Provisional text
OPINION OF ADVOCATE GENERAL
NORKUS
delivered on 9 October 2025 (1)
Case C‑418/24 [Obadal] (i)
TJ
v
Comunidad de Madrid
intervener:
Ministerio Fiscal
(Request for a preliminary ruling from the Tribunal Supremo (Supreme Court, Spain))
( Reference for a preliminary ruling – Social policy – Directive
1999/70/EC – Framework agreement on fixed-term work – Fixed-term employment contracts in the public sector – Fixed-term worker with a temporary replacement contract used to cover a vacant post – Clause
5 – Measures to prevent the abuse of successive fixed-term employment contracts or relationships – Conversion of contracts into contracts of indefinite duration – National case-law that does not allow such conversion but provides for a ‘non-permanent contract of indefinite duration’ together with the award of compensation – Effective, dissuasive and proportionate punitive measures – Practical effect of clause
5 of the Framework Agreement )
Table of contents
I.
Introduction
A.
Legal context
1.
European Union law
2.
Spanish law
(a)
The Constitution
(b)
The legislation on fixed-term contracts
(1)
The Workers’ Statute
(2)
The EBEP
(3)
Law 20/2021
(4)
Laws relating to the State Budget for 2017 and 2018
B.
The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court
II.
Analysis
A.
The scope of the questions referred for a preliminary ruling and their rewording
B.
Preliminary remarks about the content and the scope of clause 5 of the Framework Agreement
1.
The two types of measures: preventive and punitive
2.
The distinction between the rules to which preventive and punitive measures are subject
C.
The case-law principle according to which it is incumbent on the national authorities to adopt effective, dissuasive and proportionate punitive measures to guarantee the practical effect of Directive 1999/70
D.
The criteria on the basis of which a punitive measure can be regarded as effective, dissuasive and proportionate
1.
Does the punitive measure have to provide full compensation for the damage suffered by the worker concerned?
2.
Must the measure ensure that the worker has access to stable employment?
3.
Does the measure have to give rise to individual liability on the part of the staff of the administration?
E.
The existence of measures that duly penalise the abuse of successive fixed-term employment contracts
1.
Is the conversion of successive fixed-term contracts into a ‘non-permanent contract of indefinite duration’ an adequate punitive measure?
2.
Are there other effective, dissuasive and proportionate measures to penalise the abuse of successive fixed-term contracts in the national legal order?
(a)
The compensation equivalent to that provided for persons dismissed on account of an economic crisis or for unfair dismissal
(1)
Brief summary of case-law
(2)
Assessment
(b)
The rules governing liability
(1)
Brief summary of case-law
(2)
Assessment
(c)
The selection procedures
(1)
Brief summary of case-law
(2)
Assessment
III.
Conclusion
I.      Introduction
1.        Is national case-law which does not confer the status of ‘permanent contract staff’ in the public sector on ‘non-permanent workers having contracts of indefinite duration’, a concept developed in Spanish case-law, consistent with clause
5 of the Framework agreement on fixed-term work? (2) Does the national legal order contain other measures to penalise duly the abuse, by public authorities, of successive fixed-term contracts within the meaning of that clause? Those are, in essence, the questions submitted to the Court by the Tribunal Supremo (Supreme Court, Spain) in the present request for a preliminary ruling, which concerns the interpretation of that clause.
2.        At the heart of those questions lies, once again, one of the long-standing social concerns of the European Union: the protection of fixed-term workers from abuse. The protective provisions laid down as a minimum in the Framework Agreement are designed to ensure that the status of employees is not made insecure (3) and therefore to prevent their situation from being precarious as a result of their employment under fixed-term contracts for a lengthy period. (4) That category of employees is thus at risk, for a substantial part of its members’ working life, of being excluded from the benefit of stable employment, which is, however, as the Framework Agreement makes clear, a major element in the protection of workers. (5)
3.        Since the Framework Agreement entered into force on 10 July 1999, requests for its interpretation have been brought before the Court on many occasions, (6) in particular in the context of cases concerning the conformity, with clause
5 of that framework agreement, of national measures to penalise the abuse of successive fixed-term contracts. (7)
4.        More specifically, in the judgment in Márquez Samohano, given in 2014, the Court first became aware of the concept of a ‘non-permanent contract of indefinite duration’; (8) that concept had been created by the referring court given the legal impossibility of awarding workers who had been the subject of an abuse of successive fixed-term contracts in the public sector the status of ‘permanent contract staff’. (9)
5.        Today, and despite the successive reforms adopted since 2014 by the Kingdom of Spain, which are testament to the efforts made to ensure that its national legislation complies with the Framework Agreement, the proportion of temporary employment in the public sector is very high, accounting for almost 30% of posts, according to the referring court. On the date of the hearing before the Court in the present case, it emerged that that rate is 32.8% for the Spanish public sector as a whole, meaning that virtually one third of workers in that sector have a fixed-term contract.
6.        The recent judgments in Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid (10) and DG de la Función Pública, Generalitat de Catalunya and Departamento de Justicia de la Generalitat de Catalunya (11) concerned this same issue. Indeed, since the implementation of those judgments has given rise, according to the referring court, to ‘multiple and disparate’ interpretations by the national courts, the Court is called upon, once more, to provide assessments to enable the referring court to settle the dispute in the main proceedings.
A.      Legal context
1.      European Union law
7.        In addition to the first paragraph of Article 2 of Directive 1990/70, clause
1(b) and clause
5 of the Framework Agreement are particularly relevant in the present case.
2.      Spanish law
(a)    The Constitution
8.        Article 14 of the Constitución española (Spanish Constitution; ‘the Constitution’) provides that Spanish people ‘are equal before the law; there may be no discrimination on grounds of birth, race, sex, religion, opinion or any other condition or personal or social circumstance’.
9.        Article 23(2) of the Constitution provides that citizens ‘shall have the right to access on equal terms public office, in accordance with the requirements determined by law’.
10.      Article 103(3) of the Constitution provides, in particular, that the status of civil servants, and entry into the civil service in accordance with the principles of merit and ability, are to be provided for in legislation.
(b)    The legislation on fixed-term contracts
(1)    The Workers’ Statute
11.      Article 15(3) of the texto refundido de la Ley del Estatuto de los Trabajadores (consolidated text of the Law on the Workers’ Statute), approved by Real Decreto Legislativo 2/2015 (Royal Legislative Decree 2/2015) of 23 October 2015, (12) in the version applicable to the facts of the main proceedings (‘the Workers’ Statute’), provides that ‘fixed-term contracts concluded in breach of the law are deemed to be concluded for an indefinite period’.
12.      Article 15(5) of the Workers’ Statute provides:
‘Without prejudice to the provisions of [paragraphs] 1(a), 2 and 3, workers who have been employed, with or without interruption, for longer than 24 months over a period of 30 months in the same or a different work position with the same undertaking or group of undertakings on two or more temporary contracts, regardless of whether the workers have entered into the contracts directly or have been supplied by temporary-employment agencies, with the same or different fixed-term conditions applying to said contracts, shall acquire the status of permanent workers. …’
13.      The fifteenth additional provision of the Workers’ Statute, which relates to ‘the application of time limits to contracts for a particular task or service and to successive contracts in public administrations’, states that the breach of those limits in ‘public administrations and … public bodies which are linked to or dependent on them’ cannot prevent ‘the application of the constitutional principles of equality, merit and ability in access to public employment, [and] is not an obstacle to the obligation to fill the posts in question by means of normal procedures, in accordance with the provisions laid down in the applicable legislation’, with the result that ‘the worker shall retain the post which he or she occupied until that post is filled in accordance with the procedures referred to above, which shall mark the end of the employment relationship, unless that worker gains access to public employment by having successfully passed the corresponding selection procedure’.
(2)    The EBEP
14.      The Ley del Estatuto Básico del Empleado Público (Law on the basic regulations relating to public servants), approved by Real Decreto Legislativo 5/2015 (Royal Legislative Decree 5/2015) of 30 October 2015, (13) in the version applicable to the facts in the main proceedings (‘the EBEP’), was amended, inter alia, by Real Decreto-ley 14/2021, de medidas urgentes para la reducción de la temporalidad en el empleo público (Royal Decree-Law 14/2021 on urgent measures to reduce temporary employment in the public sector) of 6 July 2021 (14) and by Ley
20/2021, de medidas urgentes para la reducción de la temporalidad en el empleo público (Law
20/2021 on urgent measures to reduce temporary employment in the public sector) of 28 December 2021. (15)
15.      Article 8 of the EBEP provides:
‘1.      Public servants are persons who carry out duties for remuneration in the public authorities in service of the general interest.
2.      Public servants shall be classified as:
(a)      civil servants;
(b)      interim civil servants;
(c)      contract staff, whether engaged under permanent, indefinite-duration or fixed term employment contracts;
(d)      temporary staff.’
16.      According to Article 11(1) and (3) of the EBEP:
‘1.      A member of the contract staff means any person who, by virtue of a contract of employment concluded in writing, irrespective of the arrangements for recruitment laid down by employment law, performs services paid for by public authorities. Depending on its duration, the contract may be permanent, for an indefinite duration or fixed-term.
…
3.      The selection procedures for the staff employed shall be public and shall be governed in all cases by the principles of equality, merit and ability. In the case of temporary contract staff, they shall also be governed by the principle of speed, in order to meet expressly justified reasons of necessity and urgency.’
17.      Article 55(1) of the EBEP states:
‘All citizens shall have the right to access public employment, in accordance with the constitutional principles of equality, merit and ability, the provisions of these regulations and other rules in force in the legal order.’
18.      Article 70 of the EBEP, entitled ‘List of public sector vacancies’, provides:
‘1.      Human resource needs which receive a budget allocation and are to be met by appointing new members of staff shall be included on a list of public sector vacancies or filled by means of another similar instrument for managing the fulfilment of staff needs, which involves organising the relevant recruitment procedures for the posts to be filled (up to [10%] additional posts) and setting the maximum period for the publication of notices. In any event, the implementation of the list of public sector vacancies or similar instrument must take place within a non-renewable period of three years.
2.      The list of public sector vacancies or similar instrument, approved annually by the governing bodies of the public administration, shall be published in the corresponding official gazette.
…’
19.      The 17th additional provision of the EBEP was introduced by Article 1(3) of Law 20/2021. That 17th additional provision states:
‘1.      The public administrations shall be responsible for compliance with the provisions contained in these regulations and, in particular, shall ensure that there is no unlawfulness in the recruitment of temporary contract staff or in the appointment of interim civil servants.
Similarly, the public administrations shall encourage, in their respective fields, the development of action points to ensure compliance with this additional provision as well as coordinated action by the various bodies responsible for personnel matters.
2.      Unlawful actions committed in that area shall give rise to appropriate liability in accordance with the regulations in force in each of the public administrations.
3.      Any act, pact, agreement or regulatory provision, as well as the measures adopted to apply or to enforce them, the content of which directly or indirectly entails the administration failing to comply with the maximum durations for the performance of duties as a member of the temporary staff, shall be automatically void.
4.      Non-compliance with the maximum duration for the performance of duties shall give rise, in respect of the interim civil servant concerned, to financial compensation equal to 20 days’ fixed remuneration for each year of service, periods of less than a year being calculated pro rata on a monthly basis, up to a maximum of twelve monthly payments. The right to that compensation shall arise on the date on which the duties actually cease to be performed and its amount shall relate exclusively to the appointment that gave rise to the act of non-compliance. A right to compensation shall not arise if the employment relationship is terminated for disciplinary reasons or voluntarily.
5.      In the case of temporary contract staff, non-compliance with the maximum durations for the performance of duties shall confer entitlement to receipt of the financial compensation provided for in this paragraph, without prejudice to any compensation payable for infringement of the specific employment-law legislation.
