The labour-administrative complaint regarding the investiture of permanent non-permanent and even permanent workers. A proposal to reconcile European demands with the Spanish constitutional framework on public employment

Abstract

For more than two decades, stemming from jurisprudential concerns to find a solution that guarantees the labor rights of affected individuals, “non-permanent indefinite employees” have become a widespread reality in Spanish public administrations. However, neither the consolidation of this solution nor the explicit support for such remedies that we can easily found in European Law have succeeded in making this construction uncritically accepted in Spain. Our legislative power has not explicitly endorsed this construction, which therefore lacks a normative regulation that could provide greater legal certainty in its application. Meanwhile, certain Public Law scholars have continued to point out contradictions between this solution and some fundamental constitutional principles governing access to public employment, principles centered around a particular interpretation of the ideas of equality, merit, and ability in the making and development of any public selection process. This paper analyses the structural elements of this jurisprudential and doctrinal debate, as well as the foreseeable evolution of the dispute between the different sides, taking advantage of the recent and significant judgment of February 22, 2024. This judgment is argued to represent a definitive endorsement by European Law of the positions that, as discussed at length, should not only settle the controversy surrounding the figure of non-permanent indefinite employees but may also help to compel a fundamental, structural transformation in the constitutional understanding of the principles underpinning our public employment model. In conclusion, this work presents reasons on the necessity of adopting (both in line with the European interpretation to which our legal system is subordinated, but also at ease, with a proper understanding of our constitutional framework) a much more flexible, diverse system of access, occasionally directly conditioned by factual circumstances, without greater constitutional concerns.