Judgment — ECLI:EU:C:2026:60
Date: 2026-01-29
Language of the case: Italian
Court formation: Tenth Chamber
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-668/24 – 1 
Case C-668/24 
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: 
11 October 2024 
Referring court: 
Tribunale di Milano (Italy) 
Date of the decision to refer: 
7 October 2024 
Appellant: 
UX 
Respondent: 
Fondazione Teatro alla Scala di Milano 
  
Subject matter of the main proceedings 
UX, the appellant in the main proceedings (‘the appellant’) brought an action 
before the Tribunale di Milano Sezione Lavoro (District Court, Milan, 
Employment Division; ‘the referring court’) alleging that various self-employment 
contracts concluded with the Fondazione Teatro alla Scala (‘the respondent’) were 
unlawful, and seeking a declaration that the relationship was one of employment 
and consequently, on the ground of wrongful repeated renewal of fixed-term 
contracts, her reinstatement as an employee. 
Subject matter and legal basis of the request 
Article 19(3) TEU and Article 267 TFEU. Interpretation of Clauses 4 and 5 of the 
framework agreement on fixed-term work concluded on 18 March 1999 (‘the 
Framework Agreement’), which is set out in the annex to Council Directive 
1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term 
work concluded by ETUC, UNICE and CEEP.  
EN 
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Question referred for a preliminary ruling 
[Must] Clauses 4 and 5 of the framework agreement on fixed-term work 
concluded on 18 March 1999, which is set out in the annex 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 precluding 
national legislation, such as that at issue in the main proceedings, as interpreted by 
the Suprema Corte di Cassazione a Sezioni Unite (Supreme Court of Cassation, 
sitting in Joined Chambers) in judgments Nos 5542 and 5556/2023, pursuant to 
which the rules of ordinary law governing employment relationships and intended 
to penalise the misuse of successive fixed-term contracts by the automatic 
transformation of the fixed-term contract where there is a wrongful repeated 
renewal of fixed-term contracts are not applicable to the sector of activity of 
operatic and orchestral foundations, where the measure provided for in that sector, 
in contrast to economic sectors generally, consists in compensation, albeit under a 
simplified burden of proof that may be satisfied through presumptions alone, and 
even where provision has been made for directors to be held liable in cases of 
intentional fault or gross negligence? 
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: Clause 4 
(Principle of non-discrimination) and Clause 5 (Measures to prevent abuse) of the 
framework agreement. 
Judgment of the Court of Justice of 25 October 2018, Sciotto, C-331/17, 
EU:C:2018:859, paragraphs 59, 60, 62 and 63 in particular. 
Judgment of the Court of Justice of 7 March 2018, Santoro, C-494/16, 
EU:C:2018:166. 
Provisions of national law relied on 
Rules governing fixed-term contracts 
The contracts at issue in the main proceedings were concluded in part during the 
initial period of applicability of decreto legislativo n. 81/2015 – Disciplina 
organica dei contratti di lavoro e revisione della normativa in tema di mansioni, a 
norma dell’articolo 1, comma 7, della legge 10 dicembre 2014, n. 183 (Legislative 
Decree No 81/2015 – Systematic regulation of employment contracts and revision 
of the legislation on employment obligations, pursuant to Article 1(7) of Law 
No 183 of 10 December 2014), and in part during the period of applicability of 
that legislative decree as amended by decreto-legge n. 87 – Disposizioni urgenti 
per la dignità dei lavoratori e delle imprese 2018 (Decree-Law No 87 on the 
establishment of urgent provisions for the dignity of workers and enterprises 
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2018) of 12 July 2018, converted into law by legge n. 96 (Law No 96) of 9 August 
2018 (‘the Dignity Decree’). 
Article 19 of Legislative Decree No 81/2015, in its original wording, which 
provides that an employment contract may be concluded for a term not exceeding 
36 months and that, without prejudice to provisions to the contrary in collective 
agreements, and with the exception of seasonal activities, the duration of an 
employment relationship between the same employer and the same worker as a 
result of a succession of fixed-term contracts for the performance of equivalent 
tasks in the same legal category, disregarding any breaks between one contract 
and another, is not to exceed 36 months. When the 36-month limit is exceeded, 
following a single contract or a succession of contracts, the contract is to be 
transformed into a contract of indefinite duration. 
