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(References for a preliminary ruling – Social policy – Directive 1999/70/EC – Framework Agreement, concluded by ETUC, UNICE and CEEP regarding fixed-term work – Clause 5 – Concept of ‘successive fixed-term employment contracts or relationships’ – Failure by the employer to respect the relevant legal deadline for definitively filling posts temporarily occupied by fixed-term workers – Implicit extension of the employment relationship from year to year – Occupation by a fixed-term worker of the same post in the context of two consecutive appointments – Concept of ‘objective reasons’ justifying the renewal of successive fixed-term employment contracts or relationships – Respect for the reasons for recruitment provided for by the national legislation – Concrete examination finding that the successive renewal of fixed-term employment relationships seeks to cover the employer’s permanent and regular staffing needs – Measures seeking to prevent and, where appropriate, to punish abuses resulting from the use of successive fixed-term employment contracts or relationships – Selection procedures seeking to definitively fill posts occupied temporarily by fixed-term workers – Conversion of the situation of fixed-term workers into ‘non-permanent workers of indefinite duration’ – Grant to the worker of compensation equal to that paid in the event of unfair dismissal – Applicability of the Framework Agreement despite the fact that the worker consented to successive renewals of fixed-term contracts – Clause 5(1) – Absence of obligation for national courts to disapply inconsistent national legislation)
In Joined Cases C‑103/18 and C‑429/18,
TWO REQUESTS for a preliminary ruling under Article 267 TFEU from the Juzgado Contencioso-Administrativo No 8 de Madrid (Administrative Court No 8, Madrid, Spain) and the Juzgado Contencioso-Administrativo No 14 de Madrid (Administrative Court No 14, Madrid, Spain), by decisions of 30 January and 8 June 2018, received at the Court, respectively, on 13 February and 28 June 2018, in the proceedings
Domingo Sánchez Ruiz (C‑103/18),
Berta Fernández Álvarez and Others (C‑429/18)
THE COURT (Second Chamber),
composed of A. Arabadjiev (Rapporteur), President of the Chamber, P.G. Xuereb, T. von Danwitz, N. Piçarra and A. Kumin, Judges,
Advocate General : J. Kokott,
Registrar: L. Carrasco Marco, administratrice,
having regard to the written procedure and further to the hearing on 15 May 2019,
after considering the observations submitted on behalf of:
–Sánchez Ruiz, by J.M. Ruiz de la Cuesta Vacas, procurador de los Tribunales, and F.J. Araúz de Robles Dávila, abogado,
–Fernández Álvarez and Others, by F.J. Araúz de Robles Dávila, abogado,
–the Comunidad de Madrid (Servicio Madrileño de Salud), by L.J. García Redondo and A. Serrano Patiño, letrados,
–the Spanish Government, initially by S. Jiménez García and A. Gavela Llopis, and subsequently by S. Jiménez García, acting as Agents,
–the European Commission, by N. Ruiz García, M. van Beek and J. Rius, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 17 October 2019,
gives the following
1These requests for a preliminary ruling concern the interpretation of the first paragraph of Article 2 of 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) and of Clause 5 of the Framework Agreement on fixed-term work concluded on 18 March 1999 (‘the Framework Agreement’), which is annexed to that directive.
2The requests have been made in two sets of proceedings between workers employed by the Comunidad de Madrid (Servicio Madrileño de Salud) (Community of Madrid (Madrid Health Service), Spain) (‘the Community of Madrid’), namely, in Case C‑103/18, Mr Domingo Sanchéz Ruiz and, in Case C‑429/18, Mrs Berta Fernández Álvarez and four other workers (‘Mrs Fernández Álvarez and Others’), on the one hand, and the Community of Madrid, on the other hand, concerning the recognition of those persons as members of the permanent regulated staff or, in the alternative, as public employees with a status similar to that staff, who are covered by the principles of permanence and security of employment.
3It follows from recital 17 of Directive 1999/70 that, ‘as regards terms used in the framework agreement but not specifically defined therein, this Directive allows Member States to define such terms in conformity with national law or practice as is the case for other Directives on social matters using similar terms, provided that the definitions in question respect the content of the framework agreement’.
4According to Article 1 of Directive 1999/70, the latter seeks ‘to put into effect the framework agreement … concluded … between the general cross-industry organisations [the European Trades Union Confederation (ETUC), the Union of Industrial and Employers’ Confederations (UNICE) and the European Centre of Enterprises with Public Participation (CEEP)] …’.
5The first paragraph of Article 2 of that directive provides: ‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive [and shall] take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by this Directive. …’
6According to Clause 1 of the Framework Agreement, the purpose thereof is, firstly, to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination and, secondly, to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.
1To 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.
2Member 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.’
8Article 8 of the Ley estatal 55/2003 del Estatuto Marco del personal estatutario de los servicios de salud (Law 55/2003 relating to the framework regulations for regulated staff of the health service) of 16 December 2003 (BOE No 301, of 17 December 2003, p. 44742), in the version applicable on the date of the facts in the main proceedings (‘the framework regulations’), defines ‘permanent regulated staff’ as ‘staff who, after having successfully completed the corresponding selection procedure, are appointed to carry out on a permanent basis the functions associated with that appointment’.
9Article 9 of the framework regulation provides: ‘1. On grounds of need, urgency or for the development of programmes of a temporary, auxiliary or extraordinary nature, the health services may appoint temporary regulated staff.
Temporary regulated staff may be appointed on an interim, occasional or replacement basis.
Appointment on an interim basis shall be made to cover a vacant post in the health-care institutions or services where it is necessary to ensure performance of the duties pertaining to that post.
The interim regulated staff member’s service shall be terminated if a permanent regulated staff member is appointed, through the procedure laid down in law or regulation, to the post occupied by that interim regulated staff member, or if that post is abolished.
