Lufoni (Social policy - Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP- Public sector - Teachers - Judgment) [2024] EUECJ C-322/23 (17 October 2024)

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( Reference for a preliminary ruling - Social policy - Directive 1999/70/EC - Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP - Clause 4 - Public sector - Teachers - Employment of fixed-term workers as career civil servants through recruitment based on qualifications - Determination of the period of service deemed accrued - Account taken only in part of periods of service completed under fixed-term contracts - Subsequent reinstatement of the period of service not taken into account - No effect on the assessment of the existence of discrimination )

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunale di Lecce (Lecce District Court, Italy), made by decision of 22 May 2023, received at the Court on 24 May 2023, in the proceedings

composed of F. Biltgen, President of the First Chamber, acting as President of the Seventh Chamber, M.L. Arastey Sahún (Rapporteur), President of the Fifth Chamber, and J. Passer, Judges,

- the Istituto nazionale della previdenza sociale (INPS), by C. D’Aloisio, E. De Rose, E. Sciplino and A. Sgroi, avvocati,

- the Italian Government, by G. Palmieri, acting as Agent, and by L. Fiandaca and F. Sclafani, avvocati dello Stato,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 This request for a preliminary ruling concerns 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, on the one hand, ED and, on the other hand, the Ministero dell’Istruzione e del Merito (Ministry of Education and Merit, Italy) and the Istituto nazionale della previdenza sociale (INPS) (National Social Security Institute, Italy), concerning the calculation, from the date on which ED was admitted to the permanent teaching staff, of the length of service that he acquired from a series of fixed-term contracts concluded as a fixed-term teacher.

‘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. Where there is no comparable permanent worker in the same establishment, the comparison shall be made by reference to the applicable collective agreement, or where there is no applicable collective agreement, in accordance with national law, collective agreements or practice.’

‘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.

4. Period-of[-]service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of service qualifications are justified on objective grounds.’

5 Article 485(1) of decreto legislativo no. 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), in the version applicable to the dispute in the main proceedings (‘Legislative Decree No 297/1994’), provides:

‘The periods of service completed by teaching staff under fixed-term contracts at state and equivalent secondary and art schools, including those located abroad, shall be recognised as periods of permanent employment for legal and salary purposes, in full for the first four years and at a rate of two thirds for any period thereafter, and at a rate of the remaining one third solely for salary purposes. The financial rights stemming from such recognition shall be preserved and taken into account in all pay grades subsequent to the grade assigned at the time of recognition.’

‘For the purposes of the recognition referred to in the preceding articles, teaching service shall be deemed to be a full academic year if it has been of the duration laid down for the purposes of the validity of the year by the educational system in force at the time of its completion.’

7 Under Article 11(14) 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:

‘Article 489(1) of [Legislative Decree No 297/1994] must be understood as meaning that the service completed by teaching staff under fixed-term contracts starting from 1974-1975 is regarded as having been provided for a full academic year if its duration was at least 180 days or if the service has been completed in an uninterrupted manner beginning on 1 February until the end of the pupils’ final assessment.’

8 Article 4(3) of decreto legislativo del Presidente della Repubblica n. 399 - Norme risultanti dalla disciplina prevista dall’accordo per il triennio 1988-1990 del 9 giugno 1988 relativo al personale del comparto scuola (Decree No 399 of the President of the Republic concerning rules resulting from the provisions laid down in the 1988-1990 agreement of 9 June 1988 concerning academic staff) of 23 August 1988 (GURI No 213 of 10 September 1988, Ordinary Supplement No 85) (‘Presidential Decree No 399/1988’) provides:

‘On completion of the 16th year of service for graduate teachers of higher secondary school, the 18th year for administrative coordinators, nursery and primary school teachers, middle school teachers and for teachers of higher secondary schools who have a secondary school diploma, the 20th year for auxiliary staff and assistants, and the 24th year for teachers in music conservatories and academies, the length of service for salary purposes alone shall be fully valid for the assignment of subsequent pay grades.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

9 ED worked as a teacher in higher secondary education, under a series of fixed-term contracts during the academic years 1996/1997 to 1998/1999, 2000/2001 to 2009/2010 and 2011/2012 to 2014/2015, before being appointed to the permanent teaching staff with effect from 1 September 2015 through a recruitment procedure based on qualifications.

