Montero Mateos v Agencia Madrileña de Atención Social de la Consejería de Políticas Sociales y Familia de la Comunidad Autónoma de Madrid.
Date: 2018-06-05
39


It should be recalled, in that regard, that, according to 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 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 of Directive 1999/70 states, to this end, that the aim of the Framework Agreement is, inter alia, 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 (judgments of 22 December 2010, Gavieiro Gavieiro and Iglesias Torres, C‑444/09 and C‑456/09, EU:C:2010:819, paragraph 47; of 12 December 2013, Carratù, C‑361/12, EU:C:2013:830, paragraph 40, and of 13 March 2014, Nierodzik, C‑38/13, EU:C:2014:152, paragraph 22).
40


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 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, and of 13 March 2014, Nierodzik, C‑38/13, EU:C:2014:152, paragraph 23).
41


In view of the objectives pursued by the Framework Agreement, as referred to in the two preceding paragraphs, Clause 4 of the agreement must be interpreted as articulating a principle of EU social law, which cannot be interpreted restrictively (judgments of 22 December 2010, Gavieiro Gavieiro and Iglesias Torres, C‑444/09 and C‑456/09, EU:C:2010:819, paragraph 49, and of 13 March 2014, Nierodzik, C‑38/13, EU:C:2014:152, paragraph 24; also see, to that effect, judgment of 13 September 2007, Del Cerro Alonso, C‑307/05, EU:C:2007:509, paragraph 38).
44


It is consequently necessary, second, to establish whether the payment of compensation by an employer on account of the termination of an employment contract falls within the concept of ‘employment conditions’ within the meaning of Clause 4(1) of the Framework Agreement. In that regard, the Court has held that the decisive criterion for determining whether a measure falls within the scope of that concept is 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, and of 13 March 2014, Nierodzik, C‑38/13, EU:C:2014:152, paragraph 25).
45


The Court has thus held that, inter alia, rules for determining the notice period applicable in the event of termination of fixed-term employment contracts fall within that concept (see, to that effect, judgment of 13 March 2014, Nierodzik, C‑38/13, EU:C:2014:152, paragraph 29).
46


The Court has also held that an interpretation of Clause 4(1) of the Framework Agreement which excludes from the definition of that concept conditions relating to termination of a fixed-term employment contract would limit the scope of the protection afforded to fixed-term workers against discrimination, contrary to the objective assigned to that provision (judgment of 13 March 2014, Nierodzik, C‑38/13, EU:C:2014:152, paragraph 27).
47


Those considerations are fully transferable to the compensation paid to a worker on account of the termination of his contract of employment with his employer, such compensation being paid on account of the employment relationship that has been established between them (see, to that effect, judgment of 14 September 2016, de Diego Porras, C‑596/14, EU:C:2016:683, paragraph 31).
48


It follows that compensation such as that at issue in the main proceedings falls within the concept of ‘employment conditions’ within the meaning of Clause 4(1) of the Framework Agreement.
49


It must be noted, third, 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 (see, to that effect, judgment of 8 September 2011, Rosado Santana, C‑177/10, EU:C:2011:557, paragraph 65 and the case-law cited).
50


In that regard, the principle of non-discrimination has been implemented and specifically applied by the Framework Agreement solely as regards differences in treatment as between fixed-term workers and permanent workers in a comparable situation (judgment of 14 September 2016, de Diego Porras, C‑596/14, EU:C:2016:683, paragraph 37 and the case-law cited).
51


According to the Court’s 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 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 (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, and of 13 March 2014, Nierodzik, C‑38/13, EU:C:2014:152, paragraph 31).
52


In the present case it is for the referring court, which alone has jurisdiction to assess the facts, to determine whether Ms Montero Mateos, when she was engaged by the Agency under a fixed-term employment contract, was in a situation comparable to that of employees hired for an indefinite duration by the same employer during the same period (see, by analogy, judgments of 8 September 2011, Rosado Santana, C‑177/10, EU:C:2011:557, paragraph 67; of 18 October 2012, Valenza and Others, C‑302/11 to C‑305/11, EU:C:2012:646, paragraph 43, and of 13 March 2014, Nierodzik, C‑38/13, EU:C:2014:152, paragraph 32).
53


That said, it is clear from the evidence available to the Court that Ms Montero Mateos, when she was engaged by the Agency under a temporary replacement contract, carried out the same tasks of an assistant in a residential home for elderly persons as those that the person selected following the procedure mentioned in paragraph 20 above was recruited to carry out, the purpose of that selection procedure being precisely to fill the post that Ms Montero Mateos occupied during that period with a permanent worker.
54


Accordingly, subject to the referring court’s definitive assessment of all the relevant factors, it must be concluded that the situation of a fixed-term worker such as Ms Montero Mateos was comparable to that of a permanent worker engaged by the Agency to carry out the same tasks of an assistant in a residential home for elderly persons.
56


In that regard, it should be noted that, according to the Court’s settled case-law, 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 different treatment is provided for by a general or abstract measure, such as a law or a collective agreement (judgments of 13 September 2007, Del Cerro Alonso, C‑307/05, EU:C:2007:509, paragraph 57, and of 22 December 2010, Gavieiro Gavieiro and Iglesias Torres, C‑444/09 and C‑456/09, EU:C:2010:819, paragraph 54, and order of 22 March 2018, Centeno Meléndez, C‑315/17, not published, EU:C:2018:207, paragraph 62).
57


That concept requires, according to equally settled case-law, the unequal treatment found to exist to be justified by the presence 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 the purpose of attaining 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 (see, inter alia, judgments of 13 September 2007, Del Cerro Alonso, C‑307/05, EU:C:2007:509, paragraph 53, and of 14 September 2016, de Diego Porras, C‑596/14, EU:C:2016:683, paragraph 45, as well as order of 22 March 2018, Centeno Meléndez, C‑315/17, not published, EU:C:2018:207, paragraph 65).
59


In that regard, it should be noted that the termination of Ms Montero Mateos’ temporary replacement contract on account of the post that she occupied temporarily under that contract being permanently filled following the procedure mentioned in paragraph 20 above, took place in a significantly different context, from a factual and legal point of view, to that in which the employment contract of a permanent worker is terminated on one of the grounds set out in Article 52 of the Workers’ Statute.
60


Indeed, it follows from the definition of a 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 on the term stipulated in the contract, that term being identified as the completion of a specific task, a specific date being reached or as in the present case, 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.
61


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. As is clear from the Spanish Government’s explanations set out in paragraph 58 above and as the Advocate General noted, in essence, in point 55 of her Opinion, 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 twenty days’ remuneration per year of service to be paid to the dismissed worker.
63


In those circumstances, it must be concluded that the specific purpose of the compensation provided for dismissal in Article 53(1)(b) of the Workers’ Statute, and the specific context in which that compensation is paid, constitutes an objective ground justifying the different treatment at issue.