Information;Order — ECLI:EU:C:2020:441
Date: 2020-06-04
Language of the case: Italian
Court formation: Seventh Chamber
Subject matter: Approximation of laws;Social Policy;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Italy

Summary C-32/20 — 1 
Case C-32/20 
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 January 2020 
Referring court: 
Corte di appello di Napoli (Court of Appeal, Naples, Italy) 
Date of the decision to refer: 
18 September 2019 
Appellant: 
TJ 
Respondent: 
Balga Srl 
  
Subject matter of the main proceedings 
Appeal proceedings brought by TJ (‘the appellant’) against the judgment of the 
Employment Division of the Tribunale di Napoli (District Court, Naples, Italy), 
which dismissed the action brought by the appellant contesting her dismissal as 
part of a collective redundancy procedure launched by the company Balga Srl 
(‘the respondent company’). 
Subject matter and legal basis of the reference 
Interpretation of Articles 20, 21, 30, 34 and 47 of the Charter of Fundamental 
Rights of the European Union (‘the EU Rights Charter’), and assessment of 
whether the rules on penalties for unlawful dismissals adopted by the Italian 
legislature when implementing Directive 98/59/EC are in line with EU law, in 
particular with reference to the effectiveness, adequacy and dissuasiveness of the 
protection that workers must be afforded under those provisions of the EU Rights 
Charter and under the European Social Charter. 
Article 267 TFEU. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-32/20 
 
2  
Questions referred 
[1] In the event of unlawful collective redundancies, must Article 30 of the 
[Charter of Fundamental Rights of the European Union] be interpreted as 
recognising a right to protection qualified by parameters of effectiveness, efficacy, 
adequacy and deterrence, inasmuch as those requirements are a feature of the 
penalties laid down by ‘Union law’ to safeguard respect for fundamental values 
and must be complied with by the piece of national legislation — or national 
practice — that guarantees concrete penalties for any unjustified dismissal? 
Consequently, do the abovementioned parameters constitute an external limitation 
that is relevant and applicable for the decision concluding proceedings in actions 
falling within the jurisdiction of the national courts for the purposes of 
ascertaining whether that piece of national legislation or national practice 
implementing Directive 98/59/EC is in line with EU law? 
[2] For the purposes of determining the level of protection required by the EU 
legal order in the event of unlawful collective redundancy, must Article 30 of the 
[Charter of Fundamental Rights of the European Union] be interpreted by giving 
‘due regard’ to, and therefore considering relevant, the material meaning of 
Article 24 of the revised European Social Charter, referred to in the Explanations 
[relating to the Charter of Fundamental Rights], as resulting from the decisions of 
the European Committee of Social Rights? Consequently, does EU law preclude a 
piece of national legislation or a national practice that, by excluding job 
reinstatement, limits the protection provided to a purely compensatory remedy 
characterised by a ceiling value set primarily on the basis of length of service and 
not making good the damage sustained by a worker as a result of the loss of his or 
her source of income? 
[3] When assessing the degree of compatibility of domestic legislation 
implementing or establishing the extent of protection in the event of unlawful 
collective redundancies (for breach of selection criteria), must the national court 
therefore consider the content developed by the European Social Charter resulting 
from the decisions made by its component bodies and, in any event, deem it 
necessary to provide compensation in full, or at least essentially so, for the 
financial consequences arising from the loss of the employment contract? 
[4] Do Articles 20, 21, 34 and 47 of the [Charter of Fundamental Rights of the 
European Union] preclude the introduction of a piece of legislation or a practice 
by a Member State implementing Directive 98/59/EC that imposes a sanctioning 
system, solely for workers hired after 7 March 2015 and involved in a single 
procedure, that excludes job reinstatement and, in any event, relief from the 
consequences arising from the loss of income and the loss of social security cover, 
unlike the protection afforded to other workers subject to the same procedure but 
hired before that date? Can such a system recognise only compensation in the 
form of an amount determined primarily on the basis of length of service and 
therefore apply a different penalty based on the date of hiring, so as to create 
different levels of protection based on the abovementioned criterion and not on the 
BALGA 
 
