Judgment;Information — ECLI:EU:C:2024:77
Date: 2024-01-25
Language of the case: Italian
Court formation: Sixth Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-389/22 – 1 
Case C-389/22 
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:  
13 June 2022 
Referring court:  
Consiglio di Stato (Italy) 
Date of the decision to refer:  
10 June 2022 
Applicants:  
GC 
GN 
CB 
and Others 
Defendants:  
Croce Rossa Italiana 
Ministero della Difesa 
Ministero della Salute 
Ministero dell’Economia e delle Finanze 
Presidenza del Consiglio dei ministri 
  
Subject matter of the main proceedings 
Appeal brought by employees on temporary service in the military corps of the 
Croce Rossa Italiana (Italian Red Cross) against the judgment of 23 July 2014 of 
the Tribunale amministrativo regionale per il Lazio (Regional Administrative 
Court for Lazio) (TAR), in which that court rejected the applicants’ request to 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-389/22 
 
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have their temporary service relationships converted into permanent and 
continuous service relationships, without assessing whether the plea of the 
unconstitutionality of the legislation reorganising the Red Cross was not 
manifestly unfounded, and without submitting a request for a preliminary ruling to 
the Court of Justice of the European Union concerning the compatibility with 
Directive 1999/70/EC of the national legislation governing fixed-term service 
relationships with the Red Cross. 
Subject matter and legal basis of the reference 
Interpretation of Article 267 TFEU, with particular reference to the obligation of a 
court of final instance to refer a case to the Court of Justice for a preliminary 
ruling. 
Interpretation of Directive 1999/70/EC concerning fixed-term work; compatibility 
with that directive of a succession of fixed-term service relationships with a public 
authority, without interruption. 
Questions referred 
(a) In order to consider that there is a derogation from the obligation imposed 
on the court of final instance to make a reference for a preliminary ruling under 
Article 267 TFEU, must ‘[the conviction] that the matter is equally obvious to the 
courts of the other Member States and to the Court of Justice’ [within the meaning 
of the judgment of 6 October 1982 in Case 238/81, Cilfit and Others] (…) be 
established subjectively, giving reasons for the possible interpretation that might 
be given to the question by the courts of the other Member States and by the Court 
of Justice when seised of an identical question? 
(b) (…) In order to avoid a probatio diabolica and to allow the specific 
implementation of the circumstances derogating from the obligation to make a 
reference for a preliminary ruling as indicated by the Court of Justice, is it 
sufficient to establish that the question referred for a preliminary ruling 
(concerning the interpretation and correct application of the relevant European 
provision in the specific case) raised in the national proceedings is manifestly 
unfounded, by ruling out the existence of reasonable doubts in that regard, having 
regard, on a purely objective basis – without an enquiry into the specific 
interpretative approach that might be adopted by different courts or tribunals – to 
the terminology and meaning in [EU] law attributable to the words of the 
European provision (relevant in the present case), the European legislative context 
of which it forms part and the safeguarding aims it seeks to fulfil, and having 
regard to the stage of development of European law at the time when the provision 
relevant to the national proceedings is to be applied? 
(c) In order to preserve the constitutional and European values of the 
independence of the courts and to ensure the reasonable duration of legal 
CROCE ROSSA ITALIANA AND OTHERS 
 
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proceedings, may Article 267 TFEU be interpreted as precluding the bringing of 
civil or disciplinary liability proceedings against a national supreme court that has 
examined and rejected a request for a preliminary ruling on the interpretation of 
EU law, either automatically or at the discretion of the party bringing the action? 
(1) Are Articles 1626, 1653, 1668 and 1669 of Legislative Decree No 66 of 
15 March 2010, which provide for the existence of service relationships with a 
public authority with end dates that may be extended several times and may be 
renewed over decades without interruption, compatible with Directive 
1999/70/EC and the principle of the protection of legitimate expectations? 
(2) Are Articles 5 and 6 of Legislative Decree No 178/2012, in so far as they 
provide for a difference in treatment between staff of the same institution in 
continuous service (or service for an indefinite period) and in temporary (or fixed-
term) service, without any legislative provision guaranteeing workers who are in 
temporary service opportunities to retain the working relationship following the 
reorganisation of the body for which they work, compatible with Directive 
1999/70/EC and the principle of non-discrimination? 
