# C_2010063EN.01003401.xml

| 13.3.2010 | EN | Official Journal of the European Union | C 63/34 |
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13.3.2010

EN

Official Journal of the European Union

C 63/34

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Reference for a preliminary ruling from the Tribunale di Rossano (Italy) lodged on 5 January 2010 — Franco Affatato v Azienda Sanitaria Provinciale di Cosenza, Azienda Sanitaria n. 3 di Rossano

(Case C-3/10)

2010/C 63/55

Language of the case: Italian

Referring court

Referring court

Tribunale di Rossano

Parties to the main proceedings

Parties to the main proceedings

Applicant: Franco Affatato

Applicant:

Defendants: Azienda Sanitaria Provinciale di Cosenza, Azienda Sanitaria n.3 di Rossano

Defendants:

Questions referred

Questions referred

| 1. | Does Clause 2(1) of the Framework Agreement put into effect by Directive 1999/70/EC (1) preclude domestic rules, such as those laid down for SUW workers [socially useful workers — lavoratori socialmente utili]/PUW workers [publicly useful workers — lavoratori di pubblica utilità] by Article 8(1) of Legislative Decree No 468/97 and Article 4(1) [of Legislative Decree] No 81/00, which, by excluding the workers governed by these rules these rules from the right to establish an employment relationship, has the effect of precluding the application of legislation governing fixed-term employment in implementation of Directive 1999/70/EC? |
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1.

Does Clause 2(1) of the Framework Agreement put into effect by Directive 1999/70/EC (1) preclude domestic rules, such as those laid down for SUW workers [socially useful workers — lavoratori socialmente utili]/PUW workers [publicly useful workers — lavoratori di pubblica utilità] by Article 8(1) of Legislative Decree No 468/97 and Article 4(1) [of Legislative Decree] No 81/00, which, by excluding the workers governed by these rules these rules from the right to establish an employment relationship, has the effect of precluding the application of legislation governing fixed-term employment in implementation of Directive 1999/70/EC?

1

| 2. | Does Clause 2(2) of the Framework Agreement put into effect by Directive 1999/70/EC permit the exclusion of workers, such as SUW/PUW workers governed by Legislative Decree No 468/97 and Law No 81/00, from the scope of application of Directive 1999/70/EC? |
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2.

Does Clause 2(2) of the Framework Agreement put into effect by Directive 1999/70/EC permit the exclusion of workers, such as SUW/PUW workers governed by Legislative Decree No 468/97 and Law No 81/00, from the scope of application of Directive 1999/70/EC?

| 3. | Do the workers referred to in question 2 fall within the definitions set out in Clause 3(1) of the Framework Agreement put into effect by Directive 1999/70/EC? |
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3.

Do the workers referred to in question 2 fall within the definitions set out in Clause 3(1) of the Framework Agreement put into effect by Directive 1999/70/EC?

| 4. | Do Clause 5 of the Framework Agreement put into effect by Directive 1999/70/EC and the principles of equality [and] non-discrimination preclude rules governing workers in the schools sector (see in particular Article 4(1) of Law No 124/99 and Article 1(1)(a) of Ministerial Decree No 430/00), under which it is permissible not to specify the justification for the first fixed-term contract, which is a general requirement under national law for every other fixed-term employment relationship, and to renew contracts irrespective of the existence of fixed and permanent requirements, and which do not stipulate a total maximum duration for fixed-term contracts or employment relationships, the number of times such contracts or relationships can be renewed, or, normally do not provide that there should be periods between renewals or, in the case of supply teaching for the whole school year, that that period should correspond to the summer holidays, when there is no, or very little, teaching activity? |
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4.

Do Clause 5 of the Framework Agreement put into effect by Directive 1999/70/EC and the principles of equality [and] non-discrimination preclude rules governing workers in the schools sector (see in particular Article 4(1) of Law No 124/99 and Article 1(1)(a) of Ministerial Decree No 430/00), under which it is permissible not to specify the justification for the first fixed-term contract, which is a general requirement under national law for every other fixed-term employment relationship, and to renew contracts irrespective of the existence of fixed and permanent requirements, and which do not stipulate a total maximum duration for fixed-term contracts or employment relationships, the number of times such contracts or relationships can be renewed, or, normally do not provide that there should be periods between renewals or, in the case of supply teaching for the whole school year, that that period should correspond to the summer holidays, when there is no, or very little, teaching activity?

| 5. | Can the body of legislation governing the schools sector, as described, be regarded as being equivalent to a set of rules for the prevention of abuse? |
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5.

Can the body of legislation governing the schools sector, as described, be regarded as being equivalent to a set of rules for the prevention of abuse?

| 6. | Can Legislative Decree No 368/01 and Article 36 of Legislative Decree No 165/01 be regarded, for the purpose of Article 2 of Directive 1999/70/EC, as measures with the characteristics of provisions transposing Directive 1999/70/EC with regard to fixed-term employment relationships in the schools sector? |
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6.

