CELEX: 62018CJ0072
Reference for a preliminary ruling
Social policy
Directive 1999/70/CE
Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP
Clause 4(1)
Principle of non-discrimination
Public sector education
National provision granting additional remuneration only to teachers employed for an indefinite duration as established public officials
Exclusion of teachers employed under a fixed-term contract governed by public law
Concept of ‘objective grounds’
Characteristics inherent in the status of established public officials

This request for a preliminary ruling concerns the interpretation of clause 4 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
).
The request has been made in proceedings between Mr Daniel Ustariz Aróstegui and the Departamento de Educación del Gobierno de Navarra (Ministry of Education of the Navarre Government, Spain; ‘the Ministry’) concerning the latter’s refusal to pay him additional remuneration for grade.
Legal context
EU law
The purpose of Directive 1999/70, as provided in Article 1 thereof, is ‘to put into effect the framework agreement … concluded … between the general cross-industry organisations [European Trade Union Confederation (ETUC), Union of Industrial and Employers’ Confederations of Europe (UNICE), the European Centre of Enterprises with Public Participation (CEEP)].’
Pursuant 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, second, 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 as follows:
‘1.
For the purpose of this agreement[,] 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, as follows:
‘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 3(1) of the Texto Refundido del Estatuto del Personal al Servicio de las Administraciones Públicas de Navarra (consolidated text of the Staff Regulations for Officials working for the Public Administration of Navarre), approved by Decreto Foral Legislativo 251/1993 (Legislative Decree 251/1993 of 30 August 1993, ‘DFL 251/93’) provides as follows:
‘Staff working for the Public Administration of Navarre shall comprise:
(a)
public officials;
(b)
non-permanent staff;
(c)
contract staff.’
Article 12 of DFL 251/93 provides:
‘Officials of the Public Administration of Navarre shall be assigned to the following levels, depending on entry qualifications and the duties they perform …’
Article 13 of DFL 251/93 states:
‘1.   Each of the levels referred to in the previous article shall comprise seven grades.
2.   New entrants shall be assigned to grade 1 of the appropriate level.
3.   Officials may progress in stages from grade 1 to grade 7 of their respective level in accordance with Article 16 of these regulations.’
Article 16 of DFL 251/93 provides as follows:
‘1.   Officials may progress in stages from grade 1 to grade 7 of their respective level, regardless of the specialism of their academic qualification, training or profession.
2.   Grade progression shall take place annually as follows:
(a)
it is an essential requirement for progression to a higher grade that an official should have spent at least two years in the previous grade;
(b)
no official may remain for more than eight years in the same grade, except for those officials who have reached grade 7;
(c)
without prejudice to the previous paragraphs, 10 per cent of the officials in grades 1 to 6 inclusive shall progress to the next grade in order of length of service;
(d)
up to 10 percent of officials in grades 1 to 6 inclusive may progress to the next grade immediately through a competition based on qualifications, which shall be held in accordance with regulations issued by the administration.’
The Fourth Transitional Provision of the DFL 251/93 provides:
‘1. With effect from 1 January 1992 and until the regulations referred to in Article 13 of the [Ley Foral 5/1991 de Presupuestos Generales de Navarra para 1991 (Law 5/1991 on the General Budget for Navarre) of 26 February 1991], concerning changes to the current grade and length-of-service arrangements shall have been adopted, the system of grade progression established in Article 16 of these regulations is temporarily suspended, and from that date, those arrangements will be applied independently to each official, in accordance with his or her length of service in the corresponding grade, as follows:
(a)
officials in grades 1 to 6 inclusive shall automatically progress to the next grade on completion of six years and seven months’ service in the previous grade;
(b)
these new arrangements shall initially be applied on the basis of each official’s length of service in the grade on 31 December 1991. If, at that date, an official has more than six years and seven months’ service, the difference shall be treated as length of service in the next grade. The calculation of that length of service and its financial consequences shall apply provisionally until the legal actions concerning the extraordinary five-yearly length-of-service increment shall have been decided.
