Request for a preliminary ruling from the Tribunal Superior de Justicia de Galicia (Spain) lodged on 11 July 2023 – JW v Consorcio Gallego de Servicios de Igualdad y Bienestar, Consejería de Política Social, Consejería de Hacienda

(Case C-434/23, Consorcio Gallego de Servicios de Igualdad y Bienestar and Others)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Galicia

Parties to the main proceedings

Applicant: JW

Defendants: Consorcio Gallego de Servicios de Igualdad y Bienestar, Consejería de Política Social, Consejería de Hacienda

Questions referred

Can the national legislation be considered to include measures that are a sufficient deterrent against public administrative authorities and public sector bodies in respect of the use of successive contracts or renewals of temporary contracts contrary to clause 5 of the [framework] agreement annexed to Directive 1999/70/EC ¹ of 28 June 1999, aimed at preventing and penalising the misuse of fixed-term employment contracts?

If the view is taken that no measures exist that are a sufficient deterrent in Spanish law, must the consequence of the infringement of clause 5 of the framework agreement annexed to Directive 1999/70/EC by a public employer be that the contract is treated as a non-permanent contract of indefinite duration or must the worker be recognised as having fully permanent status?

In the event that the preceding questions are answered to the effect that no [measures] exist that are a sufficient deterrent and that the penalty to be imposed for the circumvention of law committed is that of recognising the worker as having a permanent contract, is the conversion of the contract into a permanent contract under the framework agreement annexed to Directive 1999/70/EC and the case-law of the Court of Justice of the European Union interpreting that directive required even if it is considered to be contrary to Article 23(2) and Article 103(3) of the Spanish Constitution, where those constitutional provisions are interpreted as meaning that access to all public sector employment, including where engagement is under an employment contract, may occur only after a candidate has passed a competitive selection procedure in which the principles of equality, merit, ability and publicity are applied, organised to fill posts with permanent staff, including where the candidate has been unsuccessful in that procedure or where that procedure is organised to fill those posts temporarily?

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¹ 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).