Opinion of the Advocate General — ECLI:EU:C:2017:1021
Date: 2017-12-20
Language of the case: Spanish
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary — Judgment of the Court (Grand Chamber), 5 June 2018 1. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Conditions of employment — Definition — Compensation paid to a worker on account of termination of his contract — Included (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 — Workers doing the same or similar work — Definition — Workers in a similar situation — Criteria for assessment — Nature of the work, training requirements and working conditions — Determination by the national court (Council Directive 1999/70, Annex, Clauses 3(2) and 4(1)) 3. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Objective reasons justifying different treatment — Meaning — Compensation in the event of termination of an employment contract of indefinite duration on objective grounds — No compensation on expiry of a fixed-term ‘interinidad’ contract — Lawfulness (Council Directive 1999/70, Annex, Clauses 3(1) and 4(1)) 1. It is necessary to establish whether the payment of compensation by an employer on account of the termination of an employment contract falls within the concept of ‘employment conditions’ within the meaning of Clause 4(1) of the Framework Agreement. In that regard, the Court has held that the decisive criterion for determining whether a measure falls within the scope of that concept is the criterion of employment, that is to say the employment relationship between a worker and his employer (judgments of 12 December 2013, Carratù, C‑361/12, EU:C:2013:830, paragraph 35, and of 13 March 2014, Nierodzik, C‑38/13, EU:C:2014:152, paragraph 25). The Court has thus held that, inter alia, rules for determining the notice period applicable in the event of termination of fixed-term employment contracts fall within that concept (see, to that effect, judgment of 13 March 2014, Nierodzik, C‑38/13, EU:C:2014:152, paragraph 29). The Court has also held that an interpretation of Clause 4(1) of the Framework Agreement which excludes from the definition of that concept conditions relating to termination of a fixed-term employment contract would limit the scope of the protection afforded to fixed-term workers against discrimination, contrary to the objective assigned to that provision (judgment of 13 March 2014, Nierodzik, C‑38/13, EU:C:2014:152, paragraph 27). Those considerations are fully transferable to the compensation paid to a worker on account of the termination of his contract of employment with his employer, such compensation being paid on account of the employment relationship that has been established between them (see, to that effect, judgment of 14 September 2016, de Diego Porras, C‑596/14, EU:C:2016:683, paragraph 31). It follows that compensation such as that at issue in the main proceedings falls within the concept of ‘employment conditions’ within the meaning of Clause 4(1) of the Framework Agreement. (see paras 44-48) 2. See the text of the decision. (see paras 51, 52) 3. Clause 4(1) of the framework agreement on fixed-term work concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as not precluding national legislation which does not provide for any compensation to be paid to workers employed under a fixed-term contract entered into in order to cover a post temporarily while the selection or promotion procedure to fill the post permanently takes place, such as the temporary replacement contract at issue in the main proceedings, on expiry of the term for which that contract was concluded, whereas compensation is payable to permanent workers where their employment contract is terminated on objective grounds. Indeed, it follows from the definition of a fixed-term contract in Clause 3(1) of the Framework Agreement that a contract of that kind ceases to have any future effect on expiry of the term stipulated in the contract, that term being identified as the completion of a specific task, a specific date being reached or as in the present case, the occurrence of a specific event. Thus, the parties to a fixed-term employment contract are aware, from the moment of its conclusion, of the date or event which determines its end. That term limits the duration of the employment relationship without the parties having to make their intentions known in that regard after entering into the contract. By contrast, the termination of a permanent employment contract on one of the grounds set out in Article 52 of the Workers’ Statute, on the initiative of the employer, is the result of circumstances arising which were not foreseen at the date the contract was entered into and which disrupt the normal continuation of the employment relationship. As is clear from the Spanish Government’s explanations set out in paragraph 58 of the present judgment and as the Advocate General noted, in essence, in point 55 of her Opinion, it is precisely in order to compensate for the unforeseen nature of the termination of the employment relationship for such a reason and, accordingly, the frustration of any legitimate expectation the worker may have had at that date as regards the stability of that relationship, that Article 53(1)(b) of the Workers’ Statute requires compensation equivalent to twenty days’ remuneration per year of service to be paid to the dismissed worker. In the latter case, Spanish law does not treat fixed-term workers and comparable permanent workers differently, since Article 53(1)(b) of the Workers’ Statute provides for statutory compensation equivalent to twenty days’ remuneration per year of service with the employer to be paid to a worker, irrespective of whether his employment contract is for a fixed-term or for an indefinite duration. In those circumstances, it must be concluded that the specific purpose of the compensation provided for dismissal in Article 53(1)(b) of the Workers’ Statute, and the specific context in which that compensation is paid, constitutes an objective ground justifying the different treatment at issue. (see paras 60-63, 65, operative part)