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Dismissal is a delicate situation that can be overwhelming for any worker.

When facing a dismissal and the associated legal and extrajudicial procedures, it is crucial to have the support and guidance of a law firm specializing in labor law.

From the firm, we can provide legal guidance, representation, and defense in case the dismissal is considered unfair or discriminatory.

In a recent ruling, the Superior Court of Justice of La Rioja, STSJ LR 398/2023 – ECLI:ES:TSJLR:2023:398, upheld the termination of the contract of a maintenance employee of a meat company for committing a very serious labor offense, as determined by the Social Court 3 of Logroño. In other words, it confirmed the validity of the company’s decision to dismiss the employee.

The decision states that on July 19, 2022, the employee received a letter informing him of his disciplinary dismissal for violating the contractual good faith and abusing trust when he was discovered inside the company’s premises outside of working hours, accompanied by an unauthorized person, attempting to take materials without prior authorization.

The employee’s defense argued in the appeal that his behavior was not severe enough to justify dismissal.

However, the Court points out that each case is individually analyzed in practice to determine the appropriate penalty, taking into account the worker’s previous employment relationship and the absence of prior sanctionable reasons.

Therefore, the Court supports the decision of the trial judge, considering that the employee abused his access to the company’s premises by attempting to take valuable materials without prior authorization, constituting a violation of contractual good faith and an abuse of trust justifying his dismissal.

The ruling is interesting for its jurisprudential review of the gradualist theory:

The Supreme Court’s jurisprudence regarding the gradualist theory of dismissal requires maintaining a proper proportionality between the penalty and the sanctioned conduct. It must adhere to the seriousness of the offense and the personal and professional circumstances of the perpetrator, given the subjective nature that characterizes it. This is in accordance with fundamental principles of justice, which demand a perfect proportionality between the act and its penalty, seeking the true legal reality that arises from their conjunction. This is reminiscent of recent Supreme Court judgments of November 13, 2000, or May 24, 2005, emphasizing that the infractions stipulated in Article 54.2 of the Workers’ Statute to justify dismissal must reach sufficient levels of culpability and gravity, requiring individualized analysis of each conduct, considering the circumstances that shape the act, as well as those of its author, as only from this perspective can the proportionality of the penalty be appreciated.

Reference is made to the statements in Supreme Court judgments of July 17, October 31, and November 17, 1988, January 30, 1989, February 28 and April 6, 1990, May 16, 1991, and November 10, 1998, recalling how “disciplinary dismissal requires full proof of an action or omission by the worker that is serious, culpable, and classified by labor regulations; requirements for whose assessment all subjective and objective aspects must be considered in a particularized manner, taking into account the background and contemporaneous circumstances that define the employment relationship as a continuous relationship over time; therefore, identical facts can be treated differently depending on the concurrent subjective and objective circumstances.”

Having been declared in numerous judgments that “the adjudication of dismissal must be approached gradually, seeking the necessary proportion between the offense and the penalty, and applying an individualizing criterion that assesses the peculiarities of each specific case.”

The use of the gradualist criterion must, however, be harmonized with the employer’s authority to impose the penalty deemed appropriate within the limits established by the regulatory framework of offenses and penalties (former STS of October 11, 1993; among others). Thus, the proportionality judgment cannot be applied in the same way in cases where the penalty type allows (by its own content) greater freedom in the graduation of the specified conduct than in those where a number of “unjustified” absences reach the minimum threshold stipulated in collective bargaining.

In practice, each specific case tends to be individualized to apply the solution considered most suitable, meaning a certain modulation of the employer’s sanctioning capacity in cases where the underlying facts of the penalty intersect with a prolonged employment relationship where there has been no previous reason for sanction or warning to the worker.

Therefore, and in accordance with the aforementioned, taking into account that dismissal, being the most significant and serious among possible penalties, must be reserved for cases of serious and culpable breach of the employment contract in terms of a significant violation of a duty of conduct.

Also, as it establishes the general requirements for the validity of a disciplinary dismissal, although the specific case must be evaluated:

1. The general principle of good faith is an essential part of the employment contract, not only as an interpretative canon of the parties’ will reflected in consent but also as a source of integration of the normative content of the contract. Additionally, it constitutes a principle that conditions and limits the exercise of the subjective rights of the parties so that it is not carried out unlawfully or abusively, causing harm or risk to the interests of the other party, but rather adhering to the rules of loyalty, probity, and mutual trust. Finally, this general principle of good faith becomes a criterion for assessing behaviors to which the fulfillment of reciprocal obligations must conform, and therefore, the duties of acting or executing the contract in good faith and mutual fidelity or trust between the employer and the worker become a requirement of ethically protected and enforceable behavior in the contractual sphere.

2. The transgression of contractual good faith constitutes a breach that admits different gradations in order, particularly in its objective severity, but when it is serious and culpable and carried out by the worker, it is a cause justifying dismissal. This occurs when the fidelity and loyalty that the worker must have towards the company are broken, or the duty of probity imposed by the employment relationship is violated to avoid betraying the trust placed in the worker, justifying that the company cannot continue to trust the worker who engages in abusive or contrary conduct to good faith.

3. The absence of harm to the company or the limited importance derived from the worker’s reproachable conduct, on the one hand, or, on the other hand, the non-demonstration of the existence of personal gain for the worker, is not relevant in itself or in isolation to justify the unethical behavior of the offender. For such qualification, it is sufficient for the breach of the duties of good faith, fidelity, and loyalty implicit in any employment relationship, although, along with the rest of the concurrent circumstances, it can be taken into account as one of the factors to consider in the evaluation of the seriousness of the offense, with greater or lesser evaluative significance depending on the objective severity of the proven facts.

4. Similarly, the absence of a specific intent on the part of the worker to behave disloyally is irrelevant and with the same evaluative scope, not requiring that the worker has wanted or not, consciously and voluntarily, to violate the duties of loyalty. It is sufficient for the classification of the offense that there is a serious and culpable breach, even if it is due to negligence, of the duties inherent in the position.

5. The duties of good faith, fidelity, and loyalty must be more strictly observed by those who hold positions of trust and leadership in the company, based on the greater confidence and responsibility in the performance of the conferred powers.

