Judgment;Summary — ECLI:EU:C:2023:933
Date: 2023-11-30
Language of the case: Italian
Court formation: First Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-270/22 – 1 
Case C-270/22 
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: 
22 April 2022 
Referring court: 
Tribunale ordinario di Ravenna (Italy) 
Date of the decision to refer: 
21 April 2022 
Applicants: 
G.D. 
A.R. 
C.M. 
Defendants: 
Ministero dell’istruzione 
Istituto nazionale della previdenza sociale (INPS) 
  
Subject matter of the main proceedings 
Reference for a preliminary ruling – Social policy – Directive 1999/70/EC – 
Framework agreement on fixed-term work concluded by ETUC, UNICE and 
CEEP – Clause 4 – Public sector – Secondary school teachers – Employment of 
former fixed-term workers as career civil servants through a competition based on 
qualifications – Determination of length of service – Account taken only in part of 
periods of service completed under fixed-term contracts 
Subject matter and legal basis of the request 
Article 19 TEU and Article 267 TFEU 
EN 
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Questions referred for a preliminary ruling 
1. Does the judgment of the Court of Justice of the European Union in Motter 
require Italy’s national rules on the reconstruction of teachers’ careers to be 
disapplied where, ‘in fact’, they are not more favourable for a teacher who was 
previously employed on a fixed-term basis than the career reconstruction carried 
out pursuant to Article 485 of decreto legislativo n. 297/1994 (Legislative Decree 
No 297/1994) and related rules? Or has Motter established in general and abstract 
terms – and thus in a way that applies to each individual case – that career 
reconstruction under national rules is compatible with clause 4, as a result of 
which the national court is not to disapply Article 485 of Legislative Decree 
No 297/1994 and related rules since they are compatible with EU law in that 
respect? 
2. In the alternative (that is to say, only if it were held that a selective 
disapplication of Article 485 was required under EU law, which should therefore 
be considered to be a ‘greater benefit’ rule), is clause 4 of the framework 
agreement on fixed-term work concluded on 18 March 1999, annexed to Council 
Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on 
fixed-term work (OJ 1999 L 175, p. 43), to be interpreted as requiring national 
legislation to recognise – for the purpose of calculating the length of service 
accrued under fixed-term contracts of a teacher who subsequently became 
permanent – the work carried out by the teacher under fixed-term contracts 
without there being any minimum threshold as regards the number of days to have 
been worked in each academic year? Or, on the contrary, is a national rule 
compatible with clause 4 if it disregards the temporary work carried out by 
teachers (short-term and ad hoc supply teaching jobs), unless such work was 
carried out for at least 180 days in each academic year, or from 1 February until 
the end of the grading process (Article 11(14) of legge n. 124/1999 (Law 
No 124/1999), according to which ‘paragraph 1 of Article 489 of the consolidated 
law is to be understood as meaning that temporary teaching work carried out since 
the 1974-1975 academic year is treated as a full academic year if it was carried 
out over a minimum of 180 days or if it was carried out continuously from 
1 February until the end of the final grading process’)? 
3. In the further alternative (that is to say, only if it were held that a selective 
disapplication of Article 485 was required under EU law, which should therefore 
be considered to be a ‘greater benefit’ rule), does clause 4 require fixed-term work 
carried out for a number of hours that is below the standard hours for permanent 
posts to be given equal value when calculating length of service once the teacher 
has become permanent? If not, the Court of Justice is asked to give its opinion on 
the minimum number of hours (for example part-time for an indefinite period) 
after which clause 4 would require such recognition in national law. 
From another point of view, is a national law compatible with the abovementioned 
clause 4 if it disregards – for the purpose of recognition of the temporary period of 
service completed by a teacher who subsequently becomes permanent – work 
MINISTERO DELL’ISTRUZIONE AND INPS 
 
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carried out on an hourly basis which is below the minimum weekly threshold for 
the number of hours worked part-time by a teacher in a comparable situation? 
