Order — ECLI:EU:C:2024:880
Date: 2024-10-04
Language of the case: Spanish
Court formation: Sixth Chamber
Subject matter: Social Policy;Procedural provisions
Procedure: Reference for a preliminary ruling;Application for interpretation of a judgment - inadmissible
Origin: Spain

Summary C-332/22 – 1 
Case C-332/22 
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:  
19 May 2022 
Referring court:  
Juzgado de lo Contencioso-Administrativo n.º 17 de Barcelona 
(Spain) 
Date of the decision to refer:  
6 May 2022 
Applicants:  
HM 
VD 
Defendant:  
Generalitat de Catalunya 
  
Subject matter of the main proceedings 
Staff in the employ of the public administration – Employment of such staff on the 
basis of successive fixed-term contracts – Measures intended to prevent the 
abusive use of fixed-term contracts – Action seeking the application of clause 5 of 
the framework agreement on fixed-term work concluded by ETUC, UNICE and 
CEEP, which is annexed to Council Directive 1999/70/EC of 28 June 1999 
Subject matter and legal basis of the request 
Request for a preliminary ruling on interpretation – Article 267 TFEU – 
Compatibility of national provisions and case-law with Directive 1999/70/EC and 
with the case-law of the Court of Justice of the European Union (CJEU) 
interpreting that directive. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-332/22 
 
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Questions referred for a preliminary ruling 
FIRST.- [The referring court wishes to ascertain] whether the measures endorsed 
in Spanish Supreme Court judgments Nos 1425/2018 and 1426/2018 of 
26 September 2018, which express a position ― still maintained today 
(30 November 2021) ― the effect of which is to keep a public employee who has 
been a victim of [the] abuse [of successive fixed-term contracts] in the same 
abusive situation of insecure employment until such time as the employer 
administration determines whether there is a structural need [for the post in 
question to be made permanent] and issues a notice of competition for the relevant 
selection procedure with a view to filling the post with a permanent or career 
public employee, are measures which fulfil the requirements governing the 
prescription of penalties laid down in clause 5 of the framework agreement 
annexed to Directive 1999/70; 
or whether, conversely, those measures have the effect of perpetuating insecurity 
and the lack of protection until such time as the employer administration decides 
at random, with a view to filling a post with a permanent employee, to issue a 
notice of competition for a selection procedure the outcome of which is uncertain 
inasmuch as such procedures are also open to candidates who have not been 
victims of such abuse, and are measures which cannot be construed as dissuasive 
punitive measures for the purposes of clause 5 of the framework agreement and do 
not guarantee that the objectives they pursue will be attained. 
SECOND.- Where a national court, pursuant to its obligation to penalise the 
abuse established in any event (the penalty is ‘essential’ and ‘immediate’), arrives 
at the conclusion that the principle that national law must be interpreted in 
conformity with EU law makes it impossible for it to give effect to the Directive 
without adopting a contra legem interpretation of domestic law, precisely because 
the domestic law of the Member State in question has not introduced any punitive 
measures in order to give effect to clause 5 of the framework agreement in the 
public sector, 
must it apply the findings contained in the judgment of 17 April 2018 in 
Egenberger, or in the judgment (of the Grand Chamber) of 15 April 2008 in Case 
No C-268/2006, to the effect that Articles 21 and 47 of the Charter of 
[Fundamental] Rights of the European Union allow any provisions of domestic 
law that make it impossible to give full effect to Directive 1999/1970/EC to be 
excluded, even if they have constitutional status? 
Does it therefore have a duty to convert an abusive temporary relationship into a 
permanent relationship identical to and on a par with that of comparable 
permanent employees, thus giving stability of employment to the victim of the 
abuse, in order to ensure that such abuse does not go unpunished and the 
objectives and effectiveness of clause 5 of the agreement are not undermined, 
even if such a conversion is prohibited by domestic legislation and the case-law of 
the Spanish Supreme Court, or might be contrary to the Spanish Constitution? 
GENERALITAT DE CATALUNYA 
 
3 
THIRD.- [The referring court wishes to ascertain] whether, given that the CJEU 
held in its judgments of 25 October 2018 in Case C-331/17, and of 13 January 
2022 in Case C-382/19, that clause 5 of the framework agreement precludes 
national legislation which excludes certain public employees from the application 
of provisions that penalise the abusive use of successive fixed-term contracts, if 
the domestic legal system contains no other effective measure for penalising such 
an abusive measure, and, given that Spanish law does not contain any measure for 
penalising abuse in the public sector that is applicable to the temporary staff who 
have brought this action, 
whether the application of that case-law of the CJEU and of the Community 
principle of equivalence imposes an obligation to convert temporary public 
employees who have been victims of abuse into permanent or career public 
employees, making them subject to the same grounds for dismissal and 
termination of the employment relationship as those that apply to the latter, in so 
far as, in the private sector, Article 15 of the Regulatory Code for Workers lays 
down an obligation to convert into permanent staff temporary workers who, over a 
period of 30 months, have accrued more than 24 months’ continuous service for 
the same employer, and in so far as Article [87(5)] of Law 40/2015 [of 1 October 
2015] on [the legal framework governing] the public sector, as amended by Law 
11/2020 on the general State budget for 2021, operates, pursuant to national law, 
to allow private-sector workers of undertakings and entities that move across to 
the public sector to perform the same duties as career civil servants, with the right 
to remain in post until the end of their working lives, thus making them subject to 
the same grounds for termination of employment as the latter. 
FOURTH – Given that the conditions relating to termination of the employment 
relationship and the requirements for terminating an employment contract form 
part of the ‘employment conditions’ set out in clause 4 of the framework 
agreement, according to the judgments of the CJEU of 13 March 2014 in Case C[-
]38/13, Nierodzik, paragraphs 27 and 29, and of 14 September 2016 in Case 
C-596[/14], Ana de Diego Porras, paragraphs 30 and 31), 
[the referring court] seeks from the CJEU, in the event that the answer to the 
previous question is in the negative, a ruling as to whether stabilising the 
employment of temporary public-sector staff who have been victims of abuse by 
applying to them the same grounds for termination of employment and dismissal 
as apply to comparable career civil servants or permanent employees, without 
granting them that status, is a measure which the national authorities have an 
obligation to discharge pursuant to clauses 4 and 5 of the framework agreement 
annexed to Directive 1999/70 and the principle that national law must be 
interpreted in conformity with EU law, since the national legislation prohibits only 
staff who do not fulfil certain requirements from acquiring permanent or career 
employee status, and stabilising the employment of such staff in the manner 
described does not entail the grant of that status. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-332/22 
 
