Judgment;Summary — ECLI:EU:C:2024:554
Date: 2024-06-27
Language of the case: Italian
Court formation: Sixth Chamber
Subject matter: Approximation of laws;Social Policy;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-41/23 – 1 
Case C-41/23 
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: 
26 January 2023 
Referring court: 
Consiglio di Stato (Italy) 
Date of the decision to refer: 
26 January 2023 
Applicants and appellants: 
AV 
BT 
CV 
DW 
Defendant and respondent: 
Ministero della Giustizia (Italy) 
  
Subject matter of the main proceedings 
Recognition for the applicants, who are magistrati onorari (lay judicial officers), 
(i) of the right to an employment relationship of indefinite duration with the public 
authorities, in particular with the Ministero della Giustizia (Italian Ministry of 
Justice), under the same financial and legal terms as magistrati di ruolo (tenured 
judicial officers), by means of permanent inclusion in the lists of the professional 
judiciary in accordance with their respective length of service; (ii) of the right to 
the payment of remuneration by way of a daily wage proportional to that payable 
to tenured judicial officers, from the date on which each applicant’s employment 
relationship as a lay judicial officer was first established until the conversion of 
that relationship into a full-time and indefinite relationship; (iii) of the right to the 
same welfare and social security treatment as tenured judicial officers, with 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-41/23 
 
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reconstruction of the career and with all the economic and regulatory benefits 
based on length of service for the period prior to entry into the permanent 
position; (iv) in the alternative, of compensation for damages for abuse of 
statutory extensions of the employment relationship. 
Subject matter and legal basis of the request 
Interpretation of 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); 
Interpretation of 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); 
Questions referred for a preliminary ruling 
1) Should Article 7 of Directive 2003/88 and Clause 4 of the framework 
agreement on fixed-term work be interpreted as precluding national legislation 
which does not provide, in respect of giudici onorari di Tribunale (lay district 
court judges) and vice procuratori onorari della Repubblica (lay deputy public 
prosecutors), any entitlement to remuneration during the non-working holiday 
period, or to compulsory social security and insurance protection against 
workplace accidents and illnesses? 
2) Should Clause 5 of the framework agreement on fixed-term work be interpreted 
as precluding national legislation under which the fixed-term employment 
relationship of giudici onorari (lay judges) – which can be classified as a service 
relationship and not as an employment relationship with a public authority, and 
which is based on an initial appointment and a single subsequent reappointment – 
may be extended several times by means of laws at State level, in the absence of 
effective and dissuasive penalties and without the possibility of transforming those 
relationships into employment contracts of indefinite duration with a public 
authority, in a factual situation which could have produced compensatory 
favourable legal effects for the individuals concerned, as their appointments have 
been extended in an essentially automatic manner for a further period of time? 
Provisions of European Union law relied on 
Article 7 of Directive 2003/88; 
Clauses 4 and 5 of the framework agreement annexed to Directive 1999/70. 
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Provisions of national law relied on 
Costituzione (the Italian Constitution), Articles 102 and 106; 
Regio Decreto 30 gennaio 1941, n. 12, Ordinamento giudiziario (Royal Decree 
No 12 of 30 January 1941 on the judiciary); 
Decreto del Presidente della Repubblica 9 maggio 1994, n. 487, recante norme 
sull’accesso agli impieghi nelle pubbliche amministrazioni e le modalità di 
svolgimento dei concorsi, dei concorsi unici e delle altre forme di assunzioni nei 
pubblici impieghi (Presidential Decree No 487 of 9 May 1994 laying down rules 
on access to employment in public authorities and the procedures for holding 
competitive examinations, single competitive examinations and other forms of 
recruitment in public employment); 
Decreto legislativo 28 luglio 1989, n. 273, Norme di attuazione, di coordinamento 
e transitorie del decreto del Presidente della Repubblica 22 settembre 1988, n. 
449, recante norme per l’adeguamento dell’ordinamento giudiziario al nuovo 
processo penale ed a quello a carico degli imputati minorenni (Legislative Decree 
No 273 of 28 July 1989 - Implementing, coordinating and transitional rules of 
Presidential Decree No 449 of 22 September 1988 on rules for the adaptation of 
the judicial system to new criminal proceedings and to criminal proceedings 
against juvenile defendants); 
Decreto legislativo 30 marzo 2001, n. 165, Norme generali sull’ordinamento del 
lavoro alle dipendenze delle amministrazioni pubbliche (Legislative Decree 
No 165 of 30 March 2001 on general rules on the organisation of employment in 
public authorities). 
