Provisional text
OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 5 June 2025 (1)
Case C‑543/23 [Gnattai] (i)
AR
v
Ministero dell’Istruzione e del Merito,
other party:
Anief – Associazione Professionale e Sindacale
(Request for a preliminary ruling from the Tribunale Civile di Padova (Civil Court, Padova, Italy))
( Reference for a preliminary ruling – Social policy – Directive 1999/70/EC – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Clause
4(1) – Concepts of ‘fixed-term … relation’ and ‘employment conditions’ – Public sector – Teachers – Employment at scuole paritarie (State-equivalent schools) under a fixed-term contract – Employment as career civil servants through recruitment based on qualification – Determination of length of service – Classification in the salary grade – National rule which excludes periods of service at scuole paritarie (State-equivalent schools) – Different employers – Difference in treatment – Articles 20 and 21 of the Charter of Fundamental Rights of the European Union )
I.      Introduction
1.        This request for a preliminary ruling concerns the interpretation of clause
4 of the framework agreement on fixed-term work concluded on 18 March 1999 (‘the framework agreement’) annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (2) and Articles 20 and 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2.        In that regard, the case-law raises on several occasions the question of the difference in treatment between teachers previously employed on a fixed-term basis at the time of their appointment or employment in State schools in Italy as compared with teachers employed in those schools on a permanent basis. (3)
3.        At issue in the main proceedings is whether the periods of service completed by the applicant under fixed-term employment contracts at private scuole paritarie (State-equivalent schools), which are essentially equal in law to State schools, must be taken into account for the purposes of determining length of service and, therefore, salary grading following recruitment (under a contract of indefinite duration) at a State school.
4.        Italian law expressly provides that, at the time of recruitment in a State school, periods of service completed at certain schools, including non-State schools, are to be taken into account for the purposes of determining length of service and salary grading. However, the same does not apply to previous periods of employment at scuole paritarie (State-equivalent schools). Conversely, Italian law recognises the equivalence of activities carried out in State schools and in scuole paritarie (State-equivalent schools) during the period at issue. According to the referring court, the teachers in the two comparable groups perform the same tasks, have the same professional obligations and must demonstrate the same disciplinary, pedagogic, methodological-didactic, organisational-relational and research skills.
5.        That prompted the referring court to ask the Court of Justice whether differentiations in that regard under the relevant Italian provisions – which the Corte suprema di cassazione (Supreme Court of Cassation, Italy) and the Corte costituzionale (Constitutional Court, Italy) have found to be lawful and constitutional – are compatible with clause
4(1) of the framework agreement and Articles 20 and 21(1) of the Charter.
6.        The main question here is whether clause
4(1) in conjunction with clause
3(1) and (2) of the framework agreement applies at all. That depends, first, on whether a difference in treatment in accordance with those provisions can also be envisaged where the teachers to be compared are or have been employed by different employers and under different rules (private or public law). Secondly, such a difference in treatment could be ruled out where the failure to recognise previous periods of service is based on a statutory provision which affects all former employees (both fixed-term and permanent) at scuole paritarie (State-equivalent schools) in the same way. If clause
4(1) of the framework agreement is inapplicable, it must be further examined whether Articles 20 and 21(1) of the Charter are applicable, (4) whether there is a difference in treatment in accordance with the general criteria set out in those provisions and, if so, whether it is objectively justified. In that context, the relevant comparable groups must be identified in order to determine whether the teachers concerned are or were in at least a comparable situation. The Court therefore has the opportunity to clarify its previous case-law in that regard.
II.    Legal framework
A.      European Union law
7.        Recital 14 of Directive 1999/70 provides:
‘The signatory parties wished to conclude a framework agreement on fixed-term work setting out the general principles and minimum requirements for fixed-term employment contracts and employment relationships; they have demonstrated their desire to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination, and to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.’
8.        The third paragraph of the preamble to the framework agreement states:
‘This agreement sets out the general principles and minimum requirements relating to fixed-term work, recognising that their detailed application needs to take account of the realities of specific national, sectoral and seasonal situations. It illustrates the willingness of the Social Partners to establish a general framework for ensuring equal treatment for fixed-term workers by protecting them against discrimination and for using fixed-term employment contracts on a basis acceptable to employers and workers.’
9.        Clause
1 of the framework agreement provides:
‘The purpose of this framework agreement is to:
(a)      improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination;
(b)      establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.’
10.      Clause
2(1) of the framework agreement provides:
‘This agreement applies to fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State.’
11.      Clause
3 of the framework agreement is worded as follows:
‘1.      For the purpose of this agreement the term “fixed-term worker” means a person having an employment contract or relationship entered into directly between an employer and a worker where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event.
2.      For the purpose of this agreement, the term “comparable permanent worker” means a worker with an employment contract or relationship of indefinite duration, in the same establishment, engaged in the same or similar work/occupation, due regard being given to qualifications/skills.
Where there is no comparable permanent worker in the same establishment, the comparison shall be made by reference to the applicable collective agreement, or where there is no applicable collective agreement, in accordance with national law, collective agreements or practice.’
12.      Clause
4(1) of the framework agreement provides:
‘In respect of employment conditions, fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds.’
B.      Italian law
13.      Article 485 of decreto legislativo no 297 – Approvazione del testo unico delle disposizioni legislative vigenti in materia di istruzione, relative alle scuole di ogni ordine e grado (Legislative Decree No 297 approving the consolidated text incorporating the legislative provisions on education relating to schools of every type and level) of 16 April 1994 (5) (‘Legislative Decree No 297/1994’) provides:
‘1.      The periods of service completed by teaching staff under fixed-term contracts at State and State-equivalent secondary and art schools, including those located abroad, shall be recognised as periods of permanent employment for legal and salary purposes, in full for the first four years and at a rate of two thirds for any period thereafter, and at a rate of the remaining one third solely for salary purposes. The financial rights stemming from such recognition are preserved and taken into account in all pay grades subsequent to the grade assigned at the time of recognition.
2.      For the same purposes and to the same extent as set out in paragraph 1, the periods of service completed in State educandati femminili [(girls’ schools run by religious bodies)] and the periods of service completed by teachers under permanent and fixed-term contracts in State primary schools or scuole parificate [(State-accredited primary schools)], including the abovementioned educandati and schools located abroad, and in scuole popolari [(schools for adult education)] and scuole sussidiate e sussidiarie [(small State-funded schools run by private individuals or entities)], shall be recognised in respect of the staff referred to in that same paragraph.
3.      For the same purposes and within the same limits as set out in paragraph 1, periods of service completed by teachers under a fixed-term contract in State primary schools, State educandati femminili [(girls’ schools run by religious bodies)], scuole parificate [(State-accredited primary schools)], State secondary schools and scuole pareggiate [(State-equivalent secondary schools)] and art schools, scuole popolari [(schools for adult education)] and scuole sussidiate e sussidiarie [(small State-funded schools run by private individuals or entities)], and periods of service completed by teachers under a permanent or fixed-term contract in State or community primary schools shall be recognised in respect of primary school teaching staff.’
14.      Article 1 of Legge n.
62 – Norme per la parità scolastica e disposizioni sul diritto allo studio e all’istruzione (Law No 62 – Rules relating to school equality and provisions on the right to study and education) of 10 March 2000 (6) (‘Law No 62/2000’) is worded as follows:
‘1.      Without prejudice to the provisions of Article 33(2) of the Constitution, the national education system shall consist of State schools and equivalent private and municipal schools. The main objective of the Republic is to broaden the educational offering and to generalise the corresponding demand for lifelong learning from childhood onwards.
