Provisional text

12 September 2024 (*1)

( Reference for a preliminary ruling – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Clauses 4 and 5 – Principle of non-discrimination – Equal treatment in employment and occupation – Honorary and ordinary members of the judiciary – Measures intended to penalise improper use of fixed-term contracts – Fixed-term work – Procedure for the stabilisation of duties – Waiver by operation of law of any claim for the period prior to the stabilisation of duties – Compensation for damage resulting from the failure to properly implement EU law )

In Case C‑548/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Giudice di pace di Fondi (Magistrate, Fondi, Italy), made by decision of 18 August 2022, received at the Court on 18 August 2022, in the proceedings

Presidenza dei Consiglio dei Ministri,

Ministero della Giustizia,

Ministero dell’Economia e delle Finanze,

THE COURT (First Chamber),

composed of A. Arabadjiev (Rapporteur), President of the Chamber, T. von Danwitz, P.G. Xuereb, A. Kumin and I. Ziemele, Judges,

Advocate General: J. Kokott,

Registrar: C. Di Bella, Administrator,

having regard to the written procedure and further to the hearing on 1 February 2024,

after considering the observations submitted on behalf of:

–the Italian Government, by G. Palmieri, acting as Agent, and by L. Fiandaca and F. Sclafani, avvocati dello Stato,

–the European Commission, by B.-R. Killmann and D. Recchia, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 29 February 2024,

gives the following

1This request for a preliminary ruling concerns the interpretation of Article 288 TFEU, Articles 17, 31, 34 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Article 7 of 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), Clause 4 of the framework agreement on part-time work, concluded on 6 June 1997 (‘the framework agreement on part-time work’), which is annexed to Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC (OJ 1998 L 14, p. 9), and Clause 4 of the framework agreement on fixed-term work, concluded on 18 March 1999 (‘the framework agreement on fixed-term work’), which is annexed to 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).

2The request has been made in proceedings between, of the one part, honorary deputy prosecutor M.M. and, of the other part, the Presidenza del Consiglio dei Ministri (Presidency of the Council of Ministers, Italy), the Ministero della Giustizia (Ministry of Justice, Italy) and the Ministero dell’Economia e delle Finanze (Ministry of Economy and Finance, Italy) concerning M.M.’s request for payment of sums allegedly owed to her in respect of the performance of her duties as an honorary member of the judiciary.

Legal context

European Union law

The framework agreement on part-time work

3Clause 4 of the framework agreement on part-time work, entitled ‘Principle of non-discrimination’, provides in point 1 thereof:

‘In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless different treatment is justified on objective grounds.’

The framework agreement on fixed-term work

4Clause 2 of the framework agreement on fixed-term work, entitled ‘Scope’, provides in point 1 thereof:

‘This agreement applies to fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State.’

5Clause 4 of the framework agreement on fixed-term work, entitled ‘Principle of non-discrimination’, states in point 1 thereof:

‘In respect of employment conditions, fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds.’

6Clause 5 of the framework agreement on fixed-term work, entitled ‘Measures to prevent abuse’, reads as follows:

‘1. To prevent abuse arising from the use of successive fixed-term employment contracts or relationships, Member States, after consultation with social partners in accordance with national law, collective agreements or practice, and/or the social partners, shall, where there are no equivalent legal measures to prevent abuse, introduce in a manner which takes account of the needs of specific sectors and/or categories of workers, one or more of the following measures:

(a) objective reasons justifying the renewal of such contracts or relationships;

(b) the maximum total duration of successive fixed-term employment contracts or relationships;

(c) the number of renewals of such contracts or relationships.

(a) shall be regarded as “successive”;

(b) shall be deemed to be contracts or relationships of indefinite duration.’

Directive 2003/88

7Article 7 of Directive 2003/88, entitled ‘Annual leave’, provides in paragraph 1 thereof:

‘Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.’

