Order;Summary — ECLI:EU:C:2024:111
Date: 2024-01-08
Language of the case: Italian
Court formation: Seventh Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-278/23 – 1 
Case C-278/23 [Biltena] 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:  
28 April 2023 
Referring court:  
Corte suprema di cassazione (Italy) 
Date of the decision to refer:  
27 April 2023 
Appellant:  
Mr M., as heir of Mr R. 
Respondent:  
Ministero della Difesa 
  
Subject matter of the main proceedings 
Teaching of non-military subjects in Italian military schools – Appeal on a point 
of law brought by a teacher against a judgment of the Corte d’appello (Court of 
Appeal) which, in rejecting his claims that had been upheld at first instance, 
essentially refused him the status of employee and compensation for the damage 
suffered as a result of having always been regarded as a self-employed person, 
under fixed-term contracts that were renewed. 
Subject matter and legal basis of the request 
Interpretation of clause 5 of the framework agreement on fixed-term work 
concluded by ETUC, UNICE and CEEP annexed to Directive 1999/70/EC with 
regard to the conditions and limits laid down by Italian legislation applicable to 
the use of fixed-term employment relationships in the civil service. 
 
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-278/23 
 
2  
Questions referred for a preliminary ruling 
‘(1) Must clause 5, ‘Measures to prevent abuse’, of the framework agreement on 
fixed-term work concluded by ETUC, UNICE and CEEP annexed to Council 
Directive 1999/70/EC of 28 June 1999 be interpreted as precluding national 
legislation, such as the Italian legislation contained in Article 2(1) of legge n. 
1023 del 1969 (Law No 1023 of 1969) and Article 1 of the Decreto Ministeriale 
20 dicembre 1971 (Ministerial Decree of 20 December 1971), providing for 
annual appointments of civilian staff outside the State administration (pursuant to 
Article 7 of the Ministerial Decree of 20 December 1971 ‘for a maximum period 
of one school year’) for the teaching of non-military subjects in the schools, 
establishments and bodies of the Italian navy and air force, without the need to 
state any objective reasons justifying the renewal of the appointments (expressly 
provided for in Article 4 of that ministerial decree, which provides for a reduction 
in remuneration for the second appointment), the maximum total duration of 
fixed-term contracts or the maximum number of renewals, and without providing 
for the possibility for those teachers to obtain compensation for any damage 
suffered as a result of such renewal, in the absence, moreover, of any 
schoolteacher role in such schools to which they might have access? 
(2) Do the organisational requirements of the Italian navy and air force’s system 
of establishments, schools and bodies constitute objective reasons, pursuant to 
clause 5(1) [of the framework agreement on fixed-term work concluded by ETUC, 
UNICE and CEEP, annexed to] Directive 1999/70/EC of 28 June 1999, and 
therefore render legislation such as the abovementioned Italian legislation – 
which, with regard to the appointment of staff external to such military 
establishments, schools and bodies to carry out teaching, does not lay down 
conditions for having recourse to fixed-term work in accordance with Directive 
1999/70/EC and the annexed framework agreement, and does not provide for a 
right to compensation for damage – compatible with EU law?’ 
Provisions of European Union law relied on 
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 clauses 3 and 5 of the framework agreement on fixed-term work 
concluded by ETUC, UNICE and CEEP, annexed to that directive. 
Case-law of the Court of Justice of the European Union 
Judgments in Cases C-53/04, C-180/04, C-212/04, C-268/06, C-177/10, C-494/16, 
C-331/17, Joined Cases C-378/07 and 380/07, and Joined Cases C-22/13, C-61/13 
to C-63/13 and C-418/13 
BILTENA 
 
