# C_2017437EN.01002202.xml

| 18.12.2017 | EN | Official Journal of the European Union | C 437/22 |
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18.12.2017

EN

Official Journal of the European Union

C 437/22

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Request for a preliminary ruling from the Giudice di pace di Roma (Italy) lodged on 16 October 2017 — Pina Cipollone v Ministero della Giustizia

(Case C-600/17)

(2017/C 437/27)

Language of the case: Italian

Referring court

Referring court

Giudice di pace di Roma

Parties to the main proceedings

Parties to the main proceedings

Applicant: Pina Cipollone

Applicant:

Defendant: Ministero della Giustizia

Defendant:

Questions referred

Questions referred

| 1. | Does the applicant, as a Giudice di Pace (magistrate), by reason of her occupation, come within the definition of ‘fixed-term worker’ for the purposes of Articles 1(3) and 7 of Directive 2003/88, (1) read in conjunction with Clause 2 of the Framework Agreement on fixed-term work implemented by Directive 1999/70 (2) and Article 31(2) of the Charter of Fundamental Rights of the European Union? |
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1.

Does the applicant, as a Giudice di Pace (magistrate), by reason of her occupation, come within the definition of ‘fixed-term worker’ for the purposes of Articles 1(3) and 7 of Directive 2003/88, (1) read in conjunction with Clause 2 of the Framework Agreement on fixed-term work implemented by Directive 1999/70 (2) and Article 31(2) of the Charter of Fundamental Rights of the European Union?

Giudice di Pace

1

2

| 2. | If Question 1 above is answered in the affirmative, may an ordinary or ‘togato’ judge [a career judge engaged on a permanent basis and salaried] be regarded as a comparable permanent worker in respect of a ‘Giudice di Pace’ fixed-term worker for the purposes of the application of Clause 4 of the framework agreement on fixed-term work implemented by Directive 1999/70? |
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2.

If Question 1 above is answered in the affirmative, may an ordinary or ‘togato’ judge [a career judge engaged on a permanent basis and salaried] be regarded as a comparable permanent worker in respect of a ‘Giudice di Pace’ fixed-term worker for the purposes of the application of Clause 4 of the framework agreement on fixed-term work implemented by Directive 1999/70?

‘togato’

Giudice di Pace

| 3. | If Question 2 above is answered in the affirmative, do the differences between the procedure for the permanent recruitment of ordinary judges and the selection procedures, laid down by statute, for the fixed-term recruitment of Giudici di Pace constitute an objective ground, within the meaning of Clause 4(1) and/or (4) of the framework agreement on fixed-term work implemented by Directive 1999/70, justifying a refusal to apply: (1) — as in the recent interpretation of ‘vital law’ by the Combined Chambers of the Corte di cassazione (Court of Cassation) in judgment No 13721/2017 and by the Consiglio di Stato (Council of State) in Opinion No 464/2017 of 8 April 2017 — to Giudici di Pace, such as the applicant fixed-term worker, the same employment conditions as those applied to comparable permanent ordinary judges; and (2) preventive measures and measures imposing penalties in respect of abusive use of fixed-term contracts, as referred to in Clause 5 of the framework agreement implemented by Directive 1999/70 and the national implementing laws, in the absence of rules in the Italian legal or constitutional system that could justify either discrimination as regards employment conditions or an absolute prohibition on converting employment contracts of Giudici di Pace into permanent contracts, also taking into account previous national legislation (Law No 217/1974), which had already provided that the employment conditions of honorary judges (specifically ‘vice pretori onorari’) should be equivalent to those of ordinary judges? |
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3.

If Question 2 above is answered in the affirmative, do the differences between the procedure for the permanent recruitment of ordinary judges and the selection procedures, laid down by statute, for the fixed-term recruitment of Giudici di Pace constitute an objective ground, within the meaning of Clause 4(1) and/or (4) of the framework agreement on fixed-term work implemented by Directive 1999/70, justifying a refusal to apply: (1) — as in the recent interpretation of ‘vital law’ by the Combined Chambers of the Corte di cassazione (Court of Cassation) in judgment No 13721/2017 and by the Consiglio di Stato (Council of State) in Opinion No 464/2017 of 8 April 2017 — to Giudici di Pace, such as the applicant fixed-term worker, the same employment conditions as those applied to comparable permanent ordinary judges; and (2) preventive measures and measures imposing penalties in respect of abusive use of fixed-term contracts, as referred to in Clause 5 of the framework agreement implemented by Directive 1999/70 and the national implementing laws, in the absence of rules in the Italian legal or constitutional system that could justify either discrimination as regards employment conditions or an absolute prohibition on converting employment contracts of Giudici di Pace into permanent contracts, also taking into account previous national legislation (Law No 217/1974), which had already provided that the employment conditions of honorary judges (specifically ‘vice pretori onorari’) should be equivalent to those of ordinary judges?

Giudici di Pace

Giudici di Pace

Giudici di Pace

vice pretori onorari

| 4. | In any event, in a situation such as that in the main proceedings, is it contrary to the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union and to the EU-law concept of an independent and impartial tribunal for a Giudice di Pace, having an abstract interest in the case being resolved in favour of the applicant, who, as her sole form of employment, performs the same judicial functions, to stand in the place of the Italian courts with jurisdiction to hear employment disputes in general, or disputes of the ordinary magistrates, as a result of a refusal by the court of last instance (the Combined Chambers of the Court of Cassation) to grant protection for the rights claimed and protected by EU law, thus obliging the court naturally having jurisdiction (the Tribunale del lavoro (Labour Court) or the Tribunale amministrativo regionale (T.A.R.) (Regional Administrative Court)) to decline jurisdiction, when requested, despite the fact that that right — payment for annual leave, as sought in the action — is founded in EU law, which is binding and takes precedence within the legal order of the Italian State? In the event that the Court of Justice should find that there is an infringement of Article 47 of the Charter, what domestic remedies are available in order to avoid a situation in which infringement of a provision of primary EU law also involves an absolute refusal under domestic law to protect fundamental rights guaranteed by EU law in the particular circumstances of the case? |
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4.

In any event, in a situation such as that in the main proceedings, is it contrary to the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union and to the EU-law concept of an independent and impartial tribunal for a Giudice di Pace, having an abstract interest in the case being resolved in favour of the applicant, who, as her sole form of employment, performs the same judicial functions, to stand in the place of the Italian courts with jurisdiction to hear employment disputes in general, or disputes of the ordinary magistrates, as a result of a refusal by the court of last instance (the Combined Chambers of the Court of Cassation) to grant protection for the rights claimed and protected by EU law, thus obliging the court naturally having jurisdiction (the Tribunale del lavoro (Labour Court) or the Tribunale amministrativo regionale (T.A.R.) (Regional Administrative Court)) to decline jurisdiction, when requested, despite the fact that that right — payment for annual leave, as sought in the action — is founded in EU law, which is binding and takes precedence within the legal order of the Italian State? In the event that the Court of Justice should find that there is an infringement of Article 47 of the Charter, what domestic remedies are available in order to avoid a situation in which infringement of a provision of primary EU law also involves an absolute refusal under domestic law to protect fundamental rights guaranteed by EU law in the particular circumstances of the case?

Giudice di Pace

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(1)  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).

1

(2)  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).

2

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