Introduction
Some hundreds of thousands teachers and staff have been employed in Italian state schools with fixed-term contracts for several years. Is the Italian system of recruitment in state schools consistent with the European legislation preventing member states from abusing fixed-term work? The reply to this apparently simple question involved for almost five years: a) many national ordinary judges (solicited by workers claiming their rights); b) the Italian Constitutional Court (solicited by ordinary judges to invalidate national legislation); c) the European Court of Justice (solicited by both ordinary and constitutional judges to interpret EU law); d) the European Commission (launching an infringement procedure against Italy); e) the Italian legislature (changing national law to make it consistent with EU law).
This article will account for the interactions between all the institutional actors engaged in guaranteeing state school teachers and staff their rights stemming from EU law, with a particular focus on the cooperation between national and European judges. The main stages of the so-called Mascolo saga – from the surname of Raffaella Mascolo, one of the Italian teachers involved – will be explored, starting with the case law of ordinary judges and with the 2013 preliminary reference of the Tribunale di Napoli (District Court of Naples) and of the Italian Constitutional Court to the European Court of Justice.Footnote 1 Particular attention will be devoted to the procedural uniqueness of the Italian Constitutional Court’s preliminary reference, which is the first ever in the course of an indirect proceeding. The article will then analyse the 2014 response of the European Court of Justice to national ordinary and constitutional judges, which found Italian legislation to be in breach of EU law,Footnote 2 and the 2016 final decision of the Italian Constitutional Court in light of the guidelines provided by the European Court of Justice.Footnote 3 The concluding paragraphs will highlight the fruitful cooperation among judges in restoring temporary workers’ rights. It is submitted that the Italian Constitutional Court, historically escaping any kind of dialogue with the European Court of Justice, perceived the benefits stemming from the preliminary reference, and that the European Court of Justice reciprocated the cooperative attitude of constitutional judges paying particular attention to their constitutional concerns.
Italian legislation on fixed-term employment contracts and on recruitment in public schools: possible inconsistencies with EU law
The Framework Agreement concluded by the European Trade Union Confederation, Union of Industrial and Employers’ Federations of Europe and the European Centre of Employers and Enterprises providing Public Services on fixed-term work (annexed to Council Directive no. 1999/70/EC of 28 June 1999) is intended to prevent abuse arising from the use of successive fixed-term employment contracts. To this end, clause 5 paragraph 1 of the Framework Agreement requires member states, where there are no equivalent legal measures to prevent abuse, to choose among the following options: 1) to provide for objective reasons justifying the renewal of successive fixed-term employment contracts; 2) to indicate the maximum total duration of such contracts; 3) to indicate the number of renewals of such contracts.Footnote 4
Italy chose the second of the above-mentioned options. Indeed, the national measure implementing the Directive and the Framework Agreement – Legislative Decree 6 September 2001, n. 368 – allowed the employment of workers through fixed-term contracts for a maximum period of 36 months. Should this maximum total duration be exceeded, the employee can claim damages or ask for the conversion of the fixed-term contract into contracts of indefinite duration. Nevertheless, this second option is forbidden outside the private sector, namely if the temporary contracts are concluded with public administrations. In this case, any abuse stemming from the renewal of fixed-term contracts can be punished only through the employee’s right to claim damages.Footnote 5 The possible conversion of fixed-term contracts into contracts of indefinite duration would be, indeed, contrary to the Italian Constitution. As per its Article 97, employment in public administration is only accessed through selective competitive examinations, in order to ensure the efficiency and the impartiality of public administration.Footnote 6
At first glance, notwithstanding the Italian legislature’s choice to distinguish between temporary workers in the private and the public sector, EU law is correctly transposed within the domestic legal order. On closer inspection, two separate – but intertwined – aspects help one to understand the inconsistencies of the Italian legal framework with EU law that triggered the Mascolo saga, soliciting thousands of teachers to claim their rights before national courts.
The first aspect is that the very same Legislative Decree implementing the Directive and the Framework Agreement excludes from its scope of application fixed-term contracts concluded to fill temporary vacancies for teaching and administrative, technical and auxiliary staff, given the need to ensure the continuity of provision of teaching and educational services.Footnote 7 This means that the limit of the maximum total duration of 36 months – enshrined by the legislative decree – does not apply to the public education sector. If follows that state school staff subject to an abusive reiteration of fixed-term contracts might neither claim damages against their employee (as workers in both the public and private sector can do) nor claim a conversion of their contract into a permanent one (as only workers in the private sector can do). This is why, in the absence of any national measure to prevent and sanction abuses, many workers in the public education sector challenged national legislation for its possible inconsistency with the Framework Agreement.
The second (related) aspect, triggering the possible violation of EU law, is that Italian legislation laying down a system for temporary replacement of teaching and administrative staff in State schools often brought to a sort of unlimited renewal of fixed-term contracts which – by contrast – were intended to respond to temporary (rather than permanent) needs of the school system. This Italian legislation dedicated to ‘Urgent provision on school staff’ (in particular Article 4 of Law No. 124/1999) allows the filling of posts that are in fact vacant and unfilled by 31 December by means of replacements on an annual basis, ‘pending the completion of competitive selection procedures’. These temporary appointments are made by drawing on lists of suitable candidates ranked in light of their titles and expertise.Footnote 8 Depending on the posts available, the teachers who work as replacements in this way may be granted tenure either through a progression on those ranking lists or through passing a competition.
The dramatic fact behind the Mascolo saga was that competitive selection procedures for the recruitment of tenured staff of schools administered by the state were broken off between 2000 and 2011.Footnote 9 It followed that, in the absence of the ordinary mechanisms to get tenure for more than ten years, the temporary appointments in State schools (with fixed-term contracts on an annual basis) were often abused, as the several cases brought before Italian ordinary courts, and reaching both the Italian Constitutional Court and the Court of Justice, clearly show.
