Judgment of the Court (Tenth Chamber) of 29 January 2026.#Duygu Eliz Erkut v Fondazione Teatro alla Scala di Milano.#Request for a preliminary ruling from the Tribunale di Milano.#Reference for a preliminary ruling – Social policy – Directive 1999/70/EC – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Fixed-term employment contracts in the sector of operatic and orchestral foundations – Worker employed on the basis of successive fixed-term contracts – Clause 5 – Measures to penalise the misuse of successive fixed-term employment contracts or relationships – National legislation not permitting transformation of an employment contract but providing inter alia for compensation for loss incurred.#Case C-668/24.

Provisional text

JUDGMENT OF THE COURT (Tenth Chamber)

29 January 2026 (*)

( Reference for a preliminary ruling – Social policy – Directive 1999/70/EC – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Fixed-term employment contracts in the sector of activity of operatic and orchestral foundations – Worker employed on the basis of successive fixed-term contracts – Clause 5 – Measures to penalise the misuse of successive fixed-term employment contracts or relationships – National legislation not permitting transformation of an employment contract but providing inter alia for compensation for loss incurred )

In Case C‑668/24,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunale di Milano (District Court, Milan, Italy) made by decision of 7 October 2024, received at the Court on 11 October 2024, in the proceedings

Eliz Erkut Duygu

v

Fondazione Teatro alla Scala di Milano,

THE COURT (Tenth Chamber),

composed of J. Passer, President of the Chamber, D. Gratsias and B. Smulders (Rapporteur), Judges,

Advocate General: R. Norkus,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        Ms Erkut Duygu, by F. Andretta, E. Casali and L. De Andreis, avvocati,

–        the Fondazione Teatro alla Scala di Milano, by G. Brambilla, A. Giussani, L. Molteni and A. Rampolla, avvocati,

–        the Italian Government, by S. Fiorentino, acting as Agent, and by L. Fiandaca and A. Giovannini, avvocati dello Stato,

–        the European Commission, by S. Delaude and D. Recchia, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Clauses 4 and 5 of the framework agreement on fixed-term work concluded on 18 March 1999 (‘the Framework Agreement’), which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term employment concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43).

2        The request has been made in proceedings between Eliz Erkut Duygu, ballet dancer, and Fondazione Teatro alla Scala di Milano (La Scala Theatre Foundation, Milan, Italy) (‘the Foundation’) concerning the classification of the working relationship between those parties resulting from successive fixed-term employment contracts concluded between 2016 and 2019.

 Legal context

 European Union law

3        The first paragraph of Article 2 of Directive 1999/70 provides:

‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 10 July 2001, or shall ensure that, by that date at the latest, management and labour have introduced the necessary measures by agreement, the Member States being required to take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by this Directive. They shall forthwith inform the [European] Commission thereof.’

4        Paragraph 8 of the general considerations of the Framework Agreement reads as follows:

‘Whereas fixed-term employment contracts are a feature of employment in certain sectors, occupations and activities which can suit both employers and workers.’

5        Clause 4 of the Framework Agreement, entitled ‘Principle of non-discrimination’, provides:

‘1.      In respect of employment conditions, fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds.

…

3.      The arrangements for the application of this clause shall be defined by the Member States after consultation with the social partners and/or the social partners, having regard to Community law and national law, collective agreements and practice.

…’

6        Clause 5 of the Framework Agreement, entitled ‘Measures to prevent abuse’, provides:

‘1.      To prevent abuse arising from the use of successive fixed-term employment contracts or relationships, Member States, after consultation with social partners in accordance with national law, collective agreements or practice, and/or the social partners, shall, where there are no equivalent legal measures to prevent abuse, introduce in a manner which takes account of the needs of specific sectors and/or categories of workers, one or more of the following measures:

(a)      objective reasons justifying the renewal of such contracts or relationships;

(b)      the maximum total duration of successive fixed-term employment contracts or relationships;

(c)      the number of renewals of such contracts or relationships.

2.      Member States after consultation with the social partners and/or the social partners shall, where appropriate, determine under what conditions fixed-term employment contracts or relationships:

(a)      shall be regarded as “successive”;

(b)      shall be deemed to be contracts or relationships of indefinite duration.’

 Italian law

 Decree-Law No 64 of 30 April 2010

7        Article 3(6) of decreto-legge n. 64 – Disposizioni urgenti in materia di spettacolo e attività culturali (Decree-Law No 64 laying down urgent measures regarding the entertainment industry and the cultural sector) of 30 April 2010 (GURI No 100 of 30 April 2010), converted, with amendments, into legge n. 100 (Law No 100) of 29 June 2010 (GURI No 150 of 30 June 2010, p. 2), provides, first, that Article 3(4) and (5) of legge n. 426 – Provvedimenti straordinari a sostegno delle attività musicali (Law No 426 laying down exceptional measures to support musical activities) of 22 July 1977 (GURI No 206 of 28 July 1977) is to continue to apply to operatic and orchestral foundations notwithstanding their transformation into entities governed by private law. Second it states that the provisions of Article 1(01) and (2) of decreto legislativo n. 368 – Attuazione della direttiva 1999/70/CE relativa all’accordo quadro sul lavoro a tempo determinato concluso dall’UNICE, dal CEEP e dal CES (Legislative Decree No 368 implementing Directive 1999/70/EC concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP) of 6 September 2001 (GURI No 235 of 9 October 2001), are not to apply to operatic and orchestral foundations.

