June 13, 2021

The CJEU rules against the abuse of successive temporary contracts in the Spanish public administration


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The Court of Justice of the European Union (TEU) has declared this Thursday contrary to Community law the Spanish jurisprudence that allows renew temporary contracts in the public sector pending selection processes for which there is no specific deadline and it also prohibits these workers from having indefinite non-fixed contracts.

The Luxembourg court explains that the Spanish legislation “does not appear to include any measure aimed at preventing and, where appropriate, penalizing the abusive use of successive fixed-term contracts.”

Furthermore, European judges have indicated that the move to a non-permanent indefinite contract could be a “suitable” measure to sanction the abusive use of fixed-term contracts in the public sector.

The European Justice thus responds to the questions raised by the Superior Court of Justice of Madrid in the case of a female worker who chained fixed-term contracts at the Madrid Institute for Agricultural and Food Research and Development (Imidra from 2003 to 2016. That year, his place was awarded to a permanent worker after an extraordinary job consolidation process.

The worker challenged her dismissal before the Social Court number 40 of Madrid, which upheld her claim and ordered IMIDRA to pay her compensation. IMIDRA appealed this ruling before the Superior Court of Justice of Madrid, which addressed a series of doubts to the TUE.

Without justifying

In its judgment, the Luxembourg court declares that the European directive on fixed-term work is opposed to a national regulation that has been interpreted in such a way that it allows the renewal of temporary contracts “without indicating the precise term of completion of said processes” of selection and also “prohibits both the assimilation of these workers to permanent non-permanent workers and the granting of compensation.”

The TEU argues that the renewal of temporary contracts to meet “needs that are not actually temporary, but on the contrary, permanent and lasting”, is not justified by the directive. To this he adds that Spanish regulations set a period of three years to organize selective processes that allows “to avoid perpetuating temporary employment relationships.”

However, the jurisprudence of the Supreme Court allows this period to be extended “for various reasons”Therefore, in practice, “the renewal of employment contracts of specific duration to meet needs that are not actually provisional” is allowed, contrary to the directive.

On the other hand, the TEU recalls that a national regulation that prohibits the transformation of successive temporary contracts into an indefinite employment contract must contain “another effective measure to prevent and punish the abusive use” of consecutive interim contracts.

Therefore, if the Madrid Court of Justice concludes that there is “no other effective measure” that meets these conditions, the situation would once again be contrary to the European directive.

The TEU adds to this that, “the assimilation of said personnel with fixed-term relationships to ‘non-permanent permanent workers’ could be a suitable measure to sanction the abusive use of fixed-term employment contracts”.

In addition, it considers that the payment of compensation for termination of the contract would not be adequate to “duly” sanction an abusive use of contracts or employment relationships of a fixed duration.

Leave

This Thursday the CJEU has also ruled that the European Union directive on fixed-term work is not applicable to the case of a Spanish woman, with a permanent worker status, who He was denied a leave of absence because the new job he was attending was temporary. The ruling emphasizes that the principle of non-discrimination between workers with a fixed-term contract and permanent workers enshrined in the aforementioned framework agreement applies only to all workers who provide paid services within the framework of a temporary employment relationship.

The TUE ruling is based on a preliminary ruling question raised by the Superior Court of Justice of Aragon as a result of the case of a woman who, working as permanent statutory personnel in the Aragonese Health Service, requested a leave of absence for the provision of services in the public sector to occupy a place as an interim professor at the Complutense University of Madrid with a fixed-term contract.

The SThe Health Service rejected said request because it considered that the position he was going to occupy was temporary.Therefore, the affected party requested a voluntary leave of absence due to private interest, which was granted. However, the woman appealed the resolution for which she had been denied the first leave of absence.

Finally, the CJEU has declared that it lacks competence to answer these questions and points out that the principle of non-discrimination in the framework agreement only applies to workers with temporary contracts.

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