Judgment — ECLI:EU:C:2024:900
Date: 2024-10-17
Language of the case: Italian
Court formation: Seventh Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-322/23 – 1 
Case C-322/23 (Lufoni) 1 
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:  
24 May 2023 
Referring court:  
Tribunale di Lecce (Italy) 
Date of the decision to refer:  
22 May 2023 
Applicant:  
ED 
Defendants:  
Ministero dell’Istruzione e del Merito (formerly MIUR) 
Istituto Nazionale della Previdenza Sociale (INPS) 
Subject matter of the main proceedings 
Application for a declaration of the applicant’s right to recognition of the length of 
service completed during the period of service prior to the date of the applicant’s 
recruitment to the permanent staff, under several fixed-term contracts, with effect 
from the respective start dates. The applicant claims to be discriminated against by 
the application to him of a flat-rate calculation mechanism for periods of service 
before being admitted to the permanent staff. 
Subject matter and legal basis of the reference 
Reference for a preliminary ruling under Article 19(3) TEU and Article 267 
TFEU, for the interpretation of clause 4 of the Framework Agreement on fixed-
term work, concluded on 18 March 1999 (‘the Framework Agreement’), which is 
annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the 
 
1 The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-322/23 
 
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framework agreement on fixed-term work concluded by ETUC, UNICE and 
CEEP (OJ 1999 L 175, p. 43). 
Questions referred for a preliminary ruling 
(1) Does clause 4 (of the Framework Agreement) of Directive 99/70 preclude 
national legislation such as Articles 485 and 489 of Legislative Decree 
No 297/1994, Article 11(14) of Law No 124/99 and Article 4(3) of Presidential 
Decree No 399/88, which provide for the length of service prior to becoming a 
permanent member of staff, taking into account the aforementioned 
Article 11(14), to be counted in full only for the first four years and, for the 
subsequent years, at a rate of two thirds for legal and salary purposes and of the 
remaining one-third solely for salary purposes and after reaching a certain length 
of service as provided for by Article 4(3) of Presidential Decree No 399/88? 
(2) In any event, for the purposes of assessing whether there is discrimination 
under clause 4 (of the Framework Agreement) of Directive 99/70, must the 
national court take account only of the length of service prior to becoming a 
permanent member of staff recognised at the time of admittance to the permanent 
staff, or, on the contrary, must it take account of the entire body of rules 
concerning the treatment of that length of service and thus also of the rules which 
provide, in periods following admittance to the permanent staff, for full recovery 
of length of service for salary purposes only? 
Provisions of EU law and EU case-law cited 
Clauses 1 to 4 of the Framework Agreement. 
Judgments of 20 September 2018, Motter (Case C-466/17, ECLI:EU:C:2018:758), 
and of 18 October 2012, Valenza and Others (Joined Cases C-302/11 to C-305/11, 
EU:C:2012:646). 
Provisions of national law cited 
Decreto legislativo del 16 aprile 1994, n. 297 - Approvazione del testo unico delle 
disposizioni legislative vigenti in materia di istruzione, relative alle scuole di ogni 
ordine e grado (Legislative Decree No 297 of 16 April 1994 - Consolidated Law 
incorporating legislative provisions on education relating to schools of every type 
and level) (Ordinary Supplement No 79 to GURI No 115 of 19 May 1994): 
Article 485(1) ‘The periods of service completed by teaching staff under fixed-
term contracts at state and equivalent secondary and art schools, including those 
located abroad, shall be recognised as periods of permanent employment for legal 
and salary purposes, in full for the first four years and at a rate of two thirds for 
any period thereafter, and at a rate of the remaining one-third solely for salary 
LUFONI 
 
