KT and Others v Dirección General de la Función Pública, adscrita al Departamento de la Presidenia de la Generalitat de Catalunya and Departamento de Justicia de la Generalitat de Catalunya (C-331/22)

Contents

Judgment of the Court (Sixth Chamber)13 June 2024^note(References for a preliminary ruling — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Fixed-term employment contracts in the public sector — Interim civil servants — Clause 5 — Measures to prevent and penalise the improper use of successive fixed-term employment contracts or relationships)In Joined Cases C‑331/22 and C‑332/22,REQUESTS for a preliminary ruling under Article 267 TFEU from the Juzgado de lo Contencioso-Administrativo n.^o 17 de Barcelona (Administrative Court No 17, Barcelona, Spain), made by decisions of 12 May 2022 and 6 May 2022, received at the Court on 17 May 2022 and 19 May 2022 respectively, in the proceedingsKTvDirección General de la Función Pública, adscrita al Departamento de la Presidencia de la Generalitat de Catalunya (C‑331/22),HM,VDvDepartamento de Justicia de la Generalitat de Catalunya (C‑332/22),THE COURT (Sixth Chamber),composed of P.G. Xuereb, acting as President of the Chamber, A. Kumin (Rapporteur) and I. Ziemele, Judges,Advocate General: N. Emiliou,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– KT, by B. Salellas Vilar, abogado,– HM and VD, by J. Araúz de Robles Dávila, abogado,– the Dirección General de la Función Pública, adscrita al Departamento de la Presidencia de la Generalitat de Catalunya, and the Departamento de Justicia de la Generalitat de Catalunya, by B. Bernad Sorjús, letrada,– the Spanish Government, by A. Gavela Llopis, acting as Agent,– the Greek Government, by V. Baroutas and M. Tassopoulou, acting as Agents,– the European Commission, by I. Galindo Martín, D. Recchia and N. Ruiz García, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1These requests for a preliminary ruling concern the interpretation of clause 5(1) of the framework agreement on fixed-term work, concluded on 18 March 1999 (‘the Framework Agreement’), 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 (OJ 1999 L 175, p. 43).

2The requests have been made in proceedings between, in Case C‑331/22, KT and the Dirección General de la Función Pública, adscrita al Departamento de la Presidencia de la Generalitat de Catalunya (Directorate-General (DG) for the Civil Service, attached to the Department of the Presidency of the Government of Catalonia, Spain), and, in Case C‑332/22, HM and VD, of the one part, and the Departamento de Justicia de la Generalitat de Catalunya (Ministry of Justice of the Autonomous Community of Catalonia, Spain), of the other part, concerning the classification of the employment relationship between the persons concerned and the public administration concerned.

Legal context

European Union law

3The first paragraph of Article 2 of Directive 1999/70 provides:‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive [and are] required to take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by this Directive. …’

4Clause 1 of the Framework Agreement provides:‘The purpose of this framework agreement is to:…(b) establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.’

5Clause 4 of the Framework Agreement, entitled ‘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.’

6Clause 5 of the Framework Agreement, entitled ‘Measures to prevent abuse’, states:‘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.2. Member States after consultation with the social partners and/or the social partners shall, where appropriate, determine under what conditions fixed-term employment contracts or relationships:(a) shall be regarded as “successive”(b) shall be deemed to be contracts or relationships of indefinite duration.’

Spanish law

The Constitution

7Article 23(2) of the Constitución española (Spanish Constitution; ‘the Constitution’) provides that citizens ‘shall have the right to access on equal terms public office, in accordance with the requirements determined by law’.

8Article 103(3) of the Constitution provides, inter alia, that the status of civil servants and entry into the civil service in accordance with the principles of merit and ability are to be provided for in legislation.

Legislation on fixed-term work

–The Workers’ Statute

9Article 15(3) of Real Decreto Legislativo 2/2015, por el que se aprueba el texto refundido de la Ley del Estatuto de los Trabajadores (Royal Legislative Decree 2/2015 approving the consolidated text of the Law on the Workers’ Statute) of 23 October 2015 (BOE No 255 of 24 October 2015, p. 100224), in the version applicable to the facts of the main proceedings (‘the Workers’ Statute’), provides that ‘fixed-term contracts concluded in breach of the law are deemed to be concluded for an indefinite period’.

10Article 15(5) of the Workers’ Statute provides:‘Without prejudice to the provisions of [paragraph] 1(a) [and paragraphs] 2 and 3, workers who have been employed, with or without interruption, for longer than 24 months over a period of 30 months in the same or a different work position with the same undertaking or group of undertakings on two or more temporary contracts, regardless of whether the workers have entered into the contracts directly or have been supplied by temporary-employment agencies, with the same or different fixed-term conditions applying to said contracts, shall acquire the status of permanent workers. …’

–The EBEP

11Article 10 of the texto refundido de la Ley del Estatuto Básico del Empleado Público (consolidated text of the Law on the basic regulations relating to public employees), approved by Real Decreto Legislativo 5/2015 por el que se aprueba el Texto Refundido de la Ley del Estatuto Básico del Empleado Público (Royal Legislative Decree 5/2015 approving the consolidated text of the Law on the basic regulations relating to public employees), of 30 October 2015 (BOE No 261 of 31 October 2015, p. 103105), in the version applicable to facts in the main proceedings (‘the EBEP’), provides:1.Interim civil servants are persons who, for expressly justified reasons of necessity and urgency, are appointed to that status to perform the duties of career civil servants in one of the following cases:(a) the existence of vacant posts which cannot be occupied by career civil servants;(b) temporary replacement of career civil servants;(c) the carrying out of temporary programmes for a period not exceeding three years, which may be extended by 12 months under the laws governing the civil service adopted to implement this Statute;(d) an excessive workload or a backlog of work, for a maximum period of 6 months within a 12-month period.2. Interim civil servants shall be selected in accordance with accelerated procedures which comply in any event with the principles of equality, merit, ability and publicity.3. The employment of interim civil servants shall be terminated not only on the grounds provided for in Article 63 but also where the reason for their appointment ceases to apply.4. In the circumstances referred to in paragraph 1(a) of this article, vacant posts filled by interim civil servants shall be included on the list of vacancies for the year in which the appointments are made or, if that is not possible, for the following year, unless there is a decision to abolish the post.5. The general rules applicable to career civil servants shall apply to interim civil servants in so far as those rules are appropriate for their situation …’

12Article 70 of the EBEP reads:1. Human resource needs which receive a budget allocation and are to be met by appointing new members of staff shall be included on a list of public-sector vacancies or filled by means of another similar instrument for managing the fulfilment of staffing needs, which involves organising the relevant recruitment procedures for the posts to be filled (and up to [10%] more posts) and setting the maximum period for the publication of notices. In any event, the implementation of the list of public-sector vacancies or similar instrument must take place within a non-extendable period of three years.2. The list of public-sector vacancies or similar instrument, approved annually by the governing bodies of the public administration, shall be published in the corresponding official gazette.…’

–Law 20/2021

13Ley 20/2021, de medidas urgentes para la reducción de la temporalidad en el empleo público (Law 20/2021 on urgent measures to reduce the temporary nature of public employment), of 28 December 2021 (BOE No 312 of 29 December 2021, p. 165067; ‘Law 20/2021’), implicitly replaced Real Decreto-ley 14/2021 de medidas urgentes para la reducción de la temporalidad en el empleo público (Royal Decree-Law 14/2021 on urgent measures to reduce the temporary nature of public employment), of 6 July 2021 (BOE No 161 of 7 July 2021, p. 80375), and amended certain provisions of the EBEP.

