Judgment;Summary — ECLI:EU:C:2024:496
Date: 2024-06-13
Language of the case: Spanish
Court formation: Sixth Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-331/22 – 1 
Case C-331/22 
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: 
17 May 2022 
Referring court:  
Juzgado de lo Contencioso-Administrativo No 17 de Barcelona 
(Spain) 
Date of the decision to refer: 
12 May 2022 
Applicant: 
KT 
Defendant: 
Departamento de Justicia de la Generalitat de Catalunya 
  
Subject matter of the main proceedings 
Social policy – Directive 1999/70/EC – Framework agreement on fixed-term work 
concluded by ETUC, UNICE and CEEP – Clauses 2 and 5 – Public sector – 
Temporary replacement worker – Measures aimed at preventing and penalising 
the misuse of successive fixed-term employment contracts or relationships – 
Requirements 
Subject matter and legal basis of the request for a preliminary ruling 
Request for a preliminary ruling on interpretation – Article 267 TFEU – 
Compatibility of a national provision and national case-law with Directive 
1999/70/EC 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-331/22 
 
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Questions referred for a preliminary ruling 
1.- Law 20/2021 lays down as the sole punitive measure the holding of selection 
procedures and the payment of compensation only to victims of abuse who are not 
successful in those selection procedures. Does that Law infringe clause 5 of the 
Framework Agreement annexed to Directive 1999/70/EC by failing to 
penalise abuse occurring in relation to temporary public employees who have 
been successful in such selection procedures, when a penalty is always 
essential and success in such a selection procedure is not a punitive measure 
which satisfies the requirements laid down in the Directive, as the CJEU held 
in its order of 2 June 2021 in Case C-103/19? 
2.- If the answer to the previous question is in the affirmative, and Law 20/2021 
does not lay down other effective measures penalising the misuse of a succession 
of fixed-term contracts or the improper extension of a temporary contract, does 
the legislative omission consisting of the failure to provide for the conversion 
of a succession of fixed-term employment contracts or the improper extension 
of a temporary contract into a contract of indefinite duration infringe clause 
5 of the Framework Agreement annexed to Directive 1999/70/EC, as the 
CJEU ruled in its order of 3 September 2020 in Case C-153/20? 
3.- The Tribunal Supremo [Supreme Court, Spain] laid down in its judgments Nos 
1425/2018 and 1426/2018 of 26 September 2018 the case-law, confirmed by its 
judgment No 1534/2021 of 20 December 2021, according to which the measure to 
be adopted in the event of misuse of temporary appointments may simply consist 
of keeping a public employee who is the victim of such misuse in a situation of 
job insecurity until such time as the employer administrative authority determines 
whether a structural need exists and holds the appropriate selection procedures – 
in which candidates who have not suffered such misuse of temporary 
appointments may also participate – to fill the posts concerned with permanent or 
career public employees. Does that case-law infringe clause 5 of the 
Framework Agreement annexed to Directive 1999/70/EC when the holding of 
an open selection procedure and successful participation in that selection 
procedure is not a punitive measure which satisfies the requirements laid 
down in the Directive, as the CJEU held in its order of 2 June 2021 in Case 
C-103/19? 
4.- If the answer to the previous question is in the affirmative and the case-law of 
the Tribunal Supremo [Supreme Court] does not lay down other effective 
measures for penalising the misuse of successive fixed-term contracts or the 
improper extension of a temporary contract, does the judicial omission 
consisting of the failure to provide for the conversion of a succession of fixed-
term employment contracts or the improper extension of a temporary 
contract into a contract of indefinite duration infringe clause 5 of the 
Framework Agreement annexed to Directive 1999/70/EC, as the CJEU ruled 
in its order of 3 September 2020 in Case C-153/20? 
DEPARTAMENTO DE JUSTICIA DE LA GENERALITAT DE CATALUNYA 
 
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5.- If the legislation adopted to transpose clause 5 of the Framework Agreement 
annexed to Directive 1999/70/EC infringes Community law by failing to lay down 
any specific punitive measure which would ensure compliance with the objectives 
of that Community provision and bring to an end the job insecurity of public 
employees 
In the light of that situation, must the national judicial authorities proceed to 
order the conversion of an abusive temporary relationship into a permanent 
relationship which differs from that of a career civil servant but which gives 
the victim of the abuse job security to prevent that abuse from going 
unpunished and the undermining of the objectives of clause 5 of the 
Framework Agreement, even though such a conversion is not provided for in 
the domestic legislation, provided that the temporary relationship concerned 
was preceded by a selection process that was open to the public and complied 
with the principles of equality, merit and ability?  
