Judgment;Summary — ECLI:EU:C:2022:263
Date: 2022-04-07
Language of the case: Italian
Court formation: First Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Approximation of laws;Social Policy;Free movement of workers;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-236/20 – 1 
In Case C-236/20 
Summary of a request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
4 June 2020 
Referring court: 
Tribunale Amministrativo Regionale per la Emilia Romagna (Italy) 
Date of the decision to refer: 
27 May 2020 
Applicant: 
PG 
Defendants: 
Ministero della Giustizia 
CSM – Consiglio Superiore della Magistratura 
Presidenza del Consiglio dei Ministri 
  
Subject matter of the case in the main proceedings 
Action brought before the Tribunale Amministrativo Regionale per la Emilia-
Romagna (Regional Administrative Court, Emilia-Romagna, Italy) by a giudice di 
pace (magistrate), the applicant, for a declaration that he is entitled to the 
establishment of a public service relationship, on a full-time of a part-time basis, 
with the Ministry of Justice, and for an order requiring the latter to pay the 
difference in remuneration due and other charges. 
Subject matter and legal basis of the reference 
Compatibility of the Italian legislation on lay judges, and in particular magistrates, 
with Articles 20, 21, 31, 33, 34 and 47 of the Charter of Fundamental Rights of 
the European Union, with Clauses 2, 4 and 5 of the framework agreement 
contained in Directive 1999/70/EC, with Clause 4 of Directive 1997/81/EC, with 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-236/20 
 
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Article 7 of Directive 2003/88/CE, with Articles 1 and 2(2)(a) of Directive 
2000/78/EC, with the principles of EU law relating to the autonomy and 
independence of the judiciary, and with the case-law of the Court of Justice of the 
European Union (‘the Court’) on work. 
Questions referred 
(1) Do Articles 20, 21, 31, 33 and 34 of the Charter of Fundamental Rights of 
the European Union, Directive No 1999/70/EC on fixed-term work (Clauses 2 and 
4 of the Framework Agreement), Directive No 1997/81/EC on part-time work 
(Clause 4 of the Framework Agreement), Directive No 2003/88/EC on the 
organisation of working time (Article 7) and Directive No 2000/78/EC (3) on 
equal treatment in employment and occupation (Articles 1 and 2(2)(a)) preclude 
the application of national legislation, such as the Italian legislation set out in Law 
374/91, as subsequently amended, and Legislative Decree 92/2016, as consistently 
interpreted in the case-law, under which giudici di pace (magistrates), as lay 
judges, in addition to not being treated in the same way as giudici togati (career 
judges engaged on a permanent basis and salaried) as regards emoluments and 
pension and social security entitlements, are completely excluded from all forms 
of pension and social security protection afforded to employees in the public 
sector? 
(2) Do EU principles relating to the autonomy and independence of the 
judiciary, in particular Article 47 of the Charter of Fundamental Rights of the 
European Union, preclude the application of national legislation, such as the 
Italian legislation under which giudici di pace, as lay judges, in addition to not 
being treated in the same way as giudici togati as regards emoluments and pension 
and social security entitlements, are completely excluded from all forms of 
pension and social security protection afforded to employees in the public sector? 
(3) Does Clause 5 of the Framework Agreement on part-time work concluded 
by UNICE, CEEP and the ETUC on 18 March 1999, annexed to Directive 
1999/70/EC, preclude the application of national legislation, such as the Italian 
legislation under which the fixed period of service of giudici di pace, as lay 
judges, originally set at eight years (four plus four years), may be systematically 
renewed for a further four years without any provision for effective and dissuasive 
penalties, instead of the employment relationship being converted into one of 
indefinite duration? 
Provisions of EU law relied on 
Charter of Fundamental Rights of the European Union (‘the Charter’): Articles 20, 
21, 31, 33, 34 and 47. 
