Information;Order — ECLI:EU:C:2025:164
Date: 2025-03-06
Language of the case: Italian
Court formation: Ninth Chamber
Subject matter: Approximation of laws;Social Policy;Free movement of workers
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Italy

Summary C-163/23 – 1 
Case C-163/23 
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: 
14 March 2023 
Referring court: 
Giudice di pace di Bologna (Italy) 
Date of the decision to refer: 
25 January 2023 
Opponent: 
Governo Italiano 
Respondent: 
UX 
  
Subject matter of the main proceedings 
Opposition lodged by the Italian Government to the injunction issued by the 
Giudice di pace di Bologna (Magistrate, Bologna, Italy) in favour of UX, whereby 
the Italian Government was ordered to pay UX damages for having failed to pay 
holiday pay. 
Subject matter and legal basis of the request 
Article 267 TFEU; alleged infringement of EU law by the Italian Government 
Questions referred for a preliminary ruling 
1) Does the case-law of the highest ordinary and administrative courts cited 
below – more specifically, Order No 13973/2022 of 3 May 2022 of the Corte di 
Cassazione (Supreme Court of Cassation), which denies honorary fixed-term 
magistrates, such as the magistrate in the main proceedings, any rights linked to 
the status of worker with working conditions comparable to those of a permanent 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-163/23 
 
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professional judge – commit a specific breach of EU law by preventing effective 
recourse to judicial protection of those rights before an independent national court 
if, and in so far as, the Court should find that that case-law of the ordinary court of 
last instance had infringed Article 31(2) of the Charter of Fundamental Rights of 
the European Union …, Article 7 of 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 …, clauses 2 and 4 of the framework agreement 
between ETUC, UNICE and CEEP on fixed-term work concluded on 18 March 
1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 …, as 
interpreted by the Court of Justice of the European Union in its judgments of 
16 July 2020, Governo della Repubblica italiana (Status of Italian Magistrates) 
(‘the judgment in UX’), C-658/18, EU:C:2020:572 … and of 7 April 2022, 
Ministero della Giustizia and Others (Status of Italian Magistrates) (‘the 
judgment in PG’), C-236/20, EU:C:2022:263 …, and Article 47(1) and (2) of the 
Charter? 
2) Do Article 31(2) of the Charter, Article 7 of Directive 2003/88/EC, clauses 2 
and 4 of the framework agreement on fixed-term work transposed by Directive 
1999/70/EC, as interpreted by the Court of Justice of the European Union in the 
judgment in UX and the judgment in PG, and Article 47(1) and (2) of the Charter 
preclude national legislation, such as Article 29(5) of decreto legislativo 
(Legislative Decree) No 116/2017, introduced by Article 1(629) of Law 
No 234/2021, in so far as the national rule provides for the automatic ex lege 
waiver of any claim arising from EU law, and, in the main proceedings, the 
waiver of the right to paid leave accruing to the magistrate who lodged the appeal, 
where the magistrate who lodged the appeal had submitted an application for the 
competitive procedure that would confirm him or her in his or her role indefinitely 
until he or she reached the age of 70, with an employment relationship with the 
Ministry of Justice on the salary for administrative officers with judicial functions, 
and had successfully completed the competitive procedure? 
3) Does the choice that this referring court intends to make (once all the checks 
that have been entrusted, according to the case-law of the Court referred to above, 
to the national court regarding the comparability of working conditions between 
the magistrate who lodged the appeal and the equivalent permanent ordinary judge 
have been successfully carried out) regarding the appellant’s right to damages for 
non-payment in respect of holiday leave – that choice being to apply, as a 
parameter for calculating the damages due, the salary paid to ordinary court 
judges at level HH03, while simultaneously complying with the different 
recruitment procedures for honorary magistrates and permanent professional 
judges, with only the latter (ordinary judges) having the right to progress 
financially and professionally through higher qualifications and not only by 
seniority through salary grades and steps – comply with the statements of the 
Court of Justice of the European Union in the judgment in UX and the judgment in 
PG? 
PALOGNALI 
 