2.      For the purposes of all regulations currently in force, in particular with regard to the authorisation to award education qualifications with legal status, “scuole paritarie” [(State-equivalent schools)] shall mean non-State schools, including those run by local authorities, which, from nursery school, comply with general regulations in the field of education, are in line with the educational needs of families and meet the quality and effectiveness requirements set out in paragraphs 4, 5 and 6.
3.      Equivalent private schools shall enjoy full freedom as regards cultural and pedagogical-didactic focus. Taking into account the educational concept of the school, education is guided by the fundamental principles enshrined in the Constitution. Since the scuole paritarie provide a public service, they shall admit all persons who accept their educational concept and apply for enrolment, including pupils and students with disabilities. The educational concept may determine the cultural or religious orientation. However, extracurricular activities which presuppose or require adherence to a particular ideology or religious belief shall not be mandatory for pupils.
4.      Non-State schools which apply for parity shall expressly undertake to implement the provisions of paragraphs 2 and 3 and fulfil the following requirements:
(a)      they have an educational concept that complies with the principles of the Constitution and a plan for the educational offering that complies with the applicable rules and regulations; they submit a certificate naming the person responsible for the administration and publish their balance sheets;
(b)      they have premises, furniture and teaching aids which are suitable for the type of school and comply with the applicable rules;
(c)      the school’s collegiate bodies are established and operate on the basis of democratic participation;
(d)      the school admits all pupils whose parents apply for it, provided they have valid proof of qualification for admission to the class they wish to attend;
(e)      they apply all applicable rules on the integration of disabled or disadvantaged pupils;
(f)      they organise complete courses of education; parity cannot be granted for individual classes, except for the introduction of new complete courses of education which must start with the first class;
(g)      teachers hold a certificate of professional qualification;
(h)      administrative and teaching staff work under individual employment contracts which comply with the national collective agreements in the sector.’
15.      Article 2(2) of Decreto-legge n.
255 – Disposizioni urgenti per assicurare l’ordinato avvio dell’anno scolastico 2001/2002 (Decree-Law No 255 – Urgent provisions to ensure the orderly start to the academic year 2001/2002) of 3 July 2001, as amended and converted into law by Law No 333 of 20 August 2001 (7) (‘Decree-Law No 255/2001’) lays down the following for the purposes of entering or moving forward in permanent ranking lists:
‘When the rankings referred to in paragraph 1 are drawn up, staff members already included on the permanent lists who wish to have their classification updated and staff members applying for inclusion on the list for the first time shall be classified in their respective categories on the basis of their qualifications, assessed in accordance with the provisions of the table in Annex
A to [Decree No 123/2000 of the Ministry of Education]. Teaching activities carried out since 1 September 2000 at scuole paritarie [(State-equivalent schools)] within the meaning of Law No 62/2000 shall be taken into account in the same way as teaching activities carried out at State schools.’
16.      Article 1bis(1) of Decreto-legge n.
250, convertito con legge 3
febbraio 2006, n.
27, converted into law by Law No 27 of 3 February 2006 (8) (‘Decree-Law No 250/2005’) provides:
‘Non-State schools within the meaning of Chapters
I, II and III of Title
VIII of Part
II of the consolidated text pursuant to Legislative Decree No 297 of 16 April 1994 are comprised of both categories of recognised State-equivalent schools and non-equivalent schools under Law No 62 of 10 March 2000.’
III. Facts, questions referred for a preliminary ruling and procedure before the Court
17.      The applicant was employed at a scuola paritaria (State-equivalent school) under five fixed-term contracts entered into from the academic year 2002/2003 up to 31 August 2007.
18.      On 1 September 2008, the applicant was recruited as a permanent member of staff by the Ministero dell’Istruzione, dell’Università e della Ricerca – MIUR (Ministry of Education, Universities and Research, Italy), now the Ministero dell’Istruzione e del Merito (Ministry of Education and Merit, Italy) (‘the Ministry’) via so-called ranking lists. When his salary level was assessed, he was denied recognition of previous periods of service completed in the scuola paritarie (State-equivalent school) on the ground that Article 485 of Legislative Decree No 297/94 takes into account for the purposes of assessing the rights accrued during the person’s career and thus also of determining the initial pay grade only those services provided in State schools and scuole parificate (State-accredited primary schools), scuole pareggiate (State-equivalent secondary schools), scuole sussidiarie e sussidiate (small State-funded schools run by private individuals or entities), scuole popolari (schools for adult education) and educandati femminili (girls’ schools run by religious bodies).
19.      In his action brought before the referring court, the Tribunale civile di Padova (Civil Court, Padova, Italy), against the classification decision, the applicant, supported by the intervener, the trade union Anief – Associazione Professionale e Sindacale (‘Anief’), argues that that decision is incompatible with clause
4 of the framework agreement and Articles 20 and 21 of the Charter.
20.      Rather, he claims that he is entitled to have his periods of service at the scuola paritaria (State-equivalent school) between 2002 and 2007 recognised. Since September 2002, private scuole parificate (State-accredited primary schools) and scuole pareggiate (State-equivalent secondary schools) have been merged into the single category of scuole paritarie (State-equivalent schools), within the meaning of Law No 62/2000. They are regarded by the legislature as being comparable to each other and to State schools. The reference contained in Article 485 of Legislative Decree No 297/94, which has not yet been updated, to periods of service as an employee of scuole parificate (State-accredited primary schools) and scuole pareggiate (State-equivalent secondary schools) – which have since been abolished – being taken into account should therefore apply to schools now referred to as scuole paritarie (State-equivalent schools). This applies all the more since the Ministry considers that teaching services provided in scuole paritarie (State-equivalent schools) are equivalent to teaching services provided by fixed-term employees in State schools for the purpose of recruitment under a contract of indefinite duration (without a public selection process). However, for the purposes of determining the salary band at the time when the employee is awarded a permanent contract, that Ministry does not consider those teaching services to be comparable. That is also contrary to the fact that, in order to teach at a scuola paritaria (State-equivalent school), the employee requires additional qualifications as compared with employees at State schools or the other schools referred to in Article 485 of Legislative Decree No 297/94. In order to teach on a fixed-term basis at scuole paritarie (State-equivalent schools), on the basis of Article 1(4) of Law No 62/2000, possession of a teaching qualification is essential. However, a certificate of completion of secondary education is sufficient for recruitment on a fixed-term basis at State schools or in a private scuola parificata (State-accredited primary school), scuola sussidiaria o sussidiata (small State-funded school run by private individuals or entities) or scuola popolare (school for adult education).
21.      The Ministry does not contest the fact that the services provided by teaching staff at scuole paritarie (State-equivalent schools) are equivalent to those provided in State schools, inter alia. However, Article 485 of Legislative Decree No 297/94 has not been brought into line with Law No 62/2000. Consequently, only services provided when employed at a ‘scuola parificata (State-accredited primary school) [and] a scuola pareggiata (State-equivalent secondary school)’ are to be taken into account. However, this does not apply to services provided at scuole paritarie (State-equivalent schools) which were established in 2000 and which subsumed scuole parificate (State-accredited primary schools) and scuole pareggiate (State-equivalent secondary schools).
22.      The referring court notes that both the Corte suprema di cassazione (Supreme Court of Cassation), in particular in its judgments No 32386/2019 of 11 December 2019 and No 25226/2020 of 10 November 2020, and the Corte costituzionale (Constitutional Court), in its judgment No 180/2021 of 11 February 2021, have held that Article 485 of Legislative Decree No 297/94 is lawful and constitutional.
