Provisional text
JUDGMENT OF THE COURT (Sixth Chamber)
27 June 2024 (*)
(Reference for a preliminary ruling – Social policy – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Clauses 2 and 4 – Principle of non-discrimination – Equal treatment in employment and occupation – Honorary members of the judiciary and ordinary members of the judiciary – Clause 5 – Measures intended to penalise improper use of fixed-term contracts – Directive 2003/88/EC – Article 7 – Paid annual leave)
In Case C‑41/23 Peigli, (i)
REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 26 January 2023, received at the Court on the same day, in the proceedings
AV,
BT,
CV,
DW
v
Ministero della Giustizia,
THE COURT (Sixth Chamber),
composed of T. von Danwitz, President of the Chamber, A. Arabadjiev (Rapporteur), President of the First Chamber, acting as Judge of the Sixth Chamber, and I. Ziemele, Judge,
Advocate General: J. Kokott,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– AV, BT, CV and DW, by G. Graziani and C. Ingrillì, avvocati,
– the Italian Government, by G. Palmieri, acting as Agent, and by E. De Bonis and F. Sclafani, avvocati dello Stato,
– the European Commission, by D. Recchia and F. van Schaik, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 7 of 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), as well as Clauses 4 and 5 of the framework agreement on fixed-term work, concluded on 18 March 1999 (‘the framework agreement’), set out in the annex 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, on the one hand, AV, BT, CV and DW, who are honorary members of the judiciary, and, on the other hand, the Ministero della Giustizia (Ministry of Justice, Italy) concerning the request of those members of the judiciary to receive the same economic and legal treatment as that applicable to ordinary members of the judiciary.
Legal context
European Union law
The framework agreement
3 Clause 2 of the framework agreement, entitled ‘Scope’, provides, in paragraph 1 thereof:
‘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.’
4 Clause 4 of the framework agreement, entitled ‘Principle of non-discrimination’, provides:
‘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.
…’
5 Clause 5 of the framework agreement, entitled ‘Measures to prevent abuse’, states:
‘1. To prevent abuse arising from the use of successive fixed-term employment contracts or relationships, Member States, after consultation with social partners in accordance with national law, collective agreements or practice, and/or the social partners, shall, where there are no equivalent legal measures to prevent abuse, introduce in a manner which takes account of the needs of specific sectors and/or categories of workers, one or more of the following measures:
(a) objective reasons justifying the renewal of such contracts or relationships;
(b) the maximum total duration of successive fixed-term employment contracts or relationships;
(c) the number of renewals of such contracts or relationships.
2. Member States after consultation with the social partners and/or the social partners shall, where appropriate, determine under what conditions fixed-term employment contracts or relationships:
(a) shall be regarded as “successive”;
(b) shall be deemed to be contracts or relationships of indefinite duration.’
Directive 2003/88
6 Article 7 of Directive 2003/88, entitled ‘Annual leave’, provides:
‘1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.
2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.’
Italian law
7 Article 106 of the Constitution provides:
‘Members of the judiciary shall be appointed by means of competition.
The law governing the judicial system may provide for the appointment, including by election, of honorary members of the judiciary for the performance of all functions carried out by a single judge.
…’
8 Regio decreto n. 12 – Ordinamento giudiziario (Royal Decree No 12 on the judicial system) of 30 January 1941 (GURI No 28 of 4 February 1941), in the version applicable to the facts in the main proceedings (‘Royal Decree No 12’), provided in Article 4(1) and (2):
‘1. The judiciary is made up of trainees, judges of all levels of tribunal and court and members of the public prosecution service.
2. The following shall belong to the judiciary as honorary members of the judiciary: Judge-Conciliators, deputy conciliators, honorary district court judges, honorary deputy public prosecutors, experts of the ordinary court and of the Juvenile Division of the Court of Appeal and, in addition, councillors of the Supreme Court of Cassation and experts of the labour courts acting in their judicial role.’