The discrepancies among ordinary judges called to defend workers’ rights in light of EU law
It is interesting to note that Italian courts reacted differently in front of the numerous appeals of individuals recruited in State establishments as teachers and administrative, technical and auxiliary staff on the basis of successive fixed-term employment contracts.Footnote 10
The ‘Cassazione’ (Supreme Court of Cassation) considered the Italian recruiting system an ‘equivalent measure’ within the meaning of clause 5(1) of the Framework Agreement. Indeed, this clause requires member states to select one of the three options provided by the Framework Agreement to prevent abuses (setting a maximum amount of fixed-term contracts; setting a maximum total duration of those contracts; or providing an ‘objective reason’ justifying the successive renewal of the contracts) only if the domestic legal order does not already contemplate an ‘equivalent measure’.
Most importantly, the Supreme Court of Cassation ruled on the compatibility of national legislation with EU law without consulting the Luxembourg judges.Footnote 11 As a court of last instance, it resorted to the acte claire doctrine, thus escaping from its obligation, under Article 267 TFEU, to ask for the interpretive guidance of the European Court of Justice.Footnote 12 Moreover, the same Court advocated arguments related to the general economic crisis and budgetary considerations which would prevent the stabilisation of thousands of employees hired with fixed-term contracts.Footnote 13
By way of contrast, the District Court of Naples doubted the Italian legislative framework’s compatibility with EU law. Moreover, although not being obliged as per Article 267 TFEUFootnote 14 , it opted for a preliminary reference to the European Court of Justice, asking whether Italian legislation on school staff constituted an ‘equivalent measure’ within the meaning of clause 5 of the Framework Agreement on temporary work.Footnote 15
Along similar lines, two other ordinary courts (specifically, the District Courts of Rome and of Lamezia Terme) deemed Italian employment legislation on school staff inconsistent with EU law,Footnote 16 due to the absence of any national measure to prevent and sanction abuses. However, instead of asking for a preliminary ruling from the European Court of Justice, they decided to refer the case to the Italian Constitutional Court. This choice was due to the fact that, in contrast to the District Court of Naples, these two courts did not need any kind of interpretative guidance from the European Court of Justice, being convinced that national legislation violated EU law without reservations. Nevertheless, because the framework agreement on temporary work does not have direct effect, as clearly stated by the European Court in its previous case law,Footnote 17 ordinary judges could not set aside national legislation inconsistent with EU legislation and directly apply the latter (in line with the Simmenthal doctrine).Footnote 18 Indeed, according to Italian law, the only way to eliminate from the legal order national legislation inconsistent with not directly effective EU legislation, is to refer a question to the Constitutional Court asking to invalidate Italian legislation where inconsistent with EU law.Footnote 19 Which is what the two ordinary courts actually did.
In this respect, the Constitutional Court enters the picture as the ‘guardian’ of the Constitution, being, in line with the Kelsenian model of constitutional adjudication, the only body entitled to scrutinise the compatibility of national legislation with the Constitution.Footnote 20 Indeed, since after the 2001 constitutional reform Article 117 of the Italian Constitution requires national legislation to comply with constraints deriving from EU law,Footnote 21 the Court was pushed to take into account EU law in its main activity of constitutional review of national legislation.Footnote 22 Many actions were brought before the Constitutional Court to challenge national law breaching EU law for its inconsistency with Article 117 of the Constitution, and, more generally, with Article 11 of the Constitution enabling Italy to limit its sovereignty in favour of international organisations.Footnote 23
This explains how the Constitutional Court was involved in the Mascolo saga. It was seized in the course of an indirect proceeding, namely through an ordinary court which suspends the trial pending before it – and refers the case to the Constitutional Court – if it doubts the constitutional legitimacy of a statutory law which must be applied in order to solve the dispute. In this particular case, as we have seen, the District Courts of Rome and of Lamezia Terme deemed national legislation on state school staffFootnote 24 to violate Articles 11 and 117, first paragraph, of the Constitution, because of its inconsistency with EU law (in particular with clause 5, paragraph 1 of the Framework Agreement on fixed-term work).
The Italian Constitutional Court steps in with a preliminary reference to the European Court of Justice
Seized by the District Courts of Rome and Lamezia Terme, the Italian Constitutional Court, before proceeding with the constitutional review of legislation,Footnote 25 decided, with order no. 207 of 2013, to seek the interpretative guidance of the European Court of Justice through a preliminary ruling.Footnote 26 It is worth remarking that this decision was unexpected. It represented a clear revirement in the case law of the Italian Constitutional Court and it was the first preliminary reference in the course of an indirect proceeding. The following paragraphs will, (first) pay attention to the procedural uniqueness of the case and then (second) explore the content of the referral order, focusing on the way in which the Court scrutinises Italian legislation in light of EU law and (third) try to emphasise the peculiarity and specificity of the domestic educational system.
The procedural uniqueness of the case: the first preliminary reference in the course of an indirect proceeding
For several years, the Italian Constitutional Court denied the possibility to refer a case to the European Court of Justice following this line of reasoning: the Constitutional Court could not be considered as a ‘court or tribunal’ within the meaning of Article 267 TFEU because its functions are historically deeply different from the ones attached to ordinary courts within the domestic legal order.Footnote 27 Espousing the Kelsenian ‘centralised’ model of constitutional adjudication, the Court holds specific functions that are forbidden to other courts: in particular, the constitutional review of legislation, and the solution of competence conflicts between the bodies of the State and between the central State and territorial autonomies such as Italian Regions.Footnote 28 Therefore, the Italian Constitutional Court occupies a ‘unique position’ into the legal order, which makes it incomparable with ordinary and administrative courts.Footnote 29
This position was only (partially) overcome with the very first preliminary ruling issued in 2008.Footnote 30 On that occasion, the Court decided to use Article 234 EC (now Article 267 TFEU) in a dispute concerning the power to tax in which it was seised directly (and not indirectly, namely through the interposition of an ordinary judge). The government brought an action directly before the Court to challenge the constitutional legitimacy of a regional law that was allegedly inconsistent with Article 117, paragraph 1, in that it violated EU law (in particular the freedom to provide services as per ex Article 49 EC, competition rules as per ex Article 81 EC and the prohibition of State aid as per Article 87 EC).
