Yolanda Del Cerro Alonso v Osakidetza-Servicio Vasco de Salud.
Date: 2007-09-13
25. In that regard, the Court has already ruled that it is apparent both from the wording of Directive 1999/70 and of the framework agreement, as well as from their background and purpose, that the provisions laid down can apply also to fixed-term employment contracts and relationships concluded with the public authorities and other public-sector bodies (Case C-212/04 Adeneler and Others [2006] ECR I-6057, paragraphs 54 to 57; Case C-53/04 Marrosu and Sardino [2006] ECR I-7213, paragraphs 40 to 43, and Case C-180/04 Vassallo [2006] ECR I-7251, paragraphs 32 to 35).
26. It must be added that, as is clear from clause 1 of the framework agreement, the objective of that agreement is not only to establish a framework to prevent abuse arising from the use of successive fixed-term work contracts or agreements, but also to ensure the application of the principle of non-discrimination as regards fixed-term work.
27. Having regard to the importance of the principle of equal treatment and non-discrimination, which is one of the general principles of Community law, the provisions set out in that regard by Directive 1999/70 and the framework agreement for the purposes 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 by objective grounds, must be deemed to be of general application since they are rules of Community social law of particular importance, from which each employee should benefit as a minimum protective requirement.
28. 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.
29. The mere fact that a post may be classified as ‘regulated’ under national law and has certain characteristics typical of the civil service in the Member State in question is irrelevant in that regard. Otherwise, in reserving to Member States the ability to remove at will certain categories of persons from the protection offered by Directive 1999/70 and the framework agreement, the effectiveness of those Community instruments would be in jeopardy as would their uniform application in the Member States (see, by analogy, Case C-151/02 Jaeger [2003] ECR I-8389, paragraphs 58 and 59, and Joined Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR I-8835, paragraph 99). As is clear not only from the third paragraph of Article 249 EC, but also from the first paragraph of Article 2 of Directive 1999/70, in light of recital 17 of that Directive, the Member States are required to guarantee the result imposed by Community law ( Adeneler , paragraph 68).
32. The Spanish Government, Ireland and the United Kingdom Government contend that a negative response is required to this question on the basis of the wording of Article 137(5) EC, as interpreted in Case C-14/04 Dellas and Others [2005] ECR I-10253, paragraph 39.
33. It should be pointed out at the outset that the Council of the European Union, in adopting Directive 1999/70, in order to implement the framework agreement, relied on Article 139(2) EC, which provides that agreements concluded at a Community level shall be implemented for matters covered by Article 137 EC.
36. In that regard, it should be recalled, first, that, according to clause 1(a) of the framework agreement, its objective is to ‘improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination’. Similarly, 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 of Directive 1999/70 explains 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.
37. It follows that the framework agreement 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.
38. That principle of Community social law cannot be interpreted restrictively.
39. Secondly, as Article 137(5) EC derogates from paragraphs 1 to 4 of that article, the matters reserved by that paragraph must be interpreted strictly so as not to unduly affect the scope of paragraphs 1 to 4, nor to call into question the aims pursued by Article 136 EC.
40. More particularly, the exception relating to ‘pay’ set out in Article 137(5) EC is explained by the fact that fixing the level of wages falls within the contractual freedom of the social partners at a national level and within the relevant competence of Member States. In those circumstances, in the present state of Community law, it was considered appropriate to exclude determination of the level of wages from harmonisation under Article 136 EC et seq.
41. The ‘pay’ exception cannot, however, be extended to any question involving any sort of link with pay; otherwise some of the areas referred to in Article 137(1) EC would be deprived of much of their substance.
42. It follows that the derogation in Article 137(5) EC does not prevent a fixed-term worker from seeking, on the grounds of the principle of non-discrimination, the benefit of a condition of employment reserved only for permanent workers, even though the application of that principle leads to the payment of a pay differential.
43. Contrary to the arguments of the Spanish Government, Ireland and the United Kingdom Government, the above interpretation is not called into question by the case-law of the Court, according to which the minimum requirements which the Council may adopt by way of directives on the basis of Article 137 EC cannot apply to pay ( Dellas and Others , paragraph 39) and thus Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18) does not apply to workers’ pay ( Dellas and Others , paragraph 38, and Order of 11 January 2007 in Case C-437/05 Vorel [2007] ECR I-0000, paragraph 32).
44. It follows unambiguously from the context of the grounds of the judgment in Dellas and Others and of the Order in Vorel that, in the cases giving rise to those decisions, the issue which arose was the effect which the interpretation of ‘working time’ and ‘rest periods’ within the meaning of Directive 93/104 can have on the ‘level’ of pay received by employees performing on-call duties ( Dellas  and Others , paragraphs 37 and 38, and the Order in Vorel , paragraph 32).
45. Therefore the Court’s ruling that methods of payment for periods of on-call duty are not capable, in the present state of Community law, of being harmonised is entirely consistent with the interpretation of the derogation in Article 137(5) EC set out in paragraphs 41 and 42 of the present judgment. The national authorities retain sole competence to establish the level of wages and salaries due in that respect to each worker, as Directive 93/104 does not, in principle, preclude the establishment by Member States of a law which, with regard to periods of on-call duty performed by the employee at his place of work, lays down different pay for periods in the course of which work is actually done and those during which no actual work is done (Order in Vorel , paragraphs 35 and 36).
46. For the same reasons, the establishment of the level of the various constituent parts of the pay of a worker such as the applicant in the main proceedings is still unquestionably a matter for the competent bodies in the various Member States. That is not, however, the subject of the dispute before the referring court.
47. In contrast, as has already been explained at paragraphs 44 and 45 of the present judgment, the question whether in applying the principle of non-discrimination laid down in clause 4(1) of the framework agreement, one of the constituent parts of the pay should, as an employment condition, be granted to fixed-term workers in the same way as it is to permanent workers does come within the scope of Article 137(1)(b) EC and therefore of Directive 1999/70 and the framework agreement adopted on that basis.
48. In those circumstances, the reply to the first question is that the concept of ‘employment conditions’ referred to in clause 4(1) of the framework agreement must be interpreted as meaning that it can act as a basis for a claim such as that at issue in the main proceedings, which seeks the grant to a fixed-term worker of a length-of-service allowance which is reserved under national law solely to permanent staff.
The second and third questions
53. The Court held that that concept of ‘objective reasons’ must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particular context, of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such 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 ( Adeneler and Others , paragraphs 69 and 70).
54. On the other hand, a national provision which merely authorises recourse to successive fixed-term contracts, in a general and abstract manner by a rule of statute or secondary legislation, does not accord with the requirements as stated in the previous paragraph ( Adeneler and Others , paragraph 71).
55. More specifically, recourse to fixed-term employment contracts solely on the basis of a general provision, unlinked to what the activity in question specifically comprises, does not permit objective and transparent criteria to be identified in order to verify whether the renewal of such contracts actually responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose ( Adeneler and Others , paragraph 74).
57. In those circumstances, that concept 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.
58. On the contrary, that concept requires the unequal treatment at issue to be justified by the existence of precise and concrete 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.