Opinion of the Advocate General — ECLI:EU:C:2025:245
Date: 2025-04-03
Language of the case: Italian
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Italy

Summary C-5/24 – 1 
Case C-5/24 [Pauni] i 
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: 
5 January 2024 
Referring court: 
Tribunale ordinario di Ravenna (Italy) 
Date of the decision to refer: 
4 January 2024 
Applicant: 
P.M. 
Defendant: 
S. 
  
Subject matter of the main proceedings 
Application for reinstatement in post by worker dismissed for exceeding permitted 
period of absence for reasons of illness. 
Subject matter and legal basis of the request 
Interpretation of 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). 
Questions referred for a preliminary ruling 
1. Does Directive 2000/78 preclude national legislation which, by providing 
for the right to retain the post in the event of illness for 180 paid days, in the 
 
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-5/24 
 
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period from 1 January to 31 December of each year, in addition to a further 
120 days of unpaid leave (which can be taken only once) at the worker’s request, 
does not provide for different rules between workers who can be classified as 
disabled and workers who cannot? 
2. If the national legislation described in the grounds were to be regarded in the 
abstract as constituting indirect discrimination, is the legislation itself nevertheless 
objectively justified by a legitimate aim and are the means of achieving that aim 
appropriate and necessary? 
3. Can the provision of unpaid leave, at the worker’s request, following the end 
of the 120 days of sick leave, which is capable of preventing dismissal until its 
expiry amount to suitable and sufficient reasonable accommodation for avoiding 
discrimination? 
4. Can an accommodation consisting of the employer’s duty to grant – on the 
expiry of the period of 180 days of paid sick leave – a further period fully paid by 
it, without obtaining consideration for work, be regarded as reasonable? 
5. For the purposes of assessing the discriminatory conduct of the employer, 
can (for the purposes of establishing the lawfulness or otherwise of the dismissal) 
the fact that even a possible further period of stability in the relationship paid for 
by the employer would not have enabled the disabled person to return to work, 
given his or her continuing illness, be taken into account? 
Provisions of European Union law relied on 
Directive 2000/78 (recitals 11, 12, 16, 17, 20 and 21; and Articles 1, 2(1) and (2), 
and 3(1)(c). 
Judgments of the Court of Justice of 11 April 2013, HK Danmark (C-335/11 and 
C-337/11, EU:C:2013:222); 18 January 2018, Ruiz Conejero (C-270/16, 
EU:C:2018:17); and 1 December 2016, Daouidi (C-395/15, EU:C:2016:917). 
Provisions of national law relied on 
First and second paragraphs of Article 2110 of the codice civile (Civil Code): 
‘In the event of an accident, illness, pregnancy or recent childbirth, where the law 
[does not lay down] equivalent forms of welfare or assistance, remuneration or an 
allowance is payable to the employee to the extent and for the period determined 
by special laws […], practice or equity. 
In the cases referred to in the preceding paragraph, the business has the right to 
terminate the contract […], on expiry of the period established by law, […] 
practice or equity’. 
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Article 5 of legge n. 300 – Norme sulla tutela della libertà e dignità dei lavoratori, 
della libertà sindacale e dell’attività sindacale nei luoghi di lavoro e norme sul 
collocamento (Law No 300 relating to rules on the protection of the freedom and 
dignity of workers, freedom of association and trade union activity in the 
workplace, as well as regulations on employment) of 20 May 1970) (‘the 
Workers’ Statute’) (GURI, General Series No 131 of 27 May 1970): 
‘The employer is prohibited from assessing the fitness and infirmity resulting 
from an illness or accident of the employee. 
Checks on absences resulting from infirmity can only be carried out by the 
inspection services of the competent social security institutions, which are 
required to do so when the employer so requests’. 
Various provisions of the national collective labour agreement for employees of 
businesses in the tourism sector (‘the CCNL’), in particular Article 173 (retention 
of the post for 180 days in the event of illness or accident of the worker), 
Article 174 (unpaid leave for the 120 days following the abovementioned 
retention period of 180 days) and Article 175 (derogation from the above 
provisions in favour of workers suffering from oncological illnesses). 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant, P.M., was hired as a waitress on a fixed-term contract on 
1 September 2021. That relationship was converted for an indefinite duration from 
1 January 2022.  
2 The employer, company S., employs, on average, 7 employees and carries out 
catering activities. 