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purposes. The financial rights stemming from such recognition are preserved and 
taken into account in all pay grades subsequent to the grade assigned at the time of 
recognition’. 
Article 489(1): ‘For the purposes of the recognition referred to in the preceding 
articles, teaching service shall be deemed to be a full school year if it has been of 
the duration laid down for the purposes of the validity of the year by the education 
system in force at the time of performance’. 
Legge del 3 maggio 1999, n. 124 - Disposizioni urgenti in materia di personale 
scolastico (Law No 124 of 3 May 1999 – urgent measures concerning school 
staff) (GURI No 107 of 10 May 1999): 
Article 11(4): ‘Article 489(1) of the consolidated law is to be understood as 
meaning that temporary teaching services carried out since the 1974/75 academic 
year are treated as a full academic year if they were provided for at least a 
minimum of 180 days or if they were carried out continuously from 1 February 
until the end of the final grading process’. 
Decreto del Presidente della Repubblica del 23 agosto 1988, n. 399 - Norme 
risultanti dalla disciplina prevista dall’accordo per il triennio 1988-1990 del 9 
giugno 1988 relativo al personale del comparto scuola (Decree of the President of 
the Republic No 399 of 23 August 1988 – rules resulting from the provisions laid 
down in the Agreement for the three-year period 1988-1990 of 9 June 1988 
concerning staff in the schools sector) (Ordinary Supplement No 85 to GURI 
No 213 of 10 September 1988): 
Article 4(3): ‘On completion of the 16th year for graduate teachers of higher 
secondary school, the 18th year for administrative coordinators, nursery and 
primary school teachers, middle school teachers and for teachers of higher 
secondary school who have a secondary school diploma, the 20th year for 
auxiliary staff and assistants, the 24th year for teachers of music conservatoires 
and academies, the length of service for salary purposes alone shall be fully valid 
for allocating subsequent salary levels’. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant has been a permanent employee of MIUR as a secondary school 
teacher since 1 September 2015. The applicant was not recruited by means of a 
public competition, but by drawing on a list of suitable candidates. Previously, he 
worked as a teacher on short and ad-hoc contracts (17, of which 14 lasted longer 
than one semester), from the school year 1996/97 to the school year 2014/15. 
Once he was confirmed as a permanent member of staff, the applicant requested 
that the period of fixed-term service he had carried out be included in his length of 
service for the purposes of his classification in the appropriate salary grade and 
recovery of the difference in remuneration (‘career reconstruction’ procedure). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-322/23 
 
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2 National legislation allows only partial recognition of service prior to becoming 
permanent, with a penalty in salary progression. In order to determine the salary 
grade due at the time of admittance to the permanent staff, of the periods of fixed-
term work, only the first four years, plus two thirds of the years subsequently 
worked, are taken into account, whereas the remaining one third is relevant only at 
a later stage in the calculation of the total length of service. Any period of 
teaching completed prior to becoming permanent for the minimum duration laid 
down by law is to be considered a (full) year of service; shorter periods are 
disregarded. 
3 The application of the internal rules led to the recognition of the applicant’s 
service prior to becoming permanent valid for legal and salary purposes, and 
therefore for the purposes of initial salary classification, of 10 years, 5 months and 
10 days, plus a further period of 3 years, 2 months and 20 days (corresponding to 
the remaining one third of length of service) valid for salary purposes only, to be 
added to the applicant’s length of service on completion of the 16th year of 
service (including prior to becoming permanent). 
4 On the basis of clause 4 of the Framework Agreement, the applicant considers that 
that calculation is discriminatory in so far as, if the service provided were 
considered in its entirety, as is the case for comparable teachers recruited on a 
permanent basis from the outset, this would result in length of service, at the date 
of admittance to the permanent staff, of 10 years, 10 months and 17 days. The 
applicant therefore seeks recognition, reassessment and payment of the higher 
entitlement. 
Principal arguments of the parties in the main proceedings 
5 The applicant relies on the equal economic treatment of permanent and temporary 
staff, as provided for in clause 4 of the framework agreement and the settled case-
law of the Court of Justice. The applicant focuses, in particular, on the judgment 
in Motter and the principle of law which the Corte di cassazione (Supreme Court 
of Cassation, Italy) derived from it (judgment No 31149/2019), according to 
which the mechanism established by Articles 485 and 489 of Legislative Decree 
No 297/94 must be disregarded if it would lead to the recognition, as regards a 
fixed-term worker, of a shorter length of service than that which a teacher 
recruited from the outset on a permanent basis would accrue for the same function 
in the same period of time. According to the Court of Cassation, the verification of 
discrimination must be conducted on a case-by-case basis, by carrying out a 
double calculation – actual and theoretical – of length of service at the time 
admittance to the permanent staff and applying the most advantageous calculation. 
It is precisely as a result of such a ‘specific comparison’ that the applicant claims 
a length of service, at the date of admittance to the permanent staff, of almost 
5 months longer. 
LUFONI 
 
