The Supreme Court will raise a preliminary question to the CJEU on how to make public employees permanent

The High Court has some doubts after the ruling of the CJEU on the abuse of interims in the Spanish Public Administration

MADRID, 7 Mar. (EUROPA PRESS) -

The Plenary Session of the Fourth Chamber of the Supreme Court has agreed to initiate proceedings to formulate a preliminary ruling to the Court of Justice of the European Union (CJEU) on how to make public employees permanent after the ruling of the European court in which it denounced that the Spanish legislation does not adequately deter Public Administrations from the abuse of temporary hiring and proposed, as a solution, making the affected workers permanent.

The Supreme Court explains that after analyzing the way to apply the ruling of the CJEU, of February 22, to the multiple appeals pending resolution, it has doubts about certain aspects of the European ruling.

"With the desire to carry out its correct interpretation, and given the existence of important doubts about its scope in certain aspects, the Chamber has agreed to initiate proceedings in order to formulate a preliminary ruling before the Court of Justice of the European Union ", emphasizes the Supreme Court.

In particular, the High Court wants to resolve doubts about how to make the doctrine coined by the CJEU ruling compatible with the rules relating to access to public employment, including for nationals of the Member States, as well as with the rules of the national legal system. that guarantee the right of access to public employment in accordance with the principles of equality, merit and capacity.

In its ruling of February 22, the CJEU considers that Spanish Law does not adequately deter Public Administrations from the abuse of temporary hiring, which can lead to employing workers on a precarious basis "for years."

In this sense, it points out that, "in the absence of adequate measures" in Spanish legislation to prevent and punish in accordance with European standards the abuses derived from the successive use of temporary contracts, including non-fixed indefinite contracts successively extended, "the Conversion of these temporary contracts into permanent contracts may constitute the solution.

In any case, the CJEU pointed out in its ruling that it is the Spanish Justice that must modify the consolidated national jurisprudence if it is based on an interpretation that is incompatible with the objectives of European legislation, particularly with the Framework Agreement on fixed-term work.

With this ruling, the CJEU responded to a request from the Superior Court of Justice of Madrid (TSJM) to interpret the Framework Agreement on fixed-term work, which appears in the annex to Directive 1999/70, following the case of three workers from the Ministry of the Presidency, Justice and Interior of the Community of Madrid, the National University of Distance Education (UNED) and the Madrid Agency for Social Care of the Community of Madrid.

These workers were for many years (since 1994 in the first two cases and since 1998 in the third) with successive temporary contracts, which is why the TSJM asked the CJEU to interpret the framework agreement in relation to the effectiveness of the measures designed to avoid the abuse of fixed-term contracts or employment relationships in the public sector.

In its ruling, the CJEU responded to the TSJM that a non-permanent permanent worker, a figure of jurisprudential creation, must be considered a worker with a fixed-term contract for the purposes of the framework agreement, which is why it is included in its scope of application.

Likewise, it pointed out that the expression "successive use of contracts or employment relationships of a fixed duration" contained in the framework agreement includes a situation in which, if the Administration in question has not convened within the established period a selective process for the definitive coverage of the position occupied by a non-permanent permanent worker, the fixed-term contract is automatically extended.

In this sense, the CJEU understands that concluding that "there are no successive fixed-term employment relationships for the purposes of the framework agreement for the mere reason that a worker is linked to the Administration through a single non-fixed indefinite contract" and that in his place due to the "failure" to call a selective process within the deadline, could "compromise the object, purpose and effectiveness of said framework agreement."

"Such a restrictive interpretation of the concept of 'successive fixed-term employment relationships' would allow workers to be employed precariously for years and could lead not only to excluding, in practice, a large number of fixed-term employment relationships from the protection of the workers pursued by the European regulations, emptying much of its content of the objective pursued by it, but also allowing the abusive use of said relationships by employers to satisfy permanent and stable needs in terms of personnel," the CJEU alleged. .

In the cases examined, given that the Administration in question did not convene within the established period a selective process for the definitive coverage of the position occupied by a non-permanent permanent worker, the automatic extensions of said fixed-term contract can be assimilated to renewals and, consequently, to the conclusion of different fixed-term contracts.

It follows, according to the CJEU, that these three cases "are not characterized by the conclusion of a single contract, but by the conclusion of contracts that can effectively be classified as successive for the purposes of the framework agreement", but this point, adds the European justice, must be verified by the TSJM.

The CJEU also points out in the ruling that the objective reasons presented by the Government and the Spanish AAPP (guarantee of access to public employment under conditions of equality, merit, capacity and publicity to remedy irregular hiring in the public sector until the moment in which produces the coverage of the position) "are objective reasons that justify the application of the non-fixed indefinite contract, while the European framework agreement refers to the objective reasons that justify the renewal of fixed-term contracts".

The European Court also understands that calling selective processes within the deadline for the definitive coverage of positions provisionally occupied by temporary workers "is an appropriate measure to prevent the perpetuation of the precarious situation of said workers."

However, the CJEU points out that, according to the TSJM, although the applicable regulations establish specific deadlines for the Administration in question to call these selective processes, "in reality these deadlines are not respected and these processes are infrequent."

"In these circumstances, a national regulation that provides for the convening of selective processes whose objective is to definitively cover the positions provisionally occupied by temporary workers, as well as the specific deadlines for this purpose, but which does not guarantee that these processes are actually convened , does not seem to be able to prevent the abusive use of successive fixed-term employment relationships," noted the CJEU.

Consequently, the European High Court considers that the Spanish regulations do not seem to constitute "a sufficiently effective and dissuasive measure to guarantee the full effectiveness of the regulations adopted in accordance with the European framework agreement.