OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 17 October 2019 ( 1 )

Case C‑177/18

Almudena Baldonedo Martín

v

Ayuntamiento de Madrid

(Request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo no 14 de Madrid (Administrative Court No 14, Madrid, Spain))

(Reference for a preliminary ruling — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clause 4(1) — Principle of non-discrimination — Justification — Compensation in the event of termination of the employment contract of a permanent contract worker on objective grounds — No compensation on the expiry of the fixed-term employment contract of an interim civil servant)

I. Introduction

1. In the present case, the Juzgado de lo Contencioso-Administrativo No 14 de Madrid (Administrative Court No 14, Madrid, Spain) seeks a preliminary ruling from the Court on, inter alia, the interpretation of Clauses 4 and 5 of the framework agreement on fixed-term work concluded on 18 March 1999 (‘the framework agreement’), which is set out in 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. ( 2 )

2. The questions were raised in proceedings between Almudena Baldonedo Martín and the Ayuntamiento de Madrid (Municipality of Madrid, Spain) concerning the payment of compensation due as a result of the termination of the employment relationship between the parties.

II. Legal framework

A. EU law

3. Recital 14 of Directive 1999/70 states: ‘The signatory parties wished to conclude a framework agreement on fixed-term work setting out the general principles and minimum requirements for fixed-term employment contracts and employment relationships; they have demonstrated their desire to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination, and to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.’

4. According to Article 1 of Directive 1999/70, the purpose of that directive is ‘to put into effect the framework agreement … concluded … between the general cross-industry organisations (ETUC, UNICE and CEEP) annexed hereto’.

5. The first subparagraph of Article 2 of that directive provides: ‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive [and shall] take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by this Directive. …’

6. The second paragraph in the preamble to the framework agreement states: ‘The parties to this agreement recognise that contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers. They also recognise that fixed-term employment contracts respond, in certain circumstances, to the needs of both employers and workers.’

7. The third paragraph in that preamble states: ‘[The framework agreement] sets out the general principles and minimum requirements relating to fixed-term work, recognising that their detailed application needs to take account of the realities of specific national, sectoral and seasonal situations. It illustrates the willingness of the Social Partners to establish a general framework for ensuring equal treatment for fixed-term workers by protecting them against discrimination and for using fixed-term employment contracts on a basis acceptable to employers and workers.’

8. In accordance with Clause 1 of the framework agreement, its purpose is, first, to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination and, secondly, to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

9. Clause 3 of the framework agreement, entitled ‘Definitions’, provides: ‘1. For the purpose of this agreement, the term “fixed-term worker” means a person having an employment contract or relationship entered into directly between an employer and a worker where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event; 2. For the purpose of this agreement, the term “comparable permanent worker” means a worker with an employment contract or relationship of indefinite duration, in the same establishment, engaged in the same or similar work/occupation, due regard being given to qualifications/skills …’

10. Clause 4 of the framework agreement, entitled ‘Principle of non-discrimination’, provides, in subparagraph 1: ‘In respect of employment conditions, fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds.’

11. Clause 5 of the framework agreement, entitled ‘Measures to prevent abuse’, states: ‘1. To prevent abuse arising from the use of successive fixed-term employment contracts or relationships, Member States, after consultation with social partners in accordance with national law, collective agreements or practice, and/or the social partners, shall, where there are no equivalent legal measures to prevent abuse, introduce in a manner which takes account of the needs of specific sectors and/or categories of workers, one or more of the following measures: (a) objective reasons justifying the renewal of such contracts or relationships; (b) the maximum total duration of successive fixed-term employment contracts or relationships; (c) the number of renewals of such contracts or relationships. 2. Member States, after consultation with the social partners and/or the social partners shall, where appropriate, determine under what conditions fixed-term employment contracts or relationships: (a) shall be regarded as “successive”; (b) shall be deemed to be contracts or relationships of indefinite duration.’

B. Spanish law

12. The first additional provision of Real Decreto 896/1991 por el que se establecen las reglas básicas y los programas mínimos a que debe ajustarse el procedimiento de selección de los funcionarios de Administración Local (Royal Decree 896/1991 laying down the basic rules and minimum timescales applicable to the process of selecting local-government civil servants) of 7 June 1991 ( 3 ) states: ‘Following a notice of competition and in compliance, in any event, with the principles of merit and competence, the President of the municipal or provincial council may appoint interim civil servants to vacant posts provided that those posts cannot, given the urgency entailed by the circumstances, be filled by established civil servants. Those posts shall be provided with budgetary resources and included on the list of public sector vacancies, except where they have become vacant since the approval of that list. … The posts thus filled shall necessarily be included in the first notice of competition to fill posts or on the first list of public sector vacancies approved. The employment of an interim civil servant shall be terminated when the post is filled by an established civil servant, or when the municipal or provincial council considers that the urgent grounds for appointing an interim civil servant to cover that post no longer exist.’

13. Article 8 of the Ley del Estatuto Básico del Empleado Público cuyo texto refundido fue aprobado por el Real Decreto Legislativo 5/2015, (Royal Legislative Decree 5/2015 approving the consolidated text of the Basic Statute for Public Employees) of 30 October 2015 (‘the EBEP’) ( 4 ) provides: ‘1. Public servants are persons who carry out duties for remuneration in the public authorities in the service of the general interest. 2. Public servants shall be classified as: (a) established civil servants; (b) interim civil servants; (c) contract staff, whether engaged under permanent, indefinite-duration or fixed-term employment contracts; (d) temporary staff.’

14. Article 10 of the EBEP provides: ‘1. Interim civil servants are persons who, for expressly justified reasons of necessity and urgency, are appointed to that status to perform the duties of established civil servants in one of the following cases: (a) the existence of vacant posts which cannot be occupied by established civil servants; (b) temporary replacement of established civil servants; (c) the carrying out of temporary programmes for a period not exceeding three years, which may be extended by 12 months under the laws governing the civil service adopted to implement this Statute; (d) an excessive workload or a backlog of work, for a maximum period of six months within a 12-month period. … 3. The employment of interim civil servants shall be terminated not only on the grounds provided for in Article 63 but also where the reason for their appointment ceases to apply. 4. In the circumstances referred to in paragraph 1(a) of this article, vacant posts filled by interim civil servants shall be included on the list of vacancies for the year in which the appointments are made or, if that is not possible, for the following year, unless there is a decision to abolish the post. 5. The general rules applicable to established civil servants shall apply to interim civil servants in so far as those rules are appropriate to the nature of the latter’s status …’

15. Article 63 of the EBEP is worded as follows: ‘The grounds for loss of the status of civil servant shall be: (a) resignation; (b) loss of nationality; (c) full retirement of the civil servant; (d) definitive disciplinary penalty of dismissal; (e) definitive principal or secondary penalty of absolute or specific prohibition on employment in the public sector.’

