Opinion of the Advocate General — ECLI:EU:C:2024:187
Date: 2024-02-29
Language of the case: Italian
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Italy

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:  
18 August 2022 
Referring court:  
Giudice di pace di Fondi (Italy) 
Date of the decision to refer:  
18 August 2022 
Applicant:  
M. M. 
Defendants:  
Presidenza del Consiglio dei Ministri 
Ministero della Giustizia 
Ministero dell’Economia e delle Finanze 
  
Subject matter of the main proceedings 
Action before the Giudice di pace (Magistrate) by which the applicant, an 
honorary judge attached to a Procura della Repubblica italiana (Italian public 
prosecutor’s office), has requested, because of the failure to transpose Directives 
1999/70/EC, 2003/88/EC and 92/85/EEC, that the defendants be ordered to pay 
higher amounts for the work carried out by the applicant as a honorary deputy 
prosecutor given the difference in pay rates and as compensation for the difference 
in treatment suffered in comparison with professional judges in relation to 
severance payments, maternity, sickness and accident benefits, pension and 
welfare benefits, and recognition of a period of paid annual leave. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-548/22 
 
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Subject matter and legal basis of the request 
Interpretation of Article 288 TFEU, Articles 17, 31, 34 and 47 of the Charter of 
Fundamental Rights of the European Union, and Article 7 of Directive 
2003/88/EC, Clause 4 of the Framework Agreement on part-time work, concluded 
on 6 June 1997, which is annexed to Directive 97/81/EC, as amended by Directive 
98/23/EC, and Clause 4 of the Framework Agreement on fixed-term work, 
concluded on 18 March 1999, which is annexed to Directive 1999/70/EC. The 
referring court has doubts, in particular, as to the compatibility with EU law of the 
Italian legislation establishing that, in the case where a honorary judge submits an 
application to take part in stabilisation procedures, formally implementing Clause 
5(1) of the abovementioned Framework Agreement on fixed-time work, or 
receives a payment that is inadequate and disproportionate in relation to the 
damage suffered as a result of the failure to transpose the directives in question, 
that judge must automatically waive all claims concerning the implementation of 
those directives.  
Question referred for a preliminary ruling 
Must Article 288 of the Treaty on the Functioning of the European Union, 
Articles 17, 31, 34 and 47 of the Charter of Fundamental Rights of the European 
Union, and Article 7 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, Clause 4 of the Framework Agreement on part-time work, 
concluded on 6 June 1997, which is annexed to Council Directive 97/81/EC of 
15 December 1997 concerning the Framework Agreement on part-time work 
concluded by UNICE, CEEP and the ETUC, as amended by Council Directive 
98/23/EC of 7 April 1998, and Clause 4 of the Framework Agreement on fixed-
term work, concluded on 18 March 1999, which is annexed to Council Directive 
1999/70/EC of 28 June 1999 concerning the Framework Agreement on fixed-term 
work concluded by ETUC, UNICE and CEEP, be interpreted as meaning that 
those provisions preclude a national provision, such as that laid down in Article 29 
of [decreto legislativo 13] luglio 2017, n. 116 ([Legislative Decree No 116 of 13] 
July 2017), as replaced by Article 1(629) of Legge 30 dicembre 2021, n. 234 (Law 
No 234 of 30 December 2021), which provides for the automatic waiver by law of 
all claims concerning the implementation of the abovementioned directives, with 
the loss of all other remuneration, employment and social welfare benefits 
guaranteed by European law: 
- in the case where an honorary judge, as a fixed-term, part-time European 
worker comparable to a professional judge classified as a permanent, full-time 
European worker, merely submits an application to participate in stabilisation 
procedures that only formally implement Clause 5(1) of the Framework 
Agreement on fixed-term work, concluded on 18 March 1999, which is annexed 
to Directive 1999/70, 
PRESIDENZA DEL CONSIGLIO DEI MINISTRI AND OTHERS 
 