 Decree-Law No 91 of 8 August 2013

8        Article 11(19) of decreto-legge n. 91 – Disposizioni urgenti per la tutela, la valorizzazione e il rilancio dei beni e delle attività culturali e del turismo (Decree-Law No 91 laying down urgent measures to protect, promote and relaunch cultural assets and activities and tourism) of 8 August 2013 (GURI No 186 of 9 August 2013), converted, with amendments, into legge n. 112 (Law No 112) of 7 October 2013 (GURI No 236 of 8 October 2013, p.1), entitled ‘Urgent measures for the reorganisation of operatic and orchestral foundations and the relaunch of the national music system of excellence’ provides:

‘Employment relationships of indefinite duration with operatic and orchestral foundations shall be concluded solely by means of appropriate public selection procedures. …’

 Legislative Decree No 81/2015

9        The referring court states that the contracts at issue in the main proceedings were concluded in part during the initial period of applicability of decreto legislativo n. 81 – Disciplina organica dei contratti di lavoro e revisione della normativa in tema di mansioni, a norma dell’articolo 1, comma 7, della legge 10 dicembre 2014, n. 183 (Legislative Decree No 81 – Systematic regulation of employment contracts and revision of the legislation on employment obligations, pursuant to Article 1(7) of Law No 183 of 10 December 2014) of 15 June 2015 (GURI No 144 of 24 June 2015, Ordinary Supplement, ‘Legislative Decree No 81/2015’), and in part during the period of applicability of that legislative decree as amended by Decree-Law  No 87 of 12 July 2018, converted into Law No 96 of 9 August 2018 (‘Legislative Decree No 81/2015, as amended’).

10      Article 19 of Legislative Decree No 81/2015 provided that:

‘1.      An employment contract may be concluded for a term not exceeding 36 months.

2.      Without prejudice to provisions to the contrary in collective agreements, and with the exception of the seasonal activities referred to in Article 21(2), the duration of a fixed-term employment relationship between the same employer and the same worker as a result of a succession of contracts for the performance of tasks at the same level in the same legal category, disregarding any breaks between one contract and another, must not exceed 36 months. When calculating this period, account shall also be taken of periods of assignments involving tasks at the same level and in the same legal category, carried out between the same persons, on a fixed-term basis. Where the 36-month limit is exceeded, following a single contract or a succession of contracts, the contract shall be transformed into a contract of indefinite duration from the date on which that limit is exceeded.

3.      Without prejudice to paragraph 2, another fixed-term contract between the same persons, for a maximum period of 12 months, may be concluded under the auspices of the Regional Labour Office for the region. If the procedure described is not complied with, and if the term laid down in the same contract is exceeded, the latter shall be transformed into a contract of indefinite duration from the date on which it is concluded.’

11      Article 21 of that legislative decree provided that:

‘1.      The term of a fixed-term contract may be extended, with the worker’s consent, only if the initial duration of the contract is less than 36 months and, in any event, a maximum of 5 times over a period of 36 months, irrespective of the number of contracts. When there is a greater number of extensions, the contract shall be transformed into a contract of indefinite duration from the start date of the sixth extension.

2.      If a worker is rehired on a fixed-term basis within ten days of the expiry of a contract not exceeding six months, or within twenty days of the expiry of a contract of more than six months, the second contract shall be transformed into a contract of indefinite duration. The provisions of this paragraph shall not apply to workers employed in seasonal activities designated by decree of the Ministry of Labour and Social Policies or in the cases provided for in collective agreements. The provisions of Decree No. 1525 of the President of the Republic of 7 October 1963 shall continue to apply until the adoption of the decree provided for in the second sentence.

…’

12      Under Article 29(3) of that legislative decree:

‘The provisions laid down in Article 19(1) to (3) and Article 21 shall not apply to the artistic and technical personnel of the musical foundations referred to in Legislative Decree No 367 of 29 June 1996’.

13      According to the referring court, the latter provision follows on from the earlier provision, that is to say, Article 11(4) of Legislative Decree No 368 of 6 September 2001, which provided that the rules laid down in Articles 4 and 5 of that legislative decree concerning, respectively, the temporal and causal limits applicable to fixed-term contracts and the transformation of a contract into a contract of indefinite duration in the event of failure to comply do not apply to the artistic and technical personnel of musical foundations.

14      Article 19 of Legislative Decree No 81/2015, as amended, provided that:

‘1.      An employment contract may be concluded for a fixed term not exceeding 12 months. It may be concluded for a longer term, which shall not however exceed 24 months, only where at least one of the following conditions is met:

(а)      temporary and objective needs, unrelated to ordinary activity, or the need to replace other workers so justify;

(b)      needs related to temporary, significant and unforeseeable increases in ordinary activity so justify. …

((b-bis) specific needs provided for in the collective agreements referred to in Article 51 so justify.))

((1.1      The period of more than 12 months but not in any event exceeding 24 months, referred to in paragraph 1 of the present article may be provided for in contracts of employment in the event of specific needs defined in the collective labour agreements referred to in Article 51, pursuant to Article 51(1)(b-bis), until 30 September 2022.))

1-bis.            If the contract has been concluded for a period of more than 12 months without the conditions referred to in paragraph 1 being met, the contract shall be transformed into a contract of indefinite duration from the date on which the 12-month term expires.

…

2.      Without prejudice to provisions to the contrary in collective agreements, and with the exception of seasonal activities referred to in Article 21(2), the duration of fixed-term employment relationships between the same employer and the same worker, as a result of a succession of contracts for the performance of tasks at the same level in the same legal category, disregarding any breaks between one contract and another, must not exceed 24 months. When calculating this period, account shall also be taken of the periods of assignments involving tasks at the same level in the same legal category, carried out between the same persons, on a fixed-term basis. Where the 24-month limit is exceeded, following a single contract or a succession of contracts, the contract shall be transformed into a contract of indefinite duration from the date on which that limit is exceeded. …

3.      Without prejudice to paragraph 2, another fixed-term contract between the same persons, for a maximum period of 12 months, may be concluded under the auspices of the territorially competent Regional Labour Office. If the procedure described is not complied with, and if the term laid down in that contract is exceeded, the latter shall be transformed into a contract of indefinite duration with effect from the date on which it is concluded.’

