Opinion of the Advocate General — ECLI:EU:C:2020:33
Date: 2020-01-23
Language of the case: Italian
Subject matter: External relations;Provisions governing the Institutions;Principles, objectives and tasks of the Treaties;Approximation of laws;Social Policy;Free movement of workers;Non-contractual liability;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Italy

Summary C-658/18 — 1 
Case C-658/18 
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 October 2018 
Referring court: 
Giudice di pace di Bologna (Italy) 
Date of the decision to refer: 
16 October 2018 
Applicant: 
UX 
Defendant: 
Governo della Repubblica italiana 
 
Subject matter of the main proceedings 
Application to the Giudice di pace di Bologna (Justice of the Peace for Bologna) 
for an order directing the Governo della Repubblica italiana (Government of the 
Italian Republic) to pay damages to the applicant, a giudice di pace who has 
completed at least 14 years of service, for manifest infringement by the Italian 
State of Clauses 2 and 4(1), (2) and (4) of the framework agreement on fixed-term 
work approved by Directive 1999/70/EC, read in conjunction with Articles 1(3) 
and 7 of Directive 2003/88/EC and Article 31(2) of the Charter of Fundamental 
Rights of the European Union. 
Subject matter and legal basis of the reference 
This request for a preliminary ruling, made pursuant to Article 267 TFEU and 
lodged with an application for the case to be decided under the urgent procedure 
in accordance with Article 107 of the Rules of Procedure of the Court of Justice, 
concerns the following: 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-658/18 
 
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‒ the concept of the court having jurisdiction to make a request for a preliminary 
ruling pursuant to Article 267 TFEU; 
‒ the consistency with European Union law of the national legislation governing 
the work of giudici di pace (justices of the peace) and the civil liability of 
magistrati (judicial officers in general); 
‒ the non-contractual liability of the European Commission, under the second 
paragraph of Article 340 TFEU, where it fails in its duty as ‘guardian of the 
Treaties’; 
‒ the question whether such liability may be argued before a national court. 
Questions referred for a preliminary ruling 
1. Does a giudice di pace (justice of the peace), when making a request for a 
preliminary ruling, meet the definition of an ordinary European court having 
jurisdiction to make a request for a preliminary ruling pursuant to 
Article 267 TFEU, even though — in breach of the guarantees of the 
independence and impartiality of ordinary European courts referred to by the 
Court of Justice in its judgments in Wilson (EU:C:2006:587, paragraphs 47 
to 53), Associaçâo Sindical dos Juizes Portugueses (EU:C:2018:117, 
paragraphs 32 and 41 to 45), and Minister for Justice and Equality 
(EU:C:2018:586, paragraphs 50 to 54) — under national law, giudici di pace 
do not, because of their job insecurity, enjoy working conditions equivalent 
to those of professional judges, even though they perform the same judicial 
functions and are included in the national judicial system? 
2. If question 1 is answered in the affirmative, is the work carried out by the 
applicant giudice di pace covered by the term ‘fixed-term worker’ for the 
purpose of Articles 1(3) and 7 of Directive 2003/88, read in conjunction 
with Clause 2 of the framework agreement on fixed-term work implemented 
by Directive 1999/70/EC and Article 31(2) of the Charter of Fundamental 
Rights of the European Union, as interpreted by the Court of Justice in its 
judgments in O’ Brien (EU:C:2012:110) and King (EU:C:2017:914) and, if 
so, may an ordinary or professional judge be regarded as a permanent 
worker indistinguishable from a giudice di pace working for a fixed term, 
for the purposes of the application of the same working conditions as 
referred to in Clause 4 of the framework agreement on fixed-term work 
implemented by Directive 1999/70/EC? 
3. If questions 1 and 2 are answered in the affirmative, is Article 47 of the 
Charter of Fundamental Rights of the European Union, read in conjunction 
with Article 267 TFEU and in the light of the case-law of the Court of 
Justice of the European Union concerning the liability of the Italian State for 
manifest infringement of Community law by courts adjudicating at last 
instance in the judgments in Köbler (EU:C:2003:513), Traghetti del 
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Mediterraneo (EU:C:2006:391) and Commission v Italy (EU:C:2011:775), 
inconsistent with Article 2(3) and (3a) of Law No 117 of 13 April 1988 on 
the civil liability of judges, which provides for judicial liability for 
intentional fault or serious misconduct ‘in the event of manifest infringement 
of the law or of European Union law’ and which presents national courts 
with the choice ‒ which, however it is made, gives rise to civil liability and 
liability to disciplinary action in relation to the State in cases in which the 
public authority itself is a substantive party, and in particular where the 
adjudicator of the case is a giudice di pace working for a fixed term and 
without effective legal, economic and social security protection ‒, as in the 
present case, of either infringing national legislation, by disapplying it and 
applying EU law, as interpreted by the Court of Justice, or of infringing EU 
law and applying national legislation which precludes protection and is 
incompatible with Articles 1(3) and 7 of Directive 2003/88, Clauses 2 and 4 
of the framework agreement on fixed-term work implemented by Directive 
1999/70/EC, and Article 31(2) of the Charter of Fundamental Rights of the 
European Union? 
