# C_2020222EN.01000501.xml

| 6.7.2020 | EN | Official Journal of the European Union | C 222/5 |
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6.7.2020

EN

Official Journal of the European Union

C 222/5

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Judgment of the Court (Second Chamber) of 19 March 2020 (request for a preliminary ruling from the Juzgado Contencioso-Administrativo No 8 de Madrid, Juzgado Contencioso-Administrativo No 14 de Madrid— Spain) — Domingo Sánchez Ruiz (C-103/18), Berta Fernández Álvarez and Others (C-429/18) v Comunidad de Madrid (Servicio Madrileño de Salud)

(Joined Cases C-103/18 and C-429/18) (1)

(References for a preliminary ruling - Social policy - Directive 1999/70/EC - Framework Agreement, concluded by ETUC, UNICE and CEEP regarding fixed-term work - Clause 5 - Concept of ‘successive fixed-term employment contracts or relationships’ - Failure by the employer to respect the relevant legal deadline for definitively filling posts temporarily occupied by fixed-term workers - Implicit extension of the employment relationship from year to year - Occupation by a fixed-term worker of the same post in the context of two consecutive appointments - Concept of ‘objective reasons’ justifying the renewal of successive fixed-term employment contracts or relationships - Respect for the reasons for recruitment provided for by the national legislation - Concrete examination finding that the successive renewal of fixed-term employment relationships seeks to cover the employer’s permanent and regular staffing needs - Measures seeking to prevent and, where appropriate, to punish abuses resulting from the use of successive fixed-term employment contracts or relationships - Selection procedures seeking to definitively fill posts occupied temporarily by fixed-term workers - Conversion of the situation of fixed-term workers into ‘non-permanent workers of indefinite duration’ - Grant to the worker of compensation equal to that paid in the event of unfair dismissal - Applicability of the Framework Agreement despite the fact that the worker consented to successive renewals of fixed-term contracts - Clause 5(1) - Absence of obligation for national courts to disapply inconsistent national legislation)

(2020/C 222/04)

Language of the case: Spanish

Referring courts

Juzgado Contencioso-Administrativo No 8 de Madrid, Juzgado Contencioso-Administrativo No 14 de Madrid

Parties to the main proceedings

Applicants: Domingo Sánchez Ruiz (C-103/18), Berta Fernández Álvarez and Others (C-429/18)

Defendant: Comunidad de Madrid (Servicio Madrileño de Salud)

Operative part of the judgment

| 1. | Clause 5 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, must be interpreted as meaning that the Member States and/or the social partners cannot exclude from the concept of ‘successive fixed-term employment contracts or relationships’, within the meaning of that provision, a situation in which a worker recruited on the basis of a fixed-term employment relationship, namely until the vacant post to which he or she is recruited is definitively filled, occupied, in the context of several appointments, the same post continuously over several years and continuously performed the same functions, since the continuation of that worker in that vacant post is the result of the employer’s failure to comply with its legal obligation to organise within the relevant deadline a selection procedure seeking to definitively fill that vacant post and since his or her employment relationship was thereby implicitly extended from year to year; |
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1.

Clause 5 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, must be interpreted as meaning that the Member States and/or the social partners cannot exclude from the concept of ‘successive fixed-term employment contracts or relationships’, within the meaning of that provision, a situation in which a worker recruited on the basis of a fixed-term employment relationship, namely until the vacant post to which he or she is recruited is definitively filled, occupied, in the context of several appointments, the same post continuously over several years and continuously performed the same functions, since the continuation of that worker in that vacant post is the result of the employer’s failure to comply with its legal obligation to organise within the relevant deadline a selection procedure seeking to definitively fill that vacant post and since his or her employment relationship was thereby implicitly extended from year to year;

| 2. | Clause 5 of the Framework Agreement on Fixed-Term Work, concluded on 18 March 1999 and annexed to Directive 1999/70, must be interpreted as precluding national legislation according to which the successive renewal of fixed-term employment relationships is justified for ‘objective reasons’, within the meaning of paragraph 1(a) of that Clause, on the sole ground that that renewal responds to the reasons for recruitment covered by that legislation, namely grounds of need, urgency or for the development of programmes of a temporary, auxiliary or extraordinary nature, in so far as such national legislation and case-law does not prevent the employers concerned from responding, in practice, by such renewals, to fixed and permanent staffing needs; |
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2.

