Rosa María Gavieiro Gavieiro (C-444/09) and Ana María Iglesias Torres (C-456/09) v Consellería de Educación e Ordenación Universitaria de la Xunta de Galicia.
Date: 2010-12-22
38. In that regard, it should be recalled that the Court has already ruled that it is apparent from the wording of Directive 1999/70 and of the framework agreement, as well as from their background and purpose, that the provisions laid down apply to fixed-term employment contracts and relationships concluded with the public authorities and other public-sector bodies (Case C-212/04 Adeneler and Others [2006] ECR I-6057, paragraphs 54 to 57; Case C-53/04 Marrosu and Sardino [2006] ECR I-7213, paragraphs 40 to 43; Case C-180/04 Vassallo [2006] ECR I‑7251, paragraphs 32 to 35; and Del Cerro Alonso , paragraph 25).
39. Indeed, as is clear from clause 2(1) of the framework agreement, the personal scope of the agreement is conceived in broad terms, covering generally ‘fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State’ (see Adeneler and Others , paragraph 56; Joined Cases C‑378/07 to C‑380/07 Angelidaki and Others  [2009] ECR I‑3071, paragraph 114; and Case C‑98/09 Sorge [2010] ECR I‑0000, paragraph 30).
40. The definition of ‘fixed-term workers’ for the purposes of the framework agreement, set out in clause 3(1), encompasses all workers without drawing a distinction according to whether their employer is in the public, or private, sector ( Adeneler and Others , paragraph 56).
41. Furthermore, having regard to the importance of the principle of equal treatment and non-discrimination, which is one of the general principles of European Union (‘EU’) law, the provisions set out by Directive 1999/70 and the framework agreement for the purposes of ensuring that fixed-term workers enjoy the same benefits as those enjoyed by comparable permanent workers, except where a difference in treatment is justified by objective grounds, must be deemed to be of general application since they are rules of EU social law of particular importance, from which each employee should benefit as a minimum protective requirement ( Del Cerro Alonso , paragraph 27).
42. Accordingly, 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 ( Del Cerro Alonso , paragraph 28).
43. The mere fact that a post may be classified as ‘regulated’ under national law or has certain characteristics typical of the civil service in the Member State in question is irrelevant in that regard. Otherwise, in reserving to Member States the ability to remove at will certain categories of persons from the protection offered by Directive 1999/70 and the framework agreement, the effectiveness of those instruments of EU law would be in jeopardy as would their uniform application in the Member States (see Del Cerro Alonso , paragraph 29).
47. 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. 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 with that in view 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.
48. The framework agreement, in particular clause 4, aims to apply that principle 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 ( Del Cerro Alonso , paragraph 37).
49. According to the Court, in view of the objectives pursued by the framework agreement, as recalled in the preceding two paragraphs, clause 4 thereof must be interpreted as articulating a principle of EU social law which cannot be interpreted restrictively (see Del Cerro Alonso , paragraph 38, and Impact , paragraph 114).
50. In so far as the referring court is seeking, in the context of a dispute concerning the entitlement of interim civil servants to a length-of-service increment, an interpretation of the expression ‘different length-of service qualifications’, in clause 4(4) of the framework agreement, it should be noted that the Court of Justice has already ruled that a length-of-service payment identical to that at issue in the main proceedings, receipt of which was reserved under national law to the permanent regulated staff in the health service to the exclusion of temporary staff, is covered by the concept of ‘employment conditions’ referred to in clause 4(1) of the framework agreement ( Del Cerro Alonso , paragraphs 47 and 48).
51. As is apparent from the orders for reference, until the entry into force of the LEBEP on 13 May 2007, the regulations applicable to staff working in the public authorities of the Autonomous Community of Galicia, adopted in accordance with the LFCE, established a difference in treatment with regard to the payment of the three-yearly increments among the members of the staff of the Autonomous Community. That difference in treatment was determined not by reference to the seniority of the staff but by reference to the duration of the employment relationship linking them to their employer. Unlike established civil servants, interim civil servants were not entitled to the increments related to three-year periods of service, regardless of the duration of the periods of service they had completed.
52. In those circumstances, as the Commission correctly asserts, a difference in treatment such as that established by the Spanish legislation at issue in the main proceedings must be analysed in the light of clause 4(1) of the framework agreement.
53. As is apparent from the case-law of the Court, so far as length-of-service increments such as those at issue in the main proceedings are concerned, fixed-term workers must not be treated less favourably than permanent workers in a comparable situation, in the absence of any objective justification (see, to that effect, Del Cerro Alonso , paragraphs 42 and 47, and Impact , paragraph 126).
54. As to the question whether the temporary nature of the employment of certain public servants may, in itself, amount to an objective ground within the meaning of clause 4 of the framework agreement, the Court has already held that the concept of objective grounds in point 1 of that clause 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).
55. That concept requires the unequal treatment at issue to be justified by the existence of precise and concrete 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 achieving the objective pursued and is necessary for that purpose ( Del Cerro Alonso , paragraph 58). 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, as regards clause 4(1) of the framework agreement, Del Cerro Alonso , paragraphs 53 and 58; as regards the concept of ‘objective reasons’ in clause 5(1)(a) of the framework agreement, Adeneler and Others , paragraphs 69 and 70, and the order of 24 April 2009 in Case C‑519/08 Koukou , paragraph 45).
56. By contrast, reliance on the mere fact of the 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’ within the meaning of clause 4(1) of the framework agreement.
57. A difference in 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, recalled at paragraphs 47 and 48 of this judgment, would be negated. Instead of improving the quality of fixed-term work and promoting the equal treatment to which both Directive 1999/70 and the framework agreement aspire, reliance on such a criterion would amount to perpetuating a situation that is disadvantageous to fixed-term workers.
