Rosanna Valenza (C-302/11 and C-304/11), Maria Laura Altavista (C-303/11), Laura Marsella, Simonetta Schettini and Sabrina Tomassini (C-305/11) v Autorità Garante della Concorrenza e del Mercato.
Date: 2012-10-18
23. According to that court, the national legislature did not intend, through that legislation, retroactively to validate unlawful fixed-term recruitment by converting a series of fixed-term employment contracts into an employment relationship of indefinite duration, due to an abuse of those contracts in breach of clause 5 of the framework agreement. Instead, that legislature viewed the length of service accrued in fixed-term employment as a qualification which justifies establishing an employment relationship of indefinite duration, in derogation from the general competition rule for joining the public authority’s permanent staff. In that context, the fact that the length of service is set at nought is justified by the need to avoid reverse discrimination against workers who are already on the permanent staff and recruited on a permanent basis following a general competition. Indeed, if the beneficiaries of stabilisation could maintain their length of service, they would replace those of workers with a shorter length of service.
32. 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 (Case C-177/10 Rosado Santana  [2011] ECR I-7907, paragraph 39).
33. 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, and Rosado Santana , paragraph 40).
34. The mere fact that the applicants in the main proceedings obtained the status of permanent workers does not mean that, in certain circumstances, they cannot rely on the principle of non-discrimination laid down in clause 4 of the framework agreement (see Rosado Santana , paragraph 41, and see, to that effect, Case C-251/11 Huet  [2012] ECR, paragraph 37).
35. In the cases in the main proceedings, the applicants, in their capacity as permanent workers, are seeking essentially to challenge a difference in treatment arising when account was taken of seniority and professional experience acquired for the purposes of a recruitment procedure at the end of which they became career civil servants. Periods of service as permanent workers were taken into account in order to determine seniority and thus to determine the level of remuneration, whereas periods of service as fixed-term workers were not, without — according to the applicants — 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 the applicants allege that they are victims, concerns periods of service completed as fixed-term workers, the fact that they meanwhile became permanent workers is irrelevant (see, to that effect, Rosado Santana , paragraph 42).
36. 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 ( Rosado Santana , paragraph 43).
37. To exclude automatically application of the framework agreement in situations such as those in the cases before the referring court 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 ( Rosado Santana , paragraph 44 and the case-law cited).
39. 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 ( Rosado Santana , paragraph 64).
40. 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 ( Rosado Santana , paragraph 65 and the case-law cited).
42. 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; Rosado Santana , paragraph 66; and order of 9 February 2012 in Case C-556/11 Lorenzo Martínez , paragraph 43).
43. In principle, it is for the national court to determine whether the applicants in the main proceedings, when they were working for the AGCM under fixed-term employment contracts, were in a situation comparable to that of career civil servants employed on a permanent basis by that authority (see Rosado Santana , paragraph 67, and order in Lorenzo Martínez , paragraph 44).
44. The nature of the duties performed by the applicants in the main proceedings in the years during which they worked for the AGCM under fixed-term employment contracts and the quality of the experience which they 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 they are in a situation comparable with that of career civil servants (see, to that effect, Rosado Santana , paragraph 69).
45. In the present case, it is apparent that, unlike career civil servants, the applicants in the main proceedings, beneficiaries of the stabilisation procedure, have not passed the general competition for obtaining a post in the public sector. However, as the Commission rightly submitted, that fact does not mean that the applicants are in a different situation, given that the conditions for stabilisation set by the national legislature in the legislation at issue in the main proceedings, concerning the duration of the fixed-term employment relationship and the requirement to have been recruited on that basis through a selection procedure in the form of a competition or following a procedure laid down by statute, are specifically intended to enable the stabilisation of only those fixed-term workers whose situation may be viewed in the same way as that of career civil servants.
48. In the event that the duties performed by the applicants in the main proceedings for the AGCM under fixed-term employment contracts did not correspond to those performed by a career civil servant belonging to the relevant category of that authority, the alleged difference in treatment concerning periods of service being taken into account upon the recruitment of the applicants in the main proceedings as career civil servants would not be contrary to clause 4 of the framework agreement, as that difference in treatment would relate to differing situations (see, by analogy, Rosado Santana , paragraph 68).
49. By contrast, in the event that the duties performed by the applicants in the main proceedings for the AGCM under fixed-term employment contracts did correspond to those performed by a career civil servant belonging to the relevant category of that authority, it would have to be ascertained whether there was an objective ground justifying the complete failure to take account of the periods of service completed under the fixed-term employment contracts upon the recruitment of the applicants in the main proceedings as career civil servants and, thus, their being placed on the permanent staff (see, to that effect, Rosado Santana , paragraph 71).
Whether or not any objective justification exists
50. According to the settled case-law of the Court, the concept of ‘objective grounds’ for the purposes 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, abstract national norm, such as a law or collective agreement ( Del Cerro Alonso , paragraph 57; Joined Cases C-444/09 and C-456/09 Gavieiro Gavieiro and Iglesias Torres  [2010] ECR I-14031, paragraph 54; order in Montoya Medina , paragraph 40; Rosado Santana , paragraph 72; and order in Lorenzo Martínez , paragraph 47).