14Article 2 of Law 20/2021, entitled ‘Stabilisation processes for fixed-term employment’, provides:1. In addition to the provisions of Article 19(1)(6) of [Ley 3/2017 de Presupuestos Generales del Estado para el año 2017 (Law 3/2017 on the general State budget for 2017) of 27 June 2017 (BOE No 153 of 28 June 2017, p. 53787)] and of Article 19(1)(9) of [Ley 6/2018 de Presupuestos Generales del Estado para el año 2018 (Law 6/2018 on the general State budget for 2018) of 3 July 2018 (BOE No 161 of 4 July 2018, p. 66621)], this law authorises an additional rate for the stabilisation of temporary employment, which includes permanent posts provided for in the budget occupied on a fixed-term and uninterrupted basis for at least three years prior to 31 December 2020, regardless of whether or not those posts are included in the lists of posts, staffing tables or other forms of human resources organisation applied in various public administrations.Without prejudice to the first transitional provision, the posts concerned by the stabilisation processes provided for in Article 19(1)(6) of Law 3/2017 on the general State budget for 2017 and in Article 19(1)(9) of Law 6/2018 on the general State budget for 2018 shall be included in the stabilisation process described in the previous paragraph, provided that they have been included in the corresponding vacancies for the stabilisation of employment in the public sector and, on the date of entry into force of this Law, have not been the subject of a call for applications or have been the subject of a call for applications and have remained unfilled at the end of the selection procedure.2. Vacancies that implement the stabilisation processes referred to in paragraph 1 as well as the new stabilisation process shall be approved and published in the relevant official gazettes before 1 June 2022 and shall be coordinated by the relevant public administrations.Competition notices for selection procedures to cover the posts included in list of public-sector vacancies shall be published before 31 December 2022.Those selection procedures shall be finalised before 31 December 2024.3. The rate of coverage of posts by fixed-term workers must be less than [8%] of permanent posts.4. The implementation of these selection procedures, which, in any event, shall ensure compliance with the principles of free competition, equality, merit, ability and publicity, may be the subject of negotiations in each of the areas covered by the General State Administration, the Autonomous Communities and local authorities, and measures may be taken within the Comisión de Coordinación del Empleo Público [(Public Employment Coordination Commission, Spain)] to enable the implementation of these procedures to be coordinated between the various public administrations.Without prejudice to any provisions of each administration’s own public service rules or of the specific rules, the selection system is the competition based on qualifications and tests, [40%] of the total mark being awarded to the selection stage based on qualifications, where experience in the body, scale, category or equivalent classification will mainly be taken into account, it being understood that the selection stage based on tests may not be eliminatory, in the context of the collective bargaining provided for in Article 37(1)(c) of the [EBEP].Where the sector-specific rules or rules of each administration so provide, internal mobility or promotion mechanisms prior to coverage of posts shall be compatible with the stabilisation processes.5. The outcome of those processes may not under any circumstances lead to an increase in expenditure or staff and those processes must necessarily offer permanent posts that are filled by temporary staff.6. Interim civil servants or fixed-term contract staff, while in service in that capacity, and whose contract is terminated by the administration due to their being unsuccessful in the selection procedure for the stabilisation of employment in the public sector, are entitled to financial compensation equivalent to 20 days’ fixed remuneration for each year of service, periods of less than a year being calculated pro rata on a monthly basis up to a maximum of 12 months.For fixed-term contract staff, that compensation corresponds to the difference between, on the one hand, a maximum of 20 days’ fixed remuneration per year of service, up to a maximum of 12 monthly payments, and, on the other hand, the compensation to which the worker is entitled on account of the termination of his or her contract, periods of less than one year being calculated pro rata on a monthly basis. Where that compensation is granted by legal action, the amounts shall be offset.A candidate’s failure to participate in the selection procedure for the stabilisation of employment in the public sector does not in any way entitle him or her to any financial compensation.7. In order to enable the tender to be monitored, public administrations shall certify to the Ministry of Finance and the Civil Service, through the State Secretariat for the Budget and Expenses, the number of permanent posts occupied on a fixed-term basis in each of the areas concerned.’

15In accordance with the sixth additional provision of Law 20/2021:‘By way of exception and in accordance with the provisions of Article 61(6) and (7) of the [EBEP], public administrations shall publish a call for applications in the form of competitions based on qualifications for posts that meet the requirements laid down in Article 2(1) and were continuously occupied on a fixed-term basis before 1 January 2016.Those selection procedures, organised only once, may be negotiated in each of the departments of the State administration, the Autonomous Communities and the local authorities and shall, in any event, comply with the time limits laid down in this law.’

16The eighth additional provision of Law 20/2021 provides:‘The stabilisation processes referred to in the sixth additional provision shall also include in their calls for applications vacant permanent posts occupied on a fixed-term basis by staff with an employment relationship of that nature prior to 1 January 2016.’

–Law 40/2015

17Article 87(5) of Ley 40/2015, de Régimen Jurídico del Sector Público (Law 40/2015 on the legal rules governing the public sector) of 1 October 2015 (BOE No 236 of 2 October 2015, p. 89411), as amended by Ley 11/2020, Presupuestos Generales del Estado para el año 2021 (Law 11/2020 on the general State budget for 2021) of 30 December 2020 (BOE No 341 of 31 December 2020, p. 125958) (‘Law 40/2015’), allows private employees of undertakings and entities governed by private law who join the public sector to perform the same duties as civil servants, with the right to remain in post until the end of their working lives.

The disputes in the main proceedings and the questions referred for a preliminary ruling

Case C‑331/22

18On 5 May 2005, KT was appointed, as an interim civil servant, to a management post within the administration of the Generalitat de Catalunya (Autonomous Community of Catalonia, Spain). Since that date, she has been the subject of several successive temporary appointments to that public administration, the last of those appointments being dated 5 August 2015. KT’s appointment was the result of a selection procedure conducted, inter alia, in accordance with the principles of merit, ability and equality, laid down in Article 103(3) of the Constitution.

19After the opening of the main proceedings in Case C‑331/22, the defendant in the main proceedings announced the organisation of a public selection procedure in order to fill, inter alia, the post occupied by KT. KT then requested the adoption of an interim measure to exclude that post from that selection procedure. That request was granted by the Juzgado de lo Contencioso-Administrativo n.^o 17 de Barcelona (Administrative Court No 17, Barcelona, Spain), which is the referring court in that case.

20Before the referring court, the applicant in the main proceedings submits that, in so far as she has occupied a vacant post since taking up her position and that no offer of employment has been made for that post, it would be appropriate, in order to remedy the improper use of successive temporary appointments made to her, to grant her the status of non-permanent worker of indefinite duration (‘indefinido no fijo’) or, in the alternative, to adopt a measure entailing the continuation of her employment.

21The defendant in the main proceedings maintains, by contrast, that, in accordance with the settled case-law of the Tribunal Supremo (Supreme Court, Spain), it is not possible to convert the temporary employment relationship of an interim civil servant into a permanent employment relationship. In addition, it denies the existence of any improper use. Last, it submits that, in any event, Law 20/2021, which provides for effective measures to reduce improper use of temporary employment in the public sector, allows the situation of interim civil servants to be rectified.

22The referring court submits that the applicant in the main proceedings initiated the proceedings in Case C‑331/22 at a time when national law did not provide for any legal consequence in the event of improper use of temporary employment in the public sector. That said, Law 20/2021, certain provisions of which are applicable to the dispute in the main proceedings in Case C‑331/22, lays down measures to reduce such improper use. However, the referring court has doubts as to whether that law complies with the Framework Agreement.

23In those circumstances, the Juzgado de la Contencioso-Administrativo n.^o 17 de Barcelona (Administrative Court No 17, Barcelona) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:(1) Law 20/2021 lays down as the sole punitive measure the holding of selection procedures and the payment of compensation only to victims of abuse who are not successful in those selection procedures. Does that law infringe clause 5 of the [Framework Agreement] by failing to penalise abuse occurring in relation to temporary public employees who have been successful in such selection procedures, when a penalty is always essential and success in such a selection procedure is not a punitive measure which satisfies the requirements laid down in [Directive 1999/70], as the [Court] held in its order of 2 June 2021[, SUSH and CGT Sanidad de Madrid (C‑103/19, EU:C:2021:460)]?(2) If the answer to the [first] question is in the affirmative, and Law 20/2021 does not lay down other effective measures penalising the misuse of a succession of fixed-term contracts or the improper extension of a temporary contract, does the legislative omission consisting of the failure to provide for the conversion of a succession of fixed-term employment contracts or the improper extension of a temporary contract into a contract of indefinite duration infringe clause 5 of the [Framework Agreement], as the [Court] ruled in its order of 30 September 2020[, Câmara Municipal de Gondomar (C‑135/20, EU:C:2020:760)]?(3) The Tribunal Supremo (Supreme Court) laid down in its judgments Nos 1425/2018 and 1426/2018 of 26 September 2018 the case-law, confirmed by its judgment No 1534/2021 of 20 December 2021, according to which the measure to be adopted in the event of misuse of temporary appointments may simply consist of keeping a public employee who is the victim of such misuse in a situation of job insecurity until such time as the employer administrative authority determines whether a structural need exists and holds the appropriate selection procedures – in which candidates who have not suffered such misuse of temporary appointments may also participate – to fill the posts concerned with permanent or career public employees. Does that case-law infringe clause 5 of the [Framework Agreement] when the holding of an open selection procedure and successful participation in that selection procedure is not a punitive measure which satisfies the requirements laid down in [Directive 1999/70], as the [Court] held in its order of 2 June 2021[, SUSH and CGT Sanidad de Madrid (C‑103/19, EU:C:2021:460)]?(4) If the answer to the [third] question is in the affirmative and the case-law of the Tribunal Supremo (Supreme Court) does not lay down other effective measures for penalising the misuse of successive fixed-term contracts or the improper extension of a temporary contract, does the judicial omission consisting of the failure to provide for the conversion of a succession of fixed-term employment contracts or the improper extension of a temporary contract into a contract of indefinite duration infringe clause 5 of the [Framework Agreement], as the [Court] ruled in its order of 30 September 2020[, Câmara Municipal de Gondomar (C‑135/20, EU:C:2020:760)]?(5) If the legislation adopted to transpose clause 5 of the [Framework Agreement] infringes [EU] law by failing to lay down any specific punitive measure which would ensure compliance with the objectives of that [EU] provision and bring to an end the job insecurity of public employees[, …] must the national judicial authorities proceed to order the conversion of an abusive temporary relationship into a permanent relationship which differs from that of a career civil servant but which gives the victim of the abuse job security to prevent that abuse from going unpunished and the undermining of the objectives of clause 5 of the Framework Agreement, even though such a conversion is not provided for in the domestic legislation, provided that the temporary relationship concerned was preceded by a selection process that was open to the public and complied with the principles of equality, merit and ability?’

Case C‑332/22

24HM has worked as an interim civil servant in the Justice Administration in Catalonia since 14 December 1984. Her length of service in that administration exceeded 37 years at the date on which the main proceedings in Case C‑332/22 were brought. Her employment relationship took the form of various appointments and the conclusion of various contracts. For more than eight years, HM has occupied the vacant post of procedural and administrative manager at the Juzgado de lo Penal n.^o 3 de Vilanova i la Geltrú (Criminal Court No 3, Vilanova i la Geltrú, Spain).

