Case C-395/08: Reference for a preliminary ruling from the Corte d'appello di Roma (Italy) lodged on 12 September 2008 — Istituto nazionale della previdenza sociale (INPS) v Tiziana Bruno and Massimo Pettini
Date: 2008-09-12
Institutions: Court of Justice
Subjects: Italy, anti-discriminatory measure, interpretation of the law, part-time employment, transfer of pension rights

C 327/8

EN

Official Journal of the European Union

20.12.2008

Parties to the main proceedings

Applicants: Serrantoni Srl and Consorzio Stabile Edile Scrl

Reference for a preliminary ruling from the Corte d'appello
di Roma (Italy) lodged on 12 September 2008 — Istituto
nazionale della previdenza sociale (INPS) v Tiziana Bruno
and Massimo Pettini

Defendant: Comune di Milano

Questions referred

1. Is

the

correct

application of Article 4 of Directive
2004/18/EC (1) of 31 March 2004 impeded by the provi-
sions of national law laid down in Article 36(5) of Legislative
Decree No 163 of 12 April 2006, as amended by Legislative
Decree No 113 of 31 July 2007, under which:

(Case C-395/08)

(2008/C 327/13)

Language of the case: Italian

Referring court

Corte d'appello di Roma

— where a member of a consortium participates in a
tendering procedure for a public contract, the consortium
itself is automatically excluded from participation solely
on the ground that it has a particular legal form (that of
a permanent consortium) rather than another, essentially
identical, legal form (that of a grouping of producers' and
workers' cooperatives or a grouping of artisan/handicraft
businesses); and

Parties to the main proceedings

Applicant: Istituto nazionale della previdenza sociale (INPS)

Defendants: Tiziana Bruno and Massimo Pettini

— where

a permanent

consortium participates

in a
tendering procedure for a public contract, and where it
has declared that it is competing on behalf of other
companies and that it will entrust the works to other
companies if it is awarded the contract, a company is
automatically excluded from participation solely on the
formal ground that it is a member of that consortium?

2. Is the correct application of Articles 39, 43, 49 and 81 of
the Treaty establishing the European Community impeded by
the provisions of national law laid down in Article 36(5) of
Legislative Decree No 163 of 12 April 2006, as amended by
Legislative Decree No 113 of 31 July 2007, under which:

— where a member of a consortium participates in a
tendering procedure for a public contract, the consortium
itself is automatically excluded from participation solely
on the ground that it has a particular legal form (that of
a permanent consortium) rather than another, essentially
form (a grouping of producers' and
identical,
workers' cooperatives or a grouping of artisan/handicraft
businesses), and

legal

— where

a permanent

consortium participates

in a
tendering procedure for a public contract, and where it
has declared that it is competing on behalf of other
companies and that it will entrust the works to other
companies if it is awarded the contract, a company is
automatically excluded from participation solely on the
formal ground that it is a member of that consortium?

(1) OJ L 134, p. 114.

Questions referred

1. Is

the

Italian State

legislation (Article 7(1) of Law
No 638/83) (1) which results in periods not worked under
‘vertical’ part-time arrangements not being taken into
the
account as periods of qualifying contributions
purpose of acquiring pension rights compatible with Direc-
tive 97/81/EC, and in particular Clause 4 [of the Framework
Agreement] concerning the principle of non-discrimination?

for

2. Are those national provisions compatible with Directive
in particular, Clause 1 [of the Framework
97/81/EC and,
Agreement], which provides that national
legislation must
facilitate the development of part-time work, and Clauses 4
and 5, which provide that the Member States are to eliminate
obstacles of a legal nature which may limit access to part-
time work, since it is unquestionable that the failure to take
into account for pension purposes the weeks not worked
constitutes a significant disincentive to choosing ‘vertical’
part-time working arrangements?

3. Can Clause 4 [of the Framework Agreement] on the prin-
ciple of non-discrimination also be extended to various kinds
of part-time contract, in view of the fact that, in the case of
‘horizontal’ part-time work, where the total number of hours
worked and for which remuneration is paid in the calendar
year is equal, all the weeks of the calendar year are taken
into account under national legislation, whereas they are not
in the case of ‘vertical’ part-time work?

(1) Council Directive 97/81/EC of 15 December 1997 concerning the
Framework Agreement on part-time work concluded by UNICE,
CEEP and the ETUC — Annex: Framework agreement on part-time
work — OJ 1998 L 14, p. 9.