2. As a consequence of the provisions in the previous paragraph, from the abovementioned date, and likewise temporarily, in the case of progress to a higher level within the same administration in accordance with Article 17 of these regulations, the same grade and length of service shall be maintained in that grade as were held in the level from which the official was promoted.’
Article 40(2) of the DFL 251/93 provides that the basic personal salary payments of officials comprises the starting salary for the relevant level, the additional remuneration for grade and the length-of-service supplement. That article also states that basic personal salary payments are an acquired right vested in public officials.
Article 11 of Decreto Foral 68/2009 por el que se le la contratación de personal en régimen administrativo en las Administraciones Públicas de Navarra (Decree 68/2009 governing employment of staff under public law contracts in the Public Administration of Navarre) of 28 September 2009, as amended by Decreto Foral 21/2017 (Decree 21/2017) of 29 March 2017 (‘Decree 68/2009’) states:
‘Staff employed under a public law contract shall receive the appropriate salary for the post they occupy or the duties they perform, the length-of-service supplement and the family allowance. The additional remuneration for grade is excluded as a basic personal salary payment inherent in the status of a public official.’
The dispute in the main proceedings and the question referred for a preliminary ruling
Mr Ustariz Aróstegui was recruited by the Ministry from September 2007 as a teacher under a fixed-term contract governed by public law. Since that date he has been working at a number of educational centres.
On 1 July 2016, Mr Ustariz Aróstegui requested the Ministry to pay him, with retrospective effect over four years, the additional remuneration for grade to which teachers who are public officials, who have the same length of service as the applicant, are entitled, pursuant to Decree 68/2009.
By application of 18 October 2016, he brought an administrative action against the implied refusal of that request. That action was dismissed on 23 December 2016 by an order of the Ministry.
On 28 February 2017, Mr Ustariz Aróstegui lodged an appeal against that order before the referring court, the Juzgado de lo Contencioso-Administrativo No 1 de Pamplona (Administrative Court No 1, Pamplona, Spain).
The referring court notes that, under the legal regime currently in force in Navarre, the sole objective condition for payment of the additional remuneration for grade is to have completed 6 years and 7 months’ service in the previous grade, such that grade progression takes place automatically with the passage of time. It also states that, since the national legislation treats grades as a mechanism for promotion restricted to public officials, the additional remuneration for grade is considered to be a personal salary payment inherent to the status of public official, which therefore constitutes a subjective requirement for its grant.
The referring court further notes that Mr Ustariz Aróstegui satisfies the objective condition of having completed six years and seven months of service in his post, but does not satisfy the subjective requirement regarding public official status.
While pointing out that there is no difference between the duties, work and professional obligations of a teacher who is a public official and those of a teacher who is employed under a contract governed by public law, the referring court asks whether the nature and purpose of the additional remuneration for grade may constitute objective grounds justifying less favourable treatment of workers employed under a contract governed by public law.
In those circumstances the Juzgado de lo Contencioso-Administrativo No 1 de Pamplona (Administrative Court No 1, Pamplona) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘Must Clause 4 of the [Framework Agreement] be interpreted as precluding a regional legislative provision, such as that at issue in the main proceedings, which expressly excludes the award and payment to staff employed by the Public Administration of Navarre who are classified as “employed under a public law contract” (a fixed-term contract) of particular additional remuneration, on the grounds that the additional remuneration in question constitutes remuneration for promotion and development in a professional career that is open only to staff classified as “established public officials” (with a contract of indefinite duration)?’
Consideration of the question referred
By its question, the referring court asks, in essence, whether clause 4(1) of the Framework Agreement must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which restricts entitlement to additional remuneration to teachers employed for an indefinite duration as established public officials, to the exclusion of, in particular, teachers employed under fixed-term contracts governed by public law.
