Order;Information — ECLI:EU:C:2019:1090
Date: 2019-12-17
Language of the case: Italian
Court formation: Seventh Chamber
Subject matter: Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Italy

Summary C-618/18 — 1 
Case C-618/18 
Summary of the request for a preliminary ruling, pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
1 October 2018 
Referring court: 
Giudice di pace di L’Aquila (Italy) 
Date of the decision to refer: 
19 September 2018 
Applicant: 
Gabriele Di Girolamo 
Defendant: 
Ministero della Giustizia 
  
Subject-matter of the main proceedings 
Action for payment before the Giudice di pace di L’Aquila (Magistrate for 
L’Aquila) seeking an order that the Ministero dello Giustizia (Ministry of Justice) 
pay the sum of EUR 4 500 to the applicant, a magistrate who has completed at 
least 14 years’ service, by way of paid annual leave, corresponding to a month’s 
pay for the month of August 2016. 
Factual and legal background to the reference for a preliminary ruling 
The reference for a preliminary ruling pursuant to Article 267 TFEU seeks to 
ascertain whether the Italian legislation governing the civil liability of judges and 
the employment of magistrates is compatible with European Union law and 
whether the judgments of the Court of Justice have direct effect in national law. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-618/18 
 
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Questions referred 
(1) In the light of the case-law of the Court of Justice of the European Union 
concerning the liability of the Italian State for manifest infringement of 
Community law by courts adjudicating at last instance in the judgments [of 
30 September 2003, Köbler, C-224/01, EU:C:2003:513; of 13 June 2006, 
Traghetti del Mediterraneo, C-173/03, EU:C:2006:391 and of 24 November 2011, 
Commission v Italy, C-379/10, EU:C:2011:775], must the general principles of 
European Union law presently in force concerning legal certainty, the protection 
of legitimate expectations, procedural equality, effective judicial protection, the 
right to an independent court or tribunal and, more generally, the right to due 
process laid down in Article 47 of the Charter of Fundamental Rights of the 
European Union, in conjunction with Article 267 of the Treaty on the Functioning 
of the European Union, be interpreted as meaning that those provisions and the 
cited case-law of the Court of Justice preclude a Member State from adopting, to 
benefit itself or its public authorities, as in the present case, legislation such as that 
introduced by Law No 18/2015, with the declared intention of implementing the 
cited decisions of the Court of Justice, but with the essential objective of 
frustrating the effects thereof and affecting domestic jurisdiction, which, in the 
new version of Article 2(3) and (3bis) of Law No 117 of 13 April 1988 on the 
civil liability of judges, introduces a notion of liability for intentional fault or 
serious misconduct ‘in the event of manifest infringement of this law or the law of 
the European Union? That national legislation gives the national magistrate a 
choice — and the fact that it is made in any event gives rise to civil liability and 
liability to disciplinary action in relation to the State in cases in which the public 
authority itself is a substantive party —, as in the present case, of either infringing 
national legislation by disapplying it and applying European Union law, as 
interpreted by the Court of Justice, or infringing European Union law by applying 
the provisions of national law precluding effective protection and incompatible 
with Articles 1(3) and 7 of Directive 2003/88, Clauses 2 and 4 of the framework 
agreement on fixed-term work implemented by Directive 1999/70 and 
Article 31(2) of the Charter of Fundamental Rights of the European Union, as 
interpreted by the case-law of the Court of Justice in the judgments [of 1 March 
2012, O’Brien, C-393/10, EU:C:2012:110; and of 29 November 2017, King, 
C-214/16, EU:C:2017:914]; 
(2) If Question 1 is answered in the affirmative and having regard to the 
position adopted by the Italian Constitutional Court [in judgment] No 269/2017 of 
14 December 2017 following the judgment [of the Court of Justice of 5 December 
2010, M.A.S. and M.B., C-42/17, EU:C:2017:936], in the light of Articles 31(2) 
and 47 of the Charter of Fundamental Rights of the European Union, Article 267 
TFEU and Article 4 of the EU Treaty, can the decision which the Court of Justice 
has to adopt in the present case, finding that Article 2(3) and (3bis) of Law 
No 117 of 13 April 1988 is incompatible with EU law, in the main proceedings in 
which the defendant is a public authority of the State, be treated by the national 
court as a provision of European Union law of direct effect and application, thus 
allowing the national precluding provision to be disapplied?’ 
DI GIROLAMO 
 