3 
consequences actually sustained as a result of the unjustified loss of a worker’s 
source of income? 
Provisions of EU law relied on 
Directive 98/59/EC, and in particular recital 2, which lays down the requirement 
to promote the protection provided in the event of collective redundancies. 
The EU Rights Charter, and in particular Article 20 on the right to equality; 
Article 21 on the principle of non-discrimination; Article 30, pursuant to which 
‘every worker has the right to protection against unjustified dismissal, in 
accordance with [Union] law and national laws and practices’; Article 34 on the 
entitlement to social security benefits; Article 47 on the right to an effective 
remedy; Article 51(1) on the field of application of the provisions of the EU 
Rights Charter; Article 52(5), which makes it possible to invoke the acts of 
Member States for the purposes of interpreting such acts and ruling on their 
legality; and Article 52(7), which requires that the courts of the European Union 
and of the Member States give ‘due regard’ to the Explanations. 
The Explanations relating to the [EU Rights Charter] (2007/C 303/02), and in 
particular the Explanation on Article 30 of that charter, which clarifies that that 
provision ‘draws on Article 24 of the revised Social Charter’. 
The European Social Charter, and in particular Article 24, which establishes the 
parameters of ‘adequate compensation’ or ‘other appropriate relief’ in the event of 
unlawful dismissal. 
Provisions of national law relied on 
Legge 20 maggio 1970 n. 300 (Law No 300 of 20 May 1970) (‘the Workers’ 
Statute’), and in particular Article 18(4), which lays down a penalty in the event of 
dismissal, in breach of the selection criteria, of a worker hired on an indefinite 
basis that makes it possible for a court to ‘annul the dismissal and order the 
employer to reinstate the worker described in paragraph 1 in his or her post and to 
pay compensation commensurate with the most recent total actual salary from the 
day of dismissal until the day of effective reinstatement […]. In any event, the 
amount of compensation may not be more than 12 months’ total actual salary. The 
employer shall also be ordered to pay social security and pension contributions 
from the day of dismissal until the day of effective reinstatement, plus interest at 
the legal rate without application of penalties for non-payment or late payment of 
contributions […]. Following the reinstatement order, the employment 
relationship shall be deemed to have been terminated if the worker has not 
resumed employment within thirty days after having been invited to do so by the 
employer, except in the case where that worker has requested payment of 
compensation in lieu of job reinstatement under paragraph 3’. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-32/20 
 
4  
Legge 23 luglio 1991 n. 223 (Law No 223 of 23 July 1991), implementing 
Directive 98/59/EC (‘Law No 223/1991’), and in particular Article 4, which 
governs the collective redundancy procedure; Article 5(1) on selection criteria; 
Article 5(3), which provides, in relation to employment relationships of indefinite 
duration entered into before 7 March 2015, that, ‘in the event of a breach of the 
selection criteria laid down in paragraph 1, the rules set out in Article 18(4) shall 
apply’; and Article 24(1) on collective redundancy scenarios. 
Legge n. 92/2012 (Law No 92/2012), and in particular Article 1(48) on an 
accelerated procedure making it possible for workers to obtain early protection by 
means of a legal ruling given in proceedings for interim relief. 
Decreto legislativo 4 marzo 2015 n. 23 (Legislative Decree No 23 of 4 March 
2015) (‘Legislative Decree No 23/2015’), and in particular Article 3(1), which 
lays down the rules on penalties in the event of collective redundancies in relation 
to employment relationships of indefinite duration entered into after 7 March 
2015, and Article 10, which refers to the rules on penalties established by 
Article 3(1) of that legislative decree. 
Decreto legge n. 87/18 (Decree-Law No 87/18), converted by legge n. 96/18 (Law 
No 96/2018), which establishes that the minimum and maximum values for 
employment relationships ending on or after 13 July 2018 are to be increased to 
six and 36 months respectively. 
Succinct presentation of the facts and the proceedings 
1 Following a transfer between companies in the management of a procurement 
contract, the appellant, who was working for the transferring company, was hired 
on 1 May 2016 under a new contract by the transferee, the respondent company. 
That new contract did not take into account the length of service previously 
accrued by the appellant with the transferring company. 
2 On 15 May 2016, at the end of a collective redundancy procedure launched by the 
respondent company under Article 24(1) of Law No 223/1991, the appellant was 
dismissed, along with eight other individuals, due to a ‘reduction in personnel’. 
3 The appellant then brought an action before the District Court, Naples, contesting 
that dismissal, alleging that there had been a breach of the selection criteria laid 
down in Articles 4 and 5 of Law No 223/1991, and requesting reinstatement in her 
post and compensation for the damage caused. By means of Judgment 
No 1110/2018, that court dismissed the action as unfounded. 
4 On 8 October 2018 the appellant brought an appeal against that judgment before 
the Court of Appeal, Naples (‘the referring court’). The respondent company 
entered an appearance in the appeal and requested that the appeal be dismissed. 
BALGA 
 
