Case C‑619/17

Ministerio de Defensa

v

Ana de Diego Porras

(Request for a preliminary ruling from the Tribunal Supremo)

(Reference for a preliminary ruling — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clause 4 — Principle of non-discrimination — Justification — Clause 5 — Measures to prevent abuse arising from the use of successive fixed-term employment contracts or relationships — Compensation in the event of the termination of a permanent employment contract on objective grounds — No compensation on expiry of a fixed-term replacement employment contract (interinidad))

Summary — Judgment of the Court (Sixth Chamber), 21 November 2018

1. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Objective reasons justifying different treatment — Concept — Compensation in the event that a contract of indefinite duration is terminated on objective grounds — No compensation on expiry of a fixed-term ‘interinidad’ contract — Lawfulness

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

2. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Measures to prevent misuse of successive fixed-term employment contracts — Mandatory requirement to pay compensation to workers employed under certain fixed-term employment contracts on expiry of those contracts — Assessment by the national court as to whether such a domestic measure is adequate

   (Council Directive 1999/70, Annex, Clause 5)

3. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Measures to prevent misuse of successive fixed-term employment contracts — Mandatory requirement to pay compensation to workers employed under certain fixed-term employment contracts on expiry of those contracts — No requirement to pay compensation to workers employed under other categories of contracts — Lawfulness — Condition — Whether there is another measure that is effective for the purpose of penalising abuse with regard to such workers — Verification by the national court

   (Council Directive 1999/70, Annex, Clause 5)

1.  Clause 4(1) of the framework agreement on fixed-term work, concluded on 18 March 1999, which is annexed to Council 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 not precluding national legislation which does not provide for payment of any compensation to workers employed under fixed-term employment contracts concluded to replace a worker who has a reserved right to his post, such as the temporary replacement contract at issue in the main proceedings, on expiry of the period for which those contracts were concluded, although compensation is granted to permanent workers when their employment contract is terminated on an objective ground.

   Indeed, it follows from the definition of a fixed-term contract in Clause 3(1) of the framework agreement that a contract of that kind ceases to have any future effect on expiry on the term stipulated in the contract, that term being identified as the completion of a specific task, a specific date being reached or, as in the present case, the occurrence of a specific event. Thus, the parties to a fixed-term employment contract are aware, from the moment of its conclusion, of the date or event which determines its end. That term limits the duration of the employment relationship without the parties having to make their intentions known in that regard after entering into the contract (judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 60).

   By contrast, the termination of a permanent employment contract on one of the grounds set out in Article 52 of the Workers’ Statute, on the initiative of the employer, is the result of circumstances arising which were not foreseen at the date the contract was entered into and which disrupt the normal continuation of the employment relationship (judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 61). As is clear from the explanations of the Spanish Government, set out in paragraph 69 of this judgment, it is precisely in order to compensate for the unforeseen nature of the severance of the employment relationship for such a reason and, accordingly, the frustration of the legitimate expectations that the worker might then have had as regards the stability of that relationship, that Article 53(1)(b) of the Workers’ Statute requires in that case payment to the dismissed worker of compensation equivalent to 20 days’ salary for each year of service.

   In the latter situation, Spanish law makes no difference in treatment between fixed-term workers and comparable permanent workers, since Article 53(1)(b) of the Workers’ Statute provides for statutory compensation equivalent to 20 days’ salary per year of service in the undertaking to the worker, irrespective of whether his employment contract is a fixed-term or a permanent contract.

   In those circumstances, it must be considered that the specific purpose of the compensation for dismissal provided for in Article 53(1)(b) of the Workers’ Statute, like the particular context in which payment of that compensation is made, constitutes an objective ground that justifies the difference in treatment in question.

   (see paras 71-75, operative part 1)

2.  Clause 5 of the framework agreement on fixed-term work annexed to Directive 1999/70 must be interpreted as meaning that it is for the national court to assess, in accordance with all the applicable rules of its national law, whether a measure, such as that at issue in the main proceedings, which provides for the compulsory payment of compensation to workers employed under certain fixed-term employment contracts on expiry of the period for which those contracts were concluded constitutes an adequate measure for preventing and, where necessary, penalising the abuse arising from the use of successive fixed-term employment contracts or relationships or an equivalent legal measure, within the meaning of that provision.

   The payment of an end-of-contract compensation, such as that referred to in Article 49(1)(c) of the Workers’ Statute, would not allow the purpose of Clause 5 of the framework agreement, consisting in preventing abuse arising from the use of successive fixed-term contracts, to be achieved. Such a payment seems to be independent of any consideration relating to the lawful or abusive nature of the use of fixed-term contracts.

   Such a measure therefore does not appear to be an appropriate means of duly penalising the improper use of successive fixed-term employment contracts or relationships and of removing the consequences of the infringement of EU law and, consequently, does not seem in itself to constitute a sufficiently effective and deterrent measure to ensure that the measures taken pursuant to the framework agreement are fully effective, within the meaning of the case-law referred to in paragraph 87 of this judgment.

   (see paras 94-96, operative part 2)

3.  If the national court finds that a measure, such as that at issue in the main proceedings, which provides for the compulsory payment of compensation to workers employed under certain fixed-term employment contracts on expiry of the period for which those contracts were concluded, constitutes an adequate measure for preventing and, where necessary, penalising the abuse arising from the use of successive fixed-term employment contracts or relationships or an equivalent legal measure, within the meaning of Clause 5 of the framework agreement on fixed-term work annexed to Directive 1999/70, that provision must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, according to which the expiry of fixed-term employment contracts in certain categories gives rise to payment of compensation to the workers employed under those contracts, whereas the expiry of fixed-term employment contracts in other categories does not entail the grant of any compensation to the workers employed under the latter contracts, unless there is no other effective measure in the national legal order for avoiding and penalising such abuse with regard to the latter workers, which it is for the national court to ascertain.

   In that regard, it should be borne in mind that Clause 5 of the framework agreement does not preclude, in principle, treating misuse of successive fixed-term employment contracts or relationships differently according to the sector or category applicable to the staff in question, provided that the law of the Member State concerned provides, in that sector or with respect to that category of staff, another effective measure to prevent and penalise abuse (judgment of 14 September 2016, Martínez Andrés and Castrejana López, C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 48 and the case-law cited).

   Those considerations are capable of being transposed in full to a situation, such as that at issue in the main proceedings, in which the expiry of fixed-term employment contracts in certain categories gives rise to payment, to the workers employed under those contracts, of compensation, whereas the expiry of the fixed-term employment contracts in other categories does not entail the payment of any compensation.

   (see paras 98, 99, 101, operative part 3)