Judgment;Summary — ECLI:EU:C:2021:440
Date: 2021-06-03
Language of the case: Spanish
Court formation: Seventh Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Spain

Summary C-942/19 — 1 
Case C-942/19 
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: 
31 December 2019 
Referring court: 
Tribunal Superior de Justicia de Aragón (High Court of Justice of 
Aragon, Spain) 
Date of the decision to refer: 
17 December 2019 
Appellant: 
Servicio Aragonés de la Salud 
Respondent: 
LB 
  
Subject matter of the main proceedings 
The dispute in the main proceedings concerns whether LB, a member of the 
permanent regulated staff of the Servicio de Salud de Aragón (Aragon Health 
Service; ‘the health service’), is entitled to voluntary leave of absence by reason of 
employment in the public sector. 
Subject matter and legal basis of the request for a preliminary ruling 
The request for a preliminary ruling concerns whether Spanish legislation which 
permits voluntary leave of absence by reason of employment in the public sector 
only if the post to be taken up is permanent is compatible with clause 4 of the 
framework agreement on fixed-term work. The legal basis is Article 267 TFEU. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-942/19 
 
2  
Questions referred for a preliminary ruling 
1) Must clause 4 of the framework agreement on fixed-term work concluded by 
ETUC, UNICE and CEEP, annexed to Directive 1999/70/EC, be interpreted as 
meaning that the right, derived from obtaining a post in the public sector, to the 
conferral of a particular administrative status in relation to the post — also in the 
public sector — which was held up until then is a condition of employment in 
respect of which temporary workers and permanent workers may not be treated 
differently? 
2) Must clause 4 of the framework agreement on fixed-term work concluded by 
ETUC, UNICE and CEEP, annexed to Directive 1999/70/EC, be interpreted as 
meaning that justification on objective grounds for the different treatment between 
fixed-term workers and permanent workers includes the aim of preventing serious 
failings and harm as regards the instability of workforces in a field as sensitive as 
the provision of healthcare, which falls under the constitutional right to the 
protection of health, such that it can serve as the basis for refusal to grant a 
particular type of leave of absence to those who obtain a temporary post but not to 
those who obtain a permanent post? 
3) Does clause 4 of the framework agreement on fixed-term work concluded by 
ETUC, UNICE and CEEP, annexed to Directive 1999/70/EC, preclude a rule such 
as that laid down in Article 15 of [Royal Decree 365/1995], which excludes posts 
held as a temporary civil servant or as a temporary staff member from being part 
of the posts which give entitlement to the status of on leave of absence by reason 
of employment in the public sector, when that status must be granted to those who 
take up a permanent post in the public sector and that status is more advantageous 
for a public servant than the other alternative administrative statuses which that 
public servant would have to request in order to be able to take up a new post to 
which he or she has been nominated? 
Provisions of EU 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 (OJ 1999 
L 175, p. 43) (‘Directive 1999/70’), Articles 1 and 2. 
Framework agreement on fixed-term work concluded by ETUC, UNICE and 
CEEP (‘framework agreement’), clause 4(1). 
Judgment of the Court of Justice of 14 September 2016, De Diego Porras 
(C-596/14, EU:C:2016:683). 
Judgment of the Court of Justice of 20 December 2017, Vega González (C-158/16, 
EU:C:2017:1014, paragraphs 31 and 34) and point 1 of the operative part. 
SERVICIO ARAGONÉS DE LA SALUD 
 