23.      It is true that the Corte suprema di cassazione (Supreme Court of Cassation) recognised that a scuola paritaria (State-equivalent school) is treated in every sense as a State school. However, it refused to take into account the services performed there before becoming a permanent member of staff in accordance with Article 485 of Legislative Decree No 297/94. In its reasoning, it stated that the dissimilar recruitment procedures make it clear that the legal status of the respective teachers is not the same. (9) Moreover, no discrimination within the meaning of clause
4 of the framework agreement can be found ‘because relationships are not comparable where they arise in the context of different employers and where they are subject to different regulations with regard to the establishment and management of those relationships’. (10) The Corte costituzionale (Constitutional Court) has also held that the employment relationships of teachers at the respective schools are not fully equivalent and the detailed rules for and scope of such parity must be regulated by the legislature. (11)
24.      On account of its doubts as to the compatibility of the classification decision at issue, based on Article 485 of Legislative Decree No 297/94, with clause
4 of the framework agreement and with Articles 20 and 21 of the Charter, the Tribunale civile di Padova (Civil Court, Padova), by decision of 14 August 2023, received at the Court Registry on 28 August 2023, has referred the following questions for a preliminary ruling:
‘(1)      Must clause
4(1) of the framework agreement on fixed-term work concluded on 18 March 1999 annexed to Council Directive 1999/70/EC of 28 June 1999 and the general principle under [EU] law as it currently stands of non-discrimination in the area of employment conditions, read in the light of Article 21 of the Charter …, be interpreted as precluding national legislation, such as that contained in Article 485 of Decreto legislativo n.
297/94 (Legislative Decree No 297/94), which, according to the interpretation given by the Corte suprema di cassazione (Supreme Court of Cassation … ) (see Cass. S.L. judgments No 32386/2019, No 33134/2019 and No 33137 of 2019), provides that the fixed-term employees of scuole paritarie (State-equivalent schools) referred to in Legge n.
62/2000 (Law No 62/2000) are to be treated less favourably, when assessing what rights they have accrued during their career, than permanent employees of the Ministero dell’Istruzione e del Merito (Ministry of Education and Merit … ), solely due to the fact that they have not passed a public selection process or have taught as an employee of a legally recognised scuola paritaria (State-equivalent school), notwithstanding the fact that fixed-term teaching staff at scuole paritarie (State-equivalent schools) are in a situation comparable to that of permanent teaching staff at State schools, with regard to the type of work and training and employment conditions, in so far as they perform the same tasks, have the same disciplinary, pedagogic, methodological-didactic, organisational-relational and research skills, gained through teaching experience, as acknowledged by that national law as being identical for the purposes of recruitment under a contract of indefinite duration by referring to the permanent ranking lists, which are now closed (see Article 2(2) of Decreto-legge n.
255/2001 (Decree-law No 255/2001))?
(2)      In the context of the application of Directive 1999/70, must the general principles under [EU] law as it currently stands of equality, equal treatment and non-discrimination in the area of employment, as also enshrined in Articles 20 and 21 of the Charter, in Article 14 of the European Convention on Human Rights (which is relevant pursuant to Article 52 of the Charter), in the European Social Charter approved on 18 June 1961, in Article 157 TFEU and in Directives 2000/43/EC and 2000/78/EC, be interpreted as precluding legislation, such as that contained in Article 485 of Legislative Decree No 297/94, which stipulates that only the teaching services of an employee of the Ministry or of a scuola parificata (State-accredited primary school), a scuola pareggiata (State-equivalent secondary school), a scuola sussidiata o sussidiaria (small State-funded school run by private individuals or entities), a scuola popolare (school for adult education) or an educandato (girls’ school run by a religious body) are to be taken into account for salary purposes, when assessing what rights have been accrued during a career, thereby treating fixed-term teaching staff at scuole paritarie (State-equivalent schools) less favourably and discriminating against them when assessing what rights they have accrued during their career (such assessment being carried out after recruitment under a contract of indefinite duration by the Ministry of Education and Merit), failing to acknowledge their right to the supplementary pay connected with length of service, which is, however, paid to fixed-term teaching staff at State and municipal schools, scuole parificate (State-accredited primary schools), scuole pareggiate (State-equivalent secondary schools), scuole sussidiate e sussidiarie (small State-funded schools run by private individuals or entities), and scuole popolari (schools for adult education) and educandati (girls’ schools run by religious bodies), who are in a situation comparable with that of teaching staff at scuole paritarie (State-equivalent schools) with regard to the type of work, duties, services and professional obligations, as well as the training and working conditions with respect to the teaching staff at the scuole paritarie (State-equivalent schools) referred to in Law No 62/2000, in so far as they perform the same tasks and gain, through the teaching experience they acquire, the same disciplinary, pedagogic, methodological-didactic, organisational-relational and research skills as teaching staff at scuole paritarie (State-equivalent schools)?
(3)      Must the concept of ‘comparable permanent worker’ referred to in clause
4(1) of the framework agreement on fixed-term work concluded on 18 March 1999, annexed to Directive 1999/70, and the general principles under EU law as it currently stands of equality, equal treatment and non-discrimination in the area of employment, enshrined in Articles 20 and 21 of the Charter, be interpreted as meaning that, in the context of the recognition of years of service accrued, the services provided as a temporary employee in scuole paritarie (State-equivalent schools) must be treated in the same way as those provided in State schools, scuole parificate (State-accredited primary schools), scuole pareggiate (State-equivalent secondary schools), scuole popolari (schools for adult education), scuole sussidiate e sussidiarie (small State-funded schools run by private individuals or entities), and educandati (girls’ schools run by religious bodies), in so far as those teachers perform the same tasks, have the same professional obligations and possess the same disciplinary, pedagogic, methodological-didactic, organisational-relational and research skills?
(4)      If Article 485 of Legislative Decree No 297/94 is incompatible with the [EU] law, does the Charter oblige the national court to disapply the incompatible piece of national legislation?’
25.      In the proceedings before the Court, written observations have been submitted by the applicant, Anief, the Italian Government and the European Commission. Those parties also took part in the hearing held on 12 March 2025 and replied to the written and oral questions put by the Court.
IV.    Legal assessment
26.      The first three questions referred for a preliminary ruling relate primarily to the interpretation of the criteria in clause
4(1) of the framework agreement. I shall therefore begin by examining those questions together in order to determine whether that provision is applicable and whether those criteria are met (Section
A). I will then examine the applicability of the conditions laid down in Articles 20 and 21(2) of the Charter and whether they are satisfied (Section
B) and, with regard to the fourth question referred, the legal consequences arising from their possible enforcement (Section
C). In the context of that analysis, I shall also address the objections of inadmissibility raised by the Commission (in relation to the second and third questions) and by Italy (in relation to the fourth question).
A.      Scope and criteria of clause 4(1) of the framework agreement
1.      General prohibition of differentiation as regards employment conditions at the time of or following recruitment
27.      The application of clause
4(1) in conjunction with clause
3(2) of the framework agreement presupposes that there is a difference in treatment between a ‘fixed-term worker’ and a ‘comparable permanent worker’ in essentially the same establishment. In respect of his or her ‘employment conditions’, that fixed-term worker must not be treated in a less favourable manner than a comparable permanent worker, unless different treatment is justified on objective grounds. However, the framework agreement does not contain a general prohibition of discrimination for employers as regards differentiation criteria other than that relating to fixed-term contracts.
28.      First, in its case-law, the Court has consistently recognised the direct applicability of clause
4(1) of the framework agreement to State institutions such as public schools. (12) The applicant may therefore, in principle, rely on that provision against his new employer, a State school.
29.      Secondly, it is clear from that case-law that rules relating to the recognition of previous periods of service for the purposes of determining the length of service and classification in a salary grade on or following recruitment for an indefinite duration in a State school, such as those at issue in the main proceedings, fall within the concept of ‘employment conditions’. (13) Those conditions cover all the rights, entitlements and obligations that define a given employment relationship, including the conditions under which a person takes up employment (‘conditions of appointment’) and those concerning the termination of that relationship. (14)
2.      Can the difference in treatment at issue be attributed to the State employer?
30.      In the present case, it is essentially disputed whether the applicant, as a former fixed-term worker at a scuola paritaria (State-equivalent school), can claim that there is a difference in treatment as compared with permanent employees of a State school, at which he was employed for an indefinite duration, as regards such conditions of appointment. That is the view taken by the applicant, Anief, the Commission and the referring court, in contrast to the Italian Government.
