Provisional text
JUDGMENT OF THE COURT (Grand Chamber)
14 April 2026 (*)
( Reference for a preliminary ruling – Social policy – Directive 1999/70/EC – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Fixed-term employment contracts in the public sector – Clause 5 – Measures to prevent and penalise the abuse of successive fixed-term employment contracts or relationships – Conversion of successive fixed-term contracts into a contract of indefinite duration – National legislation not permitting such conversion, but laying down other measures to prevent and penalise such abuse – Effective, dissuasive and proportionate penalty measures )
In Case C‑418/24 [Obadal], (i)
REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Supremo (Supreme Court, Spain), made by decision of 30 April 2024, received at the Court on 12 June 2024, in the proceedings
TJ
v
Comunidad de Madrid,
intervener:
Ministerio Fiscal,
THE COURT (Grand Chamber),
composed of K. Lenaerts, President, T. von Danwitz, Vice-President, F. Biltgen, K. Jürimäe and M.L. Arastey Sahún, Presidents of Chambers, S. Rodin, E. Regan, N. Piçarra, A. Kumin (Rapporteur), D. Gratsias, M. Gavalec, Z. Csehi, S. Gervasoni, N. Fenger and R. Frendo, Judges,
Advocate General: R. Norkus,
Registrar: R. Stefanova-Kamisheva, Administrator,
having regard to the written procedure and further to the hearing on 24 June 2025,
after considering the observations submitted on behalf of:
–        TJ, by J. Salvador Rebolleda and M.Á. Santalices Romero, abogados,
–        the Comunidad de Madrid, by A. Caro Sánchez, letrado,
–        the Ministerio Fiscal, by E. Carrascoso López and L.M. López Sanz-Aránguez, acting as Agents,
–        the Spanish Government, by A. Gavela Llopis and A. Pérez-Zurita Gutiérrez, acting as Agents,
–        the Italian Government, by S. Fiorentino, acting as Agent, and by L. Fiandaca, avvocato dello Stato,
–        the European Commission, by I. Galindo Martín, D. Recchia and N. Ruiz García, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 9 October 2025,
gives the following
Judgment
1        This request for a preliminary ruling concerns the interpretation of clause 5 of the framework agreement on fixed-term work concluded on 18 March 1999 (‘the framework agreement’), annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43).
2        The request has been made in proceedings between TJ and the Comunidad de Madrid (Autonomous Community of Madrid, Spain) concerning the classification of the employment relationship between TJ and that public administration.
Legal context
European Union law
Directive 1999/70
3        The first paragraph of Article 2 of Directive 1999/70 provides:
‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive [and are] required to take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by this Directive. …’
The framework agreement
4        According to the second paragraph of the preamble to the framework agreement:
‘The parties to this agreement recognise that contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers. They also recognise that fixed-term employment contracts respond, in certain circumstances, to the needs of both employers and workers.’
5        Paragraphs 6 and 8 of the general considerations of the framework agreement are worded as follows:
‘6.      Whereas employment contracts of an indefinite duration are the general form of employment relationships and contribute to the quality of life of the workers concerned and improve performance;
…
8.      Whereas fixed-term employment contracts are a feature of employment in certain sectors, occupations and activities which can suit both employers and workers’.
6        Clause 5 of the framework agreement, entitled ‘Measures to prevent abuse’, provides:
‘1.      To prevent abuse arising from the use of successive fixed-term employment contracts or relationships, Member States, after consultation with social partners in accordance with national law, collective agreements or practice, and/or the social partners, shall, where there are no equivalent legal measures to prevent abuse, introduce in a manner which takes account of the needs of specific sectors and/or categories of workers, one or more of the following measures:
(a)      objective reasons justifying the renewal of such contracts or relationships;
(b)      the maximum total duration of successive fixed-term employment contracts or relationships;
(c)      the number of renewals of such contracts or relationships.
2.      Member States after consultation with the social partners and/or the social partners shall, where appropriate, determine under what conditions fixed-term employment contracts or relationships:
(a)      shall be regarded as “successive”
(b)      shall be deemed to be contracts or relationships of indefinite duration.’
Spanish law
The Constitution
7        Article 23(2) of the Constitución española (Spanish Constitution; ‘the Constitution’) provides that citizens ‘shall have the right to access on equal terms public office, in accordance with the requirements determined by law’.
8        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.
The Workers’ Statute
9        Article 15(3) of the Ley del Estatuto de los Trabajadores (Law on the Workers’ Statute), in the version resulting from Real Decreto Legislativo 2/2015, por el que se aprueba el texto refundido de la Ley del Estatuto de los Trabajadores (Royal Legislative Decree 2/2015 approving the consolidated text of the Law on the Workers’ Statute) of 23 October 2015 (BOE No 255 of 24 October 2015, p. 100224), 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 shall be deemed to be concluded for an indefinite period’.
10      Article 15(5) of the Workers’ Statute provides:
‘Without prejudice to the provisions of paragraph 1(a) and paragraphs 2 and 3 of this article, 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 under two or more fixed-term 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. …’
11      Additional Provision Fifteen of the Workers’ Statute, which concerns ‘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 passed the corresponding selection procedure’.
