Case C‑16/15

María Elena Pérez López

v

Servicio Madrileño de Salud (Comunidad de Madrid)

(Request for a preliminary ruling from the

Juzgado de lo Contencioso-Administrativo No 4 de Madrid)

‛Reference for a preliminary ruling — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clauses 3 to 5 — Successive fixed-term employment contracts within the public health service — Measures to prevent the abusive use of successive fixed-term employment relationships — Penalties — Reclassification of the employment relationship — Right to compensation’

Summary — Judgment of the Court (Tenth Chamber), 14 September 2016

1. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Scope — Fixed-term employment contracts in the public sector — Worker employed as a nurse as part of the occasional regulated staff of the public health service — Included

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

2. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Measures to prevent abuse of successive fixed-term contracts — National legislation authorising the health services to appoint temporary regulated staff — Provisions allowing the renewal of successive fixed-term contracts to ensure the provision of certain services of a temporary, auxiliary or extraordinary nature — Application of those provisions for fixed and permanent needs — Unlawful — No obligation to create permanent posts in the event of a structural deficit of regulated staff posts in the sector — Unlawful

   (Council Directive 1999/70, Annex, clause 5(1)(a))

3. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Measures to prevent abuse of successive fixed-term contracts — Aim — National legislation imposing the termination of the contractual relationship on the date provided by the fixed-term contract and the payment of all outstanding remuneration, without prejudice to a possible reappointment — Lawfulness — Condition — Verification by the national court

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

4. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Scope — Differences of treatment between certain categories of fixed-term workers — Not included — Issue of national law and not of EU law — Clear lack of jurisdiction of the Court

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

1.  It is apparent from the very wording of clause 2(1) of the framework agreement on fixed-term work, which is annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, that the scope of the Framework Agreement is conceived in broad terms, covering generally ‘fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practices in each Member State’. In addition, the definition of ‘fixed-term workers’ for the purposes of the framework agreement, set out in clause 3(1), encompasses all workers without drawing a distinction according to whether their employer is in the public, or private, sector and regardless of the classification of their contract under domestic law.

   In so far as the framework agreement does not exclude any particular sector, a worker, who is employed as a nurse as part of the occasional regulated staff of the public health service, falls within the scope of the framework agreement.

   (see paras 24, 25)

2.  Clause 5(1)(a) of the framework agreement on fixed-term work, set out in the Annex to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as precluding the application of national legislation authorising the health services to appoint temporary regulated staff by the authorities of the Member State concerned in such a way that:

   (1)

   the renewal of successive fixed-term employment contracts in the public health sector is deemed to be justified by ‘objective grounds’, within the meaning of that clause, on the ground that those contracts are founded on legal provisions allowing them to be renewed in order to ensure the provision of certain services of a temporary, auxiliary or extraordinary nature when, in fact, those needs are fixed and permanent;

   (2)

   there is no obligation on the competent authority to create additional permanent posts in order to bring an end to the employment of occasional regulated staff and it is permitted to fill the permanent posts created by hiring ‘temporary’ staff, so that the precarious situation of workers is perpetuated, where there is a structural deficit of regulated staff posts in that sector in the Member State concerned.

   In that regard, the temporary replacement of a worker in order to satisfy the employer’s temporary staffing requirements may, in principle, constitute an ‘objective reason’ within the meaning of clause 5(1)(a) of the framework agreement.

   In a sector of the public services with a large workforce, such as the public health sector, it is inevitable that temporary replacements will be necessary due to, inter alia, the unavailability of members of staff on sick, maternity, parental or other leave. The temporary replacement of workers in those circumstances may constitute an objective reason under clause 5(1)(a) of the framework agreement, justifying fixed-term contracts being concluded with the replacement staff and the renewal of those contracts as new needs arise, subject to compliance with the relevant requirements laid down in the framework agreement.

   Furthermore, the obligation to organise the health services in such a way as to ensure that healthcare worker-patient ratios are constantly appropriate rests with the public authorities and is dependent on many factors that may reflect a particular need for flexibility which is capable, in that specific sector, of providing an objective justification, under clause 5(1)(a) of the framework agreement, for recourse to successive fixed-term employment contracts.

   By contrast, it cannot be accepted that fixed-term employment contracts may be renewed for the purpose of the performance, in a fixed and permanent manner, of tasks in the health service which normally come under the activity of the ordinary hospital staff.

   The renewal of fixed-term employment contracts or relationships in order to cover needs which, in fact, are not temporary in nature but, on the contrary, fixed and permanent is not justified for the purposes of clause 5(1)(a) of the framework agreement, in so far as such use of fixed-term employment contracts or relationships conflicts directly with the premise on which the framework agreement is founded, namely that employment contracts of indefinite duration are the general form of employment relationship, even though fixed-term employment contracts are a feature of employment in certain sectors or in respect of certain occupations and activities.

   As regards, moreover, the discretion of the administration concerning the creation of permanent posts, the existence of such a procedure, allowing the creation of a fixed post, like that consisting of converting a fixed-term contract into a permanent employment relationship, may constitute an effective remedy against the abusive use of temporary contracts.

   However, even if national legislation permitting the renewal of successive fixed-term employment contracts in order to replace staff while waiting to fill permanent posts that have been created can, in principle, be justified by an objective ground, the actual application of that ground must, however, comply with the requirements of the framework agreement, having regard to the particular features of the activity concerned and to the conditions under which it is carried out.

   (see paras 44-48, 53, 54, 56, operative part 1)

3.  Clause 5 of the framework agreement on fixed-term work, set out in the Annex to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as meaning that it does not preclude, in principle, national legislation which requires that the contractual relationship is to terminate on the date provided by the fixed-term contract and that all outstanding remuneration is to be paid, without prejudice to a possible reappointment, provided that that legislation does not compromise the objective and practical effect of that framework agreement, which is a matter to be determined by the referring court.

   The objective pursued by that clause, which consists of placing limits on successive recourse to fixed-term employment contracts or relationships, would be devoid of all content if, under national law, the new nature of an employment relationship, in itself, were able to constitute an ‘objective ground’ for the purposes of that clause, capable of authorising a renewal of a fixed-term employment contract.

   (see paras 60, 61, operative part 2)

4.  Any differences in treatment between specific categories of fixed-term workers which is not based on the fixed-term or permanent nature of the employment relationship, but on whether it is statutory or contractual, is not covered by the principle of non-discrimination established by the framework agreement set out in the Annex to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP.

   Thus, the difference in treatment between occasional regulated staff and comparable workers employed under contracts for occasional employment is exclusively a matter of national law, the interpretation of which is the exclusive role of the national court.

   In these circumstances, the Court clearly has no jurisdiction to answer the question whether clause 4 of the framework agreement must be interpreted as precluding national legislation which fails to provide any compensation for termination of a contract of employment to occasional regulated staff while such compensation is granted to comparable workers employed under contracts for occasional employment.