Italian law

8Article 29(1) to (3) and (5) of the decreto legislativo n. 116 – Riforma organica della magistratura onoraria e altre disposizioni sui giudici di pace, nonché disciplina transitoria relativa ai magistrati onorari in servizio, a norma della legge 28 aprile 2016, n. 57 (Legislative Decree No 116 on the organic reform of the honorary judiciary and other provisions relating to magistrates, and transitional provisions relating to serving honorary members of the judiciary, in accordance with Law No 57 of 28 April 2016) of 13 July 2017 (GURI No 177 of 31 July 2017, p. 1; ‘Legislative Decree No 116’), as replaced by Article 1(629) of legge n. 234 – Bilancio di previsione dello Stato per l’anno finanziario 2022 e bilancio pluriennale per il triennio 2022-2024 (Law No 234 on the State Budget for the 2022 financial year and multiannual accounts for the three-year period 2022-2024) of 30 December 2021 (GURI No 310 of 31 December 2021, p. 1) (‘Article 29 of Legislative Decree No 116’) provides:

‘1. Honorary members of the judiciary [that is to say, honorary judges and honorary prosecutors] in service on the date on which this legislative decree enters into force may be confirmed in their posts on request until the age of 70.

3. For the purposes of the confirmation referred to in paragraph 1, the Consiglio superiore della magistratura [(Supreme Council of the Judiciary)] shall, by decision, organise three separate assessment procedures to be carried out annually during the three-year period 2022-2024. Respectively, they shall concern serving honorary members of the judiciary who, on the date when this decree enters into force, have completed:

(a) more than 16 years of service;

(b) between 12 and 16 years of service;

(c) less than 12 years of service.

…

The dispute in the main proceedings and the question referred for a preliminary ruling

10Since 4 April 2001, M.M. has participated, inter alia, in 10 criminal hearings, which are the subject matter of the dispute in the main proceedings, as a representative of the public prosecutor’s office, in respect of which she has received payment in the amount of EUR 98 per hearing, from which tax deductions have been made. It is apparent from the order for reference that no social security or pension contributions were paid on behalf of M.M., depriving her of any social protection. By contrast, the gross daily remuneration of an ordinary member of the judiciary, performing his or her duties of indefinite duration, is EUR 248 and the State pays, for each ordinary member of the judiciary, contributions to the competent institutions in order to ensure their social protection.

11Submitting that she had been the victim of an unlawful difference in treatment as regards remuneration for her duties, M.M. brought an action before the Tribunale di Roma (District Court, Rome, Italy), seeking compensation for the damage which she claimed to have suffered as a result of the failure to transpose into Italian law Directives 1999/70 and 2003/88 and Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1). By order of 13 January 2021, that court ordered the Presidenza del Consiglio dei Ministri (Presidency of the Council of Ministers) to pay compensation for the pecuniary and non-material damage caused to M.M. by reason of the failure to transpose those directives, although, as at the date on which the order for reference was made, no compensation had yet been paid to M.M. in respect of the aforementioned award.

12Subsequently, M.M. brought an action before the Giudice di pace di Fondi (Magistrate, Fondi), the referring court, seeking to obtain payment, as regards the aforementioned hearings, of an additional amount of EUR 150 per hearing, that is to say, a total of EUR 1 500, by way of damages, on account of the persistent failure to transpose those directives. In support of her action, she claims that the difference in treatment between her economic treatment and that of ordinary members of the judiciary constitutes discrimination prohibited by Directives 1999/70, 97/81 and 2003/88.

Under that article, an honorary member of the judiciary in service may apply to participate in an assessment and stabilisation procedure enabling him or her, if successful in the assessment procedure, to remain in service until the age of 70. It is also possible for him or her not to submit an application to participate in that procedure and, consequently, to cease his or her duties. In that case, he or she may claim, up to a total limit of EUR 50 000 before tax, a payment of EUR 1 500 before tax per year of service during which he or she participated in hearings for fewer than 80 days or a payment of EUR 2 500 before tax for each year of service during which he or she participated in hearings for at least 80 days. That payment is also granted to honorary members of the judiciary who, while having applied to participate in that procedure, have not been successful.