The Constitutional Court’s decision to refer to the European Court of Justice in order to receive guidance on how to interpret EU law was strictly based on the domestic procedural distinction between the direct and indirect jurisdiction of the Court.Footnote 31 When the latter is seised directly, the constitutionality proceeding is commenced by the State against a regional law or by a Region against a State law: it follows that the Constitutional Court holds an exclusive jurisdiction, in the sense that it is the sole judge in this infra-institutional form of litigation. Moreover, since there would be no appeal against its decisions, the Court can be considered ‘as court or tribunal of a Member State against whose decisions there is no judicial remedy under national law’ as per Article 267, paragraph 3, TFEU, namely as a Court holding a duty, rather than an option, to refer a question before the European Court of Justice.
For this reason, in 2008, the Court, doubting the consistency of a regional law with EU law, decided to refer to the European Court of Justice for the first time, and, most tellingly, it clearly specified that this could happen only in the cases of direct jurisdiction. Indeed, in the cases of indirect jurisdiction, the Constitutional Court is only called upon by a common judge to assess the constitutional legitimacy of a law that is necessary to solve the case pending before it. In this respect, the Italian Constitutional Court has not to decide the case from which the question emerges since it is upon the ordinary judge to give the final judgment. In the 2008 order, the Court considered itself authorised to refer to the European Court of Justice in direct judgements because ‘within these judgements, unlike within the indirect ones, the Constitutional Court is the only court called upon to rule on the dispute’.
Against this backdrop, the most important aspect of order No. 207 of 2013 is its procedural uniqueness: the Court referred to the European Court of Justice for the first time ever while exercising its indirect jurisdiction. Interestingly, the Court did not even attempt to give reasons for a choice that represents a clear revirement of its previous case law. The Court simply and bluntly deemed itself as a ‘court or tribunal’ within the meaning of Article 267, third paragraph, TFEU ‘also in its indirect jurisdiction’.
The analysis of Italian legislation in light of the European Court of Justice case law on the Framework Agreement on temporary work
Shifting from the procedural aspects of the decision to the content of the referral order, the Italian Constitutional Court seems to share, at first glance, the doubts of the referring ordinary judges. National legislation on state school staff might be reasonably inconsistent with EU law for basically two reasons. First, the use of fixed-term contracts to cover vacant teachers’ posts until the formal call of competitive examinations is likely to trigger a repeated renewal of fixed-term contracts in the absence of a clear schedule for those selection procedures. Second, should this renewal be qualified as abusive, state school employees are not entitled to the right to compensation (which, by way of contrast, other public employees and civil servants are so entitled). In this light, the Italian Constitutional Court decided to ask the European Court of Justice if EU law precludes national legislation.
This decision to issue a preliminary reference is accurately grounded also on previous case law of the European Court of Justice concerning the Framework Agreement on fixed-term work.Footnote 32 The European Court of Justice, indeed, had already ruled on the alleged incompatibility with the same Framework Agreement of an Italian provision forbidding the conversion of fixed-term employment contracts concluded with a public employer into contracts of indefinite duration.Footnote 33
In the reasoning of the European Court of Justice, clause 5 leaves the member states a certain discretion in complying with the Framework Agreement. Against this backdrop, the European Court of Justice deemed respectful of EU lawFootnote 34 the choice of the Italian State to treat differently workers in the private sector and those in the public sector, who can claim for damages but cannot claim the conversion of their temporary contracts into permanent ones (because this would be in violation of Article 97 of the Italian Constitution, reserving to the winners of competitive selection procedures the possibility to work in a public administration on a permanent basis).Footnote 35 This distinction was not in breach of EU law because the possibility for public workers to claim damages can still be considered an ‘effective measure’ to punish abuses deriving from an illegitimate reiteration of fixed-term contracts. As stated by the European Court of Justice in the Affatato order,
in order to judge as compatible with the Framework Agreement a domestic provision which absolutely prohibits the transformation of fixed-term contracts into permanent ones in the field of public sector, the domestic legal order of the Member State concerned shall provide, within this sector, another effective measure to prevent and, where relevant, punish the abuse of fixed-term contracts entered into in succession.Footnote 36
In light of this prior case law, the doubt of potential inconsistency with EU law of the domestic provision envisaged by the Italian Constitutional Court seems reasonable, since in the school sector workers employed under fixed-term contracts would be deprived of any ‘effective measure’ to punish abuses. It is also important to point out that in December 2013, after the preliminary ruling from the Italian Constitutional Court, the European Court of Justice in Rocco Papalia v Comune d’Aosta had the opportunity to deem the remedy provided by the Italian legislation to sanction misuse of successive fixed-term contracts by a public employer (namely the right to compensation for damages) an inappropriate effective measure, where such a right is subject to particularly restrictive conditions.Footnote 37
The emphasis on the peculiarity and specificity of the domestic educational system
If, on the one hand, the Italian Constitutional Court seems to share the potential inconsistency of Italian legislation with EU law proposed by the ordinary judges, on the other hand it makes an effort to outline the specificity of the Italian educational system. In the words of the Court, ‘peculiar and insistent needs and demands’ of the educational sector could legitimise the appointment of a single worker, from year to year, with fixed-term contracts repeated over time in order to fill vacancies. The Court tries to highlight in its referral order the ‘physiologically unavoidable needs for flexibility’ of the Italian school system. These needs for flexibility are related to the continuous changes in the school population, to the inter-regional migration of teachers and school staff, to the assignment of posts mainly to women, who often require forms of protection as regards maternity leave, etc. In light of this concrete situation, Italian legislation should be contextualised bearing in mind that Articles 33 and 34 of the Constitution enshrine the fundamental right to education.Footnote 38 In the reading of the Court, these constitutional provisions oblige the State to efficiently provide educational services. To this end, temporary replacements of vacant posts might be necessary to adapt to the constant and unpredictable changes both in the number of the school population and in the availability of teachers.