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FIFTH.- In so far as Article 15 of the Regulatory Code for Workers lays down a 
maximum period of duration for temporary contracts of two years, it being 
understood that, on the expiry of that period, the need met is no longer temporary 
or exceptional but routine and regular, in which event employers in the private 
sector are obliged to make the temporary relationship indefinite, and, in so far as, 
in the public sector, Article 10 of the Estatuto Básico del Empleado Público (Basic 
Regulatory Code for Public Employees) (EBEP) lays down the obligation to 
include vacant posts occupied by interim/temporary staff in the list of public-
sector vacancies for the year of appointment and, if this is not possible, that is to 
say within the maximum period of two years, in the list for the following year, 
with a view to ensuring that the post is filled by a permanent or career civil 
servant, 
[the referring court wishes to ascertain] whether it must be concluded that the 
abuse consisting in the conclusion of successive temporary contracts in the public 
sector arises as soon as the employer administration fails to fill a post occupied by 
a temporary public employee with a permanent or career employee within the time 
limits laid down in the Spanish legislation, that is to say by including that post in a 
list of public-sector vacancies within a maximum period of two years as from the 
appointment of the interim/temporary employee, thereby entering into an 
obligation to terminate the latter’s employment by filling the public-sector 
vacancy within the maximum period of three years laid down in Article 70 of the 
EBEP. 
SIXTH.- [The referring court wishes to ascertain] whether Spanish Law 20/2021 
of 28 December 2021 infringes the Community principles of legality and the non-
retroactivity of penalties contained in, inter alia, Article 49 of the Charter of 
Fundamental Rights of the EU, inasmuch as it provides, as a penalty for abuse in 
connection with temporary employment, for selection procedures which are 
triggered even if the actions or omissions constituting the infringement ― and, 
therefore, the abuse ― and the reporting thereof took place and were committed 
prior to ― years before ― the enactment of Law 20/2021[.] 
SEVENTH.- [The referring court wishes to ascertain] whether Law 20/2021, in 
providing as a punitive measure for the issue of notices of competition for 
selection procedures and compensation available only to victims of abuse who are 
unsuccessful in such a procedure, infringes clause 5 of the framework agreement 
and Directive 1999/70/EC, since it prescribes no penalties for abuse arising in 
respect of temporary public employees who have been successful in such selection 
procedures, notwithstanding that a penalty must always be provided for and the 
successful completion of such a selection procedure is not a punitive measure 
which fulfils the requirements of the Directive, as the CJEU states its order of 
2 June 2021 in Case C-103/2019. 
In other words, [the referring court wishes to ascertain] whether Law 20/2021, in 
limiting the award of compensation to staff having been victims of abuse who are 
unsuccessful in a selection procedure, thus excluding from that right employees 
GENERALITAT DE CATALUNYA 
 
5 
having been the subject of abuse who acquired permanent staff status, through 
such selection procedures, subsequently, infringes Directive 1999/70/EC and, in 
particular, the ruling given in the order of the CJEU of 2 June 2021, paragraph 45, 
according to which, although the organisation of selection procedures open to 
public employees who were abusively appointed under successive fixed-term 
employment relationships allows such employees to apply for a permanent and 
stable post and, therefore, for access to permanent public employee status, this 
does not relieve Member States of the obligation to establish a suitable measure 
for properly penalising the abusive use of successive fixed-term employment 
contracts and relationships. 
EIGHTH.- [The referring court wishes to ascertain] whether Law 20/2021, in 
providing that selection procedures aimed at reducing temporary employment in 
the public sector must take place within a period of three years, by 31 December 
2024, and in laying down as a penalty compensation receivable upon the 
termination of employment or dismissal of the victim of abuse, infringes clause 5 
of the framework agreement, in the light of the order of the CJEU of 9 February 
2017 in Case C-446/2016 or the judgments of the CJEU of 14 December 2016 in 
Case C-16/15 and of 21 November 2018 in Case C-619/2017, inasmuch as it has 
the effect of perpetuating or prolonging an abused employee’s position as a victim 
of abuse, lack of protection and insecurity of employment, thus undermining the 
effectiveness of Directive 1999/70 until such time as the worker is finally 
dismissed and qualifies for the aforementioned compensation. 
NINTH.- [The referring court wishes to ascertain] whether Law 20/2021 infringes 
the principle of equivalence, since it confers rights under the directive which are 
inferior to those that flow from domestic law, inasmuch as: 
– Law 11/2020 on the general State budget for 2021, in amending Article [87(5)] 
of Law 40/20[15], operates, pursuant to domestic law, to allow private-sector 
workers of undertakings that move across to the public sector to perform the 
same duties as career civil servants, while remaining subject to the same 
grounds for termination of employment, even if they have not successfully 
completed a selection procedure, with the right to remain in post until the end 
of their working lives, whereas Law 20/2021, pursuant to EU law, does not 
allow workers who have been selected in accordance with selection procedures 
subject to principles of equality, publicity and free competition to continue to 
perform the same duties as career civil servants and to remain subject to the 
same grounds for termination of employment.  
– Article 15 of the Regulatory Code for Workers, as amended by Law 1/1995 of 
24 March 1995, that is to say prior to the adoption of Directive 1999/70, 
operates ― pursuant to domestic law ― to allow private-sector workers who 
have been working for the same employer for more than two years to become 
permanent employees, whereas, pursuant to the Directive, public-sector 
workers who have been victims of abuse qualify only for compensation equal 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-332/22 
 