4. In accordance with Articles 2, 4(2) and (3), 6(1) 9, 10(1) and 17(1) of the 
Treaty on European Union, read in conjunction with Article 47 of the 
Charter of Fundamental Rights of the European Union, may the conduct of 
the European Commission constitute a serious infringement of the law such 
as to provide the basis for an action concerning non-contractual liability 
brought against the European Union, as provided for in the second paragraph 
of Article 340 TFEU, where that institution refuses to initiate infringement 
proceedings or to bring before the Court of Justice … an action for failure to 
fulfil obligations based on a Member State’s infringement of EU law where, 
as in the present case, the following circumstances pertain: 
• by Communication DG EMPL/B2/DA-MAT/sk (2016), received by 
the Italian public authorities on 10 June 2016, the Commission concluded 
EU Pilot case 7779/15/EMPL with a finding against the Member State and 
gave notice of the impending initiation of infringement proceedings, having 
established the incompatibility with EU law of national legislation 
applicable to the services provided by magistrati onorari (honorary or lay 
judges) in so far as concerns the misuse of successive fixed-term contracts, 
unequal pay by comparison with that of magistrati ordinari or professionali 
(ordinary or professional judges), annual leave and maternity leave, albeit 
that such proceedings were never initiated; 
• by its communication of 21 December 2016, C(2016) 8600 final, the 
Commission stated that it remained within its discretion to decide whether or 
not and, if so, when to initiate infringement proceedings or bring a case 
before the Court of Justice, in whose case-law it is acknowledged that 
individuals are incapable of succeeding in actions against the Commission 
for refusal to initiate infringement proceedings? 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-658/18 
 
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5. Independently of the answers to the first four questions, may Articles 268 
and 274 TFEU and the second paragraph of Article 340 TFEU be 
interpreted, in the light of Articles 2, 4(2) and (3), 6(1), 9, 10(1) and 17(1) of 
the Treaty on European Union, read in conjunction with Article 47 of the 
Charter of Fundamental Rights of the European Union, as meaning that an 
action concerning non-contractual liability brought against the European 
Union will not fall outside the jurisdiction of a national court in a case, such 
as the present case, in which the failure to apply within the national legal 
system the EU law which guarantees the principle of the independence and 
impartiality of courts has been determined to result partly from the 
Commission’s serious breach of the duties and obligations which arise from 
its role as guardian of the Treaties, and partly from the Commission’s 
discretion to decide whether or not and, if so, when to initiate infringement 
proceedings or bring a case before the Court of Justice, in whose case-law it 
is acknowledged that individuals are incapable of succeeding in actions 
against the Commission for refusal to initiate infringement proceedings, 
which thus renders ineffective the Court’s exclusive jurisdiction to decide 
disputes concerning the non-contractual liability of the European Union? 
Provisions of EU law relied on 
– 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) (‘Directive 1999/70/EC’), in particular, the following clauses of the 
framework agreement implemented by that directive (‘the framework agreement 
on fixed-term work’): Clauses 2(1), (2) and (4), 4 and 5. 
– 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), in particular, Article 7, headed ‘Annual leave’. 
– The Charter of Fundamental Rights of the European Union (OJ 2016 C 202, 
p. 398), in particular, Articles 31(2) and 47. 
– The second paragraph of Article 340 of the Treaty on the Functioning of the 
European Union, which concerns the non-contractual liability of the European 
Union. 
Provisions of national law relied on 
‒ The following provisions of the Constitution of the Italian Republic: 
Article 36: ‘Workers have the right to a remuneration commensurate to the 
quantity and quality of their work and in all cases to an adequate remuneration 
ensuring them and their families a free and dignified existence. 
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… 
Workers have the right to a weekly rest day and paid annual holidays. They 
cannot waive this right’. 
Article 97, which lays down, inter alia, the principle that employment in public 
administration is accessed through competitive examinations, except in the cases 
established by law. 
Article 102, which provides, inter alia, that judicial functions are to be performed 
by ordinary judges. 
Article 106: ‘Judges are appointed by means of competitive examinations. 
The law on the regulations of the Judiciary allows the appointment, even by 
election, of honorary judges for all the functions performed by single judges. …’ 
Article 111: ‘Jurisdiction is implemented through due process regulated by law. 
All court trials are conducted with adversary proceedings and the parties are 
entitled to equal conditions before an impartial judge in third party position. …’ 
Article 117: ‘Legislative powers shall be vested in the State and the Regions in 
compliance with the Constitution and with the constraints deriving from EU 
legislation and international obligations. …’ 
‒ Decreto legislativo del 15 giugno 2015, n. 81, recante ‘Disciplina organica dei 
contratti di lavoro’ (Legislative Decree No 81 of 15 June 2015, laying down 
general rules governing employment contracts), in particular, Article 1, which 
provides that ‘employment contracts of indefinite duration are to constitute the 
usual form of employment relationship’ and Article 25, headed ‘Principle of non-
discrimination’, which reads as follows: ‘fixed-term workers shall be entitled to 
the same economic and regulatory treatment in the undertaking as applies to 
comparable permanent workers, that is to say, workers classified in the same 
category in accordance with classification criteria laid down by collective 
agreement, and as is proportional to their length of service, provided that this is 
not objectively incompatible with the nature of the fixed-term contract’. 
‒ Article 2109 of the Civil Code, which governs entitlement to paid annual leave 
for employees. 
