Opinion of the Advocate General — ECLI:EU:C:2018:43
Date: 2018-01-25
Language of the case: Spanish
Subject matter: Social Policy;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary — Judgment of the Court (Sixth Chamber), 25 July 2018 1. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Conditions of employment — Definition –Reinstatement of a worker in the event that their disciplinary dismissal is held to be wrongful — Included (Council Directive 1999/70, Annex, Clause 4(1)) 2. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Objective grounds justifying difference in treatment — Worker’s disciplinary dismissal declared wrongful — Mandatory reinstatement of a permanent worker in the service of a public authority — No such reinstatement of a worker employed under a temporary contract or a temporary contract of indefinite duration performing the same duties — Compensation for harm suffered owing to wrongful dismissal — Lawfulness (Council Directive 1999/70, Annex, Clause 4(1)) 1. See the text of the decision. (see paras 27-31) 2. 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 not precluding national legislation, such as that at issue in the main proceedings, according to which, when the disciplinary dismissal of a permanent worker in the service of a public authority is declared wrongful, the worker in question must be reinstated, whereas, in the same situation, a worker employed under a temporary contract or a temporary contract of indefinite duration performing the same duties as that permanent worker need not be reinstated but instead may receive compensation. It must be held that, while the difference in treatment at issue cannot be justified by the public interest which attaches, in itself, to the methods of recruitment of permanent workers, the fact remains that considerations based on the characteristics of the law governing the national civil service, such as those referred to in paragraphs 42 to 44 of the present judgment, are capable of justifying such a difference in treatment. In that regard, the conditions of impartiality, efficiency and independence of the administration imply a certain permanence and stability of employment. Those considerations, which have no counterpart in standard employment law, explain and justify the limitations on the power of public employers unilaterally to terminate employment contracts and, as a consequence, the national legislature’s decision not to grant them the right to choose between reinstatement and compensation for harm suffered owing to wrongful dismissal. Consequently, it must be found that the automatic reinstatement of permanent workers takes place in a significantly different context, from a factual and legal point of view, to that in which non-permanent workers find themselves (see, by analogy, judgment of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 56). In those circumstances, it must be held that the unequal treatment found to exist is justified by the existence of precise and specific factors, characterising the employment condition to which it relates, in the particular context in which it occurs, and on the basis of objective and transparent criteria within the meaning of the case-law referred to in paragraph 39 of this judgment. (see paras 46-49, operative part)