C_2004156EN.01000602.xml

12.6.2004

Official Journal of the European Union

C 156/6

Reference for a preliminary ruling by the Tribunale di Genova (Italy) by order of that court of 15 March 2004 in the case of Andrea Vassallo against Azienda Ospedaliera Ospedale San Martino di Genova e Cliniche Universitarie Convenzionate

(Case C-180/04)

(2004/C 156/12)

Reference has been made to the Court of Justice of the European Communities by order of the Tribunale di Genova (Italy) of 15 March 2004, received at the Court Registry on 16 April 2004, for a preliminary ruling in the case of Andrea Vassallo against Azienda Ospedaliera Ospedale San Martino di Genova e Cliniche Universitarie Convenzionate on the following questions:

In view of the principles of non-discrimination and effectiveness, having regard in particular to the measures taken by Italy in relation to employment relationships with non-public-sector employers, must Council Directive 1999/70/EC of 28 June 1999 (Article 1, and Clauses 1(b) and 5 of the ETUC-UNICE-CEEP framework agreement on fixed-term work set out in the directive) be interpreted as meaning that it precludes national provisions such as those in Article 36 of Legislative Decree No 165 of 30 March 2001 which do not determine ‘under what conditions fixed-term employment contracts or relationships shall be deemed to be contracts or relationships of indefinite duration’, and in fact contain an absolute prohibition from the outset on the establishment of employment relationships of indefinite duration resulting from abuse relating to the use of fixed-term contracts and relationships?

If the answer to the first question is in the affirmative, in view of the expiry of the time-limit for its implementation, must Council Directive 1999/70/EC of 28 June 1999 (and in particular Clause 5 of the Annex thereto) and the applicable principles of Community law be considered, also in the light of Legislative Decree No 368/2001 and particularly Article 5 thereof, which provides as a usual consequence of abuse of fixed-term contracts or relationships for conversion to a relationship of indefinite duration, to confer on individuals an actual right, which may be exercised immediately, in accordance with the national law most relevant to the present case (Legislative Decree No 368/2001) to recognition of the existence of an employment relationship of indefinite duration?

If the answer to the first question is in the affirmative and the second question in the negative, in view of the expiry of the time-limit for its implementation, must Council Directive 1999/70/EC of 28 June 1999 (and in particular Clause 5 of the Annex thereto) and the applicable principles of Community law be considered to confer on individuals a right to reparation for any loss or damage caused by the failure of the Italian Republic to adopt appropriate measures to prevent abuse relating to the use of fixed-term contracts and/or relationships with employers in the public sector?