Opinion of Advocate General Kokott delivered on 17 October 2019

A. EU law

3. The framework for this case in EU law is established by Directive 1999/70. According to its Article 1, that directive puts into effect the Framework Agreement on fixed-term work (also ‘the Framework Agreement’) which was concluded on 18 March 1999 between three general cross-industry organisations (ETUC, UNICE and CEEP) and is annexed to the directive.

4. Clause 1 of the Framework Agreement states:

‘The purpose of this framework agreement is to:

1. improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination;

2. establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.’

5. Clause 5 (‘Measures to prevent abuse’) of the Framework Agreement states:

• 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:

  1. objective reasons justifying the renewal of such contracts or relationships;

  2. the maximum total duration of successive fixed-term employment contracts or relationships;

  3. the number of renewals of such contracts or relationships.

• 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:

  1. shall be regarded as “successive”;

  2. shall be deemed to be contracts or relationships of indefinite duration.’

B. Spanish law

6. Article 9 of Ley 55/2003 del Estatuto Marco del Personal Estatutario de los Servicios de Salud (State Law 55/2003 on the framework regulations for health service staff regulated under administrative law) of 16 December 2003⁽⁴⁾ (‘the framework regulations’) permits public health service institutions to appoint temporary regulated staff on grounds of need, urgency or for the development of programmes of a temporary, auxiliary or extraordinary nature.

7. Such appointments may be on an interim, occasional or replacement basis. The different requirements governing appointments for each of these three categories of temporary regulated staff are laid down in Article 9(2) to (4) of the framework regulations as follows:

‘2.

Appointment on an interim (or ‘temporary replacement’) basis may be used temporarily to cover a vacant post in the healthcare institutions or services where it is necessary to ensure performance of the duties pertaining to that post.

The interim regulated staff member’s service shall be terminated if a permanent staff member is appointed, through the procedure laid down in law or regulation, to the post occupied by that interim regulated staff member, or if that post is abolished.

3.

Appointment on an occasional basis shall be made in the following situations:

1. when it concerns the provision of certain services of a temporary, auxiliary or extraordinary nature;

2. when it is necessary in order to ensure the permanent and continuous operation of the healthcare institutions

3. for the provision of additional services in order to compensate for a reduction of normal working hours.

The occasional regulated staff member’s service shall be terminated when the purpose of the appointment has been accomplished, when the period expressly set out in his notice of appointment has expired, or when the duties for which the appointment was made are abolished.

If more than two appointments are made for the provision of the same services for a total period of 12 months or more in a period of two years, the reasons for this shall be examined in order to assess, if necessary, whether it is appropriate to create a permanent post in the healthcare institution concerned.

4.

Appointment on an interim basis may be used where it is necessary in order to ensure performance of the duties of a permanent or temporary member of staff during holidays, leave periods and other absences of a temporary nature which involve the retention of the post.

The appointment of the interim regulated staff member shall terminate when the person being replaced returns to work or when that person loses his right to return to the same post or function.’

8. Article 10 of the Ley del Estatuto Básico del Empleado Público (Law on the basic regulations relating to public servants), the consolidated text of which was approved by Real Decreto Legislativo 5/2015, de 30 de octubre (Royal Legislative Decree 5/2015 of 30 October)⁽⁵⁾ (‘the basic regulations’) provides as follows with regard to the filling of vacancies by ‘interim civil servants’:

‘1.

Interim civil servants are persons who, for expressly justified reasons of necessity and urgency, are appointed as such to perform tasks of established civil servants in one of the following situations:

1. the existence of vacancies which cannot be filled by established civil servants, …’

Vacancies which have been filled pursuant to that provision are in principle to be included, under Article 10(4) of the basic regulations, in the public-sector vacancies list in the year of appointment or the following year. In order to execute the public-sector vacancies list, selection processes are to take place if staffing needs cannot be met by other similar instruments. To this end, Article 70(1) of the basic regulations provides for a non-extendable three-year period within which the announcement of any necessary selection processes is to be published.

9. The fourth transitional provision of the basic regulations provides for open competitions for permanently filling posts which have been occupied by interim civil servants or other contract staff. The merits to be taken into consideration can include length of service and experience in the post concerned.

A. Case C‑103/18

10. Mr Sánchez Ruiz was appointed on 2 November 1999 as a member of temporary regulated replacement staff by the Servicio Madrileño de la Salud der Comunidad de Madrid (Public Health Service of the Autonomous Community of Madrid), where he worked as an IT specialist in the Technical Administrative Staff category.

11. Because that staff category was abolished following a legal reform, the employment relationship was terminated on 28 December 2011 and continued on the same date by his appointment as a member of interim staff in the same post. Upon this reappointment, Mr Sánchez Ruiz was assigned to the new category ‘regulated information and communications technology staff’.