6. In general, as must be done in the assessment of the “seriousness” concerning the other offenses that may constitute grounds for a disciplinary dismissal, being such penalty the most serious in labor law, a restrictive interpretation must be made. It may be judicially determined that the employer is empowered to impose penalties other than dismissal if, upon examination of the concurrent circumstances, the imputed facts, while deserving of sanction, do not warrant the most severe penalty, such as dismissal, as the proven facts, in relation to the concurrent circumstances, do not present such intensity of severity or possess as much significance as to justify the dismissal.

7. Also, in cases of transgression of contractual good faith and abuse of trust in job performance, “articulated as grounds for disciplinary dismissal, the mere existence of the transgression or abuse is not enough to declare the justification of dismissal. It is equally necessary, as in other cases of contractual breaches, that it can be classified as a “serious and culpable breach by the worker.” Therefore, as a rule, the concurrent circumstances can be considered to aggravate or mitigate the worker’s conduct, which will have greater or lesser evaluative impact depending on the objective severity of the proven facts.

As a result of the above, the judgment of the Social Court is confirmed, and the appeal filed by the worker is dismissed.

At Roji Abogados, we remind you that, in case you wish to make any inquiries about a possible dismissal, the legal deadline for challenging it is 20 days from the date it occurred. After this period, in general terms, it will not be possible to challenge it due to the expiration of the legal action.

If you have any doubts and want to inquire about our working methods and fees, you can do so through:

1. Email: info@rojiabogados.com

2. Phone numbers: 952 211 011 and 607 202 361

3. Send a message to Roji Abogados via WhatsApp: https://wa.me/34607202361

Promotion in the workplace for performing functions above one’s position is an important issue in the labor sector, regulated by the Workers’ Statute. When an employee demonstrates abilities and skills superior to those required for their position, it is fair to consider them for a promotion to a position with greater responsibilities and remuneration. This promotion process should be carried out transparently and fairly, following the protocols established in labor legislation, especially in the applicable Collective Agreement and in the employment contract itself. It is essential for companies to recognize and value the talent of their employees, thus promoting a motivating and equitable work environment. However, there are occasions when, due to certain circumstances initially unforeseen by the worker or the company, the worker has to perform functions above their job position. When this happens, the promotion can be perpetuated, and the employee can fight for the company to recognize this improvement in category, provided that the requirements established in art. 39.2 of the Workers’ Statute are met:

2.Functional mobility to perform functions, both superior and inferior, not corresponding to the professional group, will only be possible if there are also technical or organizational reasons that justify it and for the time necessary for its attention. The employer must communicate his decision and the reasons for it to the worker representatives.

In the case of assignment of functions superior to those of the professional group for a period exceeding six months during one year or eight months during two years, the worker may claim the promotion, if not hindered by the provisions of a collective agreement or, in any case, the filling of the vacancy corresponding to the functions performed by him in accordance with the promotion rules applicable in the company, without prejudice to claiming the corresponding salary difference. These actions will be cumulative. Against the company’s refusal, and after a report from the committee or, where appropriate, the workers’ representatives, the worker may file a claim before the social jurisdiction. Through collective bargaining, different periods from those expressed in this article may be established for the purpose of claiming the filling of vacancies.

This situation has been practically seen in STS 622/2024 – ECLI:ES:TS:2024:622, where the High Court states the following:

As this Court has been holding, the consolidation of a category is subject to what is legally or conventionally established in terms of promotions, since the purpose of meeting those requirements is to maintain the principle of non-discrimination and limit the discretionary decisions of the employer that do not comply with the promotion regulations, which could cause harm to the rights of third parties interested in the regular operation of the promotion system at work in the event of a vacancy, so faced with the dilemma of the confrontation between the individual right of a worker to consolidate a professional category, for which his aptitude cannot be denied because he has performed it for a certain period of time, and the rights of those who may have the necessary knowledge and merits to access such category, one must abide by what is established for this purpose in the current regulations” (STS 1057/2021, of October 26 (rcud 4628/2018) and others cited therein).

With these premises, this Court has also understood that simply performing functions of a higher category in the temporal space and for the time stipulated by the law does not necessarily imply that it must be recognized if there are additional requirements imposed by a collective agreement for example.

In that sense, and as previously mentioned, it has been said that “The consolidation of category provided for in art. 23 of the Workers’ Statute of March 10, 1980 is subject to the need for a legal or conventional promotion… whose purpose is not other than to maintain the principle of non-discrimination and limit the discretionary decisions of the employer that do not comply with the promotion regulations, decisions that could cause harm to the rights of third parties interested in the regular operation of the promotion system at work in the event of a vacancy, so faced with the dilemma of the confrontation between the individual right of a worker to consolidate a professional category, for which his aptitude cannot be denied because he has performed it for a certain period of time, and the rights of those who may have the necessary knowledge and merits to access such category, one must abide by what is established for this purpose in the current regulations, putting in relation the legal or conventional obstacle referred to in the aforementioned art. 23-3 of the Statute with the requirement of passing promotion tests for the filling of vacant positions…, because in the holding of such tests whose motive is to contrast the abilities of the participating workers by granting them equal opportunities, the interests deserving of protection of the other workers in the company do not suffer any harm, interests that would be violated if someone were promoted, based on discretionary powers, who could have lesser merits for it compared to those who had the conditions to participate in said tests” [STS 166/2021, of February 9 (rcud 2301/2018); 772/2022, of September 27 (rcud 1960/2019), among others].

This doctrine would not apply to the case, and in the contrasted sentences no mention is made, because during the time in which functions of a higher category were performed, both in the appealed sentence and in the contrasting one, the current collective agreement did not contemplate anything regarding promotion to a higher category for performing these functions, but rather it is already provided for in subsequent collective agreements (such as the one in force for 2020 to 2024, in its art. 18.2).

It is also established that:

What the legislator requires is that the higher function has been performed for more than six months in one year (which is equivalent to more than half of the activity carried out in that year) or more than eight months in two years (which is equivalent to more than a third of that performed in those two years). That is, the legislator, not only that of 1980 from which this legal provision stems, but also the current one, with those terms intended to provide a general formula that allows to address the varied and different times of work activity that may occur in labor relations and to ensure that none of them is deprived of access to the promotion or advancement situation established.

Therefore, the High Court confirms the judgment of the Tenerife High Court, dismissing the appeal in cassation filed by the company’s representation, as it must be based on the actual time worked in the indicated periods and performing functions superior to their job position.

