Del Cerro Alonso v Osakidetza (Servicio Vasco de Salud): (Case C-307/05)

ECJ: President of Chamber CWA Timmermans, Judges R Schintgen, J Klucka, J Makarczyk and G Arestis, Advocate General M Poiares Maduro: 13 September 2007

The claimant worked in the Basque Health Service in Spain, initially as part of the "temporary regulated staff" and later as a member of the "permanent regulated staff". She applied for the payment of length-of-service allowances provided for in the relevant Law, but was refused in respect of the period before her establishment in the permanent staff on the ground that, under the Law, temporary staff were not entitled to the allowances. In an action in which the claimant challenged the refusal decision on the ground that it involved discrimination against temporary staff, a reference was made to the Court of Justice of the European Communities for a preliminary ruling on the questions (1) whether financial matters such as the allowances in issue came within "employment conditions", in respect of which clause 4(1) of the framework agreement on fixed-time work annexed to Council Directive 1999/70/EC required fixed-term workers not to be treated less favourably than comparable permanent workers, and (2) if the answer to that was affirmative, whether, none the less, the fact that the difference in treatment was stipulated by legislation or, as was also the case with the Basque Health Service, in an industrial agreement, constituted "objective grounds" capable of justifying it under the proviso in clause 4(1). It was argued by certain intervening Governments that the answer to the first question should be in the negative because article 137(5) EC, referred to in article 139(2) EC on which Directive 1999/70 was based, provided that the Council of the European Union's empowerment by article 137 to lay down minimum requirements in relation inter alia to working conditions, "shall not apply to pay".

The Court of Justice held:
(1) The principle of non-discrimination which it was the objective of the framework agreement to apply to fixed-term workers, so as to prevent their being denied rights which were recognised for permanent workers, was to be interpreted broadly. Article 137(5) EC, as a derogation from the preceding provisions in that article, was to be interpreted narrowly, and "pay" in that paragraph was to be taken as limited to the determination of levels of pay as such and not as extending to any employment condition whose application led to a pay differential. In the light of those considerations, the concept of "employment conditions" referred to in clause 4(1) of the framework agreement on fixed-term work could act as a basis for a claim such as that at issue, which sought the grant to a fixed-term worker of a length-of-service allowance which was reserved under national law solely to permanent staff.
(2) The "objective grounds"referred to in clause 4(1) which could justify unequal treatment could not comprise general, abstract national norms such as laws or collective agreements, but meant precise and concrete factors, characterising the employment condition in question, in the specific context in which it occurred, and on the basis of objective and transparent criteria, which ensured that the unequal treatment in fact responded to a genuine need, was appropriate for achieving the objective pursued, and was necessary for that purpose. Accordingly, clause 4(1) precluded the introduction of a difference in treatment between fixed-term workers and permanent workers which was justified solely on the basis that it was provided for by a provision of statute or secondary legislation of a member state or by a collective agreement concluded between the staff union representatives and the relevant employer.

Appearances: Tim Ward and Kassie Smith (Treasury Solicitor) for the United Kingdom Government.