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TUE lawyer says that the abuse of temporary contracts in the public sector does not imply its conversion into fixed

BRUSSELS, Oct. 17 (EUROPE PRESS) –

The General Counsel of the Court of Justice of the European Union (TUE), Juliane Kokott, on Thursday endorsed the Spanish jurisprudence that does not sanction the abusive use of temporary contracts in the public sector with the automatic conversion of the affected people into permanent workers.

Specifically, the lawyer states that European legislation “does not oppose Spanish jurisprudence, according to which the abusive use of successive temporary appointments” in the public sector “is not automatically sanctioned with the transformation of the temporary service relationship into a fixed service relationship “.

TUE lawyer says that the abuse of temporary contracts in the public sector does not imply its conversion into fixed
TUE lawyer says that the abuse of temporary contracts in the public sector does not imply its conversion into fixed

Kokott's conclusions, however, are not binding for the future ruling of the Luxembourg court, although in most cases the final ruling usually follows the direction set by the general lawyers.

The General Counsel thus responds to the questions referred for a preliminary ruling by two courts in Madrid. The first issue involves a computer scientist who, after working for 17 years for the Madrid Health Service (Sermas) as an interim with renewed successive contracts, requested that the status of fixed public employee be recognized, but he was denied.

The second issue also involves several Sermas workers who were interim statutory personnel, in this case in the category of Dental Specialists. These employees held replacement, eventual and interim positions with temporary contracts for periods between 12 and 17 years. They also demanded that the Community of Madrid be recognized as a fixed public employee, but the request was rejected.

In its conclusions, the Advocate General says that community legislation “opposes” Spanish jurisprudence that, to consider that there is an objective reason that justifies the renewal of temporary contracts in public health, is based “exclusively” on which has respected the cause of the appointment or in which the functions to be performed are temporarily limited.

It is also illegal for the renewal of temporary contracts to be considered justified for “objective reasons” due to the fact that the appointments are based on rules that allow their renewal in order to guarantee the provision of certain temporary, temporary or extraordinary services. , although the need for personnel is “permanent and lasting”.

Subsequently, Kokott enters to assess the necessary national measures to punish abuses and proposes to the TEU that it is up to the national judges to assess whether they are adequate to sanction the abusive use of temporary contracts in the public service.

However, the attorney general adds, “without prejudice to the final assessment” that the national courts must do, that to sanction “properly” this abuse “it is not enough to call selective processes of free concurrence” when “access to a relationship of Fixed service is unpredictable and uncertain due to its modalities “and the national regulations” do not establish any other sanctioning measures “.

After this, Kokott states that European standards “do not oppose Spanish jurisprudence” according to which the abusive use of successive temporary appointments “in the public sector is not automatically sanctioned with the transformation of the temporary service relationship into a fixed service relationship “.

This practice, advocates the lawyer, “can recognize the affected personnel, on the one hand, a right to continue in the workplace until the employer has studied the needs of staff and has fulfilled the obligations arising therefrom.”

Also, he adds, it grants the affected worker “a right to full compensation for the damages caused by the abuse.” However, Kokott remarks that “these measures must be accompanied by an effective and dissuasive sanctions mechanism” and notes that “one would think of an additional obligation to pay compensation for a lump sum.”

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