At Roji Abogados, we have different lawyers with experience in the area of labor law and social security. If you have any doubts or questions about labor law, whether as a company or as a worker, inquire about our fees and the possibility of having an appointment with us at:

1.- info@rojiabogados.com

2.- 952 211 011 and 607 202 361

3.- Send a message to Roji Abogados via WhatsApp. https://wa.me/34607202361

In Spain, the application of collective agreements is essential in the labor sector, as it regulates working conditions and the rights of workers in a specific sector or company. Collective agreements are negotiated agreements between worker representatives and employers, and are binding for both parties. However, it is common for workers to ask themselves: What Collective Agreement applies to me?

There are different types of collective agreements in Spain, such as company agreements, sectoral agreements, and state agreements. Labor regulations establish that the applicable agreement for a worker will be the one in force in their company or sector, and that in case of conflicts between agreements, the one of higher scope will prevail.

Furthermore, case law has established that if no specific Collective Agreement is applicable, the one indicated in the employment contract will apply. This was reiterated in the ruling STS 5913/2023 – ECLI:ES:TS:2023:5913, where the plaintiff sought the application of the General Commerce Agreement in Malaga, instead of the Collective Agreement for Commerce in Madrid that was being applied to them. According to the court’s decision, the plaintiff had been working for the company The Phone House Spain, S.L.

The High Court resolved the matter based on its previous doctrine:

“The Court considers, like the Public Prosecutor, that the correct doctrine corresponds to the appealed ruling, given that, proven that the predominant activity of the company consists of commercializing and acting as an intermediary distributor between the different telecommunications operators and their final customers for the realization of offers and processing of subscriptions between said operators and customers, it is clear that said activity does not fall under either the collective agreement for Various Commerce of the Community of Madrid, or the Collective Agreement for Commerce in General of Malaga and its province. Consequently, if there is no applicable agreement, nothing prevents the parties from freely agreeing to apply one of those agreements, in accordance with the provisions of art. 3.1.c ET, in relation to arts. 1089, 1091 and 1255 CC, not violating, therefore, the provisions of art. 37.1 CE, or arts. 82 and 85.1 and 2 ET, since the aforementioned agreement had a lawful purpose, as no agreement was applicable, which by itself prevents conditions less favorable or contrary to legal provisions and collective agreements from being established in it.”

Therefore, if there is no other applicable Collective Agreement, the parties can agree on what will

be applied, being able to govern their relationship according to another Agreement. The application of one Collective Agreement or another is very relevant to determine the base salary and its updates, vacations, professional category, etc. Although it should be noted that the Agreement should always act as a minimum standard, it is possible to improve its content by agreement with the employer, such as with conditions agreed upon in the employment contract itself.

If you have any doubts about your employment contract or the application of a specific Collective Agreement, you can schedule an appointment and consult our working method and fees. At Roji Abogados, we are a multidisciplinary team specialized in different areas of law with our main office in Málaga. We can travel to assist you and also provide online services. Schedule an appointment or get information:

1.- info@rojiabogados.com

2.- 952 211 011 and 607 202 361

3.- Send a message to Roji Abogados via WhatsApp. https://wa.me/34607202361

What happens when illegal construction work is carried out? How long does the Administration have to urge the legalization and/or demolition of the works? If the Administration’s action to exercise the restoration action has expired and what could be called out-of-zoning works and new constructions are carried out in these works, what happens with the already “consolidated” works?

There are many questions and answers that can arise in terms of urban law in this regard. While general guidelines can be established, we always recommend legal advice in the matter as both restoration and associated penalties can be very high. It is worth mentioning the following:

1. Normally, the Autonomous Communities are responsible for establishing urban planning regulations that regulate the expiry and prescription in relation to the execution of works that contravene urban legality. In Andalusia, we have the LIST as the main regulatory framework.

2. The recognition of the assimilated to out-of-zoning situation does not imply a “legalization” of the works, but rather that the Administration cannot urge the demolition. And then, the interested party can in principle keep and maintain these works, but without making modifications or expansions.

3. Not all works can be recognized as assimilated to out-of-zoning, there are limits that would mean that the Administration could always urge their legalization and/or demolition. For example, if a construction is carried out invading public land.

Having said that, it was common to question whether in the face of “illegal” works that had gained the possibility of requesting recognition of the assimilated to out-of-zoning situation or AFO due to the passage of time, that factually acquired situation would be lost if the interested owner proceeded to expand the works.

By the Town Councils, it was usually argued that by making a modification of the original works, the factually gained situation was invalidated, thus invalidating the acquired Assimilated to Out of Order situation (or its possibility).

Well, in a recent Judgment, the STS 170/2024 – ECLI:ES:TS:2024:170, the Supreme Court has indicated that the acquired situation; that is, the expiration of the restoration action by the Administration is not lost.

However, regarding these new works, the Administration may urge their legalization and/or demolition. Regarding the previous works, only maintenance or conservation works would be possible.

In this regard, the Supreme Court reminds us:

As this Court has declared in judgments of February

15, 1999 (appeal No. 371/1993) and April 3, 2000 (appeal No. 6192/1994), “what is built without a license and against urban planning regulations can be considered as out of zoning, in the sense that it does not comply with urban planning regulations, but it differs from the case provided for in article 60.1 of the TRLS in that the works were already illegal at the very moment they were being carried out, so the lapse of four years from the execution of the works without a license or contrary to the planning prevents the City Council from taking measures to restore urban legality provided for in article 184.3 of the TRLS, but it does not grant the owner of the works other faculties than those inherent in maintaining the situation created, that is the power to oppose any attempt to demolish what has been built or to deprive it of the use that is actually being enjoyed, as long as this use does not oppose that permitted by the plan for the area in question.”.

And regarding the permitted works in a situation assimilable to out of zoning:

In this sense, our jurisprudential doctrine, which we reaffirm, has specified that in buildings subject to this regime, works of consolidation, volume increase, modernization or increase in their expropriation value are not possible, not even if they are required by the provisions applicable to the activity carried out in them (STS of April 29, 2002, appeal No. 4065/1998). Only small repairs necessary for hygiene, ornamentation, building maintenance, and works essential to ensure the safety of the building users will be possible, for example, increasing the width of the evacuation staircase (Judgment of March 23, 1999, appeal No. 1294/1993) or improving fire protection systems (Judgment of December 11, 1998, appeal No. 8402/1992).

Therefore, the uses or activities intended in buildings that are in a situation assimilable to out of zoning, in addition to not opposing those permitted by the planning for the area in question, require that they do not require works that exceed those strictly authorizable (small repairs necessary for hygiene, ornamentation, building maintenance, and works aimed at maintaining safety conditions).