Article 21 of Legislative Decree No 81/2015, in its original wording, under which 
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 36 months and, in any event, 
with no more than 5 extensions permitted over the period of 36 months, 
irrespective of the number of contracts. When there is a greater number of 
extensions, the contract is transformed into a contract of indefinite duration from 
the start date of the sixth extension. 
Articles 19 and 21 of Legislative Decree No 81/2015 as amended by the Dignity 
Decree, the wording of which is similar or almost identical to the previous version 
except for the maximum lengths of contracts, which are reduced from 36 to 12 
and 24 months, and the maximum permitted number of extensions reduced from 5 
to 4. 
Rules governing fixed-term contracts in operatic and orchestral foundations 
Article 29(3) of Legislative Decree No 81/2015 provides: ‘The provisions set out 
in Article 19(1) to (3) and Article 21 shall not apply to the artistic and technical 
personnel of musical foundations referred to in decreto legislativo 29 giugno 
1996, n. 367 (Legislative Decree No 367 of 29 June 1996)’. 
Article 3(6) of decreto-legge n. 64 – recante disposizioni urgenti in materia di 
spettacolo e attività culturali (Decree-Law No 64 laying down urgent measures 
regarding the entertainment industry and cultural sector) of 30 April 2010 (GURI 
No 100 of 30 April 2010), converted into law, with amendments, by legge n. 100 
(Law No 100) of 29 June 2010 (GURI No 150 of 30 June 2010), provides that 
Article 3(4) and (5) of legge n. 426 – Provvedimenti straordinari a sostegno delle 
attività musicali (Law No 426 laying down exceptional measures to support 
musical activities) of 22 July 1977 will continue to apply to operatic and 
orchestral foundations notwithstanding their transformation into entities governed 
by private law and, moreover, that the provisions of Article 1(01) and (2) of 
decreto legislativo n. 368/2001 (Legislative Decree No 368/2001) are not to apply 
to operatic and orchestral foundations. 
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Article 11 of decreto-legge n. 91 – recante Disposizioni urgenti per la tutela, la 
valorizzazione e il rilancio dei beni e delle attività culturali e del turismo (Decree-
Law No 91 laying down urgent measures to protect, promote and relaunch cultural 
assets and activities and tourism) of 8 August 2013 (GURI No 186 of 9 August 
2013), converted into law, with amendments, by legge n. 112 (Law No 112) of 
7 October 2013 (GURI No 236 of 8 October 2013), entitled ‘Urgent measures for 
the reorganisation of operatic and orchestral foundations and the relaunch of the 
national music system of excellence’, provides, in paragraph 19, that employment 
relationships of indefinite duration with operatic and orchestral foundations are to 
be concluded solely by means of appropriate public selection procedures. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The appellant worked as a ballet dancer in the respondent’s corps de ballet under 
various contracts from 2014 until 2019. Specifically, following an initial fixed-
term contract of employment (from 4 November 2014 to 18 January 2015) as a 
student, the appellant, having passed a selection procedure, entered into a series of 
self-employment contracts from 16 August 2016 to 9 July 2019. 
2 She brought an action before the referring court, seeking a declaration that the 
relationship was one of employment and consequently, on the ground of the 
wrongful repeated renewal of fixed-term contracts, seeking reinstatement as an 
employee.  
3 The dispute in the main proceedings is set against the background of proceedings 
brought by other ballet dancers from La Scala in a situation similar to that of the 
appellant, on which the referring court has already ruled. In those proceedings, the 
referring court found that there was an employment relationship and therefore that 
the self-employment contracts were fictitious in nature and designed to 
circumvent the rules, but did not order that the workers be reinstated, since a new 
approach by the Court of Cassation, sitting in Joined Chambers, in 2023, had 
reversed its previous case-law and had interpreted the Italian legislation applicable 
to the sector of operatic and orchestral foundations as precluding conversion into 
an employment relationship of indefinite duration. 
The essential arguments of the parties in the main proceedings 
4 The appellant submits that she was a permanent element of the theatre’s staff and 
that she provided her services in the same way as staff members employed under 
contracts of indefinite duration. She alleges that the various self-employment 
contracts concluded with the respondent were unlawful and seeks a declaration 
that the relationship was one of employment and reinstatement as an employee. 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
5 The referring court is aware that an essentially similar question that partly 
duplicates the one in the main proceedings was addressed by the Court of Justice 
in its judgment of 25 October 2018, Sciotto, C-331/17, EU:C:2018:859 (‘the 
judgment in Sciotto’). However, since both the Italian legislature and the Court of 
Cassation, sitting in Joined Chambers, have taken further action since that 
judgment, the referring court considers it necessary to refer the question once 
again to the Court of Justice in order to guarantee the uniform interpretation of EU 
law. 
