ECJ 13 January 2022, case C-282/19 (MIUR- Ufficio Scolastico Regionale per la Campania), Catholic religious teachers and fixed-term nature of the employment relationship

Luca Calcaterra* and Francesca Maffei **

The European Court of Justice continues to have a key role in preventing abuses in case of succession of fixed term contracts. Despite the fact that the European discipline in this field (i.e. framework agreement on fixed term contracts) is not recent, Member States continue to provide for “free zones” exempted from the application of the core principles of the discipline. The ECJ’s judgements becomes, in this way, the main place to verify the legitimacy of these exceptions.

In case C-282/19 (MIUR- Ufficio Scolastico Regionale per la Campania), for instance, the ECJ was called to check the compatibility of the Italian legislation concerning employment in religion education’s field in school and the European discipline about fixed term contracts.

In Italy, Catholic religion teachers’ legal status is disciplined differently from other teachers’ status. The law provides that only the 70% of the teachers are hired under a permanent contract. The other 30% is hired under fixed term contracts, of annual duration, renewable. The condition for recruitment of all religion teachers (both permanent and fixed-term) is the recognition of suitability issued by the diocesan ordinary competent for the territory.

Because of this special discipline, fixed-term Catholic religion teachers couldn’t access the extraordinary recruitment plan envisaged in 2015 for precarious teachers. The limited duration of the annual contracts precluded their inclusion on the permanent ranking lists. Moreover, in the domestic legal system of the religious education there is no effective measure penalising abuses in fixed term contracts.

In this legal context, 18 Catholic religion teachers recruited by Italian Ministry of Education (MIUR) and employed in public education establishments for many years under successive fixed-term contracts brought an action before the Labour Court in Naples. The claim was primarily intended to obtain the transformation of their current contracts into permanent contracts or, in the alternative, compensation for the damage suffered as a result of the unlawful succession of fixed-term contracts.  According to the claimants, the succession of fixed-term contracts was illegal, and they were victims of discrimination as compared with teachers of different subjects.

The Neapolitan Court referred to the European Court of Justice for a preliminary ruling on the compatibility of the Italian legislation with the Clause 5 of the framework agreement on fixed-term work and with the prohibition of discrimination on grounds of religion. In addition, it asked the European Court of Justice to specify whether the requirement to hold a suitability certificate issued by an ecclesiastical authority constitutes an ‘objective reason’ within the meaning of the framework agreement, justifying the renewal of such fixed-term contracts. Last, it was not clear which consequences to be drawn for the dispute in the main proceedings, from the Court’s finding relating to the potential incompatibility of the legislation at issue.

The Court of Justice states that there is no discrimination on grounds of religion, as tenure could not be granted to the applicants on account of the length of their contracts, a matter entirely unrelated to their religion. The ECJ rules, first of all, that the impossibility for the claimants to benefit from the reclassification of their employment contract as a contract of indefinite duration although teachers of different subjects in a comparable situation could, constitutes precisely a difference in treatment between two categories of fixed-term workers. Accordingly, such a situation is not covered by Clause 4 of the framework agreement, as it prohibits differences in treatment between fixed-term workers and permanent workers.

The Court states that Clause 5 of the framework agreement, entitled ‘Measures to prevent abuse’, precludes national legislation which excludes Catholic religious education teachers from the application of the rules intended to penalise abuse of fixed-term contracts where there is no other effective measure against it.

 the Ministry of education can admittedly require that number of public Catholic religious teachers to be in constant keeping with the number of potential users. This leads to temporary recruitment needs for the employer, as the particular need for flexibility in that sector is capable of providing justification, in the light of Clause 5(1)(a) of the framework agreement, for recourse to successive fixed-term contracts. However, in order to comply with that provision, it must be specifically verified that the renewal of such contracts is intended to cover temporary needs and that such a possibility is not, in fact, being used to meet permanent staffing needs of the employer. On the contrary, in the present case, the various fixed-term employment contracts between the applicants and their employer have been used to perform similar tasks over several years. As a consequence, the employment relationship can be regarded as having satisfied a long-term need, which is for the referring court to verify.

In addition, the ECJ finds that the suitability certificate is issued once, and not before every school year, giving rise to the conclusion that the issuing of the certificate is not connected with measures pursuing social policy objectives. Hence the Court rules that that certificate is not an ‘objective reason’ justifying the renewal of fixed-term contracts, within the meaning of Clause 5(1)(a) of the framework agreement.

Last, the Court recalls that, “Clause 5 of the framework agreement on fixed-term work, must be interpreted, first, as precluding national legislation excluding Catholic religious education teachers in public education establishments from the scope of the rules intended to penalise abuse arising from the use of successive fixed-term contracts where there is no other effective measure in the domestic legal system penalising that abuse and, second, as meaning that the requirement to hold a suitability certificate issued by an ecclesiastical authority for the purposes of allowing those teachers to provide Catholic religious education does not constitute an ‘objective reason’ within the meaning of Clause 5(1)(a) of the framework agreement, because that certificate is issued once and not before each school year leading to the conclusion of a fixed-term employment contract”.

*Luca Calcaterra is Full Professor of European Labour Law, Università degli studi Suor Orsola Benincasa di Napoli

** Francesca Maffei is a Phd in comparative law and integration process, Università degli studi della Campania Luigi Vanvitelli