15      Article 21 of Legislative Decree No 81/2015, as amended, read as follows:

‘01.      A contract may be renewed only if the conditions of Article 19(1) are complied with. The contract may be extended freely during the first 12 months and thereafter only if the conditions of Article 19(1) are met. In the event of infringement of the provisions of the first and second sentences, the contract shall be transformed into a contract of indefinite duration. Contracts relating to seasonal activities, as referred to in paragraph 2 of this article, may be renewed or extended even if the conditions set out in Article 19(1) are not met. …

1.      The duration of a fixed-term contract may be extended, with the worker’s agreement, only if the initial duration of the contract is less than 24 months and, in any event, a maximum of four times over a period of 24 months, irrespective of the number of contracts. If the number of extensions is higher, the contract shall be transformed into a contract of indefinite duration on the date on which the fifth extension begins.

…

2.      If a worker is rehired on a fixed-term basis within ten days of the expiry of a contract not exceeding six months, or within twenty days of the expiry of a contract of more than six months, the second contract shall be transformed into a contract of indefinite duration. The provisions of this paragraph shall not apply to workers employed in seasonal activities designated by decree of the Ministry of Labour and Social Policy or in the cases provided for in collective agreements. The provisions of Decree No. 1525 of the President of the Republic of 7 October 1963 shall continue to apply until the adoption of the decree provided for in the second sentence. …

…’

 The dispute in the main proceedings and the question referred for a preliminary ruling

16      The applicant in the main proceedings, Eliz Erkut Duygu, worked as a ballet dancer in the Foundation’s corps de ballet under several contracts from 2014 to 2019. Specifically, following an initial fixed-term employment contract from 4 November 2014 to 18 January 2015, as a student, she entered into a series of successive self-employed contracts following a selection procedure from 16 August 2016 to 9 July 2019.

17      Taking the view that she was a permanent member of the Foundation’s staff and that she had provided her services in the same way as personnel on contracts of indefinite duration,  Ms Erkut Duygu brought proceedings before the referring court, the Tribunale di Milano (District Court, Milan, Italy), claiming that the contracts she had concluded with the Foundation as a self-employed person were unlawful. She requested that the relationship be established as that of an employed person and that she should be reinstated, since the repeated renewal of fixed-term employment contracts was wrongful.

18      That court notes that the dispute before it is another in a series of cases brought by other dancers from the Foundation, on which the Tribunale di Milano (District Court, Milan) has already given judgment. In particular, in a situation in which the facts were comparable to those in the present case, that court found that the self-employed contracts concluded between the Foundation and those dancers were purely fictitious and that the contracts had been used as a means of circumventing the relevant rules; it held that the relationship was an employment relationship. However, no order was made for the workers to be reinstated, since the possibility of penalising the misuse of repeated renewal of fixed-term contracts by transforming them into contracts of indefinite duration was precluded on the basis of a line of case-law established for the first time by the Joined Chambers of the Corte suprema di cassazione (Supreme Court of Cassation, Italy) in 2023. The Supreme Court thus reversed the tendency of its earlier case-law, which was to recognise the full protection attached to establishing a relationship as an employee in the event of misuse of repeated renewal of fixed-term contracts in the sector of operatic and orchestral foundations also.

19      That court considers that this context justifies a reference to the Court of Justice for an interpretation of EU law. Although it is aware that a question that was essentially comparable to the one referred in the present case was addressed by the Court of Justice in its judgment of 25 October 2018, Sciotto (C‑331/17, ‘the judgment in Sciotto’, EU:C:2018:859), following that judgment, first, the Italian legislature adopted decreto-legge n. 59 (Decree-Law No 59) of 28 June 2019, converted into legge n. 81 – Misure urgenti in materia di personale delle fondazioni lirico sinfoniche (Law No 81 laying down urgent measures concerning the personnel of operatic and orchestral foundations) of 8 September 2019 (‘Decree-Law No 59’). However, the Corte suprema di cassazione (Supreme Court of Cassation) revised its case-law, so it is appropriate to ask the Court of Justice again about the compatibility with EU law of the national legislation applicable to the employment contracts at issue in the main proceedings, as interpreted by that Supreme Court.

20      In that regard, the referring court states, first of all, that the contracts at issue in the main proceedings were concluded in part during the period of applicability of Legislative Decree No 81/2015 and in part during the period of applicability of Legislative Decree No 81/2015, as amended.

21      It also states that none of those contracts comes under Decree-Law No 59. That new legislation, which was adopted in order to bring domestic law into line with the principles set out in the judgment in Sciotto, is not applicable ratione temporis, since it was introduced after Ms Erkut Duygu’s last contract was concluded.

22      Next the referring court points out that, as regards fixed-term contracts in the sector of operatic and orchestral foundations, notwithstanding the fact that the national legislation has always provided for a regime which exempted such entities from the general rules applicable to other economic sectors, not all the provisions prohibiting recruitment under contracts of indefinite duration for reasons of controlling public expenditure have been regarded by the prevailing national case-law as preventing the establishment of an employment relationship of indefinite duration in the event of proven abuse of fixed-term employment contracts.

23      Thus, a line of case-law has developed to protect the legal position of workers and thus to permit contracts of indefinite duration to be drawn up even where it is not permissible to recruit workers on a permanent basis. In that connection the referring court cites judgment No 6547/2014 of the Corte suprema di cassazione (Supreme Court of Cassation) and judgment No 260/2015 of the Corte costituzionale (Constitutional Court, Italy).

24      That earlier case-law in favour of transforming a fixed-term contract into a contract of indefinite duration was however revised following the judgment in Sciotto.

25      Indeed, the Corte suprema di cassazione (Supreme Court of Cassation) held, in its judgments Nos 5542/2023 and 5556/2023, that transformation of a fixed-term contract into a contract of indefinite duration is not one of the penalties provided for by the national legislation applicable to operatic and orchestral foundations. The Supreme Court ruled that, by way of compensation for the misuse of successive fixed-term contracts, national law provided, in order to remedy alleged loss, described as ‘community loss’, for minimum compensation of between 2.5 months’ and 12 months’ salary, without prejudice to the possibility of establishing the existence of greater loss.

