24.9.2011

Official Journal of the European Union

C 282/15

(Case C-393/11)

2011/C 282/28

Langague of the case: Italian

Referring court

Parties to the main proceedings

Applicant: Autorità per l’Energia Elettrica e il Gas.

Defendants: Antonella Bertazzi, Annalise Colombo, Maria Valeria Contin, Angela Filippina Marasco, Guido Giussani, Lucia Lizzi, Fortuna Peranio.

Questions referred

1.Is Article 75(2) of Legislative Decree No112/08, which completely disregards length of service under fixed-term working contracts with independent administrative authorities in cases where the workers concerned are established exceptionally — in derogation from the principle in Article 36(5) of Legislative Decree No 165/01 — following ‘selection tests’ which are not comparable with public competitions on the basis of ordinary tests (seeking the optimal employment of successful candidates in the posts to be filled) but which are nevertheless capable of establishing, exceptionally, what should be regarded as a new working relationship valid ‘ex nunc’, compatible, in that it is justified on objective grounds, with clause 4, paragraphe 4, of the Annex to Directive 1999/70/CE, (according to which ‘period-of-service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of service qualifications are justified on objective grounds’)?

2.or is it contrary to Directive 1999/70/CE — thereby necessarily implying refusal to apply the above-mentioned national provision — not to take account not only of length of service but also of the career progression achieved at the date of establishment, in its entirety or in respect of the part exceeding either the length of service required for access to those selection tests, or any safeguard measures which the national legislature may be empowered to adopt for the purposes of protecting, within reasonable limits, the positions of successful competition candidates?