12. According to the referring court, Mr Sánchez Ruiz did not take part in or appeal against the holding of selection tests on 27 May 2015 to recruit permanent regulated employees in his employment category (in a competition based on qualifications and tests); this open competition is the only selection process for his specialism that has been held since 1999.

13. At the time the reference for a preliminary ruling was made, Mr Sánchez Ruiz was still employed on the basis described above. He did not at any time appeal against the termination of his appointment and reappointment on 28 December 2011.

14. On 21 December 2016, he applied to the Comunidad de Madrid for recognition of his permanent position as a regulated staff member employed for an indefinite period or equivalent. A permanent position is to be understood for these purposes to mean belonging to the regulated staff of the public health services whose employment is of an indefinite duration and permanent. These should be distinguished from staff whose employment is of an indefinite duration but non-permanent, who are not entitled to continued employment if the post occupied by them is abolished or permanently filled.⁽⁶⁾ The Viceconsejero de Sanidad (Deputy Minister for Health) dismissed the application, whereupon Mr Sánchez Ruiz lodged an action with the referring court.

15. Under these circumstances, the Juzgado de lo Contencioso-Administrativo n^o8 de Madrid (Spain) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

• Can a situation such as that described in the present case (in which the public-sector employer fails to observe the statutory time limits and thus either permits successive temporary contracts or preserves the temporary nature of the appointment by changing the nature of the appointment from occasional to interim or replacement) be considered an abusive use of successive appointments and therefore be regarded as a situation described in Clause 5 of the Framework Agreement annexed to Directive 1999/70/EC?

• Must the provisions in the Framework Agreement on fixed-term work in the Annex to Directive 1999/70/EC, in conjunction with the principle of effectiveness, be interpreted as precluding national procedural rules that require a fixed-term worker actively to challenge or appeal against all the successive appointments and terminations of employment as the only way in which to benefit from the protection of the EU Directive and claim the rights conferred on him by EU law?

• In view of the fact that, in the public sector and in the provision of essential services, the necessity of providing cover for vacancies, sickness, holidays … is essentially ‘permanent’, and given that the concept of ‘objective reason’ justifying a fixed-term appointment has to be delimited:

  1. Can it be held to be contrary to Directive 1999/70/EC (Clause 5(1)(a)) and, therefore, that there is no objective reason, when a fixed-term worker is employed under an uninterrupted succession of ‘contratos de interinidad’ (temporary replacement contracts), working all or nearly all the days of the year, under a succession of consecutive appointments/engagements that continue on a completely stable basis for years, and the stated grounds for engaging the worker are always satisfied?

  2. Must the need be considered permanent rather than temporary, and therefore not to be covered as an ‘objective reason’ within the meaning of Clause 5(1)(a), having regard either to the parameters described above, that is to say, the existence of countless appointments and engagements that extend over a period of years, or to the existence of a structural defect that is reflected in the percentage of temporary appointments in the sector in question, when those needs are as a general rule always met by temporary workers, so that this has become an essential and long-term element of the operation of the public service?

  3. Or is it to be understood that, in essence, in order to determine the permitted limit for temporary appointments, regard must be had only to the letter of the legislation that covers the employment of such fixed-term workers, when it states that they may be taken on grounds of necessity, urgency or for the development of programmes of a temporary, cyclical or extraordinary nature: in short, that in order for an objective reason to be deemed to exist, such employment must meet these exceptional circumstances, and that this ceases to be the case, and use therefore constitutes misuse, when it is no longer isolated, occasional or ad hoc?

• Is it compatible with the Framework Directive annexed to Directive 1999/70/EC to regard grounds of need, urgency or the development of programmes of a temporary, interim or extraordinary nature as an objective reason for appointing and successively reappointing IT specialists on temporary regulated terms where these public employees are performing the normal functions of permanent regulated employees on a permanent and regular basis, and the employing Administration neither establishes maximum limits to such appointments nor fulfils its legal obligations to use permanent staff to cover these posts and meet these needs, and no equivalent measure is established to prevent and avoid misuse of successive temporary appointments, with the result that IT specialists employed on temporary regulated terms continue to carry out these duties for periods that, in the present case, amount to an uninterrupted duration of 17 years?

• Are the provisions in the Framework Agreement on fixed-term work in the Annex to Directive 1999/70/EC and the interpretation of that Agreement by the CJEU compatible with the case-law of the Tribunal Supremo (Supreme Court, Spain), in so far as it fixes the existence of an objective reason for an appointment by reference to the time limit to the appointment, without regard to other parameters, or finds that there can be no comparison made with a career public official because of the different legal rules covering them and different access routes or because career officials are permanently established but employees recruited to cover vacancies hold temporary appointments?