(a)when it concerns the provision of certain services of a temporary, auxiliary or extraordinary nature;
(b)when it is necessary in order to ensure the permanent and continuous operation of the health-care institutions;
(c)for the provision of additional services in order to compensate for a reduction of normal working hours.
The occasional regulated staff member’s service shall be terminated when the purpose of the appointment has been accomplished, when the period expressly set out in his notice of appointment has expired, or when the duties for which the appointment was made are abolished.
If more than two appointments are made for the provision of the same services for a total period of 12 months or more in a period of two years, the reasons for this shall be examined in order to assess, if necessary, whether it is appropriate to create a permanent post in the healthcare institution concerned.
Appointment on an interim basis may be used where it is necessary in order to ensure performance of the duties of a permanent or temporary member of staff during holidays, leave periods and other absences of a temporary nature which involve the retention of the post.
The appointment of the interim regulated staff member shall terminate when the person being replaced returns to work, or when that person loses his right to return to the same post or function.’
10Article 10 of the 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 employees), of 30 October 2015 (BOE No 261 of 31 October 2015, p. 103105 (‘the basic regulations relating to public employees’) provides:
(a)the existence of vacant posts which cannot be occupied by established civil servants;
…
In the circumstances referred to in paragraph 1(a) of this article, vacant posts filled by interim civil servants shall be included on the list of vacancies for the year in which the appointments are made or, if that is not possible, for the following year, unless there is a decision to abolish the post.
…
The public administration may publish notices of competition with a view to consolidating employment in permanent posts within its various bodies or categories which have budgetary resources and were filled by interim civil servants or temporary staff before 1 January 2005.
…
The content of the tests is related to the procedures, tasks and usual functions of the posts subject to each notice of competition. At the competition stage, amongst the merits to be taken into consideration are the length of service within the public administration and experience in the posts subject to the notice of competition.
…
13On 2 November 1999, the Community of Madrid appointed Mr Sanchéz Ruiz as an interim regulated staff member in a post within the ‘Technical Administrative Staff’ category, to carry out an IT function within that community’s health service.
14Since that staff category was abolished as a result of a legal reform, his appointment was terminated on 28 December 2011. On that same date, Mr Sanchéz Ruiz was appointed as a member of the interim regulated staff in a post within a new category, ‘regulated information and communications technology staff’, but still with a view to carrying out IT functions within the same service. The interested party has never contested the termination of his first appointment or his second appointment.
15The notice of appointment of 2 November 1999 and that of 28 December 2011 stated that Mr Sanchéz Ruiz was employed as an interim regulated staff member so as to fill a vacant post, that the post would be filled until it is terminated or until he is reinstated as a permanent regulated staff member and that those appointments did not grant the interested person the right to tenured status in that post, regardless of the duration of that situation.
Throughout the entire duration of his employment by the Community of Madrid, Mr Sanchéz Ruiz occupied the same post and consistently and continuously performed the same duties. He did not participate in the sole competition organised in his field between 1999 and 2015 with a view to obtaining the status of permanent regulated staff.
On 21 December 2016, Mr Sanchéz Ruiz requested the Community of Madrid to recognise his status as permanent regulated staff member or, in the alternative, as a public employee with a similar status, to which the principles of permanence and security of employment apply, on the ground that he was a victim of abusive behaviour on the part of his employer, as a result of the latter’s use of successive fixed-term employment relationships, within the meaning of Clause 5(1) of the Framework Agreement.
The Community of Madrid rejected his request, concluding that such abuse presupposes the existence of successive fixed-term employment relationships and that, in Mr Sanchéz Ruiz’s case, there was a fixed-term employment relationship, since his second appointment took place as a result of a legal reform of staff categories. The Community of Madrid considered, moreover, that access to the status of permanent regulated staff member is in principle reserved to persons who have passed a selection procedure. It is therefore not possible under Spanish law that, outside of such a procedure, a temporary regulated staff member be appointed as a permanent regulated staff member. At the most, a temporary regulated staff member could be appointed as a ‘non-permanent worker of indefinite duration’ in a post until it is either terminated or attributed to a permanent regulated staff member. In addition, the Community of Madrid contended that Mr Sanchéz Ruiz could not validly allege abusive conduct on the part of his employer, since he has not contested the termination of his post, his appointment in a new post or the publication of the notice of competition.
Mr Sanchéz Ruiz brought an action before the referring court, the Juzgado Contencioso-Administrativo No 8 de Madrid (Administrative Court No 8, Madrid, Spain), contesting the decision to reject his request.
Since that court considers that Clause 5(1) of the Framework Agreement refers solely to the use of ‘successive’ fixed-term employment contracts or relationships, it questions, firstly, whether Mr Sanchéz Ruiz’s situation is characterised by the existence of a single fixed-term employment relationship or, as is claimed by the interested party before it, of two employment relationships of that type.
In that regard, the referring court states that the interested party was recruited for the reasons set out in Article 9(1) of the framework regulations, that his employer failed to comply with its obligations, resulting from Articles 10 and 70 of the basic regulations relating to public employees, to include the post occupied temporarily by Mr Sanchéz Ruiz in the list of vacancies for the year in which his appointment is made or for the following year or, in any event, at the latest in the following three years, which has the consequence that he has occupied that post temporarily for 17 years. It follows therefrom that Mr Sanchéz Ruiz’s employment relationship could be considered to have been implicitly extended from year to year, even if it had the appearance of a single employment relationship.