It must be recalled that clause 4(1) of the Framework Agreement prohibits, as regards employment conditions, less favourable treatment of fixed-term workers than of permanent workers in a comparable situation, solely because the former are employed for a fixed-term, unless different treatment is justified on objective grounds.
In the present case, it must be observed first, that, since Mr Ustariz Aróstegui was employed by the Ministry as a teacher under a fixed-term contract governed by public law, it is common ground that he falls within the concept of ‘fixed-term worker’ within the meaning of clause 4(1) of the Framework Agreement, read in conjunction with clause 3(1) thereof, and accordingly falls within the scope of those provisions.
As regards, secondly, the concept of ‘employment conditions’ within the meaning of clause 4(1) of the Framework Agreement, it is clear from the case-law of the Court that the decisive criterion for determining whether a measure falls within the scope of that concept is the criterion of employment, that is to say the employment relationship between a worker and his or her employer (judgment of 5 June 2018, Grupo Norte Facility,
C‑574/16
,
EU:C:2018:390
, paragraph
and the case-law cited).
The Court has thus held that that concept covers three-yearly length-of-service increments (see, to that effect, judgment of 22 December 2010, Gavieiro Gavieiro and Iglesias Torres,
C‑444/09 and C‑456/09
,
EU:C:2010:819
, paragraph
, and order of 18 March 2011, Montoya Medina,
C‑273/10
, not published,
EU:C:2011:167
, paragraph
), six-yearly continuing professional education increments (see, to that effect, order of 9 February 2012, Lorenzo Martínez,
C‑556/11
, not published,
EU:C:2012:67
, paragraph
), participation in a professional evaluation plan and the ensuing financial incentive in the event of a positive assessment (order of 21 September 2016, Álvarez Santirso,
C‑631/15
,
EU:C:2016:725
, paragraph
) and participation in a regime for horizontal career progression giving rise to additional remuneration (order of 22 March 2018, Centeno Meléndez,
C‑315/17
, not published,
EU:C:2018:207
, paragraph
).
In the present case, since completion of a period of six years and seven months’ service is, as is apparent from the information provided by the referring court, the sole objective condition for the grant of that additional remuneration, such remuneration is paid specifically because of the employment relationship, so that, in those circumstances, its grant must be regarded as an ‘employment condition’ within the meaning of clause 4(1) of the Framework Agreement.
Thirdly, it must be recalled that, in accordance with 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 that different situations should not be treated alike, unless such treatment is objectively justified (judgment of 5 June 2018, Grupo Norte Facility,
C‑574/16
,
EU:C:2018:390
, paragraph
and the case-law cited).
In its written observations, the Ministry submitted, in that respect, that, as regards the case in the main proceedings, the difference in treatment between established public officials and staff employed under a public law contract described by Mr Ustariz Aróstegui does not fall within the prohibition laid down in clause 4(1) of the Framework Agreement, since it is not whether the employment relationship is fixed-term or permanent which defines, under national law, the right to the additional remuneration at issue in the main proceedings, but whether the employment relationship is statutory or contractual in nature.
In addition, the Spanish Government and the Ministry stated, at the hearing before the Court, that nor do teaching staff employed on a permanent basis under private-law contracts have any entitlement to that additional remuneration.
However, it is appropriate to point out that it follows from the wording of clause 4(1) of the Framework Agreement that it is sufficient for the fixed-term workers at issue to be treated in a less favourable manner than permanent workers in a comparable situation in order for those fixed-term workers to claim the benefit of that clause.
Accordingly, as observed in point 31 of the Advocate General’s Opinion, it is not necessary, for that purpose, for workers in fixed-term employment to be treated less favourably than all categories of permanent worker.
It is therefore necessary to consider whether the established public officials and the staff employed under a public law contract at issue in the main proceedings are in a comparable situation.
