Joined Cases C-302/11 to C-305/11

Rosanna Valenza and Others

v

Autorità Garante della Concorrenza e del Mercato

(References for a preliminary ruling from the Consiglio di Stato)

‛Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clause 4 — Fixed-term employment contracts in the public sector — National Competition Authority — Stabilisation procedure — Recruitment of workers employed for a fixed term as career civil servants without a public competition — Determination of length of service — Complete disregard of periods of service completed under fixed-term employment contracts — Principle of non-discrimination’

Summary – Judgment of the Court (Sixth Chamber), 18 October 2012

1. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Scope — Fixed-term employment contract in the public sector — Worker employed for a fixed term recruited as a career civil servant without a public competition — Inclusion

   (Council Directive 1999/70, Annex, clause 4)

2. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Workers doing similar work — ‘Similar work’ — Meaning — Workers in a comparable situation — Criteria for assessment — Nature of the work, training requirements and working conditions — Powers of review of the national court

   (Council Directive 1999/70, Annex, clauses 3(2) and 4(1))

3. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Prohibition on discriminating against fixed-term workers — Worker employed for a fixed term recruited as a career civil servant without a public competition — Failure to take account, in order to determine length of service, of periods of service completed under a fixed-term contract — Not permissible

   (Council Directive 1999/70, Annex, clause 4(1) and (4))

1.  See the text of the decision.

   (see paras 33-38)

2.  See the text of the decision.

   (see paras 42-44)

3.  Clause 4 of the framework agreement on fixed-term work, which is annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be understood as precluding national legislation which completely prohibits periods of service completed by a fixed-term worker for a public authority being taken into account in order to determine the length of service of that worker upon his recruitment on a permanent basis by that same authority as a career civil servant under a stabilisation procedure specific to his employment relationship, unless that prohibition is justified on ‘objective grounds’ for the purposes of clause 4(1) and/or (4). The mere fact that the fixed-term worker completed those periods of service on the basis of a fixed-term employment contract or relationship does not constitute such an objective ground.

   Moreover, although the objective of preventing reverse discrimination against career civil servants recruited after passing a general competition may constitute an ‘objective ground’ for the purposes of clause 4(1) and/or (4) of the framework agreement, it cannot, in any event, justify disproportionate national legislation which completely and in all circumstances prohibits all periods of service completed by workers under fixed-term employment contracts being taken into account in order to determine the length of service of those workers upon their recruitment on a permanent basis and, thus, their level of remuneration. Such a complete and absolute prohibition is essentially based on the general premiss that the permanent nature of the employment relationship of certain public officials in itself justifies a difference in treatment with respect to public officials employed on a fixed-term basis, thereby rendering the objectives of Directive 1999/70 and of the framework agreement meaningless.

   As regards the fact that the stabilisation procedure gives rise, in national law, to a new employment relationship, the principle of non-discrimination set out in clause 4 of the framework agreement would be devoid of all content if that fact alone were able to constitute an ‘objective ground’ for the purposes of that clause capable of justifying a difference in treatment concerning taking into account, upon the recruitment on a permanent basis by a public authority of previously fixed-term workers, the length of service accrued by those workers for that authority under their fixed-term employment contracts.

   (see paras 62, 63,65, 71, operative part)

Joined Cases C-302/11 to C-305/11

Rosanna Valenza and Others

v

Autorità Garante della Concorrenza e del Mercato

(References for a preliminary ruling from the Consiglio di Stato)

‛Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clause 4 — Fixed-term employment contracts in the public sector — National Competition Authority — Stabilisation procedure — Recruitment of workers employed for a fixed term as career civil servants without a public competition — Determination of length of service — Complete disregard of periods of service completed under fixed-term employment contracts — Principle of non-discrimination’

Summary – Judgment of the Court (Sixth Chamber), 18 October 2012

1. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Scope — Fixed-term employment contract in the public sector — Worker employed for a fixed term recruited as a career civil servant without a public competition — Inclusion

   (Council Directive 1999/70, Annex, clause 4)

2. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Workers doing similar work — ‘Similar work’ — Meaning — Workers in a comparable situation — Criteria for assessment — Nature of the work, training requirements and working conditions — Powers of review of the national court

   (Council Directive 1999/70, Annex, clauses 3(2) and 4(1))

3. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Prohibition on discriminating against fixed-term workers — Worker employed for a fixed term recruited as a career civil servant without a public competition — Failure to take account, in order to determine length of service, of periods of service completed under a fixed-term contract — Not permissible

   (Council Directive 1999/70, Annex, clause 4(1) and (4))

1.  See the text of the decision.

   (see paras 33-38)

2.  See the text of the decision.

   (see paras 42-44)

3.  Clause 4 of the framework agreement on fixed-term work, which is annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be understood as precluding national legislation which completely prohibits periods of service completed by a fixed-term worker for a public authority being taken into account in order to determine the length of service of that worker upon his recruitment on a permanent basis by that same authority as a career civil servant under a stabilisation procedure specific to his employment relationship, unless that prohibition is justified on ‘objective grounds’ for the purposes of clause 4(1) and/or (4). The mere fact that the fixed-term worker completed those periods of service on the basis of a fixed-term employment contract or relationship does not constitute such an objective ground.

   Moreover, although the objective of preventing reverse discrimination against career civil servants recruited after passing a general competition may constitute an ‘objective ground’ for the purposes of clause 4(1) and/or (4) of the framework agreement, it cannot, in any event, justify disproportionate national legislation which completely and in all circumstances prohibits all periods of service completed by workers under fixed-term employment contracts being taken into account in order to determine the length of service of those workers upon their recruitment on a permanent basis and, thus, their level of remuneration. Such a complete and absolute prohibition is essentially based on the general premiss that the permanent nature of the employment relationship of certain public officials in itself justifies a difference in treatment with respect to public officials employed on a fixed-term basis, thereby rendering the objectives of Directive 1999/70 and of the framework agreement meaningless.

   As regards the fact that the stabilisation procedure gives rise, in national law, to a new employment relationship, the principle of non-discrimination set out in clause 4 of the framework agreement would be devoid of all content if that fact alone were able to constitute an ‘objective ground’ for the purposes of that clause capable of justifying a difference in treatment concerning taking into account, upon the recruitment on a permanent basis by a public authority of previously fixed-term workers, the length of service accrued by those workers for that authority under their fixed-term employment contracts.

   (see paras 62, 63,65, 71, operative part)