Judgment;Summary — ECLI:EU:C:2020:272
Date: 2020-04-02
Language of the case: Italian
Court formation: Eighth Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Italy

Anonymised version 
Translation C-670/18 — 1 
Case C-670/18 
Request for a preliminary ruling 
Date lodged: 
29 October 2018 
Referring court: 
Tribunale Amministrativo Regionale per la Sardegna (Italy) 
Date of the decision to refer: 
21 February 2018 
Applicant: 
CO 
Defendant: 
Comune di Gesturi 
  
[...] 
ITALIAN REPUBLIC 
The Tribunale Amministrativo Regionale per la Sardegna (Regional 
Administrative Court for Sardinia) 
(First Chamber) 
makes the following 
ORDER 
in the proceedings [...] brought by  
CO, [...],  
against 
EN 
REQUEST FOR A PRELIMINARY RULING OF 21.2.2018 — CASE C-670/18 
 
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Comune di Gesturi (Municipality of Gesturi), [...],  
requesting the suspension and revocation of Call for Expressions of Interest 
No 5722 of the Municipality of Gesturi of 28 December 2017, relating to 
‘Analysis and Consultancy on a Municipal Eco-Centre’. 
[...] 
[Or. 2] 
1 By means of the current proceedings, the applicant CO is seeking the revocation 
of Call for Expressions of Interest No 5722 of 28 December 2017, published by 
the Municipality of Gesturi, relating to ‘Analysis and Consultancy on a Municipal 
Eco-Centre’, to the extent that the requirements for participation laid down in that 
document state that interested parties may not be retired public employees. 
Specifically, the call for expressions of interest states that interested parties must 
meet the following requirements in order to be awarded an analysis and 
consultancy role: 
‘- Degree in Medicine and Surgery 
- Specialisation in Hygiene 
- proven management experience in the Italian national health service for at least 
five years 
- not a public or private employee who has already retired.’ 
The applicant in the present case alleges that he is not able to take part in the 
procedure because he is currently a retired public employee, despite meeting all 
the other subjective requirements set out in the call for expressions of interest 
concerned [...]. 
2 As a first plea, the applicant asserts that the above exclusion clause cannot apply 
because of the unlawful nature of Article 5(9) of decreto-legge 6 luglio 2012, n. 
95 (Decree-Law No 95 of 6 July 2012) [converted, with amendments, by legge 
7 agosto 2012, n. 135 (Law No 135 of 7 August 2012), in the version of the text 
amended by Article 6 of decreto-legge 24 giugno 2014 n. 90 (Decree-Law No 90 
of 24 June 2014), converted by legge 11 agosto 2014 n. 114 (Law No 114 of 
11 August 2014)], which lays down that public administrative authorities may not 
award analysis and consultancy roles to individuals who are already retired public 
or private employees, on the ground that this conflicts with Article 21 of the 
Charter of Fundamental Rights of the European Union and with Council Directive 
2000/78/EC of 27 November 2000, and especially with Article 1, Article 2(2)(b), 
Article 3(1)(a), Article 4(1) and Article 6(1)(c) of that directive. 
[Or. 3] 
COMUNE DI GESTURI 
 
