Laura Calafà, University of Verona NFP Italy, FRANET

Rome, 8th April 2014

From the fact to labour law in From the fact to labour law in a historical/evolutive a historical/evolutive perspective: main casesperspective: main cases

The work program includes The work program includes summaries and case studiessummaries and case studies

Rhetorical Introduction

individual / collective work / over the work

Test Achats v. Médiation Sociale

The cases, national law and EU law, The cases, national law and EU law, the Charter of Fundamental Rightsthe Charter of Fundamental Rights

Selection of case from Defrenne (1971) to Accept (2013):

Patterns of interpretation Patterns of interpretation

The transformation of the risk factors (sex or gender) and research the extent of the risk factor: a comparison with the meta-model

The remedies and the enforcement

The scope of the equality directives

Employment policies and the age: the discretion of Member States (occupational requirements)

The singles risk factors

Anti-Discrimination Law and Equality Anti-Discrimination Law and Equality principleprinciple

A preliminary definition of anti-A preliminary definition of anti-discrimination law: discrimination law:

The The corpus corpus of provisions intended, of provisions intended, through duties expressed as prohibitions, through duties expressed as prohibitions, to prevent the fate of human beings from to prevent the fate of human beings from being determined by natural or ascribed being determined by natural or ascribed social statuses (sex, race, ethnic origin social statuses (sex, race, ethnic origin and so on) and, at the same time, and so on) and, at the same time, through active duties, to ensure that through active duties, to ensure that different subjective identities are all different subjective identities are all recognised and protected as equals recognised and protected as equals (Barbera 2008) (Barbera 2008)

The new frontiers of the principle of equality in The new frontiers of the principle of equality in European Union law European Union law Treaty Treaty

Treaty of Lisbon Treaty of Lisbon 2009 2009

(Art. 19 and (Art. 19 and Art. 157 TFEU) Art. 157 TFEU)

Treaty of Treaty of Maastricht Maastricht

1992 1992 (1993) (1993)

Treaty of Treaty of Amsterdam Amsterdam 1997 (1999) 1997 (1999)

Primary Law Primary Law Treaty Treaty

establishing the establishing the EEC EEC

1957 (Art. 119) 1957 (Art. 119)

2000 2000 Treaty of Treaty of Nice and Nice and

Charter of Charter of FundamentFundamental Rights al Rights

Draft Draft ConstitutionConstitution

al Treaty al Treaty Rome, 29 Rome, 29 October October 2004 2004

1996 – ECJ 1996 – ECJ P. /S.P. /S.

1971 - ECJ 1971 - ECJ Defrenne IDefrenne I

2008 - ECJ 2008 - ECJ ColemanColeman

The constitutional interaction at European and The constitutional interaction at European and national level in the field of equal treatment: the national level in the field of equal treatment: the binding nature of the Nice Charter and the updated binding nature of the Nice Charter and the updated Treaty and the use of the general principles of Treaty and the use of the general principles of European Union lawEuropean Union law

Rules, Rules, interpretationinterpretation

The equal treatment in the EU dimension

The principle and the duties expressed as duties expressed as prohibitions (combating discrimination on the prohibitions (combating discrimination on the

grounds of …)grounds of …)

Criterion for judgment on the law (it must be ascertained whether the legislature has treated similar cases differently or different situations in the same way: evaluative conception of equality)

The comparison that must be made from EU primary law or with ...

-the general principles of European the general principles of European Union lawUnion law

- Primary Law (Treaty establishing there Primary Law (Treaty establishing there shall be no direct or indirect shall be no direct or indirect discrimination on the grounds of discrimination on the grounds of nationality, sex and others … art. 12 nationality, sex and others … art. 12 TEU, art. 19/157 TFEU)TEU, art. 19/157 TFEU)

- and, from december 2009, CHARTER CHARTER OF FUNDAMENTAL RIGHTS OF THE OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNIONEUROPEAN UNION

 

Equality as a goal of a prescription (to be distinguished from equality which property of the formal structure of the rule that is the subject of the judgment) ...

