Techniques and strategies for the protection of fundamental rights in preliminary rulings before the Court of Justice of the European Union Vincenzo De Michele (Lawyer of the Foggia Bar)

The reference for a preliminary ruling Can the main proceedings be arranged with a view to obtaining a preliminary ruling? – «Job Centre» judgment (lawyer Ichino) – …but also “Mangold” judgment (lawyer Helm) The CJEU decides on the basis of the questions asked by the reference judges It is important to raise the national Judges’ awareness on issues concerning EU law The national judgment should properly represent the preliminary issues that the national Judge is asked to raise.

Preparing and keeping up to date The only way to be always up to date with the evolution of the CJEU case-law is to study constantly. The CJEU’s orientations may change suddenly (e.g. overcoming of the ‘Mangold’ judgment by the ‘Deutsche Lufthansa’ and ‘Sorge’ judgments) To check new preliminary case-law:

Protecting fundamental rights through a multi-level action… Being able to act before the CJEU and the ECHR simultaneously - Scattolon case: the lawyers’ strategic moves in the Scattolon case (CJEU) and in the Agrati-Montalto cases (ECHR) Being able to stimulate dialogue between national and supranational courts: the cases of precarious work in education, maritime work and the electoral law (nicknamed ‘Porcellum’)

… by acting properly In the preliminary ruling, the principle iura novit curia is limited to EU law, and does not apply to national law, which must be represented by the parties to the proceedings in compliance with the principle of loyal cooperation Example: the Attorney General’s written observations in the ‘Affatato’ case regarding the applicability of Art. 5, para. 4 of leg. decree no. 368/2001 to the Civil Service The lawyers’ loyal cooperation unveils the State’s unloyalty in the proceedings

… ready to use “force” The unusual revirement of the CJEU on the “Vino” case regarding the economic-social impact the ruling would have had (art. 2, para. 1-bis of leg. Decree no. 368/2001) If the Court is not exhaustive, the questions can be submitted again: the "Vino II" order The appeal for revision of the "Vino" order of for not taking into account the written observations and the request of an oral hearing The appeal to the ECHR against the "Vino" orders for infringement of rules of procedure on the community’s due process …until a change in the Rule of Procedure is obtained (Rule of procedure of the Court of Justice of 29 September 2012)

All cases are not the same Experience teaches us that one of the factors that can affect the CJEU’s decision is the value of the case in terms of the impact of the supranational decision on the national legislations, with special reference to budget constraints. Example: Conversion of illegal fixed-term employment contracts in Poste Italiane S.p.A. Requalification of the succession of fixed-term employment contracts in the privatised civil service, namely in education Transfer of auxiliary and administrative staff from Local Authorities to the Ministry of Education

Operational guidelines Always phrase the written observations in the interest of the party to the proceedings, also to represent the national law properly Prepare notes for the oral hearing Ex. “Carratù” case: no written observations had been submitted Application to re-open the oral stage under Art. 83 of the Regulation (critique to Advocate General Wahl’s reconstruction of the juridical aspects and of the proceedings) Rejection / Acceptance Reference judge’s clear arguments

Perspectives Acting in a network, collaborating with all the lawyers defending cases before European Courts to cooperate in the drafting of pleadings and exchange information on pending cases in real time Monitor the CJEU’s case-law concerning other EU countries Train legal professionals and encourage the doctrine to look at EU law on a daily basis