9 Article 42 bis of that decree provided that ‘honorary judges may be assigned to the ordinary courts’.
10 Under Article 42 ter of that decree:
‘Honorary district court judges shall be appointed by order of the Minister for Justice, in accordance with a resolution of the Supreme Council of the Judiciary, on a proposal of the judicial council with territorial jurisdiction in its composition provided for in Article 4(1) of [legge n. 374 – Istituzione del giudice di pace (Law No 374 establishing the office of magistrate) of 21 November 1991 (GURI No 278 of 27 November 1991)]’
11 Article 42 quinquies of Royal Decree No 12 provided that ‘honorary district court judges shall be appointed for a term of three years’ and that ‘upon expiry of that term, the office holder may be reappointed only once’. It is apparent from the order for reference that a series of provisions adopted from 2005 onwards introduced exceptions to the possibility of reappointing honorary judges only once.
12 Article 42 sexies of that decree provided:
‘An honorary district court judge shall cease his or her office:
(a) when he or she attains the age of 72;
(b) at the end of the term for which he or she was appointed or reappointed;
…’
13 Article 42 septies of that decree provided:
‘Honorary district court judges shall observe, mutatis mutandis, the obligations laid down for ordinary members of the judiciary. Honorary judges shall be entitled only to the allowances and other rights expressly conferred by law as regards specifically the honorary service relationship.’
14 Article 43 bis of that decree stated:
‘Ordinary and honorary judges at the ordinary courts shall carry out the judicial work entrusted to them by the president of the court or, if the court is made up of chambers, by the president or other officer who presides over the chamber.
Honorary district court judges may preside over hearings only in the event of the absence or incapacity of ordinary judges.
In the context of the allocation arrangements referred to in the first paragraph, honorary judges are not to be entrusted with:
(a) in civil matters, the handling of precautionary and possessory proceedings, with the exception of claims brought in the main proceedings or in the petitory action;
(b) in criminal matters, the duties of the judge in charge of the criminal investigation and of the preliminary hearing judge, as well as the handling of proceedings other than those provided for in Article 550 of the Code of Criminal Procedure.’
15 Article 71 of Royal Decree No 12 provided:
‘Honorary members of the judiciary may be assigned to the public prosecutors’ offices attached to the ordinary courts as deputy prosecutors in order to perform the duties set out in Article 72 and other duties specially assigned to them by law.
Honorary deputy prosecutors are appointed in the same way as honorary district court judges. The provisions of Articles 42 ter, 42 quarter, 42 quinquies and 42 sexies are applicable to them.’
16 Article 72 of that decree provided:
‘In proceedings in which the court is ruling in single judge formation, the functions of the public prosecution service may be exercised, by nominative delegation of the public prosecutor to the ordinary court:
(a) at hearings, by trainee prosecutors, by honorary deputy prosecutors assigned to the competent service, by staff members that have been retired for no more than two years and that served as a judicial police officer within the past five years or by law graduates in their second year of the two-year specialisation school for legal professions referred to in Article 16 of [decreto legislativo n. 398 – Modifica alla disciplina del concorso per uditore giudiziario e norme sulle scuole di specializzazione per le professioni legali, a norma dell’articolo 17, commi 113 e 114, della legge 15 maggio 1997, no 127 (legislative decree No 398 amending the rules of the competition for legal trainees and on specialisation schools for legal professionals, in accordance with Article 17(113) and (114) of Law No 127) of 15 May 1997 (GURI No 269 of 18 November 1997)];
(b) at hearings to validate arrest or detention, by trainee prosecutors who have completed a traineeship of at least six months, and, only for the purpose of validating an arrest in expedited proceedings, by honorary deputy prosecutors that have been assigned to the competent service for at least six months;
(c) in respect of applications for the issue of a penalty order pursuant to Article 459(1) and Article 565 of the Code of Criminal Procedure, by honorary deputy prosecutors assigned to the competent service;
(d) in the interim in camera procedures referred to in Article 127 of the Code of Criminal Procedure, subject to the provisions in point (b), in enforcement proceedings for the purpose of the intervention referred to in Article 655(2) of that same code, and in opposition proceedings against orders of the public prosecution office on the payment of experts’, technical advisors’, interpreters’ and translators’ fees under Article 11 of [legge n. 319 – Compensi spettanti ai periti, ai consulenti tecnici, interpreti e traduttori per le operazioni eseguite a richiesta dell’autorità giudiziaria (Law No 319 on fees payable to experts, technical advisors, interpreters and translators for transactions carried out on the request of the judicial authority) of 8 July 1980 (GURI No 192 of 15 July 1980), by honorary deputy prosecutors assigned to the competent service;
(e) in civil proceedings, by trainee prosecutors, honorary deputy prosecutors assigned to the competent service or the law graduates referred to in point (a).
