Information;Order — ECLI:EU:C:2019:858
Date: 2019-10-15
Language of the case: Spanish
Court formation: Seventh Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Anonymised version 
Translation C-439/18 — 1 
Case C-439/18 
Request for a preliminary ruling 
Date lodged: 
2 July 2018 
Referring court: 
Tribunal Superior de Justicia de Galicia (Spain) 
Date of the decision to refer: 
18 June 2018 
Appellant: 
OH 
Respondent: 
Agencia Estatal de la Administración Tributaria 
  
TRIBUNAL SUPERIOR DE JUSTICIA DE GALICIA (High Court of 
Justice of Galicia, Spain) 
SOCIAL DIVISION, CORUNNA 
[…] 
CORUNNA, 18 June 2018. 
[…] [Composition of the court] 
ORDER 
In the appeal […] lodged by Ms OH against the judgment of Juzgado de lo Social 
número tres de Lugo (Social Court No 3, Lugo, Spain) of 22 September 2017, 
dismissing the action brought by Ms OH against the AGENCIA ESTATAL DE 
EN 
REQUEST FOR A PRELIMINARY RULING OF 18.6.2018 — CASE C-439/18 
 
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LA ADMINISTRACIÓN TRIBUTARIA (‘AEAT’) (State Taxation 
Administration Agency) […]. [OR. 2] 
FACTUAL BACKGROUND 
FIRST. On 4 December 2015, the applicant, Ms OH, brought an action, 
allocated to the Juzgado de lo Social número tres de Lugo (Social Court No 3, 
Lugo), seeking a declaration that she is a ‘trabajadora fija discontinua’ [(a person 
employed on a permanent basis to perform a recurring, intermittent task; ‘a 
seasonal permanent employee’)] of the Agencia Tributaria (Taxation Agency), 
whose period of service began on 25 February 2002, and that all the time which 
has passed since the employment relationship started –– rather than merely the 
days actually worked –– must count as time worked for the purpose of 
determining the date of acquisition of the rights to pay rises and promotion. She 
also sought an order that the defendant must pay her the sum of EUR 239.75 in 
respect of three-yearly increments. 
SECOND. A hearing was held on 12 September 2017 and the social court 
hearing the case gave judgment on 22 September, dismissing the applicant’s 
action. 
THIRD. That judgment found that it had been established that the applicant 
is employed by the defendant as a seasonal permanent staff member […] on the 
basis of the contracts, periods and categories set out in fact No 2 of the decision of 
the Head of Department of 28 September […]. Remuneration in respect of all 
components came to EUR 1 154.41, plus a pro rata entitlement [in respect of two 
extraordinary annual payments] and a pay supplement pursuant to the Collective 
Agreement for contractual staff of the AEAT and other agreements in force. On 
29 May 2015, the applicant had requested recognition of her length of service 
together with all the effects inherent therein since 14 April 2008, which was 
refused by decision of 28 September 2015 […]. 
FOURTH. The applicant lodged an appeal against that judgment [before the 
referring court] [procedural matters] […]. 
FIFTH. […] After the Division had deliberated, it was decided, by 
procedural order of 14 May 2018, that, ‘[i]n view of the fact that, in the opinion of 
the Division, doubts exist regarding the correct interpretation of the Community 
legislation applicable to the case before it, the parties are invited to make 
submissions within 10 days on the subject of whether a reference should be made 
to the Court of Justice of the European Union for a preliminary ruling on 
interpretation under Article 267 of the Treaty on the Functioning of the European 
Union […] in order to determine whether the method of calculating three-yearly 
increments proposed by the employer for seasonal permanent employees assigned 
to the annual task of working on personal income tax returns (‘income tax 
campaign’) ― that is, taking [OR. 3] only the period actually worked into account 
― is compatible with the principle of the equality of part-time and full-time 
OH 
 