‒ Article 10 of decreto legislativo dell’8 aprile 2003, n. 66, recante ‘Attuazione 
delle direttive 93/104/CE e 2000/34/CE’ (Legislative Decree No 66 of 8 April 
2003 implementing Directives 93/104/EC and 2000/34/EC), which provides as 
follows: 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-658/18 
 
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‘1. Without prejudice to the provisions of Article 2109 of the Civil Code, 
employees shall be entitled to a period of paid annual leave of not less than four 
weeks. ... 
2. The minimum period of four weeks may not be replaced by compensation in 
lieu of leave not taken, except in the event of the termination of the employment 
relationship. …’ 
‒ Articles 8a and 9 of legge del 2 aprile 1979, n. 97, recante ‘Norme sullo stato 
giuridico dei magistrati e sul trattamento economico dei magistrati ordinari e 
amministrativi’ (Law No 97 of 2 April 1979 laying down rules on the legal status 
of judges and the remuneration of ordinary and administrative judges), which 
govern annual leave and the remuneration of ordinary judges, respectively. 
‒ Legge del 21 novembre 1991, n. 374, recante ‘Istituzione del giudice di pace’ 
(Law No 374 of 21 November 1991 establishing the office of giudice di pace), in 
particular, Article 1, headed ‘Establishment and functions of the giudice di pace’, 
which is worded as follows: 
‘1. The office of giudice di pace (justice of the peace) is hereby created. A giudice 
del pace shall exercise jurisdiction in civil and criminal matters and shall conduct 
settlement procedures in civil matters in accordance with the provisions laid down 
by this law. 
2. The office of giudice di pace shall be held by a magistrato onorario 
(honorary or lay judge) who is a member of the judicial order. …’ 
Also of relevance are the following articles of that Law: Article 3, on the ‘list and 
distribution throughout the national territory of offices of giudice di pace’, and 
Article 11, on the ‘compensation payable to giudici di pace’, which provides that 
compensation is to be paid for each hearing presided over and for each set of 
proceedings concluded, along with compensation for each month of actual service 
by way of the reimbursement of expenses. 
‒ The rules governing the work of giudici di pace have recently been amended by 
decreto legislativo del 13 luglio 2017, n. 116, recante ‘Riforma organica della 
magistratura onoraria e altre disposizioni sui giudici di pace’ (Legislative Decree 
No 116 of 13 July 2017 amending the rules applicable to honorary judges and 
laying down other provisions applicable to giudici di pace). The present order for 
reference cites in particular Article 24, in accordance with which honorary judges 
are to be paid compensation during the holiday period, and Article 25, which 
concerns pregnancy, sickness and accident benefits and the pension scheme for 
honorary judges. 
‒ Article 54a of decreto-legge del 24 aprile 2017, n. 50, convertito nella legge del 
21 giugno 2017, n. 96 (Legislative Decree No 50 of 24 April 2017, converted into 
Law No 96 of 21 June 2017), which concerns the rules governing occasional 
work. 
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‒ Article 1 of legge del 18 maggio 1974, n. 217, recante ‘Sistemazione giuridico-
economica dei vice pretori onorari incaricati di funzioni giudiziarie’ (Law No 217 
of 18 May 1974 laying down the judicial and remuneration system for honorary 
vice pretori (deputy Praetors) entrusted with judicial functions), which provides 
that honorary vice pretori entrusted with judicial functions are to be employed on 
an indefinite basis until they reach the age of retirement and are to receive the 
salary payable to ordinary District Court judges. 
‒ Lastly, the order for reference cites the rules governing the civil liability of 
judges, which also apply to giudici di pace, set out in Articles 1, 2 and 8 of legge 
del 13 aprile 1988, n. 117, sul ‘Risarcimento dei danni cagionati nell’esercizio 
delle funzioni giudiziarie e responsabilità civile dei magistrati’ (Law No 117 of 
13 April 1988 on the reparation of damage caused in the exercise of judicial 
functions and the civil liability of judges). 
Of particular relevance in connection with the first question referred is Article 2 of 
that Law, headed ‘Liability for intentional fault or serious misconduct’, which 
provides as follows: 
‘1. Any person who has sustained unjustifiable damage as a result of judicial 
conduct or a judicial act or measure adopted by a judge with intentional fault or 
serious misconduct in the exercise of his functions, or as a result of the denial of 
justice, may bring proceedings against the State for compensation for pecuniary 
losses or non-pecuniary damage. 
2. Without prejudice to paragraphs 3 and 3a, and except in cases of intentional 
fault, the interpretation of provisions of law or the assessment of facts and 
evidence shall not give rise to liability in the exercise of judicial functions. 
3. The following shall constitute serious misconduct: the manifest infringement 
of the law or of European Union law, the distortion of the facts or evidence or the 
assertion of a fact the existence of which is indisputably refuted by the case-file or 
the denial of a fact the existence of which is indisputably established by the case-
file, or the adoption of an interim in personam or in rem protective measure in a 
case other than those provided for by law or without reasoning. 
3a … For the purposes of determining the cases in which there is a manifest 
infringement of the law or of European Union law, account shall be taken, in 
particular, of the degree of clarity and precision of the rules infringed and of the 
inexcusability and gravity of the infringement. In the case of manifest 
infringement of European Union law, account shall also be taken of the failure to 
fulfil the obligation to make a request for a preliminary ruling under the third 
paragraph of Article 267 of the Treaty on the Functioning of the European Union, 
and of the incompatibility of the act or measure with the interpretation given by 
the Court of Justice of the European Union’. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-658/18 
 
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Succinct presentation of the facts and the main proceedings 
1 Since 26 March 2002, Ms UX (‘the applicant’) has worked as a giudice di pace. 
2 It is apparent from the documents appended to the application that, during the 
period from 1 July 2017 to 30 June 2018, the applicant filed 478 judgments and 
1326 orders that no further action be taken. It is also clear from those documents 
that the applicant presided over two hearings a week, except during the August 
holiday period. 
