Grupo Norte Facility SA v Angel Manuel Moreira Gómez.
Date: 2018-06-05
32


In that regard, it is true that it is settled case-law that it is not for the Court to rule on the interpretation of provisions of national law, as such an interpretation falls within the exclusive jurisdiction of the national courts (judgment of 23 November 2017, CHEZ Elektro Bulgaria and FrontEx International, C‑427/16 and C‑428/16, EU:C:2017:890, paragraph 30 and the case-law cited).
36


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).
37


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).
38


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; see, to that effect, judgment of 13 September 2007, Del Cerro Alonso, C‑307/05, EU:C:2007:509, paragraph 38).
41


It is therefore 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).
42


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 in Nierodzik, C‑38/13, EU:C:2014:152, paragraph 29).
43


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).
44


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).
45


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.
46


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).
47


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).
48


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).
49


In the present case it is for the referring court, which alone has jurisdiction to assess the facts, to determine whether Mr Moreira Gómez, when he was engaged by Grupo Norte under a fixed-term relief 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).
50


That said, it is clear from the evidence available to the Court that, when he was engaged by Grupo Norte under that contract, Mr Moreira Gómez occupied the same post of ‘cleaner’ at the Montecelo Hospital of Pontevedra as the worker he partially ‘relieved’ pending her full retirement, that post also not requiring any specific training.
51


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 Mr Moreira Gómez was comparable to that of a permanent worker engaged by Grupo Norte to carry out the same cleaning tasks.
53


In that regard, it should be noted that, according to the Court’s settled case-law, the term ‘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).
54


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 (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).
56


In that respect, it should be noted that the payment of compensation such as that payable by Grupo Norte on termination of Mr Moreira Gómez’s employment contract — which was expected to occur, from the moment that contract was concluded, when the worker he replaced took full retirement — takes 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.
57


Indeed, it follows from the definition of ‘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, the occurrence of a specific event or, as in the present case, a specific date being reached. 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.
60


In those circumstances, it must be held that the fact that the respective compensation amounts provided for in Articles 49(1)(c) and 53(1)(b) of the Workers’ Statute, which are paid in fundamentally different contexts, have different purposes constitutes an objective reason justifying the different treatment at issue.