Margarita Isabel Vega González v Consejería de Hacienda y Sector Público del gobierno del Principado de Asturias.
Date: 2017-12-20
27


As a preliminary remark, it must be borne in mind that, as provided in Clause 1(a) of the framework agreement, one of the agreement’s objectives is to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination. In addition, the third paragraph of 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 of Directive 1999/70 states, to that effect, 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 (judgment of 14 September 2016, de Diego Porras, C‑596/14, EU:C:2016:683, paragraph 25 and the case-law cited).
28


The framework agreement, in particular Clause 4, 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 (judgment of 14 September 2016, de Diego Porras, C‑596/14, EU:C:2016:683, paragraph 26 and the case-law cited).
29


Having regard to the objectives pursued by the framework agreement, Clause 4 of that agreement must be understood as expressing a principle of EU social law which cannot be interpreted restrictively (judgment of 14 September 2016, de Diego Porras, C‑596/14, EU:C:2016:683, paragraph 27 and the case-law cited).
30


With regard to the concept of ‘employment conditions’ within the meaning of Clause 4(1) of the framework agreement, the Court has already held that the decisive criterion for determining whether a measure falls within the scope of that concept is, precisely, the criterion of employment, that is to say the employment relationship between a worker and his employer (judgments of 12 December 2013, Carratù, C‑361/12, EU:C:2013:830, paragraph 35; 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 26; and order of 9 February 2017, Rodrigo Sanz, C‑443/16, EU:C:2017:109, paragraph 32).
31


The concept of ‘employment conditions’, within the meaning of Clause 4(1) of the framework agreement, thus covers three-yearly length-of-service increments (see, to that effect, judgment 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 continuing professional education increments (see, to that effect, 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 (see, to that effect, 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 the Court of 21 September 2016, Álvarez Santirso, C‑631/15, EU:C:2016:725, paragraph 36), as well as 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).
32


The Court has also held that rules for determining the notice period applicable in the event of termination of fixed-term employment contracts form part of ‘employment conditions’ within the meaning of Clause 4(1) of the framework agreement (see, to that effect, judgment of 13 March 2014, Nierodzik, C‑38/13, EU:C:2014:152, paragraphs 27 and 29).
33


This is also the case with the compensation that the employer must pay to an employee on account of the unlawful insertion of a fixed-term clause into his employment contract (see, to that effect, judgment of 12 December 2013, Carratù, C‑361/12, EU:C:2013:830, paragraph 37) or following termination of fixed-term employment contracts (see, to that effect, judgment of 14 September 2016, de Diego Porras, C‑596/14, EU:C:2016:683, paragraph 31).
38


In any case, it should be added that an interpretation of Clause 4(1) of the framework agreement which excludes from the definition of ‘employment conditions’ the right to special service leave would limit the scope of the protection granted to fixed-term workers against discrimination, in disregard of the objective pursued by that provision (see, to that effect, 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; as well as order of the Court of 21 September 2016, Álvarez Santirso, C‑631/15, EU:C:2016:725, paragraph 39).
42


According to the Court’s settled case-law, the principle of non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated alike unless such treatment is objectively justified (judgments of 8 September 2011, Rosado Santana, C‑177/10, EU:C:2011:557, paragraph 65 and the case-law cited, and of 14 September 2016, de Diego Porras, C‑596/14, EU:C:2016:683, paragraph 35).
44


Thus, it is only if the work carried out by a worker such as Ms Vega González within the context of her fixed-term contract is not identical or comparable to the work carried out by permanent workers that the alleged difference in treatment with respect to the right to be granted special service leave may be justified, notwithstanding the prohibition set out in Clause 4 of the framework agreement, as that difference in treatment would relate to different situations (see, by analogy, judgments of 18 October 2012, Valenza and Others, C‑302/11 to C‑305/11, EU:C:2012:646, paragraph 48 and the case-law cited, and of 14 September 2016, de Diego Porras, C‑596/14, EU:C:2016:683, paragraph 41).
45


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 first 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 (judgments of 18 October 2012, Valenza and Others, C‑302/11 to C‑305/11, EU:C:2012:646, paragraph 42 and the case-law cited; of 13 March 2014, Nierodzik, C‑38/13, EU:C:2014:152, paragraph 31; and of 14 September 2016, de Diego Porras, C‑596/14, EU:C:2016:683, paragraph 40).
46


It is therefore for the referring court to determine whether Ms Vega González is in a situation comparable to that of workers employed on a permanent basis by the same authority for the same period (see, by analogy, judgments of 18 October 2012, Valenza and Others, C‑302/11 to C‑305/11,EU:C:2012:646, paragraph 43 and the case-law cited; of 13 March 2014, Nierodzik, C‑38/13, EU:C:2014:152, paragraph 32; and of 14 September 2016, de Diego Porras, C‑596/14, EU:C:2016:683, paragraph 42). If, on completion of that assessment, the referring court finds inequality of treatment, it would then have to ascertain whether it may be justified on ‘objective grounds’ within the meaning of Clause 4(1) of the framework agreement, that is to say, by precise, specific factors, characterising the employment condition in question, in the particular context in which it occurs and on the basis of objective, transparent criteria that enable it to be ascertained whether that unequal treatment in fact meets a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose (see, to that effect, judgment of 14 September 2016, de Diego Porras, C‑596/14, EU:C:2016:683, paragraph 45 and the case-law cited).
47


In that regard, the Court has already held 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 by a general, abstract national norm (judgment of 14 September 2016, de Diego Porras, C‑596/14, EU:C:2016:683, paragraph 46 and the case-law cited).
48


Moreover, it is also clear from the Court’s established case-law that reliance on the mere temporary nature of the employment of staff of the public authorities does not meet those requirements and cannot constitute an ‘objective ground’ for the purposes of Clause 4(1) of the framework agreement (judgment of 14 September 2016, de Diego Porras, C‑596/14, EU:C:2016:683, paragraph 47 and the case-law cited).