Summary;Judgment — ECLI:EU:C:2021:439
Date: 2021-06-03
Language of the case: Spanish
Court formation: Seventh Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-726/19 — 1 
Case C-726/19 
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: 
1 October 2019 
Referring court: 
Tribunal Superior de Justicia de Madrid (High Court of Justice, 
Madrid, Spain) 
Date of the decision to refer: 
23 September 2019 
Appellant: 
Instituto Madrileño de Investigación y Desarrollo Agrario y 
Alimentario (Madrid Institute for Agricultural and Food Research 
and Development) 
Respondent: 
JN 
  
Subject matter of the main proceedings 
The main proceedings concern a claim for compensation for the termination of the 
respondent’s contract of employment. 
Purpose and legal basis of the request for a preliminary ruling 
The purpose of the request is fivefold: to determine whether the temporary 
replacement contract to cover a vacant post complies with the Framework 
Agreement on Fixed-Term Work; whether the existence of contracts with no time 
limit, such as a temporary replacement contract to cover a vacant post, means that 
Directive 1999/70 has not been correctly transposed; whether the fact that there 
are no appropriate measures in place to prevent and penalise abuse of temporary 
replacement contracts to cover vacant posts undermines the practical effect of the 
Framework Agreement; whether an employment relationship such as that 
EN 
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associated with a temporary replacement contract to cover a vacant post which 
continues for a very long time and has no anticipated end date constitutes an 
abuse; whether the financial crisis is an objective reason that justifies the non-
adoption of measures to prevent an employment relationship from continuing for a 
very long period of time. The legal basis is Article 267 TFEU. 
Questions referred for a preliminary ruling 
ONE: Can the creation of a temporary contract such as a temporary replacement 
contract to cover a vacant post, where the duration of the contract is left to the 
discretion of the employer, who decides whether or not to fill the vacant post, 
when to do so and how long the process lasts, be considered compatible with the 
practical effect of Clauses 1 and 5 of Directive 1999/70? 
TWO: Should the requirement established by Clause 5 of Council Directive 
1999/70/EC to introduce one or more of the measures it stipulates in order to 
prevent abuse of temporary contracts be considered to have been transposed into 
Spanish law in the case of temporary replacement contracts to cover vacant posts, 
given that, according to the case-law, the law does not impose a time limit on such 
employment relationships, it does not specify the objective reasons that justify the 
renewal of such relationships, and it does not stipulate how many times those 
relationships may be renewed? 
THREE: Is the objective and practical effect of the Framework Agreement 
undermined by the fact that, according to the case-law, Spanish law does not 
contain any effective measure to prevent and penalise abuse in respect of workers 
on temporary replacement contracts to cover vacant posts, in that: there is no limit 
on the maximum total duration of such contracts, which never become permanent 
contracts or non-permanent contracts of an indefinite duration, no matter how 
many years elapse; workers do not receive any compensation on the termination 
of their employment; the public authority is not required to justify the renewal of a 
temporary replacement contract where, for years, the vacant post is not included in 
the list of public vacancies or the selection process is delayed? 
FOUR: Should an employment relationship be regarded as having satisfied the 
purpose of Council Directive 1999/70/EC where it is not time-limited, its 
duration, according to the case-law of the Court of Justice of the European Union 
(Grand Chamber) (judgment of 5 June 2018, C-677/16) is unusually long and is 
entirely at the discretion of the employer, with no limit or justification, the worker 
is unable to predict when the contract will come to an end, and the contract may 
continue until the worker retires; or should such a relationship be deemed an 
abuse? 
FIVE: Under the judgment of the European Court of Justice (Tenth Chamber) of 
25 October 2018, C-331/17, can the financial crisis of 2008 be considered to be a 
justification, in the abstract, for the absence of any measure to prevent the abuse 
of successive fixed-term employment relationships within the meaning of Clause 
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5(1) of the Framework Agreement, which could prevent or discourage the 
employment relationship between the complainant and the Community of Madrid 
from continuing from 2003 until 2008, at which point the relationship is renewed 
and subsequently continues until 2016, meaning that the replacement contract 
continues for 13 years? 