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workers who are in a comparable situation, laid down in Clause 4 of the 
Framework Agreement on part-time work [annexed to] Council Directive 
97/81/EC of 15 December 1997, and, since seasonal permanent staff members are 
predominantly female ― according to the data accessible on the Spanish 
Government’s official transparency pages, as at 31 December 2016, 898 were 
women and 252 were men; that is to say, 78.09% as opposed to 21.91% ―, 
whether, in any event, that method of calculation is compatible with the principle 
of equal treatment of men and women, in the context of the prohibition of indirect 
discrimination, in accordance with Articles 2(1)(b) and 14 of Directive 
2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the 
implementation of the principle of equal opportunities and equal treatment of men 
and women in matters of employment and occupation (recast). 
SIXTH. In her submissions on the above-mentioned procedural order, the 
applicant’s legal representative supported the making of a reference for a 
preliminary ruling, whereas the Abogado del Estado (Lawyer for the State) was 
opposed to such a reference. 
[…] 
LEGAL REASONING 
FIRST. In the light of the factual background and the facts as established in the 
judgment of the lower court, reviewed as appropriate, and supplemented by a 
further examination encompassing the whole of the case-file, the facts to be taken 
into account for the purposes of seeking a preliminary ruling from the Court of 
Justice are the following: 
(a) Ms OH has been employed by the Agencia Estatal de la Administración 
Tributaria as a seasonal permanent staff member since 25 February 2002 for the 
annual personal income tax campaign. 
(b) On 29 May 2015, Ms OH asked that that period of service be recognised but 
that request was refused by decision of 28 September 2015. 
(c) Ms OH brought an action seeking a declaration that her period of service 
began on 25 February 2002, a declaration that all the time which had passed since 
that date should count towards the rights to a pay rise (three-yearly increments) 
and to promotion (internal [promotion within the AEAT], horizontal [promotion 
to a higher grade within the same category of post], vertical [promotion to a 
higher category of post] and [OR. 4] external [promotion outside the AEAT), and 
an order that the defendant should therefore pay the amount due in respect of 
three-yearly increments. 
d) The action was dismissed by judgment of 22 September 2017; the applicant 
lodged an appeal against that judgment […] with this Division. 
REQUEST FOR A PRELIMINARY RULING OF 18.6.2018 — CASE C-439/18 
 
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SECOND. A search of the information accessible on the Spanish Government’s 
official transparency pages reveals that the seasonal permanent staff of the 
Taxation Agency on 31 December 2016 consisted of 898 women and 252 men, 
that is, a proportion of 78.09% women and 21.91% men. A search of that 
information for earlier years reveals that that proportion has remained stable. 
Moreover, it differs significantly from the proportion of women and men in other 
full-time jobs with the Taxation Agency (data as at 31 December 2016): 53.88% 
of civil servants are women and 46.12% are men; 35.21% of contractual staff are 
women and 64.39% are men. 
In other words, there is a striking number of women, which reflects the general 
proportion of part-time female workers in all jobs. According to data from the 
most recent Labour Force Survey (2018, first quarter), of the 2 814 300 part-time 
workers, 2 104 100 are women whereas 710 200 are men. Examination of the 
historical series shows that the percentage concerned hovers around 75% and has, 
on occasions, reached 80%. 
THIRD. Having set out the facts and relevant statistical data, the applicable 
Community legislation is, specifically, Clause 4(1) and (2) of the Framework 
Agreement on part-time work [annexed to] Council Directive 97/81/EC of 
15 December 1997, and Articles 2(1)(b) and 14(1) of Directive 2006/54/EC of the 
European Parliament and of the Council of 5 July 2006 on the implementation of 
the principle of equal opportunities and equal treatment of men and women in 
matters of employment and occupation (recast). 
FOURTH. The domestic legislation relevant to the outcome of the case is 
Article 12 of the Estatuto de los Trabajadores (‘ET’) (the Workers’ Statute) and 
Ley Orgánica 3/2007, de 22 de marzo, para la igualdad efectiva de mujeres y 
hombres (‘LOIEMH’) (Organic Law 3/2007 of 22 March on effective equality 
between women and men), in particular the following provisions: 
– Article 12(3) of the ET: ‘A part-time contract shall be deemed to have been 
concluded for an indefinite duration where it is entered into for the purpose of 
performing permanent, recurrent tasks as part of the undertaking’s normal 
volume of work.’ [OR. 5] 
– Article 12(4)(d) of the ET: ‘Part-time workers shall have the same rights as 
full-time workers. When the nature of such rights allows, these shall be 
recognised in legislation, regulations and collective agreements in proportion to 
the time worked.’ 
– Article 6(2) of the LOIEMH: ‘“indirect discrimination on grounds of sex”: the 
situation where an apparently neutral provision, criterion or practice would put 
persons of one sex at a particular disadvantage compared with persons of the 
other sex, unless that provision, criterion or practice is objectively justified by a 
legitimate aim, and the means of achieving that aim are appropriate and 
necessary.’ 
OH 
 
