It is evident that the European Court of Justice (ECJ) ruling of September 14, 2016 (Case C-596/14, de Diego Porras) declares that Spanish legislation, which eliminates any compensation for interim workers at the end of their contract, is contrary to Community Law. This ruling has generated significant reactions among social partners.

Government, employers, unions, political parties, and experts have defended different interpretations of a decision that will inevitably require substantial reforms in our labor legislation.

On the other hand, no one seems to agree on the limits established by this important ruling, not even on basic aspects such as whether it only affects the specific case or has a general scope, the types of contracts it affects—only interim or also temporary—the need to reform labor legislation, or its effects remain to be clarified.

It is necessary to mention that the ECJ had equated concepts and compensation amounts. The first preliminary question presented was based on whether Council Directive 1999/70/EC on temporary work, which aims to equalize the «working conditions» of permanent and temporary workers, was applicable to compensation for contract termination. Thus, the ECJ considers «since the compensation is granted to the worker for the termination of the employment contract that binds him to his employer […], it is therefore included in the concept of ‘working conditions’.»

This directive will apply, as Article 4.1 cannot treat temporary workers less favorably than «comparable permanent workers,» except where there are objective and reasonable reasons justifying such differentiation, not inequality.

In this specific case, the ECJ reasoned that the worker replaced a union representative—permanent—and covered the same functions and, therefore, should not have been dismissed with a lower compensation than that granted to permanent workers in cases of objective dismissal.

However, there are significant doubts about the objective relevance of this ruling in the ECJ’s decision, as it is now up to the state to modify its regulations to comply with the European directive, which preceded the ruling and in accordance with Article 96 of the Constitution.

However, it should be noted that directives do not generally have direct application in relations between individuals except in very exceptional cases.

It is evident that the courts and tribunals of the social order will begin to recognize higher compensation for the termination of interim contracts, and even for temporary workers.

It is necessary to reflect on the types of temporary contracts to which the ECJ’s doctrine would apply. In this regard, the preliminary question raised by the Superior Court of Justice of Madrid by mentioning «temporary contracts» is very important.

Therefore, there is a risk that workers with temporary contracts, and when there is comparable permanent work in the same workplace, could file a claim demanding compensation of 20 days’ salary per year of work, instead of the current 12 days’ salary established by law.

Consequently, the ECJ ruling marks a before and after, and although it does not entail changing Spanish legislation, judges and tribunals will have to apply its content jurisprudentially.

Therefore, it will now be up to the legislator to promulgate national labor legislation to accommodate the meaning of this ruling, as the exegesis of the ECJ’s interpretation will now come. The ruling establishes that an interim worker performing the same functions as the person they replace, and whose contract ends, must receive compensation identical to that which would correspond to the replaced worker.

Today, there are several compensations in Spanish legislation when the employment relationship ends: 12 days per year worked for temporary contracts, 20 days per year for permanent employees dismissed for objective reasons, and 33 days per year for permanent employees who have suffered unfair dismissal, and 0 days of compensation for training or apprenticeship workers or interim workers, but now interim workers are penalized with compensation identical to that of permanent workers.

It is evident that Spanish labor law is far from the «legal winds blowing in Europe.» And it is undoubtedly necessary to understand this ruling as a step towards labor rights equality. However, it is equally true that the Spanish legal framework must be equated with the Community framework, both in burdens for the employer and benefits for the worker, because if we only equalize penalties, we risk further penalizing job creation in Spain; when the legal equalization could be carried out by equalizing compensation between permanent and temporary workers, reducing the penalties for objective dismissal of permanent employees.