6  
to 20 days per year of service up to a limit of [the equivalent of] 12 monthly 
salary payments, with no right to become permanent employees. 
– The provisions of Article 32 et seq. of Law 40/2015 on the legal framework 
governing the public sector […] establish the principle of full reparation, which 
imposes on the administrative authorities an obligation to provide 
compensation for any loss and damage caused to the victims of their actions, 
and yet, pursuant to Community law, compensation for victims of abuse is 
restricted by a prior upper limit, in terms of both amount ― 20 days per year of 
service ― and time ―12 monthly salary payments. 
TENTH.- [The referring court wishes to ascertain] whether Law 20/2021, in 
providing as the only genuine punitive measure for compensation equal to 20 days 
per year of service for victims of abuse who have been unsuccessful in a selection 
procedure, infringes the case-law established by the CJEU in its judgment of 
7 March 2018 in Santoro, according to which, in the public sector, in order to 
comply with the Directive, compensation alone is not sufficient, but must be 
accompanied by other additional, effective, proportionate and dissuasive punitive 
measures. 
ELEVENTH.- [The referring court wishes to ascertain] whether Law 20/2021, in 
fixing the compensation available to victims who are unsuccessful in a selection 
procedure at 20 days per year of service up to a limit of [the equivalent of] 
12 monthly salary payments, infringes the Community principles of adequate and 
full compensation and proportionality, in that it excludes loss of earnings and 
other heads of indemnification or compensation such as, for example, those 
arising from the loss of opportunities (as referred to in the judgment of the CJEU 
in Santoro); the impossibility of acquiring permanent staff status because no 
notices of competition for selection processes are issued within the time limits laid 
down in the domestic legislation, or the inability to secure promotion or 
progression; the non-material damage arising from the lack of protection attendant 
upon any insecure employment; termination of the employment of a victim of 
abuse whose age and sex (a woman over the age of 50, for example) deprives 
them of an alternative labour market; or the reduction of the retirement pension? 
TWELFTH.- [The referring court wishes to ascertain] whether Law 20/2021, in 
providing for compensation capped at 20 days per year of service and [the 
equivalent of] 12 monthly salary payments, infringes the Community legislation, 
in the light of the judgments of the CJEU of 2 August 1993 in Case C-271/91, 
Marshall, and of 17 December 2015 in Case C-407/14, Arjona, according to 
which EU law precludes reparation for the loss and damage sustained by a person 
as a result of dismissal from being restricted by a prior upper limit. 
GENERALITAT DE CATALUNYA 
 
7 
Provisions of European 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’):  
– Article 2, first paragraph.  
– Annex: clauses 1, 3, 4(1), 5 and 8(3). 
Case-law of the Court of Justice of the European Union: Inter alia: 
– Judgment of 7 September 2006, Marrosu and Sardino, C-53/04, 
EU:C:2006:517. 
– Judgment of 7 September 2006, Vassallo, C-180/04, EU:C:2006:518. 
– Judgment 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 17 April 2018, Egenberger, C-414/16, EU:C:2018:257. 
– Judgment of 25 October 2018, Sciotto, C-331/17, EU:C:2018:859. 
– Judgment of 8 May 2019, Rossato and Conservatorio di Musica F.A. Bonporti, 
C-494/17, EU:C:2019:387. 
– 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. 
– Judgment of 7 April 2022, Ministero della Giustizia and Others (Status of 
Italian magistrates), C-236/20, EU:C:2022:263. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-332/22 
 
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Provisions of national law relied on 
National legislation: 
A) Spanish Constitution: Articles 14 and 103(3). 
B) Basic Law 6/1985 of 1 July 1985 on the judiciary: Article 472. 
C) Royal Decree 1451/05 of 7 December 2005 approving the rules on the 
admission of civil service staff to the Administration of Justice 
Service: Article 30. 
D) Basic Regulatory Code for Public Employees (EBEP), as a provision 
of subsidiary application. This was approved by Law 7/2007 and is 
currently contained in Royal Legislative Decree 5/2015 of 30 October 
2015 approving the recast text of the Law on the Basic Regulatory 
Code for Public Employees. Of that Basic Regulatory Code for Public 
Employees the following provisions are to be noted: (i) Article 10 (in 
the version in force prior to its amendment by Law 20/2021); and (ii) 
Article 62, which states that ‘career civil servant status is acquired by 
successively fulfilling the following requirements: a) successfully 
completing the selection procedure. (…)’. 
E) Law 20/2021 of 28 December 2021 on urgent measures to reduce 
temporary employment in the public sector. Of that provision the 
following are to be noted: 
Article 1: Amendment of the Basic Regulatory Code for Public 
Employees (EBEP). Of that Regulatory Code, Law 20/2021 (i) 
amends, inter alia, Article 10 of the Regulatory Code and (ii) includes 
a new seventeenth additional provision.  
(i) Of the amended content of Article 10 of the EBEP, the following 
is to be noted: The definition of the concept of interim civil 
service staff and the circumstances that must be present for their 
appointment; the principles governing the issue of notices of 
competition for procedures for the selection of interim civil 
service staff; the grounds for terminating the employment 
relationship of interim staff that will not give rise to entitlement 
to any financial compensation; the general rule that an interim 
employment relationship will come to an end after a maximum of 
three years from the appointment of the interim civil servant and 
the possible exception to that general rule; the general scheme of 
rules applicable to interim civil service staff, which must be the 
same as the scheme applicable to career civil service staff in so 
far as this is appropriate to the temporary nature of the 
employment relationship of interim staff and to the extraordinary 
and urgent nature of their appointment. 
GENERALITAT DE CATALUNYA 
 