Succinct presentation of the facts and procedure in the main proceedings 
1 The four applicants have been holding positions as lay judicial officers (lay judges 
in the district courts or lay deputy prosecutors with the Public Prosecutor’s Office) 
for several years. These appointments were first granted, for a fixed term, by 
resolution of the Consiglio superiore della magistratura (Supreme Council of the 
Judiciary, Italy) and by ministerial order of the Minister for Justice, and then 
repeatedly extended every three years. At the time the action was brought at first 
instance, the applicants’ careers amounted, respectively, to 21 years and two 
months, 17 years and six months, 18 years, and 17 years and four months. All the 
applicants are still in service. 
2 According to the applicants, the repeated extensions of their fixed-term 
employment relationship are contrary to several provisions of EU law, in 
particular Clauses 4 and 5 of the framework agreement annexed to Directive 
1999/70 and Article 7 of Directive 2003/88. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-41/23 
 
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3 On 23 March 2016, with the aim of obtaining recognition of their right to an 
employment relationship of indefinite duration with the public authorities, with all 
that that entails in terms of remuneration and welfare and social security 
entitlements, the applicants lodged an action before the Tribunale amministrativo 
regionale per il Lazio (Lazio Regional Administrative Court; ‘the TAR Lazio’). In 
the alternative, the applicants requested compensation for the damage resulting 
from the abuse of extensions of the employment relationship. 
4 In a judgment of 1 September 2021, the TAR Lazio dismissed that action. 
5 That judgment was appealed by the applicants before the Consiglio di Stato 
(Council of State, Italy), the referring court. Among their grounds of appeal, the 
applicants allege that the TAR Lazio committed an error of law in finding that 
questions of interpretation of EU law were irrelevant. 
6 In the context of the main proceedings, AV and BT submitted to the file a 
complaint they had submitted to the European Commission in 2015, registered 
under number 7779/15/EMPL, in which they asked it to verify the compatibility 
with European law of the legal and economic situation of lay judicial officers. 
According to the reply those applicants received from the Commission, ‘the 
national legislation and practice concerning lay judicial officers raises a question 
of compatibility with Clauses 4 and 5 of the framework agreement annexed to 
Directive [1999/70] and with the right to paid annual leave laid down in Article 7 
of Directive [2003/88]’. 
The essential arguments of the parties in the main proceedings 
7 The applicants claim that their financial and legal treatment should be equal to 
that of ordinary professional judicial officers. They also seek the stabilisation of 
their employment relationship, as they feel they have suffered the detrimental 
effects of the unlawful and repeated extension of their appointment orders. 
8 According to the Ministry of Justice (the defendant), the legal and economic 
position of professional judicial officers cannot be automatically extended to their 
lay counterparts, since the former exclusively perform judicial functions, while the 
latter do so only concurrently with another profession. Moreover, the role of lay 
judge is unavoidably temporary in nature, is carried out in such a way as to ensure 
compatibility with the pursuit of various work or professional activities, and does 
not entail a public employment relationship. 
9 This interpretation is also consistently followed by the case-law of the Suprema 
Corte di Cassazione (Supreme Court of Cassation, Italy). 
Succinct presentation of the reasoning in the request for a preliminary ruling 
10 The referring court first sets out the relevant Italian legislation. 
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11 Article 106 of the Italian Constitution, after enshrining the principle that ‘judicial 
officers shall be appointed by means of competitive examination’, provides that 
‘the law governing the judicial system may admit the appointment, including by 
means of election, of lay judicial officers for the performance of all functions 
carried out by individual judges’. 
12 In that regard, Royal Decree No 12 of 30 January 1941 on the judiciary, in the 
version applicable to the facts of the case, contained certain provisions regulating 
the appointment of lay judicial officers – who, unlike ordinary judicial officers, 
are not selected by means of a public competitive examination – and regulating 
the performance of their duties and their legal and financial treatment. 
13 In particular, Article 42 ter of that royal decree provided that ‘lay district court 
judges shall be appointed by order of the Minister for Justice, in accordance with a 
resolution of the Supreme Council of the Judiciary’. 
