Information;Order — ECLI:EU:C:2022:294
Date: 2022-04-07
Language of the case: Greek
Court formation: Seventh Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Greece

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
3 March 2021 
Referring court: 
Εfeteio Athinon (Greece) 
Date of the decision to refer: 
9 March 2020 
Appellants: 
VP 
CX 
RG 
TR 
and Others 
Respondent: 
Elliniko Dimosio 
      
Subject matter of the main proceedings 
Application for the payment of differences in wages that result from workers with 
fixed-term contracts being subject to different treatment for wage purposes on the 
basis solely of the criterion of differentiation that their contracts are classified by 
their employer or by law as fixed-term contracts for work. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-133/21 
 
2  
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of clause 4 of the framework agreement on fixed-term work 
concluded by ETUC, UNICE and CEEP (Council Directive 1999/70/EC of 
28 June 1999), Article 267 TFEU 
Questions referred 
 Is national legislation, such as that at issue, which imposes different 
treatment for wage purposes on workers with fixed-term contracts within the 
meaning of clause 1 of Directive 1999/70/EC as compared to the 
comparable permanent worker, on the basis of the sole criterion of 
differentiation that their contracts are classified by their employer or by law 
as fixed-term contracts for work, compatible with clause 4 of Directive 
1999/70/EC? 
 In particular, is national legislation under which different treatment of 
workers for wage purposes is justified on the ground that they provided their 
work under fixed-term contracts in the knowledge that they were covering 
fixed and permanent needs of the employer compatible with clause 4 of 
Directive 1999/70/EC? 
Relevant provisions of EU law 
Council Directive 1999/70/EC of 28 June 1999 concerning the framework 
agreement on fixed-term work concluded by ETUC, UNICE and CEEP 
Relevant provisions of national law 
Proedriko diatagma 164/2004, Rythmiseis gia tous ergazomenous me symvaseis 
orismenou chronou sto dimosio tomea (Presidential Decree 164/2004 regulating 
workers with fixed-term contracts in the public sector) 
Nomos 3205/2003, Misthologikes rythmiseis leitourgon kai ypallilon tou 
Dimosiou, [Nomikon Prosopon Dimosiou Dikaiou (Ν.P.D.D.)] kai [Organismon 
Topikis Autodioikisis (Ο.Τ.Α.)], monimon stelechon ton Enoplon Dynameon kai 
antistoichon tis Ellinikis Astynomias, tou Pyrosvestikou kai Limenikou Somatos 
kai alles synafeis diataxeis (Law 3205/2003 regulating the pay of servants and 
employees of general government, public-law legal entities and local authorities 
of permanent members of the Armed Forces, and of those of the Hellenic Police, 
the Fire Brigade and the Port Police, and related provisions) 
Nomos 3320/2005, Rythmiseis thematon gia to prosopiko tou Dimosiou kai ton 
nomikon prosopon tou evryterou dimosiou tomea kai gia tous Ο.Τ.Α. (Law 
3320/2005 regulating staff of the public sector and of legal entities in the broader 
public sector, and local authorities) 
ELLINIKO DIMOSIO 
 
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Brief summary of the facts and procedure 
1 The appellants were recruited by the Elliniko Dimosio (the Greek State) on 
various dates between 2001 and 2008. Between then and when the application was 
lodged in 2010 (see paragraph 3 below), they worked continuously and without 
interruption as primary and secondary school cleaners, initially under successive 
employment contracts or relationships classified by the respondent as ‘contracts 
for work’ and subsequently, from December 2006 and January 2007, under 
private-law employment contracts of indefinite duration. 
2 In response to various requests submitted by them, it was found, by an act adopted 
in 2005 by the Kentriko Ypiresiako Symvoulio Dioikitikou Prosopikou (Central 
Service Council for Administrative Staff) of the Ypourgeio Ethnikis Paideias kai 
Thriskevmaton (Ministry of Education and Religious Affairs, ‘the Ministry’) and 
subsequently by an act adopted by the Anotato Symvoulio Epilogis Prosopikou 
(ASEP) (Supreme Council for Civil Personnel Selection), that they fulfilled the 
requirements for the application to them of Article 11 of Presidential Decree 
164/2004. Following those decisions, they were allocated to permanent posts with 
the respondent by decisions adopted by the Ministry in 2006 and 2007. 
3 On the basis of those facts, the appellants lodged an application with the 
Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens) 
on 10 June 2010, by which they requested that the court order the respondent to 
pay them sums of money corresponding to the difference between the wages they 
received between 2001 and 2008 and the wages provided for by law for 
comparable workers with the same skills employed by the respondent, including 
for the period in which they had worked under contracts classified as contracts for 
work. 
4 By its final judgment No 2198/2011, the Court of First Instance (single judge), 
Athens, dismissed the application as unfounded in law. Following an appeal 
against the judgment at first instance which the appellants lodged with the Efeteio 
Athinon (Court of Appeal, Athens), the referring court delivered judgment 
No 1189/2016 allowing the appeal, upholding the action in part and ordering the 
respondent to pay the appellants the sums requested in the application together 
with statutory interest. 
5 Both the Greek State and the appellants appealed to the Areios Pagos (Court of 
Cassation, Greece), further to which the Court of Cassation delivered judgment 
No 570/2018, by which it set aside judgment No 1189/2016 of the Court of 
Appeal, Athens, in so far as it awarded the aforesaid wage differences for the 
period of time before the appellants were allocated to established posts, and 
referred the case back to the Court of Appeal, Athens, for further adjudication. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-133/21 
 
