In 1999, Rosario Serra Cristóbal, a professor of Constitutional Law, published a book titled “The War of the Two Courts.” It explored the tensions and disagreements between the Spanish Supreme Court and the Constitutional Court over judgments and rulings that each body viewed as intruding on its jurisdiction, or even as direct attacks on its institution. One could write another extensive volume about the ongoing “war” between the Court of Justice of the European Union and Spain’s Supreme Court, touching on matters from the Commission’s consumer protection rulings regarding “floor clauses” to the resistance to accepting the primacy of European law over national statutes.
Among the many controversies and steadfast refusals welcomed by Spain’s Supreme Court against the EU judicial body lies the issue of temporary public employees placed in precarious or abusive temporary contracts. It has been a lengthy judicial battle in which the nation’s top interpreter of law moved in one direction while the community jurisprudence stood in another. Repeated rulings from the EU Court have nudged the Spanish courts toward change over time. First, regarding the equalization of rights between interim and career officials—such as the right to a professional career path. Then, in recognizing the reality of temporary‑contract abuse as contrary to current law. And finally, once it was acknowledged, albeit late, that abuse in temporary public hiring constitutes illegal conduct, the question shifts to what sanctions or compensation should be provided to millions of interim and fixed‑term workers who endured years or even decades in precarious employment.
Adding a further twist to the ongoing dilemma is the perceived failure of lawmakers and the national government to respond. The government first issued Royal Decree-Law 14/2021, on July 6, to take urgent steps to reduce temporariness in public employment, followed by Law 20/2021, December 28, addressing the same aim. Many academic and legal commentators warned that these measures did not properly transpose Directive 1999/70/EC concerning fixed‑term work, the framework agreement involving CES, UNICE, and CEEP, and that the selection processes as designed did not meet EU requirements for sanctions or compensation. Yet the issue persisted. The government’s approach moved forward, and the problem has grown with consolidation processes that have spawned hundreds, perhaps thousands, of lawsuits brought by temporary employees as well as external applicants who did not win the advertised openings. This has produced a procedural labyrinth and a governance deficit across central and regional authorities. Within this uneven reality, some groups bear a heavier burden; the education sector, in particular, finds its teachers in a more precarious position than before due to rules enacted by the central government, notably Royal Decree 270/2022, April 12, which many felt hollowed out the integrity of these selection processes.
Following this panorama, on February 22 the EU Court of Justice had to reiterate and reinforce its guidance, highlighting several points to Spain’s public authorities. The ruling addresses a reference from the Social Chamber of Madrid’s High Court and, while it centers on temporary workers with an employment link, many conclusions apply to public employees under an administrative contract. For the latter group, numerous judicial questions still await resolution. The decision underscores the obligation for national courts to compensate workers effectively and proportionally for the precarious conditions caused by widespread use of temporary appointments.
However, the Spanish tribunals have, for the most part, continued to overlook these mandates or, at times, deny the very reality of abuse in temporary hiring. The central question now is what happens next: will Spain keep ignoring EU expectations, or will Spain’s Supreme Court and the regional high courts begin to yield to the evidence? Either choose to apply EU law as interpreted by the EU Court, or risk contravening Article 4 bis of the Organic Law of the Judiciary, which requires judges to apply EU law in line with EU Court jurisprudence. If the latter path is taken, it could undermine the right to effective judicial protection for thousands of claimants, given that several rulings have already stressed the primacy of EU law when national interpretations diverge. The issue remains whether this primacy will be respected in practice or relegated to the margins of national jurisprudence, with potentially significant consequences for those seeking enforcement of EU‑level guarantees.