In a judgment delivered on Thursday 19 March (Joined Cases C-103/18 and C-429/18), the Court of Justice of the European Union ruled that the situation of people who have been continuously employed in the health service of the Comunidad de Madrid for a number of years under fixed-term contracts is covered by the concept of ‘successive fixed-term employment relationships’ within the meaning of the Framework Agreement concluded by ETUC, UNICE and CEEP, annexed to the Directive (1999/70) on fixed-term work.
These workers requested recognition of their status as members of the permanent regulated staff or as public employees enjoying a similar status, which was refused by the Comunidad de Madrid. They claim that for several years they have been appointed continuously to replacement posts which have not been the subject of competition procedures despite the legal obligation imposed on the employer to act within a specified period.
The Madrid Administrative Courts Nos 8 and 14 asked the Court to interpret the Framework Agreement (clause 5).
The EU judge noted first of all that one of the objectives pursued by the Framework Agreement is to place limits on successive recourse to fixed-term employment contracts, regarded as a potential source of abuse to the detriment of workers. It is for the Member States and/or social partners to determine under what conditions those employment relationships are considered to be ‘successive’.
The Court is of the opinion that clause 5 of the Framework Agreement precludes national legislation and case-law in accordance with which the successive renewal of fixed-term employment contracts is considered to be justified for ‘objective reasons’, namely grounds of necessity, urgency or for the development of programmes of a temporary, cyclical or extraordinary nature. Such national legislation and case-law does not prevent the employer concerned from responding to fixed and permanent staffing needs by means of fixed-term contracts.
In that regard, the Court points out that the successive appointments of the workers concerned did not meet the simple temporary needs of the Comunidad de Madrid, but sought to meet lasting and permanent staffing needs within the health service of that community. According to the two Madrid courts, there exists a structural problem in the Spanish public health sector, in the form of a high percentage of temporary workers.
The Court next ruled that it is for the national courts to assess whether certain measures, such as the organisation of selection procedures seeking to definitively fill posts occupied temporarily by workers employed in the context of fixed-term employment contracts, the conversion of the status of those workers into ‘non-permanent workers of indefinite duration’ and the granting of compensation equal to that paid in the event of unfair dismissal, constitute measures which are adequate for the purposes of preventing and, where appropriate, punishing abuses resulting from the use of successive fixed-term employment contracts.
The Court provided clarifications seeking to guide the court which referred the case in its assessment. The judge held that, in the event of abusive use by a public employer of successive fixed-term employment contracts, the fact that the worker concerned consented to the establishment and/or renewal of that employment relationship is not capable of removing the abusive element from that employer’s conduct.
The Court believes that the Framework Agreement is based implicitly but necessarily on the premise that workers, as a result of their position of weakness, are likely to be victims of an abusive use, by employers, of successive fixed-term employment contracts.
To read a press release on the judgment, go to: https://bit.ly/3beCBUq (Original version in French by Mathieu Bion)