Judgment;Summary — ECLI:EU:C:2023:489
Date: 2023-06-15
Language of the case: Italian
Court formation: Sixth Chamber
Subject matter: Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Italy

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: 
25 February 2022 
Referring court: 
Tribunale Amministrativo Regionale per il Lazio (Italy) 
Date of the decision to refer: 
13 December 2021 
Applicants: 
BM 
NP 
Defendant: 
Ministero dell’Istruzione, dell’Università e della Ricerca – MIUR 
  
Subject matter of the main proceedings 
Actions brought before the Tribunale Amministrativo Regionale per il Lazio 
(Regional Administrative Court, Lazio, Italy) seeking the annulment of decreto 
ministeriale n. 597/2018 (Ministerial Decree No 597/2018). That decree, adopted 
by the Ministero dell’Istruzione, dell’Università e della Ricerca (Ministry of 
Education, Universities and Research, Italy), governs the procedure for compiling 
national lists of candidates for permanent and temporary teaching posts in State 
higher education institutions for the fine arts, music and dance (alta formazione 
artistica, musicale e coreutica – AFAM) (‘the AFAM institutions’). The decree is 
contested in so far as – for the purpose of admission to that procedure – it does not 
allow the possibility that the requisite professional experience of at least three 
years may also be gained at peer institutions in other Member States. To that end, 
the disapplication is also requested of legge n. 205/2017 (Law No 205/2017), 
which is the primary legislation on the basis of which the abovementioned 
ministerial decree was adopted. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-132/22 
 
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Subject matter and legal basis of the request 
Compatibility of Italian legislation on the compilation of national lists for 
awarding permanent and temporary teaching posts in AFAM institutions with 
Article 45(1) and (2) TFEU and with Article 3(1)(b) of Regulation (EU) 
No 492/2011. 
Question referred for a preliminary ruling 
Must Article 45(1) and (2) TFEU and Article 3(1)(b) of Regulation (EU) 
No 492/2011 be interpreted as precluding a rule, such as that laid down in 
Article 1(655) of Law No 205/2017, according to which, in order to take part in 
the procedure for inclusion on the lists compiled for the award of permanent and 
temporary teaching contracts in Italian AFAM institutions, professional 
experience gained by candidates at those national institutions alone is taken into 
account, and not experience gained at peer institutions in other European 
countries, given that the procedure in question is specifically intended to counter 
the phenomenon of precarious employment in Italy? If the Court of Justice does 
not hold the Italian legislation to be contrary, in abstract terms, to the European 
regulatory framework, can the measures envisaged by that legislation be regarded 
as proportionate, in concrete terms, in view of the abovementioned public-interest 
objective? 
Provisions of EU law relied on 
Article 45(1), (2) and (4) TFEU. 
Article 3(1)(b) of Regulation (EU) No 492/2011 of the European Parliament and 
of the Council of 5 April 2011 on freedom of movement for workers within the 
Union (‘Regulation No 492/2011’). 
Provisions of national law relied on 
Law No 205 of 27 December 2017 (‘Law No 205/2017’). In particular, 
Article 1(655) provides that teaching staff who do not already hold permanent 
contracts in AFAM institutions, who have passed the competition for inclusion on 
the lists and who have accrued at least three academic years of teaching, even if 
non-consecutive, in the last eight academic years, up to and including the 
2020/2021 academic year, at one of those institutions and on the courses 
stipulated in the relevant legislation, are to be included on specific national lists 
for the award of permanent and temporary teaching posts, subject to the current 
national lists based on qualifications and those referred to in paragraph 653, 
within the limits of the vacancies available. The inclusion process is defined by 
decree of the Ministro dell’Istruzione, dell’Università e della Ricerca (Minister for 
Education, Universities and Research). 
MINISTERO DELL’ISTRUZIONE, DELL’UNIVERSITÀ E DELLA RICERCA 
 