• If the national courts find that there is abuse arising from the use of successive appointments of temporary regulated staff to cover vacancies in the Madrid Health Service and that they are being used to cover permanent structural needs in the provision of services by permanent regulated employees, given that domestic law contains no effective measure to penalise such misuse and eliminate the consequences of the breach of EU legislation, must Clause 5 of the Framework Agreement annexed to Directive 1999/70/EC be interpreted as requiring the national courts to adopt effective deterrent measures to ensure the effectiveness of the Framework Agreement, and therefore to penalise that misuse and eliminate the consequences of the breach of that EU legislation, disapplying the rule of domestic law that prevents it from being effective?

  If the answer should be affirmative, as held by the Court of Justice of the European Union in paragraph 41 of its judgment of 14 September 2016 in Cases C‑184/15 and C‑197/15:

  As a measure to prevent and penalise the misuse of successive temporary contracts and to eliminate the consequence of the breach of EU law, would it be consistent with the objectives pursued by Directive 1999/70/EC to convert the temporary interim/occasional/replacement regulated relationship into a stable regulated relationship, the employee being classified as a permanent official or an official with an appointment of indefinite duration, with the same security of employment as comparable permanent regulated employees?

• If there is abuse of successive temporary contracts, can the conversion of the temporary regulated relationship into an indefinite or permanent relationship be regarded as satisfying the objectives of Directive 1999/70/EC and its Framework Agreement only if the temporary regulated employee who has been the victim of this misuse enjoys exactly the same working conditions as permanent regulated employees (as regards social security, promotion, opportunities to cover vacant posts, training, leave of absence, determination of administrative status, sick leave and other permitted absences, pension rights, termination of employment and participation in selection competitions to fill vacancies and obtain promotion) in accordance with the principles of permanence and security of employment, with all associated rights and obligations, on equal terms with permanent regulated IT specialists?

• In the circumstances described here, is there an obligation under EU law to review final judgments/administrative acts when the four conditions laid down in Kühne & Heitz NV (C‑453/00 of 13 January 2004) are met: (1) Under Spanish national law, the authorities and the courts may review decisions (even if the restrictions involved make it very difficult or even impossible); (2) The contested decisions have become final as a result of a judgment of a national court issued in sole or final instance; (3) That judgment is based on an interpretation of EU law inconsistent with the case-law of the CJEU and adopted without a question being referred to the CJEU for a preliminary ruling; and (4) The person concerned applied to the administrative body as soon as it knew of the relevant case-law?

• May and must national courts, as European courts that must give full effect to EU law in the Member States, require and order the internal administrative authority of a Member State – within its respective area of jurisdiction – to adopt the relevant measures in order to eliminate rules of domestic law incompatible with EU law in general, and with Directive 1999/70/EC and its Framework Agreement in particular?’

B. Case C‑429/18

16. The applicants in the main proceedings in Case C‑429/18 are interim temporary regulated staff members and work as dental practitioners in a number of health centres in the Comunidad de Madrid, within the Servicio de Salud de Madrid (SERMAS) (Madrid Heath Service).

17. According to the referring court, the applicants have been employed for many years,⁽⁷⁾ in some cases in the same post but on a different legal basis, as occasional, interim or replacement temporary regulated staff. Most recently, all the applicants were employed as interim temporary regulated staff members.

18. Throughout the period of employment, the applicants have, continuously and without interruption, performed duties identical to those of permanent regulated staff. The various successive appointments or terminations of their appointments were not challenged.

19. On 22 July 2016, the applicants applied to the Comunidad de Madrid for recognition of their permanent positions as regulated staff employed for an indefinite period or equivalent. The application was rejected.

20. The applicants subsequently brought an action at the referring court, seeking the application to them of Directive 1999/70 in conjunction with the Framework Agreement, a declaration that all existing discrimination, compared with permanent regulated staff, is contrary to that directive and should be eliminated, and recognition that they have the status of permanent public servants or, in the alternative, regulated staff equivalent to permanent staff.

21. As grounds, they argue in essence that the public-sector vacancies list for the year of appointment and the following year did not include the posts held by them, to be filled by permanent regulated specialist dental practitioners, nor was the public-sector vacancies list or similar instrument executed within the non-extendable time limit of three years stipulated by the national provisions.

22. Under these circumstances, the Juzgado de lo Contencioso-Administrativo n^o14 de Madrid (Spain) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

• Is this court’s interpretation of the Framework Agreement annexed to Directive 1999/70/EC correct and is it correct to take the view that the employment of the applicants on temporary appointments constitutes abuse in so far as the public employer uses different contractual models, all of which are temporary, to ensure, on a permanent and stable basis, performance of the ordinary duties of permanent regulated staff and to cover structural defects and needs which are, in fact, not temporary but fixed and permanent? Is the type of temporary appointment described therefore not justified as an objective reason for the purposes of clause 5(1)(a) of the Framework Agreement, in that such use of fixed-term contracts conflicts directly with the second paragraph of the preamble of the Framework Agreement and with general considerations 6 and 8 of that agreement, since there are no circumstances which would justify the use of such fixed-term employment contracts?

