1.

Is discrimination present where a fixed-term worker in the public sector has no right to reinstatement in the event of the unlawful termination of his employment contract by his employer, whereas a permanent public servant is specifically guaranteed such a right by law?

2.

This, in essence, is the question which the Court must address in the present preliminary ruling proceedings. Attention thus turns once again to the legal position of fixed-term workers in Spain, more specifically in the context of a particular variety of fixed-term employment, the ‘temporary replacement contract’ ( 2 ) in use in the public sector, which is subsequently converted into a ‘non-permanent contract of indefinite duration’.

3.

In particular, this case concerns the situation of a Spanish nurse, Gardenia Yolanda Vernaza Ayovi, who was dismissed on disciplinary grounds and is now pursuing before the domestic courts a claim for reinstatement to her hospital post. The point of issue is whether Ms Vernaza Ayovi will have a legal right to reinstatement in the same way as a permanent public servant if her dismissal proves to be unlawful. The assessment of this issue will involve not least an examination of the specific features of employment in the public sector.

4.

This case is one in a series of references for a preliminary ruling on the principle of non-discrimination against fixed-term workers, more than one of which is concerned with the legal issues surrounding the Spanish temporary replacement contract, while a number of others relate to other types of fixed-term employment contract in Spain. ( 3 )

5.

The Court’s judgment in this case may form another piece in the jigsaw comprising its case-law on the protection of fixed-term workers against abuse and discrimination, which has been a social concern of the European Union for some time.

6.

The EU-law framework for this case is made up of Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP ( 4 ) (‘Directive 1999/70’). According to Article 1 thereof, that directive puts into effect the framework agreement on fixed-term work (also referred to as ‘the Framework Agreement’) which was concluded on 18 March 1999 between three general cross-industry organisations (ETUC, UNICE and CEEP) and is annexed to the Directive.

7.

The overarching aim of the Framework Agreement is to set out ‘the general principles and minimum requirements for fixed-term employment contracts and employment relationships’ and thereby ‘to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination …’. ( 5 ) 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’. ( 6 )

8.

Furthermore, the Framework Agreement is underpinned by the consideration ‘that contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers’. ( 7 ) At the same time, however, the Framework Agreement recognises that fixed-term contracts ‘are a feature of employment in certain sectors, occupations and activities which can suit both employers and workers’. ( 8 ) It aims to be a ‘contribution towards achieving a better balance between flexibility in working time and security for workers’. ( 9 )

9.

Clause 1 of the Framework Agreement defines the purpose of that agreement as follows:

‘The purpose of this Framework Agreement is to:

10.

On the scope of the Framework Agreement, Clause 2(1) thereof provides:

‘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’.

11.

Clause 3 of the Framework Agreement contains the following definitions:

‘For the purpose of this Agreement:

12.

Clause 4(1) of the Framework Agreement is headed ‘principle of non-discrimination’ and includes the following provision:

‘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’.

13.

The relevant provisions of Spanish law are those contained in the Basic Statute for Public Employees ( 10 ) and the Workers’ Statute. ( 11 )

14.

Public servants in Spain are either established officials or contract staff.

15.

Contract staff are employed on the basis of employment contracts and, for the purposes of the present case, can be subdivided in to three categories:

16.

In accordance with the case-law of the Tribunal Supremo (Spain), ( 12 ) workers deemed to be contract staff employed on an indefinite but non-permanent basis within the meaning of the second category include, inter alia, those improperly appointed on the basis of fixed-term employment contracts. However, even a temporary replacement contract can give rise to a non-permanent employment relationship of indefinite duration.

17.

Article 56(1) and (2) of the Workers’ Statute provides that, in the event of the wrongful dismissal of a worker, the employer may, in principle, choose between reinstating the worker and paying him the salary he would have received from the time of his dismissal to the time of the judicial declaration as to the wrongfulness of that dismissal, or paying him compensation in an amount equal to 33 days’ salary per year of service, up to a maximum of 24 months’ salary.

18.

The provisions of Article 56(1) and (2) of the Workers’ Statute apply both to workers in the private sector and to certain categories of public servants, namely, on the one hand, public servants on fixed-term contracts and, on the other hand, public servants employed on an indefinite but non-permanent basis, that is to say the second and third categories referred to in point 15 above.

