JUDGMENT NO. 71

YEAR 2026

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Giovanni AMOROSO;

Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,

has pronounced the following

JUDGMENT

in the proceedings regarding the constitutional legitimacy of Article 29, paragraph 5, of Legislative Decree no. 116 of July 13, 2017 (Organic reform of the honorary judiciary and other provisions concerning justices of the peace, as well as transitional regulations relating to honorary magistrates in service, pursuant to Law no. 57 of April 28, 2016), as replaced by Article 1, paragraph 629, letter a), of Law no. 234 of December 30, 2021 (State budget for the financial year 2022 and multi-year budget for the 2022-2024 triennium), initiated by the Council of State, Seventh Section, in the proceedings between G. G. and A. P. and the Ministry of Justice, by way of the order dated September 24, 2025, registered under no. 204 of the 2025 register of orders and published in the Official Gazette of the Republic, no. 44, First Special Series, of the year 2025.

Having examined the statement of appearance of G. G. and A. P., as well as the intervention statement of the President of the Council of Ministers;

having heard the Judge Rapporteur Giovanni Pitruzzella at the public hearing on February 24, 2026;

having heard Counsel Calogero Ingrillì for G. G. and A. P., as well as State Attorney Sergio Fiorentino for the President of the Council of Ministers;

having deliberated in the chambers on February 24, 2026.

Statement of Facts

1.– The Council of State, Seventh Section, by order dated September 24, 2025, registered under no. 204 of the 2025 register of orders, raised questions of constitutional legitimacy regarding Articles 24, 111, and 117, first paragraph, of the Constitution – the latter in relation to Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the European Convention on Human Rights – concerning Article 29, paragraph 5, of Legislative Decree no. 116 of July 13, 2017 (Organic reform of the honorary judiciary and other provisions concerning justices of the peace, as well as transitional regulations relating to honorary magistrates in service, pursuant to Law no. 57 of April 28, 2016), as replaced by Article 1, paragraph 629, letter a), of Law no. 234 of December 30, 2021 (State budget for the financial year 2022 and multi-year budget for the 2022-2024 triennium), under which the participation of honorary magistrates in the confirmation procedures referred to in paragraph 3 of the same Article 29 "entails the waiver of any further claim of any nature whatsoever consequent to the prior honorary relationship.”

1.1.– The Council of State notes, in fact, that certain honorary deputy prosecutors (hereinafter: VPO) and honorary tribunal judges (hereinafter: GOT), on the premise of having performed honorary magisterial functions for many years, filed an action before the Regional Administrative Court (TAR) for Lazio for the recognition of a series of rights.

The claimants, in particular, sought the recognition of their right: a) to a "permanent employment contract” under the Ministry of Justice, on the same economic and legal terms as career magistrates, through stabilization within the professional judiciary, according to their respective seniority; b) to the payment of pro-die remuneration proportional to that of "tenured” magistrates, from the date of the inception of their honorary magisterial roles until their conversion to full-time permanent status; c) to the same welfare and social security treatment as "tenured” magistrates, with career reconstruction and all economic and normative benefits based on seniority for the "pre-tenure” period, plus interest and monetary revaluation; d) alternatively, to compensation for damages due to the abuse of legislative extensions of the fixed-term employment relationship, in an amount deemed just, plus interest and monetary revaluation.

These claims – the remitting court continues – are founded on the alleged applicability to honorary magistrates of the provisions under Articles 4, 42-bis to 42-septies, 43-bis, 71, 71-bis, and 72 of Royal Decree no. 12 of January 30, 1941 (Judiciary Organization), excluding "the new regulations, which largely repealed the former,” introduced by Legislative Decree no. 116 of 2017 (hereinafter also: the 2017 Reform), given that the appeal was filed on March 23, 2016, prior to its entry into force.

Furthermore, according to the claimants, the prior honorary relationship, governed by the aforementioned provisions of R.D. no. 12 of 1941, was conducted in violation of European Union law, and specifically: a) Council Directive 1999/70/EC of June 28, 1999, concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP; b) Clauses 2(1), 4, and 5(1) of the Annex (Framework Agreement on fixed-term work) to Directive 1999/70/EC (hereinafter: the framework agreement on fixed-term work); c) Point 5 of the Community Charter of the Fundamental Social Rights of Workers; d) Recommendation CM/Rec(2010)12 of the Committee of Ministers of the Council of Europe on judges: independence, efficiency and responsibilities.

1.1.1.– The TAR Lazio, by Judgment no. 9484 of September 1, 2021, appealed before the remitting court, declared a lack of jurisdiction over the request to establish ex novo an employment relationship with the public administration (thus reclassifying the request aimed at equating the status of the claimants to that of professional magistrates) and rejected all other claims, with legal costs offset.

1.1.2.– The Council of State reports that in their appeal, the first-instance claimants criticized the misinterpretation of the subject matter of the claims presented and the failure to make a preliminary reference to the Court of Justice of the European Union.

The appellants argued, in particular, that they never claimed recognition of the title of ordinary magistrate, which they already possess by virtue of belonging to the judiciary, pursuant to Article 4, paragraph 2, of R.D. no. 12 of 1941 and Articles 102 and 106 of the Constitution, nor did they request the establishment ex novo of an employment relationship with the public administration, but rather requested the equalization of their economic and legal treatment to that of professional magistrates.

The remitting court adds that the appellee, the Ministry of Justice, requested the dismissal of the appeal, contesting the comparability of the honorary magistrate role to that of a professional magistrate, based on several elements, including the absence of a public competition for entry into service, the different and lesser quality and quantity of the work performed by the honorary magistrate, and the compatibility of the honorary magistrate function, unlike the public official, with other professional activities. It also contested the existence of an abuse of fixed-term contracts, stating that each assignment of the honorary magistrate should be considered a new appointment.

1.1.3.– By Order no. 906 of January 26, 2023, the Council of State – in relation to the claims regarding the right to paid leave, welfare and social security protection, and compensation for damages due to the abusive renewal of fixed-term contracts – referred the following interpretive questions to the Court of Justice of the European Union, pursuant to Article 267 of the Treaty on the Functioning of the European Union: a) whether Article 7 of Directive 2003/88/EC of the European Parliament and of the Council of November 4, 2003, concerning certain aspects of the organization of working time and Clause 4 of the framework agreement on fixed-term work must be interpreted as precluding national legislation that does not provide, for GOTs and VPOs, any right to the payment of an allowance during the holiday period of suspension of activities and to compulsory social security and insurance protection against accidents at work and occupational diseases; b) whether Clause 5 of the framework agreement on fixed-term work must be interpreted as precluding national legislation under which the fixed-term employment relationship of honorary judges – classifiable as a service relationship and not as an employment relationship with a public administration – for which a regime based on an initial appointment act and only one subsequent reconfirmation is provided, may become the subject of various extensions contained in "national rank” laws, in the absence of effective and dissuasive sanctions and in the absence of the possibility of transforming such relationships into permanent employment contracts with a public administration, in a factual situation that may have produced favorable compensatory effects in the legal sphere of the recipients, as they were, in effect, automatically extended in their functions for a further period of time.

The remitting court instead considered the prerequisites for a preliminary reference non-existent in relation to the claims regarding the right to the establishment of a permanent employment relationship under the same economic and legal conditions as career magistrates and the right to payment of pro-die remuneration proportional to that of tenured magistrates, "noting that the Court of Justice had already sufficiently ruled on this matter” (citing the judgments of the Court of Justice of the European Union, Second Section, July 16, 2020, Case C-658/18, UX; First Section, April 7, 2022, Case C-236/20, PG).

1.1.4.– By the judgment of the Sixth Section, June 27, 2024, Case C-41/23, Peigli, the Court of Justice declared that: a) Article 7 of Directive 2003/88/EC and Clause 4 of the framework agreement on fixed-term work must be interpreted as precluding national legislation which, unlike what it provides for professional magistrates, excludes, for honorary magistrates in a comparable situation, any right to the payment of an allowance during the holiday period of suspension of judicial activities and to compulsory social security and insurance protection against accidents at work and occupational diseases; b) Clause 5(1) of the framework agreement on fixed-term work must be interpreted as precluding national legislation under which the employment relationship of honorary magistrates may be subject to successive renewals without there being provided, in order to limit the abusive use of such renewals, effective and dissuasive sanctions or the transformation of the employment relationship of such magistrates into a permanent employment relationship.

1.1.5.– The remitting court continues, reporting that, in the meantime, two of the claimants participated successfully in the procedure introduced by Law no. 234 of 2021, which provided, for honorary magistrates in service as of January 1, 2022, the possibility of being confirmed in their position until reaching the age of seventy, upon the outcome of an evaluation procedure, with no further need for renewals or intermediate confirmations.

Participation in such a procedure, however, entailed, by express provision of the challenged legislative disposition, the waiver of any further claim of any nature whatsoever consequent to the prior honorary relationship.

In relation to these claimants, therefore, the requirement of relevance for the purpose of proposing the question of constitutional legitimacy has undoubtedly been met, since the aforementioned disposition depends, on a substantive level, on the waiver of the rights arising from the prior relationship, and, on a procedural level, on the subsequent impossibility of pursuing actions concerning said rights, which are the subject of the a quo proceedings.

The application of the challenged disposition would, in essence, result in the non-acceptance of the claim "as a consequence of the waiver deriving automatically ex lege from the submission of the application to participate in the procedure.”

1.1.6.– A similar result would not be reached, however, in relation to the other two appellants, who did not participate in the confirmation procedures and have never received, as declared and self-certified in court, the allowance provided for by Article 29, paragraph 2, of Legislative Decree no. 116 of 2017.

Regarding them, therefore, there would be no preclusion to claim rights linked to the prior honorary relationship and to pursue the appeal, "with the consequence that the question of constitutionality is not raised in relation to their positions.”

1.1.7.– The Council of State believes, furthermore, still regarding the point of relevance, "to clarify [...] the exact subject matter of the dispute” in relation to which the questions of constitutional legitimacy are raised.

During the proceedings, in fact, the appellants modified their claims, "in some cases better specifying them (emendatio libelli), in other cases expanding their content (mutatio libelli).”

By partial and non-definitive judgment no. 770 of January 31, 2025, which has become res judicata, the a quo court deemed a series of claims admissible and, in particular: a) that regarding "the right [to the recognition] of a permanent employment relationship” under the Ministry of Justice, on the same economic and legal terms as career magistrates; b) that seeking the assessment of the right to payment of pro-die remuneration proportional to that of tenured magistrates, now extended to include the right to payment for unused annual leave; c) that regarding the assessment of the abusive reiteration of fixed-term contracts, deeming it irrelevant that the claim in question had originally been formulated as a subordinate claim and now, instead, proposed cumulatively with the others.