• Is this court’s interpretation of the Framework Agreement annexed to Directive 1999/70/EC correct and is it correct to take the view that, in line with that interpretation, the holding of a conventional selection process, with the features described, is not an equivalent measure and cannot be regarded as a penalty, since it is not proportional to the abuse committed, the consequence of which is the termination of the temporary worker’s appointment, in breach of the objectives of the directive, and the continued unfavourable situation of temporary regulated employees, nor can it be regarded as an effective measure in so far as it does not create any detriment to the employer, and nor does it fulfil any deterrent function, and therefore it is not compatible with the first paragraph of Article 2 of Directive 1999/70 in that it does not ensure that the Spanish State achieves the results imposed by the directive?

• Is this court’s interpretation of the first paragraph of Article 2 of Directive 1999/70 and of the judgment of the Court of Justice of the European Union of 14 September 2016 in Case C‑16/15 correct and is it correct to take the view that, in line with that interpretation, the holding of a selection process that is open to external candidates is not an appropriate measure to penalise abuse arising from the use of successive temporary appointments, since Spanish legislation does not provide for an effective, dissuasive penalty mechanism which puts an end to the abuse arising from the appointment of temporary regulated staff and does not enable those permanent posts created to be filled by the staff who were the victims of the abuse, such that the precarious situation of those workers continues?

• Is it correct to take the view, as this court does, that the conversion of a temporary worker who has been the victim of the misuse of temporary appointments into a worker having an appointment ‘of indefinite duration but not permanent’ is not an effective penalty, in so far as a worker classified in this way may have his appointment terminated either because his post has been filled in a selection process or because his post has been abolished, and therefore that penalty is incompatible with the Framework Agreement for the purposes of preventing misuse of fixed-term contracts, since it does not comply with the first paragraph of Article 2 of Directive 1999/70 in that it does not ensure that the Spanish State achieves the results imposed by the directive?

  In the light of that situation, it is necessary in the circumstances described to repeat the following questions, included in the reference for a preliminary ruling made on 30 January 2018 in Expedited Proceedings 193/2017 before J[uzgado] C[ontencioso-]A[dministrativo] n.o 8 de Madrid (Administrative Court No 8, Madrid) [Case C‑103/18]:

• If the national courts find that there is abuse arising from the use of successive appointments of temporary regulated staff to cover vacancies in the Madrid Health Service and that they are being used to cover permanent structural needs in the provision of services by permanent regulated employees, given that domestic law contains no effective or deterrent measure to penalise such misuse and eliminate the consequences of the breach of EU legislation, must Clause 5 of the Framework Agreement annexed to Directive 1999/70/EC be interpreted as requiring the national courts to adopt effective deterrent measures to ensure the effectiveness of the Framework Agreement, and therefore to penalise that misuse and eliminate the consequences of the breach of that EU legislation, disapplying the rule of domestic law that prevents it from being effective?

  If the answer should be affirmative, as held by the Court of Justice of the European Union in paragraph 41 of its judgment of 14 September 2016 in Cases C‑184/15 and C‑197/15:

  As a measure to prevent and penalise the misuse of successive temporary appointments and to eliminate the consequence of the breach of EU law, would it be consistent with the objectives pursued by Directive 1999/70/EC to convert the temporary interim/occasional/replacement regulated relationship into a stable regulated relationship, the employee being classified as a permanent official or an official with an appointment of indefinite duration, with the same security of employment as comparable permanent regulated employees, on the basis that the national legislation prohibits absolutely, in the public sector, the conversion into a contract of indefinite duration of a succession of fixed-term employment contracts, since no other effective measure exists to prevent and, where relevant, penalise the misuse of successive fixed-term employment contracts?

• If there is abuse of successive temporary appointments, can the conversion of the temporary regulated relationship into an indefinite or permanent relationship be regarded as satisfying the objectives of Directive 1999/70/EC and its Framework Agreement only if the temporary regulated employee who has been the victim of this misuse enjoys exactly the same working conditions as permanent regulated employees (as regards social security, promotion, opportunities to cover vacant posts, training, leave of absence, determination of administrative status, sick leave and other permitted absences, pension rights, termination of employment and participation in selection competitions to fill vacancies and obtain promotion) in accordance with the principles of permanence and security of employment, with all associated rights and obligations, on equal terms with permanent regulated staff?

• Taking into account the existence, if any, of improper use of temporary appointments to meet permanent staffing needs for no objective reason and in a manner inconsistent with the urgent and pressing need that warrants recourse to them, and for want of any effective penalties or limits in Spanish national law, would it be consistent with the objectives pursued by Directive 1999/70/EC to grant, as a means of preventing abuse and eliminating the consequence of infringing EU law, compensation comparable to that for unfair dismissal, that is to say, compensation that serves as an adequate, proportional, effective and dissuasive penalty, in circumstances where an employer does not offer a worker a permanent post?’