Provisions of EU law and EU case-law relied on 
Article 267 TFEU and the relevant case-law of the Court of Justice (in particular: 
judgments in Cases 283/81 and C-561/19) 
Council Directive 1999/70/EC of 28 June 1999 concerning the framework 
agreement on fixed-term work concluded by ETUC, UNICE and CEEP 
(‘Directive 1999/70’), and the relevant case-law of the Court of Justice (in 
particular: judgments in Cases C-53/04, C-180/04 and C-212/04) 
Articles 4 and 5 TEU and the relevant case-law of the Court of Justice (in 
particular: judgments in Cases C-102/10 and C-114/12) 
Article 45(4) TFEU and the relevant case-law of the Court of Justice (in 
particular: judgments in Cases C-460/08, C-405/01, C-283/99 and 149/79) 
Provisions of national law relied on 
Legislative Decree No 165 of 30 March 2001 (‘Legislative Decree 
No 165/2001’) – Articles 1 and 36 
Legislative Decree No 368 of 6 September 2001 – Implementation of Directive 
1999/70/EC concerning the framework agreement on fixed-term work concluded 
by ETUC, UNICE and CEEP (‘Legislative Decree No 368/2001’). 
Law No 296 of 27 December 2006 – Provisions for the determination of the 
State’s annual and multiannual budget (2007 Finance Law) (‘Law 
No 296/2006’) – Article 1.519 
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Legislative Decree No 66 of 15 March 2010 – Code governing the Armed Forces 
(‘Legislative Decree No 66/2010’) – Articles 1626, 1653, 1668 and 1669 
Legislative Decree No 178 of 20 September 2012 – Reorganisation of the Italian 
Red Cross Association (C.R.I.), pursuant to Article 2 of Law No 183 of 
4 November 2010 (‘Legislative Decree No 178/2012’) – Articles 5 and 6 
Succinct presentation of the facts and the main proceedings 
1 The applicants and appellants were members of the temporary staff of the Italian 
Red Cross Military Corps. They were called upon several times to serve with the 
Red Cross, in the context of temporary relationships, until they were placed on 
leave in 2013.  
2 Legislative Decree No 178/2012 had radically reformed the rules governing the 
Italian Red Cross, regulating the transition from its previous classification as a 
non-economic public body to that of an association governed by private law, 
maintaining the tasks performed by the Red Cross and providing for the 
possibility of recall of Military Corps staff for temporary service, up to the 
deadline of 31 December 2013. Article 6(9) of that legislative decree provided 
that fixed-term work contracts in place would be kept in force until a certain date 
(initially 31 December 2013, and subsequently 31 December 2015) to allow for 
the transition to the new system. 
3 That provision was implemented by Order No 53 of the Extraordinary 
Commissioner of the Red Cross of 30 January 2013 and by Order No 514-13 of 
the President of the Red Cross of 27 December 2013, which the applicants 
challenged before the Regional Administrative Court for Lazio, requesting that 
they be annulled in so far as they set the deadline for their recall to service at 
31 December 2013 and provided for their placement on leave, and not for the 
conversion of their temporary service relationship into a continuous relationship 
or the treatment of their legal status in the same way as that of staff taken on for 
an indefinite period. 
4 In July 2014, the Regional Administrative Court for Lazio dismissed the action. 
The applicants have brought an appeal against that judgment before the Consiglio 
di Stato (Council of State). 
5 By written pleadings lodged on 16 April 2022, it was pointed out that only one 
applicant retains an interest in the decision on the appeal. 
The main arguments of the parties to the main proceedings 
6 The applicants base their appeal on three grounds. 
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7 By the first ground of appeal, they dispute the overall interpretation of the rules 
governing the service relationship of the staff of the Italian Red Cross Military 
Corps recalled for temporary service, in particular the failure by the court of first 
instance to assess the difference in treatment in comparison with staff in 
continuous service, in view of the fact that the applicants’ temporary periods of 
employment followed one after the other without interruption. They argue that 
such a difference in treatment infringes clause 4 of the agreement on fixed-term 
work annexed to Directive 1999/70, which affirms the principle of non-
discrimination, in that fixed-term workers may not be treated less favourably than 
comparable permanent workers unless different treatment is justified on objective 
grounds. 
8 Over the years, the Italian Red Cross is alleged to have abused the institution of 
the call-up for temporary service (to which it has had recourse since 1961) in 
order to be able to have the applicants perform the routine institutional duties of 
the organisation, rather than only extraordinary and temporary duties: the 
applicants argue that there has been an abuse of multiple fixed-term assignments 
without interruption, which in fact amounted to genuine continuous service. 
