María José Regojo Dans v Consejo de Estado.
Date: 2015-07-09
30. As is apparent from the very wording of clause 2(1) of the framework agreement, the personal scope of that agreement is conceived in broad terms, as it covers generally ‘fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State’ (see judgments in Adeneler and Others , C‑212/04, EU:C:2006:443, paragraph 56, and Fiamingo and Others , C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 28 and the case-law cited).
31. In addition, the definition of ‘fixed-term workers’ for the purposes of the framework agreement, set out in clause 3(1), encompasses all workers without drawing a distinction according to whether their employer is in the public, or private, sector and regardless of the classification of their contract under domestic law (judgment in Fiamingo and Others , C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 29 and the case-law cited).
32. Having regard to the importance of the principles of equal treatment and non-discrimination, which are among the general principles of EU law, the provisions set out in that regard by Directive 1999/70 and the framework agreement for the purpose 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 on objective grounds, must be deemed to be of general application since they are rules of EU social law of particular importance, from which each employee should benefit as a minimum protective requirement (judgment in Del Cerro Alonso , C‑307/05, EU:C:2007:509, paragraph 27).
33. 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 (judgments in Del Cerro Alonso , C‑307/05, EU:C:2007:509, paragraph 28, and Fiamingo and Others , C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 30 and the case-law cited).
34. It must be noted that the mere fact that a worker may be classified as ‘non-permanent’ under national law or that his employment contract has certain particular features, such as, in the case in the main proceedings, its temporary nature, the fact that appointment or termination is not subject to any restrictions and the fact that the worker is supposed to carry out duties entailing trust and special advice, is irrelevant in that regard. Otherwise, if Member States were permitted to remove at will certain categories of persons from the protection offered by Directive 1999/70 and the framework agreement, the effectiveness of those EU instruments would be in jeopardy, as would their uniform application in the Member States (see, by analogy, judgment in Del Cerro Alonso , C‑307/05, EU:C:2007:509, paragraph 29).
39. As is apparent from their wording, those questions do not seek an interpretation of clause 5 of the framework agreement, which is intended specifically to prevent abuse arising from the use of successive fixed-term employment contracts or relationships (judgment in Deutsche Lufthansa , C‑109/09, EU:C:2011:129, paragraph 32).
40. According to 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 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’. Recital 14 in the preamble to Directive 1999/70 states with that in view that the aim of the framework agreement is, in particular, to improve the quality of fixed-term work by setting out minimum requirements in order to ensure the application of the principle of non-discrimination (see judgments in Gavieiro Gavieiro  and Iglesias Torres , C‑444/09 and C‑456/09, EU:C:2010:819, paragraph 47, and Nierodzik , C‑38/13, EU:C:2014:152, paragraph 22, and orders in Montoya Medina , C‑273/10, EU:C:2011:167, paragraph 29, and Lorenzo Martínez , C‑556/11, EU:C:2012:67, paragraph 34).
41. The framework agreement, in particular clause 4 thereof, 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 (judgments in Del Cerro Alonso , C‑307/05, EU:C:2007:509, paragraph 37; Gavieiro Gavieiro and Iglesias Torres , C‑444/09 and C‑456/09, EU:C:2010:819, paragraph 48; and Nierodzik , C‑38/13, EU:C:2014:152, paragraph 23; and orders in Montoya Medina , C‑273/10, EU:C:2011:167, paragraph 30, and Lorenzo Martínez , C‑556/11, EU:C:2012:67, paragraph 35).
42. Having regard to the objectives pursued by the framework agreement, as recalled in the preceding two paragraphs of this judgment, clause 4 of that agreement must be understood as expressing a principle of EU social law which cannot be interpreted restrictively (see judgments in Del Cerro Alonso , C‑307/05, EU:C:2007:509, paragraph 38; Impact , C‑268/06, EU:C:2008:223, paragraph 114; Gavieiro Gavieiro and Iglesias Torres , C‑444/09 and C‑456/09, EU:C:2010:819, paragraph 49; and Nierodzik , C‑38/13, EU:C:2014:152, paragraph 24; and also orders in Montoya Medina , C‑273/10, EU:C:2011:167, paragraph 31, and Lorenzo Martínez , C‑556/11, EU:C:2012:67, paragraph 36).
43. As regards the three-yearly length-of-service increments, the Court has held that such increments, the benefit of which was reserved under Spanish law (i) to the permanent regulated staff in the health service to the exclusion of temporary staff, (ii) to teachers employed as established civil servants of an Autonomous Community to the exclusion of teachers employed as interim civil servants and (iii) to the permanent university lecturers of an Autonomous Community, to the exclusion of the university lecturers on fixed-term contracts, are covered by the concept of ‘employment conditions’ referred to in clause 4(1) of the framework agreement (see, to that effect, judgments in Del Cerro Alonso , C‑307/05, EU:C:2007:509, paragraphs 47 and 48, and Gavieiro Gavieiro and Iglesias Torres , C‑444/09 and C‑456/09, EU:C:2010:819, paragraphs 50 to 58, and orders in Montoya Medina , C‑273/10, EU:C:2011:167, paragraphs 32 to 34, and Lorenzo Martínez , C‑556/11, EU:C:2012:67, paragraph 37).
