Yolanda Del Cerro Alonso v Osakidetza (Servicio Vasco de Salud): ECJ 10 Jan 2007

ECJ ETUC-UNICE-CEEP framework agreement Fixed-term work Working conditions Length’of’service allowance Not received due to agreements between staff union and administration Adequate objective grounds.
Workers in the Basque health service were initially classified as ‘temporary regulated staff’ but were then regraded as permanent, but were refused length-of-service allowances in respect of their service in the temporary grade and made complaints under the Directive 99/70/EC. Their claims were resisted by the health service on the ground of objective justification, but the Kingdom of Spain intervened to contend that the regulated staff, as public-sector workers, were completely outside the scope of the Directive (which contained a definition of ‘worker’ in terms very similar to that in Clause 2(1) of the Framework Agreement under the PTWD). Advocate-General (Poiares Maduro) concluded: ‘That conditional renvoi appears to me to be the process which is most faithful to both the letter and the spirit of the Community legislation. The effect of it is that the member state cannot merely rely on the formal or special nature of the rules applicable to certain employment relationships in order to exclude the latter from the benefit of the protection afforded by the Framework Agreement. If that were the case, there would be grounds for concern that the Framework Agreement could be rendered completely redundant. If it were the case, it would be open to any member state to make the contract staff of the public authorities subject to special rules in order to call in question the decisions adopted by the Court of Justice in Adeneler v Ellinikos Organismos Galaktos (ELOG) (Case C-212/04) [2006] ECR I-6057; Marrosu v Azienda Ospedaliera Ospedale San Martino di . . Genova . . (Case C-53/04) [2006] ECR I-7213 and Vassalo v Azienda Ospedaliera Ospedale San Martino di Genova . . (Case C-180/04) [2006] ECR I-7251. Consequently, the exclusion of public servants from the scope of Directive 99/70 cannot be accepted unless it is demonstrated that the nature of the employment relationship between them and the administration is substantially different from that between employees falling, according to national law, within the category of ‘workers’ and their employers.’
Held: ‘The mere fact that a post may be classified as ‘regulated’ under national law and has certain characteristics typical of the Civil Service in the member state in question is irrelevant in that regard. Otherwise, in reserving to member states the ability to remove at will certain categories of persons from the protection offered by Directive 99/70 and the Framework Agreement, the effectiveness of those Community instruments would be in jeopardy as would their uniform application in the member states: see, by analogy, Landeshauptstadt Kiel v Jaeger (Case C-151/02) [2004] ICR 1528, paras 58 and 59, and Pfeiffer v Deutsches Rotes Kreuz (Joined Cases C-397-403/01) [2005] ICR 1307, para 99. As is clear not only from the third paragraph of article 249 EC, but also from the first paragraph of article 2 of Directive 99/70, in light of recital (17) of the preamble to that Directive [which is identical to recital (16) of the PTWD] the member states are required to guarantee the result imposed by Community law: Adeneler [2006] ECR I-6057, para 68.’
C-307/05, [2007] EUECJ C-307/05, [2008] ICR 145
Council Directive 99/70/EC
Cited by:
CitedO’Brien v Ministry of Justice SC 28-Jul-2010
The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office . .
CitedDuncombe and Others v Secretary of State for Children, Schools and Families SC 29-Mar-2011
The government operated European Schools catering for children of staff of the European Community. The school staff challenged as unlawful, the contracts restricting their terms of employment with the schools to a maximum of nine years.
Held: . .
CitedO’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .

These lists may be incomplete.
Updated: 01 February 2021; Ref: scu.247913