19.

By way of derogation from the foregoing, Article 96(2) of the Basic Statute for Public Employees provides that permanent public servants are to be reinstated in cases where, following disciplinary proceedings for a serious dereliction of duty, their dismissal is declared wrongful.

20.

The temporary replacement contract is a particular kind of contract which is governed by a provision implementing the Workers’ Statute, namely Article 4 of Royal Decree 2720/1998. ( 13 ) That contract may be concluded in order to replace a worker who has a reserved right to his post under legislation or a collective or individual agreement. That contract may also be concluded to provide temporary cover for a post while the selection or promotion procedure for filling that post permanently takes place.

21.

Ms Vernaza Ayovi was employed as a nurse in Spain from 30 May 2006. She was originally employed by the Fundació Sant Llàtzer, until the employment relationship was transferred a short time later to the Consorci Sanitari de Terrassa. ( 14 ) The Consorci is a legal person forming part of the public sector in Spain and governed by public law which operates Terrassa Hospital. Ms Vernaza Ayovi worked there initially on a part-time basis and subsequently as a full-time member of staff on the late shift.

22.

Ms Vernaza Ayovi’s employment relationship was based, first, on an initial fixed-term temporary replacement contract beginning on 30 May 2006 and ending on 14 August 2006 and, then, from 15 August 2006, on a further fixed-term temporary replacement contract which, on 28 December 2006, was converted into a non-permanent employment relationship of indefinite duration within the meaning of Spanish case-law. ( 15 )

23.

On 20 July 2011, Ms Vernaza Ayovi asked for leave on personal grounds which was initially granted for a year and was later extended for two further periods of one year each.

24.

When, on 19 June 2014, Ms Vernaza Ayovi asked to be reinstated, the Consorci informed her that there were no suitable or equivalent nursing posts vacant in her previous specialism at that time. As a result, Ms Vernaza Ayovi participated unsuccessfully in five internal recruitment procedures. Finally, the Consorci awarded her a part-time, late-shift position equal to 46.66% [of full-time employment] on the basis of a non-permanent contract of indefinite duration.

25.

Ms Vernaza Ayovi then stated that she was unwilling to accept any change to the employment conditions which had been applicable to her prior to her leave on personal grounds and, in May 2016, also rejected the duty roster which had been issued to her.

26.

When Ms Vernaza Ayovi failed to turn up for work at the times indicated in the duty roster, she initially received a warning of disciplinary action, disciplinary proceedings having finally been initiated against her. In the course of those proceedings, on 15 July 2016, Ms Vernaza Ayovi was dismissed on disciplinary grounds for absence from work without leave.

27.

On 26 August 2016, Ms Vernaza Ayovi brought before the Juzgado de lo Social No 2 de Terrassa (Labour Court No 2, Terrassa, Spain), ( 16 ) the referring court, an action against her dismissal on disciplinary grounds. She considers her dismissal to have been unlawful and claims that the Consorci should be ordered either to reinstate her under the same employment conditions as were applicable to her prior to her dismissal and pay the arrears of salary owed to her, or to pay her the maximum amount of compensation available in law.

28.

By order of 26 January 2017, received on 22 February 2017, the Juzgado de lo Social No 2 de Terrassa (Labour Court No 2, Terrassa) referred the following questions to the Court of Justice for a preliminary ruling under Article 267 TFEU:

29.

In the preliminary ruling proceedings before the Court of Justice, written observations have been submitted by the Consorci Sanitari de Terrassa, the Spanish Government and the European Commission. The same parties, together with Ms Vernaza Ayovi, were represented at the hearing on 7 December 2017.

30.

Spain challenges the Court’s jurisdiction to respond to the request for a preliminary ruling, on the ground that the employment relationship between Ms Vernaza Ayovi and the Consorci is a purely private-law relationship to which the contested provisions on the statutory legal right to reinstatement contained in Article 96(2) of the Basic Statute for Public Employees are not applicable.

31.