Finally, it establishes that:

In short, the legal consequence of the expiration of the restoration action of

the urban legality is nothing more than recognizing the owner of the work with the power to maintain the situation created, that is, to oppose any attempt to demolish what has been built, as well as the limited possibility of carrying out works that do not exceed those strictly authorizable (again, small repairs necessary for hygiene, ornamentation, building maintenance, and works aimed at maintaining safety conditions).

At Roji Abogados, we have a multidisciplinary team of lawyers with over 30 years of combined legal experience. Our main office is located in the center of Malaga, at Calle Alameda de Colón, nº2, 2ºD, 29001. Schedule an appointment or inquire about our fees and working method at:

info@rojiabogados.com

952 211 011 and 607 202 361

Send a message to Roji Abogados via WhatsApp. https://wa.me/34607202361

The Court of Justice of the European Union has just resolved some accumulated issues raised in cases of indefinite non-fixed and interim workers against the abuse of the Public Administration.

In Spain, many workers are in a situation of labor precariousness as they are hired as indefinite non-fixed or interim by the Public Administration. This type of temporary and precarious contracts have become a common practice in many public bodies, which has generated a problem of abuse and violation of the labor rights of these employees.

As stated in the resolution that is being discussed, this issue sometimes violates current labor law. To focus on the issue, it must be remembered, as the Court does, which are the basic provisions applicable to this type of employment relationships:

Spanish Law:

Constitution

Article 23, paragraph 2, of the Spanish Constitution (hereinafter, “Constitution”), states that citizens “have the right to access public functions and positions on equal terms, with the requirements established by law.”

Article 103, paragraph 3, of the Constitution establishes, among other things, that the law will regulate the status of public officials and access to public office in accordance with the principles of merit and ability.

Legislation related to fixed-term contracts

Statute of Workers

Article 15, paragraph 3, of the Workers’ Statute Law, whose consolidated text was approved by Royal Legislative Decree 2/2015, of October 23 (BOE no. 255, of October 24, 2015, p. 100224), provided, in its version applicable to the main disputes (hereinafter, “Workers’ Statute”), that “temporary contracts concluded in breach of the law will be presumed indefinite.”

Article 15, paragraph 5, of the Workers’ Statute provided the following:

“Notwithstanding the provisions of paragraphs 1.a), 2 and 3, workers who have been employed for a period of thirty months for more than twenty-four months, with or without interruption, for the same or different position with the same company or group of companies, through two or more temporary contracts, directly or through their provision by temporary employment agencies, with the same or different contractual modalities of fixed duration, will acquire the status of permanent workers.

[…]”

The fifteenth additional provision of the Workers’ Statute, concerning the “Application of the limits on the duration of contracts for specific tasks or services and the chaining of contracts in Public Administrations,” specified that the non-compliance with those limits in the “Public Administrations and their linked or dependent public bodies” did not prevent “the application of the constitutional principles of equality, merit, and ability in access to public employment, so it will not be an obstacle to the obligation to fill the positions in question through regular procedures, in accordance with the applicable regulations,” so that “the worker will continue to perform the position he/she was holding until it is filled through the aforementioned procedures, at which point the labor relationship will be terminated, unless the mentioned worker access to a public employment, surpassing the corresponding selective process.”

EBEP

The Basic Statute of Public Employee, whose consolidated text was approved by Royal Legislative Decree 5/2015, of October 30 (BOE no. 261, of October 31, 2015, p. 103105), in its version applicable to the facts of the main disputes (hereinafter, “EBEP”), was modified, among others, by Royal Decree-law 14/2021, of July 6, on urgent measures for reducing temporary employment in the public sector (BOE no. 161, of July 7, 2021, p. 80375), in its version applicable to the facts of the main disputes (hereinafter, “Royal Decree-law 14/2021”).

According to article 8 of the EBEP:

“1. Public employees are those who perform paid functions in the Public Administrations in the service of the general interests.

2. Public employees are classified as:

a) Career civil servants.

b) Interim civil servants.

c) Labor personnel, whether fixed, for an indefinite or temporary period.

d) Temporary staff.”

According to article 11, paragraphs 1 and 3, of the EBEP:

“1. Labor personnel are those who, under a written employment contract, in any of the employment contracting modalities provided for in labor legislation, provide paid services to the Public Administrations. Depending on the duration of the contract, it may be fixed, for an indefinite or temporary period.

[…]

The selection procedures for labor personnel will be public, always governed by the principles of equality, merit, and capacity. In the case of temporary labor personnel, it will also be governed by the principle of expeditiousness, with the aim of addressing expressly justified reasons of necessity and urgency.”

Article 55, paragraph 1, of the EBEP provides the following:

“All citizens have the right to access to public employment in accordance with the constitutional principles of equality, merit, and capacity, and in accordance with the provisions of this Statute and the rest of the legal system.”

Article 70 of the EBEP, titled “Public employment offer,” establishes the following:

“1. Human resource needs, with budget allocation, which must be met by incorporating new personnel, will be subject to Public Employment Offers, or through another similar instrument for managing personal needs provision. This will entail the obligation to call the respective selective processes for the committed positions and up to an additional ten percent, setting the maximum term for their call. In any case, the public employment offer or similar instrument execution must be developed within an unextendable period of three years.

2. The Public Employment Offer or similar instrument, which will be approved annually by the Governing Bodies of the Public Administrations, must be published in the corresponding Official Gazette.

[…]

Article 1, paragraph 3, of Royal Decree-Law 14/2021 introduced the seventeenth additional provision in the EBEP, which establishes, in the first place, the obligation of Public Administrations to avoid any type of irregularity in temporary labor contracting and the appointments of interim official personnel. Subsequently, this seventeenth additional provision specifically indicates that ‘irregular actions’ in this matter ‘will lead to the demand for the corresponding responsibilities in accordance with the regulations in force in each of the Public Administrations.’ Finally, the same additional provision also establishes the workers’ right to receive, without prejudice to the eventual compensations provided in the labor regulations, compensation for irregular temporary contracting, consisting of the payment of the difference between the maximum amount resulting from the application of the rule of twenty days of fixed salary per year of service, with a maximum of twelve monthly payments, and the compensation that would correspond for the contract termination. This compensation is payable at the moment of the contract resolution and is limited to the contract that causes the breach of regulations.

