Order;Information — ECLI:EU:C:2021:1010
Date: 2021-12-13
Language of the case: Spanish
Court formation: Eighth Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-226/21 – 1 
Case C-226/21 
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:  
8 April 2021 
Referring court:  
Juzgado de lo Contencioso-Administrativo n.º 1 de Toledo 
(Administrative Court No 1, Toledo, Spain) 
Date of the decision to refer:  
9 March 2021 
Applicant: 
KQ 
Defendant: 
Servicio de Salud de Castilla-La Mancha (Castile-La Mancha 
Health Service, ‘SESCAM’) 
  
Subject matter of the main proceedings 
Permanent regulated staff and interim regulated staff – Provision of on-call 
services – Legislation enabling those over the age of 55 not to provide on-call 
services – Legislation that limits this option solely to permanent regulated staff – 
Possible existence of discrimination against interim regulated staff 
Subject matter and legal basis of the request for a preliminary ruling 
Social policy – Directive 1999/70/EC – Framework agreement on fixed-term 
contracts concluded between ETUC, UNICE and CEEP – Clause 4 – Principle of 
non-discrimination – Compatibility of national legislation with the framework 
agreement and with Article 21 of the Charter of Fundamental Rights – Request for 
a preliminary ruling – Interpretation of EU law – Article 267 TFEU 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-226/21 
 
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Question referred 
Whether legislation such as that applicable in the present dispute, namely 
Article 15 of Ley 1/2012 de 21 de febrero de Medidas Complementarias para la 
Aplicación del Plan de Garantías de Servicios Sociales de Castilla La Mancha 
(Law 1/2012 of 21 February 2012 on supplementary measures for the application 
of the plan to safeguard social services in Castile-La Mancha), under which, in 
order to benefit from the right to an exemption from providing ongoing on-call 
services which is available to workers over the age of 55, as is the applicant, 
applicants must be members of the permanent regulated staff, and the exemption 
is not available to temporary workers, complies with Article 4 of Directive 
1999/70/EC and Article 21 of the Charter of Fundamental Rights. 
Provisions of EU law relied upon 
Article 21 of the Charter of Fundamental Rights of the European Union. 
Clause 4 of Council Directive 1999/70/EC of 28 June 1999 concerning the 
framework agreement on fixed-term work concluded by ETUC, UNICE and 
CEEP. 
Judgment of the Court of Justice of 22 December 2010, Joined Cases C-444/09 
and C-456/09, particularly paragraphs 38, 39 and 41. 
Provisions of national law relied upon 
Article 14 of the Constitución Española (Spanish Constitution) (principle of 
equality before the law and prohibition on discrimination). 
Articles 5, 6, 8, 9 and 48 of 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 relating to the framework regulations for regulated staff of the health 
service). Article 8 defines permanent regulated staff as staff who, after having 
successfully completed the corresponding selection procedure, are appointed to 
carry out on a permanent basis the functions associated with that appointment. 
Pursuant to Article 9, the health services may appoint temporary regulated staff on 
grounds of need, urgency or for the development of programmes of a temporary, 
auxiliary or extraordinary nature; such appointments may be interim, occasional 
or replacement appointments. Appointment on an interim basis is made to cover a 
vacant post in the healthcare institutions or services where necessary to ensure 
performance of the duties pertaining to that post. The general regulations applying 
to permanent regulated staff apply to temporary regulated staff in so far as 
consistent with the nature of their situation. 
Article 15 of Law 1/2012 of 21 February 2012 on supplementary measures for the 
application of the plan to safeguard social services in Castile-La Mancha 
SESCAM 
 
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(Autonomous Community of Castile-La Mancha), which establishes that 
permanent specialist or primary care medical staff over the age of 55 with a 
certain length of service are exempt from on-call duties on grounds of age. 
Judgment of the Tribunal Constitucional (Constitutional Court) 104/2004 of 
28 June 2004 (ES:TC:2004:104; appeal 4360/1998) (general framework of 
equality between permanent and temporary workers). According to that judgment, 
while the length of the contract may provide a basis for establishing certain 
differences, those differences must be founded on objective facts relating to the 
work performed or the legal regime governing the contract which provide 
reasonable grounds for the differences. All differences in treatment must be 
justified on objective grounds, and any treatment that places temporary workers 
collectively in an inferior position as compared with workers on permanent 
employment contracts is not compatible with the principle of equal treatment. 
Judgment of the Tribunal Supremo (Supreme Court) 6637/1999, Section 4, of 
17 May 1999 (ES:TS:1999:3367; appeal 627/1995) (permissibility in law of 
regulatory differences). According to that judgment, the right to equality is 
infringed where the regulation introduces different treatment for which there are 
no objective and reasonable grounds, which must be assessed having regard also 
to the objective pursued by the measure and the principle of proportionality. The 
principle of equality does not prevent the legislature from considering the need or 
desirability of drawing a distinction between different situations and according 
them different treatment; what it prohibits is discrimination, that is, an unjustified 
inequality in the treatment established by the regulations. 
Brief statement of the facts and the main proceedings 
1 Ms KQ, aged 58, is a doctor by profession and has worked for the Servicio de 
Salud de Castilla-La Mancha (Castile-La Mancha Health Service, ‘SESCAM’) 
from 1 June 2004 at different healthcare institutions in the Spanish Autonomous 
Community of Castile-La Mancha in the specialisms of general medicine, 
primary-care medicine and general paediatrics. Her periods of work have been 
distributed over twenty-four temporary appointments under different types of 
contract or appointment (on an interim, occasional and also replacement basis). 
2 Her most recent appointment was made on 10 February 2011, and the applicant 
has therefore been working as an interim regulated staff member for over 
ten years in the same post in a healthcare institution. 
3 On 9 October 2019, when the applicant was aged 56, she applied for the 
exemption from on-call duties which is available by law to those aged over 55, 
pursuant to Article 15 of Law 1/2012 of 21 February 2012. 
4 On 16 October 2019, SESCAM refused her application on the grounds that, under 
the aforesaid legislation, the scope for granting the exemption from on-call duties 
for those aged over 55 is restricted to permanent staff. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-226/21 
 
