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Document 62017CJ0619

Judgment of the Court (Sixth Chamber) of 21 November 2018.
Ministerio de Defensa v Ana de Diego Porras.
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 an objective ground — No compensation on expiry of a fixed-term temporary replacement employment contract.
Case C-619/17.

Digital reports (Court Reports - general - 'Information on unpublished decisions' section)

ECLI identifier: ECLI:EU:C:2018:936

JUDGMENT OF THE COURT (Sixth Chamber)

21 November 2018 ( *1 )

(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 an objective ground — No compensation on expiry of a fixed-term temporary replacement employment contract)

In Case C‑619/17,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Supremo (Supreme Court, Spain), made by decision of 25 October 2017, received at the Court on 3 November 2017, in the proceedings

Ministerio de Defensa

v

Ana de Diego Porras,

THE COURT (Sixth Chamber),

composed of J.‑C. Bonichot, President of the First Chamber, acting as President of the Sixth Chamber, A. Arabadjiev (Rapporteur) and C.G. Fernlund, Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

the Spanish Government, by A. Rubio González and A. Gavela Llopis, acting as Agents,

the European Commission, by M. van Beek and N. Ruiz García, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1

This request for a preliminary ruling concerns the interpretation of Clauses 4 and 5 of the framework agreement on fixed-term work, concluded on 18 March 1999 (‘the framework agreement’), 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 (OJ 1999 L 175, p. 43).

2

The request has been made in proceedings between the Ministerio de Defensa (Ministry of Defence, Spain) and Ms Ana de Diego Porras concerning the classification of the employment relationship between the parties and the payment of compensation following the termination of that relationship.

Legal framework

EU law

3

Recital 14 of Directive 1999/70 states:

‘The signatory parties wished to conclude a framework agreement on fixed-term work setting out the general principles and minimum requirements for fixed-term employment contracts and employment relationships; they have demonstrated their desire to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination, and to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships’.

4

According to Article 1 of Directive 1999/70, the purpose of that directive is ‘to put into effect the [framework agreement] …concluded … between the general cross-industry organisations (ETUC, UNICE and CEEP)’.

5

The first paragraph of Article 2 of that directive provides:

‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive [and shall be] required to take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by this Directive …’

6

The second paragraph of the preamble to the framework agreement is worded as follows:

‘The parties to this agreement recognise that contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers. They also recognise that fixed-term employment contracts respond, in certain circumstances, to the needs of both employers and workers.’

7

The third paragraph of that preamble states:

‘[The framework agreement] sets out the general principles and minimum requirements relating to fixed-term work, recognising that their detailed application needs to take account of the realities of specific national, sectoral and seasonal situations. 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 and for using fixed-term employment contracts on a basis acceptable to employers and workers.’

8

According to Clause 1 of the framework agreement, the purpose of that agreement is to (a) improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination and (b) establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

9

Clause 3 of the framework agreement, entitled ‘Definitions’, provides:

‘1.

For the purpose of this agreement the term “fixed-term worker” means a person having an employment contract or relationship entered into directly between an employer and a worker where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event.

2.

For the purpose of this agreement, the term “comparable permanent worker” means a worker with an employment contract or relationship of indefinite duration, in the same establishment, engaged in the same or similar work/occupation, due regard being given to qualifications/skills …’

10

Clause 4 of the framework agreement, entitled ‘Principle of non-discrimination’, provides, in paragraph 1:

‘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.’

11

Clause 5 of the framework agreement, entitled ‘Measures to prevent abuse’, states:

‘1.

To prevent abuse arising from the use of successive fixed-term employment contracts or relationships, Member States, after consultation with social partners in accordance with national law, collective agreements or practice, and/or the social partners, shall, where there are no equivalent legal measures to prevent abuse, introduce in a manner which takes account of the needs of specific sectors and/or categories of workers, one or more of the following measures:

(a)

objective reasons justifying the renewal of such contracts or relationships;

(b)

the maximum total duration of successive fixed-term employment contracts or relationships;

(c)

the number of renewals of such contracts or relationships.