3 During that holiday period, the applicant did not receive any compensation 
because, in accordance with Article 11 of Law No 374 of 21 November 1991, her 
compensation is contingent on her actually working. Her compensation scheme is 
different from the compensation scheme for ordinary judges, also known as 
‘togati’, who are entitled, under Article 8a of Law No 97 of 2 April 1979, to 30 
days’ annual holiday leave. 
4 On 8 October 2018 the applicant made an application to the Giudice di pace di 
Bologna (‘the referring court’) for an order directing the Government of the Italian 
Republic to pay to her the sum of EUR 4 500, corresponding, according to the 
applicant, to the monthly remuneration payable for the month of August 2018 to 
an ordinary judge who has completed at least 14 years of service and has 
successfully completed his or her third professional evaluation. 
5 The applicant claims that sum of money by way of damages for manifest 
infringement by the Italian State of Clauses 2 and 4(1), (2) and (4) of the 
framework agreement on fixed-term work, read in conjunction with Articles 1(3) 
and 7 of Directive 2003/88/EC and Article 31(2) of the Charter of Fundamental 
Rights of the European Union. 
The essential arguments of the parties to the main proceedings 
6 The applicant maintains, first and foremost, that the work performed by giudici di 
pace is in the nature of paid employment. That is borne out, in particular, by the 
fact that they are obliged to adhere to the times and dates of hearings laid down in 
schedules approved by the Consiglio superiore della magistratura (the High 
Council of the Judiciary) (‘the CSM’) and the fact that they act under the direction 
of the President of a Tribunale (District Court). 
7 According to the applicant, it follows from the fact that the work of giudici di 
pace is in the nature of employment that Article 7 of Directive 2003/88/EC is 
applicable to them. That provision states that ‘every worker is entitled to paid 
annual leave of at least four weeks in accordance with the conditions for 
entitlement to, and granting of, such leave laid down by national legislation and/or 
practice.’ That right to paid annual leave for a period of not less than four weeks is 
enjoyed by employees also under domestic law, pursuant to Article 36 of the 
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9 
Constitution, Article 2109 of the Civil Code and Article 10 of Legislative Decree 
No 66 of 8 April 2003. 
8 The applicant also considers that, pursuant to Clauses 2(1) and 4(1), (2) and (4) of 
the framework agreement on fixed-term work, the same employment conditions 
should be applied to giudici di pace as are laid down for ordinary judges who have 
completed the same length of service. Indeed, the latter are ‘comparable 
permanent workers’ within the meaning of Clause 4 of the framework agreement 
on fixed-term work, and consequently giudici di pace cannot be treated less 
favourably than them, except where there are objective grounds, of which there 
are, according to the applicant, none in the present case. 
9 The principle that there must be no discrimination between fixed-term workers 
and comparable permanent workers has been transposed into Italian law by 
Article 6 of decreto legislativo del 6 settembre 2001, n. 368 (Legislative Decree 
No 368 of 6 September 2001), subsequently replaced, from 25 June 2015 
onwards, by Article 25 of Legislative Decree No 81 of 15 June 2015. 
10 The applicant also emphasises that the fact that the work of giudici di pace is in 
the nature of employment also follows from the fact that Directives 1999/70/EC 
and 2003/88/EC ‒ as interpreted in the relevant decisions of the Court of Justice of 
the European Union, in particular, the judgment of 1 March 2012, O’Brien, 
C-393/10, EU:C:2012:110, and the judgment of 29 November 2017, King, 
C-214/16, EU:C:2017:914 ‒ are directly applicable to the Italian State and to the 
public authorities. 
11 The fact that Directives 1999/70/EC and 2003/88/EC have been infringed is 
confirmed by: 
‒ the decision of the European Committee of Social Rights on collective 
complaint No 102/2013, published on 16 November 2016, concerning the social 
security entitlements of giudici di pace; 
‒ Communication DG EMPL/B2/DA-MAT/sk (2016), in which the 
Commission announced that it was about to initiate infringement proceedings 
concerning the compatibility with EU law of the national rules governing the work 
of magistrati onorari, with regard, in particular, to the abusive renewal of fixed-
term contracts (Clause 5 of the framework agreement on fixed-term work), 
unequal pay (Clause 4 of that agreement) and unequal holiday entitlement 
(Article 7 of Directive 2003/88, read in conjunction with Clause 4 of the 
framework agreement on fixed-term work); 
‒ the communication of 23 March 2017 in which the President of the 
European Parliament’s Committee on Petitions (‘the Committee on Petitions’), 
following a meeting on 28 February 2017 at which a number of petitions were 
discussed concerning the employment terms of giudici di pace in Italy, called 
upon the Italian Ministry of Justice to take the necessary steps to eradicate the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-658/18 
 
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‘clear disparity in treatment, in legal, economic and social terms, between 
magistrati togati and magistrati onorari’. 