31.      According to settled case-law, ‘fixed-term workers’ within the meaning of clause
4(1) in conjunction with clause
3(1) of the framework agreement can in principle be (or have been) engaged by a public or a private employer. (15) Moreover, both the applicant since his recruitment at a State school and the permanent workers at that school are in the same establishment within the meaning of clause
3(2) of the framework agreement. It is also true that the applicant, who has now been recruited on a permanent basis, had previously worked at a scuola paritaria (State-equivalent school) exclusively under fixed-term employment contracts.
32.      Despite the formal fulfilment of these conditions, it is nevertheless questionable whether the differentiation alleged by the applicant to the detriment of fixed-term workers – which is prohibited, in principle, by clause
4(1) of the framework agreement – when taking into account previous periods of service for the purposes of recognising the length of service and classification in a salary grade may constitute a difference in treatment attributable to the new employer.
33.      The periods of service previously completed by the applicant under fixed-term employment contracts are attributable to his employment relationship with the previous (private) employer, the operator of a scuola paritaria (State-equivalent school) and are based on different rules than those applicable to fixed-term employees in State schools. The judgments of the Corte suprema di cassazione (Supreme Court of Cassation) and the Corte costituzionale (Constitutional Court) referred to in points 22 and 23 above also seem to assume that such a differentiation is rather due to the fact that the person concerned was previously employed by a private operator of a scuola paritaria (State-equivalent school) and was employed there under different legal rules (statutes).
34.      Above all, however, it is apparent from the documents before the Court, as the parties confirmed at the hearing, that all former teachers at scuole paritarie (State-equivalent schools) are treated in the same way at the time of recruitment in a State school and classification in a salary grade. Under Article 485 of Legislative Decree No 297/94, they are not entitled to have periods of prior service recognised, regardless of whether they were previously employed at that school on a fixed-term or permanent basis. This general exclusion of the recognition of periods of service completed at scuole paritarie (State-equivalent schools), which is provided for by law, is therefore not based on any differentiation between fixed-term and permanent employees – which is, in principle, prohibited by clause
4(1) of the framework agreement – but on other grounds not covered by that framework agreement.
35.      The difference in the treatment of the applicant which is at issue is therefore not due to the temporary nature as such of his previous employment relationships at the scuola paritaria (State-equivalent school), but to the fact that, under a statutory provision, the periods of service completed there cannot generally be taken into account at the time of recruitment at a State school.
36.      In my view, it follows from that fact alone that no difference in treatment attributable to the employer concerned at the time of recruitment in accordance with clause
4(1) of the framework agreement can be assumed in the present case. This is confirmed by the wording and objectives of that provision and the related case-law of the Court.
3.      Wording and objectives of clause 4(1) of the framework agreement in the light of the employer’s organisational and regulatory power
37.      As I stated in point 28 above, it is clear from the case-law that the conditions of appointment, which also include the rules on the recognition of previous periods of service and classification in a salary grade, fall within the concept of ‘employment conditions’. According to the wording of clause
4(1) and clause
3(2) of the framework agreement, those conditions apply to workers who generally work in the ‘same establishment’, thus, in the present case, the State school at which the applicant (who was previously employed on a fixed-term basis) was employed for an indefinite duration. The groups of (former) fixed-term and permanent employees to be compared can therefore, in principle, only be those in the same employment establishment (16) under the control and regulatory power of the same employer. (17)
38.      In the present case, the applicant was not previously employed by the defendant, a public-service employer (on a fixed-term contract), but at a scuola paritaria (State-equivalent school). However, that employer must, at the time of recruitment, take account of all the circumstances relating to the worker to be recruited which are relevant in relation to the permanent employees in the same employment establishment. (18) In principle, this also covers his periods of service completed in the context of an employment relationship with another employer – in fixed-term employment – which provide information about the skills and professional experience he has acquired. The Court has therefore always taken into account, in matters of recruitment, periods of service completed in previous fixed-term employment, irrespective of whether they were completed under the control and responsibility of the same or another employer. (19) Contrary to the submissions of Italy, which relies on the case-law of the Corte suprema di cassazione (Supreme Court of Cassation) and the Corte costituzionale (Constitutional Court), it is therefore irrelevant in that regard whether and to what extent the teachers at scuole paritarie (State-equivalent schools), scuole parificate (State-accredited primary schools) and State schools are/were working for different employers and are/were subject to different rules.
39.      However, such a broad interpretation is limited by the objective pursued by clause
4(1) of the framework agreement. According to that provision, not every differentiation at the time of recruitment to the detriment of a worker previously employed on a fixed-term basis can constitute a difference in treatment attributable to the new employer in accordance with that provision. That is not the case, in particular, in respect of such differentiations which are not based on the criterion of fixed-term employment as such, but – for other reasons – are imposed by law and therefore outside the employer’s organisational and supervisory power.
40.      In accordance with the objective set out in clause
1(a), (20) the prohibition of discrimination laid down in clause
4(1) in conjunction with clause
3(2) of the framework agreement is intended solely to prevent an employer from using a fixed-term employment relationship to deny the workers concerned of rights which it confers on permanent workers. (21) Clause
1(b) of the framework agreement thus seeks to prevent ‘abuse arising from the use of successive fixed-term employment contracts or relationships’. However, differentiations which – as in the present case – are not based on the criterion of a fixed period, but on an order made by the legislature for other reasons (see point 34 above), do not fall within its scope. (22)
4.      Interim conclusion and objections of inadmissibility
41.      The judgments of the Corte suprema di cassazione (Supreme Court of Cassation) and the Corte costituzionale (Constitutional Court) referred to in points 22 and 23 above are therefore not open to objection, at least in conclusion, in the light of the specific prohibition of discrimination in clause
4(1) of the framework agreement. The differentiation at issue here, which is based on the failure to take into account periods of employment completed at a scuola paritaria (State-equivalent school), concerns all workers employed at such a school (whether on a fixed-term or permanent basis) and is provided for in Article 485 of Legislative Decree No 297/94. It therefore does not constitute different treatment within the meaning of the framework agreement that is caused by or attributable to the defendant employer. That employer is therefore not obliged, under the framework agreement, to take into account those previous periods of service when recognising length of service and classification in a salary grade.
42.      Should the Court disagree and nevertheless consider clause
4(1) of the framework agreement to be applicable, I refer to my subsidiary observations on the difference in treatment or the comparability of situations and objective justification in the context of the application of Articles 21 and 22 of the Charter (points 57 et seq. below).
43.      Consequently, in order to answer the first three questions referred for a preliminary ruling, it is no longer necessary to determine with which comparable group of ‘permanent workers’ within the meaning of clause
3(2) of the framework agreement the applicant is to be compared (23) and, in particular, whether he can be compared only with teachers employed on a permanent basis at scuole paritarie (State-equivalent schools).
44.      However, with regard to the first, second and third questions referred, it is also necessary to examine whether there is a prohibited difference in treatment or discrimination in accordance with the general criteria set out in Articles 20 and 21(1) of the Charter. In so far as the Commission’s objection of inadmissibility relates to Article 21(1) of the Charter, I consider it to be unfounded. That is because that provision contains only a specific prohibition on discrimination (24) in relation to the general principle of equality in Article 20 of the Charter with regard to certain differentiation criteria, which are not exhaustive (‘such as’). (25) However, in so far as the second question referred for a preliminary ruling concerns Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Social Charter, Article 157 TFEU and Directives 2000/43/EC (26) and 2000/78/EC, (27) the referring court has not put forward any plausible ground for considering that those provisions are connected with the dispute in the main proceedings or that their interpretation might be necessary for the resolution of that dispute. (28) In that respect, I consider that the objection of inadmissibility raised by the Commission is well founded.
