UX v Governo della Repubblica italiana.
Date: 2020-07-16
24


By decision of 11 November 2019, received at the Court on 12 November 2019, the referring court decided to withdraw the fourth and fifth questions, while confirming that the first to third questions were maintained:





‘(1)


Does a giudice di pace [magistrate], when making a request for a preliminary ruling, meet the definition of an ordinary European court having jurisdiction to make a request for a preliminary ruling pursuant to Article 267 TFEU, even though — in breach of the guarantees of the independence and impartiality of ordinary European courts referred to by the Court of Justice in its judgments of 19 September 2006, Wilson (C‑506/04, EU:C:2006:587, paragraphs 47 to 53); of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117, paragraphs 32 and 41 to 45); and of 25 July 2018, Minister for Justice and Equality(Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraphs 50 to 54) — under national law, magistrates do not, because of their job insecurity, enjoy working conditions equivalent to those of professional judges, even though they perform the same judicial functions and are included in the national judicial system?








(2)


If question 1 is answered in the affirmative, is the work carried out by the applicant giudice di pace [magistrate] covered by the term “fixed-term worker” for the purpose of Article 1(3) and Article 7 of Directive 2003/88, read in conjunction with clause 2 of [the Framework Agreement] and Article 31(2) of [the Charter], as interpreted by the Court of Justice in its judgments of 1 March 2012, O’Brien (C‑393/10, EU:C:2012:110), and of 29 November 2017, King (C‑214/16, EU:C:2017:914) and, if so, may an ordinary or professional judge be regarded as a permanent worker indistinguishable from a giudice di pace [magistrate] working for a fixed term, for the purposes of the application of the same working conditions as referred to in clause 4 of [the Framework Agreement]?








(3)


If questions 1 and 2 are answered in the affirmative, is Article 47 of [the Charter], read in conjunction with Article 267 TFEU, and in the light of the case-law of the [Court] concerning the liability of the Italian State for manifest infringement of [EU] law by courts adjudicating at last instance in the judgments of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513); of 13 June 2006, Traghetti del Mediterraneo (C‑173/03, EU:C:2006:391); and of 24 November 2011, Commission v Italy (C‑379/10, [not published,] EU:C:2011:775), inconsistent with Article 2(3) and (3a) of [legge n. 117 — Risarcimento dei danni cagionati nell’esercizio delle funzioni giudiziarie e responsabilità civile dei magistrate (Law No 117 concerning compensation for damage caused in the exercise of judicial functions and the civil liability of judges) of 13 April 1988] … [(GURI No 88 of 15 April 1988)], which provides for judicial liability for intentional fault or serious misconduct “in the event of manifest infringement of the law or of European Union law” and which presents national courts with the choice — which, however it is made, gives rise to civil liability and liability to disciplinary action in relation to the State in cases in which the public authority itself is a substantive party and in particular where the adjudicator of the case is a giudice di pace [magistrate] working for a fixed term and without effective legal, economic and social security protection as in the present case — of either infringing national legislation, by disapplying it and applying EU law, as interpreted by the Court of Justice, or of infringing EU law and applying national legislation which precludes protection and is incompatible with Article 1(3) and Article 7 of Directive 2003/88, clauses 2 and 4 of [the Framework Agreement] and Article 31(2) of [the Charter]?’
29


In that regard, it should be borne in mind that, under the second paragraph of Article 252 TFEU, the Advocate General, acting with complete impartiality and independence, makes, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice, require his or her involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (judgment of 19 March 2020, Sánchez Ruiz and Others, C‑103/18 and C‑429/18, EU:C:2020:219, paragraph 42 and the case-law cited).
30


It should also be noted in that respect that the Statute of the Court of Justice of the European Union and the Rules of Procedure make no provision for the parties or the interested persons referred to in Article 23 of that Statute to submit observations in response to the Advocate General’s Opinion. The fact that a party or such an interested person disagrees with the Advocate General’s Opinion, irrespective of the questions examined in the Opinion, cannot therefore in itself constitute grounds justifying the reopening of the oral procedure (judgment of 19 March 2020, Sánchez Ruiz and Others, C‑103/18 and C‑429/18, EU:C:2020:219, paragraph 43 and the case-law cited).
42