In the further alternative to the last sub-question, is a national law compatible with 
the abovementioned clause 4 if – for the purpose of recognition of temporary 
periods of service completed by a teacher who subsequently becomes permanent – 
it provides for weight to be given on a pro rata basis to work carried out on an 
hourly basis which is below the minimum weekly threshold for the number of 
hours worked part-time by a teacher in a comparable situation? 
Provisions of European Union law and case-law relied on 
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 (‘the framework agreement on fixed-term work’); in particular clause 4. 
Judgment of the Court of Justice of in Case C-466/17, Motter. 
Other previous rulings of the Court of Justice not related to the career 
reconstruction of Italian teachers: judgments in C-307/05, Del Cerro Alonso; 
C-444/09 and C-456/09, Gavieiro Gavieiro and Iglesias Torres; C-177/10, 
Rosado Santana; C-302/11 to C-305/11, Valenza and Others; C-677/16, Montero 
Mateos; and order in C-315/17, Centeno Meléndez. 
Provisions of national law and case-law relied on 
The main provision is Article 485 of Legislative Decree No 297/1994, the first 
paragraph of which provides that the periods of service completed by teaching 
staff under fixed-term contracts at state and equivalent secondary and art schools, 
including those located abroad, are to 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 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. Paragraphs 2 and 3 extend those rules to 
periods of service completed at other types of schools. 
Article 489 of the same legislative decree, which repeats the wording of Article 4 
of decreto legge 370/1970 (Decree-Law No 370/1970), provides in particular that, 
for recognition purposes, teaching services are to be considered to have been 
provided for a full academic year if they qualified as such under the education 
system in force at the time. 
Article 11(14) of Law No 124/1999 provides that Article 489(1) of Legislative 
Decree No 297/1994 is to be understood as meaning that teaching services 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-270/22 
 
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provided under a fixed-term contract since the 1974/75 academic year are 
considered provided for a full academic year if they were provided for at least 
180 days or if the work was carried out continuously from 1 February until the 
end of the final grading process. 
Article 66(6) of the national collective labour agreement for the ‘schools’ sector 
for 1995-1997, referring to the provisions implementing Decree-Law 
No 370/1970, specifically mentions Article 4 of decreto del Presidente della 
Repubblica n. 399/1988 (Presidential Decree No 399/1988), which, in so far as is 
relevant for the present purposes, provides that, on completion of the 16th, 18th, 
20th or 24th year of service, depending on the type of school, the entire period of 
service recognised for salary purposes is valid for the assignment of subsequent 
pay grades. 
Article 97 of the Italian Constitution provides that employment in the public 
administration is accessed through competitive examinations, except in the cases 
established by law. 
Judgment No 31149/2019 of the Corte di cassazione (Supreme Court of Cassation, 
Italy). 
Succinct presentation of the facts and procedure in the main proceedings 
The three applicants are teachers who taught under different fixed-term contracts, 
of varying types and duration, and who subsequently became permanent teachers 
after passing a competition based on qualifications. At that point, the length of 
service they had obtained by working under those previous fixed-term contracts 
was recognised. However, the applicants disagree with the mechanism for 
calculating the length of service that is applied under national law and seek, inter 
alia, recognition of a greater length of service obtained using a calculation 
mechanism derived from case-law. 
The essential arguments of the parties in the main proceedings 
The applicants are arguing in favour of the disapplication of national law – which 
they consider to be in breach of clause 4 of the framework agreement on fixed-
term work – and the application of a mechanism for recalculating the actual length 
of service; that is to say, a full day-by-day reconstruction, treating each day they 
worked under a fixed-term contract (even though they had not passed a 
competition, and regardless of the timetable arrangements and working 
conditions) as equivalent to a day worked by a teacher on a permanent contract. 
Such a mechanism does not exist in national law and must be extrapolated – on 
the basis of the case-law of the Italian Court of Cassation – from a specific 
reading of Motter, and in particular from earlier rulings of the Court of Justice 
(although these are unrelated to the career reconstruction of Italian teachers). 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
1 The referring court is uncertain whether Italian legislation on career reconstruction 
is contrary to clause 4 of the framework agreement on fixed-term work and 
whether that national legislation must be disapplied. 