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Principal arguments of the parties to the main proceedings 
6 The appellants argue that they were hired as cleaners and worked as cleaners in 
the respondent’s schools on the basis of contracts which the respondent classified 
as contracts for work. They contend that the fact that their work was a form of 
employment, its duration, and the right of management of them possessed by their 
employer (the Greek State), whose representatives stipulated where, when and 
how they were to work, follow from their employment conditions. 
7 Taking the view that they have been subject to discrimination in terms of the 
wages they received, as they were not paid the wage provided for by Law 
3205/2003 for government workers with a private-law employment contract of 
indefinite duration, the appellants contend that, as that discrimination is not 
justified on any objective ground, the question arises as to the application of 
clause 4 of the framework agreement on fixed-term work concluded by ETUC, 
UNICE and CEEP (‘the Framework Agreement’) appended to Directive 1999/70, 
which is directly applicable. 
Brief summary of the grounds for the reference 
8 By its aforesaid judgment No 570/2018, the Court of Cassation held that such 
wage differences cannot be based on Article 1 of Law 3320/2005. Furthermore, 
with regard to the question of the compatibility of Article 1(4)(a) of Law 
3320/2005 with clause 4 of the Framework Agreement, it held that that provision 
does not conflict with the provisions of Directive 1999/70, and in particular with 
clause 4(1) of the Framework Agreement, which states that, in respect of 
employment contracts, fixed-term workers are not to 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. 
9 By its aforesaid judgment, the Court of Cassation further held that, in this 
particular case, the requirement of that clause, that there must be comparability 
between the employment conditions at issue – which is determined on the basis of 
all the factors, such as the nature of the work, training, and working conditions – 
had not been fulfilled. Consequently, the appellants cannot be regarded as being in 
a comparable situation to workers with an employment contract of indefinite 
duration and, therefore, clause 4 does not apply, given that the different treatment 
concerns different situations. It does not suffice that the appellants’ pay did not 
correspond to that received by colleagues on the respondent’s permanent staff, 
even though they had the same skills and worked on the same conditions; a 
particular category of workers with employment contracts of indefinite duration 
and the activities and duties of each of the two categories must be specifically 
mentioned in order for the above comparability requirement to be fulfilled. 
10 Furthermore, the Court of Cassation notes that the legislative provision 
concerning the drawing up of fixed-term contracts for work in respect of the 
ELLINIKO DIMOSIO 
 