26      The referring court states that in those judgments the Corte suprema di cassazione (Supreme Court of Cassation) expressly examined the issue of the compatibility of its case-law with the principles set out by the Court of Justice in the judgment in Sciotto. However, the Supreme Court of Cassation has doubts regarding such compatibility, since the Court of Justice appears to have made it clear in that judgment that transformation of a fixed-term contract into a contract of indefinite duration is the only measure capable of ensuring compliance with Clause 5 of the Framework Agreement in the event of abuse resulting from the use of successive fixed-term employment contracts.

27      Furthermore, the referring court considers that the Court of Justice has given embodiment to the binding effect of the principle of non-discrimination at a horizontal level. However, the Corte suprema di cassazione (Supreme Court of Cassation) was not very receptive to that principle. In its judgments referred to in paragraph 25 of the present judgment, the Supreme Court of Cassation held that the relationships between workers and the operatic and orchestral foundations are not comparable to those entered into by employees of other private employers, by reason of the special nature of such relationships, which is linked to the essentially public nature of those foundations, even after their transformation into entities governed by private law. Thus, the relationship between a worker and such a foundation is more akin to a contractual public service relationship.

28      According to the referring court, the fact that a private entity pursues public objectives, or may be publicly funded in part, is not sufficient to alter its private status. In that context, that court notes that the Court of Justice held in the judgment in Sciotto that the public or private status of the employer does not in itself justify less protection for the worker.

29      Lastly, the referring court observes that the discrimination between fixed-term workers in the sector of operatic and orchestral foundations and fixed-term workers in other sectors, excluded by the Corte suprema di cassazione (Supreme Court of Cassation) in its judgments referred to in paragraph 25 of the present judgment, was expressly recognised and criticised by the Court of Justice in paragraph 71 of the judgment in Sciotto.

30       In those circumstances, the Tribunale di Milano (District Court, Milan) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘[Must] Clauses 4 and 5 of [the Framework Agreement] be interpreted as precluding national legislation, such as that at issue in the main proceedings, as interpreted by the Corte di cassazione (Supreme Court of Cassation) in judgments Nos 5542 and 5556/2023, pursuant to which the rules of ordinary law governing employment relationships and intended to penalise the misuse of successive fixed-term contracts by the automatic transformation of the fixed-term contract into a contract of indefinite duration where there is a wrongful repeated renewal of fixed-term contracts are not applicable to the sector of activity of operatic and orchestral foundations, where the measure provided for in that sector, in contrast to economic sectors generally, consists in compensation, albeit under a simplified burden of proof that may be satisfied through presumptions alone, and even where provision has been made for directors to be held liable in cases of intentional fault or gross negligence?’

 The question referred

 Admissibility

31      In the first place, the Foundation and the Italian Government claim that the request for a preliminary ruling is inadmissible.

32      In essence, they claim first of all that the referring court does not explain the link between the provisions of EU law and the national legislation applicable to the dispute in the main proceedings, and that it has failed to present the relevant elements of that dispute fully. Thus, the precise duration of each of the employment contracts at issue in the main proceedings is not mentioned, and the generic reference to the case in which the dispute in the main proceedings arose does not explain whether there was a wrongful repeated renewal of fixed-term employment contracts. Moreover, the Foundation observes that the working relationship between itself and Ms Erkut Duygu is based on a collective labour agreement providing for a maximum working time of 60 months, an option that is permitted by Article 19 of Legislative Decree No 81/2015. Therefore, the fact that Clauses 4 and 5 of the Framework Agreement might preclude the general legislation applicable to the sector of operatic and orchestral foundations is irrelevant to the dispute in the main proceedings, since the likelihood of wrongful repeated renewal of that type of contract on account of the absence of a maximum total duration applicable to the working relationship which formed the basis of the judgment in Sciotto would not in any event arise in the present case.

33      Next, the order for reference does not contain a sufficiently precise description of the national legal background to that dispute, as regards both the relevant case-law and the relevant legislation. Thus, the referring court did not set out in full the content of the judgments of the supreme courts which it cites, or, moreover, of the case-law of the Court of Justice. In addition, the referring court only set out part of Article 29 of Legislative Decree No 81/2015, paragraph 4 of which provided that that article was to apply ‘without prejudice to the provisions of Article 36 of Legislative Decree No 165 [of 30 March 2001, entitled ‘General rules on the organisation of work in public administrations’ (GURI No 106, of 9 May 2001, Ordinary Supplement No. 112)]’. The latter article, as interpreted by the judgments of the Corte suprema di cassazione (Supreme Court of Cassation) cited by the referring court, was applicable at the relevant time in the main proceedings. Under that article the worker concerned is entitled to compensation for loss resulting from the performance of work carried out in breach of mandatory provisions relating to fixed-term employment contracts applicable in that sector and to a reduction in the burden of proof of the loss thus sustained. In addition, the director of the entity employing that worker is to be held liable for financial loss caused to the State in the event of an intentional breach of the provisions relating to applicable fixed-term employment contracts or gross negligence on his or her part. That director will also be deprived of any performance bonus, and such a breach will be taken into account when his or her contract comes up for renewal.

34      Lastly, that court is seeking a ruling from the Court of Justice on a question which the latter has already settled in the judgment in Sciotto and in the judgment of 7 March 2018, Santoro (C‑494/16, EU:C:2018:166).