2 The problem stems from the need to draw a distinction between the national 
legislation (Article 485 of Legislative Decree No 297/1994 and related rules) and 
the national case-law (judgment No 31149/2019 of the Court of Cassation, which 
introduced the convention of ‘day-by-day career reconstruction’), which 
originated from the idea that the national legislation was incompatible with EU 
law. 
3 According to the referring court, Motter conclusively established in general that 
the mechanism provided by Article 485 of Legislative Decree No 297/1994 was 
not contrary to EU law as enshrined in clause 4 of the framework agreement on 
fixed-term work. The referring court thus holds that it is not possible to disapply 
the legislation and that it is not in fact possible to reconstruct a career on a day-by-
day basis. 
4 The referring court explains in detail the complex system provided for in Italian 
legislation for calculating the length of service of permanent teachers who have 
previously worked as temporary workers, concluding that Italian legislation often 
turns out to be favourable to temporary teachers, once they have become 
permanent members of the teaching staff. This is because completing 180 days of 
service (or even fewer, down to almost 150 days) is treated as equivalent to one 
year’s service, provided there is a certain level of continuity of service. In 
addition, the legislation makes no distinction on the basis of working hours or 
working arrangements, a fact that also benefits teachers who were previously 
temporary workers, since the first few years of employment often involve working 
shorter and more fragmented working hours, as well as short-term and ad hoc 
supply teaching jobs. In such cases, in respect of the first four years, temporary 
workers are recognised as having a length of service which, in fact, is almost 
always more favourable than that which a teacher employed on a permanent 
contract from the outset would obtain. It is evident therefore that this calculation 
mechanism is more favourable for temporary workers than for permanent 
teachers. 
5 However, to safeguard the interests of permanent teachers (thereby avoiding any 
reverse discrimination in favour of fixed-term workers), after the fourth year, one 
third of the length of service in subsequent years is temporarily set aside, and only 
released once the teacher reaches a certain level of seniority (this is referred to as 
‘realignment’ and governed by Article 66(6) of the 1995 collective agreement and 
Article 4 of Presidential Decree No 399/1988). 
6 The third (1/3) of the length of service that is recognised after the fourth year but 
set aside pending the realignment can be regarded as representing the share of 
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fixed-term work in respect of which there are objective grounds for differentiation 
from permanent employment: those grounds consist of the fact that the teacher 
had not passed a competition, on the one hand, and of the nature of the working 
hours and the general working conditions (the temporary nature of the work, lack 
of continuity from a professional, teaching, training and educational perspective) 
that characterise temporary work in schools, especially in the first few years of 
teaching, on the other. 
7 To conclude, Italian legislation may be favourable (this is normally the case given 
the reality of working conditions) or unfavourable for temporary workers who 
subsequently become permanent; it all depends on how their career develops 
during the period of temporary employment. That is because the legislation, which 
is applicable to millions of teachers and thus has to establish a uniform criterion, 
is the result of discretionary choices made to balance opposing interests.  
8 The referring court holds that either the balance is reasonable and justified, and so 
the rule deserves to remain in the system, or the balance is unreasonable, and so 
the rule should be removed from the system. By contrast, it cannot be applied 
where it is favourable and disapplied where it is unfavourable. 
9 In its judgment No 31149/2019, the Court of Cassation, giving its interpretation of 
Motter, ruled that Article 485 of Legislative Decree No 297/1994 must be 
disapplied, in that it is contrary to clause 4 of the framework agreement on fixed-
term work, in cases where the length of service resulting from the application of 
the relevant criteria is found to be inferior to the length of service recognisable for 
a comparable teacher that has been employed on a permanent contract from the 
outset. 
10 To illustrate the reasoning of the Court of Cassation, the referring court takes the 
hypothetical example of a temporary worker who has worked 1 000 days 
(irrespective of the frequency and working hours). It concludes that if the national 
law recognises more than 1 000 days for that temporary worker, then that law 
must be applied; if the national law recognises fewer than 1 000 days for that 
worker, then the national law is contrary to EU law and the 1 000 days 
(irrespective of the frequency and working hours) must be recognised for the 
fixed-term worker as if he had been a permanent worker. 