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(3) If Question 1 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 
permanent worker indistinguishable from 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, where the judicial functions 
performed are the same but the selection procedure for performing the functions 
differ between ordinary judges (based on qualifications and tests with permanent 
employment and substantial permanent protection from dismissal, other than in 
rare cases of grave breaches of duty) and Giudici di pace (based on qualifications 
with fixed-term employment, renewable on a discretionary basis after a favourable 
periodic review by the by the Consiglio superiore della magistratura (the Supreme 
Council of the Judiciary) and immediately revocable in the event of an 
unfavourable review by the Giudice onorario (honorary judge)? 
Provisions of EU law relied upon 
– 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) (‘Directive 1999/70’). In particular, the following Clauses 
of the agreement implementing the directive (‘the framework agreement on 
fixed-term work’): Clause 2(1), (2) and (4), Clause 4 and Clause 5. 
– 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). In particular, Article 7, headed ‘Annual leave’. 
– Charter of Fundamental Rights of the European Union (OJ 2016 C 202, 
p. 398). In particular, Article 31(2), and Article 47. 
– Judgments of the Court of Justice of the European Union of 1 March 2012, 
O’Brien, C-393/10, EU:C:2012:110 and of 29 November 2017, King, 
C-214/16, EU:C:2017:914. 
Provisions of national law relied on 
- The following provisions of the Constitution of the Italian Republic: 
Article 36: ‘A worker shall be entitled to remuneration that is commensurate with 
the quantity and quality of his work and in any event sufficient to ensure that he 
and his family are able to live freely and with dignity.  
... 
A worker shall be entitled to paid weekly rest periods and annual leave and cannot 
waive such rights’. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-618/18 
 
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Article 97, which lays down, inter alia, the principle that access to posts with the 
public authorities is by means of competition, save for the cases specifically 
provided for by law.  
Article 102, which provides, inter alia, that judicial functions are to be performed 
by ordinary judges. 
Article 106: ‘Judges shall be selected and appointed by means of competition.  
The law governing the judicial system shall provide for the appointment, 
including by election, of magistrati onorari for the performance of all functions 
carried out by individual judges. …’ 
Article 111: ‘Jurisdiction shall be exercised having regard to all due process 
governed by law. 
All proceedings shall observe the rule that both parties are to be heard in 
conditions of equality, and all proceedings shall take place before an impartial 
judge. …’ 
Article 117: ‘Legislative power shall be exercised by the State and the Regions in 
accordance with the Constitution and within the limits set by Community law and 
international obligations. …’ 
- Decreto legislative del 15 giugno, n. 81, recante ‘Disciplina organica dei 
contratti di lavoro’ (Legislative Decree No 81 of 15 June 2015, laying down 
general rules governing employment contracts). In particular, Article 1, which 
provide as follows: ‘the permanent employment contract shall form the basis of an 
ordinary employment relationship’. Article 25, headed ‘Principle of non-
discrimination’, which states as follows: ‘fixed-term workers shall be entitled to 
the same economic and regulatory benefits in the undertaking as those enjoyed by 
comparable permanent workers, who shall be defined as those classified in the 
same category in accordance with classification criteria laid down by collective 
agreement and on a basis proportional to their length of service, provided that the 
result is not objectively incompatible with the nature of a fixed-term contract’. 
- Article 2109 of the Civil Code, which governs entitlement to paid annual leave 
for employees. 
- Article 10 of decretro legislative dell’8 aprile 2003, n. 66, recante ‘Attuazione 
delle direttive 93/104/EC e 2000/34/EC’ (Legislative Decree No 66 of 8 April 
2003 implementing Directives 93/104/EC and 2000/34/EC), which provides as 
follows: ‘1. Without prejudice to the provisions of Article 2109 of the Civil Code, 
the employee shall be entitled to a period of paid annual leave of not less than four 
weeks. ... 
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2. An allowance in lieu of leave shall not be substituted for the aforesaid 
minimum four-week leave period, except on termination of the employment 
relationship. …’ 
- Articles 8bis and 9 of legge del 2 aprile 1979, n. 97, recante ‘Norme sullo stato 
giuridico dei magistrati e sul trattamento economico dei magistrati ordinari e 
amministrativi’ (Law No 97 of 2 April 1979 laying down rules on the legal status 
of judges and the remuneration of ordinary and administrative judges), which 
govern, respectively, annual leave and the remuneration of ordinary judges. 
- Legge del 21 novembre 1991, n. 374, recante ‘Istituzione del giudice di pace’ 
(Law No 374 of 21 November 1991 establishing the position of giudice di pace 
(magistrate)). In particular, Article 1, headed ‘Establishment and functions of the 
giudice di pace’, which is worded as follows: ‘1. ‘There shall be created the 
position of giudice di pace, who shall have jurisdiction in civil and criminal 
matters and shall be authorised to conduct settlement procedures in civil matters in 
accordance with the provisions laid down by this Law. 
2. The position of giudice di pace shall be held by a magistrato onorario who is a 
member of the judicial order. …’ 
Also of relevance are the following articles of Law No 374 of 1991: Article 3, on 
the ‘general role, availability and distribution of posts for giudici di pace 
throughout national territory’; Article 4, concerning ‘acceptance for training’ via a 
selection procedure based on qualifications; Article 4bis, on ‘training and 
appointment’; Article 5, on ‘appointment requirements’; Article 6, on ‘courses for 
giudici di pace’; Article 7, on the ‘period of office and confirmation of the guidice 
di pace’: Article 8, on ‘incompatibility’; Article 9, on ‘termination, dispensation 
and disciplinary measures’; Article 10, on ‘the duties of the giudice di pace’; 
Article 11, on the ‘remuneration payable to the guidice di pace’, which provides 
that remuneration is to be paid for each hearing undertaken and for each set of 
proceedings conducted, and an allowance for each month of actual service by way 
of reimbursement of expenditure’. 
- Article 1 of legge del 18 maggio 1974, n. 217, recante ‘Sistemazione giuridico-
economica dei vice pretori onorari incaricati di funzioni giudiziarie’ (Law No 217 
of 18 May 1974 laying down the judicial and remuneration system for vice pretori 
onorari (deputy magistrates) entrusted with judicial functions), which provided 
that vice pretori onorari entrusted with judicial functions were to be employed on 
an indefinite basis until they reached the age of retirement and were to receive the 
salary payable to ordinary District Court judges. 
- Lastly, of relevance too are the rules governing the civil liability of judges, 
which also apply to Giudici di pace, set out in Articles 1, 2 and 8 of legge del 13 
aprile 1988, n. 117, su ‘Risarcimento dei danni cagionati nell’esercizio delle 
funzioni giudiziarie e responsabilità civile dei magistrati’ (Law No 117 of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-618/18 
 