Case-law and provisions of European Union law relied on 
Council Directive 1999/70/EC of 28 June 1999 concerning the framework 
agreement on fixed-term work concluded by ETUC, UNICE and CEEP 
(‘Directive 1999/70’), annex, clauses 4 and 5. 
Judgment of the Court of Justice of 4 July 2006, Adeneler and Others, C-212/04, 
EU:C:2006:443; order of 1 October 2010, Affatato, C-3/10, not published, 
EU:C:2010:574; judgment of 14 September 2016, Martínez Andrés and 
Castrejana López, C-184/15 and C-197/15, EU:C:2016:680; judgment of 
25 October 2018, Sciotto, C-331/17, EU:C:2018:859; judgment of 19 March 2020, 
Sánchez Ruiz and Others, C-103/18 and C-429/18, EU:C:2020:219; order of 
30 September 2020, Câmara Municipal de Gondomar, C-135/20, not published, 
EU:C:2020:760; judgment of 11 February 2021, M. V. and Others (Successive 
fixed-term employment contracts in the public sector), C-760/18, EU:C:2021:113; 
judgment of 24 June 2021, Obras y Servicios Públicos and Acciona Agua, 
C-550/19, EU:C:2021:514; judgment of 13 January 2022, MIUR and Ufficio 
Scolastico Regionale per la Campania, C-282/19, EU:C:2022:3. 
Case-law and provisions of national law relied on 
Law 20/2021 on urgent measures to reduce temporary employment in the public 
sector (Ley 20/2021 de medidas urgentes para la reducción de la temporalidad en 
el empleo público) of 28 December 2021. This provision inserts amendments into 
Article 10 of the Basic Regulations relating to public employees (Estatuto Básico 
del Empleado Público), a provision governing the option to appoint interim civil 
servants and measures aimed at controlling the use of temporary employment 
contracts in the public sector and the holding of selection procedures. 
Article 10(4) is worded as follows: 
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‘Nevertheless, once three years have passed since the appointment of an 
interim civil servant, the temporary replacement relationship will be 
terminated and the vacancy may be filled only by a career civil servant, 
unless the corresponding selection procedure is unsuccessful, in which 
case a further appointment of an interim civil servant may be made. 
By way of exception, an interim civil servant may remain in the post which 
he or she holds temporarily provided that the appropriate vacancy notice 
has been published within three years from the date on which the interim 
civil servant was appointed and the outcome is decided within the periods 
laid down in Article 70 of the [consolidated text of the Basic Regulations 
relating to public employees]. In those circumstances, the interim civil 
servant may remain in post until a decision has been taken in respect of the 
vacancy notice, without the termination of his or her service giving rise to 
any financial compensation.’ 
In that way, the legislature sought to avoid in the future the creation of situations 
in which the appointment of an interim civil servant would continue indefinitely 
without the holding of a selection procedure for the purposes of the appropriate 
stabilisation. 
The aim of that new legislation was to activate a raft of regulatory measures 
directly designed to put a stop to the excessive use of temporary appointments in 
the public sector in the future. That is the purport of the second transitional 
provision, which provides that the requirements contained in Article 1 of that Law 
are to apply only in relation to temporary staff appointed or engaged after its entry 
into force. 
The new legislation also lays down the punitive measures which are to be applied 
in relation to temporary public employees who were already in a situation of 
abuse contrary to the Directive prior to its entry into force. 
In relation to those public employees, the new legislation provides, first, that the 
punitive measure is to consist of the holding of an open selection procedure or 
stabilisation procedure, in which those who have been the victims of abuses 
may participate, which will apply to temporary employees who have held the 
same post continuously for at least the three years prior to 31 December 2020. 