In accordance with Article 267 TFEU, the Court of Justice has jurisdiction to give preliminary rulings on the interpretation of EU law. Since both Directive 1999/70, together with the Framework Agreement annexed to it, and Article 20 of the Charter of Fundamental Rights are provisions of EU law, there can be no doubt about the Court’s jurisdiction to answer the questions referred.

32.

In reality, moreover, the issue raised by Spain has less to do with the Court’s jurisdiction and more with the admissibility of the request for a preliminary ruling. What Spain is alluding to here is the referral of purely hypothetical questions which have nothing to do with the facts of the dispute before the national court, an allusion which it justifies by reference to the fact that a worker such as Ms Vernaza Ayovi is precluded from the outset from relying on Article 96(2) of the Basic Statute for Public Employees.

33.

It is that very fact, however, which constitutes the real issue of EU law raised by the present case. It is precisely because the national legislature excluded the category of public servants employed on an indefinite but non-permanent basis from the legal right to reinstatement provided for in Article 96(2) of the Basic Statute for Public Employees that the question arises as to whether that exclusion constitutes discrimination against workers employed on a fixed-term basis. That question is anything but hypothetical and calls for a substantive answer. ( 17 )

34.

Consequently, the request for a preliminary ruling is admissible and the Court has jurisdiction to respond to it.

35.

By its questions, the referring court wishes to ascertain, in essence, whether discrimination prohibited by EU law is present where a fixed-term public sector worker, in the event of the unlawful termination of her employment relationship by her employer, has no legal right to reinstatement, whereas national law grants such a right to permanent public servants.

36.

The background to this question is the fact that Article 96(2) of the Spanish Basic Statute for Public Employees confers a legal right to reinstatement only on permanent public servants, whereas all other workers are subject to Article 56 of the Workers’ Statute, which provides that, following a declaration of unlawful dismissal, an employer is free to choose either to reinstate the worker or to pay compensation.

37.

Whether Ms Vernaza Ayovi’s dismissal was in fact unlawful does not form part of the subject matter of these preliminary ruling proceedings. It is for the referring court alone to make the findings necessary in this regard.

38.

On the scope of the Framework Agreement, the Court has already held that the provisions of that agreement are also applicable to fixed-term workers in the employ of authorities or other bodies in the public sector, ( 18 ) and that workers are able to rely directly on Clause 4(1) of the Framework Agreement, as against such authorities or other bodies, before the national courts. ( 19 )

39.

In principle, therefore, the principle of non-discrimination against fixed-term workers laid down in Clause 4(1) of the Framework Agreement is also directly enforceable against the Consorci, a legal person governed by public law.

40.

The Consorci submits emphatically, however, that a worker such as Ms Vernaza Ayovi is not a fixed-term worker but a person with an employment contract of indefinite duration who is from the outset precluded from relying on the Framework Agreement. This, in part, is the thrust of the line of argument put forward by Spain too.

41.

The Framework Agreement is indeed applicable only to workers on fixed-term employment contracts. This follows not least from its title and is confirmed by the definition of its scope in Clause 2(1) thereof. Under that provision, the Framework 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.

42.

In the present case, the national court, with reference to the case-law of the highest court in Spain, states that, by the criteria laid down in national law, an employment contract such as that of Ms Vernaza Ayovi must be regarded as a fixed-term contract. The representation of the national legal position on which the referring court thus relies in its order for reference, and the legal characterisation of the facts of the main proceedings which the referring court takes as its premiss, must, in accordance with settled case-law, serve as the basis for the deliberations of the Court of Justice too in the context of the reference for a preliminary ruling, even if individual parties such as the Consorci and Spain express opposing views. ( 20 )

43.

What is more, from the point of view of EU law too, an employment contract such as the Spanish temporary replacement contract at issue here exhibits all the characteristics of a fixed-term contract. Critical in this regard is the fact, referred to in the definition contained in Clause 3(1) of the Framework Agreement, that the end of the employment relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event.

44.

It is true that a temporary replacement contract such as that of Ms Vernaza Ayovi does not provide for a specific calendar date as the end point of the employment relationship. Furthermore, the fact that national law classifies a worker such as Ms Vernaza Ayovi as an ‘indefinite but non-permanent employee’ may be the source of some terminological confusion on account of the use of the adjective ‘indefinite’, and even, at first sight, points towards a permanent employment relationship.