44. As is apparent from the case-law of the Court, as regards three-yearly length-of-service increments, which constitute employment conditions within the meaning of clause 4(1) of the framework agreement, such as those at issue in the main proceedings, fixed-term workers must not be treated less favourably than permanent workers in a comparable situation, in the absence of any objective justification (see, to that effect, judgments in Del Cerro Alonso , C‑307/05, EU:C:2007:509, paragraphs 42 and 47; Impact , C‑268/06, EU:C:2008:223, paragraph 126; and Gavieiro Gavieiro and Iglesias Torres , C‑444/09 and C‑456/09, EU:C:2010:819, paragraph 53).
46. In order to assess whether workers are engaged in the same or similar work for the purposes of the framework agreement, account must be taken, in accordance with clauses 3(2) and 4(1) of that agreement, of a number of factors, such as the nature of their work, their qualifications and abilities, the training requirements and the working conditions (see, to that effect, judgment in Rosado Santana , C‑177/10, EU:C:2011:557, paragraph 66, and orders in Montoya Medina , C‑273/10, EU:C:2011:167, paragraph 37, and Lorenzo Martínez , C‑556/11, EU:C:2012:67, paragraph 43).
50. In any event, it is, in such circumstances, for the referring court to determine whether, as regards the receipt of the three-yearly length-of-service increments at issue in the main proceedings, career civil servants and non-permanent staff, in respect of which a difference in treatment in terms of employment conditions is alleged, are in a comparable situation (see, to that effect, the judgment in Rosado Santana , C‑177/10, EU:C:2011:557, paragraph 67, and orders in Montoya Medina , C‑273/10, EU:C:2011:167, paragraph 39, and Lorenzo Martínez , C‑556/11, EU:C:2012:67, paragraph 44).
54. According to the settled case-law of the Court, the concept of ‘objective grounds’ in 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 by a general, abstract national norm, such as a law or collective agreement (judgments in Del Cerro Alonso , C‑307/05, EU:C:2007:509, paragraph 57, and Gavieiro Gavieiro and Iglesias Torres , C‑444/09 and C‑456/09, EU:C:2010:819, paragraph 54, and orders in Montoya Medina , C‑273/10, EU:C:2011:167, paragraph 40, and Lorenzo Martínez , C‑556/11, EU:C:2012:67, paragraph 47).
55. That concept requires the unequal treatment found to exist to be justified by the existence of precise and specific 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. Those factors may result, in particular, from the specific nature of the tasks for the performance of which fixed-term contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State (see judgments in Del Cerro Alonso , C‑307/05, EU:C:2007:509, paragraphs 53 and 58, and Gavieiro Gavieiro and Iglesias Torres , C‑444/09 and C‑456/09, EU:C:2010:819, paragraph 55, and orders in Montoya Medina , C‑273/10, EU:C:2011:167, paragraph 41, and Lorenzo Martínez , C‑556/11, EU:C:2012:67, paragraph 48).
56. By contrast, reliance on the mere fact of the temporary nature of the employment of staff of the public administration does not meet those requirements and is therefore not capable of constituting an ‘objective ground’ within the meaning of clause 4(1) of the framework agreement (judgment in Gavieiro Gavieiro and Iglesias Torres , C‑444/09 and C‑456/09, EU:C:2010:819, paragraph 56, and orders in Montoya Medina , C‑273/10, EU:C:2011:167, paragraph 42, and Lorenzo Martínez , C‑556/11, EU:C:2012:67, paragraph 49).
57. A difference in treatment with regard to employment conditions as between fixed-term workers and permanent workers cannot be justified on the basis of a criterion which, in a general and abstract manner, refers precisely to the term of the employment. If the mere temporary nature of an employment relationship were held to be sufficient to justify such a difference, the objectives of Directive 1999/70 and the framework agreement would be negated. 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 (see judgments in Gavieiro Gavieiro and Iglesias Torres , C‑444/09 and C‑456/09, EU:C:2010:819, paragraph 57, and Nierodzik , C‑38/13, EU:C:2014:152, paragraph 38, and orders in Montoya Medina , C‑273/10, EU:C:2011:167, paragraph 43, and Lorenzo Martínez , C‑556/11, EU:C:2012:67, paragraph 50).
60. Secondly, although some of the differences relating to the manner in which career civil servants and non-permanent staff are engaged, to the qualifications required and to the nature of the duties undertaken could, in principle, justify different treatment as regards their conditions of employment (see, by analogy, judgment in Rosado Santana , C‑177/10, EU:C:2011:557, paragraph 78), that does not seem to be the case in the dispute in the main proceedings.