‒ the written observation submitted by the Commission in Case C-472/17, in 
which that institution invited the Court to answer the questions referred for a 
preliminary ruling in that case in the terms indicated in the abovementioned 
Communication DG EMPL/B2/DA-MAT/sk (2016); 
‒ the communication of 28 February of the Committee on Petitions, which 
endorses the stance taken by the Commission in Communication 
DG EMPL/B2/DA-MAT/sk (2016) and in its written observations submitted in 
Case C-472/17; 
‒ the report of the expert appointed by the Committee on Petitions entitled 
‘The principle of non-discrimination and measures to prevent and sanction the 
misuse or the abuse of fixed-term contracts in light of the EU Court of Justice 
case laws’, presented on 22 November 2017 at that Committee’s public session 
addressing ‘Protection of the rights of workers in temporary or precarious 
employment, based on petitions received’, which levelled criticism at the Italian 
State for failure to fulfil obligations by not applying Directives 1999/70/EC and 
2003/88/EC, and at the Commission for failing adequately to respond to the 
Italian State’s failure, thereby preventing the effective protection of the rights of 
honorary judges; 
‒ the European Parliament’s resolution of 31 May 2018 (2018/2600(RSP)) in 
which the Parliament levelled criticism at the Commission for not having initiated 
infringement proceedings in the face of the clear failure of some Member States to 
comply with Directive 1999/70/EC and called on those Member States to amend 
their internal legislation so as to transpose that directive and give effect to the 
relevant case-law of the Court of Justice, citing in particular the judgment of 
26 November 2014, Mascolo and Others (C-22/13, C-61/13 to C-63/13 and 
C-418/13, EU:C:2014:2401); 
‒ the settled national case-law (Judgment No 13721/2017 of the Corte di 
cassazione, Sezioni Unite, (Court of Cassation, Combined Chambers), Judgment 
No 99/2018 of the Corte di cassazione, Sezione Lavoro (Court of Cassation, 
Employment Division) and Judgment No 3556/2017 of the Consiglio di Stato 
(Council of State) according to which economic, substantive and social-security 
protection cannot be afforded to honorary judges, who are regarded as volunteers 
rather than employees, which is clearly inconsistent with the abovementioned 
decision of the European Committee of Social Rights on collective complaint 
No 102/2013 and with the judgment of the Court of Justice of 1 March 2012, 
O’Brien (C-393/10, EU:C:2012:110); 
‒ Order No 28937/2017 and Judgment No 22845/2016 of the Corte di 
cassazione (Court of Cassation), in which it was, by contrast, recognised that 
honorary judges perform the same duties as ordinary judges. 
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12 Finally, the fact that Directives 1999/70/EC and 2003/88/EC have been infringed 
is confirmed, according to the applicant, by Circular No 11799 issued by the 
Ministry of Justice on 18 January 2018 withdrawing the right of honorary judges 
to bear arms, while maintaining that right for ordinary judges, in a television 
programme broadcast on 19 March 2018 by a national television station, which 
exposed the precarity of employment of Italian honorary judges, and in a number 
of collective petitions (Nos 146/2017, 159/2018 and 144/2017) brought before the 
European Committee of Social Rights concerning the lack of protection for certain 
categories of worker, including honorary judges. 
13 Nevertheless, the applicant notes that it seems that the new government intends to 
resolve the precarious situation of honorary judges in Italy. Indeed, the new 
government has expressly stated that one of its objectives is to give proper 
recognition to the work done by honorary judges and, by decree of the Minister 
for Justice of 24 September 2018, it set up a working group to look into the ways 
in which the current rules governing the work of honorary judges could be 
reformed. 
Succinct presentation of the reasons for the request for a preliminary ruling 
14 Before addressing the merits of the questions referred for a preliminary ruling, the 
referring court makes a number of observations about the merits of the application 
and the need for the case to be decided under the urgent procedure, in accordance 
with Article 107 of the Rules of Procedure of the Court of Justice. 
The application 
15 The referring court first of all observes that the application has been made to the 
competent court: the provisions of national law which govern the jurisdiction of 
giudici di pace have been complied with (Article 7(1) of the Code of Civil 
Procedure, pursuant to which a giudice di pace has jurisdiction in cases 
concerning moveable property of a value up to EUR 5 000), as have the 
provisions on claims for damages arising from a failure to implement EU law 
(Article 4(43) of Law No 183/2011). 
16 The referring court also considers that the applicant’s claim is well founded, in the 
light of the documents produced, which meet the criteria established in the Code 
of Civil Procedure for the issue of an order directing payment. Indeed, those 
documents prove that, from the time she took up the office of giudice di pace until 
the present, the applicant has uninterruptedly performed judicial functions 
equivalent to those of an ordinary judge having the same length of service. 
Notwithstanding, she has not received any compensation in respect of the August 
2018 holiday period. The referring court clarifies that the applicant was not 
entitled to the compensation payable to honorary judges under Article 24 of 
Legislative Decree No 116/2017 because that compensation is due only to 
honorary judges who took up duties after the entry into force of that legislative 
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decree, that is to say, after 16 August 2017, whereas, for other honorary judges, 
like the applicant, the previous regime, governed by Article 11 of Law 
No 374/1991, under which no compensation is payable in respect of the holiday 
period, remains applicable. 
