# C_2012295EN.01002302.xml

| 29.9.2012 | EN | Official Journal of the European Union | C 295/23 |
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29.9.2012

EN

Official Journal of the European Union

C 295/23

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Reference for a preliminary ruling from the Tribunale di Napoli (Italy) lodged on 31 July 2012 — Carratù v Poste Italiane SpA

(Case C-361/12)

2012/C 295/42

Language of the case: Italian

Referring court

Referring court

Tribunale di Napoli

Parties to the main proceedings

Parties to the main proceedings

Applicant: Carmela Carratù

Applicant:

Defendant: Poste Italiane SpA

Defendant:

Questions referred

Questions referred

| 1. | Is a provision of national law which, in giving effect to Directive 1999/70/EC, (1) provides for economic consequences in cases of unlawful suspension of a contract of employment, with a null and void time-limit clause, that are different from and considerably less favourable than those in cases of unlawful suspension of a contract governed by the ordinary civil law with a null and void time-limit clause, contrary to the principle of equivalence? |
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1.

Is a provision of national law which, in giving effect to Directive 1999/70/EC, (1) provides for economic consequences in cases of unlawful suspension of a contract of employment, with a null and void time-limit clause, that are different from and considerably less favourable than those in cases of unlawful suspension of a contract governed by the ordinary civil law with a null and void time-limit clause, contrary to the principle of equivalence?

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| 2. | Is it compatible with the law of the European Union that, in its implementation, the effectiveness of a sanction should benefit an employer acting wrongfully, to the detriment of the employee so prejudiced, in such a way that the temporal, and natural, duration of proceedings directly damages the employee to the benefit of the employer and that the effectiveness of reinstatement should be reduced proportionately as proceedings continue, so far as to be almost nullified? |
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2.

Is it compatible with the law of the European Union that, in its implementation, the effectiveness of a sanction should benefit an employer acting wrongfully, to the detriment of the employee so prejudiced, in such a way that the temporal, and natural, duration of proceedings directly damages the employee to the benefit of the employer and that the effectiveness of reinstatement should be reduced proportionately as proceedings continue, so far as to be almost nullified?

| 3. | In the course of implementing European law as provided for by Article 51 of the Charter of Nice, is it compatible with Article 47 of the Charter and Article 6 of the ECHR for the temporal, and natural, duration of proceedings to damage directly the employee to the benefit of the employer and for the effectiveness of reinstatement to be reduced proportionately as the proceedings continue, so far as to be almost nullified? |
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3.

In the course of implementing European law as provided for by Article 51 of the Charter of Nice, is it compatible with Article 47 of the Charter and Article 6 of the ECHR for the temporal, and natural, duration of proceedings to damage directly the employee to the benefit of the employer and for the effectiveness of reinstatement to be reduced proportionately as the proceedings continue, so far as to be almost nullified?

| 4. | Having regard to the explanations contained in Article 3(1)(c) of Directive 2000/78/EC (2) and in Article 14(1)(c) of Directive 2006/54/EC, (3) does the notion of employment conditions contained in clause 4 of Directive 1999/70/EC also include the consequences of an unlawful interruption of an employment relationship? |
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4.

Having regard to the explanations contained in Article 3(1)(c) of Directive 2000/78/EC (2) and in Article 14(1)(c) of Directive 2006/54/EC, (3) does the notion of employment conditions contained in clause 4 of Directive 1999/70/EC also include the consequences of an unlawful interruption of an employment relationship?

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| 5. | If the answer to the preceding question is in the affirmative, is the difference between the consequences normally provided for in national law for the unlawful interruption of fixed-term employment relationships and those of indefinite duration justifiable under clause 4? |
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5.

If the answer to the preceding question is in the affirmative, is the difference between the consequences normally provided for in national law for the unlawful interruption of fixed-term employment relationships and those of indefinite duration justifiable under clause 4?

| 6. | Must the general Community law principles of legal certainty, the protection of legitimate expectations, equality of arms in proceedings, 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 (9 years), of a provision such as Article 32(7) of Law No 183/10 which distorts the consequences of proceedings under way by directly prejudicing the employee to the benefit of the employer and which causes the effectiveness of reinstatement to be reduced proportionately as proceedings continue, so far as to be almost nullified? |
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6.

Must the general Community law principles of legal certainty, the protection of legitimate expectations, equality of arms in proceedings, 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 (9 years), of a provision such as Article 32(7) of Law No 183/10 which distorts the consequences of proceedings under way by directly prejudicing the employee to the benefit of the employer and which causes the effectiveness of reinstatement to be reduced proportionately as proceedings continue, so far as to be almost nullified?

| 7. | If the Court of Justice should not recognise the principles set out above as having the value of fundamental principles of European Union law for the purposes of their horizontal and general application and that, therefore, a provision such as Article 32(5) to (7) of Law No 183/10 is incompatible only with the obligations laid down in Directive 1999/70/EC and the Nice Charter, must a company such as the defendant be regarded as a State body for the purposes of the direct, vertical, ascending application of European law, and in particular of clause 4 of Directive 1999/70/EC and the Charter of Nice? |
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7.

If the Court of Justice should not recognise the principles set out above as having the value of fundamental principles of European Union law for the purposes of their horizontal and general application and that, therefore, a provision such as Article 32(5) to (7) of Law No 183/10 is incompatible only with the obligations laid down in Directive 1999/70/EC and the Nice Charter, must a company such as the defendant be regarded as a State body for the purposes of the direct, vertical, ascending application of European law, and in particular of clause 4 of Directive 1999/70/EC and the Charter of Nice?

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(1)  OJ L 175, p. 43.

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(2)  OJ L 303, p. 16.

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(3)  OJ L 204, p. 23.

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