Connection between equality and fundamental rights

Article 21Article 21Non-discriminationNon-discrimination

1. Any discrimination based on any ground such 1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, genetic features, language, religion or belief, political or any other opinion, membership of a political or any other opinion, membership of a national minority, property, birth, disability, age national minority, property, birth, disability, age or sexual orientation shall be prohibited.or sexual orientation shall be prohibited.2. Within the scope of application of the Treaty 2. Within the scope of application of the Treaty establishing the European Community and of establishing the European Community and of the Treaty on European Union, and without the Treaty on European Union, and without prejudice to the special provisions of those prejudice to the special provisions of those Treaties, any discrimination on grounds of Treaties, any discrimination on grounds of nationality shall be prohibited.nationality shall be prohibited.

A necessary distinction …A necessary distinction …

Prohibitions related to subjective factors: they are recognized by. 21 of the Charter

Prohibitions related to the directives on labor standards have been defined as "the principles of Community social law" (ECJ Del Cerro Alonso), although from the point of view of the function, the Court treats them the same way ... 

All prohibitions are due to the evaluative conception of equality, their definition is objective in law

The check carried out by the anti-discrimination law, depends on the notions and the scope of the relevant directives

From the rules to the fact

SEX (art. 156 TFEU) e NATIONALITY ( art. 45 TFEU only for workers)

have horizontal direct effect: the non discrimination principles may be relied upon before the national courts of which will be required to set aside any provision of national law to comply, in relation to both the state and private parties

Art. 19 TFEU grounds other than sex/gendergrounds other than sex/gender: the complexity of the role played by the provision conferring legal basis in the Treaty

Primary Treaty law: Primary Treaty law:

Art. 141 TEC, today Art.157 TFEU – Nice Charter of Art. 141 TEC, today Art.157 TFEU – Nice Charter of Fundamental Rights Fundamental Rights

(Arts. 20-23) (Arts. 20-23)

Secondary Community law: Secondary Community law:

Dir. 75/117 – Dir. 76/207 – Dir. 98/70 – 86/378/EC Dir. 75/117 – Dir. 76/207 – Dir. 98/70 – 86/378/EC and thus also in their amended forms as Dir. and thus also in their amended forms as Dir. 1996/97/EC – Dir. 2002/73 – Dir. 2004/113 1996/97/EC – Dir. 2002/73 – Dir. 2004/113

Dir. 2006/54 (framework directive) Dir. 2006/54 (framework directive) also known as the also known as the recast directiverecast directive, precisely because its function is , precisely because its function is to harmonise the provisions contained in the earlier directives to harmonise the provisions contained in the earlier directives dedicated to equal treatment of men and women as regards access dedicated to equal treatment of men and women as regards access to employment, training and promotion, in occupational social to employment, training and promotion, in occupational social security schemes, in the application of the principle of equal pay for security schemes, in the application of the principle of equal pay for men and women and the rules on the burden of proof in cases of men and women and the rules on the burden of proof in cases of discrimination on grounds of sex and also in the light of the case-law discrimination on grounds of sex and also in the light of the case-law of the ECJ of the ECJ

Once upon a time Once upon a time … ? … ?

comparison with the meta-model (sex or comparison with the meta-model (sex or gender) and extension of the grounds on gender) and extension of the grounds on which discrimination is prohibited within which discrimination is prohibited within European Union lawEuropean Union lawSEX or GENDER and the EU system before P v. SDefrenne I, II e III ... direct effect of the art. 119 TECConsolidation meta-model by - Indirect discrimination -Burden of proof distribution-Anti-discrimination but for method for maternity and pregnancy L‘affermazione dell‘utilizzo del diritto antidiscriminatorio but for per la gravidanza e la maternità -The problems of the legitimacy of affirmative action as exceptions to the functioning of equal treatment in employment and the construction of the category of the under-represented sex

The sex equality from Defrenne to Test The sex equality from Defrenne to Test Achats in EUAchats in EU

Prohibited grounds other than sex/gender Prohibited grounds other than sex/gender

Primary law: Primary law:

Article 13 TEC, modified by Amsterdam and Nice in Article 13 TEC, modified by Amsterdam and Nice in 2000, and now Article 19 TFEU 2000, and now Article 19 TFEU