45.

The decisive factor, however, is that a temporary replacement contract always ends automatically upon the occurrence of a specific event, that is to say either the return of a worker with a reserved right to his post or the completion of a selection procedure to fill a vacant post with a permanent employee. As the use of the word ‘non-permanent’ itself shows, therefore, this is not a permanent employment relationship but, on the contrary, a time-limited employment relationship the end point of which is uncertain only to the extent that it is not denoted by a precise calendar date.

46.

In other words, it is clear that an employment relationship such as that of Ms Vernaza Ayovi terminates on the occurrence of a specific (and, at least by implication, contractually agreed) event — the return or the first appearance of a permanent employee, the only uncertain element being the specific date on which that event will take place. This is sufficient to support the assumption of a fixed-term employment contract as provided for in Clause 3(1) of the Framework Agreement.

47.

Finally, the Consorci raises the objection that the Framework Agreement is applicable to Spanish non-permanent employment contracts of indefinite duration only for the purposes of penalising abuse on the part of a public-sector employer in the use of this form of contract. The Consorci relies in this regard on the order in León Medialdea, which concerned penalties for the abusive recourse to successive fixed-term contracts. ( 21 )

48.

That argument too must be rejected, however. It is based on an erroneous understanding of the order in León Medialdea. The mere fact that that order was primarily concerned with combating abuse is not such as to support the conclusion that the existence of abuse is a condition for the application of the Framework Agreement to workers whose employment relationships are based on a Spanish temporary replacement contract. The boundary between the conditions for the application of the Framework Agreement, on the one hand, and the Framework Agreement’s provisions relating to the combating of discrimination (Clause 4) and abuse (Clause 5), on the other hand, must not be blurred.

49.

All things considered, therefore, a worker such as Ms Vernaza Ayovi, whose employment relationship is based on a temporary replacement contract under Spanish law, falls within the scope of the Framework Agreement.

50.

The first question concerns the concept of employment conditions. That concept defines more precisely the limits of the material scope of the prohibition on discrimination against workers in fixed-term employment. For Clause 4(1) of the Framework Agreement, in which that prohibition is laid down, specifically prohibits any treatment which is less favourable to fixed-term workers ‘in respect of employment conditions’.

51.

The referring court now seeks clarification as to whether the aforementioned employment conditions may also include a right on the part of the worker to be reinstated after being unlawfully dismissed by his employer, after the fashion of the right which Article 96(2) of the Basic Statute for Public Employees grants to permanent public servants in Spain.

52.

The only party to answer that question in the negative is the Spanish Government. In much the same way as it did previously in Cases C‑596/14, C‑574/16 and C‑677/16, it submits in essence that employment conditions within the meaning of Clause 4(1) of the Framework Agreement refer only to working conditions ( 22 ) in the narrower sense, but not to other employment conditions, ( 23 ) such as, for example, the conditions and legal consequences of terminating fixed-term employment contracts or relationships.

53.

As I recently had occasion to point out elsewhere, that view cannot be endorsed. ( 24 ) For, according to case-law, the only decisive criterion for understanding the concept of employment conditions in Clause 4(1) of the Framework Agreement is the criterion of employment, that is to say the fact that the rules applicable to a worker or the benefits claimed by him are linked to his employment relationship with his employer. ( 25 )

54.

The different language versions of the Framework Agreement use forms of words which, in some cases, correspond to the term ‘working conditions’ and, in others, equate to the term ‘employment conditions’, ( 26 ) there being no recognisable intention behind this to denote two separate concepts. What is more, such a distinction would also be difficult to reconcile with the aims of the Framework Agreement and the overall scheme of European employment law.

55.

The Framework Agreement is, after all, intended to improve the quality of fixed-term employment relationships by ensuring compliance with the principle of non-discrimination. ( 27 ) 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. ( 28 ) According to settled case-law, the Framework Agreement contains rules of EU social law of particular importance, from which each employee should benefit as a minimum protective requirement. ( 29 ) It follows that the principle of non-discrimination against fixed-term workers cannot be interpreted restrictively. ( 30 )

56.