2.

Member States after consultation with the social partners and/or the social partners shall, where appropriate, determine under what conditions fixed-term employment contracts or relationships:

(a)

shall be regarded as “successive”

(b)

shall be deemed to be contracts or relationships of indefinite duration.’

Spanish law

12

Article 15(1) of the Texto Refundido de la Ley del Estatuto de los Trabajadores (consolidated text of the Workers’ Statute), approved by Real Decreto Legislativo 1/1995 (Royal Legislative Decree 1/1995) of 24 March 1995 (BOE No 75 of 29 March 1995, p. 9654), in the version applicable at the material time (‘the Workers’ Statute’), states:

‘The employment contract may be concluded for an indefinite period or for a fixed period. A fixed-term employment contract may be concluded in the following cases:

(a)

when the worker is employed in order to complete a task which is specific, autonomous and separable from the undertaking’s activities as a whole, the performance of which, while being limited in time, is in principle for an indefinite period …

(b)

when market circumstances, an accumulation of work or an excess of orders so requires, even in the course of the normal activity of the company …

(c)

in case of replacement of workers who have a reserved right to their post, provided that the employment contract specifies the name of the replaced worker and the reason for the replacement.’

13

Article 15(3) of the Workers’ Statute provides that fixed-term contracts concluded in breach of the law are to be deemed to be concluded for an indefinite period.

14

According to Article 15(6) of that statute, temporary workers and those in fixed-term employment are to enjoy the same rights as workers employed for an indefinite period, without prejudice to the specific features of those contractual arrangements as regards termination of the contract, and those expressly laid down by law as regards training contracts.

15

Article 49(1) of the Workers’ Statute provides:

‘1.   The contract of employment shall be terminated:

(b)

on the grounds validly set out in the contract, unless they constitute a manifest abuse of rights on the part of the employer;

(c)

upon expiry of the period agreed or completion of the task or service forming the subject matter of the contract. Upon termination of the contract, except in the case of temporary replacement contracts and training contracts, the worker shall be entitled to receive compensation in an amount equivalent to the proportionate part of the amount corresponding to the receipt of 12 days’ salary per year of service, or the compensation provided for, where appropriate, by the specific regulations applicable in such matters;

(l)

on lawfully permissible objective grounds;

…’

16

In the words of Article 52 of the Workers’ Statute, ‘objective grounds’ capable of justifying the termination of the employment contract include, in particular, the inability of the worker, when it has become known or has occurred after he has actually joined the undertaking, the worker’s failure to adapt to the reasonable technical changes made to his post, economic or technical grounds or those relating to the organisation or to production, where the number of posts abolished is below that required in order for the termination of employment contracts to be classified as ‘collective dismissal’, and also, on certain conditions, repeated absences from work, even where they are justified.

17

In accordance with Article 53(1)(b) of the Workers’ Statute, the termination of an employment contract on one of the grounds set out in Article 52 of that statute is to result in the payment to the worker, at the same time as notice in writing is given, of compensation equivalent to 20 days’ salary per year of service, calculated in proportion to the number of months worked for periods of less than 1 year, up to a maximum of 12 monthly payments.

18

Under Article 56(1) of the Workers’ Statute, in the event of wrongful termination of an employment contract, the employer must either reinstate the worker in the undertaking or pay compensation equivalent to 33 days’ salary per year of service.

19

Article 4(1) of Real Decreto 2720/1998 por el que se desarrolla el artículo 15 del Estatuto de los Trabajadores en materia de contratos de duración determinada (Royal Decree 2720/1998 implementing Article 15 of the Workers’ Statute on fixed-term contracts) of 18 December 1998 (BOE No 7 of 8 January 1999, p. 568) defines the temporary replacement contract as the contract concluded in order to replace a worker in the undertaking who has a reserved right to his post under a regulation, a collective agreement or an individual agreement, or to provide temporary cover for a post during the recruitment or promotion procedure to provide permanent cover for that post.

