1 This request for a preliminary ruling relates to the interpretation of clause 4 of the framework agreement on fixed-term work concluded on 18 March 1999 (‘the Framework Agreement’), which is 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 (OJ 1999 L 175, p. 43).
2 The request has been made in proceedings between ZT, a non-tenured teacher, and the Ministero dell’Istruzione e del Merito (Ministry of Education and Merit, Italy) (‘the Ministry’) concerning the refusal to grant that teacher an annual allowance of EUR 500 in the form of an electronic card enabling teachers to purchase different goods and services granted to support their in-service training and to enhance their professional skills.
3 Article 1 of Directive 1999/70 states that the purpose of the directive is ‘to put into effect the [Framework Agreement]’.
4 Clause 2 of the Framework Agreement, entitled ‘Scope’, provides, in paragraph 1: ‘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.’
5 Clause 3 of the Framework Agreement, entitled ‘Definitions’, 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. …’
6 Clause 4 of the Framework Agreement, entitled ‘Principle of non-discrimination’, states, in paragraphs 1 and 2: ‘1. 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. 2. Where appropriate, the principle of pro rata temporis shall apply.’
7 Under Article 282 of decreto legislativo n. 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 (GURI No 115 of 19 May 1994, Ordinary Supplement No 79), updating knowledge is a fundamental right and obligation of inspection, management and teaching staff. It is to be understood as tailoring knowledge to developments in the understanding of individual disciplines and interdisciplinary connections, as a way to enhance pedagogical preparation, and as a way to participate in didactic and pedagogical research and innovation.
8 Article 4 of legge n. 124 - Disposizioni urgenti in materia di personale scolastico (Law No 124 incorporating urgent measures concerning school staff) of 3 May 1999 (GURI No 107 of 10 May 1999), in the version applicable to the dispute in the main proceedings (‘Law No 124/1999’), provides, in paragraphs 1 to 3: ‘1. In order to fill senior teaching posts and teaching posts which are in fact vacant and are not filled by 31 December and which are expected to remain so for the entire academic year, where it is not possible to fill the posts with a teacher from the provincial staff allocation list for tenured teaching staff or surplus staff, and provided that no tenured teaching staff have in any way been assigned to the posts, supply teaching posts of one year shall be created, pending the completion of competitive selection procedures for the recruitment of tenured teaching staff. 2. In order to fill non-vacant senior teaching posts and teaching posts which become de facto available by 31 December and up to the end of the academic year, temporary supply teaching posts lasting until the end of teaching activities shall be created. Provision shall also be made to create temporary supply teaching posts until the end of teaching activities in order to cover teaching hours which are not included in the calculation of full-time senior teaching posts or for a fixed number of hours. 3. In cases other than those provided for in paragraphs 1 and 2, temporary supply teaching posts shall be created to fill such vacancies.’
9 Article 1 of legge n. 107 - Riforma del sistema nazionale di istruzione e formazione e delega per il riordino delle disposizioni legislative vigenti (Law No 107 reforming the national education and training system and introducing delegation measures for the reorganisation of the legislative provisions in force) of 13 July 2015 (GURI No 162 of 15 July 2015; ‘Law No 107/2015’), states, in paragraphs 121 to 124: ‘121. In order to support the in-service training of teachers and to enhance their professional skills, an electronic card for the professional development and training of tenured teaching staff at teaching establishments at all levels is created, within the spending limit set out in paragraph 123. The card, having a nominal value of EUR 500 per academic year, can be used to purchase books and texts, including those in digital form, publications and journals relevant in any way for professional development, to purchase hardware and software, to enrol in professional development and certification courses for professional skills, organised by bodies accredited by the [Ministry], in undergraduate or masters courses related to the job profile, or in postgraduate courses or specialist masters courses related to the job profile, to attend theatrical performances and film [screenings], to access museums, exhibitions, cultural events and live performances, and for initiatives consistent with the activities identified under the three-year training offer plan for schools and the national training plan referred to in paragraph 124. The amount charged on the card does not constitute additional remuneration or taxable income. 122. By decree of the President of the Council of Ministers, in agreement with the [Ministry] and the Ministry of the Economy and Finance - to be adopted within 60 days from the date of entry into force of the present law - the criteria and procedures for allocating and using the card referred to in paragraph 121 and the amount to be allocated within the available resources referred to in paragraph 123, taking into account the public digital identity management system, and the procedures for providing the advantages and benefits associated with that card shall be defined. 123. For the purposes referred to in paragraph 121, expenditure of EUR 381137 million per year from 2015 onwards shall be authorised. 124. As part of fulfilling the teaching duties, in-service training of tenured teaching staff is compulsory, permanent and structural. Training activities shall be defined by the individual educational establishments in line with the three-year training offer plan and the results arising from the plans to improve the educational establishments provided for by the regulation referred to in Presidential Decree No 80 of 28 March 2013, on the basis of the national priorities indicated in the national training plan, adopted every three years by decree of the [Ministry], after consulting the representative trade unions for the category concerned.’