35      In that regard it is settled case-law that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, the accuracy of which is not a matter for the Court of Justice to determine, enjoy a presumption of relevance. Since the referring court alone has jurisdiction to interpret and apply national law, the Court must take account of the legislative context, as described in the order for reference, in which the questions put to it are set (see judgments of 15 May 2003, Salzmann, C‑300/01, EU:C:2003:283, paragraph 31, and of 28 January 2025, ASG 2, C‑253/23, EU:C:2025:40, paragraphs 56 and 57 and the case-law cited). The Court of Justice may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual and legal material necessary to give a useful answer to the questions submitted to it (judgments of 14 November 2024, S. (Modification of the formation of the court), C‑197/23, EU:C:2024:956, paragraph 43, and of 1 August 2025, Alace and Canpelli, C‑758/24 and C‑759/24, EU:C:2025:591, paragraph 38 and the case-law cited).

36      Moreover, the request for a preliminary ruling must meet the requirements of Article 94 of the Rules of Procedure of the Court of Justice and, therefore, contain, in particular, a statement of the reasons which prompted the referring court to enquire about the interpretation of certain provisions of EU law, and the relationship between those provisions and the national legislation applicable in the main proceedings.

37      In the present case, the referring court expressed a view on how to describe the contracts at issue in the main proceedings. First, it noted that, in a situation where the facts were similar to those in the present case, it had found that the self-employed contracts which had been concluded with the Foundation were purely fictitious and the repeated renewal of those contracts was abusive, since the fictitious nature of those contracts could not be penalised by transforming them into employment contracts of indefinite duration. By pointing out that those contracts were, at least potentially, fictitious and abusive, that court set out the relevant facts of the dispute in the main proceedings under its responsibility and described the link existing between the provisions of EU law and the applicable national legislation and also the relationship between the interpretation of EU law sought and the actual facts of the dispute in the main proceedings or its purpose.

38      Second, it is clear from the order for reference that the referring court rejected any relevance of a collective agreement, mentioned by the Foundation as the basis for the working relationship at issue in the main proceedings under Article 19 of Legislative Decree No 81/2015. It should be noted that, in addition to the description of the contracts at issue in the main proceedings as referred to in the preceding paragraph, the referring court mentioned Article 29 of that legislative decree, which states that the provisions set out in Article 19(1) to (3) thereof do not apply to the artistic and technical personnel of musical foundations such as the Foundation.

39      Next, in expressing its doubts as to the compatibility with Clauses 4 and 5 of the Framework Agreement of the national legislation applicable to the facts in the main proceedings, as interpreted by a national supreme court, the referring court set out the reasons which led it to enquire about the interpretation of those provisions of EU law. Thus, it complied with the requirements of Article 94 of the Rules of Procedure.

40      Furthermore, as regards the accuracy or completeness of case-law or national legislation cited in the order for reference, it is true that, in the present case, the referring court did not provide precise references to a national provision applicable to the dispute in the main proceedings which lays down as a penalty the possibility of holding directors liable in the event of gross negligence or intentional infringement of the national provisions relating to fixed-term employment contracts. However, it must be observed that it is apparent from its mentioning of judgments Nos 5542/2023 and 5556/2023 of the Corte suprema di cassazione (Supreme Court of Cassation) that it considers that such a rule was in force at the relevant time in the main proceedings. Since, therefore it is possible that that rule forms part of the legislation applicable to the contracts of employment at issue in the main proceedings, the Court of Justice has before it sufficient factual and legal material in order for it to give a useful answer to the referring court. It also follows that the question referred for a preliminary ruling is not, to that extent, hypothetical.

41      Lastly, as regards the contention that the Court of Justice has already ruled on the question referred, it must be observed that Article 267 TFEU gives national courts the widest discretion in referring matters to the Court of Justice if they consider that a case pending before them raises questions involving the interpretation of provisions of EU law. It follows that, whilst the existence of settled case-law on a point of EU law may prompt the Court of Justice to make an order under Article 99 of its Rules of Procedure, it cannot in any way affect the admissibility of a reference for a preliminary ruling if a national court decides, in the exercise of its discretion, to bring a matter before the Court of Justice under that Article 267 (judgment of 19 June 2025, Bulgarian posts, C‑785/23, EU:C:2025:462, paragraph 42 and the case-law cited).

42      Second, the Italian Government and the Commission take the view that the question referred is inadmissible in so far as it concerns Clause 4 of the Framework Agreement. It follows from the case-law of the Court that that provision cannot be relied on in the context of alleged inequalities of treatment between fixed-term workers.

43      In that regard, it must be observed that, by its reference for a preliminary ruling, the referring court calls into question not the unfavourable treatment of fixed-term workers as compared with permanent workers in a comparable situation, but a difference in treatment between different categories of fixed-term workers depending on the economic sector in which they carry out their professional activity, namely fixed-term workers in the sector of operatic and orchestral foundations and those in other sectors.

44      The Court of Justice has already held that any differences in treatment between specific categories of fixed-term staff are not covered by the principle of non-discrimination established by the Framework Agreement, that principle having been put into effect and specifically applied by that agreement solely as regards differences in treatment as between fixed-term workers and permanent workers in a comparable situation (judgment of 13 January 2022, MIUR and Ufficio Scolastico Regionale per la Campania, C‑282/19, EU:C:2022:3, paragraph 72 and the case-law cited).

45      Paragraph 71 of the judgment  in Sciotto, which the referring court expressly mentions in its statement of reasons in respect of the question referred for a preliminary ruling relating to Clause 4, does not call into question that case-law. Although that paragraph mentions potential discrimination between fixed-term workers in the sector of operatic and orchestral foundations and workers in other sectors, it cannot be inferred from this that such discrimination, even if it were established, would fall within the scope of Clause 4 of the Framework Agreement. That paragraph merely states that workers in other sectors may, through the transformation of their contracts, become ‘comparable permanent workers’ within the meaning of that clause. By contrast, it is not clear from that paragraph that a difference in treatment between different categories of fixed-term workers, depending on the economic sector in which they pursue their professional activity, falls within the scope of Clause 4.

