Key facts of the case:
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 — Clause 5 — Measures to prevent abuse arising from the use of successive fixed-term employment contracts or relationships — Compensation if the employment relationship is terminated — Articles 151 and 153 TFEU — Articles 20 and 21 of the Charter of Fundamental Rights of the European Union — Applicability — Difference of treatment based on whether a public or private regime, within the meaning of national law, governs the employment relationship.
Outcome of the case:
On those grounds, the Court (Second Chamber) hereby rules:
1) This request for a preliminary ruling concerns the interpretation of Articles 151 and 153 TFEU, Articles 20 and 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and 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).
20) On 20 February 2017, Ms Baldonedo Martín requested payment of compensation equivalent to 20 days’ remuneration per year of service by the Municipality of Madrid for termination of her employment. Her request was based on Article 4(3) TEU, Articles 20 and 21(1) of the Charter and on Clauses 4 and 5 of the framework agreement.
32) In those circumstances, the Juzgado de lo Contencioso-Administrativo No 14 de Madrid (Administrative Court No 14, Madrid, Spain) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is it correct to interpret Clause 4 of the framework agreement as meaning that a situation such as that described in the present case, in which an interim civil servant carries out the same work as an established civil servant (who is not entitled to compensation because the situation that would warrant it does not exist under the legal regime applicable to him) is not consistent with the situation described in that clause?
(2) Given that the right to equal treatment and the prohibition of discrimination (in Articles 20 and 21 of the Charter and in Article 23 of the Universal Declaration of Human Rights [adopted by the General Assembly of the United Nations on 10 December 1948]) constitute a general principle of EU law given expression in a directive, and in the light of fundamental social rights within the meaning of Articles 151 and 153 TFEU, is it consistent with the framework agreement to interpret Clause 4, in such a way as to achieve its objectives, as meaning that the right of an interim civil servant to receive compensation may be established either by comparison with a temporary contract worker, since his or her status (as a civil servant or as a contract worker) is determined exclusively by the public-sector employer, or by the direct vertical application to which EU primary law is open?
(3) Taking into account the existence, if any, of improper use of temporary appointments to meet permanent staffing needs for no objective reason and in a manner inconsistent with the urgent and pressing need that warrants recourse to them, and for want of any effective penalties or limits in Spanish national law, would it be consistent with the objectives pursued by Directive 1999/70/EC to grant, as a means of preventing abuse and eliminating the consequence of infringing EU law, compensation comparable to that for unfair dismissal, that is to say, one that serves as an adequate, proportional, effective and dissuasive penalty, in circumstances where an employer does not offer a worker a permanent post?’
50) By its second question, the referring court asks, in essence, whether Articles 151 and 153 of the TFEU, Articles 20 and 21 of the Charter and Clause 4(1) of the framework agreement, must be interpreted as precluding a national law that does not provide for payment of any compensation to fixed-term workers employed as interim civil servants upon the termination of their employment, whereas compensation is granted to fixed-term contract workers upon the expiry of their contract of employment.
56) As regards, in the third place, Articles 20 and 21 of the Charter, it must be observed that a difference of treatment based on whether the employment relationship is statutory or contractual may, in principle, be assessed with regard to the principle of equal treatment, which is a general principle of EU law, now enshrined in Articles 20 and 21 of the Charter (see, to that effect, the judgment of 9 March 2017, Milkova, C‑406/15, EU:C:2017:198, paragraphs 55 to 63).
57) However, it should be recalled that the Charter’s field of application so far as concerns action by the Member States is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States only when they are implementing European Union law (judgment of 6 October 2016, Paoletti and Others, C‑218/15, EU:C:2016:748, paragraph 13 and the case-law cited).
58) It is clear from the case-law of the Court that the concept of ‘implementing Union law’, as referred to in Article 51(1) of the Charter, presupposes a degree of connection between the measure of EU law and the national measure at issue which goes beyond the matters covered being closely related or one of those matters having an indirect impact on the other (judgment of 6 October 2016, Paoletti and Others, C‑218/15, EU:C:2016:748, paragraph 14 and the case-law cited).
59) In accordance with the Court’s settled case-law, in order to determine whether a national measure involves ‘implementing of EU law’ for the purposes of Article 51(1) of the Charter, it is necessary to determine, inter alia, whether that national legislation is intended to implement a provision of EU law; the nature of the legislation at issue and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and also whether there are specific rules of EU law on the matter or rules which are capable of affecting it (judgment of 10 July 2014, Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraph 37 and the case-law cited).
63) It follows that Article 49(1)(c) of the Workers’ Statute pursues a different objective from that of Clause 5 of the framework agreement and cannot therefore be regarded as ‘implementing EU law’, within the meaning of Article 51(1) of the Charter.
64) Consequently, the difference of treatment at issue in the main proceedings cannot be assessed in the light of the guarantees of the Charter and, in particular, of Articles 20 and 21 thereof.