10 During the academic year 2020/2021, ZT held a supply teaching post, which started before 31 December 2020 and continued until the end of the teaching activities for that academic year. During the following academic year, she held a series of supply teaching posts in three different schools, over three separate periods of the year, namely from 8 October to 22 December 2021, from 24 January to 10 February 2022, and from 11 February to 27 May 2022.
11 ZT applied for the electronic card provided for in Article 1(121) of Law No 107/2015, the nominal value of which is EUR 500 for each academic year (‘the electronic card in question’), for those two academic years.
12 Since the Ministry did not grant her request, ZT brought an action before the Tribunale di Lecce (District Court, Lecce, Italy), which is the referring court, seeking a declaration that she is entitled to that card.
13 In support of her action, ZT claims that the Ministry’s refusal is contrary to clause 4 of the Framework Agreement.
14 The referring court states, as a preliminary point, that, in Italian law, a distinction must be drawn between supply teachers depending on whether they are covered by Article 4(1), (2) or (3) of Law No 124/1999. Accordingly, paragraphs 1 and 2 of that article refer to ‘supply teaching posts of one year’ in respect of senior teaching posts and teaching posts which become available by 31 December of the academic year and are expected to remain so until the end (of teaching activities) of the academic year, namely until 31 August or 30 June of each academic year and are supply teaching posts for the duration of the academic year. Paragraph 3 of that article relates to ‘brief and ad-hoc’ or ‘temporary’ supply teaching posts, that is to say, short-term supply teaching posts.
15 That court states that, following the delivery of the order of 18 May 2022, Ministero dell’istruzione (Electronic card) (C‑450/21, EU:C:2022:411), the Corte suprema di cassazione (Supreme Court of Cassation, Italy) held, by judgment No 29961 of 27 October 2023, that non-tenured teachers who held supply teaching posts for the duration of the academic year were also entitled to the electronic card in question. It did not, however, explicitly rule on that entitlement as regards non-tenured teachers who held short-term supply teaching posts, which led to divergent case-law from the trial courts on that subject.
16 The referring court takes the view, however, that it is apparent from the grounds of that judgment, as from those in Order No 7254 of 19 March 2024, that the Corte suprema di cassazione (Supreme Court of Cassation) intended to exclude the grant of the electronic card in question to those teachers.
17 It states that the Corte suprema di cassazione (Supreme Court of Cassation) held that the Italian legislature established a link between the grant of the electronic card in question and the annual duration of teaching, so that, in order ‘to remove the discrimination experienced’ by the non-tenured teachers who were the subject of the order referred to in paragraph 15 above, in comparison with tenured teachers, it would be sufficient to grant to non-tenured teachers the right to the advantage enjoyed by the tenured teachers solely in respect of non-tenured teachers who hold supply teaching posts for the duration of the academic year, to the exclusion of teachers responsible for short-term supply teaching posts, in so far as only the first carry out a ‘service comparable’ to that of tenured teachers.
