Opinion of the Advocate General — ECLI:EU:C:2015:326
Date: 2015-05-20
Language of the case: Spanish
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary — Judgment of the Court (Third Chamber), 9 July 2015 1. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Concept of ‘fixed-term worker’ — Non-permanent staff — Included (Council Directive 1999/70, Annex, clause 3, para. 1) 2. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Objectives (Council Directive 1999/70, Recital 14 and Annex, clause 1(a) and clause 4) 3. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Prohibition on discrimination against fixed-term workers — Conditions of employment — Definition — Length-of-service increment — Included (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 — Prohibition on discrimination against fixed-term workers — National legislation excluding non-permanent staff, without objective grounds, from the right to receive a three-yearly length-of-service increment granted to career civil servants in a situation comparable for both categories of workers — Not permissible — Verification a matter for the national court (Council Directive 1999/70, Annex, clauses 3(2) and 4(1)) 5. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Objective grounds justifying differential treatment — Definition — Criteria to be taken into consideration (Council Directive 1999/70, Annex, clause 4(1)) 1. The concept of a ‘fixed-term worker’, within the meaning of clause 3(1) of the framework agreement on fixed-term work, concluded on 18 March 1999, which is set out in the Annex to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as applying to a worker included in the non-permanent staff under national law. Directive 1999/70 and the framework agreement are applicable to all workers providing remunerated services in the context of a fixed-term employment relationship linking them to their employer. The mere fact that a worker may be classified as ‘non-permanent’ under national law or that his employment contract has certain particular features, such as its temporary nature, the fact that appointment or termination is not subject to any restrictions and the fact that the worker is supposed to carry out duties entailing trust and special advice, is irrelevant in that regard. Otherwise, if Member States were permitted to remove at will certain categories of persons from the protection offered by Directive 1999/70 and the framework agreement, the effectiveness of those EU instruments would be in jeopardy, as would their uniform application in the Member States. (see 33, 34, 37, operative part 1) 2. See the text of the decision. (see paras 40-42) 3. See the text of the decision. (see para. 43) 4. Clause 4(1) of the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP must be interpreted as precluding national legislation which excludes, without justification on objective grounds, non-permanent staff from the right to receive a three-yearly length-of-service increment granted, inter alia, to career civil servants when, as regards the receipt of that increment, those two categories of workers are in comparable situations, a matter which is for the referring court to ascertain. As regards three-yearly length-of-service increments, which constitute employment conditions within the meaning of clause 4(1) of the framework agreement, fixed-term workers must not be treated less favourably than permanent workers in a comparable situation, in the absence of any objective justification. In order to assess whether workers are engaged in the same or similar work for the purposes of the framework agreement, account must be taken, in accordance with clauses 3(2) and 4(1) of that agreement, of a number of factors, such as the nature of their work, their qualifications and abilities, the training requirements and the working conditions. (see paras 44, 46, 62, operative part 2) 5. See the text of the decision. (see paras 54-57)