3 From 18 June 2022, P.M. was absent from her post, having suffered, according to 
the first medical certificate submitted, which was drawn up in Thai and translated 
into Italian, a ‘ruptured aneurysm’. That certificate justified the absence from 
18 June to 8 August 2022.  
4 Since the absence from the post continued without interruption until 8 January 
2023, the employer dismissed S. after 180 days of her absence, that is to say on 
19 December 2022. 
5 Italian law provides, in the event of illness or accident of the worker, for a so-
called ‘periodo di comporto’ (protected period), that is to say, a period of paid 
absence of 180 days during which the employer cannot proceed with dismissal. 
That period may be increased by a further 120 (unpaid) days, one time only, at the 
request of the worker. After that period, however, dismissal may take place, 
except in the case of oncological illnesses. 
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6 During the same period, in particular on 4 November 2022, P.M. applied 
administratively for recognition of her invalidity. That recognition was obtained 
on 17 February 2023, in the amount of 35%. P.M. was also declared disabled 
under the Italian legislation at issue. 
7 S. was not aware of that administrative procedure, which, moreover, was 
concluded two months after the dismissal. The only document informing 
employer S. of the causes of the worker P.M.’s absence was the certificate in Thai 
mentioned in paragraph 3 above. 
8 The illness also continued during 2023, as is apparent from the additional medical 
certificates produced, the last of which is dated August 2023. 
9 In the light of the foregoing, by an action brought on 16 October 2023, P.M. 
challenged the dismissal of 19 December 2022, requesting, in addition to being 
reinstated in the post (or to obtaining, in the alternative, payment of 15 months’ 
salary), compensation in the amount of the monthly salary payments not received 
from the date of the dismissal up to the date of delivery of the judgment, payment 
of social security contributions not paid for the same period and compensation for 
non-material damage for an amount equal to EUR 10 000. 
10 S. did not enter an appearance and did not submit a defence. 
The essential arguments of the parties in the main proceedings 
11 P.M. relies on a single argument, which essentially relates to the discriminatory 
nature of her dismissal, given that the protected period provided for by the Italian 
legislation applies to all workers and does not take into account disability. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
12 After referring to the two judgments of the Court, HK Danmark and Ruiz 
Conejero, the referring court notes that the first concerned a question relating to 
the extent of the notice period, and not to the existence or otherwise of the 
employer’s right to end the employment relationship, while the second concerned 
a provision of Spanish law intended to combat absenteeism at work and, therefore, 
short-term and intermittent, albeit legitimate, absences, by providing for a 
possibility of withdrawal in favour of the employer. By contrast, the case pending 
before the referring court concerns the employer’s right to proceed with dismissal 
for long-term absences. 
13 In both of the above cases, there was no need for the Court to address the principle 
contained in recital 17 of Directive 2000/78, according to which that directive 
‘does not require the recruitment, promotion, maintenance in employment or 
training of an individual who is not competent, capable and available to perform 
the essential functions of the post concerned or to undergo the relevant training, 
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without prejudice to the obligation to provide reasonable accommodation for 
people with disabilities’. 
14 As regards the first question, the referring court asks whether the Italian 
legislation is compatible with the prohibition of indirect discrimination in so far as 
it provides for the same period of continuation of the employment relationship for 
all workers, irrespective of the existence of a disability. 
15 The Italian legislation provides for a protected period of 180 days (with a further 
120 days of unpaid, one-off, leave, at the worker’s request) for all categories of 
workers, with the exception of those suffering from oncological illnesses (for 
whom there are no time limitations), and does not provide for expressly different 
treatment for disabled people. That 180-day period is calculated for the calendar 
year (from 1 January to 31 December) and restarts from zero on 1 January of the 
following year. 
16 However, there may be no discrimination, in so far as, first, the protected period is 
so long that it protects precisely the worker with the greatest risk of illness (that is 
to say, the disabled person) and, secondly, illness which entails a long-term 
limitation ‘can be covered by the concept of ‘disability’ within the meaning of 
Directive 2000/78’ (HK Danmark, paragraph 41). 
17 According to the referring court, the protected period laid down by the Italian 
legislation is so long that it can be used almost exclusively to protect absences 
attributable to disability and not to merely ‘ordinary’ illness. 