In criminal matters, the criterion of not delegating the functions of the public prosecution service is also applied in relation to proceedings relating to offences other than those in respect of which prosecution is brought by direct summons in accordance with the provisions of Article 550 of the Code of Criminal Procedure.’
17 By decreto legislativo del 13 luglio 2017, n. 116 – Riforma organica della magistratura onoraria e altre disposizioni sui giudici di pace, nonché disciplina transitoria relativa ai magistrati onorari in servizio, a norma della legge 28 aprile 2016, n. 57 (Legislative decree No 116 of 13 July 2017 – Organic reform of the honorary judiciary and other provisions relating to magistrates, and transitional provisions relating to serving honorary members of the judiciary, in accordance with Law No 57 of 28 April 2016) (GURI No 177 of 31 July 2017, p. 1; ‘Legislative Decree No 116’), the Italian legislature repealed the provisions of Royal Decree No 12 set out in paragraphs 8 to 16 of the present judgment.
18 Article 29 of Legislative Decree No 116, as amended by legge n. 234 – Bilancio di previsione dello Stato per l’anno finanziario 2022 e bilancio pluriennale per il triennio 2022-2024 (Law No 234 on the State Budget for the 2022 budgetary year and the 2022-2024 multiannual budget), of 30 December 2021 (GURI No 310 of 31 December 2021, p. 1), provides:
‘1. Honorary members of the judiciary in service on the date on which this legislative decree enters into force may be confirmed in their posts on request until the age of 70.
2. Honorary members of the judiciary in service on the date when this legislative decree enters into force who do not qualify for confirmation, either because they did not submit an application or because they did not pass the assessment procedure referred to in paragraph 3, shall be entitled, subject to their right to refuse, to a payment of EUR 2 500 before tax for each year of service during which the member of the judiciary has been engaged in hearings for at least 80 days, and to a payment of EUR 1 500 before tax for each year of service during which the member of the judiciary has been engaged in hearings for fewer than 80 days, and in any case up to a total per capita limit of EUR 50 000 before tax. For the purpose of calculating the payment due under the preceding sentence, service for periods exceeding six months shall be deemed equal to one year. Receipt of the payment entails a waiver of all further claims of any nature whatsoever arising from previous service as an honorary member of the judiciary.
3. For the purposes of the confirmation referred to in paragraph 1, the Supreme Council of the Judiciary shall, by decision, organise three separate assessment procedures to be carried out annually during the three-year period 2022-2024. Respectively, they shall concern serving honorary members of the judiciary who, at the date of entry into force of this decree have completed:
(a) more than 16 years of service;
(b) between 12 and 16 years of service;
(c) less than 12 years of service.
…
5. The application to participate in the assessment procedures referred to in paragraph 3 entails the waiver of all further claims of any nature whatsoever arising from previous service as an honorary member of the judiciary, without prejudice to the right to the payment referred to in paragraph 2 in the event of non-confirmation.
…’
The dispute in the main proceedings and the questions referred for a preliminary ruling
19 AV, BT, CV and DW are honorary members of the Italian judiciary. This category of members of the judiciary is made up of legal practitioners who perform judicial duties outside of their main professional activity, for a theoretically limited period, and who are not ordinary members of the judiciary. Specifically, the applicants in the main proceedings carry out the duties of procuratore onorario aggiunto (honorary deputy prosecutor) and of giudice onorario (honorary judge).
20 After having performed their duties for more than 16 years, the applicants brought, on 23 March 2016, an action before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), which is the court of first instance in the main proceedings, requesting, inter alia, that they be accorded the same economic and legal treatment as that applicable to ordinary members of the judiciary.
21 That action was dismissed by a judgment of that court of 1 September 2021 and the applicants in the main proceedings appealed against that judgment to the Consiglio di Stato (Council of State, Italy), the referring court.
