Almudena Baldonedo Martín v Ayuntamiento de Madrid.
Date: 2020-01-22
35


The Court has held that that provision 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 (see, to that effect, the judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 40 and the case-law cited).
41


In that regard, it should be borne in mind that the Court has held that, where it is established that, when they were employed, those fixed-term workers carried out the same duties as contract workers employed by the same employer for an indefinite period or held the same post as them, it is necessary, in principle, to regard the situations of those two categories of worker as being comparable (see, to that effect, the judgments of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraphs 50 and 51; of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraphs 53 and 54, of 21 November 2018, deDiego Porras, C‑619/17, EU:C:2018:936, paragraphs 64 and 65, and the order of 12 June 2019, Aragón Carrasco and Others, C‑367/18, not published, EU:C:2019:487, paragraph 36).
43


As regards the differences in treatment resulting from the application of Article 53(1)(b) of the Workers’ Statute, the Court has already held that the specific purpose of the compensation for dismissal laid down in that provision and the particular context in which that compensation is paid constitute an objective reason justifying a difference in treatment such as that referred to in the preceding paragraph (see judgments of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 60; of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 63, and of 21 November 2018, de Diego Porras, C‑619/17, EU:C:2018:936, paragraph 74).
44


In that regard, the Court held that the termination of a fixed-term employment relationship falls within a context that from both a factual and legal perspective is significantly different from that in which the employment contract of a permanent worker is terminated for one of the reasons set out in Article 52 of the Workers’ Statute (see, to that effect, the order of 12 June 2019, Aragón Carrasco and Others,C‑367/18, not published, EU:C:2019:487, paragraph 44, and, by analogy, judgments of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 56; of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 59, and of 21 November 2018, de Diego Porras, C‑619/17, EU:C:2018:936, paragraph 70).
45


Indeed, it follows from the definition of a ‘[fixed-term] employment contract or relationship’ in Clause 3(1) of the framework agreement that an employment relationship of that kind ceases to have any future effect on expiry of the term stipulated in the contract, that term being identified as a specific date being reached, the completion of a specific task, or, as in the present case, the occurrence of a specific event. Thus, the parties to a fixed-term employment relationship are aware, from the moment that it is entered into, 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, by analogy, the judgment of 21 November 2018, de Diego Porras, C‑619/17, EU:C:2018:936, paragraph 71 and the case-law cited).
46


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 that were not foreseen as at the date the contract was entered into and which disrupt the normal continuation of the employment relationship, the compensation provided for in Article 53(1)(b) of that statute seeks precisely to compensate for the unforeseen nature of the severance of the employment relationship for such a reason and, accordingly, the disappointment of the legitimate expectations that the worker might then have had as regards the stability of that relationship (see, to that effect, the judgment of 21 November 2018, de Diego Porras, C‑619/17, EU:C:2018:936, paragraph 72 and the case-law cited).
52


As regards, in the first place, Clause 4(1) of the framework agreement, it should be recalled that, since 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, any differences in treatment between specific categories of fixed-term staff are not covered by the principle of non-discrimination established by the framework agreement (judgment of 21 November 2018, Viejobueno Ibáñez and de la Vara González, C‑245/17, EU:C:2018:934, paragraph 51 and the case-law cited).
53


Thus, since the difference in treatment between the two categories of fixed-term workers in question in the main proceedings is not based on whether the employment relationship is fixed-term or indefinite, but on whether it is statutory or contractual, it is not covered by Clause 4(1) of the framework agreement (see, to that effect, the judgment of 14 September 2016, Pérez López, C‑16/15, EU:C:2016:679, paragraph 66).
55


As regards, in the second place, Articles 151 and 153 TFEU, it suffices to observe, as the European Commission has pointed out, that those articles of the Treaty establish the general objectives and measures of the EU’s social policy, and that the right claimed by Ms Baldonedo Martín or the obligation for a Member State to ensure such a right cannot be deduced from such provisions (see, to that effect, the judgment of 21 March 2018, Podilă and Others, C‑133/17 and C‑134/17, not published, EU:C:2018:203, paragraph 37).
56


