Information;Order — ECLI:EU:C:2021:1005
Date: 2021-12-13
Language of the case: Spanish
Court formation: Eighth Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Anonymised version 
Translation C-151/21 – 1 
Case C-151/21 
Request for a preliminary ruling 
Date lodged:  
9 March 2021 
Referring court:  
Tribunal Superior de Justicia de Castilla-La Mancha (Spain) 
Date of the decision to refer:  
3 March 2021 
Appellant:  
Servicio de Salud de Castilla-La Mancha (SESCAM) 
Respondent:  
L. N. C. 
  
T.S.J.CAST.LA MANCHA […] 
(High Court of Justice, Castilla-La Mancha) 
 […] [Or. 2] […] [Composition of the referring court, parties, contact details and 
identification of the dispute] 
FACTS 
Administrative proceedings 
1 Mr L. N. C. has been a member of the permanent regulated staff of the Servicio de 
Salud de Castilla-La Mancha (Castilla-La Mancha Health Service; ‘SESCAM’), 
working in the category of Nursing Assistant, since 2004. 
2 In 2005, he was granted a ‘temporary internal promotion’ by virtue of which he 
temporarily performed duties specific to the category of Nurse (higher than that of 
EN 
REQUEST FOR A PRELIMINARY RULING OF 3.3.2021 – CASE C-151/21 
 
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Nursing Assistant). In accordance with Article 35 of Ley 55/2003, de 16 de 
diciembre, del Estatuto Marco del personal estatutario de los servicios de salud 
(Law 55/2003 of 16 December 2003 on the framework regulations for regulated 
staff of the health services), Mr N. C. continued to be actively employed in the 
category of Nursing Assistant notwithstanding the fact that he was performing 
duties specific to the category of Nurse. 
3 Mr N. C. remained in that situation until 2009, when he successfully completed 
the selection process for permanent progression to the category of Nurse. 
4 Whilst on temporary internal promotion, Mr N. C. had become entitled to a three-
yearly increment. That increment is paid to him by the administration on the basis 
of the amount payable to the occupational group [Or. 3] to which he belonged 
(Nursing Assistant) rather than on the basis of that payable to the occupational 
group with which the duties which he was actually performing while on temporary 
internal promotion were associated (Nurse).  
5 On 27 February 2018, Mr N. C. lodged with a complaint with SESCAM, 
requesting that he henceforth be paid the three-yearly increment in the amount 
payable to the occupational group of Nurse (together with non-time-barred arrears 
of monthly pay). 
6 SESCAM did not respond to the request. 
Judicial proceedings at first instance 
7 Mr N. C. brought an action before the Juzgado de lo Contencioso n.º 1 de 
Albacete (Administrative Court No 1, Albacete) […] [Procedure] 
8 The court gave judgment granting the application on 30 October 2018. The 
substantive issue is dealt with in the Third Legal Ground, where, citing other 
judgments, the court expresses the view, in essence, that: 
a. It is true that Article 35(2) of Law 55/2003 of 16 December 2003 on 
the framework regulations for regulated staff of the health services) 
(‘the Framework Regulations’) provides that: For the period during 
which they are performing duties on temporary internal promotion, 
staff shall continue to be actively employed in their original category, 
and shall receive the remuneration payable for the duties actually 
performed by them, with the exception of three-yearly increments, 
which shall be paid on the basis of their original appointment’.  
b. However, in the light of the uniform and consistent interpretation by 
the Court of Justice of the European Union of Council Directive 
1999/70/EC of 28 June 1999 concerning the framework agreement on 
fixed-term work concluded by ETUC, UNICE and CEEP, there is no 
doubt that, in public employment, there can be no discrimination 
between permanent staff and temporary staff as regards remuneration 
SESCAM 
 
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in respect of length of service. The court cited the judgment of the 
Court of Justice of the European Union in Case C-177/14. 
c. A statutory provision such as Article 32(5) of the Framework 
Regulations owes its very existence to the long-standing 
discrimination, as regards remuneration in respect of length of service, 
between career (established) civil servants and interim (non-
established) civil servants. In this case, the [Or. 4] discrimination 
originally benefited permanent regulated staff, given that temporary 
staff were not eligible to receive three-yearly increments. However, 
now that temporary staff have started to receive such increments by 
virtue of the case-law of the Court of Justice of the European Union, it 
is a legal nonsense that increments accruing to permanent staff 
temporarily performing duties senior to those associated with their 
[original] category should be those payable not in respect of the higher 
category but rather of the original category. 
d. For that reason, the judgment continues, given the patent contradiction 
that exists between, on the one hand, Article 35(2) of the Law adopting 
the Framework Regulations and, on the other hand, and Directive 
1999/70/EC, as interpreted in accordance with the case-law of the 
Court of Justice of the European Union, there is a very clear need to 
disapply the statutory provision and adopt an interpretation of the 
Spanish legislation which is in accordance with the provision made in 
the Directive to prevent such discrimination. 
e. It would amount to unfair discrimination for interim (non-established) 
civil servants who in future progress to a particular category as a 
permanent member of staff to have the three-yearly increments to 
which they become entitled during their period of employment as 
interim (non-established) staff calculated on the basis of the category 
which includes the roles which they actually performed, but for a 
permanent worker in a particular category who, by virtue of a 
temporary internal promotion, performs work in a higher category, to 
which he is later appointed on a permanent basis, not to qualify for the 
same treatment. A person who, before working in the higher category, 
performed a role in a lower category […] would be the subject of 
unequal treatment [compared to] a person who did not perform a role 
in a lower category, inasmuch as the latter would have all of the duties 
he previously performed recognised on the basis of the category in 
which he actually worked, whereas the same would not be true in the 
case of a permanent worker who holds a post in a category lower than 
that of the duties he temporarily performed. 
REQUEST FOR A PRELIMINARY RULING OF 3.3.2021 – CASE C-151/21 
 