Article 45 TFEU 
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Council Directive 1999/70/EC of 28 June 1999 concerning the framework 
agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 
L 175, p. 43). In particular Clauses 2, 4 and 5 of the framework agreement 
contained in that directive (‘the framework agreement’). 
Council Directive 97/81/EC of 15 December 1997 concerning the Framework 
Agreement on part-time work (OJ 1998 L 14, p. 9): Clause 4. 
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 
(OJ 2003 L 299, p. 9): Article 7. 
Council Directive 2000/78/EC of 27 November 2000 establishing a general 
framework for equal treatment in employment and occupation (OJ 2000 L 303, 
p. 16): Articles 1 and 2(2)(a). 
Provisions of national law relied on 
The Italian Constitution: Article 107(3), under which ‘[the] judges shall be 
distinguished from one another only by their different duties’, and Article 36 on a 
worker’s inalienable right to leave. 
Law No 374 of 21 November 1991 establishing the office of magistrate, which 
created the office of magistrate and fixed the maximum duration of his or her 
period of service at eight years (two terms of four years each). Under Article 1(1), 
a magistrate ‘shall exercise jurisdiction in civil and criminal matters and shall 
conduct settlement procedures in civil matters’. Before being appointed, a 
magistrate is required to complete a six-month probationary period (Article 4-bis) 
and, subsequently, compulsory continuing training. The appointment and 
performance of the duty of magistrate is absolutely incompatible with the 
performance of any other employment, public or private (Article 5(1)(g)) and any 
position of a political nature (Article 8), with the result that, beyond the option 
open to magistrates to practise the profession of lawyer outside the district of the 
court to which they belong, and within the limits laid down in Article 8(1-bis) and 
(1-ter), there is a duty of exclusivity which is identical to that of other public 
servants. Under Article 10, magistrates are subject to the duties of ordinary 
judges. They are also subject to the disciplinary power of the Supreme Council of 
the Judiciary. Under Article 11, the emolument laid down for the performance of 
the duty of magistrates consists, on the one hand, of a fixed allowance and, on the 
other, of a variable allowance based on the hearings held, the cases assigned to 
him or her and the acts performed, which may not exceed a ceiling. 
Various legislative measures have been adopted on the period of service initially 
provided for in Law No 374/91: from Decree-Law No 115/2005, converted by 
Law No 168/2005, which extended the period of 8 years by providing for a further 
term of four years, to Legislative Decrees No 92/2016 and No 116/2017. The 
latter, in particular, provided in Article 29 that lay judges in service on the date of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-236/20 
 
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its entry into force may be confirmed, at the end of the first four-year period, for 
each of the three following four-year periods. 
Succinct presentation of the facts and the main proceedings 
1 The applicant, who carried out the duties of magistrate without interruption from 
3 July 2002 to 31 May 2016, brought an action before the Tribunale 
Amministrativo Regionale per la Emilia-Romagna for a declaration that he is 
entitled to the establishment of a public service employment relationship, on a 
full-time or a part-time basis, with the Ministry of Justice. 
The essential arguments of the parties to the main proceedings 
2 The applicant claims that magistrates are comparable, from the point of view of 
the duties carried out, to career judges, with the result that they should be granted 
the right to a public service employment relationship. 
3 In support of the foregoing, the applicant maintains that magistrates: adjudicate in 
civil and criminal matters in the same way in the same way as career judges, 
within the scope of their jurisdiction ratione materiae and for the value of disputes 
provided for in law; are integrated into the organisation of the Ministry of Justice, 
which is their employer; are required to comply with a predetermined work 
schedule and hearing schedule; have a duty of exclusivity, like all other public 
servants, without prejudice to the possibility of practising law outside the district 
of the court to which they belong; are subject to the duties of ordinary judges and, 
like the latter, are subject to the disciplinary power of the Supreme Council of the 
Judiciary; receive a monthly remuneration consisting of a fixed and a variable 
part; the gross average remuneration of a magistrate is EUR 24 000.00; for tax 
purposes the income of a magistrate is treated in the same way as that of an 
employee, with the application of the same deductions as a public servant (with 
the obvious exception of social security deductions, unless protection is granted). 
