Ministero dell'Istruzione, dell'Università e della Ricerca - MIUR v Fabio Rossato and Conservatorio di Musica F.A. Bonporti.
Date: 2019-05-08
19


In this respect, it should be noted that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred 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 (judgment of 4 December 2018, Minister for Justice and Equality and Commissioner of An Garda Síochána, C‑378/17, EU:C:2018:979, paragraph 27 and the case-law cited).
21


It should be noted that, under the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. With that in mind, the Court may have to reformulate the questions referred to it (see, inter alia, the judgment of 27 March 2014, Le Rayon d’Or, C‑151/13, EU:C:2014:185, paragraph 25 and the case-law cited).
24


It should be noted as a preliminary point that Clause 5(1) of the Framework Agreement requires Member States, in order to prevent the misuse of successive fixed-term employment contracts or relationships, to adopt one or more of the measures listed in that provision, where their domestic law does not include equivalent legal measures (judgments of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 26 and the case-law cited, and of 25 October 2018, Sciotto, C‑331/17, EU:C:2018:859, paragraph 32).
25


The Member States enjoy a certain discretion in this regard since they have the choice of relying on one or more of the measures listed in Clause 5(1)(a) to (c) of the Framework Agreement, or on existing equivalent legal measures, while taking account of the needs of specific sectors and/or categories of workers (judgments of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 27 and the case-law cited, and of 25 October 2018, Sciotto, C‑331/17, EU:C:2018:859, paragraph 33).
26


In that way, Clause 5(1) of the Framework Agreement assigns to the Member States the general objective of preventing such abuse, while leaving to them the choice as to how to achieve it, provided that they do not compromise the objective or the practical effect of the Framework Agreement (judgments of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 28 and the case-law cited, and of 25 October 2018, Sciotto, C‑331/17, EU:C:2018:859, paragraph 34).
27


Furthermore, where, as in the present instance, EU law does not lay down any specific penalties in the event that instances of abuse are nevertheless established, it is incumbent on the national authorities to adopt measures that are not only proportionate, but also sufficiently effective and a sufficient deterrent to ensure that the provisions adopted pursuant to the Framework Agreement are fully effective (judgment of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 29 and the case-law cited).
28


Therefore, where there has been misuse of successive fixed-term contracts or relationships, a measure offering effective and equivalent guarantees for the protection of workers must be capable of being applied in order duly to penalise that misuse and nullify the consequences of the breach of EU law (judgments of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 64; of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 79; and of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 31).
29


It is not for the Court to rule on the interpretation of domestic law, since that task falls exclusively to the referring court, which must, in the present instance, determine whether the requirements set out in the previous paragraphs are met by the provisions of the relevant national legislation. However, when giving a preliminary ruling, the Court may, where appropriate, offer clarification intended to provide the national court with guidance in its assessment (see, inter alia, judgment of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 45).
30


In the first place, it should be noted that, in the judgment of 26 November 2014, Mascolo and Others (C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401), the Court took the view that the legislation prior to Law No 107/2015 did not impose any penalty that was sufficiently effective and a sufficient deterrent to ensure that the provisions adopted pursuant to the Framework Agreement were fully effective. In particular, the Court considered that the only way for the teachers involved in that case to have their fixed-term employment relationship converted into a relationship of indefinite duration was to be granted tenure as a result of progressing up the permanent ranking list and, therefore, that they were dependent on circumstances that had to be regarded as fortuitous and unpredictable in that tenure and progression were dictated by the overall duration of the fixed-term employment contracts and by the posts that had in the meantime become vacant (see, to that effect, judgment of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 107).
31


The Court relied in that regard on the fact that the period required for teachers to be granted tenure was both variable and uncertain (see, to that effect, judgment of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 105).
40


It should be observed in that regard that the Court has stated, in essence, that legislation which lays down a mandatory rule that, where there is misuse of fixed-term employment contracts, such contracts are to be converted into an employment relationship of indefinite duration, is likely to comprise a measure that actually punishes such misuse (see, inter alia, judgment of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 70 and the case-law cited), and, therefore, to meet the requirements set out in paragraphs 27 and 28 above.
41


However, case-law does not require more than one measure to apply concurrently (see, to that effect, judgments of 2 August 1993, Marshall, C‑271/91, EU:C:1993:335, paragraph 25, and of 17 December 2015, Arjona Camacho, C‑407/14, EU:C:2015:831, paragraphs 32 and 35).
42


Furthermore, neither the principle that the damage suffered must be made good in its entirety nor the principle of proportionality require the payment of punitive damages (see, to that effect, judgment of 17 December 2015, Arjona Camacho, C‑407/14, EU:C:2015:831, paragraph 37).
43


Those principles require Member States to provide for adequate compensation, which is more than a purely nominal amount, but not more than is necessary to make good the damage in its entirety (see, to that effect, judgments of 10 April 1984, von Colson and Kamann, 14/83, EU:C:1984:153, paragraph 28; of 2 August 1993, Marshall, C‑271/91, EU:C:1993:335, paragraph 26; and of 17 December 2015, Arjona Camacho, C‑407/14, EU:C:2015:831, paragraph 33).
44


Moreover, in so far as Mr Rossato alleges that he was treated differently to workers who successfully brought a claim against their employer for misuse of fixed-term employment contracts before the entry into force of Law No 107/2015 and who, under the legislation previously in force, could have obtained compensation as well as the award of a contract of indefinite duration, it is sufficient to note that the different treatment of two categories of fixed-term workers resulting from a reform of the legislation applicable is not covered by the principle of non-discrimination established in Clause 4 of the Framework Agreement (judgment of 21 November 2018, Viejobueno Ibáñez and de la Vara González, C‑245/17, EU:C:2018:934, paragraphs 50 and 51).
47


It should be noted in that regard, first, that the fact that the measure adopted by the national legislature in the private sector constitutes the widest form of protection that may be granted to a worker cannot, in itself, result in a reduction of the effectiveness of the national measures applicable to workers in the public sector (judgment of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 51).
48


Second, if all the years worked under fixed-term employment contracts were taken into account when the worker concerned was granted tenure, that would amount to a full reconstruction of that worker’s career, such as that reserved for civil servants who have successfully completed a competition. In that connection, it should be noted that EU law does not require Member States to treat in the same way career civil servants recruited following an open competition and those recruited on the basis of qualifications who have acquired professional experience on the basis of fixed-term contracts, as such different treatment is a result of the need (i) to take account of the qualifications required and the nature of the duties undertaken by career civil servants and (ii) to prevent reverse discrimination against the latter (see, inter alia, judgment of 20 September 2018, Motter, C‑466/17, EU:C:2018:758, paragraphs 46 and 47 and the case-law cited).
51


While, admittedly, a Member State is entitled, when implementing Clause 5(1) of the Framework Agreement, to take account of the needs of a specific sector, such as the teaching sector, that right cannot be understood as permitting it to dispense with observance of the obligation to lay down an appropriate measure for duly punishing the misuse of successive fixed-term employment contracts (judgment of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 118). Such a measure must, inter alia, as indicated in paragraph 28 above, be proportionate.