The EBEP
12      Real Decreto Legislativo 5/2015, por el que se aprueba el texto refundido de la Ley del Estatuto Básico del Empleado Público (Royal Legislative Decree 5/2015 approving the consolidated text of the Law on the basic regulations relating to public servants) of 30 October 2015 (BOE No 261 of 31 October 2015, p. 103105), in the version applicable to the facts of the main proceedings (‘the EBEP’), was amended, inter alia, 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 (BOE No 312 of 29 December 2021; ‘Law 20/2021’).
13      Article 8 of the EBEP provides:
‘1.      Public servants are persons who carry out duties for remuneration in public administrations in the 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.’
14      Under 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 administrations. Depending on its duration, the contract may be permanent, for an indefinite duration or for a fixed-term.
…
3.      The selection procedures for members of the contract staff shall be public and shall be governed in all cases by the principles of equality, merit and ability. In the case of fixed-term contract staff, those procedures shall also be governed by the principle of speed, on expressly justified grounds of necessity and urgency.’
15      Article 55(1) of the EBEP provides:
‘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.’
16      Article 70 of the EBEP 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 staffing 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.
…’
17      A new Additional Provision Seventeen was inserted into the EBEP by Article 1(3) of Law 20/2021. Under Additional Provision Seventeen:
‘1.      The public administrations shall be responsible for compliance with the provisions set out in these regulations and, in particular, shall ensure that there is no unlawfulness in the recruitment of fixed-term contract staff or in the appointment of interim civil servants.
…
2.      Unlawful actions committed in that area shall give rise to the corresponding 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 fixed-term contract staff, shall be automatically void.
…
5.      In the case of fixed-term 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 12 months’ salary, and the compensation which the staff member would be entitled to receive for the termination of his or her contract, periods of less than one 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 comes to an end on the ground of disciplinary dismissal that is found to be justified or by voluntary termination.’
Law 20/2021
18      Article 2 of Law 20/2021, entitled ‘Stabilisation processes for fixed-term employment’, provides:
‘1.      In addition to 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 (BOE No 153 of 28 June 2017, p. 53787)] and 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 (BOE No 161 of 4 July 2018, p. 66621)], this Law authorises an additional stabilisation rate for fixed-term employment, 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.
…
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.
…
6.      Interim civil servants or fixed-term contract staff, while in service in that capacity, whose employment relationship with the administration is terminated due to their being unsuccessful in the stabilisation selection procedure, shall be entitled to financial compensation equivalent to 20 days’ fixed remuneration for each year of service, periods of less than one year being calculated pro rata on a monthly basis, up to a maximum of 12 months’ salary.
For fixed-term contract staff, that compensation shall equate to the difference between the maximum of 20 days’ fixed remuneration for each year of service, up to a maximum of 12 months’ salary, and the compensation to which the worker would be 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. If that compensation is awarded by judicial means, the amounts shall be offset.
A candidate’s failure to participate in the stabilisation selection procedure shall not in any way entitle him or her to any financial compensation.
…’
The dispute in the main proceedings and the questions referred for a preliminary ruling
19      TJ has performed childcare duties at a public educational establishment as a member of the contract staff since 2 March 2016. The basis of her employment relationship was six successive fixed-term contracts, all of which were intended to cover a vacant post or to replace a worker. The last of those contracts was concluded on 8 September 2017.
20      On 19 July 2021, TJ brought an action before the Juzgado de lo Social no 13 de Madrid (Social Court No 13, Madrid, Spain) seeking to have her employment relationship declared permanent or, in the alternative, non-permanent but of indefinite duration.
21      By judgment of 13 March 2023, that court upheld TJ’s action in part, classifying her 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 her, in accordance with Spanish law.
22      By judgment of 27 November 2023, the Sala de lo Social del Tribunal Superior de Justicia de Madrid (Social Chamber of the High Court of Justice, Madrid, Spain) dismissed the appeal brought by TJ. She then brought an appeal before the Tribunal Supremo (Supreme Court, Spain), which is the referring court, claiming that her employment relationship should be classified as a ‘permanent employment relationship’.
23      The referring court states that the judgment of 22 February 2024, Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid and Others (C‑59/22, C‑110/22 and C‑159/22, EU:C:2024:149), in which the Court ruled, inter alia, on the obligations arising from clause 5 of the framework agreement, has been applied in an inconsistent manner by the Spanish courts hearing disputes, such as that at issue in the main proceedings, concerning the classification of an employment relationship in situations characterised by the abuse of successive fixed-term contracts.
24      The referring court – which, as is apparent from the request for a preliminary ruling, has jurisdiction to standardise the interpretation and application by all Spanish courts of existing provisions in the field of employment law – seeks guidance from the Court to enable it to determine, for the purpose of resolving the dispute in the main proceedings, whether the Spanish legislation at issue, as interpreted by the referring court’s case-law, is compatible with clause 5 of the framework agreement.
