OPINION OF ADVOCATE GENERAL

POIARES MADURO

delivered on 10 January 2007 ¹(1)

Case C‑307/05

Yolanda Del Cerro Alonso

v

Osakidetza (Servicio Vasco de Salud)

(Reference for a preliminary ruling from the Juzgado de lo Social de San Sebastián (Spain))

(ETUC-UNICE-CEEP framework agreement – Fixed‑term work – Working conditions – Length‑of‑service allowance – Not received due to agreements between staff union and administration – Adequate objective grounds)

1.     By decision of 6 July 2005, the Juzgado de lo Social (Social Court) de San Sebastián (Spain) made a reference to the Court for a preliminary ruling under Article 234 EC concerning the interpretation of clause 4 of the framework agreement on fixed‑term work concluded by ETUC, UNICE and CEEP on 18 March 1999 (‘the framework agreement’), implemented by Council Directive 1999/70/EC of 28 June 1999 (OJ 1999 L 175, p. 43).

I –  Legal and factual background

2.     The facts in the case giving rise to this application are the following. Ms Del Cerro Alonso is an employee of a public hospital attached to the public health service of the Spanish Autonomous Community of the Basque Country. Having the status of regulated permanent staff, she claimed allowances in respect of earlier periods during which she worked as regulated temporary staff.

3.     Those length‑of‑service allowances are granted on the basis of the completion of three years of actual service. However, both Decree 231/2000 relating to the employment conditions of staff of the Servicio Vasco de Salud (Basque Health Service) and Law 55/2003 of 16 December 2003 relating to the framework regulations for regulated staff of the health services, which that decree implements in the Spanish Autonomous Community of the Basque Country, provide that the allowances are to be restricted to staff having the status of permanent staff.

4.     Since there was no response to her claim, Ms Del Cerro Alonso brought an application before the referring court. In answer to her claims, the public health service maintains that, since she did not have permanent staff status on the date to which her claim relates, the applicant is not entitled to such allowances.

5.     The proceedings before the referring court raised an issue of interpretation of Community law. It became clear that the refusal given to the applicant was liable to constitute discrimination against fixed‑term workers. Clause 4 of the framework agreement provides in that regard that ‘in respect of employment conditions, fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds’. The question must therefore be raised whether the grant of allowances such as those at issue in this case can be described as ‘employment conditions’ within the meaning of Directive 1999/70. That is the purport of the questions submitted by the Juzgado de lo Social de San Sebastián:

‘1.       Where Directive 1999/70/EC provides that fixed-term workers are not to be treated in a less favourable manner than comparable permanent workers, does this also refer to financial conditions?

If the answer is in the affirmative:

2.       Is the fact that Article 44 of Law 55/2003 … provides that fixed‑term workers are not entitled to the length‑of‑service allowance granted to permanent workers an adequate objective ground?

3.       Are the agreements concluded between the staff unions and the administration adequate objective grounds for not granting the length-of-service allowance to temporary staff?’

II –  Analysis

A –    Preliminary considerations

6.     This reference for a preliminary ruling raises a prior question relating to the applicability of Directive 1999/70 to the situation at issue. The referring court is in no doubt that regulated staff fall within the category of workers covered by that directive. It therefore refrains from raising that question in its reference. Not all the interveners share those certainties. That is true, in particular, of the Kingdom of Spain, which takes the view that Directive 1999/70 is not applicable to the main proceedings. It submits that the reference for a preliminary ruling is inadmissible.

7.     Before answering the questions referred, it must be ascertained that Directive 1999/70 is applicable to the situation at issue in so far as that situation concerns a member of the regulated staff who has public‑law status.

B –    Applicability of the directive to the situation at issue

8.     The scope of the directive is defined by clause 2(1) of the framework agreement. It provides that ‘this 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’.

9.     The Court has had occasion to examine that provision in its recent case‑law. (2) It is clear from this that the provisions of the framework agreement can apply to fixed-term employment contracts and relationships concluded with the public authorities and other public‑sector bodies. It is established that the concept of ‘fixed-term workers’ for the purposes of the framework agreement encompasses all workers without drawing a distinction according to whether their employer is in the public, or private, sector. It nevertheless remains to be ascertained whether it is necessary to make a distinction according to the status and nature of the relationship between public authorities and bodies and their staff. Directive 1999/70 applies to contract staff of public authorities. But does it apply to the regulated staff of those same authorities? That is the question raised in this case.