45.      In the following, I shall therefore address Articles 20 and 21(1) of the Charter only.
B.      Is there a difference in treatment under Articles 20 and 21(1) of the Charter?
1.      Are the fundamental rights in the Charter applicable?
46.      According to settled case-law, the principle of non-discrimination enshrined in Article 21(1) of the Charter is mandatory as a general principle of EU law and confers on individuals a right which can be relied on in fields covered by EU law. This applies to disputes involving discrimination on various grounds and which may also derive from contracts between individuals. The national court seised of such a dispute is therefore obliged to guarantee employees the legal protection required by Article 21 of the Charter and to guarantee the full effect of that article. (29) Those principles must, in my view, be applied to the general principle of equality in Article 20 of the Charter, in relation to which the principle of non-discrimination laid down in Article 21 of the Charter is merely a specific expression. (30)
47.      It must therefore be examined first of all whether Articles 20 and 21(1) of the Charter are actually applicable. In accordance with Article 51(1) of the Charter, the application of those provisions to acts of the Member States presupposes that they are ‘implementing Union law’.
48.      As I understand it, the Court requires a direct link between the national legislation at issue and a measure of EU law. (31) That is the case in particular where that legislation is intended to implement a (specific) provision of EU law. To that end, it is necessary to take into account, inter alia, the nature of that legislation and whether it pursues objectives other than those covered by EU law. (32)
49.      It is true that the case-law has recognised that a difference in treatment based on whether the employment relationship is statutory or contractual may, in principle, be assessed with regard to the principle of equal treatment or non-discrimination, as enshrined in Articles 20 and 21 of the Charter. (33) The prohibition of a difference in treatment between fixed-term workers and permanent workers under clause
4(1) of the framework agreement is a specific expression of that general principle. (34) In my opinion, however, that can be the case only if that provision is actually applicable.
50.      In the present case, however – as explained above in point 27 et seq. – I consider that clause
4(1) of the framework agreement is not applicable. This is because the differentiation at issue in relation to the recognition of the length of service and classification in a salary grade cannot be attributed to the defendant public-service employer since it was not initiated by it, but is required by law. In that regard, the application of Article 485 of Legislative Decree No 297/94 to the facts in the main proceedings has no direct link with the prohibition of discrimination laid down in clause
4(1) of the framework agreement. It cannot therefore constitute an implementation of Union law in accordance with Article 51(1) of the Charter, even taking into account the respective objectives pursued by those provisions. (35)
51.      In my opinion, the case-law to date supports that view.
52.      Thus, in Case C‑177/18, the Court ruled out the existence of such a direct link with the implementation of EU law in view of the objective of preventing the unlawful or abusive use of fixed-term employment contracts by the same employer. In that case, at the time of her dismissal, which was linked to an event mentioned in her appointment decision – the refilling of a post by an established civil servant – an interim civil servant claimed the payment of compensation which was provided for only in the event of termination of the employment of fixed-term contract workers. According to the Court, the national legislation at issue was not capable of achieving the objective pursued in clause
5(1) of the framework agreement of preventing abuse arising from the use of successive fixed-term employment contracts or relationships. It assumed that that national legislation pursued objectives other than combating abuse. (36)
53.      According to the Court, the situation was different in the case of national legislation which provided for prior written notification of the grounds for dismissal with a notice period only in respect of permanent employees. In the light of the comparability of the situation of a fixed-term employee who is dismissed with a notice period before the expiry of the period, the Court held that that legislation specified and gave specific expression to the employment conditions governed by clause
4 of the framework agreement and thus constituted an implementation of EU law in accordance with Article 51(1) of the Charter and a difference in treatment. (37)
54.      For the reasons set out in point 50 above, that is not the case here.
55.      I therefore conclude that, in the present case, as there is no ‘implement[ation of] Union law’, within the meaning of Article 51(1) of the Charter, as the fields are not covered by EU law, the application of Articles 20 and 21 of the Charter is excluded.
56.      Should the Court reach a different conclusion, I shall examine, in the alternative, the conditions laid down in Articles 20 and 21(1) of the Charter.
2.      Is there a difference in treatment or discrimination, as prohibited by Article 20 or Article 21(1) of the Charter?
57.      The principle of equal treatment enshrined in Articles 20 and 21 of the Charter requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. A difference in treatment is justified if it is based on an objective and reasonable criterion. In that regard, it must pursue a legally permitted aim and be proportionate to that aim. (38)
58.      In order to determine whether the situations are comparable, account must be taken, in principle, of all the factors characterising them. The assessment must be carried out not in a global and abstract manner, but must be specific and concrete in the light of the objective and aim of the national legislation. (39) It largely corresponds to that which should be carried out when clause
4(1) of the framework agreement is applied, which gives specific expression to Articles 20 and 21 of the Charter. According to the Court, in the context of the comparability of situations, it would then be necessary to examine whether, in the light of a number of factors such as the nature of the work, training requirements and working conditions, the workers in the various comparable groups are engaged in the same or similar work. (40)
59.      The present case concerns, on the one hand, former fixed-term employees at scuole paritarie (State-equivalent schools), which included the applicant before his recruitment under a contract of indefinite duration and, on the other, permanent workers at the State school concerned. According to the referring court, both groups are in comparable situations, having regard to all the relevant circumstances.
60.      However, this is subject to the proviso that the difference between the employers – namely the operator of the scuola paritaria (State-equivalent school) at which the applicant was previously employed and that of the State school at which he was subsequently employed as a permanent member of staff – and the different rules applicable to the respective employment relationships are not relevant differentiation criteria, as Italy in particular submits. In that regard, I recall that that difference in the context of the application of clause
4(1) of the framework agreement – which is excluded in the present case – cannot rule out the existence of a difference in treatment as regards the conditions of appointment. For, at the time of recruitment, the employer must in principle take account of all the circumstances relating to the worker to be recruited which are relevant in relation to the workers at its establishment. That may also include periods of service completed with another employer in an employment relationship which was subject to different rules, provided that such periods of service provide information about the skills and professional experience he has acquired (see point 37 et seq. above).
61.      The same must be true when Articles 20 and 21(1) of the Charter are applied. The comparable groups to be taken into account are therefore, on the one hand, newly recruited permanent workers who, like the applicant, were previously employed (on a fixed-term or permanent basis) at a scuola paritaria (State-equivalent school) and, on the other, permanent workers at the State school whose periods of service completed up to their recruitment were fully taken into account.
62.      Subject to that proviso, I consider that the existence of a difference in treatment should be recognised in the present case for the following reasons:
63.      First, as the referring court has pointed out without being challenged by the Ministry in the main proceedings, in Article 1 of Law No 62/2000 the Italian legislature fully integrated scuole paritarie (State-equivalent schools), as their name indicates, into the State’s general education system (‘for the purposes of all regulations currently in force’) and placed them on an equal footing with State schools in respect of the statutory ‘quality and effectiveness requirements’. In accordance with Article 1(4) of that law, that full parity requires only that an application prove, inter alia, that the teaching staff hold the necessary qualifications (point
(g)). If that is the case, the teaching activities carried out in those schools are to be regarded as equivalent. The applicant added – without being contradicted by the Ministry in the main proceedings – that fixed-term teaching staff at scuole paritarie (State-equivalent schools) with such qualifications are often even better qualified than teachers employed on a fixed-term basis at State schools or private scuole parificate (State-accredited primary schools), scuole sussidiate e sussidiarie (small State-funded schools run by private individuals or entities) or scuole popolari (schools for adult education), which require only the production of a certificate of completion of secondary education. Their previous periods of service are taken into account, however, in the event of recruitment under a contract of indefinite duration at a State school under Article 485 of Legislative Decree No 297/94. Italy’s argument that that provision is specifically intended to recognise the services provided by those who have been successful in a public selection process or to comply with the principles governing public service employment is therefore, as the referring court has also pointed out, unfounded and must be rejected.