According to settled case-law, in order to determine whether a body making a reference is a ‘court or tribunal’ within the meaning of Article 267 TFEU, which is a question governed by EU law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (judgment of 21 January 2020, Banco de Santander, C‑274/14, EU:C:2020:17, paragraph 51 and the case-law cited).
45


In that regard, it must be borne in mind that the independence of national courts and tribunals is essential to the proper working of the judicial cooperation system embodied by the preliminary ruling mechanism established by Article 267 TFEU, in that, in accordance with the settled case-law of the Court referred to in paragraph 42 above, that mechanism may be activated only by a body responsible for applying EU law which satisfies, inter alia, that criterion of independence (judgment of 21 January 2020, Banco de Santander, C‑274/14, EU:C:2020:17, paragraph 56 and the case-law cited).
46


According to the case-law of the Court, the concept of ‘independence’ has two aspects. The first aspect, which is external, requires that the body concerned exercise its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, being thus protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions (judgment of 21 January 2020, Banco de Santander, C‑274/14, EU:C:2020:17, paragraph 57 and the case-law cited).
47


Again as regards the external aspect of the concept of ‘independence’, it should be borne in mind that the irremovability of the members of the body concerned constitutes a guarantee that is essential to judicial independence in that it serves to protect the person of those who have the task of adjudicating in a dispute (judgment of 21 January 2020, Banco de Santander, C‑274/14, EU:C:2020:17, paragraph 58 and the case-law cited).
48


The principle of irremovability, the cardinal importance of which is to be emphasised, requires, in particular, that judges may remain in post provided that they have not reached the obligatory retirement age or until the expiry of their mandate, where that mandate is for a fixed term. While it is not wholly absolute, there can be no exceptions to that principle unless they are warranted by legitimate and compelling grounds, subject to the principle of proportionality. Thus it is widely accepted that judges may be dismissed if they are deemed unfit for the purposes of carrying out their duties on account of incapacity or a serious breach of their obligations, provided that the appropriate procedures are followed (judgment of 21 January 2020, Banco de Santander, C‑274/14, EU:C:2020:17, paragraph 59 and the case-law cited).
49


The guarantee of irremovability of the members of a court or tribunal thus requires that dismissals of members of that body should be determined by specific rules, by means of express legislative provisions offering safeguards that go beyond those provided for by the general rules of administrative law and employment law which apply in the event of an unlawful dismissal (judgment of 21 January 2020, Banco de Santander, C‑274/14, EU:C:2020:17, paragraph 60 and the case-law cited).
50


The second aspect of the concept of ‘independence’ — which is an internal aspect — is linked to ‘impartiality’ and seeks to ensure a level playing field for the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law (judgment of 21 January 2020, Banco de Santander, C‑274/14, EU:C:2020:17, paragraph 61 and the case-law cited).
51


Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and the grounds for abstention, rejection and dismissal of its members, in order to dismiss any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it (judgment of 21 January 2020, Banco de Santander, C‑274/14, EU:C:2020:17, paragraph 63 and the case-law cited).
61


In that regard, it is sufficient to note that it is not for the Court to call into question the referring court’s assessment of the admissibility of the action in the main proceedings, which falls, in the context of the preliminary ruling proceedings, within the jurisdiction of the national court; nor is it for the Court to determine whether the order for reference was made in accordance with the rules of national law governing the organisation of the courts and legal proceedings (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 30, and order of 17 January 2019, Rossi and Others, C‑626/17, not published, EU:C:2019:28, paragraph 22 and the case-law cited). The Court must abide by the decision from a court of a Member State requesting a preliminary ruling in so far as that decision has not been overturned in any appeal procedures provided for by national law (judgments of 7 July 2016, Genentech, C‑567/14, EU:C:2016:526, paragraph 23, and of 11 July 1996, SFEI and Others, C‑39/94, EU:C:1996:285, paragraph 24).
63