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13 April 1988 concerning compensation for damage caused in the performance of 
judicial functions and the civil liability of judges). 
Of particular relevance in connection with the first question referred is Article 2 of 
that law headed ‘Liability for intentional fault or serious misconduct’, which 
provides as follows: 
1. Any person who has sustained unjustifiable damage as a result of judicial 
conduct, acts or measures on the part of a judge who is guilty of intentional fault 
or serious misconduct in the exercise of his functions, or as a result of denial of 
justice, may bring proceedings against the State for compensation for pecuniary 
damage he has suffered or non-pecuniary damage. 
2. Without prejudice to paragraphs 3 and 3bis and in cases of intentional fault, 
in the exercise of judicial functions the interpretation of provisions of law or the 
assessment of facts and evidence shall not give rise to liability. 
3. The following shall constitute serious misconduct: the manifest infringement 
of this law or European Union law, the distortion of the facts or evidence or the 
assertion of a fact the existence of which is indisputably refuted by the case-file or 
the denial of a fact the existence of which is indisputably established by the case-
file, or the adoption of an interim decision relating to a person or property in a 
case other than those provided for by law or without due reason. 
3bis … [F]or the purposes determining the cases in which there is a manifest 
infringement of this law or European Union law, account shall be taken, in 
particular, of the degree of clarity and precision of the rules infringed and the 
inexcusability and gravity of the non-compliance. In the case of manifest 
infringement of European Union law, account shall also be taken of the failure to 
fulfil the obligation to make a reference for a preliminary ruling under the third 
paragraph of Article 267 of the Treaty on the Functioning of the European Union, 
and the incompatibility of the act or measure with the interpretation expressed by 
the Court of Justice of the European Union’. 
Succinct presentation of the facts and procedure in the main proceedings 
1 Since April 2002, Mr Di Girolamo (‘the applicant’) has worked as Giudice di pace 
at the Ufficio di l’Aquila (Magistrates’ Court, Aquila).  
2 It is apparent from the documents lodged that he has worked in that capacity on a 
continuous basis, handling 3039 sets of civil proceedings in the period between 
2003 and 2017 and 356 sets of criminal proceedings between 2002 and the 
present. Moreover, the applicant has produced documents attesting to the fact that, 
in the three year period 2015-2017, he presided at at least three hearings per week, 
with the exception of the August holiday period.  
DI GIROLAMO 
 
