María Elena Pérez López v Servicio Madrileño de Salud (Comunidad de Madrid).

• Jurisdiction: European Union
• Celex Number: 62015CJ0016
• ECLI: ECLI:EU:C:2016:679
• Docket Number: C-16/15
• Court: Court of Justice (European Union)
• Procedure Type: Cuestión prejudicial - inadmisible
• Date: 14 September 2016

JUDGMENT OF THE COURT (Tenth Chamber)

14 September 2016 (*1 )

‛Reference for a preliminary ruling — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clauses 3 to 5 — Successive fixed-term employment contracts within the public health service — Measures to prevent the abusive use of successive fixed-term employment relationships — Penalties — Reclassification of the employment relationship — Right to compensation’

In Case C‑16/15,

REQUEST for a preliminary ruling under Article 267 TFEU from the Juzgado de lo Contencioso-Administrativo No 4 de Madrid (Administrative Court No 4, Madrid, Spain), made by decision of 16 January 2015, received at the Court on 19 January 2015,

María Elena Pérez López

v

Servicio Madrileño de Salud (Comunidad de Madrid),

THE COURT (Tenth Chamber),

composed of F. Biltgen (Rapporteur), President of the Chamber, A. Borg Barthet and M. Berger, Judges,

Advocate General: M. Bobek,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

— Pérez López, by L. García Botella, abogado,

— the Spanish Government, by A. Gavela Llopis, acting as Agent,

— the European Commission, by M. van Beek and J. Guillem Carrau, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Clauses 3 to 5 of the framework agreement on fixed-term work, concluded on 18 March 1999 (‘the framework agreement’) set out in the Annex 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).

2 The request has been made in proceedings between María Elena Pérez López and the Servicio Madrileño de Salud, Comunidad de Madrid (Madrid Health Service, Spain) concerning the classification of her employment relationship that took the form of successive appointments as a member of the occasional regulated staff.

Legal context

EU law

3 Article 1 of Directive 1999/70 states that the purpose of the directive is ‘to put into effect the framework agreement ... concluded … between the general cross-industry organisations (ETUC, UNICE and CEEP)’.

4 Paragraphs 6, 7 and 8 of the general considerations of the framework agreement are worded as follows: ‘6. Whereas employment contracts of an indefinite duration are the general form of employment relationships and contribute to the quality of life of the workers concerned and improve performance; 7. Whereas the use of fixed-term employment contracts based on objective reasons is a way to prevent abuse; 8. Whereas fixed-term employment contracts are a feature of employment in certain sectors, occupations and activities which can suit both employers and workers’.

5 According to clause 1 of the framework agreement, the purpose of that agreement is, first, to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination and, secondly, to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

6 Clause 2(1) of the framework agreement, entitled ‘Scope’, provides: ‘This agreement applies to fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State.’

7 Clause 3 of the framework agreement, entitled ‘Definitions’, provides: ‘1. For the purpose of this agreement the term “fixed-term worker” means a person having an employment contract or relationship entered into directly between an employer and a worker where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event. 2. For the purpose of this agreement, the term “comparable permanent worker” means a worker with an employment contract or relationship of indefinite duration, in the same establishment, engaged in the same or similar work/occupation, due regard being given to qualifications/skills ...’

8 Clause 4 of the framework agreement, headed ‘Principle of non-discrimination’, provides, in paragraph 1: ‘In respect of employment conditions, fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds.’

9 Clause 5 of the framework agreement, entitled ‘Measures to prevent abuse’, provides, in paragraph 1: ‘To prevent abuse arising from the use of successive fixed-term employment contracts or relationships, Member States, after consultation with social partners in accordance with national law, collective agreements or practice, and/or the social partners, shall, where there are no equivalent legal measures to prevent abuse, introduce in a manner which takes account of the needs of specific sectors and/or categories of workers, one or more of the following measures: (a) objective reasons justifying the renewal of such contracts or relationships; (b) the maximum total duration of successive fixed-term employment contracts or relationships; (c) the number of renewals of such contracts or relationships.’

The relevant provisions of Spanish law

10 Article 9 of Ley 55/2003 del Estatuto Marco del Personal Estatutario de los Servicios de Salud (State Law 55/2003 on the framework regulations for health service staff regulated under administrative law) of 16 December (BOE No 301 of 17 December 2003, p. 44742, ‘the framework regulations’), provides as follows: ‘1. On grounds of need, urgency or for the development of programmes of a temporary, auxiliary or extraordinary nature, the health services may appoint temporary regulated staff. Temporary regulated staff may be appointed on an interim, occasional or replacement basis. 2. Appointment on an interim (or ‘temporary replacement’) basis may be used to temporarily cover a vacant post in the healthcare institutions or services where it is necessary to ensure performance of the duties pertaining to that post. The interim regulated staff member’s service shall be terminated if a permanent staff member is appointed, through the procedure laid down in law or regulation, to the post occupied by that interim regulated staff member, or if that post is abolished. 3. Appointment on an occasional basis shall be made in the following situations: (a) when it concerns the provision of certain services of a temporary, auxiliary or extraordinary nature; (b) when it is necessary in order to ensure the permanent and continuous operation of the healthcare institutions; (c) for the provision of additional services in order to compensate for a reduction of normal working hours. The occasional regulated staff member’s service shall be terminated when the purpose of the appointment has been accomplished, when the period expressly set out in his notice of appointment has expired, or when the duties for which the appointment was made are abolished. If more than two appointments are made for the provision of the same services for a total period of 12 months or more in a period of two years, the reasons for this shall be examined, in order to assess, if necessary, whether it is appropriate to create a permanent post in the healthcare institution concerned. …’

11 Under Article 15(3) of the Texto Refundido de la Ley del Estatuto de los Trabajadores, aprobado por el Real Decreto Legislativo 1/1995 (consolidated text of the Workers’ Statute, adopted by Royal Legislative Decree 1/1995)) of 24 March 1995 (BOE No 75 of 29 March 1995, p. 9654), in the version applicable at the material time (‘the Workers’ Statute’), ‘fixed-term contracts concluded in breach of the law are deemed to be concluded for an indefinite period.’

12 In accordance with Article 3 of Real Decreto 2720/1998 por el que se desarrolla el artículo 15 del Estatuto de los Trabajadores en materia de contratos de duración determinada (Royal Decree 2720/1998, implementing Article 15 of the Workers’ Statute on fixed-term contracts), of 18 December 1998 (BOE No 7 of 8 January 1999, p. 568), the contract for occasional employment, included in the category of fixed-term contracts, is intended to meet auxiliary needs.

13 Article 49(1)(c) of the Workers’ Statute provides that, when the employment contract is terminated, except in cases of interim contracts and training contracts, the worker is entitled to receive compensation in an amount equivalent to the proportionate part of the amount corresponding to the receipt of twelve days of salary per year of service.

The facts of the dispute in the main proceedings and the questions referred for a preliminary ruling

14 Ms Pérez López was recruited as a nurse and a member of the occasional regulated staff at the University Hospital of Madrid from 5 February to 31 July 2009. In accordance with the provisions of Article 9(3) of the framework regulations, the appointment notice described the reason for that appointment as the ‘provision of certain services of a temporary, auxiliary or extraordinary nature’ and described...