Case C-59/22: Request for a preliminary ruling from the Tribunal Superior de Justicia de Madrid (Spain) lodged on 27 January 2022 — MP v Consejería de Presidencia
Date: 2022-01-27
Institutions: Court of Justice
Subjects: Spain, full-time employment, indemnification, labour law, national law, public sector, recruitment, temporary employment, work contract








C_2022359EN.01001402.xml










19.9.2022   


EN


Official Journal of the European Union


C 359/14






Request for a preliminary ruling from the Tribunal Superior de Justicia de Madrid (Spain) lodged on 27 January 2022 — MP v Consejería de Presidencia
(Case C-59/22)
(2022/C 359/18)
Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Madrid

Parties to the main proceedings


Applicant: MP

Defendant: Consejería de Presidencia

Questions referred







A)


For the purposes of clause 2 of the agreement annexed to Council Directive 1999/70/EC (1) of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must a worker with a ‘non-permanent contract of indefinite duration’, as described in this order, be regarded as a ‘worker with a fixed-term contract’ and is such a worker included in the scope of the framework agreement and, in particular, clause 5 thereof?










B)


If the first question is answered in the affirmative, for the purposes of the application of clause 5 of the Framework Agreement annexed to Directive 1999/70/EC, must it be considered that there has been ‘successive use’ of temporary contracts or successive renewals in the case of a worker having a non-permanent contract of indefinite duration with an administrative authority, where that contract does not set a term and the duration of the contract is instead subject to the publication of a vacancy notice and the filling of the post, which would lead to termination of the contract, where that vacancy notice was not published between the start date of the employment relationship and the first half of 2021?










C)


Is clause 5 of [the agreement annexed to] Council Directive 1999/70/EC … to be interpreted as precluding an interpretation of Article 15(5) of the Estatuto de los Trabajadores (Workers Statute) (the aim of which is to comply with the directive and which therefore provides for a maximum duration of 24 months for all of a worker’s successive temporary contracts combined during a reference period of 30 months) in accordance with which periods worked as a non-permanent worker with a contract of indefinite duration are not counted, in view of the fact that, in that case, for the purposes of such a contract, there is no limitation applicable to its duration, number, reasons for renewal or the use of further, successive contracts?










D)


Does clause 5 of the agreement annexed to Council Directive 1999/70/EC … preclude national legislation which does not establish any limitation (in terms of either number, duration or reasons) on express or tacit renewals of a particular temporary contract, like the non-permanent contract of indefinite duration in the public sector, and merely sets a limit for successive terms of that contract through the use of further temporary contracts?










E)


Since no provision limiting express or tacit renewals of the contracts of non-permanent workers engaged on an indefinite basis has been enacted by the Spanish legislature, is the situation of a public sector worker, like the worker in these proceedings, who has a non-permanent contract of indefinite duration the envisaged duration of which has never been expressed or specified and which has been extended until 2021 without any selection process having been launched to fill her post and bring the situation of temporary employment to an end, to be regarded as an infringement of clause 5 of the agreement annexed to Directive 1999/70/EC?










F)


Can the national legislation be considered to include measures that are a sufficient deterrent in respect of the use of successive contracts or renewals of temporary contracts contrary to clause 5 of the Framework Agreement, which fulfil the conditions established by the case-law of the CJEU in its judgments of 7 March 2018 in Case C-494/16, (2)
Santoro, and of 8 May 2019 in Case C-494/17, (3)
Rossato, in relation to compensation for the harm suffered by a worker by means of restitutio in integrum, when it provides solely for limited and objective compensation (20 days’ salary for each year worked, up to a limit of one year’s pay) but no provision exists for additional compensation to compensate in full for the harm caused if it exceeds that amount?