18 Lastly, after considering that EU law does not prescribe a specific duration for the 
protected period for the disabled person, and that the Italian legislature therefore 
enjoys wide discretion in the matter, the referring court points out the very serious 
consequences which would arise if indirect discrimination of the disabled worker 
were to be found in such a case: in essence, all dismissals would be null and void 
and even small business entities would have to be ordered to pay 25 to 30 months’ 
salary, which would, in general, lead to the closure of the activity. 
19 As regards the second question, should indirect discrimination be found to exist, 
the referring court asks the Court to rule on the more or less justified nature of that 
discrimination, in the light of a legitimate aim, consisting in a compromise which 
protects, on the one hand, the worker suffering from illness, by retaining his or her 
post for a long period, and, on the other hand, the employer, by allowing the latter 
to end an employment relationship which does not allow for productive 
performance. 
20 As regards the appropriateness of the means employed, it is noted that the Italian 
legislation on sickness appears above all to protect the disabled person, since it 
guarantees a number of absences on grounds of illness which, in general, only the 
disabled person can accrue. 
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21 It is only once the protected period has been exceeded that the employer’s 
economic and organisational interests can prevail. 
22 As regards the necessity of the means employed, it is noted that the Italian 
legislation provides for the possibility of dismissal where the employment 
relationship is objectively manifestly inefficient (that is to say, where, during a 
calendar year, the time spent on sick leave exceeds that not on sick leave). 
23 According to the referring court, the national legislation is the result of a 
compromise between business organisation and the worker’s interest in retaining 
employment even during an illness, but it is also the result of the need to 
guarantee the privacy of the disabled person, who is not required to disclose to the 
employer his or her state of disability and the reasons for his or her absences on 
grounds of illness. The employer is expressly prohibited (Article 5 of the 
Workers’ Statute) from carrying out its own health checks on the worker. 
24 In accordance with national legislation, therefore, the employer is not aware of the 
reason for the worker’s absence, by not receiving certificates with a diagnosis 
(that is to say, the cause of the illness) but only with a prognosis. 
25 It follows that, where the employer makes use of the possibility of dismissing the 
worker following long-term absences, it does so without knowing the reasons for 
the absences on grounds of illness and is not in a position to make specific 
assumptions as to the existence or otherwise of disability, since that would require 
a complete presentation of all the patient’s health documentation. 
26 Since what matters is not the illness as such, but the possible interaction with the 
working environment which it entails, an interaction represented in the present 
case exclusively by the prolonged absence, in order to know whether that 
limitation is prolonged – and, therefore, whether the worker is disabled – it is 
necessary to know the specific cause of a number of interconnected absences, 
such as to supplement the ‘limitation of long duration’. 
27 Therefore, the assertion that the employer may – in disputes such as the one at 
issue – be aware of a ‘worker’s disability’ makes no sense, since the disabled 
person could be absent from work for ordinary reasons. 
28 From that point of view, the requirements of disability protection through the 
application of a hypothetical differentiated advantage regime and the requirements 
of the protection of the disabled person’s medical privacy might appear to be 
irreconcilable. 
29 Furthermore, if the employer were accused of misconduct, it would in fact, as a 
general rule, not be at fault, since (in view of the lack of knowledge of the absence 
diagnoses) a subjective element of intent or negligence is missing. 
30 Moreover, since the national legislation in the field of employment law does not 
provide for the possibility of compensation for damage without the existence of a 
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subjective element of the party which caused the damage, it would appear 
excessively burdensome to base such liability solely on the objective level of 
indirect (moreover, hypothetical) discrimination. 
31 The referring court then points out that the Italian legislation (in particular legge n. 
68 – Norme per il diritto al lavoro dei disabili (Law No 68 concerning the rules on 
disabled persons’ right to work) of 12 March 1999) also protects the disabled 
person outside the employment relationship and more generally in the labour 
market: employers employing more than 14 employees must reserve a variable 
quota of posts for disabled persons, who are recruited from special lists and after 
verifying disability status. 
32 Lastly, there is the risk that, if the limits for the application of a legitimate right to 
withdraw from the contract (at the end of the protected period) become 
unjustifiably uncertain, this could make withdrawal excessively risky and costly, 
which would lead to a sort of de facto revocation of withdrawal, thereby seriously 
jeopardising the management of the business or activity. 
33 Ultimately, according to the referring court, potential indirect discrimination could 
nevertheless meet the requirements of legitimacy, appropriateness and necessity. 