9 
(ii) Of the content of the new seventeenth additional provision, 
(entitled ‘Measures to control temporary employment in the 
public sector’), the following is to be noted: that any act, pact, 
agreement or regulatory provision the content of which directly 
or indirectly entails the non-observance by the administration of 
the maximum time limits for employing interim staff as 
temporary staff will automatically be void; and that any failure to 
observe that maximum time limit for employment will entitle 
interim civil service staff to financial compensation equal to 
twenty days of their basic pay per year of service up to a 
maximum of [the equivalent of] twelve monthly salary payments. 
Article 2: Procedures for stabilising the employment of temporary 
staff. This article provides for measures to stabilise the employment of 
temporary staff in the employ of the public administrations which 
come on top of those laid down in other Spanish laws. In particular, it 
authorises an additional measure to stabilise the employment of 
temporary staff that will encompass posts of a structural nature which 
have been occupied on a temporary and uninterrupted basis for at least 
the three years prior to 31 December 2020 by temporary staff. 
Decisions on any selection procedures organised in implementation of 
the stabilisation process must be finalised by 31 December 2024. The 
employment relationships of temporary staff who participate but are 
unsuccessful in a stabilisation selection procedure will be terminated. 
In any event, such persons are entitled to financial compensation equal 
to 20 days’ basic pay per year of service up to a maximum of [the 
equivalent of] 12 monthly salary payments. Candidates who do not 
participate in a stabilisation selection procedure will not be entitled to 
any financial compensation. 
Sixth and seventh additional provisions. These provide for the issue 
of notices of competition for selection procedures additional to the 
procedure envisaged in Article 2 of Law 20/2021 itself. 
A) Regulatory Code Workers, approved by Royal Decree 2/2015 of 
23 October 2015 approving the recast text of the Law on the 
Regulatory Code for Workers. That Code is applicable to workers in 
the private sector. It is to be noted from this that: 
(i) For private-sector workers who are the subject of the abusive use 
of successive temporary contracts, Article 15 makes it possible 
for such abusive relationships to be made definitive or 
permanent, it being sufficient for this purpose for the temporary 
worker to have been in the employ of the same employer for 
more than 24 months over a period of 30 months. In the opinion 
of the referring court, this is a genuine punitive measure. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-332/22 
 
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(ii) The fifteenth additional provision expressly provides for interim 
staff in the public sector to be excluded from the punitive 
measure laid down in Article 15.  
B) Law 40/2015 on the legal framework governing the public sector (as 
amended by Law 11/2020 on the general State budget for 2021). From 
that law, the following are to be noted:  
(i) Article 32 (et seq.), which establishes the principle of full 
reparation that compels administrative authorities to provide 
compensation for any loss and damage caused to victims of their 
actions. 
(ii) Article 87(5), which allows private-sector workers (that is to say, 
private-sector contract staff) of undertakings and entities that 
move across to the public sector to perform the same duties as 
career civil servants, with the right to remain in post until the end 
of their working lives, meaning that such private-sector contract 
staff remain subject to the same grounds for termination of 
employment as career civil servants. 
National case-law: 
The case-law of the Administrative Chamber of the Spanish Supreme Court has 
evolved as the CJEU has over time defined its own case-law on the proper 
interpretation of Directive 1999/70/EC, in particular clause 5 of the framework 
agreement.  
Of particular note among all of the judgments of the Spanish Supreme Court are 
those delivered by the Administrative Chamber under Nos 1425/2018 and 
1426/2018. Those judgments express a position, maintained in other more recent 
judgments (the most recent being that of 30 November 2021), the effect of which, 
according to the referring court, is to keep a public employee who has been a 
victim of [the] abuse [of successive fixed-term contracts] in the same abusive 
situation of insecure employment until such time as the employer administration 
determines whether there is a structural need [for the post in question to be made 
permanent] and issues a notice of competition for the relevant selection 
procedures with a view to filling the post with a permanent or career public 
employee. 
Succinct presentation of the facts and procedure in the main proceedings 
1 HM is an interim civil servant in the Administration of Justice who has been 
working as such since she was first appointed as an Auxiliar interina (Interim 
Assistant) at the Juzgado de Distrito n.º 3 de Hospitalet (District Court No 3, 
Hospitalet, Spain) on 14 December 1984, meaning that, on the date of bringing the 
action in this case, she had completed a total of more than 37 years’ service for the 
GENERALITAT DE CATALUNYA 
 