By the same judgment, however, the following were deemed inadmissible: a) the claim aimed at obtaining recognition of the right to transform the fixed-term honorary employment relationship into a permanent employment relationship, if understood as establishing an ex novo relationship under the public administration, a claim in relation to which the first-instance court had already indicated the ordinary court as having jurisdiction, before which, therefore, the case should have been resumed; b) the claim regarding the recognition of compulsory social security and insurance protection against accidents at work and occupational diseases, as well as the severance indemnity, for lack of specificity, as the relevant factual elements for the recognition of the protections in question had not been alleged and proven.

Only in relation to the claims deemed admissible and only in relation to those proposed by the claimants who participated in the evaluation procedure, therefore, the remitting court believes that "the relevance of the constitutional incident” exists.

Only for such claims, if the questions of constitutional legitimacy were not upheld, would the Council of State find itself in the position of having to declare the appeal inadmissible, given the subsequent impossibility of achieving the benefit of life to which the parties aspire, an impossibility derived, precisely, from their having participated, successfully, in the aforementioned procedure and from the consequent automatic effect of waiving the claims arising from the prior honorary relationship, pursuant to the cited Article 29, paragraph 5, of Legislative Decree no. 116 of 2017.

1.2.– Regarding the point of non-manifest groundlessness, the Council of State doubts the constitutional legitimacy of the last-mentioned provision, with reference to Articles 24, 111, and 117, first paragraph, of the Constitution, the latter in relation to Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the ECHR.

More specifically, in reference to Articles 24 and 111 of the Constitution, Article 29, paragraph 5, of Legislative Decree no. 116 of 2017 would violate the right to defense and the principle of fair trial, in that: "a) it subordinates access to the confirmation procedure to a preventive and generalized waiver to assert in court rights and claims matured during the course of the prior relationship; b) it determines an excessive and disproportionate compression of the right to take legal action through a preventive and generalized waiver imposed ex lege; c) it causes the compression of the constitutionally guaranteed right of access to judicial protection to derive from mere participation in a public competition procedure; d) it induces the private party to unjustly sacrifice the judicial protection of prior claims in order to access future ones, substantially imposing on [them] a choice between continuing existing litigation and submitting an application for confirmation, which entails a waiver of any prior claim and the pro futuro stabilization of the employment relationship, presented as a consideration for the definitive loss and settlement of every past grievance, even if the subject of pending litigation; e) it alters the parity of procedural parties, attributing an unjustified position of advantage to the public party; f) it conflicts with the right of citizens, and in this specific case of workers, to an effective remedy before a court, under conditions of equality, without a public party, the Ministry of [J]ustice, being able to take advantage of the effects of regulations emanating from the State, capable of frustrating the achievement of the legal situations asserted by private individuals; g) it unduly influences the decision of a pending lawsuit in which the State is a party, through the Ministry of Justice, determining the favorable outcome for the public party summoned to court, with a corresponding unfavorable outcome for the private claimant party, thus definitively precluding, through the declaration of inadmissibility of the lawsuit due to the subsequent lack of interest, the decision on the claims for the period preceding stabilization.”

The challenged provision would also violate Article 117, first paragraph, of the Constitution, because the recalled supranational interposed parameters "also guarantee the right to an effective remedy and a fair trial, an expression of common values of freedom, security, and justice and of principles of democracy and the Rule of Law”: the imposition of a generalized waiver of prior claims as a condition for access to the confirmation procedure would translate "into an unreasonable privilege in favor of the State to the detriment of workers’ rights, in violation also of the European principles of effectiveness of judicial protection and the worker’s right to an effective remedy.”

2.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney’s Office, arguing that the questions raised are unfounded.

2.1.– On the point of fact, the intervening party, besides reviewing the events described by the remitting court, observes, among other things, that the latter, by Order no. 906 of 2023, referred some interpretive questions to the Court of Justice. The Council of State, however, in light of the UX and PG judgments, did not see fit to submit questions regarding the need to guarantee the right to the establishment of a permanent employment relationship under the same economic and legal conditions as career magistrates, nor the right to payment of pro-die remuneration proportional to that of professional magistrates, deeming, in essence, the compatibility of domestic law with European law as an "acte éclairé,” "insofar as it did not recognize” such subjective rights to honorary magistrates, even if they were the recipients of a succession of fixed-term assignments.

In the first of the two cited judgments, the Court of Justice – after confirming that the notions of worker under Directive 2003/88/EC and fixed-term worker under Directive 1999/70/EC can also include the condition of Italian justices of the peace, even though they hold honorary relationships – allegedly clarified, among other things, that "certain differences in treatment between permanent workers hired at the end of a competition and fixed-term workers hired at the end of a procedure different from that provided for permanent workers can, in principle, be justified by the different qualifications required and the nature of the tasks for which they must assume responsibility” (citing point 159).

In the second judgment, it was instead stated that "the existence of an initial competition specifically designed for ordinary magistrates for the purpose of access to the judiciary, which does not apply to the appointment of justices of the peace, allows for the exclusion of the latter from benefiting in full from the rights of ordinary magistrates” (citing point 47).

The intervening party continues by recalling that, in response to the questions posed by the current remitting court, the Court of Justice, with the Peigli judgment, then stated that: a) Article 7 of Directive 2003/88/EC and Clause 4 of the framework agreement on fixed-term work must be interpreted in the sense that they "preclude national legislation which, unlike what it provides for ordinary magistrates, excludes, for honorary magistrates in a comparable situation, any right to the payment of an allowance during the holiday period of suspension of judicial activities and to compulsory social security and insurance protection against accidents at work and occupational diseases”; b) Clause 5(1) of the framework agreement on fixed-term work must be interpreted in the sense that it "precludes national legislation under which the employment relationship of honorary magistrates may be the subject of successive renewals without there being provided, in order to limit the abusive use of such renewals, effective and dissuasive sanctions or the transformation of the employment relationship of such magistrates into a permanent employment relationship.”

The President of the Council of Ministers further observes that, during the pendency of the a quo proceedings, which began in 2016, several legislative interventions followed, aimed at amending the aspects of national legislation on honorary magistrates that were in tension with European Union law.

The modifications made to Legislative Decree no. 116 of 2017 and, in particular, to its Article 29, would fall within this context.

Paragraph 2 of this provision would have the purpose of sanctioning the prior abuse of fixed-term contracts, through the recognition of a flat-rate economic compensation to those interested (which can always be refused by those who prefer the path of "analytical, necessarily judicial, liquidation of damages”), also aimed at compensating them for prior fixed-term renewals, which however is not accompanied by the stabilization of the relationship. The economic compensation would presuppose the lack of participation in or the failure to pass the evaluation procedures referred to in the subsequent paragraph 3 and, therefore, the closure of the honorary relationship with the public administration.

Alternatively, the other paragraphs of Article 29 would introduce – as a form of specific performance compensation – the provision of a completely exceptional form of access to the roles of the public administration, reserved for subjects previously discriminated against by the reiteration of fixed-term relationships, in the face of which, however, the interested party – but only in the case of a positive outcome of the reserved selection procedure – would have to waive their claim to the economic compensation as flat-rate damages for the prior violations.

In other words, the subsequent legislation – "in a context [...] in which the stabilization of the relationship was not an outcome imposed by previous violations” – would have placed those interested in the alternative of taking advantage of an economic compensation for rights not recognized in the period in which there had been an illegitimate reiteration of fixed-term relationships, or of taking advantage of an absolutely exceptional channel of access to the public administration, "as an equivalent form of ‘compensation.’ This, both for evident needs of containing burdens on public finances, and in the interest of the honorary magistrates involved,” to whom, otherwise, only monetary compensation would have had to be recognized, with the exclusion, therefore, of further reiteration of fixed-term relationships.

The questions raised by the remitting court, instead, would postulate the need for the accumulation of these "benefits,” with the consequence that the economic one provided for by Article 29, paragraph 2, or that liquidated by the judicial authority, should also be recognized to honorary magistrates who have passed the evaluation provided for by paragraph 3 and who, therefore, have established a permanent relationship with the public administration on the basis of an exceptional procedure, reserved for them precisely by reason of the prejudice previously suffered.

The intervening party then dwells on the Judgment of the Court of Justice, Fourth Section, September 4, 2025, Case C-253/24, Pelavi, in which it was affirmed that Clause 5(1) of the framework agreement on fixed-term work, read in conjunction with Clause 4 of that agreement, with Article 7 of Directive 2003/88/EC, and with Article 31(2) of the CDFUE, must be interpreted in the sense that it "precludes national legislation, aimed at sanctioning the abusive recourse to a succession of fixed-term employment contracts, which subordinates the application, for honorary magistrates in service, to participate in an evaluation procedure in order to be confirmed in the exercise of their functions until the age of 70, to the requirement of waiving the right to paid annual leave arising from Union law, relative to their prior honorary employment relationship.”

The Court of Justice allegedly deemed it in contrast with Union law to condition the preferential stabilization of honorary magistrates on the waiver of claims deriving from the prior reiteration of fixed-term relationships, but limitedly to those relative to the right to paid annual leave.

From this, two consequences would follow: first, the cited judgment of the Court of Justice would leave open the question of determining whether it is contrary to Union law to require that those involved waive, in order to access a reserved stabilization procedure (and on condition of having passed it positively), economic claims connected to violations other than the failure to recognize the right to paid annual leave and, hypothetically, not characterized by non-waivability; second, the possible contrariety to Union law could not be examined in light of the different parameters used in that ruling.

The intervening party then submits to the assessment of this Court the opportunity for a restitution of the acts to the remitting court, so that it may verify the continuing relevance of the questions, in light of the fact that the provision suspected of constitutional illegitimacy will have to be partially non-applied in the a quo proceedings, specifically in the part in which it implies the waiver of the right to paid annual leave.

The cited Pelavi judgment could be considered as having occurred after the referral: even if it was filed before the publication of the relative order (September 24, 2025), it could not have been known at the time of the pronouncement, since the case was held for decision on July 1, 2025.

A renewed analysis of the case by the a quo judge would also be desirable to clarify whether – beyond the question of unused leave – profiles of the claim remain in the a quo proceedings linked by the necessary nexus of prejudiciality with the raised questions of constitutional legitimacy, and this in light of the partial judgment of the remitting court no. 770 of 2025, which declared the inadmissibility of several claims set forth by the claimants in the first instance.

2.2.– On the merits, the President of the Council of Ministers deems it "useful” to take his starting point again from the Pelavi judgment, which would carry a widespread reconstruction of EU-unit jurisprudence on the matter.

The Court of Justice would have reiterated therein that "the framework agreement does not state a general obligation for Member States to provide for the transformation of fixed-term employment contracts into permanent contracts. In fact, Clause 5(2) of the framework agreement leaves, in principle, to Member States the task of establishing under what conditions fixed-term contracts or employment relationships are considered as permanent” (citing point 56).

Member States, therefore, would have the faculty, "as measures appropriate to prevent or sanction the abusive use of a succession of fixed-term employment contracts, to transform fixed-term employment relationships into permanent employment relationships, given that the stability of employment deriving from the latter constitutes the supporting element of worker protection” (citing point 57).

