Information;Order — ECLI:EU:C:2021:460
Date: 2021-06-02
Language of the case: Spanish
Court formation: Seventh Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-103/19 — 1 
Case C-103/19 
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:  
11 February 2019 
Referring court:  
Juzgado de lo Contencioso-Administrativo No 24 de Madrid 
(Spain) 
Date of the decision to refer:  
24 January 2019 
Applicants:  
Sindicato Único de Sanidad e Higiene de la Comunidad de Madrid 
Sindicato de Sanidad de Madrid de la CGT 
Defendant:  
Consejería de Sanidad de la Comunidad de Madrid 
  
Subject matter of the main proceedings 
Annulment of Orden 406/2017, de 8 de mayo, del Consejero de Sanidad, por la 
que se dictan instrucciones para el procedimiento extraordinario de 
transformación de nombramientos de personal estatutario eventual en 
nombramientos interinos por vacante del Servicio Madrileño de Salud (Order 
406/2017 of 8 May 2017 of the Minister for Health giving instructions for the 
extraordinary procedure to convert appointments of ‘occasional’ (eventual) 
regulated staff into ‘interim’ (interino) appointments to cover vacancies in the 
Madrid Health Service), in so far as it applies only to occasional temporary 
regulated staff. 
Purpose and legal basis of the request for a preliminary ruling 
The purpose of the request is to obtain an interpretation of the judgment of 
14 September 2016, C-16/15, Pérez López, EU:C:2016:679; more specifically, the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-103/19 
 
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Court of Justice is asked to rule on whether the above Order is compatible with 
the Framework Agreement on fixed-term work. The legal basis is Article 267 
TFEU and Article 104 of the Rules of Procedure. 
Questions referred 
ONE.- Does the legislation that is the subject of this action, namely Order 
406/2017 of 8 May 2017 of the Minister for Health, comply with the 
Framework Agreement annexed to Directive 1999/70/EC, specifically Clause 
5 [of the Framework Agreement] and points 6 and 8 of the [general 
considerations contained in that agreement], and with the parameters 
established by the judgment of the Court of Justice (Tenth Chamber) of 
14 September 2016, Pérez López, C-16/15, EU:C:2016:679, in a situation 
where –– following successive renewals of fixed-term appointments in the 
public healthcare sector which were based on provisions of national law that 
permitted appointments to be renewed in order to cover and safeguard 
services of a temporary, interim or extraordinary nature, but which were 
actually being used to cover permanent ongoing needs –– the Order changes 
the status of 9 126 posts, with occasional (eventual) temporary staff becoming 
interim (interino) temporary staff, and the result of the procedure is the 
inclusion of the posts in question in public sector vacancies lists and the 
termination of the temporary worker’s employment relationship? 
TWO.- Is the interpretation of this court correct when it takes the view that 
the way (as described here) in which Order 406/2017 of 8 May 2017 of the 
Minister for Health implements Article 9(3) of the Framework Regulations 
does not comply either with Clause 5 of the Framework Agreement and 
points 6 and 8 of the [general considerations contained in that agreement], or 
with the parameters established by the judgment of the Court of Justice 
(Tenth Chamber) of 14 September 2016, Pérez López, C-16/15, 
EU:C:2016:679, since, in a situation in which there has been abuse arising 
from the use of temporary contracts to cover permanent needs and in which 
a structural defect has been acknowledged, the said Order allows that abuse 
to go permanently unpunished, which is in breach of the objectives of the 
directive and perpetuates the disadvantaged position of temporary regulated 
employees? 
THREE.- Is this court’s interpretation, as set out in this order, of Clause 5 of 
the Framework Agreement and points 6 and 8 of the [general considerations 
contained in that agreement], and of the parameters established by the 
judgment of the Court of Justice (Tenth Chamber) of 14 September 2016, 
Pérez López, C-16/15, EU:C:2016:679, correct in concluding that Order 
406/2017 of 8 May 2017 of the Minister for Health does not comply with the 
first paragraph of Article 2 of Directive 1999/70, inasmuch as the Spanish 
State is not ensuring that the outcomes established in the directive are 
achieved because, following the abuse arising from the use of fixed-term 
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contracts, it fails to offer workers effective and equivalent guarantees of 
protection so as to punish that abuse appropriately and remove the effects of 
the breach of EU law, and it allows the abuse to go unpunished, thus 
permitting a situation in which … Directive [1999/70] is not applied in the 
health sector? 
