Ana de Diego Porras v Ministerio de Defensa.
Date: 2016-09-14
25


It should be recalled at the outset 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. Furthermore, the third paragraph of the preamble to the framework agreement states that that framework agreement ‘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 in the preamble to Directive 1999/70 states, to this end, that the aim of the framework agreement is, in particular, 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, NierodzikC‑38/13, EU:C:2014:152, paragraph 22).
26


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, NierodzikC‑38/13, EU:C:2014:152, paragraph 23).
27


Having regard to the objectives pursued by the framework agreement, clause 4 of that agreement must be understood as expressing a principle of EU social law which cannot be interpreted restrictively (judgments of 13 September 2007, Del Cerro Alonso, C‑307/05, EU:C:2007:509, paragraph 38; 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).
28


With regard to the concept of ‘employment conditions’ within the meaning of clause 4(1) of the framework agreement, the Court has already judged that the decisive criterion for determining whether a measure falls within the scope of that concept is, precisely, 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 in Nierodzik, C‑38/13, EU:C:2014:152, paragraph 25).
29


According to the case-law of the Court, the concept of ‘employment conditions’, within the meaning of the clause 4(1) of the framework agreement, thus covers the three-yearly length-of-service increments which represent one of the constituent parts of the pay which should be granted to fixed-term workers in the same way as it is to permanent workers (see, to that effect, judgments of 13 September 2007, in Del Cerro Alonso, C‑307/05, EU:C:2007:509, paragraph 47, and of 22 December 2010, Gavieiro Gavieiro and Iglesias Torres, C‑444/09 and C‑456/09, EU:C:2010:819, paragraphs 50 to 58).
30


Furthermore, the Court held that that concept also covers the rules for determining the notice period applicable in the event of termination of fixed-term employment contracts. In that regard, it stated that an interpretation of clause 4(1) of the framework agreement which excludes from the definition of ‘employment conditions’, within the meaning of the clause 4(1) of the framework agreement, conditions relating to termination of a fixed-term employment contract would limit the scope of the protection granted to fixed-term workers against discrimination, in disregard of the objective assigned to that provision (see, to that effect, judgment of 13 March 2014, Nierodzik, C‑38/13, EU:C:2014:152, paragraphs 27 and 29).
31


Those considerations are fully transferable to compensation such as that at issue in the main proceedings. Given that the compensation at issue is paid to the worker on account of the termination of his contract of employment with his employer and that such compensation met the criterion set out in paragraph 28 of the present judgment, it is therefore covered by the term ‘employment conditions’.
35


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 (judgment of 8 September 2011, Rosado Santana, C‑177/10, EU:C:2011:557, paragraph 65 and the case-law cited).
37


In that regard, it should be noted that the principle of non-discrimination has been implemented and put into effect by the framework agreement solely as regards differences in treatment as between fixed-term workers and comparable permanent workers (orders of 11 November 2010, Vino, C‑20/10, not published, EU:C:2010:677, paragraph 56; of 22 June 2011, Vino, C‑161/11, not published, EU:C:2011:420, paragraph 28, and of 7 March 2013, Rivas Montes, C‑178/12, not published, EU:C:2013:150, paragraph 43).
38


However, any differences in treatment between specific categories of fixed-term staff, of the kind also mentioned by the referring court in the fourth question, are not covered by the principle of non-discrimination established by that framework agreement (order of 11 November 2010, Vino, C‑20/10, not published, EU:C:2010:677, paragraph 57).
40


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).
41


According to the case-law, it is only if the work carried out by a worker, such as the applicant in the main proceedings in the context of several fixed-term employment contracts, does not correspond to that of the permanent workers, that the alleged difference in treatment concerning the award of compensation for termination of a contract of employment would not be contrary to clause 4 of the framework agreement, as that difference in treatment would relate to differing situations (judgment of 18 October 2012, Valenza and Others, C‑302/11 to C‑305/11, EU:C:2012:646, paragraph 48 and the case-law cited).
42


While, ultimately, it is for the referring court to determine whether the applicant in the main proceedings, when she was working as a secretary in the Ministry of Defence under several temporary replacement contracts, was in a situation comparable to that of other workers employed on a permanent basis by the same authority for the same period (see, by analogy, judgments of 18 October 2012, Valenza and Others, C‑302/11 to C‑305/11, EU:C:2012:646, paragraph 43 and the case-law cited, and of 13 March 2014, Nierodzik, C‑38/13, EU:C:2014:152, paragraph 32), it must be pointed out, however, that in the present case it is apparent from the elements in the case-file submitted to the Court that the applicant in the main proceedings did work that was similar or identical to that of a permanent worker.
45


According to the settled case-law of the Court, the concept of ‘objective grounds’ requires the unequal treatment found to exist to be justified by precise, specific factors, characterising the employment condition to which it relates, in the particular context in which it occurs and on the basis of objective, 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, judgments of 13 September 2007, Del Cerro Alonso, C‑307/05, EU:C:2007:509, paragraphs 53 and 58; of 22 December 2010, Gavieiro Gavieiro and Iglesias Torres, C‑444/09 and C‑456/09, EU:C:2010:819, paragraph 55; of 8 September 2011, Rosado Santana, C‑177/10, EU:C:2011:557, paragraph 73, and of 18 October 2012, Valenza and Others, C‑302/11 to C‑305/11, EU:C:2012:646, paragraph 51).
46


The concept of ‘objective grounds’, within the meaning of clause 4(1) and/or clause 4(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 (judgments of 13 September 2007, Del Cerro Alonso, C‑307/05, EU:C:2007:509, paragraph 57; of 22 December 2010, Gavieiro Gavieiro and Iglesias Torres, C‑444/09 and C‑456/09, EU:C:2010:819, paragraph 54; of 8 September 2011, Rosado Santana, C‑177/10, EU:C:2011:557, paragraph 72, and of 18 October 2012, Valenza and Others, C‑302/11 to C‑305/11, EU:C:2012:646, paragraph 50).
47


Furthermore, reliance on the mere temporary nature of the employment of staff of the public authorities does not meet those requirements and cannot constitute an ‘objective ground’ for the purposes of clause 4(1) and/or clause (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 (judgments of 22 December 2010, Gavieiro Gavieiro and Iglesias Torres, C‑444/09 and C‑456/09, EU:C:2010:819, paragraphs 56 and 57; of 8 September 2011, Rosado Santana, C‑177/10, EU:C:2011:557, paragraph 74, and of 18 October 2012, Valenza and Others, C‑302/11 to C‑305/11, EU:C:2012:646, paragraph 52).