10.9.2011

Official Journal of the European Union

C 269/37

(Case C-363/11)

2011/C 269/77

Language of the case: Greek

Referring court

Parties to the main proceedings

Applicant: Commissioner of the Court of Auditors at the Ministry of Culture and Tourism

Defendant: Audit Service of the Ministry of Culture and Tourism and Konstantinos Antonopoulos

Questions referred

1.Does payment or non-payment of remuneration to a worker during leave of absence from work on trade union business constitute a working condition or employment condition under European Union law (‘EU law’) and, in particular, do provisions of law allowing unpaid leave for union business to be granted to workers with a fixed-term employment relationship in the public sector who do not hold an established post and who are officials of a trade union organisation introduce a ‘working condition’ within the meaning of Article 137(1)(b) EC and an ‘employment condition’ in accordance with Clause 4(1) of the framework agreement [Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP] or does this question come within the areas of pay and the right of association to which EU law does not apply?

2.If the answer to Question 1 is in the affirmative, is a worker with a private-law employment relationship of indefinite duration with the civil service who holds an established post and is employed on the same work as a worker with a private-law fixed-term employment relationship who does not hold an established post ‘comparable’ to that worker within the meaning of Clauses 3(2) and 4(1), of the framework agreement or does the fact that the national Constitution (Article 103) and its implementing laws provide for a special employment regime for such workers (terms of employment and specific safeguards in accordance with Article 103(3) of the Constitution) suffice to classify them as not ‘comparable’ to workers with a private-law fixed-term employment relationship who do not hold an established post?

3.(a) If the effect of a combination of national legislative provisions is that public sector employees with an employment relationship of indefinite duration who hold an established post and who are officials of a second-level trade union organisation receive paid leave (up to nine days a month) for trade union business, while workers in the same service with a fixed-term employment relationship who do not hold an established post but who do have the same trade union status receive unpaid leave of the same duration for trade union business, does the distinction in question constitute less favourable treatment of the second category of workers within the meaning of Clause 4(1) of the framework agreement and

(b)Do the fixed term of the employment relationship of the second category of workers and the fact that that category is distinct in terms of the employment regime in general (terms of recruitment, promotion and termination of the employment relationship) constitute objective grounds that might justify that discrimination?

4.Does the distinction at issue between trade union officials who are workers with a contract of indefinite duration and who hold an established position in the civil service and fixed-term workers with the same trade union status who do not hold an established post in the same service infringe the principle of non-discrimination in the pursuit of trade union rights in accordance with Articles 12, 20, 21 and 28 of the Charter of Fundamental Rights of the European Union or can that distinction be justified on the grounds that the two categories of workers have a different employment status?