18 By contrast, according to the referring court, the Corte suprema di cassazione (Supreme Court of Cassation), held that, if that advantage were also granted to be granted to non-tenured teachers responsible for short-term supply teaching posts, the link that must exist between the grant of the electronic card in question and the annual context of teaching ‘would be unjustifiably altered’, including in the event that the sum of the days of work performed by those teachers subsequently proves to be equal to that of the days worked by tenured teachers or by teachers holding supply teaching posts for the duration of the academic year.
19 The referring court notes that, in the present case, as regards the academic year 2020/2021, ZT held a supply teaching post for the duration of the academic year. Thus, it is common ground that she is entitled, for that year, to the electronic card in question.
20 As regards ZT’s application for the academic year 2021/2022, which is the only one relevant for the purposes of the present reference for a preliminary ruling, the referring court states that ZT accrued a series of short-term supply teaching posts on the basis of separate contracts.
21 Therefore, taking into account the abovementioned case-law of the Corte suprema di cassazione (Supreme Court of Cassation), the referring court states that ZT should not be able to benefit from the electronic card in question for the academic year 2021/2022.
22 However, the referring court is inclined to take the view that refusing ZT the benefit of the electronic card in question is contrary to clause 4 of the Framework Agreement, as interpreted by the Court, in particular, in the order of 18 May 2022, Ministero dell’istruzione (Electronic card) (C‑450/21, EU:C:2022:411).
23 The referring court notes, in that regard, that the tasks and duties carried out by ZT during the academic year 2021/2022 were the same as those of her colleagues - tenured teachers employed on a permanent basis under a permanent contract. In addition, non-tenured teachers who hold supply teaching posts, such as ZT, are recruited on the basis of lists of teachers with the necessary qualifications in accordance with national law. They are also subject to the same duties in respect of pupils and the same training obligations as tenured teachers employed on a permanent basis.
24 That court takes the view that non-tenured teachers who hold supply teaching posts participate, for the duration of their contract, in implementing a phase of education and learning in the same way as tenured teachers. In essence, lesson planning is a prerequisite for the activity of all teachers, including supply teachers and irrespective of the type of supply teaching post held. It states that all supply teachers are members of the teaching council for the period during which they carry out their duties.
25 According to the referring, moreover, the link between the electronic card in question and the annual duration of the teaching is hypothetical, in particular in so far as that link depends on the intention of the teacher, the latter being free to spend the amount concerned or not during the academic year in question. There is no basis for such a link in the wording of Article 1(121) of Law No 107/2015, since the reference in that provision to the three-year training offer plan relates more to the provision of training to the public than to teacher training.
26 Accordingly, the referring court is of the opinion, in the light of the general objectives underlying the introduction of that card, that it would be discriminatory and contrary to the principle of pro rata temporis to exclude altogether the grant of the card to certain non-tenured teachers solely on the basis of the length of time they have been in service, particularly since, in practice, short-term teaching posts may, in the course of an academic year, amount to a cumulative period equivalent to supply teaching posts for the duration of the academic year.
27 In those circumstances, the Tribunale di Lecce (District Court, Lecce) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is [clause] 4 of the [Framework Agreement] to be interpreted as precluding a limitation on the award of the [electronic] card, as provided for in Article 1(121) et seq. of [Law No 107/2015], based on the duration of the supply teaching assignment? (2) In the light of [clause] 4 cited above, is it possible to regard as “objective grounds”, such as to exclude the existence of discrimination, the types of staff vacancy - in the cases referred to in Article 4(1), (2) or (3) of [Law No 124/1999] - which the individual supply teacher is called upon to “fill”? (3) Can the fact of having held temporary supply teaching posts in different schools - in the same academic year - under a number of different temporary supply teaching contracts be regarded as an objective ground within the meaning of [clause] 4 of the [Framework Agreement]? (4) . In any event, is the assessment of comparability between fixed-term teachers and permanent teachers to be made ex ante or must account be taken of the actual duration of the supply teaching services provided in the course of the year (for example, where, although under more than one contract, the supply teacher has worked for a period not unlike a supply teacher recruited to fill a vacant post [until the end of the academic year]?’