3 
Provisions of national law relied on 
- Law No 1023 of 15 December 1969 – Appointing civilian teachers to teach non-
military subjects in schools, establishments and bodies of the navy and air force, 
now repealed, Article 2(1) of which provides as follows: ‘Provision may be made, 
under annual agreements, for the teaching of non-military subjects in schools, 
establishments and bodies [of the navy and air force] by staff appointed [from] 
teachers (…) in State establishments and schools, [with the prior authorisation] of 
the Ministero della pubblica istruzione (Ministry of Education), by ordinary, 
administrative and military judges and civilian employees of the State 
administration in active employment, or by staff appointed from outside the State 
administration.(…)’ 
- Legislative Decree No 165 of 30 March 2001 – on general rules for the 
organisation of employment by the public authorities, in the version applicable to 
the main proceedings, Article 36(1) of which provides as follows: ‘The public 
authorities, in accordance with the provisions on the recruitment of staff [of public 
authorities], shall use the flexible forms of contract for the recruitment and 
employment of staff provided for in the Civil Code and the laws on employment 
relationships in undertakings(…)’. Paragraph 1-bis of the same article provides as 
follows: ‘Authorities may activate the contracts referred to in paragraph 1 only for 
temporary and exceptional needs and after [conducting] procedures relating to the 
assignment of staff, including temporary staff (…)’. Paragraph 2 of the same 
article provides: In any event, infringement of mandatory provisions on the 
recruitment or employment of workers by public authorities cannot lead to the 
creation of employment relationships of indefinite duration with those public 
authorities, without prejudice to any liability or sanction which those authorities 
may incur. The worker concerned shall be entitled to compensation for damage 
suffered as a result of working in breach of mandatory provisions’. 
- Legislative Decree No 368 of 6 September 2001 – Implementation of Directive 
1999/70/EC concerning the framework agreement on fixed-term work concluded 
by UNICE, CEEP and the ETUC, in the version applicable to the dispute in the 
main proceedings, Article 1 of which provides that the duration of an employment 
contract may be fixed for technical, production, organisational or replacement-
related reasons. Article 4(1) of that legislative decree provides as follows: ‘The 
term of a fixed-term contract may be extended, with the worker’s consent, only if 
the initial duration of the contract is less than three years. In that case, extension 
shall be permitted once, provided that it is done on objective grounds and relates 
to the same activity as the one for which the fixed-term contract was concluded. 
With reference solely to such situations, the total duration of the fixed-term 
relationship may exceed three years.’ Article 5(4) of the same legislative decree 
provides: ‘Where a worker is employed for two successive fixed-terms, which 
shall be understood to mean relationships between which there is no break in 
continuity, the employment relationship shall be considered to be of indefinite 
duration from the date on which the first contract was made.’ 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-278/23 
 
4  
- Legislative Decree No 66 of 15 March 2010 – The Military Code, 
Article 1531(1) of which provides for the possibility of making appointments for 
the teaching of non-military subjects under annual agreements concluded with 
staff from outside the State administration, who are specially appointed. 
- Ministerial Decree of 20 December 1971 – Appointing civilian teachers to teach 
non-military subjects in schools, establishments and bodies of the navy and air 
force, now repealed, Article 1 of which provides as follows: ‘Provision may be 
made, under annual agreements, for the teaching of non-military subjects in 
schools, establishments and bodies of the navy and air force (…) by staff 
appointed [from] teachers (…) in State establishments and schools, [with the prior 
authorisation] of the Ministry of Education, by ordinary, administrative and 
military judges and civilian employees of the State administration in active 
employment, or by staff appointed from outside the State administration. (…). 
Article 4 of that ministerial decree provides: ‘The remuneration provided for [in] 
this decree shall be reduced by one third for the second appointment of an outside 
teacher.’ Article 6 of the same decree provides: ‘Staff appointed from outside the 
State administration who are given an assignment for the entire school year shall, 
for the period of actual service only, be entitled to the additional allowances and 
pension, social security and assistance benefits provided for appointed teachers in 
establishments and schools for which the Ministry of Education is responsible.’ 
Finally, under Article 7 of that decree, the teaching appointments in question are 
to be put in place for a maximum period of one school year. 
Succinct presentation of the facts and procedure in the main proceedings 
1 A worker brought an action against the Italian Ministero della difesa (Ministry of 
Defence, ‘the Ministry’) before the Tribunale di Roma (District Court, Rome, 
Italy). That worker claimed that he had been employed by the Italian air force to 
teach non-military subjects from 1987 to 2007, under contracts renewed from year 
to year and, from 2004, every six months. He applied for a declaration that the 
terms laid down in those contracts were unlawful, and also sought compensation 
for damages. 
2 The District Court upheld the worker’s claim, holding, inter alia, that employment 
relationships had been in place between him and the Ministry and that the terms 
attached to the contracts concluded after the entry into force of Legislative Decree 
No 368/2001 were unlawful. 
3 The Ministry appealed against that judgment before the Corte d’Appello di Roma 
(Court of Appeal, Rome, Italy). According to the Ministry, the relationship 
between the parties was one of self-employment. Moreover, it asserted that 
Legislative Decree No 368/2001 was not applicable in the present case, but rather 
Law No 1023/1969 and the Ministerial Decree of 20 December 1971.  
BILTENA 
 
