AQ and Others v Presidenza del Consiglio dei ministri and Others.

JurisdictionEuropean Union
ECLIECLI:EU:C:2022:985
Date15 December 2022
Docket NumberC-40/20
Celex Number62020CJ0040
CourtCourt of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Sixth Chamber)

15 December 2022 (*)

(References for a preliminary ruling – Social policy – Fixed-term work – Directive 1999/70/EC – Framework agreement – Principle of non-discrimination – Measures to prevent abuse of successive fixed-term employment contracts – Public-law fixed-term employment relationship – University researchers)

In Joined Cases C‑40/20 and C‑173/20,

REQUESTS for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decisions of 10 January 2020, received at the Court on 27 January 2020 and 23 April 2020, in the proceedings

AQ,

BO,

CP (C‑40/20),

AZ,

BY,

CX,

DW,

EV,

FU,

GJ (C‑173/20),

v

Presidenza del Consiglio dei Ministri,

Ministero dell’Istruzione, dell’Università e della Ricerca – MIUR,

Università degli studi di Perugia,

intervening parties:

Federazione Lavoratori della Conoscenza Cgil,

Confederazione Generale Italiana del Lavoro (CGIL),

Cipur – Coordinamento Intersedi Professori Universitari di Ruolo,

Anief – Associazione Professionale e Sindacale (C‑40/20),

HS,

IR,

JQ,

KP,

LO,

MN,

NM,

OZ,

PK,

QJ,

RI,

SH,

TG,

UF,

WE,

XC,

YD (C‑173/20),

THE COURT (Sixth Chamber),

composed of P.G. Xuereb, President of the Chamber, A. Kumin (Rapporteur) and I. Ziemele, Judges,

Advocate General: N. Emiliou,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– AQ, BO, CP, AZ, BY, CX, DW, EV, FU, GJ, HS, IR, JQ, LO, MN, NM, OZ, PK, QJ, RI, SH, TG, UF, XC and YD, by F. Dinelli and G. Grüner, avvocati,

– Federazione Lavoratori della Conoscenza Cgil and Confederazione Generale Italiana del Lavoro (CGIL), by F. Americo, A. Andreoni and I. Barsanti Mauceri, avvocati,

– Cipur – Coordinamento Intersedi Professori Universitari di Ruolo, by F. Dinelli and G. Grüner, avvocati,

– Anief – Associazione Professionale e Sindacale, by V. De Michele, S. Galleano and W. Miceli, avvocati,

– the Italian Government, by G. Palmieri, acting as Agent, by A. Berti Suman, procuratore dello Stato, and by C. Colelli and L. Fiandaca, avvocati dello Stato,

– the European Commission, by N. Ruiz García and A. Spina, acting as Agents,

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

gives the following

Judgment

1 These requests for a preliminary ruling concern the interpretation of Clause 5 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 requests have been made in two sets of proceedings between (i) AQ, BO and CP (Case C‑40/20) and (ii) AZ, BY, CX, DW, EV, FU and GJ (Case C‑173/20), university researchers, on the one hand, and the Presidenza del Consiglio dei Ministri (Presidency of the Council of Ministers, Italy), the Ministero dell’Istruzione, dell’Università e della Ricerca – MIUR (Ministry of Education, Universities and Research, Italy) and the Università degli studi di Perugia (University of Perugia, Italy), on the other, concerning a refusal to transform those researchers’ fixed-term contracts into contracts of indefinite duration or to allow them to undergo appraisal so that they may be added to the list of associate professors.

Legal context

European Union law

3 Recital 14 of Directive 1999/70 is worded as follows:

‘The signatory parties wished to conclude a framework agreement on fixed-term work setting out the general principles and minimum requirements for fixed-term employment contracts and employment relationships; they have demonstrated their desire to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination, and to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships’.

4 The second paragraph of the preamble to the Framework Agreement states that the parties thereto ‘recognise that contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers [and that] fixed-term employment contracts respond, in certain circumstances, to the needs of both employers and workers’.

