# C_2010134EN.01002101.xml

| 22.5.2010 | EN | Official Journal of the European Union | C 134/21 |
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22.5.2010

EN

Official Journal of the European Union

C 134/21

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Reference for a preliminary ruling from the Tribunale Ordinario di Venezia (Italy) lodged on 26 February 2010 — Ivana Scattolon v Ministero dell’Università e della Ricerca

(Case C-108/10)

2010/C 134/31

Language of the case: Italian

Referring court

Referring court

Tribunale Ordinario di Venezia

Parties to the main proceedings

Parties to the main proceedings

Applicant: Ivana Scattolon

Applicant:

Defendant: Ministero dell’Università e della Ricerca

Defendant:

Questions referred

Questions referred

| 1. | Must Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses (1) and/or Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses, (2) or the various rules of Community law considered relevant be interpreted as meaning that the latter are applicable to a situation in which staff providing auxiliary cleaning and maintenance services in State educational establishments are transferred from local authorities (municipalities and provinces) to the employment of the State, where the transfer has led to the assumption of obligations not only in respect of the activities in question and the legal relationships with all the (cleaning) staff concerned, but also in respect of the contracts entered into with private companies for the provision of those services? |
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1.

Must Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses (1) and/or Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses, (2) or the various rules of Community law considered relevant be interpreted as meaning that the latter are applicable to a situation in which staff providing auxiliary cleaning and maintenance services in State educational establishments are transferred from local authorities (municipalities and provinces) to the employment of the State, where the transfer has led to the assumption of obligations not only in respect of the activities in question and the legal relationships with all the (cleaning) staff concerned, but also in respect of the contracts entered into with private companies for the provision of those services?

1

2

| 2. | Must the continuation of the employment relationship, pursuant to the first subparagraph of Article 3(1) of Directive 77/187 (incorporated, together with Council Directive 98/50/EC amending Directive 77/187, (3) in Directive 2001/23/EC), be interpreted as meaning that the transferee’s pecuniary payments linked to length of service must take into account all the years worked by the staff transferred, including those in the employment of the transferor? |
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2.

Must the continuation of the employment relationship, pursuant to the first subparagraph of Article 3(1) of Directive 77/187 (incorporated, together with Council Directive 98/50/EC amending Directive 77/187, (3) in Directive 2001/23/EC), be interpreted as meaning that the transferee’s pecuniary payments linked to length of service must take into account all the years worked by the staff transferred, including those in the employment of the transferor?

3

| 3. | Must Article 3 of Directive 77/187 and/or Council Directives 98/50/EC and 2001/23/EC be interpreted as meaning that the employee’s rights transferred to the transferee also include the advantages acquired by that employee while employed by the transferor, such as those relating to length of service, if rights of a financial nature are attached thereto under the collective agreement applicable to the transferee? |
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3.

Must Article 3 of Directive 77/187 and/or Council Directives 98/50/EC and 2001/23/EC be interpreted as meaning that the employee’s rights transferred to the transferee also include the advantages acquired by that employee while employed by the transferor, such as those relating to length of service, if rights of a financial nature are attached thereto under the collective agreement applicable to the transferee?

| 4. | Must the general Community-law principles of legal certainty, the protection of legitimate expectations, procedural equity, effective judicial protection, and the right to an independent tribunal and, more generally, to a fair hearing, guaranteed by Article 6(2) of the Treaty on European Union (as amended by Article 1(8) of the Treaty of Lisbon and to which Article 46 of the Treaty on European Union refers) — in conjunction with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and with Articles 46, 47 and 52(3) of the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000, as implemented by the Treaty of Lisbon — be interpreted as precluding the adoption by the Italian State, after a significant period of time (5 years), of a specific interpretative provision which is at variance with the wording to be interpreted and in conflict with the consistent and settled interpretation of the institution responsible for ensuring uniform interpretation of the law [the Corte di cassazione], a provision which, moreover, is relevant for the purpose of resolving disputes to which the Italian State is a party? |
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4.

Must the general Community-law principles of legal certainty, the protection of legitimate expectations, procedural equity, effective judicial protection, and the right to an independent tribunal and, more generally, to a fair hearing, guaranteed by Article 6(2) of the Treaty on European Union (as amended by Article 1(8) of the Treaty of Lisbon and to which Article 46 of the Treaty on European Union refers) — in conjunction with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and with Articles 46, 47 and 52(3) of the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000, as implemented by the Treaty of Lisbon — be interpreted as precluding the adoption by the Italian State, after a significant period of time (5 years), of a specific interpretative provision which is at variance with the wording to be interpreted and in conflict with the consistent and settled interpretation of the institution responsible for ensuring uniform interpretation of the law [the Corte di cassazione], a provision which, moreover, is relevant for the purpose of resolving disputes to which the Italian State is a party?

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(1)  OJ 1977 L 61, p. 26.

1

(2)  OJ 2001 L 82, p. 16.

2

(3)  OJ 1998 L 201, p. 88.

3

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