Key facts of the case:
Reference for a preliminary ruling — Social policy — Fixed-term employment — Directive 1999/70/EC — ETUC-UNICE-CEEP— framework agreement on fixed-term work — Principle of non-discrimination against fixed-term workers — Concept of employment conditions — Worker’s right to reinstatement in the event of unlawful disciplinary dismissal — Fixed-term employment contract in the form of a temporary replacement contract — Employment contract in the public sector — Difference in treatment in relation to permanent workers — Non-permanent contract of indefinite duration within the meaning of Spanish law.
Outcome of the case:
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.
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:
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.
D. The principle of equality before the law pursuant to Article 20 of the Charter of Fundamental Rights (third question referred)
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.