Case C‑158/16

Margarita Isabel Vega González

v

Consejería de Hacienda y Sector Público del gobierno del Principado de Asturias

(Request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo n. 1 de Oviedo)

(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 — Concept of ‘employment conditions’ — Placement on the administrative status for special service leave — National legislation providing for special leave to be granted, in case of election to public office, only to established civil servants, to the exclusion of non-established civil servants)

Summary — Judgment of the Court (Tenth Chamber), 20 December 2017

1.        Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Conditions of employment — Concept — Right for a worker elected to a parliamentary role to benefit from special service leave — Suspension of the employment relationship with the worker’s job and entitlement to promotion guaranteed until the end of his parliamentary term of office — Included

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

2.        Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Prohibition on discrimination against fixed-term workers — National legislation that absolutely precludes granting a fixed-term worker, so that he may hold political office, leave allowing the employment relationship to be suspended until the worker’s reinstatement at the end of the term of office — Not permissible — No justification

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

1.      Clause 4(1) of the framework agreement on fixed-term work concluded on 18 March 1999, 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 the concept of ‘employment conditions’, referred to in that provision, includes the right for a worker who has been elected to a parliamentary role to benefit from special service leave, provided for by national legislation, under which the employment relationship is suspended such that the worker’s job and his entitlement to promotion are guaranteed until the end of that parliamentary term of office.

With regard to the concept of ‘employment conditions’ within the meaning of Clause 4(1) of the framework agreement, the Court has already held that the decisive criterion for determining whether a measure falls within the scope of that concept is, precisely, the criterion of employment, that is to say the employment relationship between a worker and his employer (judgments of 12 December 2013, Carratù, C‑361/12, EU:C:2013:830, paragraph 35; of 13 March 2014, Nierodzik, C‑38/13, EU:C:2014:152, paragraph 25; of 14 September 2016, de Diego Porras, C‑596/14, EU:C:2016:683, paragraph 26; and order of 9 February 2017, Rodrigo Sanz, C‑443/16, EU:C:2017:109, paragraph 32).

As was noted by the Advocate General in point 22 of her Opinion, the expression ‘employment conditions’ should be understood to mean the rights, entitlements and obligations that define a given employment relationship, including both the conditions under which a person takes up employment and those concerning the termination of that relationship.

In any case, it should be added that an interpretation of Clause 4(1) of the framework agreement which excludes from the definition of ‘employment conditions’ the right to special service leave would limit the scope of the protection granted to fixed-term workers against discrimination, in disregard of the objective pursued by that provision (see, to that effect, judgments of 13 March 2014, Nierodzik, C‑38/13, EU:C:2014:152, paragraphs 27 and 29 and of 14 September 2016, de Diego Porras, C‑596/14, EU:C:2016:683, paragraph 30; and order of the Court of 21 September 2016, Álvarez Santirso, C‑631/15, EU:C:2016:725, paragraph 39).

(see paras 30, 34, 38, 39, operative part 1)

2.      Clause 4 of the framework agreement on fixed-term work concluded on 18 March 1999, annexed to Council Directive 1999/70 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, that absolutely precludes granting a fixed-term worker, so that he may hold political office, leave during which the employment relationship is suspended until reinstatement of that worker at the end of the term of office, when that right is conferred on permanent workers.

In the present case, even if the referring court does not rule out that the necessity and urgency of making a temporary appointment, like the predictability of the end of the employment relationship, could, in principle, constitute precise and concrete factors capable of justifying inequality of treatment as regards the granting of special service leave, it states, however, that such arguments do not apply in a situation such as that giving rise to the dispute in the main proceedings where the post has been occupied for more than four years by the same temporary worker.

In any case, the absolute refusal to grant fixed-term workers special service leave does not prima facie appear to be indispensable to the objective pursued by Law 3/1985, namely the maintenance of jobs and the entitlement to promotion of permanent workers — and more specifically established civil servants holding political office — in as much as the referring court itself considers it entirely feasible that fixed-term workers holding a similar office could be granted special service leave that suspends the employment relationship until the end of that term of office at which time they would be guaranteed reinstatement to their post, provided it had not, in the meantime, been abolished or filled by an established civil servant.

(see paras 49-51, operative part 2)