10.   In order to answer it in a positive manner, the national court invokes, in the grounds of its decision making the reference, the broad definition of ‘workers’ adopted in the Court’s case‑law on Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40). The Commission of the European Communities disputes the relevance of that reference in the context of the present case.

11.   The Court has held that there is no single definition of worker in Community law: it varies according to the area in which the definition is to be applied. (3) Thus, it is established that, in regard to equal treatment for male and female workers, the concept of worker is an independent concept in Community law and must be broadly interpreted. It is therefore possible that officials may be regarded as constituting a particular category of workers. (4) On the other hand, it is apparent that, in the area of safeguarding workers’ rights where undertakings are transferred, in which the directive adopted is intended to achieve only partial harmonisation, reference must be made to the definition adopted by national labour legislation. Consequently, if, under that legislation, a public‑law employee is not subject to labour law, he cannot be considered to be a worker within the meaning of Community law on transfers of undertakings. (5)

12.   It is true that Directive 1999/70 expressly makes reference to national law. However, it seems that the case‑law does not consider such a process to be decisive for the purposes of interpretation. The Court has held, in the context of the Directive concerning certain aspects of the organisation of working time, that the concept of ‘working time’ constitutes an independent concept of Community law which must be defined in accordance with objective characteristics, notwithstanding the fact that it is the subject in that directive of an express reference to national law. (6) Conversely, the Court has held, in an area closely related to that at issue in this case, governed by the Framework Agreement on part‑time work, that workers come within the scope of that agreement where they have a contract or employment relationship as defined by the law, collective agreement or practices in force in the Member State. (7)

13.   That difference in the treatment of references in social matters arises from the way in which the matter is approached, depending on whether the Court attaches more importance to the purpose or to the scheme of the rules subject to interpretation. As far as the organisation of working time is concerned, the Court points out that the directive in question pursues a fundamental social objective which is to guarantee better protection of the safety and heath of workers. Consequently, although that directive is limited to laying down minimum requirements for that purpose, only an autonomous interpretation of the concept of working time, guaranteeing uniform application, is capable of securing for that directive full efficacy. On the other hand, both in regard to transfers of undertakings and in regard to part‑time work, the Court (8) essentially accepts that the directive in question is not intended to establish a uniform level of protection in the Community or allows the Member States a certain discretion. In those circumstances, it must be acknowledged that the concept of worker is defined exclusively by reference to the applicable national law.

14.   In this case, I propose to adopt a slightly different approach. In principle, it is right to respect the wording of the framework agreement which leaves to national law the responsibility for defining the category of workers subject to the agreement. In this instance, it is apparent from the file that Ms Del Cerro Alonso, not being subject to labour law, does not enjoy, under the national law concerned, the status of worker. It will be for the national court to satisfy itself that that is the case. That assessment cannot, however, be carried out in isolation from any consideration of Community law. It must be borne in mind that the framework established by the framework agreement is intended to prevent, in a general way, abuse arising from the use of successive fixed‑term employment contracts or relationships. It may be inferred from this that the Member State must define and interpret the concept of ‘workers’ referred to by that agreement in such a way as to comply both with the objectives pursued by Directive 1999/70 and with the general principles of Community law, in particular the fundamental principle of equal treatment.

15.   That conditional renvoi appears to me to be the process which is most faithful to both the letter and the spirit of the Community legislation. The effect of it is that the Member State cannot merely rely on the formal or special nature of the rules applicable to certain employment relationships in order to exclude the latter from the benefit of the protection afforded by the framework agreement. If that were the case, there would be grounds for concern that the framework agreement could be rendered completely redundant. If it were the case, it would be open to any Member State to make the contract staff of public authorities subject to special rules in order to call in question the decisions adopted by the Court in Adeneler and Others, Marrosu and Vassallo. Consequently, the exclusion of public servants from the scope of Directive 1999/70 cannot be accepted unless it is demonstrated that the nature of the employment relationship between them and the administration is substantially different from that between employees falling, according to national law, within the category of ‘workers’ and their employers. The file appears to show that the Tribunal Supremo (Supreme Court) (Spain) has had occasion to rule on the content of the special relationship characterising the ties between a civil servant and the administration in the field covered by this case, rendering that relationship incomparable with the situation of workers who do not have the status of civil servants. However, it is for the national court to assess to what extent that assessment is consistent with the conditions laid down by Community law.