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Judicial proceedings at second instance 
9 SESCAM lodged an appeal against that judgment […] [matters of domestic 
procedural law][.] SESCAM claimed infringement of Article 35(2) and (3) of the 
Framework Regulations. [Or. 5] 
10  […] SESCAM stated that the judgment under appeal had improperly transposed 
the case-law of the Court of Justice of the European Union and Directive 
1999/70/EE, inasmuch as this is not a situation involving a comparison of the 
treatment afforded to temporary regulated staff with that afforded to permanent 
regulated staff. The situation under examination is that of a permanent staff 
member who, whilst on temporary internal promotion, remains actively employed 
in his original category. The directive applied by the judgment [under appeal] 
prohibits pay discrimination only between persons performing the same duties and 
only for as long as that framework of equality is maintained, which is to say that it 
requires that the circumstances at issue be identical, which is not so in this case. 
The three-yearly increment must be calculated on the basis of the category to 
which the person concerned belongs, which in this instance was that of Nursing 
Assistant. 
Furthermore, SESCAM went on, the judgment [under appeal] infringes the 
doctrine that venire contra factum proprium non valet, since the public servant in 
question was awarded a temporary internal promotion in particular circumstances 
of which he was aware and from which he is now seeking to dissociate himself. 
11 Mr N. C. opposed the appeal and contended that the judgment and all of the 
arguments on which it was based should be upheld.  
12 At this stage of these proceedings, this Chamber, after hearing the parties, has 
decided to make a reference for a preliminary ruling to the Court of Justice of the 
European Union. 
LAW 
Applicable legal provisions. 
13 National provisions: 
a. Article 35 of Law 55/2003 of 16 December 2003 on the framework 
regulations for regulated staff of the health services, which states: 
‘1. Where operationally necessary, and in such circumstances and 
subject to such conditions as each health service may establish for this 
purpose, permanent specially regulated staff may be offered the 
opportunity, on a temporary and voluntarily basis, to perform duties 
associated with appointments to a category requiring the same level of 
qualification or a higher level, provided that they are suitably [Or. 6] 
SESCAM 
 
