June 15, 2021

insists it’s not constitutional


Bad news for the interim movements that demand fixation in their posts after years of fraudulent temporary employment. This abuse recognized by European justice, the Government itself and against which Minister Miquel Iceta has announced some measures, It cannot be settled with the recognition of the permanent position in the Public Administration because it does not respect the equal access that the Spanish Constitution recognizes. This has been reiterated in recent days by two higher courts of justice (TSJ), from the Basque Country and the Valencian Community, which refer to the doctrine of the Supreme Court.


European justice rules that Spain abuses the interim and opens the door to recognize compensation as a sanction

European justice rules that Spain abuses the interim and opens the door to recognize compensation as a sanction

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The second of the sentences, of May 19, is especially important, at least symbolically. The Supreme Court of the Valencian Community annuls one of the few judicial resolutions favorable to fixity, the first acquaintance for an interim, and that it is a reference for the interim movements that demand this recognition.

As the majority of courts have done and, most importantly, the Supreme Court has ruled to date, these two new rulings insist that the recognition of the fixed position cannot be agreed as a consequence of the abuse of temporality given the recognized rights in the Magna Carta.

In order to guarantee equal access for all people, access to the public function must follow “the principles of merit and capacity”, the Constitution establishes. The Basic Statute of Public Employees (EBEP) contemplates that for this a “selection process” must be passed.

Despite the majority opinion of the courts, this Saturday the 22nd at 12 noon, the interim movements return to the street to claim fixity. A unitary demonstration of different groups has been called in Madrid that demand this consequence of the abuse of temporary public employees who have been in their positions for many years.

Annulled the ruling that fixed an interim

On the one hand, the Supreme Court of the Valencian Community overturns the judgment of the contentious-administrative court number 4 of Alicante that recognized the permanent position to an intern who had been in her position for almost 13 years as a concierge at the Alicante Town Hall. “This criterion has been reiterated in other resolutions of the same court (in which the employer was the University of Alicante),” he recalls on his blog the professor of Labor Law Ignasi Beltrán, who is closely following this debate in the courts.

The magistrates of the higher court consider that “the mere passage of time”, excessive as seen in this case, cannot result in fixity because it violates the constitutional principles of access by “merit and ability” to public employment.

The temporary worker spent almost 13 years in her position, which she agreed to because she was in a “temporary employment exchange formed by applicants who had not approved the opposition called or obtained a place in order of score”. The TSJ rejects that this access implies having passed “a selective process with full respect for the constitutional principles of equality, merit, capacity and free participation,” as the trial judge concluded.

In addition, the magistrates refer to the criterion of the Supreme Court to reject the application of the European directive against abuses in temporary hiring, to which the plaintiff worker resorted. The reason: that there has not been a succession of hiring but “a single provision certainly prolonged in time, but not concatenated”.

Finally, the TSJ understands that the applicable doctrine, again according to the criteria of the High Court (which is the one that establishes jurisprudence) in his sentence of September 26, 2018, goes through shielding the interim in his position until the Administration adjudicates or amortizes the position following the pertinent legal channel. It would be an equivalent to the figure of the “indefinite non-fixed” created by the courts of social order for the jobs of the Administration, but for the workers who are appointed to their positions as interim and who are governed by the EBEP (Basic Statute of the Public Employee).

The Basque Supreme Court on fixity: “No way”

For its part, the Superior Court of Justice of the Basque Country insists on the unconstitutionality of the measure in a judgment of May 13, in which it confirms the criteria of a previous judgment. On this occasion, the process affects a temporary worker of the Bilbao City Council for 17 years, who occupied the vacant position after a retirement and who later left her post when her position was taken out for competition. The interim participated in this selection process, but did not take over the place, which is occupied by another person.

The magistrates acknowledge that the period of time in which the council called the oppositions “is excessively long and has not been sufficiently justified by the Bilbao City Council.” “However, this cannot automatically lead to upholding the plaintiff’s claims”, they conclude.

Again, the magistrates insist on the criterion of equality, merit and capacity contemplated in the legislation to access the position, said of an official of the Administration.

“The plaintiff affirms that she has already passed a process to acquire the status of interim civil servant. However, such process is not comparable to a competition-opposition or an opposition organized with the specific purpose of selecting a career civil servant who is going to be incumbent. of the place in question. And it is that the interim civil servants, as its own name indicates, access to the place of merely transitory form “, argue the judges.

Access to the interim are “more lax than taxes for those who intend to acquire the status of career civil servant,” continues the ruling of the Supreme Court, so “it is easy to see that accessing the claim of the plaintiff could lead to obvious abuses aimed at saving certain people from overcoming a selection process “.

The court also rejects the recognition of compensation to the worker. They consider that although this measure can be agreed to sanction this abuse, as ordered in fact the Supreme in this case, not applicable for this interim. “In the case at hand, we have already explained that the appellant had the opportunity to access, in property, the position that she had been occupying. And, in addition, she participated in the process in an advantageous position in relation to the rest of the applicants, in view of how the experience in the competition was computed. In such a way that we must understand that the special situation of (the worker), to which facilities were recognized to convert the temporary relationship into a stable one, “the judges say.

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