# C_2011252EN.01002003.xml

| 27.8.2011 | EN | Official Journal of the European Union | C 252/20 |
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27.8.2011

EN

Official Journal of the European Union

C 252/20

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Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 17 June 2011 — Rosanna Valenza v Autorità Garante della Concorrenza e del Mercato

(Case C-302/11)

2011/C 252/39

Language of the case: Italian

Referring court

Referring court

Consiglio di Stato

Parties to the main proceedings

Parties to the main proceedings

Applicant: Rosanna Valenza

Applicant:

Defendant: Autorità Garante della Concorrenza e del Mercato

Defendant:

Question referred

Question referred

| (a) | Does Clause 4(4) of the Annex to Directive 1999/70/EC, (1) under which ‘[t]he 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’, read in conjunction with Clause 5 thereof, as interpreted by the Court of Justice to the effect that the Italian rules which prohibit, in the context of the public service, the conversion of a fixed-term contract into a contract of unlimited duration are lawful, preclude the national rules on employment stabilisation for workers in precarious employment (Article 1(519) of Law No 296/2006), under which it is possible, in derogation from the rule requiring a public selection procedure, to recruit directly, under contracts of unlimited duration, workers who have already been recruited on fixed-term contracts but with the length of service accrued under those fixed-term contracts being set at nought; or does the loss of length of service, as provided for by the national legislature, fall within the ambit of the derogation relating to ‘objective grounds’, given the need to prevent workers in precarious employment from being admitted to the permanent staff to the detriment of workers already on the permanent staff, which would be the position if it were possible for workers in precarious employment to have the length of service accrued taken into account? |
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(a)

Does Clause 4(4) of the Annex to Directive 1999/70/EC, (1) under which ‘[t]he 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’, read in conjunction with Clause 5 thereof, as interpreted by the Court of Justice to the effect that the Italian rules which prohibit, in the context of the public service, the conversion of a fixed-term contract into a contract of unlimited duration are lawful, preclude the national rules on employment stabilisation for workers in precarious employment (Article 1(519) of Law No 296/2006), under which it is possible, in derogation from the rule requiring a public selection procedure, to recruit directly, under contracts of unlimited duration, workers who have already been recruited on fixed-term contracts but with the length of service accrued under those fixed-term contracts being set at nought; or does the loss of length of service, as provided for by the national legislature, fall within the ambit of the derogation relating to ‘objective grounds’, given the need to prevent workers in precarious employment from being admitted to the permanent staff to the detriment of workers already on the permanent staff, which would be the position if it were possible for workers in precarious employment to have the length of service accrued taken into account?

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| (b) | Does Clause 4(4) of the Annex to Directive 1999/70/EC, under which ‘[t]he 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’, read in conjunction with Clause 5 thereof, as interpreted by the Court of Justice to the effect that the Italian rules which prohibit, in the context of the public service, the conversion of a fixed-term contract into a contract of unlimited duration are lawful, preclude the national rules under which, without prejudice to the accrual of length of service for the period of the fixed-term contract, the fixed-term contract is to be terminated and a new contract of unlimited duration established, which is different from the previous contract and under which the length of service accrued is not to be maintained (Article 1(519) of Law No 296/2006)? |
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(b)

Does Clause 4(4) of the Annex to Directive 1999/70/EC, under which ‘[t]he 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’, read in conjunction with Clause 5 thereof, as interpreted by the Court of Justice to the effect that the Italian rules which prohibit, in the context of the public service, the conversion of a fixed-term contract into a contract of unlimited duration are lawful, preclude the national rules under which, without prejudice to the accrual of length of service for the period of the fixed-term contract, the fixed-term contract is to be terminated and a new contract of unlimited duration established, which is different from the previous contract and under which the length of service accrued is not to be maintained (Article 1(519) of Law No 296/2006)?

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(1)  OJ L 175, p. 43.

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