14 In addition, Article 42 quater of the same royal decree provided that ‘lawyers and 
interns admitted to providing legal representation may not practice the legal 
profession before courts in the district in which they sit as lay judge and may not 
represent or defend parties at subsequent stages of proceedings before those 
courts’. 
15 Under Article 42 quinquies of the same royal decree, ‘lay district court judges 
shall be appointed for a term of three years. Upon expiry of that term, the office 
holder may be reappointed only once’. 
16 Lastly, Article 42 septies of the Royal Decree provided that ‘… lay judges shall be 
entitled only to the allowances and other rights expressly conferred by law with 
specific reference to the lay service relationship’. 
17 As regards, on the other hand, lay deputy public prosecutors, Article 71 of the 
aforementioned royal decree provided that those prosecutors ‘shall be appointed in 
the manner provided for the appointment of lay district court judges’. 
18 The legislation in force also provides, in summary, as regards jurisdiction, that lay 
judicial officers may only be entrusted with civil or criminal cases of minor 
importance and, as regards remuneration, that this be in the form of a daily 
allowance, also based on the number of hearings held or hours worked. 
19 The referring court then referred to the judgments of the Court of Justice of 
16 July 2020, UX, C-658/18 (EU:C:2020:572), concerning the legal and economic 
status of Italian giudici di pace (magistrates), and of 7 April 2022, PG, C-236/20 
(EU:C:2022:263), concerning the liability of the Italian State for its failure to 
grant paid leave to magistrates. 
20 The referring court considers that those judgments are also applicable in the main 
proceedings, having regard to the common lay nature of the services performed by 
magistrates, lay district court judges and lay deputy public prosecutors. 
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21 It noted, however, that under domestic law, according to the settled case-law of 
both the Corte Costituzionale (Constitutional Court, Italy) and the Supreme Court 
of Cassation, the legal and economic position of professional judicial officers 
cannot be automatically extended to lay judicial officers, since the former 
exclusively exercise judicial functions, while the latter do so only concurrently 
with other activities. 
22 Moreover, unlike professional judicial officers, the function of lay judicial officer 
is temporary in nature, is carried out in such a way as to ensure compatibility with 
the pursuit of different work or professional activities and does not entail a public 
employment relationship. 
23 Indeed, in addition to the different recruitment methods and the non-exclusive and 
non-continuous nature of the judicial activity carried out, the difference in 
treatment is based on the temporary duration of the service relationship, the 
various limitations provided for by law as regards the type of disputes and the 
level of complexity of the cases dealt with and, lastly, the different remuneration 
regime (being one based on allowances rather than salary) that it entails. 
24 Such difference in treatment is therefore not discriminatory, but justified by 
autonomous and objective considerations. 
25 Indeed, domestic law distinguishes between an employment relationship and a 
service relationship: the former refers to the establishment of an employment 
relationship with the public administration (whether of indefinite duration, fixed-
term or part-time), while the latter refers to the conferral of a function, on the 
basis of a provision of law or by an act of the public administration, without this 
necessarily entailing the establishment of an employment relationship. 
26 So, while civil servants, including professional judicial officers, establish both 
those legal relationships with the public administration, lay judicial officers only 
establish a service relationship with it. 
27 This is also reflected in the wording of Article 4 of the royal decree, emphasised 
by the referring court, according to which professional judicial officers 
‘constitute’ the judicial order, whereas lay judges ‘belong’ to it. 
28 The use of such different terminology is neither insignificant nor random, but 
expresses on a substantive level, even before the legal one, the reasons why these 
are different categories of individual with different legal and economic statuses 
which are not comparable. 
29 Professional judges are necessarily attached to the ordinary courts, whereas lay 
judges can be attached to those courts only when professional judges are 
prevented from attending or are absent. 
30 The fact that lay judges have duties similar to those of professional judges is only 
a consequence of the function performed, as judicial activity must always be 
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characterised by the same guarantees, regardless of the status of the judge 
exercising that activity. 
31 It is therefore a question of a merely functional extension of duties that serve to 
ensure respect for the principles of impartiality and independence which 
characterise the exercise of any judicial function. 
