62019CO0103_INF
Order of the Court (Seventh Chamber) of 2 June 2021 – SUSH and CGT Sanidad de Madrid
(Case C‑103/19) (
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)
(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Clause 5(1) – Successive fixed-term employment contracts in the public health sector – Concept of ‘objective reasons’ – Concept of ‘equivalent legal measures to prevent abuse’ – Substitution of the status of occasional regulated staff for that of interim regulated staff – Permanent need for temporary regulated staff)
1.
Social policy – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 – Measures to prevent abuse of successive fixed-term employment contracts – National legislation providing for the reclassification of a category of temporary staff through the substitution of the status of occasional regulated staff for that of interim regulated staff – Possible establishment of those staff following selection procedures designed to fill definitively the posts occupied temporarily by them – Whether such measures are appropriate – Verification by the national court
(Council Directive 1999/70, Annex, Clause 5)
(see paras 31, 34, 35, 40, 43-45, 47-49, operative part 1)
2.
Social policy – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 – Measures to prevent abuse of successive fixed-term employment contracts – National legislation which reserves to staff members having the status of occasional regulated staff the possibility of obtaining the substitution of that status for that of interim regulated staff – Whether permissible – Conditions – Appropriate measure to prevent and to penalise abuse arising from the use of successive fixed-term employment contracts or relationships – Whether there is another measure that is effective for the purpose of penalising abuse in respect of fixed-term workers not falling within the category of occasional regulated staff – Verification by the national court
(Council Directive 1999/70, Annex, Clause 5)
(see paras 51, 53, 54, operative part 2)
Operative part
1.
Clause 5 of the Framework Agreement on fixed-term work concluded on 18 March 1999, which is included in the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as meaning that it is for the national court to assess, in accordance with all the applicable rules of national law, whether national measures providing for the reclassification of a category of temporary staff through the substitution of the status of occasional regulated staff for that of interim regulated staff, and the possible establishment of those staff following selection procedures designed to fill definitively the posts occupied temporarily by them, constitute appropriate measures to prevent and, if necessary, penalise abuse arising from the use of successive fixed-term employment contracts or relationships or equivalent legal measures, within the meaning of that provision. If this is not the case, it is for that court to ascertain whether there are other effective measures in the applicable national legislation to prevent and penalise such abuse.
2.
Clause 5 of the Framework Agreement on fixed-term work, concluded on 18 March 1999, which is annexed to Directive 1999/70, must be interpreted as not precluding national legislation which reserves to staff members having the status of occasional regulated workers the possibility of obtaining the substitution of that status for that of interim regulated staff, where that substitution constitutes an appropriate measure to prevent and, if necessary, penalise abuse arising from the use of successive fixed-term employment contracts or relationships or an equivalent legal measure, within the meaning of that provision, provided that there are other effective measures in the national legal system to prevent and penalise such abuse in respect of fixed-term workers who do not fall within the category of occasional regulated staff, which it is for the national court to verify.
(
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)	OJ C 319, 23.9.2019.