The same judgment would have specified that "legislation, which establishes in an imperative manner that, in case of abusive use of fixed-term employment contracts, these are transformed into a permanent employment relationship, with the exclusion of any monetary compensation, is capable of constituting a measure that effectively sanctions such abusive use of the aforementioned contracts” (citing point 58); that "jurisprudence does not require an accumulation of measures” and that "neither the principle of full compensation for the prejudice suffered, nor the principle of proportionality impose the payment of compensation as punitive damages,” but only of "an adequate compensation, which must go beyond a purely symbolic indemnity, without however exceeding full compensation” (citing point 59).

Starting from these premises, the Court would have reiterated that "the framework agreement does not therefore impose on Member States to provide, in case of abusive use of fixed-term employment contracts, a right to compensation that is added to the transformation of the fixed-term employment relationship into a permanent employment relationship (judgment of May 8, 2019, Rossato and Conservatorio di Musica F.A. Bonporti, C‑494/17, EU:C:2019:387, point 45)” (citing point 60).

To these principles, according to the same Court of Justice, an exception should be made, however, in the case of the right to paid annual leave: in consideration of the nature of such a right, the relative recognition should take place regardless of the stabilization of the relationship.

Outside of this last case, nothing would prevent considering the stabilization alone as a measure capable, on the one hand, of effectively sanctioning the abuse of fixed-term contracts and, on the other, of effectively compensating those interested for the prejudice suffered.

The stabilization, in fact, would have been considered an appropriate measure even in cases where it constituted the only measure available, imposed by law. All the more reason, it should be considered such in the present case, in which the interested parties enjoy a dual alternative to it: that of receiving the flat-rate allowance established by Article 29, paragraph 2, of Legislative Decree 116 of 2017 and that of refusing even the latter, acting in court to obtain an "analytical” liquidation of damages.

Such a conclusion would be in line with the principles affirmed by this Court in Judgment no. 187 of 2016, with reference to the similar theme of the abuse of fixed-term contracts in the school sector. It was affirmed therein that the compensation for damages deriving from the abusive use of a succession of fixed-term employment relationships can take place not only by equivalent, but also in specific form, through their transformation into permanent relationships.

In particular, this Court would have deemed "sufficient” a regulation that guarantees serious chances of stabilization of the relationship both through mere automatisms (rankings), and through mild selections (reserved competitions): such a choice, indeed, would be "more forward-looking than that of compensation,” also because "it entails an implementation that is indeed peculiar to a basic principle of public employment (access by public competition), aimed at guaranteeing not only impartiality but also the efficiency of the administration (Article 97 of the Constitution).”

The solution adopted by the Italian legislature for honorary magistrates with the 2021 update would go in that direction, because to those who suffered an abusive reiteration of fixed-term contracts "are offered serious chances of stabilization that constitute compensation in specific form, as the procedure in question is reserved for them, does not present characteristics of competition, and greatly values the experience gained in the exercise of prior judicial functions.”

Different conclusions could not be reached even if regard were had to the parameters evoked by the remitting judge, which should be examined cumulatively, all concerning, in substance, the right to take legal action in defense of one’s own rights and the right to an effective remedy.

The question, according to the intervening party, would not be correctly posed, because the implied waiver provided for by Article 29, paragraph 5, of Legislative Decree no. 116 of 2017 would operate "on the substantive level, as a waiver of the subjective right, and not on the procedural level, as a waiver of the right of action or of certain prerogatives or faculties available in the process by [those] who are still holders of the subjective right.”

It would be a choice remitted to the autonomy of the interested party, who would remain free not to resort to it and to claim full satisfaction of their own creditor reasons, or the allowance in the amount flat-rated by Article 29, paragraph 2, of Legislative Decree no. 116 of 2017.

No undue pressure would be exerted on the right to take legal action, given that the waiver of it (recte: to the substantive right that would form its object) would follow from a free choice of the interested party.

3.– With a brief filed on November 14, 2025, two of the appellant parties in the a quo proceedings (those who successfully participated in the confirmation procedures) entered an appearance, arguing that the questions raised by the Council of State are well-founded.

3.1.– On the merits, the parties adhere, in substance, to the arguments set forth by the remitting court in support of the doubts of constitutional legitimacy.

They add that the challenged provision would not perform any balancing between the interests at stake. The full sacrifice of the fundamental rights of the person (right to defense, access to justice, protection of work) in favor of "interests of a merely administrative-financial nature (closure of litigation, savings in expenditure)” would be "constitutionally unjustifiable,” especially in light of the violations of European Union law ascertained by the Court of Justice.

They observe, furthermore, that, with the Pelavi judgment, the latter confirmed "the illegitimacy of the challenged rule in the part in which it imposes the waiver of rights deriving from European Union law.”

Finally, they report that the European Commission has initiated infringement procedure 2016/4081 against Italy for incompatibility of the Italian legislation regarding honorary magistrates with Union law. Recently, on October 8, 2025, the Commission allegedly sent yet another letter of formal notice to the Italian State.

4.– By act filed on November 5, 2025, the professional association Giustizia ed Equità filed a written opinion, as amicus curiae, urging for the constitutional illegitimacy of the provision challenged by the remitting court "in the part in which it subordinates the participation of honorary magistrates to the evaluation and stabilization procedures [...] to any further claim of any nature whatsoever consequent to the prior honorary relationship,” or, alternatively, for a judgment of dismissal that "interprets its scope in a sense consistent with constitutional and European parameters, excluding any preclusive effect for claims already recognized or for which the judgment is pending.”

The opinion was admitted by presidential decree on January 9, 2026.

5.– By investigative decree of January 22, 2026, pursuant to Article 9, paragraphs 2 and 3, of the Supplementary Rules for proceedings before the Constitutional Court, it was ordered, with the burden borne by the State Attorney’s Office, the acquisition in the proceedings of "the letter of formal notice, communications, opinions, and any other act of the European Commission relative to infringement procedure INFR (2025) 2159 of October 8, 2025, concerning honorary magistrates hired before August 15, 2017.” The State Attorney’s Office complied with the investigative burden, filing the required documentation on January 26, 2026.

Considered in Law

6.− With the order indicated in the epigraph, the Council of State, Seventh Section, raised, with reference to Articles 24, 111, and 117, first paragraph, of the Constitution – the latter in relation to Article 47 of the CDFUE and Article 6(1) of the ECHR – questions of constitutional legitimacy of Article 29, paragraph 5, of Legislative Decree no. 116 of 2017, as replaced by Article 1, paragraph 629, letter a), of Law no. 234 of 2021, under which the "participation” of honorary magistrates in the confirmation evaluation procedures referred to in paragraph 3 of the same Article 29 "entails the waiver of any further claim of any nature whatsoever consequent to the prior honorary relationship.”

In particular, according to the remitting court, the challenged provision would violate the right to defense and the principle of fair trial, in that: "a) it subordinates access to the confirmation procedure to a preventive and generalized waiver to assert in court rights and claims matured during the course of the prior relationship; b) it determines an excessive and disproportionate compression of the right to take legal action through a preventive and generalized waiver imposed ex lege; c) it causes the compression of the constitutionally guaranteed right of access to judicial protection to derive from mere participation in a public competition procedure; d) it induces the private party to unjustly sacrifice the judicial protection of prior claims in order to access future ones, substantially imposing on [them] a choice between continuing existing litigation and submitting an application for confirmation, which entails a waiver of any prior claim and the pro futuro stabilization of the employment relationship, presented as a consideration for the definitive loss and settlement of every past grievance, even if the subject of pending litigation; e) it alters the parity of procedural parties, attributing an unjustified position of advantage to the public party; f) it conflicts with the right of citizens, and in this specific case of workers, to an effective remedy before a court, under conditions of equality, without a public party, the Ministry of [J]ustice, being able to take advantage of the effects of regulations emanating from the State, capable of frustrating the achievement of the legal situations asserted by private individuals; g) it unduly influences the decision of a pending lawsuit in which the State is a party, through the Ministry of Justice, determining the favorable outcome for the public party summoned to court, with a corresponding unfavorable outcome for the private claimant party, thus definitively precluding, through the declaration of inadmissibility of the lawsuit due to the subsequent lack of interest, the decision on the claims for the period preceding stabilization.”

Article 117, first paragraph, of the Constitution would also be violated, because the evoked supranational interposed parameters "also guarantee [...] the right to an effective remedy and a fair trial, an expression of common values of freedom, security, and justice and of principles of democracy and the Rule of Law”: the imposition of a generalized waiver of prior claims as a condition for access to the confirmation procedure would translate "into an unreasonable privilege in favor of the State to the detriment of workers’ rights, in violation also of the European principles of effectiveness of judicial protection and the worker’s right to an effective remedy.”

7.− With the questions raised, the remitting court asks this Court to perform the control of constitutional legitimacy of the challenged provision also in the light of an "integrated parameter” of constitutionality, constituted by a provision of primary European Union law (Article 47 CDFUE) and one of the Constitution (Article 24).

7.1.− This is admitted by the jurisprudence of this Court, since it is a choice of the Constitution, with Article 117, first paragraph, to place the Constitution itself and "community obligations” within a common horizon, thus linking them, precisely, in the aforementioned integrated parameter.

As recognized since Judgment no. 170 of 1984, Article 11 of the Constitution had already allowed for a constitutional foundation to be given to the principles of primacy and direct effect of European Union law, the true keystones of its legal system. Article 117, first paragraph, of the Constitution, as replaced by Article 3 of Constitutional Law no. 3 of October 18, 2001 (Amendments to Title V of the Second Part of the Constitution), not only strengthened the constitutional coverage of these principles – which structurally differentiate the European Union from international organizations – but also justifies, in some situations, the integration of the provisions of the Constitution with those of Union law into what could be defined as a single "block of constitutionality.”

The rigidly dualistic vision of the relations between the EU-unit system and the national system, initially adopted by the jurisprudence of this Court (judgments no. 170 of 1984 and no. 183 of 1973), corresponded to a phase in which Union law had a circumscribed field of action, substantially limited to the realization of the common market. That vision entailed a clear separation between the Constitution and that law and between the respective main interpreters, namely this Court and the Court of Justice. In a structure of relations between the two systems which were considered as clearly separated and autonomous and which was founded on a precise distribution of competences between them, it was for the common courts to verify the compatibility of the law with Union law, subject to a possible preliminary reference to the Court of Justice, and the power not to apply it in case of incompatibility with provisions of that law endowed with direct effects, while this Court assumed the role of defender of constitutional identity through the instrument of "counter-limits.” By reason of this, the two Courts were destined to move on distinct tracks, without ever "meeting,” if not in the case of a contraposition determined by the recalled "counter-limits.”

The progressive extension of the scope of application of Union law, which inevitably intersects a substantial part of the constitutional matter, whose extension is considerable, has modified the described relationship between the two systems.