6 As set out by the referring court, in the sector of operatic and orchestral 
foundations there has always been a derogation in place intended to remove those 
bodies, including following their privatisation, from the system laid down by the 
ordinary law. In essence, although the prohibition on renewing employment 
relationships which, on the basis of legislative or contractual provisions, would 
involve transforming fixed-term contracts into contracts for an indefinite period, 
applies to operatic and orchestral foundations, the previous approach by the courts 
was to protect the position of workers and to permit a contract for an indefinite 
period to be put in place. Since 2014, the Court of Cassation has held that a 
general bar on the transformation of a fixed-term employment relationship into an 
employment relationship for an indefinite period could not derive from laws 
which have over the years imposed a prohibition on the foundations regarding the 
recruitment of staff for an indefinite period, on the grounds of controlling public 
expenditure, since those provisions are not relevant to the case at issue: although 
they may have an indirect impact on the existence of the employment relationship 
on which the individual seeks to rely, they cannot place that individual in a less 
advantageous position regarding his or her rights. 
7 In the same vein, in 2015 the Corte costituzionale (Constitutional Court) declared 
unconstitutional a provision under which Article 3(6) of Decree-Law No 64 of 
30 April 2010 had to be interpreted as meaning that the legal provisions providing 
for the transformation of the employment relationship into one of indefinite 
duration as a consequence of the infringement of the rules on the conclusion of 
fixed-term employment contracts did not apply to operatic and orchestral 
foundations, following their transformation into entities governed by private law. 
8 After recalling the principles set out in the judgment in Sciotto, namely that 
Clause 5 of the Framework Agreement must be interpreted as precluding national 
legislation pursuant to which the rules of ordinary law governing employment 
relationships and intended to penalise the misuse of successive fixed-term 
contracts by the automatic transformation of the fixed-term contract into a 
contract of indefinite duration if the employment relationship goes beyond a 
specific date are not applicable to the sector of activity of operatic and orchestral 
foundations, where there is no other effective measure in the domestic legal 
system penalising abuses identified in that sector, the referring court observes that, 
paradoxically, that ruling, instead of leading to the continuation of the previous 
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approach in favour of the transformation of fixed-term contracts, produced an 
opposite effect. 
9 First, in order to bring domestic law into line with the principles set out by the 
Court of Justice in the judgment in Sciotto, in 2019, by means of decreto-legge n. 
59 (Decree-Law No 59) of 28 June 2019, the legislature added paragraphs 3-bis 
and 3-ter to Article 29 of Legislative Decree No 81/2015. Those additions 
stipulated expressly and beyond any doubt, in paragraph 3-ter in particular, that 
the legal consequence of the misuse of fixed-term contracts in operatic and 
orchestral foundations may under no circumstances consist in their transformation 
into contracts of indefinite duration. However, the worker concerned is entitled to 
compensation for damage suffered as a result of working in breach of mandatory 
provisions and the foundations are obliged to recover from the directors 
responsible any sums paid to workers by way of such compensation, where that 
infringement is intentional or is the result of gross negligence. 
10 Secondly, in two judgments of 2023 (‘the 2023 judgments’), the Court of 
Cassation, sitting in Joined Chambers (‘the Joined Chambers’), overturned its 
previous long-standing approach when it reinterpreted the rules concerning fixed-
term employment in operatic and orchestral foundations and stated that 
transformation into a contract of indefinite duration is not one of the remedies 
applicable under Italian law. The Court of Cassation ruled that the only such 
remedy is compensation, and that presumptions may be relied on to prove the loss 
suffered. Taking the presumption that foundations governed by private law are 
essentially public in nature and that there is an express prohibition on recruiting 
staff without recourse to public competitive selection procedures as a starting 
point, the Joined Chambers held, in essence, that the nullity of a contract on the 
ground of incompatibility with mandatory provisions (pursuant to Article 1418(1) 
of the codice civile (Civil Code)), where a provision is deemed mandatory by 
reason of the public interests that it protects, does not allow the judge discretion to 
identify new cases of nullity. Such a mandatory provision must have specific, 
precise and identified content; must not specifically provide for any other sanction 
for its infringement; the judgment on its mandatory nature and the interests that 
the provision seeks to safeguard must be expressed while keeping in mind that the 
balancing of the opposing interests at stake is a matter for the legislature alone, the 
silence of which as to the sanction, even if not decisive, cannot be regarded as 
irrelevant. In their 2023 judgments, the Joined Chambers therefore declared, 
pursuant to Article 1418(1) of the Civil Code, that an employment relationship of 
indefinite duration established by an operatic and orchestral foundation in breach 
of the prohibitions on recruitment imposed by the regulations in force ratione 
temporis or failing any public competition procedures required for the selection of 
the contractor is null and void. They also affirmed that sectoral provisions 
imposing an absolute prohibition on the establishment of employment 
relationships of indefinite duration or allowing them to be concluded only in the 
presence of obligations imperatively required by the legislature take precedence. 