The previous configuration has led many workers, like those in the cases resolved by the European Union Court of Justice, to sue the Public Administration for their work contracts to be converted into a fixed-term contract, and in some cases, compensation for wrongful dismissal has been requested, following the termination (which would require the worker to file the corresponding administrative claim).”

Entering into the decision of the Court of Justice of the European Union, it establishes the following bases:

1. In the public sector, the concept of “indefinite but not permanent worker” constitutes a jurisprudential creation and must be distinguished from the concept of “permanent worker.”

2. However, it must be interpreted in the sense that an indefinite but not permanent worker should be considered a worker with a fixed-term contract, for the purposes of said Framework Agreement, and, therefore, is included within the scope of application of the latter.

3. When a worker is declared “indefinite but not permanent,” this declaration, although it may be considered a sanction against the employer in question for the abusive use of successive fixed-term work contracts, has the effect of replacing the temporary contracts that such worker may have previously entered into, so that, with said declaration, the labor relationship in question becomes, from the start, an indefinite but not permanent labor relationship. In this way, the temporary contracts previously entered into are no longer valid, and such worker is bound from the beginning by a single indefinite but not permanent contract.

4. In the context of these matters, the referring court specifies that the indefinite but not permanent contract does not have a set expiration date, but rather its termination is contingent upon the filling of the relevant position, and that the call for the procedure to fill such position is mandatory for the Administration.

5. There are no successive fixed-term labor relationships, for the purposes of clause 5 of the Framework Agreement, merely because a worker is linked to the Administration in question by a single indefinite but not permanent contract, while, as results from the requests for a preliminary ruling, on the one hand, this last contract, also of a temporary nature, replaces, as a sanction, successive temporary contracts and, on the other hand, the continuation of this indefinite but not permanent worker in the relevant position is due to the employer’s failure to fulfill its legal obligation to call, within the established period, a selective process for the definitive filling of that position, so that his labor relationship has consequently been tacitly renewed for several years, could compromise the purpose, aim, and effectiveness of said Framework Agreement.

6. Therefore, there are cases where if a new selection process and/or call by the Administration are not approved, the indefinite but not permanent contracts are understood to be automatically renewed with the Public Administrations.

Similarly, the resolution reminds the characteristics of an indefinite but not permanent worker according to Spanish jurisprudence, summarized as follows:

“The figure of the ‘indefinite but not permanent worker’ responds to the characteristics of the three measures outlined in clause 5 of the Framework Agreement. They consider that, in the first term, there is an objective reason for the application of this contractual modality: the guarantee of access to public employment under conditions of equality, merit, capability, and publicity, while remedying at the same time a situation of irregular contracting in the public sector, until the moment the position is filled; in the second term, there is a maximum duration that depends on the call for the vacancy, a call that the contracted worker can activate and that must occur within a maximum period in accordance with Spanish law, and, in the third term, succession is excluded, because there are no renewals of this type of contract.”

Therefore, the resolution establishes that although there is a regulation that obliges Administrations to call selective processes to definitively fill positions that had been temporarily occupied by temporary workers, if such regulation does not establish control over the effective calls, it does not prevent the abusive use of “successive fixed-term labor relationships”.

Likewise, the high court indicates that the compensation provided for the termination of these types of contracts is not sufficient to ensure the full effectiveness of the rules designed to prevent the abusive use of such contracts by Public Administrations. Therefore, community regulations: “oppose a national regulation that establishes the payment of a fixed compensation, equal to twenty days of salary for each year worked, with a limit of one year’s salary, to any worker whose employer has resorted to an abusive use of successively renewed permanent-non-fixed contracts when the payment of such compensation for contract termination is independent of any consideration regarding the legitimate or abusive nature of the use of such contracts.”

Furthermore, the resolution opens the door for lower courts to validate permanent-non-fixed contracts as permanent when it indicates that: “From all the above, it follows, on one hand, that, in the event that the referring court considers that the domestic legal system in question does not contain, in the public sector, any effective measure to prevent and, where appropriate, sanction the abusive use of successive fixed-term contracts, including successively renewed permanent-non-fixed contracts, the conversion of these contracts into an employment relationship of indefinite duration could constitute such a measure.”

However, such application will not be straightforward as it adds that if: “the referring court also considered that the consolidated jurisprudence of the Supreme Court, unlike that of the Constitutional Court, opposes such conversion, the referring court should then amend such jurisprudence of the Supreme Court if it is based on an interpretation of the Constitution’s provisions incompatible with the objectives of Directive 1999/70 and, in particular, of Clause 5 of the Framework Agreement.”

At Roji Lawyers, we are at your service to present you with defense alternatives. Your trust is our priority, as it is the foundation of what allows us to offer you practical and comprehensive legal service. Our more than 30 years of joint experience in various branches of law endorse us. Make an appointment or inquire about our fees and working methods:

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Sometimes, clients inquire about the possibility of suppressing a parent’s visitation regime. The answer is yes, it can be done, but the specific circumstances of the case must be assessed, as it is truly an exception based on the best interest of the child.

A practical example is found in a recent ruling, STS 694/2024 – ECLI: ES:TS:2024:694, in which the Supreme Court proceeded to suppress the visitation regime under the best interest of the child.

The ruling emphasizes how this principle should be applied to defend the rights of minors and their free development as individuals. In the Third Legal Ground, it recalls its legal configuration:

The best interest of the child is configured as a basic axiological principle in the interpretation and application of regulations governing parental relationships and protective measures for minors. Its proper scope operates primarily in matrimonial processes, but not exclusively. It is not a static legal concept but a dynamic one that evolves continuously conditioned by prevailing values in society. It is a general and abstract concept to be specified in each case subject to judicial consideration according to specific concurrent factors.”

Furthermore, regarding its meaning, the mentioned Judgment refers to previous ones, stating:

“The lack of maturity and competence of children inherent to the limitations of their age, the absence of resources to cope with unfavorable situations, often place them in a position of special vulnerability, prone to abuse, mistreatment, and violations of their fundamental rights, or even to be instrumentalized to their detriment in interpersonal conflicts among adults, with a special emphasis on those involving their parents.

Therefore, it is necessary to protect minors from exposure to risk situations for their desired future integration into the adult world, without negative repercussions from their experiences. Additionally, it is crucial to recognize that children are rights holders, not just individuals under legal protection, and as such, indisputable beneficiaries of all human rights (STC 99/2019, July 18, FJ 5).

