Order;Information — ECLI:EU:C:2020:760
Date: 2020-09-30
Language of the case: Portuguese
Court formation: Eighth Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Portugal

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Translation C-135/20 — 1 
Case C-135/20 
Request for a preliminary ruling 
Date lodged: 
12 March 2020 
Referring court: 
Supremo Tribunal Administrativo (Supreme Administrative Court, 
Portugal) 
Date of the decision to refer: 
7 February 2020 
Appellant: 
JS 
Respondent: 
Câmara Municipal de Gondomar (Gondomar Municipal Council) 
  
SUPREMO TRIBUNAL ADMINISTRATIVO 
(SUPREME ADMINISTRATIVE COURT) 
… 
I. Background 
1 JS … lodged an appeal with the Supremo Tribunal Administrativo (Supreme 
Administrative Court) … against the judgment of the [Tribunal Central 
Administrativo Norte (Central Administrative Court North; ‘the TCA North’)] 
dated [10 February 2017] … that upheld the judgment issued by the [Tribunal 
Administrativo e Fiscal (Administrative and Tax Court; ‘the TAF’)] of Porto 
(Portugal) on [30 May 2016] … dismissing the APPEAL IN ADMINISTRATIVE 
PROCEEDINGS lodged by JS against the MUNICÍPIO DE GONDOMAR 
EN 
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(GONDOMAR MUNICIPAL COUNCIL) in which she asked for her employment 
contract to be classed as a contract of indefinite duration and for her dismissal to 
be ruled unlawful. 
In so far as relevant to that decision, JS put forward the following arguments: 
‘(1) … the decision is clearly in breach of substantive or procedural law, in 
particular Directive … 1999/70/EC: … 
(3) In the present case Directive … 1999/70/EC must apply, and therefore the 
fixed-term contract between the appellant and the respondent council must be 
converted into an employment contract of indefinite duration, since the maximum 
limit on contract renewals has been exceeded; 
(4) Directive … 1999/70/EC must apply to the present case because it does not 
distinguish between public and private-sector … employers. 
(5) Where there are discrepancies between national and EU law, in all cases the 
primacy of European law, including directives, over national law (including 
constitutional rules) must be respected, without prejudice to the constitutional 
reserve concerning the observance of the fundamental principles of the democratic 
rule of law established in Article 8(4) of the [Constituição da República 
Portuguesa (Constitution of the Portuguese Republic; ‘the CRP’)]; 
(6) If the aforesaid directive is ruled not to apply in the field of public law, this 
case should be referred to the Court of Justice of the European Union.’ 
2 GONDOMAR MUNICIPAL COUNCIL submitted a reply to the appeal in which, 
as regards the substance of the case, it put forward the following arguments: 
‘… 
2. The judgment under appeal does not breach substantive law, in particular 
failure to transpose Directive … 199[9]/70/EC; 
3. All contracts were concluded in accordance with the Lei 59/2008[, que 
aprova o Regime do Contrato de Trabalho em Funções Públicas] (Law 
No 59/2008 approving the regime for public service employment contracts]), 
which prohibits the conversion of such contracts into contracts of indefinite 
duration; 
4. It follows from this that the directive which the appellant is seeking to have 
applied in these proceedings breaches the Constitution … ’ 
3 The Supreme Administrative Court admitted the appeal on a point of law on 
[8 June 2017] … ‘… in the interests of achieving a better interpretation and 
application of the law and, in particular, with a view to the possibility of 
CÂMARA MUNICIPAL DE GONDOMAR 
 
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submitting a request to the Court of Justice of the European Union for a 
preliminary ruling …’. 
4 … [A]n order is to be made. 
II. Facts 
The courts of first and second instance found the following facts proven: 
‘1. In November 2000 the appellant entered into a ‘fixed-term employment 
contract’ with the respondent council, under which she was to be employed as a 
‘ticket attendant’, in the occupational category of ‘local government assistant’, for 
a period of 12 months from [6 November 2000] …, ‘to cover urgent service 
requirements’ …. 