16. Article 70(1) of the EBEP provides: ‘Human resource needs which receive a budget allocation and are to be met by appointing new members of staff shall be included on a list of public sector vacancies or filled by means of another similar instrument for managing the fulfilment of staffing needs, which involves organising the relevant selection procedures for the posts to be filled (up to 10% additional posts) and setting the maximum period for the publication of notices. In any event, the implementation of the list of public sector vacancies or similar instrument must take place within a non-renewable period of three years.’

17. Under paragraph 1 of the Fourth Transitional Provision of the EBEP, the public authority may publish notices of competition with a view to consolidating employment in permanent posts within its various bodies or categories which have budgetary resources and were filled by interim civil servants or temporary staff before 1 January 2005.

18. Article 49 of the Ley del Estatuto de los Trabajadores cuyo texto refundido fue aprobado por el Real Decreto Legislativo 1/1995, (Royal Legislative Decree No 1/1995 approving the consolidated text of the Law on the Workers’ Statute), of 24 March 1995, ( 5 ) in the version applicable at the time of the facts in the main proceedings (‘the Workers’ Statute’), provides: ‘1. An employment contract shall be terminated: … (b) on the grounds validly set out in the contract, unless they constitute a manifest abuse of rights on the part of the employer; (c) on expiry of the term agreed or completion of the task or service covered by the contract. At the end of the contract, except in the case of temporary replacement (interinidad) contracts and training contracts, the worker shall be entitled to receive compensation in an amount equivalent to 12 days’ remuneration per year of service, or, where applicable, the compensation provided for by the specific legislation applicable in the case; … (l) on legally permissible objective grounds; …’

19. Under Article 52 of the Workers’ Statute, ‘objective grounds’ which may justify the termination of the employment contract are: the worker’s incompetence, which became apparent or developed after the worker actually joined the undertaking; the worker’s failure to adapt to reasonable technical changes made to his job; economic or technical grounds or grounds relating to organisation or production when the number of posts lost is lower than that required in order to classify the termination of employment contracts as a ‘collective dismissal’; and, subject to certain conditions, repeated absence from work, even if justified.

20. In accordance with Article 53(1)(b) of the Workers’ Statute, the termination of an employment contract on any of the grounds set out in Article 52 of that statute confers entitlement on the worker to payment, at the same time as written notification of termination is given, of compensation equivalent to 20 days’ remuneration per year of service, periods of less than one year being calculated pro rata on a monthly basis, up to a maximum of 12 monthly payments.

21. Article 56(1) of the Workers’ Statute provides that where a dismissal is declared unfair, the employer, within five days of notification of the judgment, may choose either to reinstate the worker or to pay compensation equivalent to 33 days’ salary per year of service, periods shorter than a year being calculated pro rata on a monthly basis up to a maximum of 24 monthly payments. If the employer opts to pay compensation, the employment contract shall be terminated, that termination being regarded as having occurred on the date of effective cessation of work.

III. The facts of the dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

22. On 24 November 2005, the Municipality of Madrid appointed Ms Baldonedo Martín, as an interim civil servant, to the post of green space maintenance operative in the Environment and Mobility department of the Municipal Council.

23. Upon her appointment, it was specified that Ms Baldonedo Martín would be employed to cover a vacant post until such time as the post was filled by an established civil servant, and that that post would be abolished if the established civil servant being replaced lost the right to have his post retained, or if the authority took the view that the urgent grounds for appointing an interim civil servant to cover the post no longer existed.

24. On 15 April 2013, Ms Baldonedo Martín was informed that her post had been filled, that day, by an established civil servant and that, consequently, her employment was terminated.

25. On 20 February 2017, Ms Baldonedo Martín requested from the Municipality of Madrid payment of compensation for termination of her employment equivalent to 20 days’ remuneration per year of service. Her request was based on Clauses 4 and 5 of the framework agreement, on Article 20 and 21(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and on Article 4(3) TEU.

26. By decision of 25 April 2017, the Director-General of Human Resources of the Administrative Management Centre for the Municipality of Madrid refused the request, on the grounds that the post occupied by Ms Baldonedo Martín was vacant and that there had been an urgent and pressing need for it to be covered, stating that her employment had been terminated because the post had been filled by an established civil servant, and that there was no discrimination by comparison with established civil servants, since the latter do not receive compensation for the termination of their employment, in accordance with the legal regime applicable to them.

27. Ms Baldonedo Martín appealed against that decision before the Juzgado de lo Contencioso-Administrativo No 14 de Madrid (Administrative Court No 14, Madrid).

28. The referring court states that, during the period when Ms Baldonedo Martín was employed by the Municipality of Madrid, she worked in the same post regularly and continuously, and that her duties were identical to those performed by green space maintenance operatives with established civil servant status. That court explains that the Municipality of Madrid did not provide any evidence that, during that period, a competition was organised or a list of public sector vacancies was published. It does not know whether the post occupied by Ms Baldonedo Martín was filled by means of internal promotion, a competition based on qualifications or tests or another selection procedure. Moreover, the Municipality of Madrid did not establish that there was a pressing need to appoint Ms Baldonedo Martín to that post. Similarly, the reason for that post being vacant is also unknown.

29. As regards the interpretation of EU law which the Court must provide, the referring court notes, in the first place, that, under Spanish law, established civil servants are not entitled to receive compensation, such as that claimed by Ms Baldonedo Martín, upon termination of their employment. It follows that the situation at issue in the main proceedings does not constitute discrimination prohibited by Clause 4 of the framework agreement and, therefore, does not fall within the scope of that clause. Similarly, the referring court considers that it follows from paragraphs 63 to 67 of the judgment in Pérez López ( 6 ) that the comparison between, on the one hand, fixed-term interim civil servants and, on the other, fixed-term contract staff, whose employment relationship with the authorities is governed by the workers’ statute, does not fall within the scope of that clause either, given that they are both categories of temporary staff.

30. However, the referring court notes, in the second place, that the framework agreement is intended to apply the principle of non-discrimination to fixed-term workers, that the post of gardener in the Spanish public authorities can be filled either by a civil servant or by a contract worker, that the decision of whether to engage staff under contracts governed by administrative law or employment law is entirely at the discretion of the employer, that the mere fact that the post is temporary does not exclude entitlement to the compensation at issue, that the Municipality of Madrid does not put forward any objective reason justifying a difference in treatment, and that it follows, in particular, from the judgment in DI, ( 7 ) that the principle of non-discrimination, being a general principle of EU law, must be directly and vertically applicable. That court is uncertain whether, in those circumstances, it is possible to recognise Ms Baldonedo Martín’s right to obtain the compensation claimed on the basis of a comparison with contract staff engaged under fixed-term contracts or on the basis of direct vertical application of EU primary law.

31. The referring court observes, in the third place, that Ms Baldonedo Martín performed her duties as an interim civil servant for more than seven years. The Municipality of Madrid has therefore distorted the status of interim civil servant inasmuch as it uses such workers to meet, not temporary or provisional, but permanent staffing needs. It thus deprived the applicant of the rights granted to established civil servants, including three-yearly length-of-service increments and career bonuses, and of the rights granted to contract staff, namely the right to compensation. The Municipality of Madrid also failed to have regard both to the guarantees laid down in Articles 10 and 70 of the EBEP to avoid the continual use of temporary employment relationships and the misuse of those relationships, and to the requirement under the first additional provision of Royal Decree 896/1991 according to which posts occupied by interim civil servants are necessarily to be included in the first notice of competition.