The minor, as an individual in formation, requires special protection, as they have a developing personality that needs preservation. In this sense, Article 2.2, sections d) and e) of Law 1/1996, on the legal protection of minors, establishes manifestations of this interest, such as “promoting the effective integration and development of the minor in society,” “minimizing the risks that any change in material or emotional situation may cause to their personality and future development,” as well as “preparing for the transition to adulthood and independence.”

In essence, someone who cannot, due to their age, defend themselves or safeguard their interests transfers this function to public and private institutions to ensure that those interests are duly respected, always after hearing the minors with sufficient judgment to avoid being excluded from decisions that most directly affect them.

An example of this is the mandatory intervention of the Public Prosecutor in judicial and administrative proceedings to safeguard these interests (Article 749 LEC), or the possibility of courts imposing measures ex officio, as an exception to the principles of party disposition and contribution, essential pillars of the civil process (Articles 158 CC and 752 LEC).”

The Supreme Court thus reminds us that if a court-imposed visitation regime is detrimental to minors, it is possible to proceed with the suppression of the visitation regime under the best interest of the child.

In the specific case, the visitation regime was suppressed based on the following circumstances:

  1.  “Manifest disinterest of the father in maintaining relationships with his daughter for four years, only engaging when judicially demanded. There is also evidence of inappropriate behavior towards the minor, as described when she was a baby. His involvement in her care and attention is nonexistent.
  2. The father’s personality has “low impulse control,” as evidenced during the interview. He raises his voice when told something he does not like. His examination consistently refers to aggressive and highly exaggerated behavior. There is no evidence that he takes the prescribed medication for his lack of impulse control. Furthermore, he hides his psychiatric pathology.
  3. Previous episodes of domestic violence with significant injuries against the plaintiff. This situation has not been overcome; the conflict persists. According to the psychosocial report, his account is full of “insults towards his partner.” The risk of projecting and communicating such negative judgments to the child is real and manifestly contrary to her interests, given her formative personality and the fact that the mother is the emotional core of the child, providing the necessary security for her stability and proper emotional development. The Resolution of October 6, 2021, from the European Parliament on the impact of partner violence and the custody rights of women and children, underscores in its section i) “[t]hat all forms of violence, including witnessed violence against a parent or close person, must be considered both legally and practically a violation of human rights and an act against the best interest of the child.” Furthermore, the Public Prosecutor reports another case of domestic violence against a new partner, for which he was convicted.
  4. The expert report rules out that the father has the minimum skills for the care of the child, making a conventional custody regime without proper control a risk. It determines that the visits should take place in a supervised setting, but it does not analyze the advantages for the child to communicate with her father under the exposed conditions. Neither do the advantages appear in the court’s decision, which merely argues that the expert report recommends such communication regime.
  5. The child, at the time of the court’s decision, was only 8 years old, placing her in a situation of manifest vulnerability. Additionally, due to her young age, she lacks the necessary tools to control a situation like the present one, with evident risks of harmful repercussions on her future personality development. We are not dealing with a simple temporary distancing and a corresponding progressive establishment of parent-child relationships. The court states that the suggested regime in the psychosocial report constitutes a kind of trial-and-error experiment that is not acceptable.

Therefore, we do not see, in this particular process, considering the set of circumstances mentioned, not extrapolatable to other cases, that the overriding interest of the child entails maintaining the predetermined communication regime with her father.

If you need legal advice on family law, child support, custody, divorce, parental authority, or alimony, Roji Abogados can provide the service you need. We have a multidisciplinary team of lawyers who collaborate with other professionals (psychologists, economists, bailiffs, etc.), offering comprehensive legal assistance.

 

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The Contentious-Administrative Chamber, Fourth Section, of the Supreme Court has issued a ruling establishing doctrine on requests for access to public funding for a drug not approved in Spain through an exceptional authorization, intended to treat patients with rare diseases.

It has established that: “the request for access to public funding for a drug through an exceptional authorization under Article 18 of Royal Decree 1015/2009 does not allow the person requesting its processing to be discriminated against by imposing a burden of proof based on evidence that even extends to the individual circumstances of other patients benefiting from the same exceptional authorization in the National Health System.”

The Supreme Court has applied this doctrine in the analyzed case, ruling in favor of the appeal filed by a mother who had repeatedly requested Sant Joan de Deu Hospital in Barcelona to provide her minor son, affected by Duchenne muscular dystrophy, with individualized access to the medication Translarna, whose active ingredient is “Ataluren.”

At that time, the medication had conditional approval from the European Medicines Agency (EMA), was not part of the drugs funded by the National Health System (NHS), and was in the clinical trial phase.

The mother, supported by the specialist who treated her son at the hospital’s recommendation, justified her request with a certification showing that at that time 33 patients in Spain were being treated with this drug. The hospital’s refusal to process the request was based on reports from various national and regional institutions and on the exclusion of the medication from the NHS.

A court in Barcelona ruled in favor of the woman, determining that the hospital had violated the principle of equality by unjustifiably discriminating, as authorization had been granted for patients in the same situation. However, the High Court of Justice of Catalonia (TSJC) argued that the principle of equality prevents discrimination, but does not prohibit differentiated treatment if it is justified, and argued that it had not been proven that the child’s situation was identical to other cases where treatment had been authorized.

Disagreeing with the TSJC, the Supreme Court maintains that the Administration’s refusal to provide the medication was not based on an individual assessment of the minor’s situation, but on general criteria, such as the exclusion of the drug from the NHS and the reports from institutions. In this way, the Supreme Court emphasizes that this action constitutes a violation of the principle of equality, resulting in unjustified discrimination against the minor for not considering their specific case and the specialist’s recommendation. This ruling highlights the need for individual assessment in exceptional cases for access to unauthorized treatments, emphasizing the Administration’s commitment to the principle of equality and against unjustified discrimination.

Furthermore, the Supreme Court reasoned that it: “developed a sufficiently precise and concrete argumentative activity regarding the evidence of the existence of discrimination, which is why it was the Administration that was obliged to prove, not only that its actions were absolutely unrelated to any purpose that violated fundamental rights but also that the violation attributed to it did not objectively represent acts contrary to the prohibition of discrimination (STC 233/2007, of November 5, FJ 4).”