2. The appellant performed her duties under the contract referred to in 
paragraph 1 at the municipal swimming pool in Medas, which was owned by the 
respondent council. 
3. On [6 November 2001] … the respondent council renewed the contract 
referred to in paragraph 1 up to the maximum time limit of 2 years …  
4. On [7 November 2002] … the appellant entered into a ‘fixed-term 
employment contract’ with the respondent, under which she was to be employed 
as a ‘stores supervisor’ for a period of 6 months from [7 November 2002] … to 
[7 May 2003] … ‘renewable up to a maximum time limit of 2 years’ …  
5. The appellant performed her duties under the contract referred to in 
paragraph 4 at the municipal swimming pool in Medas, which was owned by the 
respondent council. 
6. On [19 November 2003] … the appellant entered into a ‘fixed-term 
employment contract’ with the respondent, under which she was to be employed 
as an ‘administrative assistant’ for a period of 6 months from [19 November 2003] 
… to [19 May 2004] …, ‘renewable up to a maximum time limit of 2 years’ … . 
7. The appellant performed her duties under the contract referred to in 
paragraph 6 at the municipal swimming pool in Medas, which was owned by the 
respondent. 
8. On [21 November 2005] … the appellant entered into a ‘fixed-term 
employment contract’ with the respondent, under which she was to be employed 
as a ‘tourism technical assistant’ for a period of 1 year from [21 November 2005] 
… to [21 November 2006] … , with the possibility of the contract ‘being 
renewed’ … . 
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9. The appellant performed her duties under the contract referred to in 
paragraph 8 at the municipal swimming pool in Medas, which was owned by the 
respondent. 
10. On [22 November 2007] … the appellant entered into a ‘fixed-term 
employment contract’ with the respondent, under which she was to be employed 
as an ‘administrative assistant’ for a period of 6 months from [22 November 2007] 
… [to] … [22 May 2008] … with the possibility of the contract ‘being renewed’ 
…  
11. The appellant performed her duties under the contract referred to in 
paragraph 10 at the municipal swimming pool in Medas, which was owned by the 
respondent. 
12. The contract referred to in paragraph 10 was renewed under an 
administrative decision dated [30 April 2008] … up to a maximum time limit of 
1 year …  
13. Under an administrative decision dated [21 October 2010] … the contract 
referred to in paragraph 10 was again renewed for a period of 3 years …  
14. The appellant worked for the respondent until November 2013, performing 
the following duties without interruption from November 2000 to November 
2013: customer service, user registration, collecting user payments, and supplying 
and collecting locker keys. 
15. The appellant was surprised to receive notice of the termination of her 
employment contract, and was very upset by it.’ 
III. Legal framework 
5 In this appeal the central question is the possible breach of Directive … 
1999/70/EC by the national legislation concerning fixed-term employment 
contracts concluded by public law entities, in particular Article 92(2) of Law 
No 59/2008 of 11 September 2008 approving the regime for public service 
employment contracts, which expressly prohibits the conversion of such contracts 
into contracts of indefinite duration on the expiry of their maximum term. 
The question relates to the aforesaid provision, since that is the provision in force 
at the time of the termination of the last contract between the appellant and the 
respondent; however, the question of law remains substantially unchanged as 
regards Lei n.º 35/2014, de 20 de junho, [que aprova Lei Geral do Trabalho em 
Funções Públicas,] (Law No 35/2014 of 20 June 2014 [approving the General 
Law on Public Service Employment]), Article 63(2) of which contains the same 
provision; and in essence, the same legal solution appears in previous legislation 
on this subject, notably Article 18(4) of Decreto-Lei n.º 427/89, de 7 de dezembro, 
[que define o regime de constituição, modificação e extinção da relação jurídica 
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de emprego na Administração Pública] (Decree-Law No 427/89 of 7 December 
1989 [establishing the regime governing the formation, alteration and termination 
of legal employment relationships in the public service]), as amended by Decreto-
Lei n.º 218/98 (Decree-Law No 218/98) of 17 July 1998 and by Article 10(2) of 
Lei n.º 23/2004 (Law No 23/2004) of 22 June 2004. 