10 At the time of that appointment, ED’s length of service accrued was, for legal and salary purposes under the applicable national legislation, recognised as having been acquired in accordance with those fixed-term contracts for a duration of 10 years, 5 months and 10 days of service.

11 Taking the view that the calculation of that length of service infringed clause 4 of the framework agreement in that it did not take account of the entirety of the duration of the service carried out by him prior to his appointment to the permanent staff, ED brought an action, on 22 April 2021, before the Tribunale di Lecce (Lecce District Court, Italy), the referring court, seeking recognition of a length of service acquired through the aforementioned fixed-term contracts for a duration of 10 years, 10 months and 17 days.

12 As regards the system for calculating length of service provided for by the national legislation, that court notes, first, that Article 11(14) of Law No 129/1999 provides that, when, for a given academic year, the service completed as a fixed-term teacher has reached a duration of at least 180 days or has been completed from 1 February until the end of the pupils’ final assessment, it is considered as having been completed during an entire academic year. Conversely, when such service does not fulfil either of those two conditions, it is not taken into account.

13 Thus, it is apparent from the order for reference that, as regards ED, the academic years 2000/2001, 2011/2012 and 2012/2013, were not taken into account, since, for those years the duration of his service did not satisfy the conditions laid down in Article 11(14) of Law No 124/1999.

14 Second, after the duration of the service completed was calculated in accordance with the rules referred to in paragraph 12 above, that length would, in accordance with Article 485 of Legislative Decree No 297/1994, be taken into account in full for the first four years, while for the subsequent years it would be taken into account at a rate of two-thirds for legal and salary purposes. The remaining third would be taken into account for salary purposes, namely for the purposes of assignment of subsequent pay grades, on the dates laid down in Article 4(3) of Presidential Decree No 399/1988, and, in particular, at the end of the 16th year of service for graduate teachers of higher secondary school.

15 The referring court adds that Article 4(3) of Presidential Decree No 399/1988 is of particular relevance to the outcome of the dispute in the main proceedings, in so far as under that provision it is possible to reinstate for salary purposes - that is the purposes which are the subject matter of the present dispute - that part of the length of service which is not taken into account when the person concerned is appointed to the permanent staff. Persons in the same situation as ED would thus not have the recognition of their full length of service completed as fixed-term teachers rejected, but only postponed, until the 16th year of service.

16 The referring court notes that, in the judgment of 20 September 2018, Motter (C-466/17, ‘the judgment in Motter’, EU:C:2018:758), which concerned the system for calculating the length of service at issue in the main proceedings, the Court did not take into account, inter alia, Article 4(3) of Presidential Decree No 399/1988, since the order for reference in the case which gave rise to that judgment did not mention that provision. According to the referring court, it is therefore necessary, in the present case, to refer new questions to the Court of Justice for a preliminary ruling by providing a more complete legal framework.

17 The referring court also states that the factors referred to by the Court of Justice in that judgment concerning the comparability of the situations concerned and the objective justifications relied on by the Italian Government can be transposed to the present case.

18 Furthermore, the Corte suprema di cassazione (Supreme Court of Cassation, Italy), in its judgment No 31149 of 28 November 2019, delivered on the basis of the judgment in Motter, found that Article 485 of Legislative Decree No 297/1994 was contrary to clause 4 of the framework agreement and that, consequently, that article should not be applied where the length of service of teachers who are employed on a fixed-term basis and subsequently appointed to the permanent staff - calculated from the combined application of the criteria referred to in Article 485 and Article 489 of that legislative decree, as supplemented by Article 11(14) of Law No 124/1999 - is shorter than the length of service which a teacher in a comparable situation employed from the outset on a permanent basis, would be recognised as having.

19 The Corte suprema di cassazione (Supreme Court of Cassation) therefore held that the existence of discrimination must be assessed by comparing, as at the date of appointment of the person concerned to the permanent staff, the length of service resulting from the calculation provided for by each of the two calculation systems referred to in the preceding paragraph in order to select the most advantageous system.

20 In the present case, ED claims that, in accordance with the principles laid down by the Corte suprema di cassazione (Supreme Court of Cassation), he should be recognised as having a length of service of 10 years, 10 months and 17 days, that is to say, 5 months and 7 days more than the length of service which he has been recognised as having.