25VD has worked as an interim civil servant in the Justice Administration in Catalonia since 15 May 1991. Between that date and 31 May 2012, she was appointed to various judicial bodies in Barcelona. On 20 June 2012, she was appointed, as an interim civil servant of the Cuerpo de Tramitación Procesal y Administrativa (Court Clerks’ Office, Spain), to the Juzgado de lo Penal n.^o 3 de Barcelona (Criminal Court No 3, Barcelona, Spain). VD has occupied that vacant post since that date, that is to say, for more than nine years.

26Before the Juzgado de lo Contencioso-Administrativo n.^o 17 de Barcelona (Administrative Court No 17, Barcelona), which is, as in Case C‑331/22, the referring court in Case C‑332/22, the applicants in the main proceedings state that, throughout all the years of their employment within the Justice Administration in Catalonia, they performed duties identical to those of civil servants in a comparable situation and, therefore, met needs that are not temporary, urgent and exceptional, but ordinary, lasting and permanent. Therefore, they submit, it must be held that there was improper use, by the public administration concerned, of successive fixed-term employment contracts or relationships, which is incompatible with clause 5 of the Framework Agreement. In their view, since Spanish law does not provide, in the public sector, for a measure enabling such an action to be imposed, the penalty to be applied in that sector should be the conversion of their employment relationship into an employment relationship of indefinite duration, by the acquisition of the status of civil servant or, in the alternative, by transforming the abusive fixed-term employment relationship into an employment relationship of indefinite duration comparable to that of civil servants. In the further alternative, they ask the administration concerned to recognise their right to remain in the posts that they currently occupy, as holders of those posts. Last, they claim payment of a sum of EUR 18000 or an appropriate sum, by way of penalty for the improper use of successive fixed-term employment contracts or relationships of which they were victims.

27By contrast, the defendant in the main proceedings, first, claims that there was no improper use, since calls for applications for the posts occupied by the applicants in the main proceedings were published almost every year. Secondly, it refers to Law 20/2021, which makes it possible for the situation of the applicants in the main proceedings to be rectified.

28In those circumstances, the Juzgado de la Contencioso-Administrativo n.^o 17 de Barcelona (Administrative Court No 17, Barcelona) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:(1) [The referring court wishes to ascertain] whether the measures endorsed in [Tribunal Supremo (Supreme Court)] judgments Nos 1425/2018 and 1426/2018 of 26 September 2018, which express a position – still maintained today (30 November 2021) – the effect of which is to keep a public employee who has been a victim of [the] abuse [of successive fixed-term contracts] in the same abusive situation of insecure employment until such time as the employer administration determines whether there is a structural need [for the post in question to be made permanent] and issues a notice of competition for the relevant selection procedure with a view to filling the post with a permanent or career public employee, are measures which fulfil the requirements governing the prescription of penalties laid down in clause 5 of the [Framework Agreement];or whether, conversely, those measures have the effect of perpetuating insecurity and the lack of protection until such time as the employer administration decides at random, with a view to filling a post with a permanent employee, to issue a notice of competition for a selection procedure the outcome of which is uncertain inasmuch as such procedures are also open to candidates who have not been victims of such abuse, and are measures which cannot be construed as dissuasive punitive measures for the purposes of clause 5 of the [Framework Agreement] and do not guarantee that the objectives they pursue will be attained.(2) Where a national court, pursuant to its obligation to penalise the abuse established in any event (the penalty is “essential” and “immediate”), arrives at the conclusion that the principle that national law must be interpreted in conformity with EU law makes it impossible for it to give effect to the directive without adopting a contra legem interpretation of domestic law, precisely because the domestic law of the Member State in question has not introduced any punitive measures in order to give effect to clause 5 of the [Framework Agreement] in the public sector,must it apply the findings contained in the judgment of 17 April 2018[, Egenberger (C‑414/16, EU:C:2018:257)], or in the judgment (of the Grand Chamber) of 15 April 2008[, Impact (C‑268/06, EU:C:2008:223)], to the effect that Articles 21 and 47 of the Charter of [Fundamental] Rights of the European Union [(“the Charter”)] allow any provisions of domestic law that make it impossible to give full effect to Directive [1999/70] to be excluded, even if they have constitutional status?Does it therefore have a duty to convert an abusive temporary relationship into a permanent relationship identical to and on a par with that of comparable permanent employees, thus giving stability of employment to the victim of the abuse, in order to ensure that such abuse does not go unpunished and the objectives and effectiveness of clause 5 of the [Framework Agreement] are not undermined, even if such a conversion is prohibited by domestic legislation and the case-law of the [Tribunal Supremo (Supreme Court)], or might be contrary to the [Constitution]?(3) [Given] that the [Court] held in its judgments of 25 October 2018[, Sciotto (C‑331/17, EU:C:2018:859)], and of 13 January 2022[, MIUR and Ufficio Scolastico Regionale per la Campania (C‑282/19, EU:C:2022:3)], that clause 5 of the [Framework Agreement] precludes national legislation which excludes certain public employees from the application of provisions that penalise the abusive use of successive fixed-term contracts, if the domestic legal system contains no other effective measure for penalising such an abusive measure, and, given that Spanish law does not contain any measure for penalising abuse in the public sector that is applicable to the temporary staff who have brought this action,[does] the application of that case-law of the [Court] and of the [EU] principle of equivalence [impose] an obligation to convert temporary public employees who have been victims of abuse into permanent or career public employees, making them subject to the same grounds for dismissal and termination of the employment relationship as those that apply to the latter, in so far as, in the private sector, Article 15 of the [Workers’ Statute] lays down an obligation to convert into permanent staff temporary workers who, over a period of 30 months, have accrued more than 24 months’ continuous service for the same employer, and in so far as Article [87(5)] of [Law 40/2015], operates, pursuant to national law, to allow private-sector workers of undertakings and entities that move across to the public sector to perform the same duties as career civil servants, with the right to remain in post until the end of their working lives, thus making them subject to the same grounds for termination of employment as the latter[?](4) Given that the conditions relating to termination of the employment relationship and the requirements for terminating an employment contract form part of the “employment conditions” set out in clause 4 of the [Framework Agreement], according to the judgments of the [Court] of 13 March 2014[, Nierodzik (C‑38/13, EU:C:2014:152, paragraphs 27 and 29)], and of 14 September 2016[, de Diego Porras (C‑596/14, EU:C:2016:683, paragraphs 30 and 31)],[the referring court] seeks from the [Court], in the event that the answer to the [third] question is in the negative, a ruling as to whether stabilising the employment of temporary public-sector staff who have been victims of abuse by applying to them the same grounds for termination of employment and dismissal as apply to comparable career civil servants or permanent employees, without granting them that status, is a measure which the national authorities have an obligation to discharge pursuant to clauses 4 and 5 of the [Framework Agreement] and the principle that national law must be interpreted in conformity with EU law, since the national legislation prohibits only staff who do not fulfil certain requirements from acquiring permanent or career employee status, and stabilising the employment of such staff in the manner described does not entail the grant of that status.(5) In so far as Article 15 of the [Workers’ Statute] lays down a maximum period of duration for temporary contracts of two years, it being understood that, on the expiry of that period, the need met is no longer temporary or exceptional but routine and regular, in which event employers in the private sector are obliged to make the temporary relationship indefinite, and, in so far as, in the public sector, Article 10 of the [EBEP] lays down the obligation to include vacant posts occupied by interim/temporary staff in the list of public-sector vacancies for the year of appointment and, if this is not possible, that is to say within the maximum period of two years, in the list for the following year, with a view to ensuring that the post is filled by a permanent or career civil servant,[must it] be concluded that the abuse consisting in the conclusion of successive temporary contracts in the public sector arises as soon as the employer administration fails to fill a post occupied by a temporary public employee with a permanent or career employee within the time limits laid down in the Spanish legislation, that is to say by including that post in a list of public-sector vacancies within a maximum period of two years as from the appointment of the interim/temporary employee, thereby entering into an obligation to terminate the latter’s employment by filling the public-sector vacancy within the maximum period of three years laid down in Article 70 of the EBEP[?](6) [Does Law 20/2021 infringe] the [EU] principles of legality and the non-retroactivity of penalties contained in, inter alia, Article 49 of the [Charter], inasmuch as it provides, as a penalty for abuse in connection with temporary employment, for selection procedures which are triggered even if the actions or omissions constituting the infringement – and, therefore, the abuse – and the reporting thereof took place and were committed prior to – years before – the enactment of Law 20/2021[?](7) [Does] Law 20/2021, in providing as a punitive measure for the issue of notices of competition for selection procedures and compensation available only to victims of abuse who are unsuccessful in such a procedure, [infringe] clause 5 of the [Framework Agreement] and Directive [1999/70], since it prescribes no penalties for abuse arising in respect of temporary public employees who have been successful in such selection procedures, notwithstanding that a penalty must always be provided for and the successful completion of such a selection procedure is not a punitive measure which fulfils the requirements of the Directive, as the [Court] states [in] its order of 2 June 2021[, SUSH and CGT Sanidad de Madrid (C‑103/19, EU:C:2021:460)?]In other words, [does] Law 20/2021, in limiting the award of compensation to staff having been victims of abuse who are unsuccessful in a selection procedure, thus excluding from that right employees having been the subject of abuse who acquired permanent staff status, through such selection procedures, subsequently, [infringe] Directive [1999/70] and, in particular, the ruling given in the order of the [Court] of 2 June 2021, [SUSH and CGT Sanidad de Madrid (C‑103/19, EU:C:2021:460, paragraph 45)], according to which, although the organisation of selection procedures open to public employees who were abusively appointed under successive fixed-term employment relationships allows such employees to apply for a permanent and stable post and, therefore, for access to permanent public employee status, this does not relieve Member States of the obligation to establish a suitable measure for properly penalising the abusive use of successive fixed-term employment contracts and relationships[?](8) [Does] Law 20/2021, in providing that selection procedures aimed at reducing temporary employment in the public sector must take place within a period of three years, by 31 December 2024, and in laying down as a penalty compensation receivable upon the termination of employment or dismissal of the victim of abuse, [infringe] clause 5 of the [Framework Agreement], in the light of the order of the [Court] of 9 February 2017[, Rodrigo Sanz (C‑443/16, EU:C:2017:109),] or the judgments of the [Court] of 14 [September 2016, Pérez López (C‑16/15, EU:C:2016:679),] and of 21 November 2018[, Diego Porras (C‑619/17, EU:C:2018:936)], inasmuch as it has the effect of perpetuating or prolonging an abused employee’s position as a victim of abuse, lack of protection and insecurity of employment, thus undermining the effectiveness of Directive 1999/70 until such time as the worker is finally dismissed and qualifies for the aforementioned compensation[?](9) [Does] Law 20/2021 [infringe] the principle of equivalence, since it confers rights under the directive which are inferior to those that flow from domestic law, inasmuch as:– Law 11/2020 on the general State budget for 2021, in amending Article [87(5)] of Law 40/[2015], operates, pursuant to domestic law, to allow private-sector workers of undertakings that move across to the public sector to perform the same duties as career civil servants, while remaining subject to the same grounds for termination of employment, even if they have not successfully completed a selection procedure, with the right to remain in post until the end of their working lives, whereas Law 20/2021, pursuant to EU law, does not allow workers who have been selected in accordance with selection procedures subject to principles of equality, publicity and free competition to continue to perform the same duties as career civil servants and to remain subject to the same grounds for termination of employment[;]– Article 15 of the [Workers’ Statute], as amended by [Real Decreto Legislativo] 1/1995, [por el que se aprueba el texto refundido de la Ley del Estatuto de los Trabajadores (Royal Legislative Decree 1/1995, approving the consolidated text of the Law on the Workers’ Statute), of 24 March 1995 (BOE No 75 of 29 March 1995, p. 9654)], that is to say prior to the adoption of Directive 1999/70, operates – pursuant to domestic law – to allow private-sector workers who have been working for the same employer for more than two years to become permanent employees, whereas, pursuant to the [directive], public-sector workers who have been victims of abuse qualify only for compensation equal to 20 days per year of service up to a limit of [the equivalent of] 12 monthly salary payments, with no right to become permanent employees[;]– the provisions of Article 32 et seq. of [Law 40/2015] establish the principle of full reparation, which imposes on the administrative authorities an obligation to provide compensation for any loss and damage caused to the victims of their actions, and yet, pursuant to [EU] law, compensation for victims of abuse is restricted by a prior upper limit, in terms of both amount – 20 days per year of service – and time – 12 monthly salary payments.(10) [Does] Law 20/2021, in providing as the only genuine punitive measure for compensation equal to 20 days per year of service for victims of abuse who have been unsuccessful in a selection procedure, [infringe] the case-law established by the [Court] in its judgment of 7 March 2018[, Santoro (C‑494/16, EU:C:2018:166)], according to which, in the public sector, in order to comply with [Directive 1999/70], compensation alone is not sufficient, but must be accompanied by other additional, effective, proportionate and dissuasive punitive measures[?](11) [Does] Law 20/2021, in fixing the compensation available to victims who are unsuccessful in a selection procedure at 20 days per year of service up to a limit of [the equivalent of] 12 monthly salary payments, [infringe] the [EU] principles of adequate and full compensation and proportionality, in that it excludes loss of earnings and other heads of indemnification or compensation such as, for example, those arising from the loss of opportunities (as referred to in the judgment of the [Court of 7 March 2018, Santoro (C‑494/16, EU:C:2018:166)]); the impossibility of acquiring permanent staff status because no notices of competition for selection processes are issued within the time limits laid down in the domestic legislation, or the inability to secure promotion or progression; the non-material damage arising from the lack of protection attendant upon any insecure employment; termination of the employment of a victim of abuse whose age and sex (a woman over the age of 50, for example) deprives them of an alternative labour market; or the reduction of the retirement pension[?](12) [Does] Law 20/2021, in providing for compensation capped at 20 days per year of service and [the equivalent of] 12 monthly salary payments, [infringe] the Community legislation, in the light of the judgments of the [Court] of 2 August 1993[, Marshall (C‑271/91, EU:C:1993:335)], and of 17 December 2015[, Arjona Camacho (C‑407/14, EU:C:2015:831)], according to which EU law precludes reparation for the loss and damage sustained by a person as a result of dismissal from being restricted by a prior upper limit[?]’