15However, for an honorary member of the judiciary such as M.M., the application to take part in the stabilisation procedure or the receipt of that payment would entail the waiver, by operation of law, of any other claim of any kind arising from the performance of the duties as an honorary member of the judiciary previously carried out. The only possibility of not waiving that claim is to leave the service without receiving any payment.

16Consequently, M.M. submits, before the referring court, that the Italian legislation does not allow her to claim the sums to which she would be entitled by reason of the failure to transpose Directives 1999/70, 2003/88 and 92/85, with the result that, first, that national legislation is contrary to EU law and, second, it is for that court to disapply that legislation.

17The referring court states that, in its judgments of 16 July 2020, <i>Governo della Repubblica italiana (Status of Italian magistrates)</i> (C‑658/18, EU:C:2020:572) and of 7 April 2022, <i>Ministero della Giustizia and Others (Status of Italian magistrates)</i> (C‑236/20, EU:C:2022:263), the Court of Justice held that the Member States must ensure the transposition of the directives referred to in paragraph 16 of the present judgment that concern magistrates, whose duties are treated in the same way by Italian law as those of honorary deputy public prosecutors.

18In the present case, if Article 29 of Legislative Decree No 116 were applied to M.M., she would be required to waive any claim of any kind arising from the performance of her duties as an honorary member of the judiciary and would thus be deprived of the protection of her rights guaranteed by those directives.

19Furthermore, the referring court states, in essence, that, in order to combat the lack of employment security for honorary members of the judiciary, Italian legislation has provided, by means of that national provision, for the uncertain permanence of their duties, by means of their participation in assessment and permanence procedures, or the payment of derisory compensation in view of the damage suffered in connection with the cessation of their duties.

20In those circumstances the Giudice di pace di Fondi (Magistrate, Fondi) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must Article 288 [TFEU], Articles 17, 31, 34 and 47 of the [Charter] and Article 7 of [Directive 2003/88], Clause 4 of the [framework agreement on part-time work] and Clause 4 of the [framework agreement on fixed-term work] be interpreted as meaning that those provisions preclude a national provision, such as that laid down [in Article 29 of Legislative Decree No 116] which provides for the automatic waiver by law of all claims concerning the implementation of [Directives 1999/70, 97/81 and 2003/88], with the loss of all other remuneration, employment and social welfare benefits guaranteed by European law:

(a)in the case where an honorary judge, as a fixed-term, part-time European worker comparable to a professional judge classified as a permanent, full-time European worker, merely submits an application to participate in stabilisation procedures that only formally implement Clause 5(1) of the [framework agreement on fixed-term work],

(b)or, if these procedures are not successfully concluded or no application is submitted, [in the case of] the receipt of a payment in an amount that is manifestly inadequate and disproportionate in relation to the damage suffered as a result of the failure to transpose those directives?’

Procedure before the Court

21The referring court requested that the present reference for a preliminary ruling be dealt with under the expedited procedure provided for in Article 105 of the Rules of Procedure of the Court of Justice. In support of its request, that court notes that, under Article 29 of Legislative Decree No 116, the applicant in the main proceedings is required to choose between, on the one hand, the waiver of all claims that she may assert against the Italian State and, on the other hand, the immediate cessation of her judicial functions, without compensation for the damage suffered as a result of the Italian Republic’s failure to transpose Directives 97/81, 1999/70 and 2003/88. That choice would seriously compromise the independence of the judiciary, which justifies this case being examined as soon as possible.

22In that regard, it must be borne in mind that, under Article 105(1) of the Rules of Procedure, at the request of the referring court or tribunal or, exceptionally, of his or her own motion, the President of the Court may, where the nature of the case requires that it be dealt with within a short time, after hearing the Judge-Rapporteur and the Advocate General, decide that a reference for a preliminary ruling is to be determined pursuant to an expedited procedure derogating from the provisions of those rules.

23In the present case, on 30 September 2022, after hearing the Judge-Rapporteur and the Advocate General, the President of the Court decided to refuse the request referred to in paragraph 21 above.