Against this backdrop, in the second part of the preliminary question, the Italian Constitutional Court asked the European Court of Justice if, and to what extent, the ‘organisational needs of the Italian school system’ could be qualified as an ‘objective reason’ justifying the renewal of such contracts or relationships’ within the meaning of clause 5, paragraph 1, of the Framework Agreement. Indeed, as the Court recalled, the European Court of Justice already stated in its previous case law that:
the temporary replacement of another employee in order to satisfy, in essence, the employer’s temporary staffing requirements may, in principle, constitute an objective reason under clause 5(1)(a) of the Framework Agreement (see, to that effect, Angelidaki and Others, paragraph 102).Footnote 39
This is not at all to assert that the Italian Constitutional Court tends to justify the renewal of fixed-term employment contracts in light of the peculiarities of the Italian school system; it is important to stress that the Italian Constitutional Court provides a detailed account of the domestic educational system and of its specific needs. Hence, while deciding to refer a preliminary question in order to assess if and to what extent the Framework Agreement precludes the challenged domestic provision, the Court strives to illustrate to the Luxembourg court the domestic balancing exercise between fundamental worker’s rights and public policy choices.
The response of the European Court of Justice: the Mascolo joined cases
On 26 November 2014 the third chamber of the European Court of Justice issued its judgment, after deciding to join both the cases stemming from the Italian Constitutional Court and the District Court of Naples.Footnote 40 The facts of the case concerned the recruitment of several teachers and administrative staff employed in State establishments on the basis of successive fixed-term contracts (never lasting less than 45 months over a period of five years). Deeming those contracts unlawful, these workers brought actions before the courts suing the Italian Ministry of Education, University and Research. They filed claims for the reclassification of their contracts as employment contracts of indefinite duration, for the grant of tenure, for the payment of salaries in respect of the breaks between contracts, and for compensation for the damage suffered.
To sum up, the question the European Court of Justice was called to respond to after the referrals from both Italian ordinary and constitutional judges was whether the Framework Agreement permits the renewal of fixed-term employment contracts to fill posts that are vacant, pending the completion of competitive selection procedures for the recruitment of tenured staff of state schools, without any definite period being set for the completion of those procedures and while excluding all compensation for damage suffered on account of such a renewal.Footnote 41
The reasoning of the European Court of Justice could be divided into three stages. The Court, first, interpreted the Framework Agreement; then, it scrutinised the existence of national measures preventing the misuse of successive fixed-term employment contracts; finally, it scrutinised national measures punishing abuses in a proportionate, effective and deterrent way.
As to the interpretation of the Framework Agreement,Footnote 42 the European Court of Justice stated that the case of teachers or administrators recruited to work on an annual basis in State schools is within the scope of application of the Framework Agreement. This means that also in public education sector, Italy should correctly implement clause 5(1) of the Agreement, whose purpose is to place limits on successive recourse to fixed-term employment contracts, which constitute potential source of abuse to the detriment of the workers. Nevertheless, the European Court of Justice also emphasised the great discretion left to the member states in adopting measures preventing and penalising abuses, provided that these measures are sufficiently effective and deterrent to ensure the full effectiveness of the Framework Agreement and not to compromise its objective.Footnote 43 In the words of the Court,
the Member States enjoy a certain discretion…since they have the choice of relying on one or more of the measures listed in clause 5(1)(a) to (c) of the Framework Agreement, or on existing equivalent legal measures, while taking account of the needs of specific sectors and/or categories of workers.Footnote 44
Against this backdrop, the European Court of Justice moved on to analyse the existence of measures preventing the misuse of fixed-term employment contracts. Notwithstanding the discretion left by the Framework Agreement to the member states in this regard, the Court found it to be clear that the Italian legislation on temporary contracts in state schools does not contain any measure equivalent to those set out in clause 5(1). Moreover, Italian legislation does not contain at least two of the measures explicitly contemplated by clause 5(1) of the Framework Agreement (namely the fixing of a maximum total duration of temporary contracts or the fixing of a maximum total number of renewals). The only chance left to the European Court of Justice was to verify whether the third measure was applicable to the case: namely, to verify if and to what extent the Italian renewal of temporary contracts can be justified by an ‘objective reason’ within the meaning of clause 5(1)(a) of the Framework Agreement.Footnote 45
To this end, the Court clarified the concept of ‘objective reason’ in light of its previous case law. This concept must be understood
as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particular context, of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State.Footnote 46
It follows that the temporary replacement of a worker in order to satisfy the employer’s temporary staffing requirement may, in principle, constitute an ‘objective reason’ within the meaning of clause 5 of the Framework Agreement.Footnote 47
Most importantly, the Court seemed to share the suggestions of the Italian Constitutional Court depicting the education sector as being in particular need of temporary replacements, due to the frequent possible unavailability of members of staff on sick, maternity, parental or other leave. Especially when the national legislation justifying the renewal of fixed-term contracts pursues legitimate social policy objectives, such as offering protection for pregnancy and maternity and for a better work-life balance of employees, the temporary replacement of workers in those circumstances might constitute an objective reason.Footnote 48
More specifically, the European Court of Justice, with an explicit mention of the arguments put forward by the Italian Constitutional Court, noted that
education is a fundamental right guaranteed by the Constitution of the Italian Republic which obliges that State to organise the school service in such a way as to ensure that teacher-pupil ratios are constantly appropriate. It cannot be denied that their appropriateness depends on a multitude of factors, some of which may, to a certain extent, be difficult to control or predict, such as, in particular, external and internal migration flows or pupils’ subject choices.Footnote 49
The European Court of Justice then acknowledged that in the education sector at issue in the main proceedings, there was a ‘particular need of flexibility which … is capable, in that specific sector, of providing an objective justification under clause 5(1)(a) of the [Framework Agreement] for recourse to successive fixed-term employment contracts’.Footnote 50
