# C_2008236EN.01000901.xml

| 13.9.2008 | EN | Official Journal of the European Union | C 236/9 |
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13.9.2008

EN

Official Journal of the European Union

C 236/9

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Reference for a preliminary ruling from the Tribunale ordinario di Milano (Italy) lodged on 30 June 2008 — Crocefissa Savia and Others v Ministero dell'Istruzione, dell'Università e della Ricerca and Others

(Case C-287/08)

(2008/C 236/13)

Language of the case: Italian

Referring court

Tribunale ordinario di Milano (Italy)

Parties to the main proceedings

Applicants: Crocefissa Savia, Monica Maria Porcu, Ignazia Randazzo, Daniela Genovese and Mariangela Campanella

Applicants:

Defendants: Ministero dell'Istruzione, dell'Università e della Ricerca, Direzione Didattica II Circolo — Limbiate, Ufficio Scolastico Regionale per la Lombardia, Direzione Didattica III Circolo — Rozzano, Direzione Didattica IV Circolo — Rho, Istituto Comprensivo — Castano Primo, Istituto Comprensivo A. Manzoni — Rescaldina

Defendants:

Questions referred

| 1. | Is it permissible for the legislature of a Member State of the European Union to adopt a rule which purports to provide an authentic interpretation but which in reality introduces substantive innovation and, in particular, attributes to the legislation purportedly interpreted effects other than those previously attributed to it in the majority of judicial decisions concerning the substance and by the consolidated case-law of the supreme courts? |
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1.

Is it permissible for the legislature of a Member State of the European Union to adopt a rule which purports to provide an authentic interpretation but which in reality introduces substantive innovation and, in particular, attributes to the legislation purportedly interpreted effects other than those previously attributed to it in the majority of judicial decisions concerning the substance and by the consolidated case-law of the supreme courts?

| 2. | Can the answer to Question 1 be affected by the possibility that the rule referred to may be classed as genuinely interpretative — rather than as introducing innovation with retroactive effect — in that it reflects the way in which the original legislation was construed in a minority series of judicial decisions concerning the substance even though that has repeatedly been contradicted by the supreme courts? |
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2.

Can the answer to Question 1 be affected by the possibility that the rule referred to may be classed as genuinely interpretative — rather than as introducing innovation with retroactive effect — in that it reflects the way in which the original legislation was construed in a minority series of judicial decisions concerning the substance even though that has repeatedly been contradicted by the supreme courts?

| 3. | If the answer is affirmative, what — for the purposes of appraising the compatibility of such a rule with Community law and, in particular, with the principles governing the ‘fairness’ of judicial proceedings — are the implications in either case of the fact that the Member State itself is a party to the proceedings and application of the rule de facto in force requires the court seised to dismiss the forms of order sought against that State? |
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3.

If the answer is affirmative, what — for the purposes of appraising the compatibility of such a rule with Community law and, in particular, with the principles governing the ‘fairness’ of judicial proceedings — are the implications in either case of the fact that the Member State itself is a party to the proceedings and application of the rule de facto in force requires the court seised to dismiss the forms of order sought against that State?

de facto

| 4. | What guidance can be given as regards the ‘overriding reasons of public interest’ capable of justifying — as the case may be, even in derogation from the answer which should in principle be given to Questions 1, 2 and 3 — recognition of the retroactive effects of a statutory provision concerning civil law matters as well as private law relationships, albeit established with a body governed by public law? |
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4.

What guidance can be given as regards the ‘overriding reasons of public interest’ capable of justifying — as the case may be, even in derogation from the answer which should in principle be given to Questions 1, 2 and 3 — recognition of the retroactive effects of a statutory provision concerning civil law matters as well as private law relationships, albeit established with a body governed by public law?

overriding reasons of public interest

| 5. | Could those reasons include organisational considerations analogous to those referred to by the Italian Court of Cassation in Judgments Nos 618/2008, 677/2008 and 11922/2008 in order to justify — on grounds, in particular, of the need to ‘regulate a wide-ranging organisational restructuring operation’ — adoption of the rule intended to regulate, six years after it had taken place, the transfer to the State of the ATAs employed by the local authorities? |
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5.

Could those reasons include organisational considerations analogous to those referred to by the Italian Court of Cassation in Judgments Nos 618/2008, 677/2008 and 11922/2008 in order to justify — on grounds, in particular, of the need to ‘regulate a wide-ranging organisational restructuring operation’ — adoption of the rule intended to regulate, six years after it had taken place, the transfer to the State of the ATAs employed by the local authorities?

regulate a wide-ranging organisational restructuring operation

| 6. | In any event, is it for the national courts to identify, where the national law is silent on the point, the ‘overriding reasons of public interest’ which — in the case of proceedings pending and in derogation from the principle of equality of arms — could justify the adoption of a retroactive rule capable of reversing the outcome of the proceedings, or must the national courts confine themselves to assessing the compatibility with Community law of the reasons expressly invoked by the legislature of the State as a basis for its choices? |
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6.

In any event, is it for the national courts to identify, where the national law is silent on the point, the ‘overriding reasons of public interest’ which — in the case of proceedings pending and in derogation from the principle of equality of arms — could justify the adoption of a retroactive rule capable of reversing the outcome of the proceedings, or must the national courts confine themselves to assessing the compatibility with Community law of the reasons expressly invoked by the legislature of the State as a basis for its choices?

overriding reasons of public interest

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