1.

As the Court is already aware from other cases, within the Italian justice system, certain tasks are fulfilled by honorary judges and public prosecutors, many of whom are dissatisfied with their working conditions. Their work is considered an honorary position and, accordingly, they are appointed only for fixed terms and remunerated in the form of flat rates per case. Paid leave, social security and pensions are not provided for. However, the scale of their work – that is to say, the cases they deal with and the cumulative duration of their time in office – corresponds to a full-time job of indefinite duration. ( 2 ) They have consequently already gained successes following previous requests for preliminary rulings, in particular regarding claims to paid leave ( 3 ) and to social security and pensions, ( 4 ) as they are unfavourably treated in that respect compared with ordinary judges and public prosecutors.

2.

Now, Italy has introduced an assessment procedure for serving honorary judges and public prosecutors on the basis of which they can be transferred to an employment relationship with fixed remuneration. If they take part in that procedure, however, they must waive all further claims based on their previous honorary work. That waiver would, in particular, encompass their claims under EU law which have previously been recognised by the Court and any additional claims under EU law to, for example, higher remuneration. If they are not transferred to that employment relationship of indefinite duration, the legislation provides for a claim to flat-rate compensation for the work carried out in the past to replace the claims they must waive.

3.

In the present proceedings, it is necessary to clarify whether the relevant provisions of EU law, in particular the principle of non-discrimination against fixed-term workers, preclude that compulsory waiver of claims based on EU law.

4.

While the request for a preliminary ruling relates both to EU primary law and to Directive 2003/88/EC, ( 5 ) Directive 97/81/EC ( 6 ) and Directive 1999/70/EC, ( 7 ) the latter is of primary interest in the present case.

5.

Clause 4(1) of the framework agreement on fixed-term work lays down the principle of non-discrimination against fixed-term workers:

‘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.’

6.

Clause 5 of the framework agreement on fixed-term work prohibits the abuse of fixed-term employment contracts:

7.

The request for a preliminary ruling concerns the restriction of claims in respect of the past which is contained in Article 29(1), (2), (3) and (5) of decreto legislativo No 116 of 13 July 2017 (Legislative Decree No 116 of 13 July 2017), as replaced by Article 1(629) of Legge No 234 of 30 December 2021 (Law No 234 of 30 December 2021):

‘1.   Honorary judges [and public prosecutors ( 8 )] in service on the date on which this Legislative Decree enters into force may be confirmed in their posts on request until the age of 70.

2.   Honorary judges [and public prosecutors] in service on the date when this Legislative Decree enters into force who do not qualify for confirmation, either because they do not submit an application or because they do not pass the assessment procedure referred to in paragraph 3, shall be entitled, subject to their right to refuse, to a payment of EUR 2500 before tax for each year of service during which the judge [or public prosecutor] has been engaged in hearings for at least 80 days, and to a payment of EUR 1500 before tax for each year of service during which the judge has been engaged in hearings for fewer than 80 days, and in any case up to a total per capita limit of EUR 50000 before tax. For the purpose of calculating the payment due under the preceding sentence, service for periods exceeding six months shall be deemed equal to one year. Receipt of the payment entails a waiver of all further claims of any nature whatsoever arising from the terminated honorary relationship.

…

5.   The application to participate in the assessment procedures referred to in paragraph 3 entails the waiver of all further claims of any nature whatsoever arising from the previous honorary relationship, except for the right to the payment referred to in paragraph 2 in the event of non-confirmation.

…’

8.

Under Article 29(4) of Legislative Decree No 116, the assessment procedure consists of an oral examination lasting no more than half an hour on a practical case in the field in which the applicants have been working on an honorary basis.

9.

Article 29(6) of Legislative Decree No 116 provides that honorary judges who are confirmed in their role and decide to work exclusively in that role be remunerated in accordance with certain collective agreement for judicial personnel. Paragraph 7 contains a provision governing remuneration on the same basis for confirmed honorary judges and prosecutors wishing to engage in other work in addition to that post.

10.

The applicant is an honorary public prosecutor attached to an Italian public prosecutor’s office. She has the same legal and economic status as the corresponding honorary judges with adjudicative functions who, as honorary magistrates, were the subject of previous decisions of the Court.

11.

The applicant states to the referring court that she has held the office of honorary judge with prosecutorial functions continuously since 4 April 2001 and was confirmed in that post and that employment was repeatedly extended by law until 31 May 2024.

12.