While the appellant accepts the express finding by the courts of first and second 
instance that, under Portuguese … law, her fixed-term employment contract with 
the respondent expired at the end of its final renewal period, she believes that this 
solution is not consistent with the regime … established by Directive … 
1999/70/EC which, in order to prevent abuse arising from the use of successive 
fixed-term employment contracts, must equally apply within the public sector. 
The appellant maintains that the directive must therefore have direct effect in the 
present case, meaning that the aforementioned Article 92(2) of Law No 59/2008 
must be disapplied. 
In support of her argument, the appellant also cites the judgment of the Court of 
Justice of the European Union (‘the CJEU’) of 4 July 2006, C-212/04, in which 
the Court held as follows: 
‘… [the] framework agreement precludes the application of national legislation 
which, in the public sector alone, prohibits absolutely the conversion into an 
employment contract of an 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 …’ 
6 In view of the arguments adduced, this Supreme Court must examine the 
appellant’s request that the matter be referred to the [CJEU] … for a preliminary 
ruling …  
Under Article 267 of the Treaty on the Functioning of the European Union 
(TFEU), the courts and tribunals of the countries of the European Union (EU) 
must request the [CJEU] … to give a preliminary ruling where a question is raised 
over the interpretation or validity of an [act] of EU law and they consider that a 
decision on the question is necessary to enable them to give judgment. 
Where a question of [EU] law … arises in a case pending before a national court 
or tribunal against whose decisions there is no judicial remedy under national law, 
that court or tribunal is under an obligation to make a request to the Court of 
Justice for a preliminary ruling (third paragraph of Article 267 TFEU). 
Moreover, there is settled and consistent case-law from the CJEU to this effect, 
which was set out recently in its Recommendations to national courts and 
tribunals in relation to the initiation of preliminary ruling proceedings [2019/C 
380/01] of 8 November 2019; these establish that the only exception to the 
requirement for national courts and tribunals of final instance to refer a matter for 
a preliminary ruling is where there is already well-established case-law on the 
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point or the correct interpretation of the rule of law in question admits of no 
reasonable doubt. 
It is therefore for this Supreme Administrative Court, which in these proceedings 
is the court of final instance, to determine whether the present case satisfies the 
requirements for bringing a request for a preliminary ruling before the CJEU …  
7 Article 267 TFEU is as follows: 
‘The Court of Justice of the European Union shall have jurisdiction to give 
preliminary rulings concerning: 
(a) the interpretation of the Treaties; 
(b) the validity and interpretation of acts of the institutions, bodies, offices or 
agencies of the Union. 
Where such a question is raised before any court or tribunal of a Member State, 
that court or tribunal may, if it considers that a decision on the question is 
necessary to enable it to give judgment, request the Court to give a ruling thereon. 
Where any such question is raised in a case pending before a court or tribunal of a 
Member State against whose decisions there is no judicial remedy under national 
law, that court or tribunal shall bring the matter before the Court. 
If such a question is raised in a case pending before a court or tribunal of a 
Member State with regard to a person in custody, the Court of Justice of the 
European Union shall act with the minimum of delay.’ 
The present case clearly raises a question of interpretation of an act of an EU 
institution, in so far as the appeal can prosper only if this Supreme Court considers 
that the regime established in Article 92(2) of Law No 59/2008 breaches Directive 
… 1999/70/EC. 
As can be seen from the judgment under appeal and the case-law cited in that 
judgment, the courts have repeatedly held that there is no such breach, and have 
stated not only that Clause 5 of the framework agreement annexed to the directive 
does not require fixed-term contracts to be converted into contracts of an 
indefinite duration, provided that the national legislature adopts other measures to 
combat job insecurity, but also that Article 47(2) of the CRP establishes a 
constitutional prohibition on such a conversion. 