C –    The concept of employment conditions within the meaning of clause 4 of the framework agreement

16.   The first question referred by the national court relates in essence to the interpretation of the concept of ‘employment conditions’ within the meaning of clause 4 of the framework agreement. It seeks specifically to ascertain whether financial conditions and in particular the grant of allowances such as those provided for by Law 55/2003 come within the scope of the non‑discrimination clause laid down by that framework agreement.

17.   In the Commission’s view, the answer is not in doubt. It relies, firstly, on common sense in order to gain acceptance for its view that pay is the first and most important of working conditions. It points out, secondly, that there is no indication, either in the agreement or in the legislative context in which it is set, to the effect that pay is excluded from employment conditions. It does, admittedly, acknowledge that Article 139 EC, on which it bases its view, refers to Article 137 EC, which provides, in paragraph 5, that ‘the provisions of this article shall not apply to pay’. However, such a provision does not, in its view, preclude the adoption of legislation having incidental effects on pay.

18.   Like the States intervening in this case, I do not share that view.

19.   Both the wording and the purpose of the provisions of Directive 1999/70 appear to indicate that it does not apply to pay. According to the 14^th recital in the preamble to that directive, the signatory parties to the agreement have ‘demonstrated their desire to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination’. In addition, unlike other directives based on Article 13 EC, (9) Article 57(2)(c) EC and Article 66 EC (10) or Article 141 EC, (11) it makes no reference to pay conditions. In such cases, as the United Kingdom Government points out, the Court has held that the term ‘working conditions’ referred to by Directive 76/207 on equal treatment for men and women does not encompass pay. In particular in the McKenna case, (12) countering an argument put forward by the Commission to the effect that the sick leave scheme at issue in that case came under working conditions within the meaning of Directive 76/207 in the version prior to that resulting from its amendment by Directive 2002/73, on the ground that the effects on pay were merely incidental, the Court stated that ‘pay within the terms of Article 141 EC and Directive 75/117 cannot also come within the scope of Directive 76/207’.

20.   However, in the Commission’s view, the mere fact that the directive in question makes no mention of pay cannot exclude pay from its scope. The Court’s case­‑law on the interpretation of Directives 76/207 and 75/117 concerning equal treatment for men and women, relied on by the United Kingdom Government, is not relevant in this case. Although, by that case‑law, the Court intended to give a narrow interpretation of the concept of ‘working conditions’, it was because, in that field, there was a clear division between the sphere governed by Directive 75/117 which relates specifically to pay and the sphere covered by the later and more general Directive 76/207. The same is not true of the field covered by Directive 1999/70.

21.   It is true that, in certain cases, in the absence of any indication to the contrary, the term ‘working conditions’ may encompass pay. Thus, the Court has held, in the area of safeguarding the rights of workers where undertakings are transferred, that a reduction in the pay of the workers concerned by the transfer could be regarded as a ‘substantial change in working conditions’ within the meaning of Directive 77/187/EEC. (13) It should be pointed out, however, that the latter directive was adopted on the basis of the provisions of the EC Treaty relating to the establishment of the common market. By contrast, as in the case of the directives relating to equal treatment for men and women, the directive in question in this case relates to the social provisions of the Treaty. In that regard, it must be recalled that, according to settled case‑law, when it is necessary to interpret a provision of secondary Community law, preference must be given to the interpretation which renders the provision consistent with the Treaty. (14)

22.   The legal basis of Directive 1999/70 is to be found in Article 139(2) EC. In the words of that provision, ‘agreements concluded at Community level shall be implemented …, in matters covered by Article 137, at the joint request of the signatory parties, by a Council decision on a proposal from the Commission’ (my emphasis). However, it is clear from Article 137(5) EC that the Council is not authorised to adopt on that basis measures relating to pay. (15) In those circumstances, the absence of any reference to pay in Directive 1999/70 must be interpreted as an express intention to exclude it from its scope.

23.   However, the Commission disputes that interpretation. In its view, the Treaty should be interpreted as meaning that acts based on Article 137 EC cannot directly fix the level or nature of pay. On the other hand, it is quite permissible for the legislature to adopt legislation, such as that at issue, which has only indirect or incidental effects on pay. Only on that condition can the effectiveness of Article 137 EC be maintained. It follows that Member States are completely free to choose the procedures for determining and the level of pay, but they cannot allow fixed‑term workers to be discriminated against as regards that pay.