Last but not least, in the words of the European Court of Justice,
it must be stated that where, in the schools administered by it, a Member State grants access to permanent employment … only to staff who have passed a competition, it may also be objectively justified … for the posts that are to be filled, to be covered by successive fixed-term employment contracts pending the completion of the competitions.Footnote 51
Interestingly enough, while all the reasoning of the European Court of Justice so far seemed to legitimate Italian legislation, detecting more than one argument to qualify it as an ‘objective reason’ justifying the renewal of temporary contracts, the European Court of Justice ruled on the incompatibility of national legislation with EU law. In the reading of the Court, the ‘mere fact that the national legislation at issue in the main proceedings, may be justified by an ‘objective reason’ within the meaning of clause 5(1)(a)…cannot be sufficient to render it consistent with that provision if it is apparent that the actual application of the legislation leads, in practice, to misuse of successive fixed term employment contracts’.Footnote 52 This would be the case if the period required for teachers to be granted tenure was both variable and uncertain,Footnote 53 and if the renewal of fixed-term contracts would be used to cover needs which, were, in fact, not temporary in nature but, on the contrary, fixed and permanent.Footnote 54
The European Court of Justice suspected that the Italian government abused the recourse to temporary contracts to satisfy fixed and permanent needs of the education system, such as the structural shortage of tenured staff in State schools, on the basis of the 10-year block of selective competitive procedures granting tenured positions. This suspicion was supported by the data offered by the same referring national judges, according to which, depending on the year and the source of the data, approximately 30%, or even 61% of state school staff were employed on the basis of fixed-term contracts.Footnote 55 Moreover, the European Court of Justice paid attention to the evidence of the applicants: the national legislation contemplating the recourse to temporary contracts ‘pending the completion of competitive selection procedures for the recruitment of tenured teaching staff’, led, in practice, to a substantial abuse of successive fixed-term employment contracts in the absence of any certainty regarding the organisation of those selection procedures, and, most importantly, in light of the total lack of those procedures from 2000 to 2011.Footnote 56
After stating that the Italian legislation does not contain any measure preventing the misuse of successive fixed-term employment contracts, the Court proceeded in verifying the existence of possible punishing and penalising measures. Also in this case, the European Court of Justice was very assertive in emphasising the inconsistency of Italian legislation with EU law. It found it to be clear that the Italian legislation excludes, in the education sector, both the right to compensation for the damage suffered from the unlimited renewal of temporary contracts, and the possibility of converting those contracts into an employment contract of indefinite duration.Footnote 57 This conversion can only occur after the granting of tenure as a result of progressing up the ranking list.Footnote 58 In the wording of the Court, ‘since such a possibility … is dependent of chance, it cannot be regarded as a penalty that is sufficiently effective and a sufficient deterrent to ensure that the provisions adopted pursuant to the Framework Agreement are fully effective’.Footnote 59 In sum, Italian law was considered in breach of EU law, not contemplating effective and appropriate preventing and penalising measures against abuses of fixed-term work.
The end of the saga: the 2016 Decision of the Italian Constitutional Court in light of the European Court of Justice ruling
The Italian Constitutional Court found itself in a one-way street. The European Court of Justice concluded that the Framework Agreement on fixed-term work ‘must be interpreted as precluding the national legislation’ that, pending the completion of competitive selection procedures for the recruitment of tenured state schools staff, authorises the renewal of fixed-term contracts to fill posts of teachers and administrative, technical and auxiliary staff that are vacant and unfilled without stating a definite period for the completion of those procedures, and while excluding compensation for the damage suffered on account of such a renewal.Footnote 60
In this respect, the Court of Justice confirmed the doubts of the ordinary judges who, in referring the case to the Constitutional Court, were already sure that national legislation they needed to apply in the case pending before them was in breach of EU law, and asked the Constitutional Court to invalidate it. It followed that, with Decision No. 187 of 2016, the Court put an end to the Mascolo saga by declaring unconstitutional Article 4, paragraph 1 and 11, of Law no. 124/1999 (‘Urgent provisions on school staff’) for its violation of Article 117 of the Constitution, which requires national legislation to comply with EU law.
Nevertheless, the 2013 choice of the Constitutional Court not to rule immediately on the case, but to refer to the European Court of Justice, allowed the Court to issue, three years later, a decision that, while respecting the dicta of the European Court of Justice Mascolo case and invalidating national legislation, invited the ordinary courts, called to have the final say in the case brought before them, to take into account the changes to the Italian legislation that had occurred in the meanwhile.
Indeed, under the pressure of the infringement proceeding and of the European Court of Justice Mascolo ruling, the Italian legislator approved the statutory law No. 107 of 13 July 2015 (‘Reform of the national system of education and training’), providing two instruments to reduce the systematic renewal of contracts in the education sector. The first was the launching of a special plan of recruiting, which allowed a great number of school staff hired with temporary contracts exceeding 36 months to obtain a tenured position.Footnote 61 The second was the completion of a new competitive selection procedure for the year 2016, with the adoption of three calls, aimed at providing successful candidates with a permanent position as teachers in State schools.Footnote 62 Moreover, the same law extended the maximum total duration of 36 months for fixed-term contracts to the education sector as well, starting from 1 September 2016,Footnote 63 and it established a fund of €10 million for each of the years 2015 and 2016, to carry out the judicial decision and satisfy workers claiming their right to compensation for abusive fixed-term contracts exceeding 36 months.Footnote 64
In the reasoning of the Constitutional Court, since this jus superveniens was successfully used by the Italian Government in its defence, which eventually convinced the European Commission to stop the infringement procedure against Italy,Footnote 65 the new legal framework provided by the legislature must be considered consistent with EU law. Therefore, for future relationships, the new legislation offers appropriate and effective measures to prevent and sanction abuses.
