C 472/26
EN
Official Journal of the European Union
12.12.2022
Request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo n.o 17 de Barcelona (Spain) lodged on 19 May 2022 — HM, VD v Generalitat de Catalunya (Case C-332/22) (2022/C 472/31) Language of the case: Spanish Referring court Juzgado de lo Contencioso-Administrativo n.o 17 de Barcelona
Parties to the main proceedings Applicants: HM, VD Defendant: Generalitat de Catalunya
Questions referred FIRST.- [The referring court wishes to ascertain] whether the measures endorsed in Spanish Supreme Court judgments Nos 1425/2018 and 1426/2018 of 26 September 2018, which express a position — still maintained today (30 November 2021) — the effect of which is to keep a public employee who has been a victim of [the] abuse [of successive fixed-term contracts] in the same abusive situation of insecure employment until such time as the employer administration determines whether there is a structural need [for the post in question to be made permanent] and issues a notice of competition for the relevant selection procedure with a view to filling the post with a permanent or career public employee, are measures which fulfil the requirements governing the prescription of penalties laid down in clause 5 of the framework agreement annexed to Directive 1999/70; (1) or whether, conversely, those measures have the effect of perpetuating insecurity and the lack of protection until such time as the employer administration decides at random, with a view to filling a post with a permanent employee, to issue a notice of competition for a selection procedure the outcome of which is uncertain inasmuch as such procedures are also open to candidates who have not been victims of such abuse, and are measures which cannot be construed as dissuasive punitive measures for the purposes of clause 5 of the framework agreement and do not guarantee that the objectives they pursue will be attained.
SECOND.- Where a national court, pursuant to its obligation to penalise the abuse established in any event (the penalty is ‘essential’ and ‘immediate’), arrives at the conclusion that the principle that national law must be interpreted in conformity with EU law makes it impossible for it to give effect to the Directive without adopting a contra legem interpretation of domestic law, precisely because the domestic law of the Member State in question has not introduced any punitive measures in order to give effect to clause 5 of the framework agreement in the public sector, must it apply the findings contained in the judgment of 17 April 2018 in Egenberger, (2) or in the judgment (of the Grand Chamber) of 15 April 2008 in Case No C-268/2006, (3) to the effect that Articles 21 and 47 of the Charter of [Fundamental] Rights of the European Union allow any provisions of domestic law that make it impossible to give full effect to Directive 1999/1970/EC to be excluded, even if they have constitutional status?
Does it therefore have a duty to convert an abusive temporary relationship into a permanent relationship identical to and on a par with that of comparable permanent employees, thus giving stability of employment to the victim of the abuse, in order to ensure that such abuse does not go unpunished and the objectives and effectiveness of clause 5 of the agreement are not undermined, even if such a conversion is prohibited by domestic legislation and the case-law of the Spanish Supreme Court, or might be contrary to the Spanish Constitution?
THIRD.- [The referring court wishes to ascertain] whether, given that the CJEU held in its judgments of 25 October 2018 in Case C-331/17, (4) and of 13 January 2022 in Case C-[2]82/19, (5) that clause 5 of the framework agreement precludes national legislation which excludes certain public employees from the application of provisions that penalise the abusive use of successive fixed-term contracts, if the domestic legal system contains no other effective measure for penalising such an abusive measure, and, given that Spanish law does not contain any measure for penalising abuse in the public sector that is applicable to the temporary staff who have brought this action,