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According to the applicant, the national provision creates an indirect form of 
discrimination, linked to the age of the individuals applying, that falls within the 
types described in Article 2(2)(b) of the above Council Directive 2000/78, and is 
therefore contrary to the objective of combating discrimination (including 
discrimination on grounds of age) laid down in Article 1 of that directive. That 
discrimination does not appear to be underpinned by a ‘legitimate aim’ (as 
required by Article 6(1) of Directive 2000/78), given that the stated aim of the text 
is to avoid situations in which ‘retired individuals assume substantial 
responsibilities in administration’ and to ‘ensure the natural replacement of 
personnel’. 
On the basis of the foregoing, the applicant is asserting the unlawfulness, and the 
consequent revocability or nullity, of the clause contained in the call for 
expressions of interest, in that it applies provisions that must be set aside because 
they conflict with provisions of EU law. 
The applicant also alleges that the abovementioned national provision is 
incompatible with Article 21 of the Charter of Fundamental Rights of the 
European Union. 
3 The Municipality of Gesturi has not filed an appearance in the proceedings. 
4 [...]. [internal procedure] 
5 The Tribunale Amministrativo Regionale believes that it is necessary to submit 
this matter to the Court of Justice of the European Union, by means of a request 
for a preliminary ruling under Article 267 TFEU, on the question of the 
compatibility with EU law of the provision laid down in Article 5(9) of Decree-
Law No 95 of 6 July 2012 (converted, with amendments, by Law No 135 of 
7 August 2012, in the version of the text amended by Article 6 of Decree-Law 
No 90 of 24 June 2014, converted by Law No 114 of 11 August 2014), which 
precludes the possibility for public administrative authorities to award analysis 
and consultancy roles to individuals [Or. 4] who are already retired public or 
private employees. 
6 The question is indeed significant, because the contested clause of the tender 
notice preventing participation in the selection process constitutes a direct 
application of the above legal text. If the proposed challenge were to be upheld, 
therefore, it would be possible to settle the dispute, with the consequent revocation 
of the clause in that tender notice. 
7 Relevant provisions of EU law 
To settle this case, the relevant provisions to be considered are those laid down in 
Council Directive 2000/78/EC of 27 November 2000, as follows: 
- Article 1, according to which ‘The purpose of this Directive is to lay down a 
general framework for combating discrimination on the grounds of religion or 
REQUEST FOR A PRELIMINARY RULING OF 21.2.2018 — CASE C-670/18 
 
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belief, disability, age or sexual orientation as regards employment and 
occupation, with a view to putting into effect in the Member States the principle of 
equal treatment’; 
- Article 2(1), (2) and (4), according to which: 
‘1. For the purposes of this Directive, the “principle of equal treatment” shall 
mean that there shall be no direct or indirect discrimination whatsoever on any of 
the grounds referred to in Article 1. 
2. For the purposes of paragraph 1: 
(a) direct discrimination shall be taken to occur where one person is treated less 
favourably than another is, has been or would be treated in a comparable 
situation, on any of the grounds referred to in Article 1; 
(b) indirect discrimination shall be taken to occur where an apparently neutral 
provision, criterion or practice would put persons having a particular religion or 
belief, a particular disability, a particular age, or a particular sexual orientation 
at a particular disadvantage compared with other persons unless: (i) that 
provision, criterion or practice is objectively [Or. 5] justified by a legitimate aim 
and the means of achieving that aim are appropriate and necessary; … 
4. An instruction to discriminate against persons on any of the grounds referred to 
in Article 1 shall be deemed to be discrimination within the meaning of 
paragraph 1. 
…’; 
- Article 3(1), according to which ‘Within the limits of the areas of competence 
conferred on the Community, this Directive shall apply to all persons, as regards 
both the public and private sectors, including public bodies, in relation to: 
(a) conditions for access to employment, to self-employment or to occupation, 
including selection criteria and recruitment conditions, whatever the branch of 
activity and at all levels of the professional hierarchy, including promotion; 
(b) access to all types and to all levels of vocational guidance, vocational 
training, advanced vocational training and retraining, including practical work 
experience; 
(c) employment and working conditions, including dismissals and pay; 
(d) membership of, and involvement in, an organisation of workers or employers, 
or any organisation whose members carry on a particular profession, including 
the benefits provided for by such organisations.’ 
Article 21(1) of the Charter of Fundamental Rights of the European Union is also 
relevant, in that it prohibits ‘any discrimination based on any ground such as sex, 
COMUNE DI GESTURI 
 