34 As regards the third question, the referring court raises the issue of the 
adjustments that could be adopted in the abstract. In its view, the potential absence 
of possible reasonable adjustments other than those already provided for by the 
legislation would confirm the necessary nature of that legislation and, therefore, 
the lawfulness of the dismissal. 
35 Among the adjustments provided for by the Italian legal system, it points out first 
of all that, contained in the CCNL, of unpaid leave, at the worker’s request, and 
asks the Court to assess whether it is reasonable and sufficient in order to avoid 
discriminatory treatment. 
36 The circumstance that such leave must be requested by the worker clearly arises 
from the fact that the latter is the only one in possession of the necessary 
documentation and aware of his or her disability status, if any. Moreover, the 
worker is certainly the person concerned in obtaining a possible extension of the 
employment relationship. 
37 On the other hand, even possible awareness (as in the present case), of the 
employer, of some of the reasons for the absences could hardly be taken into 
consideration for the purpose of introducing an obligation on the part of that 
employer, especially where the worker directly concerned has decided not to make 
use of that option. 
38 As regards the fourth question, the referring court mentions two other theoretically 
usable measures, which might nevertheless appear to be problematic in 
application and therefore potentially unreasonable. 
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39 The first consists of excluding from the calculation of the protected period 
absences due to disability. According to the referring court, however, that measure 
would be contrary to recital 17 of Directive 2000/78, since it could prevent the 
termination of an employment relationship of a worker who is permanently unable 
to work, resulting in absences for a potentially unlimited period of time then being 
permissible. 
40 The second consists of the allocation of a paid period of retention of the post for 
the disabled person of a longer duration, clearly different from the unpaid leave of 
120 days already provided for by the CCNL. The referring court considers, 
however, that that measure would be subject to the uncertainty as to the setting of 
a time limit by the employer, which is not aware of the worker’s health 
documentation. That would undermine legal certainty and the lawfulness of the 
dismissal, as the court subsequently seized could regard the additional period 
allocated by the employer as too short. Moreover, this second measure could also 
run counter to the protection required in recital 17. 
41 It is also necessary to ask whether it is reasonable that the employer has to incur 
an (even significant) economic cost that is not intended for the worker’s 
performance of the consideration, but completely unrelated to it. 
42 As regards the fifth question, the referring court asks the Court to assess, in the 
light of the causal link between failure to adopt reasonable adjustments and 
dismissal, the possibility of verifying whether the possible grant to the disabled 
person of a further period of suspension of the employment relationship would 
actually have enabled the return to work and therefore avoided dismissal. 
43 In the present case, even after 20 days after the 180 days had been exceeded, P.M. 
was categorised as ‘on sick leave’. Moreover, even several months after the 
dismissal, P.M. was in a state of health that was such as to prevent her from 
returning to work. The referring court asks whether that element – albeit 
subsequent to the dismissal – may or must be taken into consideration for the 
purposes of assessing possible discriminatory conduct on the part of the employer. 
Indeed, to penalise, with serious consequences in terms of compensation, the 
employer, even a small or non-entrepreneur employer, which has dismissed the 
worker on the basis of the existing legislation – which already protects long-term 
absences – for not having granted the worker a further (paid) period of retention of 
the post, in a situation where the latter would not in any event have been able to 
return to work even in a later period, might be excessive. 
44 In conclusion, the referring court has doubts as to whether, in the light of the 
Italian legislation, it is possible to make a timely and partial adjustment, by way of 
indirect discrimination, which does not entail significant harm for the other 
interests involved, thereby jeopardising the general approach of the system – 
characterised by the identification of the maximum period of suspension of the 
relationship, the protection of the privacy of the disabled person, the protection of 
the employer as regards the subjective element at the time of the dismissal and the 
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functioning of the social security system – which is left to the discretion of the 
legislature. Consequently, legislation in force might be necessary on this point. 
45 Lastly, the referring court requests that the case be determined pursuant to an 
expedited procedure, in accordance with Article 105(1) of the Rules of Procedure 
of the Court of Justice. To that end, it relies on the principle of reasonable 
duration of proceedings and on the need to guarantee to the worker the necessary 
speed of reinstatement in the post and that the employer does not have to bear, in 
the event of it being unsuccessful, an excessive amount of compensation, since 
that amount would be linked to the date of delivery of the judgment.