25      In that regard, first, the referring court explains that, under that legislation, the status of ‘permanent worker’ in the public sector can only be conferred on persons who have entered public employment after passing a selection procedure in accordance with the principles of equality, merit and ability, as laid down in the Constitution, and the principles of equality and non-discrimination, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union. Those principles, moreover, apply both to civil servants and to contract staff. In addition, conferral of the status of ‘permanent worker’ in the public sector in breach of those principles could result in nationals of other Member States being deprived of the possibility of entering public employment under the same conditions as those applicable to Spanish nationals, which would infringe the freedom of movement for workers, as enshrined in Article 45 TFEU.
26      By contrast, Spanish legislation classifies as a ‘non-permanent employment relationship of indefinite duration’, from the date on which the person concerned was first hired, the relationship between a public administration and a person who was recruited without a selection procedure and in respect of whom an abuse of successive fixed-term employment contracts had occurred.
27      Secondly, the referring court states that the legal effect of that classification is to preserve the contractual relationship until the post occupied by the person concerned is definitively filled by means of a selection procedure. Furthermore, non-permanent workers with an employment relationship of indefinite duration enjoy the same rights as permanent workers in all aspects of the employment relationship, such as remuneration and career advancement.
28      When that post is definitively filled by means of a selection procedure, the non-permanent employment relationship of indefinite duration ends, triggering the payment of compensation equal to 20 days’ remuneration for each year of service, up to a maximum of 12 months’ salary. The worker concerned is not entitled to that compensation if the use of successive fixed-term contracts was lawful and did not involve abuse, demonstrating that that compensation cannot be regarded as independent of any consideration relating to the lawful or abusive nature of the use of such contracts.
29      That said, the referring court points out that compensation of 20
days’ remuneration for each year of service, up to a maximum of 12 months’ salary, corresponds to the compensation payable under Spanish law in the event of termination of an employment contract on objective grounds deriving from business needs, which might preclude such compensation from being regarded as an appropriate measure to prevent and penalise abuse arising from the use of successive fixed-term contracts. In that scenario, the referring court enquires whether payment of the maximum statutory compensation provided for by Spanish law in the event of unfair dismissal, namely compensation equal to 33
days’ remuneration for each year of service, up to a maximum of 24 months’ salary, could constitute such an appropriate measure.
30      According to the referring court, the legal rules governing the concept of ‘non-permanent employment relationship of indefinite duration’, as described in paragraphs 26 to 28 above, which have been developed in its case-law, are consistent with clause 5 of the framework agreement since those legal rules lay down measures to penalise the abuse of successive fixed-term contracts.
31      That court also takes the view that Law 20/2021 contains other measures to prevent and penalise such abuse.
32      First, that law, which makes provision for a public employment stabilisation process, introduced specific measures into Spanish law to ensure 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 in respect of whom no such abuse has occurred, the legislature attaches decisive weight, within the framework of those procedures, to the previous experience of the fixed-term workers concerned and to the working time spent by them in performing their duties, which adequately compensates for the abuse of their contracts whilst facilitating definitive access for them to the post as a ‘permanent worker’.
33      Secondly, that law also inserted a new additional provision into the EBEP which establishes a system of rules governing the liability of public administrations in the event of non-compliance, in particular, with the provisions concerning the recruitment of fixed-term contract staff.
34      In those circumstances, the Tribunal Supremo (Supreme Court) 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, [in order to reconcile the freedom of movement for workers with observance of] the principles of equality, merit, ability and non-discrimination[, precludes conferring] 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?’
Procedure before the Court
35      The referring court requested that the Court deal with the present case under the expedited procedure provided for in Article 105 of the Rules of Procedure of the Court of Justice.
36      By order of 4 September 2024, Obadal (C‑418/24, EU:C:2024:717), the President of the Court refused that request. However, he took the view that the nature of the case and the significance of the questions which it raises justified the Court ruling on it as a matter of priority, pursuant to Article 53(3) of the Rules of Procedure.
37      On 8 January 2025, the Spanish Government, pursuant to the third paragraph of Article 16 of the Statute of the Court of Justice of the European Union, requested that the Court sit as the Grand Chamber.
Consideration of the questions referred
Preliminary observations
38      According to settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court should, where necessary, reformulate the questions referred to it. It is for the Court to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation, having regard to the subject matter of the dispute (see judgments of 29 November 1978, Redmond, 83/78, EU:C:1978:214, paragraph 26, and of 2 December 2025, Russmedia Digital and Inform Media Press, C‑492/23, EU:C:2025:935, paragraph 44).
39      In the present case, it is apparent from the documents before the Court that, due to the abuse of successive fixed-term contracts, the employment relationship between TJ and the Autonomous Community of Madrid was classified as a ‘non-permanent employment relationship of indefinite duration’. Against that background, the referring court’s questions seek to determine whether national legislation and national case-law on the concept of ‘non-permanent employment relationship of indefinite duration’ are compatible with the requirements deriving from clause 5 of the framework agreement, namely whether they contain appropriate measures to penalise abuse arising from the use of successive fixed-term employment contracts or relationships in the public sector.