FOUR.- Given that, under the national legislation, there is in the public sector an 
absolute prohibition on converting a succession of fixed-term contracts into an 
employment contract of indefinite duration, or making the individual who has 
suffered abuse a permanent employee, and given that the national legislation 
contains no other effective measure to prevent and, where applicable, punish 
the misuse of successive fixed-term employment contracts, is this court 
correct in taking the view that Order 406/2017 of 8 May 2017 of the Minister 
for Health (which belatedly implements Article 9(3) of the Framework 
[Regulations]) and the subsequent competitive selection procedure cannot be 
considered to provide an effective means of preventing and, where applicable, 
punishing the misuse of successive fixed-term employment contracts, given 
that, as this court believes and reiterates, the application and fulfilment of the 
objectives established in … Directive [1999/70] are thus avoided? 
FIVE.- Order 406/2017 of 8 May 2017 of the Minister for Health applies only to 
occasional (eventual) staff, and, so far as other temporary staff employed for 
excessively long periods of time are concerned, the Authority is failing to examine 
the reasons for this within the timescales established in the national legislation in 
order to assess, as appropriate, whether a structural post should be created within 
the workforce. As a result, in practice, employees are left in a permanent state of 
insecurity, the abuse is left unpunished, and workers are not offered effective or 
equivalent guarantees of protection so as to punish the abuse appropriately and 
remove the effects of the breach of EU law. Must it therefore be concluded that 
the situation described entails a breach of the requirements laid down in the 
judgment of the Court of Justice (Tenth Chamber) of 14 September 2016, 
Pérez López, C-16/15, EU:C:2016:679, and is therefore contrary to the 
relevant EU legislation? 
Provisions of EU law cited 
Treaty on European Union. Article 4(3). 
Treaty on the Functioning of the European Union. Articles 151 and 153.  
Council Directive 1999/70/EC of 28 June 1999 concerning the framework 
agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 
L 175, p. 43). Recitals 1 and 2. Article 1 and the first paragraph of Article 2. 
Framework agreement on fixed-term work concluded by ETUC, UNICE and 
CEEP annexed to Directive 1999/70. General considerations (points 6 and 8). 
Clauses 1, 2, 5(1) and 8(3). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-103/19 
 
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Judgment of 12 July 1990, Foster and Others (C-188/89, EU:C:1990:313). 
Paragraph 17. 
Judgment of 4 July 2006, Adeneler and Others (C-212/04, EU:C:2006:443). 
Paragraph 105. 
Judgment of 26 November 2014, Mascolo and Others (C-22/13, C-61/13 to 
C-63/13 and C-418/13, EU:C:2014:2401). Paragraphs 116 to 120. 
Judgment of 14 September 2016, Pérez López (C-16/15, EU:C:2016:679). 
Paragraphs 26 to 33, 37, 41, 42, 45 to 55 and 64 (‘the Pérez López judgment’). 
Judgment of the Court of Justice of 14 September 2016, Martínez Andrés and 
Castrejana López (C-184/15 and C-197/15, EU:C:2016:680). Paragraphs 39 to 41. 
Judgment of 25 October 2018, Sciotto (C-31/17, EU:C:2018:859). Paragraph 72. 
Judgment of 4 October 2018, Commission v France (C-416/17, EU:C:2018:811). 
Paragraphs 106, 107 and 109. 
European Parliament resolution of 31 May 2018 on Responding to petitions on 
tackling precariousness and the abusive use of fixed-term contracts 
[2018/2600(RSP)], points 5 and 15 to 22. 
Provisions of national law cited 
Ley 55/2003 del Estatuto Marco del personal estatutario de los servicios de salud 
(Law 55/2003 on the framework regulations for health service staff regulated 
under administrative law) of 16 December 2003 (BOE No 301 of 17 December 
2003, p. 44742) (‘the Framework Regulations’). Articles 9, 20 and 31. 
Ley del Estatuto Básico del Empleado Público (Law on the basic regulations 
governing public employees), the consolidated text of which was adopted by 
Royal Legislative Decree 5/2015 of 30 October 2015 (BOE No 261 of 31 October 
2015, p. 103105) (the ‘EBEP’). Articles 10, 61, 62 and 70 and fourth transitional 
provision. 
Ley 9/2015 de medidas fiscales y administrativas de la Comunidad de Madrid 
(Law 9/2015 on fiscal and administrative measures of the Community of Madrid) 
of 28 December 2015 (BOE No 115 of 12 May 2016). 
Orden 406/2017, de 8 de mayo, del Consejero de Sanidad, por la que se dictan 
instrucciones para el procedimiento extraordinario de transformación de 
nombramientos de personal estatutario eventual en nombramientos interinos por 
vacante del Servicio Madrileño de Salud (Order 406/2017 of the Minister for 
Health giving instructions for the extraordinary procedure to convert appointments 
of occasional regulated staff into interim appointments to cover vacancies in the 
Madrid Health Service) of 8 May 2017 (‘the Order’). 
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Judgment of the Tribunal Supremo (Supreme Court) of 10 December 2018 (ES: 
TS:2018:4178). 