5 
Essential arguments of the parties in the main proceedings 
5 In the main proceedings, the appellant is requesting variation of the judgment of 
the District Court, Naples, and reiterates the arguments made in the proceedings at 
first instance, that is to say, she is requesting reinstatement in the position she 
previously held and compensation for the damage caused. In support of her 
claims, she asserts that her dismissal must be considered unlawful because it is in 
breach of the selection procedure and criteria, inasmuch as the respondent 
company failed to take into consideration other employees with the same 
employee classification as the appellant for the purposes of comparison. 
6 The respondent company contends that the appeal should be dismissed as 
unfounded and argues that, in any event, the appellant may claim only 
compensation and not job reinstatement, in accordance with the limits established 
by Article 10 of Legislative Decree No 23/2015, because her employment contract 
was concluded on a date after 7 March 2015. 
Succinct presentation of the reasons for the reference 
7 The referring court notes that, between 2015 and 2018, the Italian legislature 
introduced various competing types of penalties in relation to unlawful collective 
redundancies when implementing Directive 98/59/EC. In abstract terms, these 
may apply in respect of the same single breach in a single collective redundancy 
procedure. 
8 The remedy of full reinstatement established by Article 5(3) of Law No 223/1991 
in conjunction with Article 18 of the Workers’ Statute is applicable to 
employment relationships of indefinite duration entered into before 7 March 2015: 
a worker unlawfully dismissed as a result of the incorrect application of the 
selection criteria may challenge that dismissal, using an accelerated procedure laid 
down in Article 1(48) of Law No 92/2012, and is entitled to reinstatement in the 
position previously held, compensation equal to 12 months’ salary — calculated 
by taking into account the total actual salary — and social security and pension 
contributions from the day of dismissal until the day of effective reinstatement. As 
an alternative to job reinstatement, that worker may opt for a compensation 
payment that includes a further 15 months’ salary. 
9 By contrast, only the compensation established by Article 3 of Legislative Decree 
No 23/2015 in conjunction with Article 10 thereof is applicable to employment 
relationships of indefinite duration entered into after 7 March 2015: in the event of 
a breach of the selection criteria, an unlawfully dismissed worker is entitled only 
to compensation, between a minimum of four and a maximum of 24 months’ 
salary, no longer calculated by taking into account the total actual salary but the 
salary calculated for the purposes of severance, which is lower. Specifically, as a 
result of a judgment of the Corte costituzionale (Constitutional Court, Italy), the 
court is to calculate that compensation, within set limits, by taking into account 
primarily the worker’s length of service and the size of the company. Furthermore, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-32/20 
 
