Request for a preliminary ruling from the Tribunale civile di Padova (Italy) lodged on 28 August 2023 – AR v Ministero dell’Istruzione e del Merito
(Case C-543/23, Gnattai) 1
Language of the case: Italian
Referring court
Tribunale civile di Padova
Parties to the main proceedings
Applicant: AR
Defendant: Ministero dell’Istruzione e del Merito
Questions referred
Must clause 4(1) of the framework agreement on fixed-term work concluded on 18 March 1999 annexed to Council Directive 1999/70/EC 1 of 28 June 1999 and the general principle under [EU] law as it currently stands of non-discrimination in the area of employment conditions, read in the light of Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’), be interpreted as precluding national legislation, such as that contained in Article 485 of Decreto legislativo n. 297/94 (Legislative Decree No 297/94), which, according to the interpretation given by the Suprema Corte di Cassazione (Supreme Court of Cassation, Italy) (see Cass. S.L. judgments No 32386/2019, No 33134/2019 and No 33137 of 2019), provides that the fixed-term employees of scuole paritarie (State-equivalent schools) referred to in Legge n. 62/2000 (Law No 62/2000) are to be treated less favourably, when assessing what rights they have accrued during their career, than permanent employees of the Ministero dell’Istruzione e del Merito (Ministry of Education and Merit, Italy), solely due to the fact that they have not passed a public selection process or have taught as an employee of a legally recognised scuola paritaria (State-equivalent school), notwithstanding the fact that fixed-term teaching staff at scuole paritarie (State-equivalent schools) are in a situation comparable to that of permanent teaching staff at State schools, with regard to the type of work and training and employment conditions, in so far as they perform the same tasks, have the same disciplinary, pedagogic, methodological-didactic, organisational-relational and research skills, gained through teaching experience, as acknowledged by that national law as being identical for the purposes of recruitment under a contract of indefinite duration by referring to the permanent ranking lists, which are now closed (see Article 2(2) of Decreto-legge n. 255/2001 (Decree-law No 255/2001))?
In the context of the application of Directive 1999/70, must the general principles under [EU] law as it currently stands of equality, equal treatment and non-discrimination in the area of employment, as also enshrined in Articles 20 and 21 of the Charter, in Article 14 of the European Convention on Human Rights (which is relevant pursuant to Article 52 of the Charter), in the European Social Charter approved on 18 June 1961, in Article 157 TFEU and in Directives 2000/43/EC 1 and 2000/78/EC, 2 be interpreted as precluding legislation, such as that contained in Article 485 of Legislative Decree No 297/94, which stipulates that only the teaching services of an employee of the Ministry or of a scuola parificata (State-accredited primary school), a scuola pareggiata (State-equivalent secondary school), a scuola sussidiata o sussidiaria (small State-funded school run by private individuals or entities), a scuola popolare (school for adult education) or an educandato (girls’ school run by a religious body) are to be taken into account for salary purposes, when assessing what rights have been accrued during a career, thereby treating fixed-term teaching staff at scuole paritarie (State-equivalent schools) less favourably and discriminating against them when assessing what rights they have accrued during their career (such assessment being carried out after recruitment under a contract of indefinite duration by the Ministry of Education and Merit), failing to acknowledge their right to the supplementary pay connected with length of service, which is, however, paid to fixed-term teaching staff at State and municipal schools, scuole parificate (State-accredited primary schools), scuole pareggiate (State-equivalent secondary schools), scuole sussidiate e sussidiarie (small State-funded schools run by private individuals or entities), and scuole popolari (schools for adult education) and educandati (girls’ schools run by religious bodies), who are in a situation comparable with that of teaching staff at scuole paritarie (State-equivalent schools) with regard to the type of work, duties, services and professional obligations, as well as the training and working conditions with respect to the teaching staff at the scuole paritarie (State-equivalent schools) referred to in Law No 62/2000, in so far as they perform the same tasks and gain, through the teaching experience they acquire, the same disciplinary, pedagogic, methodological-didactic, organisational-relational and research skills as teaching staff at scuole paritarie (State-equivalent schools)?
Must the concept of ‘comparable permanent worker’ referred to in clause 4(1) of the framework agreement on fixed-term work concluded on 18 March 1999, annexed to Directive 1999/70, and the general principles under EU law as it currently stands of equality, equal treatment and non-discrimination in the area of employment, enshrined in Articles 20 and 21 of the Charter, be interpreted as meaning that, in the context of the recognition of years of service accrued, the services provided as a temporary employee in scuole paritarie (State-equivalent schools) must be treated in the same way as those provided in State schools, scuole parificate (State-accredited primary schools), scuole pareggiate (State-equivalent secondary schools), scuole popolari (schools for adult education), scuole sussidiate e sussidiarie (small State-funded schools run by private individuals or entities), and educandati (girls’ schools run by religious bodies), in so far as those teachers perform the same tasks, have the same professional obligations and possess the same disciplinary, pedagogic, methodological-didactic, organisational-relational and research skills?
If Article 485 of Legislative Decree No 297/94 is incompatible with the [EU] law, does the Charter oblige the national court to disapply the incompatible piece of national legislation?
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1 The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
1 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).
1 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22).
1 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).