20

According to Article 4(2) of that Royal Decree, the contract must identify, in particular, the worker who is being replaced and the ground for replacement or the post that will be definitively covered following the recruitment or promotion procedure. The duration of the temporary replacement contract concluded in order to replace a worker in the undertaking who has a reserved right to his post is to correspond to the duration of that worker’s absence. The duration of a temporary replacement contract concluded in order to provide temporary cover for a post during the recruitment or promotion procedure to provide permanent cover for that post is to correspond to the duration of that procedure. It may not exceed 3 months and a new contract having the same subject matter may not be concluded once that maximum period has expired. In recruitment procedures conducted by public authorities in order to fill posts, the duration of temporary replacement contracts is to coincide with those procedures in accordance with the provisions of their specific regulations.

21

Article 8(1) of the Royal Decree provides:

‘Fixed-term contracts shall be terminated, upon notice being given by one of the parties, on the following grounds:

(c)

A temporary replacement contract shall be terminated in the following cases:

(1)

on reinstatement of the replaced worker;

(2)

on expiry of the period fixed by law or by an agreement for reinstatement;

(3)

when the ground for maintaining the post has ceased to apply;

(4)

on expiry of a period of 3 months in recruitment or promotion procedures to fill posts on a permanent basis or of the applicable period in recruitment procedures within public authorities.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

22

Ms de Diego Porras was employed from February 2003, under several temporary replacement contracts, as a secretary in various sub-directorates of the Ministry of Defence. The last temporary replacement contract, concluded on 17 August 2005, was to replace Ms Mayoral Fernández, who was on full-time exemption from her professional duties in order to carry out a trade union mandate.

23

In accordance with Real Decreto-ley 20/2012 de medidas para garantizar la estabilidad presupuestaria y de fomento de la competitividad (Royal Decree-Law 20/2012 on measures to ensure budgetary stability and to encourage competitiveness) of 13 July 2012 (BOE No 168 of 14 July 2012, p. 50428), Ms Mayoral Fernández’s exemption from normal duties was revoked.

24

By letter of 13 September 2012, Ms de Diego Porras was summoned to sign the termination of her employment contract with effect from 30 September 2012 to allow Ms Mayoral Fernández to be reinstated in her post with effect from 1 October 2012.

25

On 19 November 2012, Ms de Diego Porras brought proceedings before the Juzgado de lo Social No 1 de Madrid (Labour Court No 1, Madrid, Spain) to challenge both the legality of her employment contract and the conditions under which it was terminated.

26

Following the dismissal of her action by judgment of 10 September 2013, the applicant lodged an appeal before the Tribunal Superior de Justicia de Madrid (High Court of Justice, Madrid, Spain), before which she submitted that the temporary replacement contracts, under which she was engaged, were concluded in breach of the law and that they should be reclassified as ‘contracts of employment of indefinite duration’. Therefore, the termination of such a contract would constitute wrongful dismissal and would entail payment of compensation equivalent to 33 days’ salary per year of service.

27

By decision of 9 December 2014, received at the Court on 22 December 2014, the Tribunal Superior de Justicia de Madrid (High Court of Justice, Madrid) submitted a request for a preliminary ruling under Article 267 TFEU.

28

In that decision, it found that Ms de Diego Porras’s engagement under a temporary replacement employment contract is consistent with the requirements arising from the national provisions in force and, furthermore, that the termination of the employment relationship between her and the Ministry of Defence is lawful.

29

The Tribunal Superior de Justicia de Madrid (High Court of Justice, Madrid) wondered, however, about Ms de Diego Porras’s right to claim payment of compensation owing to the termination of her employment contract. It considered that in Spanish law there is a difference in treatment in the conditions of employment between workers who have concluded a permanent employment contract and those who have concluded a fixed-term employment contract, in so far as the compensation paid in the event of the legal termination, on objective grounds, of the employment is 20 days’ salary per year of service for the former, whereas it amounts to 12 days’ salary per year of service only for the latter. According to that court, that inequality was even more striking in the case of workers engaged under temporary replacement employment contracts, for whom the national legislation recognises no compensation when that contract lawfully ends.