32. The referring court holds, moreover, that under the Spanish legislation at issue in the main proceedings, it is not possible to foresee the end of a contract of an interim civil servant, in so far as the contract may be terminated because the post is filled by an established civil servant or is abolished, or because the replaced civil servant loses the right to have his post retained, or the authority takes the view that the urgent grounds for appointing an interim civil servant no longer exist.

33. That legislation precludes any possibility of enforcing against public-sector employers the guarantees that are enforceable against private-sector employers, which are provided for in the workers’ statute, or any consequences of not complying with such limits. Under that legislation, the status of civil servant may be acquired only by means of a selection procedure.

34. That legislation does not enable the objectives pursued by Clause 5 of the framework agreement to be met. Similarly, the possibility, in the event of misuse, to convert fixed-term contract workers into non-permanent workers of indefinite duration, in accordance with the case-law of the Tribunal Supremo (Supreme Court, Spain), does not prevent or penalise the misuse of temporary employment contracts. It replaces one form of temporary employment relationship with another. Indeed, it remains possible to abolish the post occupied by the worker concerned or to dismiss that worker if his post is filled by an established civil servant, terminating his employment relationship and failing to establish employment stability.

35. The referring court considers that the penalty of converting a fixed-term employment relationship into a permanent employment relationship is the only measure that would be consistent with the objectives pursued by Directive 1999/70. However, in so far as concerns the public sector, that directive has not been transposed into Spanish law. Thus, the question arises as to whether compensation is payable, as a penalty, on the basis of Clause 5 of the framework agreement.

36. It was in those circumstances that the Juzgado de lo Contencioso-Administrativo No 14 de Madrid (Administrative Court No 14, Madrid), by judgment of 16 February 2018, received at the Court Registry on 7 March 2018, decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Is it correct to interpret Clause 4 of the [framework agreement] as meaning that a situation such as that described [in the present case], in which an interim civil servant carries out the same work as a career civil servant (who is not entitled to an allowance [for termination of employment] because the situation that would warrant it does not exist under the legal regime applicable to him) is not consistent with the situation described in that clause 4? (2) Given that the right to equal treatment and the prohibition of discrimination constitute a general EU principle enshrined in a directive (in Articles 20 and 21 of the Charter …) and in Article 23 of the Universal Declaration of Human Rights, and in the light of fundamental social rights [within the meaning of] Articles 151 and 153 TFEU, is it consistent with the framework agreement … to interpret [Clause 4], in such a way as to achieve its objectives, as meaning that the right of an interim civil servant to receive an allowance [for termination of employment] may be established either by comparison with a temporary member of contract staff, since his status (as a civil servant or as a member of contract staff) is determined exclusively by the public-sector employer, or by the direct vertical application to which EU primary law is open? (3) Taking into account the existence, if any, of improper use of temporary appointments to meet permanent staffing needs for no objective reason and in a manner inconsistent with the urgent and pressing need that warrants recourse to them, and for want of any effective penalties or limits in Spanish national law, would it be consistent with the objectives pursued by Directive 1999/70/EC to grant, as a means of preventing abuse and eliminating the consequence of infringing EU law, an allowance comparable to that for unfair dismissal, that is to say, one that serves as an adequate, proportional, effective and dissuasive penalty, in circumstances where an employer does not offer a worker a permanent post?’

37. Written observations have been submitted by Ms Baldonedo Martín, the Spanish Government and the European Commission. The same parties presented oral argument at the hearing which was held on 22 February 2019.

IV. Analysis

A. The admissibility of the third question referred for a preliminary ruling

38. By its third question referred for a preliminary ruling, the national court seeks clarification from the Court as to whether Clause 5 of the framework agreement should be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, granting compensation that serves as an adequate, proportional, effective and dissuasive penalty comparable to that for unfair dismissal constitutes a measure seeking to prevent and, where appropriate, sanction the improper use of temporary appointments.

39. The Spanish Government questions the admissibility of that question on the ground that the fixed-term contract at issue in the main proceedings does not fall within the scope of Clause 5 of the framework agreement.

40. According to the Court’s settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only, inter alia, where the problem is hypothetical. ( 8 )

41. In this case, I take the view that that question concerns a hypothetical problem. The presumption of relevance should therefore be rebutted. It is indeed apparent from the case-law of the Court that first or single-use fixed-term employment contracts do not fall within the scope of Clause 5(1) of the Framework Agreement, which relates solely to prevention of the misuse of successive fixed-term employment contracts or relationships. ( 9 )

42. Admittedly, it follows from Clause 5(2) of the framework agreement that it is for the Member States to determine the conditions under which fixed-term employment contracts or relationships are to be regarded as ‘successive’. ( 10 ) However, there is nothing in the order for reference to indicate that Ms Baldonedo Martín worked for the Municipality of Madrid under a series of successive fixed-term employment contracts or that the employment contract at issue in the main proceedings is classified as ‘successive fixed-term employment contracts’ under Spanish law.

43. By contrast, it is clear from the order for reference that Ms Baldonedo Martín was employed at the Municipality of Madrid as an interim civil servant for more than seven years, namely during the period from 24 November 2005 to 15 April 2013, and that, during her employment, she ‘worked in the same post regularly and continuously’. Moreover, it was confirmed at the hearing that the applicant in the main proceedings signed only one contract with her employer.

44. I therefore consider that the third question referred for a preliminary ruling is inadmissible.

B. Substance

1. The first question referred for a preliminary ruling

(a) The wording of the question referred to the Court

45. By its first question, the referring court seeks, in essence, to establish whether Clause 4(1) of the framework agreement should be interpreted as meaning that a situation in which an interim civil servant carries out the same work as a career civil servant and neither of them is entitled to compensation, the former for termination of the employment contract and the latter for termination of employment, does not fall within the scope of that clause because the workers are not comparable.

46. For the reasons which I shall set out below, the question referred for a preliminary ruling should be reformulated in order to enable the Court to provide a useful answer to it.

47. In the first place, although the referring court seems to be asking the Court whether Clause 4(1) of the framework agreement may be applicable in a situation such as that at issue in the main proceedings, it is nonetheless clear from a reading of the order for reference that that court is actually seeking to ascertain whether such a situation constitutes discrimination prohibited by that clause.

48. Theoretically, that question could be understood as seeking to establish whether Clause 4(1) of the framework agreement should be interpreted as precluding national legislation which does not provide for any compensation to be paid for termination of employment either to fixed-term workers employed as interim civil servants, or to career civil servants, who are employed under an employment relationship of indefinite duration.

