Opinion of the Advocate General — ECLI:EU:C:2011:301
Date: 2011-05-12
Language of the case: Spanish
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary of the Judgment 1. Social policy – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 – Conditions of employment – Concept (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 – Field of application (Council Directive 1999/70, Annex, clause 4(1)) 3. Social policy – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 – Objective grounds justifying a difference in treatment – Meaning (Council Directive 1999/70, Annex, clause 4(1)) 4. Social policy – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 – Procedures seeking to ensure the obligations following from that directive are performed – Time-limit for bringing proceedings (Council Directive 1999/70, Annex) 1. The concept of employment conditions in clause 4(1) of the framework agreement on fixed-term work which is annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP covers a condition relating to the taking into account, in the context of a selection procedure for internal promotion, for appointment as a career civil servant, of periods of service previously completed as an interim civil servant. (see para. 47) 2. Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, and the framework agreement on fixed-term work annexed thereto, must be interpreted, on the one hand, as applying to contracts and employment relationships for a fixed term concluded with 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. (see para. 62, operative part 1) 3. Clause 4 of the framework agreement on fixed-term work, which is annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as precluding account’s 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 the interim civil servant is not in a comparable situation to that of those career civil servants and/or that exclusion is justified by objective grounds for the purposes of clause 4(1) of that agreement. In this connection, the concept of objective grounds requires the unequal treatment found to exist to be justified by the existence of 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 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. Reliance on the mere temporary nature of the employment of staff of the public authorities is not, of itself, capable of constituting an ‘objective ground’ for the purposes of clause 4(1) of the framework agreement. If the mere temporary nature of an employment relationship were held to be enough to justify a difference in treatment as 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 disadvantageous to fixed-term workers. (see paras 73-74, 84, operative part 2) 4. The primary law of the Union – Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP and the framework agreement on fixed-term work annexed thereto – is to be interpreted as not precluding, in principle, national legislation which provides that, when 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 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. The detailed procedural rules governing actions for safeguarding an individual’s rights under Union law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render impossible in practice or excessively difficult the exercise of rights conferred by Union law (principle of effectiveness). The principle of equivalence requires the national rule in question to be applied without distinction, to actions based on infringement of Union law and to those based on infringement of national law, having a similar purpose and cause of action. In order to establish whether the principle of equivalence has been observed, the national court must assess the similarity of the actions concerned in terms of their purpose, cause of action and essential characteristics. In order to determine whether a national procedural provision is less favourable, the national court must take account of the role of that provision in the procedure, viewed as a whole, of the conduct of that procedure and of its special features. As regards the principle of effectiveness, the national procedural provisions concerned must be analysed similarly by reference to the role of those provisions in the procedure, viewed as a whole, to the conduct and special features of that procedure before the various national judicial bodies. For those purposes, account must be taken, where appropriate, of the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of proceedings. (see paras 89-90, 92, 100, operative part 3)