Order of the Court (Eighth Chamber) of 7 March 2013 — Bertazzi and Others

(Case C-393/11)

‛Article 99 of the Rules of Procedure of the Court of Justice — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clause 4 — Fixed-term employment contracts in the public sector — Stabilisation procedure — Recruitment of workers employed for a fixed term as career civil servants without a public competition — Determination of length of service — Complete disregard of periods of service completed under fixed-term employment contracts — Principle of non-discrimination’

1. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Workers doing the same work — ‘Same work’ — Definition — Workers in a similar 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) (see paras 32-38)

2. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Prohibition of discrimination 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) (see paras 39-41, 43-53, 55, operative part.)

3. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — General or hypothetical questions — Determination by the Court of its own jurisdiction (Art. 267 TFEU) (see para. 54)

Re:

Request for a preliminary ruling — Consiglio di Stato — Interpretation of Clause 4 of the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43) — National legislation under which it is possible, in derogation from the principle that public officials must be recruited by means of an open competition, for the public administrative authorities to enter into permanent work contracts with workers who have been in the employ of those authorities under fixed-term contracts — No account taken of the length of service accrued on the basis of the earlier, fixed-term contract, even where there is no interruption of the employment relationship.

Operative part:

Clause 4 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 understood as precluding national legislation, such as that at issue in the main proceedings, 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 the functions carried out under fixed-term employment contracts are not the equivalent of those carried out by a career civil servant belonging to the relevant category of that authority or, if not, that that prohibition is justified on ‘objective grounds’ for the purposes of clause 4(1) and/or (4), which it is for the referring court to determine. 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.

Order of the Court (Eighth Chamber) of 7 March 2013 — Bertazzi and Others

(Case C-393/11)

‛Article 99 of the Rules of Procedure of the Court of Justice — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clause 4 — Fixed-term employment contracts in the public sector — Stabilisation procedure — Recruitment of workers employed for a fixed term as career civil servants without a public competition — Determination of length of service — Complete disregard of periods of service completed under fixed-term employment contracts — Principle of non-discrimination’

1. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Workers doing the same work — ‘Same work’ — Definition — Workers in a similar 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) (see paras 32-38)

2. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Prohibition of discrimination 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) (see paras 39-41, 43-53, 55, operative part.)

3. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — General or hypothetical questions — Determination by the Court of its own jurisdiction (Art. 267 TFEU) (see para. 54)

Re:

Request for a preliminary ruling — Consiglio di Stato — Interpretation of Clause 4 of the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43) — National legislation under which it is possible, in derogation from the principle that public officials must be recruited by means of an open competition, for the public administrative authorities to enter into permanent work contracts with workers who have been in the employ of those authorities under fixed-term contracts — No account taken of the length of service accrued on the basis of the earlier, fixed-term contract, even where there is no interruption of the employment relationship.

Operative part:

Clause 4 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 understood as precluding national legislation, such as that at issue in the main proceedings, 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 the functions carried out under fixed-term employment contracts are not the equivalent of those carried out by a career civil servant belonging to the relevant category of that authority or, if not, that that prohibition is justified on ‘objective grounds’ for the purposes of clause 4(1) and/or (4), which it is for the referring court to determine. 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.