64.      Secondly, Article 2(2) of Decree-Law No 255/2001 expressly provides, for the purposes of entering or moving forward in permanent ranking lists, that teaching activities carried out since 1 September 2000 in scuole paritarie (State-equivalent schools) within the meaning of Law No 62/2000 ‘shall be taken into account in the same way as teaching activities carried out at State schools’. Those ranking lists include both teachers who have successfully completed a public selection procedure and those with the required qualifications under Article 1(4)(g) of Law No 62/2000. Recruitment on that basis thus implies full recognition of the professional experience and qualifications acquired as a result of those teaching activities. That further undermines Italy’s argument set out in point 63 above.
65.      Thirdly, in the main proceedings, the Ministry itself pointed out that it had failed to bring Article 485 of Legislative Decree No 297/94 into line with the parity ordered in Law No 62/2000 (see point 63 above). According to the Ministry, scuole paritarie (State-equivalent schools) replaced inter alia (private) scuole parificate (State-accredited primary schools) and scuole pareggiate (State-equivalent secondary schools) (see point 21 above). However, Article 485 of Legislative Decree No 297/94 continues to regulate only the recognition of previous periods of service at scuole parificate (State-accredited primary schools) and scuole pareggiate (State-equivalent secondary schools), but not previous periods of service at the scuole paritarie (State-equivalent schools) which have replaced them.
66.      Fourthly, that apparent contradiction is further accentuated by the fact that Article 1bis(1) of Decree-Law No 250/2005, which was converted into law by Law No 27/2006, divides the remaining non-State schools within the meaning of Legislative Decree No 297/94 into State-equivalent schools and non-equivalent schools. It follows that the scuole parificate (State-accredited primary schools), scuole pareggiate (State-equivalent secondary schools), art schools, scuole popolari (schools for adult education), and scuole sussidiate e sussidiarie (small State-funded schools run by private individuals or entities) expressly referred to in Article 485 of Legislative Decree No 297/94 must also be regarded as scuole paritarie (State-equivalent schools) within the meaning of Article 1bis(1) of Decree-Law No 250/2005. The fact that, at the time of recruitment at a State school, only previous periods of service completed in such schools are to be taken into account, but not – at least not explicitly – those at other equivalent schools, again clearly shows the inconsistency of those rules.
67.      Consequently, I am of the view that, on the premisses set out in points 60 and 62 of this Opinion, there is a difference in treatment between at least comparable situations, if not contradictory conduct on the part of the Italian legislature.
68.      That difference in treatment cannot, in my view, be justified on any grounds, in particular those put forward by Italy. It is not apparent that the Italian legislature has a legitimate social policy objective. (41)
69.      That follows from the fact that, according to the findings of the referring court, the Ministry itself acknowledged in the main proceedings that Article 485 of Legislative Decree No 297/94 should in fact have been brought into line with the provisions of Law No 62/2000. Even at the hearing, Italy failed to provide a comprehensible explanation as to why such an adjustment has not yet been made. In particular, its repeated argument that only public competitions guarantee a sufficient examination of the necessary professional qualifications and that the consideration of qualifications and professional experience when recruiting at (private) scuole paritarie (State-equivalent schools), given the broad discretion of the (private) employer, could lead to reverse discrimination against established civil servants must be rejected. The parity between scuole paritarie (State-equivalent schools) and State schools ordered in Article 1 of Law No 62/2000 and in Article 2(2) of Decree-Law No 255/2001 and confirmed in Article 1bis(1) of Decree-Law No 250/2005 as well as the equivalence of the teaching activities carried out there (on the basis of the qualifications required) which are in principle recognised by that law render that argument unfounded.
70.      I therefore conclude, in the alternative, as regards the first, second and third questions referred for a preliminary ruling, that the application of Article 485 of Legislative Decree No 297/94 in cases such as the present one – provided that it is implementing Union law within the meaning of Article 51(1) of the Charter – leads to a difference in treatment prohibited by Articles 20 and 21(2) of the Charter. That difference in treatment imposed by law to the detriment of all periods of service completed at scuole paritarie (State-equivalent schools) can, in my view, be attributed to the public employer only if, as part of the State education system, it is ‘jointly and severally liable’ for the difference in treatment for which the legislature is responsible.
71.      The fourth question referred for a preliminary ruling, which seeks to ascertain whether, in such a case, the referring court is obliged to disapply the national legislation at issue, therefore remains to be answered. Contrary to Italy’s submissions, I consider this question to be admissible since – as I shall demonstrate below – it is not entirely clear what conclusions are to be drawn from the incomplete, if not contradictory, provision in Article 485 of Legislative Decree No 297/94.
C.      Legal consequences of a prohibited difference in treatment
72.      It is true that the fourth question for a preliminary ruling concerns the application of the principle of primacy only in so far as it requires national courts to disapply a rule of national law which is incompatible with a directly applicable provision of EU law.
73.      However, according to the Court’s recent case-law, that principle also requires national courts to interpret, to the greatest extent possible, their national law in conformity with EU law. When applying national law, those courts are therefore required to interpret it, to the greatest extent possible, in the light of the text and the purpose of the provision of EU law applicable, taking into consideration the whole body of national law and applying the interpretative methods recognised by national law, with a view to ensuring that those provisions are fully effective and achieving an outcome consistent with the objective which they pursue. The obligation to interpret national law in a manner consonant with EU law has certain limits, however, and cannot, in particular, serve as a basis for an interpretation of national law contra legem. (42)
74.      In that regard, it is sufficient to note that, in the light of the observations set out above in point 63 et seq., and subject to verification by the referring court, it does not appear entirely impossible to interpret the incomplete, if not contradictory, provision in Article 485 of Legislative Decree No 297/94 in a manner consistent with Articles 20 and 21 of the Charter and, where appropriate, with clause
4(1) of the framework agreement. Admittedly, the wording of that national provision does not expressly provide for scuole paritarie (State-equivalent schools); it is not disputed, however, that those schools emerged from the scuole parificate (State-accredited primary schools) and scuole pareggiate (State-equivalent secondary schools) expressly mentioned therein. Moreover, Article 1bis(1) of Decree-Law No 250/2005, which now also classifies those schools as scuole paritarie (State-equivalent schools) (see point 66 above) could suggest such an interpretation in conformity with EU law.
75.      If an interpretation in conformity with EU law is not possible in the present case, which it is for the referring court to ascertain, account must be taken of the principle of the primacy of EU law.
76.      It is settled case-law that, under the principle of the primacy of EU law, the competent national court must give full effect to the requirements of EU law in the dispute before it, if necessary disapplying of its own motion any national legislation or practice, even if adopted subsequently, which is contrary to a provision of EU law with direct effect, and it is not necessary for that court to request or await the prior setting aside of such national legislation or practice by legislative or other constitutional means. (43)
77.      According to the case-law of the Court, judicial protection which must be afforded to workers on grounds of discrimination contrary to EU law under Article 21 of the Charter in conjunction with the principle of primacy requires that, as long as measures reinstating equal treatment have not been adopted, persons within the disadvantaged category must be granted the same advantages as those enjoyed by persons within the favoured category in order to effectively uphold the principle of equality. Disadvantaged persons must therefore be placed in the same position as persons enjoying the advantage concerned. In such a situation, a national court must set aside any discriminatory provision of national law, without having to request or await its prior removal by the legislature, and must apply to members of the disadvantaged group the same arrangements as those enjoyed by the persons in the other category. That obligation persists regardless of whether or not the national court has been granted competence under national law to do so, provided that there is a valid point of reference. (44)
78.      In the present case, such a point of reference is established precisely in Article 485 of Legislative Decree No 297/94. That would have the consequence that the national court should disapply that provision only in so far as, according to previous national administrative practice and case-law, it does not allow periods of service completed at scuole paritarie (State-equivalent schools) to be taken into account.