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- or, if these procedures are not successfully concluded or no application is 
submitted, with the receipt of a payment in an amount that is manifestly 
inadequate and disproportionate in relation to the damage suffered as a result of 
the failure to transpose those directives? 
Provisions of EU law cited 
Article 288 TFEU. 
Charter of Fundamental Rights of the European Union, Articles 17, 31, 34 and 47. 
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, 
in particular Article 7. 
Framework Agreement on part-time work, concluded on 6 June 1997, which is 
annexed to Council Directive 97/81/EC of 15 December 1997 concerning the 
Framework Agreement on part-time work concluded by UNICE, CEEP and the 
ETUC, as amended by Council Directive 98/23/EC of 7 April 1998, in particular 
Clause 4. 
Framework Agreement on fixed-term work, concluded on 18 March 1999, which 
is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the 
Framework Agreement on fixed-term work concluded by ETUC, UNICE and 
CEEP, in particular Clause 4 and Clause 5(1). 
Provisions of national law cited 
Article 4(43) of legge del 12 novembre 2011, n. 183 (Law No 183 of 
12 November 2011): ‘The time-barring of claims for damages arising from the 
failure to transpose directives or other mandatory EU measures into the Italian 
legal framework shall, in any event, be subject to the provisions of Article 2947 of 
the Civil Code and shall run from the date of actual occurrence of the event from 
which the rights would have arisen if the directive had been transposed in good 
time.’ 
Article 29(1), (2), (3) and (5) of Legislative Decree No 116 of 13 July 2017, as 
replaced by Article 1(629) of Law No 234 of 30 December 2021: ‘1. Honorary 
judges in service on the date on which this decree enters into force may be 
confirmed in their posts on request until their 70th birthday. 2. Honorary judges in 
service on the date when this decree enters into force who do not qualify for 
confirmation, either because they do not submit an application or because they do 
not pass the assessment procedure referred to in paragraph 3, shall be entitled, 
subject to their right to refuse, to a payment of EUR 2 500 before tax for each year 
of service during which the judge has been engaged in hearings for at least 
80 days, and to a payment of EUR 1 500 before tax for each year of service during 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-548/22 
 
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which the judge has been engaged in hearings for fewer than 80 days, and in any 
case up to a total per capita limit of EUR 50 000 before tax. For the purpose of 
calculating the payment due under the preceding sentence, service for periods 
exceeding six months shall be deemed equal to one year. Receipt of the payment 
entails a waiver of all further claims of any nature whatsoever arising from the 
terminated honorary relationship. 3. For the purposes of the confirmation referred 
to in paragraph 1, the Consiglio superiore della magistratura (Supreme Council of 
the Judiciary) shall pass a resolution to hold three separate assessment procedures 
each year in the three-year period 2022-2024. These shall cover serving honorary 
judges who have completed the following on the date on which this decree enters 
into force: (a) more than 16 years of service; (b) between 12 and 16 years of 
service; and (c) fewer than 12 years of service … 5. The application to participate 
in the assessment procedures referred to in paragraph 3 entails the waiver of all 
further claims of any nature whatsoever arising from the previous honorary 
relationship, except for the right to the payment referred to in paragraph 2 in the 
event of non-confirmation.’ 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant is an honorary judge with prosecutorial functions working as an 
honorary deputy prosecutor attached to an Italian public prosecutor’s office. She 
has participated as a representative of the public prosecutor’s office in 10 criminal 
hearings, with regard to the subject matter of the main proceedings. 
2 For attending each criminal hearing, the applicant received a payment of EUR 98 
from the defendants – the Ministero della Giustizia (Ministry of Justice) and the 
Ministero dell’Economia e delle Finanze (Ministry of Economy and Finance). 
Taxes were deducted from these sums and no social security or welfare 
contributions were paid, with the applicant having to pay these contributions at 
her own expense to the relevant institutions. 
3 The applicant has the same legal and economic status as the corresponding 
honorary judges with adjudicative functions, namely honorary magistrates, in 
accordance with Article 1 of Legislative Decree No 116 of 13 July 2017. 
4 It appears from the documents in the case file that the applicant is in a position 
comparable to that of an ordinary judge carrying out the same prosecutorial 
activity: in particular, the applicant carries out investigative activities in criminal 
proceedings handled by the public prosecutor’s office and participates in criminal 
hearings before the ordinary courts and before magistrates. 
5 According to the statutory legal provisions and administrative requirements, as 
documented by the applicant, for a professional judge, as a permanent, full-time 
European worker comparable to an honorary judge as a fixed-term, part-time 
European worker, the equivalent gross daily rate of remuneration amounts to 
approximately EUR 248, in addition to the social welfare charges that the State 
pays to the competent institutions for each professional judge. 
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6 By an order of the Tribunale ordinario di Roma (Court of Rome) of 13 January 
2021, the Presidenza del Consiglio dei Ministri (Prime Minister’s Office) has 
already been ordered to pay compensation for pecuniary and non-pecuniary 
damage caused to the applicant by the failure to transpose: 
- Directive 1999/70/EC on fixed-term work, in so far as it restricts successive 
fixed-term assignments for a single worker and in so far as it prohibits different 
treatment in comparison with professional judges in relation to severance 
payments, maternity, sickness and accident benefits, and pension and welfare 
benefits, and coverage against workplace accidents and illnesses; 
- Directive 2003/88/EC, in so far as it recognises a period of paid annual 
leave; 
- Directive 92/85/EEC on the introduction of measures to encourage 
improvements in the safety and health at work of pregnant workers and workers 
who have recently given birth or are breastfeeding. 
7 To date, no sum has been paid to the applicant in relation to that compensation, 
and the proceedings for quantification are pending before the Tribunale ordinario 
di Roma (Italy). 
8 By her action before the Giudice di pace, the referring court in this case, the 
applicant is requesting that the defendants be ordered to pay a further EUR 150 for 
each hearing in which she participated, by way of compensation for the continued 
failure to transpose the abovementioned European directives, even after the order 
described above had been issued. 
The essential arguments of the parties in the main proceedings 
9 The applicant states that she has held the office of honorary judge with 
prosecutorial functions continuously since 4 April 2001 and was confirmed in that 
post or that employment was repeatedly extended by law until 31 May 2024. 
10 The applicant states that she was compelled to submit an application to take part 
in a stabilisation assessment procedure by the age of 70, in accordance with 
Article 29 of Legislative Decree No 116 of 13 July 2017, as replaced by 
Article 1(629) of Law No 234 of 30 December 2021, in order to avoid immediate 
termination of service as an honorary judge on 28 June 2022. 
11 According to that same legal provision, this form of ‘stabilisation’ was approved 
by the Italian Parliament in order to ‘meet supranational demands’, with reference 
to infringement procedure INFR(2016)4081 pending before the European 
Commission against the Italian State for its failure to transpose the 
abovementioned directives, with the letter of formal notice against Italy having 
been issued on 15 July 2021. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-548/22 
 