23. By decision of the President of the Court of 23 January 2019, the two cases were joined for the purposes of the oral procedure and the judgment. The applicants in the main proceedings, the Comunidad de Madrid, the Spanish Government and the European Commission submitted written observations and took part in the hearing on 15 May 2019.

A. Introductory remarks and the course of the examination

24. In the main proceedings, the applicants base their head of claim seeking recognition of their employment for an indefinite duration primarily on the alleged misuse of fixed-term employment relationships and the resulting discrimination compared with permanent established public servants. The high proportion of fixed-term employees in the health service in question, the considerable duration of some of the employment relationships concerned and the failure to hold or at least infrequent holding of selection processes to fill vacant posts permanently would indicate such abuse.

25. The Court has often dealt with the use of fixed-term employment relationships in the Member States’ public services. In particular, the specific circumstances of the public health service of the Comunidad de Madrid, to which this case relates, were the subject of Case C‑16/15. Because the referring courts still have serious doubts whether the requirements of EU law stemming from Clause 5 of the Framework Agreement are complied with in the public health service of the Comunidad de Madrid, they consider it necessary to make further references to the Court.

26. As we know, the purpose of Clause 5 of the Framework Agreement is to implement one of the objectives of that agreement, 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. To that end, it lays down as a minimum a number of protective provisions designed to prevent the status of employees from being insecure.⁽⁸⁾

27. Member States are required, under Clause 5(1) of the Framework Agreement, in order to prevent the misuse of successive fixed-term employment contracts or relationships, to adopt one or more of the measures listed in that provision, where their domestic law does not include equivalent legal measures.⁽⁹⁾ The three measures listed relate to objective reasons justifying the renewal of such contracts or relationships, the maximum total duration of successive fixed-term employment contracts or relationships and the number of renewals.

28. In addition, if there has been misuse of successive fixed-term employment contracts or relationships despite such measures, it is incumbent on the national authorities to guarantee the effectiveness of the Framework Agreement by applying measures which ensure that such misuse is duly penalised and the consequences of the breach of EU law are nullified.⁽¹⁰⁾

29. The examination of the questions referred will focus on these two aspects of the regulatory content of Clause 5 of the Framework Agreement.

30. In Case C‑103/18, the Court must first determine, in the context of the first question, under what conditions Clause 5 of the Framework Agreement is applicable to the continuation of fixed-term employment relationships in the public service until posts are filled permanently (see under B).

31. By the other questions in the two cases, which overlap to some extent,⁽¹¹⁾ it must be clarified, in essence, whether Spanish law includes appropriate measures to prevent abuse within the meaning of Clause 5(1) of the Framework Agreement and, in the case of abuse, penalty measures satisfying the requirements under EU law set out above. To that end, it is first necessary to assess the objective reasons within the meaning of Clause 5(1)(a) of the Framework Agreement justifying a renewal of fixed-term employment relationships⁽¹²⁾ (see under C). In the event that misuse of successive fixed-term employment relationships must be considered to exist based on the circumstances of the individual case, questions are asked regarding the measures required by EU law to penalise such misuse⁽¹³⁾ (see under D). Finally, the questions concerning the legal protection of the employees concerned must be examined⁽¹⁴⁾ (see under E).

B. The applicability of Clause 5 of the Framework Agreement (first question in Case C‑103/18)

32. The first question in Case C‑103/18 seeks to clarify whether Clause 5 of the Framework Agreement is applicable.

33. It is not disputed between the parties in the main proceedings that the applicant worked for the defendant as a member of temporary interim staff for more than 17 years. They disagree, however, whether the applicant’s employment was based on successive employment contracts or relationships.

34. This question is crucial in determining the applicability of Clause 5 of the Framework Agreement, which provides for measures to prevent abuse arising from the use of successive fixed-term employment contracts or relationships. The importance of this aspect is underlined by Clause 1(b) of the Framework Agreement, according to which the purpose of the Framework Agreement is to ‘establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships’.

35. Consequently, by the first question, the referring court wishes to know, in essence, whether Clause 5 of the Framework Agreement should also be applied where the long-term employment of a fixed-term employee is formally based on a single employment contract or relationship, but his continued employment can be explained by the fact that the post has not been permanently filled and the fixed-term contract or relationship has not been terminated accordingly on account of failures on the part of the public employer in the selection of permanent regulated staff. This should be distinguished from the subsidiary question whether those failures may constitute misuse of successive employment contracts or relationships.⁽¹⁵⁾

36. Clause 5(2)(a) of the Framework Agreement leaves it to the Member States, in principle, to determine under what conditions fixed-term employment contracts or relationships are to be regarded as ‘successive’. The interpretation of such national provisions also falls within the exclusive jurisdiction of the national courts.⁽¹⁶⁾