Procedure before the Court

29By decision of 19 September 2023, Cases C‑331/22 and C‑332/22 were joined for the purposes of the judgment, in accordance with Article 54(1) of the Rules of Procedure of the Court of Justice.

Jurisdiction of the Court and the admissibility of the requests for a preliminary ruling

30In the first place, the defendants in the main proceedings and the Spanish Government submit that the Court does not have jurisdiction to answer the requests for a preliminary ruling, since, by those requests, the referring court asks the Court to interpret the punitive measures provided for by Law 20/2021 and to rule on whether those measures are compatible with the Framework Agreement. According to the Spanish Government, those requests amount to requiring the Court to give an advisory opinion of general application on the concept of ‘interim civil servant’, as provided for in Spanish law.

31In the second place, the defendants in the main proceedings and the Spanish Government maintain that the requests for a preliminary ruling, in so far as they concern measures set out in Law 20/2021 or resulting from the case-law of the Tribunal Supremo (Supreme Court), go beyond the subject matter of the disputes in the main proceedings and, therefore, raise a hypothetical issue.

32They maintain that the applicants in the main proceedings merely ask that their temporary employment relationship be reclassified as an employment relationship of indefinite duration, without basing those claims on those measures or that case-law. Thus, for example, first, compensation for termination of the employment relationship in the event of being unsuccessful in the selection procedure, provided for in Article 2 of Law 20/2021, secondly, participation in that selection procedure as a means of obtaining a permanent post or, thirdly, the measure, established by the case-law of the Tribunal Supremo (Supreme Court), of continued employment until the corresponding selection procedure is organised and closed are measures that are not the subject of the main proceedings and are therefore irrelevant to the resolution of those disputes.

33It must be recalled that the system of cooperation established by Article 267 TFEU is based on a clear division of responsibilities between the national courts and the Court of Justice. In proceedings brought on the basis of that article, the interpretation of provisions of national law is a matter for the courts of the Member States, not for the Court of Justice, and the Court has no jurisdiction to rule on the compatibility of rules of national law with EU law. On the other hand, the Court does have jurisdiction to provide the national court with all the guidance as to the interpretation of EU law necessary to enable that court to rule on the compatibility of national rules with EU law (judgment of 25 October 2018, Sciotto, C‑331/17, EU:C:2018:859, paragraph 27 and the case-law cited).

34It must also be recalled that, in the context of the cooperation between the Court of Justice and the national courts provided for in Article 267 TFEU, it is solely for the national court, before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court of Justice. Consequently, where the questions referred concern the interpretation of EU law, the Court is in principle required to give a ruling (judgment of 3 June 2021, Ministero dell’Istruzione, dell’Università e della Ricerca – MIUR and Others (Academic researchers), C‑326/19, EU:C:2021:438, paragraph 35 and the case-law cited).

35It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see judgment of 3 June 2021, Ministero dell’Istruzione, dell’Università e della Ricerca – MIUR and Others (Academic researchers), C‑326/19, EU:C:2021:438, paragraph 36 and the case-law cited).

36In the present case, although it is true that, on a literal reading of the referring court’s questions, the Court is being asked to rule on the compatibility of provisions of national law with EU law, including measures established by national case-law, there is nothing to prevent the Court from giving an answer that will be of use to the national court, by providing the latter with guidance as to the interpretation of EU law which will enable that court to rule itself on the compatibility of the national rules with EU law (see judgment of 25 October 2018, Sciotto, C‑331/17, EU:C:2018:859, paragraph 28 and the case-law cited).

37Furthermore, it is clearly apparent from the requests for a preliminary ruling that the referring court, in the context of the resolution of the disputes in the main proceedings, will be required to determine which national measures make it possible, in accordance with the requirements resulting from Directive 1999/70, for the improper use of successive fixed-term employment relationships to be penalised.

38In those circumstances, it is not obvious that the interpretation of clause 5 of the Framework Agreement, sought by the referring court, bears no relation to the actual facts of the disputes in the main proceedings or the purpose of those proceedings, or that the questions concerning the national measures referred to in paragraph 32 of the present judgment, as measures capable of penalising, in accordance with the requirements of Directive 1999/70, the improper use of the temporary employment relationships concerned, raise a hypothetical problem.

39That said, by the sixth question referred in Case C‑332/22, the referring court asks, in essence, whether the principles of legality and non-retroactivity of criminal provisions, laid down, inter alia, in Article 49 of the Charter, preclude the retroactive application of national legislation, such as Law 20/2021, in so far as it provides, in order to reduce the rate of temporary employment, for measures less favourable for workers who have been the victims of improper use of successive fixed-term employment contracts or relationships than the previous national legislation.