Provisions of EU law cited 
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). Recital 14. 
Framework agreement on fixed-term work concluded by ETUC, UNICE and 
CEEP annexed to Directive 1999/70. Preamble and Clauses 1 to 5. 
Judgments of the Court of Justice: 
of 13 September 2007, Del Cerro Alonso (C-307/05, EU:C:2007:509), 
paragraphs 52 to 55; 
of 23 April 2009, Angelidaki and Others (C-378/07, C-379/07 and C-380/07, 
EU:C:2009:250), paragraphs 76, 82 to 84, 87, 88, 97 to 99 and 105; 
of 14 September 2016, Pérez López (C-16/15, EU:C:2016:679), paragraphs 44, 
47, 49 and 52 to 54; 
of 7 March 2018, Santoro (C-494/16, EU:C:2018:166), paragraphs 24 and 34; 
of 5 June 2018, Montero Mateos (C-677/16, EU:C:2018:393), paragraph 64; 
of 25 October 2018, Sciotto (C-331/17, EU:C:2018:859), paragraphs 55, 60, 64 to 
66 and 70 to 72; 
of 21 November 2018, de Diego Porras (C-619/17, EU:C:2018:936), 
paragraphs 88 and 97 to 101; 
of 8 May 2019, Rosatto (C-494/17, EU:C:2019:387), paragraphs 24 to 30, 39 and 
40. 
Provisions of national law cited 
Spanish Constitution. Article 9(3). 
Civil Code. Article 1(6). 
Texto refundido de la Ley del Estatuto de los Trabajadores (consolidated text of 
the Law on the Workers’ Statute, ‘ET’), approved by Real Decreto Legislativo 
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1/1995 (Royal Legislative Decree 1/1995) of 24 March 1995 (BOE No 75 of 
29 March 1995). Article 12(7) and Article 15(1) to (3) and (6). 
Ley del Estatuto Básico del Empleado Público (Law on the Basic Statute 
governing Public Employees) the consolidated text of which was approved by 
Real Decreto Legislativo 5/2015 (Royal Legislative Decree 5/2015) of 30 October 
2015 (BOE No 261 of 31 October 2015, p. 103105) (‘EBEP’). Articles 70 and 83 
and the fourth transitional provision. 
Real Decreto 2720/1998, de 18 de diciembre, por el que se desarrolla el artículo 
15 del Estatuto de los Trabajadores en materia de contratos de duración 
determinada (Royal Decree 2720/1998 of 18 December 1998 implementing 
Article 15 of the Workers’ Statute on fixed-term contracts) (BOE No 7 of 
8 January 1999, p. 568). Articles 4 and 8. 
Convenio Colectivo del Personal Laboral de la Comunidad de Madrid (Collective 
Agreement for Employees of the Community of Madrid) (BOCM No 100 of 
28 April 2005, p. 32) (‘the Agreement’). Article 13 and the eleventh transitional 
provision. 
Judgment of the Tribunal Supremo (Supreme Court) of 4 July 2019. 
Brief summary of the facts and the main proceedings 
1 Ms JN began working for the Instituto Madrileño de Investigación y Desarrollo 
Agrario (Madrid Institute for Agricultural Research and Development, ‘the 
Institute’), part of the Community of Madrid, on 23 June 2003, in the professional 
category of catering assistant, under a temporary replacement contract to cover a 
vacant post linked to the official vacancy list (‘OVL’) for 2002. The contract was 
extended in 2008 because the post she was occupying was not filled in the 
competition open to existing permanent staff held in 2005. In 2009 a new 
competition open to existing permanent staff was organised, which was concluded 
in 2016. 