11 
Administration of Justice. She has been in her current role, as a court clerk at the 
Juzgado de lo Penal n.º 3 de Villanova i la Geltrú (Criminal Court No 3, Villanova 
i la Geltrú, Spain) for more than 8 years and two months to date. 
2 VD is also an interim civil servant working for the Administration of Justice, in 
her case since 15 May 1991. She was appointed to her current post – interim civil 
servant in the Cuerpo de Tramitación (Court Clerks’ Office) at the Juzgado Penal 
n.º 3 de Barcelona (Criminal Court No 3, Barcelona, Spain) – on 20 June 2012, 
and has therefore been in that role for 9 years and more than 8 consecutive 
months. 
3 The applicants, Ms HM and Ms VD, submit that, during all of those years of 
continuous service, they have met the same needs as comparable career civil 
servants, which is to say that, in practice, they serve needs which are not 
provisional, urgent and exceptional but routine, regular and permanent. In 
addition, they fill a structural shortfall in the career civil servant cadre, as is 
demonstrated by the fact: (i) that, according to overall data from the Generalitat de 
Catalunya, at the end of 2021, the Catalan Administration of Justice employed 
4257 career civil servants and 2884 interim civil servants, giving a temporary 
employment rate of 40.38%, and (ii) that that rate is even higher in the court 
where Ms HM works (where the temporary employment rate in the Court Clerks’ 
Office is 75%) and in the court where Ms VD works (where the temporary 
employment rate in the Court Clerks’ Office is 100%). 
The essential arguments of the parties in the main proceedings 
4 In their application, the applicants, after submitting that the successive temporary 
contracts awarded to them have been the subject of abuse incompatible with 
clause 5 of the framework agreement annexed to Directive 1999/70/CE, claim that 
that Community provision should be applied to them and, consequently, that the 
corresponding punitive measure should be imposed on the employer 
administration, in this case the Department of Justice of the Generalitat de 
Catalunya, which is responsible for this instance of abuse of temporary 
employment. 
5 The applicants argue that, since the Spanish legislation makes no provision for 
any penalty in the public sector (which it does in the private sector, in the form of 
the requirement that temporary workers who have been working for the same 
employer for more than two years must be made permanent), the penalty 
applicable in this sector can only be to convert that abusive temporary relationship 
into a permanent relationship, either (i) by granting such workers career civil 
servant status, or (ii) by converting their abusive temporary relationship into a 
permanent one comparable to that of career civil servants, without granting them 
career civil servant status but conferring on them the same rights as they would 
enjoy as such. They also claim, in any event, that the administration should pay 
them the sum of EUR 18 000 and/or such sum as is legally appropriate by way of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-332/22 
 
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compensation for the abuse of successive temporary employment relationships of 
which they have been the subject. If their abusive temporary employment 
relationships cannot be made permanent, they seek compensation for the 
incalculable loss and damage that will materialise when their employment is 
terminated.  
6 The defendant administration, the Generalitat de Cataluña, opposes the action and 
contends that it should be dismissed. By way of legal grounds for its position, it 
submits that there has been no abuse [of successive fixed-term contracts] because 
notices of competition for appointment to the posts occupied by the applicants 
have been issued practically every year. It also refers to the Spanish Supreme 
Court’s settled case-law in this regard. The defendant further mentions Law 
20/2021 of 28 December 2021 and expresses the view that that provision resolves 
the current situation inasmuch as it allows the applicants’ circumstances to be 
regularised. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
7 This request for a preliminary ruling is framed by the general issue of abuse of 
temporary employment contracts that exists within the Spanish public service, an 
issue of which the CJEU is fully aware (having mentioned it in various judgments, 
such as, for example, that of 14 September 2016 in Case C-16/15) and which is 
acknowledged in the explanatory memorandum to Law 20/21 itself. The key 
question with which this reference for a preliminary ruling is concerned is what 
punitive measure should be applied in a Member State ― such as Spain ― which 
has not transposed the Directive into its domestic legal order in a particular sector, 
such as the public sector, but has laid down a punitive measure in the private 
sector, inasmuch as an abusive temporary relationship qualifies for conversion to a 
definitive or permanent relationship on the sole ground that the temporary worker 
has worked for the same employer for more than 24 months over a period of 
30 months (see Article 15 of the Regulatory Code for Workers). 
8 The referring court has grouped its points of uncertainty into six main batches. 
9 (First batch of points of uncertainty) Uncertainty as to the punitive measures to 
be applied in a Member State where Directive 1999/70/CE has not been 
transposed and, for that reason, the national legislation does not contain any 
punitive measures for ensuring compliance with clause 5 of the framework 
agreement in the public sector.  
10 The FIRST, SECOND, THIRD AND FOURTH questions referred for a 
preliminary ruling are intended to resolve the points of uncertainty raised in this 
first batch.  
11 With regard to the points of uncertainty raised in the first batch, the referring court 
notes:  
GENERALITAT DE CATALUNYA 
 
13 
12 The CJEU has held that ‘a measure offering effective and equivalent guarantees 
for the protection of workers must be capable of being applied in order duly to 
penalise that abuse and nullify the consequences of the breach of EU law. 
According to the very wording of the first paragraph of Article 2 of Directive 
1999/70, Member States must ‘take any necessary measures to enable them at any 
time to be in a position to guarantee the results imposed by [that] directive’ (see 
paragraph 88 of the judgment of the CJEU of 19 March 2020, paragraph 32 of the 
order of the CJEU of 2 June 2021 and paragraph 48 of the judgment of the CJEU 
of 3 June 2021). 
The aforementioned paragraphs are particularly relevant because they place the 
basis of the obligation to penalise abuse not in clause 5 of the framework 
agreement but in Article 2 of the Directive. Consequently, the failure by a 
Member State to fulfil its obligation to transpose the Directive in relation to 
penalties constitutes an infringement not only of clause 5 of the framework 
agreement but also and in particular of Article 2 of the Directive, which 
establishes a link between the penalising of abuse and the effectiveness of that 
provision of EU law. 
There is also an indisputable and direct link between the protection which 
Directive 1999/70/EC ― in particular Article 2 thereof ― affords to individuals 
and the right to effective judicial protection, as the CJEU itself recognised in the 
judgment (of the Grand Chamber) of 15 April 2008 in Case C-268/2006 (in 
particular paragraphs 40 to 43).  
It is therefore the principle of effective judicial protection, as a general principle 
of EU law, which is called into question in the situation at issue in this case. 
13 It is clear that, in the public sector in Spain, there is no law laying down a penalty 
that fulfils the requirements of the Directive, in the light of the judgment of the 
CJEU of 19 March 2020 in Case C-103/18, given that:  
(i) As regards selection procedures, the judgment of the CJEU of 
19 March 2020 states in paragraphs 97 to 101 (see also the order of the 
CJEU of 2 June 2021 in Case C-103/19) a) that the selection and 
stabilisation procedures are not a measure in conformity with the 
Directive, not least because the notice of competition for those 
procedures does not give rise to any adverse ― for which read punitive 
― effect vis-à-vis the employer administration responsible for the 
abuse or any compensatory effect vis-à-vis an employee who has been 
the victim of abuse, and because ‘such procedures […] are also 
accessible to candidates who have not been victims of such abuse;’ and 
b) that, even if public employees who are the subject of abuse are able 
to participate in those selection procedures, this fact does not relieve 
the Member States of the need to comply with their obligation to lay 
down a dissuasive measure to penalise the abusive use of temporary 
contracts and to compensate victims.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-332/22 
 
