1.

Even though paragraph 115 of the judgment of the Court of Justice of the European Union of 13 June 2024 , Joined Cases C-331/22 and C-332/22, (1) establishes that the conversion of [improper successive fixed-term contracts or relationships into an employment contract or relationship of indefinite duration] for a public employee who is the victim of such misuse [of such contracts and/or relationships] is possible only where such conversion does not involve a contra legem interpretation of national law, in so far as: (i) Directive 1999/70 (2) and clause 5 of the corresponding framework agreement impose an obligation to penalise misuse incompatible with Directive 1999/70 by means of a punitive measure that is proportionate and sufficiently effective and dissuasive to guarantee that the objectives of clause 5 of the framework agreement are achieved and that it has full effect, and (ii) that the judgment of the Court of Justice (Grand Chamber) of 8 March 2022, C-205/2020, NE v Fürstenfeld,  (3) states that the principle of the primacy of EU law must be interpreted as imposing on national authorities the obligation to disapply national legislation of which a part is contrary to the requirement of proportionality of penalties laid down, only to the extent necessary to enable the imposition of proportionate penalties (see paragraph 57), where a Member State, such as Spain, has not transposed Directive 1999/70 into its national law in the public sector, and there is no punitive measure in domestic law ensuring that the objectives of clause 5 of the framework agreement are achieved, are the national authorities required to penalise the misuse that has occurred by disapplying national legislation that contravenes the requirement of proportionality of penalties, in such a way that those authorities – in order to avoid undermining the objective and effect of Directive 1999/70 and to ensure its full effectiveness – may agree to convert an improper temporary relationship into a permanent relationship, even if that conversion involves a contra legem interpretation of national law?

2.

If the answer to the previous question is in the negative,

is it compatible with EU law that direct effect is recognised by the judgment of the Court of Justice of 8 March 2022 , [Case C-205/20], in relation to Directive 2014/67/EU, and is not recognised in relation to Directive 1999/70/EC, when, according to the settled case-law of the Court of Justice, both directives require misuse to be penalised by means of an effective, proportionate and dissuasive measure, considering that Article 20 of Directive 2014/67/EU (4) establishes that Member States are to lay down rules on penalties applicable in the event of infringements of national provisions adopted pursuant to this Directive and to take all the necessary measures to ensure that they are implemented and complied with, and that Article 2 of Directive 1999/70/EC states that Member States are required to take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by the directive in clause 5 of the framework agreement?

3.

In the alternative, how is the statement in the judgment of the Court of Justice 13 June 2024  – that conversion is only possible if it is not contra legem under national law – compatible with the settled case-law of the Court of Justice whereby:

‘the framework agreement is to be interpreted as meaning that, in so far as domestic law of the Member State concerned does not include, in the sector under consideration, any other effective measure to prevent and, where relevant, penalise the misuse of successive fixed-term contracts, the framework agreement precludes the application of national legislation which, in the public sector alone, prohibits absolutely the conversion into an employment contract of indefinite duration of a succession of fixed-term contracts that, in fact, have been intended to cover “fixed and permanent needs” of the employer and must therefore be regarded as constituting an abuse’ (see judgments of the Court of Justice of 4 July 2006 , C-212/04, Adeneler  (5) and Others, paragraph 106; of 14 September 2016 , C-184/15 and C-197/15, (6) paragraph 41; of 25 October 2018 , C-331/17, (7) paragraphs 70 and 71; of 13 January 2022 , C-282/2019; (8) and of 22 February 2024 , Joined Cases C-59/22, C-110/22 and C-159/22; (9) and order of the Court of Justice of 30 September 2020 , C-135/20. (10) See also judgment of the Court of Justice of 13 June 2024 , paragraphs 98 and 110).

4.

Can a selection procedure, the outcome of which is uncertain, in that (1) it does not guarantee that all of the temporary public employees who are the victims of abuse incompatible with the directive will become permanent public employees; (2) it is random and unpredictable, since it depends on the discretionary assessment, the mere whim or the choice of the employing administration that has caused the abuse; (3) it does not result in a penalty or a detrimental or negative effect for the employing administration responsible for this misuse that would dissuade it from continuing to abuse its temporary workers, be conceived as a punitive measure ensuring that the objectives of clause 5 of the framework agreement are achieved?

5.

Does clause 5 of the framework agreement preclude national legislation that, as a punitive measure, provides only for the payment – to public employees on termination or expiry of the employment relationship and in the event that the victim of the abuse is not successful in the selection procedure for acquiring permanent status – of compensation set at 20 days per year of service up to a maximum of 12 monthly payments, without – as required by the judgment of the Court of Justice of 7 March 2018, Santoro, (11) and the order of the Court of Justice of 8 January 2024, C-278/23 (12) – that compensation being accompanied by compensation for the loss of opportunities or by any other additional effective and dissuasive penalty mechanism?

6.

Does the fact that the Spanish legal system requires the victim of the abuse to prove the loss or damage suffered infringe the EU principle of effectiveness, inasmuch as that requirement of proof imposed by national law makes it practically impossible or excessively difficult for public employees to exercise their right to full compensation for the loss suffered as a result of the misuse by the public employer of successive temporary contracts, and thus undermine the possibility of eliminating the consequences of such an infringement of EU law?

7.

Since there is no effective measure in Spanish domestic law, in the public sector, to provide an effective, proportionate and dissuasive penalty in the case of the misuse of successive fixed-term contracts – unlike the case in the private or general sector, where [contracts held by] temporary workers are converted into permanent or open-ended contracts when they exceed 24 months of service for the same employer over a period of 30 months – in so far as clause 5 of the framework agreement precludes the application of national legislation which, in the public sector alone, prohibits absolutely the conversion into an employment contract of indefinite duration of a succession of fixed-term contracts that, in fact, have been intended to cover ‘fixed and permanent needs’ of the employer and must therefore be regarded as constituting an abuse, would it be permitted under Directive 1999/70 to apply this same conversion rule to fixed-term contracts in the public sector, in order to prevent abuse from continuing with impunity in this sector and to ensure that the objectives of clause 5 of the framework agreement are achieved and that it is given full effect, even if this conversion involves a contra legem interpretation of national law?