Judgment — ECLI:EU:C:2012:646
Date: 2012-10-18
Language of the case: Italian
Court formation: Sixth Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary – Judgment of the Court (Sixth Chamber), 18 October 2012 1. Social policy – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 – Scope – Fixed-term employment contract in the public sector – Worker employed for a fixed term recruited as a career civil servant without a public competition – Inclusion (Council Directive 1999/70, Annex, clause 4) 2. Social policy – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 – Workers doing similar work – ‘Similar work’ – Meaning – Workers in a comparable situation – Criteria for assessment – Nature of the work, training requirements and working conditions – Powers of review of 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 – Prohibition on discriminating against fixed‑term workers – Worker employed for a fixed term recruited as a career civil servant without a public competition – Failure to take account, in order to determine length of service, of periods of service completed under a fixed-term contract – Not permissible (Council Directive 1999/70, Annex, clause 4(1) and (4)) 1. See the text of the decision. (see paras 33-38) 2. See the text of the decision. (see paras 42-44) 3. Clause 4 of the framework agreement on fixed-term work, which is annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be understood as precluding national legislation which completely prohibits periods of service completed by a fixed-term worker for a public authority being taken into account in order to determine the length of service of that worker upon his recruitment on a permanent basis by that same authority as a career civil servant under a stabilisation procedure specific to his employment relationship, unless that prohibition is justified on ‘objective grounds’ for the purposes of clause 4(1) and/or (4). The mere fact that the fixed-term worker completed those periods of service on the basis of a fixed‑term employment contract or relationship does not constitute such an objective ground. Moreover, although the objective of preventing reverse discrimination against career civil servants recruited after passing a general competition may constitute an ‘objective ground’ for the purposes of clause 4(1) and/or (4) of the framework agreement, it cannot, in any event, justify disproportionate national legislation which completely and in all circumstances prohibits all periods of service completed by workers under fixed-term employment contracts being taken into account in order to determine the length of service of those workers upon their recruitment on a permanent basis and, thus, their level of remuneration. Such a complete and absolute prohibition is essentially based on the general premiss that the permanent nature of the employment relationship of certain public officials in itself justifies a difference in treatment with respect to public officials employed on a fixed-term basis, thereby rendering the objectives of Directive 1999/70 and of the framework agreement meaningless. As regards the fact that the stabilisation procedure gives rise, in national law, to a new employment relationship, the principle of non-discrimination set out in clause 4 of the framework agreement would be devoid of all content if that fact alone were able to constitute an ‘objective ground’ for the purposes of that clause capable of justifying a difference in treatment concerning taking into account, upon the recruitment on a permanent basis by a public authority of previously fixed-term workers, the length of service accrued by those workers for that authority under their fixed-term employment contracts. (see paras 62, 63,65, 71, operative part)