17 In so far as concerns the protection afforded to giudici di pace in the event of 
illness, accident or pregnancy, the referring court emphasises that Article 25 of 
Legislative Decree No 116/2017 rules out any form of compensation in respect of 
periods during which work is suspended. In addition, in so far as concerns social-
security protection for honorary judges, the referring court points out that 
Article 25 provides for a pension regime based solely on contributions by the 
persons concerned, which clearly discriminates against honorary judges by 
comparison with ordinary judges, who benefit from a ‘special’ pension regime 
that does not require any contributions to be made by the worker, as was found by 
the Court of Justice in its judgment of 13 November 2008, Commission v Italy 
(C-46/07, EU:C:2008:618). 
18 The fact that the applicant cannot benefit from any economic or social-security 
protection during the holiday period, when she is not working, appears to be 
proven not only by the legislation but also by the case-law, inasmuch as the 
judgments of the Corte di cassazione (Nos 13721/2017 and 27198/2017 of the 
Combined Chambers and No 99/2018 of the Employment Division) and of the 
Consiglio di Stato (No 3556/2017) all categorically deny that honorary judges are 
engaged in paid employment and hold that they are instead engaged in a purely 
voluntary activity. 
19 Lastly, the referring court observes that the infringement of Directives 
1999/70/EC and 2003/88/EC is proven by the case-law of the Court of Justice and 
by the documents appended to the application by the applicant and listed in 
paragraphs 11 and 12 above, which reveal a crisis of a structural nature in the 
judicial system in so far as concerns the measures for the protection of the 
fundamental rights of honorary judges who, like the applicant, find themselves in 
a situation of great insecurity and professional uncertainty. 
The need for the reference to be decided under the urgent procedure 
20 Notwithstanding the fact that, in light of the foregoing considerations, the 
applicant’s claim appears to be well founded and proven, the referring court does 
not consider that it can uphold it without first making a reference for a preliminary 
ruling to the Court of Justice under the urgent procedure, in accordance with 
Article 107 of the Court’s Rules of Procedure, with a view to possibly referring 
the case back to the Italian Constitutional Court in the light of the outcome of that 
reference. 
21 In this connection, the referring court criticises the conduct of the Commission, 
which, in its abovementioned Communication DG EMPL/B2/DA-MAT/sk (2016) 
of June 2016, had announced that it was about to initiate infringement proceedings 
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against the Italian Republic consequent upon its findings of the abusive renewal of 
fixed-term contracts (infringement of Clause 5 of the framework agreement on 
fixed-term work) and unequal treatment of honorary judges and ordinary judges in 
so far as concerns their remuneration (infringement of Clause 4 of that framework 
agreement), holiday entitlement (infringement of Article 7 of Directive 2003/88, 
in conjunction with Clause 4 of the framework agreement on part-time work 
implemented by Directive 97/81/EC, and Clause 4 of the framework agreement on 
fixed-term work) and maternity leave (Article 8 of Directive 92/85 and Article 8 
of Directive 2010/41). 
22 Nevertheless, to date, 28 months after that communication, the Commission has 
still not initiated the infringement proceedings it mentioned, thus leaving honorary 
judges without the guarantees of the independence and impartiality of ordinary 
European courts referred to by the Court of Justice in its judgments of 
19 September 2006, Wilson (C-506/04, EU:C:2006:587, paragraphs 47 to 53), of 
27 February 2018, Associaçâo Sindical dos Juizes Portugueses (C-64/16, 
EU:C:2018:117, paragraphs 32 and 41 to 45) and of 25 July 2018, Minister for 
Justice and Equality (C-216/18 PPU, EU:C:2018:586, paragraphs 50 to 54). 
23 The referring court emphasises that, in its Communication of 21 December 2016 
C(2016) 8600 final, the Commission itself surprisingly stated that, ‘as guardian of 
the Treaties, it has the duty to monitor the Member States’ action in implementing 
EU law and to ensure that their legislation and practice [comply] with it, under the 
control of the Court of Justice of the European Union. In exercising this role, the 
Commission enjoys discretionary power in deciding whether or not, and when, to 
start an infringement procedure or to refer a case to the Court of Justice. As a 
consequence, the case-law recognises that individuals will not succeed in actions 
brought against the Commission where it declines to pursue an infringement 
procedure’. The referring court states in this connection that, by invoking its own 
discretionary power, the Commission rules out any possibility of establishing the 
non-contractual liability of the European Union in the event that, in the face of the 
infringement of EU law by a Member State, the institution should refuse to initiate 
infringement proceedings or bring before the Court of Justice an action for failure 
to fulfil obligations. 
24 In addition, the referring court observes that, in its judgment of 26 November 
2002, First and Franex (C-275/00, EU:C:2002:711), the Court of Justice 
confirmed that it had exclusive jurisdiction, pursuant to Article 235 TEC (now 
Article 268 TFEU), in disputes relating to compensation for damage as provided 
for in the second paragraph of Article 288 TEC (now Article 340 TFEU), thus 
excluding any jurisdiction on the part of national courts in such matters. 
25 That legal framework, according to the referring court, gives rise to a serious 
breach of the principle of legitimate expectations, which is a corollary of the 
principle of legal certainty, of the principle of due process and of the principle of 
sincere cooperation. It points out that, in a situation such as that in the present 
case, in which the Commission has remained inactive in the face of a failure to 
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fulfil obligations arising under EU law, individuals will be unable to base any 
action on such infringement, either against the Member State, which will be 
shielded by the Commission’s inertia and refusal to initiate infringement 
proceedings, or against the European Union in a claim of non-contractual liability, 
since such an action would be inadmissible as a result of the Commission’s 
absolute power of discretion and the Court of Justice’s exclusive jurisdiction, as 
referred to above. 
