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CJEU - Joined cases C 444/09 and C 456/09 / Judgment

Rosa María Gavieiro Gavieiro and Ana María Iglesias Torres v Consellería de Educación e Ordenación Universitaria de la Xunta de Galicia

Deciding Body type:
Court of Justice of the European Union
Deciding Body:
European Court of Justice (Second Chamber)
Decision date:
Key facts of the case:
Two teachers had been employed by a Spanish public body during 13 years for ca 9 years. When applying for “three-yearly length-of-service-increments” which had always been provided for by law for permanent employees these demands were refused concerning the period before 2007, because the relevant Spanish law did not grant such increments to fixed-term-employees before that date, explicitly excluding retrospective effect.
Both teachers challenged the denial before the competent national court which referred to CJ. 
Results (sanctions) and key consequences of the case:
  1. A member of the interim staff of the Autonomous Community of Galicia, such as the applicant in the main proceedings, falls within the scope ratione personae of Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, and that of the framework agreement on fixed term work, concluded on 18 March 1999, which is in the Annex to that directive.
  2. A length-of-service increment such as that at issue in the main proceedings is, as an employment condition, covered by clause 4(1) of the framework agreement on fixed-term work annexed to Directive 1999/70. Consequently, fixed-term workers may contest treatment which, with regard to payment of that increment, is less favourable than that which is given to permanent workers in a comparable situation and for which there is no objective justification. The temporary nature of the employment relationship of certain public servants is not, in itself, capable of constituting an objective ground within the meaning of that clause of the framework agreement.
  3. The mere fact that a national provision such as Article 25(2) of Law 7/2007 on the basic regulations relating to public servants (Ley 7/2007 del Estatuto Básico del empleado público) of 12 April 2007 contains no reference to Directive 1999/70 does not preclude that provision from being regarded as a national measure transposing the directive.
  4. Clause 4(1) of the framework agreement on fixed-term work, annexed to Directive 1999/70, is unconditional and sufficiently precise for interim civil servants to be able to rely on it as against the State before a national court in order to obtain recognition of their entitlement to length-of-service increments, such as the three-yearly increments at issue in the main proceedings, in respect of the period starting with the date by which Member States should have transposed Directive 1999/70 and ending with the date of entry into force of the national law transposing that directive into the domestic law of the Member State concerned, subject to compliance with the relevant provisions of national law concerning limitation.
  5. Even though the national legislation transposing Directive 1999/70 contains a provision which, whilst recognising the right of interim civil servants to be paid the three-yearly length-of-service increments, excludes the retrospective application of that right, the competent authorities of the Member State concerned are obliged, under European Union law and in relation to a provision of the framework agreement on fixed-term work, annexed to Directive 1999/70, having direct effect, to give that right to payment of the increments retrospective effect to the date by which the Member States should have transposed Directive 1999/70.