# C_2019025EN.01001002.xml

| 21.1.2019 | EN | Official Journal of the European Union | C 25/10 |
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21.1.2019

EN

Official Journal of the European Union

C 25/10

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Judgment of the Court (Sixth Chamber) of 21 November 2018 (Request for a preliminary ruling from the Tribunal Supremo — Spain) — Ministerio de Defensa v Ana de Diego Porras

(Case C-619/17) (1)

((Reference for a preliminary ruling - Social Policy - Directive 1999/70/EC - Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP - Clause 4 - Principle of non-discrimination - Justification - Clause 5 - Measures to prevent abuse arising from the use successive fixed-term employment contracts or relationships - Compensation in the event of termination of a permanent employment contract on objective grounds - No compensation on the expiry of a fixed-term ‘interinidad’ employment contract))

(2019/C 25/12)

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Ministerio de Defensa

Defendant: Ana de Diego Porras

Operative part of the judgment

| 1. | Clause 4(1) of the framework agreement on fixed-term work, concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, is to be interpreted as not precluding national legislation under which no provision is made for the payment of compensation to workers employed under fixed-term contracts concluded to replace a worker who has a reserved right to his post, such as the interinidad (temporary replacement) contract at issue in the main proceedings, on the expiry of the term for which those contracts were concluded, whereas compensation is paid to permanent workers when their employment contract is terminated on objective grounds. |
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1.

Clause 4(1) of the framework agreement on fixed-term work, concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, is to be interpreted as not precluding national legislation under which no provision is made for the payment of compensation to workers employed under fixed-term contracts concluded to replace a worker who has a reserved right to his post, such as the interinidad (temporary replacement) contract at issue in the main proceedings, on the expiry of the term for which those contracts were concluded, whereas compensation is paid to permanent workers when their employment contract is terminated on objective grounds.

| 2. | Clause 5 of the framework agreement on fixed-term work, which is annexed to Directive 1999/70, is to be interpreted as meaning that it is for the national court to determine, in accordance with all the rules of national law applicable, whether a measure, such as that at issue in the main proceedings, which provides for the compulsory payment of compensation to workers employed under certain fixed-term contracts on the expiry of the term for which those contracts were concluded, constitutes an adequate measure for the purpose of preventing, and, where appropriate, imposing penalties in respect of, abuse arising from the use of successive fixed-term employment contracts or relationships, or an equivalent legal measure within the meaning of that provision. |
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2.

Clause 5 of the framework agreement on fixed-term work, which is annexed to Directive 1999/70, is to be interpreted as meaning that it is for the national court to determine, in accordance with all the rules of national law applicable, whether a measure, such as that at issue in the main proceedings, which provides for the compulsory payment of compensation to workers employed under certain fixed-term contracts on the expiry of the term for which those contracts were concluded, constitutes an adequate measure for the purpose of preventing, and, where appropriate, imposing penalties in respect of, abuse arising from the use of successive fixed-term employment contracts or relationships, or an equivalent legal measure within the meaning of that provision.

| 3. | In the event the national court finds that a measure, such as that at issue in the main proceedings, which provides for the compulsory payment of compensation to workers employed under certain fixed-term contracts on the expiry of the term for which those contracts were concluded, constitutes an adequate measure for the purpose of preventing, and, where appropriate, imposing penalties in respect of, abuse arising from the use of successive fixed-term employment contracts or relationships, or an equivalent legal measure within the meaning of clause 5 of the framework agreement on fixed-term work, which is annexed to Directive 1999/70, that provision must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, under which the expiry of certain categories of fixed-term employment contracts confers entitlement to payment of such compensation to workers employed under such contracts, whereas the expiry of other categories of fixed-term employment contracts does not entitle the workers employed under those contracts to payment of any compensation, unless there is no other effective measure available under the national legal system for avoiding and imposing penalties for such abuse in respect of the latter group of workers, which is a matter for the referring court to determine. |
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3.

In the event the national court finds that a measure, such as that at issue in the main proceedings, which provides for the compulsory payment of compensation to workers employed under certain fixed-term contracts on the expiry of the term for which those contracts were concluded, constitutes an adequate measure for the purpose of preventing, and, where appropriate, imposing penalties in respect of, abuse arising from the use of successive fixed-term employment contracts or relationships, or an equivalent legal measure within the meaning of clause 5 of the framework agreement on fixed-term work, which is annexed to Directive 1999/70, that provision must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, under which the expiry of certain categories of fixed-term employment contracts confers entitlement to payment of such compensation to workers employed under such contracts, whereas the expiry of other categories of fixed-term employment contracts does not entitle the workers employed under those contracts to payment of any compensation, unless there is no other effective measure available under the national legal system for avoiding and imposing penalties for such abuse in respect of the latter group of workers, which is a matter for the referring court to determine.

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(1)  OJ C 22, 22.1.2018.

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