Lastly, as regard the inter partes nature of the procedure pending before the referring court, it is sufficient to note that, according to the Court’s settled case-law, Article 267 TFEU does not make the reference to the Court subject to there having been an inter partes hearing in the proceedings. On the contrary, it follows from that article that a national court may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature (judgments of 16 December 2008, Cartesio, C‑210/06, EU:C:2008:723, paragraph 56, and of 4 September 2019, Salvoni, C‑347/18, EU:C:2019:661, paragraph 26 and the case-law cited). This is the case here.
64


Furthermore, as noted by the Advocate General in point 62 of her Opinion, the Court has ruled that a request for a preliminary ruling arising from an order for payment procedure can also be submitted to the Court (see, to that effect, judgments of 14 December 1971, Politi, 43/71, EU:C:1971:122, paragraphs 4 and 5, and of 8 June 1998, Corsica Ferries France, C‑266/96, EU:C:1998:306, paragraph 23).
66


In the second place, as regards the need for the preliminary ruling and the relevance of the questions referred, it should be noted that, according to settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of a rule of EU law, the Court is in principle bound to give a ruling (judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 97 and the case-law cited).
67


It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgments of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 98 and the case-law cited, and of 19 October 2017, Paper Consult, C‑101/16, EU:C:2017:775, paragraph 29 and the case-law cited).
68


Thus, since the order for reference serves as the basis for the procedure before the Court, it is essential that the national court should, in that order, expand on the factual and legal context of the dispute in the main proceedings and give at the very least some explanation of the reasons for the choice of the EU law provisions which it seeks to have interpreted and of the link it established between those provisions and the national legislation applicable to the proceedings pending before it (see, to that effect, inter alia, judgment of 9 March 2017, Milkova, C‑406/15, EU:C:2017:198, paragraph 73, and order of 16 January 2020, Telecom Italia and Others, C‑368/19, not published, EU:C:2020:21, paragraph 37).
84


In that regard, it should be borne in mind that, according to the Court’s case-law, the criterion used in the first subparagraph of Article 2(2) of Directive 89/391 to exclude certain activities from the scope of that directive and, indirectly, from that of Directive 2003/88, is based not on the fact that workers belong to one of the sectors of the public service referred to in that provision, taken as a whole, but exclusively on the specific nature of certain particular tasks performed by workers in the sectors referred to in that provision, which justify an exception to the rule on the protection of the safety and health of workers, on account of the absolute necessity to guarantee effective protection of the community at large (judgment of 20 November 2018, Sindicatul Familia Constanţa and Others, C‑147/17, EU:C:2018:926, paragraph 55).
88


In the second place, it must be noted that, for the purposes of applying Directive 2003/88, the concept of ‘worker’ cannot be interpreted differently according to the law of the Member States but has an autonomous meaning specific to EU law (judgments of 26 March 2015, Fenoll, C‑316/13, EU:C:2015:200, paragraph 25, and of 20 November 2018, Sindicatul Familia Constanţa and Others, C‑147/17, EU:C:2018:926, paragraph 41 and the case-law cited).
89


That finding applies also with regard to the interpretation of the term ‘worker’ within the meaning of Article 7 of Directive 2003/88 and of Article 31(2) of the Charter, in order that the uniform scope of the right of workers to paid leave rationae personae may be ensured (judgment of 26 March 2015, Fenoll, C‑316/13, EU:C:2015:200, paragraph 26).
90


That concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned (judgment of 20 November 2018, Sindicatul Familia Constanţa and Others, C‑147/17, EU:C:2018:926, paragraph 41 and the case-law cited).
91


It is ultimately for the national court to apply that concept of ‘worker’ in any classification, and the national court must base that classification on objective criteria and make an overall assessment of all the circumstances of the case brought before it, having regard both to the nature of the activities concerned and the relationship of the parties involved (see, to that effect, judgment of 14 October 2010, Union syndicale Solidaires Isère, C‑428/09, EU:C:2010:612, paragraph 29).
93


It must, therefore, be recalled, on the one hand, that any person who pursues real and genuine activities, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a ‘worker’ (judgment of 26 March 2015, Fenoll, C‑316/13, EU:C:2015:200, paragraph 27).
94


On the other hand, according to settled case-law, the essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he or she receives remuneration (judgment of 20 November 2018, Sindicatul Familia Constanţa and Others, C‑147/17, EU:C:2018:926, paragraph 41 and the case-law cited).
96