Can Legislative Decree No 368/01 and Article 36 of Legislative Decree No 165/01 be regarded, for the purpose of Article 2 of Directive 1999/70/EC, as measures with the characteristics of provisions transposing Directive 1999/70/EC with regard to fixed-term employment relationships in the schools sector?

| 7. | Must a body with the characteristics of Poste Italiane S.p.a., namely:






  — | which is State owned; |
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7.

Must a body with the characteristics of Poste Italiane S.p.a., namely:

—

which is State owned;

| — | which is subject to State control; |
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—

which is subject to State control;

| — | for which the Minister of Communications chooses the universal service provider and in general carries out all activities connected with the substantive monitoring and control of the accounts, setting the objectives for the universal service provided; |
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—

for which the Minister of Communications chooses the universal service provider and in general carries out all activities connected with the substantive monitoring and control of the accounts, setting the objectives for the universal service provided;

| — | which provides an essential public service of overriding general interest; |
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—

which provides an essential public service of overriding general interest;

| — | whose budget is linked with the State budget; |
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—

whose budget is linked with the State budget;

| — | for which the costs of the service provided are determined by the State, which transfers to the body [the] amounts required to cover the additional costs incurred in providing the service, |
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—

for which the costs of the service provided are determined by the State, which transfers to the body [the] amounts required to cover the additional costs incurred in providing the service,

be regarded as a State body for the purposes of the direct application of Community law?

| 8. | If the answer to question 7 is in the affirmative: can the company in question be considered, for the purpose of Clause 5, to constitute a sector, namely can the personnel which may be employed by it, considered as a whole, be regarded as a specific category of workers for the purposes of the distinction made as to the prohibitions imposed? |
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8.

If the answer to question 7 is in the affirmative: can the company in question be considered, for the purpose of Clause 5, to constitute a sector, namely can the personnel which may be employed by it, considered as a whole, be regarded as a specific category of workers for the purposes of the distinction made as to the prohibitions imposed?

| 9. | If the answer to question 7 is in the affirmative: does Clause 5 of Directive 1999/70/EC of itself, or in conjunction with Clauses 2 and 4 and the principle of equal treatment [and] non-discrimination, preclude a provision such as Article 2(1a) of Legislative Decree No 368/01, which permits the inclusion of a fixed term in an employment contract in relation to a specific individual without any requirement to give reasons, thereby placing that person, in contrast with the prohibition ordinarily imposed under national law (Article 1 of Legislative Decree No 68/01), beyond the protection of the requirement to state in writing and prove, where disputed, the technical reasons or reasons related to imperative requirements of production, organisation or replacement of workers which justified the inclusion of a fixed term in the employment contract, bearing in mind that it is possible to extend the original contract where so required on objective grounds and for the same work as that for which the fixed-term contract was concluded? |
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9.

If the answer to question 7 is in the affirmative: does Clause 5 of Directive 1999/70/EC of itself, or in conjunction with Clauses 2 and 4 and the principle of equal treatment [and] non-discrimination, preclude a provision such as Article 2(1a) of Legislative Decree No 368/01, which permits the inclusion of a fixed term in an employment contract in relation to a specific individual without any requirement to give reasons, thereby placing that person, in contrast with the prohibition ordinarily imposed under national law (Article 1 of Legislative Decree No 68/01), beyond the protection of the requirement to state in writing and prove, where disputed, the technical reasons or reasons related to imperative requirements of production, organisation or replacement of workers which justified the inclusion of a fixed term in the employment contract, bearing in mind that it is possible to extend the original contract where so required on objective grounds and for the same work as that for which the fixed-term contract was concluded?

| 10. | Do Legislative Decree No 368/01 and Article 36(5) of Legislative Decree No 165/01 constitute general legislation transposing Directive 1999/70/EC for State employees, regard being had to the exceptions to such general provisions as defined in the light of the responses to questions 1 to 9? |
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10.

Do Legislative Decree No 368/01 and Article 36(5) of Legislative Decree No 165/01 constitute general legislation transposing Directive 1999/70/EC for State employees, regard being had to the exceptions to such general provisions as defined in the light of the responses to questions 1 to 9?

| 11. | In the absence of provision for penalties in relation to SUW and PUW-type workers and workers in schools as described, does Directive 1999/70/EC, in particular Clause 5(2)(b) [of the Framework Agreement], preclude the application, by analogy, of rules simply intended to provide compensation, such as those in Article 36(5) of Legislation Decree No 165/01, that is to say does Clause 5(2)(b) establish a principle of preference for contracts or relationships to be deemed to be contracts or relationships of indefinite duration? |
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11.

In the absence of provision for penalties in relation to SUW and PUW-type workers and workers in schools as described, does Directive 1999/70/EC, in particular Clause 5(2)(b) [of the Framework Agreement], preclude the application, by analogy, of rules simply intended to provide compensation, such as those in Article 36(5) of Legislation Decree No 165/01, that is to say does Clause 5(2)(b) establish a principle of preference for contracts or relationships to be deemed to be contracts or relationships of indefinite duration?

| 12. | Do the Community principle of equal treatment [and] non-discrimination, Clause 4 and Clause 5(1) preclude a difference in treatment with regard to the penalties imposed in the ‘State employee’ sector on the basis of circumstances in which the relationship came about, or of the employer body, or, similarly, in the schools sector? |
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12.