In the case in the main proceedings, she seeks additional remuneration for participating in 10 criminal hearings. For each of those hearings, the applicant received a payment of EUR 98 from the defendants – the Ministero della Giustizia (Ministry of Justice, Italy) and the Ministero dell’Economia e delle Finanze (Ministry of Economy and Finance, Italy). Taxes were deducted from those sums, but no social security or welfare contributions were paid, with the applicant having to pay these contributions at her own expense to the relevant institutions.

13.

The referring court holds that the equivalent daily rate of remuneration for a professional judge performing the duties of a public prosecutor is EUR 248 a day. In addition, it finds, the State pays social welfare charges to the competent institutions for each professional judge.

14.

The applicant therefore requests that the defendants be ordered to pay an additional EUR 150 for each of the aforementioned hearings.

15.

The referring court holds that the applicant, as an honorary public prosecutor, is a fixed-term worker who is comparable to a judge in full-time employment of indefinite duration performing the duties of a public prosecutor. In particular, the applicant carries out investigative activities and participates in criminal hearings.

16.

On the basis of the documents submitted in the main proceedings, the referring court considers it to have been established that the applicant actually and regularly performs the duties of an honorary judge, for which she receives remuneration. It furthermore states that another court, the Tribunale ordinario di Roma (District Court, Rome, Italy), previously ruled that the applicant, as a fixed-term worker within the meaning of the framework agreement on fixed-term work, is entitled as a matter of principle to compensation for the repeated conclusion of fixed-term contracts and for various forms of unfavourable treatment. However, according to that information, whether or not she was treated unfavourably in terms of the amount of remuneration is not the subject of that other decision.

17.

After the applicant submitted an application to take part in the assessment procedure provided for in Article 29 of Legislative Decree No 116 of 13 July 2017, she was required by law to waive any further claims of any nature whatsoever resulting from the honorary relationship.

18.

The referring court understands that waiver as precluding the claim asserted and therefore refers the following questions to the Court of Justice for a preliminary ruling:

‘Must Article 288 TFEU, Articles 17, 31, 34 and 47 of the Charter of Fundamental Rights of the European Union [(‘the Charter’)], Article 7 of [the Working Time Directive], Clause 4 of the Framework Agreement on part-time work and Clause 4 of the framework agreement on fixed-term work be interpreted as precluding national legislation such as Article 29 of [Legislative Decree No 116 of 13 July 2017], as replaced by Article 1(629) of [Law No 234 of 30 December 2021], which provides for the automatic waiver by law of all claims concerning the implementation of the abovementioned directives, with the loss of all other remuneration, employment and social welfare benefits guaranteed by European law:

19.

The Italian Republic and the European Commission submitted written observations and, like the applicant in the main proceedings, presented oral argument at the hearing held at her request on 1 February 2024.

20.

To answer the request for a preliminary ruling, I will first briefly address its admissibility, then extract the relevant subject matter and finally discuss whether the legislation on waiving claims is compatible with EU law.

21.

As in other proceedings concerning the rights of honorary judges and public prosecutors under EU law, Italy contends that the procedure is ‘contrived’ in so far as the applicant asserts only part of her potential claim in order to be able to bring it before an honorary magistrate, who has jurisdiction only in respect of small claims. It submits that an honorary magistrate, nevertheless, has an interest in the outcome of the case and is therefore not sufficiently independent. However, as the Court has previously rejected those objections in similar proceedings, ( 9 ) they cannot be upheld in the present case either.

22.

Nevertheless, it is necessary to specify the subject matter of the request for a preliminary ruling.

23.

The applicant in the main proceedings is an honorary public prosecutor. If she wishes to continue to work in her post, she must be confirmed in her role in the assessment procedure provided for in Article 29 of Legislative Decree No 116. The procedure is an oral examination on matters pertaining to her honorary work.

24.

However, her application to participate in that procedure resulted under Article 29(5) in the waiver of all further claims of any nature whatsoever arising from the previous honorary relationship. The referring court and I understand that waiver as referring to claims which go beyond the flat rates per case with which honorary judges and public prosecutors have been remunerated to date. Therefore, the waiver would include the additional remuneration claimed in the case in the main proceedings and the claims to paid leave as well as social security and pensions already recognised by the Court.

25.

Only if the applicant is unsuccessful in that assessment procedure can she assert claims to flat-rate compensation under Article 29(2) of Legislative Decree No 116. Those claims are calculated on the basis of the duration and scale of her honorary work in the past and not on the basis of the exact scale of the claims which she could potentially assert and enforce under EU law.

26.