40It must be held that the principles of legality and non-retroactivity of criminal provisions are not applicable in a situation in which the national provisions concerned are not of that nature, but lay down, as the referring court observes, urgent measures designed to reduce the rate of fixed-term employment in the public sector and, to that end, require, subject to certain conditions, the public administration concerned to organise selection procedures or to pay compensation to workers recruited on a successive fixed-term basis.

41In those circumstances, it is clear that the interpretation of EU law sought in the sixth question referred in Case C‑332/22 has no bearing on the facts or subject matter of the main proceedings. Therefore, in accordance with the case-law referred to in paragraph 35 of the present judgment, that question must be declared inadmissible.

42It follows from the foregoing considerations, first, that the Court has jurisdiction to rule on the requests for a preliminary ruling and, secondly, that the requests for a preliminary ruling are admissible, with the exception of the sixth question referred in Case C‑332/22.

Consideration of the questions referred

The fifth question referred in Case C‑332/22

43By the fifth question referred in Case C‑332/22, which it is appropriate to examine in the first place, the referring court asks, in essence, whether clause 5 of the Framework Agreement must be interpreted as precluding national legislation under which recourse to successive fixed-term employment contracts or relationships in the public sector becomes abusive where the public administration concerned does not comply with the time limits laid down in national law for filling the post occupied by the temporary worker concerned, on the ground that, once those time limits have expired, those successive fixed-term employment contracts or relationships cover needs of that administration that are not temporary, but fixed and permanent.

44In that regard, it should be recalled that the objective of the Framework Agreement, as set out in clause 1 thereof, is, inter alia, to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

45The purpose of clause 5 of the Framework Agreement is to implement that objective, namely to place limits on successive recourse to fixed-term employment contracts or relationships, regarded as a potential source of abuse to the detriment of workers, by laying down as a minimum a number of protective provisions designed to ensure that the status of employees is not made insecure (judgment of 3 June 2021, Instituto Madrileño de Investigación y Desarrollo Rural, Agrario y Alimentario, C‑726/19, EU:C:2021:439, paragraph 26 and the case-law cited).

46Therefore, clause 5(1) of the Framework Agreement requires, with a view to preventing misuse of successive fixed-term employment contracts or relationships, the effective and binding adoption by Member States of at least one of the measures listed in that provision, where their domestic law does not already include equivalent legal measures. The measures listed in clause 5(1)(a) to (c), of which there are three, relate, respectively, to objective reasons justifying the renewal of such employment contracts or relationships, the maximum total duration of successive fixed-term employment contracts or relationships, and the number of renewals of such contracts or relationships (judgment of 3 June 2021, Ministero dell’Istruzione, dell’Università e della Ricerca – MIUR and Others (Academic researchers), C‑326/19, EU:C:2021:438, paragraph 56 and the case-law cited).

47The Member States enjoy a certain discretion in that regard since they have the choice of relying on one or more of the measures listed in clause 5(1)(a) to (c) of the Framework Agreement, or on existing equivalent legal measures, while taking account of the needs of specific sectors and/or categories of workers (judgment of 3 June 2021, Ministero dell’Istruzione, dell’Università e della Ricerca – MIUR and Others (Academic researchers), C‑326/19, EU:C:2021:438, paragraph 57 and the case-law cited).

48In that way, clause 5(1) of the Framework Agreement assigns to the Member States the general objective of preventing such abuse, while leaving to them the choice as to how to achieve it, provided that they do not compromise the objective or the practical effect of the Framework Agreement (judgment of 3 June 2021, Ministero dell’Istruzione, dell’Università e della Ricerca – MIUR and Others (Academic researchers), C‑326/19, EU:C:2021:438, paragraph 58 and the case-law cited).

49However, it is clear from the wording of clause 5 of the Framework Agreement and from settled case-law that that clause is applicable solely when there are successive fixed-term employment contracts or relationships, so that a contract which is the very first or only fixed-term employment contract does not fall within the scope of clause 5(1) of the Framework Agreement (see judgment of 3 June 2021, Ministero dell’Istruzione, dell’Università e della Ricerca – MIUR and Others (Academic researchers), C‑326/19, EU:C:2021:438, paragraph 52 and the case-law cited).

50In the present cases, it is apparent from the order for reference in Case C‑332/22 that the employment relationships between the applicants in the main proceedings and the public administration concerned took the form of successive appointments and/or the conclusion of successive fixed-term contracts. Therefore, subject to verifications that it is for the referring court to make, clause 5 of the Framework Agreement is applicable to the situations in the main proceedings in these cases.

51In addition, it should be noted that the temporary replacement of a worker in order to satisfy the temporary staffing requirements of the employer concerned may, in principle, constitute an ‘objective reason’ within the meaning of clause 5(1)(a) of the Framework Agreement (judgment of 19 March 2020, Sánchez Ruiz and Others, C‑103/18 and C‑429/18, EU:C:2020:219, paragraph 72 and the case-law cited).

52In that regard, in the first place, the Court has stated that it cannot be accepted that fixed-term employment contracts may be renewed for the purpose of the performance, in a fixed and permanent manner, of tasks in the service in question which normally come under the activity of the staff concerned (judgment of 19 March 2020, Sánchez Ruiz and Others, C‑103/18 and C‑429/18, EU:C:2020:219, paragraph 75 and the case-law cited).

53The renewal of fixed-term employment contracts or relationships in order to cover needs which, in fact, are not temporary in nature but, on the contrary, fixed and permanent is not justified for the purposes of clause 5(1)(a) of the Framework Agreement, in so far as such use of fixed-term employment contracts or relationships conflicts directly with the premiss on which the Framework Agreement is founded, namely that employment contracts of indefinite duration are the general form of employment relationship, even though fixed-term employment contracts are a feature of employment in certain sectors or in respect of certain occupations and activities (judgment of 19 March 2020, Sánchez Ruiz and Others, C‑103/18 and C‑429/18, EU:C:2020:219, paragraph 76 and the case-law cited).

54In order for clause 5(1)(a) of the Framework Agreement to be complied with, it must therefore be specifically verified that the successive renewal of fixed-term employment contracts or relationships is intended to cover temporary needs and that a national provision such as that at issue in the main proceedings is not, in fact, being used to meet fixed and permanent staffing needs of the employer concerned (judgment of 19 March 2020, Sánchez Ruiz and Others, C‑103/18 and C‑429/18, EU:C:2020:219, paragraph 77 and the case-law cited).

55In the second place, the Court has held that a national measure which provides for the organisation within the relevant deadlines of selection procedures seeking definitively to fill posts occupied temporarily by fixed-term workers is capable of preventing the precarious situation of those workers from becoming entrenched, by ensuring that the posts they occupy are rapidly filled definitively (see judgment of 3 June 2021, Instituto Madrileño de Investigación y Desarrollo Rural, Agrario y Alimentario, C‑726/19, EU:C:2021:439, paragraph 64 and the case-law cited).

56Therefore, the organisation within the relevant deadlines of such procedures is, in principle, capable of preventing abuses resulting from the use of successive fixed-term employment contracts or relationships until those posts are definitively filled (judgment of 3 June 2021, Instituto Madrileño de Investigación y Desarrollo Rural, Agrario y Alimentario, C‑726/19, EU:C:2021:439, paragraph 65 and the case-law cited).

57However, the Court has also held that national legislation which provides for the organisation of selection procedures seeking definitively to fill posts occupied temporarily by fixed-term workers as well as a precise deadline for that purpose, but which does not allow it to be ensured that such procedures are actually organised, does not appear capable of preventing the abusive use, by the employer concerned, of successive fixed-term employment contracts or relationships (judgment of 3 June 2021, Instituto Madrileño de Investigación y Desarrollo Rural, Agrario y Alimentario, C‑726/19, EU:C:2021:439, paragraph 67 and the case-law cited).

58In that context, it should be noted that it is not for the Court to rule on the interpretation of provisions of national law, that being exclusively for the national courts having jurisdiction, which must determine whether the requirements set out in clause 5 of the Framework Agreement are met by the provisions of the applicable national law (see judgment of 3 June 2021, Instituto Madrileño de Investigación y Desarrollo Rural, Agrario y Alimentario, C‑726/19, EU:C:2021:439, paragraph 50 and the case-law cited).

59It is therefore for the referring court to determine to what extent the conditions for application and the actual implementation of the relevant provisions of national law render the latter an appropriate measure for preventing the misuse of successive fixed-term employment contracts or relationships (see judgment of 3 June 2021, Instituto Madrileño de Investigación y Desarrollo Rural, Agrario y Alimentario, C‑726/19, EU:C:2021:439, paragraph 51 and the case-law cited).

60However, the Court, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give those courts guidance in their assessment (judgment of 3 June 2021, Instituto Madrileño de Investigación y Desarrollo Rural, Agrario y Alimentario, C‑726/19, EU:C:2021:439, paragraph 52 and the case-law cited).

61In the present cases, the referring court states that Spanish legislation lays down rules under which the use of successive employment contracts or relationships may be regarded as abusive where those employment contracts or relationships exceed two years, on the ground that, in such a situation, those employment contracts or relationships cover needs of the employer concerned that are not temporary, but fixed and permanent. Thus, as regards workers in the public sector, Article 10(4) of the EBEP provides that vacant posts occupied by interim civil servants are to be included in the list of public-sector vacancies with a view to being filled by a civil servant within a maximum period of two years from the date of appointment of the interim civil servant concerned. Furthermore, under Article 70 of the EBEP, it is for the administration to terminate those fixed-term employment contracts or relationships by implementing that list of public-sector vacancies within a maximum period of three years.

