Information;Order — ECLI:EU:C:2022:337
Date: 2022-04-26
Language of the case: Spanish
Court formation: Sixth Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-464/21 – 1 
Case C-464/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
29 July 2021 
Referring court:  
Juzgado de lo Social No 3 de Barcelona (Spain) 
Date of the decision to refer: 
27 July 2021 
Applicant: 
QL 
Defendant: 
Universitat de Barcelona 
  
Subject matter of the main proceedings 
Council Directive 1999/70/EC of 28 June 1999 concerning the framework 
agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Fixed-
term worker and comparable permanent worker – Possible tertium genus in the 
Spanish public sector 
Subject matter and legal basis of the request for a preliminary ruling 
Request for a preliminary ruling on validity – Article 267 TFEU – Compatibility 
of the Estatuto Básico del Empleado Público (Basic Regulatory Code for Public 
Employees) (EBEP) with Directive 1999/70/EC – Contracted public employees 
performing a non-permanent role on an indefinite basis 
Questions referred for a preliminary ruling 
May the concept of a ‘non-permanent contract of indefinite duration’, as 
interpreted by domestic case-law to the effect that the employment contract is 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-464/21 
 
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terminated as soon as the vacant post occupied by the worker under a ‘non-
permanent contract of indefinite duration’ is filled, be construed as being 
consistent with the definition of ‘fixed-term worker’ contained in clause 3 of the 
framework agreement on fixed-term work concluded by ETUC, UNICE and 
CEEP, annexed to Council Directive 1999/70/EC of 28 June 1999, account being 
taken of the fact that that vacant post will compulsorily be filled even if it is not 
known exactly when that will be the case?  
May the concept of a ‘non-permanent contract of indefinite duration’, as 
interpreted by domestic case-law to the effect that the employment contract is 
terminated as soon as the vacant post occupied by the worker under a ‘non-
permanent contract of indefinite duration’ is filled, be construed as being 
consistent with the definition of ‘comparable permanent worker’ contained in 
clause 3 of the framework agreement on fixed-term work concluded by ETUC, 
UNICE and CEEP, annexed to Council Directive 1999/70/EC of 28 June 1999, 
account being taken of the fact that that vacant post will compulsorily be filled 
even if it is not known exactly when that will be the case? 
Provisions of EU law relied on  
Article 267 TFUE. 
Council Directive 1999/70/EC of 28 June 1999 concerning the framework 
agreement on fixed-term work concluded by ETUC, UNICE and CEEP: general 
considerations 6 and 7 and clause 3. 
Judgment of the CJEU of 11 February 2021, Case C-760/18. 
Judgment of the CJEU of 3 June 2021, Case C-726/19, paragraph 74. 
Provisions of national law relied on  
Royal Legislative Decree 5/2015 of 30 October 2015 approving the recast text of 
the Ley del Estatuto Básico del Empleado Público (Basic Regulatory Code for 
Public Employees) (EBEP): Articles 8 and 11. 
Ley 3/2017, de 27 de junio, de Presupuestos Generales del Estado para el año 
2017 (Law 3/2017 of 27 June 2017 on the General State Budget for 2017): thirty 
fourth additional provision. 
Royal Legislative Decree 2/2015 of 23 October 2015 approving the recast text of 
the Ley del Estatuto de los Trabajadores (Law on the Regulatory Code for 
Workers): Article 15(3). 
Judgment of the Labour Division of the Tribunal Supremo (Supreme Court) of 
7 October 1996 in appeal in cassation seeking a consistent interpretation of case-
law No 3307/1995, ES:TS:1996:5360. 
UNIVERSITAT DE BARCELONA 
 