32 The Constitutional Court, in judgment No 267/2020 of 9 December 2020, 
referring to the function actually performed by giudici onorari di pace (lay 
magistrates), recognised their right to benefit from the reimbursement of any legal 
expenses incurred, on the grounds that this benefit ‘does not relate to the 
employment relationship […] but to the service relationship’ and that ‘in view of 
the fact that the judging function is identical, and in view of its primary 
importance in the constitutional framework, it is unreasonable that the 
reimbursement of legal expenses should be a benefit recognised by law only for 
giudici togati (professional judges) and not also for magistrates, where for both 
there is, with equal significance, the need to ensure a serene and impartial activity, 
not conditioned by the financial risks connected with possible even if unfounded 
liability lawsuits’. 
33 The referring court deduces from the foregoing that the different legal and 
economic treatment of lay judges compared with ordinary professional judges (i) 
responds to objective and transparent requirements and is justified by precise and 
concrete factors distinguishing between the conditions of service of the two 
categories of individual; (ii) meets a real need, considering the nature, quality and 
quantity, including in terms of hours, of the participation in the judicial function, 
the specific tasks for which the judges assume responsibility and the different 
level of qualifications required for the performance of those tasks; (iii) is suitable 
for achieving the legitimate social-policy objective of the Member State, in a 
proportionate manner and to the extent strictly necessary; (iv) is not intended to 
impose detrimental or discriminatory conditions of employment. 
34 It therefore considers that, due to lack of relevance, the conditions are not met for 
referring to the Court for a preliminary ruling the first two of the applicants’ 
claims (the right to an employment relationship of indefinite duration and the right 
to payment of remuneration on the basis of a daily wage commensurate with that 
payable to a professional judicial officer). 
35 It doubts, however, the compatibility with EU law of the national legislation on 
conditions of employment, in so far as it totally excluded lay judges from any 
entitlement to paid leave and from any form of welfare and social security 
protection (the first question referred for a preliminary ruling). 
36 In that regard, it refers, on the one hand, to the case-law of the Court of Justice 
recalled above in paragraph 17, and, on the other, to the fact that the provisions at 
issue in the main proceedings were repealed by Legislative Decree No 116 of 
13 July 2017, Riforma organica della magistratura onoraria e altre disposizioni sui 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-41/23 
 
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giudici di pace, nonché disciplina transitoria relativa ai magistrati onorari in 
servizio (Comprehensive reform of the system of lay judicial officers and other 
provisions on magistrates, as well as transitional rules on serving lay judicial 
officers), pursuant to legge 28 aprile 2016, n. 57 (Law No 57 of 28 April 2016). 
37 That legislative decree has afforded lay judicial officers social security and 
welfare protection, providing for both the right to remuneration during the non-
working holiday period and compulsory social security and insurance protection 
against workplace accidents and illnesses. In the referring court’s view, this may 
have provided a valid remedy, applicable thenceforth, to what is in fact an 
unjustified, excessive and disproportionate critical element of the rules still 
applicable, ratione temporis, to the main proceedings. 
38 Moreover, according to the same court, the provisions of Legislative Decree No 
116 could be applied by analogy in the main proceedings. 
39 Lastly, the referring court doubts the compatibility with EU law of the national 
rules relating to the number of successive renewals, in a situation in which (i) the 
employment relationship that lay judges establish with the judicial authority is a 
fixed-term relationship that can be classified as a service relationship, not as a 
public employment relationship, and which is based on an initial appointment and 
a single subsequent reappointment, and (ii) no deterrent preventive measures or 
effective sanctions are provided for against the public authorities and, indeed, the 
possibility of transforming the employment relationship into a public employment 
relationship of an indefinite duration is excluded (the second question referred). 
40 In particular, this doubt also relates to the reasons put forward by the State 
legislator in support of the repeated reappointments, which are centred on the need 
to await a comprehensive reform of the lay judiciary and to ensure the continuity 
of the administration of justice pending that reform. The referring court questions 
whether those reasons can be characterised as objective and transparent, and as 
coming within the discretion of the social policy objectives of the Member States 
which may justify the use of the extension instrument. 
41 Lastly, the referring court emphasises that the factual situation that may be created 
for lay judicial officers as a result of the application of the legislation currently in 
force may also have produced compensatory favourable effects as regards their 
legal position, inasmuch as their appointments were extended in time in an 
essentially automatic manner.