79.      The result of the application of the principle of primacy would therefore be the same as that of an additional interpretation of that provision in conformity with EU law according to which it necessarily includes scuole paritarie (State-equivalent schools).
80.      It follows that, if the Court were to recognise the existence of a difference in treatment in the present case, the referring court would have to interpret or apply Article 485 of Legislative Decree No 297/94 in such a way as to ensure that periods of service completed at scuole paritarie (State-equivalent schools) under fixed-term employment contracts would also have to be taken into account at the time of recruitment at a State school for the purposes of determining the length of service and classification in a salary grade.
81.      In my opinion, such an outcome would be incorrect, as I do not consider that Articles 20 and 21(1) of the Charter are applicable in the present case. In my view, it is therefore for the Italian legislature or the Italian courts alone to prevent or penalise any discrimination under Italian (constitutional) law between teachers employed (on a fixed-term and permanent basis) at inter alia scuole paritarie (State-equivalent schools), scuole parificate (State-accredited primary schools) and State schools.
V.      Conclusion
82.      I therefore propose that the Court answer the questions referred for a preliminary ruling by the Tribunale civile di Padova (Civil Court, Padova, Italy) as follows:
The specific prohibition of discrimination in clause
4(1) of the framework agreement on fixed-term work concluded on 18 March 1999, annexed to Council Directive 1999/70/EC of 28 June 1999, and the general principles of EU law of equal treatment and non-discrimination laid down in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding national legislation such as that contained in Article 485 of Legislative Decree No 297/94, in so far as that legislation excludes periods of service completed by fixed-term workers at scuole paritarie (State-equivalent schools) upon their recruitment under a contract of indefinite duration for the purposes of determining the length of service and classification in a salary grade.
1      Original language: German.
i'The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
2      OJ 1999 L 175, p. 43.
3      See judgments of 17 October 2024, Ministero dell’Istruzione e del Merito and INPS (C‑322/23, EU:C:2024:900); of 30 November 2023, Ministero dell’Istruzione and INPS (C‑270/22, EU:C:2023:933); and of 20 September 2018, Motter (C‑466/17, EU:C:2018:758), in which the Court held that the difference in treatment of teachers on fixed-term contracts with regard to the determination of the period of service deemed accrued, which was based on other provisions of the legislation at issue here, was contrary to EU law.
4      In that regard, judgment of 22 January 2020, Baldonedo Martín (C‑177/18, EU:C:2020:26, paragraph 56 et seq.), which found that that was not the case on the ground that the concept of ‘implementing Union law’ within the meaning of Article 51(1) of the Charter had not been satisfied.
5      GURI No 115 of 19 May 1994, Ordinary Supplement No 79.
6      GURI No 67 of 21 March 2000.
7      GURI No 193 of 21 August 2001.
8      GURI No 29 of 4 February 2006.
9      Cass. No 32386/2019; Cass. No 33137/2019 and Cass. No 33134/2019.
10      Cass. No 25226/2020.
11      Corte Cost. No 180/2021.
12      Judgments of 20 February 2024, X (Lack of reasons for termination) (C‑715/20, EU:C:2024:139, paragraph 75 and the case-law cited); of 30 November 2023, Ministero dell’Istruzione and INPS (C‑270/22, EU:C:2023:933, paragraph 52); of 8 September 2011, Rosado Santana (C‑177/10, EU:C:2011:557, paragraph 56); and of 15 April 2008, Impact (C‑268/06, EU:C:2008:223, paragraph 59 et seq.).
13      Judgments of 30 November 2023, Ministero dell’Istruzione and INPS (C‑270/22, EU:C:2023:933, paragraphs 52 to 55 and the case-law cited); of 20 September 2018, Motter (C‑466/17, EU:C:2018:758, paragraph 26); and of 8 September 2011, Rosado Santana (C‑177/10, EU:C:2011:557, paragraphs 46, 47 and 64), referring in each case to the parallel prohibition of discrimination laid down in clause
4(4) of the framework agreement in respect of particular employment conditions in connection with period-of-service qualifications.
14      See in particular judgment of 20 February 2024, X (Lack of reasons for termination) (C‑715/20, EU:C:2024:139, paragraphs 35 to 40). See also judgment of 20 December 2017, Vega González (C‑158/16, EU:C:2017:1014, paragraph 34), and Opinion of Advocate General Szpunar in Baldonedo Martín (C‑177/18, EU:C:2019:877, point 63).
15      See judgments of 25 October 2018, Sciotto (C‑331/17, EU:C:2018:859, paragraph 43); of 14 September 2016, Pérez López (C‑16/15, EU:C:2016:679, paragraph 24); of 13 March 2014, Márquez Samohano (C‑190/13, EU:C:2014:146, paragraph 38); and of 4 July 2006, Adeneler and Others (C‑212/04, EU:C:2006:443, paragraph 56).
16      For the exception, see the second paragraph of clause
3(2) of the framework agreement.
17      See, to that effect, judgment of 22 January 2020, Baldonedo Martín (C‑177/18, EU:C:2020:26, paragraph 41).
18      See, to that effect, judgments of 17 October 2024, Ministero dell’Istruzione e del Merito and INPS (C‑322/23, EU:C:2024:900, paragraph 50); of 30 November 2023, Ministero dell’Istruzione and INPS (C‑270/22, EU:C:2023:933, paragraph 62); of 21 November 2018, de Diego Porras (C‑619/17, EU:C:2018:936, paragraphs 61 and 62); and of 20 September 2018, Motter (C‑466/17, EU:C:2018:758, paragraph 29).
19      See judgments of 30 November 2023, Ministero dell’Istruzione and INPS (C‑270/22, EU:C:2023:933, paragraphs 54 and 55); of 7 July 2022, Zone de secours Hainaut-Centre (C‑377/21, EU:C:2022:530, paragraphs 42 to 46); of 30 June 2022, Comunidad de Castilla y León (C‑192/21, EU:C:2022:513, paragraph 30); and of 20 September 2018, Motter (C‑466/17, EU:C:2018:758, paragraph 26
in fine). See also judgments of 22 January 2020, Baldonedo Martín (C‑177/18, EU:C:2020:26), of 20 June 2019, Ustariz Aróstegui (C‑72/18, EU:C:2019:516), and my Opinion in Ustariz Aróstegui (C‑72/18, EU:C:2019:191).
20      That provision states that: ‘The purpose of this framework agreement is to … improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination’. See also the third paragraph of the preamble to the framework agreement, according to which it establishes a general framework ‘for ensuring equal treatment for fixed-term workers by protecting them against discrimination and for using fixed-term employment contracts on a basis acceptable to employers and workers’.
21      Judgments of 30 November 2023, Ministero dell’Istruzione and INPS (C‑270/22, EU:C:2023:933, paragraphs 49 and 50), and of 5 June 2018, Montero Mateos (C‑677/16, EU:C:2018:393, paragraphs 39 and 40).
22      There is no need to answer here whether the situation is different if, for the purposes of recognising the periods of service completed, the new employer should differentiate between former fixed-term workers who have worked for different employers (for example at scuole paritarie (State-equivalent schools), on the one hand, and at scuole parificate (State-accredited primary schools), on the other). According to settled case-law, such a difference in treatment is not covered by the framework agreement either, see judgment of 7 July 2022, Zone de secours Hainaut-Centre (C‑377/21, EU:C:2022:530, paragraph 63 and the case-law cited).