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3 During that holiday period the applicant does not receive any remuneration 
because, pursuant to Article 11 of Law No 374 of 21 November 1991, that is 
contingent on his actually working. That remuneration scheme is different from 
that of ordinary judges, also known as ‘togati’, who are entitled, under 
Article 8bis of Law No 97 of 2 April 1979, to 30 days’ annual leave per year.  
4 On 28 July 2017, the applicant brought an action for payment action before the 
Giudice di pace di L’Aquila, seeking an order that the Ministry of Justice pay to 
him the sum of EUR 4 500, corresponding, according to the applicant, to the 
monthly remuneration payable for the month of August 2016 to an ordinary judge 
who has completed at least 14 years’ service and successfully completed his or her 
third professional evaluation.  
5 By order of 31 July 2017, the referring magistrate referred four questions to the 
Court of Justice of the European Union for a preliminary ruling in Case C-472/17.  
6 In that case written observations were submitted by, in addition to the applicant, 
l’Unione nazionale giudici di pace (National Union of Giudice di pace — 
Unagipa), the Italian Government and the European Commission.  
7 By Order of 6 September 2018 (EU:C:2018:684), the Court of Justice of the 
European Union declared manifestly inadmissible the request for a preliminary 
ruling made by the national magistrate. At paragraphs 30 and 31 of the grounds 
for the order, the Court of Justice pointed out that the Giudice di pace, in his order 
for reference, expressly stated that if he had declared that he had jurisdiction in the 
main proceedings, he would have stood in the place of the tribunal established by 
law as having jurisdiction, whilst the cooperation between the Court of Justice and 
the national courts established by Article 267 TFEU presupposes that the referring 
court has jurisdiction to rule on the dispute in the main proceedings, so that the 
latter is not regarded as merely hypothetical. 
The essential arguments of the parties in the main proceedings 
8 The applicant submits, first and foremost, that the work performed as Giudice di 
pace is in the nature of paid employment. That is borne out, in particular, by the 
fact that he is obliged to adhere to the times and dates of hearings laid down in 
schedules approved by the Consiglio superiore della magistratura (the Supreme 
Council of the Judiciary) (‘the CSM’) and the fact that he acts under the direction 
of the President of the Tribunale (District Court).  
9 According to the applicant, it follows from the fact that the work of the Giudice di 
pace is akin to paid employment that Article 7 of Directive 2003/88 is applicable 
to him. That provision states that ‘every worker is entitled to paid annual leave of 
at least four weeks in accordance with the conditions for entitlement to, and 
granting of, such leave laid down by national legislation and/or practice’. That 
right to paid annual leave for a period of not less than four weeks is also enjoyed 
by employees under domestic law, pursuant to Article 36 of the Constitution, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-618/18 
 
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Article 2109 of the Civil Code and Article 10 of Legislative Decree No 66 of 
8 April 2003.  
10 The applicant also maintains that, pursuant to Clause 2(1) and Clause 4(1), (2) and 
(4) of the framework agreement on fixed-term work, the same employment 
conditions should be applied to giudici di pace as those applicable to ordinary 
judges who have completed the same number of years’ service. The latter 
category are ‘comparable permanent workers’ within the meaning of Clause 4 of 
the framework agreement on fixed-term work, with the result that giudici di pace 
cannot be treated less favourably than ordinary judges, save where there are 
objective grounds, which is not at all the case in this instance, according to the 
applicant.  
11 The principle that there should be no discrimination as between fixed-term 
workers and comparable permanent workers is incorporated in Italian law by 
Article 6 of decreto legislativo del 6 settembre 2001, n. 368 (Legislative Decree 
No 368 of 6 September 2001), as subsequently replaced, from 25 June 2015, by 
Article 25 of decreto legislativo del 15 giugno 2015, n. 81 (Legislative Decree 
No 81 of 15 June 2015).  
12 That the work of a Giudice di pace is akin to that of paid employment also 
follows, according to the applicant, from the fact that Directives 1999/70 and 
2003/88 — as interpreted by the relevant decisions of the Court of Justice of the 
European Union, in particular the judgment of 1 March 2012, O’Brien, C-393/10, 
EU:C:2012:110 — are directly applicable to the Italian State and public 
authorities. 
13 That there has been infringement of Directives 1999/70 and 2003/88 is confirmed 
by: 
– the decision of the European Committee of Social Rights on collective 
complaint No 102/2013, published on 16 December 2016, concerning the 
pension rights of giudici di pace. 
– Communication DG EMPL/B2/DA-MAT/sk (2016), in which the European 
Commission announced that it was about to launch an infringement procedure 
regarding the compatibility with EU law of the national rules governing the 
work of magistrati onorari, with regard, in particular, to the abusive renewal of 
fixed-term contracts (Clause 5 of the framework agreement on fixed-term 
work), unequal pay (Clause 5 of that agreement) and unequal holiday 
entitlement (Article 7 of Directive 2003/88, in conjunction with Clause 4 of the 
framework agreement on fixed-term work). 
– the communication of 23 March 2017 by which the President of the European 
Parliament’s Committee on Petitions, following a meeting on 28 February 2017 
at which were discussed a number of petitions concerning the employment 
conditions of giudici di pace in Italy, called upon the Italian Ministry of Justice 
to take the necessary steps to eradicate the ‘manifest unequal treatment at 
DI GIROLAMO 
 