The 2000 Charter of Fundamental Rights (with the The 2000 Charter of Fundamental Rights (with the binding nature bestowed on it by Lisbon in binding nature bestowed on it by Lisbon in December 2007 and with its entry into force in December 2007 and with its entry into force in December 2009) December 2009)

Secondary law: Secondary law:

Dir. 2000/43 and Dir. 2000/78 Dir. 2000/43 and Dir. 2000/78

With the effect of suspending the procedure of With the effect of suspending the procedure of adopting directives in other specific fields adopting directives in other specific fields (otherwise known as the “horizontal directive”, (otherwise known as the “horizontal directive”, necessary to cover the scope of each of the various necessary to cover the scope of each of the various provisions referred to above) provisions referred to above)

After P v. S … others After P v. S … others grounds grounds other than sex/gender other than sex/gender

The forms of discrimination and The forms of discrimination and harassment over eleven years of the harassment over eleven years of the Court’s case-law (... roughly one judgment Court’s case-law (... roughly one judgment per year, but on the increase!) per year, but on the increase!) The trend shown by a number of landmark judgments indicating The trend shown by a number of landmark judgments indicating the scope and practical operation of the instruments defined the scope and practical operation of the instruments defined above: above:

a)The age factor from a)The age factor from Mangold Mangold to Kücükdeveci: the emerging factor to Kücükdeveci: the emerging factor

b)Sexual orientation from the cases of b)Sexual orientation from the cases of P P and and Grant Grant through to through to Römer and Accept Römer and Accept (and including the (and including the Tadao Maruko Tadao Maruko case): civil case): civil rights and anti-discrimination law rights and anti-discrimination law

c)The disability factor and the complicated relationship between c)The disability factor and the complicated relationship between Chacon Navas Chacon Navas and and Coleman Coleman

d) The uniqueness of the d) The uniqueness of the Feryn Feryn case (with recent Galina Maister)case (with recent Galina Maister)

e) e) The sustainable (and apparent) ease of invoking arguments of The sustainable (and apparent) ease of invoking arguments of a person’s religion and belief … as things stand at present! a person’s religion and belief … as things stand at present!

The structure, scope (as The structure, scope (as regards objects and regards objects and subjects), equality subjects), equality institutions and positive institutions and positive actions are the cardinal actions are the cardinal concepts of these (quasi-) concepts of these (quasi-) twin directives. Creation of twin directives. Creation of uniformity in the uniformity in the instruments for intervening instruments for intervening in the field of anti-in the field of anti-discrimination law. discrimination law.

Direct discrimination – the legal Direct discrimination – the legal definition definition

Direct discrimination exists where Direct discrimination exists where one person is treated less one person is treated less favourably [on grounds of race or favourably [on grounds of race or ethnic origin, age, disability, ethnic origin, age, disability, sexual orientation or personal sexual orientation or personal religion or belief] than another is, religion or belief] than another is, has been or would be treated in a has been or would be treated in a comparable situation. comparable situation.

Indirect discrimination – the legal Indirect discrimination – the legal definition definition

Indirect discrimination is taken to Indirect discrimination is taken to occur where an apparently neutral occur where an apparently neutral provision, criterion or practice provision, criterion or practice would put persons having a would put persons having a particular [race or ethnic origin, particular [race or ethnic origin, age, disability, sexual orientation, age, disability, sexual orientation, personal religion or belief] at a personal religion or belief] at a particular disadvantage compared particular disadvantage compared with other persons unless that with other persons unless that provision, criterion or practice is provision, criterion or practice is objectively justified by a objectively justified by a legitimate aim and the means of legitimate aim and the means of achieving that aim are appropriate achieving that aim are appropriate and necessary. and necessary.