2 In an Order dated 3 April 2009 issued by the Consejería de Presidencia, Justicia e 
Interior (Regional Department for the Presidency, Justice and Internal Affairs) a 
special consolidation procedure for filling posts in the professional category of 
catering assistant was announced. On 27 July 2016 the successful candidates were 
allocated their posts and on 3 October JN was informed that her contract was 
being terminated because the OVL had been implemented. 
3 On 17 November 2016, JN signed another temporary replacement contract to 
cover a different vacant post in the same professional category, linked to cover for 
the first competition open to existing permanent staff that had been announced. 
4 JN filed a claim with the Juzgado de lo Social No 40 de Madrid (Social Court 
No 40, Madrid) on 24 May 201[7]. The court found that the employment 
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relationship between JN and the Institute was a non-permanent relationship of an 
indefinite duration, because the three-year period established in Article 70 of the 
EBEP for filling the vacant post which the worker was occupying as a temporary 
replacement had been exceeded. The Court therefore found that the termination of 
JN’s contract was lawful, because the vacant post was filled in a selection process, 
but that, in accordance with the judgment of the Supreme Court of 28 March 
2017, she should be paid compensation equal to 20 days for each year’s service, 
which amounted to EUR 3 266.48. 
Main arguments of the parties to the main proceedings 
5 The Institute filed an appeal with the referring court alleging infringement of, 
amongst other provisions, Articles 70 and 83 and the fourth transitional provision 
of the EBEP, and of Article 13(2) and (3) and the eleventh transitional provision 
of the Agreement. It argues that JN’s employment relationship cannot be 
converted into a non-permanent relationship of an indefinite duration. It maintains 
that the temporary replacement contract to cover a vacant post entered into on 
20 June 2003 stipulated that the contract would last until the selection processes 
governed by Article 13(2) and (3) of the Agreement were concluded and the 
vacant post in the professional category of Catering Assistant linked to the 2002 
OVL and occupied by JN was filled. In its opinion, Article 70 of the EBEP does 
not apply to cases governed by the fourth transitional provision of the EBEP, 
because the post is linked to an OVL prior to 2005. Consequently there is no non-
renewable period of 3 years during which that post can be covered; instead, 
Articles 13 and 14 of the Agreement apply. It argues that the eleventh transitional 
provision of the Agreement establishes an action programme for 2005 and 2006 
designed to achieve stability of employment for employees by consolidating 
employment, and that these processes are governed by the fourth transitional 
provision of the EBEP; this leads it to the conclusion that Article 70 of the EBEP 
applies to new staff but not to staff linked to an employment consolidation 
process. It adds that the EBEP came into force in May 2007 and does not have 
retrospective effect. 
6 With regard to the questions referred, the Institute argues that Clause 5 of the 
Framework Agreement refers to cases involving the use of successive fixed-term 
contracts rather than the prolonged duration of a single contract, which it 
considers to be lawful. JN believes that the national legislation is in breach of 
Clause 5 of the directive, because there is no time limit on temporary replacement 
contracts entered into by public authorities. 
Brief summary of the reasons for the request for a preliminary ruling 
7 The referring court summarises JN’s employment relationship in the following 
terms: it is an employment relationship that is governed by an initial temporary 
replacement contract to cover a vacant post that was entered into in 2003. As the 
vacant post occupied by JN, which was linked to the 2002 OVL, was not filled in 
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the 2005 competition open to existing permanent staff (although the authority has 
not proved that the competition took place or what the outcome was), the contract 
was renewed in 2008 and extended to cover the same vacant post, linked to the 
2009 OVL; this post was finally filled in 2016. 
8 With regard to the Spanish legislation, it should be noted, first, that Article 70 of 
the EBEP does apply in the present case, because JN’s contract was linked to the 
2009 OVL, which post-dates the adoption of the EBEP. This court considers that 
the requirement established by this article (‘in any event, the implementation of 
the list of public sector vacancies or similar instrument must take place within a 
non-renewable period of 3 years’) is not affected by the provisions in Article 83 
(‘posts shall be allocated and employees shall be transferred in accordance with 
the provisions in the applicable collective agreements and, failing that, under the 
system for allocating posts and transferring permanent civil servants’), since they 
regulate different matters. Indeed, Article 83 governs the procedure to be 
followed, while Article 70 governs the time limit for implementing the mandatory 
procedure established on an exhaustive basis by the EBEP; that time limit cannot 
be altered by lower-ranking provisions or by the wishes of the parties. 
