Case C‑631/15

Carlos Álvarez Santirso

v

Consejería de Educación, Cultura y Deporte del Principado de Asturias

(Request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 1 de Oviedo)

(References for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clause 4 — Successive fixed-term employment contracts in the public sector — Non-tertiary education — National rules — Grant of remuneration supplement — Condition — Positive result obtained in evaluation process — Professors employed as interim civil servants — Not included — Principle of non-discrimination)

Summary — Order of the Court (Tenth Chamber), 21 September 2016

1.        Questions referred for a preliminary ruling — Questions the answer to which may be clearly deduced from the Court's existing case-law — Application of Article 99 of the Rules of Procedure

(Art. 267 TFEU; Rules of Procedure of the Court of Justice, Art. 99)

2.        Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Scope — Professors employed as interim civil servants — Included

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

3.        Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Prohibition on discrimination against workers employed under fixed-term contracts — Conditions of employment —Definition — Participation in teaching evaluation plans and, in the case of a positive result, ensuing financial incentives — Included

(Council Directive 1999/70, Annex, Clause 4(1))

4.        Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Prohibition on discrimination against workers employed under fixed-term contracts — National rules reserving participation in teaching evaluation plans and, in the case of a positive result, the ensuing financial incentives exclusively for teachers employed under permanent employment contracts as established career civil servants, thereby excluding persons employed as interim civil servants under fixed-term employment contracts — No objective grounds — Not permissible

(Council Directive 1999/70, Annex, Clause 4(1))

1.        See the text of the decision.

(see paras 25, 26)

2.        Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP and the Framework Agreement set out in the Annex thereto are applicable to all workers providing remunerated services in the context of a fixed-term employment relationship linking them to their employer. The provisions laid down in the Framework Agreement apply to fixed-term employment contracts and relationships concluded with the public authorities and other public-sector bodies.

It follows that a teacher employed as an interim civil servant under a fixed-term employment contract in public educational establishments of an autonomous community of a Member State comes within the scope of Directive 1999/70 and the Framework Agreement.

(see paras 27-29)

3.        In social policy matters, the decisive criterion for determining whether a measure falls within the scope of ‘employment conditions’ within the meaning of clause 4(1) 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, is the criterion of employment, that is to say the employment relationship between a worker and his employer.

Therefore, the concept of ‘employment conditions’ within the meaning of clause 4(1) of the Framework Agreement includes three-yearly length of service supplements, a six-yearly supplement for further training and rules concerning periods of service to be completed in order to be classified in a higher salary grade or calculation of the periods required to have performance assessed each year.

It follows that participation in the evaluation plan and the ensuing financial incentive in the event of a positive assessment must also be regarded as being ‘employment conditions’ within the meaning of clause 4(1) of the Framework Agreement. On the one hand, the condition of five years’ length of service required to be included in the evaluation plan meets the decisive criterion referred to above. On the other hand, obtaining a positive assessment in the evaluation plan has no impact on the promotion and career development system, but results solely in a remuneration supplement. A component of remuneration in the form of a financial incentive must, as a condition of employment, be granted to a fixed-term worker on an equal footing with a permanent worker. An interpretation of clause 4(1) of the Framework Agreement that excludes from the definition of ‘employment conditions’ the right to participate in the evaluation plan and the ensuing financial incentive in the event of a positive assessment has the effect of weakening the protection against discrimination granted to fixed-term workers, contrary to the objective pursued by that provision.

(see paras 34-39)

4.        Clause 4(1) of the of the Framework Agreement on fixed-term work, set out in the Annex to Directive 1999/70/EC concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as precluding national rules which reserve participation in teaching evaluation plans and, in the case of a positive result, the ensuing financial incentives, exclusively for teachers employed under permanent employment relationships as established career civil servants, thereby excluding persons employed as interim civil servants under fixed-term employment relationships.

In this connection, the concept of objective grounds requires the unequal treatment found to exist to be justified by the existence of precise, specific factors, characterising the employment condition to which it relates, in the particular context in which it occurs and on the basis of objective, transparent criteria in order to ensure that that unequal treatment in fact meets a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose. Those factors may result, 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.

In view of the discretion enjoyed by Member States as regards the organisation of their own public administrations, they can, in principle, without acting contrary to Directive 1999/70 or the Framework Agreement, lay down period-of-service conditions for access to certain posts, restrict access to internal promotion solely to career civil servants and require those civil servants to provide evidence of professional experience corresponding to the grade immediately below the grade concerned by the selection procedure. However, that discretion notwithstanding, the criteria which the Member States lay down must be applied in a transparent manner and must be open to review in order to prevent any exclusion of fixed-term workers solely on the basis of the duration of the contracts or employment relationships which attest to their length of service and professional experience.

Where, in a selection procedure, such a difference in treatment flows from the need to take account of objective requirements relating to the post which that procedure is intended to fill and which are unrelated to the fixed-term nature of the interim civil servant’s employment relationship, it is capable of being justified for the purposes of clause 4(1) and/or (4) of the Framework Agreement. On the other hand, a general and abstract condition to the effect that the five years’ length of service must have been entirely completed as a career civil servant, with no account being taken, in particular, of the specific nature of the tasks to be performed or their inherent characteristics, does not meet the requirements of the case-law on clause 4(1) of the Framework Agreement. A fortiori is this the case where the national rules provide for inclusion in the teaching evaluation plan and a remuneration supplement in the event of a positive assessment only to teachers employed as established career civil servants having completed five years’ length of service, whereas teachers employed as interim civil servants fulfil exactly the same entrance criteria but are excluded from the benefits.

(see paras 51, 53-56, 58, 60, operative part)