In that context, it must be borne in mind that, as regards the nature of the legal relationship at issue in the main proceedings in the context of which the applicant carries out her duties, the Court has ruled that the sui generis legal nature of an employment relationship in national law can in no way whatsoever affect whether or not the person is a ‘worker’ for the purposes of EU law (judgment of 26 March 2015, Fenoll, C‑316/13, EU:C:2015:200, paragraph 31).
101


Furthermore, while it is clear that remuneration for services performed constitutes an essential feature of an employment relationship, the fact remains that neither the origin of the funds from which that remuneration is paid nor the limited amount of that remuneration can have any consequence in regard to whether or not the person is a ‘worker’ for the purposes of EU law (see, to that effect, judgments of 30 March 2006, Mattern and Cikotic, C‑10/05, EU:C:2006:220, paragraph 22, and of 4 June 2009, Vatsouras and Koupatantze, C‑22/08 and C‑23/08, EU:C:2009:344, paragraph 27).
103


Lastly, an employment relationship implies the existence of a hierarchical relationship between the worker and his or her employer. Whether such a relationship exists must, in each particular case, be assessed on the basis of all the factors and circumstances characterising the relationship between the parties (judgment of 20 November 2018, Sindicatul Familia Constanţa and Others, C‑147/17, EU:C:2018:926, paragraph 42 and the case-law cited).
106


In that regard, it follows from the case-law that the fact that judges are subject to terms of service and that they might be regarded as workers in no way undermines the principle of the independence of the judiciary or the right of the Member States to provide for a particular status governing the judiciary (see, to that effect, judgment of 1 March 2012, O’Brien, C‑393/10, EU:C:2012:110, paragraph 47).
107


In those circumstances, while the fact that, in the present case, magistrates are subject to the disciplinary authority of the Consiglio superiore della magistratura (Supreme Council of the Judiciary, Italy; ‘SCJ’) is not in itself sufficient for them to be regarded as being, vis-à-vis an employer, in a legal relationship of subordination (see, to that effect, judgment of 26 March 1987, Commission v Netherlands, 235/85, EU:C:1987:161, paragraph 14), that fact should nonetheless be taken into account in the context of all the facts of the main proceedings.
115


In that regard, it is apparent from the wording of that provision that its scope is conceived in broad terms, as it covers generally ‘fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State’. In addition, the definition of ‘fixed-term workers’ within the meaning of clause 3(1) of the Framework Agreement, encompasses all workers without drawing a distinction according to whether their employer is in the public, or private, sector and regardless of the classification of their contract under domestic law (judgment of 19 March 2020, Sánchez Ruiz and Others, C‑103/18 and C‑429/18, EU:C:2020:219, paragraph 108).
116


The Framework Agreement therefore applies to all workers providing remunerated services in the context of a fixed-term employment relationship linking them with their employer, provided that they are linked by an employment contract or relationship within the meaning of national law, subject to the sole provisos of the discretion conferred on Member States by clause 2(2) of the Framework Agreement as to the application of that agreement to certain categories of employment contracts or relationships and of the exclusion, in accordance with the fourth paragraph of the preamble to the Framework Agreement, of temporary agency workers (judgment of 19 March 2020, Sánchez Ruiz and Others, C‑103/18 and C‑429/18, EU:C:2020:219, paragraph 109).
117


While, as is apparent from recital 17 of Directive 1999/70 and clause 2(1) of the Framework Agreement, that directive leaves Member States free to define the terms ‘employment contract’ or ‘employment relationship’ used in that clause in accordance with national law and practice, the discretion granted to the Member States in order to define such concepts is nevertheless not unlimited. Such terms may be defined in accordance with national law and practices on condition that they respect the effectiveness of that directive and the general principles of EU law (see, to that effect, judgment of 1 March 2012, O’Brien, C‑393/10, EU:C:2012:110, paragraph 34).
118