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judicial, economic and social level as between magistrati togati and magistrati 
onorari’.  
14 The applicant also raises the issue of the jurisdiction of the Giudice di pace seised. 
He observes in that regard that, given that the work of a giudice di pace is akin to 
paid employment, the claim submitted should, under domestic law, fall within the 
jurisdiction of the Tribunale (District Court), as the court with jurisdiction to 
adjudicate on employment disputes, or the administrative courts. However, 
according to the applicant, that criterion cannot be applied in the present case in 
the light of the firm view expressed by the Corte di cassazione (Court of 
Cassation) (recently confirmed by the combined chambers of that court in 
Judgment No 13721 of 31 May 2017) that the work of a giudice di pace is done 
on a voluntary basis and cannot be classified as that of a public sector employee, 
and the court with jurisdiction to hear claims concerning the remuneration of such 
‘honorary’ officials must therefore be determined only on the basis of the value of 
the case.  
15 That view, according to the applicant, is based on an incorrect application of the 
criteria for classifying a relationship as one of employment established by the 
Court of Justice of the European Union and is at odds with the principles 
underlying the EU legislation cited above.  
16 In its written submissions in Case C-472/17, the European Commission 
considered that, in responding to the questions referred for a preliminary ruling, 
the Court of Justice must take account of the following considerations: 
‘1. In so far as the giudice di pace performs, for a certain period of time, 
services for and under the direction of another person in return for which he 
receives remuneration, he is a worker within the meaning of Directives 
2003/88/EC and 1999/70/EC. However, it is for the national court to carry out that 
assessment on the basis of these criteria. 
2. Giudici di pace are workers comparable to giudici togati within the meaning 
of Clause 4 of the framework agreement, unless there is a difference arising from 
the work performed and the requirements for gaining access to the relevant posts, 
provided that those requirements (a) entail different academic qualifications or 
experience, (b) are relevant to the purpose of those posts and, (c) are unrelated to 
the duration of the employment relationship. However, it is for the national court 
to carry out that assessment on the basis of these criteria. 
3. In so far as, on the one hand, to gain access to the posts of giudice di pace 
and giudice togato it is necessary to have different academic qualifications or 
experience and, on the other, the selection procedures are based on requirements 
relevant to the purpose of the functions to be exercised and unrelated to the 
duration of the employment, which it is for the national court to assess, the 
Commission considers that those circumstance can constitute, in principle, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-618/18 
 
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objective justification for unequal treatment as regards enjoyment of the right to 
paid leave. 
However, such difference in the requirements for access to the relevant posts 
cannot justify the exclusion of giudici di pace from the right to paid leave’.  
17 This view of the European Commission is essentially confirmed by the 
communication of the Committee on Petitions of the European Parliament of 28 
February relating to petitions Nos 1328/2015, 1376/2015, 0028/2016, 0044/2016, 
0177/2016, 0214/2016, 0333/2016, 0889/2016, 1184/2016, 1202/2016, 
0757/2017, 0763/2017, 0778/2017, 0779/2017 and 0780/2017, which states: ‘[t]he 
Commission considers that the working conditions of honorary magistrates and 
honorary judges in Italy should not be less favourable than those of career 
magistrates and tenured judges, as the latter can be considered as a “comparable 
permanent worker” under Clause 3(2) of the [Fixed-Term] Framework 
Agreement.’  
18 In its written observations in Case C-472/17, the Italian Government states that: a 
Giudice di pace is not covered by the term ‘fixed-term worker’ for the purpose of 
Directives 2003/88 and 1999/70 and Article 31(2) of the Charter; that a magistrato 
ordinario cannot be regarded as a ‘comparable permanent worker’ for the 
purposes of applying Clause 4 of the Fixed-term Framework Agreement; and that, 
in any event, there are professional and functional differences between the two 
types of judge such as to constitute ‘objective grounds’ for not applying to Giudici 
di pace the same economic conditions as are applied to magistrati ordinari.  
Succinct presentation of the reasons for the request for a preliminary ruling 
19 Before addressing the merits of the questions referred, the referring magistrate sets 
out a number of general considerations concerning the position of Giudici di pace 
in the Italian legal system. 
20 Firstly, the referring magistrate highlights the contradictory case-law of the higher 
courts which, on the one hand, hold that giudici onorari perform the same 
functions as giudici ordinari (the position expressed by the Corte di Cassazione 
(Court of Cassation) in order No 28937/2017 and judgment No 22845/2016), 
whilst, on the other, exclude any form of social protection for Giudici di pace on 
the assumption that they cannot be classified as employees (the Corte di 
Cassazione, Sezioni Unite (Court of Cassation, Combined Chambers) ruled to that 
effect in judgment No 13721/2017, as did the Consiglio di Stato (Council of 
State), in judgment No 3556/2017), which is clearly contrary to the principles 
outlined by the Court of Justice in its judgment of 1 March 2012, O’Brien, 
C-393/10, EU:C:2012:110.  
21 In the view of the referring magistrate, the particular situation of Giudici di pace 
constitutes a unique case in the Italian legal system which involves clear 
discrimination in comparison with other categories of fixed-term workers in 
DI GIROLAMO 
 
