# C_2018052EN.01001402.xml

| 12.2.2018 | EN | Official Journal of the European Union | C 52/14 |
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12.2.2018

EN

Official Journal of the European Union

C 52/14

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Request for a preliminary ruling from the Giudice di Pace di Roma (Italy) lodged on 3 November 2017 — Alberto Rossi and Others v Ministero della Giustizia

(Case C-626/17)

(2018/C 052/20)

Language of the case: Italian

Referring court

Referring court

Giudice di Pace di Roma

Parties to the main proceedings

Parties to the main proceedings

Applicants: Alberto Rossi and Others

Applicants:

Defendant: Ministero della Giustizia

Defendant:

Questions referred

Questions referred

| 1. | Does the applicant, as a Giudice di Pace (magistrate), by reason of his occupation, come within the definition of a ‘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 his occupation, come within the definition of a ‘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 provision in Article 5(4bis) of Legislative Decree No 368/2001, in the absence of any fundamental principle under domestic law or any constitutional rule that could justify either discrimination as regards employment conditions or an absolute prohibition on engaging Giudici di Pace on permanent contracts, also taking into account the previous domestic provision (Article 1 of Law No 217/1974), which had already provided that the employment conditions of giudici onorari should be equivalent to those of ordinary judges and that there should no longer be recourse to successive fixed-term employment contracts for such 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 provision in Article 5(4bis) of Legislative Decree No 368/2001, in the absence of any fundamental principle under domestic law or any constitutional rule that could justify either discrimination as regards employment conditions or an absolute prohibition on engaging Giudici di Pace on permanent contracts, also taking into account the previous domestic provision (Article 1 of Law No 217/1974), which had already provided that the employment conditions of giudici onorari should be equivalent to those of ordinary judges and that there should no longer be recourse to successive fixed-term employment contracts for such judges?

Giudici di Pace

Giudici di Pace

Giudici di Pace

giudici 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, who has an interest in the case before him being resolved in favour of the applicant who, as his sole form of employment performs identical judicial functions, to stand in the place of the tribunal established by statute as having jurisdiction because of the refusal by the highest domestic judicial body — the Combined Chambers of the Court of Cassation — to grant effective protection for the rights claimed, thus obliging the tribunal established as competent by statute to decline jurisdiction, when requested, for the purpose of recognising the right claimed, notwithstanding the fact that the right in question — like the right to paid leave at issue in the main proceedings — is enshrined in primary and secondary EU law in a situation in which ‘Community’ law is directly and vertically applicable to the Member State in question? 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 present 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, who has an interest in the case before him being resolved in favour of the applicant who, as his sole form of employment performs identical judicial functions, to stand in the place of the tribunal established by statute as having jurisdiction because of the refusal by the highest domestic judicial body — the Combined Chambers of the Court of Cassation — to grant effective protection for the rights claimed, thus obliging the tribunal established as competent by statute to decline jurisdiction, when requested, for the purpose of recognising the right claimed, notwithstanding the fact that the right in question — like the right to paid leave at issue in the main proceedings — is enshrined in primary and secondary EU law in a situation in which ‘Community’ law is directly and vertically applicable to the Member State in question? 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 present 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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