# C_2016419EN.01001201.xml

| 14.11.2016 | EN | Official Journal of the European Union | C 419/12 |
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14.11.2016

EN

Official Journal of the European Union

C 419/12

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Judgment of the Court (Tenth Chamber) of 14 September 2016 (request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 4 de Madrid — Spain) — María Elena Pérez López v Servicio Madrileño de Salud (Comunidad de Madrid)

(Case C-16/15) (1)

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((Reference for a preliminary ruling - Social policy - Directive 1999/70/EC - Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP - Clauses 3 to 5 - Successive fixed-term employment contracts within the public health service - Measures to prevent the abusive use of successive fixed-term employment relationships - Penalties - Reclassification of the employment relationship - Right to compensation))

(2016/C 419/14)

Language of the case: Spanish

Referring court

Referring court

Juzgado de lo Contencioso-Administrativo No 4 de Madrid

Parties to the main proceedings

Parties to the main proceedings

Applicant: María Elena Pérez López

Applicant:

Defendant: Servicio Madrileño de Salud (Comunidad de Madrid)

Defendant:

Operative part of the judgment

Operative part of the judgment

| 1. | Clause 5(1)(a) of the framework agreement on fixed-term work, concluded on 18 March 1999, set out in the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as precluding the application of national legislation, such as that at issue in the main proceedings, by the authorities of the Member State concerned in such a way that:






  — | the renewal of successive fixed-term employment contracts in the public health sector is deemed to be justified by ‘objective grounds’, within the meaning of that clause, on the ground that those contracts are founded on legal provisions allowing them to be renewed in order to ensure the provision of certain services of a temporary, auxiliary or extraordinary nature when, in fact, those needs are fixed and permanent; |
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1.

Clause 5(1)(a) of the framework agreement on fixed-term work, concluded on 18 March 1999, set out in the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as precluding the application of national legislation, such as that at issue in the main proceedings, by the authorities of the Member State concerned in such a way that:

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the renewal of successive fixed-term employment contracts in the public health sector is deemed to be justified by ‘objective grounds’, within the meaning of that clause, on the ground that those contracts are founded on legal provisions allowing them to be renewed in order to ensure the provision of certain services of a temporary, auxiliary or extraordinary nature when, in fact, those needs are fixed and permanent;

| — | there is no obligation on the competent authority to create additional permanent posts in order to bring an end to the employment of occasional regulated staff and it is permitted to fill the permanent posts created by hiring ‘temporary’ staff, so that the precarious situation of workers is perpetuated, where there is a structural deficit of regulated staff posts in that sector in the Member State concerned. |
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there is no obligation on the competent authority to create additional permanent posts in order to bring an end to the employment of occasional regulated staff and it is permitted to fill the permanent posts created by hiring ‘temporary’ staff, so that the precarious situation of workers is perpetuated, where there is a structural deficit of regulated staff posts in that sector in the Member State concerned.

| 2. | Clause 5 of the framework agreement on fixed-term work set out in the Annex to Directive 1999/70 must be interpreted as meaning that it does not preclude, in principle, national legislation which requires that the contractual relationship is to terminate on the date provided by the fixed-term contract and that all outstanding remuneration is to be paid, without prejudice to a possible reappointment, provided that that legislation does not compromise the objective and practical effect of that framework agreement, which is a matter to be determined by the referring court. |
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2.

Clause 5 of the framework agreement on fixed-term work set out in the Annex to Directive 1999/70 must be interpreted as meaning that it does not preclude, in principle, national legislation which requires that the contractual relationship is to terminate on the date provided by the fixed-term contract and that all outstanding remuneration is to be paid, without prejudice to a possible reappointment, provided that that legislation does not compromise the objective and practical effect of that framework agreement, which is a matter to be determined by the referring court.

| 3. | The Court of Justice of the European Union manifestly lacks jurisdiction to answer the fourth question referred for a preliminary ruling by the Juzgado de lo Contencioso-Administrativo No 4 de Madrid (Administrative Court No 4, Madrid, Spain). |
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3.

The Court of Justice of the European Union manifestly lacks jurisdiction to answer the fourth question referred for a preliminary ruling by the Juzgado de lo Contencioso-Administrativo No 4 de Madrid (Administrative Court No 4, Madrid, Spain).

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(1)  OJ C 96, 23.3.2015.

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