Second, it provides that only victims of an abuse who have not been successful 
in a stabilisation selection procedure will be entitled to financial 
compensation equivalent to 20 days’ fixed remuneration per year of service, 
up to a maximum of 12 months’ pay. 
Therefore, it is necessary to determine whether that new national legislation is 
compatible with EU law and with the interpretation of that law given by the 
Court of Justice, since it can be seen that many inconsistencies exist. 
DEPARTAMENTO DE JUSTICIA DE LA GENERALITAT DE CATALUNYA 
 
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Succinct presentation of the facts and procedure in the main proceedings 
1 KT works as an interim civil servant for the Generalitat de Cataluña (Regional 
Government of Catalonia). She was appointed as a senior administrator with the 
Generalitat on 5 May 2005. From that date up to the present time, she has had a 
sequence of consecutive temporary replacement contracts, the most recent of 
which is dated 5 August 2015, when she was reinstated after a career break in the 
same post to which she had been appointed on 1 April 2009; she still holds that 
post now. Her appointment took place following a selection procedure under the 
current legislation, which therefore complied with the principles of merit, ability 
and equality in relation to access to the civil service, enshrined in Article 103(3) 
of the Spanish Constitution (Constitución Española). 
2 After these proceedings were brought, the defendant administrative authority held 
a selection procedure that was open to the public to fill, inter alia, the applicant’s 
post, basing that decision on the aim of stabilisation of the workforce. In the light 
of that decision, KT applied for an interim measure to exclude the post she holds 
from the vacancy notice; that application was granted by this court by order of 
7 December 2021 and was based on the case-law of the Court of Justice and the 
power derived from clause 5 of the Framework Agreement. 
Essential arguments of the parties in the main proceedings 
3 The applicant explains the development of the situation of temporary replacement 
workers at the Generalitat de Catalunya, of whom there are very high proportions 
(sometimes 90%). The applicant relies on the judgment of the Court of Justice of 
19 March 2020 in Joined Cases C-103/18 and C-429/18, concerning long-term 
temporary replacement workers. She cites judgements of the Tribunal 
Constitucional (Constitutional Court, Spain) and the Tribunal Supremo (Supreme 
Court). She argues that her position as a long-term temporary replacement worker 
is established by the fact that she has held a post which has been vacant since she 
was recruited and which has not been included in any job vacancies list. The 
applicant cites the judgment of the Court of Justice of 14 September 2016 in 
Joined Cases C-184/15 and C-197/15. She states that, in the absence of effective 
measures in the legal system to prevent abuses of that kind, the workers concerned 
must be recognised as having the status of non-permanent staff of indefinite 
duration because that is a useful measure. She also contends that discrimination 
exists in the conditions of employment and that the constitutional requirement of 
protecting the job security of workers (Article 35 of the Spanish Constitution) has 
been infringed. She then refers to Royal Decree-law 1/2011 and Royal Decree-law 
3/2014, both of which lay down urgent measures to promote the use of contracts 
of indefinite duration. She argues that it is impossible to claim financial liability 
on the part of the public administrative authority to deal with the effects created 
by the misuse of temporary replacement contracts. On those grounds, the 
applicant seeks a judgment declaring that she is a non-permanent worker of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-331/22 
 
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indefinite duration or, in the alternative, the adoption of any measure involving the 
retention of her post. 
4 The defendant administrative authority contests the application arguing that the 
applicant could have participated in the selection procedure of 7 November 2019 
to fill 760 posts in the senior grade of the general administration in the higher 
category of the administration of the Generalitat, something which she did not do, 
and it denies the existence of any abuse. The defendant claims that the 
proceedings should be stayed because a number of rulings of the Tribunal 
Superior de Justicia de Cataluña (High Court of Justice of Catalonia) are pending 
on the same question. The defendant goes on to cite the case-law of the Tribunal 
Supremo (Supreme Court) to the effect that it is impossible to make an 
appointment as a non-permanent employee of indefinite duration and states that 
the applicant’s temporary appointments were justified and that she has not 
successfully participated in any selection process, and it therefore denies the 
existence of any abuse. The defendant reiterates the settled case-law of the 
Tribunal Supremo (Supreme Court) to the effect that an interim civil servant’s 
temporary employment relationship may not be converted into a permanent 
contract and also claims that it is impossible in law to grant compensation in the 
case of termination of service. The defendant submits that Law 20/2021 makes it 
possible to resolve the situation of interim civil servants. The defendant refers to 
the case-law of the Barcelona courts which is generally contrary to the recognition 
of rights in this type of situation. On those grounds, the defendant seeks the 
dismissal of the action. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
5 The applicant relies on Directive 1999/70/EC, arguing that her factual situation 
infringes that provision which, at the time when these proceedings were 
commenced, had not been properly transposed into national law. In other words, 
no measure to prevent abuses of temporary employment suffered by long-term 
interim civil servants existed in the Spanish legal system, as required by clause 5 
of the Framework Agreement. 