3 
4) Lastly, do Article 47 of the Charter and the conditions of judicial 
independence set out by the Court in paragraphs 45 to 49 of the judgment in UX 
preclude national legislation, such as Article 21 of Legislative Decree 
No 116/2017, which provides for the possible application of the measure of 
revoking the judicial appointment of the magistrate who has made the reference 
for a preliminary ruling, at the complete discretion of the Consiglio superiore della 
magistratura (Supreme Council of the Judiciary), without any graduation of 
disciplinary sanctions, even where that national magistrate seeks to apply case-law 
of the Court of Justice in the main proceedings, thereby running counter to the 
national legislation applicable to the case in the main proceedings and the case-
law referred to above of the highest ordinary and administrative courts? 
Provisions of European Union law and case-law relied on 
Article 31(2) and Article 47 of the Charter of Fundamental Rights of the European 
Union (OJ 2012 C 326, p. 391) (‘the Charter’); 
Article 7 of 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); 
Clauses 2 and 4 of the Annex to 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) (‘the framework agreement’); 
Judgment of the Court of 16 July 2020, Governo della Repubblica italiana (Status 
of Italian Magistrates), C-658/18, EU:C:2020:572; 
Judgment of the Court of 7 April 2022, Ministero della Giustizia and Others 
(Status of Italian Magistrates), C-236/20, EU:C:2022:263; 
Judgment of the Court of 21 December 2021, Randstad Italia, C-497/20, 
EU:C:2021:1037 
Provisions of national law and case-law relied on 
Articles 1 and 21 and Article 29(5) of decreto legislativo No 116 of 13 July 2017 
(‘Legislative Decree No 116/2017’); 
Order No 13973 of 3 May 2022 of the Supreme Court of Cassation; 
Judgments No 7762 of 26 November 2020 and No 1062 of 4 February 2021 of the 
Consiglio di Stato (Council of State). 
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Succinct presentation of the facts and procedure in the main proceedings 
1 The defendant UX, in the main proceedings, is the same UX involved in the Court 
judgment of 16 July 2020, Governo della Repubblica italiana (Status of Italian 
Magistrates), C-658/18 (‘the judgment in UX’). 
2 In the judgment in UX, the Court of Justice held that ‘Article 7(1) of Directive 
2003/88/EC … and Article 31(2) of the Charter … must be interpreted as meaning 
that a magistrate who, in the context of his or her duties, performs real and 
genuine services which are neither purely marginal nor ancillary, and for which he 
or she receives compensation representing remuneration, may fall within the 
concept of “worker” within the meaning of those provisions, which it is for the 
referring court to verify’. 
3 In that judgment, the Court also held that ‘clause 2(1) of the Framework 
agreement … must be interpreted as meaning that the concept of “fixed-term 
worker” in that provision may encompass a magistrate appointed for a limited 
period, who, in the context of his or her duties, performs real and genuine services 
which are neither purely marginal nor ancillary, and for which he or she receives 
compensation representing remuneration, which it is for the referring court to 
verify’. 
4 Lastly, in the same judgment, the Court held that ‘clause 4(1) of the Framework 
agreement … must be interpreted as precluding national legislation which does 
not provide for an entitlement on the part of magistrates to 30 days’ paid annual 
leave, such as that provided for ordinary judges, where those magistrates fall 
within the concept of “fixed-term workers” within the meaning of clause 2(1) of 
that framework agreement, and are in a situation comparable to that of ordinary 
judges, unless such a difference in treatment is justified by the differences in the 
qualifications required and the nature of the duties undertaken by those judges, 
which it is for the referring court to verify’. 
5 On the basis of that judgment, an injunction was issued in favour of UX against 
the Italian Government. The latter lodged an opposition to that injunction, 
claiming, inter alia, that UX’s claim was unfounded, given that, in its view, no 
employment relationship could be inferred, even from the judgment in UX itself. 
6 In turn, UX, who entered an appearance in the opposition proceedings, sought 
confirmation of the injunction and an order that the Italian Government pay the 
costs. 
The essential arguments of the Italian Government in the main proceedings 
7 The Italian Government states the grounds of its opposition, based on (1) 
Article 29(5) of Legislative Decree No 116/2017, (2) the case-law of the Council 
of State, and (3) the case-law of the Supreme Court of Cassation, Order 
No 13973/22 in particular. 
PALOGNALI 
 