Furthermore, the coherence of European employment law requires that the concept of working or employment conditions is not interpreted independently of its meaning in related EU legislation. ( 31 ) Reference should be made in this connection in particular to anti-discrimination Directives 2000/78/EC ( 32 ) and 2006/54/EC, ( 33 ) which give effect to the general principle of equal treatment in relation to various forms of discrimination such as sex, age and sexual orientation. According to settled case-law, that principle also applies to conditions of dismissal. ( 34 )

57.

The position is no different in the case of the Framework Agreement on Fixed-term Work. It is settled case-law that, in the context of that agreement, the conditions governing the termination of an employment contract ( 35 ) also fall within the scope of the principle of non-discrimination, as do the legal consequences of such termination, such as, for example, the payments to be made by the employer in connection with the employment relationship — whether pursuant to the employment contract or by law — when the employment relationship is terminated. ( 36 )

58.

It is only logical that that case-law should be transferable to a right to reinstatement such as that provided for in Article 96(2) of the Spanish Basic Statute for Public Employees. Contrary to the opinion expressed by Spain, moreover, the foregoing is not precluded by the fact that the right to reinstatement is the statutory consequence of unlawful dismissal. Many other provisions in connection with the termination of employment relationships which the Court has to date already classified as falling within the concept of employment conditions were also based on statutory provisions of national law. ( 37 )

59.

All things considered, therefore, the Framework Agreement in general and the principle of non-discrimination contained in it in particular are applicable to a national provision governing the reinstatement of public-sector employees following the unlawful termination of their contracts by their employer. A situation such as that at issue here, which is concerned with just such a case of reinstatement, therefore falls within the scope of Clause 4(1) of the Framework Agreement.

60.

The focus of interest in the present case lies in the second question referred, which is concerned with the interpretation of the prohibition of discrimination against fixed-term workers within the meaning of Clause 4(1) of the Framework Agreement. That question seeks, in essence, to clarify whether fixed-term workers in the public sector are discriminated against to the extent that they have no right to reinstatement following the unlawful termination of their employment relationship by their employer, whereas permanent public servants do have such a right.

61.

According to settled case-law which the Court has applied not least to Clause 4(1) of the Framework Agreement, the principle of non-discrimination requires that comparable situations must not be treated differently and different situations must not be treated alike, unless such treatment is objectively justified. ( 38 )

62.

Contrary to the view which Spain appears to take, however, it is not a condition for the establishment of an infringement of the prohibition of discrimination that there should have been some form of intention by the employer to occasion harm or discriminate.

63.

There is no doubt that the restriction of the statutory right to reinstatement to permanent public servants alone amounts to a difference in treatment between that category of worker and non-permanent public-sector employees.

64.

Less favourably treated workers who, under Spanish law, have no statutory right to reinstatement and whose reinstatement lies instead at the discretion of the employer also include public-sector workers, such as Ms Vernaza Ayovi, who are appointed on the basis of temporary replacement contracts and, in accordance with the referring court’s express classification, are to be regarded as fixed-term workers. ( 39 )

65.

It may be that the more favourable treatment represented by the statutory right to reinstatement provided for in Article 96(2) of the Basic Statue for Public Employees is the entitlement of only a minority of workers in Spain in the first place, that is to say permanent public servants, most members of the Spanish working population, including most workers in indefinite employment, being caught by the less favourable provisions of Article 56 of the Workers’ Statute.

66.

For the purposes of establishing a difference in treatment within the meaning of Clause 4(1) of the Framework Agreement, however, it is sufficient that ‘fixed-term workers’ are treated less favourably than ‘comparable permanent employees’. It is by no means necessary that all workers in fixed-term employment should be in a more unfavourable situation than all workers in permanent employment.

67.

Moreover, it follows from Clause 3(2) of the Framework Agreement that the existence of a difference in treatment must always be examined in relation to one and the same establishment. In a situation such as that in this case, this means that the relevant relationships are those in place within Terrassa Hospital, which forms part of the public sector in Spain and all of whose employees are therefore to be regarded as public servants.

68.