40      In that regard, the referring court states that the national legislation at issue, as interpreted by national case-law, precludes the status of ‘permanent worker’ in the public sector from being conferred on workers, such as TJ, in respect of whom an abuse of successive fixed-term contracts has occurred. It considers, however, that that case-law is consistent with clause 5 of the framework agreement, given that the employment relationship of such a worker is classified as a ‘non-permanent employment relationship of indefinite duration’ and that such a classification is a measure making it possible to penalise that abuse. Furthermore, according to that court, the national legislation at issue contains other measures pursuing the same aim, in particular that consisting of paying, when that employment relationship comes to an end, compensation equal to 20 days’ remuneration for each year of service, up to a maximum of 12 months’ salary, or compensation equal to 33
days’ remuneration for each year of service, up to a maximum of 24 months’ salary. Those other measures also include the measures laid down in Law 20/2021, namely the establishment of a system of rules governing the liability of public administrations and the organisation of selection procedures.
41      The referring court states, however, that in the light of, first, the answers given by the Court to the questions submitted in the case which gave rise to the judgment of 22 February 2024, Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid and Others (C‑59/22, C‑110/22 and C‑159/22, EU:C:2024:149), and, secondly, the inconsistent application of that judgment by the Spanish courts hearing disputes concerning the classification of an employment relationship in cases of abuse of successive fixed-term contracts in the public sector, such as the dispute in the main proceedings, doubts remain as to whether the set of measures referred to in the preceding paragraph are compatible with clause 5 of the framework agreement.
42      In those circumstances, the Court finds that, by its questions, which should be examined together, the referring court is essentially asking whether clause 5 of the framework agreement must be interpreted, first, as precluding national legislation, as interpreted by national case-law, which provides, as a measure to penalise abuse arising from the use of successive fixed-term contracts, for the conversion of those contracts into a ‘non-permanent employment relationship of indefinite duration’ and, secondly, as meaning that a set of measures consisting of the payment of flat-rate compensation, subject to a double ceiling, upon termination of that employment relationship, a system of rules governing the liability of public administrations and the organisation of selection procedures constitute appropriate measures to prevent and penalise such abuse.
43      It follows from settled case-law that clause 5(1) of the framework agreement assigns to the Member States the general objective of preventing abuse arising from the use of successive fixed-term contracts or relationships, 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 (see, to that effect, judgments of 15 April 2008, Impact, C‑268/06, EU:C:2008:223, paragraph 70, and of 4 September 2025, Pelavi, C‑253/24, EU:C:2025:660, paragraph 51 and the case-law cited).
44      As the Court has made clear, the framework agreement does not lay down a general obligation requiring the Member States to provide for the conversion of fixed-term employment contracts into contracts of indefinite duration. Indeed, clause 5(2) of the framework agreement in principle leaves it to the Member States to determine the conditions under which fixed-term employment contracts or relationships are to be regarded as contracts or relationships of indefinite duration. It follows that the framework agreement does not specify the conditions under which contracts of indefinite duration may be used (judgments of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraphs 81 and 91, and of 4 September 2025, Pelavi, C‑253/24, EU:C:2025:660, paragraph 56).
45      Nor does clause 5 of the framework agreement lay down any specific penalties where instances of abuse have been established. In that case, it is for 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 provisions adopted pursuant to the framework agreement are fully effective, thus ensuring the effectiveness of that framework agreement (judgments of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraphs 93 and 94, and of 13 January 2022, MIUR and Ufficio Scolastico Regionale per la Campania, C‑282/19, EU:C:2022:3, paragraph 81 and the case-law cited).
46      Where the abuse of successive fixed-term employment contracts or relationships has occurred, a measure offering effective and equivalent safeguards for the protection of workers must be capable of being applied in order duly to penalise that misuse and to nullify the consequences of the breach of EU law. According to the very wording of the first paragraph of Article 2 of Directive 1999/70, Member States must ‘take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by [that] Directive’ (judgments of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 102, and of 13 January 2022, MIUR and Ufficio Scolastico Regionale per la Campania, C‑282/19, EU:C:2022:3, paragraph 84 and the case-law cited).
47      It is apparent from the case-law of the Court that, if national legislation – as the case may be as interpreted by national case-law – which, in the public sector, prohibits a succession of fixed-term contracts from being converted into an employment contract of indefinite duration, is 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 relevant, penalise the misuse of successive fixed-term contracts (judgments of 7 September 2006, Marrosu and Sardino, C‑53/04, EU:C:2006:517, paragraph 49, and of 7 April 2022, Ministero della Giustizia and Others (Status of Italian magistrates), C‑236/20, EU:C:2022:263, paragraph 62 and the case-law cited).
48      In that connection, it should be borne in mind that it is not for the Court to give a ruling 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 and whether the effectiveness of that clause is guaranteed by national legislation, as interpreted by the national courts (see, to that effect, judgment of 13 January 2022, MIUR and Ufficio Scolastico Regionale per la Campania, C‑282/19, EU:C:2022:3, paragraph 86 and the case-law cited).