In particular, the characterization by the Court of Justice of the Treaties as "basic constitutional charters” (Court of Justice of the European Communities, Judgment of April 23, 1986, Case C-294/83, Les Verts); the interpretation in an extensive key of its competences and the consequential weakening of the principle of attribution (a phenomenon known as "competence creep”); the recognition, by the Treaty of Lisbon, to the Charter of Fundamental Rights of the European Union of the same legal value as the Treaties; the jurisprudential configuration of that Charter as a "shadow” that always follows EU-unit law (at least starting from the judgment of the Court of Justice, Grand Chamber, February 26, 2013, Case C-617/10, Åklagaren), with the consequence that all "situations” that fall within the scope of application of the latter are subject to its discipline (even beyond, therefore, the cases in which the national legislature gives implementation to Union law); the recognition by the Luxembourg judges of the preceptive efficacy of the values enumerated by Article 2 of the Treaty on European Union, beginning with that of the Rule of Law (CJEU, plenary session, judgments February 16, 2022, Case C-156/21, Hungary and Case C-157/21, Poland); all these factors, in a structure founded on the principles of primacy and direct effect of EU-unit law, have caused the legal system of the European Union and that of the Member States to become increasingly integrated and interdependent, in the terms specified below.

Constitutional jurisprudence initiated with Judgment no. 269 of 2017 expressly connected to such transformations. The latter, in fact, recognized the competence of this Court to also address conflicts between internal rules and the Charter of Fundamental Rights of the European Union, "by reason of its content of a typically constitutional stamp,” since "[t]he principles and rights set out in the Charter intersect to a large extent with the principles and rights guaranteed by the Italian Constitution (and by the other national Constitutions of the Member States). So it may be the case that the violation of a right of the person infringes, at once, both the guarantees protected by the Italian Constitution, and those codified by the Charter of Rights of the Union.”

With the cited jurisprudence, the common judge was attributed the choice of whether to non-apply the internal rule, subject to a possible preliminary reference to the Court of Justice, or raise a question of constitutional legitimacy, when a double conflict with the CDFUE and the Constitution recurs.

This Court subsequently ceased to give importance to the "container” of the violated Union law rule – which therefore does not necessarily have to be the CDFUE (judgments no. 44 and no. 11 of 2020, and no. 20 of 2019) – and then admitted the proposability of the question of constitutionality also when the double contrast concerns, on the internal side, not a right, but a constitutional principle, such as that of equality (Judgment no. 15 of 2024), provided that a constitutional tone recurs, by reason of the nexus with constitutional interests or principles (judgments no. 1 of 2026, no. 147, no. 93, no. 31, no. 7 and no. 1 of 2025, no. 210 and no. 181 of 2024; Order no. 21 of 2025).

In any case, the competence of this Court "cannot in any way hinder or limit the power of common judges to propose a preliminary reference to the Court of Justice and not to apply the state law incompatible with Union law (CJEU, Grand Chamber, judgment June 22, 2010, joined Cases C-188/10, Melki and C-189/10, Abdeli; CJEU, Grand Chamber, judgment February 22, 2022, Case C-430/21, RS). In short, it is for the common judge to decide, in relation to what is imposed by the characteristics of the concrete case, whether to non-apply the law or raise a question of constitutional legitimacy, without prejudice to the possibility of proposing a preliminary reference to the Court of Justice, pursuant to Article 267 TFEU (Judgment no. 210 of 2024).

The current arrangement of relations between the systems, therefore, is characterized by a concurrence of remedies, destined to ensure the full effectiveness of Union law and to exclude, by definition, any preclusion. The centralized constitutional review does not stand in antithesis with a diffuse mechanism of implementation of European law, but cooperates with it to build increasingly integrated protections (among many, Judgment no. 15 of 2024), since this is exactly the sense of the reference to Union law made by the combined provisions of Articles 11 and 117, first paragraph, of the Constitution.

It will always be for the judge, by reason of the objective characteristics of the case under scrutiny, in relation to the indications of positive law, to choose the most appropriate remedy, but the interlocution "with this Court, called to render an erga omnes pronouncement, proves particularly fruitful, whenever the interpretation of the legislation in force is not devoid of uncertainty or the public administration continues to apply the controversial discipline or the interpretive questions are harbingers of a systemic impact, destined to unfold its effects well beyond the concrete case, or whenever it is necessary to perform a balancing between principles of a constitutional nature” (Judgment no. 181 of 2024).

The preliminary reference, moreover, "may also be proposed by this Court, invested with the question of constitutional legitimacy, whenever there are doubts about the interpretation of Union law. Indeed, the Court of Justice has the task of ensuring, with its interpretation, the uniform application of Union law, thus guaranteeing the equality of Member States before such law (Article 2 TEU). The "community of Courts” and the "dialogue” that takes place between them, marked by the principle of loyal cooperation, promote the full implementation of the principle of primacy of European law and ensure the good functioning of the interdependencies between the different legal systems, national and EU-unit” (Judgment no. 210 of 2024).

In the presence of legal systems that are no longer rigidly separated, but are integrated and interdependent, without any form of hierarchy, to ensure their correct functioning it is necessary, therefore, to give the widest application to the principle of loyal cooperation, recognized both by Union law (Article 4(3) TEU) and by our constitutional law (among many, judgments no. 88 and no. 87 of 2012, no. 379 of 1992 and no. 168 of 1963), and which, therefore, rises to the rank of a fundamental principle of the constitutional space common to the Union and the Member States.

7.2.− Certainly, the criterion of competence has a crucial role to govern the relations between the two systems, which remain distinct, given that the Union exercises, by virtue of the fundamental principle of attribution (Article 4(1) TEU), only the competences that are attributed to it by the Treaties. The principle of attribution is, therefore, one of the keystones of the relations between the European system and the national one. However, it does not give rise to watertight bulkheads capable of separating the EU-unit legal system from the national one, because often the respective competences intertwine and overlap, especially following the already recalled material extension of Union law, and because, even when a matter – such as, for example, citizenship or, as in the case under examination, the judiciary – falls within the competence of the Member States, national laws must nevertheless harmonize with Union law in reference to all the "situations” falling within the scope of application of the latter (among many, CJEU, Fourth Section, Judgment April 25, 2024, joined Cases C-684/22 to C-686/22, S.Ö., N.Ö., M.Ö., M.S. and S.S., point 34).

To prevent friction, conflicts, and disharmonies, which prejudice the certainty of the law and can weaken the necessary trust between the Member States and between them and the Union, collaboration is therefore necessary between the Court of Justice, the national constitutional Courts, and the common judge (to whom is reserved the choice of the legally most correct remedy based on the objective circumstances of the case), with the shared objective of ensuring the good functioning of the mentioned EU-unit and national systems, integrated and interdependent.

7.3.− The requirement of collaboration, naturally, does not cause the differences in roles and tasks between the Courts to vanish and, in particular, as already clearly emphasized in Judgment no. 31 of 2025, the distinction between the competence of the Court of Justice to ensure the uniform application of Union law, providing the binding interpretation for all Member States, thanks to the preliminary reference, the keystone of the European architecture; and the competence reserved to this Court as the final interpreter of the Italian Constitution, also with the possibility of providing the constitutionally oriented interpretation of national law, to guarantee the compliance of the national legal system with the Fundamental Charter.

Moreover, the Court of Justice operates according to dogmatic systematizations not always coinciding with those in use in the individual Member States and also for this reason the dialogue between the two Courts is necessary. Especially in the field of the protection of fundamental rights "it is essential that the national constitutional and supreme courts can ‘contribute, for their part, to making effective the possibility, of which Article 6 of the Treaty on European Union (TEU) reasons [...] that the corresponding fundamental rights guaranteed by European law, and in particular by the CDFUE, are interpreted in harmony with the constitutional traditions common to the Member States, also recalled by Article 52, paragraph 4, of the same CDFUE as relevant sources’” (Judgment no. 7 of 2025).

In this context, the collaboration between the Courts can take place according to different modalities.

When there are doubts about the content of Union law, which comes into relevance in the judgment of constitutionality of a law, this Court proposes a preliminary reference to the Court of Justice (among many, Judgment no. 210 of 2024; orders no. 21 of 2025, no. 161 and no. 29 of 2024, no. 217 and no. 216 of 2021, no. 182 of 2020, no. 117 of 2019 and no. 24 of 2017), generally putting forward the national constitutional requirements of which it asks the latter to take account in its decision, without prejudice to the fact that it is for the Luxembourg judges to insert them in a pan-European perspective, providing the interpretation of Union law, to which national Courts must adhere.

When, however, Union law has a defined content, this Court, after having verified the constitutional tone of the question, proceeds directly to its application, integrating the internal parameter of constitutionality with Union law, as possibly interpreted by the Luxembourg judges. In this way, this Court acts as enforcer of European Union law ensuring its primacy and full effectiveness, which can benefit from the erga omnes efficacy of the judgments of constitutional illegitimacy (Judgment no. 15 of 2024), as well as the "vast range of decisional techniques” (Judgment no. 1 of 2025) that can be employed in order to guarantee the aforementioned principles.

This is without prejudice to the possibility, for this Court, of applying a national standard of protection of a constitutional right that goes beyond what is established by the CDFUE, provided that the primacy, unity, and effectiveness of Union law are respected (CJEU, Grand Chamber, judgments February 26, 2013, Case C-617/10, Åklagaren, and Case C-399/11, Melloni; as well as judgment December 5, 2017, Case C-42/17, M.A.S. and M.B.; in the same sense, Judgment no. 177 of 2023 and Order no. 216 of 2021), and, in sectors not fully harmonized, of operating a connection between rights of EU-unit derivation and constitutional rights and principles.

When, finally, fundamental principles or rights come into play that define the constitutional identity of the Italian Republic – always in coherence with the identity of the Union defined by the common values referred to in Article 2 TEU – this Court, reserving as an exceptional instrument the application of the "counter-limits” (judgments no. 115 of 2018, no. 238 of 2014, no. 284 of 2007, no. 170 of 1984 and no. 183 of 1973; Order no. 24 of 2017), will preventively propose to the Court of Justice how to accommodate such principles within Union law or in any case to apply the guarantee of the constitutional identity of Member States referred to in Article 4(2) TEU (CJEU, Grand Chamber, judgment September 7, 2022, Case C-391/20, Cilevičs and others).

8.− In application of the general principles exposed above, the request of the State Attorney’s Office for restitution of the acts to the remitting court must be, preliminarily and in the first place, rejected, because it should carry out a new evaluation on the relevance of the questions, in light of the subsequent Pelavi judgment of September 4, 2025, which, according to the intervening party, would impose on the a quo judge to non-apply the challenged provision only in the part in which it imposes the waiver of paid leave.