Patterns of interpretation Patterns of interpretation

The three phases in arriving at The three phases in arriving at determination of an act of determination of an act of discrimination: discrimination:

1.The apparently neutral criterion 1.The apparently neutral criterion or practice or practice

2.The position of particular 2.The position of particular disadvantage (of the group … disadvantage (of the group … compared with other persons) compared with other persons)

3.The appraisal of the objective 3.The appraisal of the objective justification of the criterion or justification of the criterion or practice [legitimate aim and use of practice [legitimate aim and use of appropriate and necessary means: appropriate and necessary means: Art. 2(2)(b)] Art. 2(2)(b)]

EXCEPTIONS OR THE AREAS IN WHICH THE EXCEPTIONS OR THE AREAS IN WHICH THE PROHIBITIONS DO NOT OPERATE PROHIBITIONS DO NOT OPERATE (ART. 4 (ART. 4 OCCUPATIONAL REQUIREMENTSOCCUPATIONAL REQUIREMENTS))

COMMON EXCLUSION: COMMON EXCLUSION: “Notwithstanding “Notwithstanding Article 2 (1) and (2) (Article 2 (1) and (2) (direct and indirect direct and indirect discriminationdiscrimination), the Member States may provide ), the Member States may provide that a difference of treatment based on a that a difference of treatment based on a characteristic related to [race or ethnic origin, characteristic related to [race or ethnic origin, age, disability, sexual orientation or personal or age, disability, sexual orientation or personal or religious beliefs] shall not constitute religious beliefs] shall not constitute discrimination where, by reason of the nature of discrimination where, by reason of the nature of the particular occupational activities concerned the particular occupational activities concerned or the context in which they are carried out, or the context in which they are carried out, such a characteristic constitutes a genuine and such a characteristic constitutes a genuine and determining occupational requirement, provided determining occupational requirement, provided that the objective is legitimate and the that the objective is legitimate and the requirement is proportionate”.requirement is proportionate”.

Exceptions or areas of non-operation of the Exceptions or areas of non-operation of the prohibitions on discrimination on grounds of prohibitions on discrimination on grounds of age and disability age and disability as regards the as regards the armed armed forces forces (Art. 3(4)) Exceptions or areas of non-(Art. 3(4)) Exceptions or areas of non-operation of the prohibitions on discrimination operation of the prohibitions on discrimination on grounds solely of on grounds solely of disability disability (Art. 5 and Art. (Art. 5 and Art. 7(2)) Exceptions or areas of non-operation of 7(2)) Exceptions or areas of non-operation of the prohibitions on discrimination on grounds the prohibitions on discrimination on grounds of of age age as regards as regards employment policy, employment policy, labour-market and vocational-training labour-market and vocational-training objectives, retirement and invalidity objectives, retirement and invalidity benefits benefits (Art. 6(1) and (2)), with this final (Art. 6(1) and (2)), with this final provision being reinforced by the wording of provision being reinforced by the wording of Art. 3(3). Exceptions linked to the prohibited Art. 3(3). Exceptions linked to the prohibited grounds of grounds of a person’s religion or belief a person’s religion or belief in in organisations the ethos of which is based organisations the ethos of which is based on religion or belief (Art. 4(2)) on religion or belief (Art. 4(2))

SPECIAL EXCEPTIONS IN THE FRAMEWORK SPECIAL EXCEPTIONS IN THE FRAMEWORK DIRECTIVE DIRECTIVE

Harassment – the legislative Harassment – the legislative definition definition Harassment shall be Harassment shall be deemed to be a form of discrimination deemed to be a form of discrimination within the meaning of paragraph 1, within the meaning of paragraph 1, when unwanted conduct related to any when unwanted conduct related to any of the grounds of [race or ethnic origin, of the grounds of [race or ethnic origin, age, disability, sexual orientation or a age, disability, sexual orientation or a person’s religion or belief] takes place person’s religion or belief] takes place with the purpose or effect of violating with the purpose or effect of violating the dignity of a person and of creating the dignity of a person and of creating an intimidating, hostile, degrading, an intimidating, hostile, degrading, humiliating or offensive environment. humiliating or offensive environment. In this context, the concept of In this context, the concept of harassment may be defined in harassment may be defined in accordance with the national laws and accordance with the national laws and practices of the Member States. practices of the Member States.