28 By its four questions, which it is appropriate to examine together, the referring court asks, in essence, whether clause 4(1) of the Framework Agreement must be interpreted as precluding national legislation, as interpreted by a national supreme court, which reserves the benefit of an electronic card with a nominal value of EUR 500 per year, enabling the purchase of different goods and services intended to support the in-service training of teachers, to tenured teachers and non-tenured teachers who hold supply teaching posts for the duration of the academic year, to the exclusion of non-tenured teachers who hold short-term supply teaching posts.
29 The Italian Government contends that the questions referred are inadmissible, on the ground that, in the view of the referring court, in the light of clause 4 of the Framework Agreement, it is clear that Article 1(121) et seq. of Law No 107/2015 must be interpreted in such a way as to allow the electronic card in question also to be granted to teachers holding short-term supply teaching posts. In those circumstances, the referring court should have interpreted those provisions in conformity with EU law rather than referring questions for a preliminary ruling, by which that court is asking, in reality, the Court of Justice to resolve a conflict in national case-law concerning the merits, in the light of EU law, of the case-law of the Corte suprema di cassazione (Supreme Court of Cassation) that the referring court interpreted, incorrectly moreover, as having ruled on the question of whether those teachers are entitled to be issued with the electronic card in question.
30 In that regard, it must be borne in mind, first, that a national court is in no way prevented from referring a question for a preliminary ruling to the Court of Justice, the answer to which, in the submission of one of the parties to the main proceedings, leaves no scope for reasonable doubt. Accordingly, even if that were the case, the request for a preliminary ruling containing such a question does not thereby become inadmissible (judgment of 17 October 2024, Lufoni, C‑322/23, EU:C:2024:900, paragraph 29 and the case-law cited).
31 Next, in accordance with settled case-law, Article 267 TFEU gives national courts the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving the interpretation of provisions of EU law, which are necessary for the resolution of the case before them. Thus, a court which is not ruling at final instance must be free, if it considers that the legal ruling of a higher court, and even that of a constitutional court, could lead it to give a judgment contrary to EU law, to refer to the Court questions which are of concern to it (judgment of 18 May 2021, Asociaţia Forumul Judecătorilor din România and Others, C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 133 and the case-law cited).
32 Lastly, it is not the role of the Court of Justice to rule on the interpretation of provisions of national law, which is a matter falling within the exclusive jurisdiction of the national courts, and the Court cannot substitute its own judgment for that of the referring court as regards the development of case-law of those courts (judgment of 8 September 2011, Rosado Santana, C‑177/10, EU:C:2011:557, paragraph 60).
33 In the present case, the referring court is of the opinion that an interpretation of clause 4 of the Framework Agreement is necessary for the purpose of resolving the case in the main proceedings, taking into account the case-law of the Corte suprema di cassazione (Supreme Court of Cassation), relevant to the case in the main proceedings, which, in its view, is contrary to EU law.
34 In those circumstances, having regard to the case-law referred to in paragraphs 30 to 32 above, the arguments put forward by the Italian Government, as set out in paragraph 29 above, cannot affect the admissibility of the questions referred.
35 It follows that the questions referred are admissible.
36 It should be borne in mind that the Court held, in paragraph 48 of the order of 18 May 2022, Ministero dell’istruzione (Electronic card) (C‑450/21, EU:C:2022:411), that clause 4 of the Framework Agreement must be interpreted as precluding national legislation which reserves to the permanent teaching staff of a ministry, and not to teaching staff employed on a fixed-term basis by that ministry, the benefit of a financial advantage in the amount of EUR 500 per year, granted in order to support in-service training of teachers and to enhance their professional skills, by means of an electronic card which can be used to purchase various goods and services for that purpose.