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public authorities who, as a result of legislative action and case-law, have been 
recruited for an indefinite period.  
22 Secondly, the referring magistrate states that he has jurisdiction to rule on the 
action brought by the applicant. This matter is of particular relevance since in the 
previous request for a preliminary ruling (Case C-472/17) the referring magistrate 
had stated that if he had declared that he had jurisdiction in the main proceedings, 
he would have stood in the place of the tribunal established by law as having 
jurisdiction. That statement led the Court of Justice to declare, by order of 
6 September 2018 (EU:C:2018:684), that the previous reference for a preliminary 
ruling was manifestly inadmissible as ‘the cooperation between the Court of 
Justice and the national courts established by Article 267 TFEU presupposes that 
the referring court has jurisdiction to rule on the dispute in the main proceedings, 
so that the latter is not regarded as merely hypothetical’ (see paragraph 31 of the 
order). 
23 In this regard, the referring magistrate observes that the action brought by the 
applicant must be classified as an action for damages for failure to apply European 
Union law (that is to say Directives 2003/88 and 1999/70), jurisdiction for which, 
it is not disputed, lies with the ordinary civil courts and, therefore, in accordance 
with the applicable criteria for the distribution of cases, the referring magistrate. 
The jurisdiction of that magistrate is furthermore confirmed in the case-law of the 
Court of Justice, inter alia in the judgments of 15 April 2008, Impact, C-268/06, 
EU:C:2008:223 (paragraphs 44 to 51) and of 25 November 2010, Fuß, C-429/09, 
EU:C:2010:717 (paragraphs 45 to 48).  
24 Finally, the referring magistrate raises the question of his acting as a third party 
and his independence in the present case, which concerns the economic treatment 
of a person who, as he carries out the same functions, is essentially one of his 
‘colleagues’. In this regard, note should be taken of the judgment of the Court of 
Justice of 27 February 2018, Associação Sindical dos Juízes Portugueses, 
C-64/16, EU:C:2018:117, which recognised the independence and impartiality of 
the Portuguese Court of Auditors even though the applicant was the Trade Union 
of Portuguese Judges. 
The First Question 
25 As regards the first question, the referring magistrate observes that the rules on the 
civil liability of judges laid down in Law 117/1988 were amended by the adoption 
of Law No 18/2015, by which the national legislature sought to comply with the 
principles laid down by the Court of Justice in its judgments of 30 September 
2003, Köbler, C-224/01, EU:C:2003:513; of 13 June 2006, Traghetti del 
Mediterraneo, C-173/03, EU:C:2006:391; and of 24 November 2011, Commission 
v Italy, C-379/10, EU:C:2011:775. According to those judgments, the courts of a 
Member State are required to disapply national legislation incompatible with 
European Union law having direct effect or, where possible, to interpret the 
former in accordance with the latter, to avoid liability of the State.  
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26 The referring magistrate recalls that, by excluding all liability of the Italian State 
for damage caused to individuals through an infringement of European Union law 
on the part of a court adjudicating at last instance when that infringement results 
from an interpretation of the rules of law or an assessment of the facts and 
evidence carried out by that court and by limiting that liability to cases of 
intentional fault or serious misconduct, pursuant to Article 2(1) and (2) of Law 
No 117 on the reparation of damage caused in the exercise of judicial functions 
and the civil liability of judges [legge n. 117 (sul) risarcimento dei danni cagionati 
nell’ esercizio delle funzioni giudiziarie e responsabilità civile dei magistrati], of 
13 April 1988, the Italian [legislator] has failed to fulfil its obligations under the 
general principle that Member States are liable for the infringement of European 
Union law by one of their courts adjudicating at last instance.  
27 The referring magistrate notes that the new version of Article 2(3) and (3bis) of 
Law No 117/1988, as amended by Law No 18/2015, introduces a notion of 
liability for intentional fault or serious misconduct of judges which occurs either 
in the event of manifest infringement of that law or in the event of manifest 
infringement of the law of the European Union. Equating those two types of 
infringement is incompatible with European Union law and the relevant case-law 
of the Court of Justice since, in the present case, it gives the national magistrate 
the choice of either: 
– infringing national legislation (Law No 374/1991, in so far as it excludes the 
right of Giudici di pace to paid leave), by disapplying it and instead applying 
European Union law (Directive 2003/88, the fixed-term framework agreement, 
and the Charter of Fundamental Rights of the EU), as interpreted by the Court 
of Justice in the judgments in Cases C-393/10 (O’Brien) and C-214/16 (King), 
or 
– infringing European Union law by applying that national legislation.  
28 In the previous reference for a preliminary ruling, made in Case C-472/17, the 
referring magistrate did not consider it necessary to raise these questions as he 
considered that it was possible by means of interpretation to overcome the 
incompatibility previously outlined between national legislation and EU law by 
disapplying national legislation in accordance with the principle of the primacy of 
European Union law. 
29 In the view of the referring magistrate, that principle was brought into question by 
the order of the Court of Justice of 6 September 2018, in Case C-472/17, which 
declare the previous reference for a preliminary ruling manifestly inadmissible. 
That order takes no account of the argument, with which the referring magistrate 
concurs, that the law on which the applicant relies is based on the direct 
applicability of European Union law, which prevails over national law. The 
referring magistrate considers that the Court of Justice’s answer to the first 
question referred is therefore of particular relevance.  
DI GIROLAMO 
 