G)


Can the national legislation be considered to include measures that are a sufficient deterrent in respect of the use of successive contracts or renewals of temporary contracts contrary to clause 5 of the Framework Agreement, which fulfil the conditions established by the case-law of the CJEU in its judgments of 7 March 2018 in Case C-494/16, Santoro, and of 8 May 2019 in Case C-494/17, Rossato, in relation to compensation for the harm suffered by a worker, when it provides only for compensation that becomes due at the time when the contract is terminated because the post has been filled but which does not provide for any compensation while the contract is in force as an alternative to a declaration that the contract is of indefinite duration? In a dispute in which the only issue is whether the worker has permanent status, but the contract has not been terminated, is it necessary to award compensation for harm suffered as a result of the temporary nature of the contract as an alternative to a declaration of permanent status?










H)


Can the national legislation be considered to include measures that are a sufficient deterrent against public administrative authorities and public sector bodies in respect of the use of successive contracts or renewals of temporary contracts contrary to clause 5 of the Framework Agreement, which are aimed at ‘preventing and penalising the misuse of contracts of indefinite duration’ by an employer in relation to other and future workers, which fulfil the conditions established by the case-law of the CJEU in its judgments of 7 March 2018 in Case C-494/16, Santoro, and of 8 May 2019 in Case C-494/17, Rossato, where those measures consist of legal provisions introduced with effect from 2017 (34th additional provision of Law 3/2017 on General State Budgets for 2017 (Ley 3/2017 de Presupuestos Generales del Estado para el año 2017) of 27 June 2017; 43rd additional provision of Law 6/2018 on General State Budgets for 2018 (Ley 6/2018 de Presupuestos Generales del Estado para el año 2018) of 3 July 2018; and Royal Decree-Law 14/2021 (Real Decreto-ley 14/2021) of 6 July 2021) which state that liability will be established for ‘unlawful actions’ without specifying that liability other than by a general reference to legislation which does not specify [it] and without any specific instance of the establishment of liability existing in the context of thousands of judgments which have ruled that workers have non-permanent contracts of indefinite duration on the ground of non-compliance with the provisions on temporary contracts?










I)


If those measures are considered to be a sufficient deterrent, given that they were introduced for the first time in 2017, can those measures be applied to prevent the conversion of contracts into contracts of indefinite duration where the conditions for such a conversion on the grounds of infringement of clause 5 of the Framework Agreement occurred at an earlier point in time or, on the other hand, would that constitute a retroactive and expropriatory application of those measures?










J)


If the view is taken that no measures exist that are a sufficient deterrent in Spanish law, must the consequence of the infringement of clause 5 of the Framework Agreement annexed to Directive 1999/70/EC by a public employer be that the contract is treated as a non-permanent contract of indefinite duration or must the worker be recognised as having fully permanent status?










K)


Is the conversion of the contract into a permanent contract under the Framework Agreement annexed to Directive 1999/70/EC and the case-law of the CJEU interpreting that directive required even if it is considered to be contrary to Articles 23(2) and 103(3) of the Spanish Constitution, where those constitutional provisions are interpreted as meaning that access to all public sector employment, including where engagement is under an employment contract, may occur only after a candidate has passed a competitive selection procedure in which the principles of equality, merit, ability and publicity are applied?










L)


Must the conversion of the specific worker’s contract into a permanent contract be set aside where, by means of a Law, notice is published of a procedure for the consolidation of temporary employment, with the publication of a vacancy notice for the post occupied by the worker, bearing in mind that that procedure must guarantee ‘compliance with the principles of free competition, equality, merit, ability and publicity’ and that therefore the worker in respect of whom successive contracts or temporary renewals have been used may not consolidate his or her post because it is awarded to another person, in which case that worker’s contract will be terminated with compensation calculated at the rate of 20 days’ salary for each year worked, up to a limit of one year’s pay?










M)


Even if he or she is not dismissed, is the worker entitled to compensation equal to or greater than that amount, to be determined by the courts if it is not quantified in law, for the use of successive contracts or the renewal of his or her contract contrary to clause 5?










N)


Is all of the foregoing affected in any way, and if so how, by the fact that the employment relationship at issue is a seasonal relationship of indefinite duration, where that relationship has been reflected in cascading temporary contracts, season after season, as stated in the worker’s appeal?’






(1)  OJ 1999 L 175, p. 43.

(2)  EU:C:2018:166.

(3)  EU:C:2019:387.