Patterns of interpretation Acts of Patterns of interpretation Acts of harassment, sexual harassment and harassment, sexual harassment and discrimination: dignity and equal treatment discrimination: dignity and equal treatment and the judgments based on comparisons and the judgments based on comparisons … problems of a doctrinal nature? … problems of a doctrinal nature? Blurring Blurring of the concept of discriminationof the concept of discrimination… … Reference to the Coleman and Feryn Reference to the Coleman and Feryn judgmentsjudgments

Discrimination by association orDiscrimination by association ortransferred discrimination and transferred discrimination and potential discriminationpotential discrimination

Coleman Case (2008)Coleman Case (2008)

Council Directive 2000/78/EC of 27 November 2000 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in establishing a general framework for equal treatment in employment and occupation, and, in particular, Articles 1 employment and occupation, and, in particular, Articles 1 and 2(1) and (2)(a) thereof, must be interpreted as meaning and 2(1) and (2)(a) thereof, must be interpreted as meaning that the prohibition of direct discrimination laid down by that the prohibition of direct discrimination laid down by those provisions those provisions is not limited only to people who are is not limited only to people who are themselves disabled. themselves disabled. Where an employer treats an Where an employer treats an employee who is not himself disabled less favourably than employee who is not himself disabled less favourably than another employee is, has been or would be treated in a another employee is, has been or would be treated in a comparable situation, and it is established that the less comparable situation, and it is established that the less favourable treatment of that employee is based on the favourable treatment of that employee is based on the disability of his child, whose care is provided primarily by disability of his child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition that employee, such treatment is contrary to the prohibition of direct discrimination laid down by Article 2(2)(a).of direct discrimination laid down by Article 2(2)(a).

The protection of workers in the The protection of workers in the functioning of the principle of non-functioning of the principle of non-

discrimination: rules, limits and discrimination: rules, limits and potentialitiespotentialities

CASE STUDY 1: The Trade Union CASE STUDY 1: The Trade Union membership discriminationmembership discrimination

CASE STUDY 2: Part-time workCASE STUDY 2: Part-time work

Case 1Case 1The workers enrolled in Fiom - and The workers enrolled in Fiom - and only workers who belong to Fiom only workers who belong to Fiom or still enrolled in the Fiom - not or still enrolled in the Fiom - not employed in the new factory employed in the new factory factory Pomigliano Italy (FIP) are factory Pomigliano Italy (FIP) are discriminated against on the basis discriminated against on the basis of law (national) regulations?of law (national) regulations?

The premise of each reasoning: there is The premise of each reasoning: there is discrimination in the case dealt with by the discrimination in the case dealt with by the Courts of Rome?Courts of Rome?

The question of protected The question of protected good: are equality or good: are equality or freedom of association freedom of association (with exclusion of (with exclusion of procedural issues) procedural issues) protected?protected?Freedom of association protected by (in Italy) Art. 39 Constitution, the violation of the right asserted is protected from violation of the workers equal treatment (members and non-members or no longer enrolled in Fiom)

The judgment of comparison, the The judgment of comparison, the unfavorable treatment, the use of the unfavorable treatment, the use of the

statistical teststatistical test

the reference to the statistics must be understood in its less technical and more common probability, regardless of a rigid scientific rigor …

The defensive strategy of the employer

The allegations of discrimination should be taken seriously in the process. Fiat (the employer) uses three different types of arguments: 1) I do not know the members Fiom and therefore can not discriminate, and 2) the criteria for selection of personnel are objective and, therefore, rightful and therefore not discriminatory, and finally, 3) the defense look to assert the existence of an exception to discrimination under dir. 2000/78.

The theory of the legitimacy of The The theory of the legitimacy of The Trade Union membership discriminationTrade Union membership discrimination

The employer says: “"The rejection of the negotiation and, then, of the contents of the collective agreement (…) is absolutely incompatible with occupational activity that must take place in an aggregate context, coordinated and governed by accepted rules and unionized necessarily the same for everyone: with the requirement that is less essential and crucial for the conduct of such activities.

The juge says: The prohibitions of discrimination based on union are tools of affirmation of the freedom of association and democracy in the company because "workers are required to comply with the rules applicable under the company they work for, but obviously can not be expected that the share if you do not accept to prejudice their personal beliefs and trade union beliefs .

The trade union membership is included in the risk The trade union membership is included in the risk factor belief?factor belief?