49      It will therefore be for the referring court to assess to what extent the conditions for application and the actual implementation of the national provisions at issue in the main proceedings render the latter appropriate measures, namely measures that are effective, dissuasive and proportionate, in order duly to penalise the abuse of successive fixed-term employment contracts or relationships and to nullify the consequences of the breach of EU law (see, to that effect, judgment of 13 January 2022, MIUR and Ufficio Scolastico Regionale per la Campania, C‑282/19, EU:C:2022:3, paragraph 87 and the case-law cited).
50      However, the Court, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give the referring court guidance in its assessment (judgment of 13 January 2022, MIUR and Ufficio Scolastico Regionale per la Campania, C‑282/19, EU:C:2022:3, paragraph 88 and the case-law cited).
The conversion of successive fixed-term contracts into a ‘non-permanent employment relationship of indefinite duration’
51      It is apparent from the order for reference that, where a Spanish public administration has engaged in an abuse of successive fixed-term contracts, the national court hearing the dispute between the worker concerned and that administration will classify those contracts as a ‘non-permanent employment relationship of indefinite duration’, as a measure to penalise such abuse. Such a classification of the employment relationship between the parties concerned produces effects from the date on which the worker was first hired and can be made only by means of a judicial decision.
52      The referring court notes that the concept of ‘permanent employment relationship of indefinite duration’ was established by way of judicial decision given that it is impossible, under national law, to confer the status of ‘permanent contract workers’ on workers in respect of whom an abuse of successive fixed-term contracts has occurred, since those workers have not taken up public employment following a selection procedure in accordance with the principles of equality, merit and ability, as enshrined in national law, in particular in the Constitution.
53      The legal effect of classification as a ‘non-permanent employment relationship of indefinite duration’ is that the last fixed-term contract concluded by the worker and the public administration concerned cannot be terminated, with the result that the contractual relationship between the interested parties is preserved until the post occupied by the worker concerned is definitively filled by means of a selection procedure. Therefore, as the referring court essentially states, the contractual relationship comes to an end upon the occurrence of a given event, namely the completion of a selection procedure.
54      Thus, a worker whose employment relationship has been classified as a ‘non-permanent employment relationship of indefinite duration’ must be regarded as a ‘fixed-term worker’ within the meaning of the framework agreement (see, to that effect, judgment of 22 February 2024, Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid and Others, C‑59/22, C‑110/22 and C‑159/22, EU:C:2024:149, paragraph 66) and, therefore, the relationship between that worker and the public administration concerned continues to be a fixed-term employment relationship within the meaning of that framework agreement.
55      The Court has also ruled that clause 5 of the framework agreement should be interpreted as meaning that the expression ‘use of successive fixed-term employment contracts or relationships’ in that clause 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 with a contract of indefinite duration, that worker’s fixed-term employment contract with that administration was automatically extended (judgment of 22 February 2024, Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid and Others, C‑59/22, C‑110/22 and C‑159/22, EU:C:2024:149, paragraph 82).
56      It follows that the conversion of successive fixed-term contracts into a ‘non-permanent employment relationship of indefinite duration’ does not prevent the abuse of such contracts from continuing, since the contractual relationship between the parties concerned remains temporary in nature and thus perpetuates the insecurity of the worker concerned.
57      In that regard, it should be borne in mind that the purpose of clause 5 of the framework agreement is to implement one of the objectives pursued by that agreement, namely to place limits on the use of successive fixed-term employment contracts or relationships, regarded as a potential source of abuse to the detriment of workers, by laying down as a minimum a number of protective provisions designed to prevent the status of employees from being insecure (see, to that effect, judgment of 19 March 2020, Sánchez Ruiz and Others, C‑103/18 and C‑429/18, EU:C:2020:219, paragraph 53 and the case-law cited).
58      As is apparent from the second paragraph of the preamble to the framework agreement and from paragraphs 6 and 8 of its general considerations, 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 can respond to the needs of both employers and workers (judgment of 19 March 2020, Sánchez Ruiz and Others, C‑103/18 and C‑429/18, EU:C:2020:219, paragraph 54 and the case-law cited).
59      In those circumstances, a national measure adopted by means of a judicial decision, which, in order to penalise the abuse of a succession of fixed-term contracts, converts those contracts into an employment relationship of a temporary nature, such as the ‘non-permanent employment relationship of indefinite duration’, cannot be considered to be a measure making it possible duly to penalise such abuse and to nullify the consequences of the breach of EU law, in accordance with the requirements set out in paragraphs 45 and 46 above. Such a measure perpetuates the insecurity of the worker concerned and, therefore, undermines the effectiveness of the framework agreement.
60      As the Advocate General observed, in essence, in point 97 of his Opinion, even on the assumption that, in the present case, as the referring court states, non-permanent staff with a contract of indefinite duration enjoy rights which are equivalent to those of permanent staff, in particular as regards remuneration and career advancement, such equivalence does not however allow non-permanent staff with a contract of indefinite duration to benefit, like permanent staff do, from stable employment which, as recalled in paragraph 58 above, was conceived as a major element in the protection of workers by the framework agreement.
61      It follows from the foregoing considerations that clause 5 of the framework agreement must be interpreted as precluding national legislation, as interpreted by national case-law, which provides, as a measure to penalise abuse arising from the use of successive fixed-term contracts, within the meaning of that clause, for the conversion of those contracts into a ‘non-permanent employment relationship of indefinite duration’, given that that measure, in so far as it effectively preserves an employment relationship of a temporary nature and thus perpetuates the insecurity of the worker concerned, does not make it possible duly to penalise such abuse or to nullify the consequences of the breach of EU law.