It remains to be examined, however, whether permanent public servants and non-permanent employees in the public sector, who are in a less favourable position than the former, are in a comparable situation. ( 40 ) For, as is clear from the very wording of Clause 4(1) of the Framework Agreement, EU law prohibits discrimination against fixed-term workers in relation to comparable permanent workers, but does not prescribe equal treatment between non-comparable fixed-term workers and permanent workers. ( 41 ) It is therefore only where the situations are comparable that a difference in the legal consequences of unlawful dismissal by the employer, such as that which is at issue in the main proceedings, may entail discrimination against fixed-term workers.

69.

The starting point for the task, incumbent on the referring court, ( 42 ) of considering whether fixed-term workers and permanent workers are in comparable situations is, in accordance with the definition of the term ‘comparable permanent worker’ in the first subparagraph of Clause 3(2) of the Framework Agreement, whether both categories of worker are engaged in the same or similar work or occupation in the establishment in question. This must be ascertained in the light of a number of factors such as the nature of the work, training requirements and working conditions. ( 43 )

70.

In the present case, it must be assumed that the fixed-term worker in question, in the light of the specific activity to be carried out (in particular the nature of her work, training requirements and working conditions), is in the same situation as a permanent worker in the same establishment. For, as the Consorci concedes, the work performed by Ms Vernaza Ayovi as a nurse was identical to that of other permanent nurses in Terrassa Hospital. Moreover, this point is expressly made by the referring court too.

71.

As I have already said previously elsewhere, ( 44 ) however, the examination of whether the situations are comparable cannot stop at a general comparison of the respective positions of fixed-term workers and permanent workers in the undertaking in question. The decisive factor, after all, is whether fixed-term workers and permanent workers are in a comparable situation from the point of view in particular of the matter at issue in the case in question.

72.

The matter at issue in the present case is whether there is a right to reinstatement following unlawful dismissal by the employer. The purpose of reinstatement in such circumstances is, on the one hand, to put right an unlawful act by the employer the consequences of which, moreover, are far-reaching given its impact on the continued existence of the employment relationship. On the other hand, it serves to satisfy the worker’s legitimate expectation that his employment relationship will continue in being for the duration of its normal term.

73.

From the point of view of those two objectives — to put right an unlawful act on the part of the employer and to satisfy a legitimate expectation on the part of the worker — there is no difference between a fixed-term worker and a permanent worker. For the continued existence of the employment relationship of a fixed-term worker is no less worthy of protection during the term of his employment contract than the continued existence of the employment relationship of his counterpart whose contract is of indefinite duration. Furthermore, the unlawful termination by the employer of an ongoing employment relationship is no less unlawful when it affects a fixed-term worker than when a permanent worker falls victim to it.

74.

It follows that, from the point of view of any reinstatement to her hospital post, a fixed-term worker such as Ms Vernaza Ayovi is in a situation comparable to that of a permanent public servant in the same hospital. ( 45 )

75.

The foregoing is not open to the objection that, for constitutional reasons, ( 46 ) permanent public servants in Spain are appointed by way of a selection procedure, whereas workers in the public sector who — like Ms Vernaza Ayovi — are employed on the basis of temporary employment contracts are not.

76.

It is true that permanent public servants generally enjoy greater job security than fixed-term workers in the public sector and must therefore meet more stringent conditions of appointment. However, reinstatement following unlawful dismissal by the employer is specifically not related to conditions of appointment, but seeks only to reverse the legal consequences of such dismissal and to restore the worker concerned to the position he would have been in had he not been dismissed.

77.

As the Commission rightly points out, a fixed-term worker is reinstated only for the remaining term of his fixed-term contract — in the case of a temporary replacement contract, therefore, until such time as the previous incumbent returns or until the selection procedure for refilling the post is completed. ( 47 ) Reinstatement of a fixed-term worker does not in any way have the effect of converting his fixed-term employment relationship into one of indefinite duration or of otherwise making the position of a fixed-term worker better than it was previously.

78.

In particular, since reinstatement of a fixed-term worker does not confer on him the status of permanent public servant, he cannot be challenged on the ground of not having successfully completed a selection procedure. If the original appointment of the fixed-term worker was not subject to completion of a selection procedure, the absence of such a procedure is hardly going to be cause to preclude the continued employment of the same worker in his previous role, particularly where — as here — the severance of the employment relationship was prompted not by any misconduct or poor performance on the part of the worker but (subject to the findings of the national court) by her unlawful dismissal by her employer.

