Request for a preliminary ruling from the Ufficio del Giudice di pace di Rimini (Italy) lodged on 7 March 2022 – BL v Presidenza del Consiglio dei Ministri
(Case C-190/22)
Language of the case: Italian
Referring court
Ufficio del Giudice di pace di Rimini
Parties to the main proceedings
Applicant: BL
Defendant: Presidenza del Consiglio dei Ministri
Questions referred
Does EU law, and in particular Articles 15, 20, 30 and 47 of the Charter of Fundamental Rights of the European Union, clauses 2 and 4 of the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP and laid down in Directive 1999/70/EC of 28 June 1999, 1 and the fundamental principle of the independence and irremovability of European judges, as interpreted by the case-law of the Court of Justice in UX (EU:C:2020:572), preclude a national provision such as Article 29 of Legislative Decree No 116 of 13 July 2017 (‘Legislative Decree No 116/2017’), which, without objective justification, discriminates against the applicant, a magistrate, with respect to the working conditions of comparable professional judges, in the following context:
the applicant, who has served as a magistrate without interruption since 2002, is not yet 70 years of age (but will turn 70 in 2022), and as at 15 August 2017 had not completed more than 16 years of effective service as a lay judge;
therefore, although the national provision (Article 29(1) of Legislative Decree No 116/2017) allows her to continue to hold judicial office until the age of 70, the applicant cannot take part in the first assessment procedure for confirmation in the shortlist (ruolo ad esaurimento) of lay judges, which will be announced by the Consiglio superiore della magistratura (Supreme Council of the Judiciary, Italy) in 2022, as provided for by Article 29(3) of Legislative Decree No 116/2017;
as a further consequence, since she is unable to apply to take part in the assessment procedure for confirmation in the shortlist planned in 2022, the applicant – who had already left judicial office by 31 December 2021 because she had reached the maximum age of 68 under the previous rules – could not be reinstated with effect from 1 January 2022 because the new legislation, although providing that anyone employed on 15 August 2017 should remain in post until the age of 70, also provides that anyone not in a position to apply for confirmation in post should leave the service (Article 29(9) of Legislative Decree No 116/2017);
on the basis of that national legislation, the applicant will only receive from the Italian Government compensation of EUR 1 500 to EUR 2 500 per year for each year of service, in relation to the number of hearings conducted during the year, subject to a maximum amount of EUR 50 000, relinquishing all remuneration, normative and contributory rights sought in the proceedings pending before the Tribunale Amministrativo Regionale (TAR) Emilia Romagna (Regional Administrative Court, Emilia Romagna, Italy) and guaranteed by EU law for the judicial service performed as an employee, but not recognised as such by the Italian Government, including the coverage of contributions in respect of the employment relationship and the resulting social security benefits;
the Regional Administrative Court of Emilia Romagna, by protective measure of 9 February 2022, in accordance with the judgment of the Court of Justice in UX and going against Italian legislation and the opinion of 16-17 February 2022 of the Supreme Council of the Judiciary, ordered the applicant to be reinstated as a magistrate until the age of 70;
on 1 March 2022, the President of the Tribunale di Rimini (District Court, Rimini), in compliance with the protective measure issued by the Regional Administrative Court of Emilia Romagna, ordered the applicant’s immediate return to service;
by way of compensation for the blatant and continued infringement by the Italian Government of EU law on the legal status and rights of lay judges, the referring judge is being asked to award a sum corresponding to the remuneration that the applicant should have received from 10 to 28 February 2022, in an amount equal to that of a comparable professional judge, which has its legal basis in the protective order for return to service issued by the Regional Administrative Court of Emilia Romagna, but runs counter to Italian legislation, which, while acknowledging the infringement of EU law, on the one hand precludes any possibility of the applicant returning to service until the age of 70 – the applicant having been forced to leave office by 31 December 2021 following a protective measure issued by the Consiglio di Stato (Council of State, Italy) in breach of the judgment of the Court of Justice in UX – and, on the other hand, limits the compensation for the damage suffered by the applicant to a fixed amount predetermined by law, which is much less than the damage actually suffered as a result of the infringement of rights guaranteed by the EU?
If the answer to the first question is in the affirmative, does Article 47 of the Charter of Fundamental Rights of the European Union, in conjunction with Article 267 TFEU, clauses 2 and 4 of the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP and laid down in Directive 1999/70/EC of 28 June 1999, and the fundamental principle of the independence and irremovability of European judges, preclude a national provision – such as Article 21 of Legislative Decree No 116 of 13 July 2017 – which exposes the referring judge (also a magistrate), without effective legal, economic and social security protections, who intends to apply EU law, as interpreted by the Court of Justice in UX, disapplying national provisions precluding the recognition of the protection sought, to the automatic termination of judicial office by bodies of the Italian State (a party in the main proceedings), such as the Supreme Council of the Judiciary and the Ministero della giustizia (Ministry of Justice), without an inter partes procedure and without disciplinary proceedings before the entry into force of Legislative Decree No 116/2017?
If the answer to the first two questions is in the affirmative, is there a violation of the ‘rule of law’, according to the concept defined in Article 2(a) of Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, 1 in a situation in Italy in which:
the applicant and 4 769 other lay judges, who were already employed on 15 August 2017, including this referring judge, are deprived of normative, economic and social security protections in the working conditions provided for comparable professional judges, and therefore cannot hold judicial office independently and irremovably;
the Italian Government and the ‘employer’, the Ministry of Justice, as well as the Italian Parliament, the Supreme Council of the Judiciary, the Suprema Corte di Cassazione (Supreme Court of Cassation, Italy) and the Council of State systematically refuse to recognise the primacy of EU law and to apply the case-law of the Court of Justice on the legal status and rights guaranteed by EU law to the applicant and the 4 769 lay judges performing judicial functions in the same conditions as professional judges;
4 769 lay judges, including this referring judge and excluding the applicant, already employed on 15 August 2017, will have to waive any right guaranteed by EU law if they intend, in order to remain in post, to undergo a new assessment procedure so that if successful they can continue to hold judicial office until the age of 70, even though all the lay judges were confirmed in post until 31 May 2024 by the Supreme Council of the Judiciary and by the Ministry of Justice, under the legislation in force until 31 December 2021, at least until such time as they must leave office because they have reached the maximum age, and even though, after the position was made permanent, the conditions undermining the independence and irremovability of lay judges who were given permanent positions continued to exist;
the financial aid covered by the EU budget for the reform of civil and criminal justice in Italy to ensure a prompt and fair trial, as defined by the National Recovery and Resilience Plan (NRRP), does not include any measure to support the lay judiciary and is mainly aimed at the fixed-term employment of 16 500 administrative assistants recruited for the ‘office for proceedings’ (ufficio del processo), employed by the Ministry of Justice on the same economic terms as the lay judiciary who have been given permanent positions, but subject to conditions of irremovability on a disciplinary level throughout the period of employment, which is not recognised for the lay judiciary, even after being given permanent positions?
If the first three questions are answered in the affirmative, are Article 278 of the Treaty on the Functioning of the European Union and Article 160 of the Rules of Procedure of the Court of Justice unlawful, for being contrary to Articles 2, 6 and 19 of the Treaty [on European Union], in so far as they do not allow the Court of Justice, in the context of preliminary ruling proceedings pursuant to Article 267 TFEU, to adopt the necessary interim measures, including the suspension of national legislative acts undermining the rule of law and harming the financial interests of the Union according to the principles and conditionalities laid down in Regulation 2020/2092?
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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 OJ 2020 L 433I, p. 1.