13 
The Second Question 
30 The referring magistrate recalls judgment No 269 of the Corte Costituzionale 
(Constitutional Court) of 14 December 2017, which lays down, inter alia, certain 
criteria which the national court must follow in cases of ‘doppia pregiudizialità’, 
that is to say in those disputes which can give rise to questions of constitutional 
legality and, at the same time, questions of compatibility with European Union 
law.  
31 In the judgment in question, the Corte Costituzionale draws a distinction 
according to whether the provisions of national law are incompatible with the 
rules of EU law having direct effect and with rules not having such effect. In this 
regard, the above judgment states ‘where national legislation is incompatible with 
a rule of European Union law, the court — if any resolution of the incompatibility 
on the basis of interpretation or, where applicable, through a reference for a 
preliminary ruling, has been unsuccessful — applies directly the provision of 
European Union law having direct effect, thereby observing, at the same time, the 
primacy of European Union law and the principle of the court’s submission to the 
law (Article 101 of the Constitution) … . Conversely, where a provision of 
national law diverges from the rules of European Union law not having direct 
effect, it is necessary to raise a question of constitutional legality, reserved to the 
exclusive jurisdiction of that Court, without dealing in advance with the aspects of 
incompatibility with European Union law’.  
32 With reference to the Charter of Fundamental Rights of the EU, the Corte 
Costituzionale acknowledges that, since the rights laid down therein largely 
overlap with the rights safeguarded by the Italian Constitution, ‘it may be that the 
infringement of the rights of the person violates both the safeguards protected by 
the Constitution …, and those codified by the European Union Charter of Rights, 
as occurred most recently[,] with regard to the principle that offences and 
penalties must be defined by law[,] [in the judgment of the Court of Justice of 
5 December 2017, M.A.S. And M.B., C-42/17, EU:C:2017:936]’. In the light of 
those considerations, the Corte Costituzionale declares that ‘the infringements of 
the rights of the person require erga omnes action by this Court’, which ‘will give 
judgment in the light of national and any European parameters (pursuant to 
Articles 11 and 117 of the Constitution), […] also to ensure that the rights 
safeguarded by that Charter of Rights are interpreted in harmony with 
constitutional traditions …’.  
33 The referring magistrate notes that that position differs in part from the previous 
view of the Corte Costituzionale, most recently expressed in orders No 194 and 
195 of 20 July 2016, that ‘as regards the rules being assessed in terms of 
constitutional legality, the principles laid down by the Court of Justice directly 
form part of the national legal order as jus superveniens …’.  
34 In the light of judgment No 269/2017 of the Corte Costituzionale, the referring 
magistrate considers that the Court of Justice’s decisions can have direct effect in 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-618/18 
 
14  
national law only under the Charter of Fundamental Rights of the EU, 
Articles 31(1) and (4) of which were invoked in the second question referred. 
However, in the view of the referring magistrate it is still unclear what the actual 
value is of the Charter and the judgments of the Court of Justice which interpret 
the rights laid down by it, above all in the light of the two judgments given in the 
‘Taricco’ (judgments of 8 September 2015, Taricco and Others, C-105/14, 
EU:C:2015:555, and of 5 December 2017, M.A.S. and M.B., C-42/17, 
EU:C:2017:936). In this regard, the referring magistrate observes that in the 
Italian constitutional order there are no principles which can prevent the direct 
application, in the present case, of the judgment by which the Court of Justice 
might have to declare Italian legislation incompatible with the European Union 
primary law.  
The Third Question 
35 The referring magistrate is of the view that, in the light of Article 7 of Directive 
2003/88 in conjunction with Clause 2(1) and Clause 4(1), (2) and (4) of the 
framework agreement on fixed-term work, the Giudice di pace must be regarded 
as a fixed-term employee and, therefore, the same employment conditions must be 
applied to the Giudice di pace as those applied to ordinary judges, as comparable 
permanent workers. According to the referring magistrate, there are no objective 
grounds, within the meaning of Clause 4(1) and/or (4) of that agreement, why the 
work of Giudici di pace and that of ordinary judges should not be treated in the 
same way for remuneration and tax purposes  
36 In support of that view, the referring magistrate refers to a series of domestic law 
provisions which indicate that the procedures governing access to the position of 
Giudice di pace and the performance of the related functions are organised on the 
basis of rules which are very similar, and at times identical, to those applicable to 
ordinary judges. It is apparent from the provisions referred to above that: (i) in 
order to take up a post, every Giudice di pace must have successfully completed a 
selection procedure, followed by a period of training; (ii) in the same way as 
ordinary judges, the Guidice di pace is allocated to an individual court in 
accordance with rules laid down by law and is required to observe the 
organisational measures of the CSM as well as the instructions given by the 
President of the District Court; (iii) the Ministry of Justice may exercise in his or 
her regard wide-ranging powers of organisation and inspection and may report 
any irregularity to the competent disciplinary bodies; (iv) failure to have regard to 
the rules of professional conduct will result in the Giudice di pace being subject to 
the disciplinary powers of the CSM; (v) holding the position of Giudice di pace is 
essentially incompatible with any other type of employment and the holding of 
any position of a political nature; (vi) every four years the Giudice di pace 
undergoes professional assessment by the CSM; (vii) the provisions on civil 
liability applicable to ordinary judges are equally applicable to Giudici di pace; 
(viii) also in common with ordinary judges are certain practical aspects relating to 
the receipt of remuneration and proof of income, which, for tax purposes, is 
expressly treated in the same way as that of an employee.  
DI GIROLAMO 
 