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12 According to that national legislation, an application to participate in the 
‘stabilisation’ assessment procedures entails the waiver of all further claims of any 
kind arising from the honorary relationship. 
13 Alternatively, honorary judges have the possibility of leaving the service with 
payment of a gross amount of EUR 1 500 for each year of honorary service 
rendered (EUR 2 500 gross per year if the honorary judge was engaged in court 
hearings for 80 days or more), up to a maximum limit of EUR 50 000 before tax 
deductions. 
14 Receipt of this severance payment also entails the waiver of all further claims of 
any nature whatsoever arising from the honorary relationship, both where a judge 
does not submit an application and where that judge does not successfully pass the 
assessment procedure. 
15 The only alternative, in order to avoid waiving any further claims, is to leave the 
service without receiving any final payment. 
16 The applicant claims that this national legislation is contrary to EU law, in 
particular with regard to the obligation of States to transpose directives and with 
regard to the compensatory consequences for the individuals concerned arising for 
States when they fail to transpose directives. 
17 The applicant takes the view that the obligation to transpose European directives 
and the State’s consequent obligation to pay compensation if such directives are 
not transposed make it incumbent on the court seised to disapply national 
legislation that contravenes EU law, since under the pretext of an apparent 
‘stabilisation’ – which is in reality entirely uncertain – as a deterrent measure 
against the State intended to prevent successive appointments of honorary judges 
for more than 36 months, the State has imposed a waiver of all other claims 
against it, including claims for damages for failure to transpose any other directive 
protecting European part-time and fixed-term workers, which include provisions 
prohibiting wage discrimination, the obligation to guarantee 30 days of paid 
annual leave and the obligation to provide ordinary social welfare institutions. 
18 In essence, according to the applicant, the submission of an application to 
participate in the assessment procedures – as far as the present case is concerned – 
would entail the legal waiver of all other claims, including claims for 
compensation in respect of failure to transpose EU law. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
19 In the view of the referring court, it is necessary to determine whether national 
law is compatible with EU law, since – should it be held to be incompatible – that 
court would have to find that EU law precludes the national legislation described 
above, which deprives the applicant of the abovementioned rights that are the 
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subject matter of the civil proceedings in which this request for a preliminary 
ruling has been made. 
20 The referring court notes that the European Commission has opened infringement 
procedure INFR(2016)4081 against Italy for infringement of the abovementioned 
directives. Indeed, the letter of formal notice of infringement of the 
abovementioned directives was sent to the Italian Republic on 15 July 2021 and 
an additional letter of formal notice was sent on 15 July 2022. The European 
Commission takes the view that Italy’s national legislation applying to honorary 
magistrates still does not comply in full with EU labour law. In the Commission’s 
view, the Italian legislation fails to comply with EU rules on fixed-term work, on 
part-time work, on working time and on pregnant workers (Framework 
Agreement annexed to Directive 1999/70/EC, Framework Agreement annexed to 
Directive 97/81/EC, Directive 2003/88/EC, Directive 92/85/EEC, respectively). 
Several categories of honorary magistrates – honorary justices of the peace, 
honorary deputy prosecutors, and honorary court judges – do not enjoy the status 
of a ‘worker' under Italian national law, and are regarded as volunteers providing 
services on a ‘honorary basis. Because of this, they do not enjoy the protection 
granted to workers under EU labour law, leading for instance to a lack of 
allowances in case of illness, accidents and pregnancy, to differences in pay, and 
to tax discrimination. Honorary magistrates are also not sufficiently protected 
against the abuse of successive fixed-term contracts, and they do not have the 
possibility to obtain proper compensation for such abuse. Furthermore, Italy has 
not set up a system to measure the daily working time of each honorary 
magistrate. This additional letter of formal notice adds to an infringement 
procedure which the Commission opened on 15 July 2021. Italy amended its 
legislation in December 2021. However, the Commission takes the view that these 
amendments do not fully address the infringements of EU law identified initially 
and that they give rise to new grievances. Italy will now have two months to take 
the necessary measures. Otherwise, the Commission may decide to send a 
reasoned opinion (Note inf_22_3768). 
21 The Court of Justice of the European Union has also held, in its judgments of 
16 July 2020 (Case C-658/18) and of 7 April 2022 (Case C-236/20), that the State 
must ensure the transposition of the abovementioned directives in respect of 
magistrates, whose position is equated under Italian law to that of honorary deputy 
public prosecutors, such as the present applicant. 
22 On the basis of the documents submitted in the main proceedings, the referring 
court considers it to have been documented that the applicant actually and 
regularly performs the duties of a honorary judge, for which she receives 
remuneration. Following the submission of the application to take part in the 
stabilisation procedures provided for in Article 29 of Legislative Decree No 116 
of 13 July 2017, as replaced by Article 1(629) of Law No 234 of 30 December 
2021, the applicant is required by law to waive any further claims of any nature 
whatsoever resulting from the honorary relationship. If the national legislation 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-548/22 
 