46      Therefore, Clause 4 of the Framework Agreement is not applicable to the dispute in the main proceedings. To that extent the question referred for a preliminary ruling is inadmissible.

 Substance

47      By its single question, the referring court asks, in essence, whether Clause 5 of the Framework Agreement must be interpreted as precluding national legislation, as interpreted by a national supreme court, pursuant to which the rules of ordinary law governing employment relationships and intended to penalise the misuse of repeated renewal of fixed-term contracts by the automatic transformation of such contracts into contracts of indefinite duration are not applicable to the sector of activity of operatic and orchestral foundations, and which provides, as measures to penalise recourse to the wrongful repeated renewal of fixed-term employment contracts in that sector, first, the possibility of awarding a minimum amount of compensation for the loss sustained, proof of which may be satisfied through presumption, without prejudice to obtaining compensation for greater loss, and, second, the possibility of holding the directors of those foundations liable in the event of gross negligence or intentional breach of the national legislation relating to those contracts.

48      According to settled case-law, Clause 5 of the Framework Agreement concerns measures to prevent abuse resulting from the use of successive fixed-term contracts or employment relationships. It does not lay down any specific penalties in the event that instances of abuse are nevertheless established. In such a case, it is incumbent on the national authorities to adopt measures that are not only proportionate, but also sufficiently effective and a sufficient deterrent to ensure that the provisions adopted pursuant to the Framework Agreement are fully effective (judgments of 8 May 2019, Rossato and Conservatorio di Musica F.A. Bonporti, C‑494/17, EU:C:2019:387, paragraph 27 and the case-law cited, and of 13 June 2024, DG de la Función Pública, Generalitat de Catalunya and Departamento de Justicia de la Generalitat de Catalunya, C‑331/22 and C‑332/22, EU:C:2024:496, paragraph 67 and the case-law cited).

49      Therefore, where the improper use of successive fixed-term employment contracts or relationships has taken place, a measure offering effective and equivalent safeguards for the protection of workers must be capable of being applied in order duly to penalise that abuse and to nullify the consequences of the breach of EU law. According to the wording of the first paragraph of Article 2 of Directive 1999/70, to which the Framework Agreement is annexed, Member States must ‘take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by [that] Directive’ (judgment of 13 June 2024, DG de la Función Pública, Generalitat de Catalunya and Departamento de Justicia de la Generalitat de Catalunya, C‑331/22 and C‑332/22, EU:C:2024:496, paragraph 69).

50      In that regard, it is necessary to point out first of all that, according to settled case-law, the conversion of fixed-term employment contracts into contracts of indefinite duration is not obligatory in the event of misuse of the former contracts (see, to that effect, judgment of 22 February 2024, Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid and Others, C‑59/22, C‑110/22 and C‑159/22, EU:C:2024:149, paragraph 124 and the case-law cited). In particular, the Court of Justice held, in relation to national legislation applicable to the sector of operatic and orchestral foundations, that the Framework Agreement does not lay down a general obligation on the Member States to provide for such conversion (see, to that effect, the judgment in Sciotto, paragraph 59).

51      It should also be noted that Clause 5 of the Framework Agreement does not, as such, preclude a Member State from treating misuse of successive fixed-term employment contracts or relationships differently according to whether those contracts or relationships were entered into with a private sector or public sector employer (judgment of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 42).

52      Similarly, the application of different rules to a specific economic sector due to its particular characteristics is not prohibited a priori (see to that effect, the judgment in Sciotto, paragraphs 46 to 48). In that context, reference may be made, moreover, to paragraph 8 of the general considerations of the Framework Agreement, which states that fixed-term employment contracts are a feature of employment in certain sectors, occupations and activities which can suit both employers and workers.

53      Therefore Clause 5 of the Framework Agreement does not preclude in principle national legislation such as that at issue in the main proceedings which prohibits, in the specific sector of operatic and orchestral foundations, the automatic transformation of a fixed-term employment contract into an employment contract of an indefinite duration in the event of misuse of the former of such contracts.

54      However, according to the case-law cited in paragraphs 48 and 49 of the present judgment, it must be observed that, in order for national legislation which prohibits, in the sector of operatic and orchestral foundations, the penalising of the misuse of successive fixed-term employment contracts by converting them into contracts of indefinite duration, to be regarded as compatible with the Framework Agreement, the domestic law of the Member State concerned must include, in that sector, another effective measure to prevent and, where relevant, penalise the misuse of successive fixed-term contracts (see, to that effect, the judgment in Sciotto, paragraph 60, and judgment of 22 February 2024, Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid and Others, C‑59/22, C‑110/22 and C‑159/22, EU:C:2024:149, paragraph 127 and the case-law cited).

55      Since it is not for the Court to rule on the interpretation of national legislation or case-law, the task of assessing whether domestic law includes such a measure is incumbent upon the national courts having jurisdiction (see, to that effect, judgment of 13 June 2024, DG de la Función Pública, Generalitat de Catalunya and Departamento de Justicia de la Generalitat de Catalunya, C‑331/22 and C‑332/22, EU:C:2024:496, paragraph 70 and the case-law cited).

56      That being the case, when giving a preliminary ruling, the Court may, where appropriate, offer clarification intended to provide the national court with guidance in the case before it (judgment of 8 May 2019, Rossato and Conservatorio di Musica F.A. Bonporti, C‑494/17, EU:C:2019:387, paragraph 29 and the case-law cited).

57      In the present case, the referring court mentions, in its question, national legislation providing, as measures to penalise the misuse of successive fixed-term employment contracts, two separate measures, namely, first, the possibility of compensation being granted for the loss sustained and, second, the possibility of the directors of the operatic or orchestral foundation concerned being held liable, in the event of gross negligence or intentional breach by the latter of the national legislation on fixed-term employment contracts.