24Indeed, the order for reference does not enable the Court to understand either the consequences that M.M. would suffer in the absence of an expedited procedure or how that absence could actually compromise the independence of the judiciary.

25In any event, it must be borne in mind that, in the absence of evidence to indicate that such consequences could be avoided if the case were to be dealt with under an expedited procedure, the legal uncertainty affecting the applicant in the main proceedings is not, in itself, capable of justifying the application of that expedited procedure (see, to that effect, order of the President of the Court of 27 June 2016, <i>S.</i>, C‑283/16, EU:C:2016:482, paragraph 11).

Admissibility of the request for a preliminary ruling

26According to the Court’s settled case-law, the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them (judgment of 22 February 2024, <i>Ente Cambiano società cooperativa per azioni</i>, C‑660/22, EU:C:2024:152, paragraph 20 and the case-law cited).

27Since the order for reference serves as the basis for that procedure, the national court is required, in the order for reference itself, to set out the factual and legislative context of the dispute in the main proceedings and to provide the necessary explanation of the reasons for the choice of the provisions of EU law which it seeks to have interpreted and of the link it establishes between those provisions and the national legislation applicable to the proceedings pending before it (judgment of 22 February 2024, <i>Ente Cambiano società cooperativa per azioni</i>, C‑660/22, EU:C:2024:152, paragraph 21 and the case-law cited).

28In that regard, it must also be noted that the information provided in orders for reference must enable, first, the Court to provide useful answers to the questions referred by the national court and, second, the governments of the Member States and other interested parties to exercise the right conferred on them by Article 23 of the Statute of the Court of Justice of the European Union to submit observations. It is the Court’s duty to ensure that that right is safeguarded, given that, under that provision, only the orders for reference are notified to the interested parties (judgment of 22 February 2024, <i>Ente Cambiano società cooperativa per azioni</i>, C‑660/22, EU:C:2024:152, paragraph 22 and the case-law cited).

29Those cumulative requirements concerning the content of an order for reference are expressly set out in Article 94 of the Rules of Procedure, of which the referring court is supposed, in the context of the cooperation instituted by Article 267 TFEU, to be aware and which it is bound to observe scrupulously. They are also referred to in paragraphs 13, 15 and 16 of the Recommendations of the Court of Justice of the European Union to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ 2019 C 380, p. 1) (judgment of 22 February 2024, <i>Ente Cambiano società cooperativa per azioni</i>, C‑660/22, EU:C:2024:152, paragraph 23 and the case-law cited).

30By its question, the referring court asks, in essence, whether Article 288 TFEU, Articles 17, 31, 34 and 47 of the Charter, Article 7 of Directive 2003/88, Clause 4 of the framework agreement on part-time work and Clause 4 of the framework agreement on fixed-term work must be interpreted as precluding national legislation which provides that honorary members of the judiciary, in order to be able to continue to perform their duties, are required to participate in an assessment procedure which, first, if the result is positive, enables them to convert their fixed-term employment relationship into an employment relationship of indefinite duration, until the age of 70, and, second, if the result is negative, enables those members of the judiciary to receive a payment, where both the success and the failure to pass the assessment with the acceptance of the payment entails the waiver, by operation of law, of any claim which they might make, on the basis of those provisions, in respect of the previously performed duties as an honorary member of the judiciary.

31In that regard, it must be found, first, that the referring court does not request an autonomous interpretation of Article 288 TFEU or of Articles 17, 31, 34 and 47 of the Charter, since those articles are referred to only in support of the request for interpretation of Directive 2003/88, of the framework agreement on part-time work and of the framework agreement on fixed-term work (see, by analogy, judgment of 7 April 2022, <i>Ministero della Giustizia and Others (Status of Italian magistrates)</i>, C‑236/20, EU:C:2022:263, paragraph 26).

32Second, as regards Article 7 of Directive 2003/88, it must be noted that that article is not relevant to the outcome of the case in the main proceedings since, in the context of that dispute, M.M.’s argument was not for the right to paid annual leave, enshrined in that provision, to be upheld, but, in essence, for payment of remuneration equal to that received by an ordinary member of the judiciary.

