Judgment_paragraph 32 · Florentina Martínez Andrés and Juan Carlos Castrejana López v Servicio Vasco de Salud and Ayuntamiento de Vitoria (C-184/15, C-197/15)

32In those circumstances, the Tribunal Superior de Justicia del País Vasco (High Court of Justice of the Basque Country) decided to stay the proceedings and to refer the following questions to the Court of Justice, the third of which was asked in Case C‑197/15 only:(1) Must clause 5(1) of the framework agreement be interpreted as precluding national legislation which, in a situation of abuse resulting from the use of fixed-term employment contracts, does not confer on auxiliary temporary regulated staff (Case C‑184/15)/non-established state employees (Case C‑197/15), as opposed to staff who are in precisely the same position but who are employed by the public authority under an employment contract, a general right to remain in post on an indefinite but non-permanent basis, in other words, to hold the temporary post until it is filled in the manner prescribed by law or abolished in accordance with legally established procedures?(2) If the previous question is answered in the negative, must the principle of equivalence be interpreted as meaning that the national court may regard the situation of staff who are employed by a public authority under a fixed-term contract and that of auxiliary temporary regulated staff (Case C‑184/15)/non-established state employees (Case C‑197/15), are similar where there has been misuse of fixed-term employment contracts, or must the national court, when assessing similarity, consider factors other than the fact that the employer is the same, the services provided are the same or similar and the contract of employment has a fixed term, such as the precise nature of the employee’s relationship, whether contractual or administrative, or the power of the public authorities to organise the way they function, which justify treating the two situations differently?(3) If the previous questions are answered in the negative, must the principle of effectiveness be interpreted in such a way that the issue of the appropriate penalty is to be heard and determined within the same proceedings as those in which the misuse of fixed-term employment contracts is established, through interlocutory proceedings in which the parties may request, claim and prove what they deem to be appropriate in that regard, or, on the contrary, is it permissible for the injured party to be referred, for that purpose, to new administrative or, as the case may be, judicial proceedings?’