The judge of court 17 of the contentious believes that the doctrine of the Supreme Court fails to comply with the jurisprudence of the CJEU.
The contentious court 17 of Barcelona has raised 12 preliminary questions to the Superior Court of Justice of the EU (CJEU) on whether the interim law and the doctrine of the Supreme Court (TS) in this regard comply with the European directive that regulates the matter.
In his order, the judge expresses “doubts” about the measures to be applied by a State where the directive has not been transposed and, therefore, there are no state laws that guarantee compliance, as is the case in Spain, where – as the CJEU in 2020- there are no penalties for excessive temporality.
The order recalls that, in the absence of sanctions provided for in Spanish law, the Supreme Court issued two sentences in which “it chose to agree, as a sanctioning measure, the subsistence of the abusive temporary relationship until the employer administration called the corresponding selection process ” .
The judge states that this doctrine of the Supreme apparently -in his words- breaches the doctrine of the CJEU according to which, if in the legislation of a Member State there are no sanctioning measures to guarantee compliance with the directive, temporary hiring must be transformed into permanent “to prevent abuse from going unpunished and not to undermine the aim and effect” of the directive.
As stated by the two workers who initiated this procedure for abuse of temporality and that generated these doubts for the judge, the magistrate believes that the sanction cannot be to extend the abusive employment relationship until the administration summons a position, and for this reason he considers that the The Supreme Court’s position “what it does is prolong -read, perpetuate- the victim of abuse in this situation”.
As the law in Spain does not provide for sanctions in the public sector in the event of abusive temporality, the judge raises “the problem of determining what is the measure” that should be applied to guarantee that European regulations are complied with even if the directive is not transposed, and in particular if it is mandatory to make interims who have been abusively permanent.
In the opinion of the judge, the “most consistent and balanced” measure to comply with European regulations would be to transform the interim into a permanent contract.
The judge adds the interim law that was approved in December 2021 to reduce temporary employment in the public sector, nor does it respect the European directive or the interpretation of the CJEU.
He states that “it is foreseeable that said law will be a notorious failure, since the Spanish public administration is incapable of redirecting the precarious situation that affects more than 1 million civil servants” within a period of two and a half years.
He considers that the law “is nothing more than an attempt to ‘save face’ in the face of pressure” from affected groups and unions.
5