49. However, it is apparent from the order for reference and some of the documents before the Court that such a reformulation is not appropriate. The referring court stated, first, that ‘the post of gardener at issue in the present case can, normally, in the Spanish public authorities, be filled either by a [career] civil servant or by a contract worker’, ( 11 ) specifying that ‘the decision of whether to engage staff under contracts governed by administrative law or by employment law is entirely at the discretion of the public-sector employer’. Secondly, the referring court noted that ‘it is for the public-sector employer to choose how to engage workers; in the present case, the duties to be carried out may be performed by a worker engaged under a contract governed either by employment law or by administrative law’. It stated in that regard that ‘[in] engaging interim civil servants, [public-sector employer] deprives such workers of the rights granted to established civil servants, [namely, in particular,] three-yearly length-of-service increments [or] career bonuses, and, by engaging them in that way, denies them the rights enjoyed by contract workers, whose contracts are governed by employment law, [namely] compensation’. ( 12 )

50. It follows from the foregoing, as noted by the Commission in its written observations, that the referring court confirms the existence of workers employed as members of contract staff performing the duties of green space maintenance operatives in the Environment and Mobility department of the Municipal Council, but does not specify whether they were engaged under fixed-term contracts or contracts of indefinite duration. Moreover, Ms Baldonedo Martín stated in her written observations that ‘there is a comparable permanent worker, in terms of the duties and category of the post, in the Municipality of Madrid’. ( 13 )

51. In that context, in accordance with Article 62(2) of its Rules of Procedure, the Court put a question to the parties, to be answered at the hearing, in order to determine whether there is a comparable permanent worker, within the meaning of Clause 4(1) of the framework agreement, employed at the Municipality of Madrid.

52. In answer to the Court’s question, Ms Baldonedo Martín and the Municipality of Madrid stated at the hearing that there is currently a permanent contract worker employed at the Municipality of Madrid, falling within the same category and performing the duties of a green space maintenance operative in the Environment and Mobility department of the Municipal Council, and that that post is equivalent to the post of interim civil servant occupied by Ms Baldonedo Martín. It is clear from their oral responses that Ms Baldonedo Martín’s employment conditions and duties as a fixed-term interim civil servant are identical to the employment conditions and duties carried out by the person occupying the equivalent post as a permanent contract worker. Moreover, Ms Baldonedo Martín and the Municipality of Madrid also stated that the post of permanent contract worker has been held at the Municipality of Madrid by the same person since 12 November 1991. In that regard, it was also confirmed at the hearing that, according to Spanish law, a permanent contract staff post is not a civil service post.

53. Consequently, in the present case, it is common ground that there is a worker employed as a comparable permanent contract worker.

54. Therefore, in order to enable the Court to provide a useful answer, I take the view that the first question asked by the referring court should be reformulated to the effect that, by that question, the referring court asks the Court, in essence, whether Clause 4(1) of the framework agreement should be interpreted as precluding national legislation which does not provide for any compensation to be paid to workers employed under fixed-term contracts concluded to cover a vacant role until it is filled by a career civil servant, such as the employment contract of an interim civil servant at issue in the main proceedings, on expiry of the term stipulated in those contracts, whereas it does grant compensation to permanent workers employed as contract staff when their employment contract is terminated on objective grounds.

55. In order to answer that question, it seems to me to be relevant, first of all, to examine briefly the question of the applicability of Directive 1999/70 and the framework agreement to Ms Baldonedo Martín’s situation; next, to determine whether the difference in treatment alleged by the applicant is covered by the concept of ‘employment conditions’ within the meaning of Clause 4(1) of the framework agreement, and finally, to assess whether Ms Baldonedo Martín is treated less favourably than a comparable permanent worker. If comparable situations are being treated unequally, I shall examine whether there are any objective grounds justifying such unequal treatment.

(b) The applicability of the framework agreement

56. It is useful to start by recalling that the scope of the framework agreement is clearly defined in Clause 2(1) thereof, according to which the framework agreement applies ‘to fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State’. In that regard, it is apparent from the Court’s settled case-law that 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’. ( 14 )

57. Moreover, the Court has pointed out that the definition of the concept of ‘fixed-term workers’ within the meaning of the framework agreement, set out in Clause 3(1) thereof, encompasses all workers ‘without drawing a distinction according to whether their employer is in the public, or private, sector’. ( 15 )

58. In the present case, it is apparent from the order for reference that it was specified upon Ms Baldonedo Martín’s appointment by the Municipality of Madrid that she would occupy that post ‘until such time as the post was filled by a [career] civil servant’. Therefore, a worker, such as the applicant in the main proceedings, who has been employed by the Municipality of Madrid on a fixed-term basis as an interim civil servant to cover a post temporarily, until that post is filled by a career civil servant, must be regarded as having the status of ‘fixed-term worker’ within the meaning of Clause 3(1) of the framework agreement and, therefore, falls within the scope of that agreement. ( 16 )

59. In those circumstances, it is still necessary to determine whether the granting by the employer of compensation for termination of the employment contract equivalent to 20 days’ remuneration per year of service, such as that requested by the applicant in the main proceedings, is covered by the concept of ‘employment conditions’ within the meaning of Clause 4(1) of the framework agreement.

(c) The concept of ‘employment conditions’ within the meaning of Clause 4(1) of the framework agreement

60. Under Clause 1(a) of the framework agreement, one of the objectives of that agreement is ‘to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination’. Similarly, the third paragraph in the preamble to the framework agreement states that the agreement ‘illustrates the willingness of the Social Partners to establish a general framework for ensuring equal treatment for fixed-term workers by protecting them against discrimination’. Recital 14 to Directive 1999/70 states that the aim of the framework agreement is, in particular, to improve the quality of fixed-term work by setting out the minimum requirements in order to ensure the application of the principle of non-discrimination. ( 17 ) It is that principle which Clause 4(1) of the framework agreement aims to apply 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 ( 18 ). It is settled case-law that, having regard to the objectives pursued by the framework agreement, Clause 4 thereof must be understood as expressing a principle of European Union social law which cannot be interpreted restrictively. ( 19 )

61. In that regard, it seems to me to be important to note that, as regards differences in treatment between fixed-term workers and permanent workers, Clause 4(1) of the framework agreement constitutes a specific expression of the general EU law principle of non-discrimination, ( 20 ) which requires that comparable situations must not be treated differently and different situations must not be treated alike, unless such treatment is objectively justified.