3 
Order of the Court of Justice of 22 March 2018, Centeno Meléndez (C-315/17, 
EU:C:2018:207, paragraph 65). 
Provisions of national law relied on 
Ley 30/1984, de 2 de Agosto, de medidas para la reforma de la Función Pública 
(Law 30/1984 of 2 August 1984on measures to reform the civil service) (BOE 
No 185 of 3 August, p. 22629), Article 29(3). 
Ley 53/1984, de 26 de diciembre, de Incompatibilidades del Personal al Servicio 
de las Administraciones Públicas (Law 53/1984 of 26 December 1984 on 
incompatibilities for staff working for the public authorities) (BOE No 4 of 
4 January, p. 165), Article 1. 
Ley 55/2003, de 16 de diciembre, del Estatuto Marco del personal estatutario de 
los servicios de salud (Law 55/2003 of 16 December 2003 on the framework 
regulations for public servants working in the health service) (BOE No 301 of 
16 December, p. 44742), Articles 2(1) and (2), 3, 62, 66(1) and (3) and 67(1) to 
(3). 
Ley del Estatuto Básico del Empleado Público, cuyo texto refundido fue aprobado 
por el Real Decreto Legislativo 5/2015, de 30 de (Law on the basic regulations 
governing public servants, the consolidated version of which was approved by 
Royal Legislative Decree 5/2015 of 30 October 2015) (BOE No 261 of 
31 October, p. 103105) (‘EBEP’), Articles 2(1), (3), (4) and (5), 85(1), 88(1), (3) 
and (4), and 89(1) and (2). 
Real Decreto 365/1995, de 10 de marzo, por el que se aprueba el Reglamento de 
Situaciones Administrativas de los Funcionarios Civiles de la Administración 
General del Estado (Royal Decree 365/1995 of 10 March 1995 approving the rules 
on the administrative statuses of civil servants in the General State 
Administration) (BOE No 85 of 10 April, p. 10636), Article 15. 
Succinct presentation of the facts and the procedure in the main proceedings 
1 LB obtained a position as a member of the permanent regulated staff of the health 
service, a position which she held from 14 December 2010 to 20 December 2017. 
2 LB was nominated for a temporary position as a lecturer following a call for 
applications by a university; that nomination was signed off on 25 October 2017. 
LB was therefore sent the employment contract and was requested to take up that 
position on 21 December 2017. 
3 In order to take up that position, which was incompatible with the one she held, 
LB made a written request on 1 December 2017 to be granted the status of on 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-942/19 
 
4  
leave of absence by reason of employment in the public sector from the position 
which she held in the health service. 
4 That request was refused by decision of 4 December 2017 of the director of the 
Zaragoza III sector of the health service, on the ground that, in accordance with 
Article 15 of Royal Decree 365/1995, permanent regulated staff and career civil 
servants cannot be granted leave of absence by reason of employment in the 
public sector where the other public authority post is to be held on a temporary 
basis. 
5 In order to be able to take up the temporary lecturer position, LB requested 
voluntary leave of absence for personal reasons by letter of 17 December 2017, 
and this was granted to her by decision of the director of the Zaragoza III sector of 
the health service of 20 December 2017. 
6 In addition, LB appealed against the decision of 4 December; that appeal was 
dismissed by order of the Regional Department of Health of 16 March 2018. 
7 LB brought proceedings against that order before Juzgado de lo Contencioso-
Administrativo n.º 4 de Zaragoza (Administrative Court No 4, Zaragoza, Spain), 
which found in her favour by judgment of 9 May 2019. The judgment states that 
the decision that LB was ineligible for the administrative status of employment in 
the public sector on the grounds that the second post was temporary and not 
permanent breached the principle of non-discrimination between permanent 
workers and fixed-term workers laid down in clause 4 of the framework 
agreement. 
8 The health service brought an appeal against that judgment before the referring 
court. 
Essential arguments of the parties to the main proceedings 
9 In her application, LB sought a declaration that the contested decisions were null 
and void from the outset or, in the alternative, voidable. She also claimed that her 
entitlement to leave of absence from her job with the health service by reason of 
employment in the public sector should be recognised as a personal legal status 
with retroactive effect as from 1 December 2017. 
10 LB claims that the contested decisions breached the principles of equality and 
non-discrimination provided for in clause 4 of the framework agreement and that 
the application of Article 15 of Royal Decree 365/1995 also infringes that clause. 
11 The health service denied that the contested decisions infringed clause 4 of the 
framework decision because no comparable situations existed and because there 
were objective reasons for the different treatment between fixed-term workers and 
permanent workers, in particular the need to ensure the stability of the service 
provided by the health service of Aragon. 
SERVICIO ARAGONÉS DE LA SALUD 
 