21 The referring court observes that, according to the calculation system on which ED relies, he would lose, inter alia, the right, provided for in Article 4(3) of Presidential Decree No 399/1988, at the end of his 16th year of service, to the recognition of an additional period of service of 3 years, 2 months and 20 days, solely for salary purposes.

22 Thus, the fact that, according to the case-law of the Corte suprema di cassazione (Supreme Court of Cassation), the decisive point in time for assessing the existence of discrimination under clause 4 of the framework agreement is that of the appointment to the permanent staff would result, in practice, in an increase in the length of ED’s service of approximately 5 months, but would deprive him of the benefit of recognition of that additional period of service mentioned in the preceding paragraph.

23 Accordingly, the referring court considers that the system for calculating length of service resulting from the case-law of the Corte suprema di cassazione (Supreme Court of Cassation) leads to a greater disparity between fixed-term workers and permanent workers in comparable situations than the system for calculating length of service provided for in Article 485 of Legislative Decree No 297/1994, the discriminatory nature of which was noted by the latter court, which could be contrary to the principles identified by the Court of Justice in the judgment of 18 October 2012, Valenza and Others (C-302/11 to C-305/11, EU:C:2012:646).

24 Consequently, the referring court asks whether reinstatement of the length of service, as provided for in Article 4(3) of Presidential Decree No 399/1988, may constitute an objective justification for the difference in treatment found to be contrary to clause 4 of the framework agreement.

25 However, the referring court states in that regard, in essence, that that reinstatement of length of service, under Article 4(3), may be regarded as a future and uncertain matter of fact, linked to factual considerations specific to each person.

26 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) Does clause 4 [of the Framework Agreement] preclude national legislation such as Articles 485 and 489 of Legislative Decree No 297/1994, Article 11(14) of Law No 124/1999 and Article 4(3) of Presidential Decree No 399/88, which provide for the length of service prior to becoming a permanent member of staff, taking into account the aforementioned Article 11(14), to be counted in full only for the first four years and, for the subsequent years, at a rate of two thirds for legal and salary purposes and of the remaining one-third solely for salary purposes and after reaching a certain length of service as provided for by Article 4(3) of Presidential Decree No 399/88?

(2) In any event, for the purposes of assessing whether there is discrimination under clause 4 [of the Framework Agreement], must the national court take account only of the length of service prior to becoming a permanent member of staff recognised at the time of admittance to the permanent staff or, on the contrary, must it take account of the entire body of rules concerning the treatment of that length of service, and thus also of the rules which provide, in periods following admittance to the permanent staff, for full recovery of length of service for salary purposes only?’

27 The Italian Government submits that the questions referred for a preliminary ruling are inadmissible, since the answer to them does not leave any doubt, in particular in the light of the judgment in Motter. Furthermore, the first question referred is hypothetical, in so far as it reflects a disagreement on the part of the referring court with the case-law of the Corte suprema di cassazione (Supreme Court of Cassation) and the domestic legal system offers ways of overcoming such a disagreement.

28 In that regard, it is settled case-law that, in proceedings under Article 267 TFEU, 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. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (judgment of 9 March 2023, Vapo Atlantic, C-604/21, EU:C:2023:175, paragraph 31 and the case-law cited).

29 In the present case, first, it should be observed 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 questions does not thereby become inadmissible (see, to that effect, judgment of 9 March 2023, Vapo Atlantic, C-604/21, EU:T:2023:175, paragraph 33 and the case-law cited).

30 Second, the referring court states the reasons why, in its view, an answer to the questions referred is necessary for the purposes of resolving the dispute in the main proceedings. In that regard, it states that it has doubts as to whether the conclusions drawn by the Corte suprema di cassazione (Supreme Court of Cassation) from the judgment in Motter comply with the case-law of the Court of Justice. The referring court adds that, in that judgment, the Court of Justice did not take into account all aspects of the national legislation at issue in the main proceedings and that doubts remain as to the interpretation to be given to clause 4 of the framework agreement in situations such as that of ED. The issue raised by the first question is not, therefore, hypothetical.