That compensation shall equate, where appropriate, to the difference between the maximum of 20 days’ fixed remuneration for each year of service, up to a maximum of twelve monthly payments, and the compensation which the staff member would be entitled to receive for the termination of his or her contract, periods of less than a year being calculated pro rata on a monthly basis. The right to that compensation shall arise from the date on which the duties actually cease to be performed and the amount of that compensation shall relate exclusively to the contract that gave rise to the act of non-compliance. If that compensation is awarded by judicial means, the amounts shall be offset. A right to the compensation described shall not arise if the employment relationship is terminated on the ground of disciplinary dismissal that is found to be justified or by voluntary termination.’
(3)    Law 20/2021
20.      Article 2 of Law
20/2021, entitled ‘Stabilisation processes for fixed-term employment’, provides:
‘1.      For the stabilisation of fixed-term employment, and in addition to the provisions of Article 19(1)(6) of Ley 3/2017 de Presupuestos Generales del Estado para el año 2017 (Law 3/2017 on the general State Budget for 2017) of 27 June 2017 (16) and of Article 19(1)(9) of Ley 6/2018 de Presupuestos Generales del Estado para el año 2018 (Law 6/2018 on the general State Budget for 2018) of 3 July 2018, (17) this Law authorises an additional rate of conversion of posts occupied by workers having a fixed-term contract into posts occupied by civil servants, the ‘stabilisation rate’ [(‘tasa de estabilización’)], which includes permanent posts provided for in the budget occupied on an uninterrupted and fixed-term basis for at least three years prior to 31 December 2020, regardless of whether or not those posts are included in the lists of posts, staffing tables or other forms of human resources organisation applied in the various public administrations.
Without prejudice to the first transitional provision, the posts concerned by the employment stabilisation processes provided for in Article 19(1)(6) of Law 3/2017 on the general State Budget for 2017 and in Article 19(1)(9) of Law 6/2018 on the general State Budget for 2018 shall be included in the employment stabilisation process described in the previous paragraph, provided that they have been included in the corresponding vacancies for the stabilisation of employment in the public sector and, on the date of entry into force of this Law, have not been the subject of a call for applications or have been the subject of a call for applications and have remained unfilled at the end of the selection procedure.
2.      Vacancies that implement the stabilisation processes referred to in paragraph 1 as well as the new stabilisation process shall be approved and published in the relevant official gazettes before 1 June 2022 and shall be coordinated by the relevant public administrations.
Competition notices for selection procedures to cover the posts included in the list of public-sector vacancies shall be published before 31 December 2022.
Those selection procedures shall be finalised before 31 December 2024.
3.      The rate of coverage of posts by fixed-term workers must be less than [8%] of permanent posts.
4.      The implementation of these selection procedures, which, in any event, shall ensure compliance with the principles of free competition, equality, merit, ability and publicity, may be the subject of negotiations in each of the areas covered by the General State Administration, the Autonomous Communities and local authorities, and measures may be taken within the Comisión de Coordinación del Empleo Público [(Public Employment Coordination Commission, Spain)] to enable the implementation of these procedures to be coordinated between the various public administrations.
Without prejudice to any provisions of each administration’s own public service rules or of the specific rules, the selection system is the competition based on qualifications and tests, [40%] of the total mark being awarded to the selection stage based on qualifications, where experience in the body, scale, category or relevant equivalent classification will mainly be taken into account, it being understood that the selection stage based on tests may not be eliminatory, in the context of the collective bargaining provided for in Article 37(1)(c) of the [EBEP].
Where the sector-specific rules or rules of each administration so provide, internal mobility or promotion mechanisms prior to coverage of posts shall be compatible with the stabilisation processes.
5.      The outcome of those processes may not under any circumstances lead to an increase in expenditure or staff and those processes must necessarily offer permanent posts that are filled by fixed-term staff.
6.      Interim civil servants or fixed-term contract staff, while in service in that capacity, and whose contract is terminated by the administration due to their being unsuccessful in the stabilisation selection procedure, are entitled to financial compensation equivalent to 20 days’ fixed remuneration for each year of service, periods of less than a year being calculated pro rata on a monthly basis up to a maximum of 12 months.
For fixed-term contract staff, that compensation corresponds to the difference between, on the one hand, a maximum of 20 days’ fixed remuneration per year of service, up to a maximum of 12 monthly payments, and, on the other hand, the compensation to which the worker is entitled on account of the termination of his or her contract, periods of less than one year being calculated pro rata on a monthly basis. Where that compensation is granted by legal action, the amounts shall be offset.
A candidate’s failure to participate in the stabilisation selection procedure does not in any way entitle him or her to any financial compensation.
7.      In order to enable the tender to be monitored, public administrations shall certify to the Ministry of Finance and the Civil Service, through the State Secretariat for the Budget and Expenses, the number of permanent posts occupied on a fixed-term basis in each of the areas covered.’
(4)    Laws relating to the State Budget for 2017 and 2018
21.      The 43rd additional provision of Law 6/2018 on the general State Budget for 2018, in the version applicable to the facts in the main proceedings, which replaced the 34th additional provision of Law 3/2017 on the general State Budget for 2017, provides, inter alia, that the status of non-permanent staff having a contract of indefinite duration may be granted only by virtue of a judicial decision. That 43rd additional provision states that ‘unlawful actions’ committed in connection with temporary recruitment by ‘the bodies responsible for personnel matters in each public administration and in the bodies which make up their official public service’ are to give rise to liability on the part of the ‘bodies responsible for personnel matters, in accordance with the rules in force in each of the public administrations’.
B.      The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court
22.      Since 2 March 2016, TJ has been performing childcare duties at a state-funded educational establishment as a member of the contract staff. Her employment relationship has been based, since that date, on six successive fixed-term contracts, which are intended to cover a vacant post or to replace a worker. The last of those contracts was concluded on 8 September 2017. (18)
23.      On 19 July 2021, TJ brought an action before the Juzgado de lo Social no
13 de Madrid (Social Court No 13, Madrid, Spain) to have her employment relationship declared permanent or, in the alternative, non-permanent but of indefinite duration. By a judgment of 13 March 2023, that court upheld her claims in part, classifying the employment relationship as a ‘non-permanent employment relationship of indefinite duration’ because that relationship had continued for more than three years without the employer having filled the post occupied by the applicant in the main proceedings, in accordance with the national legislation.
24.      The appeal lodged by TJ was dismissed, and so she brought a further appeal for the purpose of unifying case-law before the Tribunal Supremo (Supreme Court), which is the referring court in these proceedings. In TJ’s view, her employment relationship should have been classified as a ‘permanent employment relationship’.
25.      In the view of the referring court, it is necessary, first of all, for the Court to provide clarifications to determine whether the Spanish legislation is consistent with clause
5 of the Framework Agreement. That legislation, as interpreted in its case-law, restricts the grant of the status of ‘permanent worker’ in the public sector to persons who enter the public service after having successfully passed a selection procedure in accordance with the principles of equality, merit and ability. By contrast, it regards as a ‘non-permanent employment relationship of indefinite duration’ the relationship of a temporary worker recruited without having gone through such a procedure, a relationship in respect of which there has been abusive use of successive fixed-term contracts.
26.      The referring court considers that that is the case, given the measures provided for in national law and the legal rules concerning the concept of a ‘non-permanent contract of indefinite duration’; those rules were established by that court to address the abuses of temporary employment in the public sector, before being incorporated by the legislature into Spanish legislation.
27.      That said, as a result of the differing interpretation and application of those measures and of those legal rules by the Spanish courts, having regard to their consistency with clause
5 of the Framework Agreement, in particular following the delivery of the judgment in Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid,
it is necessary for the Court to dispel the doubts that persist in that regard.
28.      The referring court goes on to set out the reasons why it considers that the legal rules relating to non-permanent employment relationships of indefinite duration and the Spanish legislation as a whole are consistent with clause
5 of the Framework Agreement.
29.      In that regard, it states, first, that, since access to public employment in Spain is permanent in nature, it must comply with the principles of equality, merit and ability, as laid down in the Constitution, so as to guarantee the right of all EU citizens to access such employment on equal and non-discriminatory terms, in accordance with Article 45 TFEU and Articles 20 and 21 of the Charter of Fundamental Rights of the European Union. Furthermore, those principles apply both to civil servants and to the contract staff. It is therefore impossible to award the status of ‘permanent worker’ in the public sector to a person who has not successfully passed the selection procedures that observe those principles. Thus, if the status of ‘permanent staff’ had to be awarded to all contract staff with the status of ‘non-permanent staff having a contract of indefinite duration’, the administration would then be exempted from the obligation to organise those procedures, which would, however, deny other EU citizens the right to participate in such procedures.
30.      Second, the referring court observes that the legal concept of a ‘non-permanent worker having a contract of indefinite duration’ was developed in its own case-law to address the abuses connected with temporary employment in the public sector. That solution stems from the fact that it is legally impossible to award the workers who have been subject to the abuse of successive fixed-term contracts the status of ‘permanent contract worker’, since those workers did not access public employment by means of a selection procedure consistent with the principles of equality, merit and ability. Thus, where it is found that there has been abuse of successive fixed-term contracts, the unlawful employment relationship is converted into a ‘non-permanent employment relationship of indefinite duration’ with effect from the initial date of employment.
31.      The legal effect of the foregoing is that the contractual relationship is maintained until the post is definitively filled by means of the regulatory procedure provided for in Spanish law. Once that post is filled, the non-permanent employment relationship of indefinite duration ends, and compensation equating to 20 days for each year of service is paid, up to a maximum of twelve monthly payments. The worker concerned is not entitled to that compensation if the successive fixed-term contracts had been lawful and not abusive, which demonstrates that that compensation is not independent of any consideration relating to the lawful or abusive nature of the use of such contracts. If the Court were to take the view that that compensation is not an adequate measure to prevent and penalise the abuse of successive fixed-term contracts, the referring court asks whether the payment of the maximum statutory compensation in force, which corresponds to unfair dismissals of permanent workers, that is, compensation equating to 30 days for each year of service, up to a maximum of 24 monthly payments, could constitute such a measure.
32.      Third, the referring court adds that a worker with a non-permanent employment relationship of indefinite duration enjoys the same rights as permanent workers in all aspects of the employment relationship, as regards, inter alia, remuneration and career advancement. In addition, that court notes that the Court of Justice, in paragraph 73 of its judgment in Instituto Madrileño, appears to have accepted that the conversion of the employment relationship into a non-permanent employment relationship of indefinite duration could constitute a measure that penalises the abuse of successive fixed-term contracts.
33.      Fourth, the referring court in the present case indicates that it disagrees with the analysis of the referring court in the case that gave rise to the judgment in Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid, according to which Spanish law does not provide, in respect of non-permanent contracts of indefinite duration, for any national measure intended to prevent or penalise the abuse of such contracts. In its view, the classification of the employment relationship as a ‘non-permanent employment relationship of indefinite duration’ constitutes such a measure and, therefore, may be regarded as an ‘equivalent and adequate legal measure’ for the purposes of clause
5 of the Framework Agreement.
34.      Fifth and lastly, the referring court observes that Law 20/2021, which provides for a stabilisation process for public employment, introduced into Spanish law specific legislative measures so that, inter alia, the organisation of selection procedures is not independent of any consideration relating to the abusive nature of the use of successive fixed-term contracts. Although those procedures are open to candidates who have
not suffered such abuse, the legislature assigns decisive weight, within the framework of the procedures, to the previous experience and to the time devoted by the temporary workers concerned to the performance of their duties, which provides adequate compensation for the abuse whilst facilitating their ultimate access to the post as a ‘permanent worker’. That law also introduced a new national rule which provides for a system of liability on the part of the public administration in case of non-compliance with those measures.
