The Supreme Court modifies its criterion regarding the duration of interim contracts for public sector vacancies

The maximum duration shall be the duration of the selection processes to fill the vacancy in accordance with the provisions of their specific legal or contractual regulations, and in the absence of a time limit, 3 years.

Recently, the Judgment handed down by the European Court of Justice on 3-6-21, in case C-726/19, resolved a preliminary ruling question raised by the High Court of Justice of Madrid as to whether the Spanish regulation of the interim contract and the interpretation of it in the case law of the SC was in accordance with EU law European Union law, in an interim contract for a vacancy entered into by a public administration, the duration of which had been extended over thirteen years.

The reference for a preliminary ruling concerned the interpretation of clause 5 of the Framework Agreement on fixed-term work concluded on 18 March 1999 (“the Framework Agreement”), annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43).

The court which referred the question for a preliminary ruling emphasised that that regulation did not contain any indication as to the objective reasons justifying the renewal of temporary contracts for vacancies or their maximum duration, did not specify the maximum number of renewals, did not include equivalent legal measures and did not provide for any compensation for those workers in the event of dismissal.

Against this, the High Court of the European Union declared that “Clause 5(1) of the Framework Agreement on fixed-term work concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as precluding national legislation, as interpreted by national case law, which, first, permits, pending the completion of the selection procedures initiated to fill vacant posts for public sector workers, the renewal of fixed-term contracts, without indicating a precise time-limit for the completion of those procedures, and, second, prohibits both the assimilation of those workers to ‘non-regular open-ended workers’ and the grant of compensation to those workers. That national legislation, subject to the findings which it is for the referring court to make, does not appear to include any measure intended to prevent and, where appropriate, penalise the abusive use of successive fixed-term contracts.

The Fixed-Term Contracts Directive and its Framework Agreement aim to prevent abuse arising from the use of successive fixed-term employment contracts or relationships and therefore require Member States to adopt effectively and bindingly at least one of the measures listed therein where their national law does not provide for equivalent legal measures (Dir 1999/70/EC Framework Agreement clause 5).

On the basis of this ruling and in the face of several appeals based on it, the Fourth Chamber of the Supreme Court, meeting in plenary session, has unanimously decided to rectify the application it had been making of its own doctrine in relation to the duration of the interim contract for vacancies in the public sector, as the General Council of the Judiciary has made known in a press release. It states that, in application of the legal and regulatory provisions on the aforementioned contract, its maximum duration will be the duration of the selection processes to fill the vacancy in accordance with the provisions of its specific legal or conventional regulations.

In the absence of regulatory provisions, the Chamber understands, in general, that a duration of more than three years must be considered unjustifiably long, which will result in the interim worker becoming a non-permanent permanent employee. And, also, that the calculation of that period cannot be interrupted by budgetary rules on the suspension of public offers of employment, since the filling of vacancies covered by interim workers does not imply an increase in the budget.

The first deliberate and voted judgement in plenary in this sense is dated 28/06/2021, in which the Judge Ángel Antonio Blasco Pellicer has been the Rapporteur in an Appeal for the Unification of Doctrine which can be consulted in the following link: General Council of the Judiciary: Content search engine .

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