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were to be applied, the applicant would be denied the protection of rights 
guaranteed by EU law. 
23 Essentially, the Italian Republic has, first, in order to avoid further EU rulings 
against the increasingly insecure position of honorary judges, put in place an 
uncertain stabilisation mechanism involving participation in the abovementioned 
assessment procedures or receipt of a payment that is derisory in relation to the 
damage actually suffered, and, second, eliminated – by reason of a forced 
waiver – any right to compensation for damage suffered in relation to its persistent 
failure to transpose all the other European directives mentioned above. 
24 Given the absence of any precedent in European case-law concerning the position 
of honorary judges with prosecutorial functions, the referring court expresses 
uncertainty as to the interpretation of EU law and asks the Court of Justice of the 
European Union for an interpretation making it possible to answer the question 
referred for a preliminary ruling. 
25 In the view of the referring court, the answer to that question should be in the 
affirmative, since the provisions of the FEU Treaty, the Charter of Fundamental 
Rights of the European Union and the abovementioned directives should not allow 
a Member State to adopt national legislation that circumvents its obligations to 
implement EU law and deprives citizens of the protections afforded by that EU 
law, even if under the pretext of a formal transposition of one of those directives. 
26 In fact, under current legislation, the Italian State: 
- either requires honorary judges, as part-time, fixed-term European 
workers, to waive all claims to their right to transposition of European 
directives and to the guaranteed protection of their fundamental rights, if 
they participate in stabilisation procedures or receive the severance payment 
(if they do not participate in or do not pass the assessment procedures), 
- or requires – as the only possibility for this waiver not to apply – the 
immediate termination of the appointment, and the honorary judge has no 
effective dissuasive means of preventing the renewal of the appointment 
beyond 36 months.