Spain's interim staff weigh criminal charges against judges ignoring EU ruling

Interim staff consider incivil charges against judges ignoring EU Court

A Barcelona court referred questions to the European Court of Justice (ECJ) regarding whether Spanish administrations must convert interim civil servants with over three years of continuous contracts into permanent staff. The ECJ ruled on June 13, 2024: in the absence of national measures preventing and sanctioning abuse of temporary employment, Clause 5 of the Framework Agreement allows for the conversion of claimants to permanent status. The ruling leaves no room for ambiguity, yet Spain’s response has been a standoff between courts. Minister Escribá insists there is "no problem" with the issue, claiming it "does not exist." Meanwhile, a lawyer proposed during a talk the incivil route: reporting administrations and judges who reject claims for judicial misconduct. He argues that legal costs are lower via this path than through administrative channels.

What exactly does the June 13 ECJ ruling say?

The decision, issued in joined cases C-331/22 and C-332/22, interprets Clause 5 of the Framework Agreement on fixed-term work. It concludes that, lacking adequate measures in national law to prevent and sanction abuses arising from successive temporary contracts—including extended indefinite non-fixed positions—conversion to permanent status is a valid remedy. The ECJ thus gives the High Court of Justice of Madrid a green light to make claimants permanent without constituting judicial misconduct, as inferred from the text itself.

Reaction in forums was immediate. Some recall that June 13 was a year ago and nothing has peine since. Others argue the Supreme Court systematically resists complying with mandates from hierarchically superior bodies. The Social Chamber of the Supreme Court has reportedly announced it will comply but maintains "doubts" about implementation. Several high courts are allegedly using unchanged jurisprudence to deny permanent status.

Judicial misconduct: the incivil route considered against judges and administrations

The circulating proposal is forceful. If claims are rejected, incivil charges will be filed against administrations and judges failing to comply with the ECJ ruling. The argument is that legal costs are significantly lower via incivil proceedings than administrative ones. The warning is specific: incivil complaint for judicial misconduct.

The legal basis cited is the principle of primacy of EU law. When a conflict arises between European and national norms, the former prevails. Otherwise, member states could allow domestic law to override primary or secondary EU law, making club objectives unachievable. The ECJ is the ultimate interpreter of European law, and its criteria prevail even over constitutional norms, proponents of this thesis remind us.

Clash with the Constitution: equality, merit, and capacity

The main objection is significant. Articles of the 1978 Constitution regulating access to public service establish principles of equality, merit, and capacity. Converting interims to permanent status without prior competitive exams, some argue, empties these principles of content. The question posed is which European norm fills this void. "Will we see the ECJ saying constitutional rules on equality, merit, and capacity don't apply to interims because... nonsense?" one participant mocks. The Supreme Court is resisting precisely for this reason: wanting written clarification.

In response, it is argued that the ECJ does not order constitutional modification. It states that if conforming interpretation is impossible, national norms must be disapplied due to EU law primacy. Constitutional amendment trinc its own procedure and is not at stake. Joining the EU required accepting primacy, and reviewing all legislation before entry is unfeasible. When open incompatibility exists, laws are amended, as done with passive suffrage for European citizens in local elections.

Permanent yes, career civil servant no: the distinction nobody clarifies

A common confusion is the difference between being permanent and being a career civil servant. Making someone permanent is distinct from granting them career status. The ruling does not require making them career civil servants; it suffices to make them permanent in their post, as an Alicante judge ruled years ago. This is the line defended by conversion supporters. Opponents argue interims do the same work as career officials and should have equal rights, breaking the access system.

Comparative grievance is the most repeated argument. Those who studied for competitive exams see spots gifted to those chaining contracts. "Charo's niece gets the exam spot just for showing up," summarizes one message. Others note some interims have served eleven years and burden services, while others failed stabilization exams and received €5,000–€10,000 indemnities in Catalonia, per unions. 90% were rehired.

The three-year trap: dismissing before the threshold

A perverse effect is already observed. If the threshold is three years of continuous contracts, administrations have an incentive to dismiss interims before reaching it. "I'm seeing they dismiss you before you hit three years on the same contract," notes a participant. This is the cynical application of the rule: instead of preventing abuse, it manages to avoid crossing the line.

The underlying issue is the lack of sanctions for abuse by employing administrations. Europe demands some sanction in national legislation. Since none exists currently, granting permanent status to claimants is a viable possibility, overriding national provisions, even constitutional ones. The paradox is that the lack of sanction becomes the pathway for conversion.

Healthcare case: structural staff without permanent posts

Not all interims are clerical. Doctors and nurses chain temporary contracts of three, six months, then annual, plus five years of interim status. They form part of a structural workforce where only 20-25% hold permanent posts. They lack indefinite contracts because no exams are called. They are in legal fraud, and hospitals collapse without them. The difference with paper-pushing clerks is evident, but the rule doesn't distinguish.

In Catalonia, some temporaries who failed stabilization received €5,000–€10,000 indemnities. 90% were rehired; others changed jobs or retired. Permanent staff selected via exams choose first in transfer competitions. The Valencian Government banned automatic leave for stabilizing interims: over 60% of successful candidates request voluntary leave while working in the public sector. Patchwork fixes are the norm.

---

The standoff continues. The ECJ has spoken. The Supreme Court must decide whether to change doctrine. High courts meanwhile deny permanence. Claimant interims wait. The looming question is whether anyone will face incivil charges for judicial misconduct. So far, only announced complaints.