The referring court questions, secondly, whether the fact that Mr Sanchéz Ruiz agreed to that situation, in so far as he did not contest the unlawfulness of his second appointment or his situation more generally, is capable of validating the Community of Madrid’s conduct, in the event that it appears that that conduct is contrary to the Framework Agreement, and of thus depriving the interested party of the rights granted to him by that agreement. That court notes, in that respect, that Mr Sanchéz Ruiz is in a stable situation, which he may terminate by requesting the publication of a vacancy notice or by participating in a competition in order to access the status of permanent statutory personnel.
Thirdly, that court states that, according to the case-law of the Tribunal Supremo (Supreme Court, Spain), the renewal of fixed-term employment contracts or relationships is possible to the extent that such a renewal responds to the reasons for recruitment set out in Article 9(1) of the framework regulations. Since the public sector is characterised by the need to provide the services which are essential to a functioning society, the conditions provided for in that provision are automatically satisfied and it is never possible to find the existence of abusive conduct resulting from the use of such employment contracts or relationships.
The Spanish public health sector has for a long time been characterised by the distortion of fixed-term employment relationships. Fixed-term workers have a succession of several employment relationships, working all or almost all of the days of the year, over several years, since the reason for their recruitment continues to persist. Those workers perform the same functions as those performed by permanent regulated staff. They therefore cover, in reality, permanent staffing needs. There is therefore, in that branch of the Spanish public sector, a structural problem to the extent that there is a high percentage of temporary workers, whose contribution is essential to the proper functioning of that sector, that there is no maximum limit to the number of successive fixed-term employment relationships and that there is a failure to comply with the legal obligation to fill posts temporarily occupied by those staff by recruiting workers employed with contracts of indefinite duration. Approximately 75% of the workers in Mr Sanchéz Ruiz’s professional category are employed in the context of fixed-term employment relationships.
The referring court considers, in that regard, that, in order to be able to find the existence of an ‘objective reason’, for the purposes of Clause 5(1)(a) of the Framework Agreement, justifying the renewal of such employment relationships, the use thereof must not only respect the reasons for recruitment set out in Article 9(1) of the framework regulations, but also be ad hoc, circumstantial and sporadic.
Fourthly, the referring court questions whether, under Spanish law, there exist measures capable of preventing and, where appropriate, punishing abuses resulting from the use of successive fixed-term employment contracts or relationships.
In that regard, that court points out that, under Spanish law, there are no limits to the number of appointments as a member of the temporary regulated staff. Moreover, in the event of a failure by a public employer to fulfil its obligations resulting from Articles 10 and 70 of the basic regulations relating to public employees, it is not possible to subject it to measures applicable to private employers. The applicable national legislation and case-law hinder access to the status of permanent regulated staff other than by successfully completing the selection procedure.
The possibility to convert temporary regulated staff into non-permanent staff of indefinite duration, following from the case-law of the Tribunal Supremo (Supreme Court, Spain), is not a measure capable of combatting the abuse resulting from the use of successive fixed-term employment relationships, because it would be possible to terminate the post occupied by the worker concerned or to terminate his or her functions if that post is assigned to a permanent regulated worker.
The possibility for the public administration to consolidate employment in posts occupied by interim civil servants or temporary staff by means of tests, provided for by the Fourth Transitional Provision for the Public Employees’ Basis Status, is the sole measure capable of combatting the abusive use of successive fixed-term employment relationships. However, that measure is designed merely as an option for public employers and depends on its sole will.
Fifthly, according to the referring court, the main proceedings concern final administrative decisions such as appointments, decisions terminating functions and notices of competition, as well as final judgments delivered by courts ruling at first and final instance. The final character of those decisions and judgments impedes the reporting, by fixed-term workers, of irregularities committed by the administration and, therefore, the achievement of the objectives pursued by Directive 1999/70. The question thus arises whether, in the circumstances of the case in the main proceedings, EU law requires final judgments or administrative acts to be reviewed.
In those circumstances, the Juzgado Contencioso-Administrativo No 8 de Madrid (Administrative Court No 8, Madrid), decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
Can a situation such as that described in the present case (in which the public-sector employer fails to observe the statutory time limits and thus either permits successive temporary contracts or preserves the temporary nature of the appointment by changing the nature of the appointment from occasional to interim or replacement) be considered an abusive use of successive appointments and therefore be regarded as a situation described in Clause 5 of the Framework Agreement?
Must the provisions in the Framework Agreement, in conjunction with the principle of effectiveness, be interpreted as precluding national procedural rules that require a fixed-term worker actively to challenge or appeal against all the successive appointments and terminations of employment as the only way in which to benefit from the protection of Directive 1999/70 and claim the rights conferred on him by EU law?
In view of the fact that, in the public sector and in the provision of essential services, the necessity of filling vacant posts and providing cover for annual leave, sick leave, and other types of leave is essentially ‘permanent’, and given that the concept of ‘objective reason’ justifying a fixed-term appointment has to be delimited:
Can it be held to be contrary to [Clause 5(1)(a) of the Framework Agreement] and, therefore, that there is no objective reason, when a fixed-term worker is employed under an uninterrupted succession of ‘contratos de interinidad’ (temporary replacement contracts), working all or nearly all the days of the year, under a succession of consecutive appointments/engagements that continue on a completely stable basis for years, and the stated grounds for engaging the worker are always satisfied?
Must the need be considered permanent rather than temporary, and therefore not to be covered as an ‘objective reason’ within the meaning of Clause 5(1)(a) [of the Framework Agreement], having regard either to the parameters described above, that is to say, the existence of countless appointments and engagements that extend over a period of years, or to the existence of a structural defect that is reflected in the percentage of temporary appointments in the sector in question, when those needs are as a general rule always met by temporary workers, so that this has become an essential and long-term element of the operation of the public service?