24.   That interpretation is certainly attractive. However, it receives no serious support from the text interpreted. Moreover, if it were accepted, it would be liable to render Article 137(5) EC meaningless. On that interpretation, it would be possible, in laying down rules on employment conditions, to determine pay conditions. However, it is quite obvious that the harmonisation of pay conditions is capable of having a direct effect on the level and nature of that pay. Such a consequence would be manifestly contrary to the intentions expressed by the framers of the Treaty in Article 137(5) EC. Whatever importance may be attached to the objective of equality of pay conditions for fixed‑term workers, the fact remains that Article 139(2) EC in conjunction with Article 137 EC unquestionably cannot constitute the appropriate basis for that purpose.

25.   It follows that, even though it is true that pay represents, for any worker, an essential employment condition, the fact nevertheless remains that Directive 1999/70 must be interpreted as meaning that clause 4 of the framework agreement which it implements excludes from its scope financial conditions and pay of any kind.

D –    The second and third questions

26.   Since these questions are submitted for the Court’s assessment if the answer given to the first question is in the affirmative, there is no need to answer them.

III –  Conclusion

27.   In the light of all the foregoing considerations, I propose that the Court should answer as follows the questions referred by the Juzgado de lo Social de San Sebastián:

‘Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP must be interpreted as meaning that:

–       fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in the Member State concerned fall within the scope of the framework agreement annexed to that directive. However, it is for the national court to satisfy itself that that qualification is applied in national law in such a way as to comply with the objectives pursued by Directive 1999/70 and the general principles of Community law, in particular the fundamental principle of equal treatment. The exclusion of a category of staff from the scope of that directive cannot be justified merely by the circumstance that that category is governed by special rules. On the contrary, the exclusion must be justified by the existence of a type of employment relationship which cannot be compared with employment relationships which are subject, under national law, to the provisions of the framework agreement;

–       clause 4 of the framework agreement annexed to Directive 1999/70 applies only to employment conditions, to the exclusion of pay.’

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1 – Original language: Portuguese.

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2 – See Case C‑212/04 Adeneler and Others [2006] ECR I‑0000, paragraphs 54 to 57; Case C‑53/04 Marrosu and Sardino [2006] ECR I‑0000, paragraphs 39 to 41; and Case C‑180/04 Vassallo [2006] ECR I‑0000, paragraph 32.

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3 – See Case C‑85/96 Martínez Sala [1998] ECR I‑2691, paragraph 31.

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4 – See Case C‑366/99 Griesmar [2001] ECR I‑9383, paragraph 31; Case C‑351/00 Niemi [2002] ECR I‑7007, paragraph 48; Joined Cases C‑4/02 and C‑5/02 Schönheitand Becker [2003] ECR I‑12575, paragraph 60; and Case C‑319/03 Briheche [2004] ECR I‑8807, paragraph 18.

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5 – See Case 105/84 Danmols Inventar [1985] ECR 2639, paragraphs 26 to 28, and Case C‑343/98 Collino and Chiappero [2000] ECR I‑6659, paragraphs 36 to 39.

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6 – See Case C‑151/02 Jaeger [2003] ECR I‑8389, paragraphs 58 and 59, and Case C‑14/04 Dellas and Others [2005] ECR I‑10253, paragraphs 44 and 45.

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7 – See Case C‑313/02 Wippel [2004] ECR I‑9483, paragraph 40.

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8 ^– Contrary to the opinion of Advocate General Alber who, attaching greater importance to the objective pursued by the directive of safeguarding the rights of workers when undertakings are transferred, advocated a broad interpretation of it which also encompassed civil servants (see his Opinion in Collino and Chiappero, cited above, points 67 to 79).

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9 – See Article 3(1)(c) of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22); see also Article 3 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

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10 – See Article 3(1)(c) of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1). For an application of that provision, reference may be made to Case C‑341/02 Commission v Germany [2005] ECR I‑2733.

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11 – See Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p. 19); see, subsequently, Article 3(1)(c) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40), as amended by Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 (OJ 2002 L 269, p. 15).

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12 – Case C‑191/03 [2005] ECR I‑7631, paragraph 30; see, earlier, to the same effect, Case C‑342/93 Gillespie and Others [1996] ECR I‑475, paragraph 24.

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13 – See Case C‑425/02 Delahaye [2004] ECR I‑10823, paragraph 33.

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14 – See Case C‑135/93 Spain v Commission [1995] ECR I‑1651, paragraph 37; or, at least, to an effect which is not conflicting, Case C‑47/90 Delhaize et Le Lion [1992] ECR I‑3669, paragraph 26.

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15 – As the Court’s case‑law has, moreover, confirmed: see Dellas and Others, cited above, paragraph 39.