35.      It was in those circumstances that the Tribunal Supremo (Supreme Court), by order of 30 May 2024, received at the Court on 12 June 2024, decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      [Primarily,] is the case-law which, defending the principles of equality, merit, ability and non-discrimination in the free movement of workers, refuses to confer the status of permanent workers in the public sector on workers who have non-permanent contracts of indefinite duration contrary to clause
5 of the Framework Agreement?
(2)      [In the alternative,] if the answer to the above question is in the affirmative: may entitlement on the part of workers who have non-permanent contracts of indefinite duration to dissuasive compensation when their employment relationship is terminated be regarded as an adequate measure to prevent and, where appropriate, penalise abuses resulting from the use of successive temporary contracts in the public sector, in accordance with clause
5 of the Framework Agreement?’
36.      The referring court requested that the Court determine the present case under the expedited procedure provided for in Article 105 of the Rules of Procedure of the Court of Justice. By order of the President of the Court of 4 September 2024, Obadal (C‑418/24, EU:C:2024:717), the request was rejected. However, in the light of the nature of the case and of the significance of the questions which it raises, it was decided in that order that the Court will hear and determine the present case as a matter of priority, pursuant to Article 53(3) of the Rules of Procedure.
37.      On 8 January 2025, the Spanish Government requested, pursuant to the third paragraph of Article 16 of the Statute of the Court of Justice of the European Union, that the Court sit as a Grand Chamber in the present case.
38.      Written observations were lodged before the Court by TJ, the Ministerio Fiscal (Public Prosecutor’s Office, Spain), the Spanish Government and the European Commission. In the course of the hearing of 24 June 2025, those parties and interested persons, as well as the Italian Government and the
Comunidad Autónoma de Madrid (Autonomous Community of Madrid, Spain), which had not submitted written observations, answered questions put by the Court for an oral response.
II.    Analysis
A.      The scope of the questions referred for a preliminary ruling and their rewording
39.      By its first question, the referring court asks, in essence, whether clause
5 of the Framework Agreement must be interpreted as precluding national case-law which, in order to guarantee constitutional principles, namely the principles of equality, merit, ability and non-discrimination, as well as the free movement of workers or even the principles of equality and non-discrimination enshrined respectively in Article 45 TFEU and in Articles 20 and 21 of the Charter of Fundamental Rights, does not confer the status of ‘permanent workers’ in the public sector on workers who have non-permanent contracts of indefinite duration. If the answer to that first question is in the affirmative, that court, by its second question, asks, in essence, whether clause
5 of the Framework Agreement must be interpreted as precluding national legislation which provides for the payment of compensation setting a double ceiling for non-permanent workers having a contract of indefinite duration when their employment relationship is terminated.
40.      Before analysing those two questions, I consider it appropriate to set out a few considerations concerning their scope in order to explain why I am of the view that the questions should be reworded.
41.      First of all, since the two questions referred for a preliminary ruling are intrinsically linked, I propose that the Court examine them jointly, even though the second question is put only in the event that the first is to be answered in the affirmative.
42.      Next, although the wording of the first question may suggest that the referring court is specifying only the compliance, with clause
5 of the Framework Agreement, of the impossibility of conferring the status of ‘permanent contract workers’ on ‘non-permanent workers having a contract of indefinite duration’, I take the view that, given the information contained in the order for reference, the scope of that question also covers the examination of the compliance, with that clause, of other national measures, which the referring court as well as the Spanish Government, the Public Prosecutor’s Office and the Autonomous Community of Madrid regard as adequate measures to penalise the abuse of successive fixed-term contracts. It is my view that, in order to analyse such compliance, consideration should be given to all the measures provided for in the national legal order, as set out by the referring court.
43.      Lastly, according to the Court, in order for national legislation, such as the Spanish legislation at issue in the main proceedings, interpreted by the Tribunal Supremo (Supreme Court) – which, in the public sector, prohibits successive fixed-term contracts, such as non-permanent contracts of indefinite duration, from being converted into an employment contract of indefinite duration – to be regarded as compatible with the Framework Agreement, the domestic law of the Member State concerned must include, in that sector, another effective measure to prevent and, where appropriate, to penalise the abuse of successive fixed-term contracts. (19)
44.      In the present case, the dispute in the main proceedings which, before the referring court, is between TJ and the Autonomous Community of Madrid concerns the classification of the employment relationship between the person concerned and that public administration. It is apparent from the order for reference that TJ has worked in that administration for over nine years on the basis of six successive fixed-term contracts used to cover vacant posts or to replace workers. In TJ’s case, the Spanish courts have acknowledged that there had been an abuse of successive fixed-term contracts and her employment relationship was classified at first instance and on appeal as a ‘non-permanent employment relationship of indefinite duration’. Before the referring court, TJ argues that that employment relationship must be declared permanent.
45.      It is therefore apparent from the order for reference and from the documents before the Court that there has indeed been an abusive use of successive fixed-term contracts in the present case.
46.      In those circumstances, the questions referred for a preliminary ruling should be understood as meaning that the referring court is seeking to ascertain, in essence, as the referring court itself states, whether, in accordance with the requirements of clause
5 of the Framework Agreement, Spanish law, as set out in the order for reference, provides for measures to penalise duly the improper use of successive fixed-term contracts.
47.      In order to provide a useful answer to that question, I will begin by making a few preliminary remarks about the content and the scope of clause
5 of the Framework Agreement, in the light of the settled case-law of the Court (Section
B). Next, before determining the criteria for regarding a measure to penalise the abuse of successive fixed-term contracts as constituting an ‘effective, dissuasive and proportionate punitive measure’ in accordance with that clause (Section
D), I will revisit the case-law principle that it is for the national authorities to adopt such measures in order to guarantee the practical effect of that clause (Section
C). Since, in the present case, there has indeed been abuse of successive fixed-term contracts, I will examine the compliance, with that clause, of the national measures laid down to penalise duly the abuse of successive fixed-term contracts or employment relationships. Finally, I will draw conclusions from that analysis and will propose, in the light of those developments, an answer to that question, as reworded (Section
E).
48.      Furthermore, it should be observed, as I made clear in the introduction to this Opinion, that the Court has already ruled numerous times on the national legislation at issue, relying on long-standing case-law concerning, inter alia, measures to penalise duly the abuse of successive fixed-term contracts or employment relationships and on which the recent judgments in Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid and DG de la Función Pública, Generalitat de Catalunya and Departamento de Justicia de la Generalitat de Catalunya are founded. In the analysis which follows, I will therefore set out, in the interests of economy, only the relevant elements of that case-law and will attempt to avoid needless repetitions in the text, thus making a series of cross-references.
B.      Preliminary remarks about the content and the scope of clause 5 of the Framework Agreement
49.      In the following section, I intend, inter alia, to recall the relationship between points 1 and 2(b) of clause
5 of the Framework Agreement, as developed in the case-law of the Court, drawing a distinction between the types of measures envisaged and the different rules applicable to them.
1.      The two types of measures: preventive and punitive
50.      I would point out first and foremost that it follows from the second recital of the Framework Agreement, from paragraphs 6 and 8 of the general considerations in that framework agreement and from well-established case-law that the benefit of stable employment is viewed as a major element in the protection of workers, whereas it is only in certain circumstances that fixed-term employment contracts are liable to respond to the needs of both employers and workers. (20)
51.      Next, it is apparent from clause
1 of the Framework Agreement that the purpose of that framework agreement is, inter alia, to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships. The specific aim of clause
5 of the Framework Agreement is to implement that objective, that is, to place limits on successive recourse to such contracts or employment relationships, which is regarded as a potential source of abuse to the disadvantage of workers, by laying down as a minimum a number of protective provisions designed to ensure that the status of employees is not made insecure. (21)
52.      That framework includes two types of different measures subject to different rules. Member States are thus obliged, pursuant to clause
5(1) of the Framework Agreement, to adopt measures to prevent ‘abuse resulting from the use of successive fixed-term employment contracts or relationships’. However, where an abuse of such contracts has already occurred, it must be possible to apply measures to penalise duly such abuse in accordance, inter alia, with point 2(b) of that clause. (22)
2.      The distinction between the rules to which preventive and punitive measures are subject
53.      In the first place, with regard to clause
5(1) of the Framework Agreement, that provision includes the obligation (‘the effective and binding adoption’) on the Member States to introduce one or more of the measures listed in points
(a) to (c), where there are not already equivalent legal measures in the Member State concerned. (23) The Member States enjoy a certain discretion in this regard since they have the choice of relying on one or more of the measures set out in that provision, or on existing equivalent legal measures, while taking account of the needs of specific sectors and/or categories of workers. The Court has taken the view that, ‘in that way, clause
5(1) of the Framework Agreement assigns to the Member States the general objective of preventing such abuse, while leaving to them the choice as to how to achieve it, provided that they do not compromise the objective or the practical effect of the Framework Agreement’. (24)
54.      In the second place, as is apparent from the wording of clause
5(2)(b) of the Framework Agreement, it is only ‘where appropriate’ that the Members States and/or the social partners are to act in accordance with that provision by determining ‘under what conditions fixed-term employment contracts or relationships … shall be deemed to be contracts or relationships of indefinite duration’. Accordingly, that provision, which is of particular relevance in the present case, (25) ‘gives Member States the option to provide that cases of abuse may lead to an employment contract being converted into an employment relationship of indefinite duration’. (26) As the Court has consistently held, that same provision explicitly lays down that measure to penalise such abuse without, however, making it an obligation on the Member States. (27)
55.      However, since neither Directive 1999/70 nor the Framework Agreement provides for the adoption of specific punitive measures of an effective, dissuasive and proportionate nature, the Court has, in its case-law, established such a requirement so as to guarantee the practical effect of that directive. (28) It has therefore repeatedly recalled that when EU law does not lay down specific penalties where, as in the present case, instances of abuse have however been established, it is incumbent on the national authorities to adopt measures that are not only proportionate, but also are sufficiently effective and act as [a] sufficient deterrent to ensure that the measures taken pursuant to the Framework Agreement are fully effective. (29) The Court has added that it is therefore for the referring court to determine to what extent the conditions for the application and actual implementation of the national legislation and case-law render the latter appropriate measures for penalising the misuse of successive fixed-term employment contracts or relationships. (30)
C.      The case-law principle according to which it is incumbent on the national authorities to adopt effective, dissuasive and proportionate punitive measures to guarantee the practical effect of Directive 1999/70
56.      I would point out first of all that the case-law principle according to which ‘it is incumbent on the national authorities to adopt measures that are not only proportionate, but also are sufficiently effective and act as [a] sufficient deterrent to ensure that the measures taken pursuant to the Framework Agreement are fully effective’ is firmly embedded in settled and well-established case-law in which the Court relied on several principles of EU law. (31)
57.      In that case-law, the Court stated, first, that the Member States are required, within the bounds of the freedom left to them by the third paragraph of Article 288 TFEU, to choose the most appropriate forms and methods to ensure the effectiveness of directives, in the light of their objective. (32) Second, it added that, while, in the absence of relevant EU rules, the detailed rules for implementing such provisions are a matter for the domestic legal order of the Member States, under the principle of their procedural autonomy, they must not, however, be less favourable than those governing similar domestic situations (principle of equivalence) or render impossible in practice or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness). (33)
58.      Therefore, according to the Court, where abuse of successive fixed-term employment contracts or relationships has taken place, a measure offering effective and equivalent guarantees for the protection of workers must be capable of being applied in order duly to penalise that abuse and nullify the consequences of the breach of EU law. (34) Indeed, according to the very wording of the first paragraph of Article 2 of Directive 1999/70, the Member States must ‘take any necessary measure to enable them at any time to be in a position to guarantee the results imposed by [that] Directive’, (35) whether by converting those relationships into employment contracts of indefinite duration or awarding damages. (36)
59.      As regards that framework established by case-law, I consider it appropriate to put forward the following two considerations.