As to the past relationship, which interested the ordinary courts generating the referral to the Constitutional Court and called on to solve the concrete case of individuals claiming their rights, the Constitutional Court ordered the District Courts of Rome and Lamezia Terme to solve the case differentiating the situation of teachers from that of administrative staff. In the case of teachers, according to the Court, the new Italian legislation provides ‘serious and unquestionable chances’ to get a tenured positionFootnote 66 (and, in the light of the European Court of Justice ruling, this could be considered a possible alternative to prevent and punish abuses stemming from the recourse of fixed-term contracts).Footnote 67 In the case of administrative staff, where there is neither a special plan nor the completion of competitive selection procedure for granting tenure, the ordinary courts will have to compensate those workers and respect their right to damages.Footnote 68
The reasoning of the Court buildt on the consideration, stressed by the European Court of Justice itself, that the Framework Agreement leaves great discretion to the member state in the selection of measures preventing and punishing the abuses stemming from the successive renewals of temporary contracts, provided that the proportionate, effective and deterrent nature of national measures is respected.Footnote 69 Moreover, the same Court of Justice deemed, also in the case law antecedent to Mascolo, that the three options contemplated by clause 5(1) of the Framework Agreement were alternatives to each other, and all of them were alternative to ‘any other equivalent measure’ provided by the domestic legal order to prevent the abuses.Footnote 70
The interesting aspect of decision nos. 187 of 2016 is that, on the one hand, the Constitutional Court needed to face what legal scholarship might qualify as an ‘outcome’ case, since the European Court of Justice Mascolo ruling does not leave much margin of manoeuvre to the referring judge in assertively considering national law in breach of EU law.Footnote 71 On the other hand, the Constitutional Court was able to find in the reasoning of the European Court of Justice what it needed to strike the delicate balance between the necessity to protect the fundamental rights of workers in light of EU law and the necessity to save some public money in light of the economic crisis.Footnote 72
The Court does not acknowledge this balancing exercise explicitly, probably due to the fact that the European Court of Justice Mascolo ruling was very severe in recalling that
whilst budgetary considerations may underlie a Member State’s choice of social policy and influence the nature or scope of the measures which it wishes to adopt, they do not in themselves constitute an aim pursued by that policy and, therefore, cannot justify the lack of any measure preventing the misuse of successive fixed-term employment contracts as referred to in clause 5(1) of the Framework Agreement.Footnote 73
Nevertheless, the Italian Constitutional Court, with an earlier decision invalidating an urgent legislative measure issued by the Monti Government during the apex of the economic crisis, and aimed at limiting the monetary revaluation of some pension benefits in light of inflation,Footnote 74 already dealt with the ‘costs of rights’Footnote 75 and experienced the heavy consequences that the protection of workers’ social rights can have for public finance.Footnote 76 The impression is that, after the 2012 reform amending the Italian Constitution so to include the balanced budget principle in light of the Fiscal Compact requirements,Footnote 77 the Italian Constitutional Court needed to exercise its delicate function of guardian of the fundamental rights embedded in the Constitution in light of budgetary constraints now enshrined, themselves, in a constitutional provision.Footnote 78
The unexpectedly cooperative attitude of the Italian Constitutional Court
For several years, the position of the Italian Constitutional Court vis-à-vis the European Court of Justice represented one of the least cooperative judicial approaches adopted by any Constitutional Court in Europe. Indeed, while accepting the primacy of EU law since the 1984 Granital decision, the Italian Constitutional Court made clear that it was up to ordinary judges – called to set aside national law inconsistent with directly effective EU law – to raise a preliminary reference to the European Court of Justice in case of any doubts on the interpretation or on the validity of EU law.Footnote 79 This triggered a sort of ‘self-marginalisation’Footnote 80 from the growing ‘constitutional conversations’Footnote 81 going ahead between the European Court of Justice and other European Constitutional Courts. Despite scholarly literature suggesting that there were many ‘arguments for a direct dialogue’,Footnote 82 the Italian Constitutional Court, maybe unintentionally, fed into what has been referred to as the European Court of Justice’s ‘displacement doctrine’, namely the process through which ‘national constitutional courts are removed from their place in constitutional law and politics and ordinary courts, acting in cooperation with the [European Court of Justice], replace them’.Footnote 83
Against this backdrop, the 2013 decision of the Italian Constitutional Court in the course of the Mascolo saga – followed by another preliminary reference in 2017 in response to the European Court of Justice Taricco rulingFootnote 84 – is in line with the decisions of other Constitutional Courts usually refraining from entertaining a dialogue with Luxembourg judges. Notoriously, in a dynamic evocative of a sort of ‘peer pressure’, in recent years also the Spanish Constitutional Court and of the French Constitutional Council referred to the European Court of Justice, highlighting the tensions between domestic constitutional law and the European Arrest Warrant Framework Decision; more recently, the German Constitutional Court referred to the European Court of Justice questions about the European Central Bank’s Outright Monetary Transactions plan. This shows that Constitutional Courts eventually decided not to ‘shy away from engaging in a fruitful dialogue’ with the European Court of Justice, ‘hiding behind their constitutions’.Footnote 85
It is not possible to explore in this context the behaviour of Constitutional Courts, that, while sharing the same necessity to communicate with the European Court of Justice, differentiate the one from the other in endorsing a sometimes ‘aggressive’ and sometimes ‘defensive’ pluralism;Footnote 86 in showing sometimes a ‘lenient disposition’ sometimes an ‘assertive spirit’;Footnote 87 in choosing a narrative which is sometimes focused on the protection of constitutional identity, sometimes on sovereignty and competence conflicts.Footnote 88
What is important is to highlight the reasons why the Italian Constitutional Court’s decision to refer a preliminary ruling in the Mascolo saga represents a revirement showing a clear willingness to increase its ‘direct dialogue’Footnote 89 with the European Court of Justice.
