4.7.2022
EN
Official Journal of the European Union
C 257/21
2.
If the answer to the first question is in the affirmative, does Article 47 of the Charter of Fundamental Rights of the European Union, in conjunction with Article 267 TFEU, clauses 2 and 4 of the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP and laid down in Directive 1999/70/EC of 28 June 1999, and the fundamental principle of the independence and irremovability of European judges, preclude a national provision — such as Article 21 of Legislative Decree No 116 of 13 July 2017 — which exposes the referring judge (also a magistrate), without effective legal, economic and social security protections, who intends to apply EU law, as interpreted by the Court of Justice in UX, disapplying national provisions precluding the recognition of the protection sought, to the automatic termination of judicial office by bodies of the Italian State (a party in the main proceedings), such as the Supreme Council of the Judiciary and the Ministero della giustizia (Ministry of Justice), without an inter partes procedure and without disciplinary proceedings before the entry into force of Legislative Decree No 116/2017?
3.
If the answer to the first two questions is in the affirmative, is there a violation of the ‘rule of law’, according to the concept defined in Article 2(a) of Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, (2) in a situation in Italy in which:
— the applicant and 4 769 other lay judges, who were already employed on 15 August 2017, including this referring judge, are deprived of normative, economic and social security protections in the working conditions provided for comparable professional judges, and therefore cannot hold judicial office independently and irremovably;
— the Italian Government and the ‘employer’, the Ministry of Justice, as well as the Italian Parliament, the Supreme Council of the Judiciary, the Suprema Corte di Cassazione (Supreme Court of Cassation, Italy) and the Council of State systematically refuse to recognise the primacy of EU law and to apply the case-law of the Court of Justice on the legal status and rights guaranteed by EU law to the applicant and the 4 769 lay judges performing judicial functions in the same conditions as professional judges;
— 4 769 lay judges, including this referring judge and excluding the applicant, already employed on 15 August 2017, will have to waive any right guaranteed by EU law if they intend, in order to remain in post, to undergo a new assessment procedure so that if successful they can continue to hold judicial office until the age of 70, even though all the lay judges were confirmed in post until 31 May 2024 by the Supreme Council of the Judiciary and by the Ministry of Justice, under the legislation in force until 31 December 2021, at least until such time as they must leave office because they have reached the maximum age, and even though, after the position was made permanent, the conditions undermining the independence and irremovability of lay judges who were given permanent positions continued to exist;
— the financial aid covered by the EU budget for the reform of civil and criminal justice in Italy to ensure a prompt and fair trial, as defined by the National Recovery and Resilience Plan (NRRP), does not include any measure to support the lay judiciary and is mainly aimed at the fixed-term employment of 16 500 administrative assistants recruited for the ‘office for proceedings’ (ufficio del processo), employed by the Ministry of Justice on the same economic terms as the lay judiciary who have been given permanent positions, but subject to conditions of irremovability on a disciplinary level throughout the period of employment, which is not recognised for the lay judiciary, even after being given permanent positions?
4.
If the first three questions are answered in the affirmative, are Article 278 of the Treaty on the Functioning of the European Union and Article 160 of the Rules of Procedure of the Court of Justice unlawful, for being contrary to Articles 2, 6 and 19 of the Treaty [on European Union], in so far as they do not allow the Court of Justice, in the context of preliminary ruling proceedings pursuant to Article 267 TFEU, to adopt the necessary interim measures, including the suspension of national legislative acts undermining the rule of law and harming the financial interests of the Union according to the principles and conditionalities laid down in Regulation 2020/2092?
(1) (2)
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).
OJ 2020 L 433I, p. 1.