62. Accordingly, Clause 4(1) of the framework agreement prohibits, in respect of employment conditions, less favourable treatment of fixed-term workers as compared with permanent workers, solely because they are employed for a fixed term, unless different treatment is justified on objective grounds. I note, in that regard, that the Court has already held that ‘that provision prohibits, in a general manner and in unequivocal terms, any difference in treatment of fixed-term workers in respect of employment conditions which is not objectively justified’. ( 21 )

63. It is true that the framework agreement does not define the concept of ‘employment conditions’ used in that clause. However, the Court has repeatedly held that, in order to determine whether a national measure is covered by the concept of ‘employment conditions’ within the meaning of Clause 4(1) of the framework agreement, the decisive criterion is, precisely, the criterion of employment, that is to say the employment relationship between a worker and his employer. ( 22 ) The expression ‘employment conditions’ describes the rights, entitlements and obligations that define a given employment relationship, including both the conditions under which a person takes up employment and those concerning the termination of that relationship. ( 23 )

64. According to the Court, the compensation that the employer is required to pay to a worker on account of the unlawful insertion of a fixed-term clause into his employment contract ( 24 ) or on account of the termination of his fixed-term employment contract is covered by the concept of ‘employment conditions’. ( 25 ) In that regard, the Court has already held that an interpretation of Clause 4(1) of the framework agreement which excludes from the definition of that concept conditions concerning the termination of a fixed-term employment contract would limit the scope of the protection afforded to fixed-term workers against discrimination, which is contrary to the objective assigned to that provision. ( 26 )

65. Therefore, similarly, in so far as the compensation that the employer is required to pay to a worker on account of the termination of his employment contract, such as the compensation claimed by Ms Baldonedo Martín, concerns the circumstances in which the employment relationship with his employer is terminated, that is to say, the legal consequences of the termination of such an employment relationship, that compensation falls unequivocally within the concept of ‘employment conditions’, within the meaning of Clause 4(1) of the framework agreement.

66. Nevertheless, it remains necessary to examine the question at the heart of the present case: has Ms Baldonedo Martín been treated less favourably than a comparable permanent worker?

(d) The comparability of the employment conditions of fixed-term workers and of permanent workers at issue in the main proceedings

67. According to the Spanish Government, in order to determine whether or not there was discrimination arising from the fact that Ms Baldonedo Martín was not granted compensation for the termination of her employment contract, her situation must be compared to that of a career civil servant. Accordingly, the Spanish Government contends that, since Spanish law does not confer on civil servants the right to receive compensation, such as that claimed by Ms Baldonedo Martín, upon termination of their employment, such compensation cannot constitute discrimination within the meaning of Clause 4 of the framework agreement.

68. While it accepts that, in the present case, first, there is a permanent contract worker employed as a green space maintenance operative in the Environment and Mobility department of the Municipal Council ( 27 ) and that, secondly, that post is equivalent to the post of fixed-term interim civil servant occupied by Ms Baldonedo Martín, the Municipality of Madrid contends that the examination of the comparability of employment conditions must be carried out in respect of workers with the same legal status. However, the fixed-term employment contract of an interim civil servant at issue in the main proceedings is governed by administrative law, whereas the employment contract of a permanent contract worker is governed by employment law. At the hearing, the Spanish Government also supported that position.

69. Those arguments cannot be accepted.

70. In the present case, subject to further checks to be carried out by the referring court, it is clear from points 50 to 54 of this Opinion that it was confirmed at the hearing that there is indeed a worker at the Municipality of Madrid employed as a comparable permanent contract worker.

71. In that regard, it seems to me relevant to note at the outset that the general EU law principle of non-discrimination ‘has been implemented and put into effect by the framework agreement solely as regards differences in treatment as between fixed-term workers and permanent workers in a comparable situation’. ( 28 ) However, any differences in treatment between specific categories of fixed-term workers, such as those between fixed-term interim civil servants and fixed-term contract workers, are not covered by the principle of non-discrimination established by the framework agreement. ( 29 )

72. Accordingly, where a given situation falls within the scope of the framework agreement, it is necessary to examine whether, in the light of the principle of non-discrimination, implemented and put into effect by Clause 4(1) of that framework agreement, the employment conditions of fixed-term workers are less favourable than those of comparable permanent workers. That clause provides that the only difference in treatment which is prohibited is the difference in treatment between fixed-term workers and comparable permanent workers, solely because they are employed for a fixed term, and only in respect of employment conditions, unless different treatment is justified on objective grounds. ( 30 )

73. More specifically, as regards comparability of the employment conditions of fixed-term interim civil servants and permanent contract workers at issue in the main proceedings, it is necessary to take as a starting point the definition of the concept of ‘comparable permanent worker’ contained in Clause 3(2) of the framework agreement: ‘a worker with an employment contract or relationship of indefinite duration, in the same establishment, engaged in the same or similar work/occupation, due regard being given to qualifications/skills’. It is in the light of that definition that it is necessary to assess whether Ms Baldonedo Martín and the permanent contact worker are in a comparable situation.

74. According to settled case-law, in order to assess whether the persons concerned are engaged in the same or similar work for the purposes of the framework agreement, it must be determined, in accordance with Clauses 3(2) and 4(1) of that agreement, whether, in the light of a number of factors, such as the nature of the work, training requirements and working conditions, those persons can be regarded as being in a comparable situation. ( 31 )

75. In the present case it is for the referring court, which alone has jurisdiction to assess the facts, to determine whether Ms Baldonedo Martín, when she was engaged by the Municipality of Madrid under a fixed-term employment contract of an interim civil servant, was in a situation comparable to that of contract workers engaged on a permanent basis by that municipality during the same period.

76. However, it is clear from the answers given by Ms Baldonedo Martín and the Municipality of Madrid to the question which the Court put to them to be answered at the hearing, that the employment conditions of Ms Baldonedo Martín, as a fixed-term interim civil servant during the period from 24 November 2005 to 15 April 2013, were identical to those of the person occupying the equivalent post as a permanent contract worker since 12 November 1991. Indeed, according to the Municipality of Madrid, Ms Baldonedo Martín and the permanent contract worker were carrying out the same activity, namely the maintenance of green spaces in the Environment and Mobility department of the Municipal Council within that municipality. ( 32 ) Therefore, it appears that the only factor capable of differentiating the situation of a gardener employed as a fixed-term interim civil servant from that of a gardener employed as a contract worker under a contract of indefinite duration is the temporary nature of the employment relationship between the interim civil servant and the employer, ( 33 ) since the fact that those two types of contracts are governed by different sets of rules has absolutely no bearing on the interpretation of Clause 3(2) of the framework agreement, under which the only criteria to take into account are those relating to employment conditions, namely the qualifications required and the nature of the tasks for which the workers are to be responsible. ( 34 )

77. Accordingly, subject to the referring court’s definitive assessment of all the relevant factors, I consider that the situation of a worker such as Ms Baldonedo Martín is comparable to that of a worker engaged by the Municipality of Madrid as a permanent contract worker to carry out the same duties as gardener.

78. In those circumstances, it must be concluded that there is unequal treatment of comparable situations where public administration staff engaged as fixed-term interim civil servants are denied compensation for the termination of their employment contract, whereas contract workers engaged on a permanent basis are eligible for such compensation.

79. However, it remains to be established whether there are objective grounds which might justify such unequal treatment.