32 By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether clause 4 of the framework agreement must be interpreted as precluding national legislation which, for the purposes of recognition of the length of service of a worker upon his or her appointment to the permanent staff as a career civil servant, limits to two-thirds the taking into account of the periods of service completed, beyond four years, under fixed-term work contracts, including where, after a certain number of years of service, the remaining one-third of the periods of service is reinstated solely for salary purposes.

33 In that regard, it is important to note that clause 4(1) of the framework agreement, which has direct effect, prohibits, with regard to employment conditions, less favourable treatment of fixed-term workers as compared with comparable permanent workers, solely because they are employed for a fixed term, unless different treatment is justified on objective grounds. Clause 4(4) of the framework agreement lays down the same prohibition as regards period-of-service qualifications relating to particular conditions of employment (see judgment of 30 November 2023, Ministero dell’Istruzione and INPS, C-270/22, ‘the judgment in Ministero dell’Istruzione and INPS’, EU:C:2023:933, paragraphs 52 and 53 and the case-law cited).

34 In addition, the Court has already held that national rules, such as those at issue in the main proceedings, concerning periods of service to be completed in order to make possible classification in a salary grade are covered by the concept of ‘employment conditions’ within the meaning of clause 4 (the judgment in Ministero dell’Istruzione and INPS, paragraph 55 and the case-law cited).

35 Therefore, in order to answer the questions referred, it is necessary to examine whether national legislation such as that at issue in the main proceedings gives rise to a difference in treatment, within the meaning of clause 4 of the framework agreement, before determining, as the case may be, whether such a difference in treatment may be justified on objective grounds, within the meaning of that clause.

36 As regards, in the first place, the question whether the national legislation at issue in the main proceedings gives rise to a difference in treatment, within the meaning of clause 4 of the framework agreement, it should be noted that the order for reference refers to Article 485(1) and Article 489(1) of Legislative Decree No 297/1994, Article 11(14) of Law No 124/1999 and Article 4(3) of Presidential Decree No 399/1988.

37 Article 485(1) of Legislative Decree No 297/1994 was at issue in the case giving rise to the judgment in Motter.

38 The referring court states that, in that case, the Court of Justice did not have a complete legal framework, which is why it decided to make the present reference for a preliminary ruling. In that context, it refers to the other provisions cited in paragraph 36 above.

39 In that regard, it should be noted that the reasons given by the referring court in order to justify the present reference for a preliminary ruling are, in essence, the same as those which led the Tribunale ordinario di Ravenna (District Court, Ravenna, Italy) to submit the request for a preliminary ruling which led to the judgment in Ministero dell’Istruzione and INPS, as is apparent from paragraph 41 of that judgment. That judgment was delivered on 30 November 2023, that is to say, after the request for a preliminary ruling had been made in the present case.

40 In that judgment, the Court noted that, in accordance with the national legislation at issue in the main proceedings, teachers employed on a permanent basis, recruited through a competition can, for the purposes of assignment in a pay grade, have their length of service taken into account in full (see, to that effect, the judgment in Ministero dell’Istruzione and INPS, paragraph 57).

41 By contrast, as regards teachers employed on a fixed-term basis who join the civil service through a competition based on qualifications, periods of fixed-term service completed during an academic year which do not reach the thresholds laid down in Article 489 of Legislative Decree No 297/1994, as supplemented by Article 11(14) of Law No 124/1999, are not taken into account for the purposes of recognition of their length of service. In addition, the periods of service reaching those thresholds are taken into account in full for only four years, with that account then being limited to two thirds in the subsequent years, in accordance with Article 485 of Legislative Decree No 297/1994 (see, to that effect, the judgment in Ministero dell’Istruzione and INPS, paragraph 58). As stated in paragraph 13 above, all of those provisions were applied to ED.

42 Moreover, in paragraph 59 of the judgment in Ministero dell’Istruzione and INPS, the Court expressly took account of the reinstatement mechanism provided for in Article 4(3) of Presidential Decree No 399/1988, under which one third of the length of service not taken into account at the time of permanent establishment in the civil service may, where appropriate, after a certain period, be reinstated for the purposes of the subsequent assignment, in the pay grade, of the teachers concerned. In that regard, the Court pointed out that such reinstatement can take place only after a particularly long period, namely between the 16th and the 24th year of service. It also noted, in essence, that that reinstatement was valid only in so far as the teacher concerned still belonged, at the end of that period, to the staff of the Ministry of Education.