62Subject to verification by the referring court, a national provision such as Article 10 of the EBEP does not appear to lay down a general and abstract obligation to have recourse to successive fixed-term employment contracts or relationships, but restricts the conclusion of such contracts in order to meet, in essence, temporary needs.

63Furthermore, it is apparent from the order for reference in Case C‑332/22 that the national provisions referred to in paragraph 61 of the present judgment also contain the measures indicated in clause 5(1)(b) and (c) of the Framework Agreement, namely, first, a limit on the maximum total duration of successive fixed-term employment contracts or relationships and, secondly, the maximum number of renewals of those contracts or relationships, which it is for the referring court to verify.

64That said, it is also apparent from the order for reference in Case C‑332/22 that the successive appointments of the applicants in the main proceedings in that case and/or the conclusion of successive contracts by them did not meet mere temporary needs of the Justice Administration in Catalonia, but were intended to meet the fixed and permanent staffing needs within that administration. It follows from that order for reference that, at the date on which they brought their actions, those applicants had been employed by that administration for more than 37 or 17 consecutive years and that they performed tasks falling under the normal activity of staff benefiting from a permanent status. It should be added that national legislation, such as that referred to in paragraph 61 of the present judgment, would also give rise to a risk of improper use of successive fixed-term contracts or relationships if the legal obligation to fill the posts temporarily occupied by interim civil servants within the prescribed period were not complied with. In view of the facts set out in that order for reference, such a risk arose in the present cases.

65In the light of the foregoing considerations, the answer to the fifth question referred in Case C‑332/22 is that clause 5 of the Framework Agreement must be interpreted as not precluding national legislation according to which recourse to successive fixed-term employment contracts or relationships in the public sector becomes abusive where the public administration concerned does not comply with the time limits laid down in national law for filling the post occupied by the temporary worker concerned, since, in such a situation, those successive fixed-term employment contracts or relationships cover needs of that administration that are not temporary, but fixed and permanent.

The first and third questions referred in Case C‑331/22 and the first and seventh to twelfth questions referred in Case C‑332/22

66By the first and third questions referred in Case C‑331/22 and by the first and seventh to twelfth questions referred in Case C‑332/22, which it is appropriate to examine together in the second place, the referring court asks, in essence, whether clause 5 of the Framework Agreement, read in the light of the principles of equivalence and proportionality and the principle that damage suffered must be made good, must be interpreted as precluding national case-law and legislation that provide as measures intended to penalise the improper use of successive fixed-term employment contracts or relationships, respectively, the continued employment of the worker concerned until selection procedures are organised and closed by the employing administration, as well as the organisation of such procedures and the payment of financial compensation that sets a double ceiling solely in favour of that worker who is unsuccessful in those procedures.

67In that regard, it must be borne in mind that clause 5 of the Framework Agreement does not lay down any specific penalties where instances of misuse have been established. In that case, it is incumbent on the national authorities to adopt measures that are not only proportionate, but also are sufficiently effective and act as sufficient deterrent to ensure that the measures taken pursuant to the Framework Agreement are fully effective (judgment of 13 January 2022, MIUR and Ufficio Scolastico Regionale per la Campania, C‑282/19, EU:C:2022:3, paragraph 81 and the case-law cited).

68While, in the absence of relevant EU rules, the detailed rules for implementing such provisions are a matter for the domestic legal order of the Member States, under the principle of their procedural autonomy, they must not, however, be less favourable than those governing similar domestic situations (principle of equivalence) or render impossible in practice or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness) (judgment of 3 June 2021, Instituto Madrileño de Investigación y Desarrollo Rural, Agrario y Alimentario, C‑726/19, EU:C:2021:439, paragraph 47 and the case-law cited).

69Furthermore, the Court has held that, where the improper use of successive fixed-term employment contracts or relationships has taken place, a measure offering effective and equivalent safeguards for the protection of workers must be capable of being applied in order duly to penalise that abuse and to nullify the consequences of the breach of EU law. According to the very wording of the first paragraph of Article 2 of Directive 1999/70, Member States must ‘take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by [that] Directive’ (judgment of 13 January 2022, MIUR and Ufficio Scolastico Regionale per la Campania, C‑282/19, EU:C:2022:3, paragraph 84 and the case-law cited).

70It must also be borne in mind, as mentioned in paragraph 58 of the present judgment, that it is not for the Court to rule on the interpretation of national legislation and case-law, that being exclusively for the national courts having jurisdiction, which must determine whether the requirements set out in clause 5 of the Framework Agreement are met by that legislation and that case-law (see, to that effect, judgment of 3 June 2021, Instituto Madrileño de Investigación y Desarrollo Rural, Agrario y Alimentario, C‑726/19, EU:C:2021:439, paragraph 50 and the case-law cited).

71It is therefore for the referring court to determine to what extent the conditions for the application and actual implementation of the national legislation and case-law at issue in the main proceedings render the latter appropriate measures for punishing the misuse of successive fixed-term employment contracts or relationships (see, to that effect, judgment of 3 June 2021, Instituto Madrileño de Investigación y Desarrollo Rural, Agrario y Alimentario, C‑726/19, EU:C:2021:439, paragraph 51 and the case-law cited).

72However, as is apparent from the case-law cited in paragraph 60 of the present judgment, the Court, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give those courts guidance in their assessment.

73In the present cases, it is apparent from the orders for reference, first, that, in accordance with the case-law of the Tribunal Supremo (Supreme Court), in situations of improper use of temporary appointments of public employees, continued employment of the public employee who is the victim of the improper use in his or her post until the administration employing him or her (i) determines whether there is a structural need and, therefore, organises the corresponding selection procedure, which is also open to candidates who have not been the victims of such improper use, to fill the post concerned on a permanent basis and (ii) closes that procedure, must be regarded as an effective measure for penalising those situations.

74Secondly, for workers appointed before the entry into force of Law 20/2021, such as those in question in the main proceedings, Article 2 of that law provides for two measures intended to penalise improper use of successive fixed-term employment contracts or relationships, namely, on the one hand, the organisation of selection procedures, which are also open to candidates who have not been subject to such improper use and, on the other hand, the payment of financial compensation of 20 days per year of service up to a maximum of 12 monthly payments, provided that the worker concerned has not been successful in the selection procedure organised to fill the post previously occupied by that worker.

75As regards the organisation of selection procedures as a punitive measure in accordance with clause 5 of the Framework Agreement, such as that applied by Spanish case-law or provided for in Article 2 of Law 20/2021, it should be noted that the Court has stated that, although the organisation of selection procedures provides the opportunity to workers who have been abusively employed in the context of successive fixed-term employment contracts or relationships of attempting to gain access to stable employment, since those workers could, in principle, participate in those procedures, such a circumstance cannot relieve the Member States of their need to comply with the obligation to provide adequate measures duly to penalise the abusive use of those successive fixed-term employment contracts and relationships. Such procedures, the outcome of which is moreover uncertain, are, in general, also accessible to candidates who have not been victims of such abuse (see, to that effect, judgment of 19 March 2020, Sánchez Ruiz and Others, C‑103/18 and C‑429/18, EU:C:2020:219, paragraph 100).

76Accordingly, since such procedures are organised irrespective of any consideration as to the abusive use of fixed-term employment contracts or relationships, it does not appear to be capable of duly penalising the improper use of such contracts or relationships and of nullifying the consequences of the breach of EU law. It therefore does not appear to allow the purpose of clause 5 of the Framework Agreement to be fulfilled (see, to that effect, judgment of 19 March 2020, Sánchez Ruiz and Others, C‑103/18 and C‑429/18, EU:C:2020:219, paragraph 101).

77In the present cases, in accordance with the considerations arising from the case-law cited in paragraphs 75 and 76 of the present judgment, which, in the light of the material in the file before the Court referred to in paragraphs 73 and 74 of the present judgment, appear to be applicable, the organisation of the selection procedures provided for in national case-law or in Article 2 of Law 20/2021, subject to verification by the referring court, does not appear capable of duly penalising the improper use of successive fixed-term employment contracts or relationships and, therefore, of nullifying the consequences of the breach of EU law.

78In that context, it should be noted that the circumstances, set out in the order for reference in Case C‑332/22, according to which the selection procedures referred to in Article 2 of Law 20/2021 must be completed within a specified period, that is to say, before 31 December 2024, and that those procedures take account of the merits of the worker concerned, in no way detracts from the relevance of the case-law cited in paragraphs 75 and 76 of the present judgment.

79As regards the award of compensation, such as that provided for in Article 2 of Law 20/2021, as a punitive measure consistent with clause 5 of the Framework Agreement, it is apparent from the orders for reference that that compensation is payable on termination of successive fixed-term employment contracts or relationships because the post concerned is filled by a person other than the worker who held that post, which presupposes either that that worker participated in the selection procedure and was unsuccessful, or that he or she did not participate in that procedure.

80However, the Court has held that the payment of an end-of-contract compensation did not allow the purpose of clause 5 of the Framework Agreement, consisting in preventing abuse arising from the use of successive fixed-term employment contracts or relationships, to be achieved. Such a payment seems to be independent of any consideration relating to the lawful or abusive nature of the use of fixed-term employment contracts or relationships (judgment of 3 June 2021, Instituto Madrileño de Investigación y Desarrollo Rural, Agrario y Alimentario, C‑726/19, EU:C:2021:439, paragraph 74 and the case-law cited).