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In addition to those provisions, account should also be taken of the rules contained 
in the IV Convenio Colectivo del personal laboral de la Agencia Estatal de la 
Administración Tributaria (Fourth Collective Agreement for contractual staff of 
the Agencia Estatal de la Administración Tributaria) (BOE, 11 July 2006), 
namely: 
Article 30(1), last subparagraph: ‘Periods of time worked as a seasonal permanent 
employee shall count towards length of service as an employee of the Taxation 
Agency for all purposes.’ 
Article 30(3): ‘Remuneration payable to seasonal permanent employees shall be 
proportionate to days worked.’ 
Article 67(1): ‘Length of service: This supplement consists of a fixed sum … 
which will be payable on the first day of the month in which the employee 
completes three, or a multiple of three, years’ employment actually carrying out 
work within the scope of this Agreement.’ 
Article 70: ‘Workers who work a shorter than usual working day or who work on 
an hourly basis … shall be remunerated in proportion to the hours they actually 
work …’ 
FIFTH. The issue to be determined, and about which this Division has 
uncertainties, concerns the correct method of calculating the applicant’s length of 
service as a seasonal permanent employee in a way which ensures that that 
calculation satisfies the requirements laid down in the Community legislation. 
Specifically, the Division is unsure whether the method of calculation proposed by 
the employer is correct; according to that method, only periods actually worked 
should be taken into account, since, in the employer’s submission, that follows 
from application of the pro rata principle and from the wording of the provisions 
of the collective agreement which refer to the requirement of proportionality and, 
furthermore, [OR. 6] provide that the length-of-service supplement depends on 
‘work actually carried out’. 
For the purposes of remuneration, the method of calculating length of service 
proposed by the employer could lead to the incorrect application of the pro rata 
principle in so far as correct apportionment must concern solely the annual 
amount earned: to give an example, if a worker works for only four months a year, 
that worker will receive the three-yearly increment in respect of those four months 
alone, meaning that, on the basis of the annual calculation, the worker will be paid 
one third of the amount paid to a comparable full-time worker who earns the 
three-yearly increment throughout the year; if, in addition, that worker is only 
entitled to receive the first three-yearly increment after his employment contract 
has been in force for nine years, he will be penalised twice. 
Therefore, such a worker acquires an economic right at a slower rate than full-
time workers, which may be contrary to Clause 4 of the Framework Agreement on 
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part-time work as interpreted by the Court of Justice in the judgment of 10 June 
2010, Bruno and Others (C-395/08 and C-396/08, EU:C:2010:329). 
SIXTH. From the perspective of the equal treatment of men and women, it has 
been made clear that the employer’s seasonal permanent staff is predominantly 
female and that certainly reflects the features specific to women’s position in the 
family, society and the labour market (greater difficulty accessing full-time work; 
less time available in view of the difficulty in reconciling work with personal and 
family life; the fact that it is rare for men to share responsibility). Therefore, the 
high number of female seasonal permanent staff engaged by the Taxation Agency 
for income tax campaigns does not illustrate purely fortuitous or short-term 
phenomena and constitutes significant data covering enough individuals (as 
stipulated in the judgment of the Court of Justice of 9 February 1999, Seymour-
Smith and Pérez (C-167/97, EU:C:1999:60). 
That being the case, the situation at issue is one in which an apparently neutral 
provision, criterion or practice puts persons of one sex at a particular disadvantage 
compared with persons of the other sex. Although the cases are not identical, there 
are some parallels between this case and the case decided by the judgment of the 
Court of Justice of 17 October 1998, Hill and Stapleton (C-243/95, 
EU:C:1998:298). In that case legislation which allowed an employer to calculate 
the period worked as a job sharer by reference to the time actually worked in a 
post for the purpose of applying a pay scale when a female worker converted from 
job-sharing to full-time employment was held to constitute discrimination on 
grounds of sex, unless [OR. 7] it was based on objective factors unrelated to any 
discrimination on grounds of sex. 
Having reached this point, it is necessary to examine whether the provision, 
criterion or practice — in the case of the collective agreement which refers to 
‘work actually carried out’ — can be objectively justified on the basis of a 
legitimate aim and whether the means of achieving that aim are necessary and 
appropriate. The question is whether a requirement for professional experience 
gained from work actually carried out may be regarded as a legitimate aim and 
whether its application to remuneration and promotion is necessary and 
appropriate in order to achieve that aim. 
SEVENTH. The resolution of those uncertainties, in the terms to be set out 
below, is decisive to the outcome of the issue in contention, meaning that, if the 
calculation proposed by the employer is accepted as it was in the first-instance 
judgment, the appeal should be dismissed, and otherwise the appeal should be 
upheld in its entirety or at least in part. 
[…] 
OPERATIVE PART 
This court DECIDES to refer a question of interpretation to the Court of Justice of 
the European Union for a preliminary ruling in the following terms: 
OH 
 
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‘Are a provision in a collective agreement and an employer’s practice, pursuant to 
which, for the purposes of remuneration and promotion, the length of service of a 
part-time female employee whose working hours are ‘distributed vertically’ over 
the whole year is to be calculated solely on the basis of time actually worked, 
contrary to Clause 4(1) and (2) of the Framework Agreement on part-time work 
[annexed to] Council Directive 97/81/EC of 15 December 1997, and to 
Articles 2(1)(b) and 14(1) of Directive 2006/54/EC of the European Parliament 
and of the Council of 5 July 2006 on the implementation of the principle of equal 
opportunities and equal treatment of men and women in matters of employment 
and occupation (recast)?’ 
[…] [Closing standard wording]