30

Taking the view that no objective ground justified such a difference in treatment, the Tribunal Superior de Justicia de Madrid (High Court of Justice, Madrid) expressed doubts as to the compatibility of the relevant provisions of Spanish law with the principle of non-discrimination between fixed-term workers and permanent workers laid down in Clause 4 of the framework agreement, as interpreted by the Court’s case-law.

31

That court submitted four questions to the Court for a preliminary ruling on the interpretation of that clause.

32

By judgment of 14 September 2016, de Diego Porras (C‑596/14, EU:C:2016:683), the Court replied, in particular, that that clause must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which fails to provide any compensation for termination of the contract of employment to a worker employed under a temporary replacement contract while allowing such compensation to be granted, in particular, to comparable workers employed under a contract of indefinite duration.

33

By judgment of 5 October 2016, the Tribunal Superior de Justicia de Madrid (High Court of Justice of Madrid) held, in particular, that both Ms de Diego Porras’s engagement under a temporary replacement contract and the termination of her employment relationship with the Ministry of Defence are consistent with the applicable Spanish legislation, that, however, that legislation is discriminatory, and that it is appropriate, in application of the case-law resulting from the judgment of14 September 2016, de DiegoPorras (C‑596/14, EU:C:2016:683), to grant her compensation equivalent to 20 days’ salary per year of service occasioned, under Spanish law, by her dismissal on economic or technical grounds or grounds relating to the organisation or to production.

34

The Ministry of Defence lodged an appeal on a point of law, for the purpose of unifying the case-law, against that first judgment before the Tribunal Supremo (Supreme Court, Spain).

35

That court considers that Ms de Diego Porras’s situation was indisputably comparable to that of a permanent worker having regard, in particular, to the duties which she performed.

36

It considers, however, that even though the fixed-term worker concerned performed the same duties as comparable permanent workers, the compensation on termination of a fixed-term employment contract cannot be compared with that paid because of the termination of an employment contract of indefinite duration on one of the grounds referred to in Article 52 of the Workers’ Statute, since an employment contract of indefinite duration cannot be terminated on the ground of the expiry of a period or the fulfilment of a condition.

37

On the other hand, the statutory compensation equivalent to 20 days’ salary per year of service in the undertaking, provided for in Article 53(1)(b) of the Workers’ Statute, applies when the employment contract is terminated on one of the grounds set out in Article 52 of the Workers’ Statute, irrespective of whether that contract is of fixed or indefinite duration. Thus, fixed-term workers and permanent workers are treated in the same way when the ground on which their employment relationship is terminated is the same.

38

In those circumstances, the referring court is unable to see the difference in treatment referred to in paragraph 21 of the judgment of 14 September 2016, de Diego Porras (C‑596/14, EU:C:2016:683).

39

It follows from that judgment that a single compensation must be payable in all situations in which the employment relationship is terminated, namely the equivalent of 20 days’ salary per year of service in the undertaking, even though those situations may be very different.

40

That compensation must thus be granted on expiry of the term of both temporary replacement contracts and other fixed-term employment contracts, which amounts to removing the difference between those two categories of fixed-term contracts established by the Spanish legislature when it adopted Article 49(1)(c) of the Workers’ Statute, which provides for payment of compensation equivalent to 12 days’ salary per year of service in the undertaking upon expiry of fixed-term employment contracts other than temporary replacement contracts.

41

Yet that difference does not upset the balance between fixed-term employment contracts and employment contracts of indefinite duration.

42

In the light of those considerations, the referring court wonders whether the expiry of a fixed-term employment contract must necessarily give rise to payment of compensation and, if so, whether that compensation must be set in the same way as the compensation payable in other situations in which the employment relationship is terminated.