Judgment of the Tribunal Superior de Justicia de Madrid (High Court of Justice, 
Madrid) of 7 October 2016 (ES: TSJM: 2016:10741). 
Brief summary of the facts and the main proceedings 
1 This request for a preliminary ruling is related to Cases C-103/18 and C-429/18, 
and all the cases concern regulated staff. This term refers to a category of public 
sector employees, namely those who work in healthcare institutions; as with civil 
servants, their employment relationship is governed by administrative law. 
2 Under the Order, as an extraordinary measure, 9 126 appointments of ‘occasional’ 
(eventual) temporary regulated staff (that is, staff appointed, in the words of 
Article 9(3) of the Framework Regulations, to provide services of a temporary, 
interim or extraordinary nature, when it is necessary in order to ensure the 
permanent and continuous operation of the healthcare institutions, or to provide 
additional services in order to compensate for a reduction of normal working 
hours) who, at the time that order was adopted, were providing hospital care 
services or working in the Madrid emergency medical services, were converted 
into interim (interino) temporary appointments to cover vacancies. It was also a 
requirement that the individuals concerned had held successive continuous 
appointments for a period of more than two consecutive years at the same centre 
and in the same job category, even if the individuals had been moved or 
redeployed, and there had to be a vacancy at the centre where they were 
employed. 
3 The applicants brought an administrative action before the referring court, seeking 
to have the Order annulled.  
Main arguments of the parties to the main proceedings 
4 The applicants maintain that the Order should be annulled because it excludes all 
those temporary public employees who were appointed to cover permanent needs 
in the Madrid Health Service before the Order was published, or who, although 
they were covering such permanent needs, were not at the time appointed as 
occasional (eventual) staff. In the applicants’ view, all of this was contrary to the 
agreement reached by the joint committee for the health sector, signed on 
5 February 2016. 
5 In the view of the Madrid Health Service, the Order applies Law 9/2015, and as 
this law predates the Pérez López judgment, it neither implements nor is a 
consequence of that judgment. Consequently the Order is unrelated to the 
judgment: it simply establishes a procedure under Article 9(3) of the Framework 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-103/19 
 
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Regulations for examining the need to create structural posts and addressing the 
consequences of that examination.  
Brief statement of the reasons for the request for a preliminary ruling 
6 In referring the matter for a preliminary ruling, the referring court wishes to 
ascertain what is the correct interpretation of the Framework Agreement — 
specifically the second paragraph of the preamble, points 6 and 8 of the general 
considerations, and Clause 5 — and of the Pérez López judgment. 
7 The referring court considers that the Order and the process which it initiates do 
not comply with EU law, and that its view is supported by a judgment concerning 
regulated staff given by a national court. That judgment, handed down by the 
Tribunal Superior de Justicia de Madrid (High Court of Justice, Madrid) makes 
clear that the solution to the abuse of appointments of occasional temporary 
regulated staff lies in a strict application of Article 9 of the Framework 
Regulations, which is consistent with Directive 1999/70 and with EU case-law. 
Article 9 stipulates that ‘if more than two appointments are made for the provision 
of the same services for a total period of 12 months or more in a period of two 
years, the Authority shall examine the reasons for this in order to assess, as 
appropriate, whether a structural post should be created in the healthcare 
institution concerned’; if it fails to do so, the interested parties may demand an 
examination. If a post is created, it will be occupied by interim (temporary 
replacement) regulated staff until a permanent appointment is made under the 
normal selection procedures. If it is decided not to create a post, occasional 
temporary staff may no longer be appointed to cover the same need or provide the 
same service; consequently an occasional temporary member of staff will not be 
able to continue to occupy the post and will not receive any compensation for 
termination of the employment relationship. 
8 The process instigated by the Order is as follows: first, occasional (eventual) 
temporary regulated staff who have been employed for more than two years are 
classed as interim (interino) (temporary replacement) regulated staff; secondly, as 
a consequence of this decision, it is recognised that there is a need to create 
structural posts (specifically, 9 126 posts, in two stages: 5 450 in stage I and 3 676 
in stage II), the number of posts being the same as the number of people whose 
terms of employment have been changed; thirdly, these posts are included on a 
public sector vacancies list and will be filled under the standard selection process 
for regulated permanent staff (namely, a competition based on qualifications and 
tests). Therefore, in order to become a permanent regulated employee, an 
occasional regulated employee who has become an interim temporary employee 
will have to pass a selection process and obtain one of the posts on offer. 