81In addition, it should be noted that, since compensation such as that provided for in Article 2 of Law 20/2021 sets a double ceiling, namely a limit of 20 days’ remuneration per year of service, capped, in total, at 12 monthly salary payments, it does not make it possible for either proportionate and effective compensation in cases of abuse that exceed a certain duration in terms of years, or adequate and full compensation for the damage resulting from such abuse.

82In that regard, it should be recalled that neither the principle that the damage suffered must be made good in its entirety nor the principle of proportionality require the payment of punitive damages (judgment of 8 May 2019, Rossato and Conservatorio di Musica F.A. Bonporti, C‑494/17, EU:C:2019:387, paragraph 42 and the case-law cited).

83Those principles require Member States to provide for adequate compensation, which is more than a purely nominal amount, but not more than is necessary to make good the damage in its entirety (judgment of 8 May 2019, Rossato and Conservatorio di Musica F.A. Bonporti, C‑494/17, EU:C:2019:387, paragraph 43 and the case-law cited).

84It follows from the foregoing considerations that financial compensation that sets a double ceiling solely in favour of the worker concerned who is unsuccessful in the selection procedures does not appear to constitute a measure capable of duly penalising the improper use of successive fixed-term employment contracts or relationships and of removing the consequences of the infringement of EU law and, consequently, does not seem in itself to constitute a proportionate and sufficiently effective and deterrent measure to ensure that the measures taken pursuant to the Framework Agreement are fully effective, within the meaning of the case-law referred to in paragraph 67 of the present judgment (see, to that effect, judgment of 3 June 2021, Instituto Madrileño de Investigación y Desarrollo Rural, Agrario y Alimentario, C‑726/19, EU:C:2021:439, paragraph 75 and the case-law cited).

85In the context of the first and ninth questions referred in Case C‑332/22, the referring court maintains that both the case-law of the Tribunal Supremo (Supreme Court) and the award of the compensation provided for in Article 2 of Law 20/2021 fail to comply with the EU principle of equivalence on the ground that, first, Spanish law provides that, where a public commercial entity or a private State agency converts into a public entity, its staff, that is to say, workers governed by private law, in applying national law, could perform the duties reserved to civil servants without having the status of civil servants, and such staff could therefore be maintained, under certain conditions, in the public sector. Secondly, Article 15 of the Workers’ Statute, even before the entry into force of Directive 1999/70, already provided for the conversion of fixed-term workers employed by the same employer for more than 24 months into permanent workers. Thirdly, although Law 20/2021 provides for a restrictive compensation scheme, public authorities are required, under the national legislation relating to the legal regime governing the public sector, to pay full compensation for the damage resulting from their actions. Furthermore, the Código Civil (Civil Code) provides for the same compensation scheme for private civil liability between individuals.

86In that regard, it should be noted that it follows from the principle of equivalence that persons asserting rights conferred by EU law must not be treated less favourably than those asserting rights of a purely domestic nature (judgment of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 39).

87However, in order for that principle to be applicable, the rights adopted by the national legislature when transposing Directive 1999/70 must still be comparable, notably as regards their object and their cause of action, to those that already exist in national law (see, to that effect, judgment of 3 June 2021, Ministero dell’Istruzione, dell’Università e della Ricerca – MIUR and Others (Academic researchers), C‑326/19, EU:C:2021:438, paragraph 70, and order of 18 January 2011, Berkizi-Nikolakaki, C‑272/10, EU:C:2011:19, paragraph 40 and the case-law cited).

88Furthermore, it is settled case-law that, in a situation in which both the measures adopted by the national legislature in the context of Directive 1999/70, in order to penalise the improper use of fixed-term contracts by public-sector employers, and those adopted by that legislature in order to penalise the improper use of such contracts by private-sector employers implement EU law, the principle of equivalence is not applicable. In such a situation, the measures at issue all have as their object rights conferred by the legal order of the European Union (see, to that effect, judgment of 3 June 2021, Ministero dell’Istruzione, dell’Università e della Ricerca – MIUR and Others (Academic researchers), C‑326/19, EU:C:2021:438, paragraph 70 and the case-law cited).

89In that context, it should also be recalled that the Court has stated that clause 5 of the Framework Agreement does not preclude, as such, a Member State from treating abuse of successive fixed-term employment contracts or relationships differently according to whether those contracts or relationships were entered into with a private-sector or public-sector employer (judgment of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraphs 33 and 42).

90In the present cases, it will be for the referring court, which alone has direct knowledge of the rights conferred by the national provisions referred to in paragraph 85 of the present judgment, to ascertain whether the principle of equivalence is applicable and, if so, complied with.

91In the light of the foregoing considerations, the answer to the first and third questions in Case C‑331/22 and to the first and seventh to twelfth questions in Case C‑332/22 is that clause 5 of the Framework Agreement, read in the light of the principle of proportionality and the principle that the damage suffered must be made good, must be interpreted as precluding national case-law and legislation that provide as measures intended to penalise the improper use of successive fixed-term employment contracts or relationships, respectively, the continued employment of the worker concerned until selection procedures are organised and closed by the employing administration, as well as the organisation of such procedures and the payment of financial compensation that sets a double ceiling solely in favour of a worker who is unsuccessful in those procedures, where those measures are not proportionate or sufficiently effective and dissuasive measures to guarantee the full effectiveness of the rules adopted pursuant to clause 5.

The second, fourth and fifth questions referred in Case C‑331/22 and the second to fourth questions referred in Case C‑332/22

92By the second, fourth and fifth questions referred in Case C‑331/22 and by the second to fourth questions referred in Case C‑332/22, which it is appropriate to examine together in the third place, the referring court asks, in essence, whether clauses 4 and 5 of the Framework Agreement, read in the light of Articles 21 and 47 of the Charter and of the principle of equivalence, must be interpreted as meaning that, in the absence of adequate measures in national law to prevent and, where appropriate, penalise, pursuant to clause 5, abuse arising from the use of successive fixed-term employment contracts or relationships, those successive fixed-term employment contracts or relationships should be converted into employment contracts or relationships of indefinite duration identical or comparable to those between officials and the administration, even if such a conversion is contrary to national provisions and case-law.

93As a preliminary point, it should be noted that it is apparent from the orders for reference that the subject matter of the disputes in the main proceedings concerns the prevention and sanctioning of improper uses of fixed-term employment contracts or relationships, within the meaning of clause 5 of the Framework Agreement, there being nothing in those orders for reference to support a conclusion that the principle of non-discrimination, referred to in clause 4 of the Framework Agreement, is applicable in the present cases.

94Therefore, in accordance with the case-law referred to in paragraph 35 of the present judgment, the interpretation of clause 4 and of Article 21 of the Charter, both of which relate to the principle of non-discrimination, requested by the referring court bears no relation to the actual facts or subject matter of the disputes in the main proceedings, with the result that there is no need to provide such an interpretation.

95However, it follows from settled case-law that clause 5 of the Framework Agreement does not lay down a general obligation on the Member States to provide for the conversion of fixed-term employment contracts or relationships into employment contracts or relationships of indefinite duration, nor, as mentioned in paragraph 67 of the present judgment, does it lay down any specific penalties where instances of abuse have been established (see, to that effect, judgment of 7 April 2022, Ministero della Giustizia and Others (Status of Italian magistrates), C‑236/20, EU:C:2022:263, paragraph 60 and the case-law cited).

96Nevertheless, it is clear from clause 5(2) of the Framework Agreement that Member States have the power, in the form of measures to prevent misuse of successive fixed-term employment contracts or relationships, to convert those fixed-term employment contracts or relationships into contracts or relationships of indefinite duration, the stability of employment conferred by the latter being the most important aspect of the protection of workers (see, to that effect, judgment of 8 May 2019, Rossato and Conservatorio di Musica F.A. Bonporti, C‑494/17, EU:C:2019:387, paragraph 39).

97It is therefore for the national authorities to adopt proportionate, effective and dissuasive measures to ensure that the rules adopted pursuant to the Framework Agreement, which can provide, for that purpose, for the conversion of fixed-term employment contracts or relationships into employment contracts or relationships of indefinite duration, are fully effective. However, where the improper use of successive fixed-term employment contracts or relationships has taken place, a measure must be capable of being applied in order to penalise duly that abuse and to nullify the consequences of the breach of the Framework Agreement (see judgment of 7 April 2022, Ministero della Giustizia and Others (Status of Italian magistrates), C‑236/20, EU:C:2022:263, paragraph 61 and the case-law cited).

98Thus, the Court has stated that, in order for national legislation – which, in the public sector, prohibits a succession of fixed-term employment contracts or relationships from being converted into an employment relationship of indefinite duration – to be regarded as compatible with the Framework Agreement, the domestic law of the Member State concerned must include, in that sector, another effective measure to prevent and, where relevant, punish the abuse of successive fixed-term employment contracts or relationships (see, to that effect, judgment of 7 April 2022, Ministero della Giustizia and Others (Status of Italian magistrates), C‑236/20, EU:C:2022:263, paragraph 62 and the case-law cited).