9 The referring court states that the same can be said of the fourth transitional 
provision (‘public authorities may publish notices of competition with a view to 
consolidating employment in permanent posts or positions within their various 
cadres, levels or categories for which there is budgetary provision and which were 
filled by interim civil servants or temporary staff before 1 January 2005’). This 
provision, which applies in the present case, is not incompatible with the time 
limit in Article 70 and is also intended to prevent the abusive deployment of 
temporary contracts. 
10 For their part, the provisions in the collective agreement do not nullify the time 
limit in Article 70 of the EBEP either; what they do is to establish the procedure 
for filling vacant posts, which must be followed without exceeding the aforesaid 
time limit, even though the procedure in question may be complex. 
11 Indeed, under Article 13 of the Agreement, posts must first be filled by a 
competition open to existing permanent staff. Posts that are not filled, together 
with any posts that become vacant due to the transfer of the previous employees, 
are included in the next OVL, in internal promotion selection processes (which are 
open only to permanent staff ― that is, to staff holding a permanent post ― in the 
group immediately below who have the required level of studies) or in open 
selection processes (processes open to everyone who satisfies the requirements). 
In turn, the eleventh transitional provision establishes a three-stage process for 
consolidating employment. 
12 According to established case-law of the Supreme Court, the Spanish public 
authorities’ mass use of temporary replacement contracts to cover vacant posts is 
perfectly legal and has no consequences; the employer may or may not put the 
post out to competition, with the result that temporary replacement contracts may 
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continue in place for many years with no requirement for the authority to justify 
the delay in filling the vacancy. In the view of the Supreme Court, this 
relationship never becomes a non-permanent relationship of an indefinite duration, 
and where the worker unexpectedly loses his/her job when the vacancy is filled, 
and could not have foreseen when this would happen, that worker is not entitled to 
compensation. 
13 The referring court notes that, under Spanish employment law, temporary 
employment contracts are an exception; consequently they are regulated in 
specific terms and may be used where an employer needs staff for a short period, 
provided that the legal requirements are met. That need is not expected to continue 
beyond the initially intended period; if it does so, or if the legal requirements have 
not been satisfied, by law the contract becomes permanent, with the result that 
what was initially conceived as a temporary post becomes permanent. Thus, 
Article 15 of the Workers’ Statute details the circumstances in which a fixed-term 
contract becomes a permanent contract and it distinguishes between two clearly 
different situations: where the worker has not been registered with the social 
security system or the contract has been designed to evade the law; and where the 
maximum duration of a temporary contract type has been exceeded. 
14 Consequently, since the essential purpose of a temporary contract is to meet a 
temporary need within the undertaking, where a contract continues for years and 
years and no-one knows how long it will last any more, by definition it cannot be 
a temporary contract. In the present case, after so many years of not knowing 
when the contract will terminate or what the reason for termination will be (the 
reason can of course no longer be the expiry of the original term or deadline), the 
purpose of the contract is therefore to cover a vacant post that is required by the 
Community of Madrid on a permanent basis. That is clearly so in the present case, 
given that the employment relationship has lasted for over 13 years. There can be 
no acceptable justification for such a long delay in a process for filling a vacant 
post because, even if any such justification existed, the key factor is that the 
duration of the contract is entirely indefinite, given that it is impossible to predict 
the termination date; this is completely contrary to the nature of a temporary 
contract, which, as is stipulated by law, requires it to be known when the contract 
will come to an end. 