The first reason is that the 2013 second preliminary ruling was not ‘necessitated’, like the first one of 2008, in the sense that it was not dictated by the absence of other judges called upon to rule on the dispute. In fact, the greatest merit of the Mascolo referral order is to overcome the 2008 procedural distinction which circumscribed the possibility for the Constitutional Court to address the European Court of Justiceonly in its direct jurisdiction. In other words, the 2013 order allowed the Court to refer to itself as a ‘court or tribunal’ pursuant to Article 267 TFEU independently from the modality through which it exercises its function of constitutional review of legislation. This decision not only paved the way for the second preliminary reference to the European Court of Justice in the course of an indirect proceeding.Footnote 90 It was also more consistent with EU law requirements. Indeed, stating that a different typology of access to constitutional justice – indirect versus direct proceedings – entails a different qualification of the Court’s nature as having or not having a jurisdictional character, was quite far from the European Court of Justice’s position. According to the latter, determining whether a body making a reference is qualified as a court or tribunal for the purposes of Article 267 TFEU ‘is a question governed by Community law alone’ and should not be affected by domestic qualifications.Footnote 91
The second reason why the referral order n. 207 of 2013 expresses a clear openness towards the European Court of Justice is that it diverges from previous procedural guidelines provided by the same Constitutional Court. The latter often solicited common judges to directly address the European Court of Justice, standing on the side-lines of the judicial dialogue. More specifically, in the past, the Constitutional Court rejected some actions challenging domestic legislation because the same legislation, allegedly inconsistent with EU law, already triggered an infringement proceeding against the Italian State for breach of EU law.Footnote 92 Along similar lines, the Court suspended its judgment on the constitutional legitimacy of a domestic provision (and on its consistency with EU law) because the same provision was already the subject of a preliminary reference issued by an ordinary judge in the course of another case.Footnote 93 In sum, the Italian Constitutional Court preferred to wait for the European Court of Justice’s decision on external (similar) cases rather than refer to the European Court itself.
In this respect, it is remarkable that in 2013 the Italian Constitutional Court decided to refer a preliminary question despite there already being a preliminary reference by an ordinary judge asking the European Court of Justice whether Italian legislation on school staff constituted an ‘equivalent measure’ within the meaning of clause 5 of the Framework Agreement;Footnote 94 and despite the fact that there was a still pending infringement procedure against Italy for incorrect transposition of the very same Directive 1999/70/EC and of the attached Framework Agreement.Footnote 95 In other words, in the Mascolo saga, the Constitutional Court deliberately ‘decided to add its own voice to the judicial conversation under way’.Footnote 96
Did the Italian Constitutional Court gain from this choice? Did the clear revirement from a self-excluding to a cooperative attitude foster a fruitful dialogue with the European Court of Justice? Did the European Court notice the openness of the Italian Constitutional Court and respond accordingly, as it did, for example, to the French Constitutional Council?Footnote 97 The response to these questions might be, in my view, affirmative. The following concluding paragraphs will therefore analyse the possible gains coming from dialogue.
The ‘dumb son’ perceived the gains from dialogue: towards the Italian Constitutional Court’s third preliminary reference
The first benefit stemming from the dialogue with the European Court of Justice is that the Italian Constitutional Court, through the preliminary reference, managed to overcome the significant discrepancies that occurred at the domestic level in the interpretation of the very same provision of the Framework Agreement. As shown above, the Supreme Court of Cassation deemed national legislation to be definitely consistent with EU law, thus depriving Italian workers of their rights in applying national law; the District Court of Naples found national legislation almost probably inconsistent with EU law and referred to the European Court of Justice; the District Courts of Rome and Lamezia Terme deemed national legislation definitely inconsistent with EU law, and asked the Constitutional Court to invalidate it.
Rather than following the suggestion of the two referring district courts – by simply declaring national legislation unconstitutional for breach of EU law – the Constitutional Court left to the European Court of Justice the last word in ensuring the uniform application of EU law on a sensitive issue significantly infringing upon workers’ fundamental rights. In return, it obtained a clear answer on the incompatibility of the Italian legal framework with EU law, thus excluding the possibility that Italian workers will be denied their rights because of the misinterpretation of EU law endorsed by some national judges.
The second gain from dialogue is that the European Court of Justice, called on to interpret the Framework Agreement, made a very detailed analysis of its previous case law on fixed-term work, insisting on several occasions on the alternative nature of the measures provided by clause 5 of the Framework Agreement, and on the discretion left to the member states in selecting any measure at their disposal provided that the objective of EU legislation – that of effectively preventing and duly sanctioning abuses – is achieved. It is only in light of this discretion that the Constitutional Court can deem both the right to damage (granted to administrative staff) and the ‘reasonable chance’ to get tenure (granted to teaching staff thanks to launching of competitive selection procedures) as appropriate and suitable measures to safeguard the effect utile of the Framework Agreement. As emphasised above, this differentiation between teaching and administrative staff allowed the restoration of the rights of workers and saved some public money at the same time, in the wake of the budgetary constraints imposed by EU law itself.
Last, but not least, the third gain from dialogue is the accuracy that the European Court of Justice shows in taking into consideration the arguments proffered by the Constitutional Court concerning the peculiarities of the domestic legal order. The European Court of Justice Mascolo ruling dedicates several paragraphs to the specific needs of flexibility underlying the Italian recruitment system, which the Constitutional Court justifies in light of the fundamental right to education enshrined in Articles 33 and 34 of the Italian Constitution.Footnote 98 The attention to the domestic system is shown both where the European Court reproduces the arguments of the Italian Constitutional Court’s referral orderFootnote 99 and where the European Court qualifies the Italian legal framework as an ‘objective reason’ potentially justifying the renewal of fixed-term contracts, although deeming it to be in breach of EU law because of its concrete application.Footnote 100 The European Court of Justice also mentions twice the constitutional provisions behind the Italian legislative choice on temporary work in the education sector. This aspect deserves attention, if we consider that, especially when constitutional provisions were used by a national court as a possible limit to the absolute nature of primacy, the European Court of Justice recalled that EU law should prevail on national law ‘however framed’,Footnote 101 thus ruling ‘that the legal status of a conflicting national measures was not relevant to the question whether EU law should take precedence’.Footnote 102
While it is not possible to outline those several cases in which the European Court of Justice dismissed any kind of constitutional argument as an attempt to use domestic law to derogate from EU law,Footnote 103 it is interesting in this context to analyse previous case law of the European Court of Justice on the very same interpretation of the Framework Agreement on fixed-term work. In my opinion, the arguments related to constitutional provisions aimed at justifying national legislation were almost ignored by the European Court of Justice, when brought to the fore by ordinary courts. By way of contrast, the European Court seems to reciprocate the cooperative attitude of the Italian Constitutional Court, paying particular attention to its reasoning.