99It follows from the foregoing that legislation which lays down a mandatory rule that, where there is misuse of fixed-term employment contracts or relationships, such employment contracts or relationships are to be converted into an employment relationship of indefinite duration, is likely to comprise a measure that actually punishes such misuse and, therefore, must be regarded as compatible with clause 5 of the Framework Agreement (judgment of 8 May 2019, Rossato and Conservatorio di Musica F.A. Bonporti, C‑494/17, EU:C:2019:387, paragraph 40 and the case-law cited).

100In the present cases, according to the referring court, clause 5 of Directive 1999/70 has not been correctly transposed into Spanish law since the latter does not provide for any effective measures to penalise abuse arising from the use of successive fixed-term employment contracts or relationships. That court also states that it follows from Article 23 of the Constitution, read in conjunction with the provisions of the EBEP, that the status of civil servant is reserved for persons who have been successful in a selection procedure intended to acquire that status and which respects the principles of equality, publicity, merit, ability and free competition. Thus, the conversion of the successive fixed-term employment contracts or relationships at issue in the main proceedings into an employment relationship of indefinite duration entailing acquisition of the status of civil servant, as a measure penalising the misuse of those successive fixed-term contracts or relationships, could be contrary, inter alia, to the Constitution. Furthermore, according to that court, such a conversion is also contrary to the case-law of the Tribunal Supremo (Supreme Court).

101In that regard, it should be borne in mind that the Court has held that clause 5(1) of the Framework Agreement does not appear, so far as its subject matter is concerned, to be unconditional and sufficiently precise for individuals to be able to rely upon it before a national court. Under clause 5(1), it is left to the discretion of the Member States to have recourse, for the purposes of preventing the abuse of fixed-term employment contracts or relationships, to one or more of the measures listed in that clause, or even to existing equivalent legal measures, while taking account of the needs of specific sectors and/or categories of workers. In addition, it is not possible to make an adequate determination of the minimum protection which should, in any event, be implemented pursuant to clause 5(1) of the Framework Agreement (judgment of 11 February 2021, M.V. and Others (Successive fixed-term contracts in the public sector), C‑760/18, EU:C:2021:113, paragraph 64 and the case-law cited).

102However, it follows from settled case-law that, when national courts apply domestic law, they are bound to interpret it, to the fullest extent possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by that directive and consequently comply with the third paragraph of Article 288 TFEU. That obligation to interpret national law in conformity with EU law concerns all provisions of national law, whether adopted before or after that directive (judgment of 11 February 2021, M.V. and Others (Successive fixed-term contracts in the public sector), C‑760/18, EU:C:2021:113, paragraph 65 and the case-law cited).

103The requirement for national law to be interpreted in conformity with EU law is inherent in the system of the FEU Treaty, since it permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of EU law when they determine the disputes before them (judgment of 11 February 2021, M.V. and Others (Successive fixed-term contracts in the public sector), C‑760/18, EU:C:2021:113, paragraph 66 and the case-law cited).

104It is true that the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law, particularly those of legal certainty and non-retroactivity, and that obligation cannot serve as the basis for an interpretation of national law that is contra legem (judgment of 11 February 2021, M.V. and Others (Successive fixed-term contracts in the public sector), C‑760/18, EU:C:2021:113, paragraph 67 and the case-law cited).

105Nevertheless, the principle that national law must be interpreted in conformity with EU law requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the directive concerned is fully effective and achieving an outcome consistent with the objective pursued by that directive (judgment of 11 February 2021, M.V. and Others (Successive fixed-term contracts in the public sector), C‑760/18, EU:C:2021:113, paragraph 68 and the case-law cited).

106Moreover, the Court has stated that since the principle of effective legal protection is a general principle of EU law recognised, moreover, in Article 47 of the Charter, it is the responsibility of the national courts, in the absence of a measure correctly transposing Directive 1999/70 into Spanish law, to provide the legal protection which individuals derive from the rules of EU law and to ensure that those rules are fully effective (see, to that effect, judgment of 22 December 2010, Gavieiro and Iglesias Torres, C‑444/09 and C‑456/09, EU:C:2010:819, paragraph 75 and the case-law cited).

107It is therefore for the national court, to the fullest extent possible, where abuse of successive fixed-term employment contracts and relationships has occurred, to interpret and apply the relevant provisions of national law in such a way that it is possible duly to penalise the abuse and to nullify the consequences of the breach of EU law. In that context, it is for that national court to assess whether the relevant provisions of national law, including those of constitutional status, may, if appropriate, be interpreted in a manner consistent with clause 5 of the Framework Agreement in order to ensure that Directive 1999/70 is fully effective and to achieve an outcome consistent with the objective pursued by that directive (see, by analogy, judgment of 11 February 2021, M.V. and Others (Successive fixed-term contracts in the public sector), C‑760/18, EU:C:2021:113, paragraph 69 and the case-law cited).

108In addition, the Court has held that the obligation to interpret national law in conformity with EU law requires national courts to change established case-law, where necessary, if it is based on an interpretation of domestic law that is incompatible with the objectives of a directive. Consequently, a national court cannot, in particular, validly claim that it is impossible for it to interpret a provision of national law in a manner that is consistent with EU law merely because that provision has consistently been interpreted in a manner that is incompatible with EU law (judgment of 3 June 2021, Instituto Madrileño de Investigación y Desarrollo Rural, Agrario y Alimentario, C‑726/19, EU:C:2021:439, paragraph 86 and the case-law cited).

109It follows from all of the foregoing, first, that, if the referring court were to consider that the domestic legal order concerned does not include, in the public sector, an effective measure to prevent and, where necessary, penalise the improper use of successive fixed-term employment contracts or relationships, such as those at issue in the main proceedings, the conversion of those employment contracts or relationships into an employment relationship of indefinite duration is capable of constituting such a measure.

110Secondly, if, in such a situation, the referring court were also to consider that the settled case-law of the Tribunal Supremo (Supreme Court) precludes such a conversion, that court would then have to disapply that case-law of the Tribunal Supremo (Supreme Court) if it is based on an interpretation of the provisions of the Constitution that is incompatible with the objectives of Directive 1999/70 and, in particular, clause 5 of the Framework Agreement.

111Thirdly, such a conversion is capable of constituting a measure that effectively penalises the improper use of successive fixed-term employment contracts or relationships, provided that it does not involve an interpretation of national law that is contra legem.

112In the present cases, the referring court maintains that the conversion of successive fixed-term employment contracts or relationships at issue in the main proceedings into an employment relationship of indefinite duration under which the applicants in the main proceedings are subject to the same grounds for termination and dismissal as those applicable to civil servants without, however, acquiring the actual status of civil servant, would constitute such a punitive measure, consistent with clause 5 of the Framework Agreement. According to that court, that punitive measure does not entail an interpretation of national law that is contra legem.

113In the context of the second to fourth questions referred in Case C‑332/22, the referring court also asks, in essence, whether the principle of equivalence in EU law would require fixed-term workers in the public sector, who have been the subject of the improper use of successive fixed-term employment contracts or relationships, to be granted the status of civil servants or permanent workers, in so far as, in particular, Article 15 of the Workers’ Statute would require such a solution in the private sector.

114In that regard, it should be noted that it will be for the referring court, which alone has direct knowledge of the rights conferred by the national provisions, to determine whether, in accordance with the case-law cited in paragraphs 86 to 89 of the present judgment, the principle of equivalence is applicable and, if so, complied with.

115In the light of the foregoing considerations, the answer to the second, fourth and fifth questions referred in Case C‑331/22 and to the second to fourth questions referred in Case C‑332/22 is that clause 5 of the Framework Agreement, read in the light of Article 47 of the Charter, must be interpreted as meaning that, in the absence of adequate measures provided for in national law to prevent and, where appropriate, penalise, pursuant to clause 5, abuse arising from the use of successive fixed-term employment contracts or relationships, the conversion of those successive fixed-term contracts or relationships into an employment contract or relationship of indefinite duration is capable of constituting such a measure, provided that that conversion does not entail an interpretation of national law that is contra legem.

Costs

116Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Sixth Chamber) hereby rules:

1.Clause 5 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 not precluding national legislation in accordance with which recourse to successive fixed-term employment contracts or relationships in the public sector becomes abusive where the public administration concerned does not comply with the time limits laid down in national law for filling the post occupied by the temporary worker concerned, since, in such a situation, those successive fixed-term employment contracts or relationships cover needs of that administration that are not temporary, but fixed and permanent.

2.Clause 5 of the framework agreement on fixed-term work, concluded on 18 March 1999, which is annexed to Directive 1999/70, read in the light of the principle of proportionality and the principle that the damage suffered must be made good,must be interpreted as precluding national case-law and legislation that provide as measures intended to penalise the improper use of successive fixed-term employment contracts or relationships, respectively, the continued employment of the worker concerned until selection procedures are organised and closed by the employing administration, as well as the organisation of such procedures and the payment of financial compensation that sets a double ceiling solely in favour of that worker who is unsuccessful in those procedures, where those measures are not proportionate or sufficiently effective and dissuasive measures to guarantee the full effectiveness of the rules adopted pursuant to clause 5.

3.Clause 5 of the framework agreement on fixed-term work, concluded on 18 March 1999, which is annexed to Directive 1999/70, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union,must be interpreted as meaning that, in the absence of adequate measures provided for in national law to prevent and, where appropriate, penalise, pursuant to clause 5, abuse arising from the use of successive fixed-term employment contracts or relationships, the conversion of those successive fixed-term contracts or relationships into an employment contract or relationship of indefinite duration is capable of constituting such a measure, provided that that conversion does not entail an interpretation of national law that is contra legem.