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Succinct presentation of the reasoning in the reference for a preliminary 
ruling 
6 The referring court asks the Court whether the ‘case-by-case’ method developed 
in the judgment of the Court of Cassation No 31149/2019 is fully consistent with 
the principles laid down in that regard by EU case-law. In the Motter judgment 
cited above, in particular, the Court has indeed already held that clause 4 of the 
Framework Agreement does not in principle preclude national legislation which, 
for the purposes of length of service, takes account, for workers admitted to the 
permanent staff on the basis of qualifications, of the first four years of fixed-term 
service in full and, after beyond that limit, to the extent of two thirds. 
7 With respect to the Motter case, the factual and legal situation, the conditions of 
relevance and admissibility, and the objective requirements put forward by the 
Italian Government remain unchanged. The need to make this reference for a 
preliminary ruling arises in order to bring to the Court’s attention also the 
provisions of Article 4(3) of Presidential Decree No 399/88, which had not been 
mentioned at all, and those of Article 11(14) of Law No 124/99, which were 
mentioned only incidentally. The objective justification for the unequal treatment 
complained of by the applicant could also lie in the subsequent recovery, on 
completion of the 16th year of his career, of the length of service accrued, 
pursuant to Article 4(3) of Presidential Decree No 399/88. In addition, under 
Article 11(14) of Law No 124/99, the applicant has had various teaching periods 
prior to becoming permanent recognised as full years of service, for fractions of 
time considerably shorter than a year, and with different weekly working hours. 
8 The non-application of the mechanism established by Articles 485 and 489 of 
Legislative Decree No 297/94 cannot be partial or result in the application to the 
worker recruited on a fixed-term basis of rules which are different from those 
from which the comparable worker recruited on a permanent basis can benefit. 
Consequently, by applying the method of calculation proposed by the Court of 
Cassation, the applicant would lose the right to the calculation of non-full years 
under Article 11(14) of Law No 124/99, which is intended specifically for fixed-
term teachers, and would also lose recovery of the length of service under 
Article 4(3) of Presidential Decree No 399/88, in so far as it is linked to the 
mechanism for reducing the number of years prior to becoming permanent 
following the fourth. The question is therefore whether the approximately five 
months of actual length of service lost at the time of the applicant’s first salary 
grading in the permanent post are, actually and adequately, compensated by the 
three years, two months and 20 days’ length of service resulting from the 
theoretical calculation, which may be fully recovered in possible future and 
potentially different circumstances from those of another individual. 
9 In such a situation, the method drawn up by the Court of Cassation would not 
necessarily lead to more favourable results for a fixed-term worker than for those 
ensured by the legislation regarded as discriminatory, but could, on the contrary, 
have an unfavourable effect taking into account the entire working life. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-322/23 
 
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In the judgment in Valenza and Others, the Court has already held that the non-
permanent nature of the employment relationship cannot justify disparities in the 
calculation of the length of service acquired. The referring court therefore asks the 
Court what is the decisive moment for the assessment of discrimination.