Or is it to be understood that, in essence, in order to determine the permitted limit for temporary appointments, regard must be had only to the letter of the legislation that covers the employment of such fixed-term workers, when it states that they may be taken on grounds of necessity, urgency or for the development of programmes of a temporary, cyclical or extraordinary nature: in short, that in order for an objective reason to be deemed to exist, such employment must meet these exceptional circumstances, and that this ceases to be the case, and use therefore constitutes misuse, when it is no longer isolated, occasional or ad hoc?
Is it compatible with the Framework Directive to regard grounds of need, urgency or the development of programmes of a temporary, interim or extraordinary nature as an objective reason for appointing and successively reappointing IT specialists on temporary regulated terms where these public employees are performing the normal functions of permanent regulated employees on a permanent and regular basis, and the employing Administration neither establishes maximum limits to such appointments nor fulfils its legal obligations to use permanent staff to cover these posts and meet these needs, and no equivalent measure is established to prevent and avoid misuse of successive temporary appointments, with the result that IT specialists employed on temporary regulated terms continue to carry out these duties for periods that, in the present case, amount to an uninterrupted duration of 17 years?
Are the provisions in the Framework Agreement and the interpretation of that Agreement by the CJEU compatible with the case-law of the Tribunal Supremo (Supreme Court, Spain), in so far as it fixes the existence of an objective reason for an appointment by reference to the time limit to the appointment, without regard to other parameters, or finds that there can be no comparison made with a career public official because of the different legal rules covering them and different access routes or because career officials are permanently established but employees recruited to cover vacancies hold temporary appointments?
If the national courts find that there is abuse arising from the use of successive appointments of temporary regulated staff to cover vacancies in the [Community of Madrid] and that they are being used to cover permanent structural needs in the provision of services by permanent regulated employees, given that domestic law contains no effective measure to penalise such misuse and eliminate the consequences of the breach of EU legislation, must Clause 5 of the Framework Agreement be interpreted as requiring the national courts to adopt effective deterrent measures to ensure the effectiveness of the Framework Agreement, and therefore to penalise that misuse and eliminate the consequences of the breach of that EU legislation, disapplying the rule of domestic law that prevents it from being effective?
If there is abuse of successive temporary contracts, can the conversion of the temporary regulated relationship into an indefinite [non-permanent] or permanent relationship be regarded as satisfying the objectives of Directive 1999/70 and the Framework Agreement only if the temporary regulated employee who has been the victim of this misuse enjoys exactly the same working conditions as permanent regulated employees (as regards social security, promotion, opportunities to cover vacant posts, training, leave of absence, determination of administrative status, sick leave and other permitted absences, pension rights, termination of employment and participation in selection competitions to fill vacancies and obtain promotion) in accordance with the principles of permanence and security of employment, with all associated rights and obligations, on equal terms with permanent regulated IT specialists?
In the circumstances described here, is there an obligation under EU law to review final judgments/administrative acts when the four conditions laid down in the judgment of 13 January 2004, Kühne & Heitz NV (C‑453/00) are met: (1) Under Spanish national law, the authorities and the courts may review decisions (even if the restrictions involved make it very difficult or even impossible); (2) The contested decisions have become final as a result of a judgment of a national court issued in sole or final instance; (3) That judgment is based on an interpretation of EU law inconsistent with the case-law of the CJEU and adopted without a question being referred to the CJEU for a preliminary ruling; and (4) The person concerned applied to the administrative body as soon as it knew of the relevant case-law?
Mrs Fernández Álvarez and Others have worked for the health service of the Community of Madrid for between 12 and 17 years as the case may be, as temporary regulated staff members. In those posts, they perform functions as dental surgeons and have been subject to between 82 and 227 successive appointments, as the case may be.
The Community of Madrid did not include the posts temporarily occupied by Mrs Fernández Álvarez and Others in the offer of employment corresponding to the years of their respective appointments or during the following years or, in any event, at the latest within a three-year period following those appointments, as is required by Articles 10 and 70 of the basic regulations relating to public employees. A single publication of a notice of competition relating to the professional category of specialist dentists was published during the 15 years preceding the order for reference, in the present case, in 2015.
34On 22 July 2016, Mrs Fernández Álvarez and Others requested the Community of Madrid to recognise their status as members of the permanent regulated staff or, in the alternative, as public employees enjoying a similar status, to which the principles of permanence and security of employment apply, on the ground that their situation was incompatible with the requirements of the Framework Agreement.
35On 26 August 2016, the Community of Madrid rejected their request. On 23 November 2016, it also dismissed the administrative appeal that they had brought against the decision of 26 August 2016.
36Mrs Fernández Álvarez and Others brought an action before the referring court, the Juzgado Contencioso-Administrativo No 14 de Madrid (Administrative Court No 14, Madrid, Spain) against that decision to reject. In support of that action, they claim that their employer made abusive use of fixed-term employment relationships, in order to meet permanent structural needs and renewed them without objective reasons.
37The referring court notes that it is undisputed that Mrs Fernández Álvarez and Others were recruited in the context of a variety of successive employment relationships and that the functions they perform in that context are identical to those performed by the permanent regulated staff. Furthermore, although those employment relationships are concluded for the reasons referred to in Article 9(1) of the framework regulations, the recruitment of Mrs Fernández Álvarez and Others seeks to cover the permanent and regular staffing needs of the Community of Madrid, since it offsets a structural deficit of dentists with a permanent regulated staff status. Only 38.77% of workers in the professional category of specialist dentists are employed as permanent regulated staff.
38That court raises the question of whether there exists, under Spanish law, measures capable of preventing and, where appropriate, punishing abuses resulting from the use of successive fixed-term employment contracts or relationships. It questions in particular whether, in the situation of Mrs Fernández Álvarez and Others, the organisation of a selection procedure and the grant of compensation equal to that paid in the event of unfair dismissal are capable of constituting such measures. In that regard, the referring court notes that the effectiveness and dissuasiveness of the organisation of a selection procedure is doubtful, since it would have no negative effects for the public employers who are responsible for the abuse. By contrast, the grant of compensation equal to that paid in the event of unfair dismissal would meet the requirements of proportionality and effectiveness and would be dissuasive.