22 The referring court notes, on the one hand, that the regime applicable to ordinary members of the judiciary is not automatically transposable to honorary members of the judiciary, on account of the differences, resulting from the relevant provisions of Royal Decree No 12, characterising the duties, the conditions of employment and the type of relationship between those members of the judiciary and the public administration.
23 In particular, the situation of honorary members of the judiciary differs from that of ordinary members of the judiciary in several essential respects, namely their method of recruitment, the non-exclusive and non-continuous nature of their judicial activity, the rules regarding incompatibility of activities, the duration of the employment relationship, the limits of their judicial activity, their remuneration and social security entitlements, and the nature of their relationship with the public administration.
24 On the other hand, the referring court nevertheless notes that honorary members of the judiciary perform real and genuine services that are neither purely marginal nor ancillary and for which they receive compensation representing remuneration, with the result that, according to the case-law of the Court, they come within the concept of ‘fixed-term worker’ within the meaning of Clause 2(1) of the framework agreement.
25 In that regard, that court expresses doubts as to the compatibility with EU law of the regime applicable to the honorary members of the judiciary in the main proceedings, in that, first, that regime deprives those members of the judiciary of the possibility of benefiting from the right to paid leave and from any form of social protection.
26 Second, that court is uncertain whether that regime is compatible with EU law since various national legislative acts derogating from Article 42 quinquies of Royal Decree No 12 have allowed successive renewals of the employment relationship of honorary members of the judiciary and, thus, an extension of the duration of their employment relationship. In particular, it asks whether the grounds relied on by the Italian legislature to justify successive renewals of the employment relationships of honorary members of the judiciary, namely, in particular, the need to await the structural reform of the honorary judiciary and to ensure, in the meantime, the continuity of the administration of justice, may be regarded as objective reasons within the meaning of Clause 5(1)(a) of the framework agreement. In that context, the referring court also raises the question of whether it is appropriate to take into account the favourable compensatory effects for the persons concerned which arise from the derogations from the rule laid down in Article 42 quinquies of Royal Decree No 12, since, as a result of those derogations, the appointments of honorary members of the judiciary have been extended almost automatically.
27 In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Should Article 7 of Directive 2003/88 and Clause 4 of the framework agreement … be interpreted as precluding national legislation which does not provide, in respect of giudici onorari di Tribunale ([honorary] district court judges) and vice procuratori onorari della Repubblica ([honorary] deputy public prosecutors), any entitlement to remuneration during the non-working holiday period, or to compulsory social security and insurance protection against workplace accidents and illnesses?
(2) Should Clause 5 of the framework agreement … be interpreted as precluding national legislation under which the fixed-term employment relationship of giudici onorari ([honorary] judges) – which can be classified as a service relationship and not as an employment relationship with a public authority, and which is based on an initial appointment and a single subsequent reappointment – may be extended several times by means of laws at State level, in the absence of effective and dissuasive penalties and without the possibility of transforming those relationships into employment contracts of indefinite duration with a public authority, in a factual situation which could have produced compensatory favourable legal effects for the individuals concerned, as their appointments have been extended in an essentially automatic manner for a further period of time?’
Consideration of the questions referred
Admissibility
28 According to the Italian Government, the questions referred for a preliminary ruling are inadmissible.
29 As regards the first question, the Italian Government points out that the Consiglio di Stato (Council of State), in the order for reference, states that the difference in treatment between the regime applicable to ordinary members of the judiciary and that applicable to honorary members of the judiciary, as regards the right to paid leave and the right to a social protection and compulsory insurance scheme covering accidents at work and occupational diseases, was eliminated following the entry into force of Legislative Decree No 116, and that it is possible that the conditions for the application by analogy of that legislative decree to the relationships which are the subject of the main proceedings are satisfied.
30 Thus, before making a reference to the Court for a preliminary ruling, that court should have analysed in greater detail the possibility of applying Legislative Decree No 116 by analogy in the context of the dispute in the main proceedings. The mere reference to that possible applicability does not explain the link which, according to that court, exists between the provisions of EU law relied on and the relevant provisions of Italian law.
31 As regards the second question, the Italian Government is of the view that the stabilisation of the employment relationships of honorary members of the judiciary, resulting from the amendment of Article 29 of Legislative Decree No 116, should have been taken into account by the referring court before submitting the present reference for a preliminary ruling to the Court of Justice. That stabilisation renders the Italian legislation concerning honorary members of the judiciary compatible with Clauses 4 and 5 of the framework agreement, which makes the second question hypothetical.