26 It is therefore evident, according to the referring court, that there is a crisis of a 
systemic nature in the judicial system, not only at national level, but also, and 
more importantly, at EU level, and it is this crisis which must be addressed under 
the urgent procedure applied for. 
27 The referring court emphasises that, in the context of Case C-472/17, which also 
concerned the comparability of the working conditions of giudici di pace and 
ordinary judges, the Commission and the Italian Government failed to inform the 
Court, in their written observations, of the important fact that, in its 
Communication DG EMPL/B2/DA-MAT/sk (2016), which had been received by 
the Italian authorities nearly two and a half years earlier, the institution had found 
that honorary judges were employees and that their working conditions were 
comparable to those of ordinary judges, and had announced that it would ‘shortly’ 
be initiating infringement proceedings against the Italian Republic. The 
Commission and the Italian Government thus misled the Court of Justice, which 
remained ignorant of this important fact and ruled the request for a preliminary 
ruling inadmissible by Order of 6 September 2018 (C-472/17, EU:C:2018:684). 
28 In similar fashion, the Commission and the Italian Government misled the Corte 
di cassazione (Court of Cassation) and the Consiglio di Stato (Council of State), 
which, both ignorant of the same important fact, handed down the 
abovementioned judgments (No 3556/2017 of the Corte di cassazione, Sezioni 
Unite, and No 99/2018 of the Consiglio di Stato), which, on the view that the 
work of honorary judges is a purely voluntary activity, denied them any 
protection. 
29 The referring court also mentions other cases concerning the conditions of other 
categories of fixed-term workers in which the Commission failed in its duty as 
guardian of the Treaties. This was the case, for example, for non-permanent 
teaching staff at State schools, in relation to whom the Commission, finding that 
there was abusive use of fixed-term contracts, initiated infringement proceedings, 
which it later discontinued following the judgment of the Court of Justice of 
26 November 2014, Mascolo and Others (C-22/13, C-61/13 to C-63/13 and 
C-418/13, EU:C:2014:2401) and the reform of the education sector by the national 
authorities without, however, expressing a position on the situation of non-
permanent public sector employees other than teachers (which include honorary 
judges) in relation to whom it initiated a different set of proceedings. 
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30 This laxity and inconsistency on the Commission’s part with regard to non-
permanent public sector employees in Italy has resulted in total confusion both 
within the national legal system and in the context of the legal protection afforded 
by the Court of Justice, to which other requests for a preliminary ruling on the 
same subject have been made (see the judgments in Santoro, C-494/16, 
EU:C:2018:166, and Motter, C-466/17, EU:C:2018:758, and the Order in Di 
Girolamo, C-472/17, EU:C:2018:684), some of which are still pending, such as 
those in Cases C-618/18, C-494/17 and C-331/17. 
31 The referring court points out that it was in light of these same circumstances that 
the European Parliament criticised, in paragraphs 4 and 5 of its resolution of 
31 May 2018, cited above, the Commission’s inaction and gave specific 
suggestions as to how the Commission ought to act as guardian of the Treaties. In 
particular, the referring court observes that, in its resolution, the European 
Parliament, by expressly referring to paragraph 55 of the Court of Justice’s 
judgment of 26 November 2014, Mascolo and Others (C-22/13, C-61/13 to 
C-63/13 and C-418/13, EU:C:2014:2401), appears to indicate to the Commission 
that the most effective sanction against the abusive use of fixed-term contracts is 
to convert them into contracts of indefinite duration. 
The first question referred for a preliminary ruling 
32 While it considers that it possesses the ‘cultural’ requirements and the necessary 
professional competence to be regarded as an ordinary European court with 
jurisdiction to make a request to the Court of Justice for a preliminary ruling in 
accordance with Article 267 TFEU, the referring court notes that, in light of the 
Commission’s laxity and the recent Order of 6 September 2018, in which the 
Court declared inadmissible the request for a preliminary ruling in Case C-472/17, 
it is necessary for the Court of Justice of the European Union to give a ruling on 
the question of its jurisdiction. 
The second question referred for a preliminary ruling 
33 The referring court is of the view that, in the light of Article 7 of Directive 
2003/88/EC, read in conjunction with Clauses 2(1) and 4(1), (2) and (4) of the 
framework agreement on fixed-term work, giudici di pace must be regarded as 
fixed-term employees and that, therefore, the same employment conditions must 
be applied to them, as comparable permanent workers, as are applied to ordinary 
judges. 