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5 On 10 November 2019, the applicant lodged an appeal with the same 
administrative authority, arguing that the decision is discriminatory because it is 
based solely on the fact that she is a temporary member of staff. 
6 On 12 December 2019, SESCAM replied in the same terms as before. 
7 On 19 August 2020, Ms KQ brought an action against SESCAM before the 
referring court, seeking to have the contested decision annulled and to be granted 
the exemption from on-call duties available to those aged over 55. 
Main arguments of the parties to the main proceedings 
8 The applicant considers that excluding temporary staff from taking advantage of 
the exemption from on-call duties available to staff aged over 55 purely because 
they are temporary staff, which is what the law of Castile-La Mancha does, is 
contrary to EU law, and therefore the discrimination established in the law should 
be set aside and she should be granted the right she has requested. In her opinion, 
the contested act is clearly contrary to law, and therefore she does not believe a 
reference for a preliminary ruling is necessary, since the link to a particular 
position of employment is a question that has already been decided by the case-
law. 
9 The defendant considers that, as the Spanish Constitutional Court has declared, a 
legal provision that has the status of a Law cannot be set aside unless it is clearly 
contrary to EU law. It states that, in the present case, the applicable provision is 
not clearly contrary to EU law because ‘there is a key difference between these 
two types of staff which can be grounds for the different treatment, since 
permanent staff are not linked to a particular post within the health service, 
whereas interim staff are linked to the particular post which gave rise to the 
temporary appointment as a result of the urgent need to cover the vacancy’. In its 
opinion, it is not possible to talk of an acte clair or acte éclairé within the 
meaning of the concept in European case-law. It states that the position of 
permanent staff and temporary staff cannot be equated for the purposes of the 
exemption in question and that there are therefore no grounds for asserting 
discrimination. It argues that there should therefore be no reference for a 
preliminary ruling, since temporary staff would have rest periods to reflect periods 
during which they would not be working. 
Brief statement of the reasons for the request for a preliminary ruling 
10 The point at issue in these proceedings arises from a difference in treatment that is 
clearly established in the law of the Autonomous Community of Castile-La 
Mancha, since when that law is applied to the present case the result is that 
someone on a long-term temporary employment contract who has held that same 
post for a continuous period of more than ten years cannot be granted the right to 
SESCAM 
 
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exemption from providing on-call services which would be granted to a 
permanent employee in the same post. 
11 The different treatment is therefore based on the fact that the appointment is 
purely temporary. The temporary employee performs the job in exactly the same 
way as a permanent employee appointed to the same post would. Permanent staff 
hold these positions of employment on exactly the same conditions as individuals 
appointed on a temporary basis; for these purposes, they have the same working 
hours and the same care duties, and the impact on service provision of granting 
the exemption to permanent staff is the same as that of granting the exemption to 
temporary staff. 
12 A further cause of doubt is that some twenty-five judgments have been handed 
down by the courts of first instance, such as the referring court, with no appeals 
having been lodged to date, and there are no signs of any steps being taken to 
amend a law that gives rise to a significant number of legal cases every year. To 
date, no case has raised the question of differentiation on the grounds that interim 
staff are linked to particular posts; such a link is inherent in the appointment itself 
and also exists in the case of permanent staff members for such time as they do 
not exercise the right to mobility through the relevant transfers, because the post 
occupied by the applicant is being filled on an interim basis pursuant to 
Article 9(2) of Law 55/2003, meaning that she is occupying a post intended for a 
doctor on a permanent contract which has not been filled by a permanent 
appointment, but the applicant’s temporary appointment, made eleven years ago 
on the basis of urgency or need, is not linked to the specification of particular 
duties.