58      As regards, in the first place, the compensation which may be obtained by the worker, it is apparent from the order for reference that the legislation applicable to the employment contracts at issue in the main proceedings, as interpreted by the Corte suprema di cassazione (Supreme Court of Cassation), provides for compensation for loss sustained, which constitutes presumed loss determined by reference to a minimum and a maximum amount, without prejudice to the possibility of proving the existence of greater loss. The referring court notes in this context that national law guarantees the award of minimum compensation of between 2.5 months’ and 12 months’ salary.

59      In that regard, it must be held, first, that such legislation, which provides for compensation for a worker who is the victim in respect of loss established by presumption, without prejudice to the possibility of adducing evidence of the existence of greater loss, may constitute an effective measure to penalise the misuse of successive fixed-term employment contracts. In that context, the Court has already held that, given the difficulties inherent in demonstrating the existence of a loss of opportunity, a mechanism of presumption designed to guarantee a worker who has suffered a loss of employment opportunities, due to the misuse of successive fixed-term contracts, the possibility of nullifying the consequences of such a breach of EU law is such as to satisfy the requirement of effectiveness (judgment of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 50).

60      That being the case, the limits set by that national legislation on the possibility of using fixed-term employment contracts in terms of maximum duration or maximum total duration are not clear from the order for reference. Under the national legislation applicable ratione temporis to the contracts at issue in the main proceedings, as cited by the referring court, Articles 19 to 21 of Legislative Decree No 81/2015 and Legislative Decree No 81/2015 as amended, which provided, respectively, for the limit of the duration of a fixed-term employment contract and the conditions for extending the term of a fixed-term contract, cannot be applicable to operatic and orchestral foundations.

61      As the Commission has pointed out, in a legislative context which does not impose limits on the duration or conditions on the renewal or extension of fixed-term employment contracts, it is difficult to demonstrate the misuse of such contracts, even though it must be demonstrated in order to claim compensation for loss. It follows that the imposition of those limits and conditions, as set out in Decree-Law No 59, which is not, however, applicable ratione temporis to the dispute in the main proceedings, is capable of contributing, to a large extent, to the effectiveness of the rules providing for a reduction in the burden of proof of such loss and therefore to the effectiveness of the measure for the protection of a worker who is the victim of a wrongful repeated renewal of fixed-term employment contracts.

62      Second, as regards the calculation of the amount of compensation, the Court has already had occasion to rule that the principle that the damage suffered must be made good in its entirety and the principle of proportionality require Member States, in a case such as that in the main proceedings, to provide for adequate compensation, which is more than a purely nominal amount, but not more than is necessary to make good the damage in its entirety (judgment of 13 June 2024, DG de la Función Pública, Generalitat de Catalunya and Departamento de Justicia de la Generalitat de Catalunya, C‑331/22 and C‑332/22, EU:C:2024:496, paragraph 83).

63      In that regard, it must be inferred from the Court’s case-law that a national measure setting a cap on the compensation that may be awarded in a case such as the dispute in the main proceedings does not make it possible for either proportionate and effective compensation in cases of abuse that exceed a certain duration in terms of years, or adequate and full compensation for the damage resulting from such abuse (see, to that effect, judgment of 13 June 2024, DG de la Función Pública, Generalitat de Catalunya and Departamento de Justicia de la Generalitat de Catalunya, C‑331/22 and C‑332/22, EU:C:2024:496, paragraph 81). As the Commission has observed, a measure providing for such capping of the amount of compensation that may be awarded will not have a deterrent effect on an employer once the maximum amount of compensation has been reached.

64      In the present case, as mentioned in paragraph 58 of the present judgment, it is clear from the order for reference that the national legislation applicable to the employment contracts at issue in the main proceedings, as interpreted by the Corte suprema di cassazione (Supreme Court of Cassation), ensures the award of a minimum compensation, amounting to between 2.5 months’ and 12 months’ salary, but does not appear to provide for a cap, in that it is possible for the worker to provide evidence of greater loss.

65      In so far as that legislation allows the national court to award adequate and full compensation for the loss sustained, in that it allows the minimum amount provided for to be exceeded if it is established that the loss is greater, that legislation could be regarded as a proportionate, and therefore effective, measure to penalise the misuse of successive fixed-term employment contracts. In addition, the absence of a cap may contribute to the deterrent effect of that measure, since it is likely to encourage employers to limit the use of successive fixed-term employment contracts, to respect the maximum duration of such contracts and to put an end to renewals or extensions exceeding that duration.

66      Furthermore, since the proportionate and deterrent nature of such compensation depends on the specific characteristics of the particular case which the national court is called upon to hear, it should be noted, in that context, that the Commission observed that in 2024 the Italian legislature amended Article 36(5) of Legislative Decree No 165 of 30 March 2001, which led to an increase in the amount of compensation that could be awarded in the event of misuse of successive fixed-term employment contracts. In fact, a worker who is the victim of such misuse is entitled to compensation of between 4 and 24 monthly instalments of the last reference pay, without prejudice to that worker’s right to prove that he or she has suffered greater loss. In that context, the Commission also referred to a judgment of the Tribunale ordinario di Cuneo (District Court, Cuneo, Italy) of 24 September 2024, which penalises, by applying the amounts set by that judgment, as amended, in particular facts which occurred before its entry into force.

67      Second, in so far as the legislation applicable to the employment contracts at issue in the main proceedings, as interpreted by the Corte suprema di cassazione (Supreme Court of Cassation), provides, in addition to the possibility of obtaining compensation for the loss sustained, a rule that the director or directors of the operatic or orchestral foundation concerned may be held liable for the financial loss incurred by the State as a result of the infringement of the provisions relating to fixed-term employment contracts applicable in that sector, where that breach is intentional or the result of gross negligence on the part of that director or those directors – which the referring court must verify, in the light of what is stated in paragraph 40 of the present judgment –, it should be borne in mind that the Court of Justice has already held that the fact that the national legislation obliges the authorities to recover in such cases from the directors responsible any sums paid to the workers by way of compensation for the loss incurred as a result of the infringement of those provisions constitutes only one of the measures designed to prevent and punish the misuse of fixed-term employment contracts and it is for the referring court to determine whether the engagement of that liability is sufficiently effective and dissuasive to ensure that the provisions adopted pursuant to the Framework Agreement are fully effective (the judgment in Sciotto, paragraph 63).