6 Law 20/2021 was adopted on 28 December 2021. The statement of reasons for 
that legislation refers to the aim of transposing into the national legal framework 
the guidelines laid down in relation to temporary employment in the specific 
context of Spanish law. In other words, it provides criteria aimed at reducing the 
abuse of temporary employment which exists in the public sector. 
7 That change could be said to bring about an important paradigm shift in this 
litigation. The applicant brought the administrative action which led to these 
proceedings at a time when no legal consequences existed in national law in the 
event of an abuse of temporary employment suffered by long-term temporary 
replacement staff. However, the adoption of Law 20/2021 altered that situation, 
which is the reason for making this request for a preliminary ruling. 
DEPARTAMENTO DE JUSTICIA DE LA GENERALITAT DE CATALUNYA 
 
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8 The purpose of this reference for a preliminary ruling is to establish the precise 
significance of the EU legislation as regards the interpretation of clauses 4 and 5 
of the Framework Agreement, since the adoption of Law 20/2021. 
9 The referring court considers that there are inconsistencies between the recently 
adopted Law 20/2021 and Directive 1999/70/EC and the case-law of the CJEU 
interpreting that directive. 
10 The first inconsistency concerns the wording of the statement of reasons for the 
Spanish provision, where it states that ‘the [Court of Justice] agrees with the 
position taken by Spain to the effect that the automatic conversion of a temporary 
employment relationship into a permanent employment relationship is not 
possible in the Spanish Administration. That option is categorically excluded 
under Spanish law, since access to the status of career civil servant or permanent 
contractual staff is possible only after successful participation in a selection 
procedure in which the constitutional principles of equality, merit and ability are 
guaranteed.’ The Court of Justice does not take that position and nor is the 
legislature prohibited from having any power in the sense stated because the 
legislature is sovereign; nor can the debate be focused on the guarantee of 
equality, merit and ability, since long-term temporary replacement workers 
appointed in circumvention of the law accessed their posts in a public competitive 
selection procedure in which the constitutional principles of equality and merit 
and ability were complied with, as occurred in the present case. Accordingly, it is 
quite clear that the legislature’s staring point is totally wrong and contrary to EU 
law. 
11 Second, it is not true that the Spanish legal system cannot allow the conversion of 
temporary relationships into permanent relationships, when that is provided for in, 
for example, the most recent Law on general State budgets in connection with the 
transformation of the entities which form the institutional public sector (that is, 
when a State entity alters its legal personality and its nature, it retains workers 
who were employed on a temporary basis, who will become permanent). That 
provision is the 34th final provision of Law 11/2020 on General State Budgets for 
2021 (Ley 11/2020, de Presupuestos Generales del Estado para 2021), which 
amends Article 87 of Law 40/2015 on the legal rules applicable to the public 
sector (Ley 40/2015, de Régimen Jurídico del Sector Publico), providing that ‘the 
appointment of anyone who was until that time performing duties reserved to 
public servants without being a public servant may be made subject to the 
condition “to be terminated”, and the characteristics of the posts affected and the 
needs of the entity to which such persons are recruited must be assessed in 
advance.’ That provision demonstrates that, where the Spanish legislature wishes 
to do so, it may adopt effective measures to combat the use of temporary 
appointments. 
12 Third, Law 20/2021 is a law aimed solely at temporary replacement workers who 
are appointed after its entry into force – as stated in the second transitional 
provision thereof – and therefore, in relation to workers who were already on 
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long-term temporary replacement contracts, it does not, strictly speaking, lay 
down effective deterrent measures which make reparation for the abuse suffered. 