79.

Accordingly, a difference in the treatment of comparable situations is present where fixed-term workers in the public sector are denied the right to be reinstated following the unlawful termination of their employment contract by their employer, whereas permanent public servants have a statutory right to reinstatement in such circumstances.

80.

Last but not least is the question of whether there are any objective grounds capable of justifying the different treatment of fixed-term workers in the public sector and permanent public servants respectively from the point of view of their reinstatement.

81.

By the reference to objective grounds contained, inter alia, in Clause 4(1) of the Framework Agreement, the European social partners — and, ultimately, the EU legislature too — give expression to the fundamental notion that fixed-term employment relationships may not be used by employers to deny the workers concerned rights which are recognised for comparable permanent workers. ( 48 )

82.

Spain and the Consorci refer to the particularities of public service, which are established not least in the Spanish Constitution and, in the view of those parties, mean that a right to reinstatement following unlawful dismissal must be granted only to permanent public servants, but not to fixed-term workers in the public sector.

83.

It is true that the principles governing public service employment — for example, the ‘established post’ principle, the model of the career civil servant and the requirement of successful completion of a selection procedure as a condition of indefinite employment — are not without consequence from the point of view of the practical application of the provisions of the Framework Agreement. ( 49 ) The Framework Agreement expressly recognises, after all, ‘that … detailed application [of the Agreement’s principles and minimum requirements] needs to take account of the realities of specific national, sectoral and seasonal situations’. ( 50 )

84.

Nevertheless, not all differences in treatment between fixed-term workers and comparable permanent workers can be justified generally by reference to the sectoral particularities of the public service, ( 51 ) but only those which are genuinely and specifically dictated by the aforementioned particularities. ( 52 )

85.

In the present case, there is nothing to indicate that observance of the principles of public service employment might make it necessary to deny the right to reinstatement generally to fixed-term workers in the public sector who have been unlawfully dismissed. For, as I have already stated above, ( 53 ) reinstatement following unlawful dismissal does not have the effect of changing the status of a fixed-term worker at his place of work. In particular, it does not convert his fixed-term employment relationship into one of indefinite duration.

86.

There is therefore no danger of any principles of public service employment being adversely affected where a fixed-term worker who has been wrongfully dismissed is granted a right to reinstatement. Reinstatement in such circumstances is not in any way prejudicial to the status of permanent public servants and does not confer on the fixed-term worker an advantage which would be contrary to the principles of public service employment. More specifically, the fixed-term worker concerned does not, by virtue of being reinstated, acquire permanent employment in the public sector without the need to undergo a selection procedure, but returns to work only for so long as the remaining term of his fixed-term contract allows. ( 54 )

87.

Spain further attempts to explain the fact that fixed-term workers in the public sector have no right to reinstatement by reference to the exceptional nature of Article 96(2) of the Basic Statute for Public Employees, pointing out that the general provision contained in Article 56 of the Workers’ Statute, which is applicable to all workers, does not provide for a right to reinstatement.

88.

That argument too, however, is untenable. First, the primary effect of applying the principle of non-discrimination is, by definition, to extend advantages previously confined to a very specific category of persons to another — disadvantaged — category of persons. ( 55 ) Secondly, the examination of whether fixed-term workers have indeed been the subject of discrimination must always be carried out by specific reference to a particular establishment, and not, for example, by abstract and general reference to all workers in a Member State (see, in this regard, Clause 4(1) in conjunction with Clause 3(2) of the Framework Agreement). Thirdly, according to case-law, a difference in treatment as between fixed-term workers and permanent workers cannot be justified on the basis that it is provided for by a general and abstract national norm, such as a law or collective agreement. ( 56 )

89.

