# C_2018373EN.01000301.xml

| 15.10.2018 | EN | Official Journal of the European Union | C 373/3 |
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15.10.2018

EN

Official Journal of the European Union

C 373/3

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Request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo de Madrid (Spain) lodged on 28 June 2018 — Berta Fernández Álvarez, BMM, TGV, Natalia Fernández Olmos, María Claudia Téllez Barragán v Consejería de Sanidad de la Comunidad de Madrid

(Case C-429/18)

(2018/C 373/03)

Language of the case: Spanish

Referring court

Juzgado de lo Contencioso-Administrativo de Madrid

Parties to the main proceedings

Applicant: Berta Fernández Álvarez, BMM, TGV, Natalia Fernández Olmos, María Claudia Téllez Barragán

Defendant: Consejería de Sanidad de la Comunidad de Madrid

Questions referred

| 1. | Is this court’s interpretation of the Framework Agreement annexed to Directive 1999/70/EC (1) correct and is it correct to take the view that the employment of the applicants on temporary appointments constitutes abuse in so far as the public employer uses different contractual models, all of which are temporary, to ensure, on a permanent and stable basis, performance of the ordinary duties of permanent regulated staff and to cover structural defects and needs which are, in fact, not temporary but fixed and permanent? Is the type of temporary appointment described therefore not justified as an objective reason for the purposes of clause 5(1)(a) of the Framework Agreement, in that such use of fixed-term contracts conflicts directly with the second paragraph of the preamble of the Framework Agreement and with general considerations 6 and 8 of that agreement, since there are no circumstances which would justify the use of such fixed-term employment contracts? |
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1.

Is this court’s interpretation of the Framework Agreement annexed to Directive 1999/70/EC (1) correct and is it correct to take the view that the employment of the applicants on temporary appointments constitutes abuse in so far as the public employer uses different contractual models, all of which are temporary, to ensure, on a permanent and stable basis, performance of the ordinary duties of permanent regulated staff and to cover structural defects and needs which are, in fact, not temporary but fixed and permanent? Is the type of temporary appointment described therefore not justified as an objective reason for the purposes of clause 5(1)(a) of the Framework Agreement, in that such use of fixed-term contracts conflicts directly with the second paragraph of the preamble of the Framework Agreement and with general considerations 6 and 8 of that agreement, since there are no circumstances which would justify the use of such fixed-term employment contracts?

| 2. | Is this court’s interpretation of the Framework Agreement annexed to Directive 1999/70/EC correct and is it correct to take the view that, in line with that interpretation, the holding of a conventional selection process, with the features described, is not an equivalent measure and cannot be regarded as a penalty, since it is not proportional to the abuse committed, the consequence of which is the termination of the temporary worker’s appointment, in breach of the objectives of the directive, and the continued unfavourable situation of temporary regulated employees, nor can it be regarded as an effective measure in so far as it does not create any detriment to the employer, and nor does it fulfil any deterrent function, and therefore it is not compatible with the first paragraph of Article 2 of Directive 1999/70 in that it does not ensure that the Spanish State achieves the results imposed by the directive? |
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2.

Is this court’s interpretation of the Framework Agreement annexed to Directive 1999/70/EC correct and is it correct to take the view that, in line with that interpretation, the holding of a conventional selection process, with the features described, is not an equivalent measure and cannot be regarded as a penalty, since it is not proportional to the abuse committed, the consequence of which is the termination of the temporary worker’s appointment, in breach of the objectives of the directive, and the continued unfavourable situation of temporary regulated employees, nor can it be regarded as an effective measure in so far as it does not create any detriment to the employer, and nor does it fulfil any deterrent function, and therefore it is not compatible with the first paragraph of Article 2 of Directive 1999/70 in that it does not ensure that the Spanish State achieves the results imposed by the directive?

| 3. | Is this court’s interpretation of the first paragraph of Article 2 of Directive 1999/70 and of the judgment of the Court of Justice of the European Union of 14 September 2016 in Case C-16/15 (2) correct and is it correct to take the view that, in line with that interpretation, the holding of a selection process that is open to external candidates is not an appropriate measure to penalise abuse arising from the use of successive temporary appointments, since Spanish legislation does not provide for an effective, dissuasive penalty mechanism which puts an end to the abuse arising from the appointment of temporary regulated staff and does not enable those permanent posts created to be filled by the staff who were the victims of the abuse, such that the precarious situation of those workers continues? |
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3.