60.      In the first place, I would consider the nature of the results imposed by Directive 1999/70, as interpreted by the Court, where, as in the present case, abuse of successive fixed-term employment contracts or relationships has already taken place. Although it is made clear in the case-law of the Court that the requirement to guarantee the results imposed by that directive is intended to ensure that the Member States, first, provide for measures offering effective and equivalent guarantees for the protection of workers and, second, apply those measures ‘in order duly to penalise that abuse and nullify the consequences of the breach of EU law’, I am of the view that further clarification is required as to the exact scope of each of those two conditions. (37)
61.      In that regard, it could be argued that the first condition relates to punitive measures stricto sensu imposed on the perpetrators of the abuse – in particular, measures of a punitive and/or disciplinary nature – whereas the second pursues compensatory measures, provided for the benefit of the worker who was the victim of the abuse.
62.      More specifically, as regards the alternative or cumulative nature of those two conditions, the relationship between them – as expressed by the conjunction ‘and’ – means that they are cumulative. It follows from that fact that only where those conditions are met does a national measure offer the effective and equivalent guarantees for the protection of workers required by EU law. That being said, although the use of that conjunction confirms the binding nature of those two conditions, I consider in particular that the condition relating to the nullification of the consequences of the breach of EU law is the ‘raison d’être’ of both Directive 1999/70 and the Framework Agreement. It must therefore, in my view, prevail. (38) In other words, the adoption of punitive measures to deter the perpetrators of the abuse (measures of a punitive nature) does not suffice if there are no measures intended actually to nullify the consequences for the victim of that abuse (measures of a compensatory nature) by means, inter alia, of compensation in full for the damage suffered by the worker.
63.      In the second place, consideration should likewise be given to the specific timing of the breach of EU law: at what stage can a breach of the Framework Agreement be regarded as having occurred?
64.      In that regard, it seems clear to me, as is apparent, in essence, from the abovementioned case-law of the Court, (39) that such a breach occurs from the time when the worker carries out, on a permanent and lasting basis, tasks within the public administration falling within the usual activities of that administration, and when the duration of that worker’s employment contracts or relationships exceeds either the maximum total duration of such contracts or relationships or the number of authorised renewals, as provided for in the national legislation pursuant to clause
5(1)(b) and (c) of the Framework Agreement, or where the renewal of such employment contracts or relationships is not objectively justified in the light of clause
5(1)(a) of that framework agreement. (40)
65.      I am therefore of the view that a breach of the Framework Agreement cannot be regarded as having occurred only when a non-permanent employment contract of indefinite duration is terminated because the post in question is filled, the worker retires or he or she is dismissed, or even when the abuse was found to exist.
66.      Having made those clarifications, it now remains to be determined
which are the criteria for concluding whether a measure to penalise an abuse of successive fixed-term contracts may be regarded as constituting an ‘effective, dissuasive and proportionate measure’ compatible with clause
5 of the Framework Agreement.
D.      The criteria on the basis of which a punitive measure can be regarded as
effective, dissuasive and proportionate
67.      It follows, in essence, from the judgment in Santoro that, in order to be effective, dissuasive and proportionate, national measures adopted pursuant to clause 5 of the Framework Agreement may, inter alia, provide for the grant of adequate compensation for the worker who suffered the abuse, together with the possibility for him or her to obtain full compensation for the harm suffered, as well as a mechanism for penalising the administration responsible. (41)
68.      In view of those considerations, I would draw attention to a key point for the present case. It is necessary to determine the criteria
for assessing whether an effective, dissuasive and proportionate punitive measure is consistent with clause 5 of the Framework Agreement. In that regard, I will use the term ‘punitive measure’ to refer, as the Court does in its case-law, to penalties in the broad sense, that is, covering both the compensatory and the punitive nature of the measure.
1.      Does the punitive measure have to provide full compensation for the damage suffered by the worker concerned?
69.      With regard to the judgment in Santoro, and in relation to punitive measures in the broad sense, it must be observed, first of all, that it follows from that judgment that full compensation for the harm suffered by the worker is one of the criteria for regarding a punitive measure as effective, dissuasive and proportionate in accordance with clause
5 of the Framework Agreement.
70.      It is true that the Court has clarified that neither the principle that the damage suffered must be made good in its entirety nor the principle of proportionality require the payment of punitive damages. Those principles require Member States to provide adequate compensation which is more than a purely nominal amount, but not more than is necessary to make good the damage in its entirety. (42) However, the Court has also stated that the award of interest, in accordance with the applicable national rules, is an essential component of compensation that allows the consequences of the abuse to be nullified, (43) in particular in the most serious cases. (44)
71.      Accordingly, as the Commission observed in reply to a question put by the Court at the hearing, compensation for the harm suffered by the worker cannot be capped if it is to allow adequate compensation to be provided in all cases of abuse, including the most serious cases. (45) It is quite clear that capping, in advance, the amount of damages at a level which is not necessarily proportionate to the seriousness of the breach, in particular to its duration, and thus risks that compensation being purely nominal in nature is not consistent with the requirement laid down by the Court to guarantee an effective, dissuasive and proportionate punitive measure. In addition, full compensation for the loss or damage sustained as a result of the abuse of successive fixed-term contracts over a long period cannot leave out of account factors, such as the effluxion of time, which may in fact reduce its value. (46)
72.      Although Member States do enjoy discretion in adopting their measures, the fact remains that the measures as a whole, that is, the system per se, must be effective to be compatible with clause
5 of the Framework Agreement. Therefore, as the referring court alone has jurisdiction to interpret and apply the national legislation, it falls to it to interpret that legislation, in so far as possible, in such a way that compliance with the principle of effectiveness is guaranteed.
73.      Lastly, in the judgment in Santoro, the Court held, inter alia, that, ‘given the difficulties inherent in demonstrating the existence of a loss of opportunity, … a mechanism of presumption designed to guarantee a worker who has suffered a loss of employment opportunities, due to the misuse of successive fixed-term contracts, the possibility of nullifying the consequences of such a breach of EU law is such as to satisfy the requirement of effectiveness’. (47) Conversely, a compensation mechanism under which the worker is required to prove the loss of an opportunity would require that worker to adduce evidence which would be very difficult, if not impossible, to provide, in particular given the power imbalance between the parties and the insecurity resulting from the abuse of the successive fixed-term contracts. Such a requirement would undermine the effectiveness of such a mechanism. It therefore follows that a mechanism to compensate a worker by judicial means which does not alleviate the burden of proof is also incompatible with the requirements of the Framework Agreement.
2.      Must the measure ensure that the worker has access to stable employment?
74.      As I have stated above, the purpose of the Framework Agreement is to ensure that the status of employees is not made insecure and therefore to prevent their situation from being precarious as a result of the prolonged use of successive fixed-term contracts. Stable employment is a major element in the protection of workers.
75.      In that regard, it follows from the case-law of the Court that legislation which lays down a mandatory rule that, where there is misuse of fixed-term employment contracts, such as non-permanent contracts of indefinite duration, such contracts are to be converted into a permanent employment relationship, is likely to comprise a measure that actually penalises such misuse and, therefore, be considered to comply with clause
5 of the Framework Agreement. (48)
76.      However, I consider it important to state that, as a general rule, for such a conversion to be regarded in itself as an effective measure, it must take place within a reasonable period of time. (49) Therefore, that measure cannot be regarded as sufficient for a worker who has had successive fixed-term contracts over a particularly lengthy period, such as 10, 20 or even 30 years.
77.      It follows that the conversion of a fixed-term employment contract into a contract of indefinite duration is incapable, on its own, of constituting an effective measure to compensate for the harm suffered by a worker who has suffered abuse, in particular in the most serious cases in which the national courts find that there has been a breach of clause
5 of the Framework Agreement over a long period of time. (50)
3.      Does the measure have to give rise to individual liability on the part of the staff of the administration?
78.      It is clear that a punitive measure which can give rise to the individual liability of the staff of the public administration could constitute a dissuasive measure. Especially since, as the Commission has noted, in both its written observations and oral submissions, a measure to nullify the consequences of a case of abuse – either by the award of flat-rate compensation or of damages by judicial means – would, unlike what occurs in the private sector, impact the public purse, with the result that there would be no connection between the individual liability and the penalty.
79.      Therefore, like the Commission, I acknowledge that a system of individual liability of the administrative staff could constitute a relevant tool in the context of a system that includes other sufficiently dissuasive, effective and proportionate penalties. In any case, for such a system to be effective, it must be specific, foreseeable and applicable in practice. It cannot be reduced to a mere abstract or purely theoretical possibility.
80.      Accordingly, even though, as the Court has stated, neither the principle that the damage suffered must be made good in its entirety nor the principle of proportionality requires the payment of punitive damages, I see no reason in principle for a national system of measures, in the context of the discretion enjoyed by the Member States, not to cover the compensation in full of the harm suffered by the worker, the possibility of seeking payment of damages and the implementation of a mechanism of individual liability of the staff of the administration. In my view, it is clear that a national system in which the use of successive fixed-term contracts remains widespread cannot be regarded as being based on effective, dissuasive and proportionate measures. That is a matter for the referring court to determine.
81.      It is, therefore, in the light of those considerations that I will analyse the compliance, with clause
5 of the Framework Agreement, of the measures provided for in the Spanish legal order, as described by the referring court, that seek to penalise the abuse of successive fixed-term employment contracts or relationships.
E.      The existence of measures that duly penalise the abuse of successive fixed-term employment contracts
82.      TJ claims, first, that the status of ‘non-permanent worker having a contract of indefinite duration’, on account of its temporary nature, can only perpetuate a temporary employment situation, without addressing the objectives of Directive 1999/70. Thus, that status can neither compensate for the harm suffered by the worker concerned nor place that worker, in terms of the rights which he or she enjoys, on the same footing as permanent staff, since that status keeps the employment unstable, in breach of clause
5 of the Framework Agreement. Accordingly, a non-permanent contract of indefinite duration cannot be regarded as an effective, proportionate and sufficiently dissuasive punitive measure.
83.      Second, with regard to the detailed rules governing access to temporary employment, TJ argues that it is inaccurate to claim that the constitutional principles – namely the principles of equality, merit and ability – were not observed when members of the temporary staff were recruited. Thus, in order to access temporary employment within the administration, the member of staff in question must successfully pass a selection procedure during which he or she must demonstrate his or her qualifications and merits. (51)
84.      To determine whether the Spanish legal order provides for measures capable of penalising duly the abuse of successive fixed-term contracts, I will consider, first, the conversion of those types of employment contracts or relationships into a ‘non-permanent’ employment relationship ‘of indefinite duration’ and, second, I will analyse the other measures provided for in the national legislation at issue, as set out by the referring court, in the light of the case-law of the Court. (52)
1.      Is the conversion of successive fixed-term contracts into a ‘non-permanent contract of indefinite duration’ an adequate punitive measure?
85.      I note, first of all, that the Court has already held that clauses
2 and 3 of the Framework Agreement must be interpreted as meaning that a non-permanent worker having a contract of indefinite duration must be regarded as a fixed-term worker, within the meaning of that framework agreement, and, therefore, as falling within the scope of that agreement. The Court has also ruled that clause
5 of the Framework Agreement must be interpreted as meaning that the expression ‘use of successive fixed-term employment contracts or relationships’ in that provision encompasses a situation in which, since the administration concerned failed to organise within the relevant deadline a selection procedure seeking definitively to fill the post occupied by a non-permanent worker having a contract of indefinite duration, that worker’s temporary contract with that administration was automatically extended. (53)
86.      In the present case, the referring court states, first, that a non-permanent worker having a contract of indefinite duration is a worker having a fixed-term contract because there is, from the outset, a predetermined ground for termination of the employment relationship, the duration of which is dependent upon the post being filled, and, second, that the uncertain extension of the non-permanent employment relationship of indefinite duration, which is dependent on the organisation and completion of selection procedures to fill the vacant post, can be equated, for the purposes of the Framework Agreement, with an automatic extension of fixed-term contracts. Accordingly, in that court’s view, the concept in case-law of a ‘non-permanent’ worker ‘having a contract of indefinite duration’ is not contrary to the case-law set out in the preceding point of this Opinion, (54) since the Spanish legal order is compatible with EU law, without to that end national law being interpreted contra legem.