9 The Red Cross did not have a staffing plan, and therefore no competitions could 
be organised; however, over the years, some of the staff who had been recalled for 
a fixed period had been given permanent status through various administrative and 
legislative solutions. 
10 The overall reform of the Red Cross organisation by Legislative Decree 
No 178/2012 did not provide for the conversion of the applicants’ service 
relationships into permanent relationships, contrary to Decree No 368/2001 
implementing Directive 1999/70/EC concerning the framework agreement on 
fixed-term work.  
11 The applicants refer, by way of comparison, to the procedure for converting the 
status of volunteers with the Corpo dei Vigili del Fuoco (Fire Brigade), introduced 
by Law No 296/2006. 
12 By the second ground of appeal, the applicants contend that no detailed 
assessment was carried out to ascertain whether or not various complaints 
concerning national constitutional law were manifestly unfounded. 
13 By the third ground of appeal, the applicants claim that the court of first instance 
failed to consider the request to refer the matter for a preliminary ruling to the 
Court of Justice of the European Union for a determination as to whether the 
military system rules concerning their legal status are compatible with Directive 
1999/70 and the principle of the protection of legitimate expectations. 
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Succinct presentation of the grounds for the request for a preliminary ruling 
14 The referring court takes the view that the substance of the appeal is unfounded as 
regards aspects other than the reference to the Court of Justice for a preliminary 
ruling. 
15 As regards the first ground of appeal, it states the following. 
16 Article 1626 of Legislative Decree No 66/2010 established the Corpo speciale 
volontario (Special Voluntary Corps), auxiliary to the armed forces, enrolled by 
the Red Cross; some of the members of that Corps are called on to perform 
continuous service and others, such as the applicants, are called up for temporary 
service.  
17 Pursuant to Article 5 of Legislative Decree No 178/2012, which comprehensively 
reorganised the Red Cross, the Special Voluntary Corps took the name of the 
Military Voluntary Corps and is made up solely of voluntary staff on military 
leave. 
18 The applicants are military personnel, even though they are not members of the 
armed forces, and they are deployed exclusively on the basis of their availability 
and for that reason are classed as volunteers. Their specific legal status is 
governed by the Code governing the Armed Forces and the recall orders constitute 
acts of enlistment based on temporary needs, assessed in the light of national 
military interest. 
19 The institutions typical of the military employment relationship (that is to say, that 
applicable to those in actual permanent service) cannot be extended to them and, 
in general, the framework agreement on fixed-term work annexed to Directive 
1999/70, which refers to employment in the undertaking and which does not 
contain an express provision for application also to staff governed by public law, 
in particular military personnel, does not apply directly in respect of military 
personnel. The provisions on the freedom of movement for workers within the 
European Union, which constitute the operative part of the framework agreement, 
are not applicable to employment in the public service pursuant to Article 45(4) 
TFEU. That derogation is undoubtedly applicable to the performance of security 
and defence duties, which fall outside the competence of the European Union. In 
that regard, the referring court relies on Articles 4 and 5 TEU, emphasising the 
binding nature of the European Union’s regulatory powers and the principle of 
conferral. In view of the special nature of the tasks entrusted to staff of the armed 
forces and the police, automatic treatment in the same way as civil servants as a 
whole should be ruled out. 
20 The reform of the rules governing the Red Cross by Legislative Decree 
No 178/2012 did not result in any conversion of staff to permanent status. 
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21 Uninterrupted employment of persons with a legal status comparable to that of the 
applicants possibly occurred as a result of mismanagement of the organisation of 
the Red Cross, which was subsequently radically altered.  
22 If volunteers in the Red Cross had considered that uninterrupted recalls to service 
were not in line with the nature of their commitment, they could have refrained 
from continuing their commitment without anyone being able to force them to do 
so. The acceptance of a state of affairs significantly infringing their legal status 
does not legitimise any application for conversion to permanent status on the basis 
of Directive 1999/70 and Legislative Decree No 368/2001, which transposes the 
directive, and in any case there is no provision for such conversion in the reform 
law. In the present case, there was no misuse of a series of fixed-term contracts to 
conceal a substantive contract of indefinite duration; the service relationship arose 
by virtue of voluntary service, which is not legally classified as an employment 
contract. 