Finally, the resolution establishes that: “the existence of this discriminatory and unjustified treatment is not devoid of reason due to the clinical status of the medication that would be subject to the exceptional authorization, especially when at the time of the request Ataluren was authorized, albeit conditionally, for the treatment of those patients who, like the appellant’s son, suffered from Duchenne muscular dystrophy due to a nonsense mutation in the dystrophin gene (genetic diagnosis) from the age of 5 and who retained the ability to walk.”

Source: C.G.P.J.

Roji Lawyers is a multidisciplinary firm that is at your disposal to address situations requiring legal advice and defense. If you believe you need legal advice on claims against the Public Administration, learn about our working method and fees at:

 

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Does the employer have to give notice in the case of termination of a fixed-term contract?

The answer, unless stipulated in the employment contract or the applicable Collective Bargaining Agreement, should be negative (But this would be applicable if we are evaluating the case of a contract with a period inferior to one year).

However, the recent judgment of the Court of Justice of the European Union (CJEU) of February 20, 2024, in Case C-715/20, marks an important milestone in the protection of the rights of workers with fixed-term contracts within the European Union (EU).

It must be remembered that the case law of the CJEU also applies directly in the courts of the Member States, as some judges often recognize, first they are Community judges and then they are judges of the specific State.

This judicial decision to apply a notice period in cases of termination of fixed-term contracts focuses on addressing and correcting systemic discrimination in the treatment of workers based on the duration of their employment contracts.

The core of the dispute is the practice of not communicating the reasons behind the termination of fixed-term contracts, a practice prohibited in cases of termination of indefinite contracts according to Polish legislation.

The plaintiff, a worker with a fixed-term contract, argued that this unequal treatment violates both EU law and Polish law, specifically in relation to the principle of non-discrimination.

The CJEU, when analyzing this case, reiterated the purpose of the Framework Agreement on fixed-term work, which is to ensure the quality of employment under these contractual terms and promote non-discrimination. The court concluded that by not being informed about the reasons for the termination of his contract, the worker is at a disadvantage, deprived of crucial information that could influence his decision to seek legal redress.

This decision underscores that the temporary nature of a worker’s contract does not justify less favorable treatment compared to permanent workers, especially regarding transparency in the reasons behind the termination of the contract. This unequal treatment is identified as an attack on the fundamental right to effective judicial protection.

However, the CJEU clarifies that the national judicial body must verify whether the worker with a fixed-term contract is actually in a comparable situation to a permanent worker within the same business framework, to apply this reasoning.

The judgment also touches on an important rule regarding the applicability of the Framework Agreement in disputes between individuals, pointing out that, although this agreement cannot be invoked directly in such cases, differential treatment violates the right to effective judicial protection, as guaranteed by the Charter of Fundamental Rights of the EU.

This leads the national court to refrain

from applying any national legislation that violates this fundamental principle, provided that it is not possible to interpret the law in a way that is in line with EU law.

This case not only highlights the importance of equal treatment among workers, regardless of the duration of their contracts, but also reinforces the protection of fundamental rights within the legal framework of the European Union, ensuring that national labor practices align with EU principles and values.

Likewise, it opens the door for workers to demand respect for the guarantees obtained in indefinite contracts in case of other discriminations regarding temporary contracts.

At Roji Abogados, we have a team of lawyers with multidisciplinary training and experience. Our commitment to our clients, as well as the diversity of cases we handle, keeps us in constant training and updating to take advantage of regulatory and/or jurisprudential news, and in some cases even provide creative legal solutions. If you want to know more about our way of thinking and dealing with litigation, you can contact us through the following means:

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Parental authority is the set of rights and duties that parents have over their minor or non-emancipated children, in order to protect their well-being and comprehensive development. Among the responsibilities that parental authority encompasses are custody, education, administration of the child’s assets, legal representation, among others.

In Spain, the deprivation of parental authority from a parent is a measure that can be adopted in exceptional and serious cases, when it is considered that the person is not properly fulfilling their obligations as a father or mother. This measure can be requested by the other parent, the Public Prosecutor’s Office, or initiated by a judge, and must be based on situations such as abuse, neglect, failure to fulfill parental duties, among other reasons that endanger the welfare of the child.

The deprivation of parental authority implies the loss of the rights and responsibilities that parents have over their children, and it can be total or partial, depending on the severity of the situation. This measure is taken with the aim of protecting the child and ensuring their well-being, so each case must be carefully evaluated before making a final decision.

For example, in a recent case, the Supreme Court in the STS 433/2024 – ECLI:ES:TS:2024:433, considered depriving a parent of parental authority over their descendant.

The procedure began with a lawsuit filed by the mother where she requested “the total deprivation of parental authority from Abel, regarding the minor, Agustín, and the exclusive grant of parental authority to the mother of the child, all with a specific condemnation in costs to the defendant.”

In this procedure, the Public Prosecutor’s Office responded to the lawsuit, however, the defendant parent did not even appear, so they were considered to be in default, and the procedure continued.

In the First Instance, the lawsuit was partially upheld, granting exclusive custody to the plaintiff mother. Likewise, the exercise of parental authority was established exclusively for the plaintiff. Although its ownership remained shared.

In the Second Instance, the appealed sentence was confirmed. Faced with this circumstance, the plaintiff mother proceeded to appeal the appeal sentence to the Supreme Court through the corresponding appeal.

The appeal was based primarily on the infringement of articles 154 and 170 of the Civil Code.

Article 154 establishes that: “Unemancipated children are under the parental authority of the parents. Parental authority, as parental responsibility, shall always be exercised in the best interest of the children, according to their personality, and with respect to their rights, physical and mental integrity. This function includes the duties and powers to care for them, have them in their company, feed them, educate them, and provide them with comprehensive training. Represent them and administer their assets. Decide on the habitual residence of the minor, which can only be changed with the consent of both parents or, failing that, by court authorization. If the children are mature enough, they must always be heard before decisions affecting them are made, whether in a contentious or mutual agreement procedure. In any case, it will be ensured that they can be heard under suitable conditions, in terms that are accessible, understandable, and adapted to their age, maturity, and circumstances, seeking the assistance of specialists when necessary. Parents may, in the exercise of their function, request the authority’s assistance.”

On the other hand, Article 170 states: “Any of the parents may be totally or partially deprived of their authority by a court order based on the breach of the duties inherent to it, or dictated in criminal or matrimonial cause. The Courts may, for the benefit and interest of the child, order the recovery of parental authority when the cause that led to the deprivation has ceased.”