The payment of compensation
62      It is apparent from the order for reference that, under Spanish law, flat-rate compensation equal to 20
days’ remuneration for each year of service, up to a maximum of 12 months’ salary, is payable to a non-permanent worker with a contract of indefinite duration upon the termination of his or her employment relationship on account of another person being recruited to the post in question, following a selection procedure, which presupposes either that that worker participated in the selection procedure and was unsuccessful, or that he or she did not participate in that procedure.
63      The referring court states that the worker concerned is entitled to that compensation only if he or she has a non-permanent employment relationship of indefinite duration with the administration, the classification of which is the result of the unlawful and abusive use by that authority of successive fixed-term contracts. Therefore, according to the referring court, that compensation cannot be regarded as independent of any consideration relating to the lawful or abusive nature of the use of such contracts. Consequently, the compensation in question constitutes a measure making it possible to prevent and penalise the abuse of successive fixed-term contracts.
64      The referring court nonetheless points out that compensation of 20
days’ remuneration for each year of service, up to a maximum of 12 months’ salary, corresponds to the compensation payable under Spanish law in the event of termination of an employment contract on objective grounds deriving from business needs, which might preclude such compensation from being regarded as an appropriate measure to prevent and penalise abuse arising from such use. In such a situation, that court enquires whether payment of the maximum statutory compensation provided for by Spanish law in the event of unfair dismissal, namely compensation equal to 33
days’ remuneration for each year of service, up to a maximum of 24 months’ salary, could constitute an appropriate measure.
65      It is true, as the referring court observes, that the flat-rate compensation paid in the event of termination of a non-permanent employment relationship of indefinite duration presupposes that an abusive and unlawful use of successive fixed-term contracts occurred in respect of the worker concerned.
66      However, the fact remains that it is flat-rate compensation which is paid to the worker concerned only upon the termination of that employment relationship on account of another person being recruited to the post previously occupied by that worker.
67      It must also be stated that, where financial compensation is the measure chosen by a Member State to prevent and penalise the abuse of successive fixed-term contracts, under clause 5 of the framework agreement, that State is required to make good in its entirety the damage suffered by the worker in respect of whom such abuse occurred. In that regard, the Court has held that the principle that the damage suffered must be made good in its entirety and the principle of proportionality require Member States to provide for adequate compensation, which is more than a purely nominal amount, but not more than is necessary to make good the damage in its entirety (judgment of 8 May 2019, Rossato and Conservatorio di Musica F.A. Bonporti, C‑494/17, EU:C:2019:387, paragraphs 42 and 43 and the case-law cited).
68      In order to determine how much compensation should be awarded in order to make good the damage suffered as a result of the abuse of successive fixed-term contracts, it is necessary, in principle, to take into account all the circumstances of the case, in particular the nature of the duties performed by the worker concerned and the number and cumulative duration of the contracts at issue. The amount of compensation should also be assessed having regard to the financial benefits to which the person concerned would have been entitled had it not been for the abuse and the damage suffered as a result of the situation of uncertainty in which he or she found himself or herself.
69      While it is open to the Member States – which are responsible for taking proportionate, effective and dissuasive measures to ensure the full effectiveness of the provisions adopted pursuant to the framework agreement – to devise rules on penalties and on compensation in the form of flat-rate payments, it is also necessary that those rules be capable not only of ensuring adequate compensation for the damage suffered as a result of the abuse of successive fixed-term contracts, but also of penalising the infringements found to an appropriate degree.
70      In the present case, the flat-rate compensation payable to a non-permanent worker with a contract of indefinite duration upon termination of his or her employment relationship is subject to a double ceiling, namely the limit of 20
days’ remuneration for each year of service and the cap at 12
months’ salary. Accordingly, such compensation cannot constitute either proportionate and effective compensation for instances of abuse that exceed a certain duration in terms of years or adequate and full compensation for the damage resulting from such abuse (see, to that effect, judgment of 13 June 2024, DG de la Función Pública, Generalitat de Catalunya and Departamento de Justicia de la Generalitat de Catalunya, C‑331/22 and C‑332/22, EU:C:2024:496, paragraph 81). The same is true of the compensation corresponding to 33
days’ remuneration for each year of service, up to a maximum of 24 months’ salary, payable in the event of unfair dismissal, which the referring court considers to be capable of preventing and penalising abuse arising from the use of successive fixed-term contracts, since that compensation is also subject to a double ceiling.
71      Furthermore, as the Advocate General observed, in essence, in points 111 and 117 of his Opinion, since such compensation is paid only upon termination of the employment relationship owing to the completion of a selection procedure, such payment does not appear to be capable of effectively remedying all cases of abuse, as workers who retire, resign or are dismissed before the end of the selection procedure seemingly do not qualify for it.
72      It follows that such compensation does not appear to be such as to nullify, in all situations of abuse of successive fixed-term contracts, the consequences of the breach of EU law, contrary to the requirements referred to in paragraphs 45 and 46 above.
