Equal work, unequal pay for the Advocate General of the Court

(B2) This is a rather astonishing conclusion to which the Advocate General of the Court of Justice of the EC, Miguel Poiares Maduro, has just delivered, for the interpretation of the 1999 directive on fixed-term contracts (CDD) . The dispute raises two questions. Does this directive apply to civil servants? Does it concern remuneration? (Conclusions of January 10, case C-307/05)

It will be remembered that clause 4 of the framework agreement between social partners, concluded on 18 March 1999, implemented by the directive, provides that "with regard to employment conditions, fixed-term workers shall not be treated less favorably than comparable permanent workers on the sole ground that they work on a fixed term basis, unless different treatment is justified by objective reasons'.

Officials excluded. According to the agreement signed by the social partners, the text " applies to fixed-term workers with an employment contract or relationship defined by the legislation, collective agreements or practices in force in each Member State". Analyzing the case law (in particular the Adeneler judgment), the Advocate General considers that "the notion of worker is not unambiguous in Community law, but varies according to the field of application envisaged": broad in the "equality between men and women" directive ”, stricter in the directive “ business transfers ". A difference in the treatment of social affairs which is due to “the way of approaching the question, depending on whether the Court favors the purpose or the system (the letter) of the regulations”. For Miguel Poiares Maduro, “ it seems right to respect the letter of the framework agreement ". Thus, in this case, a civil servant would not normally fall within the scope of the CDD directive, except in specific circumstances. A qualification and an exception which he leaves the national judge free to assess. He frames
however this freedom by a condition. " The exclusion of a category of staff from the scope of this directive cannot be justified solely by the fact that this category is governed by specific rules. On the contrary, the exclusion must be justified by the existence of a type of employment relationship which cannot be compared to employment relationships subject under national law to the provisions of the framework agreement ».

Bonuses and remuneration. For the Advocate General, “both the wording and the purpose of the provisions of Directive 1999/70 seem to indicate that it does not apply to remuneration”. In addition, the directive does not refer to the conditions of remuneration contrary to other directives (“anti-discrimination” texts in 2000, “equality between men and women” in 1976, “posting of workers” in 1996). Certainly, he recognizes that,in certain cases, in the absence of indications to the contrary, the term "working conditions" may include remuneration ". The Court has thus recognized it in cases concerning transfers of undertakings (Directive 77/187). But the legal basis differs. The CDD directive is based on article 139 § 2 EC. And this refers to article 137 which states that " the Board is not empowered to adopt measures relating to compensation on this basis ».

Critical. These conclusions of the Advocate General are open to criticism on two points and, moreover, give rise to a debate at the Court of Justice. On the field of application, taking up the case law in a rather partial way, they seem to leave the reins on the neck to all national interpretations. On salaries, they are even more astonishing (see the solid argumentation of the Commission). Miguel Poiares Maduro, who we knew was more inspired, seems to navigate in a virtual universe where legal justification seems to serve a timeless ideology more than proceed from a rigorous analysis.

On the purpose of the directive, a little common sense! What is the use of a community directive whose primary objective remains to equalize the fate of certain employees with others if we do not take into account the main criterion on which an employment contract is based: remuneration. The employment contract is defined, in fact, by an exchange between remuneration and the provision of labor power. In doing so, the Advocate General gives in to a very fashionable analysis, notably at the London School of Economics (where he taught), of a chivalrous vision of work, where generosity reigns and physical limits are surpassable. He forgets the reality: 99% of people do not work for aesthetics but to earn a living. It should be noted, moreover, that many working conditions — health and safety, working hours, equality between men and women, non-discrimination of certain specific categories (young people, seniors, disabled people, ethnic minorities, etc.) — are already regulated by d other directives that apply to all workers, including CDDs. There is no need for a new directive on these points.

On the text, the rereading of the framework agreement is essential! First of all, what do we read in the foundations? " The will of the social partners (is) to establish a general framework to ensure equal treatment for fixed-term workers by protecting them against discrimination ". These refer to several European decisions and declarations, in particular the Council's desire to reach a " necessary balance between flexibility and security ". Then, the text fixes, well and truly, the principle of non-discrimination of workers on fixed-term contracts for " employment conditions », and not for the « working conditions » as the Advocate General mentions. An important semantic difference, the first term is obviously broader than the second and unequivocally targets remuneration. The agreement then states: where appropriate, the principle of ´pro rata temporis » applies. A rule which has an interest especially for the pecuniary elements of the contract (not for the green plants!). If necessary, if confirmation was needed, a single exception is expressly mentioned: " the legal social security schemes (which) are subject to the decision of the Member States ».

On the legal basis, indeed it is indisputable that article 137 " does not apply to salaries ". But the argument of the European Commission seems justified to us. In addition, we can add two points. Firstly, the directive is based on the Treaty of the European Community " and especially » its article 139. The « especially does not therefore exclude other bases. Next, the directive clearly aims in its recitals “ an improvement in living and working conditions (…) by a rapprochement in the progress of these conditions”. A provision resulting from the Community Charter of Fundamental Social Rights of 1989, taken up in the EC and EU Treaties in various places (preamble, article 2).