5 
12 As regards the making of a reference for a preliminary ruling, LB submits that it is 
not necessary because the case can be resolved by relying on national provisions 
alone. 
13 LB further submits that there is no need for a reference for a preliminary ruling 
because the case-law of the Court of Justice of the European Union is sufficiently 
clear and gives rise to the view that refusal to grant her the status of on leave of 
absence by reason of public sector employment in relation to the position which 
she had been performing, due to the fact that the job she intends to take up is a 
temporary position, is contrary to the prohibition of less favourable treatment laid 
down in Directive 1999/70, which would result in the dismissal of the appeal on 
the basis of the principle of the primacy of EU law. 
14 The health service did not express a view on the making of a reference for a 
preliminary ruling. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
15 As a preliminary point, the referring court sets out the legislative framework, 
which is summarised below. 
16 In the first place, it is necessary to establish which legislation is applicable to 
regulated staff. In that connection, the main legislation applicable is Law 55/2003; 
the EBEP, Laws 30/1984 and 53/1984, and Royal Decree 365/1995 apply on a 
supplementary basis. 
17 In the second place, it is necessary to specify the set of rules governing the 
administrative statuses at issue in the present case. 
18 First, LB asked to be granted the status of on leave of absence by reason of 
employment in the public sector (as it is called in Law 55/2003 (Articles 62 and 
66); in the EBEP it is referred to as employment with other public authorities 
(Articles 85 and 88); while Royal Decree 365/1995 refers to it as voluntary leave 
of absence by reason of employment in the public sector (Article 15)). That status 
is granted, inter alia, where a regulated member of staff transfers to work ‘in 
another regulated staff category, as a civil servant or a temporary staff member, in 
any public authority, unless that member of staff has obtained the proper 
compatibility authorisation’ (Article 66(1) of Law 55/2003). 
19 According to the presentation of national law set out by the referring court, that 
status has the following features: 
– It cannot be refused on the grounds of service needs, and persons who 
enjoy that status retain their status as civil servants in the public 
authority of origin and the right to participate in calls for applications 
to fill posts launched by that public authority; 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-942/19 
 
6  
– The period of service with the public authority to which such persons 
are posted will count as active service with their public authority of 
origin; 
– Persons who obtain that status are not entitled to receive payments 
from the public authority of origin and the period during which they 
retain that status will be recognised for the purposes of three-yearly 
increments and career advancement, where appropriate, when they 
return to active service with the public authority of origin; 
– In addition, there is no requirement to hold that status for a minimum 
period. 
20 Second, the health service did not grant LB that status and instead took the view 
that the status applicable to her was that of voluntary leave of absence for personal 
reasons (Article 67(1)(a) of Law 55/2003). According to the presentation of 
national law set out by the referring court, that status has the following features: 
– The person must have been employed in public authorities during the 
five years preceding the grant of the status; 
– The status can be refused on the grounds of service needs; 
– Persons who enjoy that status are not entitled to receive payments from 
the public authority of origin, and nor will the period during which 
they retain that status count for the purposes of career advancement 
and three-yearly increments; 
– Persons who obtain that status must retain it for at least two years 
before they can return to their former job. 
21 The health service submits that leave of absence by reason of employment in the 
public sector cannot be granted because it is precluded by Article 15 of Royal 
Decree 365/1995, an implementing rule which provides that persons who ‘hold 
posts as temporary civil servants or as a temporary staff member do not qualify 
for’ that administrative status. 
22 The dispute before the referring court is concerned primarily with whether 
Article 15 of Royal Decree 365/1995 is applicable for the purpose of resolving the 
dispute, since there is a discussion concerning whether that provision was repealed 
by the EBEP or whether it is applicable in the alternative as it implements Law 
55/2003, which is a question of national law. The referring court takes the view 
that that article is in force and is applicable. 
23 Therefore, the outcome of the dispute depends on whether the rules laid down in 
Article 15 of Royal Decree 365/1995 conflict with clause 4 of the framework 
agreement. The question that arises is whether the different treatment provided for 
in Article 15 of Royal Decree 365/1995, which precludes a public servant who 
SERVICIO ARAGONÉS DE LA SALUD 
 