87.      In addition, the referring court also explains that the concept of a ‘non-permanent worker having a contract of indefinite duration’ was created in view of the legal impossibility of awarding workers who have been victims of an abuse of successive fixed-term contracts the status of ‘permanent contract workers’ for the reasons previously set out above. (55) That court adds that the conversion of the successive fixed-term contracts into a ‘non-permanent’ employment relationship ‘of indefinite duration’, together with the award of compensation equating to 20 days’ remuneration for each year of service, up to a maximum of twelve monthly payments, adequately satisfies the requirements of the Framework Agreement.
88.      In the first place, I consider it important to recall that, as is clear from reading the case-law set out above, (56) the Court, in interpreting clause
5(2) of the Framework Agreement, has repeatedly held that it is not mandatory for Member States to convert successive fixed-term contracts into an employment contract or relationship of indefinite duration. It is therefore clear that it has never required nor even suggested that the status of ‘member of the permanent contract staff’, (57) as provided for in Article 8(2)(c) of the EBEP, or the status of civil servant, as provided for in Article 8(2)(a) of the EBEP, be conferred on a worker in the public administration without that worker having first successfully passed the selection procedures or competitions provided for, in accordance with the constitutional principles of equality, merit and ability. It goes without saying that, quite clearly, the Court has also not called into question those principles. (58)
89.      Therefore, contrary to what the Spanish Government argued in its written observations, and to the extent that there is no obligation on the Member States to convert successive fixed-term contracts, such as – in the present case – the non-permanent employment relationship of indefinite duration, into a contract of indefinite duration (member of the permanent contract staff), it is my view that the question of any interpretation contra legem of the national law, as raised by the referring court itself, does not arise.
90.      However, with regard to that measure and on the basis of settled and well-established case-law, the Court has found that, in order for national legislation such as the Spanish legislation at issue in the main proceedings – which, in the public sector, prohibits such a conversion – to be regarded as compatible with the Framework Agreement, the domestic law of the Member State concerned must include, in that sector, another effective measure to
penalise the abuse of successive fixed-term contracts. (59)
91.      In its order for reference, the referring court observes that it is apparent from paragraph 73 of the judgment in Instituto Madrileño that the Court took the view that, to the extent that, in respect of staff employed in the public authorities under administrative law, there is no other equivalent and effective protective measure, which it was for the referring court to determine, the assimilation of that fixed-term staff with ‘workers having non-permanent contracts of indefinite duration’ could constitute a measure capable of penalising abuse resulting from the use of fixed-term employment contracts and of eliminating the consequences of infringement of the provisions of the Framework Agreement. (60)
92.      It is true that that consideration by the Court came after it clarified, in paragraph 72 of that judgment, that that could be the case ‘if the referring court were to find that, in the national law at issue in the main proceedings, there is no other effective measure to prevent and penalise abuses that may be identified in respect of public-sector workers, such a situation [being] likely to undermine the purpose and practical effect of clause
5 of the Framework Agreement and [therefore contrary] to that clause’ (emphasis added).
93.      However, I note, in that regard, that the use of the conditional ‘could’ in paragraph 73 of the judgment in Instituto Madrileño demonstrates that the Court did not state that equating such fixed-term staff with ‘workers having non-permanent contracts of indefinite duration’ constitutes a measure capable of penalising the abuse of fixed-term employment contracts and of eliminating the consequences of the infringement of the provisions of the Framework Agreement. It appears to me that the Court’s consideration in that paragraph of the judgment quite simply meant that it was for the referring court in the case that gave rise to that judgment to verify the circumstances surrounding that conversion measure.
94.      In addition, as the Commission has rightly observed, the referring court in the cases that gave rise to the judgment in Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid had already considered those aspects and had asked the Court to clarify its interpretation. The Court therefore clarified in the latter judgment its case-law on the concept of ‘non-permanent workers having contracts of indefinite duration’.
95.      In the second place, although, according to the referring court, the concept of a ‘non-permanent worker having a contract of indefinite duration’ is a response to the abuse of fixed-term contracts in the public sector, I am of the view that, taken in isolation, that conversion cannot constitute a measure that duly penalises such abuse. As the referring court itself stated, and as the Commission also noted in its written observations, that measure consists, inter alia, in converting a series of fixed-term contracts into a single employment relationship, but also for a fixed term, the duration of which remains at the discretion of the public administration concerned. (61) It therefore seems clear to me that an improper use of fixed-term contracts cannot be penalised, in the broad sense of the term, by converting the employment relationship into another type of fixed-term relationship, since that conversion does, on its own, allow the abuse of successive fixed-term contracts to be brought to an end in order to address needs of the public administration which are not of a temporary nature and which may even continue for several years before the abuse actually ceases. (62)
96.      Furthermore, in its judgment in DG de la Función Pública, Generalitat de Catalunya and Departamento de Justicia de la Generalitat de Catalunya, given after the order for reference in the present case, the Court restated that it cannot be accepted that fixed-term employment contracts may be renewed for the purpose of the performance, in a fixed and permanent manner, of tasks in the public administration concerned which normally come under the activity of the employee concerned. The Court considered once again that such a renewal directly conflicted with the premiss on which the Framework Agreement is founded. (63)
97.      That consideration cannot be called into question by the fact that, as the referring court states, its case-law has established an equivalence between the rights of non-permanent staff having a contract of indefinite duration and those of permanent staff, in particular as regards remuneration, career advancement or incentives, provided that the employer administration is required to submit the post in question to a call for applications as part of a public competition. Even though that equivalence between rights can only improve the situation of workers whose situation has been precarious for years – if not decades – by curtailing any differences in treatment between workers performing identical duties, such equivalence does not allow them to benefit from stable employment, which was conceived by the EU legislature as a fundamental element in the protection of workers by the Framework Agreement. (64)
98.      Therefore, it appears to me that in cases in which a selection procedure has not been organised since the start of the non-permanent employment relationship of indefinite duration, an implicit extension of that contract for several more years is such as to compromise the object, the aim and the practical effect of the Framework Agreement. (65) As the Court has already stated, ‘such a restrictive interpretation of the concept of “successive fixed-term employment relationships” would allow insecure employment of workers over a period of years’ and, in addition, ‘would be liable to have the effect not only that, in reality, a large number of fixed-term employment relationships would not qualify for the protection of workers sought by Directive 1999/70 and the Framework Agreement, because the objective pursued by that directive and that agreement would lose a large part of its substance, but also that the abuse of such relationships by employers in order to meet permanent and long-term staffing needs would be permitted’. (66) Moreover, it should be borne in mind that it is apparent from the legal and factual framework of the case that the 43rd additional provision of Law 6/2018 provides that the status of a ‘non-permanent worker having a contract of indefinite duration’ can be granted only by virtue of a judicial decision. That necessarily means, as in the present case, that the worker who has suffered abuse must apply for a declaration that he or she should be granted the status of a ‘non-permanent worker having a contract of indefinite duration’.
99.      I am therefore of the view that, in principle, clause
5 of the Framework Agreement does not preclude national case-law, such as that at issue in the main proceedings, which, in order to guarantee constitutional principles, namely the principles of equality, merit, ability and non-discrimination, as well as the free movement of workers, does not grant the status of ‘member of the permanent [contract] staff’ in the public sector to workers having non-permanent contracts of indefinite duration, provided however that the domestic law includes, in that sector, at least one other effective measure to prevent and, where appropriate, penalise the abuse of successive fixed-term contracts.
100. Nevertheless, the question does arise as to whether there are, in the Spanish legal order, as set out by the referring court, other effective measures that allow abuse to be penalised.
2.      Are there other effective, dissuasive and proportionate measures to penalise the abuse of successive fixed-term contracts in the national legal order?
101. It is apparent from settled case-law, as recalled in point 55 of this Opinion, that clause
5 of the Framework Agreement does not provide for specific penalties if abuses have been identified. In such a situation, the national authorities have to adopt proportionate, effective and dissuasive measures to ensure that the measures taken pursuant to the Framework Agreement are fully effective.
102. In that context, I would recall that it is not for the Court to rule on the interpretation of provisions of national law, that being exclusively for the national courts having jurisdiction, which must determine whether the requirements set out in clause
5 of the Framework Agreement are met by the provisions of the applicable national law. However, the Court, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give the national courts guidance in their assessment. (67)
103. I will therefore examine, in the following section, the proportionality, effectiveness and dissuasiveness of the measures provided for in the Spanish legal order, in the light of the case-law of the Court and taking into account the criteria set out in points 67 to 81 of this Opinion.
(a)    The compensation equivalent to that provided for persons dismissed on account of an economic crisis or for unfair dismissal
(1)    Brief summary of case-law
104. At the outset, I wish to recall that, in the judgments in Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid (68) and DG de la Función Pública, Generalitat de Catalunya and Departamento de Justicia de la Generalitat de Catalunya, (69) the Court, relying on settled case-law, (70) held, first of all, that the payment of an end-of-contract compensation ‘independent of any consideration relating to the lawful or abusive nature of the use of [successive] fixed-term contracts’ did not allow the purpose of clause
5 of the Framework Agreement, consisting in preventing such abuse, to be achieved. To arrive at that conclusion, the Court took account of the finding made by the referring courts in those cases, to the effect that, in accordance with Spanish law, the flat-rate compensation is payable to non-permanent workers having a contract of indefinite duration when their contracts are terminated because their post has been filled, which presupposes either that they participated in the selection procedure and were unsuccessful, or that they did not participate in it. The Court therefore inferred from that fact that such a measure does not appear to be capable of duly penalising the improper use of successive fixed-term employment contracts or relationships and of removing the consequences of the infringement of EU law and, consequently, does not seem in itself to constitute a sufficiently effective and dissuasive measure to ensure that the measures taken pursuant to the Framework Agreement are fully effective, within the meaning of the case-law.
105. Specifically, in the judgment in DG de la Función Pública, Generalitat de Catalunya and Departamento de Justicia de la Generalitat de Catalunya, (71) the Court added that, since compensation such as that provided for in Article 2 of Law 20/2021, which is also at issue in the main proceedings, sets a double ceiling, namely a limit of 20 days’ remuneration per year of service, capped, in total, at 12 monthly salary payments, it does not make it possible for either proportionate and effective compensation in cases of abuse that exceed a certain duration in terms of years, or adequate and full compensation for the damage resulting from such abuse. Thus, the Court held that clause
5 of the Framework Agreement precludes ‘national legislation which provides for the payment of flat-rate compensation, equal to 20 days’ salary for each year worked, up to a limit of one year’s pay, to any worker whose employer has abused non-permanent contracts of indefinite duration successively extended, where the payment of that end-of-contract compensation is independent of any consideration relating to the lawful or abusive nature of the use of those contracts’. (72)
106. I see no reasons which would lead me to propose the opposite to the Court. That said, I will, however, in this Opinion, assess that measure in the light of certain factors, as detailed by the referring court. (73)
(2)    Assessment
107. In the present case, as regards the payment of compensation, the referring court explains, first of all, that the legal effect resulting from the conversion of successive fixed-term contracts into a non-permanent employment relationship of indefinite duration consists in maintaining the employment relationship until the post is definitively filled by means of the regulatory procedure laid down in Spanish law. The non-permanent employment relationship of indefinite duration ends on completion of that procedure, with the payment of compensation equating to 20 days per year of service, up to a maximum of twelve monthly payments.