Is this court’s interpretation of the first paragraph of Article 2 of Directive 1999/70 and of the judgment of the Court of Justice of the European Union of 14 September 2016 in Case C-16/15 (2) correct and is it correct to take the view that, in line with that interpretation, the holding of a selection process that is open to external candidates is not an appropriate measure to penalise abuse arising from the use of successive temporary appointments, since Spanish legislation does not provide for an effective, dissuasive penalty mechanism which puts an end to the abuse arising from the appointment of temporary regulated staff and does not enable those permanent posts created to be filled by the staff who were the victims of the abuse, such that the precarious situation of those workers continues?

| 4. | Is it correct to take the view, as this court does, that the conversion of a temporary worker who has been the victim of the misuse of temporary appointments into a worker having a appointment ‘of indefinite duration but not permanent’ is not an effective penalty, in so far as a worker classified in this way may have his appointment terminated either because his post has been filled in a selection process or because his post has been abolished, and therefore that penalty is incompatible with the Framework Agreement for the purposes of preventing misuse of fixed-term contracts, since it does not comply with the first paragraph of Article 2 of Directive 1999/70 in that it does not ensure that the Spanish State achieves the results imposed by the directive?
  In the light of that situation, it is necessary in the circumstances described to repeat the following questions, included in the reference for a preliminary ruling made on 30 January 2018 in Expedited Proceedings 193/2017 before J[uzgado] C[ontencioso-]A[dministrativo] n.o 8 de Madrid (Administrative Court No 8, Madrid): (3) |
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4.

Is it correct to take the view, as this court does, that the conversion of a temporary worker who has been the victim of the misuse of temporary appointments into a worker having a appointment ‘of indefinite duration but not permanent’ is not an effective penalty, in so far as a worker classified in this way may have his appointment terminated either because his post has been filled in a selection process or because his post has been abolished, and therefore that penalty is incompatible with the Framework Agreement for the purposes of preventing misuse of fixed-term contracts, since it does not comply with the first paragraph of Article 2 of Directive 1999/70 in that it does not ensure that the Spanish State achieves the results imposed by the directive?

In the light of that situation, it is necessary in the circumstances described to repeat the following questions, included in the reference for a preliminary ruling made on 30 January 2018 in Expedited Proceedings 193/2017 before J[uzgado] C[ontencioso-]A[dministrativo] n.o 8 de Madrid (Administrative Court No 8, Madrid): (3)

| 5. | If the national courts find that there is abuse arising from the use of successive appointments of temporary regulated staff to cover vacancies in the Madrid Health Service and that they are being used to cover permanent structural needs in the provision of services by permanent regulated employees, given that domestic law contains no effective or deterrent measure to penalise such misuse and eliminate the consequences of the breach of EU legislation, must Clause 5 of the Framework Agreement annexed to Directive 1999/70/EC be interpreted as requiring the national courts to adopt effective deterrent measures to ensure the effectiveness of the Framework Agreement, and therefore to penalise that misuse and eliminate the consequences of the breach of that EU legislation, disapplying the rule of domestic law that prevents it from being effective?
  If the answer should be affirmative, as held by the Court of Justice of the European Union in paragraph 41 of its judgment of 14 September 2016 in Cases C-184/15 and C-197/15: (4)

  As a measure to prevent and penalise the misuse of successive temporary appointments and to eliminate the consequence of the breach of EU law, would it be consistent with the objectives pursued by Directive 1999/70/EC to convert the temporary interim/occasional/replacement regulated relationship into a stable regulated relationship, the employee being classified as a permanent official or an official with an appointment of indefinite duration, with the same security of employment as comparable permanent regulated employees, on the basis that the national legislation prohibits absolutely, in the public sector, the conversion into a contract of indefinite duration of a succession of fixed-term employment contracts, since no other effective measure exists to prevent and, where relevant, penalise the misuse of successive fixed-term employment contracts? |
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5.