It is evident, in fact, the constitutional tone of the questions themselves, which involve the inviolable right to defense (Article 24 of the Constitution) and the principle of fair trial (Article 111 of the Constitution), and this even regardless of the finding that the Pelavi judgment was filed (subsequently to the hearing in which the case before the a quo judge passed into decision, but) before the filing of the order of referral, which occurred on September 29, 2025, yes that it, in any case, could not be considered ius superveniens (Judgment no. 23 of 2026).

The activation of the constitutional incident appears, then, extremely opportune, since the vast national litigation undertaken by honorary magistrates (below, at points 15 and 19) has given and continues to give divergent results also in relation to the recognition of the protections provided to workers by Union law, so that only the intervention of this Court is able to offer an additional guarantee to the primacy of the latter and, above all, to provide "an anything but negligible benefit to the value of constitutional relevance of the certainty of the law” (Judgment no. 147 of 2025; in the same sense, Judgment no. 1 of 2026).

9.− Still preliminarily and in the second place, the widespread and reiterated indications of the Court of Justice – which will be spoken of below – render a preliminary reference pursuant to Article 267 TFEU superfluous (Court of Justice, Grand Chamber, judgments March 24, 2026, Case C-767/23, Remling, and October 6, 2021, Case C-561/19, Consorzio Italian Management and Catania Multiservizi; judgment October 6, 1982, Case C-283/81, Cilfit and others).

With reference to the provision challenged in the present judgment of constitutional legitimacy, in fact, today’s question appears "materially identical to another question, raised in relation to a similar case [...] already decided in preliminary way” (Cilfit judgment) by the Court of Justice with the Pelavi judgment (on which, below, at point 20.5), and the interpretation of the provisions of Union law relevant in the case in point is "founded on the case law” of the Union (Remling judgment) and, in particular, on the judgments UX, PG, Peigli and Pelavi (on which, below, diffusely, at point 20).

10.− On the merits, the questions raised with reference to Articles 24 and 117, first paragraph, of the Constitution, the latter in relation to Article 47 CDFUE, are well-founded in the senses indicated below, with absorption of those raised with reference to Articles 111 and 117, first paragraph, of the Constitution, the latter in relation to Article 6(1) of the ECHR.

11.− In general terms, the provision of primary Union law that integrates the constitutional parameter can, in its turn, be linked to provisions of derived law, which therefore take relevance in the judgment of constitutionality.

This occurs in the case in point, in which the internal provision is challenged in that it would prevent the exercise of the constitutional right to defense in court and the right to an effective remedy, guaranteed by the CDFUE, and would therefore be capable of neutralizing subjective situations guaranteed also by derived law, such as the right to paid leave (Directive 2003/88/EC) and the prohibition of discrimination between fixed-term workers and permanent workers, on one hand, and between part-time workers and full-time workers, on the other (respectively, framework agreement on fixed-term work and framework agreement on part-time work concluded on June 6, 1997, which figures as an annex to Council Directive 97/81/EC of December 15, 1997, concerning the framework agreement on part-time work concluded by UNICE, CEEP and the ETUC, as amended by Council Directive 98/23/EC of April 7, 1998).

The real issue at stake, in the case under examination, is constituted, precisely, by the protection of such rights. There exists, that is, a close interdependence between the procedural position and the substantive one, so that the underlying problem that needs to be addressed is whether the national provision (challenged here) that imposes on honorary magistrates, as a consideration for stabilization, the complete waiver of rights conferred by the same Union law and relative to prior relationships is compatible with Union law. In case of a positive answer, there would be no injury to the right to take legal action in defense of such rights. Vice versa, if the latter could not form the object of a waiver imposed by law as a consideration for stabilization, then prohibiting the action in court for the protection of the same would constitute a violation of Article 24 of the Constitution and Article 47 of the CDFUE.

12.− For the purposes of today’s decision, it is therefore necessary, in the first place, to reconstruct the position of honorary magistrates in the constitutional system (below, point 13) and, even if briefly, in the legislative one and in practice (below, point 14), to then move on to examine the scope of the claims they asserted in court (below, points 15, 18, and 19), to illustrate the interventions, on the point, of the European Commission and of the legislature of the 2017 reform (below, respectively, points 16 and 17), and to identify the subjective rights conferred on the same magistrates by Union law, as interpreted by the Court of Justice (below, points 20 and 21).

13.− Article 106 of the Constitution, after having sculpted, in the first paragraph, the rule that "[a]ppointments of magistrates take place by competition” – "a rule in respect of which the possibility provided for by the third paragraph of the same provision constitutes an exception, that, upon designation by the CSM, can be called to the office of councilor of cassation, for distinguished merits, ordinary university professors in legal subjects and lawyers who have fifteen years of practice and are registered in the special registers for superior jurisdictions” (Judgment no. 41 of 2021) – provides, in the second paragraph, that the law on the judiciary "can admit the appointment, also elective, of honorary magistrates for all functions attributed to single judges.”

In the constitutional model, therefore, the judicial functions entrusted to the ordinary judiciary are exercised by tenured magistrates, hired as employees through public competition, who perform their professional activity on an exclusive basis and without a priori limitations of matter, and by honorary magistrates, not hired through public competition and not employees, to whom only "minor” justice can be entrusted (in terms of "level of complexity”: Judgment no. 267 of 2020), and who, precisely because they are honorary, perform the magisterial activity on an occasional and "concurrent” basis (thus, again, Judgment no. 267 of 2020).

Different, therefore, are the preparation and the commitment required for the appointment, the modalities of the same, the duties and the functions performed, as well as, consequently, the connected responsibilities.

This Court has already affirmed that such an arrangement constitutes "the point of arrival of a complex debate, in the works of the Constituent Assembly, regarding the most appropriate modalities of appointment of magistrates, in coherence with the fundamental choices regarding the autonomy and independence of the judiciary from any other power (Article 104, first paragraph, of the Constitution) and the subjection of the judge only to the law (Article 101, second paragraph, of the Constitution), as well as the prohibition of the institution of extraordinary judges or special judges (Article 102, second paragraph, of the Constitution)” (Judgment no. 41 of 2021).

In such a model, appointment through public competition as a requirement for access to the magisterial function therefore constitutes an unrenounceable fundamental principle, because it guarantees "the possibility of access to the ordinary judiciary for all citizens, in adherence to the provision of Article 3 of the Constitution, avoiding any discrimination, also based on gender,” ensures "the technical-professional qualification of magistrates, deemed a necessary condition for the exercise of judicial functions,” and contributes "to ensuring the separation of the judicial power from the other powers of the State and its very independence, in defense of the judicial order [...] as a founding element of the order of the Republic” (again, Judgment no. 41 of 2021).

The constitutional system of the judiciary, therefore, requires the legislature to configure the contribution of non-professional magistrates to the functioning of justice within the narrow limits of an honorary relationship.

The latter is characterized by: a) compatibility with the performance of a work or professional activity (judgments no. 267 of 2020 and no. 70 of 1971; orders no. 174 of 2012, no. 479 of 2000, no. 272 of 1999 and no. 57 of 1990); b) a choice inspired by criteria of a political-discretionary nature and not technical-administrative (judgments no. 41 of 2026 and no. 319 of 1994); c) a regulation of the service deriving, almost exclusively, from the act of conferring the assignment (judgments no. 41 of 2026 and no. 319 of 1994); d) a normally temporary duration of the same assignment (Judgment no. 41 of 2026 and no. 319 of 1994); e) a compensation of an indemnity nature and not remuneration (judgments no. 41 of 2026, no. 220 of 2005 and no. 319 of 1994; orders no. 272 of 1999, no. 594 and no. 379 of 1989); f) the exercise of "functions spontaneously assumed by sentiment of civic duty and social dignity, and not identifiable with professional activity” (Judgment no. 70 of 1971).

It is on the basis of such characteristics of the honorary magistrate – contrasted with those of the tenured magistrate, who performs his activity on a professional and exclusive basis, as well as upon passing the public competition – that this Court has always rejected the questions of constitutional legitimacy, proposed over time, aimed at the equalization of different aspects of the legal and economic treatment of the two, well-distinct, magisterial categories (judgments no. 267 of 2020 and no. 60 of 2006; orders no. 174 of 2012, no. 479 of 2000, no. 272 of 1999, no. 57 of 1990, no. 594, no. 515 and no. 379 of 1989).

The Constitution, in short, excludes categorically that professional and honorary magistrates enjoy the same legal and economic status, under penalty of violation of the fundamental principles of equality and public competition for access to the magisterial function, which contributes to implementing the equally fundamental principle of the independence of the judiciary from other powers of the State (Judgment no. 41 of 2021), in the perspective of the most careful protection of the rights of the subjects.

These are "supreme” principles that "sculpt the identity of our Constitution” and which, as such, "cannot be subverted or modified in their essential content even by constitutional amendment laws or other constitutional laws (Judgment no. 1146 of 1988)” (Judgment no. 125 of 2025).

14.− To meet the notorious and ever-growing load of work burdening the jurisdiction and to respond to the pressing request for speedy and effective justice, also in implementation of the constitutional principle of the reasonable duration of processes, from such constitutional model the legislature, in part, and above all practice have drifted over time.

In the first place, on the legislative level, there has been an expansion of the tasks and functions attributed to honorary magistrates (this Court has already given account of such a scenario in the cited Judgment no. 41 of 2021, with specific reference to auxiliary appellate judges, and in Judgment no. 172 of 2021, with reference to GOTs), in tension with the constitutional design that requires a marginal employment of such a figure.

Correlatively, in practice, honorary magistrates, by force of circulars of the Superior Council of the Magistracy (CSM) and of directives of the heads of offices, have often been employed in the offices they belong to in a manner that is anything but occasional (as highlighted by the Court of Justice, with the UX judgment, on which, more diffusely, below). In the second place, to respond to the same needs, the legislature, until the entry into force of the 2017 reform, has gradually extended the assignments of various honorary magistrates, assignments which, instead, in consonance with the recalled constitutional model, were originally configured as delimited in time and renewable for a limited number of times (with reference to justices of the peace, see the order of this Court no. 23 of 2023, which ordered the restitution of the acts to the remitting court, which had raised questions concerning the provisions that had allowed for sixteen years the renewal of the claimant’s assignment in the a quo proceedings).

It is appropriate to specify, however, that, even in the face of such drift from the spirit of the constitutional model, the role and functions of honorary and professional magistrates have remained well-distinct both on the legislative level and in the concrete carrying out of judicial activity: this both because only the former – as said – are selected by public competition, and because the expansion of the competences of the latter has remained tendentially confined to cases of minor importance.

15.− By reason of the reported circumstances, honorary magistrates, as mentioned, have started a vast litigation in recent years both before the ordinary jurisdiction and before the administrative one.