108. That court states, next, that that compensation cannot be regarded as independent of any consideration relating to the lawful or abusive nature of the use of such employment contracts or relationships. The worker concerned would be entitled to that compensation only if the use of successive fixed-term contracts had been unlawful and abusive.
109. Lastly, the referring court asks, in
the event that the Court considers that that compensation is not an adequate measure to prevent and penalise the abuses arising from the use of successive fixed-term contracts, whether the payment of the maximum statutory compensation in force, corresponding to the case of unfair dismissals of permanent workers, namely compensation corresponding to 30 days per year of service, up to a limit of 24 monthly payments, could constitute such a measure.
110. Firstly, as I have already observed, the protective provisions laid down as a minimum in the Framework Agreement are designed to ensure that the status of employees is not made insecure and therefore to prevent their situation from being precarious as a result of their employment under fixed-term contracts for a lengthy period. Thus, that precarious situation stems not just from the dismissal or the end of the employment relationship of the worker who has suffered from the abuse of successive fixed-term contracts, but in fact from the abuse itself.
111. Even though the non-permanent employment relationship of indefinite duration continues until the post is definitively filled by means of the regulatory procedure laid down in Spanish law, it is common ground that the Spanish legislation at issue provides for compensation only when that employment relationship ends. Therefore, such compensation equating to 20 days’ salary for each year worked, capped at 12 months’ salary, appears to be compensation for the termination of the contract rather than a genuine penalty, in the broad sense, for the abuse suffered by the worker. (74)
112. Second, that conclusion by the Court, which follows from the abovementioned case-law according to which the payment of that end-of-contract compensation is independent of any consideration relating to the lawful or abusive nature of the use of those contracts, the finding of which may be objectively determined for each situation by means of a simple mathematical calculation, clearly means that that payment does not enable full compensation to be ensured for the harm suffered in the most serious cases of abuse. The possibility of obtaining partial damages does not, however, appear satisfactory in the light of the Framework Agreement. The compensation must, on the contrary, make good in its entirety the harm suffered by the worker as a result of the abuse of the successive fixed-term contracts over the entire period of the abuse.
113. In the present case, TJ’s contract has not come to an end. In that factual context, the question arises as to how such compensation of 20 days per year of service, up to a limit of 12 monthly payments, could have a deterrent effect and, therefore, how that compensation could make good the harm suffered as a result of more than nine consecutive years of abuse. In other words, that measure appears to me to be neither dissuasive nor compensatory.
114. Third, it is very important that the compensation takes into account both the start and the end of the infringement of EU law. As I have already stated, the breach of the Framework Agreement begins from when the worker carries out, on a permanent and lasting basis, tasks falling within the normal activities of the public administration, the duration of which exceeds the maximum total duration of the employment relationship, which in the present case is fixed at three years by the Spanish legislation. Furthermore, I note that for compensation of the harm suffered by the worker to be regarded as an effective, dissuasive and proportionate punitive measure, it must be able to provide adequate compensation in all cases of abuse, including the most serious ones, and cannot therefore be subject to a ceiling.
115. It follows that the calculation of the compensation must take account of the individual circumstances of the worker who has suffered abuse. In certain cases, the compensation at issue could allow the harm caused by the abuse to be made good in its entirety, in other cases such full reparation appears manifestly impossible.
116. Accordingly, generally speaking, the view may be taken that neither the payment of compensation equating to 20 days per year of service, up to a limit of 12 monthly payments, nor compensation corresponding to 30 days per year of service, up to a limit of 24 monthly payments, makes it possible, as the Court has already held, for either proportionate and effective compensation in cases of abuse that exceed a certain duration in terms of years, or adequate and full compensation for the damage resulting from such abuse. (75)
117. I am therefore in complete agreement with the Commission that neither workers who retire, resign or are dismissed for one reason or another before the end of the stabilisation selection procedure nor those who secured the post at the end of that procedure are entitled to compensation, even if they suffered from the abuse of successive fixed-term contracts. (76) Furthermore, it has also not been demonstrated that the mechanism for the compensation of workers by judicial means, which, according to the Spanish legislation, is not accompanied by any alleviation of the burden of proof, (77) is genuine and not purely theoretical.
118. It follows that the fact that, as the referring court states, the worker concerned is entitled to that compensation only if the use of successive fixed-term contracts is held to be unlawful and abusive is not sufficient to regard that measure as making it possible ‘duly to punish [the] abuse and nullify the consequences of the breach of EU law’ (emphasis added), that outcome being the primary objective of Directive 1999/70.
(b)    The rules governing liability
(1)    Brief summary of case-law
119. With regard to the rules governing the liability of public administrations, regard should be had to the judgment in Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid. The question of whether the 43rd additional provision of the Law on the State Budget for 2018 and the 17th additional provision of the EBEP introduced by Royal Decree-Law 14/2021 were compliant with clause
5 of the Framework Agreement was the subject of the eighth and ninth questions in the cases which gave rise to that judgment. (78)
120. In that regard, the Court held, in paragraphs 113 and 114 of that judgment, that the wording of those two provisions appears to contain such a level of ambiguity and abstraction that it does not make them comparable to the Italian mechanism for the liability of administrative authorities, to which the Court refers in the judgment in Santoro, (79) which, in conjunction with other effective and dissuasive measures, had been held, subject to verification by the referring court in the case which had given rise to that judgment, to be such as to establish that the Italian legislation was compliant with clause 5 of the Framework Agreement. The Court therefore ruled that that clause must be interpreted as precluding national provisions under which ‘unlawful actions’ give rise to liability on the part of the public administrations, ‘in accordance with the rules in force in each [of those] public administrations’, where those national provisions are not effective and are not a deterrent in order to ensure that the measures taken pursuant to that clause are fully effective.
(2)    Assessment
121. In the present case, the referring court explains that the 17th additional provision, as amended by Law 20/2021, lays down rules governing liability in the event of non-compliance with the measures to make public employment stable and secure, measures introduced in Article 10 of the EBEP. Thus, according to that court, the substance of that reform is bolstered by the fact that ‘unlawful acts in the application of Article 10’ shall give rise to appropriate liability, ‘in accordance with the rules in force in each public administration’, which constitutes a proportionate, effective and dissuasive mechanism capable of ensuring compliance with the obligation to prevent abuses in the temporary employment of staff working for the public administrations, in accordance with clause
5 of the Framework Agreement. (80)
122. At the hearing, the Court asked the Spanish Government and the Autonomous Community of Madrid to set out the reasons and the provisions of national law justifying why the assessment contained in paragraphs 112 to 114 of the judgment in Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid should not be applied in the present case.
123. In answer to that question, the Spanish Government stated, with reference to its written observations, that the Spanish legal order lays down provisions governing the liability of the public administrations in cases where they fail to fulfil their obligations in relation to the recruitment of contract staff.
124. In that regard, the Spanish Government stated in its written observations, first of all, that the 43rd additional provision of the Law on the State Budget for 2018 was strengthened by the 17th additional provision of the EBEP, further to the reform introduced by Law 20/2021, in that it provides for rules governing liability in the case of non-compliance with the measures relating to the recruitment procedures for members of the contract staff introduced in Article 11 of the EBEP. According to that government, that legislative reform strengthens the substance of the abovementioned legislation because it establishes a mechanism that is proportionate, effective and dissuasive which is capable of ensuring compliance with the obligation to prevent abuses in the recruitment of temporary staff working within the public administrations.
125. Next, the Spanish Government relied on Article 94 et seq. of the EBEP, (81) as well as on the disciplinary rules applicable to civil servants within national government. (82) Specifically, it observed that, in the field of contract staff working within the public sector, the national legislation defines a ‘serious infringement’ as, in essence, a breach of the rules on fixed-term and temporary contracts, in particular where such contracts are used contrary to the law’. (83)
126. Lastly, the Spanish Government also referred to the possibility of bringing actions for damages before the social courts, without prejudice to the mechanism governing the liability of the public administrations as the employer.
127. In that regard, first, in so far as, in the present case, the referring court in this case refers, essentially, to the same national legislation as that examined by the Court in paragraphs 112 to 114 of the judgment in Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid, I see no reason in principle why the Court should depart from the considerations it adopted. With all due respect, the order for reference does not make clear the exact meaning of the words ‘unlawful acts’, which the Court had already considered in the context of that judgment.
128. Second, I note that a detailed description of the rules governing liability in the case of non-compliance with the measures introduced in Article 11 of the EBEP, relating to the recruitment procedures for contract staff, is provided neither in the written observations nor in the oral submissions, made at the hearing, by the Spanish Government, even though the latter argues that those measures were intended to strengthen the pre-existing national legislation.
129. On the contrary, the figures put forward by the Spanish Government, after consultation with the Labour and Social Security Inspectorate,
which reveal that over 1 200 investigations have been conducted in the Spanish public administrations over the past five years, resulting in 100 notices of infringement being issued, cannot be sufficient to demonstrate that those rules are effective. (84) In that regard, as I have already set out in point 79 of this Opinion, rules governing liability can be regarded as effective and dissuasive only if they are specific, foreseeable and applicable. They cannot be reduced to a mere abstract or purely theoretical possibility. Neither the order for reference nor the documents before the Court support a conclusion to that effect, and nor was such a conclusion substantiated during the discussions as part of the hearing. Indeed, in reply to a question put by the Court at that hearing, the Autonomous Community of Madrid stated that while, in theory, it is possible for the administration to incur liability, it was thus far unaware of any liability proceedings brought by the Labour Inspectorate against it, or of any disciplinary proceedings brought against one of its officials or civil servants.
130. I am therefore of the view that the very general summary of the content of those national provisions at issue – namely the 43rd additional provision of the Law on the State Budget for 2018, as strengthened by the 17th additional provision of the EBEP, further to the reform brought about by Law 20/2021 – does not provide the Court with the necessary information to assess whether, subject to verification by the referring court, the penalties stemming from the rules governing the liability of the administration laid down in the legislation at issue are such as to establish that that legislation is consistent with clause
5 of the Framework Agreement.
(c)    The selection procedures
(1)    Brief summary of case-law
131. As a reminder, in the judgment in Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid, the Court ruled that clause
5 of the Framework Agreement must be interpreted as precluding national legislation which provides for the organisation of procedures for the consolidation of temporary employment, by means of the publication of vacancy notices to fill the posts occupied by temporary workers, including non-permanent workers having contracts of indefinite duration, where that organisation is independent of any consideration relating to the abusive nature of the use of those temporary contracts. (85)
132. In arriving at that conclusion, the Court made clear, in paragraphs 117 and 118 of that judgment, that although the organisation of selection procedures provides the opportunity to workers who have had successive fixed-term employment contracts or relationships of attempting to gain access to stable employment, since those workers could, in principle, participate in those procedures, such a circumstance cannot relieve the Member States of their need to comply with the obligation to provide adequate measures to punish duly the abusive use of successive fixed-term employment contracts and relationships. Indeed, such procedures, the outcome of which is moreover uncertain, are in general also accessible to candidates who have not been victims of such abuse. The Court therefore added that since such procedures are organised irrespective of any consideration as to the abusive use of fixed-term contracts, it does not appear to be an appropriate means of duly penalising the improper use of such relationships and of nullifying the consequences of the breach of EU law. It therefore does not appear to allow the purpose of clause 5 of the Framework Agreement to be fulfilled.
