Case C‑631/15

Carlos Álvarez Santirso

v

Consejería de Educación, Cultura y Deporte del Principado de Asturias

(Request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 1 de Oviedo)

‛References for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clause 4 — Successive fixed-term employment contracts in the public sector — Non-tertiary education — National rules — Grant of remuneration supplement — Condition — Positive result obtained in evaluation process — Professors employed as interim civil servants — Not included — Principle of non-discrimination’

Summary — Order of the Court (Tenth Chamber), 21 September 2016

Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Prohibition on discrimination against workers employed under fixed-term contracts — National rules reserving participation in teaching evaluation plans and, in the case of a positive result, the ensuing financial incentives exclusively for teachers employed under permanent employment contracts as established career civil servants, thereby excluding persons employed as interim civil servants under fixed-term employment contracts — No objective grounds — Not permissible

See the text of the decision. (see paras 25, 26)

Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP and the Framework Agreement set out in the Annex thereto are applicable to all workers providing remunerated services in the context of a fixed-term employment relationship linking them to their employer. The provisions laid down in the Framework Agreement apply to fixed-term employment contracts and relationships concluded with the public authorities and other public-sector bodies. It follows that a teacher employed as an interim civil servant under a fixed-term employment contract in public educational establishments of an autonomous community of a Member State comes within the scope of Directive 1999/70 and the Framework Agreement. (see paras 27-29)

In social policy matters, the decisive criterion for determining whether a measure falls within the scope of ‘employment conditions’ within the meaning of clause 4(1) of the Framework Agreement on fixed-term work, set out in the Annex to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, is the criterion of employment, that is to say the employment relationship between a worker and his employer. Therefore, the concept of ‘employment conditions’ within the meaning of clause 4(1) of the Framework Agreement includes three-yearly length of service supplements, a six-yearly supplement for further training and rules concerning periods of service to be completed in order to be classified in a higher salary grade or calculation of the periods required to have performance assessed each year. It follows that participation in the evaluation plan and the ensuing financial incentive in the event of a positive assessment must also be regarded as being ‘employment conditions’ within the meaning of clause 4(1) of the Framework Agreement. On the one hand, the condition of five years’ length of service required to be included in the evaluation plan meets the decisive criterion referred to above. On the other hand, obtaining a positive assessment in the evaluation plan has no impact on the promotion and career development system, but results solely in a remuneration supplement. A component of remuneration in the form of a financial incentive must, as a condition of employment, be granted to a fixed-term worker on an equal footing with a permanent worker. An interpretation of clause 4(1) of the Framework Agreement that excludes from the definition of ‘employment conditions’ the right to participate in the evaluation plan and the ensuing financial incentive in the event of a positive assessment has the effect of weakening the protection against discrimination granted to fixed-term workers, contrary to the objective pursued by that provision. (see paras 34-39)