7 
obtains another position on a temporary basis from qualifying for leave of absence 
by reason of employment in the public sector whilst providing that a person who 
obtains another position on a permanent basis does qualify for that status, is 
contrary to the principle of non-discrimination contained in the framework 
agreement and the relevant case-law of the Court of Justice of the European 
Union. 
24 In the referring court’s view, it is clear that a public servant who takes up another 
permanent post with a public authority is treated differently from a public servant 
who takes up a temporary post because, in the former case, he or she is entitled to 
request the administrative status of on leave of absence by reason of employment 
in the public sector, with the benefits that entails, but not in the latter case, in 
which he or she is obliged to take voluntary leave of absence for personal reasons, 
which entails different and less favourable treatment. 
25 The less advantageous treatment which the legislation affords a public servant on 
leave of absence for personal reasons compared with that enjoyed by a public 
servant who is in the same situation on account of service with other public 
authorities or on account of employment in the public sector is derived from 
Articles 88(3) and (4) and 89 of the EBEP and Articles 66(3) and 67(1)(a) of Law 
55/2003, respectively. 
26 In order to determine whether those provisions are compatible with Directive 
1999/70, it is necessary to establish whether the criteria for the application of the 
prohibition of discriminatory treatment laid down in the directive are met. 
27 In the first place, it must be established whether, for the purposes of the directive, 
the status granted to the public servant as a result of the appointment to a new 
temporary post with a public authority is a condition of employment of the 
temporary post taken up. 
28 In the cases on which the Court of Justice has ruled, the condition of employment 
examined was part of the post or job temporarily held. However, in the present 
case, the less favourable condition which must be examined is part of a temporary 
post which the respondent does not yet hold but which she intends to take up, and 
therefore, the referring court takes the view that the case-law of the Court of 
Justice cannot be applied. 
29 In other words, it is necessary to decide whether the right, granted to a public 
servant as a result of obtaining a second post in the public sector, which consists 
of the conferral of a particular administrative status in the post held by that public 
servant until the date he or she obtained the second post, is a condition of 
employment. 
30 In the second place, the referring court asks whether the reasons given by the 
public authority in the present case can be regarded as objective reasons which 
justify the different treatment between fixed-term workers and permanent 
workers. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-942/19 
 
8  
31 The health service considers that that is the case. It asserts that granting permanent 
regulated staff the status of on leave of absence by reason of employment in the 
public sector, when the other employment relationship is temporary, would entail 
in the field of health serious failings and harm as regards the instability of 
workforces in an field as sensitive as the provision of healthcare, which falls under 
the constitutional right to the protection of health. 
32 In the opinion of the health service, granting that status would mean, in practice, 
that a considerable number of permanent regulated staff members may avail 
themselves of a leave of absence to take up a temporary post, including a short-
term post, and, each time that temporary employment relationship ends, those staff 
members would request temporary reinstatement to a position in their category, 
thereby creating instability in workforces. 
33 The health service contends that it is constantly striving for and promoting the 
consolidation of permanent employment, inter alia by holding selection 
procedures for permanent regulated staff. The grant of leave of absence by reason 
of employment in the public sector in order to take up temporary posts means that 
posts obtained through those selection procedures are left vacant, which then 
necessitates a further selection procedure. Moreover, the reinstatement of staff 
placed on leave of absence by reason of employment in the public sector is 
temporary, which results in the departure of the longest-serving temporary staff 
members and creates the obligation to include the position temporarily filled by 
the reinstated person in a fresh selection procedure.  
34 Accordingly, the referring court considers it necessary to determine whether the 
aim of preventing serious failings and harm as regards the instability of 
workforces in an field as sensitive as the provision of healthcare, which falls under 
the constitutional right to the protection of health, is an objective reason justifying 
the different treatment between temporary workers and permanent workers, such 
that it can serve as the basis for refusal to grant the former a particular status of 
leave of absence but not the latter.