Therefore, the Supreme Court, in its legal reasoning, proceeds to revoke the appealed decision, arguing that: “The court does not share the criterion upheld by the lower court judgments, which create a situation of uncertainty and insecurity about the cases in which the mother (or the third parties related to her) should hear from the father to know his opinion on decisions that affect the child, which would not benefit him in any way. Allowing in this open and diffuse way for the father, who has been completely absent from the child’s life since birth (which took place on DATE, when the child is already ten years old), would not be in the child’s best interest. Permitting an absent father, who has shown no concern or interest, to interfere in decisions regarding the child, when he is not aware of his personal, material, and emotional needs, his personality, or any of his circumstances, does not benefit the child. The same lack of appearance of the father in this proceeding, despite the attempts at personal notification, confirms not only his lack of concern, but also the complexity that the solution adopted by the appealed sentence would bring, to the detriment of the child when a decision that requires hearing from consulting the father would be necessary, especially if it is not “of ordinary life” but of “extraordinary or special importance.” The court considers that, in this case, the benefit and interest of the child justifies the total deprivation of parental authority requested. Indeed, it is not clear how protecting the child’s interest can advise maintaining parental authority in favor of someone who has had no relationship with him since birth, has not taken care of his upbringing and maintenance, has not been concerned about his situation, and has not ensured his protection and care at any time. Maintaining parental authority despite acknowledging the complete absence of the father in the child’s life since birth and his abandonment of his responsibilities, even with minimal content that allows interference in the exclusive exercise of parental authority by the mother, does not benefit the child. Deprivation does not imply the termination of the parent-child relationship, and the defendant parent continues to have the legal duty to care for his child and provide for him, a duty of filiation and not parental authority (articles 39 CE and 110 Civil Code). Deprivation does not prevent, as we have said, that at the request of the interested father, parental authority can be recovered if, due to a change in attitude, he is willing to fulfill the duties inherent to parental authority, and this would be beneficial for the child given the circumstances. As a result of the above, we accept the appeal, uphold the lawsuit filed by Benita, and order the total deprivation of Abel’s parental authority regarding the minor Agustín.”

Therefore, the action of the mother is ultimately upheld. This does not prevent the possibility that in the future, if it is more beneficial for the child, parental authority can be reinstated to the parent, even through a new judicial procedure.

At Roji Abogados, we have years of experience in the practice and advice of family law. We understand the complexity of these cases and work to ensure the well-being of families and affected minors. If you need legal advice on this matter, do not hesitate to contact this law firm. Your trust is our priority. You can reach us through the following means:

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2.- 952 211 011 and 607 202 361

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In STS 475/2024 – ECLI: ES: TS: 2024: 475, resolution of the Supreme Court, the debate is about whether all owners must assume proportionally the same fees according to their participation coefficient, even in the case of owners of parking spaces, commercial premises, and storage rooms, and because of the configuration of the Community they would never use the newly installed elevator in the community of owners.

Thus, the procedure began as a result of the challenge of the agreements of the Community of Owners by some owners who in their lawsuit requested: “Declare null or alternatively annulable, the agreements taken in the THIRD points of the Agenda of the Extraordinary General Meetings held on June fourteenth (14/06/2016) and July twelfth, two thousand sixteen (12/07/2016), held by the respondent, Community of Owners of ADDRESS000 núm. NUM000 , ADDRESS001 núm. NUM002 and NUM001 from Valladolid. And, all this with the express condemnation to the respondent to the payment of all procedural costs”.

This is because “Briefly, they alleged defects in the convocation, violation of the constitutive title, lack of the necessary majority, and alteration of the participation coefficients in the contribution of common expenses. They argued that they do not make ordinary use of the elevator and that, according to the statutes, they are excluded from the elevator expenses, despite which they are imposed the obligation to pay by coefficient, different from those provided for in the horizontal division deed”.

The Community of Owners responded to the lawsuit requesting its dismissal, understanding that article 18.2 of the Horizontal Property Law had been breached, also requesting the condemnation of the plaintiffs’ costs.

This provision states that: “Owners who have cast a dissenting vote at the meeting, those absent for any reason, and those who have been improperly deprived of their voting right shall be entitled to challenge these agreements. To challenge the agreements of the meeting, the owner must be up to date on the payment of all due debts to the community or must previously proceed to judicial deposit of the same. This rule shall not apply to the challenge of agreements of the meeting relating to the establishment or alteration of the participation quotas referred to in Article 9 among the owners”.

In the first instance, the lawsuit filed by the owners against the Community was dismissed.

In the second instance, the lawsuit filed by the owners was dismissed, and the previous judgment was confirmed.

The appeal to the Supreme Court was based on the correct application of articles 5 and 18.1 c) of the Horizontal Property Law, understanding, in summary, that the approved and challenged agreements harmed and/or seriously affected the interests of some of the owners, especially the appellants.

However, the Supreme Court ruled that:

1. When a new elevator is installed, owners of commercial premises and parking spaces must also contribute to the expenses involved, and their exclusion due to lack of use would be abusive towards the owners of residential units, as it alters the contribution quotas to common expenses, resulting in a higher cost for the rest of the owners, which would require unanimity approval.

2. The installation of a new elevator service must also be financed by the owners of commercial premises, as they were only exempt from its conservation or maintenance (Art. 10 of the Horizontal Property Law).

3. A statutory provision that establishes the exemption of participation of the owners of commercial premises in the expenses of maintenance, conservation, and ordinary repair of the entrance and elevator does not justify that they should not contribute to the installation expenses since it is not expressly provided for and goes beyond what is established in articles 9, 10, and 5 of the Horizontal Property Law.

4. The mere disagreement of the appellant with the chosen method to calculate the assessment does not make the agreement illegal or seriously detrimental to their interests. On the contrary, the contribution by participation coefficient is the generic modality with which all common expenses are funded, so it can hardly be said to be extremely burdensome per se.

Since it was decided that the contribution would be by coefficients, in practice, all neighbors have seen their participation percentage increased proportionally, so everyone has been affected equally.

Therefore, the dismissal of the lawsuit filed by the owners against the Community is confirmed, and the cassation appeal is dismissed.

At Roji Abogados, we have a multidisciplinary team specialized in these matters, with over 25 years of experience in representing issues related to Community of Owners in Malaga. If you find yourself in a situation similar to the one described in this post, do not hesitate to contact us and request your personalized quote. You can do so by:

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