In order to assess whether the workers 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 workers can be regarded as being in a comparable situation (judgment of 5 June 2018, Grupo Norte Facility,
C‑574/16
,
EU:C:2018:390
, 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 established public officials are in a comparable situation to staff employed under a public law contract (see, by analogy, judgment of 5 June 2018, Grupo Norte Facility,
C‑574/16
,
EU:C:2018:390
, paragraph
and the case-law cited).
That being so, it is apparent from the order for reference that there is no difference between the duties, work and professional obligations of a teacher who is a public official and those of a teacher, such as Mr Ustariz Aróstegui, who is employed under a public law contract.
Therefore, subject to verification by the referring court in the light of all the relevant factors, it must be held that the situation of a fixed-term worker such as Mr Ustariz Aróstegui is comparable to that of a permanent worker employed by the Ministry.
In those circumstances, it must be held, as observed in point 44 of the Advocate General’s Opinion, that there is a difference in treatment consisting in the fact that contractual staff in the public sector are denied the additional remuneration at issue in the main proceedings, whereas, in a comparable situation, established public officials are entitled to that additional remuneration.
It is necessary to determine, fourthly, whether there is an objective ground, within the meaning of clause 4(1) of the Framework Agreement, capable of justifying such a difference in treatment.
According to the settled case-law of the Court, the concept of ‘objective grounds’ requires the observed unequal treatment to be justified by the existence of precise and concrete factors, characterising the employment condition to which it relates, in the specific context in which it occurs and on the basis of objective and transparent criteria in order to ensure that that unequal treatment in fact responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose. Those factors may result 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 (see, inter alia, judgments of 13 September 2007, Del Cerro Alonso,
C‑307/05
,
EU:C:2007:509
, paragraph
; of 22 December 2010, Gavieiro Gavieiro and Iglesias Torres,
C‑444/09 and C‑456/09
,
EU:C:2010:819
, paragraph
; and of 5 June 2018, Grupo Norte Facility,
C‑574/16
,
EU:C:2018:390
, paragraph
).
However, reliance on the mere temporary nature of the employment of staff employed under a public law contract, such as Mr Ustariz Aróstegui, does not meet those requirements and is therefore not, of itself, capable of constituting an objective ground within the meaning of clause 4(1) of the Framework Agreement. If the mere temporary nature of an employment relationship were to be held to be sufficient to justify a difference in treatment between fixed-term workers and permanent workers, the objectives of Directive 1999/70 and the Framework Agreement would be rendered meaningless and it would be tantamount to perpetuating a situation that is disadvantageous to fixed-term workers (judgment of 8 September 2011, Rosado Santana,
C‑177/10
,
EU:C:2011:557
, paragraph
and the case-law cited).
In that regard, the Spanish Government and the Ministry claimed, in their written observations, that the additional remuneration at issue in the main proceedings constitutes a basic personal salary payment vested in public officials. More specifically, the Spanish Government and the Ministry claim that that additional remuneration is intended to reward a public official’s career development, which justifies excluding from that benefit, in particular, staff employed under a public law contract, since grade progression is not open to them.
In that regard, it should be recalled that, in view of the discretion enjoyed by Member States as regards the organisation of their own public administrations, those States can, in principle, without acting in a manner contrary to Directive 1999/70 or the Framework Agreement, lay down conditions for becoming career civil servants together with conditions of employment for those civil servants (judgments of 18 October 2012, Valenza and Others,
C‑302/11 to C‑305/11
,
EU:C:2012:646
, paragraph
, and of 20 September 2018, Motter,
C‑466/17
,
EU:C:2018:758
, paragraph
). Member States are thus entitled to lay down conditions of length of service for access to certain posts or to restrict access to internal promotion solely to civil servants, where that flows from the need to take account of objective requirements relating to the post in question and unrelated to the fixed-term of the employment relationship (see, to that effect, judgment of 8 September 2011, Rosado Santana,
C‑177/10
,
EU:C:2011:557
, paragraphs
and
).