In such litigation, the magistrates in question, on the basis of the underlying premise of having performed, in fact, work as employees under the Ministry of Justice, have advanced a series of claims, mainly having as their object: a) the establishment of an employment relationship as employees identical or assimilated to that of professional judges or, in any case, of a subordinate nature or, more recently, "pursuant to” Union law; b) the assessment of the right to an economic treatment, also with reference to paid leave, equalized or parameterized to that of professional magistrates or, in any case, typical of an employee or, more recently, pursuant to Union law; c) the assessment of the right to welfare and social security treatment (insurance for illnesses and accidents, maternity leave etc.) identical or in any case parameterized to that of a professional magistrate or, in any case, typical of an employee or, more recently, pursuant to Union law; d) the assessment of the right to a severance indemnity treatment identical or in any case parameterized to that of a professional magistrate or, in any case, typical of an employee or, more recently, pursuant to Union law; e) the assessment of the right to compensation for damages due to abusive reiteration of assignments, considered fixed-term employment contracts according to Union law.

16.− In parallel, the European Commission has initiated an infringement procedure having as its object both the reiteration of fixed-term assignments of honorary magistrates and various profiles of their legal and economic treatment, deemed in contrast with Union law relative to worker protection.

This is procedure no. 2016/4081, which, after numerous interlocutions between the Commission and the Italian Government, has resulted in two distinct initiatives: 1) with reference to "newly appointed” honorary magistrates (subsequent, that is, to the entry into force of Legislative Decree no. 116 of 2017), the infringement action before the CJEU, Case C-863/25, filed on December 19, 2025; 2) with reference to "long-term” honorary magistrates, i.e., those in service as of the date of entry into force of the 2017 reform, in a new infringement procedure (no. 2025/2159), initiated on October 8, 2025, whose letter of formal notice – which has as its main object precisely the provisions, including that challenged here, which provide for the waiver of claims arising from prior honorary relationships – was filed in court by the State Attorney’s Office, having been tasked with doing so by presidential investigative decree on January 22, 2026.

17.− As is known, to meet the described situation, the ordinary legislature intervened first with the 2017 reform and then with various modification interventions to the same reform.

With specific reference to "long-term” honorary magistrates – i.e., those affected by the challenged provision – the legislature, as far as relevant here, has deemed to proceed to their stabilization.

In particular, Article 29 of Legislative Decree no. 116 of 2017, as modified first by paragraphs 629 to 633 of Article 1 of Law no. 234 of 2021 and then by Law no. 51 of April 15, 2025 (Modifications to the regulation of the honorary judiciary), has provided for the creation of a "Run-down role of honorary magistrates in service” (thus, the current heading).

Access to this role is by means of a "permanent” confirmation procedure, until reaching the age of seventy (paragraph 1). The procedure consists of an oral interview, of a maximum duration of thirty minutes, on a practical case of substantive and procedural civil law or on substantive and procedural criminal law, based on the sector in which the candidates have exercised honorary judicial functions (paragraph 4).

The honorary magistrates in question can:

a) not participate in the confirmation procedure, in which case they cease from service (paragraph 7); in such an hypothesis, they have the right, saving the faculty of refusal, to an allowance in the amount of 2,500 or 1,500 euros, gross of tax withholdings, for each year of service during which they were engaged in a hearing, respectively, for at least eighty days or for a lower number, and in any case for an amount overall not exceeding the sum of 50,000 euros gross; the receipt of the allowance entails the waiver of any further claim of any nature whatsoever consequent to the ceased honorary relationship (paragraph 2);

b) participate in the confirmation procedure, which "entails the waiver of any further claim of any nature whatsoever consequent to the prior honorary relationship” (paragraph 5); without prejudice, however, that in case of failure to pass the evaluation procedure, they "have the right, saving the faculty of refusal,” to the recalled allowance (paragraph 2).

From the combined provisions of the mentioned dispositions, it is gathered, in substance, that the waiver imposed by law on prior claims operates if the honorary magistrate: i) participates in the procedure and passes it; ii) participates in it, does not pass it and chooses to receive the allowance; iii) does not participate in it, ceases from service and chooses to receive the allowance (in other words, the waiver follows the passing of the procedure or, alternatively to it, the acceptance of the allowance).

It is worth noting that the interpretation of the combined provisions of paragraphs 2 and 5 of the cited Article 29, according to which the waiver follows not the mere participation in the confirmation procedure, but its passing (or, alternatively to it, the acceptance of the allowance), is shared both by the State Attorney’s Office and by the Ministry of Justice in the circular of the department for judicial affairs of May 10, 2022, no. 0102105.U.

The case object of the a quo proceedings is that under i), regulated by paragraph 5 of Article 29, which is the challenged disposition. Cases under ii) and iii), instead, do not concern the aforementioned proceedings and are regulated by paragraph 2, which, therefore, correctly, was not challenged by the remitting court.

18.− The claims illustrated at point 15 are, therefore, the object of the waiver imposed by the challenged disposition on long-term honorary magistrates as a consequence (not of the mere participation, but) of passing the confirmation procedure (i.e., of stabilization).

19.− The lawsuits undertaken before internal jurisdictions to assert those claims, as mentioned, have given and continue to give divergent results, which it is not necessary to illustrate in detail here.

Suffice it to note that, while in the merit proceedings the claims of honorary magistrates have been in several occasions in whole or in part upheld, the superior jurisdictions – with limited and more recent exceptions (Court of Cassation, Labor Section, Judgment no. 12488 of May 11, 2025; Council of State, Seventh Section, Judgment no. 2716 of April 2, 2026) – have rejected them (among many, Civil Court of Cassation, First Section, Judgment no. 30121 of November 14, 2025; Labor Section, judgments no. 10080 of April 14, 2023, and no. 13973 of May 3, 2022; First Section, judgment no. 4386 of February 10, 2022; Council of State, Seventh Section, judgments no. 2723 of March 20, 2024, no. 1334 of February 9, 2024, no. 931 of January 30, 2024, and no. 6291 of June 28, 2023), highlighting the diversity of functions and roles of professional and honorary magistrates, a reflection of the recalled and fundamental constitutional arrangement of the judiciary.

On the two occasions, instead, in which this Court was called upon to rule, in incidental proceedings, within that litigation, the cases concluded with rulings on procedure (Orders no. 23 of 2023 and no. 215 of 2022).

20.− Within the litigation under examination, the Court of Justice intervened several times, called upon to rule on the compatibility with Union law of: a) domestic law prior to the 2017 reform (and its subsequent modifications), in parts where it did not guarantee honorary magistrates the right to paid leave, did not ensure the same, unlike tenured magistrates, welfare and social security treatment, and allowed a reiteration of fixed-term contracts, without providing an effective and dissuasive measure; as well as: b) the provision challenged today, in the part in which it conditions the stabilization procedure of long-term honorary magistrates to the waiver of rights consequent to the prior honorary relationship.

20.1.− In the UX judgment, the CJEU declared, as far as relevant here, that, in relation to the right to paid leave, Article 7(1) of Directive 2003/88/EC and Article 31(2) CDFUE must be interpreted "in the sense that a justice of the peace who, within the scope of his functions, performs real and effective services, which are neither purely marginal nor accessory, and for which he receives allowances having a remunerative character, can fall within the notion of ‘worker,’ within the meaning of such provisions, a circumstance that it is for the remitting court to verify.”

The same judgment also affirmed, regarding the prohibition of discrimination against fixed-term workers, that Clause 4(1) of the framework agreement on fixed-term work precludes national legislation that does not provide for the right for a justice of the peace to benefit from paid annual leave of thirty days, like that provided for professional magistrates, in the event that such a justice of the peace falls within the notion of "fixed-term worker,” within the meaning of Clause 2(1) of that framework agreement, and is in a "comparable” situation to that of a professional magistrate, unless such difference in treatment is justified by the different qualifications required and the nature of the tasks for which said magistrates must assume responsibility, a circumstance that it is for the remitting court to verify.

20.1.1.− In relation to the first aspect (right to paid leave), according to the Court of Justice, honorary magistrates could fall, once certain conditions are ascertained by the national judge, into the "notion of ‘worker’” within the meaning of Union law and their compensation could be assimilated to a true and proper remuneration.

In the first place, for the CJEU, for the purposes of the application of Directive 2003/88/EC, "the notion of ‘worker’ cannot be interpreted in a way that varies according to national systems, but has an autonomous scope, proper to Union law” (point 88). In that perspective, "every person who performs real and effective activities must be qualified as a ‘worker,’ with the exclusion of those activities so reduced as to be able to be defined as purely marginal and accessory” (point 93), and "the essential characteristic of the employment relationship is given by the circumstance that a person provides, for a certain period of time, in favor of another and under the direction of the latter, services in exchange for which he perceives remuneration” (point 94).

From this angle, again, "the legal nature sui generis of an employment relationship regarding national law cannot have any consequence on the quality of ‘worker’ within the meaning of Union law” (point 96).

In the second place, regarding compensation, the Luxembourg Court recalled that "it is necessary to examine whether the sums perceived by the claimant in the main proceedings are paid as consideration for his professional activity” (point 97), being irrelevant, also for that purpose, "the circumstance that the functions of the justice of the peace are qualified as ‘honorary’” by national legislation (point 100).

Finally, regarding the "bond of subordination” that also characterizes the European notion of worker (to be evaluated "case by case in consideration of all the elements and all the circumstances that characterize the relationships between the parties”: point 103), the CJEU observed that in the main proceedings it was ascertained that justices of the peace: "are bound to respect tables that indicate the composition of their office of belonging, which regulate in detail and in a binding manner the organization of their work, including the assignment of files, the dates and times of hearings” (point 109); "are bound to observe the service orders of the Head of the Office” and the "special and general organizational measures of the CSM” (point 110); "must be constantly available and are subject, under the disciplinary profile, to obligations analogous to those of professional magistrates” (point 111). These are circumstances that, all considered together, led the Court of Justice to believe that "justices of the peace perform their functions within the scope of a legal relationship of subordination on the administrative level, which does not affect their independence in the judicial function, a circumstance that it is for the remitting court to verify” (point 112).

20.1.2.− With reference to the prohibition of discrimination against fixed-term workers, the CJEU recalled some general principles constantly reiterated in its jurisprudence.

It highlighted, to this end, that: a) Clause 3(1) of the framework agreement on fixed-term work "includes all workers, without making distinctions based on the public or private nature of their employer and regardless of the qualification of their contract in internal law” (point 115); b) although it is for Member States to define, "according to legislation and/or national practice,” the terms "employment contract” or "employment relationship,” relevant within the meaning of the framework agreement, this can take place, "on condition of respecting the useful effect” of Directive 1999/70/EC and the general principles of Union law (point 117).

It follows that the notion of fixed-term worker, referred to in Clause 2(1) of the cited framework agreement "can include a justice of the peace, appointed for a limited period, who, within the scope of his functions, performs real and effective services, which are neither purely marginal nor accessory, and for which he receives allowances having a remunerative character, a circumstance that it is for the remitting court to verify” (point 134).