43

It states, moreover, that its questions relate not so much to the existence of a difference in treatment between fixed-term workers and permanent workers as to whether, in providing for payment of compensation on termination of fixed-term employment contracts, with the exception of temporary replacement contracts, Spanish law introduced a measure designed to prevent abuse arising from the use of successive fixed-term employment contracts or relationships, within the meaning of Clause 5 of the framework agreement, only for fixed-term employment contracts other than temporary replacement contracts.

44

In fact, the compensation equivalent to 12 days’ salary per year of service in the undertaking, provided for in Article 49(1)(c) of the Workers’ Statute, was introduced by Real Decreto-ley 5/2001 (Royal Decree-Law 5/2001) of 2 March 2001 and by the Ley 12/2001 de medidas urgentes de reforma del mercado de trabajo para el incremento del empleo y la mejora de su calidad (Law on emergency measures to reform the labour market in order to increase employment and to improve the quality of employment) of 9 July 2001, in order to transpose Directive 1999/70 into the Spanish legal order. However, persons employed under temporary replacement contracts are expressly excluded from that compensation.

45

It is permissible to consider that that compensation, even though it is unconnected with the use of successive fixed-term employment contracts, constitutes a measure designed to comply with the obligations arising under Clause 5 of the framework agreement and to encourage the stability of employment.

46

In that context, the question arises whether the Spanish legislature could, without infringing Clause 5, exclude persons employed under temporary replacement contracts from that compensation.

47

In that regard, it follows from the judgment of 14 September 2016, Martínez Andrés and Castrejana López (C‑184/15 and C‑197/15, EU:C:2016:680), that a Member State cannot, while fulfilling its obligations under Clause 5(1) of the framework agreement, lay down different legal regimes depending on the different categories of staff.

48

However, as the temporary replacement contract involves two workers, namely the replacement worker and the replaced worker, it is distinguished from the other types of fixed-term employment contracts. In that regard, the referring court states that, while the compensation provided for in Article 49(1)(c) of the Workers’ Statute may have a deterrent effect on an employer seeking an easy way of reducing his staff, the fact none the less remains that that compensation does not have the same effect in the case of temporary replacement contracts, as the expiry of such a contract does not give rise to a reduction in staff.

49

In those circumstances, the Tribunal Supremo (Supreme Court) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1)

Must Clause 4 of [the framework agreement] be interpreted as precluding national legislation that does not provide for any compensation for termination of a temporary replacement contract, to replace another worker who has a reserved right to his post, when such termination is due to the reinstatement of the replaced worker, but does provide for compensation when the contract of employment is terminated on other legal grounds?

(2)

If the answer to Question 1 is in the negative, does Clause 5 of the framework agreement cover a measure such as that introduced by the Spanish legislature, consisting of fixing compensation of 12 days’ salary for every year of service, to be received by the worker at the end of a temporary contract even if the temporary employment has been limited to a single contract?

(3)

If the answer to Question 2 is in the affirmative, is a legal provision granting fixed-term workers compensation of 12 days’ salary for every year of service at the end of the contract, but excluding fixed-term workers from that measure when the contract is a temporary replacement contract to replace a worker who has a reserved right to his post, contrary to Clause 5 of the framework agreement?’

50

The referring court also requested the Court to deal with the present case under the expedited procedure provided for in Article 105(1) of the Rules of Procedure of the Court, or, if appropriate, to give it priority treatment, and also to give the case priority over, in particular, Cases C‑574/16, Grupo Norte Facility, and C‑677/16, Montero Mateos.

51

By order of 20 December 2017, de Diego Porras (C‑619/17, not published, EU:C:2017:1025), the President of the Court refused the Tribunal Supremo’s (Supreme Court’s) request that the present case be dealt with under the expedited procedure.

52

By judgment of 5 June 2018, Montero Mateos (C‑677/16, EU:C:2018:393), the Court (Grand Chamber) ruled, in essence, that Clause 4(1) of the framework agreement must be interpreted as not precluding national legislation which does not provide for any compensation to be paid to workers employed under fixed-term contracts, such as temporary replacement contracts concluded to cover a post temporarily during the recruitment or promotion procedure to fill the post permanently, on expiry of the term for which those contracts were concluded, whereas compensation is payable to permanent workers when their employment contract is terminated on objective grounds.