14  
(ii) As regards the concept of ‘non-permanent workers of indefinite 
duration’, paragraph 102 of the judgment of the CJEU of 19 March 
2020 states that that this is not a punitive measure in conformity with 
the Directive either: a) because non-permanent workers of indefinite 
duration are still temporary workers for the purposes of the Directive; 
and b) because non-permanent workers of indefinite duration do not 
enjoy the same employment conditions ― for which read the same 
stability of employment ― as permanent staff. 
(iii) As regards any compensation that may be available, the judgment of 
the CJEU of 19 March 2020 states in paragraphs 103 to 105 that, in 
order for compensation to fulfil the requirements of Directive 1999/70, 
it must be specifically provided for in national legislation as a measure 
intended to bring an end to the insecure employment of public 
workers, and be dissuasive. In Spain, moreover, there is no 
compensation that fulfils those requirements.  
What is more, the non-existence of punitive measures is directly at odds with the 
subject matter, objectives and effectiveness of Directive 1999/70/EC, as the CJEU 
recognises in paragraph 72 of the judgment of 3 June 2021. 
14 In the face of the non-existence of punitive measures in the Spanish legislation, 
the Administrative Chamber of the Spanish Supreme Court, in judgments Nos 
1425/2018 and 1426/2018 of 26 September 2018, chose to endorse as a punitive 
measure the continued existence of an abusive temporary relationship until such 
time as the employer administration issues a competition notice for the relevant 
selection procedure to fill with a career civil servant a post occupied by a long-
term interim civil servant. 
That case-law of the Supreme Court appears to be inconsistent with the 
aforementioned case-law of the CJEU. The referring court shares the applicants’ 
view that the penalty cannot be that the abusive employment relationship should 
continue in being until such time as the employer administration fills the post 
through the prescribed procedures in the manner laid down in Article 10 of the 
EBEP. Its reasons are, inter alia, as follows. First, because the CJEU has already 
held that the measures envisaged by the judgments of the Spanish Supreme Court 
of 26 September 2018 are not in conformity with clause 5 of the framework 
agreement (see the judgment of the CJEU of 19 March 2020 in Sánchez Ruiz). 
Second, because, since the Directive requires that any abuse be penalised and that 
the penalty be proportionate, effective and dissuasive, and be specifically 
prescribed in national legislation by a law, the Supreme Court cannot – as it 
does – lay down a penalty not prescribed in a provision having the status of a law. 
Third, because, in the aforementioned judgments of 26 September 2018, the 
Spanish Supreme Court effectively prolongs ― for which read perpetuates ― an 
abused employee’s position as a victim of abuse and lack of protection, which is 
incompatible with Directive 1999/70, until such time as the employer 
GENERALITAT DE CATALUNYA 
 
15 
administration decides at random to issue a notice of competition for the relevant 
selection procedure. 
15 The fact that the Spanish legislation does not make any provision ― in the public 
sector ― for a punitive measure such as to ensure compliance with clause 5 of the 
framework agreement, and that the alleged punitive measures endorsed by the 
Spanish Supreme Court cannot, in the opinion of the referring court, be regarded 
as effective, proportionate and dissuasive, raises the issue as to what measure 
should be applied in the public sector in Spain, since a penalty must always be 
provided for and it is for the judicial authorities to ensure compliance with EU 
law. 
16 The referring court considers that the most appropriate and balanced punitive 
measure for ensuring compliance with the Community Directive is to convert an 
abusive temporary relationship into a permanent relationship, making the victims 
of abuse subject to the same grounds for termination of employment and dismissal 
as apply to comparable career civil servants, but without granting them career 
civil servant status. 
17 It is readily apparent from the foregoing that clause 5 of the framework agreement 
must be interpreted in the light of the judgment of the CJEU of 17 April 2018 in 
Egenberger, paragraphs 78 and 79 of which state that, in cases where the court 
becomes convinced that its national law does not permit an interpretation in 
accordance with the directive, EU law provides for expansive principles ― the 
rights to equality, non-discrimination and effective judicial protection provided for 
in Articles 21 and 47 of the Charter ― which operate as a sufficient basis for the 
exclusion, ultimately, of any provisions of domestic law that conflict with that 
interpretation.  
18 The need to make interim civil servants who have been victims of abuse subject to 
the same grounds for termination of employment and dismissal as apply to career 
civil servants is also a consequence imposed by clause 4 of the framework 
agreement and Articles 20, 21, 23 and 31 of the Charter of Fundamental Rights of 
the European Union. 
19 (Second batch of points of uncertainty) Uncertainty as to the time span to be 
used to determine the point at which abuse incompatible with clause 5 of the 
framework agreement occurs, that is to say when it may be concluded that a 
public employee is meeting needs which are not in fact temporary but routine 
and permanent. 
20 The FIFTH question referred for a preliminary ruling is intended resolve the point 
of uncertainty raised in this second batch. 
21 For the purposes of determining the point at which abuse occurs, the judgment of 
the CJEU of 19 March 2020, paragraphs 78 and 79, states that regard must be had 
to certain parameters such as: (1) the number of consecutive years the employee 
has, while working for the employer administration, been performing tasks 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-332/22 
 