73      It follows from the foregoing that clause 5 of the framework agreement must be interpreted as meaning that the payment of flat-rate compensation, subject to a double ceiling, upon termination of the employment relationship of a worker whose employer has engaged in an abuse of successive fixed-term contracts, does not constitute an appropriate measure to prevent and penalise abuse arising from the use of those contracts, within the meaning of that clause, where that compensation does not make it possible duly to penalise such abuse or to nullify the consequences of the breach of EU law.
The system of rules governing the liability of public administrations
74      The referring court states that Law 20/2021, in order to provide for effective measures to prevent and penalise the abuse of successive fixed-term contracts, inserted, inter alia, a new additional provision into the EBEP, namely Additional Provision Seventeen, which establishes a system of rules governing the liability of public administrations in the event of non-compliance, in particular, with the provisions concerning the recruitment of fixed-term contract staff. Under that new additional provision, ‘the public administrations shall be responsible for compliance with the provisions set out in [the EBEP] and, in particular, shall ensure that there is no unlawfulness in the recruitment of fixed-term contract staff or in the appointment of interim civil servants’. That new additional provision also provides that ‘unlawful actions committed in that area shall give rise to the corresponding liability in accordance with the regulations in force in each of the public administrations’.
75      In that regard, it should be noted that, in its judgment of 7 March 2018, Santoro (C‑494/16, EU:C:2018:166), the Court held that a national system of rules governing the liability of public authorities – provided that it is accompanied by other effective and dissuasive measures to prevent and penalise the abuse of successive fixed-term contracts – is capable, subject to verification by the national court, of ensuring that the provisions adopted pursuant to the framework agreement are fully effective.
76      In that judgment, the Court based its assessment on national provisions under which public authorities are required to recover from the managers responsible the sums paid to workers as compensation for the harm suffered as a result of the infringement of the provisions concerning recruitment or employment, where that infringement is intentional or the result of gross negligence. In the case which gave rise to that judgment, it was also apparent from the documents before the Court that such an infringement was, in addition, taken into account for the purpose of appraising the work of those managers, who could not, due to that breach, be awarded a performance bonus. Moreover, the national law at issue in that case provided that public authorities which have acted in breach of the provisions concerning recruitment or employment cannot proceed with recruitments, for any reason whatsoever, during the three years following that breach (see judgment of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 52).
77      As the Advocate General observed, in essence, in points 78 and 79 of his Opinion, a national mechanism under which staff members of the public administration may be held individually liable is capable of constituting a measure which duly penalises the abuse of successive fixed-term contracts, provided that that mechanism is accompanied by other effective, dissuasive and proportionate measures enabling the consequences of the breach of EU law to be nullified. In that regard, such a mechanism cannot be reduced to a mere abstract or purely theoretical possibility, but must, in particular, be based on specific national provisions, be foreseeable and be applicable in practice. If that is the case, then national law provides for penalty measures offering effective and equivalent safeguards for the protection of workers, as required by EU law, in accordance with the case-law cited in paragraph 46 of the present judgment.
78      The Court has held, in a case involving similar national provisions, or, as the Autonomous Community of Madrid observed at the hearing, involving provisions identical to those at issue in the main proceedings, that the wording of the provisions at issue appeared to contain such a level of ambiguity and of abstraction that they were not comparable to the national provisions governing the Italian mechanism for the liability of administrative authorities, to which the Court referred in its judgment of 7 March 2018, Santoro (C‑494/16, EU:C:2018:166) (see judgment of 22 February 2024, Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid and Others, C‑59/22, C‑110/22 and C‑159/22, EU:C:2024:149, paragraph 113).
79      That being so, it will be for the referring court to ascertain, first, whether the system of rules governing the liability of public administrations laid down in Spanish law is based on national provisions that are specific, foreseeable and applicable in practice, with the result that it constitutes a measure making it possible duly to penalise the public administration concerned, and, secondly, whether that system is accompanied by other effective, dissuasive and proportionate measures enabling the consequences of the breach of EU law to be nullified.
80      It follows from the foregoing considerations that clause 5 of the framework agreement must be interpreted as meaning that a system of rules governing the liability of public administrations does not constitute an appropriate measure to prevent and penalise abuse arising from the use of successive fixed-term contracts, within the meaning of that clause, where that system, first, having regard to its ambiguous, abstract and unforeseeable nature, does not make it possible duly to penalise such abuse and, secondly, is not accompanied by other effective, dissuasive and proportionate measures enabling the consequences of the breach of EU law to be nullified.
The selection procedures
81      As mentioned in paragraph 32 above, according to the referring court, Law 20/2021, which makes provision for a public employment stabilisation process, introduced specific measures into Spanish law to ensure 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 in respect of whom no such abuse has occurred, the legislature attaches decisive weight, within the framework of those procedures, to the previous experience of the fixed-term workers concerned and to the working time spent by them in performing their duties, which adequately compensates for the abuse of their contracts whilst facilitating definitive access for them to the post in question as a ‘permanent worker’.