In both the Affatato case, triggered by a preliminary reference of the District Court of Rossano Calabro (Italy), and in the Angelidaky case, triggered by a preliminary reference of the Monomeles Protodikio Rethimnis (Greece), the European Court of Justice was asked if the Framework Agreement on temporary work precluded national legislation forbidding the conversion of fixed-term contracts into contracts of indefinite duration. In both cases, the referring courts specified that national legislation was based on a constitutional provision (namely Article 97 of the Italian Constitution and Article 103(8) of the Constitution of the Hellenic Republic, as amended on 7 April 2001). In the Affatato order, the European Court of Justice solved the case by not even mentioning Article 97 of the Constitution,Footnote 104 according to which public posts are accessed through a competitive selection procedure.Footnote 105 Along similar lines, in the Angelidaki case, the European Court of Justice found almost irrelevant that the Greek legislation was grounded on a provision of the Greek Constitution,Footnote 106 and, interestingly enough, proceeded to solve the case by recurring to its previous case law and on EU law arguments,Footnote 107 ‘whatever the nature of the provisions of Greek law prohibiting the conversion of successive fixed-term employment contracts into contracts of indefinite duration…’.Footnote 108
It can therefore be concluded that the attention that the European Court of Justice Mascolo ruling reserves to Articles 33 and 34 of the Italian Constitution, enshrining the fundamental right to education, is possibly due to the fact that the European Court of Justice is not engaging with an ordinary judge, but with the Italian Constitutional Court, namely with the ‘guardian’ of the Constitution.Footnote 109 It is the task of the Constitutional Court, indeed, to add to the ‘conversation’ the constitutional foundations of the Italian legislative choice that are not mentioned as possible justifications in the referral order of the District Court of Naples. This shows that constitutional courts are better equipped than ordinary judges in safeguarding national constitutional identities and in highlighting the specific needs of the national legal order.Footnote 110 The Mascolo saga proves that preliminary references are important and valuable instruments in the hands of constitutional courts to provide the Luxembourg judges with a sound knowledge of the delicate balancing exercise between fundamental constitutional rights and national public policies choices.Footnote 111
The Italian Constitutional Court seemed to understand this and decided to refer to the European Court of Justice for the third time ever, and for the second time in the course of an indirect proceeding. The 2017 preliminary reference was triggered by the European Court of Justice Taricco judgment.Footnote 112 The latter required national judges to set aside some Italian criminal code provisions on statutory limitation period: these provisions would prevent Italy from respecting the duty – stemming from Article 325 TFEU (to which the European Court of Justice attaches direct effectFootnote 113 ) and from the principle of sincere cooperation – to penalise VAT fraud against the EU budget in an effective way. Nevertheless, national judges found that setting aside the challenged national provisions would definitely infringe upon the principle of legality in criminal matters enshrined in Article 25 of the Italian Constitution. For this reason, national judges asked the Constitutional Court to apply its ‘controlimiti’ doctrine and declare Article 325 TFEU, as interpreted by the European Court of Justice, inapplicable in the domestic legal order.Footnote 114
Notwithstanding the different contexts triggering the Mascolo and the Taricco cases,Footnote 115 it is important to emphasise at least two similarities in the attitude of the Italian Constitutional Court. The first is that, although acknowledging the violation of a supreme principle of the Constitution, the Italian Constitutional Court, instead of immediately applying the ‘controlimiti’ doctrine, as suggested by the ordinary courts, once again respected the ‘interpretative autonomy’ of the European Court by suspending the case and referring to the European Court of Justice.Footnote 116 In its preliminary reference, the Court asks for an interpretation of Article 325 TFEU which could avoid the constitutional clash with the principle of legality enshrined in the Italian Constitution (even if in this case it warns the European Court of Justice that, should Italian legislation be still considered in breach of EU law, the Italian Constitutional Court should apply the ‘controlimiti’ doctrine).Footnote 117
The second significant similarity is that, as in its 2013 referral order on the thorny issue of temporary workers, now that a supreme principle of the Constitution is at stake, and that the sensitive area of criminal law has been touched upon, the Constitutional Court is, once again, very accurate in providing a clear picture of the domestic legal framework and of its specificity.Footnote 118 This helps Luxembourg judges to understand what lies behind the harsh position of the ordinary judges refusing to apply the European Court of Justice Taricco ruling and advocating the ‘controlimiti’ doctrine. The preliminary reference gives the Constitutional Court the occasion to clarify the breadth, the importance and the scope of application of a fundamental principle of the Constitution, and, once again, it might push the European Court of Justice – whose interpretative autonomy has been respected– to reciprocate and carefully listen to the constitutional arguments put forward by the Rome court, and, possibly, to partially revisit its judgment.Footnote 119
After this third preliminary reference, the impression is that the benefits stemming from judicial cooperation started to resonate among Italian constitutional judges, usually escaping any kind of dialogue with Luxembourg judges. An Italian proverb says that ‘even the dumb son is understood by his mother’, meaning that, no matter how silent you are, and how much you shy away from dialogue, your mother will always understand your feelings and your needs.Footnote 120 The Italian Constitutional Court possibly perceived that – given that the relationship between courts is not necessarily as strong and solid as the mother-child bond – silence did not help. If national constitutional courts want their voice to be heard in Luxembourg, they would do better to talk.