Consideration of the questions referred

First question

53

By its first question, the referring court asks, in essence, whether Clause 4(1) of the framework agreement must be interpreted as meaning that it precludes national legislation which does not provide for payment of any compensation to workers employed under fixed-term employment contracts concluded in order to replace a worker with 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, when compensation is granted to permanent workers when their employment contract is terminated on an objective ground.

54

In that regard, it should be recalled 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, to this end, that the aim of the framework agreement is, inter alia, 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, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 39 and the case-law cited).

55

The framework agreement, in particular Clause 4 thereof, aims 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, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 40 and the case-law cited).

56

In view of the objectives pursued by the framework agreement, as referred to in the two preceding paragraphs, Clause 4 of the agreement must be interpreted as articulating a principle of EU social law, which cannot be interpreted restrictively (judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 41 and the case-law cited).

57

It is important to bear in mind that Clause 4(1) of the framework agreement prohibits, with regard to employment conditions, less favourable treatment of fixed-term workers by comparison with permanent workers, on the sole ground that they are employed for a fixed term, unless different treatment is justified on objective grounds.

58

In the present case, it should be noted, in the first place, that as Ms de Diego Porras’s employment contract provided that it would end on the occurrence of a specific event, namely the reinstatement of the replaced worker in her post, she must be considered to be a ‘fixed-term worker’ within the meaning of Clause 3(1) of the framework agreement.

59

It should be noted, in the second place, that the compensation granted to the worker because of the termination of his contract of employment with his employer, such as that at issue in the main proceedings, comes within the concept of ‘employment conditions’ within the meaning of Clause 4(1) of the framework agreement (see, to that effect, judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraphs 44 to 48 and the case-law cited).

60

It is important to bear in mind, in the third place, 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 different situations should not be treated alike, unless such treatment is objectively justified (judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 49 and the case-law cited).

61

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 a comparable situation (judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 50 and the case-law cited).

62

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 must be determined, in accordance with Clauses 3(2) and 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, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 51 and the case-law cited).

63

In the present case it is for the referring court, which alone has jurisdiction to assess the facts, to determine whether Ms de Diego Porras, when she was engaged by the Ministry of Defence under a fixed-term contract, was in a situation comparable to that of employees hired for an indefinite duration by the same employer during the same period (see, by analogy, judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 52).

64

Nonetheless, it is apparent from the material before the Court that when she was engaged by the Ministry of Defence under a temporary replacement contract, Ms de Diego Porras performed the same secretarial duties as the worker whom she replaced.

65

Accordingly, subject to the definitive assessment by the referring court in the light of all of the relevant evidence, it must be considered that the situation of a fixed-term worker such as Ms de Diego Porras was comparable to that of a permanent worker engaged by the Ministry of Defence to perform the same secretarial duties.

66

Therefore, in the fourth place, it must be ascertained whether there is an objective ground that would justify the expiry of a temporary replacement contract, such as that at issue in the main proceedings, not giving rise to payment of any compensation to the fixed-term worker, although a permanent worker receives compensation when he is dismissed on one of the grounds set out in Article 52 of the Workers’ Statute.

67

In that regard, it should be borne in mind 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 different treatment is provided for by a general or abstract measure, such as a law or a collective agreement (judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 56 and the case-law cited).

68

That concept requires, according to equally settled case-law, 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 pursuit of a legitimate social-policy objective of a Member State (judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 57 and the case-law cited).