However, an abstract and general condition to the effect that a person must have the status of a public official in order to benefit from an employment condition such as that at issue in the main proceedings, with no account being taken, in particular, of the specific nature of the tasks to be performed or their inherent characteristics, does not correspond to the requirements set out in paragraphs 40 and 41 of the present judgment (see, to that effect, judgment of 8 September 2011, Rosado Santana,
C‑177/10
,
EU:C:2011:557
, paragraph
).
Also, the Court has held that the public interest which attaches, in itself, to methods of entry to the civil service cannot justify a difference in treatment (see, to that effect, judgment of 25 July 2018, Vernaza Ayovi,
C‑96/17
,
EU:C:2018:603
, paragraph
).
Therefore, as stated in point 51 of the Advocate General’s Opinion, the exclusion of staff employed under a contract governed by public law from the benefit of the additional remuneration at issue in the main proceedings, resulting from Article 11 of Decree 68/2009, cannot be justified unless the characteristics inherent in the status of public officials dictate the award of that benefit.
In the present case, it is apparent from the file submitted to the Court that the grant of that additional remuneration is linked not to the grade progression of the public official concerned but to length of service. In that regard, the fact that the additional remuneration at issue in the main proceedings was originally intended to recognise the merits of public officials in a system of career progression and was thus distinguished from a measure solely intending to reward length of service cannot lead to the conclusion that the additional remuneration is inherent in the status of public officials, since, under the transitional provisions applicable at the material time, the system for promotion to higher grades was suspended and replaced by legislation which merely granted the right to that additional remuneration once a given period of service had been completed, which therefore removed any difference as compared to a simple length-of-service increment. Thus, subject to verification by the referring court, the additional remuneration at issue in the main proceedings is granted to public officials solely on account of their having completed a required period of service and has no effect on their position within the career development system.
Furthermore, as regards the argument put forward by the Spanish Government and the Ministry that there is a difference in the nature of the tasks of established public officials which is capable of justifying the preferential treatment they enjoy as compared to staff employed under a public law contract in a comparable situation, it must be noted that no concrete and specific evidence in that regard is apparent from the file submitted to the Court. In any event, such a difference could be relevant only if the purpose of the additional remuneration were to reward the performance of tasks that could be performed solely by public officials and not by staff employed under a fixed-term contract governed by public law. The fact, confirmed by the Ministry at the hearing before the Court, that the periods worked under fixed-term contracts governed by public law are fully taken into account when a staff member employed on a contractual basis is appointed as an established public official, contradicts the argument that the decisive factor for the grant of the additional remuneration is the performance of such tasks and that a staff member employed on a contractual basis would not have been able to perform that type of task prior to his or her appointment as an established public official (see, by analogy, order of 22 March 2018, Centeno Meléndez,
C‑315/17
, not published,
EU:C:2018:207
, paragraph
).
Accordingly, it must be held that, subject to the factual verifications to be carried out by the referring court in that regard, there is, in the present case, no ‘objective ground’, within the meaning of clause 4(1) of the Framework Agreement, capable of justifying the exclusion of staff employed under a public law contract, who have completed the necessary service period, from entitlement to the additional remuneration at issue in the main proceedings.
In the light of the foregoing considerations, the answer to the question referred is that clause 4(1) of the Framework Agreement must be interpreted as precluding a national legislative provision such as that at issue in the main proceedings which restricts entitlement to particular additional remuneration to teachers employed for an indefinite duration as established public officials, to the exclusion of, in particular, teachers employed under fixed-term contracts governed by public law, if the completion of a certain period of service is the only condition for grant of that additional remuneration.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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:

Clause 4(1) of the Framework Agreement on fixed-term work, concluded on 18 March 1999, 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, must be interpreted as precluding a national legislative provision such as that at issue in the main proceedings which restricts entitlement to particular additional remuneration to teachers employed for an indefinite duration as established public officials, to the exclusion of, in particular, teachers employed under fixed-term contracts governed by public law, if the completion of a certain period of service is the only condition for grant of that additional remuneration.

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