Julio García-Aquí Europa
The Court of Justice of the EU (CJEU) has taken a position in a ruling against the abuse of the figure of long-term temporary workers in public administrations and considers that Spain should make them permanent.
As reported by the CJEU, the ruling, which responds to a preliminary question raised by the Superior Court of Justice of Madrid, considers that Spain has not taken appropriate measures to prevent and sanction the excessive use of this type of contracting and sees it as a solution that thousands of people in that situation become permanent, although it leaves the ball in the court of the Spanish legislator.
“The Framework Agreement on fixed-term work is contrary to national legislation that does not provide for any of the measures relating, respectively, to objective reasons justifying the renewal of fixed-term contracts or employment relationships, to the maximum total duration of those successive employment contracts or employment relationships and the number of their renewals, nor any “equivalent legal measure” to prevent the abusive use of non-fixed indefinite contracts,” says the CJEU.
“In the absence of appropriate measures in national law to prevent and, where appropriate, punish, in accordance with the Framework Agreement, abuses arising from the successive use of temporary contracts, including non-fixed indefinite contracts successively extended, the conversion of those temporary contracts into permanent contracts can constitute such a measure,” the Luxembourg judges rule, considering that in Spain European rules on temporary employment are violated.
In addition, the court questions the compensation established in 2021 within the framework of the legislation to reduce temporary employment and which provides for 20 days per year worked.
“The Court of Justice recalls that it has already declared that the payment of compensation for termination of contract does not make it possible to achieve the objective pursued by the Framework Agreement of preventing abuses arising from the successive use of fixed-term contracts, since this payment appears to be independent of any consideration relating to the legitimate or abusive nature of the use of said contracts. Therefore, that measure is not adequate to properly sanction such abusive use and eliminate the consequences of non-compliance with Union law and, therefore, does not appear to constitute, in itself, a sufficiently effective and dissuasive measure to ensure full effectiveness of the standards adopted in accordance with the Framework Agreement,” the ruling states.
Likewise, the CJEU harshly attacks stabilization processes through calls for positions. “Although the applicable regulations establish specific deadlines for the Administration in question to convene these selective processes, in reality these deadlines are not respected and these processes are infrequent,” the court states.
“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 can prevent the abusive use, by the employer in question, of successive fixed-term employment relationships. Consequently, without prejudice to the verifications that will be carried out by the Superior Court of Justice of Madrid, it does not appear that said regulations constitute a sufficiently effective and dissuasive measure to guarantee the full effectiveness of the regulations adopted in accordance with the Framework Agreement and, therefore, cannot be classified as an “equivalent legal measure” for the purposes of this,” adds the CJEU.
