Opinion of the Advocate General — ECLI:EU:C:2007:3
Date: 2007-01-10
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
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 (Art. 249, third para., EC; Council Directive 1999/70, 17th recital and Art. 2(1)) 2. Social policy – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 (Art. 137(5) EC; Council Directive 1999/70, Annex, clause 4(1)) 3. 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 both from the wording of Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP and of the said framework agreement annexed to the directive, as well as from their background and purpose, that the provisions laid down can apply also to fixed-term employment contracts and relationships concluded with the public authorities and other public-sector bodies. Having regard to the importance of the principles of equal treatment and non-discrimination, which are amongst the general principles of Community law, the provisions set out in that regard by Directive 1999/70 and by the framework agreement for the purposes of ensuring that fixed-term workers enjoy the same benefits as those enjoyed by comparable permanent workers, except where a difference in treatment is justified by objective grounds, must be deemed to be of general application since they are rules of Community social law of particular importance, from which each employee should benefit as a minimum protective requirement. Accordingly, 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 post may be classified as ‘regulated’ under national law and has certain characteristics typical of the civil service in the Member State in question is irrelevant in that regard. Otherwise, in reserving to Member States the ability to remove at will certain categories of persons from the protection offered by Directive 1999/70 and the framework agreement, the effectiveness of those Community instruments would be in jeopardy as would their uniform application in the Member States. As is clear not only from the third paragraph of Article 249 EC, but also from the first paragraph of Article 2 of Directive 1999/70, in the light of recital 17 of that directive, the Member States are required to guarantee the result imposed by Community law. (see paras 25, 27-29) 2. The concept of ‘employment conditions’, referred to in 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 should be interpreted as meaning that it may be the basis for a claim for the grant to a fixed-term worker of a length-of-service allowance which is reserved under national law solely to permanent staff. In the first place, the framework agreement aims to apply the principle of non-discrimination to fixed-term workers in order to prevent an employer using such an employment relationship to deny those workers rights which are recognised for permanent workers. That principle of Community social law cannot be interpreted restrictively. Secondly, since the exception relating to ‘pay’ set out in Article 137(5) EC must be strictly interpreted, it cannot be extended to any question involving any sort of link with pay; otherwise some of the areas referred to in Article 137(1) EC would be deprived of much of their substance. (see paras 37-41, 48, operative part 1) 3. 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 must be interpreted as precluding the introduction of a difference in treatment between fixed-term workers and permanent workers which is justified solely on the basis that it is provided for by a provision of statute or secondary legislation of a Member State or by a collective agreement concluded between the staff union representatives and the relevant employer. The concept of ‘objective grounds’ within the meaning of that clause requires the unequal treatment at issue to be justified by the existence of precise and concrete factors, characterising the employment condition to which it relates, in the specific context in which it occurs and on the basis of objective and transparent criteria in order to ensure that that unequal treatment in fact responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose. (see paras 58-59, operative part 2)