13 Fourth, in relation to temporary replacement workers who are employed in 
circumvention of the law because of abuse and who were appointed before the 
adoption of Law 20/2021 and before 2020, that Law merely provides that 
stabilisation procedures are to be held (Article 2) which will be open to external 
candidates (Article 2(4)), and that such workers are entitled to financial 
compensation of 20 days per year of service up to a maximum of 12 months’ pay 
if they are unsuccessful in the stabilisation selection procedure. However, not all 
temporary public employees who have suffered abuse receive the 20 days’ 
compensation but rather only those who have not successfully participated in the 
selection procedure at the time of their dismissal, and therefore it is clear that that 
compensation does not flow from the abuse that has occurred and flows instead 
from the lack of success in the selection process and is a consequence of that lack 
of success. 
14 In response to that question, the referring court takes the view that selection 
procedures which are open to external candidates, as provided for in the 
legislation under examination, may not under any circumstances constitute a 
sufficiently effective and dissuasive punitive measure to guarantee the provisions 
laid down in Directive 1999/70/EC. Nor is that measure useful for compensating 
victims of abuse who have suffered a systematic and permanent breach of their 
rights. The Court of Justice has consistently held (judgment of 19 March 2020, 
Sánchez Ruiz and Others, C-103/18 and C-429/18, EU:C:2020:219, and order of 
2 June 2021, SUSH and CGT Sanidad de Madrid, C-103/19, not published, 
EU:C:2021:460, among others) that no selection procedure is a sufficiently 
effective measure to comply with the provisions of clause 5 of the Framework 
Agreement, since such procedures ‘are open to candidates who have not been 
victims of such abuse and do not afford public employees who have been victims 
of that abuse any guarantee that they will acquire the status of permanent 
regulated staff’ [free translation] (order of 2 June 2021, SUSH and CGT Sanidad 
de Madrid, C-103/19, not published, EU:C:2021:460, paragraph 46). 
15 The fifth inconsistency concerns the fact that the new provision perpetuates the 
situation of job insecurity and the misuse of temporary employment, which is 
incompatible with Directive 1999/70/EC, until such time as selection or 
stabilisation procedures are held, for which the provision lays down a deadline 
that is fixed as 31 December 2024. The referring court takes the view that this 
infringes Directive 1999/70/EC, since the penalty is not immediate. The Court of 
Justice has ruled that Member States must ‘[adopt] all the provisions necessary to 
enable the outcomes set by [that] Directive to be guaranteed at all times’ and ‘to 
nullify [the consequences of] the infringement of EU law’ [free translation] (see 
order of 2 June 2021, SUSH and CGT Sanidad de Madrid, C-103/19, not 
published, EU:C:2021:460, paragraph 32, and judgment of 3 June 2021, Instituto 
Madrileño de Investigación y Desarrollo Rural, Agrario y Alimentario, C-726/19, 
EU:C:2021:439, paragraph 48). 
DEPARTAMENTO DE JUSTICIA DE LA GENERALITAT DE CATALUNYA 
 
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16 In conclusion, Law 20/2021 does not transpose EU law, specifically clause 5 of 
the Framework Agreement, into national law, because the case-law of the Court of 
Justice previously held in the rulings cited above that the measures included in 
that Law for temporary replacement workers appointed before its adoption do not 
constitute ‘an effective deterrent measure to penalise the misuse of successive 
fixed-term contracts’, given that neither open competitive selection procedures nor 
compensation linked to unsuccessful participation in a selection procedure can be 
regarded as such. 
17 According to the referring court, national case-law has not resolved the issue with 
the full reception of EU law either. The Third Chamber (specialising in 
administrative law) of the Spanish Supreme Court has held that, in situations 
involving the misuse of temporary appointments of public employees as 
temporary replacement workers, the retention of public employees who have 
suffered such misuse, until such time as the employer administrative authority 
determines whether a structural need exists and holds the appropriate selection 
procedures that are open to external candidates (in which candidates who have not 
suffered the misuse of temporary appointments may participate) to fill the posts 
concerned with permanent career public employees, may be regarded as an 
effective measure to penalise that situation.