In that context, the mere fact that a professional activity, the exercise of which leads to a material advantage, may be classified as ‘honorary’ under national law is irrelevant as regards the applicability of the Framework Agreement, as otherwise, in reserving to Member States the ability to remove at will certain categories of persons from the protection offered by Directive 1999/70 and the Framework Agreement, the effectiveness of those instruments would be in jeopardy, as would their uniform application in the Member States (see, to that effect, judgments of 13 September 2007, Del Cerro Alonso, C‑307/05, EU:C:2007:509, paragraph 29, and of 1 March 2012, O’Brien, C‑393/10, EU:C:2012:110, paragraph 36).
122


In that connection, it must be pointed out that the fact that, in the present case, magistrates are judicial office holders, is insufficient in itself to exclude the latter from enjoying the rights provided for by that framework agreement (see, to that effect, judgment of 1 March 2012, O’Brien, C‑393/10, EU:C:2012:110, paragraph 41).
123


It follows from the need to safeguard the effectiveness of the principle of equal treatment enshrined in that framework agreement that such an exclusion may be permitted, if it is not to be regarded as arbitrary, only if the nature of the employment relationship concerned is substantially different from the relationship between employers and their employees which fall within the category of ‘workers’ under national law (see, by analogy, judgment of 1 March 2012, O’Brien, C‑393/10, EU:C:2012:110, paragraph 42).
124


However, it is ultimately for the referring court to examine to what extent the relationship between magistrates and the Ministry of Justice is, by its nature, substantially different from an employment relationship between an employer and a worker. The Court may, however, mention to the referring court a number of principles and criteria which it must take into account in the course of its examination (see, by analogy, judgment of 1 March 2012, O’Brien, C‑393/10, EU:C:2012:110, paragraph 43).
125


In that connection, in examining whether the nature of the relationship between magistrates and the Ministry of Justice is substantially different from that between employees falling, according to national law, within the category of ‘workers’ and their employers, the referring court will have to bear in mind that, in order to have regard to the spirit and purpose of the Framework Agreement, that distinction must be made in particular in the light of the differentiation between that category and self-employed persons (see, by analogy, judgment of 1 March 2012, O’Brien, C‑393/10, EU:C:2012:110, paragraph 44).
126


With that in mind, the rules for appointing and dismissing magistrates must be considered, and also the way in which their work is organised (see, by analogy, judgment of 1 March 2012, O’Brien, C‑393/10, EU:C:2012:110, paragraph 45).
128


However, in that regard, the fact that those employment relationships were established by presidential decrees due to the public nature of the employer is not decisive (see, to that effect, judgment of 19 March 2020, Sánchez Ruiz and Others, C‑103/18 and C‑429/18, EU:C:2020:219, paragraph 115).
137


The Court has held that that provision aims to apply the principle of non-discrimination to fixed-term workers in order to prevent an employer using such an employment relationship to deny those workers rights which are recognised for permanent workers (judgment of 22 January 2020, Baldonedo Martín, C‑177/18, EU:C:2020:26, paragraph 35).
138


In view of the objectives pursued by the Framework Agreement, clause 4 of that agreement must be interpreted as articulating a principle of EU social law, which cannot be interpreted restrictively (judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 41).
141


In the third place, it must be borne in mind that, according to the Court’s settled case-law, the principle of non-discrimination, of which clause 4(1) of the Framework Agreement is a specific expression, requires that comparable situations should not be treated differently and different situations should not be treated alike, unless such treatment is objectively justified (judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 49 and the case-law cited).
142


In that regard, the principle of non-discrimination has been implemented and specifically applied by the Framework Agreement solely as regards differences in treatment as between fixed-term workers and permanent workers in a comparable situation (judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 50 and the case-law cited).
143


According to the Court’s settled case-law, in order to assess whether the persons concerned are engaged in the same or similar work for the purposes of the Framework Agreement, it must be determined, in accordance with clauses 3(2) and 4(1) of the Framework Agreement, whether, in the light of a number of factors, such as the nature of the work, training requirements and working conditions, those persons can be regarded as being in a comparable situation (judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 51 and the case-law cited).
144


In that regard, where it is established that, when they were employed, those fixed-term workers carried out the same duties as workers employed by the same employer for an indefinite period or held the same post as them, it is necessary, in principle, to regard the situations of those two categories of worker as being comparable (judgment of 22 January 2020, Baldonedo Martín, C‑177/18, EU:C:2020:26, paragraph 41 and the case-law cited).
148


