He The Court of Justice of the European Union (CJEU) made public, on June 5, two rulings that had generated much expectation and have revolutionized our judicial landscape., after the situation generated by the already known ruling By Diego Porras, from the same CJEU, which had come to establish a kind of “café for all” temporary contracts in terms of compensation for their termination, equating the compensation to that of dismissal for objective causes of 20 days of salary per year of services and generalized the possibility of claiming it in all terminations of temporary contracts, once their term has expired.
So much so that the judicial claims after this ruling became a constant and continuous evolution, in which the rulings have been mostly favorable to applying that doctrine and declare the right to compensation of 20 days of salary per year of service in each normal termination of a temporary contract, once its completion has arrived. The sentences are those handed down in the matter C-677/16 Montero Mateos, which resolves a preliminary question raised by the Social Court No. 33 of Madrid and the one issued in the matter C- 574/16 Grupo Norte Facility SA, which resolves a preliminary question raised by the Superior Court of Justice of Galicia.
In both cases, the CJEU declares that our national legislation in such cases (extinction without the right to any compensation in the case of an interim contract and termination with the right to compensation specifically established for the termination of contracts of that temporary type), is perfectly adjusted. to European regulations and is not discriminatory. To do this, it is taken into account: i) that there is no discrimination between permanent and temporary, because they recognize that if temporary workers were fired for objective reasons they would have “the same compensation” as a permanent worker and ii) that the position of a permanent worker who is dismissed is different from that of a temporary worker, “because in the first case, unlike eventual cases, it is not known when the employment relationship will end and the damage, therefore, is greater.”
The news in itself may seem like a simple twist by the CJEU, but in reality I rather believe that we can speak of a rectification of its previous criterion, which was erroneous in my opinion. Especially if we take into account the statements made at the time, after that ruling, by the president of the Court, Koen Lenaerts, when he publicly acknowledged that in that now famous ruling on dismissal compensation for interim “there was no understanding of the problem between the court that carried out the consultation and the members of the European Court of Justice, and they did not fully understand the problem”. And, in effect, there was no such understanding, because the Court accepted a panorama of discrimination and issued a ruling that followed wrong parameters that these two rulings have now been responsible for clarifying, specifying and, without a doubt, correcting.
The CJEU has now established, contrary to what it had previously said, that our regulations, in the comparison of temporary and fixed compensation, are not discriminatory. because "in Spanish Law there is no difference in treatment between workers with a temporary contract and comparable permanent workers", since in the event that either of the two is dismissed for objective reasons in an appropriate manner, they are paid the 20 days per year worked up. For me, this is the missing link that was precisely missing in the previous resolution, which has now been understood and taken into account by the Court to amend its position.
The legal commotion that caused that pronouncement first gave rise to a somewhat chaotic judicial situation, which still survives today, with the filing of a large number of judicial claims requesting the compensation amount of twenty days of salary per year of service for the termination of temporary contracts, which do not legally have that amount established in our regulations, but rather a lower amount, twelve days, in some temporary contracts, or simply none in some others (interim contracts, training contracts). In fact, many of the subsequent judicial pronouncements, for the most part, have been limited to directly and strictly applying this European doctrine., granting in their sentences compensation of 20 days of salary per year of service for the normal termination of temporary contracts, once their end has arrived.
We must assess the impact that these two judicial resolutions will have based on the situation of the litigated matters. Thus, it cannot have any impact, a priori, on the judicial processes already resolved, and concluded with a final ruling, because those favorable judicial rulings, in application of this previous doctrine, cannot be altered by these subsequent resolutions. The same does not happen with the procedures that are in the process of appeal or are pending trial, which may be affected, as well as those that are subject to, and I know that there are, suspended pending precisely these resolutions of the CJEU, in which the repercussion is clear.
What seems evident is that these judicial pronouncements of the European Court can put a stop to the panorama of uncertainty generated in our social jurisdiction after the De Diego Porras matter and the accumulation of claims and rulings, with interpretations mostly inclined to automatically grant this higher compensation. of 20 days of salary per year of service, which our legislation does not contemplate for the termination of temporary contracts when they come to an end. And that with this a new scenario of clarity and coherence is also drawn, in accordance with our legal system and with the reality of the situations judged., which has finally been able to be correctly understood. Let us hope that it can also be an effective firewall that puts an end to the extravagant and incessant claims that have been raised until now.
María Jesús Herrera Duque She has a doctorate in Law and a partner in Sagardoy Abogados.
Source: https://cincodias.elpais.com