If, on the other hand, the applicant is confirmed in her role as a result of the assessment procedure, she will be able to continue to fulfil that role until the age of 70 and will in future receive remuneration based on the pay scale for certain other workers in the justice system. However, the Italian legislation rules out further claims in respect of work carried out in the past.

27.

The request for a preliminary ruling is intended to clarify whether that waiver provision is inadmissible, in particular with regard to infringement of the Working Time Directive, Clause 4 of the Framework Agreement on part-time work and Clause 4 of the framework agreement on fixed-term work. Although an infringement of those provisions can, in principle, form the basis of honorary judges’ claims, ( 10 ) the fact remains that the proceedings before the referring court concern neither working time, in particular the right to paid leave, nor part-time employment.

28.

On the contrary, the referring court finds that the applicant is a fixed-term worker asserting claims to higher remuneration for 10 criminal hearings in which she participated as a representative of the public prosecutor’s office.

29.

In the view of the referring court, those rights could arise from the fact that the applicant is in a situation comparable to that of an ordinary public prosecutor performing the same work. It finds, nevertheless, that she received EUR 98 for each hearing, whereas ordinary public prosecutors receive approximately EUR 248 per day and the State also pays social welfare contributions to the competent institutions.

30.

However, 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.

31.

The referring court does not in the request for a preliminary ruling discuss whether and in what amount differences in remunerations are justified.

32.

The Court, on the other hand, has already expressed doubts as to whether honorary judges must benefit in full from the same employment conditions as ordinary judges. It cannot be ruled out that more favourable employment conditions of ordinary judges, including higher remuneration, may be justified by the selection procedure and by the duties with which they are entrusted. ( 11 ) In connection with remuneration, I have even expressed doubts as to the comparability of the two categories. ( 12 )

33.

On the basis of the information available, the question seems rather to be to what extent the difference in treatment between the two categories is justified. ( 13 ) After all, the principle of non-discrimination not only requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified. ( 14 ) Rather, a difference in treatment must be proportionate to the aim pursued by the treatment. ( 15 ) Accordingly, the Court has previously found that the complete exclusion of honorary judges from any right to leave and from all forms of pension and social security protection cannot be accepted, ( 16 ) without requiring that such rights be granted on the same scale as for ordinary judges.

34.

As regards remuneration, Clause 4(1) of the framework agreement on fixed-term work could permit paying ordinary judges and public prosecutors better than honorary officials. However, that does not rule out the possibility that honorary judges and public prosecutors receive too little remuneration and can therefore demand a proportionate increase under that provision. In that respect, the future remuneration envisaged for honorary judges and public prosecutors who are permanently confirmed in their roles on the basis of the assessment procedure could provide at least a point of reference for what remuneration the Italian legislature considers appropriate for that work. ( 17 )

35.

However, the referring court refers no corresponding question to the Court for a preliminary ruling. That is only logical, since the Court has – as already mentioned – previously discussed the comparability of honorary and ordinary judges in Italy and the justification of different treatment, leaving the final decision on those issues to the national courts. ( 18 ) As the request for a preliminary ruling does not appear to raise any new perspectives on the comparison between the two categories of judges in relation to those earlier procedures, no gain in knowledge could be expected from such a question.

36.

Given that the request for a preliminary ruling is not intended (or able) to determine whether or to what extent the applicant’s lower remuneration is to be considered unjustified less favourable treatment within the meaning of Clause 4(1) of the framework agreement on fixed-term work, it is also unclear what significance may be attached to Article 31 of the Charter (the right to fair and just working conditions) and Article 34 (the right to social security and assistance).

37.

By contrast, Article 17 of the Charter (the right to property) and Article 47, in so far as its first paragraph protects the right to an effective remedy, are relevant in principle. That is because the Italian legislation at issue concerning the waiver of claims may interfere with existing rights and their enforcement. However, those provisions – just like Article 288 TFEU, which is also cited in the question – are already sufficiently fleshed out by Clause 4(1) of the framework agreement on fixed-term work, read in conjunction with the principle of effectiveness, so they do not require separate discussion.

38.

It therefore only remains to be determined whether Clause 4(1) of the framework agreement on fixed-term work and the principle of effectiveness preclude the provision made in Italian law for honorary judges to waive claims on the basis of unjustified less favourable treatment in comparison with ordinary judges on submission of an application to take part in an assessment procedure in connection with employment of indefinite duration.

39.

In the case in the main proceedings, the applicant asserts claims because she received lower remuneration as an honorary public prosecutor employed on a fixed-term basis than an ordinary public prosecutor. In her opinion, that constitutes discrimination incompatible with Clause 4(1) of the framework agreement on fixed-term work.