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race, colour, ethnic or social origin, genetic features, language, religion or belief, 
political or any other opinion, membership of a national minority, property, birth, 
disability, age or sexual orientation.’ 
8 National legal provisions. 
In terms of national legal provisions, the relevant provision is Article 5(9) of 
Decree-Law No 95 of 6 July 2012 (converted, with amendments, by Law No 135 
of 7 August 2012, in the version of the text amended by Article 6 of Decree-Law 
No 90 of 24 June [Or. 6] 2014, converted by Law No 114 of 11 August 2014, 
according to which ‘The public administrative authorities indicated in Article 1(2) 
of Legislative Decree No 165/2011, and the public administrative authorities 
included in the consolidated income statement of the public service, as identified 
by the Istituto nazionale di statistica (National Institute of Statistics — ISTAT) 
under Article 1(2) of legge 31 dicembre 2009, n. 196 (Law No 196 of 
31 December 2009), and independent authorities, including the Commissione 
nazionale per le società e la borsa (the Italian financial regulator — Consob), 
may not award analysis and consultancy roles to individuals who are already 
retired public or private employees. Furthermore, the abovementioned 
administrative authorities may not award such individuals management roles or 
positions on governing bodies within the administrative authorities indicated in 
the first sentence and bodies and companies controlled by those administrative 
authorities, with the exception of members of boards of regional authorities and 
members or representatives of elected bodies of the agencies described in 
Article 2(2-bis) of decreto-legge 31 agosto 2013, n. 101 (Decree-Law No 101 of 
31 August 2013), converted, with amendments, by legge 30 ottobre 2013, n. 125 
(Law No 125 of 30 October 2013). The roles, offices and positions referred to in 
the previous sentences shall, in any event, be awarded on a non-remunerative 
basis. With regard solely to management roles, without prejudice to their non-
remunerative status, the duration of those roles may not exceed one year with 
each administration, a period that may not be extended or renewed. Any 
reimbursement of expenses paid up to the maximum amounts set by the competent 
body within the administration concerned must be reported. Constitutional bodies 
shall comply with the provisions laid down in this paragraph within the limits of 
their autonomy.’ 
9 Conclusions. 
As stated above, the question justifying referral to the Court of Justice is based on 
the conflict between the national provisions and Articles 1 and 2 of Council 
Directive 2000/78 of 27 November 2000, the stated objective of which is to 
combat all forms of direct and indirect discrimination (including discrimination 
based on age), because those national provisions exclude a category of individuals 
from the possibility of [Or. 7] assuming roles in the public service for reasons 
essentially linked to age (given that retirement takes place when an individual 
reaches a certain number of ‘contributory’ years and therefore necessarily a 
corresponding age). 
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Furthermore, that discrimination cannot be appropriately justified under Article 6 
of the Directive (‘Justification of differences of treatment on grounds of age’), 
according to which ‘Member States may provide that differences of treatment on 
grounds of age shall not constitute discrimination, if, within the context of 
national law, they are objectively and reasonably justified by a legitimate aim, 
including legitimate employment policy, labour market and vocational training 
objectives, and if the means of achieving that aim are appropriate and necessary.’ 
Indeed, it cannot be said that the legal provision can ‘ensure the natural 
replacement of personnel’ (as noted above, this is the aim sought by the 
legislature). 
In fact, it seems unlikely that a job, especially if delicate and complex, that can be 
performed appropriately by someone who has worked for a long period in the 
sector can be entrusted to an individual without the necessary experience. 
The measure therefore seems inappropriate in terms of the intended purpose and, 
therefore, incapable of providing justification for the discrimination. 
10 The [question] to be referred for a preliminary ruling. 
On the basis of the foregoing, the Tribunale Amministrativo Regionale per la 
Sardegna (Regional Administrative Court for Sardinia) has formulated the 
following question: 
‘Does the principle of non-discrimination referred to in Articles 1 and 2 of 
Council Directive 2000/78/EC of 27 November 2000 preclude the provision in 
Article 5(9) of Decree-Law No 95 of 6 July 2012 (converted, with amendments, by 
Law No 135 of 7 August 2012, in the version of the text amended by Article 6 of 
Decree-Law No 90 of 24 June 2014, converted by Law No 114 of 11 August 
2014), prohibiting public administrative authorities from awarding analysis and 
consultancy roles to individuals who are already [Or. 8] retired public or private 
employees?’ 
[...] [proceedings suspended and instructions provided to the Registry] 
[...] Cagliari [...] 21 February 2018 [...]