Clause 5 of the Framework Agreement on Fixed-Term Work, concluded on 18 March 1999 and annexed to Directive 1999/70, must be interpreted as precluding national legislation according to which the successive renewal of fixed-term employment relationships is justified for ‘objective reasons’, within the meaning of paragraph 1(a) of that Clause, on the sole ground that that renewal responds to the reasons for recruitment covered by that legislation, namely grounds of need, urgency or for the development of programmes of a temporary, auxiliary or extraordinary nature, in so far as such national legislation and case-law does not prevent the employers concerned from responding, in practice, by such renewals, to fixed and permanent staffing needs;

| 3. | Clause 5 of the Framework Agreement on Fixed-Term Work, concluded on 18 March 1999 and annexed to Directive 1999/70, must be interpreted as meaning that it is for the referring court to assess, in accordance with all the applicable rules under its national law, whether the organisation of selection procedures seeking to definitively fill posts occupied on a temporary basis by workers employed in the context of fixed-term employment relationships, the conversion of those workers’ status into that of ‘non-permanent workers of indefinite duration’ and the grant to those workers of compensation equivalent to that paid in the event of unfair dismissal constitute measures which are adequate for the purposes of preventing and, where appropriate, punishing abuses resulting from the use of successive fixed-term employment contracts or relationships or equivalent legal measures, within the meaning of that provision; |
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3.

Clause 5 of the Framework Agreement on Fixed-Term Work, concluded on 18 March 1999 and annexed to Directive 1999/70, must be interpreted as meaning that it is for the referring court to assess, in accordance with all the applicable rules under its national law, whether the organisation of selection procedures seeking to definitively fill posts occupied on a temporary basis by workers employed in the context of fixed-term employment relationships, the conversion of those workers’ status into that of ‘non-permanent workers of indefinite duration’ and the grant to those workers of compensation equivalent to that paid in the event of unfair dismissal constitute measures which are adequate for the purposes of preventing and, where appropriate, punishing abuses resulting from the use of successive fixed-term employment contracts or relationships or equivalent legal measures, within the meaning of that provision;

| 4. | Clause 2, Clause 3(1) and Clause 5 of the Framework Agreement on Fixed-Term Work, concluded on 18 March 1999 and annexed to Directive 1999/70, must be interpreted as meaning that, in the event of abusive use, by a public employer, of successive fixed-term employment relationships, the fact that the worker concerned consented to the establishment and/or renewal of those employment relationships is not capable, from that perspective, of removing the abusive element from that employer’s conduct, so that the Framework Agreement would not be applicable to that worker’s situation; |
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4.

Clause 2, Clause 3(1) and Clause 5 of the Framework Agreement on Fixed-Term Work, concluded on 18 March 1999 and annexed to Directive 1999/70, must be interpreted as meaning that, in the event of abusive use, by a public employer, of successive fixed-term employment relationships, the fact that the worker concerned consented to the establishment and/or renewal of those employment relationships is not capable, from that perspective, of removing the abusive element from that employer’s conduct, so that the Framework Agreement would not be applicable to that worker’s situation;

| 5. | EU law must be interpreted as not obliging a national court hearing a dispute between a worker and his or her public employer to disapply national legislation which is not compatible with Clause 5(1) of the Framework Agreement on Fixed-Term Work, concluded on 18 March 1999 and annexed to Directive 1999/70. |
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5.

EU law must be interpreted as not obliging a national court hearing a dispute between a worker and his or her public employer to disapply national legislation which is not compatible with Clause 5(1) of the Framework Agreement on Fixed-Term Work, concluded on 18 March 1999 and annexed to Directive 1999/70.

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(1)  OJ C 161, 7.5.2018.

OJ C 373, 15.10.2018.

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