82      In that connection, it should be pointed out that, in a case concerning the compatibility of selection procedures, provided for in Article 2 of Law 20/2021, with clause 5 of the framework agreement, the Court recalled that the organisation and closure of selection procedures afford workers who have been abusively appointed under successive fixed-term employment contracts or relationships an opportunity to seek access to stable employment, since those workers could, in principle, participate in those procedures (see, to that effect, judgment of 13 June 2024, DG de la Función Pública, Generalitat de Catalunya and Departamento de Justicia de la Generalitat de Catalunya, C‑331/22 and C‑332/22, EU:C:2024:496, paragraph 75 and the case-law cited).
83      Furthermore, the fact that the Spanish legislature, in the context of such procedures, attaches decisive weight to the previous experience of those workers, in respect of whom an abuse of successive fixed-term contracts has occurred, and to the working time spent by them in performing their duties, appears capable of promoting those workers’ access to stable employment, provided that they decide to participate in the selection procedure and that their applications are successful.
84      However, it follows from the case-law of the Court that such circumstances are not sufficient for a finding that the organisation and closure of selection procedures, such as those provided for in Law 20/2021, make it possible duly to penalise the abuse of successive fixed-term contracts and to nullify the consequences of the breach of EU law (see, to that effect, judgment of 13 June 2024, DG de la Función Pública, Generalitat de Catalunya and Departamento de Justicia de la Generalitat de Catalunya, C‑331/22 and C‑332/22, EU:C:2024:496, paragraphs 75, 76 and 78 and the case-law cited).
85      In a situation in which the worker concerned does not participate in such a selection procedure or in which his or her application is not successful, the organisation of that procedure does not make it possible either duly to penalise the abuse in respect of that worker or to nullify the consequences of the breach of EU law.
86      Furthermore, subject to verification by the referring court, the taking into account of the previous experience of the fixed-term workers concerned and the working time spent by them in performing their duties does not appear to be limited solely to workers in respect of whom an abuse of successive fixed-term contracts has occurred, but benefits all fixed-term workers with such experience, including those in respect of whom no such abuse has occurred. Consequently, the taking into account of that experience and working time spent cannot be regarded as intended to penalise such abuse or to nullify the consequences of the ensuing breach of EU law.
87      Therefore, the view must be taken that clause 5 of the framework agreement must be interpreted as meaning that the organisation of selection procedures which, while taking account of the previous experience of the workers concerned and the working time spent by them in performing their duties, do not limit that taking into account to candidates in respect of whom an abuse of successive fixed-term contracts has occurred, does not constitute an appropriate measure to prevent and penalise abuse arising from the use of those contracts, within the meaning of that clause, where that measure does not make it possible duly to penalise such abuse or to nullify the consequences of the breach of EU law.
88      It follows from all of the foregoing considerations that clause 5 of the framework directive must be interpreted:
–         as precluding national legislation, as interpreted by national case-law, which provides, as a measure to penalise abuse arising from the use of successive fixed-term contracts, within the meaning of that clause, for the conversion of those contracts into a ‘non-permanent employment relationship of indefinite duration’, given that that measure, in so far as it effectively preserves an employment relationship of a temporary nature and thus perpetuates the insecurity of the worker concerned, does not make it possible duly to penalise such abuse or to nullify the consequences of the breach of EU law; and
–        as meaning that a set of measures consisting of, first, the payment of flat-rate compensation, subject to a double ceiling, upon termination of that employment relationship, secondly, a system of rules governing the liability of public administrations that is ambiguous, abstract and unforeseeable in nature, and, thirdly, the organisation of selection procedures which, while taking account of the previous experience of the workers concerned and the working time spent by them in performing their duties, do not limit that taking into account to candidates in respect of whom abuse has occurred, do not constitute appropriate measures to prevent and penalise that abuse, where those measures do not make it possible duly to penalise such abuse or to nullify the consequences of the breach of EU law.
Costs
89      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Grand Chamber) hereby rules:
Clause 5 of the framework agreement on fixed-term work concluded on 18 March 1999, 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 precluding national legislation, as interpreted by national case-law, which provides, as a measure to penalise abuse arising from the use of successive fixed-term contracts, within the meaning of that clause, for the conversion of those contracts into a ‘non-permanent employment relationship of indefinite duration’, given that that measure, in so far as it effectively preserves an employment relationship of a temporary nature and thus perpetuates the insecurity of the worker concerned, does not make it possible duly to penalise such abuse or to nullify the consequences of the breach of EU law; and
–        as meaning that a set of measures consisting of, first, the payment of flat-rate compensation, subject to a double ceiling, upon termination of that employment relationship, secondly, a system of rules governing the liability of public administrations that is ambiguous, abstract and unforeseeable in nature, and, thirdly, the organisation of selection procedures which, while taking account of the previous experience of the workers concerned and the working time spent by them in performing their duties, do not limit that taking into account to candidates in respect of whom abuse has occurred, do not constitute appropriate measures to prevent and penalise that abuse, where those measures do not make it possible duly to penalise such abuse or to nullify the consequences of the breach of EU law.
[Signatures]
*      Language of the case: Spanish.
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.