16  
associated with the normal activities of permanent career staff; (2) the high 
percentage of temporary public employees who, for that reason, are essential to 
the functioning of that sector; (3) the effective non-existence of any maximum 
limits on the duration of temporary contracts; (4) or the failure of the employer 
administrations to fulfil their statutory obligation to fill posts occupied by 
temporary staff with permanent staff by issuing notices of competition for the 
relevant selection procedures within the time limits laid down by law. 
22 The referring court takes the view that the Spanish legislation contains provisions 
on the basis of which it can be determined that abuse in connection with the 
conclusion of successive temporary contracts in the public sector occurs when the 
continuous relationship remains in place and carries on for more than two years or 
24 months (it cites by way of example Article 15 of the Basic Regulatory Code for 
Workers and Article 10(4) of the Basic Regulatory Code for Public Employees). 
The referring court does not understand why the Spanish legislation defines abuse 
in the private sector as arising as from two years’ [temporary employment], 
whereas, in the public sector, a completely different hypothetical criterion is 
applied. 
23 (Third batch of points of uncertainty) Uncertainty as to whether the retroactive 
application of Law 20/21 of 28 December 2021 to previous situations 
involving the abusive conclusion of temporary contracts in the public sector 
infringes the Community principle of legality. 
24 The SIXTH question referred for a preliminary ruling is intended to resolve the 
point of uncertainty raised in this third batch. 
25 Law 20/21, the purpose of which is to reduce temporary employment ― rather 
than to penalise abuse ―, has effectively established the need to issue notices of 
competition for selection procedures in certain circumstances with a view to 
reducing instances of abusive temporary employment. 
26 Now, the point of uncertainty raised by the referring court is whether it has an 
obligation to apply Law 20/21 to acts constituting an infringement of clause 5 of 
the framework agreement in the case where those acts, amounting to an abuse in 
the employment of a public employee on the basis of successive temporary 
contracts, occurred and were committed, and were reported by the civil servant 
having been the victim of such abuse, prior to the entry into force of Law 20/2021, 
since this might infringe: (1) the Community principle of legality in the context of 
the law on the imposition of penalties (that fundamental right, which is set out in 
Article 7 of the Treaty of Rome and Article 49 of the Charter of Fundamental 
Rights of the European Union, includes the nullum crimen nulla poena sine lege 
rule, and is applicable even to the imposition of penalties under administrative 
law); and (2) the Community principle that penal provisions may not have 
retroactive effect, to which the CJEU (Grand Chamber) refers in its judgment of 
20 December 2017 in Case [C-521-15], in particular paragraphs 145 and 146. 
GENERALITAT DE CATALUNYA 
 
17 
27 From the point of view of the application of the aforementioned principles of 
legality and the non-retroactivity of penal provisions, the punitive measures 
contained in Law 20/2021 of 28 December 2021 cannot be applied to public 
employees who were already suffering abuse at the time when Law 20/2021 
entered into force.  
28 (Fourth batch of points of uncertainty) Uncertainty as to whether the measures 
laid down in Law 20/21 of 28 December 2021 with a view to reducing 
temporary employment may be regarded as punitive measures that fulfil the 
requirements of clause 5 of the framework agreement. 
29 The SEVENTH question referred for a preliminary ruling is intended to resolve 
the points of uncertainty raised in this fourth batch. 
30 Law 20/2021 lays down as the only penalty for abuse in temporary employment in 
the public sector the requirement to issue notices of competition for open selection 
procedures participation in which is not confined to victims of abuse and which do 
not therefore guarantee that victims will acquire permanent or career civil servant 
status. Furthermore, it is only temporary workers who have been victims of abuse 
and are unsuccessful in a selection procedure who qualify for the compensation, 
equal to 20 days per year of service up to [the equivalent of] 12 monthly salary 
payments, that is made available under that Law. 
31 The foregoing supports the inference that the only penalty for abuse allegedly laid 
down in Law 20/2021 is the requirement to issue a notice of competition for a 
selection procedure, since, if the penalty were compensation, this would be 
available to all victims of abuse, whether or not they had been successful in the 
relevant selection procedure. For its part, the organisation of open-access selection 
procedures ― such as the stabilisation procedures provided for in Law 20/2021― 
cannot under any circumstances constitute an effective punitive measure capable 
of guaranteeing the attainment of the objectives pursued by Directive 1999/70/EC 
and compensating victims of abuse who have suffered a systematic and permanent 
infringement of their rights (as confirmed in the ― aforementioned ― order of the 
CJEU of 2 June 2021in Case C-103/19). 
32 (Fifth batch of points of uncertainty) Uncertainty as to whether Law 20/21 of 
28 December 2021, in providing that the aforementioned selection procedures 
must be concluded within a period of three years and stating that the 
compensation equal to 20 days per year of service is payable only upon the 
worker’s termination of employment or dismissal, infringes Directive 
1999/70/EC inasmuch as it perpetuates the position of interim civil servants 
as victims of such abuse and lack of protection. 
33 The EIGHTH question referred for a preliminary ruling is intended to resolve the 
points of uncertainty raised in this fifth batch. 
34 In the view of the referring court, Law 20/21 serves only to keep public 
employees who are victims of abusive temporary employment in the same 
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18  
situation of humiliation, lack of protection, vulnerability and discrimination, 
prohibited by Articles 3. 8, 14 and 17 of the Treaty of Rome and Articles 4, 20, 
21, 23, 31, 33 and 41 of the Charter [of Fundamental Rights of the European 
Union]. It perpetuates that situation for at least a further three years, or until such 
time as notices of competition for the selection or stabilisation procedures 
announced are issued (given that that Law lays down a time limit of 31 December 
2024) Furthermore, the compensation equal to 20 days per year of service up to a 
limit of [the equivalent of] 12 monthly salary payments that is available to 
temporary public employees who are victims of abuse and have been unsuccessful 
in the selection procedures outlined in that Law becomes payable only upon 
termination of employment, meaning that, if such employees are not dismissed, 
they will not receive any compensation and the employer can continue to take 
advantage of their unstable employment. 
35 (Sixth batch of points of uncertainty) Uncertainty as to whether the 
compensation equal to 20 days per year of service up to a limit of [the 
equivalent of] 12 monthly salary payments, which, according to Law 20/21, is 
payable to victims of abuse who have been unsuccessful in selection 
procedures for which notices of competition are issued under Article 2 and 
the sixth and eighth additional provisions infringes EU law. 
36 The NINTH, TENTH, ELEVENTH and TWELFTH questions referred for a 
preliminary ruling are intended to resolve the points of uncertainty raised in this 
batch. 
37 These points of uncertainty arise, first, because no compensation whatsoever is 
available to public employees who are victims of abuse in connection with their 
employment on temporary contracts and, after successfully completing the 
selection procedure, acquire career civil servant or permanent contract staff status. 
This arrangement fails to take into account the case-law rule arising from the 
order of the CJEU of 2 June 2021, in particular paragraph 45 thereof.  
38 Second, because, in its judgment of 7 March 2018 in Case C-494/16 in Santoro, 
the CJEU states that, in order for compensation to meet the requirements of the 
Directive in the public sector, it is essential that it be accompanied by an effective 
and dissuasive penalty mechanism additional to such compensation, which is not 
the case under Law 20/2021. It is true that the first additional provision to Law 
20/2021 makes the public administrations liable for any irregularities committed 
in connection with the conclusion of temporary contracts. However, this is a stock 
phrase which is of no practical effect. 
39 Third, because the compensation provided for in Law 20/2021 infringes the 
principle of equivalence, in accordance with which persons who rely on ‘rights 
conferred by the legal order of the European Union must not be placed at a 
disadvantage by comparison with those who rely on rights of a purely domestic 
nature’. In the view of the referring court, the Kingdom of Spain is in breach of 
that principle of equivalence in at least several respects (for example, even before 
GENERALITAT DE CATALUNYA 
 