37. However, the margin of appreciation thereby left for the Member States is limited by the need not to compromise the objective or the practical effect of the Framework Agreement. In particular, this discretion must not be exercised by national authorities in such a way as to lead to a situation liable to give rise to abuse and thus to thwart that objective.⁽¹⁷⁾

38. This constraint on national organisational autonomy has particular importance in determining the scope ratione materiae of the Framework Agreement. The intended protection provided by Clause 5 of the Framework Agreement in order to prevent the status of employees from being insecure would be largely ineffective if the national legislature had the power summarily to exclude certain long-term, but nonetheless formally fixed-term employment relationships from the scope of the Framework Agreement, for example by declaring it to be a single relationship, irrespective of any modifications, or by entering into it for a fixed term, but a priori for an indefinite period until the post in question has been permanently filled at an unspecified point in time.

39. This risk is illustrated by the situation in the main proceedings. First, the defendant authority disputes the applicability of Clause 5 of the Framework Agreement on the ground that the applicant has always been employed only on the basis of a single contract, whilst, according to the factual findings of the referring court, a termination of the first employment relationship was followed immediately by a second appointment. The defendant authority also claims before the referring court that it would maintain its legal opinion even if only the nature of the – always fixed-term – contract in an employment relationship was modified from an occasional to an interim or replacement contract. Second, it is apparent from the relevant rules of national law that interim staff continue to be employed until the post in question is abolished or permanently filled.⁽¹⁸⁾ However, there are no apparent legal consequences for non-compliance with the legal requirements governing the filling of vacant posts.⁽¹⁹⁾ It is thus possible under the national legislation at issue that an employee who was appointed as a member of temporary regulated staff continues to be employed, even without a formal contract renewal,⁽²⁰⁾ for an indefinite period, but not permanently, because the public employer does not ensure by selection processes that vacant posts are permanently filled, contrary to the legal requirements.

40. In accordance with their obligation to interpret applicable national legislation in conformity with the directive,⁽²¹⁾ national courts must therefore ensure that the existence of successive employment contracts or relationships is evaluated as a requirement for the application of Clause 5 of the Framework Agreement, having due regard to the objective of that provision.

41. A purely formal approach in determining the existence of different successive employment contracts or relationships, focusing solely on the official termination and subsequent re-establishment of a legal relationship, must therefore be rejected.

42. Rather, successive employment contracts or relationships should be considered to exist whenever the basis of employment at issue is subject to a material modification which, contrary to the objective of Clause 5 of the Framework Agreement, exposes the employee concerned to greater uncertainty. That is the case in particular where the modification in question concerns the duration of the employment contract or relationship, the conditions for its termination or the prospects of a permanent position from the respective form of employment. There could be doubts here in particular as to the prospect of a permanent position.

43. It is clear from the file before the Court that access to a permanent employment relationship in the public health service is possible, even for long-serving fixed-term employees, only though successful participation in a selection process based on qualifications and tests.⁽²²⁾ As was confirmed by the agent of the Comunidad de Madrid at the hearing, only certain staff categories may participate in each selection process. It is not apparent from the file, moreover, whether a minimum period of employment in the respective staff category is a condition for participation in the selection process. It is thus for the national court to assess whether the respective basis of employment has been subject to a relevant modification which is equivalent to use of a further employment contract or relationship.⁽²³⁾

44. Furthermore, Clause 5 of the Framework Agreement was also intended to be applied to the continuation of a single fixed-term employment contract or relationship where such continuation for an indefinite period results from non-compliance with the legal requirements governing the filling of vacant posts. Failure to observe those legal requirements does in fact lead to a modification of the duration of the contract on account of its continuation for an indefinite period. In the main proceedings this can be seen from the fact that the possibility in law of continued employment of interim staff until the relevant posts are filled permanently amounts to continued employment of fixed-term employees for an indefinite period if it is not ensured that selection processes are held regularly in accordance with a binding timetable. By interpreting the relevant national legislation in conformity with the directive, the national court would have to determine whether successive employment contracts or relationships should be considered to exist from the end of the period prescribed by national law within which the post concerned must be opened to competition or abolished.

45. In the light of the foregoing, I suggest that the Court answers the first question in Case C‑103/18 as follows: The crucial factor in the assessment under national law whether successive employment contracts or relationships exist as a condition for the applicability of Clause 5 of the Framework Agreement, having regard to the objectives pursued by that provision, is whether during the period in question the basis of employment has been subject to material modifications which concern the duration of the employment contract or relationship, the conditions for its termination or the possibility of participation in processes for the selection of permanent regulated staff and thereby exposes the fixed-term employee concerned to greater uncertainty.

C. Misuse of successive fixed-term employment relationships (third to fifth questions in Case C‑103/18 and first question in Case C‑429/18)

46. By the third to fifth questions in Case C‑103/18 and the first question in Case C‑429/18, the national courts would also like to know whether the use of successive fixed-term employment relationships, which is to be assessed, should be considered as abuse.