5 Under Clause 1 of the Framework Agreement:

‘The purpose of this framework agreement is to:

(a) improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination;

(b) establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.’

6 Clause 3 of the Framework Agreement, entitled ‘Definitions’, provides:

‘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.’

7 Clause 4 of the Framework Agreement, entitled ‘Principle of non-discrimination’, provides, in paragraph 1 thereof:

‘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.’

8 Clause 5 of the Framework Agreement, entitled ‘Measures to prevent abuse’, states:

‘1. To prevent abuse arising from the use of successive fixed-term employment contracts or relationships, Member States, after consultation with social partners in accordance with national law, collective agreements or practice, and/or the social partners, shall, where there are no equivalent legal measures to prevent abuse, introduce in a manner which takes account of the needs of specific sectors and/or categories of workers, one or more of the following measures:

(a) objective reasons justifying the renewal of such contracts or relationships;

(b) the maximum total duration of successive fixed-term employment contracts or relationships;

(c) the number of renewals of such contracts or relationships.

2. Member States after consultation with the social partners and/or the social partners shall, where appropriate, determine under what conditions fixed-term employment contracts or relationships:

(a) shall be regarded as “successive”[;]

(b) shall be deemed to be contracts or relationships of indefinite duration.’

9 Clause 8 of the Framework Agreement, entitled ‘Provisions on implementation’, is worded as follows:

‘1. Member States and/or the social partners can maintain or introduce more favourable provisions for workers than set out in this [framework agreement].

…’

Italian law

10 Article 22 of legge n. 240 – Norme in materia di organizzazione delle università, di personale accademico e reclutamento, nonché delega al Governo per incentivare la qualità e l’efficienza del sistema universitario (Law No 240 of 30 December 2010 laying down rules on the organisation of universities, academic staff and recruitment and delegating powers to the Government to enhance the quality and efficiency of the university system) (Ordinary Supplement to GURI No 10 of 14 January 2011), in the version applicable to the facts in the main proceedings (‘Law No 240/2010’), entitled ‘Research grants’, provides, in paragraph 9 thereof:

‘The total duration of employment relationships established with the recipients of the grants provided for in this Article and of the contracts referred to in Article 24, including those with different, public, private or online universities, as well as with the bodies referred to in paragraph 1 of this Article, with the same person, may not in any event exceed 12 years, whether continuous or otherwise. For the purpose of calculating the duration of those employment relationships, periods of maternity leave or periods of absence on health grounds in accordance with the legislation in force shall not be taken into account.’

11 Article 24 of that law, entitled ‘Fixed-term researchers’, provides:

‘1. Depending on the programming resources available, in order to carry out research, teaching, supplementary teaching and student service activities, universities may draw up fixed-term employment contracts. The contract shall establish, on the basis of the university’s regulations, the arrangements for carrying out teaching, supplementary teaching and student service activities, as well as research activities.

2. Addressees shall be chosen by means of public selection procedures organised by universities using a regulation within the meaning of [legge n. 168 – Istituzione del Ministero dell’Università e della Ricerca Scientifica e Tecnologica (Law No 168 of 9 May 1989 establishing the Ministry of Universities and Scientific and Technological Research)], in compliance with the principles set out in the European Charter for Researchers annexed to the [Commission Recommendation of 11 March 2005 on the European Charter for Researchers and on a Code of Conduct for the Recruitment of Researchers (2005/251/EC)] …

3. Contracts shall have the following features:

(a) three-year...

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1 practice notes
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    • 19 October 2023
    ...comparabile [v., per analogia, sentenza del 15 dicembre 2022, Presidenza del Consiglio dei Ministri e a. (Ricercatori universitari), C‑40/20 e C‑173/20, EU:C:2022:985, punto 101 e giurisprudenza ivi 45 Se è dimostrato che, nell’ambito del loro impiego, i lavoratori a tempo parziale esercita......
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