The answer depends on the use in the process of fundamental rights included in the Charter of rights

The answer does not depend on the choices made by some EU countries to separate belief from convictions union

The Court using the systematic interpretation of art. 19 TFEU (formerly Art. 13 TEC), the ILO Convention relevant to the specific matter, the Charter of Fundamental Rights becomes binding art. 6 TEU concludes that "can certainly be considered that the Directive 2000/78/EC, protecting personal beliefs against discrimination, gave input into Community law the formal recognition of the cd. ideological freedom whose broad content material can also be established by reference to art. 6 TEU and, therefore, the European Convention of Human Rights. "

Recruitment of 19 members Fiom Recruitment of 19 members Fiom and dismissal of 19 workers already and dismissal of 19 workers already employed (not registered Fiom)employed (not registered Fiom)

Retaliation?Retaliation?

The use of comparative judgment in The use of comparative judgment in trade unions: trade unions: pro e contro pro e contro ……

A focus required: A focus required: retaliation and anti-retaliation and anti-discrimination law ...discrimination law ...

In Italy: the recent dismissal In Italy: the recent dismissal questions Special redundancies, questions Special redundancies, dismissal and the discriminatory dismissal and the discriminatory

dismissaldismissal

The juge and the retaliationThe juge and the retaliation

The concept of discriminatory dismissal, as set The concept of discriminatory dismissal, as set out in art. 4 l. n. 604 of 1966, art. 15 l. n. 300 of out in art. 4 l. n. 604 of 1966, art. 15 l. n. 300 of 1970, art. 3 l. n. 108 of 1990, is susceptible to 1970, art. 3 l. n. 108 of 1990, is susceptible to wide interpretation: the area of the individual wide interpretation: the area of the individual grounds prohibited includes dismissal for grounds prohibited includes dismissal for retaliation or reprisal, which is the employer retaliation or reprisal, which is the employer unjust and arbitrary reaction to undesirable unjust and arbitrary reaction to undesirable behaviors, where the latter represents the only behaviors, where the latter represents the only reason of the decision of expulsion. reason of the decision of expulsion.

Dismissal, retaliation: Dismissal, retaliation: key distinctionskey distinctions

Reasons typed Reasons typed (eg union (eg union reasons)reasons)

Reasons Reasons untypeduntyped

Discriminatory Discriminatory dismissaldismissal

==

==Unlawful dismissal, but Unlawful dismissal, but non-discriminatorynon-discriminatory

Special TrainingSpecial Training

Dismissal due to the refusal to switch from part-time Dismissal due to the refusal to switch from part-time to full-time (Trib. Bologna 19/11/12)to full-time (Trib. Bologna 19/11/12)

Dismissal following a request for Dismissal following a request for     removal of pornographic calendar (Trib. Torino 19/12/11)removal of pornographic calendar (Trib. Torino 19/12/11)

Dismissal notice as a result of sexual violence (Trib. Dismissal notice as a result of sexual violence (Trib. Latina, 20/9/11)Latina, 20/9/11)

Dismissal of her daughter in front of the action brought Dismissal of her daughter in front of the action brought from his father against the employer (Cass. Civ. 8/8/11, n. from his father against the employer (Cass. Civ. 8/8/11, n.

6282)6282)Dismissal due to rigid positions and controversies of Dismissal due to rigid positions and controversies of

the worker, communicated to the press (Cass. 3/5/97, the worker, communicated to the press (Cass. 3/5/97, n. 3837)n. 3837)

Dismissal of union leader (by the union) (Cass. 25/7/08, Dismissal of union leader (by the union) (Cass. 25/7/08, n. 20500)n. 20500)

Dismissal on grounds participation in a strike (based Dismissal on grounds participation in a strike (based on non-existent organizational reasons: Trib. Milano, on non-existent organizational reasons: Trib. Milano,

7/10/04)7/10/04)

The other side of the anti-The other side of the anti-discrimination law ... the discrimination law ... the (technique of) procedural (technique of) procedural

protection of non-standard workersprotection of non-standard workersThe anti-discrimination protection is used as a The anti-discrimination protection is used as a "counterweight" to the relaxation of the "counterweight" to the relaxation of the conditions of work and the types of contracts as conditions of work and the types of contracts as a means to control the effects of segmentation a means to control the effects of segmentation of the labor market and diversification of the of the labor market and diversification of the treatments produced by deregulation / re-treatments produced by deregulation / re-adjustment of these years, according to a adjustment of these years, according to a process (of a more general nature) which sees process (of a more general nature) which sees the traditional techniques of control of a the traditional techniques of control of a substantial nature (…) to yield procedural substantial nature (…) to yield procedural techniques (based on rules that establish rights techniques (based on rules that establish rights to a certain decision procedure proper, to a certain decision procedure proper, transparent, reasoned, without the guarantee transparent, reasoned, without the guarantee of a certain outcome ... (Barbera 2007)of a certain outcome ... (Barbera 2007)