If the national courts find that there is abuse arising from the use of successive appointments of temporary regulated staff to cover vacancies in the Madrid Health Service and that they are being used to cover permanent structural needs in the provision of services by permanent regulated employees, given that domestic law contains no effective or deterrent measure to penalise such misuse and eliminate the consequences of the breach of EU legislation, must Clause 5 of the Framework Agreement annexed to Directive 1999/70/EC be interpreted as requiring the national courts to adopt effective deterrent measures to ensure the effectiveness of the Framework Agreement, and therefore to penalise that misuse and eliminate the consequences of the breach of that EU legislation, disapplying the rule of domestic law that prevents it from being effective?

If the answer should be affirmative, as held by the Court of Justice of the European Union in paragraph 41 of its judgment of 14 September 2016 in Cases C-184/15 and C-197/15: (4)

As a measure to prevent and penalise the misuse of successive temporary appointments and to eliminate the consequence of the breach of EU law, would it be consistent with the objectives pursued by Directive 1999/70/EC to convert the temporary interim/occasional/replacement regulated relationship into a stable regulated relationship, the employee being classified as a permanent official or an official with an appointment of indefinite duration, with the same security of employment as comparable permanent regulated employees, on the basis that the national legislation prohibits absolutely, in the public sector, the conversion into a contract of indefinite duration of a succession of fixed-term employment contracts, since no other effective measure exists to prevent and, where relevant, penalise the misuse of successive fixed-term employment contracts?

| 6. | If there is abuse of successive temporary appointments, can the conversion of the temporary regulated relationship into an indefinite or permanent relationship be regarded as satisfying the objectives of Directive 1999/70/EC and its Framework Agreement only if the temporary regulated employee who has been the victim of this misuse enjoys exactly the same working conditions as permanent regulated employees (as regards social security, promotion, opportunities to cover vacant posts, training, leave of absence, determination of administrative status, sick leave and other permitted absences, pension rights, termination of employment and participation in selection competitions to fill vacancies and obtain promotion) in accordance with the principles of permanence and security of employment, with all associated rights and obligations, on equal terms with permanent regulated staff? |
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6.

If there is abuse of successive temporary appointments, can the conversion of the temporary regulated relationship into an indefinite or permanent relationship be regarded as satisfying the objectives of Directive 1999/70/EC and its Framework Agreement only if the temporary regulated employee who has been the victim of this misuse enjoys exactly the same working conditions as permanent regulated employees (as regards social security, promotion, opportunities to cover vacant posts, training, leave of absence, determination of administrative status, sick leave and other permitted absences, pension rights, termination of employment and participation in selection competitions to fill vacancies and obtain promotion) in accordance with the principles of permanence and security of employment, with all associated rights and obligations, on equal terms with permanent regulated staff?

| 7. | Taking into account the existence, if any, of improper use of temporary appointments to meet permanent staffing needs for no objective reason and in a manner inconsistent with the urgent and pressing need that warrants recourse to them, and for want of any effective penalties or limits in Spanish national law, would it be consistent with the objectives pursued by Directive 1999/70/EC to grant, as a means of preventing abuse and eliminating the consequence of infringing EU law, compensation comparable to that for unfair dismissal, that is to say, compensation that serves as an adequate, proportional, effective and dissuasive penalty, in circumstances where an employer does not offer a worker a permanent post? |
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7.

Taking into account the existence, if any, of improper use of temporary appointments to meet permanent staffing needs for no objective reason and in a manner inconsistent with the urgent and pressing need that warrants recourse to them, and for want of any effective penalties or limits in Spanish national law, would it be consistent with the objectives pursued by Directive 1999/70/EC to grant, as a means of preventing abuse and eliminating the consequence of infringing EU law, compensation comparable to that for unfair dismissal, that is to say, compensation that serves as an adequate, proportional, effective and dissuasive penalty, in circumstances where an employer does not offer a worker a permanent post?

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(1)  Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43).

(2)  Judgment of 14 September 2016, Pérez López (C-16/15, EU:C:2016:679).

(3)  Case C-103/18, Sánchez Ruiz.

(4)  Judgment of 14 September 2016, Martínez Andrés and Castrejana López (C-184/15 and C-197/15, EU:C:2016:680).

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