Francisco Javier Rosado Santana v Consejería de Justicia y Administración Pública de la Junta de Andalucía.
Date: 2011-09-08
27. The national court also notes that the approach followed by many Spanish courts is that, in the case of published notices of public competitions which state the conditions for the admission of candidates and for the attribution of marks, those conditions constitute the ‘law’ of the competition and, if those conditions are not challenged by the person concerned within the time-limit, their illegality can no longer be relied on at a later stage in order to challenge the result of the competition in so far as it affects the person concerned.
32. It should be recalled in that regard that, in the context of the cooperation between the Court and national courts under Article 267 TFEU, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (see, inter alia, Case C‑415/93 Bosman  [1995] ECR I‑4921, paragraph 59, and Case C‑45/09 Rosenbladt  [2010] ECR I‑0000, paragraph 32).
33. In addition, it is for the national courts to furnish the Court with the factual and legal information necessary to enable it to give useful answers to the questions referred (Case C‑249/97 Gruber  [1999] ECR I‑5295, paragraph 19).
39. In that regard, it should be borne in mind that, under clause 2(1) of the framework agreement, the agreement applies to fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State.
40. The Court has held that 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 (Case C‑307/05 Del Cerro Alonso  [2007] ECR I‑7109, paragraph 28).
41. The mere fact that Mr Rosado Santana obtained the status of career civil servant and that his access to an internal selection procedure is conditional upon the holding of that status does not mean that, in certain circumstances, he cannot rely on the principle of non-discrimination laid down in clause 4 of the framework agreement.
42. In the main proceedings, Mr Rosado Santana, in his capacity as a career civil servant, is seeking essentially to challenge a difference in treatment arising when account was taken of seniority and professional experience acquired, for the purposes of an internal selection procedure. Periods of service as a career civil servant are taken into account whereas service as an interim civil servant is not, without – according to Mr Rosado Santana – the nature of the duties performed or their inherent characteristics being considered. Since the discrimination contrary to clause 4 of the framework agreement of which Mr Rosado Santana alleges that he is the victim concerns periods of service completed as an interim civil servant, the fact that he meanwhile became a career civil servant is irrelevant.
43. In addition, it should be pointed out that clause 4(4) of the framework agreement provides that period-of-service qualifications relating to particular conditions of employment are to be the same for fixed-term workers as for permanent workers, except where different period-of-service qualifications are justified on objective grounds. It does not follow either from the wording of clause 4(4) of the framework agreement or from the context in which it is placed that that provision ceases to be applicable once the worker concerned has become a permanent worker. The objectives pursued by Directive 1999/70 and the framework agreement, which are intended both to prohibit discrimination and to prevent abuse resulting from the use of successive employment contracts or relationships, suggest the contrary.
44. To exclude automatically application of the framework agreement in a situation such as that in the case before the referring court – as the Spanish Government and the Commission suggest – would, in disregard of the objective attributed to clause 4, effectively reduce the scope of the protection against discrimination for the workers concerned and would give rise to an unduly restrictive interpretation of that clause, contrary to the case-law of the Court (see, to that effect, Del Cerro Alonso , paragraphs 37 and 38, and Case C‑268/06 Impact  [2008] ECR I‑2483, paragraphs 114 and 115).
46. The Court has already pointed out that national 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 and, consequently, to qualify for promotion – such as the rule at issue in the main proceedings – constitute employment conditions (see, by analogy, in the field of equal treatment of men and women workers, Case C‑136/95 Thibault  [1998] ECR I‑2011, paragraph 27, and Case C‑284/02 Sass  [2004] ECR I‑11143, paragraphs 31 and 34).
47. It follows that the concept of employment conditions in clause 4(1) of the framework agreement covers a condition, such as the condition at issue in the main proceedings, relating to the taking into account, in the context of a selection procedure for internal promotion, of periods of service previously completed as an interim civil servant.
50. It should be recalled at the outset that a directive imposes an obligation on all Member States to which it is addressed to adopt all the measures necessary to ensure that the directive concerned is fully effective in accordance with the objective which it pursues (see Case 14/83 von Colson and Kamann  [1984] ECR 1891, paragraph 15, and Impact , paragraph 40).
51. The obligation on Member States, arising from a directive, to achieve the result envisaged by that directive and their duty under Article 4(3) TEU to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation is binding on all the authorities of the Member States including, for matters within their jurisdiction, the courts ( Impact , paragraph 41).
52. It is the responsibility of the national courts, in particular, to provide the legal protection which individuals derive from the rules of EU law and to ensure that those rules are fully effective ( Impact , paragraph 42).
53. According to the case-law of the Court, where they are unable to interpret and apply national law in compliance with the requirements of EU law, it is for the national courts and administrative bodies to apply EU law in its entirety and to protect the rights which the latter confers on individuals, disapplying, if necessary, any contrary provision of national law (see, to that effect, Case 103/88 Costanzo [1989] ECR 1839, paragraph 33; Case C‑208/05 ITC  [2007] ECR I‑181, paragraphs 68 and 69; and Case C‑429/09 Fuß [2010] ECR I‑0000, paragraph 63).