4 In the light of the foregoing, the applicant considers that the Italian legislation on 
lay judges is contrary to EU legislation on work and the judgment of the Court of 
Justice of 1 March 2012, O’Brien, C-393/10, which ruled with regard to UK lay 
judges that their duties and those of career judges are substantially identical and 
therefore unequal treatment of the two categories is unlawful. 
Succinct statement of the reasons for the reference 
Case-law of the Court of Justice relied on 
5 Relying on the case-law of the Court, the national court points out that there is no 
single definition of worker in EU law, as it varies according to the area in which 
the definition is to be applied, and it cannot be defined by reference to the 
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legislation of the Member States (judgments of 12 May 1998, Martínez Sala, 
C-85/96, and of 13 January 2004, Allonby, C-256/01). In relation to the definition 
of this term, laid down in Article 45 TFEU, the Court consistently takes three 
objective criteria as a basis: the effective and genuine nature of the service, the 
subjection of the recipient of the consideration to the direction, and the onerous 
nature thereof (judgments of 31 May 1989, Bettray, C-344/87; of 14 December 
1989, The Queen, C-3/87; of 8 June 1999, Meeusen, C-337/97, and of 23 March 
2004, Collins C-138/02). 
6 According to the Court, the term ‘employee’ for the purpose of EU law must itself 
be defined according to objective criteria that characterise the employment 
relationship, taking into consideration the rights and responsibilities of the persons 
concerned, with the result that ‘the essential feature of [the employment] 
relationship is that for a certain period of time one person performs services for 
and under the direction of another person in return for which he receives 
remuneration’ (judgments of 4 December 2014, FNV Kunsten Informatie en 
Media, C-413/13; of 21 February 2013, L.N., C-46/12, and of 10 September 2014, 
Haralambidis, C-270/13). 
7 The Court also included within the scope of Article 45 TFEU other types of 
workers, such as part-time, seasonal and other workers (judgments of 23 March 
1982, Levin, 53/81; of 3 June 1986, Kempf, C-139/85; of 26 February 1992, 
Raulin, C-357/89; and of 21 June 1988, Brown, C-197/86). 
8 The Court furthermore stated that where the activity performed is essentially 
identical, the Framework Agreement on part-time work ‘precludes, for the 
purpose of access to the retirement pension scheme, national law from 
establishing a distinction between full-time judges and part-time judges 
remunerated on a daily fee-paid basis, unless such a difference in treatment is 
justified by objective reasons, which is a matter for the referring court to 
determine’. Furthermore, the sole fact that judges are treated as judicial office 
holders is insufficient in itself to exclude the latter from enjoying the rights 
provided for by that framework agreement (judgment of 1 March 2012, O’Brien, 
C-393/10). 
9 As regards Clauses 4 and 5 of the Framework Agreement, reference is made to the 
case-law of the Court relating to, respectively, the term ‘objective grounds’ as 
justification for different treatment of part-time and full-time workers (judgment 
of 13 September 2007, Del Cerro Alonso, C-307/05) and misuse of fixed-term 
contracts (judgment of 7 March 2018, Santoro, C-494/16). 
Reasons for referring the questions for a preliminary ruling 
10 The referring court is uncertain as to the conformity of the Italian legislation on 
lay judges with EU law on work since although their employment relationship is 
classified as ‘lay’, they carry out duties entirely comparable to those of career 
judges, or in any event an employee of a public authority. 
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11 The referring court notes, however, that settled Italian case-law, in particular that 
of the Corte di Cassazione (Court of Cassation), excludes the possibility of the 
position of magistrate being classified under a public law employment relationship 
since it does not display the typical characteristics thereof. 
12 A public servant is selected by competition, whereas the choice of lay judges is 
political and discretionary in nature. A public servant is also incorporated in the 
organisational apparatus of the public administration in a structural and 
professional manner, while a lay official is included in a purely functional way. 
