Judgment — ECLI:EU:C:2024:773
Date: 2024-09-19
Language of the case: Italian
Court formation: Sixth Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-439/23 – 1 
Case C-439/23 
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:  
13 July 2023 
Referring court:  
Tribunale Civile di Padova (Italy) 
Date of the decision to refer:  
22 June 2023 
Applicant:  
KV 
Defendant:  
CNR – Consiglio Nazionale delle Ricerche 
  
Subject matter of the main proceedings 
Action brought by KV seeking a declaration that he is entitled to recognition, for 
the purposes of length of service and acquisition of the corresponding salary 
increases, of the entire period of work completed on the basis of various fixed-
term contracts with the Consiglio Nazionale delle Ricerche (National Research 
Council, ‘the CNR’) before being recruited for an indefinite duration, and to 
obtain an order that the CNR reconstruct his career and pay the differences in 
salary due. 
Subject matter and legal basis of the request 
Request for interpretation, on the basis of Article 267 TFEU, of clause 4(1) of 
Directive 1999/70/EC, in particular whether that clause can be applied to fixed-
term employment contracts entered into and concluded, first, on a date prior to the 
entry into force of that directive and, second, in the period between the date of the 
entry into force of the directive and the expiry of the deadline given to the 
Member States for its transposition. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – C-439/23 
 
2  
Question referred for a preliminary ruling 
Should clause 4(1) of Council Directive 1999/70/EC of 28 June 1999 concerning 
the framework agreement on fixed-term work concluded by ETUC, UNICE and 
CEEP be applied: 
– ratione temporis to fixed-term employment relationships established 
and concluded as a result of the expiry of the contractual term prior to 
the entry into force of Directive 1999/70/EC (10 July 1999); 
– ratione temporis to fixed-term employment relationships established 
on the basis of an individual employment contract entered into before 
the entry into force of Directive 1999/70/EC (10 July 1999) and 
concluded as a result of the expiry of the contractual term on a date 
between the entry into force of the directive and the expiry of the 
deadline given to the Member States for its transposition (10 July 
2001); or 
– ratione temporis to fixed-term employment relationships established 
on the basis of an individual employment contract entered into in the 
period between the entry into force of Directive 1999/70/EC (10 July 
1999) and the expiry of the deadline given to Member States for its 
transposition (10 July 2001), and concluded as a result of the expiry of 
the contractual term after that latter date? 
Provisions of European Union law relied on 
Charter of Fundamental Rights of the European Union, in particular Article 21; 
Directive 1999/70/EC, in particular clause 4, which enshrines the principle of non-
discrimination between fixed-term workers and comparable permanent workers; 
Treaty on the Functioning of the European Union, in particular Article 267. 
Provisions of national law relied on 
Decreto legislativo n. 368 (Legislative Decree No 368) of 6 September 2001, in 
force since 24 October 2001, which implemented Directive 1999/70/EC; in 
particular Article 6, according to which a worker recruited under a fixed-term 
contract is entitled to leave and all the treatment provided for workers with 
comparable contracts of indefinite duration, and in proportion to the period of 
work completed, provided that this is not objectively incompatible with the nature 
of the fixed-term contract. 
Legge n. 70 (Law No 70) of 20 March 1975, in the version in force at the time of 
the facts at issue in the main proceedings; in particular Article 36, which 
CONSIGLIO NAZIONALE DELLE RICERCHE 
 
3 
recognises the CNR’s power to recruit researchers and highly specialised technical 
staff under fixed-term contracts of a duration not exceeding five years. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The CNR, an Italian public body responsible for carrying out and promoting 
research activities in the main fields of development of knowledge and its 
applications, entered into several fixed-term employment contracts with the 
applicant, KV, in accordance with Article 36 of Law No 70 of 20 March 1975. 
2 In particular, from 2 November 1993 to 31 March 1995 KV was recruited by the 
CNR as a Level III technologist, from 1 August 1995 to 1 August 2000 he was 
recruited in the same capacity, while from 4 September 2000 to 31 December 
2001 he was recruited as a Level III researcher. 
3 That latter contract was terminated on 30 September 2001, as KV passed a public 
competition, which resulted in his appointment for an indefinite duration as a 
Level III researcher, from 1 October 2001. 
4 However, at the time of that recruitment for an indefinite duration, KV’s length of 
service completed under the abovementioned fixed-term employment contracts 
entered into on a date prior to the expiry of the deadline given to Member States 
for the transposition of Directive 1999/70/EC, namely 10 July 2001, was not 
recognised. 
5 On 8 February 2022, KV therefore brought an action before the Tribunale di 
Padova (District Court, Padua), seeking recognition of the period of work 
completed under those three fixed-term employment contracts with a view to 
acquiring the related length of service and the subsequent impact on his 
remuneration. 
The essential arguments of the parties in the main proceedings 
6 The CNR, as a party to the proceedings, contends that the action should be 
dismissed, relying on the non-retroactivity of Directive 1999/70/EC. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
7 First of all, the referring court notes that, in the main proceedings, it is common 
ground that, under Italian law, the periods of employment carried out by a worker 
recruited for a fixed-term, within the meaning of Article 36 of Law No 70/1975, 
are not calculated for the purposes of recognising the overall length of service 
acquired, even in the event of subsequent recruitment for an indefinite duration, 
unlike in the case, for equivalent work, of staff recruited from the outset for an 
indefinite duration. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – C-439/23 
 