11 In the present case, the applicants count all the days worked (regardless of the 
working hours and conditions) in each year, arriving at a figure that exceeds the 
one recognised under national law. In that case – according to the Court of 
Cassation’s interpretation as reported by the referring court – the national law 
must be disapplied. However, the referring court is not satisfied that, in applying 
the complex legal mechanism envisaged by Italian legislation for career 
reconstruction, a detrimental effect is in fact produced for any of the three 
applicants. 
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12 Therefore, the Court of Cassation’s interpretation raises doubts for the referring 
court, which takes the view that it makes no sense to declare that the rules are 
compatible in abstract terms since they are the result of balancing different 
interests of persons belonging to different categories, and then to apply the 
national rule only if it is more favourable in practice and to disapply it if it is not. 
13 Moreover, according to the referring court, in Motter, the Court of Justice failed to 
take into account all the relevant provisions of Italian legislation, despite these 
being crucial. In particular, no consideration was given to the mechanism of career 
realignment, described above. 
14 At this point, according to the referring court, it cannot be held that national law 
discriminates against fixed-term workers as compared to permanent workers. 
However, it might treat an individual fixed-term worker differently from other 
fixed-term workers, depending on how his or her career develops during the 
period of fixed-term employment. If so, this would amount to discrimination that 
is beyond the scope of clause 4. 
15 The referring court observes that the mechanism devised by the Italian Court of 
Cassation proposes to verify in each individual case whether a teacher on a fixed-
term contract has been discriminated against. However, this analysis is carried out 
without examining the actual working conditions. Accordingly, no weight is given 
to the working hours completed and the continuity or otherwise of the service 
rendered – which are precisely some of the factors highlighted by Motter in order 
to conclude that there were objective grounds for a difference in treatment under 
clause 4. 
16 The referring court also considers that the partial nature of periods of service 
completed that fall below the minimum threshold set by the Italian legislature 
prevents those periods from being equated to a whole academic year of service by 
a teacher (whether temporary or permanent), and from being counted in future 
towards periods of service equivalent to periods served by a permanent teacher. In 
that respect, again the referring court observes that the difference in treatment is 
not between permanent teachers and teachers on a fixed-term contract, but 
between two categories of teachers on a fixed-term contract (those who worked 
continuously and those who did not). Accordingly, it doubts whether clause 4 is 
relevant for resolving the matter. 
17 A last doubt on the part of the referring court relates to work carried out on an 
hourly basis – that is to say, periods of service that do not amount to either full-
time employment or part-time employment – given that teaching for more hours 
inevitably leads to more experience and therefore length of service, whereas the 
fewer the hours worked, the less professional experience is gained. However, the 
Italian Court of Cassation does not regard this aspect as discriminatory when 
assessing the teacher’s career development and therefore concludes that EU law 
and clause 4 in particular require that teaching on an hourly basis (even for fewer 
hours than a part-time teacher on a permanent contract) should be treated as 
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equivalent to the period of service completed by a permanent teacher (also 
working part-time). The referring court observes that such a solution is not 
required by EU law, but that, given the authority of the decisions of the Italian 
Court of Cassation, it is necessary also to resolve that further doubt as to 
interpretation. 
18 It follows from the above that there are contrasting views on the scope of Motter 
and, more generally, the scope of EU law, which have been interpreted differently 
by the Court of Justice and the Italian Court of Cassation. According to the 
referring court, it is therefore necessary to submit the present request for a 
preliminary ruling, given that the Court of Cassation is Italy’s highest court and 
the referring court must follow its approach, in so far as any judgments that 
deviate from that approach would probably be set aside at subsequent stages of the 
proceedings. 
19 Lastly, the referring court requests that the expedited procedure be applied, given 
the nature and importance of the case and the large number of similar disputes that 
are pending.