5 
1. Article 29(5) of LD No 116/2017 
8 Article 29(5) of LD No 116/2017 was introduced by Law No 234 of 30 December 
2021, with the aim of complying with obligations under EU law and responding to 
the infringement proceedings initiated by the European Commission against the 
Italian Republic (INFR(2016)4081). 
9 Pursuant to that provision, honorary magistrates in service as of the effective date 
of Legislative Decree No 116/2017 (15 August 2017), such as UX, are confirmed 
indefinitely until they reach the age of 70, similarly to what is provided for 
professional judges. 
10 In order to have that confirmed, the legislature assigned the Consiglio superiore 
della magistratura (Supreme Council of the Judiciary; ‘the SCJ’) the task of 
setting up three evaluation procedures to be carried out in the three-year period 
2022-2024, which, in the case of the one carried out in the national courts in 2022, 
involved honorary magistrates already in service with more than 16 years of 
seniority as of 15 August 2017. 
11 On 20 April 2022, the SCJ approved the resolution on the procedure for 
confirming in office the honorary magistrates referred to above. The deadline for 
submitting the application was set for 27 June 2022. 
12 For honorary magistrates who have not passed the evaluation procedure in 2022 or 
do not pass in 2023 and 2024, or have chosen in 2022, or choose in 2023 and 
2024, not to undergo the evaluation procedure (Article 29(2) of Legislative Decree 
No 116/2017 provides that serving honorary magistrates who do not apply to 
participate in the evaluation procedure will have their service terminated), 
provision is made for a severance payment proportional to the number of years of 
service, but not exceeding EUR 50 000 gross. The law provides expressly that, as 
a consequence of both receiving the severance payment and participating in the 
evaluation procedure, any claims relating to the previous honorary employment 
relationship are waived. 
13 On the other hand, those who have passed the aforementioned evaluation 
procedures will be faced with a choice between an appointment exclusively as a 
magistrate or a non-exclusive appointment, to be taken up within 30 days of the 
Ministerio della Giustizia (Ministry of Justice) notifying the honorary magistrate 
that he or she has passed the evaluation procedure. 
14 For employment exclusively as a magistrate, the salary will include a fixed 
portion, including a 13th month’s salary, equivalent to that of an official (not a 
manager) in the administration of justice with a placement in a different grade (F1, 
F2 or F3) depending on the number of years of service, to which will be added a 
judicial allowance. 
15 For an exclusive appointment at grade F3, such as should be awarded to UX for 
the 20 years of seniority accrued, the gross annual salary provided for in the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-163/23 
 
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corresponding table is EUR 39 678.59, with a net salary of slightly more than 
EUR 2 200 per month for 13 months per year. 
16 By way of comparison, a professional judge at level HH03 with 20 years of 
seniority receives an annual gross salary of EUR 81 332.07. 
17 Therefore, according to the referring court, even after passing the evaluation 
procedure, the ‘confirmed’ honorary magistrate, entering into service as an 
administrative official, will continue not to enjoy the same working conditions as 
a professional judge, not only in terms of salary and social security, but also in 
terms of disciplinary protection and every other aspect (for example, transfers, 
expectations or incompatibilities). 
2. Case-law of the Council of State 
18 In judgment No 7762/2020, the Council of State held that ‘the professional 
magistrate is a special career in public law … as it involves a service relationship 
that simultaneously expresses independence; therefore, given its association with 
the public interest and how the function it serves is configured, shaping its 
structure and development, [the career of magistrate] cannot be classed as a 
common employment relationship, to which, therefore, [EU] law does not apply. 
As for magistrates, the nature of honorary public official, which rules out any 
employment relationship, renders European directives with such objective scope 
inapplicable’. 
19 Moreover, in judgment No 1062/2021, the Council of State pointed out that 
‘unlike a professional judge, an honorary magistrate is a judge only in so far as 
and under the terms in which he or she is called upon to perform judicial 
functions. However, that is for a limited duration and in a way that is not 
exclusive but is compatible with other work and professional activities and 
represents a voluntary choice to participate in the administration of justice “gratis 
rei publicae servire” (as a free service for the common good); these characteristics 
distinguish the honorary magistrate’s status from that of the professional judge’. 
3. Case-law of the Supreme Court of Cassation 
20 In order No 13973/2022, the Supreme Court of Cassation appears to have 
interpreted the case-law of the Court of Justice in the same way as the Council of 
State, stating, inter alia, that ‘the Court of Justice too …, took the opportunity in 
[the judgment in UX] to mention that, in the context of a comparative assessment, 
what was significant was that ordinary judges only had to be appointed by 
competition, in accordance with Article 106(1) [of the Constitution], and that the 
system reserved for them the more complex disputes or ones that had to be dealt 
with at a higher level. The different form of appointment established in 
Article 106(2) [of the Constitution], the non-exclusive nature of the judicial 
activity carried out and the lower level of complexity of the cases handled account 
for the heterogeneity of the status of magistrate, providing a basis for the 
PALOGNALI 
 