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11 With regard to the ruling out of the transformation of a fixed-term contract 
in the sector of operatic and orchestral foundations, the referring court notes 
that, in the 2023 judgments, the Joined Chambers expressly examined the issue of 
the compatibility of their interpretation with the principles set out by the Court of 
Justice in the judgment in Sciotto and held that it cannot be considered that the 
transformation of a fixed-term employment relationship should necessarily result 
from the requirement of compatibility with EU law and, specifically, with Clause 
5 of the Framework Agreement. Having made it clear that that clause is relevant 
only in cases of wrongful repeated renewal of contracts, the Joined Chambers 
referred to the sections of the judgment in Sciotto in which the Court of Justice 
stressed that the clause in principle leaves it to the Member States to determine the 
conditions under which fixed-term employment contracts or relationships are to be 
regarded as contracts or relationships of indefinite duration, provided that they 
adopt an effective measure penalising misuse of successive fixed-term contracts, 
and held that the Italian legal system in the operatic and orchestral foundations 
sector does not provide for such an effective measure, despite staff in that sector 
are not entitled to claim compensation for the loss incurred. In that regard, the 
Joined Chambers note that the remedy of compensation for damage is in fact 
granted by the national legal system in all cases of contractual or non-contractual 
liability, also including where a contract is invalid. Article 29(3-ter) of Legislative 
Decree No 81 of 2015 sets out the specific application of a general principle: the 
arguments on the basis of which the Joined Chambers considered it necessary, 
given the lawful provisions stipulating that fixed-term employment relationships 
may not be transformed, to ease the burden of proof leading to the recognition and 
payment of compensation for ‘presumed damage on account of an infringement of 
Community law’ may also be extended to circumstances in which the 
transformation of the contract is not possible and for which the legislature did not 
expressly provide for a right to compensation for damage. The Joined Chambers 
also note that the Employment Division has developed an approach according to 
which the provisions of domestic law governing compensation for damage are to 
be interpreted in line with the principle of effective protection confirmed by the 
Court of Justice and, in that context, they refer to the case of assumed loss, with a 
range of sanctions, between a minimum and a maximum figure, unless greater loss 
incurred is proven. 
12 According to the referring court, which takes issue with the arguments of the 
Joined Chambers, it is inaccurate to state that the Court of Justice did not take into 
account the existence within the domestic legal system of the remedy of 
compensation or the fact that directors may be held liable; a similar arrangement 
was expressly examined and held not to be dissuasive enough to prevent abuses. 
In the judgment in Sciotto, the Court of Justice confirmed that the obligation 
imposed on the authorities to recover from the directors responsible any sums paid 
to the workers by way of compensation for the loss incurred as a result of the 
infringement of provisions on recruitment and employment where that 
infringement is intentional or is the result of gross negligence constitutes only one 
of the measures designed to prevent and punish the misuse of fixed-term 
employment contracts, and it is for the referring court to determine whether that 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-668/24 
 
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liability is sufficiently effective and dissuasive to ensure that the provisions 
adopted pursuant to the Framework Agreement are fully effective.  
13 With regard to the principle of non-discrimination between comparable 
workers, in the view of the referring court, in the judgment in Sciotto the Court of 
Justice not only clearly stated that transformation into a contract of indefinite 
duration is the only measure capable of ensuring the correct application of EU 
law, but it sets out a principle that is highly innovative in scope, namely that the 
principle of non-discrimination has a horizontal, as well as vertical, binding effect. 
