Ministerio de Defensa v Ana de Diego Porras.
Date: 2018-11-21
54


In that regard, it should be recalled 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 (judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 39 and the case-law cited).
55


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 (judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 40 and the case-law cited).
56


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 (judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 41 and the case-law cited).
59


It should be noted, in the second place, that the compensation granted to the worker because of the termination of his contract of employment with his employer, such as that at issue in the main proceedings, comes within the concept of ‘employment conditions’ within the meaning of Clause 4(1) of the framework agreement (see, to that effect, judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraphs 44 to 48 and the case-law cited).
60


It is important to bear in mind, in the third place, 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 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 49 and the case-law cited).
61


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 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 50 and the case-law cited).
62


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 (judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 51 and the case-law cited).
63


In the present case it is for the referring court, which alone has jurisdiction to assess the facts, to determine whether Ms de Diego Porras, when she was engaged by the Ministry of Defence under a fixed-term 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, judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 52).
64


Nonetheless, it is apparent from the material before the Court that when she was engaged by the Ministry of Defence under a temporary replacement contract, Ms de Diego Porras performed the same secretarial duties as the worker whom she replaced.
65


Accordingly, subject to the definitive assessment by the referring court in the light of all of the relevant evidence, it must be considered that the situation of a fixed-term worker such as Ms de Diego Porras was comparable to that of a permanent worker engaged by the Ministry of Defence to perform the same secretarial duties.
67


In that regard, it should be borne in mind 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 (judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 56 and the case-law cited).
68


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 (judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 57 and the case-law cited).
70


In that regard, it should be observed that the cancellation of Ms de Diego Porras’s temporary replacement employment contract, owing to the reinstatement of the replaced worker, belongs to an appreciably different context, from a factual and legal viewpoint, from that in which a permanent worker’s employment contract is terminated on one of the grounds set out in Article 52 of the Workers’ Statute.
71


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 of 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 (judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 60).
72


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 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 61). As is clear from the explanations of the Spanish Government, set out in paragraph 69 of this judgment, it is precisely in order 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, that Article 53(1)(b) of the Workers’ Statute requires in that case payment to the dismissed worker of compensation equivalent to 20 days’ salary for each year of service.
74


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 particular context in which payment of that compensation is made, constitutes an objective ground that justifies the difference in treatment in question.
77


In that regard, it should be borne in mind that, according to the Court’s settled case-law, 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 the 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 is unrelated to the actual facts of the main action or its object, 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 27 June 2018, Altiner and Ravn, C‑230/17, EU:C:2018:497, paragraph 22).
79


In that regard, it follows from Clause 5(2)(a) of the framework agreement that it is for the Member States to determine the conditions under which fixed-term employment contracts or relationships are to be regarded as ‘successive’.
80


In fact, the interpretation of national provisions falls within the exclusive jurisdiction of the national courts (see, to that effect, judgment of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 32).
84


In that regard, it should be borne in mind that Clause 5 of the framework agreement, the purpose of which is to implement one of the objectives of that agreement, namely to place limits on the use of successive fixed-term employment contracts or relationships, requires Member States, in paragraph 1 thereof, to adopt one or more of the measures listed in a manner that is effective and binding, where domestic law does not include equivalent legal measures. The measures listed in Clause 5(1)(a) to (c), of which there are three, relate, respectively, to objective reasons justifying the renewal of such employment contracts or relationships, the maximum total duration of successive fixed-term employment contracts or relationships, and the number of renewals of such contracts or relationships (judgment of 14 September 2016, Martínez Andrés and Castrejana López, C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 35 and the case-law cited).
85


The Member States enjoy a certain discretion in that regard since they have the choice of relying on one or more of the measures listed in Clause 5(1)(a) to (c) of the framework agreement, or on existing equivalent legal measures, while taking account of the needs of specific sectors and/or categories of workers (judgment of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 27 and the case-law cited).
86


In that way, Clause 5(1) of the framework agreement assigns to the Member States the general objective of preventing such abuse, while leaving to them the choice as to how to achieve it, provided that they do not compromise the objective or the practical effect of the framework agreement (judgment of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 28 and the case-law cited).
87


Clause 5 of the framework agreement does not lay down any specific sanctions where instances of abuse have been established. In such a case, it is incumbent on the national authorities to adopt measures that are not only proportionate, but also sufficiently effective and a sufficient deterrent to ensure that the measures taken pursuant to the framework agreement are fully effective (judgment of 14 September 2016, Martínez Andrés and Castrejana López, C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 36 and the case-law cited).
88


Where abuse arising from the use of successive fixed-term employment contracts or relationships has taken place, a measure offering effective and equivalent guarantees for the protection of workers must be capable of being applied in order duly to penalise that abuse and nullify the consequences of the breach of EU law. According to the very wording of Article 2(1) of Directive 1999/70, Member States must ‘take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by [that] directive’ (judgment of 14 September 2016, Martínez Andrés and Castrejana López, C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 38 and the case-law cited).
89


It should be borne in mind, moreover, that it is not for the Court to rule on the interpretation of provisions of national law, that being exclusively for the national courts having jurisdiction, which must determine whether the requirements set out in Clause 5 of the framework agreement are met by the provisions of the applicable national legislation (judgment of 14 September 2016, Martínez Andrés and Castrejana López, C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 42 and the case-law cited).
90


It is therefore for the referring court to determine to what extent the conditions for application and the actual implementation of the relevant provisions of national law render the latter an appropriate measure for preventing and, where necessary, penalising the misuse of successive fixed-term employment contracts or relationships (judgment of 14 September 2016, Martínez Andrés and Castrejana López, C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 43 and the case-law cited).
91


The Court, when giving a preliminary ruling, may, however, provide clarification designed to give the referring court guidance in its assessment (judgment of 14 September 2016, MartínezAndrés and Castrejana López, C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 44 and the case-law cited).
92


In that regard, it should be observed that a measure, such as that at issue in the main proceedings, which provides for the compulsory payment of compensation to workers employed under certain fixed-term employment contracts on expiry of the period for which those contracts were concluded, does not at first sight fall within one of the categories of measures designed to prevent abuse and referred to in Clause 5(1)(a) to (c) of the framework agreement.
93


Nor does such a national measure appear to constitute an ‘equivalent legal measure [designed to] prevent abuse’, within the meaning of that provision.
94


The payment of an end-of-contract compensation, such as that referred to in Article 49(1)(c) of the Workers’ Statute, would not allow the purpose of Clause 5 of the framework agreement, consisting in preventing abuse arising from the use of successive fixed-term contracts, to be achieved. Such a payment seems to be independent of any consideration relating to the lawful or abusive nature of the use of fixed-term contracts.
95


Such a measure therefore does not appear to be an appropriate means of duly penalising the improper use of successive fixed-term employment contracts or relationships and of removing the consequences of the infringement of EU law and, consequently, does not seem in itself to constitute a sufficiently effective and deterrent measure to ensure that the measures taken pursuant to the framework agreement are fully effective, within the meaning of the case-law referred to in paragraph 87 of this judgment.
98


In that regard, it should be borne in mind that Clause 5 of the framework agreement does not preclude, in principle, treating misuse of successive fixed-term employment contracts or relationships differently according to the sector or category applicable to the staff in question, provided that the law of the Member State concerned provides, in that sector or with respect to that category of staff, another effective measure to prevent and penalise abuse (judgment of 14 September 2016, Martínez Andrés and Castrejana López, C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 48 and the case-law cited).