54. The framework agreement, which is the product of a dialogue, based on Article 139(1) EC, between management and labour at EU level, has been implemented in accordance with Article 139(2) EC by a directive of the Council of the European Union, of which it is thus an integral component ( Impact , paragraph 58).
55. According to settled case-law, the provisions laid down in the framework agreement are intended to apply 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, paragraph 54, and Joined Cases C‑444/09 and C‑456/09 Gavieiro Gavieiro and Iglesias Torres  [2010] ECR I‑0000, paragraph 38).
56. Clause 4 of the framework agreement, which has direct effect, prohibits, in respect of employment conditions and periods of service related to employment conditions, the treatment of fixed-term workers in a less favourable manner than comparable permanent workers, solely because their employment is for a fixed term ( Impact , paragraphs 59 and 68).
60. In that regard, it is sufficient to note that it is not the role of the Court of Justice to rule on the interpretation of provisions of national law, which is a matter falling within the exclusive jurisdiction of the national courts (Case C‑409/06 Winner Wetten  [2010] ECR I‑0000, paragraph 35), and that the Court cannot substitute its own judgment for that of the referring court as regards the development of case-law of those courts.
64. As is clear from the answer to the first two questions, clause 4(1) of the framework agreement prohibits, with regard to employment conditions, less favourable treatment of fixed-term workers as compared with permanent workers, solely because they are employed for a fixed term, unless different treatment is justified on objective grounds. Clause 4(4) lays down the same prohibition as regards period-of-service qualifications relating to particular conditions of employment.
65. It should be recalled that, according to settled case-law, the principle of non-discrimination requires that comparable situations must not be treated differently and different situations must not be treated alike unless such treatment is objectively justified (see, inter alia, Case C‑313/04 Franz Egenberger  [2006] ECR I‑6331, paragraph 33 and the case-law cited).
66. 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 (order of 18 March 2011 in Case C‑273/10 Montoya Medina , paragraph 37).
67. In principle, it is for the national court to determine whether Mr Rosado Santana, when he was working as an interim civil servant, was in a situation comparable to that of career civil servants who, in the context of the selection procedure at issue, have shown that they have 10 years’ seniority accrued in the categories of civil servants belonging to group D.
68. If it were to be found that the duties performed by Mr Rosado Santana as an interim civil servant did not correspond to those performed by a career civil servant in one of the categories belonging to group D, as required by the competition notice, it would follow that he is not, in any event, in a situation comparable with that of a career civil servant who is a candidate for internal promotion and has completed the periods of service required in those categories.
69. The nature of the duties performed by Mr Rosado Santana in the years during which he worked for the Junta de Andalucía as an interim civil servant and the quality of the experience which he thereby acquired are not merely one of the factors which could objectively justify different treatment as compared with career civil servants. They are also among the criteria which make it possible to determine whether he is in a situation comparable with that of career civil servants.
71. In such a case, it would have to be ascertained whether there was an objective ground justifying the failure to take account of such periods of service in the context of the selection procedure at issue.
72. According to the settled case-law of the Court, the concept of ‘objective grounds’ for the purposes 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, such as a law or collective agreement ( Del Cerro Alonso , paragraph 57; Gavieiro Gavieiro and Iglesias Torres , paragraph 54; and the order in Montoya Medina , paragraph 40).
73. That concept requires the unequal treatment found to exist to be justified by the existence of precise and specific factors, characterising the employment condition to which it relates, in the particular context in which it occurs and on the basis of objective and 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 result, 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, Del Cerro Alonso , paragraphs 53 and 58; and Gavieiro Gavieiro and Iglesias Torres , paragraph 55).
74. Reliance on the mere temporary nature of the employment of staff of the public authorities does not meet those requirements and is therefore not, of itself, capable of constituting an ‘objective ground’ for the purposes of clause 4(1) of the framework agreement. If the mere temporary nature of an employment relationship were held to be sufficient to justify a difference in treatment as between fixed-term workers and permanent workers, the objectives of Directive 1999/70 and the framework agreement would be rendered meaningless and it would be tantamount to perpetuating a situation that is disadvantageous to fixed-term workers ( Gavieiro Gavieiro and Iglesias Torres , paragraphs 56 and 57, and the order in Montoya Medina , paragraphs 42 and 43).
76. In view of the discretion enjoyed by Member States as regards the organisation of their own public administrations, they can, in principle, without acting contrary to Directive 1999/70 or the framework agreement, lay down period-of-service conditions for access to certain posts, restrict access to internal promotion solely to career civil servants and require those civil servants to provide evidence of professional experience corresponding to the grade immediately below the grade concerned by the selection procedure.
