind, thirdly, that according to the Court’s settled case-law, the principle of non-discrimination, of which Clause 4(1) of the framework agreement is a specific expression, requires that comparable situations should not be treated differently and different situations should not be treated alike, unless such treatment is objectively justified (judgment of 21 November 2018, de Diego Porras,
C‑619/17
,
EU:C:2018:936
, paragraph
and the case-law cited).
In order to assess whether the persons concerned are engaged in the same or similar work for the purposes of the framework agreement, it must be determined, in accordance with Clauses 3(2) and 4(1) of the framework agreement, whether, in the light of a number of factors, such as the nature of the work, training requirements and working conditions, those persons can be regarded as being in a comparable situation (judgment of 21 November 2018, de Diego Porras,
C‑619/17
,
EU:C:2018:936
, paragraph
and the case-law cited).
In the present case, it is for the referring court, which alone has jurisdiction to assess the facts, to determine whether the fixed-term workers employed by Cobra under contracts for a specific task or service were in a situation comparable to that of employees hired for an indefinite duration by the same employer during the same period (see by analogy, judgment of 21 November 2018, de Diego Porras,
C‑619/17
,
EU:C:2018:936
, paragraph
and the case-law cited).
Nevertheless, it is clear from the information available to this Court that the persons concerned, when they were employed by Cobra under those contracts, carried out the same tasks as those assigned to the permanent workers who were dismissed as part of a collective redundancy.
Accordingly, subject to the referring court’s definitive assessment of all the relevant factors, it must be considered that the situation of fixed-term workers such as the persons concerned was comparable to that of the permanent workers employed by Cobra to carry out the same tasks as those assigned to the fixed-term workers.
It is therefore necessary, fourthly and lastly, to ascertain whether there is an objective ground that can justify paying less compensation to the fixed-term workers in question on the expiry of their contracts for a specific work or service, which resulted directly from termination of the contract for services, than that received by permanent workers when they themselves were dismissed, as the result of that same contract for services being terminated, on one of the grounds set out in Article 52 of the Workers’ Statute.
It should be borne in mind in that respect that, according to the settled case-law of the Court, the concept of ‘objective grounds’ within the meaning of Clause 4(1) of the framework agreement requires that the unequal treatment found to exist be justified by precise, specific factors, characterising the employment condition to which it relates, in the particular context in which it occurs and on the basis of objective, transparent criteria, in order to ensure that that unequal treatment in fact meets a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose. Those factors may be apparent, in particular, from the specific nature of the tasks for the performance of which fixed-term contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State (judgment of 21 November 2018, de Diego Porras,
C‑619/17
,
EU:C:2018:936
, paragraph
and the case-law cited).
In the present case, the Spanish Government argues that the context in which compensation is paid under Article 49(1)(c) of the Workers’ Statute is different from that in which compensation is paid under Article 53(1)(b) of that statute. Compensation under Article 49(1)(c) is payable on completion of the task which is the subject matter of a fixed-term contract, such as the contracts for a specific task or service at issue in the main proceedings, whereas the compensation under Article 53(1)(b), which is at a higher rate, is paid where workers are dismissed on one of the grounds set out in Article 52 of that statute, such as economic or technical grounds or grounds relating to the employer’s organisation or production. The Spanish Government states, in essence, that the Article 49 compensation is paid on the occurrence of an event that, at the time of concluding his or her fixed-term employment contract, the worker could have expected. The compensation under Article 52, by contrast, is intended to compensate a worker for the frustration, as a result of his dismissal on one of the grounds set out in Article 52 of the statute, of the legitimate expectation he may have had that his employment relationship would continue. That different context, according to the Spanish Government, justifies that the level of compensation awarded to a worker on termination of his employment contract is not the same in both cases.
It should be noted in that respect that compensation such as that payable by Cobra on termination of the employment contracts for a specific task or service at issue in the main proceedings, which, from the time they were concluded, were expected to terminate on completion of the task for which they had been concluded, is paid in a significantly different context, from a legal point of view, than that in which the employment contract of a permanent worker is terminated on production-related grounds, within the meaning of Articles 51 and 52 of the Workers’ Statute, even though both those events arise from the same circumstance, that is to say, here, termination of the contract for services.