In those circumstances, it is for the referring court, which alone has jurisdiction to assess the facts, ultimately to determine whether a magistrate such as the applicant in the main proceedings is in a situation comparable to that of an ordinary judge who has successfully passed the third professional aptitude assessment and completed at least 14 years of service during the same period (see, to that effect, judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 52 and the case-law cited).
150


In that regard, it should be noted that, according to settled case-law, the concept of ‘objective grounds’, within the meaning of clause 4(1) of the Framework Agreement, must be understood as not permitting a difference in treatment between fixed-term workers and permanent workers to be justified on the basis that the different treatment is provided for by a general or abstract measure, such as a law or a collective agreement (see, to that effect, judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 56 and the case-law cited).
151


That concept requires, according to equally settled case-law, the unequal treatment found to exist to be justified by the presence of precise and specific factors, characterising the employment condition to which it relates, in the specific context in which it occurs and, on the basis of objective and transparent criteria, in order to ensure that that unequal treatment in fact responds to a genuine need, is appropriate for the purpose of attaining the objective pursued and is necessary for that purpose. Those factors may be apparent, in particular, from the specific nature of the tasks for the performance of which fixed-term contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State (see, to that effect, judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 57 and the case-law cited).
152


Reliance on the mere temporary nature of employment does not meet those requirements and cannot, therefore, constitute an ‘objective ground’ within the meaning of clause 4(1) and/or (4) of the Framework Agreement. If the mere temporary nature of an employment relationship were considered to be enough to justify a difference in treatment as between fixed-term workers and permanent workers, the objectives of Directive 1999/70 and the Framework Agreement would be rendered meaningless and it would be tantamount to perpetuating a situation disadvantageous to fixed-term workers (judgment of 20 September 2018, Motter, C‑466/17, EU:C:2018:758, paragraph 38).
153


The mere fact that the fixed-term worker completed those periods of service on the basis of an employment relationship or contract for a fixed term does not constitute such an objective ground (see, to that effect, judgment of 20 September 2018, Motter, C‑466/17, EU:C:2018:758, paragraph 39).
156


In that regard, it must be noted that, in the light of the discretion enjoyed by Member States as regards the organisation of their own public authorities, those States can, in principle, without acting contrary to Directive 1999/70 or the Framework Agreement, lay down conditions for entering the judiciary and conditions of employment applicable to both ordinary judges and magistrates (see, to that effect, judgment of 20 September 2018, Motter, C‑466/17, EU:C:2018:758, paragraph 43).
157


However, that discretion notwithstanding, the criteria which the Member States lay down must be applied in a transparent manner and must be open to review in order to prevent any unfavourable treatment of fixed-term workers solely on the basis of the duration of contracts or employment relationships which attest to their length of service and professional experience (judgment of 20 September 2018, Motter, C‑466/17, EU:C:2018:758, paragraph 44).
158


Where such a difference in treatment arises from the need to take account of objective requirements relating to the post which the recruitment procedure is intended to fill and which are unrelated to the fixed-term nature of the worker’s employment relationship, it may be justified for the purposes of clause 4(1) and/or (4) of the Framework Agreement (judgment of 20 September 2018, Motter, C‑466/17, EU:C:2018:758, paragraph 45).
159


In that regard, it must be taken into account that some differences in treatment between permanent workers recruited following a competition and fixed-term workers recruited following a procedure that is different from than the one provided for permanent workers, may, in principle, be justified by differences in the qualifications required and the nature of the duties undertaken (see, to that effect, judgment of 20 September 2018, Motter, C‑466/17, EU:C:2018:758, paragraph 46).
160


The objectives, put forward by the Italian Government, of reflecting the differences in professional practice between magistrates and ordinary judges may, therefore, be considered to constitute an ‘objective reason’ within the meaning of clause 4(1) and/or (4) of the Framework Agreement, provided that they respond to a genuine need, are appropriate for the purpose of attaining the objectives pursued and are necessary for that purpose (see, to that effect, judgment of 20 September 2018, Motter, C‑466/17, EU:C:2018:758, paragraph 47).