58. In those circumstances, the answer to the sole question raised in Case C‑444/09 is that a length-of-service increment such as that at issue in the main proceedings is, as an employment condition, covered by clause 4(1) of the framework agreement. Consequently, fixed-term workers may contest treatment which, with regard to payment of that increment, is less favourable than that which is given to permanent workers in a comparable situation and for which there is no objective justification. The temporary nature of the employment relationship of certain public servants is not, in itself, capable of constituting an objective ground within the meaning of that clause of the framework agreement.
The second question in Case C‑456/09
62. When a directive expressly requires that the measures transposing the directive contain a reference to it or be accompanied by such a reference at the time of their official publication, it is in any event necessary to adopt a specific measure transposing the directive (see Case C‑361/95 Commission v Spain [1997] ECR I-7351, paragraph 15, and judgment of 29 October 2009 in Case C‑551/08 Commission v Poland , paragraph 23).
72. The Member States’ obligation, arising from a directive, to achieve the result envisaged by that directive and their duty under Article 4(3) TEU to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation is binding on all the authorities of the Member States including, for matters within their jurisdiction, the courts. Such obligations devolve on those authorities, including, where appropriate, in their capacity as a public employer ( Impact , paragraphs 41 and 85 and the case-law cited).
73. Where they are unable to interpret and apply national law in compliance with the requirements of EU law, it is for the national courts and administrative bodies to apply EU law in its entirety and to protect rights which it confers on individuals, disapplying, if necessary, any contrary provision of domestic law (see, to that effect, Case 103/88 Costanzo [1989] ECR 1839, paragraph 33, and Case C‑243/09 Fuß [2010] ECR I‑00000, paragraph 63).
75. As the principle of effective legal protection is a general principle of EU law recognised, moreover, in Article 47 of the Charter of Fundamental Rights of the European Union, it is the responsibility of the national courts, in the absence of a measure correctly transposing Directive 1999/70 into Spanish law during the period concerned, to provide the legal protection which individuals derive from the rules of EU law and to ensure that those rules are fully effective (see, to that effect, Impact , paragraphs 42 and 43 and the case-law cited).
76. The Court has consistently held that, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon by individuals as against the State, particularly in its capacity as an employer (see, to that effect, inter alia, Case 152/84 Marshall [1986] ECR 723, paragraphs 46 and 49; Case C‑187/00 Kutz-Bauer [2003] ECR I‑2741, paragraphs 69 and 71; and Impact , paragraph 57).
77. The Court has already held that that case-law can be applied to agreements which, like the framework agreement, are the product of a dialogue, based on Article 155(1) TFEU, between management and labour at EU level and which have been implemented in accordance with Article 155(2) TFEU by a directive of the Council of the European Union, of which they are thus an integral component ( Impact , paragraph 58).
78. Clause 4(1) of the framework agreement prohibits, in a general manner and in unequivocal terms, any difference in treatment of fixed-term workers in respect of employment conditions which is not objectively justified. Thus, its subject-matter appears therefore to be sufficiently precise to be relied upon by an individual and to be applied by the national court ( Impact , paragraph 60, and Case C‑486/08 Zentralbetriebsrat der Landeskrankenhäuser Tirols [2010] ECR I‑00000, paragraph 24).
79. Furthermore, the precise prohibition laid down by clause 4(1) of the framework agreement does not require the adoption of any further measure of the EU institutions and does not in any way confer on Member States the right, when transposing it into domestic law, to limit the scope of the prohibition laid down in respect of employment conditions ( Impact , paragraph 62).
80. Admittedly, that provision includes, in relation to the principle of non-discrimination laid down therein, a qualification concerning justification on objective grounds.
81. However, the application of that qualification is subject to judicial control, although the possibility of relying on it does not preclude the view that the provision at issue confers on individuals rights which they may enforce in the national courts and which the latter must protect ( Impact , paragraph 64).
82. It should also be recalled that, where an individual is able to rely on a directive as against the State, he may do so regardless of the capacity in which the latter is acting, whether as employer or as public authority. In either case it is necessary to prevent the State from taking advantage of its own failure to comply with EU law (see, to that effect, Marshall , paragraph 49, and Case C‑188/89 Foster and Others  [1990] ECR I‑3313, paragraph 17).
83. It follows that clause 4(1) 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.
87. Since clause 4(1) of the framework agreement is unconditional and sufficiently precise for individuals to rely on it before a national court as against the State, the applicants in the main proceedings may properly enforce their claims for payment of the three-yearly length-of-service increments to which they have a retrospective entitlement and may do so directly on the basis of that clause. At first sight, therefore, an action for damages founded on the Court’s case-law relating to the liability of Member States for breaches of EU law does not seem necessary (see, to that effect, Case C‑150/99 Stockholm Lindöpark  [2001] ECR I‑493, paragraph 35).
95. The Court’s answer to the fourth question raised in the case giving rise to the judgment in Impact was based on the premiss that the referring court had jurisdiction only to rule on the complaints in the main proceedings in so far as they were based on an infringement of the national law transposing Directive 1999/70 ( Impact , paragraph 96). It was only in that situation and in so far as the national transposing law had made it impossible for retrospective effect to be given to its provisions that the Court stated, as recalled in paragraph 93 of this judgment, that EU law, in particular the obligation to interpret national law in conformity with EU law, could not – unless the referring court were to be compelled to apply the national law contra legem  – be interpreted as requiring that court to give the national transposing law concerned retrospective effect to the date by which Directive 1999/70 should have been transposed.