37 In this instance, the case in the main proceedings concerns the same national legislation as that at issue in the case which gave rise to that order, namely Article 1(121) et seq. of Law No 107/2015, which provides that an ‘electronic card for the professional development and training of tenured teaching staff … at all levels … is created … having a nominal value of EUR 500 per academic year.’
38 The referring court states that it follows from the case-law of the Corte suprema di cassazione (Supreme Court of Cassation), subsequent to that order, concerning that legislation, that, however, the electronic card in question must, henceforth, also be granted to non-tenured teachers who hold supply teaching posts for the duration of the academic year, whose activity thus forms part of annual teaching. By contrast, according to that case-law, non-tenured teachers holding short-term supply posts, such as ZT, remain without that benefit, on the ground that their activity does not fall within that context.
39 In that regard, it must be borne in mind, in the first place, that the Framework Agreement applies to all workers providing remunerated services in the context of a fixed-term employment relationship linking them to their employer (order of 18 May 2022, Ministero dell’istruzione (Electronic card) (C‑450/21, EU:C:2022:411, paragraph 30), and judgment of 20 February 2024, X (Lack of reasons for termination), C‑715/20, EU:C:2024:139, paragraph 33 and the case-law cited).
40 In the present case, since, as is apparent from the order for reference, ZT, who held, during the academic year 2021/2022, several short-term supply teaching posts as a non-tenured teacher, was employed, on that basis, in the context of one or several fixed-term employment contracts, for the purposes of clause 2(1) of the Framework Agreement, read in conjunction with clause 3(1) of that agreement, the dispute in the main proceedings falls within the scope of the Framework Agreement.
41 In the second place, the prohibition on less favourable treatment of fixed-term workers as compared with permanent workers, referred to in clause 4(1) of the Framework Agreement, concerns the employment conditions of workers.
42 According to settled case-law, the decisive criterion for determining whether a measure falls within the scope of the concept of ‘employment conditions’ within the meaning of clause 4(1) of the Framework Agreement is precisely the criterion of employment, that is to say, the employment relationship between a worker and his or her employer (order of 18 May 2022, Ministero dell’istruzione (Electronic card), C‑450/21, EU:C:2022:411, paragraph 33, and judgment of 20 February 2024, X (Lack of reasons for termination), C‑715/20, EU:C:2024:139, paragraph 37 and the case-law cited).
43 In the present case, as established by the referring court, it should be borne in mind that, as regards the assessments made in paragraphs 36 to 38 of the order of 18 May 2022, Ministero dell’istruzione (Electronic card), (C‑450/21, EU:C:2022:411), the electronic card in question must be considered as falling within ‘employment conditions’ within the meaning of clause 4(1) of the Framework Agreement.
44 In the third place, in accordance with the objective of eliminating discrimination between fixed-term workers and permanent workers that it pursues, clause 4(1) of the Framework Agreement prohibits, in respect of employment conditions, fixed-term workers from being treated less favourably than comparable permanent workers, on the sole ground that they are employed for a fixed term unless different treatment is justified on objective grounds (see, to that effect, order of 18 May 2022, Ministero dell’istruzione (Electronic card), C‑450/21, EU:C:2022:411, paragraph 39, and judgment of 20 February 2024, X (Lack of reasons for termination), C‑715/20, EU:C:2024:139, paragraphs 42 and 45 and the case-law cited).
45 To that end, 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 (order of 18 May 2022, Ministero dell’istruzione (Electronic card), C‑450/21, EU:C:2022:411, paragraph 40, and judgment of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 47 and the case-law cited).
46 In that regard, so far as concerns, in the first place, a difference in treatment for the purposes of clause 4(1) of the Framework Agreement, it is apparent from the grounds of the order for reference, referred to in paragraph 38 above, that not only all tenured teachers, employed on a permanent basis, may be entitled to the electronic card in question, but also non-tenured teachers, employed on fixed-term contracts, where they hold supply teaching posts for the duration of the academic year, to the exclusion of non-tenured teachers, employed on fixed-term contracts, who hold short-term supply teaching posts.