43 It was in the light of all the provisions referred to in the two preceding paragraphs that the Court held that national legislation such as that at issue in the main proceedings gives rise to a difference in treatment to the detriment of teachers recruited on a fixed-term basis in comparison with teachers recruited on a permanent basis through open competitions, who are not subject to the limitations mentioned in the preceding paragraph (the judgment in Ministero dell’Istruzione and INPS, paragraph 60).

44 It thus follows from the judgment in Ministero dell’Istruzione and INPS that legislation such as that at issue in the main proceedings gives rise to a difference in treatment, within the meaning of clause 4 of the framework agreement, and that the reinstatement mechanism provided for in Article 4(3) of Presidential Decree No 399/1988, to which the referring court attaches particular importance, forms part of the rules giving rise to such a difference in treatment.

45 It should be added that, as the referring court itself points out, while two-thirds of the length of service taken into consideration when a teacher is appointed to the permanent staff is taken into account for legal and salary purposes, any reinstatement, pursuant to Article 4(3) of Presidential Decree No 399/1988, of the remaining one-third of the length of service takes effect solely for salary purposes.

46 It follows that that reinstatement mechanism is characterised not only by the fact, referred to in paragraph 42 above, that its possible application - subject to the condition that the person concerned is still performing his or her duties as a permanent member of the teaching staff - is postponed for several years (in ED’s case until the end of his 16th year of service), and is therefore future and uncertain, but also by the fact that, even when that mechanism is applied, its effects are limited in scope.

47 Therefore, the fact that in certain cases the application of that mechanism may possibly be favourable to the teachers concerned is, as the case may be, capable of compensating only partially for the difference in treatment experienced, at the time of their appointment to the permanent staff, by the application of national legislation such as that at issue in the main proceedings.

48 In any event, the existence of less favourable treatment, within the meaning of clause 4(1) of the framework agreement, must be assessed objectively (judgment of 20 February 2024, X (Lack of reasons for termination), C-715/20, EU:C:2024:139, paragraph 51). Accordingly, the existence of a difference in treatment must be assessed in the light of the matters of fact and of law which can be established at the time when that difference in treatment is relied on by the person who considers that he or she is subject to it, and any future factors, the very existence and exact scope of which remain uncertain at that time, may not be taken into account.

49 However, in order for such a difference in treatment to constitute discrimination prohibited by clause 4 of the framework agreement, it must concern comparable situations and must not be justified on objective grounds (the judgment in Ministero dell’Istruzione and INPS, paragraph 61).

50 Thus, as regards, in the second place, the comparability of the situations concerned, in order to assess whether workers are engaged in the same or similar work within the meaning of the framework agreement, it is necessary to determine, in accordance with clauses 3(2) and 4(1) of that agreement, whether - in the light of a number of factors such as the nature of the work, training requirements and working conditions - those workers can be regarded as being in comparable situations. If it is established that when they are employed, fixed-term workers perform the same duties as workers employed by the same employer on a permanent basis or occupy the same post as those permanent workers, the situations of those two categories of workers must, in principle, be regarded as being comparable (the jugdment in Ministero dell’Istruzione and INPS, paragraphs 62 and 63 and the case-law cited).

51 In that regard, it is apparent from the order for reference that, in the case in the main proceedings, it is common ground that the situations at issue are comparable, in particular as regards the duties carried out by teachers employed on a fixed-term basis and those employed on a permanent basis.

52 Moreover, the Court has already held that the duties performed by fixed-term teachers, such as ED, must, in principle, be regarded as comparable to those of permanent teachers (see, to that effect, the judgment in Ministero dell’Istruzione and INPS, paragraph 67 and the case-law cited).

53 In the third and last place, as regards the question whether the difference in treatment such as that at issue in the main proceedings may be justified on ‘objective grounds’, within the meaning of clause 4 of the framework agreement, it has to be borne in mind that that concept must be understood as not permitting a difference in treatment between fixed-term workers and permanent workers to be justified on the sole ground that it is provided for by a general, abstract national norm. That concept requires that the unequal treatment found to exist be justified by the existence of precise and specific factors, characterising the employment condition concerned, in the particular context in which it occurs (the judgment in Ministero dell’Istruzione and INPS, paragraph 69 and the case-law cited).