Once the figure of the justice of the peace is traced back to the notion of fixed-term worker, within the meaning of the cited framework agreement, the Court of Justice dwelt on the applicability of the principle of non-discrimination, which aims to prevent that, regarding "employment conditions” (i.e., legal and economic treatment), fixed-term workers are treated less favorably than "comparable” permanent workers, unless there are "objective reasons” (point 136).

To this purpose, the CJEU identified (point 139) the comparable permanent worker in the professional magistrate, in application of the criteria enunciated by its own jurisprudence, according to which account must be taken "of a set of factors, such as the nature of the work, training conditions, and employment conditions” (point 143).

In particular, the indices on which the "comparability” – for anti-discrimination purposes – of the position of the justice of the peace regarding that of the professional magistrate is based were identified as follows: 1) both belong to the judiciary and exercise jurisdiction in civil and criminal matters, as well as a conciliatory function in civil matters; 2) pursuant to Article 10 of Law no. 374 of 1991, the justice of the peace is bound to observe the duties provided for ordinary magistrates; 3) both are bound to respect tables indicating the composition of the office of belonging, which regulate in detail and in a binding manner the organization of their work, including the assignment of files, the dates and times of hearings; 4) both are bound to observe the service orders of the "Head of the Office,” as well as the special and general organizational measures of the CSM; 5) both are bound to be constantly available; 6) in case of non-observance of deontological and official duties, both are subjected to the disciplinary power of the CSM; 7) the justice of the peace "is subjected to the same rigorous criteria applicable for professional evaluations” of the tenured magistrate; 8) the same rules regarding civil and accounting liability provided by law for professional magistrates are applied to the justice of the peace (point 146).

This being so, the CJEU recognized, however, that "the disputes reserved to the honorary judiciary, and in particular to justices of the peace, do not have the aspects of complexity” that characterize the disputes devolved to professional magistrates and that, "pursuant to Article 106, second paragraph, of the Italian Constitution, justices of the peace can only perform the functions attributed to single judges and therefore cannot be part of collegiate bodies” (point 147).

The Luxembourg Court therefore remitted, yet again, to the national judge the task of determining, taking into account the highlighted circumstances, whether, "in the final analysis, [...] a justice of the peace like the claimant in the main proceedings finds himself in a situation comparable” to that of a professional magistrate (point 148).

It was then added that, where the judgment of comparability is positive, it must still be verified "whether there exists an objective reason that justifies a difference in treatment” (point 149).

To this purpose, in light of the defenses explained in court by the Italian Government, the Court of Justice also affirmed that "the differences between the hiring procedures” of justices of the peace and professional magistrates and, specifically, "the particular importance attributed by the national legal system and, more specifically, by Article 106(1) of the Italian Constitution, to competitions specifically conceived for the hiring of ordinary magistrates, seem to indicate a particular nature of the tasks for which the latter must assume responsibility and a different level of the qualifications required for the purpose of fulfilling such tasks” (point 161).

Although "the differences between the hiring procedures” of justices of the peace and professional magistrates "do not necessarily impose depriving justices of the peace of paid annual leave corresponding to those provided” for professional magistrates (again, point 161), the need to reflect such differences in the work activity between justices of the peace and professional magistrates could make it believed that a different treatment can respond to "a real necessity” and can be considered proportionate to the objectives pursued (point 162), without prejudice to the fact that the task of performing such ascertainment falls, exclusively, to the national judge (point 163).

20.2.− The affirmations of the judgment of July 16, 2020 were reiterated in the PG judgment (points 30 and 31), with which the CJEU declared that:

− Article 7 of Directive 2003/88/EC, Clause 4 of the framework agreement on part-time work, as well as Clause 4 of the framework agreement on fixed-term work, preclude "national legislation that does not provide, for the justice of the peace, any right to benefit from paid annual leave of 30 days nor from a welfare and social security regime that depends on the employment relationship, such as that provided for ordinary magistrates, if such justice of the peace falls within the notion of ‘part-time worker’ within the meaning of the framework agreement on part-time work and/or ‘fixed-term worker’ within the meaning of the framework agreement on fixed-term work, and finds himself in a situation comparable” to that of a professional magistrate;

− Clause 5(1) of the framework agreement on fixed-term work precludes "national legislation by force of which a fixed-term employment relationship can be the subject, at most, of three successive renewals, each of four years, for a total duration not exceeding sixteen years, and which does not provide for the possibility of sanctioning in an effective and dissuasive manner the abusive renewal of employment relationships.”

In the first place, the Court of Justice recalled that, with the UX judgment, it had already "declared, in substance, that the notion of ‘fixed-term worker,’ referred to in Clause 2(1) of the framework agreement on fixed-term work, must be interpreted in the sense that it includes a justice of the peace, appointed for a limited period, who, within the scope of his functions, performs real and effective services, which are neither purely marginal nor accessory, and for which he receives allowances having a remunerative character, a circumstance that it is for the remitting court to verify.”

From the UX judgment "it follows,” moreover, that "the existence of an initial competition specifically conceived” for professional magistrates "for the purpose of access to the judiciary, which instead does not apply to the appointment of justices of the peace, allows for the exclusion of the latter from benefiting in full” from the rights belonging to the former (point 47).

Thus, "although certain differences in treatment can be justified by the differences of qualifications required and the nature of the tasks for which ordinary magistrates must assume responsibility, the exclusion of justices of the peace from every right to paid leave as well as from every form of welfare and social security type protection is, in light of Clause 4 of the framework agreement on fixed-term work or Clause 4 of the framework agreement on part-time work, inadmissible” (point 53).

Regarding Clause 5 of the framework agreement on fixed-term work, the CJEU, after having recalled that national legislation prohibits, only in the public sector, the transformation into a permanent employment contract of a succession of fixed-term contracts, affirmed that, in order for the law instituting justices of the peace "to be able to be considered compliant with the framework agreement on fixed-term work, the internal legal system of the Member State concerned must provide, in such sector, another effective measure destined to avoid and, if the case, to sanction the abusive use of a succession of fixed-term contracts” (point 62), such not being the mere provision of a limit to the number of successive renewals as well as to the maximum duration of such fixed-term contracts (point 57).

The Court of Justice therefore observed that "from the indications provided by the remitting court it results that there is in the Italian legal system no provision that allows for sanctioning in an effective and dissuasive manner the abusive renewal of fixed-term employment relationships within the meaning of Clause 5 of the framework agreement on fixed-term work” (point 64).

20.3.− The Luxembourg Court – consulted by the current remitting court within the scope of the same controversy from which the present incident of constitutional legitimacy arises – ruled again with the Peigli judgment.

It was declared therein that:

− Article 7 of Directive 2003/88/EC and Clause 4 of the framework agreement on fixed-term work preclude "national legislation which, unlike what it provides for ordinary magistrates, excludes, for honorary magistrates who find themselves in a comparable situation, any right to the payment of an allowance during the holiday period of suspension of judicial activities and to compulsory social security and insurance protection against accidents at work and occupational diseases”;

− Clause 5(1) of the framework agreement on fixed-term work precludes national legislation under which the employment relationship of honorary magistrates may be the subject of successive renewals without there being provided, in order to limit the abusive use of such renewals, effective and dissuasive sanctions or the transformation of the employment relationship of such magistrates into a permanent employment relationship.

In the reasoning, the Court of Justice – after having reiterated that "the existence of an initial competition specifically conceived” for professional magistrates "for the purpose of access to the judiciary, which instead does not apply to the appointment of honorary magistrates, allows for the exclusion of the latter from benefiting in full from the rights” belonging to the former (point 53) – affirmed, however, that, "although certain differences in treatment can be justified by the differences of qualifications required and the nature of the tasks for which ordinary magistrates must assume responsibility, the exclusion of honorary magistrates from every right to paid leave and from every form of welfare and social security type protection is inadmissible in light of Clause 4 of the framework agreement” (point 54).

Regarding the abusive reiteration of fixed-term contracts, the judgment affirmed: "saving verification by the remitting court, it seems that the renewals of the employment relationship of the claimants concerned in the main proceedings, considered their number, were used not already to satisfy needs having a temporary character – due, for example, to a sudden and unpredictable increase in litigation – but rather to meet permanent and lasting needs of the Italian judicial system” (point 70).

20.4.− With the judgment of the First Section, September 12, 2024, Case C-548/22, M. M., the Court of Justice declared inadmissible, due to serious argumentative gaps, the application of the Justice of the Peace of Fondi, with which it was asked if it is compatible with Union law "the mechanism provided for by Article 29 of Legislative Decree no. 116, in that said national provision, while allowing the conversion of the fixed-term employment relationship of an honorary magistrate into a permanent employment relationship, would prevent such a magistrate from obtaining the same remuneration perceived by ordinary magistrates who exercise comparable functions, given that such conversion would entail the waiver, ex lege, to every claim deriving from the cessation of the previously exercised functions of honorary magistrate.”

20.5.− Lastly, on the compatibility of the provision challenged today with Union law, the often-cited Pelavi judgment of September 4, 2025, ruled.

The Court of Justice ascertained therein that Clause 5(1) of the framework agreement on fixed-term work, read in conjunction with Clause 4 of that agreement, with Article 7 of Directive 2003/88/EC, as well as with Article 31(2) CDFUE, "precludes national legislation, aimed at sanctioning the abusive recourse to a succession of fixed-term employment contracts, which subordinates the application, for honorary magistrates in service, to participate in an evaluation procedure in order to be confirmed in the exercise of their functions until the age of 70, to the requirement of waiving the right to paid annual leave arising from Union law, relative to their prior honorary employment relationship.”

In the reasoning, the CJEU recalled that, "whenever an abusive recourse to a succession of fixed-term contracts or employment relationships has been verified, it must be possible to apply a measure endowed with effective and equivalent guarantees of worker protection to properly sanction such abuse and cancel the consequences of the violation of Union law” (point 53).

The Court of Justice also recalled that "the framework agreement does not state a general obligation for Member States to provide for the transformation of fixed-term employment contracts into permanent contracts” (point 56) and that they have the faculty and not the obligation, as measures appropriate to prevent or sanction the abusive reiteration of fixed-term contracts, to transform fixed-term employment relationships into permanent employment relationships. Where Member States choose such a path, it is not necessary to ensure, in a cumulative way, the right to compensation for damages (points 58, 59 and 60).

With reference to the right to leave, the Court of Justice reiterated that, whenever it is ascertained that honorary judges "find themselves in a situation comparable” to that of professional magistrates, it is necessary to verify whether there exist "objective reasons that justify” a difference in treatment between the two magisterial categories (point 68).

The CJEU therefore added having "already ruled that the existence of a modality of hiring by competition reserved only for the positions” of professional magistrates for the purpose of access to the judiciary, which therefore does not apply to the hiring of honorary magistrates, allows for the exclusion that the latter benefit in full from the rights recognized to the former. "However, although certain differences in treatment can be justified by the differences of qualifications required and the nature of the tasks for which ordinary magistrates must assume responsibility, the exclusion of honorary magistrates from every right to paid leave cannot be admitted in light of Clause 4 of the framework agreement” (point 70).