33Third, as regards Clause 4 of the framework agreement on part-time work, it must be noted that there is nothing in the order for reference to establish that M.M. works part-time within the meaning of that framework agreement.

34Fourth, as regards Clause 4 of the framework agreement on fixed-term work, it must be noted that, by its question, the referring court asks, in essence, whether, in the light of that article, the mechanism provided for in Article 29 of Legislative Decree No 116 is lawful, in so far as that national provision, while allowing the fixed-term employment relationship of an honorary member of the judiciary to be converted into an employment relationship of indefinite duration, would prevent that member of the judiciary from obtaining the same remuneration as that received by ordinary members of the judiciary performing comparable duties, since that conversion would entail the waiver, by operation of law, of any claim arising from the cessation of the previously performed duties as an honorary member of the judiciary.

35In order to answer that question, it is necessary to establish at the outset, whether that clause of the framework agreement on fixed-term work requires the same remuneration to be granted, in respect of the duties performed, to honorary and ordinary members of the judiciary. In that regard, in particular, it must be determined first, whether an honorary member of the judiciary in M.M.’ s position can be classified as a fixed-term ‘worker’ within the meaning of Clause 2 of the framework agreement on fixed-term work, second, whether the alleged difference in treatment relates to an ‘employment condition’ within the meaning of Clause 4 of that framework agreement, third, whether that honorary member of the judiciary is in a comparable situation to that of an ordinary member of the judiciary and fourth, whether and, if so, to what extent, that difference in treatment can be justified on the basis of an ‘objective ground’ within the meaning of Clause 4 of that framework agreement (see, to that effect, judgment of 27 June 2024, <i>Peigli</i>, C‑41/23, EU:C:2024:554, paragraphs 39 to 50).

36However, it must be noted that, even if the first three conditions referred to in the preceding paragraph of the present judgment are met, the Court does not have the information to enable it to assess whether there is an ‘objective ground’ within the meaning of Clause 4.1 of the framework agreement on fixed-term work. In that context, the Court does not have the information to enable it to clarify whether any potential differences concerning, in particular, the type and value of the litigation that those categories of members of the judiciary are called upon to deal with, or the arrangements for recruiting them, would justify the lawfulness of a difference in treatment such as that at issue. Last, the information available to the Court does not make it possible to assess the differences in remuneration between honorary and ordinary members of the judiciary.

37Furthermore, it is apparent from the order for reference that, while M.M. claims the same ‘daily remuneration’ as that received by an ordinary member of the judiciary, she alleges a difference in treatment by referring to the remuneration which she would receive not for a working day but for participating in hearings not exceeding five hours. In those circumstances, the Court does not have information enabling it to ascertain whether the claims of the applicant in the main proceedings relate to the same type of services as those provided by ordinary members of the judiciary.

38Moreover, it is apparent, in essence, from points 34 and 36 of the Opinion of the Advocate General that it is not clear from the request for a preliminary ruling whether, or to what extent, the remuneration received by the applicant in the main proceedings – which is lower than that of ordinary members of the judiciary – should be regarded as unjustified, less favourable treatment, within the meaning of Clause 4.1 of the framework agreement on fixed-term work.

39In the light of the foregoing considerations, it must be held that the request for a preliminary ruling does not satisfy the requirements laid down in Article 94 of the Rules of Procedure of the Court of Justice and must, therefore, be declared inadmissible.

40

It should, however, be borne in mind that the referring court retains the right to submit a new request for a preliminary ruling by providing the Court with all the information enabling it to give a ruling (judgment of 22 February 2024, <i>Ente Cambiano società cooperativa per azioni</i>, C‑660/22, EU:C:2024:152, paragraph 35).

Costs

41Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (First Chamber) hereby rules:

The request for a preliminary ruling from the Giudice di pace di Fondi (Magistrate, Fondi, Italy), made by decision of 18 August 2022, is inadmissible.

[Signatures]

*

Language of the case: Italian.