69

In the present case, the Spanish Government refers to the difference that characterises the context in which the grounds for termination of fixed-term contracts set out in Article 49(1)(c) of the Workers’ Statute, such as the expiry of a temporary replacement contract, arise, by comparison with the context in which payment of compensation is provided for in the event of dismissal on one of the grounds set out in Article 52 of that statute, such as economic or technical grounds or grounds relating to the organisation or to production with the employer, when the number of posts abolished is below that required in order for the cancellation of the employment contracts to be classified as ‘collective dismissal’. In order to explain the difference in treatment at issue in the main proceedings, the Spanish Government emphasises, in essence, that in the former situation the severance of the employment relationship occurs on the occasion of an event that could be foreseen by the worker at the time when the fixed-term employment contract was concluded, which indeed corresponds with the situation at issue in the main proceedings, where the temporary replacement contract was cancelled by the effect of the reinstatement of the replaced worker. In the latter situation, on the other hand, payment of the compensation provided for in Article 53(1)(b) of the Workers’ Statute would be motivated by the desire to compensate for the worker’s legitimate expectations regarding the continuation of the employment relationship being disappointed as a result of his dismissal on one of the grounds set out in Article 52 of that statute.

70

In that regard, it should be observed that the cancellation of Ms de Diego Porras’s temporary replacement employment contract, owing to the reinstatement of the replaced worker, belongs to an appreciably different context, from a factual and legal viewpoint, from that in which a permanent worker’s employment contract is terminated on one of the grounds set out in Article 52 of the Workers’ Statute.

71

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 of 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).

72

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 disappointment 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.

73

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.

74

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.

75

Having regard to the foregoing considerations, the answer to the first question should be that Clause 4(1) of the framework agreement must be interpreted as meaning that it does not preclude 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.

Second question

Admissibility

76

The Spanish Government maintains that the second question is not relevant to the outcome of the main proceedings. Clause 5 of the framework agreement concerns only abuse arising from the use of successive fixed-term employment contracts or relationships and cases of infringement of the law. In this dispute, there is neither fraudulent use of a fixed-term employment contract nor abuse of such contracts. In addition, the dispute in the main proceedings concerns only a single fixed-term employment contract.

77

In that regard, it should be borne in mind that, according to the Court’s settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 27 June 2018, Altiner and Ravn, C‑230/17, EU:C:2018:497, paragraph 22).

78

In this instance, it is apparent from the file before the Court that Ms de Diego Porras was employed, from February 2003, under a number of temporary replacement employment contracts, as a secretary in various sub-directorates of the Ministry of Defence.

79

In that regard, it follows from Clause 5(2)(a) of the framework agreement that it is for the Member States to determine the conditions under which fixed-term employment contracts or relationships are to be regarded as ‘successive’.

80

In fact, the interpretation of national provisions falls within the exclusive jurisdiction of the national courts (see, to that effect, judgment of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 32).

81

In those circumstances, it is not ‘quite obvious’ that the interpretation of Clause 5 of the framework agreement requested by the referring court in the context of its second question is unrelated to the actual facts of the main action or its object, or that that question relates to a hypothetical problem.

82

The second question is therefore admissible.

Substance

83

By its second question, the referring court asks, in essence, whether Clause 5 of the framework agreement must be interpreted as meaning 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 a measure designed to prevent and, where necessary, to penalise abuse arising from the use of successive fixed-term contracts or relationships or an equivalent legal measure, within the meaning of that provision.

84

In that regard, it should be borne in mind that Clause 5 of the framework agreement, the purpose of which is to implement one of the objectives of that agreement, namely to place limits on the use of successive fixed-term employment contracts or relationships, requires Member States, in paragraph 1 thereof, to adopt one or more of the measures listed in a manner that is effective and binding, where domestic law does not include equivalent legal measures. The measures listed in Clause 5(1)(a) to (c), of which there are three, relate, respectively, to objective reasons justifying the renewal of such employment contracts or relationships, the maximum total duration of successive fixed-term employment contracts or relationships, and the number of renewals of such contracts or relationships (judgment of 14 September 2016, Martínez Andrés and Castrejana López, C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 35 and the case-law cited).

85

The Member States enjoy a certain discretion in that regard since they have the choice of relying on one or more of the measures listed in Clause 5(1)(a) to (c) of the framework agreement, or on existing equivalent legal measures, while taking account of the needs of specific sectors and/or categories of workers (judgment of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 27 and the case-law cited).

