12.12.2022
EN
Official Journal of the European Union
C 472/27
whether the application of that case-law of the CJEU and of the Community principle of equivalence imposes an obligation to convert temporary public employees who have been victims of abuse into permanent or career public employees, making them subject to the same grounds for dismissal and termination of the employment relationship as those that apply to the latter, in so far as, in the private sector, Article 15 of the Regulatory Code for Workers lays down an obligation to convert into permanent staff temporary workers who, over a period of 30 months, have accrued more than 24 months’ continuous service for the same employer, and in so far as Article [87(5)] of Law 40/2015 [of 1 October 2015] on [the legal framework governing] the public sector, as amended by Law 11/2020 on the general State budget for 2021, operates, pursuant to national law, to allow private-sector workers of undertakings and entities that move across to the public sector to perform the same duties as career civil servants, with the right to remain in post until the end of their working lives, thus making them subject to the same grounds for termination of employment as the latter.
FOURTH – Given that the conditions relating to termination of the employment relationship and the requirements for terminating an employment contract form part of the ‘employment conditions’ set out in clause 4 of the framework agreement, according to the judgments of the CJEU of 13 March 2014 in Case C[-]38/13, (6) Nierodzik, paragraphs 27 and 29, and of 14 September 2016 in Case C-596[/14], (7) Ana de Diego Porras, paragraphs 30 and 31),
[the referring court] seeks from the CJEU, in the event that the answer to the previous question is in the negative, a ruling as to whether stabilising the employment of temporary public-sector staff who have been victims of abuse by applying to them the same grounds for termination of employment and dismissal as apply to comparable career civil servants or permanent employees, without granting them that status, is a measure which the national authorities have an obligation to discharge pursuant to clauses 4 and 5 of the framework agreement annexed to Directive 1999/70 and the principle that national law must be interpreted in conformity with EU law, since the national legislation prohibits only staff who do not fulfil certain requirements from acquiring permanent or career employee status, and stabilising the employment of such staff in the manner described does not entail the grant of that status.
FIFTH.- In so far as Article 15 of the Regulatory Code for Workers lays down a maximum period of duration for temporary contracts of two years, it being understood that, on the expiry of that period, the need met is no longer temporary or exceptional but routine and regular, in which event employers in the private sector are obliged to make the temporary relationship indefinite, and, in so far as, in the public sector, Article 10 of the Estatuto Básico del Empleado Público (Basic Regulatory Code for Public Employees) (EBEP) lays down the obligation to include vacant posts occupied by interim/temporary staff in the list of public-sector vacancies for the year of appointment and, if this is not possible, that is to say within the maximum period of two years, in the list for the following year, with a view to ensuring that the post is filled by a permanent or career civil servant,
the referring court wishes to ascertain] whether it must be concluded that the abuse consisting in the conclusion of successive temporary contracts in the public sector arises as soon as the employer administration fails to fill a post occupied by a temporary public employee with a permanent or career employee within the time limits laid down in the Spanish legislation, that is to say by including that post in a list of public-sector vacancies within a maximum period of two years as from the appointment of the interim/temporary employee, thereby entering into an obligation to terminate the latter’s employment by filling the public-sector vacancy within the maximum period of three years laid down in Article 70 of the EBEP.
SIXTH.- [The referring court wishes to ascertain] whether Spanish Law 20/2021 of 28 December 2021 infringes the Community principles of legality and the non-retroactivity of penalties contained in, inter alia, Article 49 of the Charter of Fundamental Rights of the EU, inasmuch as it provides, as a penalty for abuse in connection with temporary employment, for selection procedures which are triggered even if the actions or omissions constituting the infringement — and, therefore, the abuse — and the reporting thereof took place and were committed prior to — years before — the enactment of Law 20/2021[.]
SEVENTH.- [The referring court wishes to ascertain] whether Law 20/2021, in providing as a punitive measure for the issue of notices of competition for selection procedures and compensation available only to victims of abuse who are unsuccessful in such a procedure, infringes clause 5 of the framework agreement and Directive 1999/70/EC, since it prescribes no penalties for abuse arising in respect of temporary public employees who have been successful in such selection procedures, notwithstanding that a penalty must always be provided for and the successful completion of such a selection procedure is not a punitive measure which fulfils the requirements of the Directive, as the CJEU states its order of 2 June 2021 in Case C-103/2019.
(8)