39In those circumstances, the Juzgado Contencioso-Administrativo No 14 de Madrid (Administrative Court No 14, Madrid), decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
(1)Is the referring court’s interpretation of the Framework Agreement correct and is it correct to take the view that the employment of [Mrs Fernández Álvarez and Others] on temporary appointments constitutes abuse in so far as the public employer uses different contractual models, all of which are temporary, to ensure, on a permanent and stable basis, performance of the ordinary duties of permanent regulated staff and to cover structural defects and needs which are, in fact, not temporary but fixed and permanent? Is the type of temporary appointment described therefore not justified as an objective reason for the purposes of Clause 5(1)(a) of the Framework Agreement, in that such use of fixed-term contracts conflicts directly with the second paragraph of the preamble of the Framework Agreement and with general considerations 6 and 8 of that agreement, since there are no circumstances which would justify the use of such fixed-term employment contracts?
(2)Is the referring court’s interpretation of the Framework Agreement correct and is it correct to take the view that, in line with that interpretation, the holding of a conventional selection procedure, with the features described, is not an equivalent measure and cannot be regarded as a penalty, since it is not proportional to the abuse committed, the consequence of which is the termination of the temporary worker’s appointment, in breach of the objectives of [Directive 1999/70], and the continued unfavourable situation of temporary regulated employees, nor can it be regarded as an effective measure in so far as it does not create any detriment to the employer, and nor does it fulfil any deterrent function, and therefore it is not compatible with the first paragraph of Article 2 of [that directive] in that it does not ensure that the Spanish State achieves the results imposed by the directive?
(3)Is the referring court’s interpretation of the first paragraph of Article 2 of Directive 1999/70 and of the judgment of the Court [of 14 September 2016, Pérez López (C‑16/15)] correct and is it correct to take the view that, in line with that interpretation, the holding of a selection procedure that is open to external candidates is not an appropriate measure to penalise abuse arising from the use of successive temporary appointments, since Spanish legislation does not provide for an effective, dissuasive penalty mechanism which puts an end to the abuse arising from the appointment of temporary regulated staff and does not enable those permanent posts created to be filled by the staff who were the victims of the abuse, such that the precarious situation of those workers continues?
(4)Is it correct to take the view, as the referring court does, that granting a temporary worker, who has been the victim of abusive behaviour by his employer, the status of a worker having an appointment ‘of indefinite duration but not permanent’ is not an effective penalty, in so far as a worker classified in this way may have his appointment terminated either because his post has been filled in a selection process or because his post has been abolished, and therefore that penalty is incompatible with the Framework Agreement for the purposes of preventing misuse of fixed-term contracts, since it does not comply with the first paragraph of Article 2 of Directive 1999/70 in that it does not ensure that the Spanish State achieves the results imposed by the directive?
(5)If the national courts find that there is abuse arising from the use of successive appointments of temporary regulated staff to cover vacancies in the [Community of Madrid] and that they are being used to cover permanent structural needs in the provision of services by permanent regulated employees, given that domestic law contains no effective measure to penalise such misuse and eliminate the consequences of the breach of EU legislation, must Clause 5 of the Framework Agreement be interpreted as requiring the national courts to adopt effective deterrent measures to ensure the effectiveness of the Framework Agreement, and therefore to penalise that misuse and eliminate the consequences of the breach of that EU legislation, disapplying the rule of domestic law that prevents it from being effective?
(6)If there is abuse of successive temporary contracts, can the conversion of the temporary regulated relationship into an indefinite [non-permanent] or permanent relationship be regarded as satisfying the objectives of Directive 1999/70 and the Framework Agreement only if the temporary regulated employee who has been the victim of this misuse enjoys exactly the same working conditions as permanent regulated employees (as regards social security, promotion, opportunities to cover vacant posts, training, leave of absence, determination of administrative status, sick leave and other permitted absences, pension rights, termination of employment and participation in selection competitions to fill vacancies and obtain promotion) in accordance with the principles of permanence and security of employment, with all associated rights and obligations, on equal terms with permanent regulated IT specialists?
(7)Taking into account the existence, if any, of improper use of temporary appointments to meet permanent staffing needs for no objective reason and in a manner inconsistent with the urgent and pressing need that warrants recourse to them, and for want of any effective penalties or limits in Spanish national law, would it be consistent with the objectives pursued by Directive 1999/70/EC to grant, as a means of preventing abuse and eliminating the consequence of infringing EU law, compensation comparable to that for unfair dismissal, that is to say, compensation that serves as an adequate, proportional, effective and dissuasive penalty, in circumstances where an employer does not offer a worker a permanent post?
40Following the delivery of the Advocate General’s Opinion, Mrs Fernández Álvarez and Others, by document lodged at the Court Registry on 6 November 2019, applied for the oral part of the procedure to be reopened, pursuant to Article 83 of the Rules of Procedure of the Court.