68      Where appropriate, the referring court will have to take into account, when assessing that nature, the fact, alleged by the Foundation and by the Italian Government, and also subject to verification by that court, that the legislation applicable to the employment contracts at issue in the main proceedings provides, in addition to the possibility that the director may be held personally liable for the financial loss incurred by the State, that the award of any performance bonus may be withheld from that director and/or such liability may be taken into account in the context of renewal of the director’s contract. Such measures constitute ancillary measures which are likely to have a significant deterrent effect, because of the negative effects which they may entail, in the event of the misuse of successive fixed-term employment contracts, for the professional career and, in some circumstances, for the personal assets of the director responsible for such misuse.

69      Lastly, it must be observed that, in the event that the referring court were to hold that the measures penalising the misuse of successive fixed-term employment contracts or employment relationships provided for by the legislation applicable to the employment contracts at issue in the main proceedings as interpreted by the Corte suprema di cassazione (Supreme Court of Cassation) cannot be classified as effective measures within the meaning of the case-law cited in paragraph 54 of the present judgment, that that court must ensure, as far as possible, that the national law is interpreted in a way that ensures that Directive 1999/70 is fully effective and that an outcome is reached that accords with the objective pursued by that directive.

70      In that context, it must be observed that Clause 5 of the Framework Agreement is not unconditional and sufficiently precise to have direct effect. Such a provision which does not have direct effect cannot be relied upon, as such, by an individual before the national court in a dispute coming under EU law in order to disapply a provision of national law that conflicts with it (see, to that effect, judgment of 3 June 2021, Instituto Madrileño de Investigación y Desarrollo Rural, Agrario y Alimentario, C‑726/19, EU:C:2021:439, paragraphs 79 and 80 and the case-law cited).

71      However, it follows from settled case-law that, when national courts apply domestic law, they are bound to interpret it, to the fullest extent possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by that directive and consequently comply with the third paragraph of Article 288 TFEU. The obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law, particularly those of legal certainty and non-retroactivity, and that obligation cannot serve as the basis for an interpretation of national law that is contra legem (see, to that effect, judgment of 13 June 2024, DG de la Función Pública, Generalitat de Catalunya and Departamento de Justicia de la Generalitat de Catalunya, C‑331/22 and C‑332/22, EU:C:2024:496, paragraphs 102 to 104 and the case-law cited).

72      That being said, in those circumstances, it is for the national court to do whatever lies within its jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, to interpret the provisions of that domestic law, to the fullest extent possible, in accordance with Clause 5 of the Framework Agreement and to apply that law in such a way that it is possible duly to penalise misuse of successive fixed-term employment contracts and to nullify the consequences of the breach of EU law, in order to ensure that Directive 1999/70 is fully effective and to achieve an outcome consistent with the objective pursued by that directive (see, to that effect, judgment of 13 June 2024, DG de la Función Pública, Generalitat de Catalunya and Departamento de Justicia de la Generalitat de Catalunya, C‑331/22 and C‑332/22, EU:C:2024:496, paragraphs 105 and 107).

73      In the light of the foregoing considerations, the answer to the question referred is that Clause 5 of the Framework Agreement must be interpreted as not precluding national legislation, as interpreted by a national supreme court, pursuant to which the rules of ordinary law governing employment relationships and intended to penalise the misuse of successive fixed-term contracts by the automatic transformation of such contracts into contracts of an indefinite duration, are not applicable to the sector of activity of operatic and orchestral foundations, and which provides, by way of measures to penalise the use of a wrongful repeated renewal of fixed-term contracts in that sector, first, the possibility of awarding a minimum amount by way of compensation for the loss incurred, proof of which may be adduced by presumption, without prejudice to obtaining compensation for greater loss, and, second, the possibility of holding the directors of those foundations liable in the event of gross negligence or intentional breach by the latter of the national legislation relating to such contracts, provided those measures make it possible to penalise effectively the misuse observed, which it is for the national court to assess. If that court holds that those measures do not make it possible to penalise in that way the misuse of fixed-term employment contracts in the sector of operatic and orchestral foundations, it is for it to interpret, so far as possible, its national law in a manner consistent with that clause in order to ensure the full effectiveness of Directive 1999/70 and to achieve an outcome consistent with the objective pursued by that directive.

 Costs

74      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Tenth Chamber) hereby rules:

Clause 5 of the framework agreement on fixed-term work, concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP,

must be interpreted as not precluding national legislation, as interpreted by a national supreme court, pursuant to which the rules of ordinary law governing employment relationships and intended to penalise the misuse of successive fixed-term contracts by the automatic transformation of such contracts into contracts of an indefinite duration, are not applicable to the sector of activity of operatic and orchestral foundations, and which provides, by way of measures to penalise the use of a wrongful repeated renewal of fixed-term contracts in that sector, first, the possibility of awarding a minimum amount by way of compensation for the loss incurred, proof of which may be adduced by presumption, without prejudice to obtaining compensation for greater loss, and, second, the possibility of holding the directors of those foundations liable in the event of gross negligence or intentional breach by the latter of the national legislation relating to such contracts, provided those measures make it possible to penalise effectively the misuse observed, which it is for the national court to assess. If that court holds that those measures do not make it possible to penalise in that way the misuse of fixed-term employment contracts in the sector of operatic and orchestral foundations, it is for it to interpret, so far as possible, its national law in a manner consistent with that clause in order to ensure the full effectiveness of Directive 1999/70 and to achieve an outcome consistent with the objective pursued by that directive.

[Signatures]

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*      Language of the case: Italian.