6  
the worker is not entitled to job reinstatement or payment of social security and 
pension contributions. 
10 Given these two competing sets of rules, by its first question the referring court 
asks the Court of Justice, first, whether the right to protection against unlawful 
collective redundancies recognised by Article 30 of the EU Rights Charter must 
be in line with the principles of effectiveness, efficacy, adequacy and deterrence 
and, second, whether those principles should be considered by the national court 
as specific components of the sanctioning system that the Member States are 
required to adopt in their national legislation when implementing Directive 
98/59/EC and, therefore, as parameters for assessing the compatibility of that 
national legislation with EU law. The referring court is therefore asking whether 
EU law precludes a piece of national legislation or a national practice 
implementing EU law (in this case Directive 98/59/EC) that introduces protection 
against such dismissals that is at odds with the abovementioned principles. 
11 First, the referring court recognises, on the one hand, that the right to protection 
against unlawful dismissals enshrined in Article 30 of the EU Rights Charter 
cannot be invoked in individual judgments because it lacks sufficiently detailed 
content and, therefore, requires legislative intervention by the individual Member 
States. On the other hand, the referring court considers that that provision is not 
merely a provision reflecting policy or planning guidance, inasmuch as it affirms 
the nature of the right to protection against unlawful dismissals as a ‘fundamental 
right’ and requires that Member States adopt rules on penalties ‘in accordance 
with Union law’, namely in line with the parameters imposed by the European 
Union that derive from that classification of the right being examined here as a 
fundamental right, in accordance with Article 51(1) of the EU Rights Charter. 
12 In the view of the referring court, Article 30 of that charter therefore constitutes a 
constraint both for the national legislature, as it represents an external limitation 
on its legislative powers, and for the national court, because it introduces a 
parameter for assessing whether the national legislation implementing Directive 
98/59/EC is in line with EU law. 
13 In support of that interpretation, the referring court also mentions Article 52(5) of 
the EU Rights Charter, and, lastly, the ‘Explanations’ relating to that charter, to 
which the court is required to give ‘due regard’ during interpretation in 
accordance with Article 52(7) of the EU Rights Charter. The referring court also 
notes the reference made by those Explanations to Article 24 of the European 
Social Charter, which establishes the specific features of the protection provided 
against unlawful dismissals. Lastly, the referring court cites the points raised by 
the Tribunale di Milano (District Court, Milan, Italy) in its order for reference of 
5 August 2019 made in accordance with Article 267 TFEU (Case C-652/19). 
14 Having thus identified the prescriptive scope of Article 30 of the EU Rights 
Charter, the referring court notes that protection of the fundamental right 
recognised by that provision must be based on criteria typical of the penalties laid 
BALGA 
 
7 
down in the EU legal order, namely adequacy, proportionality, efficacy and 
dissuasiveness (see [judgments of the] Court of Justice [of] 11 October 2007, 
[Paquay,] C-460/06, paragraph 49, and [of] 10 July 2008, [Feryn,] C-54/07). 
Dissuasiveness should be understood as the imposition, in relation to the 
employer, of ‘a means of pressure which it would be unwise to disregard’ in order 
to ‘prompt [that employer] to respect the principle’ (see [judgment of the] Court 
of Justice [of] 10 April 1984, [Von Colson and Kamann v Land Nordrhein-
Westfalen,] C-14/83). 
15 In that regard, the referring court cites the case-law of the Court of Justice in 
which it is stated that weakened forms of protection, or those limited by a ceiling 
value, in relation to damage arising from a breach of a fundamental EU right that 
could worsen over time are incompatible with the above criteria (see the Opinion 
of [Advocate General Szpunar] of [26 October 2017] in Case C-494/16, point 65). 
Consequently, although a worker may not request the application in a national 
procedure of a predefined penalty — whether reinstatement or compensation — in 
accordance with EU law, the penalty adopted by the national legislature when 
implementing Directive 98/59/EC must fulfil those criteria. 
16 In terms of the second and third questions referred, the referring court is 
questioning the relationship between Article 30 of the EU Rights Charter and 
Article 24 of the European Social Charter, for the purpose of establishing the level 
of protection required by the EU legal order in the event of unjustified dismissal. 
Furthermore, the referring court questions whether a national legal order that 
introduces a limitation on that level of protection is at odds with EU law and 
whether the national court, in assessing the compatibility of the domestic law 
implementing EU law, is required to take into consideration the content of the 
European Social Charter and, consequently, to deem it necessary to provide full, 
or almost full, protection against unlawful dismissal. 
17 First, the referring court notes the close connection between Article 30 of the EU 
Rights Charter and Article 24 of the European Social Charter and considers that 
the content of the protection of a worker’s right against unlawful dismissals must 
draw on, and not contradict, the parameters of ‘adequate compensation’ or ‘other 
appropriate relief’ laid down in the latter provision, and the interpretation of that 
provision given by the European Committee of Social Rights. 
18 However, in the view of the referring court, this close connection implies that the 
protection that must be adopted by the national legislature against unlawful 
dismissals must draw on the principles of effectiveness, adequacy and certainty 
and that, therefore, those principles are not observed by mere compensation, such 
as that applicable to employment relationships of indefinite duration entered into 
after 7 March 2015. In support of that interpretation, the referring court recalls 
that the European Committee of Social Rights has stated many times that, in 
essence, placing a limitation on the protection of a fundamental right so as not to 
permit the damage sustained as a result of the unlawful dismissal to be made good 
effectively and in full does not correspond to an adequate and effective dissuasive 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-32/20 
 
