Opinion of the Advocate General — ECLI:EU:C:2019:877
Date: 2019-10-17
Language of the case: Spanish
Subject matter: Social Policy;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Spain

Request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo de Madrid (Spain) lodged on 7 March 2018 — Almudena Baldonedo Martín v Ayuntamiento de Madrid (Case C-177/18) Language of the case: Spanish Referring court Juzgado de lo Contencioso-Administrativo de Madrid Parties to the main proceedings Applicant: Almudena Baldonedo Martín Defendant: Ayuntamiento de Madrid Questions referred Is it correct to interpret Clause 4 of the framework agreement as meaning that a situation such as that described in the present case, in which an interim civil servant carries out the same work as a career civil servant (who is not entitled to an allowance because the situation that would warrant it does not exist under the legal regime applicable to him) is not consistent with the situation described in that clause? Given that the right to equal treatment and the prohibition of discrimination constitute a general EU principle enshrined in a directive (in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union) and in Article 23 of the Universal Declaration of Human Rights, and in the light of fundamental social rights [within the meaning of] Articles 151 and 153 TFEU, is it consistent with the framework agreement annexed to Directive 1999/70/EC 1 to interpret [Clause 4], in such a way as to achieve its objectives, as meaning that the right of an interim civil servant to receive an allowance may be established either by comparison with a temporary contract worker, since his status (as a civil servant or as a contract worker) is determined exclusively by the public-sector employer, or by the direct vertical application to which EU primary law is open? Taking into account the existence, if any, of improper use of temporary appointments to meet permanent staffing needs for no objective reason and in a manner inconsistent with the urgent and pressing need that warrants recourse to them, and for want of any effective penalties or limits in Spanish national law, would it be consistent with the objectives pursued by Directive 1999/70/EC to grant, as a means of preventing abuse and eliminating the consequence of infringing EU law, an allowance comparable to that for unfair dismissal, that is to say, one that serves as an adequate, proportional, effective and dissuasive penalty, in circumstances where an employer does not offer a worker a permanent post? ____________ 1 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).