51. 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; Gavieiro Gavieiro and Iglesias Torres , paragraph 55; order in Montoya Medina , paragraph 41; Rosado Santana , paragraph 73; and order in Lorenzo Martínez , paragraph 48).
52. Reliance on the mere temporary nature of the employment of staff of the public authorities does not meet those requirements and is therefore not capable of constituting an ‘objective ground’ for the purposes of clause 4(1) and/or (4) 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; order in Montoya Medina , paragraphs 42 and 43; Rosado Santana , paragraph 74; and order in Lorenzo Martínez , paragraphs 49 and 50).
55. Next, the Italian Government argues that that legislation, by specifying the length of service accrued under fixed-term employment contracts as a condition for benefiting from stabilisation and not as an element which may be taken into account in the context of a new permanent employment relationship, is motivated by the need to prevent reverse discrimination to the detriment of the career civil servants who are already members of the permanent staff. Indeed, if the stabilised workers could maintain their length of service, their being placed on the permanent staff would take place to the detriment of the workers already employed as civil servants on a permanent basis, following a general competition, but having a shorter length of service. Those workers would find themselves placed on the permanent staff at a lower level than that of workers benefiting from stabilisation.
57. In that regard, it should be borne in mind that, in view of the discretion enjoyed by Member States as regards the organisation of their own public administrations, those States can, in principle, without acting contrary to Directive 1999/70 or the framework agreement, lay down conditions for becoming career civil servants together with conditions of employment for those civil servants, in particular where those civil servants were previously employed by those authorities under fixed-term employment contracts (see, to that effect, Rosado Santana , paragraph 76).
59. 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 the contracts or employment relationships which attest to their length of service and professional experience (see Rosado Santana , paragraph 77).
60. In that regard, it must be conceded that some of the differences raised by the Italian Government relating to the manner in which fixed-term workers are recruited under stabilisation procedures such as those at issue in the main proceedings with respect to career civil servants recruited following a general competition, the qualifications required and the nature of the duties undertaken could, in principle, justify different treatment as regards their conditions of employment (see, to that effect, Rosado Santana , paragraph 78).
61. Where such a difference in treatment flows 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 is capable of being justified for the purposes of clause 4(1) and/or (4) of the framework agreement (see, to that effect, Rosado Santana , paragraph 79).
62. In the present case, regarding the alleged objective of preventing reverse discrimination against career civil servants recruited after passing a general competition, it should be observed that, although that objective may constitute an ‘objective ground’ for the purposes of clause 4(1) and/or (4) of the framework agreement, it cannot, in any event, justify disproportionate national legislation such as that at issue in the main proceedings which completely and in all circumstances prohibits all periods of service completed by workers under fixed-term employment contracts being taken into account in order to determine the length of service of those workers upon their recruitment on a permanent basis and, thus, their level of remuneration. Such a complete and absolute prohibition is essentially based on the general premiss that the permanent nature of the employment relationship of certain public officials in itself justifies a difference in treatment with respect to public officials employed on a fixed-term basis, thereby rendering the objectives of Directive 1999/70 and of the framework agreement meaningless.
63. As regards the fact, reiterated by the Italian Government during the hearing, that the stabilisation procedure gives rise, in national law, to a new employment relationship, it should be borne in mind that the framework agreement does not specify the conditions under which employment contracts of indefinite duration may be used and is not intended to harmonise all national rules relating to fixed-term employment contracts. That framework agreement simply aims, by determining general principles and minimum requirements, to establish a general framework for ensuring equal treatment for fixed-term workers by protecting them against discrimination and to prevent abuse arising from the use of successive fixed-term work agreements or contracts (see Huet , paragraphs 40 and 41 and the case-law cited).
64. However, the power of the Member States to determine the content of their national laws relating to employment contracts cannot go so far as to allow them to compromise the objective or the practical effect of the framework agreement (see, to that effect, Huet , paragraph 43 and the case-law cited).
68. However, it is for the national court in the cases in the main proceedings to ascertain, on the one hand, whether the situation of the applicants in the main proceedings was, as regards the periods of service which they completed under fixed-term employment contracts, comparable with that of another employee of the AGCM who had completed his periods of service as a career civil servant in the relevant permanent staff categories and, on the other hand, to assess, in the light of the case-law referred to in paragraphs 50 to 52 above, whether some of the arguments put forward before it by the AGCM constitute ‘objective grounds’ for the purposes of clause 4(1) and/or (4) of the framework agreement ( Rosado Santana , paragraph 83).
70. Lastly, it should be borne in mind that clause 4 of the framework agreement is unconditional and sufficiently precise for individuals to be able to rely on it before a national court as against the State from the date of expiry of the period within which the Member States should have transposed Directive 1999/70 (see, to that effect, Gavieiro Gavieiro and Iglesias Torres , paragraphs 78 to 83, 97 and 98; order in Montoya Medina , paragraph 46; and Rosado Santana , paragraph 56).
71. In the light of the foregoing, the answer to the questions referred is that clause 4 of the framework agreement, which is annexed to Directive 1999/70, must be understood as precluding national legislation, such as that at issue in the main proceedings, which completely prohibits periods of service completed by a fixed-term worker for a public authority being taken into account in order to determine the length of service of 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’ for the purposes of clause 4(1) and/or (4). 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.
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