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Judgment of the Plenary of the Labour Division of the Tribunal Supremo 
(Supreme Court) of 28 March 2017 in appeal in cassation seeking a consistent 
interpretation of case-law No 1664/2015, ES:TS:2017:1414. 
Judgment of the Labour Division of the Tribunal Supremo (Supreme Court) of 
5 December 2019 in appeal in cassation seeking a consistent interpretation of 
case-law No 1986/2018, ES:TS:2019:4292. 
Judgment of the Labour Division of the Tribunal Supremo (Supreme Court) of 
28 June 2021 in appeal in cassation seeking a consistent interpretation of case-law 
No 3263/2019, ES:TS:2021:2454. 
Brief presentation of the facts and the main proceedings 
1.- Mr QL began providing services as a Técnico Superior (Senior Technician) for 
the Universitat de Barcelona (University of Barcelona) on 1 July 2002, under a 
contract for specific works or services which stated that the work or service in 
question was the performance of tasks in connection with the production of multi-
media teaching materials in the Health Sciences Division, and that that contract 
would come to end when the funding for that work or service had been exhausted. 
On 12 September 2005, he signed another contract for specific works or services 
which stated that its subject matter was the provision of support to the User 
Services Centre in the Learning and Research Resources Centre (CRAI) in 
connection with the process of preparing, producing and using materials to 
support and improve teaching, and that the contract would come to an end on 
30 September 2006. 
On 1 October 2006, he signed yet another contract for specific works or services 
the subject matter of which was identical to that of the previous contract, except 
that it related to the 2006-2007 academic year, and which stated that its end date 
was 30 September 2007. On 1 October 2007, the two parties signed an additional 
clause which again provided for the same contracted subject matter but without 
specifying an approximate [end] date. 
On 30 April 2019, the two parties signed an interim replacement contract which 
stated that the vacancy being covered was post No 29791, Senior Technician in 
the CRAI attached to the Vice-Chancellor’s Office. 
2.- The provision of services has been continuous and uninterrupted since the first 
contract was concluded, and the grade and duties have continued to be those 
associated with the role of Senior Technician. 
3.- On 4 April 2002, Division IV published an offer of a (labour-law-governed) 
works and services contract for the production of multi-media teaching materials 
which stated that contract would last for one year and set out the minimum 
conditions and merits against which applications would be assessed. The applicant 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-464/21 
 
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having submitted an application together with his CV, the Evaluation Committee 
decided on 30 May 2002 to award the contract to the applicant, who was 
accordingly engaged.  
4.- The applicant brought a legal action seeking a declaration that his employment 
relationship should be classified as a ‘non-permanent [relationship] of indefinite 
duration’. However, once the judicial proceedings had started, he changed his 
claim to an application seeking a declaration that he is a ‘permanent public 
employee’ and seeking only in the alternative a declaration that his employment 
relationship is a ‘non-permanent [relationship] of indefinite duration’. 
5.- After recognising the veracity of the organisational circumstances prevailing 
and the employment contracts concluded, the defendant opposed the applicant’s 
claim, which is to say that he should be declared to be a ‘permanent’ [public 
employee], because the selection process in which he took part was not consistent 
with a competition or a competitive examination, inasmuch as it was confined to 
an interview and a merit-based assessment of his CV and did not include a general 
test of knowledge. 
Essential arguments of the parties in the main proceedings 
Defence counsel for the worker submits, in the first place, that the definitions 
contained in clause 3 of the framework agreement on temporary employment 
approved by Council Directive 1999/70/EC support the view that the terms 
‘indefinite’ and ‘permanent’ are used synonymously, and that the concept of a 
‘non-permanent [contract] of indefinite duration’ created by Spanish case-law has 
no equivalent in the EU provision, it being specifically necessary before judgment 
is given in this case to determine whether that concept is reflected in the Directive, 
since the law governing ‘non-permanent employment relationships of indefinite 
duration’ does not eliminate the temporariness of such relationships and the 
objective pursued by the framework agreement of combating the abuse of 
temporary employment would not therefore be attained if such temporariness were 
to continue in being. 
The defence notes that, although the judgment of the Tribunal Supremo (Supreme 
Court) of 28 June 2021 recognises that the filling of posts by recourse to 
temporary contracts lasting more than three years ― that is to say, for an 
excessively long period ― amounts to an abuse of right, it does not in any way 
change the classification of ‘non-permanent [employment] of indefinite duration’ 
and recognises the right to compensation only because, in its view, this acts as a 
deterrent to the abuse of temporary employment contracts.  
The University of Barcelona takes the view that the Estatuto Básico del Empleado 
Público (Basic Regulatory Code for Public Employees) provides for the category 
of contracted staff performing ‘non-permanent [roles] on an indefinite basis’ in 
reference to cases in which it is shown that public employees have been 
temporarily employed in evasion of the law. It nonetheless states that the doubt 
UNIVERSITAT DE BARCELONA 
 