34 In support of that assertion, the referring court mentions a series of national legal 
provisions from which it is clear that the procedures governing access to the office 
of giudice di pace and the performance of the relevant duties are organised on the 
basis of rules which are very similar, and sometimes identical, to those applicable 
to ordinary judges. It is apparent from the provisions referred to above that: (i) in 
order to take up the office, every giudice di pace must successfully complete a 
selection procedure, followed by a period of training; (ii) in the same way as 
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ordinary judges, giudici di pace are assigned to individual courts in accordance 
with rules laid down by law and are required to observe the organisational 
measures of the CSM and the instructions given by the President of a District 
Court; (iii) the Ministry of Justice may exercise in their regard wide-ranging 
powers of organisation and inspection and may report any irregularity to the 
competent disciplinary bodies; (iv) failure to comply with the rules of professional 
conduct will result in a giudice di pace being subject to the disciplinary powers of 
the CSM; (v) holding the office of giudice di pace is essentially incompatible with 
any other type of employment and the holding of any position of a political nature; 
(vi) every four years giudici di pace must undergo professional assessment by the 
CSM; (vii) the provisions on civil liability applicable to ordinary judges are 
equally applicable to giudici di pace; (viii) also in common with ordinary judges 
are certain practical aspects relating to the receipt of compensation and proof of 
income, which, for tax purposes, is expressly treated in the same way as the 
income of an employee. 
35 The referring court therefore concludes that, irrespective of the terminology used 
by the Italian legislature, which classifies a giudice di pace as a ‘magistrato 
onorario’, there is no doubt that the work done by such persons should be 
categorised as that of a public sector employee or civil servant, in the same way as 
that of an ordinary judge. 
36 The referring court also observes that, by contrast with the case which led to the 
judgment of the Court of Justice of 1 March 2012, O’Brien, C-393/10, 
EU:C:2012:110, which concerned the employment arrangements of part-time 
judges in the United Kingdom, the work of giudici di pace is characterised by the 
fact that it is essentially full-time. 
37 By judgment of 29 November 2017, King, C-214/16, EU:C:2017:914, the Court 
of Justice also acknowledged that a person who works on the basis of a ‘self-
employed commission-only contract’, as predominantly occurs in the case of the 
applicant giudice di pace, must be regarded as a ‘worker’ within the meaning of 
Directive 2003/88 and is entitled to holiday pay. 
The third question referred for a preliminary ruling 
38 The referring court observes that the rules on the civil liability of judges laid down 
in Law 117/1988 were amended following the adoption of Law No 18/2015, by 
which the national legislature sought to comply with the principles laid down by 
the Court of Justice in its judgments of 30 September 2003, Köbler (C-224/01, 
EU:C:2003:513), of 13 June 2006, Traghetti del Mediterraneo (C-173/03, 
EU:C:2006:391) and of 24 November 2011, Commission v Italy (C-379/10, 
EU:C:2011:775). According to those judgments, the courts of a Member State are 
required to disapply national legislation incompatible with EU law having direct 
effect or, where possible, to interpret the former in accordance with the latter, in 
order to prevent the liability of the State. 
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39 The referring court points out that, by excluding all liability of the Italian State for 
damage caused to individuals through an infringement of EU law on the part of a 
national court adjudicating at last instance when that infringement results from an 
interpretation of the rules of law or an assessment of the facts and evidence carried 
out by that court, and by limiting liability to cases of intentional fault or serious 
misconduct, pursuant to Article 2(1) and (2) of legge del 13 aprile 1988, n. 117 sul 
risarcimento dei danni cagionati nell’esercizio delle funzioni giudiziarie e 
responsabilità civile dei magistrati (Law No 117 of 13 April 1988 on the 
reparation of damage caused in the exercise of judicial functions and the civil 
liability of judges), the Italian legislature has failed to fulfil its obligations under 
the general principle that Member States are liable for the infringement of EU law 
by any of their courts adjudicating at last instance. 
40 The referring court notes that the new version of Article 2(3) and (3a) of Law 
No 117/1988, as amended by Law No 18/2015, introduces a concept of liability 
for intentional fault or serious misconduct on the part of judges which occurs 
either in the event of manifest infringement of the law or in the event of manifest 
infringement of EU law. Equating those two types of infringement is incompatible 
with EU law and the relevant case-law of the Court of Justice since, in the 
circumstances of the present case, it presents the national court with the choice of 
either: 
– infringing national legislation (Law No 374/1991, in so far as it excludes the 
entitlement of giudici di pace to paid leave), by disapplying it and instead 
applying EU law (Directive 2003/88, the framework agreement on fixed-term 
work, and the Charter of Fundamental Rights of the European Union), as 
interpreted by the Court of Justice in the judgments in Cases C-393/10 
(O’Brien) and C-214/16 (King), or 
– infringing EU law by applying that national legislation. 
The fourth and fifth questions referred for a preliminary ruling 
41 The referring court emphasises its own criticisms of the Commission’s conduct: 
that institution, by refusing to initiate the infringement proceedings which it had 
announced as imminent, committed a serious and unjustifiable breach of its duty 
as guardian of the Treaties. That conduct, taken together with Communication 
C(2016) 8600 final, cited above, constitutes, according to the referring court, 
proof of a systemic crisis in the protection afforded by the courts at EU level, 
which compounds the systemic crisis in the protection afforded by the courts at 
national level of which the applicant complains. 
42 The referring court also considers that, in a situation such as that under 
consideration, in which the damage sustained by the applicant has been caused, 
inter alia, by the laxity of the Commission, the action for damages must be 
examined with reference to the non-contractual liability of that institution. If it 
were otherwise, that is to say, if it were impossible to argue the non-contractual 
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liability of the European Union before a national court, fundamental principles of 
the Italian constitutional order would be infringed and it would be necessary to 
bring an action before the Corte costituzionale (Constitutional court) seeking a 
declaration of the partial unlawfulness of the law ratifying the EU Treaties.