77. However, that discretion notwithstanding, the criteria which the Member States lay down must be applied in a transparent manner and must be open to review in order to prevent any exclusion of fixed-term workers solely on the basis of the duration of the contracts or employment relationships which attest to their length of service and professional experience.
78. As the Advocate General pointed out in points 62 to 65 of her Opinion, some of the differences raised by the Spanish Government relating to the manner in which interim and career civil servants are engaged, the qualifications required and the nature of the duties undertaken could, in principle, justify different treatment as regards their conditions of employment.
79. Where, in a selection procedure, such a difference in treatment flows from the need to take account of objective requirements relating to the post which that procedure is intended to fill and which are unrelated to the fixed-term nature of the interim civil servant’s employment relationship, it is capable of being justified for the purposes of clause 4(1) and/or (4) of the framework agreement.
80. On the other hand, a general and abstract condition to the effect that the period of service required must have been entirely completed as a career civil servant, with no account being taken, in particular, of the specific nature of the tasks to be performed or their inherent characteristics, does not meet the requirements of the case-law on clause 4(1) of the framework agreement, as set out in paragraphs 72 to 74 above.
83. Accordingly, it is for the national court to ascertain whether, on the one hand, the situation of Mr Rosado Santana was, as regards the periods of service which he completed as an interim civil servant, comparable with that of another employee of the Junta de Andalucía who had completed his periods of service as a career civil servant and, on the other hand, to assess, in the light of the case-law referred to in paragraphs 72 to 74 above, whether the arguments put forward before it by the Consejería constitute objective grounds for the purposes of clause 4(1) of the framework agreement.
87. The Court has consistently held that, in the absence of EU rules governing the matter, it is for the domestic legal system of each Member State, pursuant to the principle of the procedural autonomy of those legal systems, to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law ( Impact , paragraph 44, and Joined Cases C‑378/07 to C‑380/07 Angelidaki and Others  [2009] ECR I‑ 3071, paragraph 173).
88. The Member States, however, are responsible for ensuring that those rights are effectively protected in each case ( Impact , paragraph 45 and the case-law cited).
89. On that basis, as is apparent from well-established case-law, the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness) (see, inter alia, Impact , paragraph 46 and the case-law cited).
90. The principle of equivalence requires that the national rule in question be applied without distinction, whether the infringement alleged is of EU law or national law, where the purpose and cause of action are similar. In order to establish whether the principle of equivalence has been complied with, it is for the national court, which alone has direct knowledge of the procedural rules governing actions under national law, to ensure, in national law, that the procedural rules intended to ensure that the rights derived by individuals from EU law are safeguarded respect that principle and to consider both the purpose and the essential characteristics of allegedly similar domestic actions. To that end, the national court must assess the similarity of the actions concerned in terms of their purpose, cause of action and essential characteristics. In order to determine whether a national procedural provision is less favourable, the national court must take account of the role of that provision in the procedure, viewed as a whole, of the conduct of that procedure and of its special features (Case C‑246/09 Bulicke  [2010] ECR I‑0000, paragraphs 26 to 29, and the order of 18 January 2011 in Case C‑272/10 Berkizi-Nikolakaki , paragraphs 40 and 41).
92. As regards the principle of effectiveness, it is clear from the case-law of the Court that every case in which the question arises as to whether a national procedural provision makes the exercise of rights conferred on individuals under the EU legal order practically impossible or excessively difficult must be analysed similarly by reference to the role of that provision in the procedure, viewed as a whole, to the conduct and special features of that procedure before the various national judicial bodies. For those purposes, account must be taken, where appropriate, of the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure ( Bulicke , paragraph 35, and the order in Berkizi-Nikolakaki , paragraph 48).
93. The Court has thus recognised that it is compatible with EU law to lay down reasonable time-limits for bringing proceedings, on pain of the action being time-barred, in the interests of legal certainty, since such time-limits are not liable to render practically impossible or excessively difficult the exercise of rights conferred by EU law. As regards such time-limits, the Court has also held that, in respect of national legislation which falls within the scope of EU law, it is for the Member States to establish those time-limits in the light, inter alia, of the significance for the parties concerned of the decisions to be taken, the complexities of the procedures and of the legislation to be applied, the number of persons who may be affected and any other public or private interests which must be taken into consideration ( Bulicke , paragraph 36, and the order in Berkizi-Nikolakaki , paragraph 49)
95. It should be pointed out in that regard that the Court has held that the fixing of a two-month time-limit did not appear, in the cases before it, liable to render practically impossible or excessively difficult the exercise of rights conferred by EU law (see Bulicke , paragraph 39, and the order in Berkizi-Nikolakaki , paragraph 58). The Court has, in particular, confirmed the validity of such a time-limit as regards an action challenging a measure of general application laying down a complex procedure and involving a large number of persons (see, to that effect, order in Berkizi-Nikolakaki , paragraphs 56 to 58).