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raised by this court was dealt with in the judgment of the CJEU of 19 March 2020 
(Joined Cases C-103/18 and C-429/18), in particular paragraph 106, where that 
judgment states, in answer to the questions raised, that clause 5 of the framework 
agreement must be interpreted as meaning that it is for the referring court to assess 
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. In its statement, it lays emphasis on the principle that 
national law must be interpreted in conformity with EU law and the principle of 
effectiveness in support of the proposition that national legislation that is not in 
conformity with clause 5(1) of the framework agreement should not be applied.  
It notes that, pursuant to the judgment of the CJEU of 3 June 2021 (Case 
C-726/19), the judgment given by the Fourth Chamber of the Tribunal Supremo 
(Supreme Court) of 28 June 2021 may lend support to Mr QL’s initial claim, but 
not to the recognition of his employment relationship as permanent. 
Brief presentation of the grounds of the request for a preliminary ruling 
Given that the recruitment in question is clearly abusive, inasmuch as it involved 
the conclusion of a number of successive temporary contracts for specific works 
or services with a view to the fictitious performance of tasks and duties which are 
permanent, the appropriate response, in accordance with Article 15(3) of the 
Estatuto de los Trabajadores (Regulatory Code for Workers), would be to 
recognise that the employment contract is [of] indefinite [duration]. In the private 
sector, a declaration to that effect represents an absolute guarantee of stability in 
employment, unless there are objective and prescribed grounds present, not 
including disciplinary grounds, which warrant the termination the employment 
contract. 
What is more, Spanish employment legislation uses the terms ‘indefinite’ and 
‘permanent’ without distinction to refer to persons whose employment 
relationship is not subject to any conditions or time limits. The law would thus 
appear to guarantee the contribution to quality of life referred to in Directive 
1999/77 (general consideration 6 of the agreement). 
For public employees, however, the courts created in case-law the concept of the 
‘non-permanent [contract] of indefinite duration’, together with the variations 
thereof that have emerged over the years, which has been the subject of various 
changes of stance, some very recent but all of them having as their common 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-464/21 
 
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denominator that public employees could not be recognised as benefiting from the 
same stability as private-sector employees. 
The contract concluded with staff performing a ‘non-permanent [role] of 
indefinite duration’ is subject to a condition linked to the obligation incumbent on 
the public administration to fill the post in question in accordance with the rules 
[of the relevant selection process], the employment contract of the member of 
staff performing a ‘non-permanent [role] on an indefinite basis’ being terminated 
immediately that post is filled. The effect of this approach is that persons with 
whom temporary employment has been used in an abusive ― or bogus ― manner 
such that their contracts are regarded under Spanish law as being of indefinite 
duration are treated in the same way as persons who have entered into an interim 
replacement contract, the validity of which is, by definition, temporary. 
At present, the judgment of the Tribunal Supremo of 28 June 2021 has established 
that temporary employment in excess of three years confers entitlement to the 
same compensation as that prescribed by law in the Estatuto de los Trabajadores 
(Regulatory Code for Workers) (Article 53) for redundancy. In other words, 
although compensation has been introduced as a means of preventing the misuse 
of temporary contracts, persons regarded as performing a ‘non-permanent [role] 
on an indefinite basis’ retain their temporary status, since the validity of their 
contracts is linked to the materialisation of a circumstance ― the filling of the 
vacant post which they occupy ― which will unquestionably occur. This 
completely undermines the effectiveness of the Directive, inasmuch as 
compensation operates as the only ― ineffective and publicly funded ― means of 
preventing temporary employment. 
Doubts surrounding the concept of ‘permanent [contracts] of indefinite duration’ 
can be summarised as arising in two cases: first, where no specific vacancy is 
being occupied and the temporary employment is found to be or to have been 
bogus; and, secondly, a specific vacancy is being occupied but the period of 
employment is unusually long ― more than 3 years ― and the temporary contract 
has been misused. 
The second doubt does not form the subject of this reference for a preliminary 
ruling, since the main thrust of the claim pursued in the main proceedings is that 
the temporary contracts were bogus because of the non-existence of any 
temporariness that would justify the conclusion of a short-term contract, not 
because the applicant worker was occupying a vacant post. It was not until April 
2019 that he signed an employment contract stating that he was occupying a 
vacant post but continued to perform exactly the same duties as before, there 
having been no evidence of that vacant post having previously been occupied by 
anyone else, or indeed of when the post had been created (in 2002 when the 
applicant was recruited or in 2019 when he signed the interim replacement 
contract to cover a vacancy). 
UNIVERSITAT DE BARCELONA 
 
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On the basis of the foregoing reasoning, the question put to the Court seeks to 
ascertain whether the concept of a worker performing a ‘non-permanent [role] on 
an indefinite basis’ corresponds to the definition of ‘fixed-term’ worker or that of 
‘permanent’ worker’, both contained in clause 3 of the agreement. 
‘Indefinite’ and ‘permanent’ are two terms which are used synonymously but 
which the courts in their case-law have set up in contrast to each other, without 
explaining how much more security of stability is afforded by the term 
‘permanent’ than the term ‘indefinite’, given that Article 15(1) of the Estatuto de 
los Trabajadores (Regulatory Code for Workers) uses ‘indefinite’ (‘… the contract 
may concluded for an indefinite period or for a fixed term) and ‘permanent’ (‘… 
once those periods have elapsed, workers shall acquire the status of permanent 
workers of the undertaking’) without distinction. 
It is for this reason that it is considered necessary, for the purposes of disposing of 
the case being heard, to raise the question whether a worker holding a ‘non-
permanent contract of indefinite duration’ within the meaning assigned to that 
expression in Spanish case-law is to be regarded as comparable to a fixed-term 
worker or to a permanent worker. It has therefore been necessary to formulate two 
complementary questions.