15 Article 15(1)(c) of the Workers’ Statute, which transposes Directive 1999/70, 
seeks to limit the use of temporary contracts in order to prevent the abuses 
proscribed by Community law, and it provides for temporary replacement 
contracts in only one situation: ‘in case of replacement of workers who have a 
reserved right to their post, provided that the employment contract specifies the 
name of the replaced worker and the reason for the replacement’. It therefore does 
not provide for temporary replacement contracts to cover vacant posts; this 
concept is established in Article 4(1) of Royal Decree 2720/1998, which goes 
beyond the precept it is implementing by providing for the possibility of 
concluding a temporary replacement contract ‘to provide temporary cover for a 
post during the recruitment or promotion procedure to fill that post on a 
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permanent basis’, in order to meet the authority’s need to cover vacancies while 
they are being publicly advertised and filled through the relevant process in 
accordance with the principles of merit and ability. This can clearly be grounds for 
the use of temporary contracts, but in no way can it justify a delay in filling vacant 
posts which, in practice, results in the perpetuation of this type of employment 
relationship for years and years. 
16 In any event, in the view of the referring court, temporary replacement contracts 
to cover vacant posts do not satisfy the rules laid down in Article 15 of the ET, 
which limit the replacement period to the period during which the replaced worker 
is away from work on any of the statutory grounds which allow for his/her post to 
be reserved, which grounds must be stated in the contract and determine the 
contract term: the parties who enter into the temporary replacement contract know 
who the post-holder is, why (s)he is away from work, and how long his/her 
entitlement lasts. However, in cases such as that at issue here, temporary 
replacement contracts to cover vacant posts, which should last no longer than the 
maximum term established by the EBEP, continue indefinitely and their duration 
is subject to the arbitrary decision of the public authority, which is freely able to 
delay filling the vacancy, meaning that the worker does not know when the 
employment relationship may come to an end. 
17 The very name given to a temporary replacement contract to cover a vacant post 
indicates that it is different from a temporary replacement contract to replace a 
worker who has a reserved right to his/her post. The referring court states that the 
restriction on rights applicable to a temporary replacement contract to replace a 
worker should not be extended to apply to the former type of contract, because the 
restriction applies only to contracts governed by the ET. Therefore, in view of the 
principles of legality and the hierarchy of laws contained in Article 9(3) of the 
Constitution, temporary workers’ rights should not be restricted by a Royal 
Decree, which ranks lower than a law, where they do not fall within the specific 
circumstances provided for by the legislature, nor should unfavourable provisions 
be interpreted broadly. Consequently, in the view of the referring court, 
Article 15(5) of the ET should apply. In compliance with Directive 1999/70, that 
provision prevents abuse by stipulating that ‘workers who have been engaged, 
with or without interruption, for longer than 24 months over a period of 30 
months, to occupy an identical or different work position within the same 
undertaking or the same group of undertakings, by having entered into at least two 
temporary contracts, whether it be directly or by their provision by temporary 
work agencies, according to identical or different fixed-term contractual 
procedures, shall acquire the status of permanent workers.’ 
18 The referring court states that the exception in the final subparagraph of that 
paragraph, which establishes that the provision does not apply to temporary 
replacement contracts, should not apply to workers on temporary replacement 
contracts to cover vacant posts, because temporary replacement contracts to cover 
vacant posts do not satisfy the requirements in the ET: they replace workers who 
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have a reserved right to their post, and they must specify the name of the replaced 
worker and the reason for the replacement. 
19 However, the case-law does not accord with this opinion and, consequently, there 
is no time limit on temporary replacement contracts to cover vacant posts. It is 
true that Royal Decree 2729/98 establishes limits on the duration of temporary 
replacement contracts to cover vacant posts: ‘on expiry of a period of 3 months in 
recruitment or promotion procedures to fill posts on a permanent basis or of the 
applicable period in recruitment procedures within public authorities’. The 
question therefore arises as to what the time limit is for selection processes held 
by public authorities, and it might seem that the legislature, in compliance with 
Directive 1999/1970, has sought to limit selection processes by imposing a 
maximum time limit on them, with Article 70 EBEP being clear on this point. 