The conduct of lay duties is not covered by specific rules, whereas a public law 
employment relationship is governed by a special statute. In addition, a public 
servant receives an actual salary, whilst the remuneration of a lay official consists 
of an allowance. Finally, the duration of the public law employment relationship is 
generally indefinite, whilst that of a lay official is fixed. 
13 The position of magistrate is therefore excluded from all pension and social 
security schemes, including with regard to the protection of health, maternity and 
the family, and from the inalienable right of every worker to leave laid down in 
Article 36 of the Constitution. 
14 Career judges, on the other hand, have an employment relationship governed by 
public law within the meaning of Article 3 of Legislative Decree No 165 of 
30 March 2001 and are therefore employees. 
15 The referring court submits that the mere legislative classification of a public 
service relationship as a lay relationship does not appear to be sufficient to rule 
out the factual and legal existence of an employment relationship. Furthermore, 
discrimination against part-time and/or temporary public-sector workers is not 
justified by objective and transparent criteria since the rules on magistrates 
contain no precise and specific factors which characterise their employment 
relationship. On the contrary, these rules amount to exploiting the work of 
magistrates in an intensive, continuous and full-time manner, at low cost, without 
providing any guarantee or protection for pension and social security purposes, or 
guaranteeing continuity of service, but having recourse to unjustified repetitions 
of fixed-term employment relationships. 
16 Moreover, it is not possible to identify objective grounds for different treatment in 
the abstract possibility of a magistrate practising as a lawyer outside the district. 
As the Court ruled in its judgment in O’Brien, C-393/10, with regard to UK lay 
judges, ‘it cannot be argued that full-time judges and recorders are not in a 
comparable situation because they have different careers’ since what matters is 
instead whether they perform the same activity. 
17 Nor can the differences in the procedure for selecting judges or the formal 
classification of the remuneration paid as an allowance constitute objective 
reasons on account of the clearly synallagmatic nature of the employment 
relationship. Finally, the fixed term of the relationship cannot constitute an 
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objective reason either since a fixed-term worker should in principle enjoy the 
same rights as a permanent worker; furthermore, the systematic extensions of 
periods of service over a long period has created a kind ‘stabilisation’ of the lay 
relationship. Contrary to the view taken by the Corte di Cassazione, a magistrate 
is therefore integrated into the organisational apparatus of the administration of 
justice. 
18 Even if it were considered that the above characteristics of magistrates’ duties 
constitute objective reasons justifying the different treatment of them in 
comparison with career judges, that distinction could only make it possible to 
exclude the right to full assimilation, and thus the applicability to magistrates of 
the same emoluments and social security entitlements as career judges, but could 
not entail the denial of any right, such as the right to fair remuneration, to a 
pension, to health and maternity protection and continuity of the relationship in 
the event of unlawful repetition of a fixed-term relationship. 
19 Furthermore, the Italian legislation under consideration appears to be incapable of 
protecting the autonomy and independence of the duties carried out by magistrates 
guaranteed, in particular, by Article 47 of the Charter and Article 6 of the ECHR. 
20 The referring court is uncertain as to the compatibility of the Italian legislation at 
issue with Clause 5 of the Framework Agreement, as regards systematic extension 
of the period of service of a magistrate, also because no provision is made for 
alternative penalties which are ‘effective and a deterrent’ with regard to failure to 
convert an employment relationship into one of indefinite duration. 
21 Finally, the referring court considers that the fact that other cases concerning the 
compatibility with EU law of Italian legislation on lay judges (Cases C-658/18 
and C-834/19) are currently pending before the Court does not render the present 
request for a preliminary ruling irrelevant since the questions raised in those two 
cases do not cover entirely the discernible aspect of incompatibility of the national 
legislation. 
22 In the light of the foregoing considerations, the referring court decided to refer the 
matter to the Court for a preliminary ruling.