The conclusion of such reasoning is twofold.

On one side, pursuant to Clause 5(1) of the framework agreement on fixed-term work, "the transformation of the fixed-term employment relationship into a permanent employment relationship constitutes, in principle, an effective sanction of such an abuse” (point 75).

On the other, however, that same clause "cannot be interpreted in the sense that the application of the measures adopted by a Member State to sanction the abusive recourse to a succession of fixed-term employment contracts and to cancel their consequences can be subordinated to a requirement, for the worker concerned, to waive a right recognized to him by Union law in application of Clause 4 of said agreement. In fact, Clause 5(1) and Clause 4 of the framework agreement have autonomous scopes of application, intended, respectively, to sanction such an abuse and to ensure the equivalent treatment of workers whenever these work on the basis of a fixed-term employment relationship” (point 77).

In short, "the national legislation that sanctions the abusive recourse to a succession of fixed-term employment relationships, providing for the possibility for an honorary magistrate to see his relationships transformed into a permanent employment relationship, cannot be subordinated to a requirement, for such a magistrate, to waive the rights conferred upon him by Union law” (point 78).

21.− In general terms, Union law, without prejudice to the principle of non-discrimination and the right to leave guaranteed also by its primary law, protects the worker’s rights on which the Court of Justice dwelt through harmonization directives (today pursuant to Article 153(2)(b) TFEU), which fix minimum standards, i.e., "general principles and minimum requirements” (thus, the preamble of the framework agreement on part-time work; in analogous terms, the preamble of the framework agreement on fixed-term work) which leave margins of discretion to Member States, who, therefore, can decline the economic content of those rights according to the specificities of the relationships that come into relevance in the respective national systems (on the point, also Article 7(1) of Directive 2003/88/EC).

As far as more immediately relevant here, for Union law, as interpreted by the Court of Justice:

− the qualification of the judiciary as honorary, chosen by the internal legislature, is indifferent, it being necessary to verify, in practice, if the honorary magistrate has in fact performed services attributable to an employment relationship within the meaning of the same Union law, such being those services "real and effective, which are neither purely marginal nor accessory, and for which he receives allowances having a remunerative character” (judgments UX and PG);

− symptomatic indices of the existence of such an employment relationship are the subjection of honorary magistrates to tables that regulate in detail and in a binding manner the organization of their activity, to the service orders of heads of offices and to organizational measures of the CSM, the obligation of availability, and the existence of disciplinary responsibility analogous to that of professional magistrates (points 109 and 111 of the UX judgment);

− in the presence, in fact, of an employment relationship as identified above, honorary magistrates have the right to paid leave and, by virtue of the prohibition of discrimination against part-time and fixed-term workers, to a welfare and social security treatment;

− the latter and, more generally, the employment conditions (i.e., economic and legal treatment) of honorary magistrates who are workers in the senses specified above must not be the same as professional magistrates, who are hired as a "comparable” category solely for the purposes of the principle of non-discrimination, in that they are engaged in a "similar” occupation (Clause 3(2) of the framework agreement on fixed-term work and Clause 3(1), number 2, of the framework agreement on part-time work);

− the circumstances that professional magistrates, unlike honorary magistrates, are hired through public competition, cover duties and perform tasks of greater complexity (judgments UX, PG and Peigli) integrate an "objective reason” (Clause 4(1) of the framework agreement on fixed-term work and the framework agreement on part-time work) for differentiation between the two magisterial categories;

− the stabilization of honorary magistrates, on one side, is a measure not mandatory to sanction, in an effective and dissuasive manner, the abusive reiteration of fixed-term contracts, and, on the other, excludes the necessity of accumulation with compensation for damages;

− the aforementioned stabilization, where chosen by the Member State, cannot, however, be conditioned on a generalized waiver by honorary magistrates (not only to the right to leave, but) to all the rights, relative to the prior employment relationship, that are conferred upon them by Union law.

22.− There is therefore – it is well to specify – a coherence of content between Union law and constitutional law, according to which the economic and legal treatment of honorary magistrates is not comparable to that of professional magistrates (judgments no. 267 of 2020, and no. 60 of 2006; orders no. 174 of 2012, no. 479 of 2000, no. 272 of 1999, no. 57 of 1990, no. 594, no. 515 and no. 379 of 1989), starting precisely from the remuneration profile, as moreover presupposed by today’s remitting court, which, correctly, for such aspect, did not raise questions of constitutional legitimacy (nor did it devolve, with the previous preliminary reference, the correlative interpretive question to the Court of Justice).

23.− In light of the reconstructed normative and jurisprudential context, the challenged provision does not withstand the criticisms of the remitting court.

The generalized waiver to claims arising from the prior relationship represents – as acknowledged by the State Attorney’s Office itself – a consideration ex lege for the stabilization of long-term honorary magistrates, introduced to remedy the reiteration of their assignments, which was the object of criticism by the European Commission.

23.1.− Such intervention, however, in the way in which it was constructed, stands in contrast with Union law.

As recalled at the point preceding, in fact, according to the Court of Justice, stabilization can constitute a specific performance remedy for the Union-law tort of abusive reiteration of fixed-term contracts and, as such, excludes the necessity that to it a compensation by equivalent be added (Pelavi judgment, points 58-60; as well as First Section, judgment May 8, 2019, Case C-494/17, Rossato and Conservatorio di Musica F.A. Bonporti, point 40).

Always according to the CJEU, stabilization, while canceling the tort, cannot, instead, take the place of the different and more articulated substantive protection conferred by Union law on workers (thus, again, the Pelavi judgment, points 78 and 79).

23.2.− Contrary to what is maintained by the State Attorney’s Office, such position is not in contrast with that assumed by this Court in Judgment no. 187 of 2016, in relation to school personnel.

The cancellation of the abuse verified therein, in fact, made reference exclusively to the compensation for damages from precarization, given that the aforementioned school personnel acted in court only for it and not, therefore, for the recognition of the protections connected to the employment relationship, which in that case was not controversial to be subordinate (and fixed-term).

23.3.− The "objective reason,” expressly provided for by the cited framework agreements, as well as the reference to the "conditions of obtaining and granting provided for by national legislations and/or practices” made by Article 7(1) of Directive 2003/88/EC – both recalled by the jurisprudence of the Court of Justice on honorary magistrates – justifies, in light of their constitutional status and the differences of tasks and competences regarding professional magistrates, their different economic treatment regarding the latter, also with regard to the relationship preceding stabilization.

Therefore, the legislature could well have – in providing for the stabilization of honorary magistrates – determined the economic content of the rights due to them, in relation to paid leave, to social security and assistance, also by reason of the compensations effectively perceived by the same and in any case coordinating the requirement of recognizing such claims with the constitutional principle that excludes their equalization to professional magistrates and with the fact and law datum that honorary magistrates perform a different activity from that of the latter, especially for its lesser complexity and, consequently, for the more limited commitment and the more limited competences that for its carrying out are required (differentiations, these, on which both the derogation from the principle of public competition and the 2017 reform are based).

Instead, the challenged provision – far from determining, in the exercise of legislative discretion circumscribed by the recalled principles of constitutional and Union law, the economic content of the rights of honorary magistrates conferred by the same Union law and relative to the relationships preceding stabilization – has imposed on the aforementioned magistrates, in relation to such relationships, the total waiver of their claims and, consequently, has prevented them from acting in court or, as in the case of the a quo proceedings, from pursuing the actions already undertaken in defense of the aforementioned rights.

Therefore, such provision violates the right to judicial protection referred to in Article 24 of the Constitution, which falls "among the supreme principles of our constitutional system, in which it is intimately connected with the very principle of democracy to ensure to all and always, for any dispute, a judge and a judgment” (Judgment no. 18 of 1982, and, in the same sense, judgments no. 48 of 2021 and no. 82 of 1996), and, at the same time, through the intermediary of Article 117, first paragraph, of the Constitution, the right to an effective remedy before a court, referred to in Article 47(1) CDFUE (Judgment no. 65 of 2024).

23.4.− Contrary to what is maintained by the President of the Council of Ministers, the decisional space left to honorary magistrates, who could waive stabilization and choose to pursue their claims in court, is not sufficient to exclude the detected vice of constitutional legitimacy.

Such space results in being extremely compressed, given that the waiver is in any case imposed as a consideration for stabilization, which (while being disharmonious regarding the physiological functioning of the principle of public competition) remains exceptionally legitimate if prepared for the purpose of canceling the community-law tort, but not if used as a disproportionate instrument to deprive honorary magistrates, at the root, of the possibility of acting in court for a broader series of substantive claims guaranteed by Union law.

24.− In light of the considerations that precede, Article 29, paragraph 5, of Legislative Decree no. 116 of 2017 – in the measure in which it causes to follow the passing of the confirmation evaluation procedures referred to in paragraph 3 of the same article the waiver of the rights conferred by the European Union, regarding paid leave, social security, and assistance – must be declared constitutionally illegitimate for violation of Articles 24 and 117, first paragraph, of the Constitution, the latter in relation to Article 47 CDFUE, with absorption of the remaining criticisms.

25.− It will be for the legislature to intervene to dictate the criteria for the quantification of the economic content of the rights of honorary magistrates of Union derivation for the period preceding stabilization, with particular reference to that prior to the reform operated with Legislative Decree no. 116 of 2017, measuring them against the qualitative and quantitative activity performed and the circumstance that, as a rule, it does not have the character of exclusivity.

Pending such intervention, it will inevitably be for the common judge – where it ascertains, in fact and according to the coordinates traced by the Court of Justice, the recurrence, in the concrete case submitted to its scrutiny, of an employment relationship within the meaning of Union law – to quantify the economic content of the recalled Union-law rights to leave, assistance, and social security, always in compliance with the constitutional principles recalled above and, in particular, of the non-comparability of the economic treatment of honorary magistrates to that of professional magistrates.

for these reasons

THE CONSTITUTIONAL COURT

declares the constitutional illegitimacy of Article 29, paragraph 5, of Legislative Decree no. 116 of July 13, 2017 (Organic reform of the honorary judiciary and other provisions concerning justices of the peace, as well as transitional regulations relating to honorary magistrates in service, pursuant to Law no. 57 of April 28, 2016), as replaced by Article 1, paragraph 629, letter a), of Law no. 234 of December 30, 2021 (State budget for the financial year 2022 and multi-year budget for the 2022-2024 triennium), in the measure in which it causes to follow the passing of the confirmation evaluation procedures referred to in paragraph 3 of the same article the waiver of the rights conferred by the European Union, regarding paid leave, social security, and assistance.

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on February 24, 2026.

Signed:

Giovanni AMOROSO, President

Giovanni PITRUZZELLA, Rapporteur

Igor DI BERNARDINI, Registrar

Filed in the Registry on May 12, 2026

 

The anonymized version is, in the text, compliant with the original