40.

I will first set out the nature of claims under Clause 4(1) of the framework agreement on fixed-term work, then discuss the impacts of the Italian waiver provision in the light of the principle of effectiveness and finally address the case-law on Clause 5 of the framework agreement on which, according to Italy’s submissions, the waiver provision relies.

41.

Clause 4(1) of the framework agreement on fixed-term work provides that, in respect of employment conditions, fixed-term workers must 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.

42.

That provision is directly applicable and can therefore be invoked against the Member State in its capacity as an employer. ( 19 ) It encompasses employment conditions including remuneration as well as pensions which depend on the employment relationship. ( 20 )

43.

Where fixed-term employees are disadvantaged in terms of remuneration in relation to comparable permanent workers without objective grounds, Clause 4(1) of the framework agreement on fixed-term work can serve as the basis for a claim seeking to grant a fixed-term worker constituent parts of remuneration which, under national law, are reserved to permanent workers. ( 21 )

44.

As already mentioned, it is, in principle, for the Italian courts to determine whether and, if so, on what scale honorary public prosecutors can assert such a claim. ( 22 ) However, the request for a preliminary ruling is based on the assumption that such claims exist and concerns limitations on enforcing them by judicial process.

45.

EU law contains no provisions on the enforcement of such a claim, so the Member States have procedural autonomy in that respect. Nevertheless, the principles of equivalence and effectiveness apply. In particular, the national provisions must not render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness). ( 23 )

46.

Article 29 of Legislative Decree No 116 does not render it entirely impossible to exercise a potential claim under Clause 4(1) of the framework agreement on fixed-term work. Where the persons concerned do not apply to participate in the assessment procedure and do not accept the flat-rate compensation provided for in the first sentence of Article 29(2) when they cease their honorary work, the waiver provisions under Article 29(5) or the third sentence of Article 29(2) do not rule out an action asserting more extensive claims under Clause 4(1).

47.

If honorary judges or public prosecutors do not take part in the assessment procedure and only accept the flat-rate compensation provided for in the first sentence of Article 29(2) of Legislative Decree No 116, the waiver provision in the third sentence also appears unobjectionable. In that situation, the beneficiaries, who, after all, are professional lawyers, voluntarily refrain from asserting claims which may be more extensive.

48.

By contrast, honorary judges or public prosecutors who participate in the assessment procedure but who are not confirmed in their roles do not voluntarily choose the flat-rate compensation provided for in the first sentence of Article 29(2) of Legislative Decree No 116. Instead, their goal is to continue working in the justice system.

49.

Nonetheless, it cannot be ruled out that the flat-rate compensation satisfies the requirements of the principle of effectiveness.

50.

Admittedly, it can be assumed that the compensation of EUR 2500 or EUR 1500 for each year of work to date may amount to less than the claims which the persons concerned can assert under Clause 4(1) of the framework agreement on fixed-term work and the Working Time Directive. In that respect, the previously recognised claims to paid leave, social security and pensions need to be taken into account alongside the claims to higher remuneration made in the main proceedings, the existence and scale of which is not yet clear. In the event of full-time employment, the annual claims to paid leave alone may turn out higher than the compensation. ( 24 )

51.

However, if they accept the compensation provided for in the first sentence of Article 29(2) of Legislative Decree No 116, the persons concerned do not need to bring legal proceedings and – as far as can be seen – no expiry of claims is applied. Consequently, the total amount of compensation may, in many instances, be significantly higher than that of the claims which the persons concerned could still enforce under Clause 4(1) of the framework agreement on fixed-term work and the Working Time Directive.

52.

Such generalisation of claims to compensation can be justified as promoting administrative simplification and legal certainty, as the comprehensive examination of each particular case would be associated with considerable costs and difficulties. ( 25 ) The consideration of such elements is specifically part of the principle of effectiveness, since that principle does not require the rights based on EU law to be enforceable without restriction but only prohibits excessive difficulty. The principle therefore permits the setting of suitable time limits for reasons of legal certainty. ( 26 )

53.

However, it is for the national courts to assess definitively whether the flat-rate compensation in conjunction with the compulsory waiver provided for in Article 29 of Legislative Decree No 116 makes it excessively difficult to exercise the rights conferred by EU law and is therefore, in effect, not appropriate. In so doing, they must take into account all relevant circumstances, including the expiry provisions and the scale of any additional remuneration claims.

54.