In the 2023 judgments, the Joined Chambers ruled out the contention that, because 
fixed-term employment relationships entered into by operatic and orchestral 
foundations cannot be transformed into relationships of indefinite duration, that 
may be regarded as discriminatory compared with employees of private 
employers, in respect of which the system provides for the employment 
relationship to be transformed. In the 2023 judgments, the Joined Chambers held 
that, by reason of their special nature linked to public interests, which persist even 
after the transformation of the foundations into entities governed by private law, 
such special nature having originally provided the justification for the sectoral 
rules, the employment relationships in question are not comparable to those 
entered into by other private employers but are similar to contractual public 
employment relationships. For the latter relationships, the difference in protection 
compared to the private sector has not been held to be either discriminatory or 
contrary to the principles laid down by Directive 1999/70/EC. 
14 The referring court considers that the assumption that operatic and orchestral 
foundations are essentially public in nature is not supported by domestic law. 
First, Decree-law 345/2000, converted into Law 6/2001, provided that 
autonomous operatic entities and orchestral institutions of a similar kind were to 
be converted into foundations and would acquire legal personality under private 
law; that foundations were to be governed, unless otherwise expressly provided, 
by Legislative Decree No 367 of 29 June 1996, by the Civil Code and by the 
implementing provisions; and that, exercising their powers of self-determination, 
operatic and orchestral foundations were to establish their own articles of 
association. Further, the private nature of operatic and orchestral foundations has 
been confirmed on several occasions by the Court of Cassation, which has made it 
clear that the decision of the legislature to declare formally that a body is public or 
private rules out the adoption of any other interpretative criterion, since no new 
public body may be established or recognised except by operation of law. 
15 In view of that, according to the referring court, the Court of Cassation, contrary 
to its previous statements, in essence assimilates operatic and orchestral 
foundations, notwithstanding their incontrovertibly private-law status, to public 
administrations and draws conclusions from such assimilation in relation to the 
rules governing employment relationships. The referring court considers, 
however, that the fact that a private entity may be pursuing aims that are of public 
importance or that it may be receiving public funds is not sufficient to alter its 
private-law status. The term ‘variable entity’, which implies that in certain 
FONDAZIONE TEATRO ALLA SCALA DI MILANO 
 
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respects it is subject to public law, but that the public law system as a whole may 
not be applied, is not in conflict with the private nature of operatic and orchestral 
foundations and the employment relationship thus remains governed by private 
law. Moreover, in 2001 the Italian legal system provided for employment 
relationships in the civil service to be converted into relationships governed by 
private law. For those reasons, according to the referring court, even were it to be 
assumed that foundations are public in nature, a different form of regulation of the 
workers employed in them cannot be justified under domestic law. 
16 Secondly, the principle of competition in the public sector, which is expressly 
provided for in respect of operatic and orchestral foundations by the current 
Article 22 of Legislative Decree No 367/1996, on which the Joined Chambers rely 
in their reasoning, cannot be relied on in cases, such as the one at issue in the main 
proceedings, in which the worker, in order to be able to enter into the fixed-term 
contracts at issue, had passed a lawful public selection procedure. 
17 The referring court went on to emphasise that EU law has long recognised the 
principle that the public or private nature of an employer does not, in itself, 
provide grounds for a reduction in the protections afforded to employees. The 
referring court states that in the judgment in Sciotto (paragraph 43) the Court of 
Justice had already rejected an argument to the contrary relied on by the Italian 
Government. 
18 Moreover, with specific reference to the arguments concerning the control of 
public expenditure, the referring court points to the Court of Justice’s observations 
in paragraph 55 of the judgment in Sciotto. 
19 Lastly, the referring court concludes that the discrimination between fixed-term 
workers in the sector of operatic and orchestral foundations and fixed-term 
workers in other sectors, which was ruled out by the Joined Chambers in the 2023 
judgments, had however been clearly recognised and criticised by the Court of 
Justice in the judgment in Sciotto, which stated: ‘in any event, as has been argued 
by the Commission, since the national law at issue in the main proceedings does 
not in any case allow, in the sector of activity of operatic and orchestral 
foundations, for the conversion of fixed-term employment contracts into a 
contract of indefinite duration, it is likely to lead to discrimination between fixed-
term workers in that sector and fixed-term workers in other sectors, as the latter 
may become, after the transformation of their employment contract in the case of 
infringement of the rules on the conclusion of fixed-term contracts, comparable 
permanent workers within the meaning of Clause 4(1) of the Framework 
Agreement’.