Indeed, it follows from the definition of ‘fixed-term contract’ in Clause 3(1) of the framework agreement that a contract of that kind ceases to have any future effect on expiry of the term stipulated in it, which may be identified as a specific date being reached, the occurrence of a specific event or, as in the present case, completion of a specific task. Thus, the parties to a fixed-term employment contract are aware, from the moment of its conclusion, of the date or event which determines its end. That term limits the duration of the employment relationship without the parties having to make their intentions known in that regard after entering into the contract (see, to that effect, judgment of 21 November 2018, de Diego Porras,
C‑619/17
,
EU:C:2018:936
, paragraph
and the case-law cited).
By contrast, the termination of a permanent employment contract on one of the grounds set out in Article 52 of the Workers’ Statute, on the initiative of the employer, is the result of circumstances arising which were not foreseen at the date the contract was entered into and which disrupt the normal continuation of the employment relationship (judgment of 21 November 2018, de Diego Porras,
C‑619/17
,
EU:C:2018:936
, paragraph
and the case-law cited). As is clear from the Spanish Government’s explanations set out in paragraph 47 of the present judgment, it is precisely in order to compensate for the unforeseen nature of the termination of the employment relationship for such a reason and, accordingly, the frustration of any legitimate expectation the worker may have had at that date as regards the stability of that relationship, that Article 53(1)(b) of the Workers’ Statute requires compensation equivalent to 20 days’ remuneration per year of service to be paid to that dismissed worker in such a case.
It should also be noted that, where employment contracts are terminated on one of the grounds under Article 52 of the Workers’ Statute, Spanish law does not treat fixed-term workers and comparable permanent workers differently, since Article 53(1)(b) of the Workers’ Statute provides for statutory compensation equivalent to 20 days’ remuneration per year of service with the employer to be paid to a worker, irrespective of whether his or her employment contract is for a fixed term or for an indefinite duration.
In that respect, as the European Commission noted, it is for the referring court to examine whether, having regard to the fact that the employment contracts for a specific task or service at issue in the main proceedings were linked to the term of the contract for services and that the contract for services was terminated before expiry, it should be found that those employment contracts had been terminated, before expiry of their assigned term, on one of the grounds under Article 52 of the Workers’ Statute and whether, accordingly, the persons concerned should be awarded the compensation under Article 53(1)(b) of that statute.
In those circumstances, it must be considered that the specific purpose of the compensation for dismissal provided for in Article 53(1)(b) of the Workers’ Statute, like the specific context in which that compensation is paid, constitutes an objective ground that justifies the different treatment at issue in the main proceedings (judgments of 5 June 2018, Montero Mateos,
C‑677/16
,
EU:C:2018:393
, paragraph
; of 5 June 2018, Grupo Norte Facility,
C‑574/16
,
EU:C:2018:390
, paragraph
, and 21 November 2018, de Diego Porras,
C‑619/17
,
EU:C:2018:936
, paragraph
).
In the light of all the foregoing, the answer to the first question should be that Clause 4(1) of the framework agreement must be interpreted as meaning that it does not preclude national legislation according to which, in a situation such as that in the main proceedings, in which termination of the contract for services between the employer and one of its customers had the effect, on the one hand, of terminating employment contracts for a specific task or service between that employer and a number of workers, and, on the other, led to the collective redundancy, on an objective ground, of permanent workers employed by that employer, the compensation for termination of the employment relationship paid to the former workers is less than that awarded to the permanent workers.
The second question
It is clear from the orders for reference, in essence, that the second question is put only in the event that the first question is answered in the affirmative. In view of the reply given to the first question, it is not necessary to answer the second.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Second Chamber) hereby rules that:

Clause 4(1) of the framework agreement on fixed-term work concluded on 18 March 1999, annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP must be interpreted as meaning that it does not preclude national legislation according to which, in a situation such as that in the main proceedings, in which termination of the contract for services between the employer and one of its customers had the effect, on the one hand, of terminating employment contracts for a specific task or service between that employer and a number of workers, and, on the other, led to the collective redundancy, on an objective ground, of permanent workers employed by that employer, the compensation for termination of the employment relationship paid to the former workers is less than that awarded to the permanent workers.

[Signatures]
(
*1
)	Language of the case: Spanish.