(e) Possible justification for unequal treatment

80. It is clear from Clause 4(1) of the framework agreement that a difference in treatment between fixed-term workers and comparable permanent workers can be justified on objective grounds. The Court has recognised two such grounds: the first relates to the specific nature of the tasks for the performance of which fixed-term contracts have been concluded and to the inherent characteristics of those tasks, and the second relates to the pursuit of a legitimate social-policy objective of a Member State. According to the Court, those grounds must be based on the existence of precise, specific factors characterising the employment condition concerned, in the particular context in which it occurs and on the basis of objective, transparent criteria, in order to ensure that that unequal treatment in fact meets a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose. ( 35 )

81. In that regard, it should be borne in mind that the concept of ‘objective grounds’, within the meaning of Clause 4(1) of the framework agreement, must be understood as not permitting a difference in treatment between fixed-term workers and permanent workers to be justified on the basis that the difference is provided for in national legislation. ( 36 )

82. Furthermore, reliance on the mere temporary nature of the employment contract of an interim civil servant cannot constitute an objective ground within the meaning of Clause 4(1) of the framework agreement. ( 37 ) According to the Court, if the mere temporary nature of an employment relationship were held to be sufficient to justify a difference in treatment as between fixed-term workers and permanent workers, the objectives of Directive 1999/70 and the framework agreement would be rendered meaningless and, instead of improving the quality of fixed-term work and promoting the equal treatment, to which both Directive 1999/70 and the framework agreement aspire, reliance on such a criterion would amount to perpetuating a situation that is disadvantageous to fixed-term workers. ( 38 )

83. In this case, it is apparent, both from the oral submissions of the Spanish Government and from those of the Municipality of Madrid, that the difference in treatment as regards the granting of compensation at issue in the main proceedings is justified on objective grounds, namely that interim civil servants should, on account of their status, expect their employment relationship to be terminated, since Spanish law provides that that employment relationship may be terminated where the reason for the appointment ceases to apply. ( 39 ) That situation exists in the case in the main proceedings, where Ms Baldonedo Martín’s contract as an interim civil servant was terminated because an established civil servant was appointed to the vacant post which she had temporarily filled. ( 40 ) At the hearing, the Spanish Government also referred to budgetary constraints resulting from the economic crisis as justification for the public authorities’ ‘flexible and adaptable’ approach to the use of fixed-term contracts.

84. As regards the budgetary considerations referred to by the Spanish Government, it should be borne in mind that, whilst those considerations may underlie a Member State’s choice of social policy and influence the nature or scope of the measures which it wishes to adopt, they do not in themselves constitute an aim pursued by that policy and, therefore, cannot justify discrimination. ( 41 )

85. As regards the considerations relating to the foreseeability of the termination of Ms Baldonedo Martín's employment contract, it should be recalled that it is apparent from the recent judgments in Montero Mateos, ( 42 )Grupo Norte Facility ( 43 ) and de Diego Porras, ( 44 ) that the specific purpose of the compensation for dismissal provided for in Article 53(1)(b) of the Workers’ Statute, like the particular context in which payment of that compensation is made, constitutes an objective ground that justifies the difference in treatment in question. ( 45 )

86. In those judgments, the Court held that it follows from the definition of ‘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 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’. ( 46 ) 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’. Based on the observations of the Spanish Government in those three cases, the Court has held that ‘it is precisely in order to compensate for the unforeseen nature of the severance of the employment relationship for such a reason and, accordingly, the disappointment of the legitimate expectations that the worker might then have had as regards the stability of that relationship, that Article 53(1)(b) of the Workers’ Statute requires in that case payment to the dismissed worker of compensation equivalent to 20 days’ salary for each year of service’. ( 47 )

87. The Court also pointed out that, in the latter situation ‘Spanish law makes no difference in treatment between fixed-term workers and comparable permanent workers, since Article 53(1)(b) of the Workers’ Statute provides for statutory compensation equivalent to 20 days’ salary per year of service in the undertaking to the worker, irrespective of whether his employment contract is a fixed-term or a permanent contract’. ( 48 )

88. In this case, similarly, since the post of interim civil servant occupied by Ms Baldonedo Martín was filled by a career civil servant, her contract was terminated because the reason for the conclusion of her contract ceased to apply. Therefore, it seems to me that the difference in treatment between interim civil servants such as Ms Baldonedo Martín and permanent contract workers may be justified, in the light of the case-law referred to in points 85 to 87.

89. In the light of the foregoing considerations, I am of the opinion that Clause 4(1) of the framework agreement must be interpreted as not precluding national legislation which does not provide for any compensation to be paid to workers employed under fixed-term contracts concluded to cover a vacant post temporarily until it is filled by a career civil servant, such as the employment contract of an interim civil servant at issue in the main proceedings, on expiry of the term stipulated in those contracts, whereas it does grant compensation to permanent workers employed as contract staff when their employment contract is terminated on objective grounds.

2. The second question referred for a preliminary ruling

90. The referring court seeks to ascertain, in essence, first, whether the framework agreement should be interpreted as requiring equal treatment, with regard to the payment of compensation for termination of the employment relationship, between a fixed-term interim civil servant, such as the applicant in the main proceedings, and a comparable fixed-term contract worker. Secondly, the referring court asks whether Ms Baldonedo Martín may be recognised as being entitled to such compensation on the basis of ‘direct vertical application’ of EU primary law, in particular Articles 20 and 21 of the Charter and Articles 151 and 153 TFEU.

91. That question was raised on the supposition that Ms Baldonedo Martín’s situation would be found not to fall within the scope of Clause 4(1) of the framework agreement. However, in view of the fact that there is a comparable permanent contract worker employed at the Municipality of Madrid who, unlike career civil servants, is entitled to compensation for termination of his contract on objective grounds, it is clear that Ms Baldonedo Martín falls within the scope of that clause. Consequently, in so far as the rights laid down in Articles 20 and 21 of the Charter have been implemented and put into effect by Directive 1999/70 and by the framework agreement, the situation at issue in the main proceedings must be examined in the light of those rights.

92. Therefore, in view of the answer I propose should be given to the first question referred for a preliminary ruling, there is no need to answer the second question.

V. Conclusion

93. In the light of the foregoing considerations, I propose that the Court should answer the questions submitted by the Juzgado de lo Contencioso-Administrativo No 14 de Madrid (Administrative Court No 14, Madrid, Spain) as follows: 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 fixed-term contracts concluded in order to cover a vacant post until it is filled by a career civil servant, such as the employment contract of an interim civil servant at issue in the main proceedings, on expiry of the term stipulated in those contracts, whereas it does grant compensation to permanent workers employed as contract staff when their employment contract is terminated on objective grounds.

( 1 ) Original language: French.

( 2 ) OJ 1999 L 175, p. 43.

( 3 ) BOE No 142 of 14 June 1991, p. 19669.

( 4 ) BOE No 261 of 31 October 2015, p. 103105.

( 5 ) BOE No 75 of 29 March 1995, p. 9654.

( 6 ) Judgment of 14 September 2016 (C‑16/15, EU:C:2016:679).

( 7 ) Judgment of 19 April 2016 (C‑441/14, EU:C:2016:278).

( 8 ) See, recently, judgment of 21 November 2018, de Diego Porras (C‑619/17, EU:C:2018:936, paragraph 77 and the case-law cited).

( 9 ) Judgments of 22 November 2005, Mangold (C‑144/04, EU:C:2005:709, paragraphs 41 to 43), and of 23 April 2009, Angelidakiand Others (C‑378/07 to C‑380/07, EU:C:2009:250, paragraph 90).