15 
37 The referring magistrate therefore concludes that, irrespective of the terminology 
used by the Italian legislator, which classifies the Giudice di pace as a ‘magistrato 
onorario’, there is no doubt that the work done by such a person should be 
categorised as that of a public sector employee or civil servant, in the same way as 
that of an ordinary judge.  
38 The referring magistrate also observes that, unlike the case covered by the 
judgment of the Court of Justice of 1 March 2012, O’Brien, C-393/10, 
EU:C:2012:110, which concerned the employment arrangements of part-time 
judges in the United Kingdom, the work of the Giudice di pace is characterised by 
the fact that it is essentially full-time. That is confirmed by the particularly high 
number of civil and criminal proceedings dealt with annually by each Giudice di 
pace, a number that rules out the possibility of the Giudice di Pace engaging in 
any other form of employment.  
39 In support of the contention that the Giudice di pace is an employee, the referring 
magistrate refers to the case-law of the Court of Justice to the effect that the term 
‘worker’ must be defined, for the purposes of EU law, in accordance with 
objective criteria which distinguish the employment relationship by reference to 
the rights and duties of the persons concerned (judgment of 9 July 2015, Balkaya, 
C-229/14, EU:C:2015:455, paragraph 34). Moreover, according to the case-law of 
that court, the essential feature of the employment relationship is that for a certain 
period of time one person performs services for and under the direction of another 
person in return for which he receives remuneration (inter alia, judgments of 
21 February 2013, LN, C-46/12, EU:C:2013:97, paragraph 40; and of 4 December 
2014, FNV Kunsten Informatie en Media, C-413/13, EU:C:2014:2411, 
paragraphs 34 to 36).  
40 The referring magistrate concludes that, according to the case-law of the Court of 
Justice, it is of no consequence that, in domestic law, the work performed by 
Giudici di pace is categorised as ‘onoraria’ (honorary) and that it is therefore 
necessary to apply to such persons the principle pro rata temporis, on the basis of 
which the remuneration received by them is to be determined by reference to that 
received by ordinary judges, as comparable permanent workers  
41 By judgment of 29 November 2017, King, C-214/16, EU:C:2017:914, the Court 
of Justice also acknowledged that a person who works on the basis of a ‘self-
employed commission-only contract’, as predominantly occurs in the case of the 
applicant Giudice di pace, must be regarded as a ‘worker’ within the meaning of 
Directive 2003/88 and is entitled to holiday pay.  
42 The referring magistrate further observes that, contrary to what the European 
Commission appears to state in its written observations in Case C-472/17, giudici 
onorari perform the same functions as giudici ordinari, the only difference 
between them being the matters within their jurisdiction and not the limited 
economic value of the disputes dealt with. An analysis of the procedural rules 
relating to jurisdiction shows that the Italian legislator has not identified a 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-618/18 
 
16  
category of ‘minor’ cases, that is to say of minor importance and economic value, 
to be assigned to Giudici di pace, but has organised the legal order predominantly 
in accordance with criteria of jurisdiction for matters, and only partially in 
accordance with the criterion of the value of the dispute.  
43 Finally, the referring magistrate raises the question of the classification of the 
applicant’s entitlement to payment. In particular, that magistrate asks whether the 
applicant must be awarded pay equal to that received by a magistrato togato who 
has completed the same number of years’ service (and therefore successfully 
completed his or her third professional evaluation) or a lesser amount. In this 
regard, the referring magistrate observes that in its submissions in Case C-472/17 
the European Commission, when asserting that Giudici di pace are to be regarded 
as workers comparable with giudici ordinari within the meaning of Clause 4 of 
the fixed-term framework agreement, ‘unless there is a difference arising from the 
work performed and the requirements for gaining access to the relevant posts’, 
appears of favour a functional-type criterion for quantifying the payment, which 
takes account of the judicial work performed by the applicant in this specific case. 
From that aspect, the referring magistrate observes that in the present case there is 
nothing to justify different treatment of giudici onorari and giudici ordinari on the 
basis of the work they perform or the requirements for gaining access to the 
relevant posts.  
44 As regards the different procedure governing access to the post, which in the case 
of magistrati onorari involves a public selection procedure based solely on 
qualifications and in the case of magistrati ordinari a public selection procedure 
based on qualifications and tests, the referring magistrate points out that in Case 
C-466/17, which is still pending before the Court of Justice, a question (the first) 
has been referred to establish whether that difference can justify different 
treatment of fixed-term workers and comparable permanent workers.