(2)    Assessment
133. In the present case, it is apparent from the order for reference that various rules on the stabilisation or the consolidation of temporary employment have been adopted over recent years, one of the objectives of which was to put right the situations resulting from the abuse of fixed-term contracts. More specifically, the referring court explains that Law 20/2021, which provides for a stabilisation process for public employment, introduced into Spanish law specific legislative measures so that, inter alia, selection procedures are not organised irrespective of any consideration as to the abusive use of successive fixed-term contracts. Within the framework of those measures, the legislature assigns decisive weight to the previous experience and to the length of service spent by the temporary workers concerned performing their tasks. In the referring court’s view, this provides adequate compensation for the abuse, whilst facilitating their ultimate access to the post as a ‘permanent worker’. (86)
134. In that context, at least two questions arise: is it possible to regard a public administration’s mere compliance with its legal obligations to address structural staffing needs as an effective, dissuasive and proportionate measure? And does not the organisation of competitions in order to fill permanent posts, even in the context of a ‘process to stabilise employment’ as provided for in the legislation at issue, fall within the scope of a legal and desirable organisational requirement within the public sector?
135. To answer those questions, it is sufficient to state that, although the new legislative measures introduced by Law 20/2021, which provide for a process of stabilisation for public employment, do seek to prevent the abuse of successive fixed-term contracts, the fact is that, as the Court has already held, the mere obligation to organise selection procedures to fill definitively posts occupied temporarily by fixed-term workers as well as precise deadlines for that purpose do not make it possible to ensure that such procedures are actually organised. Such legislation does not appear to be capable of either preventing the abusive use of successive fixed-term employment relationships by the employer concerned or, as is important in the present case, of duly penalising the abusive use of such employment relationships and of nullifying the consequences of the infringement of EU law, since its application has no negative impact on that employer. (87)
136. In addition, I agree with the view expressed by the Commission at the hearing that the selection procedures at issue are envisaged by the legislature rather as a supplementary measure intended to rectify an existing case of abuse. (88)
137. In that connection, as regards the organisation of selection procedures as a punitive measure in accordance with clause
5 of the Framework Agreement, such as that applied by Spanish case-law or provided for in Article 2 of Law 20/2021, I note that the Court has stated that, although the organisation of selection procedures provides the opportunity to workers who have been abusively employed in the context of successive fixed-term employment relationships of attempting to gain access to stable employment, since those workers could, in principle, participate in those procedures, such a circumstance cannot relieve the Member States of their need to comply with the obligation to provide adequate measures duly to penalise the abusive use of those successive fixed-term employment contracts and relationships.
138. Such procedures, the outcome of which is, moreover, uncertain, are, in general, also accessible to candidates who have not been victims of such abuse. The Court has therefore held that the organisation of selection procedures, as provided for in national case-law or in Article 2 of Law 20/2021, subject to verification by the referring court, does not appear capable of duly penalising the improper use of successive fixed-term employment contracts or relationships and, therefore, of nullifying the consequences of the breach of EU law. (89)
139. It is true that the Spanish legislature’s attaching of decisive weight to the previous experience of the temporary workers concerned and to the time devoted by them to their tasks is capable of guaranteeing stable employment for the victims of the abusive use of fixed-term employment contracts. However, such a measure cannot be sufficient on its own where a breach of clause
5 of the Framework Agreement persists over a long period of time. (90) Nor can it suffice in a case where, although that measure does facilitate access to stable employment by attaching decisive weight to the previous experience of the temporary workers and to the length of time devoted by them, the worker concerned is not successful in the competition.
140. In the present case, it is apparent from the response by the Autonomous Community of Madrid to a question put by the Court at the hearing that TJ participated in one of those stabilisation procedures for public employment, at the end of which she obtained the post of civil servant and has held it since 25 April 2025. It is, however, for the referring court to assess whether such access to stable employment is capable of nullifying all the consequences of the abuse suffered by her.
III. Conclusion
141. In the light of the foregoing considerations, I propose that the Court should answer the questions referred by the Tribunal Supremo (Supreme Court, Spain) for a preliminary ruling as follows:
Clause
5 of the Framework Agreement on fixed-term work, concluded on 18 March 1999, which is 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,
must be interpreted as
not precluding national case-law, such as that at issue in the main proceedings, which, in order to guarantee constitutional principles, namely the principles of equality, merit, ability and non-discrimination, does not grant the status of ‘permanent contract workers’ in the public sector to non-permanent workers having contracts of indefinite duration, provided that the domestic law includes, in that sector, at least one other effective measure to prevent and, where appropriate, penalise the abuse of successive fixed-term contracts.
For a punitive measure to be effective, dissuasive and proportionate in order to ensure that the measures taken pursuant to clause 5 of that Framework Agreement are fully effective, it must provide, first, for a system which allows the harm suffered by the worker as a result of the abuse of successive fixed-term contracts to be made good in its entirety, taking into account in the calculation of the amount of compensation the seriousness of the breach, including its duration, and, second, a mechanism for the liability of the public administration responsible which is sufficiently specific, foreseeable and applicable, and which cannot be reduced to a mere abstract or purely theoretical possibility.
For a punitive measure that provides for the conversion of successive fixed-term contracts into an employment contract or relationship of indefinite duration to be regarded, in itself, as an effective, dissuasive and proportionate measure, it must take place within a reasonable period of time in order to ensure that the measures taken pursuant to clause
5 of the Framework Agreement are fully effective.
It will be for the referring court to assess whether, taking into account the foregoing criteria, the national legislation does indeed include effective, dissuasive and proportionate measures to penalise duly the abuse of successive fixed-term contracts.
1      Original language: French.
i      The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
2      Framework agreement concluded on 18 March 1999 (‘the Framework Agreement’), which is 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 (OJ 1999 L 175, p. 43).
3      See, inter alia, to that effect, judgments of 4 July 2006,
Adeneler and Others (C‑212/04, EU:C:2006:443, paragraph 63; ‘the judgment in Adeneler’); of 15 April 2008,
Impact
(C‑268/06, EU:C:2008:223, paragraph 88; ‘the judgment in Impact’), and of 23 April 2009, Angelidaki and Others (C‑378/07 to C‑380/07, EU:C:2009:250, paragraph 73; ‘the judgment in Angelidaki’).
4      Paragraph 6 of the general considerations in the Framework Agreement states that employment contracts of an indefinite duration are the general form of employment relationships and both contribute to the quality of life of the workers concerned and improve performance.
5      See judgment of 22 November 2005, Mangold (C‑144/04, EU:C:2005:709, paragraph 64).
6      At the time of drafting this Opinion, the Court has already delivered 43 judgments and orders concerning requests for a preliminary ruling for which Spanish was the language of the case, 11 of which gave rise to Advocate Generals’ Opinions.
7      See, inter alia, the judgments in Adeneler; in Angelidaki; of 10 March 2011, Deutsche Lufthansa (C‑109/09, EU:C:2011:129); of 19 March 2020, Sánchez Ruiz and Others (C‑103/18 and C‑429/18, EU:C:2020:219; ‘the judgment in Sánchez Ruiz’); of 11 February 2021, M.V. and Others (Successive fixed-term contracts in the public sector) (C‑760/18, EU:C:2021:113); of 3 June 2021, Instituto Madrileño de Investigación y Desarrollo Rural, Agrario y Alimentario (C‑726/19, EU:C:2021:439; ‘the judgment in Instituto Madrileño’); of 24 June 2021, Obras y Servicios Públicos and Acciona Agua (C‑550/19, EU:C:2021:514); and of 13 January 2022, MIUR and Ufficio Scolastico Regionale per la Campania (C‑282/19, EU:C:2022:3).
8      Judgment of 13 March 2014, Márquez Samohano (C‑190/13, EU:C:2014:146).
9      That same year, the European Commission initiated infringement proceedings under Article 258 TFEU against the Kingdom of Spain for incorrect transposition of Directive 1999/70 (INFR(2014)4334). Those proceedings, which remain ongoing, are proof, in that institution’s view, of the complexity and the scale of the issue.
10      Judgment of 22 February 2024 (C‑59/22, C‑110/22 and C‑159/22; ‘the judgment in Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid’).
11      Judgment of
13 June 2024 (C‑331/22 and
C‑332/22;
‘the judgment in
DG de la Función Pública, Generalitat de Catalunya and Departamento de Justicia’).
12      BOE No 255
of
24 October 2015, p. 100224.
13      BOE No 261 of
31 October 2015, p. 103105.
14      BOE No 161 of 7 July 2021, p. 80375.
15      BOE No 312 of
29 December 2021, ‘Law 20/2021’.
16      BOE No 153 of
28 June 2017, p. 53787.
17      BOE No 161 of
4 July 2018, p. 66621.
18      It is apparent from the hearing that, while the first contract on the basis of which TJ was recruited by the Autonomous Community of Madrid was a contract for a member of the contract staff, the last post she occupied corresponded to an interim civil servant post intended to cover a vacant post (plaza de interinidad por cobertura de vacante). See, in that regard, footnote 80
to this Opinion.
19      See, to that effect, the judgment in Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid (paragraph 127 and the case-law cited). See, also, to that effect, judgments of 7 September 2006, Marrosu and Sardino (C‑53/04, EU:C:2006:517, paragraph 49; ‘the judgment in Marrosu and Sardino’); and of 7 March 2018, Santoro (C‑494/16, EU:C:2018:166, paragraph 34; ‘the judgment in Santoro’).
20      See, inter alia, the judgments in
Adeneler (paragraph 62); of
3 July 2014, Fiamingo and Others (C‑362/13, C‑363/13 and
C‑407/13, EU:C:2014:2044, paragraph 55; ‘the judgment in Fiamingo’); 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, paragraph 73; ‘the judgment in Mascolo’); of
14 September 2016, Pérez López (C‑16/15, EU:C:2016:679, paragraph 27); and in
Sánchez Ruiz
(paragraph 54).
21      See, inter alia, to that effect, the judgments in
Adeneler (paragraph 63); of
13 September 2007, Del Cerro Alonso (C‑307/05, EU:C:2007:509, paragraph 26
and the case-law cited); and in
DG de la Función Pública, Generalitat de Catalunya and Departamento de Justicia de la Generalitat de Catalunya (paragraphs 44
and 45 and the case-law cited).
22      On this case-law principle and its origin, see points 55 to
64 of this Opinion.
23      The three measures listed in clause
5(a) to (c) of the Framework Agreement relate, respectively, to objective reasons justifying the renewal of such employment contracts or relationships, the maximum total duration of such successive employment contracts or relationships and the number of renewals of such contracts or relationships. See, inter alia, the judgment in Mascolo (paragraph 74
and the case-law cited).
24      See, inter alia, the judgments in
Impact (paragraph 70
and the case-law cited); Mascolo (paragraphs 75
and 76); Santoro (paragraphs 27
and 28);
and DG de la Función Pública, Generalitat de Catalunya and Departamento de Justicia de la Generalitat de Catalunya (paragraphs 46
and 48 and the case-law cited). Emphasis added.
25      See point 45 of this Opinion.
26      See Opinion of Advocate General
Poiares Maduro in
Marrosu and Sardino (C‑53/04, EU:C:2005:569, points 29
and 30).
27      See, inter alia, to that effect, the judgments in
Adeneler (paragraph 91); of
7 September 2006, Vassallo (C‑180/04, EU:C:2006:518, paragraph 42; ‘the judgment in Vassallo’); and
in Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid (paragraph 124). I note that, in its case-law, the Court uses the term ‘punitive measure’ in the broad sense, thus covering both the punitive (the penalty stricto sensu) and the compensatory nature (the nullification of the consequences of the abuse) of the measure for which the Member States must provide pursuant to Directive 1999/70. See, in that regard, my considerations in points 61 and
62 of this Opinion.
28      Provision for such a requirement was, however, made by the EU legislature in other directives in the field of social law. See, inter alia, Article 15 of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22): ‘…
the sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive’. See also Article 20
of Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1042/2012 on administrative cooperation through the Internal Market Information System (‘the IMI Regulation’) (OJ 2014 L 159, p. 11): ‘…
The penalties provided for shall be effective, proportionate and dissuasive’.