( 10 ) Judgment of 21 November 2018, de Diego Porras (C‑619/17, EU:C:2018:936, paragraph 79 and the case-law cited).

( 11 ) Emphasis added.

( 12 ) Emphasis added.

( 13 ) Emphasis added.

( 14 ) Judgment of 13 September 2007, Del Cerro Alonso (C‑307/05, EU:C:2007:509, paragraph 28); of 8 September 2011, Rosado Santana (C‑177/10, EU:C:2011:557, paragraph 40); of 9 July 2015, Regojo Dans (C‑177/14, EU:C:2015:450, paragraph 33), and orders of 9 February 2017, Rodrigo Sanz (C‑443/16, EU:C:2017:109, paragraph 26), and of 19 March 2019, CCOO (C‑293/18, not published, EU:C:2019:224, paragraph 28).

( 15 ) Judgment of 4 July 2006, Adeneler and Others (C‑212/04, EU:C:2006:443, paragraph 56); of 13 March 2014, Márquez Samohano (C‑190/13, EU:C:2014:146, paragraph 38); of 14 September 2016, Pérez López (C‑16/15, EU:C:2016:679, paragraph 24), and of 25 October 2018, Sciotto (C‑331/17, EU:C:2018:859, paragraph 43).

( 16 ) Judgment of 26 November 2014, Mascolo and Others (C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 67 and the case-law cited).

( 17 ) See, in that regard, judgments of 5 June 2018, Grupo Norte Facility (C‑574/16, EU:C:2018:390, paragraph 36), and of 5 June 2018, Montero Mateos (C‑677/16, EU:C:2018:393, paragraph 39).

( 18 ) Judgments of 13 September 2007, Del Cerro Alonso (C‑307/05, EU:C:2007:509, paragraph 37); of 22 December 2010, Gavieiro Gavieiro and Iglesias Torres (C‑444/09 and C‑456/09, EU:C:2010:819, paragraph 48); of 20 December 2017, Vega González (C‑158/16, EU:C:2017:1014, paragraph 28), and of 21 November 2018, de Diego Porras (C‑619/17, EU:C:2018:936, paragraph 55).

( 19 ) Judgments of 22 December 2010, Gavieiro Gavieiro and Iglesias Torres (C‑444/09 and C‑456/09, EU:C:2010:819, paragraph 49); of 13 March 2014, Nierodzik (C‑38/13, EU:C:2014:152, paragraph 24); of 5 June 2018, Grupo Norte Facility (C‑574/16, EU:C:2018:390, paragraph 38), and of 5 June 2018, Montero Mateos (C‑677/16, EU:C:2018:393, paragraph 41). See, to that effect, judgments of 13 September 2007, Del Cerro Alonso (C‑307/05, EU:C:2007:509, paragraph 27), and of 15 April 2008, Impact (C‑268/06, EU:C:2008:223, paragraph 114).

( 20 ) Judgment of 8 September 2011, Rosado Santana (C‑177/10, EU:C:2011:557, paragraph 65).

( 21 ) Judgment of 15 April 2008, Impact (C‑268/06, EU:C:2008:223, paragraph 60). Emphasis added.

( 22 ) Judgments of 13 March 2014, Nierodzik (C‑38/13, EU:C:2014:152, paragraph 25); of 14 September 2016, de Diego Porras (C‑596/14, EU:C:2016:683, paragraph 28); of 5 June 2018, Grupo Norte Facility (C‑574/16, EU:C:2018:390, paragraph 41), and of 5 June 2018, Montero Mateos (C‑677/16, EU:C:2018:393, paragraph 44). See also orders of 21 September 2016, Álvarez Santirso (C‑631/15, EU:C:2016:725, paragraph 34), and of 9 February 2017, Rodrigo Sanz (C‑443/16, EU:C:2017:109, paragraph 32). See, to that effect, judgment of 12 December 2013, Carratù (C‑361/12, EU:C:2013:830, paragraph 35).

( 23 ) Judgment of 20 December 2017, Vega González (C‑158/16, EU:C:2017:1014, paragraph 34). See also, the Opinion of Advocate General Sharpston in Vega González (C‑158/16, EU:C:2017:647, point 22). Moreover, as noted by Advocate General Kokott, ‘the coherence of European employment law requires that the concept of working or employment conditions is not interpreted independently of its meaning in related EU legislation. Reference should be made in this connection in particular to anti-discrimination Directives 2000/78/EC [Council Directive of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 203, p. 16)] and 2006/54/EC [Directive of the European Parliament and of the Council of 5 July 2006 on the implementation of the principles of equal opportunities and equal treatment of men and women in matters of employment and occupation (OJ 2006 L 204, p. 23)], which give effect to the general principle of equal treatment in relation to various forms of discrimination such as sex, age and sexual orientation. According to settled case-law, that principle also applies to conditions of dismissal’. Emphasis added. Opinion of Advocate General Kokott in Vernaza Ayovi (C‑96/17, EU:C:2018:43, point 56).

( 24 ) Judgment of 12 December 2013, Carratù (C‑361/12, EU:C:2013:830, paragraph 37).

( 25 ) See, to that effect, judgment of 14 September 2016, de Diego Porras (C‑596/14, EU:C:2016:683, paragraph 31). In its case-law, the Court has held that that concept also covers, inter alia, three-yearly length-of-service increments (judgments of 13 September 2007, Del Cerro Alonso, C‑307/05, EU:C:2007:509, paragraph 47; of 22 December 2010, Gavieiro Gavieiro and Iglesias Torres, C‑444/09 and C‑456/09, EU:C:2010:819, paragraphs 50 to 58, and of 9 July 2015, Regojo Dans, C‑177/14, EU:C:2015:450, paragraph 43), six-yearly supplements for further training (order of 9 February 2012, Lorenzo Martínez, C‑556/11, not published, EU:C:2012:67, paragraph 38), 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 (judgment of 8 September 2011, Rosado Santana, C‑177/10, EU:C:2011:557, paragraph 46 and the case-law cited), the right to participate in a teaching evaluation plan and the ensuing financial incentive (order of 21 September 2016, Álvarez Santirso, C‑631/15, EU:C:2016:725, paragraph 36), the reduction of working hours by half and the consequent reduction in wages (order of 9 February 2017, Rodrigo Sanz, C‑443/16, EU:C:2017:109, paragraph 33), and the rules for determining the notice period applicable in the event of termination of fixed-term employment contracts (judgment of 13 March 2014, Nierodzik, C‑38/13, EU:C:2014:152, paragraphs 27 and 29).

( 26 ) See judgments of 13 March 2014, Nierodzik (C‑38/13, EU:C:2014:152, paragraphs 27 and 29), and of 14 September 2016, de Diego Porras (C‑596/14, EU:C:2016:683, paragraph 30).

( 27 ) See point 53 of this Opinion.