20 However, the Supreme Court maintains that the time limit in Article 70 of the 
EBEP cannot generally be seen as an immutable guarantee and does not operate 
automatically. The Supreme Court thus considers that this type of contract can be 
extended indefinitely on various grounds, even if no reason is given, and it refers 
to the serious financial crisis of 2008, even though, as in the present case, in the 
majority of contracts involving the Community of Madrid the workers had already 
been on temporary replacement contracts for years before then, and had therefore 
been working over a long period when there was no crisis but the economy was 
instead buoyant; nor does it take into account the fact that during the crisis there 
was budgetary provision for the posts, and that workers on temporary replacement 
contracts were paid on the same terms and received the same salaries as would 
have applied to permanent staff, and were indeed paid more than a new recruit, 
because workers on temporary replacement contracts received payments to reflect 
their length of service. 
21 The referring court states that, as Article 70 of the EBEP establishes a period of 3 
years, a temporary replacement contract to cover a vacant post that exceeds that 
period remains in place because it has been tacitly renewed, which happens every 
3 years. In any event, where the vacant post is linked to a specific OVL, the 
employment relationship is renewed when the purpose of the contract changes 
because the vacant post is not filled in the selection process to which the contract 
was linked and the contract becomes linked to a new OVL, meaning that the term 
of the temporary replacement contract changes to reflect the duration of the new 
selection process that is initiated, and the contract is renewed. The public authority 
thus makes successive use of fixed-term contracts; at times that use is tacit and at 
other times ― as in this particular case ― it is explicit. However, the case at issue 
here does not simply involve an initial contract and one renewal; there have 
instead been several consecutive renewals, because the relationship has lasted for 
more than 13 years. 
22 However, according to the case-law, there is no maximum time limit on a 
temporary replacement contract to cover a vacant post nor any penalty in respect 
of its duration, which frequently lasts for decades; the length of the contract is at 
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the discretion of the public authority, which may decide, without having to give 
reasons, whether or not to commence the process for filling the vacancy, when to 
do so, whether it deems it appropriate to begin the process and how long the 
process lasts; it may delay the process indefinitely, covering the vacancy in the 
meantime through the use of a temporary contract, which it continues renewing 
indefinitely, while the workers who have entered into those contracts do not have 
the same rights that they would enjoy if they were employed on a permanent 
basis, and when their employment comes to an end they will not receive 
compensation for termination of contract. For the referring court, the absence of a 
time limit for consolidating a right ― in this case the right to a permanent post ― 
is completely contrary to the general principles of Spanish law, particularly the 
principle of legal certainty guaranteed by Article 9(3) of the Constitution, which is 
reflected in the configuration of the concept of a temporary contract in the ET and 
in the provisions governing concepts such as prescription and limitation of 
actions, where the time allowed for consolidating rights is often less than the 
duration of temporary replacement contracts to cover vacant posts. 
23 Finally, the referring court refers to the concept of a replacement contract to cover 
partial retirement, which is governed by Article 12 of the ET. This contract is also 
designed to provide temporary replacement for workers, who must be identified 
and who are taking partial retirement, for the time remaining until they retire 
completely. As in the case of the temporary replacement contract governed by 
Article 15 of the ET, this involves the replacement of a worker who, in this case, 
partially retains the post in the undertaking, and that post cannot be permanently 
filled by someone else until (s)he finally retires completely. It is a part-time 
temporary replacement contract, and the replacement worker is entitled to 
compensation when the contract comes to an end, under Article 49(1)(c) of the 
ET; in the view of the Supreme Court, this provision applies to this type of 
contract, in spite of the fact that the provision makes no mention of it, just as it 
makes no mention of temporary replacement contracts to cover vacant posts.