Małgorzata Nierodzik v Samodzielny Publiczny Psychiatryczny Zakład Opieki Zdrowotnej im. dr Stanisława Deresza w Choroszczy.
Date: 2014-03-13
22. 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 in the preamble to Directive 1999/70 indicates to that effect 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 (Joined Cases C‑444/09 and C‑456/09 Gavieiro Gavieiro and Iglesias Torres  [2010] ECR I‑14031, paragraph 47).
23. 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 (Case C‑307/05 Del Cerro Alonso  [2007] ECR I‑7109, paragraph 37, and Gaviero Gaviero and Igliesias Torres , paragraph 48).
24. Having regard to the objectives pursued by the framework agreement, according to settled case-law of the Court, clause 4 of the Framework Agreement must be understood as expressing a principle of European Union social law which cannot be interpreted restrictively (see, to that effect, Del Cerro Alonso , paragraph 38, and Case C‑268/06 Impact [2008] ECR I‑2483, paragraph 114).
25. The Court has held that the decisive criterion for determining whether a measure falls within the scope of ‘employment conditions’ within the meaning of that clause is, precisely, the criterion of employment, that is to say the employment relationship between a worker and his employer (see, to that effect, Case C‑361/12 Carratù [2013] ECR, paragraph 35).
26. In that connection, the Court has already held that three-yearly length of service increments fall within the definition of ‘employment conditions’ within the meaning of clause 4(1) of the Framework Agreement (see, to that effect, Del Cerro Alonso , paragraph 47; Gaviero Gaviero and Iglesias Torres , paragraphs 50 to 58; and order of 18 March 2011 in Case C‑273/10 Montoya Medina , paragraphs 32 to 34) as well as the compensation that the employer must pay to an employee on account of the unlawful insertion of a fixed-term clause into his employment contract ( Carratù, paragraph 38).
27. In the present case, it must be observed that the national law at issue in the main proceedings concerns the conditions for the termination of a fixed-term employment contract. An interpretation of clause 4(1) of the Framework Agreement which excludes from the definition of ‘employment conditions’, within the meaning of that provision, conditions of that nature relating to termination would limit the scope of the protection granted to fixed-term workers against discrimination, in disregard of the objective assigned to that provision.
29. Having regard to those factors, it must be held that the definition of ‘employment conditions’ within the meaning of clause 4(1) includes the notice period for the termination of fixed-term employment contracts.
31. In that connection, 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 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 (Joined Cases C‑302/11 to C‑305/11 Valenza and Others  [2012] ECR, paragraph 42 and the case-law cited).
32. Therefore, it is for the national court to determine whether the applicant in the main proceedings, when she was working for the Psychiatryczny Zakład Opieki Zdrowotnej under a fixed-term employment contract, was in a situation comparable to that of other workers employed on a permanent basis by the same employer for the same period (see, by analogy, Valenza and Others , paragraph 43 and the case-law cited).
37. As regards the difference in nature of those employment contracts, it must be recalled, in that connection, that the Court has already held that reliance on the mere temporary nature of the employment is not capable of constituting an objective ground (see, to that effect, Valenza and Others , paragraph 52 and the case-law cited).
38. Different treatment with regard to employment conditions as between fixed-term workers and permanent workers cannot be justified on the basis of a criterion which, in a general and abstract manner, refers precisely to the term of the employment. If the mere temporary nature of an employment relationship were held to be sufficient to justify such a difference, the objectives of Directive 1999/70 and the Framework Agreement would be negated. Rather than improving the quality of fixed-term work and promoting equal treatment as required by Directive 1999/70 and the Framework Agreement, recourse to such a criterion would perpetuate a situation unfavourable to fixed-term workers (order of 9 February 2012 in Case C‑556/11 Lorenzo Martínez , paragraph 50 and the case-law cited).