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Ministerial Decree No 597/2018 (‘Decree No 597/2018’). In particular, 
Article 2(1), in defining the required amount of teaching experience, provides that 
only candidates who have completed at least three academic years of teaching at 
AFAM institutions may take part in the procedure for compiling the lists, 
irrespective of any prior professional experience gained at peer institutions in 
other Member States. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The defendant Ministry, on the basis of Article 1(655) of Law No 205/2017, 
adopted Decree No 597/2018 to lay down the rules for compiling lists for 
awarding teaching posts in AFAM institutions. 
2 The applicants contested Decree No 597/2018 before the referring court, seeking 
its annulment in so far as, in Article 2(1) – for the purpose of admission to the 
procedure for the compilation of the lists – it does not recognise prior professional 
experience gained in foreign institutions, as well as seeking annulment of the 
national list drawn up pursuant to that decree. The applicants also request the 
disapplication of Article 1(655) of Law No 205/2017, which constitutes the 
underlying primary legislation. 
3 The defendant Ministry requests that the actions be dismissed as unfounded. 
The essential arguments of the parties in the main proceedings 
4 The applicants submit that the Italian legislation infringes Article 45 TFEU and 
Article 3 of Regulation No 492/2011, as well as the principles of impartiality and 
sound public administration under Articles 3 and 97 of the Italian Constitution. 
5 The defendant contends, in particular, that Decree No 597/2018 is not unlawful, 
since its content complies with the provisions of Law No 205/2017, which is the 
higher-ranking law and thus constitutes binding primary legislation. 
6 The defendant further emphasises that the purpose of the rules laid down by Law 
No 205/2017 is to overcome the precarious situation in which many teachers in 
AFAM institutions find themselves – as is also evident from Article 1(653) of the 
Law, to which Article 1(655) refers – which thus justifies the requirement for 
experience to be gained specifically at those institutions in order to remedy this 
situation. 
7 The defendant also refutes the infringement of the abovementioned provisions of 
EU law inasmuch as, in the present case, there is no difference of treatment based 
on the candidates’ nationality, since the requirement for admission to the 
procedure applies without distinction to both Italian and foreign nationals. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-132/22 
 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
8 With regard to Decree No 597/2018, the referring court notes that it allows the 
possibility of considering periods of service abroad in peer institutions of national 
AFAM institutions solely for the purpose of assessing candidates’ qualifications, 
but not for the computation of the three years’ teaching experience, which is the 
requirement for taking part in the procedure laid down by the national legislation 
at issue. 
9 As to the interpretation of Article 45 TFEU, the referring court does not consider 
the judgment of the Court of Justice of 23 [February] 1994, Scholz (C-419/92), 
cited by the applicants, to be relevant in the present case, since that case 
concerned an open competition and the failure to award – for the purpose of 
assessing qualifications for the compilation of the list – points for prior periods of 
public service in another Member State. By contrast, the present case concerns a 
procedure reserved for teachers with previous work experience in the specific 
sector of AFAM State institutions, and not an open competition. Moreover, in the 
case cited, the period of service was not taken into account for the purpose of 
assessing candidates’ qualifications, whereas, in the present case, that period is 
deemed valid for that purpose, but not for the purpose of satisfying the 
requirement relating to three years’ service. 
10 The judgment of the Court of Justice of 12 May 2005, [Commission v Italy] 
(C-278/03) is also irrelevant, since that case concerned discrimination against 
European citizens in accessing public-sector employment in Italy, whereas, in the 
present case, the applicants are Italian citizens who have worked in other Member 
States. 
11 By contrast, as regards the interpretation of Article 3 of Regulation No 492/2011, 
the referring court cites the judgments of the Court of Justice of 23 April 2020, 
WN v Land Niedersachsen (C-710/18, paragraph 33), of 30 September 2003, 
Köbler (C-224/01), and of 10 October 2019, Krah (C-703/17). The referring court 
observes that it is clear from that case-law that the possibility of excluding prior 
periods of service completed in another Member State cannot be entirely ruled 
out, since a restriction on the principle of the free movement of workers may be 
permissible if it pursues one of the objectives enshrined in the FEU Treaty, or if it 
is justified by overriding reasons in the public interest, provided that there is 
compliance with the principle of proportionality. 
12 It is precisely in the light of the foregoing that the referring court seeks to 
ascertain whether the objective of overcoming precarious employment in Italy in 
the AFAM sector, pursued by the Italian legislation here at issue, can justify the 
restrictions imposed on taking part in the procedure for compiling the lists in 
question, and whether it is proportionate. 
13 In that regard, the referring court, recalling the judgment of 26 November 2014, 
Mascolo and Others v MIUR (C-22/13, C-61/13 to C-63/13, and C-418/13), states 
MINISTERO DELL’ISTRUZIONE, DELL’UNIVERSITÀ E DELLA RICERCA 
 
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that the adoption by Member States of measures to combat the phenomenon of 
precarious employment in the public sector, resulting from a succession of 
temporary contracts, is intended to satisfy not only national but also [EU] 
interests, as is apparent from Directive 1999/70/EC. 
14 With regard to the proportionality of the measures, the referring court notes that, 
as provided for by decreto del presidente della Repubblica n. 143/2019 
(Presidential Decree No 143/2019), currently 50% of permanent staff for AFAM 
institutions are recruited on the basis that they have moved up the national lists, 
while the remaining places are awarded to candidates who have been successful in 
open competitions based on tests and qualifications. For temporary contracts, 
however, it is provided that the teachers included on those national lists will be 
given priority, and that individual institutions may issue calls for the compilation 
of lists on an ancillary basis, if not all vacancies can be filled. Therefore, inclusion 
on the lists in question is not the only option for obtaining a permanent teaching 
post in AFAM State institutions, since at least 50% of the available places are still 
reserved for candidates who are successful in open competitions based on tests 
and qualifications, to which the restrictions imposed by Law No 205/2017 do not 
apply. 
15 The Corte costituzionale (Italian Constitutional Court), in its judgment No 106 of 
2 May 2019, has also affirmed – albeit with reference to different legislation 
relating to extraordinary competitions – that such rules are in principle compatible 
with the Italian Constitution, since, by giving certainty to legal relations and 
seeking to overcome precarious employment, they are intended to ensure sound 
administration. Consequently, those rules do not impinge unreasonably on the 
right of access to public service and on the principle of open competition. 
16 In the light of the foregoing, the referring court has decided to refer the matter to 
the Court of Justice for a preliminary ruling.