Judgment — ECLI:EU:C:2010:819
Date: 2010-12-22
Language of the case: Spanish
Court formation: Second Chamber
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 – Scope (Council Directive 1999/70, Annex, Clauses 2(1) and 3(1)) 2. Social policy – Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 – Conditions of employment – Meaning (Council Directive 1999/70, Annex, Clause 4(1)) 3. Acts of the institutions – Directives – Implementation by Member States (Art. 258 TFEU; Council Directive 1999/70, Art. 2, third para.) 4. Social policy – Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 (Council Directive 1999/70, Annex, Clause 4(1)) 1. It is apparent from the wording both of Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP and of the framework agreement, annexed to the directive, and also from their background and purpose, that the provisions laid down must apply to fixed-term employment contracts and relationships concluded with public authorities and other public-sector bodies. A member of the interim staff of an Autonomous Community of a Member State falls within the scope ratione personae of Directive 1999/70 and that of the framework agreement in the Annex thereto. (see paras 38, 45, operative part 1) 2. A length-of-service increment is, as an employment condition, covered by clause 4(1) of the framework agreement on fixed-term work annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP. Consequently, fixed-term workers may contest treatment that, with regard to payment of that increment, is less favourable than that which is given to permanent workers in a comparable situation and for which there is no objective justification. The temporary nature of the employment relationship of certain public servants is not, in itself, capable of constituting an objective ground within the meaning of that clause of the framework agreement. (see para. 58, operative part 2) 3. The third paragraph of Article 2 of Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP provides that, when Member States adopt the laws, regulations and administrative provisions necessary to comply with that directive, these are to contain a reference to the directive or are to be accompanied by such reference at the time of their official publication. When a directive expressly requires the measures transposing the directive to contain a reference to it or to be accompanied by such a reference at the time of their official publication, it is in any event necessary to adopt a specific measure transposing the directive. Although, admittedly, Member States would be liable, in infringement proceedings, to be found to have failed to fulfil their obligations under the third paragraph of Article 2 of Directive 1999/70, it does not necessarily follow that a national measure which fails to refer, in its explanatory memorandum, to the directive concerned cannot be regarded as a valid measure transposing the directive. Since it falls to the Member States not only to bring about a formal transposition of European Union directives into their legal orders but also to ensure that their obligations under those directives are fully complied with at all times, it is not inconceivable that a Member State, which initially has sought to transpose a directive and to fulfil its obligations under European Union law, may become aware – in particular as a result of cases brought before the national courts or an action brought by the Commission under Article 258 TFEU – that the provisions of its national law have failed to transpose European Union law correctly or fully and must accordingly be amended. The mere fact that a national provision contains no reference to Directive 1999/70 does not preclude that provision from being regarded as a national measure transposing the directive. (see paras 61-64, 67, operative part 3) 4. Clause 4(1) of the framework agreement on fixed-term work, set out in the Annex to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP is unconditional and sufficiently precise for interim civil servants to be able to rely on it as against the State before a national court in order to obtain recognition of their entitlement to length-of-service increments in respect of the period starting with the date by which the Member States ought to have transposed Directive 1999/70 and ending with the date of entry into force of the national law transposing that directive into the domestic law of the Member State concerned, subject to compliance with the relevant provisions of national law concerning limitation. Even though the national legislation transposing Directive 1999/70 contains a provision which, whilst recognising the right of interim civil servants to be paid the three-yearly length-of-service increments, excludes the retrospective application of that right, the competent authorities of the Member State concerned are obliged, under European Union law and in relation to a provision of the framework agreement on fixed-term work having direct effect, to give that right to payment of the increments retrospective effect to the date by which the Member States ought to have transposed Directive 1999/70. (see paras 90, 99, operative part 4-5)