Dir 97/81 on part-time work, Dir 99/70 on Dir 97/81 on part-time work, Dir 99/70 on fixed-term employment and Dir 2008/104 on fixed-term employment and Dir 2008/104 on the temporary workthe temporary work

Choosing to focus on part-time soliciting the Choosing to focus on part-time soliciting the attention on the process of revision of part-attention on the process of revision of part-time work of the Public Administration time work of the Public Administration workersworkers

Valorisation of voluntary Valorisation of voluntary principle?principle?

Request for a preliminary ruling from the Tribunale di Request for a preliminary ruling from the Tribunale di Trento (Italy) lodged on 25 April 2013 – Teresa Mascellani v Trento (Italy) lodged on 25 April 2013 – Teresa Mascellani v

Ministero della GiustiziaMinistero della Giustizia

(Case C-221/13)(Case C-221/13) Language of the case: ItalianLanguage of the case: Italian Referring courtReferring court Tribunale di Trento Tribunale di Trento Parties to the main proceedingsParties to the main proceedings Applicant:Applicant:

Teresa Mascellani Teresa Mascellani Defendant:Defendant: Ministero della Giustizia Ministero della Giustizia

Questions referredQuestions referred

In so far as it provides that ‘[t]he refusal by a worker to be In so far as it provides that ‘[t]he refusal by a worker to be transferred from full-time to part-time work or vice-versa transferred from full-time to part-time work or vice-versa should not in itself constitute a valid reason for should not in itself constitute a valid reason for termination of employment, without prejudice to the termination of employment, without prejudice to the possibility, under national laws, collective agreements and possibility, under national laws, collective agreements and practice, of termination for other reasons such as may practice, of termination for other reasons such as may arise from the operational requirements of the arise from the operational requirements of the establishment concerned’, must Clause 5.2 of the establishment concerned’, must Clause 5.2 of the Agreement implemented by Directive 97/81/EC Agreement implemented by Directive 97/81/EC 11 be be construed as meaning that provision may not be made in construed as meaning that provision may not be made in the legislation of Member States for employers to be able the legislation of Member States for employers to be able to convert a part-time employment relationship into a full-to convert a part-time employment relationship into a full-time relationship even where the employee does not time relationship even where the employee does not consent?consent?

Does Directive 97/81/EC preclude a provision of national Does Directive 97/81/EC preclude a provision of national law (such as Article 16 of Italian Law No 183 of 4 law (such as Article 16 of Italian Law No 183 of 4 November 2010) under which employers may convert a November 2010) under which employers may convert a part-time employment relationship into a full-time part-time employment relationship into a full-time employment relationship even where the employee does employment relationship even where the employee does not consent?not consent?

Ms. Smith is an employee of the Ministry of Justice with hours of part-time vertical at the Court of Venice. Part-time work is 50% with time divided over 3 days a week. By decision of the Director of Administration as part-time is revoked since 03.21.2011, issued prior ministerial order dated February 8, 2011, n. 20384.

(Part-time work provisions)

… in accordance with the principles of fairness and good faith, may be re-evaluated measures granting the transformation of employment from full-time to part-time already 'adopted before the date of entry into force of the aforementioned Decree-Law no. 112 of 2008, converted with amendments by Law no. 133 of 2008.

Ms Smith is speaking to you for a consultation. Asks in particular, what strategy should be adopted in respect of the act issued by your employer

(the public administration) 

Case Study 2Case Study 2

The role of the national The role of the national courts and the frontier of courts and the frontier of anti-discrimination law anti-discrimination law

--Request for preliminary Request for preliminary rulings rulings

--Consistent Consistent interpretation interpretation

--Disapplication (not Disapplication (not application)application)

Thank you for your Thank you for your attention!attention!