19 
Directive 1999/70/EC entered into force and domestic law alone therefore applied, 
Article 15 of the Regulatory Code for Workers already provided that temporary 
workers who had been working for the same employer for more than 24 months to 
must be made permanent). 
40 Fourth, because compensation equal to 20 days per year of service up to an upper 
limit of [the equivalent of] 12 monthly salary payments infringes the principle of 
full and adequate compensation for the damage caused (see the judgments of the 
CJEU in Case C-271/91, Marshall, paragraph 26, and in Case C-460/06, Paquay, 
paragraph 46). See also the judgment of the CJEU of 17 December 2015 in Case 
C-407/14, paragraph 33. 
41 Fifth, because EU law categorically prohibits reparation for damage sustained by 
an individual as a result of an obligation under EU law from being restricted by a 
prior upper limit (see to that effect the judgments of the CJEU of 2 August 1993 in 
Case C-271/91, Marshall, and of 17 December 2015 in Case C-407/14, Arjona 
Camacho). 
42 Sixth, because the compensation equal to 20 days per year of service provided for 
in Spanish law entails a flagrant breach of Component 11 of the Plan de 
Recuperación, Transformación y Resiliencia (Recovery, Transformation and 
Resilience Plan) submitted by Spain to the EU. That plan provides that Spain will 
‘support the transition towards contracts of indefinite duration’ in order to reduce 
the excessively high level of temporary employment in the Spanish public sector, 
and states that that transition towards to contracts of indefinite duration will be 
effected at no economic cost. However, shortly after the European Commission 
approved the Plan, the Kingdom of Spain enacted Law 20/2021, the effect of 
which, according to the referring court, will be a substantial failure to deliver the 
Plan, inasmuch as the compensation provided for will necessarily lead to an 
increase in public expenditure.  
43 Opinion of the referring court on the request for a preliminary ruling.  
– In the view of the referring court, the case-law of the Spanish Supreme 
Court is not consistent with Directive 1999/70/EC, or with the case-
law of the CJEU that interprets it. 
– Neither does Law 20/21 comply either with the Directive or with the 
interpretation of it which has been adopted by the CJEU. That Law is 
no more than an attempt to ‘save face’ in response to the pressure 
which the affected groups and trade unions have been applying in an 
attempt to remedy their situation and silence or stall the outbreak of a 
social conflict that may have significant or serious repercussions.  
– Up until now, the case-law of the CJEU has told us what we must not 
do but not what we must do. That ‘negative’ case-law on ‘what not to 
do’ has had the effect of increasing litigiousness and exacerbating 
confusion among employers and those affected. Because of its 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-332/22 
 
20  
manifest shortcomings, the new Law 20/2021 will only make the 
situation described worse. 
– Accordingly, given that the Spanish authorities and courts are 
manifestly incapable of finding a valid and effective solution to the 
problem, now is a good time for the CJEU to lead the way by 
establishing case-law that tells us ‘what we must do’. 
– The referring court concludes by stating that, given that the punitive 
measure consisting in the acquisition of career civil servant status runs 
directly counter to the national legislation (which allows only those 
who successfully complete a selection procedure the notice of 
competition in respect of which is issued specifically with a view to 
granting that status), the appropriate punitive measure, in its view, 
would be to give civil servants who are victims of abuse stability in 
their employment but without granting them career civil servant status. 
In its opinion, this solution would make domestic law compatible with 
the obligations arising from Community law.