47 The Italian Government concludes from that that the questions referred for a preliminary ruling concern, in reality, a difference in treatment not between fixed-term workers and permanent workers, but between two categories of fixed-term workers, which is outside the scope of the Framework Agreement.
48 In that regard, it must be pointed out, however, first, that by drawing attention to the latter difference in treatment, the referring court merely intends to make it clear that, while the less favourable treatment at issue in the case which gave rise to the order of 18 May 2022, Ministero dell’istruzione (Electronic card), (C‑450/21, EU:C:2022:411), as regards non-tenured teachers holding supply teaching posts for the duration of the academic year, it continues, by contrast, in respect of non-tenured teachers holding short-term supply teaching posts. Thus, the removal only in part of the difference of treatment between tenured teachers, employed on a permanent basis, and non-tenured teachers, employed under a fixed-term contract, means that some non-tenured teachers are still subject to a difference in treatment as compared with tenured teachers.
49 Second, the Court has held that it follows from the wording of clause 4(1) of the Framework Agreement that it is sufficient for the fixed-term workers in question to be treated in a less favourable manner than permanent workers in a comparable situation in order for those fixed-term workers to claim the benefit of that clause (judgment of 20 June 2019, Ustariz Aróstegui, C‑72/18, EU:C:2019:516, paragraph 31).
50 It follows that a difference in treatment for the purposes of clause 4(1) of the Framework Agreement cannot be excluded on the sole ground that that difference in treatment affects only some of the fixed-term workers, since otherwise the scope of protection against discrimination conferred by that provision, which must apply to all fixed-term workers in accordance with the case-law referred to in paragraph 39 above and as the European Commission has, in essence, also observed, would be unjustly reduced.
51 In those circumstances, national legislation, such as that at issue in the main proceedings, establishes a difference in treatment to the detriment of non-tenured teachers, employed under fixed-term contracts, holding short-term supply teaching posts in comparison with tenured teachers employed under permanent contracts.
52 Accordingly, it is necessary, in the second place, to examine whether those non-tenured teachers who hold short-term supply teaching posts are in a comparable situation to that of the tenured teachers concerned.
53 In that regard, 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 clause 3(2) and clause 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 (order of 18 May 2022, Ministero dell’istruzione (Electronic card), C‑450/21, EU:C:2022:411, paragraph 41, and judgment of 20 February 2024, X (Lack of reasons for termination), C‑715/20, EU:C:2024:139, paragraph 47 and the case-law cited).
54 In the present case, the referring court sets out several factors which support the view that non-tenured teachers holding short-term supply teaching posts, such as ZT, and tenured teachers are in a comparable situation.
55 That court observes that ZT held, during the academic year 2021/2022, several short-term supply teaching posts, covering periods ranging from several weeks to several months, during which she had the same tasks and duties as those performed by tenured teachers hired by the schools concerned. It adds that non-tenured teachers are subject to the same duties as regards the pupils and the same training obligations as the tenured teachers concerned, irrespective of the type of supply teaching post held.
56 It follows from those factors that the duties of the non-tenured teachers, such as ZT, carried out in the context of short-term supply teaching posts, appear, in principle, to be comparable to those of tenured teachers.
57 The comparable nature of their duties cannot, a priori, be called into question by the mere fact that, as the Italian Government essentially submits, it is only tenured teachers and non-tenured teachers who hold supply teaching posts for the duration of the academic year who, during the school holiday period between 30 June and 31 August, carry out ‘collegiate activities’, including remedial learning activities, which require specific skills.
58 First, according to that line of argument, ‘collegiate activities’ are not carried out by non-tenured teachers who hold supply teaching posts for the duration of the academic year until the end of teaching activities, namely until 30 June of the academic year, although those non-tenured teachers are entitled, in accordance with the national legislation as interpreted by the Corte suprema di cassazione (Supreme Court of Cassation), to the electronic card in question and appear therefore to be considered to be in a situation comparable to that of tenured teachers.