32 In that connection, it must be borne in mind that 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, which enjoy a presumption of relevance. Therefore, since the question referred concerns the interpretation or validity of a rule of EU law, the Court is, in principle, required to give a ruling, unless it is quite obvious that the interpretation sought bears no relation to the actual facts of the main action or its object, 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 question submitted to it (judgment of 27 April 2023, AxFina Hungary, C‑705/21, EU:C:2023:352, paragraph 27).
33 In addition, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has jurisdiction to interpret and apply national law, while the Court of Justice is empowered only to give rulings on the interpretation or the validity of an EU provision on the basis of the facts which the national court puts before it (judgment of 27 April 2023, AxFina Hungary, C‑705/21, EU:C:2023:352, paragraph 28).
34 In the present case, it must be noted that the referring court has clearly set out the factual and legal context in which the questions referred for a preliminary ruling arise, in the context of a dispute which does not appear to be hypothetical or fictitious. Furthermore, it expressly stated that Legislative Decree No 116 was not applicable, ratione temporis, to the dispute in the main proceedings.
35 Moreover, in accordance with the case-law referred to in paragraphs 32 and 33 of the present judgment, it is not for the Court to determine whether the referring court, which has set out the factual and legal material necessary to give a useful answer to the questions referred for a preliminary ruling, should have carried out a more detailed analysis of the national legal framework, which it is responsible for establishing, before making the present reference for a preliminary ruling to the Court.
36 Accordingly, the questions referred for a preliminary ruling are admissible.
Substance
The first question
37 By its first question, the referring court asks, in essence, whether Article 7 of Directive 2003/88 and Clause 4 of the framework agreement should be interpreted as precluding national legislation which, in contrast to what it provides in respect of ordinary members of the judiciary, does not give honorary members of the judiciary any entitlement to remuneration during the holiday period when judicial activity is suspended, or to the benefit of compulsory social security and insurance protection against workplace accidents and illnesses.
38 It should be recalled that Clause 4(1) of the framework agreement prohibits, in respect of employment conditions, fixed-term workers being treated in a less favourable manner than comparable permanent workers, on the sole ground that they are employed on a fixed-term contract, unless different treatment is justified on objective grounds (judgment of 7 April 2022, Ministero della Giustizia and Others (Status of Italian magistrates), C‑236/20, EU:C:2022:263, paragraph 32).
39 In the first place, it should be noted that the Court has already held that the concept of ‘fixed-term worker’, referred to in Clause 2(1) of the framework agreement, must be interpreted as covering a giudice di pace (magistrate) appointed for a limited period, who, in the context of his or her duties, performs real and genuine services which are neither purely marginal nor ancillary, and for which he or she receives compensation representing remuneration (judgment of 7 April 2022, Ministero della Giustizia and Others (Status of Italian magistrates), C‑236/20, EU:C:2022:263, paragraph 30).
40 In so far as it is apparent from the order for reference that magistrates are ‘honorary’ members of the Italian judiciary, that case-law may also apply to the members of the judiciary in the main proceedings. Those members of the judiciary may thus, in principle, come within the concept of ‘fixed-term worker’ referred to in Clause 2(1) of the framework agreement, provided that they perform real and genuine services that are neither purely marginal nor ancillary and for which they receive compensation representing remuneration, which it is for the referring court to determine.
41 In the second place, as regards the concept of ‘employment conditions’ within the meaning of Clause 4 of that framework agreement, the Court has previously held that those conditions encompass conditions relating to remuneration and to pensions which are consequent on the employment relationship, to the exclusion of conditions relating to pensions arising under a statutory social security scheme. The Court has also held that the decisive criterion for determining whether a measure comes within the scope of that concept is, precisely, the criterion of employment, that is to say the employment relationship between a worker and his or her employer (see, to that effect, judgments of 20 December 2017, Vega González, C‑158/16, EU:C:2017:1014, paragraph 30, and of 7 April 2022, Ministero della Giustizia and Others (Status of Italian magistrates), C‑236/20, EU:C:2022:263, paragraph 36).
