Cobra Servicios Auxiliares SA v José David Sánchez Iglesias and Others.
Date: 2019-04-11
34


It should be recalled in that regard, that, under Clause 1(a) of the framework agreement, one of its objectives is to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination. Similarly, the third paragraph of 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 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 21 November 2018, de Diego Porras, C‑619/17, EU:C:2018:936, paragraph 54 and the case-law cited).
35


The framework agreement, and Clause 4 in particular, 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 21 November 2018, de Diego Porras, C‑619/17, EU:C:2018:936, paragraph 55 and the case-law cited).
36


In view of the objectives pursued by the framework agreement, as referred to in the two preceding paragraphs, Clause 4 of that framework agreement must be interpreted as articulating a principle of EU social law, which cannot be interpreted restrictively (judgment of 21 November 2018, de Diego Porras, C‑619/17, EU:C:2018:936, paragraph 56 and the case-law cited).
39


It should be noted, secondly, that compensation, such as that at issue in the main proceedings, granted to a worker because his or her employment contract with the employer has been terminated, comes within the concept of ‘employment conditions’ within the meaning of Clause 4(1) of the framework agreement (judgment of 21 November 2018, de Diego Porras, C‑619/17, EU:C:2018:936, paragraph 59 and the case-law cited).
40


It is important to bear in mind, thirdly, that according to the Court’s settled case-law, the principle of non-discrimination, of which Clause 4(1) of the framework agreement is a specific expression, requires that comparable situations should not be treated differently and different situations should not be treated alike, unless such treatment is objectively justified (judgment of 21 November 2018, de Diego Porras, C‑619/17, EU:C:2018:936, paragraph 60 and the case-law cited).
41


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 the framework 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 (judgment of 21 November 2018, de Diego Porras, C‑619/17, EU:C:2018:936, paragraph 62 and the case-law cited).
42


In the present case, it is for the referring court, which alone has jurisdiction to assess the facts, to determine whether the fixed-term workers employed by Cobra under contracts for a specific task or service were in a situation comparable to that of employees hired for an indefinite duration by the same employer during the same period (see by analogy, judgment of 21 November 2018, de Diego Porras, C‑619/17, EU:C:2018:936, paragraph 63 and the case-law cited).
46


It should be borne in mind in that respect that, according to the settled case-law of the Court, the concept of ‘objective grounds’ within the meaning of Clause 4(1) of the framework agreement requires that the unequal treatment found to exist be justified by precise, specific factors, characterising the employment condition to which it relates, 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. Those factors may be apparent, 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 (judgment of 21 November 2018, de Diego Porras, C‑619/17, EU:C:2018:936, paragraph 68 and the case-law cited).
49


Indeed, 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 it, which may be identified as a specific date being reached, the occurrence of a specific event or, as in the present case, completion of a specific task. 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 (see, to that effect, judgment of 21 November 2018, de Diego Porras, C‑619/17, EU:C:2018:936, paragraph 71 and the case-law cited).
50


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 (judgment of 21 November 2018, de Diego Porras, C‑619/17, EU:C:2018:936, paragraph 72 and the case-law cited). As is clear from the Spanish Government’s explanations set out in paragraph 47 of the present judgment, it is precisely in order to compensate for the unforeseen nature of the termination of the employment relationship for such a reason and, accordingly, the frustration of any legitimate expectation the worker may have had at that date as regards the stability of that relationship, that Article 53(1)(b) of the Workers’ Statute requires compensation equivalent to 20 days’ remuneration per year of service to be paid to that dismissed worker in such a case.
53


In those circumstances, it must be considered that the specific purpose of the compensation for dismissal provided for in Article 53(1)(b) of the Workers’ Statute, like the specific context in which that compensation is paid, constitutes an objective ground that justifies the different treatment at issue in the main proceedings (judgments of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 63; of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 60, and 21 November 2018, de Diego Porras, C‑619/17, EU:C:2018:936, paragraph 74).