Gardenia Vernaza Ayovi v Consorci Sanitari de Terrassa.
Date: 2018-07-25
21


According to Clause 1(a) of the Framework Agreement, one of the objectives of that agreement 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 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 (judgment of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 36 and the case-law cited).
22


The Framework Agreement, in particular its Clause 4, seeks 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, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 37 and the case-law cited).
23


Having regard to the objectives which the Framework Agreement pursues, Clause 4 thereof must be understood as expressing a principle of EU social law which cannot be interpreted restrictively (judgment of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 38 and the case-law cited).
27


With regard, second, to the concept of ‘employment conditions’ within the meaning of Clause 4(1) of the Framework Agreement, the decisive criterion for determining whether a measure comes 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 (judgment of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 41 and the case-law cited).
28


In that regard, the Court has held that, inter alia, rules for determining the notice period applicable in the event of termination of fixed-term employment contracts and 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, come within that concept (judgment of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraphs 42, 44 and 45).
29


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 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 43 and the case-law cited).
32


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 that different situations should not be treated alike, unless such treatment is objectively justified (judgment of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 46 and the case-law cited).
33


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 comparable situations (judgments of 14 September 2016, de Diego Porras, C‑596/14, EU:C:2016:683, paragraph 37, and of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 47).
34


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 is necessary to determine, in accordance with Clause 3(2) and Clause 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, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 48 and the case-law cited).
35


In the present case it is for the referring court, which alone has jurisdiction to assess the facts, to determine whether Ms Vernaza Ayovi was in a situation comparable to that of permanent workers taken on by the same employer during the same period (see, by analogy, judgment of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 49 and the case-law cited).
38


In that regard, it should be noted 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 difference is provided for by a general and abstract measure, such as a law or a collective agreement (judgment of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 53 and the case-law cited).
39


According to equally settled case-law, that concept requires 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 the pursuit of a legitimate social-policy objective of a Member State (judgment of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 54 and the case-law cited).
46


It must be held that, while the difference in treatment at issue cannot be justified by the public interest which attaches, in itself, to the methods of recruitment of permanent workers, the fact remains that considerations based on the characteristics of the law governing the national civil service, such as those referred to in paragraphs 42 to 44 of the present judgment, are capable of justifying such a difference in treatment. In that regard, the conditions of impartiality, efficiency and independence of the administration imply a certain permanence and stability of employment. Those considerations, which have no counterpart in standard employment law, explain and justify the limitations on the power of public employers unilaterally to terminate employment contracts and, as a consequence, the national legislature’s decision not to grant them the right to choose between reinstatement and compensation for harm suffered owing to wrongful dismissal.
47


Consequently, it must be found that the automatic reinstatement of permanent workers takes place in a significantly different context, from a factual and legal point of view, to that in which non-permanent workers find themselves (see, by analogy, judgment of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 56).