In its preliminary ruling, the Court of Justice of the European Union (CJEU) delivered a judgement concerning the principle of non-discrimination and the improper use of fixed term contracts. In its judgement, the CJEU confirmed the importance of eliminating discrimination between part-time workers and full-time workers, and the requirement on Member States to adopt effective measures to prevent the abuse of successive fixed-term employment contracts.
In the dispute concerning this preliminary ruling, the complainant (PG) argues that magistrates and ordinary judges carry out identical tasks, and seeks a declaration that he is entitled to the legal status of a public sector employee, on a full-time or part-time basis, within the judiciary. PG also seeks an order for reinstatement of his financial, social security and pension rights.
The first point of law addressed by the CJEU pertained to Article 7 of Directive 2003/88 and Clause 4 of both the framework agreement on part-time work and the framework agreement on fixed-term work.
The CJEU first reiterated that, as established in its judgment of 16 July 2020, Governo della Repubblica italiana (Status of Italian magistrates) (C 658/18, EU:C:2020:572), the concept of ‘fixed-term worker’ referred to in Clause 2(1) of the framework agreement on fixed-term work, must be interpreted as encompassing a 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, which is, however, for the referring court to verify. [Para. 30].
The CJEU then recalled that clause 4(1) of the framework agreement on fixed-term work 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 (Governo della Repubblica italiana, para 136). [Para. 32].
If it is established that a magistrate such as PG is, in the light of Clause 4 of the framework agreement on fixed-term work, in a comparable situation to that of ordinary judges, it must still be verified whether there is an objective ground justifying a difference in treatment [para. 39].
Indeed, the CJEU acknowledges that there are significant differences between magistrates and ordinary judges, the most striking being the existence of an entrance competition specifically designed for ordinary judges to enter the judiciary, which is not intrinsic to the appointment of magistrates. This however cannot justify honorary magistrates being completely excluded from entitlement to paid annual leave or to a social security and pension scheme to which ordinary judges in a comparable situation are entitled. [Para. 48].
Concluding on this first point, the CJEU established that that Article 7 of Directive 2003/88, Clause 4 of the framework agreement on part-time work and Clause 4 of the framework agreement on fixed-term work must be interpreted as precluding national legislation which does not provide for an entitlement for magistrates to 30 days’ paid annual leave or to a social security and pension scheme deriving from the employment relationship, such as that provided for ordinary judges, if that magistrate comes within the definition of ‘part-time worker’ within the meaning of the framework agreement on part-time work and/or ‘fixed-term worker’ within the meaning of the framework agreement on fixed-term work and is in a comparable situation to that of an ordinary judge. [Para. 54].
The second point of law addressed by the CJEU was related to Clause 5 of the framework agreement on fixed-term work.
Here, the CJEU pointed out first and foremost that Clause 5 of the framework agreement on fixed-term work requires that Member States are to introduce measures relating to the number of successive renewals of fixed-term employment contracts or relationships and/or the maximum total duration of such contracts or relationships.
It is settled case-law that, although Member States have discretion regarding measures to prevent abuse, they cannot, however, compromise the objective or the practical effect of the framework agreement on fixed-term work (see, to that effect, judgment of 11 February 2021, M.V. and Others (Successive fixed-term contracts in the public sector), C 760/18, EU:C:2021:113, paragraph 56). [Para. 58].
The CJEU found that in the present case, it is apparent from the information provided by the referring court that no provision of Italian law makes it possible to punish in an effective and dissuasive way the improper renewal of fixed-term employment relationships within the meaning of Clause 5 of the framework agreement on fixed-term work. [Para. 64].
In conclusion, the CJEU found that Clause 5(1) of the framework agreement on fixed-term work must be interpreted as precluding national legislation pursuant to which a fixed-term employment relationship can be renewed a maximum of three times successively, each renewal being for a duration of four years, for a total duration that does not exceed 16 years, and which does not provide for the possibility of penalising in an effective and dissuasive way the abusive continuance of the employment relationship. [Para. 66].
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