42 As a result, a social protection and compulsory insurance scheme covering accidents at work and occupational diseases, such as that applicable to ordinary members of the judiciary, may, if it is dependent on the employment relationship of those members of the judiciary, come within the concept of ‘employment conditions’ within the meaning of Clause 4 of the framework agreement, which is a matter for the referring court to ascertain.
43 Furthermore, as regards the payment of an allowance during leave in the event of suspension of judicial activity, such as that received by ordinary members of the judiciary, it should be recalled that the ‘employment conditions’ referred to in Clause 4 of the framework agreement include the right to paid annual leave (see, to that effect, judgment of 7 April 2022, Ministero della Giustizia and Others (Status of Italian magistrates), C‑236/20, EU:C:2022:263, paragraph 38).
44 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 16 July 2020, Governo della Repubblica italiana (Status of Italian magistrates), C‑658/18, EU:C:2020:572, paragraph 141).
45 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 (judgment of 16 July 2020, Governo della Repubblica italiana (Status of Italian magistrates), C‑658/18, EU:C:2020:572, paragraph 143).
46 In the present case, first, the referring court refers to a number of differences between the legal and economic regimes applicable to the members of the judiciary in question, and draws attention, in particular, to the rules governing the appointment of honorary members of the judiciary, the theoretically temporary duration of their employment relationship, the type of cases which those members of the judiciary are authorised to deal with and their specific remuneration.
47 Second, it is apparent from the order for reference that honorary and ordinary members of the judiciary have the same obligations and responsibilities and are subject to the same checks. In addition, it is common ground that honorary members of the judiciary carry out a judicial activity.
48 In those circumstances, it is for the referring court, which alone has jurisdiction to assess the facts, to determine whether honorary members of the judiciary such as the applicants in the main proceedings are in a situation comparable to that of ordinary members of the judiciary (see, to that effect, judgment of 16 July 2020, Governo della Repubblica italiana (Status of Italian Magistrates), C‑658/18, EU:C:2020:572, paragraph 148 and the case-law cited).
49 In that regard, it should be noted that the difference in treatment between ordinary and honorary members of the judiciary, invoked by the applicants in the main proceedings, lies in the fact that, compared with ordinary members of the judiciary who carry out duties comparable to those of honorary members of the judiciary, the latter are deprived both of any compensation during the holiday period when judicial activity is suspended and of the benefit of the social protection and compulsory insurance scheme.
50 If it is established that honorary members of the judiciary such as the applicants in the main proceedings are in a situation comparable to that of ordinary members of the judiciary, it is necessary to ascertain whether there are objective reasons justifying such different treatment.
51 In that regard, it must be recalled that, according to settled case-law, the unequal treatment found to exist must 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 (judgment of 7 April 2022, Ministero della Giustizia and Others (Status of Italian magistrates), C‑236/20, EU:C:2022:263, paragraph 41 and the case-law cited).
52 It is apparent from the case-law of the Court, first, that the objectives pursued by the Italian legislature, of reflecting the differences in professional practice between honorary and ordinary members of the judiciary may 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. Second, the Court found that the differences between the recruitment procedures for honorary and ordinary members of the judiciary, notably the special importance attributed within the national judicial order, and, more particularly, by the first paragraph of Article 106 of the Italian Constitution, to the competitions specifically designed for the recruitment of ordinary members of the judiciary, appear to indicate that the tasks that the latter must carry out are of a particular nature and the qualifications required for the performance of those tasks are of a different level (see, by analogy, judgment of 7 April 2022, Ministero della Giustizia and Others (Status of Italian magistrates), C‑236/20, EU:C:2022:263, paragraphs 45 and 46).
53 In those circumstances, the existence of an entrance competition specifically designed for the recruitment of ordinary members of the judiciary, which is not intrinsic to the appointment of honorary members of the judiciary, allows the latter to be excluded from entitlement to the benefit of all the rights afforded to ordinary members of the judiciary (see, by analogy, judgment of 7 April 2022, Ministero della Giustizia and Others (Status of Italian magistrates), C‑236/20, EU:C:2022:263, paragraph 47).