However, according to the information provided at the hearing, almost all the honorary judges and public prosecutors who have participated in the assessment procedure to date, including the applicant, were confirmed in their roles. They receive no flat-rate compensation under the first sentence of Article 29(2) of Legislative Decree No 116 and therefore, under Article 29(5), they have, in effect, waived in full any further claims arising from their previous honorary work by participating in the assessment procedure.

55.

That obligatory waiver of claims conferred by EU law, in particular the claims derived from Clause 4 of the framework agreement on fixed-term work, is compatible with the principle of effectiveness only if confirmed applicants receive appropriate compensation.

56.

It is true that applicants who are confirmed in their role gain considerable advantages, as they can continue their work in exchange for fixed remuneration in future and until the age of 70 – that is to say, in practical terms, as employment of indefinite duration. Prima facie, however, those working conditions constitute merely the consideration for their future work in the justice system.

57.

Nevertheless, Italy takes the view that they include appropriate compensation. That is apparent in particular, Italy submits, from the fact that newly appointed honorary judges and public prosecutors do not benefit from the working conditions for confirmed applicants.

58.

The applicant, on the other hand, plausibly argues that the future remuneration does not constitute sufficient compensation, in particular with regard to her pension, as during the remaining duration of that work she was unable to earn entitlement to a retirement pension. The Commission also calls for the compensation to be more closely aligned with the disadvantages suffered in the past.

59.

The Court is not in a position to assess which of those two views is correct, as it does not have the necessary information. The question whether the employment conditions of applicants confirmed in their roles include appropriate compensation for the compulsory waiver of other claims derived from EU law in respect of their previous work is therefore also for the national courts to decide.

60.

Contrary to what Italy maintains, the case-law on claims for compensation for infringements of Clause 5 of the framework agreement on fixed-term work does not indicate otherwise.

61.

Under Clause 5 of the framework agreement on fixed-term work, Member States must introduce measures to prevent abuse arising from the use of successive fixed-term employment contracts or relationships. They must therefore, in the event of such abuses, adopt measures which are proportionate, sufficiently effective and a sufficient deterrent to ensure that the provisions adopted pursuant to the framework agreement are fully effective. ( 27 )

62.

In that regard, the Court found, in the context of the schools sector, that, following the conversion provided for by law of a fixed-term employment relationship into an employment relationship of indefinite duration, no other penalty was necessary in respect of misuse of fixed-term employment relationships. ( 28 ) In particular, it held, it was not necessary in such a situation to grant additional financial compensation to the parties concerned. ( 29 )

63.

At first sight, that case-law seems to correspond to the present waiver provision, as it prevents only those honorary public prosecutors from asserting claims in respect of the past whose fixed-term employment relationship is converted into an employment relationship of indefinite duration.

64.

On closer inspection, however, it appears that the case-law cannot be applied, since the claims derived from Clause 4(1) of the framework agreement on fixed-term work are entirely different in nature from the claims to compensation provided for in Clause 5.

65.

Claims derived from Clause 4(1) of the framework agreement on fixed-term work are based on a prohibition of discrimination and are therefore specifically determined, in terms of their scale, by comparison between a disadvantaged category and a favoured category. As the applicant emphasises, such claims were not the subject of the aforementioned case-law on the schools sector.

66.

Conversely, ‘claims to compensation’ for infringements of Clause 5 of the framework agreement on fixed-term work do not arise from such a comparison. There is also no intention to compensate harm, because it is impossible, as a rule, to determine the harm caused by misuse of fixed-term employment contracts. ( 30 ) Rather, the measures are penalties intended to prevent the misuse of fixed-term employment contracts. However, the choice of penalising measures is left to the discretion of the Member States, as long as the measures effectively combat misuse. ( 31 )

67.

Clause 4(1) of the framework agreement on fixed-term work is therefore directly applicable, ( 32 ) whereas that is not the case for Clause 5(1). ( 33 )

68.

Therefore, the combination provided for in Article 29 of Legislative Decree No 116 of conversion of employment relationships and claims to compensation for those whose relationships are not converted may be an effective and appropriate measure to penalise misuse of fixed-term employment relationships for honorary judges and public prosecutors within the meaning of Clause 5 of the framework agreement on fixed-term work. However, this effect of the provision does not necessarily justify entirely ruling out claims based on Clause 4(1) in respect of work carried out in the past.

69.

I therefore propose that the Court give the following answer to the request for a preliminary ruling:

In light of the principle of effectiveness, Clause 4(1) 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 meaning that

if that honorary public prosecutor falls within the definition of a ‘fixed-term worker’.