Key Issues:        Social Policy - Principle of pro rata temporis

Case:                  Ville de Mons, Zone de secours Hainaut-Centre v RM

Reference:         Case C-377/21, CJEU (Seventh Chamber), 7 July 2022

Legislation:       Directive 97/81/EC

Background

During the period from 1 January 1982 to 31 July 2002, RM was recruited as a volunteer firefighter by the City of Mouscron (Belgium). During that period, he worked as a heavy goods vehicle driver under private sector employment contracts from 30 July 1990 to 11 February 1995 and from 23 March 1995 to 8 February 1998, as well as a guard from 9 February 1998 to 30 March 2001. RM was appointed as a professional firefighter-driver by the city of Mons on a probationary basis, with effect from 1 April 2001, then on a definitive basis from 1 April 2002.

For the purposes of calculating the remuneration of professional firefighters, their ‘length of service’ is taken into account, which is determined on the basis of the recognition, under certain conditions, of the length of service they have provided in the public and private sectors. In respect of the period preceding RM’s appointment as a professional firefighter-driver, the following length of service for remuneration purposes was granted:

• for the period from 1 January 1982 to 29 July 1990: 3 months and 17 days, corresponding pro rata to the 811 hours working hours actually undertaken as a volunteer firefighter in the fire service of Mouscron, and
• for the period from 30 July 1990 to 30 March 2001: six years, corresponding to the maximum duration which may be accounted for in respect of services performed in the private sector as provided for in Belgian law.

On 1 January 2015, the fire services in Belgium went from a municipal organisation to a ‘zonal’ system, comprising of 34 ‘rescue zones’; professional fire fighters working in a municipality became members of the operational staff of the rescue zones to which that municipality belongs. Thus, from that date, RM became a firefighter within the Hainaut-Central Rescue Area, which applied to him the same length of service for remuneration purposes as that previously granted to him by the city of Mons.

On 14 July 2015, RM requested the Hainaut-Central Rescue Area to adjust the amount of his remuneration on the ground that his length of service for remuneration purposes, acquired as a volunteer firefighter, had not been taken into account correctly. He requested that account be taken in full of the period during which he worked as a volunteer firefighter, that is to say, from 1 January 1982 to 31 July 2002, which corresponds to a total of 20 years and 7 months, without taking into account the precise volume of his services. He took the view that the accreditation of that work under the principle of pro rata temporis amounted to creating an unjustified difference in treatment between full-time workers and part-time workers. He thus claimed that he was entitled to annual remuneration corresponding to the highest step, namely that relating to a length of service of 25 years or more, in so far as, taking into account all his years of service as a volunteer firefighter, his length of service was, as of 1 January 2015, 33 years.

The Hainaut-Central Rescue Area rejected RM’s request. RM issued legal proceedings and the Mons Higher Labour Court decided to stay the proceedings and to refer a question to the Court of Justice (CJEU) for a preliminary ruling. This request for a preliminary ruling concerns the interpretation of Clause 4 of the Framework Agreement on part-time work concluded on 6 June 1997 (‘the Framework Agreement’).

Consideration by CJEU

The CJEU noted first that the Framework Agreement, by clause 2.1 thereof, applies ‘to part-time workers who have an employment contract or employment relationship as defined by the law, collective agreement or practice in force in each Member State.’

The CJEU has held that the concept of ‘part-time workers who have an employment contract or employment relationship’ must be interpreted in accordance with national law. Furthermore, it is clear from the wording of Clause 2.1 of the Framework Agreement that the agreement is intended to be broad in scope. In addition, the definition of ‘part-time workers’ for the purposes of the Framework Agreement, set out in Clause 3.1, encompasses all workers without drawing a distinction according to whether their employer is in the public, or private, sector.

In the present case, the referring court observes that the national legislation, transposing the Framework Agreement into the Belgian legal system, applies only to workers bound by an employment contract. The Belgian courts have stated that the activity of volunteer firefighters forms part of an employment relationship governed by specific rules and is non-contractual in nature. However, in the light of the case-law of the CJEU, it must be held that, as the referring court points out, volunteer firefighters are covered by the Framework Agreement, in that their employment relationship is defined by national law, within the meaning of Clause 2.1 of that Framework Agreement.

The mere fact that a worker has obtained the status of full-time worker does not mean that, in certain circumstances, he or she cannot rely on the principle of non-discrimination laid down in Clause 4 of the Framework Agreement, where the discrimination claimed, concerns periods completed as a part-time worker. The automatic exclusion of the application of the Framework Agreement in a situation such as that in the main proceedings would, in disregard of the objective attributed to that Clause 4, effectively reduce the scope of the protection against discrimination for the workers concerned and would give rise to an unduly restrictive interpretation of the clause, contrary to the case-law of the CJEU.

Next, in order to assess whether the detailed rules for taking into account the length of service for remuneration purposes at issue in the main proceedings meet the requirements of Clause 4 of the Framework Agreement, the CJEU noted that the requirement of equivalence between full-time and part-time workers in respect of working conditions, arising from the principle of non-discrimination laid down in Clause 4.1, is without prejudice to the appropriate application, under Clause 4.2, of the principle of pro rata temporis. The taking into account of the amount of time actually worked by a part-time worker, as compared with that of a full-time worker, is an objective ground within the meaning of Clause 4.1 of the Framework Agreement, justifying a proportionate reduction of the rights and employment conditions of a part-time worker.

The CJEU held that:     

Clause 4 of the Framework Agreement is to be interpreted as not precluding national legislation which, for the purposes of calculating the remuneration of professional firefighters employed on a full-time basis, accredits, in respect of the length of service for remuneration purposes, work performed previously on a part-time basis as a volunteer firefighter in line with the principle of pro rata temporis, that is to say, on the basis of the work actually performed.

Why Is This Decision Important?

Although by this decision the CJEU confirms that the Framework Agreement does apply to part time employees, the principle of pro rata temporis can be used by employers, in accordance with national law, to calculate correctly the amount of time actually worked by the part time employee when calculating the remuneration which should apply to them as a full-time employee. 
https://curia.europa.eu/juris/liste.jsf?lgrec=fr&td=%3BALL&language=en&num=C-377/21&jur=C

Note: Although the EU (Withdrawal) Act 2018 provides that a UK court or tribunal is not bound by decisions of the CJEU after the UK leaves the EU, it is likely that UK courts and tribunals will continue to have regard to decisions (past and future) of the CJEU in regard to “retained EU law” unless the UK Supreme Court decides to depart from the CJEU on a particular matter. For this reason, we consider it important to continue to provide case reports on noteworthy CJEU decisions.    

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