47. These questions follow on from the statements made by the Court in Pérez López⁽²⁴⁾ regarding the interpretation of the phrase ‘objective reason’ in Clause 5(1)(a) of the Framework Agreement. The point at issue in that case was, in essence, whether the ‘objective reason’ requirement for the use of successive fixed-term employment relationships is satisfied where a national legal provision like Article 9 of the framework regulations, which is also relevant in the present case, links the appointment and continued employment of fixed-term workers to certain purposes.

48. The Court found that ‘the national legislation at issue in the main proceedings does not lay down a general and abstract obligation to have recourse to successive fixed-term employment contracts, but limits the conclusion of such contracts for the purposes of satisfying, in essence, temporary requirements.’⁽²⁵⁾ With reference to the particular needs and the importance of the public health sector, the Court then confirmed that the temporary replacement of workers, as provided for in Article 9(3) of the framework regulations as a reason for the appointment of staff on an occasional basis, constitutes an objective reason within the meaning of Clause 5(1)(a) of the Framework Agreement, justifying fixed-term contracts being concluded with the replacement staff and the renewal of those contracts as new needs arise under certain conditions.⁽²⁶⁾

49. On the basis of similar grounds the Court has also recognised that national legislation permitting the renewal of successive fixed-term employment contracts in order to fill vacant posts at State schools pending the completion of competitive selection procedures is capable of being justified by an objective reason.⁽²⁷⁾

50. Such a justification is ruled out, however, if a specific verification shows that the renewal of successive employment contracts or relationships is not intended to cover temporary needs, but to meet fixed and permanent staffing needs of the employer.⁽²⁸⁾ This is the case in particular where a national rule expressly limits the renewal of successive employment contracts or relationships to just a temporary period that comes to an end when the competitive selection procedures are completed, but that rule does not actually ensure that the number of times the same worker acts by way of replacement on an annual basis for the purpose of filling the same vacant post is limited and there is a binding timetable for the organisation and completion of competitive selection procedures.⁽²⁹⁾

51. Article 9 of the framework regulations is just such a rule. This provides the answer to the third and fourth questions in Case C‑103/18 and the first question in Case C‑429/18. They focus on the fact that the fixed-term employment relationships at issue are evidently intended to meet permanent and stable labour needs. The referring courts rely on specific factors, such as the many years of uninterrupted employment of the employees concerned, the (only) formal compliance with the reasons for appointment required by the relevant national rule, without it being guaranteed that selection processes are regularly held, and the high proportion of fixed-term staff in the departments in question.

52. Clause 5(1)(a) of the Framework Agreement is therefore to be interpreted as precluding the application of a national rule like that at issue in the main proceedings, under which the renewal of successive fixed-term employment contracts in the public health sector is considered to be justified for ‘objective reasons’ within the meaning of that clause because the contracts are based on legislation which permits the renewal of contracts in order to guarantee certain services of a temporary, interim or extraordinary nature, whereas those needs are in fact permanent and stable and it is not ensured that the employing administration fulfils its legal obligations to meet these needs and to fill those posts permanently or establishes equivalent measures to prevent and avoid misuse of successive fixed-term employment contracts.

53. As regards the first part of the fifth question in Case C‑103/18 in particular, it should be made clear that in any event it cannot be sufficient for the existence of an objective reason if regard was had to the reasons provided for in national law for the appointment and continued employment of fixed-term public employees⁽³⁰⁾ and the connected time limit, namely until any selection process is concluded. Rather, emphasis must be placed on the importance of the specific examination required by the Court as to whether a renewal of a fixed-term employment contract or relationship is objectively justified.

54. The length of service of the applicant in the main proceedings in Case C‑103/18 shows that compliance with such abstract requirements does not really contribute to protecting employees against insecurity if it is not also ensured that staffing needs are met, in particular with a view to filling vacant posts permanently, having due regard to inherently existing time frames. Otherwise the possibility available under national law of continued employment until the relevant post is permanently filled – as a merely formal time limit⁽³¹⁾ – gives carte blanche for an indefinite number of renewals or for a continuation of the fixed-term employment relationship for an indefinite period, which in fact perpetuates the precarious situation of fixed-term employees, contrary to the objective of Clause 5 of the Framework Agreement.⁽³²⁾

55. Accordingly, the crucial factor in assessing the facts in the main proceedings is whether a precise time frame for holding and completing selection processes has been laid down in binding form. That is evidently not the case in the main proceedings according to the referring courts. The time limits for filling posts under Article 9(3) of the framework regulations and Article 70 of the basic regulations have not been complied with; in addition, only one selection process was held for each staff category in the period of employment.⁽³³⁾

56. The second part of the fifth question in Case C‑103/18 concerns the compatibility of national case-law with Clause 5 of the Framework Agreement in so far as it fixes the existence of an ‘objective reason’ for the renewal of a fixed-term employment contract or relationship by reference not only to respect for the reasons for appointment under national law, but also to the temporary (time limited) character of the duties to be carried out. That case-law is based on the postulated lack of comparability between career public officials and interim staff because of different access routes, different rules governing their conditions of employment and the duration of their duties. It is sufficient to note in this regard that such case-law lacks a specific examination of the individual case having due regard to the characteristics of the activity in question and the conditions for its exercise.