54 However, although certain differences in treatment may be justified by the differences in the qualifications required and by the nature of the duties entrusted to ordinary members of the judiciary, complete exclusion of honorary members of the judiciary from any right to paid leave and from all forms of pension and social welfare protection cannot be accepted in the light of Clause 4 of the framework agreement (see, by analogy, judgment of 7 April 2022, Ministero della Giustizia and Others (Status of Italian magistrates), C‑236/20, EU:C:2022:263, paragraph 53).
55 As concerns, more specifically, the right to leave, it should be recalled that, in accordance with Article 7(1) of Directive 2003/88, ‘Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks’.
56 Moreover, it is apparent from the wording of Directive 2003/88 and from the Court’s case-law that, although it is for the Member States to lay down the conditions for the exercise and implementation of the right to paid annual leave, they must not make the very existence of that right, which derives directly from that directive, subject to any preconditions whatsoever (judgment of 7 April 2022, Ministero della Giustizia and Others (Status of Italian magistrates), C‑236/20, EU:C:2022:263, paragraph 50 and the case-law cited).
57 Lastly, it should be borne in mind that, in accordance with Clause 4(2) of the framework agreement, where appropriate, the pro rata temporis principle applies.
58 In those circumstances, it does not appear that the different treatment referred to in paragraph 49 above responds to a genuine need, is appropriate for the purpose of attaining the objective pursued and is necessary for that purpose, matters which it is for the referring court to verify.
59 In the light of all those considerations, the answer to the first question is that Article 7 of Directive 2003/88 and Clause 4 of the framework agreement should be interpreted as precluding national legislation which, in contrast to what it provides in respect of ordinary members of the judiciary, does not give honorary members of the judiciary in a comparable situation any entitlement to remuneration during the holiday period when judicial activity is suspended, or to the benefit of compulsory social security and insurance protection against workplace accidents and illnesses.
The second question
60 By the second question the referring court asks, in essence, whether Clause 5 of the framework agreement must be interpreted as precluding national legislation under which the employment relationship of honorary members of the judiciary may be renewed successively without there being any provision, in order to limit abuse of such renewals, for effective and dissuasive penalties or for the conversion of the employment relationship of those members of the judiciary into an employment relationship of indefinite duration.
61 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 a manner that is effective and binding, where domestic law does not include equivalent legal measures. The measures listed in clause 5(1)(a) to (c), of which there are three, relate, respectively, to objective reasons justifying the renewal of such contracts or relationships, the maximum total duration of successive fixed-term employment contracts or relationships, and the number of renewals of such contracts or relationships (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 74).
62 It is settled case-law that, although the Member States have discretion in respect of measures to prevent abuse as regards such renewals, they cannot, however, compromise the objective or the practical effect of the framework agreement (see, to that effect, judgment of 7 April 2022, Ministero della Giustizia and Others (Status of Italian magistrates), C‑236/20, EU:C:2022:263, paragraph 58).
63 In particular, the concept of ‘objective reasons’, within the meaning of Clause 5(1)(a) of the framework agreement, must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particular context, of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such 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 (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 87).
64 Against that background, the renewal of fixed-term employment contracts or relationships in order to cover needs which are, in fact, not temporary in nature but, on the contrary, fixed and permanent is not justified for the purposes of Clause 5(1)(a) of the framework agreement. Such use of fixed-term employment contracts or relationships conflicts directly with the premiss on which the framework agreement is founded, namely that employment contracts of indefinite duration are the general form of employment relationship, even though fixed-term employment contracts are a feature of employment in certain sectors or in respect of certain occupations and activities (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 100 and the case-law cited).
65 In order for Clause 5(1)(a) of the framework agreement to be complied with, it must therefore be specifically verified that the renewal of successive fixed-term employment contracts or relationships is intended to cover temporary needs and that a national provision is not, in fact, being used to meet fixed and permanent staffing needs of the employer (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 101 and the case-law cited).
66 In the present case, it is apparent from the order for reference that the derogations introduced by the Italian legislation from the rule laid down in Article 42 quinquies of Royal Decree No 12, according to which the honorary member of the judiciary is appointed for a period of three years and the employment relationship may be renewed only once, have made it possible to renew the employment relationship of the applicants in the main proceedings on several occasions. Furthermore, it does not follow from the information available to the Court that that legislation provided for ‘equivalent legal measures’, within the meaning of Clause 5(1) of the framework agreement, intended to prevent abuse arising from the use of successive fixed-term employment contracts or relationships or the possibility of converting the employment relationship of honorary members of the judiciary such as the applicants in the main proceedings into an employment relationship of indefinite duration.