9 Having explained the process, the referring court contends that the Order fails to 
apply Article 9(3) of the Framework Regulations strictly, given that the process 
did not take place within the timescales laid down in the legislation that would 
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prevent abuse, and temporary appointments had previously been used over a long 
period to cover ordinary permanent needs, with the result that, when the provision 
is now applied, it no longer acts as a control mechanism. The court notes that, by 
declaring to be structural 9 126 posts occupied by occasional staff (without, 
therefore, addressing the other types of temporary employment), the Authority is 
acknowledging that the posts are being used to cover ordinary permanent needs: 
this is not a case of staff providing services for periods of 12 months or more over 
a two-year period, but of temporary staff who are appointed in this way for 
periods of, for example, 17 years (Case C-103/18) or 17, 14 and 12 years (Case 
C-429/18). 
10 Consequently, the Order renders Directive 1999/70 ineffective and devoid of 
content: temporary employees (in their various categories) see the Authority, after 
decades of abuse of temporary contracts, carrying out the study required by 
Article 9(3) of the Framework Regulations (clearly belatedly) to determine 
whether structural posts should be created, declaring these workers to be interim 
temporary regulated staff, and then including these vacant posts in the public 
sector vacancies list. This is clearly in breach of the deadlines established in 
Article 10(4) and Article 70 of the EBEP (under which posts must be included in 
the public sector vacancies list no later than two years from when they are 
declared vacant, and the vacancies list must be implemented within three years of 
publication). As a result, the abuse of temporary contracts is never punished; 
moreover, no penalty exists under national law. 
11 Thus the abuse was not prevented, but was instead perpetuated over time, in 
breach of the Pérez López judgment which, while not ruling against the domestic 
legislation, did rule against any abuse of that legislation. It is therefore essential to 
be able to apply measures to protect workers which should be equivalent to the 
measures that apply in similar situations and should be effective, and achievement 
of the objectives pursued by EU law should not be made excessively difficult. 
12 In this regard, based on the Pérez López judgment, the court maintains that the 
case involves a public service, namely the health service, and therefore some 
flexibility is permissible (as stated in paragraphs 45 and 46 of the judgment), but it 
can never be permissible to use fixed-term appointments to carry out tasks in the 
health service in a fixed and permanent manner (paragraph 47 of the judgment), 
because this would be contrary to Clause 5 of the Framework Agreement since 
there is no objective reason for it. Therefore, the creation of structural posts that 
enable individuals to obtain permanent positions is an effective remedy against 
abuse (and this option is recognised in paragraph 53 of the Pérez López 
judgment). 
13 However, in the referring court’s view, the Order produces the following 
outcomes. It does not put an end to temporary work, given that the public 
employees who are the subject of the abuse are appointed as interim temporary 
regulated staff (a fresh temporary employment relationship) and continue to 
experience job insecurity. Moreover, the measure does not apply to all public 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-103/19 
 
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employees who are the subject of the abuse, since under the terms of the Order the 
study required by Article 9(3) of the Framework Regulations does not cover 
temporary regulated staff who are not occasional staff or who were not in 
employment at the point when the Order was issued, and therefore it fails to take 
into account the length of the relationships which these workers have or had with 
the health authorities (in many cases, over decades), under which those workers 
are appointed on a temporary basis to cover ordinary permanent needs. 
14 Temporary appointments are therefore used on a permanent basis until the 
relationship of the interim temporary regulated staff member is terminated when 
the post is filled by whoever is successful in the relevant recruitment competition 
and is awarded the post; the abuse goes unpunished and, moreover, the breach of 
the Framework Agreement is compounded because the Framework Agreement’s 
objective of ensuring stability of employment is not achieved. 
15 Through the process initiated by the Order, the public authorities are seeking to 
evade the interpretation that has repeatedly been established by the Court of 
Justice of the European Union, which applies precisely to the situation in which 
the national legal  order contains no effective measure to prevent abuse; thus 
paragraph 105 of the Adeneler judgment establishes that ‘the Framework 
Agreement is to be interpreted as meaning that, in so far as domestic law of the 
Member State concerned does not include, in the sector under consideration, any 
other effective measure to prevent and, where relevant, punish the misuse of 
successive fixed-term contracts, the Framework Agreement precludes the 
application of national legislation which, in the public sector alone, prohibits 
absolutely the conversion into an employment contract of indefinite duration of a 
succession of fixed-term contracts that, in fact, have been intended to cover “fixed 
and permanent needs” of the employer and must therefore be regarded as 
constituting an abuse’. In this way the State gains an advantage from breaching 
EU law, which is prohibited under the judgment in Foster and Others. 
16 Lastly, with regard to the question raised by the applicants as to whether the Order 
should be annulled on the ground that it excludes temporary regulated staff other 
than occasional staff, the position of the referring court is based on settled case-
law, which states that the principle of non-discrimination requires that comparable 
situations must not be treated differently and different situations must not be 
treated alike unless such treatment is objectively justified, and it therefore believes 
that the exclusion of such staff is contrary to that principle, as in paragraphs 47, 
48, 49, 50, 52,53 and 55 of the Pérez López judgment.