# C_2015096EN.01000801.xml

| 23.3.2015 | EN | Official Journal of the European Union | C 96/8 |
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23.3.2015

EN

Official Journal of the European Union

C 96/8

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Request for a preliminary ruling from the Juzgado Contencioso-Administrativo de Madrid (Spain) lodged on 19 January 2015 — María Elena Pérez López v Servicio Madrileño de Salud (Comunidad de Madrid)

(Case C-16/15)

(2015/C 096/10)

Language of the case: Spanish

Referring court

Referring court

Juzgado Contencioso-Administrativo 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:

Questions referred

Questions referred

| 1. | Does Article 9.3 of State Law 55/2003 of 16 December on the framework regulations for health service staff regulated under administrative law (‘regulated staff’) infringe the Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP on 18 March 1999, annexed to Council Directive 1999/70/EC (1) of 28 June 1999, and is it therefore inapplicable, because it encourages abuse arising from the use of successive appointments of ‘occasional’ (eventual) regulated staff, in that it:






  — | does not fix a maximum total duration of successive appointments of occasional regulated staff, nor a maximum number of renewals of those appointments; |
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1.

Does Article 9.3 of State Law 55/2003 of 16 December on the framework regulations for health service staff regulated under administrative law (‘regulated staff’) infringe the Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP on 18 March 1999, annexed to Council Directive 1999/70/EC (1) of 28 June 1999, and is it therefore inapplicable, because it encourages abuse arising from the use of successive appointments of ‘occasional’ (eventual) regulated staff, in that it:

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eventual

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does not fix a maximum total duration of successive appointments of occasional regulated staff, nor a maximum number of renewals of those appointments;

| — | leaves to the discretion of the authorities the decision whether to create permanent posts where more than two appointments are made for the provision of the same services for a total period of 12 months or more in a period of two years; and |
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leaves to the discretion of the authorities the decision whether to create permanent posts where more than two appointments are made for the provision of the same services for a total period of 12 months or more in a period of two years; and

| — | allows appointments of occasional regulated staff to be made without requiring that the notices of appointment indicate the specific objective reasons of a temporary, occasional or extraordinary nature justifying those appointments? |
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allows appointments of occasional regulated staff to be made without requiring that the notices of appointment indicate the specific objective reasons of a temporary, occasional or extraordinary nature justifying those appointments?

| 2. | Does Article 11.7 of the Order of the Ministry of Economic Affairs and Finance of the Community of Madrid of 28 January 2013 infringe the Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP on 18 March 1999, annexed to Council Directive 1999/70/EC of 28 June 1999, and is it therefore inapplicable, because it provides that ‘at the end of the appointment period, termination of service and payment of all outstanding remuneration corresponding to the period of services provided must be carried out in all cases, including those in which the person concerned is subsequently to be reappointed’, irrespective, therefore, of whether or not the specific, objective reasons justifying the appointment have come to an end, as required under Clause 3.1 of the Framework Agreement? |
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2.

Does Article 11.7 of the Order of the Ministry of Economic Affairs and Finance of the Community of Madrid of 28 January 2013 infringe the Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP on 18 March 1999, annexed to Council Directive 1999/70/EC of 28 June 1999, and is it therefore inapplicable, because it provides that ‘at the end of the appointment period, termination of service and payment of all outstanding remuneration corresponding to the period of services provided must be carried out in all cases, including those in which the person concerned is subsequently to be reappointed’, irrespective, therefore, of whether or not the specific, objective reasons justifying the appointment have come to an end, as required under Clause 3.1 of the Framework Agreement?

| 3. | Is it in accordance with the intended purpose of the Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP on 18 March 1999, annexed to Council Directive 1999/70/EC of 28 June 1999 for the third subparagraph of Article 9.3 of State Law 55/2003 of 16 December on the framework regulations for health service staff regulated under administrative law to be interpreted to the effect that, if more than two appointments are made for the provision of the same services for a total period of 12 months or more in a period of two years, a permanent post must be created in the heath-care institution, so that the worker appointed on an occasional basis becomes appointed to cover that post on an interim basis? |
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3.

Is it in accordance with the intended purpose of the Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP on 18 March 1999, annexed to Council Directive 1999/70/EC of 28 June 1999 for the third subparagraph of Article 9.3 of State Law 55/2003 of 16 December on the framework regulations for health service staff regulated under administrative law to be interpreted to the effect that, if more than two appointments are made for the provision of the same services for a total period of 12 months or more in a period of two years, a permanent post must be created in the heath-care institution, so that the worker appointed on an occasional basis becomes appointed to cover that post on an interim basis?

| 4. | Is the application to occasional regulated staff of the same severance pay provided for in the case of workers with occasional employment contracts, given that the two situations are substantially identical, in accordance with the intended purpose of the Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP on 18 March 1999, annexed to Council Directive 1999/70/EC of 28 June 1999, since it would not make sense for workers of the same type, providing services in the same entity (the Servicio Madrileño de Salud (Madrid Health Service)), carrying out the same tasks and meeting the same temporary needs to be treated differently upon the termination of their employment, in the absence of any apparent reason that would prevent comparisons being made between fixed-term relationships in order to avoid discriminatory situations? |
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4.

Is the application to occasional regulated staff of the same severance pay provided for in the case of workers with occasional employment contracts, given that the two situations are substantially identical, in accordance with the intended purpose of the Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP on 18 March 1999, annexed to Council Directive 1999/70/EC of 28 June 1999, since it would not make sense for workers of the same type, providing services in the same entity (the Servicio Madrileño de Salud (Madrid Health Service)), carrying out the same tasks and meeting the same temporary needs to be treated differently upon the termination of their employment, in the absence of any apparent reason that would prevent comparisons being made between fixed-term relationships in order to avoid discriminatory situations?

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(1)  OJ 1999 L 175, p. 43.

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