67 According to the Italian Government, those derogations were introduced as ‘objective reasons’, within the meaning of clause 5(1)(a) of the framework agreement, in order to justify the renewal of the employment relationships of honorary members of the judiciary. Those renewals were necessary, pending structural reform of the honorary judiciary, which took place only in 2021, in order to ensure the continuity of the administration of justice.
68 In that regard, it should be noted that, admittedly, the continuity of the administration of justice is capable of constituting a legitimate objective that may be pursued by the Italian Republic, justifying the renewal of certain employment relationships of honorary members of the judiciary.
69 However, it must be borne in mind that the employment relationship of the applicants in the main proceedings, who entered into service from 1995, was renewed on numerous occasions and that it was not until 2021, following the revision of Legislative Decree No 116, that the Italian legislature introduced a mechanism enabling the employment relationship of honorary members of the judiciary to be stabilised.
70 In those circumstances, it appears, subject to verification by the referring court, that the renewals of the employment relationship of the applicants in the main proceedings, in the light of their number, appear to have been used to cover needs which were not temporary, owing, for example, to a sudden and unforeseeable increase in litigation, but rather to meet the fixed and permanent needs of the Italian judicial system.
71 Moreover, it should be recalled that, in the absence of any sanction capable of preventing and, where appropriate, penalising the misuse of successive fixed-term employment contracts or relationships, the Court, in the judgment of 7 April 2022, Ministero della Giustizia and Others (Status of Italian magistrates) (C‑236/20, EU:C:2022:263), concerning legislation applicable to honorary members of the judiciary, admittedly different from that resulting from Royal Decree No 12, held that Clause 5(1) of the framework agreement must be interpreted as precluding national legislation under which a fixed-term employment relationship may be subject to a maximum of three successive renewals, each for a period of four years, for a total duration of no more than 16 years, and which does not provide for the possibility of penalising in an effective and dissuasive manner the abusive renewal of employment relationships.
72 As a result, subject to the assessment of the facts of the case in the main proceedings, which it is for the referring court to carry out, it must be held that the legislation at issue in the main proceedings is not justified by an ‘objective reason’, within the meaning of Clause 5(1)(a) of the framework agreement, which makes it possible to prevent abuse arising from the use of successive fixed-term employment relationships.
73 In that regard, the argument that the renewal of the employment relationships of the honorary members of the judiciary in the main proceedings had allegedly positive effects is irrelevant, since such effects do not constitute circumstances which can be classified as an ‘objective reason’ within the meaning of Clause5(1)(a) of the framework agreement, as interpreted by the case-law referred to in paragraph 63 of the present judgment.
74 In the light of the foregoing considerations, the answer to the second question is that Clause 5(1) of the framework agreement must be interpreted as precluding national legislation under which the employment relationship of honorary members of the judiciary may be renewed successively without there being any provision, in order to limit abuse of such renewals, for effective and dissuasive penalties or for the conversion of the employment relationship of those members of the judiciary into an employment relationship of indefinite duration.
Costs
75 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.
On those grounds, the Court (Sixth Chamber) hereby rules:
1. Article 7 of 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, and Clause 4 of the framework agreement on fixed-term work, concluded on 18 March 1999, set out in the annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP
must be interpreted as precluding national legislation which, in contrast to what it provides for ordinary members of the judiciary, does not give honorary members of the judiciary in a comparable situation any entitlement to remuneration during the holiday period when judicial activity is suspended, or to the benefit of compulsory social security and insurance protection against workplace accidents and illnesses.
2. Clause 5(1) of the framework agreement on fixed-term work, concluded on 18 March 1999, set out in the annex to Directive 1999/70
must be interpreted as precluding national legislation under which the employment relationship of honorary members of the judiciary may be renewed successively without there being any provision, in order to limit abuse of such renewals, for effective and dissuasive penalties or for the conversion of the employment relationship of those members of the judiciary into an employment relationship of indefinite duration.
[Signatures]