LISTEN WITH READSPEAKER
EU law precludes ‘stabilisation’ of the employment relationship of public
sector workers employed on a fixed-term basis which does not take account of the
length of service accrued
The fixed-term nature of the contract does not constitute an ‘objective
ground’ capable of justifying the refusal to take account of previous service
A number of employees, including Ms Valenza, recruited by the Italian
National Competition Authority (Autorità Garante della Concorrenza e del
Mercato) (‘the AGCM’) under successive fixed-term employment contracts, obtained
permanent contracts from that authority and were placed on its permanent staff.
That ‘stabilisation’ procedure in respect of public sector employees,
provided for by a specific Italian law, confers upon the worker – who meets
certain requirements concerning the length of his employment relationship and
the selection procedure followed for his recruitment – the status of civil
His initial salary is fixed without any regard for the length of
service accrued in employment under fixed-term contracts.
The AGCM thus refused to take into account the periods of service
previously completed by those employees for that same public authority under
The employees consequently contested that refusal.
The Consiglio di Stato (Italy) asks the Court of Justice whether the
European ‘framework agreement’ on fixed-term work precludes that Italian
In its judgment given today, the Court first of all points out that the
principle of non-discrimination set out in the framework agreement provides that
fixed-term workers must not be treated in a less favourable manner than
comparable permanent workers solely because they work on a fixed-term basis,
unless different treatment is justified on objective grounds.
The fact that they have acquired the status of permanent workers does
not exclude the possibility of relying on that principle, which is, accordingly,
applicable in the present case.
The Court next compares the situations of fixed-term workers and
It notes in that regard that – according to the explanations provided
by the Italian Government itself – the purpose of the national legislation is
precisely to promote the experience accrued with the employer.
The Court states that it is for the referring court to determine
whether the employees, when they were working under fixed-term contracts, were
in a situation comparable to that of career civil servants employed on a
The nature of the duties performed by those employees under fixed-term
employment contracts and the quality of the experience which they thereby
acquired constitute criteria which make it possible to determine whether they
are in a situation comparable to that of career civil servants.
In any event, the fact that – unlike career civil servants – they have
not passed the general competition for obtaining a post in the public sector
does not mean that they are in a different situation, given that the conditions
for stabilisation set by the national legislature are specifically intended to
enable the stabilisation of only those fixed-term workers whose situation may be
viewed in the same way as that of career civil servants.
In the event that the duties performed for the AGCM under fixed-term
contracts correspond to those performed by a career civil servant in the
corresponding category, it has to be ascertained whether there is an objective
ground justifying the complete failure to take account of the length of service
accrued under the fixed-term contracts.
Thus, the Court points out that there may be an objective ground
justifying a difference in treatment, in a particular context and accompanied by
precise and specific factors, resulting from the specific nature of the tasks.
The unequal treatment must be based on objective and transparent
criteria enabling it to be ascertained whether that unequal treatment meets a
genuine need and is appropriate and necessary for achieving the objective
In any event, the mere fact that the fixed-term worker completed
periods of service on the basis of a fixed-term contract does not constitute
such an objective ground.
To allow that the mere temporary nature of an employment relationship
is sufficient to justify a difference in treatment as between fixed-term workers
and permanent workers would render the objectives of EU law meaningless and
would be tantamount to perpetuating a situation that is disadvantageous to
The Court acknowledges the discretion enjoyed by the Member States as
regards the organisation of their own public administrations and the conditions
for obtaining a post in the public sector.
However, the criteria which the Member States lay down must be applied
in a transparent manner and must be open to review in order to prevent any
unfavourable treatment of fixed-term workers solely on the basis of the duration
of the employment contracts which attest to their length of service and
Thus, some of the differences relating to the manner in which
fixed-term workers are recruited under ‘stabilisation’ procedures with respect
to career civil servants recruited following a general competition, the
qualifications required and the nature of the duties which they must undertake
could, in principle, justify a difference in treatment as regards their
conditions of employment.
Thus a difference in treatment could be justified if it takes account
of objective requirements relating to the post which the recruitment procedure
is intended to fill and which are unrelated to the fixed-term nature of the
The objective – as claimed by the Italian Government – of preventing
reverse discrimination against career civil servants recruited after passing a
general competition, may constitute an ‘objective ground’.
However, the Court takes the view that the Italian legislation is
disproportionate in that it completely prohibits all periods of service
completed under fixed-term contracts being taken into account in order to
determine the length of service upon recruitment on a permanent basis and, thus,
Such a complete and absolute prohibition is based on the mistaken idea
that the permanent nature of the employment relationship of certain public
officials in itself justifies a difference in treatment with respect to public
officials employed on a fixed-term basis, thereby rendering the objectives of
the directive and of the framework agreement meaningless.
It is for the referring court to ascertain whether there are ‘objective
grounds’ justifying that difference in treatment.
A reference for a preliminary ruling allows the courts and
tribunals of the Member States, in disputes which have been brought before them,
to refer questions to the Court of Justice about the interpretation of European
Union law or the validity of a European Union act.
The Court of Justice does not decide the dispute itself.
It is for the national court or tribunal to dispose of the case in
accordance with the Court's decision, which is similarly binding on other
national courts or tribunals before which a similar issue is raised.