7 
“honorary” status of the magistrate’s service relationship, affirmed by the 
legislature when the role was created …’. 
21 According to the Supreme Court of Cassation, ‘magistrates are (distinguished) by 
their status rather than by the functions they exercise, … in line with the 
traditional regime for honorary officials, such that the act of appointment entails 
only the establishment of an organisational relationship, not a service relationship, 
with the administration; that is to say, it does not entail the establishment of an 
employment relationship that can be qualified as public service employment 
[either as an employee or a self-employed person; …]’. 
22 In that regard, the Supreme Court of Cassation recalls the literal wording of 
Article 1(3) of Legislative Decree No 116/2017, whereby ‘the appointment of an 
honorary magistrate is without exception temporary in nature, is carried out in 
such a way as to ensure compatibility with performance of the work or 
professional activities and in no case establishes a public service relationship. In 
order to ensure such compatibility, each honorary magistrate may not be required 
to commit more than two days per week overall. Honorary magistrates are 
assigned business, duties and activities, to be performed both in and out of court, 
only in so far as compatible with the provisions of this paragraph’. 
The essential arguments of UX in the main proceedings 
23 After pointing out that two references for a preliminary ruling are pending before 
the Court of Justice (C-190/22, Presidenza del Consiglio dei Ministri (‘BL’), and 
C-548/22, Presidenza del Consiglio dei Ministri and Others (‘MM’)), UX 
observes that the European Commission has sent two letters of formal notice to 
the Italian Republic, under Article 258 TFEU, highlighting various 
incompatibilities between the working conditions of honorary magistrates and the 
European employment directives. Moreover, the UX judgment has allegedly 
already censured such incompatibilities. 
24 According to the Commission, ‘several categories of honorary magistrates – 
honorary justices of the peace, honorary deputy prosecutors, and honorary court 
judges – do not enjoy the status of “worker” under Italian national law, and are 
considered volunteers providing services on an “honorary” basis. Because of this, 
they do not enjoy protection granted to workers under EU labour law, leading for 
instance to a lack of allowances in case of illness, accidents and pregnancy, to 
differences in pay, and to tax discrimination. Honorary magistrates are also not 
sufficiently protected against the abuse of successive fixed-term contracts, and 
they do not have the possibility to obtain proper compensation for such abuse. 
Furthermore, Italy has not set up a system to measure the daily working time of 
each honorary magistrate’. 
25 Moreover, while acknowledging that Italy amended its legislation in December 
2021, ‘the Commission considers that these amendments do not fully address the 
infringements to EU law identified initially and they raise new grievances’. 
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26 In the light of the foregoing, UX argues that the referring court should rule on the 
opposition in question without taking into account Article 29(5) of Legislative 
Decree No 116/2017, a provision that should be disregarded for manifestly 
infringing EU law and the case-law of the Court of Justice. The aforementioned 
opposition should therefore be rejected and the opposed injunction confirmed. In 
the alternative, UX requests that the referring court submit a new request to the 
Court of Justice for a preliminary ruling on the compatibility with EU law of the 
national legislation in question. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
27 According to the referring court, the Italian Republic has not adopted any 
legislative or administrative measures to implement the judgment in UX and the 
judgment in PG, refusing to apply EU law or recognise employee status despite 
the initiation of the infringement proceedings referred to above (INFR(2016)4081) 
by the European Commission. Moreover, the national case-law cited above runs 
counter to EU law as interpreted by the Court of Justice. 
28 On the one hand, the referring court considers that it must reject the Italian 
Government’s opposition, in the belief that the opposed injunction was adopted 
correctly in accordance with the judgment in UX. 
29 On the other hand, it cannot ignore the decisions of the highest national courts, as 
reported above, which had not applied the judgments of the Court of Justice 
referred to above, thereby preventing any ruling that could protect effectively the 
rights of honorary magistrates. 
30 Failure to apply EU law as interpreted by the Court of Justice went so far as to 
penalise, either personally or procedurally, the judges who had made the 
references for preliminary rulings on the legal status and rights of honorary 
magistrates decided by the UX and PG judgments. 
31 Specifically, the Council of State had allegedly denied the referring judge in the 
UX case judicial tenure four times by the time she reached the age of 70. 
32 Moreover, the referring court observes that if the injunction issued in favour of 
UX were to be confirmed in the main proceedings, the judgment that confirmed it 
would inevitably be appealed by the Italian Government before the Tribunale 
civile di Bologna (Civil Court, Bologna, Italy), in accordance with the principles 
stated by the Supreme Court of Cassation. 
33 It is therefore uncertain, also in the light of paragraphs 79 and 80 of the judgment 
in Randstad Italia, whether there is, first, an obligation on the part of the court of 
the Member State concerned to disregard case-law that is not in conformity with 
EU law and, if that obligation is not fulfilled, a possibility for the European 
Commission to institute proceedings against that Member State for failure to fulfil 
its obligations and, second, an option for individuals who may have been harmed 
PALOGNALI 
 
9 
by the infringement of their right to an effective remedy as a result of a decision of 
a court adjudicating at last instance to hold that Member State liable, provided that 
the conditions relating to the sufficiently serious nature of the breach and to the 
existence of a direct causal link between that breach and the loss or damage 
sustained by the injured party are satisfied. 
34 Lastly, with regard to the possible incompatibility of Article 47 of the Charter and 
Article 21 of Legislative Decree No 116/2017, the referring court observes that 
the second article allows the SCJ to apply the disciplinary measure of revoking the 
judicial appointment of a magistrate if the latter applies case-law of the Court of 
Justice,  thereby running counter to the national legislation applicable to the case 
in the main proceedings and with the aforementioned case-law of the highest 
ordinary and administrative courts.