However, the question is far from settled in either the case-law or legal 
scholarship. 
Citing the same European case-law as that cited by the appellant, the Supreme 
Administrative Court itself has already acknowledged ― albeit in connection with 
a different question of law ― ‘that the degree of discretion enjoyed by the 
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national legislature in determining measures may not compromise the final result 
sought by the European legislature, which is to prevent abuse arising from the use 
of successive fixed-term employment contracts’ (see the judgment of the Supreme 
Administrative Court … of [7 December 2016] …). This means that not only must 
consideration be given to the circumstances of the specific case, but also that an 
overall assessment must be made of the compatibility of the rules of national law 
governing fixed-term contracts with EU law; amongst other aspects, that 
assessment must weigh up the differences between the regimes governing the 
public and private sectors. 
What is more, in their judgments the ordinary courts have already adopted a 
different position on the interpretation of the same regulations governing public 
law entities from that found in the majority of decisions by the administrative 
courts in that, adopting an interpretation that is compliant with EU law, they find 
that the use of successive fixed-term employment contracts for a period of (only) 
6 years constitutes an abuse; see, inter alia, the judgments of the [Tribunal da 
Relação do Porto (Court of Appeal, Porto; ‘the TRP’] of [9 November 2009 and 
of 3 May 2010 … . 
Moreover, this conflicting case-law is also reflected in legal scholarship, where 
views supportive of the position that the national legislation does not breach 
Directive … 1999/70/EC co-exist alongside views critical of that approach …  
This demonstrates that there is neither sufficiently well-established case-law nor a 
body of settled scholarship on this matter that would enable the court to establish 
beyond reasonable doubt how the rule of law at issue should be interpreted, 
particularly when the circumstances of the present case ― both in terms of the 
number of successive renewals and the overall duration of the contractual 
relationship ― are quite startling. 
Consequently, the requirements are satisfied in order for this court to refer the 
question of EU law arising in this case to the CJEU for a preliminary ruling, with 
a stay of the present proceedings as regards consideration of the remaining 
questions raised, including those concerning whether a solution that requires the 
appellant’s fixed-term contract to be converted into a contract for an indefinite 
duration is compatible with the Constitution. 
8 However, in order for this Supreme Court to be able to exercise its powers on the 
basis of a correct interpretation of the applicable EU law, it is not sufficient to 
determine whether EU law precludes national legislation which in all cases 
prohibits the conversion of fixed-term employment contracts concluded by public 
law entities into contracts of an indefinite duration since, in the absence of any 
rule of national law that is directly applicable to the present case, a positive 
determination of the meaning and scope of Directive … 1999/70/EC is required. 
An answer is also needed, therefore, to another subsidiary or complementary 
question, namely whether, in the event that Directive … 1999/70/EC precludes an 
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absolute prohibition on the conversion of such contracts, it goes so far as to 
require such a conversion as being the only means to prevent abuse arising from 
the use of successive fixed-term employment contracts. It is therefore necessary to 
request the Court of Justice of the European Union to give a preliminary ruling on 
the following questions: 
1. Should EU law, in particular Clause 5 of the framework agreement annexed 
to Council Directive 1999/70/EC of 28 June 1999 concerning the framework 
agreement on fixed-term work concluded by ETUC, UNICE and CEEP, be 
interpreted as precluding national legislation which in all cases prohibits 
the conversion of fixed-term employment contracts concluded by public law 
entities into contracts of an indefinite duration? 
2. Should Directive 1999/70/EC be interpreted as requiring the conversion of 
the contracts as being the only means to prevent abuse arising from the use 
of successive fixed-term employment contracts? 
IV. Order 
Having regard to the considerations set out above, the judges of the Supreme 
Administrative Court order: 
(A) That the above questions be referred to the Court of Justice of the European 
Union for a preliminary ruling, 
and, consequently, 
(B) That these proceedings be stayed …  
… 
Lisbon, 7 February 2020 
[Illegible signatures]