( 28 ) Judgments of 14 September 2016, Pérez López (C‑16/15, EU:C:2016:679, paragraph 43); of 14 September 2016, de Diego Porras (C‑596/14, EU:C:2016:683, paragraph 37) ; of 5 June 2018, Grupo Norte Facility (C‑574/16, EU:C:2018:390, paragraph 47); of 5 June 2018, Montero Mateos (C‑677/16, EU:C:2018:393, paragraph 50), and order of 11 November 2010, Vino (C‑20/10, not published, EU:C:2010:677, paragraph 56), and of 7 March 2013, Rivas Montes (C‑178/12, not published, EU:C:2013:150, paragraph 43).

( 29 ) See, to that effect, order of 22 June 2011, Vino (C‑161/11, not published, EU:C:2011:420, paragraph 57).

( 30 ) When analysing the comparability of the situations examined, taking factors other than those relating to ‘employment conditions’ into account would be contrary not only to Clause 4(1) of the framework agreement, but also to the Court’s settled case-law. See points 63 and 64 of this Opinion.

( 31 ) Judgments of 8 September 2011, Rosado Santana (C‑177/10, EU:C:2011:557, paragraph 66); of 18 October 2012, Valenza and Others (C‑302/11 to C‑305/11, EU:C:2012:646, paragraph 42); of 13 March 2014, Nierodzik (C‑38/13, EU:C:2014:152, paragraph 31), and of 5 June 2018, Montero Mateos (C‑677/16, EU:C:2018:393, paragraph 51). See also orders of 21 September 2016, Álvarez Santirso (C‑631/15, EU:C:2016:725, paragraph 43), and of 9 February 2017, Rodrigo Sanz (C‑443/16, EU:C:2017:109, paragraph 38).

( 32 ) It is clear from the order for reference that Ms Baldonedo Martín’s post fell within the category of ‘Oficial de Jardinería’ (green space maintenance operative), group C2. It was confirmed at the hearing that the post of the comparable permanent contract worker also fell within the category of ‘Oficial de Jardinería’ (green space maintenance operative), group C2.

( 33 ) See, also, point 86 of this Opinion.

( 34 ) See, also, Opinion of Advocate General Kokott in Viejobueno Ibáñez and de la Vara González (C‑245/17, EU:C:2018:365, point 57): ‘… it is a circular argument to say that the two categories of employee in this case are not comparable because the employment relationship of established civil servants is permanent, when the lawfulness of the early termination of the employment relationship of teachers on fixed-term contracts is the very matter at issue. Otherwise, the comparability of fixed-term workers and established civil servants in relation to dismissal would always be precluded and fall outside the scope of the Framework Agreement. This, however, would run counter to the Court’s case-law, which expressly applies the principle of non-discrimination laid down in Clause 4(1) of the Framework Agreement to conditions of dismissal.’

( 35 ) Judgments of 13 September 2007, Del Cerro Alonso (C‑307/05, EU:C:2007:509, paragraphs 53 and 58); of 22 December 2010, Gavieiro Gavieiro and Iglesias Torres (C‑444/09 and C‑456/09, EU:C:2010:819, paragraph 55); of 8 September 2011, Rosado Santana (C‑177/10, EU:C:2011:557, paragraph 73), and of 14 September 2016, de Diego Porras (C‑596/14, EU:C:2016:683, paragraph, 45).

( 36 ) Judgments of 13 September 2007, Del Cerro Alonso (C‑307/05, EU:C:2007:509, paragraph 57); of 22 December 2010, Gavieiro Gavieiro and Iglesias Torres (C‑444/09 and C‑456/09, EU:C:2010:819, paragraph 54); of 8 September 2011, Rosado Santana (C‑177/10, EU:C:2011:557, paragraph 72); of 18 October 2012, Valenza and Others (C‑302/11 to C‑305/11, EU:C:2012:646, paragraph 50), and of 14 September 2016, de Diego Porras (C‑596/14, EU:C:2016:683, paragraph 46).

( 37 ) See judgment of 22 December 2010, Gavieiro Gavieiro and Iglesias Torres (C‑444/09 and C‑456/09, EU:C:2010:819, paragraphs 56 and 57).

( 38 ) Judgments of 8 September 2011, Rosado Santana (C‑177/10, EU:C:2011:557, paragraph 74); of 18 October 2012, Valenza and Others (C‑302/11 to C‑305/11, EU:C:2012:646, paragraph 52), and of 14 September 2016, de Diego Porras (C‑596/14, EU:C:2016:683, paragraph 47).

( 39 ) While the Municipality of Madrid accepts the existence of a permanent contract worker, it stated at the hearing that those types of posts would cease to exist in the future. That argument is entirely irrelevant since, in particular, the future retirement of the contract worker concerned in the present case has no bearing either on the analysis of the comparability of the two types of worker, or on the justification for the difference in treatment of the applicant in the main proceedings.

( 40 ) It is apparent from the oral submissions of the Municipality of Madrid that a competition was organised, the results of which were published in the Boletín Oficial del Ayuntamiento de Madrid on 8 April 2013, and in respect of which 22 interim civil servants applied, including Ms Baldonedo Martín: 10 interim civil servants were successful, and the employment contracts of the 12 unsuccessful interim civil servants were terminated. However, it is clear from the order for reference that no notice of competition to fill posts was published, and no public sector vacancies list was approved during the period in which Ms Baldonedo Martín was employed at the Municipality of Madrid.

( 41 ) See, by analogy, judgments of 20 March 2003, Kutz-Bauer (C‑187/00, EU:C:2003:168, paragraph 59), and of 26 November 2014, Mascolo and Others (C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 110).

( 42 ) Judgment of 5 June 2018 (C‑677/16, EU:C:2018:393, paragraph 63).

( 43 ) Judgment of 5 June 2018 (C‑574/16, EU:C:2018:390, paragraph 60).

( 44 ) Judgment of 21 November 2018 (C‑619/17, EU:C:2018:936, paragraph 74).

( 45 ) Montero Mateos and de Diego Porras concerned the absence of compensation on expiry of a fixed-term ‘interinidad’ contract, while Grupo Norte Facility concerned the lesser amount of compensation paid on expiry of a fixed-term ‘relief’ employment contract. The compensation at issue in those three cases was the same as that claimed by Ms Baldonedo Martín.

( 46 ) Judgments of 5 June 2018, Grupo Norte Facility (C‑574/16, EU:C:2018:390, paragraph 57); of 5 June 2018, Montero Mateos (C‑677/16, EU:C:2018:393, paragraph 60), and of 21 November 2018, de Diego Porras (C‑619/17, EU:C:2018:936, paragraph 71).

( 47 ) Judgments of 5 June 2018, Grupo Norte Facility (C‑574/16, EU:C:2018:390, paragraph 58); of 5 June 2018, Montero Mateos (C‑677/16, EU:C:2018:393, paragraph 61), and of 21 November 2018, de Diego Porras (C‑619/17, EU:C:2018:936, paragraph 72).

( 48 ) Judgment of 21 November 2018, de Diego Porras (C‑619/17, EU:C:2018:936, paragraph 73).