4  
8 The referring court considers that, for the purposes of the present reference for a 
preliminary ruling, the issue of the temporal scope of application of clause 4(1) of 
Directive 1999/70/EC, which has been in force since 10 July 1999 and which the 
Member States were obliged to transpose by 10 July 2001, is relevant. In that 
regard, it notes that, in Italian case-law, there are two different approaches. 
9 According to the first approach, clause 4 of that directive and, therefore, the 
principle of non-discrimination laid down in it, does not apply to fixed-term 
employment relationships which are carried out in full before the deadline given 
to the Member States for transposition of the directive. That is supported by the 
principle of non-retroactivity of EU law, according to which the rules of 
substantive law apply only to factual situations that have arisen since their entry 
into force, unless EU law itself establishes their retroactive scope. 
10 The second and most recent approach, which now appears to have been settled in 
the national case-law of the Corte di cassazione (Court of Cassation, Italy), argues 
that, for the purposes of calculating the overall length of service of a worker 
recruited for an indefinite period, periods of fixed-term work carried out and 
concluded in full before the entry into force of Directive 1999/70/EC may also be 
taken into account. That approach is based on the principle of interpretation, 
settled in the case-law of the Court of Justice of the European Union, according to 
which new rules apply, unless otherwise specifically provided, immediately to the 
‘future effects’ of a situation which arose under the old rule (judgments of 10 June 
2010, Bruno and Others, C-395/08 and C-396/08, paragraph 53; 12 September 
2013, Kuso, C-614/11, paragraph 25; 14 April 1970, Brock, C-68/69, paragraph 7; 
10 July 1986, Licata v ESC, C-270/84, paragraph 31; 18 April 2002, Duchon, 
C-290/00, paragraph 21; 11 December 2008, Commission v Freistaat Sachsen, 
C-334/07, paragraph 43; and 22 December 2008, Centeno Mediavilla and Others 
v Commission, C-443/07, paragraph 61). 
11 However, in the view of the referring court, that principle of interpretation laid 
down in the case-law of the Court of Justice must instead be understood as 
supporting the first of those two approaches in case-law. When the Court of 
Justice states that the supervening rule applies to ‘future effects’, it supposedly 
refers, in principle, only to factual situations which arose before the entry into 
force of the new rule of EU law and which persist, with substantial continuity also 
subsequently, and not, on the other hand, to situations which have arisen and 
ended completely before the supervening rule entered into force. 
12 According to the referring court, that conclusion is consistent with the constraints 
imposed by the principles of legal certainty and the protection of legitimate 
expectations, which preclude substantive rules of EU law from applying, 
retroactively, to situations existing before their entry into force, unless it follows 
clearly from their terms, their objectives or their general scheme that such an 
effect must be given to them (judgments of 25 February 2001, Caisse pour 
l’avenir des enfants, C-129/20, paragraph 31; 29 January 2002, Pokrzeptowicz-
Meyer, C-162/00, paragraphs 49-50; 26 March 2015, Commission v Moravia Gas 
CONSIGLIO NAZIONALE DELLE RICERCHE 
 
5 
Storage, C-596/13 P, paragraphs 32 and 33; 7 November 2013, Gemeinde Altrip 
and Others, C-72/12, paragraph 22; 12 November 1981, Meridionale Industria 
Salumi and Others, 212/80 to 217/80, paragraph 9; 23 February 2006, 
Molenbergnatie, C-201/04, paragraph 31; 10 February 1982, Bout, C-21/81, 
paragraph 13; and 15 July 1993, GruSa Fleisch, C-34/92, paragraph 22). 
13 The referring court notes that, moreover, such an interpretation emerges precisely 
from the judgments of the Court of Justice which the above-mentioned second 
approach in national case-law puts forward, in contrast, as the basis for its 
different interpretation (judgments of 10 July 1986, Licata v ESC, C-270/84, 
paragraph 31; 29 June 1999, Butterfly Music, C-60/98, paragraph 24; 14 April 
1970, Brock, C-68/69, paragraphs 6-9; 24 January 2018, Pantuso and Others, 
C-616/16 and C-617/16, paragraph 37; Centeno Mediavilla and Others v 
Commission, paragraph 64; Commission v Freistaat Sachsen, paragraphs 33 and 
53; Gavieiro and Iglesias Torres, Joined cases C-444/09 and C-456/09, 
paragraph 90; Bruno and Others, paragraphs 52-55; 22 June 2022, Volvo, 
C-267/20, paragraphs 99-104, as well as Pokrzeptowicz-Meye and Kuso cited 
above). 
14 In those circumstances, the referring court considers that clause 4(1) of Directive 
1999/70/EC, interpreted in the light of the case-law of the Court of Justice on the 
non-retroactivity of EU law and the applicability of a supervening rule to the 
‘future effects’ of situations created in the past, must be understood as meaning 
that it does not cover the fixed-term employment relationships between the 
applicant and the CNR from 2 November 1993 to 31 March 1995 and from 
1 August 1995 to 1 August 2000, given that each of them was carried out and 
concluded on a date prior to the expiry of the deadline for transposition of the 
Directive. By contrast, that clause applies to the fixed-term employment 
relationship between the applicant and the CNR from 4 September 2000 to 
30 September 2001, since it was ongoing on the date of expiry of the deadline for 
transposition of the Directive.