Official Journal of the European Union

C 320/4

(Case C-550/19) (1)

(Reference for a preliminary ruling - Social policy - Directive 1999/70/EC - Framework agreement on fixed-term employment concluded by ETUC, UNICE and CEEP - Clause 5 - Measures to prevent abuse arising from the use of successive fixed-term employment contracts or relationships - Successive fixed-term employment contracts in the construction sector, known as ‘fijos de obra’ - Concept of ‘objective reasons’ justifying the renewal of such contracts - Directive 2001/23/EC - Article 1(1) - Transfer of an undertaking - Article 3(1) - Safeguarding of employees’ rights - Taking over of employment contracts in accordance with the terms of a collective agreement - Collective agreement limiting the rights and obligations of the transferred workers to the rights and obligations arising from the last contract concluded with the outgoing company)

(2021/C 320/04)

Language of the case: Spanish

Referring court

Parties to the main proceedings

Applicant: EV

Defendants: Obras y Servicios Públicos SA, Acciona Agua SA

Operative part of the judgment

1.Clause 5(1) of the framework agreement on fixed-term work concluded on 18 March 1999, which is annexed to Directive 1999/70 of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as meaning that it is for the national court to assess, in accordance with all the applicable rules of national law, whether the limitation to three consecutive years, except under specific conditions, of the employment of fixed-term workers under contracts known as ‘fijos de obra’ by the same undertaking at different workplaces located within the same province and the grant to those workers of compensation for termination, assuming that that national court finds that those measures are actually taken in respect of those workers, constitute adequate measures to prevent and, where appropriate, to penalise abuse arising from the use of successive fixed-term employment contracts or relationships or ‘equivalent legal measures’ within the meaning of that Clause 5(1). In any event, such national legislation cannot be applied by the authorities of the Member State concerned in such a way that the renewal of successive fixed-term ‘fijos de obra’ employment contracts is considered justified by ‘objective reasons’, within the meaning of Clause 5(1)(a) of that framework agreement, on the sole ground that each of those contracts is generally concluded for a specific construction project, irrespective of its duration, in so far as such national legislation does not prevent, in practice, the employer concerned from covering, by means of such renewal, fixed and permanent staffing needs;

2.The first subparagraph of Article 3(1) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses must be interpreted as not precluding national legislation under which, in the event of a transfer of employees under public contracts, the rights and obligations of the transferred worker that the incoming undertaking is required to respect are limited exclusively to those arising from the last contract concluded by that worker with the outgoing undertaking, provided that the application of that legislation does not have the effect of placing that worker in a less favourable position solely as a result of the transfer, which it is for the referring court to determine.

OJ C 77, 9.3.2020.