Request for a preliminary ruling from the Giudice di pace di Bologna (Italy) lodged on 22 October 2018 — UX v Governo della Repubblica italiana

(Case C-658/18)

Language of the case: Italian

Referring court

Giudice di pace di Bologna

Parties to the main proceedings

Applicant: UX

Defendant: Governo della Repubblica italiana

Questions referred

Does a giudice di pace (justice of the peace), 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 in Wilson (EU:C:2006:587, paragraphs 47 to 53), Associaçâo Sindical dos Juizes Portugueses (EU:C:2018:117, paragraphs 32 and 41 to 45), and Minister for Justice and Equality (EU:C:2018:586, paragraphs 50 to 54) — under national law, giudici di pace 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?

If question 1 is answered in the affirmative, is the work carried out by the applicant giudice di pace covered by the term ‘fixed-term worker’ for the purpose of Articles 1(3) and 7 of Directive 2003/88, 1 read in conjunction with Clause 2 of the framework agreement on fixed-term work implemented by Directive 1999/70/EC 2 and Article 31(2) of the Charter of Fundamental Rights of the European Union, as interpreted by the Court of Justice in its judgments in O’ Brien (EU:C:2012:110) and King (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 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 on fixed-term work implemented by Directive 1999/70/EC?

If questions 1 and 2 are answered in the affirmative, is Article 47 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 267 TFEU and in the light of the case-law of the Court of Justice of the European Union concerning the liability of the Italian State for manifest infringement of Community law by courts adjudicating at last instance in the judgments in Köbler (EU:C:2003:513), Traghetti del Mediterraneo (EU:C:2006:391) and Commission v Italy (EU:C:2011:775), inconsistent with Article 2(3) and (3a) of Law No 117 of 13 April 1988 on the civil liability of judges, 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 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 Articles 1(3) and 7 of Directive 2003/88, Clauses 2 and 4 of the framework agreement on fixed-term work implemented by Directive 1999/70/EC, and Article 31(2) of the Charter of Fundamental Rights of the European Union?

In accordance with Articles 2, 4(2) and (3), 6(1) 9, 10(1) and 17(1) of the Treaty on European Union, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, may the conduct of the European Commission constitute a serious infringement of the law such as to provide the basis for an action concerning non-contractual liability brought against the European Union, as provided for in the second paragraph of Article 340 TFEU, where that institution refuses to initiate infringement proceedings or to bring before the Court of Justice … an action for failure to fulfil obligations based on a Member State’s infringement of EU law where, as in the present case, the following circumstances pertain:

by Communication DG EMPL/B2/DA-MAT/sk (2016), received by the Italian public authorities on 10 June 2016, the Commission concluded EU Pilot case 7779/15/EMPL with a finding against the Member State and gave notice of the impending initiation of infringement proceedings, having established the incompatibility with EU law of national legislation applicable to the services provided by magistrati onorari (honorary or lay judges) in so far as concerns the misuse of successive fixed-term contracts, unequal pay by comparison with that of magistrati ordinari or professionali (ordinary or professional judges), annual leave and maternity leave, albeit that such proceedings were never initiated;

by its communication of 21 December 2016, C(2016) 8600 final, the Commission stated that it remained within its discretion to decide whether or not and, if so, when to initiate infringement proceedings or bring a case before the Court of Justice, in whose case-law it is acknowledged that individuals are incapable of succeeding in actions against the Commission for refusal to initiate infringement proceedings?

Independently of the answers to the first four questions, may Articles 268 and 274 TFEU and the second paragraph of Article 340 TFEU be interpreted, in the light of Articles 2, 4(2) and (3), 6(1), 9, 10(1) and 17(1) of the Treaty on European Union, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, as meaning that an action concerning non-contractual liability brought against the European Union will not fall outside the jurisdiction of a national court in a case, such as the present case, in which the failure to apply within the national legal system the EU law which guarantees the principle of the independence and impartiality of courts has been determined to result partly from the Commission’s serious breach of the duties and obligations which arise from its role as guardian of the Treaties, and partly from the Commission’s discretion to decide whether or not and, if so, when to initiate infringement proceedings or bring a case before the Court of Justice, in whose case-law it is acknowledged that individuals are incapable of succeeding in actions against the Commission for refusal to initiate infringement proceedings, which thus renders ineffective the Court’s exclusive jurisdiction to decide disputes concerning the non-contractual liability of the European Union?

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1     Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9).

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).