59 In that regard, it is not apparent, moreover, from the case file before the Court that those ‘collegiate activities’ acquire a dominant place in the context of the performance, by non-tenured teachers, who hold supply teaching posts for the duration of the academic year, of their duties, in particular in relation to their teaching activities.
60 Second, there is nothing to indicate that the possibly brief and ad-hoc nature of some of the supply work that non-tenured teachers, such as ZT, may be required to carry out, would be such, moreover, to alter substantially the duties of those teachers or even the nature of their teaching work or the conditions under which they carry it out. It is, however, for the referring court, which alone has all the relevant information, to carry out an assessment in that regard (see, to that effect, judgment of 30 November 2023,Ministero dell’Istruzione and INPS, C‑270/22, EU:C:2023:933, paragraph 68).
61 On that basis, it is not necessary for the referring court to take into account the total duration, actual or envisaged, of consecutive short-term supply teaching posts, precisely because the duration for which the fixed-term worker was engaged does not, as such, form part of the relevant factors for the purposes of the assessment, referred to in paragraph 53 above, of the comparable nature of the duties performed by the persons concerned.
62 Third, it is necessary to determine whether any difference in treatment between fixed-term workers and permanent workers in comparable situations may be justified on ‘objective grounds’ within the meaning of clause 4(1) of the Framework Agreement.
63 According to settled case-law, ‘objective grounds’, within the meaning of clause 4(1), requires the difference in treatment found to exist to be justified by the presence of precise and specific factors, characterising the employment condition to which they relate, in the specific context in which it occurs and on the basis of objective and transparent criteria, in order to ascertain that that difference in treatment in fact responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such fixed-term contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from the pursuit of a legitimate social policy objective of a Member State (order of 18 May 2022, Ministero dell’istruzione (Electronic card), C‑450/21, EU:C:2022:411, paragraph 45, and judgment of 20 February 2024, X (Lack of reasons for termination), C‑715/20, EU:C:2024:139, paragraph 59 and the case-law cited).
64 In the present case, it is apparent from the grounds of the order for reference, relating to the case-law of the Corte suprema di cassazione (Supreme Court of Cassation) referred to in paragraphs 15 to 18 above, that the reason for the difference in treatment at issue in the main proceedings, in the objective pursued by the electronic card in question, is, in accordance with a discretionary choice made by the Italian legislature, to support only teaching provided on an annual basis and to consider that the teaching duties performed by non-tenured teachers responsible for short-term supply teaching posts do not fall within that framework.
65 The Italian Government adds, in that context, that that difference of treatment is due to the particular nature of the tasks performed in the context of short-term supply teaching posts, since the teachers concerned may be recruited even for a small number of hours per week and in several different schools to teach subjects which are often different, outside of the annual timetable. The Italian Government also relies on budgetary considerations.
66 In that regard, it must be borne in mind that the Member States enjoy a broad discretion in their choice, not only to pursue a particular aim in the field of social and employment policy, but also in the definition of measures capable of achieving it (judgment of 17 March 2021, Consulmarketing, C‑652/19, EU:C:2021:208, paragraph 63 and the case-law cited).
67 However, first, assuming that the national legislation at issue in the main proceedings does in fact have the objective of specifically and exclusively supporting school teaching organised on an annual basis, it is still necessary that the difference in treatment between tenured teachers, who have a permanent employment relationship, and non-tenured teachers, who hold short-term supply teaching posts, in the context of a fixed-term employment relationship, meets a genuine need and is not, in reality, the result of a choice but rather is similar to a criterion which, in a general and abstract manner, refers exclusively to the duration itself of the employment (see, to that effect, judgment of 20 February 2024, X (Lack of reasons for termination), C‑715/20, EU:C:2024:139, paragraph 63), which it is for the referring court to verify.