29      See, to that effect, the judgments in
Adeneler (paragraph 94); Marrosu and Sardino (paragraph 51); Vassallo (paragraph 36); Sánchez Ruiz
(paragraph 88); and
Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid
(paragraph 103).
30      See the judgment in
DG de la Función Pública, Generalitat de Catalunya and Departamento de Justicia de la Generalitat de Catalunya (paragraph 71
and the case-law cited).
31      See point 55 of this Opinion. Emphasis added.
32      See the judgment in Adeneler (paragraph 93
and the case-law cited). This general aspect of the case-law was subsequently reflected, in the specific context of clause
5(1) of the Framework Agreement, in the – more precise – wording that that provision assigns to the Member States the general objective of preventing abuse, while leaving to them the choice as to how to achieve it, as recalled in the last sentence of point 53 of this Opinion.
33      See, inter alia, the judgments in
Fiamingo (paragraph 62) and
Mascolo (paragraph 78).
34      See, inter alia, the judgments in
Fiamingo (paragraph 64); Mascolo (paragraph 79); and
DG de la Función Pública, Generalitat de Catalunya and Departamento de Justicia de la Generalitat de Catalunya (paragraph 69
and the case-law cited).
35      See the judgments in Adeneler (paragraph 102); in Vassallo (paragraph 38); and in
Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid (paragraph 104). Emphasis added.
36      See, to that effect, the judgment in
Angelidaki (paragraphs 160
to 166).
37      Although the term ‘sanction’ has several accepted meanings in the French language, it is even clearer from the English-language version of that paragraph of the case-law that the Court does indeed distinguish between two different conditions ‘in order duly to punish that abuse and nullify the consequences of the breach of EU law’, which confirms that measures both of a punitive nature and of a compensatory nature are covered. That is also the case in the German-language version (‘um diesen Missbrauch angemessen zu ahnden und die Folgen des Verstoßes gegen das Unionsrecht zu beseitigen’); the Lithuanian-language version (‘siekiant tinkamai nubausti už šį piktnaudžiavimą ir pašalinti Sąjungos teisės pažeidimo pasekmes’); the Polish-language version (‘by zastosować odpowiednią sankcję i usunąć konsekwencje naruszenia prawa Unii’); and the Spanish-language version (‘con objeto de sancionar debidamente dicho abuso y eliminar las consecuencias de la infracción del Derecho de la Unión’). Emphasis added.
38      A measure intended to punish abuse may not be a suitable means of actually nullifying its consequences, and vice versa. Hence the importance of examining the national measures in their entirety.
39      See, to that effect, the judgment in Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid
(paragraph 80).
40      As the Court has recalled on many occasions, the concept of ‘successive fixed-term employment relationships’ must not be interpreted restrictively in order to avoid the insecure employment of workers over a period of years. A restrictive interpretation would in fact be liable to prevent, in reality, a large number of fixed-term employment relationships from qualifying for the protection of workers sought by Directive 1999/70 and the Framework Agreement, thus causing the objective pursued to lose a large part of its substance. See, to that effect, the case-law cited in point 98 of this Opinion.
41      See, to that effect, the judgment in Santoro (paragraph 54).
42      See the judgment in
DG de la Función Pública, Generalitat de Catalunya and Departamento de Justicia de la Generalitat de Catalunya (paragraphs 82 and 83 and the case-law cited).
43      See, by analogy, judgment of
2 August 1993,
Marshall  (C‑271/91, EU:C:1993:335, paragraph 32).
44      See footnote 45 to this Opinion.
45      In particular in cases where the improper use of successive fixed-term contracts has persisted for a period of 10, 20 or even 30 years.
46      See, by analogy, judgment of
2 August 1993, Marshall
(C‑271/91, EU:C:1993:335, paragraphs 31
and 32).
47      Paragraph 50
of that judgment.
48      See, inter alia, the judgment in
Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid (paragraph 128
and the case-law cited).
49      In particular, the Commission observed at the hearing that this is the case in the private sector, referring to the time limit laid down in Article 15(5) of the Workers’ Statute. See, in that regard, point 12 of this Opinion.
50      With regard to the selection procedures in question, which are envisaged as measures intended to allow the worker to access stable employment, see point 131 et seq. of this Opinion.
51      In that regard, TJ refers to Article 10(2) and Article 61(4) of the EBEP, in the version applicable to the facts of the main proceedings.
52      See points 23 and 44 of this Opinion.
53      See the judgment in
Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid
(paragraphs 66
and 82 and points 1 and 2 of the operative part).
54      See footnote 53 to this Opinion.
55      See points 29 and
30 of this Opinion. Emphasis added.
56      See points 50 to
54 of this Opinion.
57      Emphasis added.
58      That being said, the question arises as to whether compliance with those principles should be assessed on a case-by-case basis. It is apparent from the hearing that TJ had been hired as part of a regulatory selection procedure laid down in Spanish law to recruit contract staff, during which the principles of equality, merit and ability could have been observed. That is a matter for the referring court to assess.
59      See, to that effect, the judgments in Adeneler (paragraph 105); in
Marrosu and Sardino (paragraph 49); in Santoro (paragraph 34); of
7 April 2022, Ministero della Giustizia and Others (Status of Italian magistrates) (C‑236/20, EU:C:2022:263, paragraph 62); and in
Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid (paragraph 127). See also points 43 and
52 of this Opinion.
60      According to the Commission, the apparent contradiction identified by the referring court in the present case appears to arise from the fact that, whereas referring courts with jurisdiction in social matters, which are the only ones that may have recourse to the concept of a ‘worker having a non-permanent contract of indefinite duration’, regarded that concept as an insufficient measure (see the judgment in Sánchez Ruiz
(paragraph 102) and order of 11 December 2014, León Medialdea (C‑86/14 EU:C:2014:2447, paragraph 51)), referring courts with jurisdiction in matters of administrative litigation appeared to regard that concept as constituting, at the very least, some degree of improvement in the situation of workers subject to administrative law and sought a way of transposing it into that law (see judgments of 14 September 2016, Martínez Andrés and Castrejana López (C‑184/15 and C‑197/15, EU:C:2016:680), and in Instituto Madrileño (paragraphs 72 and 73)).
61      See point 30 and the case-law cited in points 85, 90 and 96 of this Opinion. See also the judgment in Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid (paragraph 78).
62      In particular, it should be recalled that, in the joined cases that gave rise to the judgment in Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid (paragraph 77), no selection procedure had been held since the beginning of the non-permanent employment relationship of indefinite duration. In Case C‑59/22 that situation had lasted for 27 years, and in Case C‑110/22 the applicant in the main proceedings had had a non-permanent contract of indefinite duration with the administration concerned for 20 years.
63      Paragraphs 52
to 54, 65, 66, 73 and 91 of that judgment.
64      See point 50 and the case-law cited in footnote 20 to this Opinion.
65      See, to that effect, the judgments in
Sánchez Ruiz (paragraph 61);
Instituto Madrileño (paragraph 35); and
Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid
(paragraph 78).
66      See, to that effect, the judgments in
Adeneler (paragraph 85);
Sánchez Ruiz (paragraphs 62 and 63);
Instituto Madrileño (paragraphs 36
and 37); and
Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid
(paragraphs 79
and 80).
67      See, inter alia, the judgment in Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid (paragraphs 90 and 92 and the case-law cited).
68      Paragraphs 105
to 107 of that judgment.
69      Paragraphs 79, 80 and 84 of that judgment.
70      See, inter alia, judgments of
21 November 2018, de Diego Porras (C‑619/17, EU:C:2018:936, paragraphs 94
and 95), and in Instituto Madrileño (paragraphs 74
and 75).
71      Paragraph 81
of that judgment.
72      See the judgment in Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid (paragraph 108). See, also, the judgment in
DG de la Función Pública, Generalitat de Catalunya and Departamento de Justicia de la Generalitat de Catalunya (paragraphs 80 and 81).
73      See points 59 to
80 of this Opinion.
74      At the hearing, it was observed that that compensation corresponds to the compensation provided for in the Workers’ Statute in the event of the termination of a contract on objective grounds.
See, inter alia, judgment of 21 November 2018 in de Diego Porras  (C‑619/17, EU:C:2018:936, paragraph 17).
75      See the judgment in DG de la Función Pública, Generalitat de Catalunya and Departamento de Justicia de la Generalitat de Catalunya (paragraph 81).
76      See the third subparagraph of Article 2(6) of Law
20/2021 cited in point 20 of this Opinion.
77      See
point 73
of this Opinion.
78      Paragraph 112
of that judgment.
79      Paragraph 52
of that judgment.
80      For the sake of clarity, I note that Article 10 of the EBEP, the wording of which is not even reproduced in the request for a preliminary ruling, concerns, unless I am mistaken, interim civil servants (funcionarios interinos) and not members of the contract staff (personal laboral), the latter being covered by Article 11 of the EBEP. The question therefore arises as to whether those rules governing liabilities in the case of interim civil servants, as set out by the referring court in the context of Article 10 of the EBEP, also apply to members of contract staff, such as TJ, in the context of Article 11 of the EBEP. That is a matter for the referring court to determine. In any event, I consider it relevant to note that, in reply to a question from the Court, the Autonomous Community of Madrid clarified that, when TJ applied for a declaration before the court of first instance, she held an interim civil servant post intended to cover a vacant post (plaza de interinidad por cobertura de vacante). See, in that regard, footnote 18 to this Opinion.
81      According to the Spanish government, Article 95(2)(d) of the EBEP stipulates that ‘the adoption of manifestly unlawful agreements causing serious harm to the administration or to citizens’ constitutes ‘very serious disciplinary misconduct’.
82      In particular, according to the Spanish Government, Article 7(1)(h) of Real Decreto 33/1986 por el que se aprueba el Reglamento de Régimen Disciplinario de los Funcionarios de la Administración del Estado (Royal Decree 33/1986 approving the regulation on the disciplinary rules for civil servants within national government) of 10 January 1986 (BOE No 15 of 17 January 2017, p. 2377) classifies ‘serious misconduct’ as ‘the issuing of manifestly unlawful reports or the adoption of manifestly unlawful agreements causing harm to the administration or to citizens and not constituting a very serious breach’.
83      It follows from the written observations that Article 7(2) of the texto refundido de la Ley sobre Infracciones y Sanciones en el Orden Social (consolidated text of the Law on infringements and penalties in social matters), approved by Real Decreto Legislativo 5/2000 (Royal Legislative Decree 5/2000) of
4 August
2000 (BOE No 189 of
8 August 2000, p. 15060), stipulates that the following constitutes
a serious breach: ‘the infringement of the rules on contractual arrangements and fixed-term and temporary contracts by using them contrary to the law or in respect of persons, purposes, situations and time limits other than those laid down by law or regulation or by collective agreement where such matters may be determined by collective bargaining. To that end, an infringement shall be deemed to have occurred in respect of each worker concerned.’
84      Those figures were provided by the Spanish Government at the hearing in reply to a question from the Court.
85      Paragraph 121
of that judgment.
86      See point 20 of this Opinion.
87      See, to that effect, the judgment in
Sánchez Ruiz
(paragraph 97).
88      In that regard, it is apparent from the Spanish Government’s reply to a question put by the Court at the hearing that three extraordinary stabilisation procedures have already been implemented. According to that government, under the last stabilisation procedure provided for in Law 20/2021, 544 151 temporary posts requiring stabilisation were identified, of which 365 714 have already been stabilised.
89      See the judgment in DG de la Función Pública, Generalitat de Catalunya and
Departamento de Justicia de la Generalitat de Catalunya (paragraph 77).
90      See
point 77
of this Opinion.