16.10.2017

EN

Official Journal of the European Union

C 347/15

(Case C-472/17)

(2017/C 347/19)

Language of the case: Italian

Referring court

Parties to the main proceedings

Applicant: Gabriele Di Girolamo

Defendant: Ministero della Giustizia

Questions referred

(1)Is the work carried out by the applicant Giudice di Pace (magistrate) covered by the term ‘fixed-term worker’ for the purpose of Articles 1(3) and 7 of Directive 2003/88, in conjunction with Clause 2 of the framework agreement on fixed-term work implemented by Directive 1999/70 and Article 31(2) of the Charter of Fundamental Rights of the European Union?

(2)If Question 1 is answered in the affirmative, may an [ordinary] or ‘togato’ judge [a career judge engaged on a permanent basis and salaried] be regarded as a permanent worker indistinguishable from a ‘Giudice di Pace’ fixed-term worker for the purposes of the application of Clause 4 of the framework agreement on fixed-term work implemented by Directive 1999/70?

(3)If Question 2 is answered in the affirmative, do the differences between the procedure for the permanent recruitment of ordinary judges and the selective procedures laid down by law for the fixed-term recruitment of giudici di pace constitute objective grounds, within the meaning of Clause 4(1) and/or (4) of the framework agreement on fixed-term work implemented by Directive 1999/70, justifying a refusal to apply: (1) — as in the recent case-law of the Combined Chambers of the Corte di cassazione (Court of Cassation) in judgement No 13721/2017 and of the Consiglio di Stato (Council of State) in Opinion No 464/2017 of 8 April 2017 — to Giudici di Pace, such as the applicant fixed-term worker, the same employment conditions as those applied to comparable permanent ordinary judges; and (2) measures to prevent and impose penalties in respect of abusive use of fixed-term contracts, as referred to in Clause 5 of the framework agreement implemented by Directive 1999/70 and the domestic implementing provision in Article 5(4bis) of Legislative Decree No 368/2001, in the absence of any fundamental principle under domestic law or any constitutional rule justifying either discrimination as regards employment conditions or an absolute prohibition on engaging Guidici di Pace on a permanent basis, bearing in mind, inter alia, the previous domestic provision (Article 1 of Law No 217/1974), which provided that the employment conditions of giudici onorari were indistinguishable from those of ordinary judges and that there was no longer to be recourse to successive fixed-term employment contracts for such judges?

(4)In any event, in a situation such as that in the main proceedings, is it contrary to Article 47(2) of the Charter of Fundamental Rights of the European Union and to the concept under EU law of an independent and impartial tribunal for a Giudice di Pace who has an interest in the case before him being resolved in favour of the applicant, who, as his sole form of employment, performs exactly the same judicial functions, to stand in the place of the tribunal established by law as having jurisdiction because of the refusal by the highest domestic judicial body — the Combined Chambers of the Court of Cassation — to grant effective protection for the rights claimed, thus obliging the tribunal established as competent by law to decline, when requested, jurisdiction for the purpose of recognising the right claimed, notwithstanding the fact that the right in question — like the right to paid leave at issue in the main proceedings — is enshrined in primary and secondary EU law in a situation in which ‘Community’ law is directly and vertically applicable to the Member State in question? In the event that the Court finds that there is infringement of Article 47(2) of the Charter, it is requested to indicate domestic remedies to avoid a situation in which infringement of a provision of primary EU law coincides with an absolute refusal under domestic law to protect fundamental rights ensured by EU law in the particular circumstances of the case.

*

Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9).

Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43).