41In support of their request, Mrs Fernández Álvarez and Others claim, in essence, that the Advocate General’s Opinion is based on errors which should be rectified and contain formulations which either were not debated between the parties, or contradict what those parties acknowledged. Firstly, the compensation of public employees who are victims of an abusive use of successive fixed-term employment relations, which the Advocate General referred to in points 75 to 78 of her Opinion, does not exist under Spanish law. Likewise, the effective and dissuasive penalty mechanism, mentioned by the Advocate General in point 77 of her Opinion, is also lacking under that law, since the latter does not allow fines to be imposed on administrative authorities. Next, the position, allegedly expressed by the Advocate General in point 85 of her Opinion, according to which the conversion of fixed-term employment relationships into relationships of indefinite duration must be carried out, in the absence of other measures, according to a proper procedure, so as to clearly determine the order of appointments, constitutes a new element and it is essential that the parties have the possibility of presenting their point of view in that regard. Finally, in point 82 of her Opinion, the Advocate General introduced a new fact which had no basis in the national legislation at issue in the main proceedings, by finding that the temporary employees of the Community of Madrid who were victims of an abusive use of successive fixed-term employment relations cannot access stability of employment, because they have not shown their merits and their ability in the context of a selection procedure.
42In that regard, it should be noted that, under the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice, require his involvement. The Court is not bound either by those submissions or by the reasoning underpinning those submissions (judgment of 13 November 2019, College Pension Plan of British Columbia, C‑641/17, EU:C:2019:960, paragraph 39 and the case-law cited).
43It should also be noted, in that context, that the Statute of the Court of Justice of the European Union and the Rules of Procedure make no provision for the parties or the interested persons referred to in Article 23 of that statute to submit observations in response to the Advocate General’s Opinion. The fact that a party or such an interested person disagrees with the Advocate General’s Opinion, irrespective of the questions examined in the Opinion, cannot therefore in itself constitute grounds justifying the reopening of the oral procedure (judgment of 13 November 2019, College Pension Plan of British Columbia, C‑641/17, EU:C:2019:960, paragraph 40 and the case-law cited).
44It follows that, since the request of Mrs Fernández Álvarez and Others to have the oral part reopened is intended to enable it to respond to the findings made by the Advocate General in his Opinion, it cannot be granted.
45It is true that, pursuant to Article 83 of its Rules of Procedure, the Court may, at any time, after hearing the Advocate General, order that the oral part of the procedure be reopened, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute of the Court of Justice of the European Union.
46It should be noted, however, that, according to the Court’s settled case-law, as regards the interpretation of provisions of national law, the Court is in principle required to base its consideration on the description given in the order for reference and does not have jurisdiction to interpret the internal law of a Member State (judgment of 13 November 2019, College Pension Plan of British Columbia, C‑641/17, EU:C:2019:960, paragraph 43 and the case-law cited).
47However, the orders for reference contain the necessary information relating to the relevant provisions of Spanish law and, in particular, to the provisions applicable to Spanish public officials, on which the Court is required to rely.
48Consequently, the Court, after hearing the Advocate General, considers that it has all the information necessary to answer the questions raised by the referring courts.
49In the light of the foregoing, there is no need to reopen the oral part of the procedure.
50By its first question in Case C‑103/18, the referring court seeks to obtain clarification of the concept of ‘successive fixed-term employment contracts or relationships’, within the meaning of Clause 5 of the Framework Agreement.
51Is the referring court’s interpretation of the Framework Agreement correct and is it correct to take the view that the employment of [Mrs Fernández Álvarez and Others] on temporary appointments constitutes abuse in so far as the public employer uses different contractual models, all of which are temporary, to ensure, on a permanent and stable basis, performance of the ordinary duties of permanent regulated staff and to cover structural defects and needs which are, in fact, not temporary but fixed and permanent? Is the type of temporary appointment described therefore not justified as an objective reason for the purposes of Clause 5(1)(a) of the Framework Agreement, in that such use of fixed-term contracts conflicts directly with the second paragraph of the preamble of the Framework Agreement and with general considerations 6 and 8 of that agreement, since there are no circumstances which would justify the use of such fixed-term employment contracts?
It follows from the order for reference that that question concerns the fact that, in the present case, Mr Sánchez Ruiz was recruited by the Community of Madrid in the context of a fixed-term employment relationship in a vacant post until the latter is filled definitively, that that employer did not respect the deadline, provided for by Spanish legislation, for the organisation of a selection procedure seeking to fill that post definitively and that that employment relationship thus continued over several years. It follows, in addition, from that decision that, in those circumstances, it must be considered that the interested party’s employment relationship was implicitly extended from year to year. Moreover, the referring court states that, although Mr Sánchez Ruiz was, in November 1999 and December 2011, twice appointed by the Community of Madrid, he continuously occupied the same post and continuously performed the same functions in the service of that employer.
It follows from the order for reference that that question concerns the fact that, in the present case, Mr Sánchez Ruiz was recruited by the Community of Madrid in the context of a fixed-term employment relationship in a vacant post until the latter is filled definitively, that that employer did not respect the deadline, provided for by Spanish legislation, for the organisation of a selection procedure seeking to fill that post definitively and that that employment relationship thus continued over several years. It follows, in addition, from that decision that, in those circumstances, it must be considered that the interested party’s employment relationship was implicitly extended from year to year. Moreover, the referring court states that, although Mr Sánchez Ruiz was, in November 1999 and December 2011, twice appointed by the Community of Madrid, he continuously occupied the same post and continuously performed the same functions in the service of that employer.
52It follows therefrom that, by its question, the referring court asks, in essence, whether Clause 5 of the Framework Agreement must be interpreted as meaning that the concept of ‘successive fixed-term employment contracts or relationships’, within the meaning of that provision, covers a situation in which a worker recruited on the basis of a fixed-term employment relationship, namely until the vacant post to which he or she is recruited is definitively filled, occupied, in the context of several appointments, the same post continuously over several years and continuously performed the same functions, since the continuation of that worker in that vacant post is the result of the employer’s failure to comply with its legal obligation to organise within the relevant deadline a selection procedure seeking to definitively fill that vacant post and since his or her employment relationship was thereby implicitly extended from year to year.