5 
4 The Court of Appeal upheld the Ministry’s application and held that in the present 
case the applicable law was not Legislative Decree No 368/2001, but rather Law 
No 1023/1969, as special legislation. 
5 The worker appealed against the judgment of the Court of Appeal before the Corte 
di Cassazione (Court of Cassation, Italy), the referring court. 
The essential arguments of the parties in the main proceedings 
6 The appellant maintains that the relationships between him and the Ministry over 
the years had been employment relationships, and that thus Law No 1023/1969 
did not apply in the present case, but that rather Legislative Decree No 368/2001 
and Article 36 of Legislative Decree No 165/2001 should be applied.  
7 In that regard, the appellant asks whether the protection provided by Italian law 
for workers who have concluded agreements with the Ministry for the teaching of 
non-military subjects at the Italian navy and air force, in the absence of reasons 
being specified that justify the temporary employment of such workers for several 
years, is compatible with EU law. 
8 In its defence, the Ministry sought the dismissal of the appeal against the 
judgment of the Court of Appeal of Rome, and brought a cross-appeal in which it 
disputed the existence of fixed-term employment relationships between the 
Ministry and the appellant in the main proceedings, maintaining that Law 
No 1023/1969 was applicable. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 The referring court notes that the Italian legislation authorises the use of fixed-
term employment relationships in the civil service only for temporary and 
exceptional needs. Furthermore, according to that legislation, in the civil service 
the infringement of rules intended to protect a worker’s rights cannot lead to the 
conversion of a fixed-term employment relationship into a relationship of 
unlimited duration, but merely results in the right of that worker to compensation 
for the loss or damage sustained. 
10 According to the referring court, the employment relationship which is 
established, on the basis of annual agreements, with staff from outside the public 
authority to teach at the navy and air force, pursuant to Law No 1023 of 1969, 
must be regarded as an employment relationship with that authority. 
11 The referring court also points out that, according to the case-law of the Court of 
Cassation itself, including a worker in the permanent staff constitutes a penalty 
measure capable of compensating for the damage resulting from the unlawful act 
consisting of the wrongful repeated renewal of fixed-term contracts. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-278/23 
 
6  
12 The referring court then points out that, according to the case-law of the Court of 
Justice, Directive 1999/70 and the framework agreement on fixed-term work 
concluded by ETUC, UNICE and CEEP (‘the Framework Agreement’) also apply 
to fixed-term employment contracts and relationships concluded with public 
authorities. The Court of Justice has also held that the purpose of the Framework 
Agreement is, inter alia, to place limits on successive recourse to fixed-term 
employment contracts or relationships. 
13 According to the case-law of the Court of Justice cited by the referring court, 
although a Member State may legitimately take into account the needs of a 
specific sector such as that of education, the fact remains that that State has a duty 
to provide for appropriate measures to penalise the misuse of a set of successive 
fixed-term employment contracts.  
14 As indicated by the referring court, the Court of Justice has held that, in order for 
national legislation, such as that in the main proceedings – which, in the public 
sector only, prohibits a succession of fixed-term contracts from being converted 
into an indefinite employment contract – to be regarded as compatible with the 
Framework Agreement, the domestic law of the Member State concerned must 
include, in that sector, another effective measure to prevent and possibly to punish 
the misuse of successive fixed-term contracts. 
15 According to the Court of Cassation, the present reference for a preliminary ruling 
stems from the need for the Court of Justice to interpret clause 5(1) of the 
Framework Agreement with specific reference to the annual teaching 
appointments at issue, in the light, first, of the national case-law which regards 
such appointments as employment relationships and, second, of the regulation of 
those appointments set out in the special national legislation described in the 
preceding paragraphs.