23 Even if the staff of the Red Cross Military Corps were to be considered as being 
on a par with staff of the armed forces, it would not be possible to apply the rules 
on the conversion of staff to permanent status contained in Article 1.519 of Law 
No 269/2006, which allow public authorities, under certain conditions, to recruit 
staff on fixed-term contracts, subject to the completion of selection tests, since the 
armed forces are subject, as regards staff recruitment, to special legislation 
applicable to the sector. Consequently, the rules on conversion to permanent status 
laid down in the abovementioned provision cannot be extended to them.  
24 Conversion to permanent status is a procedure of an exceptional nature that 
derogates from the ordinary procedures for admission by competition laid down in 
Article 97 of the Constitution, with the result that the relevant provisions must be 
interpreted strictly and can never permit the conversion to permanent status of 
workers engaged for an indefinite period if they have not first passed public 
selection tests. 
25 The employment relationship with the armed forces is not contractual in nature, 
unlike that of the rest of the civil service, whose employment relationship with the 
public authorities is now governed by private law. 
26 As regards the comparison with the situation of the volunteers with the Fire 
Brigade, the fact that a law was necessary to allow them to be converted to 
permanent status shows that it was not the consequence of their previous 
employment. In the case of the Red Cross reform, the legislature did not deem it 
appropriate to carry out a similar operation, having regard in part to the different 
nature of the Red Cross in comparison with the Fire Brigade. 
27 The rules on conversion to permanent status examined here, contained in 
Article 1.519 of Law No 269/2006, do not conflict with Directive 1999/70 or with 
Legislative Decree No 368/200, which transposes the directive. According to the 
case-law of the Court of Justice (judgments in Cases C-53/04 and C-180/04), the 
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framework agreement on fixed-term work annexed to Directive 1999/70CE must 
be interpreted as ‘not in principle precluding national legislation which, where 
there is abuse arising from the use of successive fixed-term employment contracts 
or relationships by a public-sector employer, precludes their being converted into 
contracts of indeterminate duration, even though such conversion is provided for 
in respect of employment contracts and relationships with a private-sector 
employer, where that legislation includes another effective measure to prevent 
and, where relevant, punish the abuse of successive fixed-term contracts by a 
public-sector employer’. 
28 The national legislation to which that case-law refers is Article 36(2) of 
Legislative Decree No 165/2001, which precludes the breach by public authorities 
of mandatory provisions relating to fixed-term recruitment giving rise to the 
establishment of employment relationships of indefinite duration, ‘without 
prejudice to any liability or sanction’, and without prejudice to the right of the 
worker concerned to receive compensation for damage suffered, with an 
obligation to recover the corresponding sums from the managers responsible if the 
breach is intentional or is the result of grave misconduct. 
29 Article 1.519 of Law No 269/2006 does not conflict with that legislation. Thus, 
according to the referring court, there is an ‘acte clair’ which renders a reference 
for a preliminary ruling unnecessary or not compulsory. 
30 With regard to the second ground of appeal, the referring court considers that the 
plea of unconstitutionality is manifestly unfounded.  
31 The referring court takes the view, however, that it is necessary to clarify the 
scope of the obligation to make a reference for a preliminary ruling incumbent on 
the court of final instance under Article 267 TFEU, in light of the case-law of the 
Court of Justice according to which the obligation to make a reference for a 
preliminary ruling ceases to apply when ‘the correct application of Community 
law may be so obvious as to leave no scope for any reasonable doubt as to the 
manner in which the question raised is to be resolved. Before it comes to the 
conclusion that such is the case, the national court or tribunal must be convinced 
that the matter is equally obvious to the courts of the other Member States and to 
the Court of Justice. Only if those conditions are satisfied may the national court 
or tribunal refrain from submitting the question to the Court of Justice and take 
upon itself the responsibility for resolving it’ (judgment of 6 October 1982 in Case 
283/81, Cilfit and Others, paragraph 16). 
32 In particular, the referring court entertains doubts as to how to reach ‘[the 
conviction] that the matter is equally obvious to the courts of the other Member 
States and to the Court of Justice’ and asks whether, in a case in which a national 
court has examined a request for a reference for a preliminary ruling but has not 
granted that request, Article 267 TFEU precludes that court from being subject 
(either automatically or at the request of the applicant) to civil or disciplinary 
liability proceedings. 
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33 In view of those doubts, and in view of the particular nature of the present case, 
which has not yet been specifically examined by the Court of Justice, the referring 
court considers it necessary to refer the abovementioned questions for a 
preliminary ruling.