I would mention only in passing that not even budgetary considerations, which are becoming an increasingly prominent feature on account of the straitened financial circumstances of many public authorities in the Member States, are capable of justifying the practice of denying the right to reinstatement generally to workers on fixed-term contracts. Any recognition of such a ground of justification would, after all, operate ultimately to create a tolerance for unlawful conduct on the part of public employers — in this instance, the unlawful termination by the employer of a fixed-term employment relationship in the course of its term of validity. Furthermore, the requirement to apply budgetary rigour would be satisfied at the expense of fixed-term workers. This would be at blatant odds with the basic intention of the Framework Agreement to protect fixed-term workers against disadvantages. ( 57 ) It is therefore only logical that, according to settled case-law, budgetary considerations cannot in themselves serve as a ground of justification for discrimination, even though they may otherwise underlie a Member State’s choice of social policy decisions and influence the nature or scope of those decisions. ( 58 )

90.

I recognise that the reinstatement of wrongfully dismissed fixed-term workers may in some cases lead to insurmountable practical difficulties.

91.

On the one hand, there may be cases where further collaboration between the worker and the employer is no longer acceptable to the two parties, or in any event to one of them, particularly where there are objective indications that the relationship of trust between them has broken down.

92.

On the other hand, it may be — not least on account of the length of the judicial proceedings — that the determination as to whether the person concerned is to be reinstated is not made until after the end of the agreed term of the fixed-term contract. Should, for example, the colleague in whose absence a temporary replacement contract had been concluded have since come back, the fixed-term worker might have to be reinstated to a non-established post, which might be contrary to the principle of public service employment.

93.

Both circumstances — the unacceptability of further collaboration and the fact of the contested position having since been refilled — may each constitute an objective ground for refusing to reinstate the fixed-term worker and awarding him financial compensation instead.

94.

However, simply to deny the right to reinstatement generally to all fixed-term workers in the public sector who have been wrongfully dismissed would be to go beyond what is necessary in order to resolve such issues.

95.

In the present case, for example, there is nothing before the Court to indicate that the Consorci would find it unacceptable for the fixed-term relationship with Ms Vernaza Ayovi to continue in being until its contractual end or that Ms Vernaza Ayovi’s post has since been filled by someone else.

96.

All things considered, therefore, discrimination against fixed-term workers in the public sector as prohibited by Clause 4(1) of the Framework Agreement is present where such workers are as a general rule not granted a statutory right to reinstatement following the unlawful termination of their employment relationship by their employer, whereas permanent public servants do have a right to such reinstatement.

97.

By its third and final question, the referring court wishes to know lastly whether ‘unequal treatment [would] be justified in the same situation as in the question above, not in the light of the Directive but of Article 20 of the Charter of Fundamental Rights of the European Union’.

98.

In essence, that question seeks to ascertain whether discrimination within the meaning of Article 20 of the Charter of Fundamental Rights is present where, in the public sector, the right to reinstatement following unlawful dismissal by the employer is granted only to permanent employees, but not to fixed-term workers.

99.

The general EU-law principle of equal treatment, which is now also established in Articles 20 and 21 of the Charter of Fundamental Rights, requires, according to settled case-law, that comparable situations must not be treated differently and different situations must not be treated in the same way, unless such treatment is objectively justified. ( 59 )

100.

The pending Grupo Norte Facility case recently gave me the opportunity to submit that the general EU-law principle of equal treatment cannot, from the point of view of its content, lead to a conclusion different from that supported by the special principle of non-discrimination in Clause 4(1) of the Framework Agreement (see also Article 52(2) of the Charter of Fundamental Rights). ( 60 ) Accordingly, the Court of Justice, too, examines measures which fall within the scope of an anti-discrimination directive only in the light of that directive and does not assess them against the primary-law principles as such, to which the directive gives practical expression. ( 61 )

101.

In the light of the examination of Clause 4(1) of the Framework Agreement which has already been carried out in the context of the second question, there is therefore no need to give a separate answer to the third question in the present case.

102.

In the light of the foregoing submissions, I propose that the Court respond as follows to the request for a preliminary ruling from the Juzgado de lo Social No 2 de Terrassa (Labour Court No 2, Terrassa, Spain):

Clause 4(1) of the Framework Agreement on Fixed-Term Work annexed to Directive 1999/70/EC is to be interpreted as meaning that discrimination against fixed-term workers in the public sector is present where those workers generally have no statutory right to reinstatement in the event of the unlawful termination of their employment relationship by their employer, whereas permanent public servants do benefit from such a right to reinstatement.