The hundreds of thousands of interim public workers and labor personnel (temporary, indefinite and non-permanent indefinite) who have not seen the possibility of becoming permanent employees of the public sector clarified this Thursday. This is clear from the conclusions of the Advocate General of the European Union —whose guidelines are followed by most of the subsequent rulings of the Court of Justice of the EU—, who has left the decision of what to do with the group of public employees who suffer abuse of temporary employment to the Supreme Court. That said, the jurist of public workers who suffer abuse of temporary employment, because he does not find that Spain has sanctions in its regulations to prevent the abuse of temporary contracts in the public sector.
The referral of European justice to the Spanish Supreme Court is important because what this court says, in unification of doctrine, will mark the path of all future rulings in this regard. In fact, there are many rulings on this matter in different instances that are paralyzed awaiting the Supreme Court’s ruling. Until now, to those who suffer abuse of temporality.
Thus, although the Lithuanian Advocate General, Rimvydas Norkus, has defended that tenure in the Spanish public administration can only be acquired through an opposition, and has recognized that said conversion of non-permanent permanent staff to permanent employment is not automatic, it does condition it to the existence of effective measures in Spain that sanction and prevent the abuse of temporary employment, and these measures are what this magistrate does not find in Spanish law. However, he added that “it is up to the Supreme Court to assess whether, considering the criteria set out, the national regulations actually contain effective, dissuasive and proportionate measures to effectively sanction the abusive use of successive fixed-term contracts.”
The Advocate General proposes to the Court of Justice that, in its future ruling, it responds to the Spanish Supreme Court that, “in principle, the Framework Agreement contained in the Directive on fixed-term work does not oppose a national (Spanish) jurisprudence that, to guarantee a series of principles of constitutional rank – the principles of equality, merit, capacity and non-discrimination – as well as the free movement of workers, does not recognize the status of permanent public sector employees. “non-permanent permanent workers, provided, however, that the domestic legal system contains, in this sector, at least one other effective measure that makes it possible to avoid and, where appropriate, punish the abusive use of successive fixed-term contracts.”
However, according to the Advocate General, in the Spanish legal system there do not seem to be effective measures that allow abuse to be duly punished. Hence, it is possible to interpret that the door is open to the conversion of certain public employees who abuse their temporary employment to permanent ones. This is the theory, defended for the first time more clearly in that it leads the community justice to demand that Spain make permanent hundreds of thousands of public employees in abuse of temporary employment in the absence of sanctioning and dissuasive measures so that the Administrations do not abuse this type of contracting.
This has been indicated by Norkus, in a first response to the preliminary question posed by the Spanish Supreme Court on whether the Spanish law that prevents these workers from being made permanent, even if they suffer abuse of temporary employment by concatenating temporary contracts for years, respects community regulations. In this sense, the magistrate recalls that “the Court of Justice has declared on numerous occasions that the conversion of successive fixed-term contracts into a contract or employment relationship for an indefinite period is not mandatory for the Member States. Consequently, it has never required, or even suggested, that the status of permanent staff or career civil servant be recognized for a worker in the Public Administration without having previously passed the selective processes or the competitions, competitions or competitions-compositions provided, in accordance with the constitutional principles of equality, merit and capacity,” the CJEU indicates.
Although he then adds the tagline that this does not prevent said permanent worker status from being acquired if Spain does not have sufficient coercive measures to prevent the abuse of temporary employment. And he considers that Spanish law does not have them.
These are, therefore, conclusions about whether the Spanish national jurisprudence, which denies the recognition of the status of permanent workers in the public sector to non-permanent permanent workers, is in accordance with European Union Law. The High Court also asked the CJEU whether the compensation granted to non-permanent permanent workers at the end of their employment relationship, once the position they occupy on a temporary basis is filled, is an appropriate measure to prevent and punish abuses derived from the successive use of temporary contracts in the public sector.