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cleaning of schools, inasmuch as it dates back to the time after the period for 
harmonising domestic legislation with Directive 1999/70 had expired (10 July 
2002), is not arbitrary, but is justified by the particular nature of the duties for the 
performance of which the contracts were concluded and by the inherent 
characteristics of those contracts, for the purposes of clause 5(1)(a), as those 
services are a necessary activity to cover fixed and permanent needs in connection 
with education (cleaning school buildings), an activity which does not require the 
Greek State to hire permanent staff under employment contracts of indefinite 
duration but can be achieved equally well by drawing up contracts for work, 
whether they are concluded with legal entities (e.g. cleaning companies) or with 
private individuals. That is because, even where it happens repeatedly and/or 
permanently, the drawing up of successive renewable fixed-term employment 
contracts or contracts for work, provided it is justified by objective reasons within 
the meaning of [clause] (5)(1)(a) of the Framework Agreement, as in this case, 
does not fall within the protective scope of the directive, which seeks to prevent 
abuse arising from the use of successive fixed-term employment contracts or 
relationships within the meaning of [clause] [1][(b)] of the Framework 
Agreement. 
11 According to the Court of Cassation, that is not altered by the fact that in the 
present instance the appellants were transferred to established posts under a 
private-law employment relationship of indefinite duration, in application of the 
transitional provision of Article 11 of Presidential Decree 164/2004, an enactment 
which transposed the directive. This is because Article 11, in referring for the 
purposes of its application solely to Article 5(1) of the Presidential Decree, which 
concerns the prohibition of the drawing up of successive fixed-term employment 
contracts, and not also to Article 5(2), which permits by way of exception the 
drawing up of successive fixed-term employment contracts where that is justified 
by objective reasons, as provided for by clause 5(1)(a) of the Framework 
Agreement, which, moreover, does not set any limitations in time, is more 
favourable for workers than the directive at that point. 
12 The referring court notes that, in the present instance, the appellants have founded 
their application to be awarded payment of the difference in wages on the 
assertion that, on the basis of the correct classification in law of the legal 
relationship, they were, in fact, employed under conditions of employment rather 
than of work. Their request for higher wages follows directly from Law 
3205/2003, the provisions of which were legally extended to workers with a 
private-law employment contract by joint ministerial decision. 
13 Furthermore, according to clause 4 of the Framework Agreement, ‘fixed-term 
workers shall not be treated in a less favourable manner than comparable 
permanent workers solely because they have a fixed-term contract’. That clause 
has already been transposed into national law, including by Article 4 of 
Presidential Decree 164/2004 in respect of the public sector.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-133/21 
 
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14 In contrast to clause 5, which concerns prevention of the abuse of successive 
fixed-term contracts, clause 4 prohibiting discrimination is clear and precise and 
applies directly (judgment of 15 April 2008, Impact, C-268/06, EU:C:2008:223, 
paragraph 59 et seq.). In fact, the Court has consistently emphasised that clause 4 
is fundamental and must be interpreted broadly, not narrowly. ‘Workers’ within 
the meaning of the directive is to be understood as including persons with a fixed-
term employment contract or relationship, irrespective of whether the legislature 
classifies it as an employment contract or relationship or as a contract or 
relationship for work (judgment of 13 September 2007, Del Cerro Alonso, 
C-307/05, EU:C:2007:509, paragraph 29). Moreover, according to the case-law of 
the Court, the employment conditions referred to in clause 4 of the Framework 
Agreement concern unequal treatment in terms of the pay (remuneration) of 
workers with fixed-term employment contracts. 
15 Consequently, any discrimination against fixed-term workers in terms of their 
remuneration, compared to permanent workers with identical or similar duties, is 
in principle contrary to clause 4 of the Framework Agreement, as already 
transposed into Greek law. However, in order to find whether clause 4 applies in 
this particular instance and to investigate whether or not it was infringed, it does 
not suffice that the appellants’ pay did not correspond to that received by their 
colleagues on the respondent’s permanent staff, even though they had the same 
skills and worked on the same conditions; it is necessary to consider specifically 
the particular category of workers with employment contracts of indefinite 
duration and the activities and duties of each of the two categories of workers. 
16 In the present instance, it has been proven that the appellants worked under 
conditions of employment, that is to say, they were subject to the right of 
management of them possessed by their employer (the Greek State), whose 
representatives stipulated where, when and how they were to work. Consequently, 
the appellants in fact worked under employment contracts rather than contracts for 
work and, accordingly, they qualify as workers within the meaning of clause 1 of 
the Framework Agreement. 
17 Therefore, the discrimination against them in terms of the wages that they 
received, as they were not paid the wage provided for by law for government 
workers with a private-law employment contract of indefinite duration, raises an 
issue as to the application of clause 4 of the Framework Agreement, as that 
discrimination is not justified on any objective ground. 
18 On the question as to the existence of an objective ground, the Court of Cassation 
has held by recent judgments that different treatment of workers with fixed-term 
contracts until they are allocated a permanent established post in application of 
Article 11 of Presidential Decree 164/2004 and Article 1 of Law 3320/2005 is 
justified because they ‘knowingly provided work to cover fixed needs’; however, 
it did not refer directly to clause 4 of the Framework Agreement. Consequently, it 
is reasonable to question whether this is a case of an objective ground which 
ELLINIKO DIMOSIO 
 
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justifies the prohibition of discrimination laid down in clause 4 of the Framework 
Agreement not being applicable.