As regards, in the third place, Articles 20 and 21 of the Charter, it must be observed that a difference of treatment based on whether the employment relationship is statutory or contractual may, in principle, be assessed with regard to the principle of equal treatment, which is a general principle of EU law, now enshrined in Articles 20 and 21 of the Charter (see, to that effect, the judgment of 9 March 2017, Milkova, C‑406/15, EU:C:2017:198, paragraphs 55 to 63).
57


However, it should be recalled that the Charter’s field of application so far as concerns action by the Member States is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States only when they are implementing European Union law (judgment of 6 October 2016, Paoletti and Others, C‑218/15, EU:C:2016:748, paragraph 13 and the case-law cited).
58


It is clear from the case-law of the Court that the concept of ‘implementing Union law’, as referred to in Article 51(1) of the Charter, presupposes a degree of connection between the measure of EU law and the national measure at issue which goes beyond the matters covered being closely related or one of those matters having an indirect impact on the other (judgment of 6 October 2016, Paoletti and Others, C‑218/15, EU:C:2016:748, paragraph 14 and the case-law cited).
59


In accordance with the Court’s settled case-law, in order to determine whether a national measure involves ‘implementing of EU law’ for the purposes of Article 51(1) of the Charter, it is necessary to determine, inter alia, whether that national legislation is intended to implement a provision of EU law; the nature of the legislation at issue and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and also whether there are specific rules of EU law on the matter or rules which are capable of affecting it (judgment of 10 July 2014, Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraph 37 and the case-law cited).
61


In that regard, it should be recalled that the Court has already held that the compensation provided for in Article 49(1) of the Workers’ Statute, first, does not at first sight fall within one of the categories of measures set out in Clause 5(1)(a) to (c), of the Framework Agreement, one or more of which the Member States must establish if their legal order does not contain equivalent legal measures and, second, does not moreover appear to be an equivalent such legal measure, since it is not capable of achieving the general objective that Clause 5 assigns to Member States, consisting in preventing abuse arising from the use of successive fixed-term employment contracts or relations (see, to that effect, judgment of 21 November 2018, de Diego Porras, C‑619/17, EU:C:2018:936, paragraphs 92 to 94).
62


Since the payment of that compensation is made without any consideration as to the legitimacy or misuse of such contracts or relationships, it does not appear apt to penalise misuse of successive fixed-term employment contracts or relations and nullify the consequences of the breach of EU law and, therefore, does not appear to be, in itself, a measure that is sufficiently effective and a sufficient deterrent to ensure that the measures taken pursuant to the framework agreement are fully effective (see, to that effect, judgment of 21 November 2018, de Diego Porras, C‑619/17, EU:C:2018:936, paragraphs 94 and 95).
68


It is settled case-law that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 21 November 2018, de Diego Porras, C‑619/17, EU:C:2018:936, paragraph 77 and the case-law cited).
69


Furthermore, the need to provide an interpretation of EU law which will be of use to the referring court requires that court to define the factual and legislative context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based (see, to that effect, the judgment of 31 May 2018, Zheng, C‑190/17, EU:C:2018:357, paragraph 48 and the case-law cited).
70


In that regard, it is settled case-law that Clause 5(1) of the framework agreement applies only where there are successive fixed-term employment contracts or relationships (judgments of 22 November 2005, Mangold, C‑144/04, EU:C:2005:709, paragraphs 41 and 42, and of 26 January 2012, Kücük, C‑586/10, EU:C:2012:39, paragraph 45, and order of 12 June 2019, Aragón Carrasco and Others, C‑367/18, not published, EU:C:2019:487, paragraph 55).
71


It is clear from Clause 5(2)(a) of the framework agreement that it is for Member States to determine under what conditions fixed-term employment contracts or relationships are to be regarded as “successive” (judgment of 21 November 2018, de Diego Porras, C‑619/17, EU:C:2018:936, paragraph 79 and order of 12 June 2019, Aragón Carrasco and Others, C‑367/18, not published, EU:C:2019:487, paragraph 56).