8  
measure, as expressly stated in the European Social Charter (see European 
Committee of Social Rights, Complaint No 106/14, 31 January 2017). 
19 Consequently, the compensation introduced by Article 3 of Legislative Decree 
No 23/2015 in conjunction with Article 10 thereof would undermine the 
effectiveness, proportionality, dissuasiveness and adequacy typical of the penalty 
in EU law. 
20 Lastly, in relation to the fourth question referred, the referring court asks the Court 
of Justice whether the difference in treatment resulting from the coexistence of 
two sets of rules on protection addressed in the main proceedings that lay down, 
for two employment relationships with the same characteristics, stronger 
protection for some and weaker protection for others depending on the date on 
which the worker was hired, is at odds with the fundamental principles set out in 
Articles 20, 21, 34 and 47 of the EU Rights Charter. 
21 First, the referring court recalls that the principle of equal treatment, recognised by 
Article 20 of the EU Rights Charter, is a general principle that is among the 
fundamental principles of [EU] law and that requires that comparable situations 
are not to be treated differently unless such treatment is objectively justified (see 
[judgment of the] Court of Justice [of] 20 September 1988, [Spain v Council,] 
C-203/86). In the view of the referring court, this defining principle, which can be 
relied on directly in legal proceedings, is at odds with a piece of national 
legislation implementing Directive 98/59/EC that creates a substantial difference 
in sanctioning for completely comparable breaches. 
22 The court then notes that this dual system of protection laid down by the Italian 
legal order is also at odds with the principle of non-discrimination enshrined in 
Article 21 of the EU Rights Charter. In the view of the referring court, the mere 
passage of time, in a collective redundancy procedure involving a single group of 
workers with uniform characteristics, does not appear in that case to create an 
‘objectively justified’ difference that could legitimise competing systems of 
protection that are profoundly different from each other. 
23 Furthermore, the referring court notes that the purely compensatory type of 
penalty applied by the Italian legal order is also not compatible with the right to an 
effective remedy enshrined in Article 47 of the EU Rights Charter, because that 
type of penalty does not provide a real and effective remedy, with deterrent effect, 
for the breach of that right (see [judgment of the] Court of Justice [of 2 August 
1993], [Marshall v Southampton and South West Hampshire Area Health 
Authority,] C-271/91). 
24 Lastly, in the view of the referring court, the profound difference between the two 
competing sets of rules on penalties also has an effect on the entitlement to social 
security benefits guaranteed by Article 34 of the EU Rights Charter, inasmuch as 
that entitlement is guaranteed in full only for those workers entitled to 
reinstatement.