52It follows therefrom that, by its question, the referring court asks, in essence, whether Clause 5 of the Framework Agreement must be interpreted as meaning that the concept of ‘successive fixed-term employment contracts or relationships’, within the meaning of that provision, covers a situation in which a worker recruited on the basis of a fixed-term employment relationship, namely until the vacant post to which he or she is recruited is definitively filled, occupied, in the context of several appointments, the same post continuously over several years and continuously performed the same functions, since the continuation of that worker in that vacant post is the result of the employer’s failure to comply with its legal obligation to organise within the relevant deadline a selection procedure seeking to definitively fill that vacant post and since his or her employment relationship was thereby implicitly extended from year to year.
53In that regard, it should be noted that the purpose of Clause 5 of the Framework Agreement is to implement one of the objectives of that agreement, namely to place limits on successive recourse to 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 (judgment of 14 September 2016, Pérez López, C‑16/15, EU:C:2016:679, paragraph 26 and the case-law cited).
53In that regard, it should be noted that the purpose of Clause 5 of the Framework Agreement is to implement one of the objectives of that agreement, namely to place limits on successive recourse to 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 (judgment of 14 September 2016, Pérez López, C‑16/15, EU:C:2016:679, paragraph 26 and the case-law cited).
54As 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 14 September 2016, Pérez López, C‑16/15, EU:C:2016:679, paragraph 27 and the case-law cited).
54As 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 14 September 2016, Pérez López, C‑16/15, EU:C:2016:679, paragraph 27 and the case-law cited).
55Accordingly, Clause 5(1) of the Framework Agreement requires, with a view to preventing abuse of successive fixed-term employment contracts or relationships, the effective and binding adoption by Member States of at least one of the measures listed in that provision, where their domestic law does not already include equivalent legal measures (judgment of 14 September 2016, Pérez López, C‑16/15, EU:C:2016:679, paragraph 28 and the case-law cited).
55Accordingly, Clause 5(1) of the Framework Agreement requires, with a view to preventing abuse of successive fixed-term employment contracts or relationships, the effective and binding adoption by Member States of at least one of the measures listed in that provision, where their domestic law does not already include equivalent legal measures (judgment of 14 September 2016, Pérez López, C‑16/15, EU:C:2016:679, paragraph 28 and the case-law cited).
56It follows from the Court’s settled case-law that Clause 5(1) of the Framework Agreement applies only where there are successive fixed-term employment contracts or relationships (judgments of 22 November 2005, Mangold, C‑144/04, EU:C:2005:709, paragraphs 41 and 42; of 26 January 2012, Kücük, C‑586/10, EU:C:2012:39, paragraph 45; and of 22 January 2020, Baldonedo Martín, C‑177/18, EU:C:2020:26, paragraph 70).
56It follows from the Court’s settled case-law that Clause 5(1) of the Framework Agreement applies only where there are successive fixed-term employment contracts or relationships (judgments of 22 November 2005, Mangold, C‑144/04, EU:C:2005:709, paragraphs 41 and 42; of 26 January 2012, Kücük, C‑586/10, EU:C:2012:39, paragraph 45; and of 22 January 2020, Baldonedo Martín, C‑177/18, EU:C:2020:26, paragraph 70).
57Clause 5(2)(a) of the Framework Agreement leaves it to the Member States and/or the social partners to determine the conditions under which fixed-term employment contracts or relationships are to be regarded as ‘successive’ (see, to that effect, judgments of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 81; of 21 November 2018, de Diego Porras, C‑619/17, EU:C:2018:936, paragraph 79; and of 22 January 2020, Baldonedo Martín, C‑177/18, EU:C:2020:26, paragraph 71).
57Clause 5(2)(a) of the Framework Agreement leaves it to the Member States and/or the social partners to determine the conditions under which fixed-term employment contracts or relationships are to be regarded as ‘successive’ (see, to that effect, judgments of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 81; of 21 November 2018, de Diego Porras, C‑619/17, EU:C:2018:936, paragraph 79; and of 22 January 2020, Baldonedo Martín, C‑177/18, EU:C:2020:26, paragraph 71).
58While such a reference back to national authorities for the purpose of establishing the specific rules for application of the terms ‘successive’ for the purposes of the Framework Agreement may be explained by the concern to respect the diversity of the relevant national rules, it is, however, to be remembered that the margin of appreciation thereby left for the Member States is not unlimited, because it cannot in any event go so far as to compromise the objective or the practical effect of the Framework Agreement. In particular, that discretion must not be exercised by national authorities in such a way as to lead to a situation liable to give rise to abuse and thus to thwart that objective (judgment of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 82).
58While such a reference back to national authorities for the purpose of establishing the specific rules for application of the terms ‘successive’ for the purposes of the Framework Agreement may be explained by the concern to respect the diversity of the relevant national rules, it is, however, to be remembered that the margin of appreciation thereby left for the Member States is not unlimited, because it cannot in any event go so far as to compromise the objective or the practical effect of the Framework Agreement. In particular, that discretion must not be exercised by national authorities in such a way as to lead to a situation liable to give rise to abuse and thus to thwart that objective (judgment of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 82).
59The Member States are required to guarantee the result imposed by EU law, as is clear not only from the third paragraph of Article 288 TFEU, but also from the first paragraph of Article 2 of Directive 1999/70 read in the light of recital 17 of that directive (see, to that effect, judgment of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 68).
59The Member States are required to guarantee the result imposed by EU law, as is clear not only from the third paragraph of Article 288 TFEU, but also from the first paragraph of Article 2 of Directive 1999/70 read in the light of recital 17 of that directive (see, to that effect, judgment of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 68).
60The limits on the discretion granted to the Member States, referred to in paragraph 58 of the present judgment, are particularly important in the case of a key concept, like the concept of ‘successive’ employment relationships, which is decisive for definition of the very scope of the national provisions intended to implement the Framework Agreement (see, to that effect, judgment of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 83).