23      With regard to the broad interpretation of the comparable group of ‘permanent workers’, see judgments of 22 January 2020, Baldonedo Martín (C‑177/18, EU:C:2020:26, paragraphs 24 and 37 et seq.), and of 20 June 2019, Ustariz Aróstegui (C‑72/18, EU:C:2019:516, paragraphs 31 to 33), as well as my Opinion in Ustariz Aróstegui (C‑72/18, EU:C:2019:191, points 31 and 32).
24      To that effect, judgment of 22 May 2014, Glatzel (C‑356/12, EU:C:2014:350, paragraph 43). Similarly, judgment of 14 July 2022, Commission v VW and Others (C‑116/21 P to C‑118/21 P, C‑138/21 P and C‑139/21 P, EU:C:2022:557, paragraph 140: ‘the principle of non-discrimination laid down in Article 21(1) of the Charter is a specific expression [of the principle of equal treatment]’).
25      See also the joint examination of Articles 20 and 21 of the Charter in the judgment of 22 January 2020, Baldonedo Martín (C‑177/18, EU:C:2020:26, paragraph 56 et seq.).
26      Council Directive of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22).
27      Council Directive of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).
28      From the settled case-law, see only judgment of 16 May 2024, INSS (Leave for a mother in a single-parent family) (C‑673/22, EU:C:2024:407, paragraphs 23 to 25).
29      In this sense, see the somewhat cumbersomely worded judgments of 22 January 2019, Cresco Investigation (C‑193/17, EU:C:2019:43, paragraphs 75 to 78), and of 17 April 2018, Egenberger (C‑414/16, EU:C:2018:257, paragraphs 75 to 77). See also judgment of 20 February 2024, X (Lack of reasons for termination) (C‑715/20, EU:C:2024:139, paragraph 75 et seq. in relation to Article 47 of the Charter).
30      Judgment of 22 May 2014, Glatzel (C‑356/12, EU:C:2014:350, paragraph 43).
31      In this sense, see judgment of 22 January 2020, Baldonedo Martín (C‑177/18, EU:C:2020:26, paragraph 58 and the case-law cited), the wording of which is difficult to understand, according to which the matters concerned must not only be closely related or have an indirect impact on each other. See also judgment of 4 May 2023, Glavna direktsia ‘Pozharna bezopasnost i zashtita na naselenieto’ (Night work) (C‑529/21 to C‑536/21 and C‑732/21 to C‑738/21, EU:C:2023:374, paragraph 53 and the case-law cited).
32      To that effect, judgment of 22 January 2020, Baldonedo Martín (C‑177/18, EU:C:2020:26, paragraph 59 and the case-law cited).
33      To that effect, judgment of 22 January 2020, Baldonedo Martín (C‑177/18, EU:C:2020:26, paragraph 56 with reference to the judgment of 9 March 2017, Milkova, (C‑406/15, EU:C:2017:198, paragraphs 55 to 63). See also judgment of 4 May 2023, Glavna direktsia ‘Pozharna bezopasnost i zashtita na naselenieto’ (Night work) (C‑529/21 to C‑536/21 and C‑732/21 to C‑738/21, EU:C:2023:374, paragraph 55 and the case-law cited).
34      To that effect, see judgments of 25 July 2018, Vernaza Ayovi (C‑96/17, EU:C:2018:603, paragraphs 20 and 21), and of 8 September 2011, Rosado Santana (C‑177/10, EU:C:2011:557, paragraph 65), and the Opinion of Advocate General Szpunar in Baldonedo Martín (C‑177/18, EU:C:2019:877, point 61). See also judgment of 20 February 2024, X (Lack of reasons for termination) (C‑715/20, EU:C:2024:139, paragraph 43, according to which ‘the prohibition of discrimination laid down in clause
4(1) of that framework agreement is simply a specific expression of … the general principle of equality’).
35      See, to that effect, judgments of 20 February 2024, X (Lack of reasons for termination) (C‑715/20, EU:C:2024:139, paragraph 77), and of 30 November 2023, Ministero dell’Istruzione and INPS (C‑270/22, EU:C:2023:933, paragraph 55).
36      See judgment of 22 January 2020, Baldonedo Martín (C‑177/18, EU:C:2020:26, paragraphs 60 to 63). However, the Court considered, in a contradictory manner, that, unlike in the situation underlying the present case, clause
4(1) of the framework agreement was applicable. Nevertheless, it recognised that there was an objective ground justifying any difference in treatment (paragraph 36 et seq.).
37      See judgment of 20 February 2024, X (Lack of reasons for termination) (C‑715/20, EU:C:2024:139, paragraphs 77 et seq.).
38      To that effect, judgment of 9 March 2017, Milkova (C‑406/15, EU:C:2017:198, paragraph 55 and the case-law cited).
39      To that effect, judgment of 9 March 2017, Milkova (C‑406/15, EU:C:2017:198, paragraphs 56 and 57 and the case-law cited).
40      See, to that effect, judgments of 17 October 2024, Ministero dell’Istruzione e del Merito and INPS (C‑322/23, EU:C:2024:900, paragraph 50); of 30 November 2023, Ministero dell’Istruzione and INPS (C‑270/22, EU:C:2023:933, paragraph 62); of 21 November 2018, de Diego Porras (C‑619/17, EU:C:2018:936, paragraphs 61 and 62); and of 20 September 2018, Motter (C‑466/17, EU:C:2018:758, paragraph 29).
41      See in relation to clause
4(1) and (4) of the framework agreement only judgments of 14 September 2016, de Diego Porras (C‑596/14, EU:C:2016:683, paragraph 45), and of 22 December 2010, Gavieiro and Iglesias Torres (C‑444/09 and C‑456/09, EU:C:2010:819, paragraphs 54 and 55 and the case-law cited).
42      For the first time, judgment of 24 June 2019, Popławski (C‑573/17, EU:C:2019:530, paragraph 57). See also judgments of 9 April 2024, Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision) (C‑582/21, EU:C:2024:282, paragraph 57); of 7 March 2024, Die Länderbahn and Others (C‑582/22, EU:C:2024:213, paragraphs 59 and 60); and of 27 April 2023, M. D. (Ban on entering Hungary) (C‑528/21, EU:C:2023:341, paragraph 99). Still without reference to the principle of primacy, see the (in my view more correct) judgment of 8 November 2016, Ognyanov(C‑554/14, EU:C:2016:835, paragraph 59: ‘… This obligation to interpret national law in compliance with EU law is inherent in the system of the [TFEU], since it permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of EU law when they rule on the disputes before them’).
43      To that effect, judgments of 28 January 2025, ASG 2 (C‑253/23, EU:C:2025:40, paragraph 90 and the case-law cited); of 9 April 2024, Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision) (C‑582/21, EU:C:2024:282, paragraph 57); of 7 March 2024, Die Länderbahn and Others (C‑582/22, EU:C:2024:213, paragraph 61); and of 27 April 2023, M. D. (Ban on entering Hungary) (C‑528/21, EU:C:2023:341, paragraphs 100 and 101 in relation to a directly applicable provision of a directive). With regard to the direct applicability of Article 47 of the Charter in conjunction with clause
4(1) of the framework agreement, see judgment of 20 February 2024, X (Lack of reasons for termination) (C‑715/20, EU:C:2024:139, paragraphs 80 and 81 and the case-law cited).
44      In this sense, the somewhat cumbersomely worded judgments of 22 January 2019, Cresco Investigation (C‑193/17, EU:C:2019:43, paragraphs 78 to 81), and of 9 March 2017, Milkova (C‑406/15, EU:C:2017:198, paragraphs 66 to 68).