Grupo Norte Facility SA v Angel Manuel Moreira Gómez.

• Jurisdiction: European Union
• Celex Number: 62016CJ0574
• ECLI: ECLI:EU:C:2018:390
• Date: 05 June 2018
• Docket Number: C-574/16
• Court: Court of Justice (European Union)
• Procedure Type: Cuestión prejudicial - sobreseimiento

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

5 June 2018 (*)

(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 — Definition of ‘employment conditions’ — Comparability of situations — Justification — Definition of ‘objective grounds’ — Compensation in the event of termination of a permanent employment contract on objective grounds — Lesser amount of compensation paid on expiry of a fixed-term ‘relief’ employment contract)

In Case C‑574/16,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Superior de Justicia de Galicia (High Court of Justice, Galicia, Spain), made by decision of 7 November 2016, received at the Court on 14 November 2016, in the proceedings

Grupo Norte Facility SA

v

Angel Manuel Moreira Gómez,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, A. Tizzano, Vice-President, L. Bay Larsen, J.L. da Cruz Vilaça, A. Rosas and C.G. Fernlund, Presidents of Chambers, A. Arabadjiev (Rapporteur), M. Safjan, D. Šváby, M. Berger, A. Prechal, E. Jarašiūnas and E. Regan, Judges,

Advocate General: J. Kokott,

Registrar: L. Carrasco Marco, Administrator,

having regard to the written procedure and further to the hearing on 8 November 2017,

after considering the observations submitted on behalf of:

– Grupo Norte Facility SA, by A.I. López Fernández and E. Orusco Almazán, abogados,

– the Spanish Government, by A. Gavela Llopis, acting as Agent,

– the European Commission, by M. van Beek and N. Ruiz García, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 20 December 2017,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Clause 4(1) 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), and the interpretation of Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2 The request has been made in proceedings between Grupo Norte Facility SA (‘Grupo Norte’) and Mr Angel Manuel Moreira Gómez concerning the expiry of the ‘relief’ employment contract under which the latter was engaged by that company.

Legal context

EU law

3 Recital 14 of Directive 1999/70 states:

‘The signatory parties wished to conclude a framework agreement on fixed-term work setting out the general principles and minimum requirements for fixed-term employment contracts and employment relationships; they have demonstrated their desire to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination, and to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships’.

4 Article 1 of Directive 1999/70 states that the purpose of the directive is ‘to put into effect the [Framework Agreement] concluded ... between the general cross-industry organisations (ETUC, UNICE and CEEP). ...’

5 The second paragraph in the preamble to the Framework Agreement is worded as follows:

‘The parties to this agreement recognise that contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers. They also recognise that fixed-term employment contracts respond, in certain circumstances, to the needs of both employers and workers.’

6 The third paragraph of the preamble states:

‘[The Framework Agreement] sets out the general principles and minimum requirements relating to fixed-term work, recognising that their detailed application needs to take account of the realities of specific national, sectoral and seasonal situations. It illustrates the willingness of the Social Partners to establish a general framework for ensuring equal treatment for fixed-term workers by protecting them against discrimination and for using fixed-term employment contracts on a basis acceptable to employers and workers.’

7 According to Clause 1 of the Framework Agreement, the purpose of that agreement is, first, to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination and, second, to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

8 Clause 3 of the Framework Agreement, entitled ‘Definitions’, provides:

‘1. For the purpose of this agreement the term “fixed-term worker” means a person having an employment contract or relationship entered into directly between an employer and a worker where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event.

2. For the purpose of this agreement, the term “comparable permanent worker” means a worker with an employment contract or relationship of indefinite duration, in the same establishment, engaged in the same or similar work/occupation, due regard being given to qualifications/skills. ...’

9 Clause 4 of the Framework Agreement, entitled ‘Principle of non-discrimination’, provides in paragraph 1:

‘In respect of employment conditions, fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds.’

The relevant provisions of Spanish law

10 Article 12(6) and (7) of the texto refundido de la Ley del Estatuto de los Trabajadores (consolidated text of the Law on the Workers’ Statute), approved by the Real Decreto Legislativo 1/1995 (Royal Legislative Decree 1/1995) of 24 March 1995 (BOE No 75 of 29 March 1995, p. 9654), in its version applicable at the time of the facts in the main proceedings (‘the Workers’ Statute’), provides:

‘6. In order for a worker to take partial retirement, ... he shall agree with his employer to a reduction in working hours and remuneration of at least 25% and no more than 75%, ... At the same time the employer shall conclude a “relief” contract, in accordance with the provisions of the following paragraph, in order to cover the working hours no longer covered as a result of the worker taking partial retirement. A “relief” contract may equally be concluded in order to replace workers taking partial retirement after reaching the age of 65.

There may be an 85% reduction in working hours and remuneration where the “relief” contract is concluded for an indefinite duration on a full-time basis ...

The performance of that part-time employment contract and remuneration under the contract shall be compatible with the retirement pension granted to the worker by social security in respect of partial retirement.

The employment relationship shall come to an end when the worker takes full retirement.

7. The “relief” contract shall be governed by the following rules:

(a) It shall be entered into with an unemployed worker or a worker who already has a fixed-term contract with the employer.

(b) Except in the case referred to in the second subparagraph of paragraph 6, the “relief” contract entered into following a partial retirement must be of indefinite duration or at least of a duration equal to the time remaining until the replaced worker reaches the age of 65. If, when he reaches that age, the partially-retired worker is still employed by the employer, the “relief” contract concluded for a fixed-term may be extended, by agreement of the parties, from year to year; in any case it shall terminate at the end of the period corresponding to the year during which the “relieved” worker takes full retirement.

Where a worker takes partial retirement after reaching the age of 65, the “relief” contract that may be concluded by the employer in order to cover the working time no longer covered by that worker may be of indefinite duration or annual. In the latter case, the contract shall be extended automatically from year to year and terminate in the way described in the preceding subparagraph.

...

(d) The post of the “relief” worker may be the same as that of the worker replaced or a similar post, namely a post the tasks of which fall within the same occupational group or within an equivalent category.

...’

11 Article 15(1) of the Workers’ Statute provides:

‘An employment contract may be concluded for an indefinite period or for a fixed term. A fixed-term contract may be concluded in the following cases:

(a) Where the worker is employed in order to complete a task which is specific, autonomous and separable from the employer’s activities as a whole, and the task, while limited in time, will be performed, in principle, over an undeterminable period ...

(b) Where market circumstances, an accumulation of work or an excessively large number of orders so require, including in the course of the employer’s normal business ...

(c) In the event of replacement of workers entitled to retain their post, provided that the employment contract specifies the name of the replaced worker and the reason for the replacement.’

12 Under the first subparagraph of Article 15(6) of that statute, workers with temporary fixed-term contracts are to have the same rights as workers with contracts of indefinite duration, without prejudice to the special arrangements of each type of contract as regards termination and those expressly provided for by law in relation to...