60The limits on the discretion granted to the Member States, referred to in paragraph 58 of the present judgment, are particularly important in the case of a key concept, like the concept of ‘successive’ employment relationships, which is decisive for definition of the very scope of the national provisions intended to implement the Framework Agreement (see, to that effect, judgment of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 83).
61As was, in essence, noted by the Advocate General in point 44 of her Opinion, finding an absence of successive fixed-term employment relationships, within the meaning of Clause 5 of the Framework Agreement, on the sole ground that the worker concerned, although he was subject to several appointments, continuously occupied the same post over several years and continuously performed the same functions, although that worker’s continuation in a vacant post on the basis of a fixed-term employment relationship is the consequence of the employer’s failure to comply with its legal obligation to organise, within the relevant deadline, a selection procedure seeking to definitively fill that vacant post and his employment relationship was thereby extended from year to year, risks compromising the object, the aim and the practical effect of that agreement.
61As was, in essence, noted by the Advocate General in point 44 of her Opinion, finding an absence of successive fixed-term employment relationships, within the meaning of Clause 5 of the Framework Agreement, on the sole ground that the worker concerned, although he was subject to several appointments, continuously occupied the same post over several years and continuously performed the same functions, although that worker’s continuation in a vacant post on the basis of a fixed-term employment relationship is the consequence of the employer’s failure to comply with its legal obligation to organise, within the relevant deadline, a selection procedure seeking to definitively fill that vacant post and his employment relationship was thereby extended from year to year, risks compromising the object, the aim and the practical effect of that agreement.
62Such a narrow definition of the concept of ‘successive fixed-term employment relationships’ would allow insecure employment of workers for years (see, by analogy, judgment of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 85).
62Such a narrow definition of the concept of ‘successive fixed-term employment relationships’ would allow insecure employment of workers for years (see, by analogy, judgment of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 85).
63Moreover, that restrictive definition risks not only excluding, in practice, a large number of fixed-term employment relationships from the benefit of the protection of workers sought by Directive 1999/70 and the Framework Agreement, largely negating the objective pursued by them, but also of permitting the misuse of such relationships by employers in order to meet fixed and permanent staffing needs of the employer.
63Moreover, that restrictive definition risks not only excluding, in practice, a large number of fixed-term employment relationships from the benefit of the protection of workers sought by Directive 1999/70 and the Framework Agreement, largely negating the objective pursued by them, but also of permitting the misuse of such relationships by employers in order to meet fixed and permanent staffing needs of the employer.
64In the light of the above considerations, the answer to the first question in Case C‑103/18 is that Clause 5 of the Framework Agreement must be interpreted as meaning that the Member States and/or the social partners cannot exclude from the concept of ‘successive fixed-term employment contracts or relationships’, within the meaning of that provision, a situation in which a worker recruited on the basis of a fixed-term employment relationship, namely until the vacant post to which he or she is recruited is definitively filled, occupied, in the context of several appointments, the same post continuously over several years and continuously performed the same functions, since the continuation of that worker in that vacant post is the result of the employer’s failure to comply with its legal obligation to organise within the relevant deadline a selection procedure seeking to definitively fill that vacant post and since his or her employment relationship was thereby implicitly extended from year to year.
64In the light of the above considerations, the answer to the first question in Case C‑103/18 is that Clause 5 of the Framework Agreement must be interpreted as meaning that the Member States and/or the social partners cannot exclude from the concept of ‘successive fixed-term employment contracts or relationships’, within the meaning of that provision, a situation in which a worker recruited on the basis of a fixed-term employment relationship, namely until the vacant post to which he or she is recruited is definitively filled, occupied, in the context of several appointments, the same post continuously over several years and continuously performed the same functions, since the continuation of that worker in that vacant post is the result of the employer’s failure to comply with its legal obligation to organise within the relevant deadline a selection procedure seeking to definitively fill that vacant post and since his or her employment relationship was thereby implicitly extended from year to year.
65By their third to fifth questions in Case C‑103/18 and first question in Case C‑429/18, which should be examined together, the referring courts ask, in essence, whether Clause 5 of the Framework Agreement must be interpreted as precluding national legislation and case-law in accordance with which the successive renewal of fixed-term employment relationships is considered to be justified for ‘objective reasons’, within the meaning of paragraph 1(a) of that Clause, on the sole ground that that renewal responds to the reasons for recruitment referred to by that legislation, namely grounds of necessity, urgency or for the development of programmes of a temporary, cyclical or extraordinary nature.
65By their third to fifth questions in Case C‑103/18 and first question in Case C‑429/18, which should be examined together, the referring courts ask, in essence, whether Clause 5 of the Framework Agreement must be interpreted as precluding national legislation and case-law in accordance with which the successive renewal of fixed-term employment relationships is considered to be justified for ‘objective reasons’, within the meaning of paragraph 1(a) of that Clause, on the sole ground that that renewal responds to the reasons for recruitment referred to by that legislation, namely grounds of necessity, urgency or for the development of programmes of a temporary, cyclical or extraordinary nature.
66In that regard, it follows from the Court’s case-law that the concept of ‘objective reasons’, within the meaning of Clause 5(1)(a) of the Framework Agreement, must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particular context, of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social policy objective of a Member State (judgment of 14 September 2016, Pérez López, C‑16/15, EU:C:2016:679, paragraph 38 and the case-law cited).
66In that regard, it follows from the Court’s case-law that the concept of ‘objective reasons’, within the meaning of Clause 5(1)(a) of the Framework Agreement, must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particular context, of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social policy objective of a Member State (judgment of 14 September 2016, Pérez López, C‑16/15, EU:C:2016:679, paragraph 38 and the case-law cited).