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qualified. These proceedings shall be the subject of negotiation at the 
relevant boards. 
2. For the period during which they are performing duties on 
temporary internal promotion, staff shall continue to be actively 
employed in their original category, and shall receive the 
remuneration payable for the duties actually performed by them, with 
the exception of three-yearly increments, which shall be paid on the 
basis of their original appointment. 
3. The performance of duties on temporary internal promotion shall 
not give rise to any right in respect of pay or in relation to the 
acquisition of a new appointment, although it may be regarded as a 
merit within the framework of the internal promotion schemes 
provided for in the preceding article’. 
b. Articles 8 and 9 of the aforementioned Law, which define the concepts 
of permanent and temporary regulated staff. 
c. Judgment of the Tribunal Supremo (Supreme Court, Spain) 
No 1372/2019 of 15 October 2019, appeal in cassation 1899/2017 
(ECLI: ES:TS:2019:3276). 
14 EU provisions 
a. Council Directive 1999/70/EC of 28 June 1999 concerning the 
framework agreement on fixed-term work concluded by ETUC, 
UNICE and CEEP, clause 4 of the Framework Agreement contained 
therein, paragraph 1 of which states: 
In respect of employment conditions, fixed-term workers shall not 
be treated in a less favourable manner than comparable 
permanent workers solely because they have a fixed-term 
contract or relation unless different treatment is justified on 
objective grounds. 
Paragraph 4: 
Period-of service qualifications relating to particular conditions 
of employment shall be the same for fixed-term workers as for 
permanent workers except where different length-of service 
qualifications are justified on objective grounds. 
b. Judgments of the Court of Justice of the European Union (inter alia) 
[Or. 7] 
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i. Judgment of 9 July 2015, Case C-177/14 
(ECLI:EU:C:2015:450), and those cited therein by the Court 
itself. 
Reasons for the need and advisability of making this reference 
15 We consider it necessary to make this reference for a preliminary ruling because 
we are uncertain as to the soundness of the interpretation which the judgment we 
are called upon to review on appeal adopts of clause 4(1) of the Framework 
Agreement in Council Directive 1999/70/EC. That interpretation also appears to 
have been endorsed in judgment No 1372/2019 of the Spanish Tribunal Supremo 
(Supreme Court) of 15 October 2019, appeal in cassation 1899/2017 (ECLI: 
ES:TS:2019:3276). 
Explanation and submission of the reference for a preliminary ruling 
16 Our uncertainty, put very simply, can be expressed thus: clause 4(1) of the 
Framework Agreement on fixed-term work seeks to protect temporary workers by 
comparison with permanent workers. However, the judgment which we are 
reviewing on appeal and that of the Tribunal Supremo (Supreme Court) of 
15 October 2019 appear to take the view that the Directive also imposes an 
obligation to protect permanent workers from any discrimination by comparison 
with temporary workers. This, to our mind, constitutes a misinterpretation of the 
Directive. 
17 The essential circumstances of the case, both factual and legal, can be summarised 
as follows: 
a. Mr N. C. was a member of the permanent regulated staff of SESCAM, 
working in the category of Nursing Assistant. 
b. In 2005, he performed duties in the higher category of Nurse by virtue 
of the ‘temporary internal promotion’ scheme. 
c. According to Article 35 of the Framework Regulations for Regulated 
Staff, the ‘temporary internal promotion’ scheme simply entails the 
performance of certain ‘duties’ in another category, but permanent 
staff do not thereby cease to belong to the original category, in which 
they continue to be actively employed. The aforementioned article also 
clearly provides that, although the remuneration due is to be that 
payable for the duties actually performed, the same is not true of any 
three-yearly increments, which are to be paid at the rate applicable to 
the [Or. 8] original appointment, and goes on to say that working on 
temporary internal promotion will not under any circumstances give 
rise to any rights in respect of pay.  
SESCAM 
 
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d. Mr N. C. claims, however, notwithstanding the foregoing rules, that he 
should now (after having been progressed to the higher category as a 
permanent member of staff, via the corresponding selection tests) be 
paid the three-yearly increment to which he became entitled whilst on 
‘temporary internal promotion’ on the basis of the category associated 
with the duties which he actually performed rather than on the basis of 
the duties associated with the category to which he belonged. 
e. The judgment which we are reviewing on appeal and the judgment of 
the Tribunal Supremo (Supreme Court) of 15 October 2019 state that, 
if a temporary worker had performed the same duties in the category of 
Nurse and had become entitled to a three-yearly increment while 
working in that category, he would have been paid that increment on 
the basis of that category (since a temporary worker does not belong to 
any other category but simply performs roles in a given category 
without belonging to that category); they thus state, relying on 
Directive 1999/70/CE, that the same must apply to permanent workers, 
in order thus to prevent any discrimination. They state in short that 
Article 35 of the Framework Regulations, a domestic rule of law, must 
be disapplied because this is necessary in accordance with EU 
legislation. 
18 This Chamber reserves its opinion as to whether Article 35 of the Framework 
Regulations is at odds, generally, with the principle of equality before the law 
relating to permanent staff performing duties on temporary internal promotion, by 
comparison with temporary staff. It does, however, take the view that, even if 
Article 35 is at odds with that principle (and we are not saying that it is), this issue 
bears no connection with or relation to clause 4 of the framework agreement 
contained in Directive 1999/70/EC, given that that agreement, as is clear both 
from the preamble thereto and from the operative text thereof, has the sole 
purpose of protecting workers on fixed-term contracts from any discrimination by 
comparison with permanent workers, but not the reverse. Consequently, the 
aforementioned issue falls outside the scope of the EU Directive and any 
incompatibility on the part of Article 35 of the Framework Regulations with the 
principle of or right to equality as provided for in various statutory texts (an 
incompatibility which we neither confirm nor deny) must be disposed of through 
the corresponding domestic channels. [Or. 9] 
[…] 
[Repetition of the question referred] 
OPERATIVE PART 
1- The following question is referred to the Court of Justice of the European 
Union for a preliminary ruling: 
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‘The Court of Justice of the European Union is asked whether clause 4 of the 
framework agreement on fixed-term work concluded by ETUC, UNICE and 
CEEP, contained in Council Directive 1999/70/EC of 28 June 1999, requires 
that, in a case such as that described in the present case, a permanent worker 
must receive the same treatment, for the purposes of three-yearly increments, as 
a fixed-term worker who has performed the same duties or whether, conversely, 
the aforementioned directive is confined to protecting fixed-term workers from 
discrimination by comparison with permanent workers, but not the reverse’. 
[…] [Or. 10] 
[…] [Or. 11] 
[Final procedural formulae and signature]