Chiara Motter v Provincia autonoma di Trento.
Date: 2018-09-20
17


The referring court notes, in addition, that, in its judgment of 18 October 2012, Valenza and Others (C‑302/11 to C‑305/11, EU:C:2012:646, paragraphs 23, 55 and 62), the Court found that taking into account in full the length of service completed under fixed-term contracts by employees admitted to the permanent staff of the civil service could give rise to reverse discrimination to the detriment of those employed under a permanent contract after passing a competition.
21


In that regard, it must be borne in mind that, in the context of the cooperation between the Court and the national courts established in Article 267 TFEU, it is solely for the national court before which a 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 of 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 (judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 19 and the case-law cited).
22


It follows 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 and the accuracy of which is not a matter for this Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by 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 26 July 2017, Persidera, C‑112/16, EU:C:2017:597, paragraph 24 and the case-law cited).
26


In order to answer this question, it should be borne in mind that 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 (judgment of 18 October 2012, Valenza and Others, C‑302/11 to C‑305/11, EU:C:2012:646, paragraph 39). In addition, the Court has already stated that national rules concerning periods of service to be completed in order to be classified in a salary grade are covered by the concept of ‘employment conditions’ within the meaning of clause 4(1) of the framework agreement (judgment of 8 September 2011, Rosado Santana, C‑177/10, EU:C:2011:557, paragraphs 46 and 47).
29


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 (judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 51 and the case-law cited).
30


The nature of the duties performed by the applicant in the main proceedings in the years during which she worked as a teacher under fixed-term employment contracts and the quality of the experience which she thereby acquired are some of the criteria which make it possible to determine whether she is in a situation comparable with that of a civil servant recruited by way of a competition and having completed the same period of service (see, to that effect, judgment of 18 October 2012, Valenza and Others, C‑302/11 to C‑305/11, EU:C:2012:646, paragraph 44).
33


However, it should be held that the fact that she did not pass an administrative competition does not mean that the applicant in the main proceedings was, at the time she was hired permanently, not in a comparable situation to that of career civil servants, given that the conditions set by the national procedure for recruitment based on qualifications are specifically intended to enable fixed-term workers, whose professional experience is such that their situation may be viewed in the same way as that of career civil servants, to be admitted to the permanent staff of the civil service (see, to that effect, judgment of 18 October 2012, Valenza and Others, C‑302/11 to C‑305/11, EU:C:2012:646, paragraph 45).
36


According to the settled case-law of the Court, the concept of ‘objective grounds’ within the meaning of clause 4(1) and/or (4) 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 or abstract national measure, such as a law or collective agreement (judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 56 and the case-law cited).
37


That concept requires 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 the fixed-term contracts were 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 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 57 and the case-law cited).
38


Reliance on the mere temporary nature of the employment of staff of the public authorities does not, therefore, meet those requirements and cannot constitute an ‘objective ground’ within the meaning of clause 4(1) and/or (4) of the framework agreement. If the mere temporary nature of an employment relationship were considered to be enough 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 disadvantageous to fixed-term workers (judgment of 18 October 2012, Valenza and Others, C‑302/11 to C‑305/11, EU:C:2012:646, paragraph 52).
39


The Court has accordingly previously held that clause 4 of the framework agreement must be interpreted as precluding national legislation which absolutely prohibits periods of service completed by a fixed-term worker for a public authority being taken into account in determining the period of service deemed completed by that worker upon his recruitment on a permanent basis by that same authority as a career civil servant under a stabilisation procedure specific to his employment relationship, unless that prohibition is justified on ‘objective grounds’ within the meaning of clause 4(1) and/or (4) of the framework agreement. The mere fact that the fixed-term worker completed those periods of service on the basis of a fixed-term employment contract or relationship does not constitute such an objective ground (judgment of 18 October 2012, Valenza and Others, C‑302/11 to C‑305/11, EU:C:2012:646, paragraph 71).
43


It should be borne in mind that, in view of the discretion enjoyed by Member States as regards the organisation of their own public authorities, those States can, in principle, without acting contrary to Directive 1999/70 or the framework agreement, lay down conditions for becoming career civil servants and conditions of employment for those civil servants, in particular where those civil servants were previously employed by those authorities under fixed-term employment contracts (judgment of 18 October 2012, Valenza and Others, C‑302/11 to C‑305/11, EU:C:2012:646, paragraph 57).
44


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 unfavourable treatment of fixed-term workers solely on the basis of the duration of contracts or employment relationships which attest to their length of service and professional experience (judgment of 18 October 2012, Valenza and Others, C‑302/11 to C‑305/11, EU:C:2012:646, paragraph 59).
45


Where such a difference in treatment arises from the need to take account of objective requirements relating to the post which the recruitment procedure is intended to fill and which are unrelated to the fixed-term nature of the worker’s employment relationship, it may be justified for the purposes of clause 4(1) and/or (4) of the framework agreement (see, to that effect, judgment of 8 September 2011, Rosado Santana, C‑177/10, EU:C:2011:557, paragraph 79).
46


In that regard, the Court has previously accepted that some differences of treatment between career civil servants recruited following an open competition and those recruited having acquired professional experience on the basis of fixed-term contracts may, in principle, be justified by differences in the qualifications required and the nature of the duties undertaken (judgment of 18 October 2012, Valenza and Others, C‑302/11 to C‑305/11, EU:C:2012:646, paragraph 60).
47


The objectives claimed by the Italian Government, first, of reflecting the differences in professional practice between the two categories of worker in question and, second, of preventing reverse discrimination against career civil servants recruited after passing an open competition, can therefore be considered to constitute an ‘objective reason’ within the meaning of clause 4(1) and/or (4) of the framework agreement, provided they respond to a genuine need, are appropriate for the purpose of attaining the objectives pursued and are necessary for that purpose (see, to that effect, judgment of 18 October 2012, Valenza and Others, C‑302/11 to C‑305/11, EU:C:2012:646, paragraph 62).