Considers that the compensation of 20 days per year and the regulations to call for employment consolidation processes are not deterrents either.
MADRID, 22 Feb. (EUROPA PRESS) –
The Court of Justice of the European Union (TEU) has issued a ruling in which it considers that Spanish Law does not adequately deter Public Administrations from the abuse of temporary contracts, which can lead to employing workers on a precarious basis “during 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, it considers that it is up to the Spanish Justice to 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.
The TEU responds with this ruling 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 asks the TEU to interpret the framework agreement in relation to the effectiveness of the measures intended to avoid the abuse of fixed-term contracts or employment relationships in the public sector.
In its ruling, the TUE responds 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 points 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 TEU 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”, alleges the TEU .
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 TEU, 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 TEU explains that it is not up to it to rule on the interpretation of domestic law, so it will be up to the TSJM to assess to what extent the application requirements and the effective execution of the relevant provisions of Spanish legislation make them constitute an appropriate measure to avoid the abusive use of successive contracts or employment relationships of fixed duration.
However, “in order to guide it in its assessment”, the TUE points out 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 the position is filled) “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 contracts of a fixed duration”.
The TUE 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 TUE 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,” points out the TUE.
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.
The TEU points out that it has already declared that the payment of a compensation assessed for termination of contract of 20 days per year does not allow achieving the objective pursued by the framework agreement of preventing abuses derived 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 rules adopted in accordance with the framework agreement,” he indicated.
Likewise, the TUE understands that the call for consolidation procedures provided for in Spanish Law “is not adequate to properly sanction the abusive use” of temporary employment relationships.