68 If the mere temporary nature of an employment relationship were to be held to be sufficient to justify a difference in treatment 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 that is disadvantageous to fixed-term workers (judgment of 20 June 2019, Ustariz Aróstegui, C‑72/18, EU:C:2019:516, paragraph 41 and the case-law cited and order of 18 May 2022, Ministero dell’istruzione (Electronic card), C‑450/21, EU:C:2022:411, paragraph 46).
69 Second, and in any event, in addition to the fact that that difference in treatment must respond to a genuine need, it must be such as to make it possible to attain the objective pursued and be necessary in order to do so. Moreover, that objective must be pursued in a consistent and systematic manner (judgment of 20 February 2024, X (Lack of reasons for termination), C‑715/20, EU:C:2024:139, paragraph 65 and the case-law cited).
70 In the present case, it is apparent from the order for reference that the tasks entrusted to non-tenured teachers responsible for short-term supply teaching posts are not substantially different from those of tenured teachers, as has already been stated in paragraph 55 above. The referring court observes, moreover, that those non-tenured teachers also participate in ‘implementing a phase of education and learning’.
71 It follows that, contrary to what the Italian Government submits, non-tenured teachers responsible for short-term supply teaching posts seem to carry out a teaching activity, like that of the tenured teachers whom they replace, which forms part of the annual teaching timetable of the schools concerned, for the duration of their appointment. Accordingly, as the Commission has also observed, it appears inconsistent, in the light of the objective of improving the quality of annual teaching, to exclude from the benefit of the electronic card in question, teachers responsible for short-term teaching posts.
72 In that context, it is also important to note, as regards the characteristics of the employment condition at issue in the main proceedings, that, according to the referring court, taking into account the wording of Article 1(121) of Law No 107/2015, the electronic card in question may be used to purchase a wide range of goods and services contributing, in general, to teaching activity, and not only to purchase goods and services specifically linked to the particular tasks that may be reserved for tenured teachers.
73 Moreover, the difference in treatment at issue in the main proceedings appears to go beyond what is necessary to achieve the objective pursued, in so far as all tenured teachers are entitled to benefit from the grant of the electronic card in question, irrespective of whether they actually carry out an activity that may fall within the annual context of teaching. In any case, as the Commission noted, teachers holding short-term supply teaching posts could even have more significant training needs where they are at the beginning of their professional activity or are asked to teach different subjects in different schools.
74 As regards the need to respect budgetary limits, put forward by the Italian Government, it is sufficient to point out that whilst budgetary considerations may underlie a Member State’s choice of social policy and influence the nature or scope of the measures which it wishes to adopt, they do not in themselves constitute an aim pursued by that policy and, therefore, cannot justify the application of national legislation resulting in a difference in treatment to the detriment of fixed-term workers (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 110 and the case-law cited).
75 Lastly, it must be stated that the national legislation at issue in the main proceedings does not appear to apply the principle of pro rata temporis, as referred to in clause 4(2) of the Framework Agreement and by the referring court, since the amount of the annual allowance granted in the form of the electronic card in question is fixed and does not depend on the actual duration of the periods during which the teachers concerned worked.
76 In those circumstances, the national legislation at issue in the main proceedings does not appear to comply with the requirements referred to in paragraph 69 above, which is, however, ultimately for the referring court to assess.
77 In the light of all of the foregoing considerations, the answer to the questions referred is that clause 4(1) of the Framework Agreement must be interpreted as precluding national legislation, as interpreted by a national supreme court, which reserves the benefit of an electronic card with a nominal value of EUR 500 per year, enabling the purchase of different goods and services intended to support the in-service training of teachers, to tenured teachers and non-tenured teachers who hold supply teaching posts for the duration of the academic year, to the exclusion of non-tenured teachers who hold short-term supply teaching posts, unless that exclusion is justified on objective grounds, within the meaning of that provision. The mere fact that the activity of the latter teachers is not intended to last until the end of the academic year does not constitute such an objective ground.
78 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.