86

In that way, Clause 5(1) of the framework agreement assigns to the Member States the general objective of preventing such abuse, while leaving to them the choice as to how to achieve it, provided that they do not compromise the objective or the practical effect of the framework agreement (judgment of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 28 and the case-law cited).

87

Clause 5 of the framework agreement does not lay down any specific sanctions where instances of abuse have been established. In such a case, it is incumbent on the national authorities to adopt measures that are not only proportionate, but also sufficiently effective and a sufficient deterrent to ensure that the measures taken pursuant to the framework agreement are fully effective (judgment of 14 September 2016, Martínez Andrés and Castrejana López, C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 36 and the case-law cited).

88

Where abuse arising from the use of successive fixed-term employment contracts or relationships has taken place, a measure offering effective and equivalent guarantees for the protection of workers must be capable of being applied in order duly to penalise that abuse and nullify the consequences of the breach of EU law. According to the very wording of Article 2(1) of Directive 1999/70, Member States must ‘take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by [that] directive’ (judgment of 14 September 2016, Martínez Andrés and Castrejana López, C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 38 and the case-law cited).

89

It should be borne in mind, moreover, that it is not for the Court to rule on the interpretation of provisions of national law, that being exclusively for the national courts having jurisdiction, which must determine whether the requirements set out in Clause 5 of the framework agreement are met by the provisions of the applicable national legislation (judgment of 14 September 2016, Martínez Andrés and Castrejana López, C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 42 and the case-law cited).

90

It is therefore for the referring court to determine to what extent the conditions for application and the actual implementation of the relevant provisions of national law render the latter an appropriate measure for preventing and, where necessary, penalising the misuse of successive fixed-term employment contracts or relationships (judgment of 14 September 2016, Martínez Andrés and Castrejana López, C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 43 and the case-law cited).

91

The Court, when giving a preliminary ruling, may, however, provide clarification designed to give the referring court guidance in its assessment (judgment of 14 September 2016, MartínezAndrés and Castrejana López, C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 44 and the case-law cited).

92

In that regard, it should be observed 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, does not at first sight fall within one of the categories of measures designed to prevent abuse and referred to in Clause 5(1)(a) to (c) of the framework agreement.

93

Nor does such a national measure appear to constitute an ‘equivalent legal measure [designed to] prevent abuse’, within the meaning of that provision.

94

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.

95

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.

96

Having regard to the foregoing considerations, the answer to the second question should be that Clause 5 of the framework agreement 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.

Third question

97

By its third question, which is submitted in the event that the second question is answered in the affirmative, the referring court seeks to ascertain, in essence, whether Clause 5 of the framework agreement must be interpreted as meaning that it precludes national legislation, such as that at issue in the main proceedings, according to which the expiry of the 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 grant, to the workers employed under those contracts, of any compensation.

98

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).

99

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 the 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.

100

Therefore, even if the referring court should find that the compulsory payment of the compensation referred to in Article 49(1)(c) of the Workers’ Statute constitutes a measure designed to prevent 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, the fact that that compensation is granted solely on the expiry of fixed-term employment contracts other than temporary replacement contracts would be likely to compromise the objective and the practical effect of the framework agreement only if there is no other effective measure in Spanish law for avoiding and penalising abuse with regard to workers employed under temporary replacement contracts, which it is for the referring court to ascertain.

101

Having regard to the foregoing considerations, the answer to the third question should be that, 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, that provision must be interpreted as meaning that it does not preclude national legislation, such as that at issue in the main proceedings, according to which the expiry of the 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.

Costs

102

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

 

On those grounds, the Court (Sixth Chamber) hereby rules:

 

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 meaning that it does not preclude 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.

 

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.

 

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 meaning that it does not preclude national legislation, such as that at issue in the main proceedings, according to which the expiry of the fixed-term employment contracts in certain categories gives rise to payment of compensation to the workers employed under those contracts, whereas the expiry of the 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.

 

[Signatures]


( *1 ) Language of the case: Spanish.

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