54 On the basis of objective and transparent criteria, it must be possible to verify that that unequal treatment responds to a genuine need, that it is appropriate for attaining the objective pursued and that it 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 (the judgment in Ministero dell’Istruzione and INPS, paragraph 70 and the case-law cited).

55 In the present case, the referring court states that the objective grounds relied on by the Italian Government in the case which gave rise to the judgment in Motter can be transposed to the present case. It is apparent from paragraph 42 of that judgment that that government relied on objectives consisting, in essence, first, in reflecting the differences in professional practice between permanent teachers recruited at the outset as career civil servants through open competitions and teachers who have been appointed to the permanent staff after having acquired professional experience under fixed-term contracts and, second, in preventing reverse discrimination against the former. It should also be pointed out that the Italian Government, in its written observations, also refers to the objectives examined by the Court in the judgment in Motter.

56 According to the case-law of the Court, each of those objectives may constitute an ‘objective ground’ within the meaning of clause 4(1) and/or (4) of the framework agreement (the judgment in Ministero dell’Istruzione and INPS, paragraph 73 and the case-law cited).

57 The Court has also accepted that those objectives could, in principle and subject to verification by the referring court, be regarded as seeking to respond to a genuine need and that the national legislation at issue in the main proceedings may, in principle, be regarded as appropriate for attaining those same objectives (see, to that effect, the judgment in Ministero dell’Istruzione and INPS, paragraphs 75 and 76 and the case-law cited).

58 However, the Court has held that legislation such as that at issue in the main proceedings exceeds what is necessary to achieve the two objectives referred to in paragraph 55 above, in so far as (i) it provides that teaching service which has not reached 180 days per year or which has not been performed continuously between 1 February and the end of the pupils’ final assessment is not taken into account, even to a limited extent, and (ii) that exclusion is combined with the two-thirds limitation on the taking into account of the length of service of more than four years acquired under fixed-term contracts (see, to that effect, the judgment in Ministero dell’Istruzione and INPS, paragraph 81).

59 Thus, the Court held, in paragraph 84 of the judgment in Ministero dell’Istruzione and INPS, that clause 4 of the framework agreement precludes national legislation such as that at issue in the main proceedings, while taking into account, for the purposes of that interpretation, the fact that that legislation allows, after a certain number of years of service, the reinstatement, for salary purposes, of the one-third of the length of service not taken into account at the time of appointment of the person concerned to the permanent staff.

60 Last, the referring court mentions the possibility that the objective justification for the difference in treatment at issue in the main proceedings lies in the reinstatement mechanism provided for in Article 4(3) of Presidential Decree No 399/1988.

61 In that regard, apart from the fact that the application of that mechanism is a future and uncertain one and that even where the mechanism is applicable, it has only limited scope, it must be held that, since, as is apparent from paragraph 44 above, that mechanism forms part of the rules that make up such a difference in treatment, it cannot be relied on as an ‘objective ground’ within the meaning of Clause 4 of the framework agreement, in order to justify that difference in treatment.

62 In the light of the foregoing considerations, the answer to the questions raised is that clause 4 of the framework agreement must be interpreted as precluding national legislation which, for the purposes of recognition of the length of service of a worker upon his or her appointment to the permanent staff as a career civil servant, limits to two-thirds the taking into account of the periods of service completed, beyond four years, under fixed-term contracts, including where, after a certain number of years of service, the remaining one-third of the periods of service is reinstated solely for salary purposes.

63 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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.

Clause 4 of the framework agreement on fixed-term work, concluded on 18 March 1999, 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,

must be interpreted as precluding national legislation which, for the purposes of recognition of the length of service of a worker upon his or her appointment to the permanent staff as a career civil servant, limits to two-thirds the taking into account of the periods of service completed, beyond four years, under fixed-term contracts, including where, after a certain number of years of service, the remaining one-third of the periods of service is reinstated solely for salary purposes.

i The name of the present case is a fictitious name. It does not correspond to the real name of any of the parties to the proceedings.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Lufoni (Social policy - Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP- Public sector - Teachers - Judgment) [2024] EUECJ C-322/23 (17 October 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/C32223.html Cite as: [2024] EUECJ C-322/23, ECLI:EU:C:2024:900, EU:C:2024:900

Court of Justice of the European Communities (including Court of First Instance Decisions)