57. I therefore suggest that the fifth question in Case C‑103/18 be answered as follows: Clause 5(1)(a) of the Framework Agreement is to be interpreted as precluding national case-law like that at issue, which fixes the existence of an objective reason as justification for the renewal of successive fixed-term employment contracts in the public health sector, without regard to other parameters, only by reference to whether the reason for appointment and the connected time limit are complied with or finds that the duties to be carried out are temporary, without having due regard to the characteristics of the activity in question and the conditions for its exercise in the individual case.

D. The necessary national measures to penalise misuse (sixth and seventh questions in Case C‑103/18 and second to seventh questions in Case C‑429/18)

58. These questions are intended, in essence, to clarify what measures can be applied by the referring courts, having recourse to the possible interpretations and competences available to them,⁽³⁴⁾ in order effectively to penalise the misuse of successive fixed-term employment contracts or relationships.

59. EU law does not lay down any specific penalties in the event that, notwithstanding the preventive measures to be taken pursuant to Clause 5(1) of the Framework Agreement, there is misuse of successive fixed-term employment contracts. It is thus incumbent on the Member States to adopt measures that are not only proportionate, but also sufficiently effective and a sufficient deterrent to ensure that the provisions adopted pursuant to the Framework Agreement are fully effective.⁽³⁵⁾

60. The Member States must respect the limits of the procedural autonomy which they enjoy in this regard. In the case of misuse of successive fixed-term employment contracts, a measure offering effective and equivalent guarantees for the protection of workers must therefore be capable of being applied in order duly to penalise that misuse and nullify the consequences of the breach of EU law.⁽³⁶⁾ The Member States are subject to this obligation irrespective of the latitude accorded to them in the selection of such appropriate measures.⁽³⁷⁾

61. Since the interpretation of provisions of domestic law falls exclusively to the referring courts, it is also for them to examine whether the relevant provisions of national law meet the abovementioned requirements. The referring courts consider in this regard that national law does not include effective measures within the meaning of Clause 5 of the Framework Agreement in so far as the employment relationships concerned are subject to administrative law. Under these circumstances, the Court should, on the basis of the questions referred, offer clarification intended to provide the national courts with guidance in its assessment.⁽³⁸⁾

62. The measures envisaged in the questions referred for a preliminary ruling will be considered below in the light of these principles.

E. The procedural position of fixed-term employees (second and eighth questions in Case C‑103/18)

91. These questions relate to the assessment of rules of national procedural law under which a public employee forfeits the rights under Directive 1999/70 if, in the case of successive fixed-term contracts, he does not challenge any administrative act concerning his (re-)appointment, the termination of the employment relationship or the holding of a selection process to fill the post in question.

92. In so far as Spanish law includes such a rule, which is disputed by the Spanish Government and the Comunidad de Madrid, there would appear to be little doubt that it renders practically impossible or excessively difficult the exercise of rights conferred by EU law and is thus incompatible with the principle of effectiveness.

93. First, such a rule amounts to interpreting the employee’s inactivity as consent to abuse, even though it can be explained by obvious reasons, such as ignorance of his rights, costs of legal proceedings or fear of adverse consequences. Such disadvantaging of the employees concerned in the procedural rules is manifestly contrary to the objective of the Framework Agreement. Furthermore, the statements regarding the first question in Case C‑103/18 (see above under B) show that identifying a challengeable act is certainly not without problems. If the employee refrains from making a challenge because of an incorrect assessment or ignorance of the act in question, this would always be to his detriment on the basis of the rule at issue.

94. Second, such forfeiture would give the responsible authorities an incentive to infringe Clause 5 of the Framework Agreement. Either employees defend themselves against successive fixed-term employment relationships – employment can then be terminated without being open to the accusations of abuse – or they do not defend themselves and lose their legal protection because of the infringement of Clause 5.

95. In view of these considerations relating to the second question in Case C‑103/18, there is no need to answer the eighth question, as it assumes that the procedural rule in question is valid.

96. I suggest that the Court answers the second question in Case C‑103/18 as follows: The provisions in the Framework Agreement on fixed-term work in the Annex to Directive 1999/70/EC, in conjunction with the principle of effectiveness, must be interpreted as precluding national procedural rules that require a fixed-term worker actively to challenge or appeal against all the successive appointments and terminations of employment as the only way in which to benefit from the protection of the directive and claim the rights conferred on him by EU law.