Do the Community principle of equal treatment [and] non-discrimination, Clause 4 and Clause 5(1) preclude a difference in treatment with regard to the penalties imposed in the ‘State employee’ sector on the basis of circumstances in which the relationship came about, or of the employer body, or, similarly, in the schools sector?

| 13. | On the assumption that the extent to which Directive 1999/70/EC has been transposed in domestic law with regard to the State and quasi-State bodies has been established in the light of the response to the previous questions, does Clause 5 preclude a rule, such as that laid down in Article 36(5) of Legislative Decree No 165/01, which imposes an absolute ban on the conversion of employment relationships as regards the State; that is to say, what further checks must be carried out by the national court in order to preclude the application of the prohibition on establishing employment relationships of indefinite duration with public authorities? |
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13.

On the assumption that the extent to which Directive 1999/70/EC has been transposed in domestic law with regard to the State and quasi-State bodies has been established in the light of the response to the previous questions, does Clause 5 preclude a rule, such as that laid down in Article 36(5) of Legislative Decree No 165/01, which imposes an absolute ban on the conversion of employment relationships as regards the State; that is to say, what further checks must be carried out by the national court in order to preclude the application of the prohibition on establishing employment relationships of indefinite duration with public authorities?

| 14. | Must Directive 1999/70/EC apply in its entirety to Italy, that is to say, does the conversion of employment relationships involving the public authorities appear to run contrary to the fundamental principles of national law and, therefore, Clause 5 must not be applied in that respect, since the effect of this would be contrary to Article 1-5 of the Treaty of Lisbon, insofar as the fundamental structures, political and constitutional, that is the essential functions of Italy, would not be respected? |
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14.

Must Directive 1999/70/EC apply in its entirety to Italy, that is to say, does the conversion of employment relationships involving the public authorities appear to run contrary to the fundamental principles of national law and, therefore, Clause 5 must not be applied in that respect, since the effect of this would be contrary to Article 1-5 of the Treaty of Lisbon, insofar as the fundamental structures, political and constitutional, that is the essential functions of Italy, would not be respected?

fundamental structures, political and constitutional

essential functions

| 15. | Does Clause 5 of Directive 1999/70/EC, in providing, for cases in which there is a prohibition on the conversion of employment relationships, that it is necessary to adapt measures offering effective and equivalent guarantees for the protection of workers, in comparison with that afforded in similar situations under national law, in order duly to punish abuses resulting from the infringement of Clause 5 and to nullify the consequences of the breach of Community law, require that an employment relationship of indefinite duration with the State, to which the worker would be entitled in the absence of Article 36, and an employment relationship of indefinite duration with a private employer, with regard to which the employment relationship would be characterised by the stability comparable to that of an employment relationship with the State, must be considered as analagous under national law? |
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15.

Does Clause 5 of Directive 1999/70/EC, in providing, for cases in which there is a prohibition on the conversion of employment relationships, that it is necessary to adapt measures offering effective and equivalent guarantees for the protection of workers, in comparison with that afforded in similar situations under national law, in order duly to punish abuses resulting from the infringement of Clause 5 and to nullify the consequences of the breach of Community law, require that an employment relationship of indefinite duration with the State, to which the worker would be entitled in the absence of Article 36, and an employment relationship of indefinite duration with a private employer, with regard to which the employment relationship would be characterised by the stability comparable to that of an employment relationship with the State, must be considered as analagous under national law?

| 16. | Does Clause 5 of Directive 1999/70/EC, in providing, for cases in which there is a prohibition on the conversion of employment relationships, that it is necessary to adopt measures offering effective and equivalent guarantees for the protection of workers, in comparison with that afforded in similar situations under national law, in order duly to punish abuses resulting from the infringement of Clause 5 and to nullify the consequences of the breach of Community law, require, when determining penalties, to be taken into account:






  (a) | the time needed to find new employment and the fact that it is not possible to take up employment which has the characteristics mentioned in question 15; |
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16.

Does Clause 5 of Directive 1999/70/EC, in providing, for cases in which there is a prohibition on the conversion of employment relationships, that it is necessary to adopt measures offering effective and equivalent guarantees for the protection of workers, in comparison with that afforded in similar situations under national law, in order duly to punish abuses resulting from the infringement of Clause 5 and to nullify the consequences of the breach of Community law, require, when determining penalties, to be taken into account:

(a)

the time needed to find new employment and the fact that it is not possible to take up employment which has the characteristics mentioned in question 15;

| (b) | or, on the other hand, the amount of remuneration which would have been paid had the employment relationship been converted from a fixed-term relationship into relationships of indefinite duration? |
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(b)

or, on the other hand, the amount of remuneration which would have been paid had the employment relationship been converted from a fixed-term relationship into relationships of indefinite duration?

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(1)  OJ 1999 L 175, p. 43.

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