Article 31 - Fair and just working conditions
Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
Reference for a preliminary ruling — Admissibility — Article 267 TFEU — Definition of ‘court or tribunal of a Member State’ — Criteria — Social policy — Directive 2003/88/EC — Scope — Article 7 — Paid annual leave — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clauses 2 and 3 — Concept of ‘fixed-term worker’ — Magistrates and ordinary judges — Difference in treatment — Clause 4 — Principle of non-discrimination — Concept of ‘objective grounds’.
Outcome of the case:
I therefore propose that the Court give the following ruling:
(1) The Giudice di pace di Bologna (Magistrates’ Court, Bologna, Italy) is a court or tribunal within the meaning of Article 267 TFEU.
(2) 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 is to be interpreted as meaning that an Italian magistrate whose remuneration is made up of a small basic sum and payments for settled cases and trials must be regarded as a worker within the meaning of Article 7 of the Working Time Directive and is therefore entitled to at least 4 weeks’ paid annual leave if he or she carries out a significant number of judicial functions, cannot decide for him or herself which cases he or she handles and is subject to the disciplinary obligations of professional judges.
Such a magistrate who has been appointed only for a fixed period of time is comparable to Italian professional judges as regards the duration of the paid annual leave. He or she may therefore request the same amount of leave as professional judges pursuant to clause 4 of Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP. Remuneration during leave must be calculated on the basis of his or her normal remuneration during his or her judicial service.
(3) Legislation on the personal liability of judges for intentional fault or serious misconduct ‘in the event of manifest infringement of the law or of European Union law’ must, for its part, be interpreted in the light of EU law, to the effect that the application of EU law with primacy does not give rise to judicial liability. If such an interpretation is not possible, the legislation cannot be applied.
24) The applicant claimed that payment by way of damages for manifest infringement by the Italian State of clauses 2 and 4(1), (2) and (4) of the framework agreement on fixed-term work, read in conjunction with Articles 1(3) and 7 of Directive 2003/88 and Article 31(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’).
25).The Giudice di pace di Bologna (Magistrates’ Court, Bologna) initially addressed five questions to the Court from these proceedings, ( 7 ) but subsequently dispensed with two of them. The following three questions therefore remain:
‘(1) Does a magistrate, when making a request for a preliminary ruling, meet the definition of an ordinary European court having jurisdiction to make a request for a preliminary ruling pursuant to Article 267 TFEU, even though — in breach of the guarantees of the independence and impartiality of ordinary European courts referred to by the Court of Justice in its judgments of 19 September 2006, Wilson (C‑506/04, EU:C:2006:587, paragraphs 47 to 53); of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117, paragraphs 32 and 41 to 45); and of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraphs 50 to 54) — under national law, magistrates do not, because of their job insecurity, enjoy working conditions equivalent to those of professional judges, even though they perform the same judicial functions and are included in the national judicial system?
(2) If question 1 is answered in the affirmative, is the work carried out by the applicant magistrate covered by the term “fixed-term worker” for the purpose of Articles 1(3) and 7 of Directive 2003/88, read in conjunction with clause 2 of the framework agreement on fixed-term work implemented by Directive 1999/70 and Article 31(2) of [the Charter], as interpreted by the Court of Justice in its judgments of 1 March 2012, O’Brien (C‑393/10, EU:C:2012:110), and of 29 November 2017, King (C‑214/16, EU:C:2017:914) and, if so, may an ordinary or professional judge be regarded as a permanent worker indistinguishable from a magistrate working for a fixed term, for the purposes of the application of the same working conditions as referred to in clause 4 of the framework agreement on fixed-term work implemented by Directive 1999/70?
(3) If questions 1 and 2 are answered in the affirmative, is Article 47 of [the Charter], read in conjunction with Article 267 TFEU and in the light of the case-law of the Court of Justice of the European Union concerning the liability of the Italian State for manifest infringement of Community law by courts adjudicating at last instance in the judgments of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513); of 13 June 2006, Traghetti del Mediterraneo (C‑173/03, EU:C:2006:391); and of 24 November 2011, Commission v Italy (C‑379/10, not published, EU:C:2011:775), inconsistent with Article 2(3) and (3a) of legge 13 aprile 1988, n. 117, Risarcimento dei danni cagionati nell’esercizio delle funzioni giudiziarie e responsabilità civile dei magistrati (Law No 117 of 13 April 1988 on the reparation of damage caused in the exercise of judicial functions and the civil liability of judges), which provides for judicial liability for intentional fault or serious misconduct ‘in the event of manifest infringement of the law or of European Union law’ and which presents national courts with the choice — which, however it is made, gives rise to civil liability and liability to disciplinary action in relation to the State in cases in which the public authority itself is a substantive party, and in particular where the adjudicator of the case is a magistrate working for a fixed term and without effective legal, economic and social security protection — as in the present case, of either infringing national legislation, by disapplying it and applying EU law, as interpreted by the Court of Justice, or of infringing EU law and applying national legislation which precludes protection and is incompatible with Articles 1(3) and 7 of Directive 2003/88, clauses 2 and 4 of the framework agreement on fixed-term work implemented by Directive 1999/70, and Article 31(2) of [the Charter]?’
114) From the perspective of EU law, it should be noted that the threat of a penalty for applying EU law while simultaneously disapplying incompatible national law would be contrary to the primacy of EU law, the principle of sincere cooperation laid down in Article 4(3) TEU, and the right to effective judicial protection in accordance with Article 47 of the Charter. At the same time, it would be doubtful whether a judge could still apply that law independently in the light of a threat of liability for the primacy of application of EU law.