Corte di Cassazione
National case details
Registration ID: 6101/2017; 6102/2017
Instance: Cassation (review)
Case status: Final
Area of law
Safeguards for access to justice
Preliminary rulingJudgement of the CJEU 7 February 2018, Case C-142/17 Manuela Maturi, Laura Di Segni, Isabella Lo Balbo, Maria Badini, Loredana Barbanera v Fondazione Teatro dell’Opera di Roma, And Fondazione Teatro dell’Opera di Roma v Manuela Maturi, Laura Di Segni, Isabella Lo Balbo, Maria Badini, Loredana Barbanera, Luc
District Court, Rome
Court of Appeal, Rome
15 February 2017
Court of Cassation, Request for Preliminary Ruling
7 February 2018
Joined Cases C‑142/17 and C‑143/17
17 May 2018
Court of Cassation, follow-up judgments
Identification of the case
- Non-discrimination (art. 21 CFREU)
- Art 3(7) Decree-Law No 64/2010
- Art. 30(1) Legislative Decree No 198/2006
- Articles 3, 4, 5, 35, 37 and 38 Constitution
- Art. 157 TFEU
- Directive 54/2006
Summary of the case
Art. 3(7) of Decree-Law No 64/2010 introduced a fixed retirement age for dancers, both men and women, at forty-fifth years of age. For the period of two years after the date of its entry into force, an option was given to workers holding a permanent contract, yet having reached the retirement age, to maintain employment until the maximum retirement age which was in force before the introduction of the Decree-Law, namely 47 years for women and 52 for men.
A number of female workers were employed by the Theatre Foundation of Rome until 31 March 2014. On that date, the Foundation dismissed them on the basis of Art. 3(7) of Decree-Law No 64/2010, as they reached the age for retirement. The workers appealed the decision, since they had relied on the possibility provided for by Art. 3(7) of Decree-Law No 64/2010 to extend the contract of employment, even when the working age limit had been reached. The first instance court agreed with the claimants. The Foundation appealed the decision, and the Court of Appeal overturned the lower court’s decision, rejecting the alleged inconsistencies between Art. 3(7) of Decree-Law No 64/2010 and European law.
- Civil judicial enforcement
National level: annulment of the dismissals, re-instatement into the previous positions and compensation for the loss caused;
EU level: reference for preliminary ruling.
‘Is the national legislation referred to in Article 3(7) of [Decree-Law No 64/2010], according to which “for workers in the performing arts belonging to the category of dancers, the retirement age is fixed for men and women at the forty-fifth year of chronological age, with the use, for workers to whom the contributory or mixed system applies in full, of the transformation coefficient referred to in Article 1(6) of the Law of 8 August 1995, No 335, relative to the higher age. For the two years following the date of entry into force of this provision, the workers referred to in this paragraph employed on contracts of indefinite duration, who have reached or passed the retirement age, are afforded the option, renewable annually, of remaining in service. This option must be exercised through a formal application to be presented to the ente nazionale di previdenza e assistenza per i lavoratori dello spettacolo (ENPALS) (National Welfare and Assistance Office for Workers in the Entertainment Business) within two months of the date of entry into force of this provision, or at least three months before the qualifying age for a retirement pension is reached, without prejudice to the maximum retirement age of 47 years for women and 52 for men”, contrary to the principle of non-discrimination on grounds of sex, as laid down in Directive 2006/54 and in the Charter (Article 21)?’
The discrimen introduced by Art. 3(7) of Decree-Law No 64/2010, which explicitly refers to sex and age, could be in contrast with the non-discrimination principle enshrined in Articles 21 and 23 CFREU and with the principle of equal pay under Art. 157 TFEU, as specified by the CJEU in cases C-46/2007 and C-402/14. Moreover, there seem to be inconsistencies with Directive 2006/54/CE, and the Court of Cassation refers to the CJEU Marshall judgment, which found that the dismissal of a female worker for the only reason that she had reached the retirement age (which was different for men and women) discriminatory. In addition, Art. 3(7) of Decree-Law No 64/2010 does not include any explicit reason for the difference in treatment.
Therefore, the Italian Court decided to refer the case to the CJEU for a preliminary ruling.
The Court of Cassation noted that the CJEU found that Art. 3(7) of Decree-Law No 64/2010 was contrary to Directive 2006/54, since it introduced – although transitorily – a discriminatory policy with regards to the termination of an employment contract because of the reaching of the retirement age, which was unjustifiably different for men and women. The Court of Appeal will have to then disapply Art. 3(7) of Decree-Law No 64/2010.
However, the Court of Cassation did not consider it necessary to start a procedure for the review of constitutionality of the Decree-Law for a number of reasons. First, the Court had already requested a preliminary ruling to the Court of Justice, which gave a clear answer as to the legitimacy of the Italian disposition. Second, the Charter, despite being mentioned by the parties at the national level and by the Italian Court in the question referred by the Court, had no role in the decision of the CJEU, which merely referred to Art. 14 Dir. 2006/54 and to the Kleist case, which in turn also failed to rely on the Charter. Because the contested national disposition only contradicts the Directive, the Charter remaining extraneous to the final decision, the primary tool for the judge remained the disapplication of the internal norm in contrast with EU law, and not the challenge to the constitutional legitimacy of such norm. Nevertheless, the Court of Cassation raised the valuable question as to what is expected from an ordinary judge when the protection invoked by one of the parties operates through the combined provision of directives and the Charter, given that the former should also be interpreted in the light of the second, which actually constitutes a parameter of substantial legitimacy.
Role of the Charter and role of the general principles on enforcement
Art. 21 Charter was mentioned in the question referred to the CJEU, as the Italian Court was doubtful about the consistency between that provision and Art. 3(7) of Decree-Law No 64/2010.
- Right to a fair trial
According to Italian law, a worker who has reached retirement age may be dismissed ‘ad nutum’ by his employer, that is without his employer being required to give reasons for that dismissal.
According to the referring court, the retirement age for workers in the performing arts sector, in the category for dancers, was 47 years old for women and 52 years old for men. It explains that Article 3(7) of Decree-Law No 64 of 30 April 2010, converted into Law No 100, of 29 June 2010, in the version in force at the material time (‘Decree-Law No 64/2010’), changed those age limits for workers of both sexes, setting a common working age limit at 45 years old.
That provision also introduced a transitional option for the benefit of those workers, applicable for a period of two years from the date of its entry into force, pursuant to which they could continue to work beyond the common age limit. Therefore, workers employed on permanent contracts having reached or passed the newly adopted retirement age could continue to work until the retirement age previously in force, that is 47 years old for women and 52 years old for men, by exercising that option, renewable annually, within two months of the date of entry into force of that provision or within three months before they reached the qualifying age for a retirement pension.
Article 21 CFREU was engaged due to the possible discrimination on the grounds of sex in the case. The Court of Cassation specifically asked the CJEU about Article 21 as it was concerned that Art. 3(7) of Decree-Law No 64/2010 was not in conformity with Article 21. However, the CJEU did not discuss the Charter itself, focusing only on the Directive. The Court’s finding of a violation of the Directive and not of the Charter impacted the Court of Cassation’s follow-up decision, in so far as a finding of non-conformity with the Charter could have prompted a constitutional review of the contested legislation.
Elements of judicial dialogue
- Direct dialogue between CJEU and National court (preliminary reference)
- CJEU C-356/09, Kleist
Conform interpretation with EU law as interpreted by the CJEU
To ensure the compliance of national legislation with Directive 2006/54/CE, the principle of non-discrimination, and Article 21 CFREU.