# C_2011311EN.01001102.xml

| 22.10.2011 | EN | Official Journal of the European Union | C 311/11 |
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22.10.2011

EN

Official Journal of the European Union

C 311/11

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Judgment of the Court (Second Chamber) of 8 September 2011 (reference for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo no 12 de Sevilla (Spain)) — Francisco Javier Rosado Santana v Consejería de Justicia y Administración Pública de la Junta de Andalucía

o

(Case C-177/10) (1)

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(Social policy - Directive 1999/70/EC - Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP - Clause 4 - Application of the framework agreement to the civil service - Principle of non-discrimination)

2011/C 311/15

Language of the case: Spanish

Referring court

Referring court

Juzgado de lo Contencioso-Administrativo no 12 de Sevilla

o

Parties

Parties

Applicant: Francisco Javier Rosado Santana

Applicant:

Defendant: Consejería de Justicia y Administración Pública de la Junta de Andalucía

Defendant:

Re:

Re:

Reference for a preliminary ruling — Juzgado de lo Contencioso-Administrativo No 12 de Sevilla — Interpretation of 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) — Clause 4 of the Annex (principle of non-discrimination) — Scope — Discrimination held to be permissible by the constitutional court — Obligations of the national court

Operative part of the judgment

Operative part of the judgment

| 1. | Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, set out in the Annex thereto, must be interpreted, on the one hand, as applying to contracts and relationships concluded with the public authorities and other public-sector bodies and, on the other, as precluding any difference in treatment as between career civil servants and comparable interim civil servants of a Member State, based solely on the ground that the latter are employed for a fixed term, unless different treatment is justified on objective grounds for the purposes of clause 4(1) of the framework agreement. |
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1.

Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, set out in the Annex thereto, must be interpreted, on the one hand, as applying to contracts and relationships concluded with the public authorities and other public-sector bodies and, on the other, as precluding any difference in treatment as between career civil servants and comparable interim civil servants of a Member State, based solely on the ground that the latter are employed for a fixed term, unless different treatment is justified on objective grounds for the purposes of clause 4(1) of the framework agreement.

| 2. | Clause 4 of the framework agreement on fixed-term work must be interpreted as precluding account not being taken of periods of service completed as an interim civil servant in a public administration for the purposes of permitting such a person, who has subsequently become a career civil servant, to obtain an internal promotion available only to career civil servants, unless that exclusion is justified by objective grounds for the purposes of clause 4(1) of that agreement. The mere fact that the interim civil servant completed those periods of service under a fixed-term employment contract or relationship does not constitute such an objective ground. |
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2.

Clause 4 of the framework agreement on fixed-term work must be interpreted as precluding account not being taken of periods of service completed as an interim civil servant in a public administration for the purposes of permitting such a person, who has subsequently become a career civil servant, to obtain an internal promotion available only to career civil servants, unless that exclusion is justified by objective grounds for the purposes of clause 4(1) of that agreement. The mere fact that the interim civil servant completed those periods of service under a fixed-term employment contract or relationship does not constitute such an objective ground.

| 3. | The primary law of the European Union, Directive 1999/70 and the framework agreement are to be interpreted as not precluding, in principle, national legislation which provides that, where an action brought by a career civil servant challenging a decision rejecting his candidature for a competition is based on the fact that the promotion procedure was contrary to clause 4 of the framework agreement, that action must be brought within two months of the publication of the competition notice. Nevertheless, such a time-limit could not be relied upon against a career civil servant, who has been a candidate in that competition, who has been admitted to the tests and whose name was placed on the definitive list of successful candidates for that competition, if that were liable to render practically impossible or excessively difficult the exercise of the rights conferred by the framework agreement. In those circumstances, time for the purposes of the two-month time-limit could run only from notification of the decision annulling the civil servant’s admission to that competition and his appointment as a career civil servant in the higher group. |
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3.

The primary law of the European Union, Directive 1999/70 and the framework agreement are to be interpreted as not precluding, in principle, national legislation which provides that, where an action brought by a career civil servant challenging a decision rejecting his candidature for a competition is based on the fact that the promotion procedure was contrary to clause 4 of the framework agreement, that action must be brought within two months of the publication of the competition notice. Nevertheless, such a time-limit could not be relied upon against a career civil servant, who has been a candidate in that competition, who has been admitted to the tests and whose name was placed on the definitive list of successful candidates for that competition, if that were liable to render practically impossible or excessively difficult the exercise of the rights conferred by the framework agreement. In those circumstances, time for the purposes of the two-month time-limit could run only from notification of the decision annulling the civil servant’s admission to that competition and his appointment as a career civil servant in the higher group.

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(1)  OJ C 179, 3.7.2010.

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